NARASING GOPALRAO DESAI Vs. LAND TRIBUNAL KHANAPUR

JUDGEMENT

(1.) These two Writ Petition filed under Art. 226 of the Constitution, have come up before us upon a reference made by Venkatesh J., on the ground that the petitions raise important questions of law of far reaching consequences. It is true that the questions raised are of considerable importance and they relate to the rights of a soldier or seaman to resume the tenanted lands, and the rights of the tenants to get occupancy in respect of such lands connected with the scope of jurisdictions of the Land Tribunal and the Tahsildar under the Karnataka Land Reforms Act, 1961 (The 'Act')

(2.) The events leading to the petitions are as follows : S. No. 38 measuring 7 acres and 30 guntas situate in the Village Mudewadi, Khanapur Taluk, Belgaum District, belongs to Narasimha Gopal Rao Desai who is the writ petitioner in both the writ petitions. The said land originally belonged to his joint family and under a family partition which took place in 1959, it was allotted as against the share of the petitioner. The petitioner joined the Indian Air Force as far back in October 1952 and was discharged from service on December.3, 1973. M.M. Gurav (the 'tenant') respondent-3 in both the writ petitions, was in possession of the said land as a tenant of the joint family for several years and he was allowed to continue as tenant under petitioner after the family partition. The petitioner with a view to resume the land appears to have issued a notice calling upon the tenant to surrender possession of the land, but the tenant refused to do so. So, the petitioner moved the Tahsildar with an application under S. 15 of the Act to evict the tenant and for delivery of possession of the land. Before the Tahsildar, the petitioner appears to have given his service particulars while producing a cepy of the notice issued by him to the tenant as required by R. 4 of the Karnataka Land Reforms Rules, 1974(the 'Rules') The tenant while resisting the action, however, Admitted that the petitioner was his landlord, but he contended that he was cultivating the land since his forefathers and his tenancy was not created by the petitioner and therefore he was not liable to be evicted. The Tahsildar accepted the contentions of the tenant and made an order dated October 7, 1975 dismissing the application of the petitioner by observing that he did not comply with the conditions set out in S. 15 and did not create the tenancy when he was in service and therefore could not seek resumption of the land from the tenant. Against the order of the Tahsildar, the petitioner preferred an appeal to the Assistant Commisioner, Belgaum, under S. 18(2) of the Act.

(3.) The Assistant Commissioner also dismissed the appeal by giving some more reasons. He has stated that the petitioner did not create the tanency. He did not produce any record evidencing his Military Service. There was no written lease creating or continuing the tenaney as between the parties. The written lease alone could form the basis for evicting the tenant under S. 15 of. the Act. Challenging the validity of these orders the petitioner has preferred W.P.No. 4550 of 1978, The tenant claiming occupancy right in respect of the land S.No. 38 had approached the Land Tribunal Khanapur under S-48-A of the Act. The record shows that the petitioner was placed ex parte in that proceedings and the Tribunal by order dated June 16, 1977 granted occupancy right to the tenant. The petitioner has challenged the validity of that order in W.P.No. 4317 of 1978. Two primary questions arise for consideration in these petitions. The first as to the right of the calivating tanent to get occupancy right in respect of the land belonging to a solider or seaman.The second relates to the right of the soldier or seaman to resume the land from his tenant. These two questions are intertwined and could be conveniently disposed of by reference to Ss. 5, 15 and 44.