TaxTMI 
TaxTMI 
2024 (7) TMI 1766
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....ntered appearance through the learned AGA. II. Brief facts of the case: (a) Subject 'plantation lands' were held in lease by the appellant-company, since decades. Its application in Form 7 filed u/s. 48A of the Karnataka Land Reforms Act, 1961 was rejected by the jurisdictional Land Tribunal vide order dated 25.05.1984 on the sole ground that the applicant did not fit into the definition of 'tenant' u/s 2(34). Appellants' challenge to the said rejection in W.P. No. 14885/1984 failed vide order dated 8.4.1988. Their W.A.No.1030/1988 c/w W.A. No. 1867/1989 also met the same fate at the hands of a Co-ordinate Bench on 21.09.1990. Their Review Petitions in C.P.Nos.13/1991 & 386/1991 too yield fruit vide order dated 03.01.1992. Lastly, the challenge to all this in SLP (Civil) No. 120/1991 was dismissed by the Apex Court as withdrawn by order dated 26.07.1996. (b) The Tahsildar by order dated 20.07.2000 mutated the Revenue Entries in favour of State in the light of above fact matrix. Challenge to the same in W.P.No.26764/2000 failed vide order dated 06.12.2005. Appeal in W.A. No. 124/2006 also met the same fate on 06.09.2006 at the hands of another Co-ordinat....
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....der. They pressed into service certain rulings in support of their case. (b) Learned AGA representing the respondents, with equal vehemence, contended that: this case has a chequered history, a spate of cases having been unsuccessfully launched by the appellants; all they were dismissed by entering a 'specific finding' as to lands being agricultural, tenanted as on 01.03.1974 and having vested in the State by operation of law; appellants are wrong in arguing that these findings do not suffer res judicata since in any claim for occupancy in terms of Sec.48A of the 1961 Act, only three questions are involved viz., whether land is agricultural, whether it is tenanted and whether it was tenanted as on the cut off date; all these questions having been considered & specifically answered by the Co-ordinate Benches, appellants should not be permitted to reagitate the same. So contending, he sought for dismissal of the appeal with costs. IV. Having heard the learned counsel for the parties and having perused the appeal papers, we are inclined to grant indulgence in the matter broadly agreeing with the submissions made on behalf of the appellants for the following reasons: (....
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.... the failure of grantee of occupancy to cultivate. Section 61 prescribes a 15 year non-alienation period. Section 62 provides for surrender of land by the tenant post registration of occupancy to the State and for the disposal of surrendered lands. (d) Section 44 which provides for statutory vesting of lands in the State reads as under: "44. Vesting of lands in the State Government. - (1) All lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government". [Sub-Section (2) not being relevant is not reproduced] Learned advocates appearing for the appellants and the learned AGA representing the State in their usual fairness did not dispute the long standing position of law that for vesting of land in terms of above provision, three things are a must, namely: the land should have agricultural character; it should be tenante....
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....rom eviction from any land by the [Karnataka] Tenants (Temporary Protection from Eviction) Act, 1961. (iia) a person who cultivates personally any land on lease under a lease created contrary to the provisions of section 5 and before the date of commencement of the Amendment Act. ]. (iii) a person who is a permanent tenant; and (iv) a person who is a protected tenant. Explanation .- A person who takes up a contract to cut grass, or to gather the fruits or other produce of any land, shall not on that account only be deemed to be a tenant." (c) The above provision has several building blocks, one of them being `person who cultivates personally'. If we mask the provisions of law quoted by the Tribunal in its rejection order, it becomes crystal clear that what weighed in rejection was not the definition of 'tenant' but the prohibition enacted in Sec.79B(1)(b)(ii) of the Act to hold agricultural land, inasmuch as the company could not hold from 01.03.1974. A claimant not being entitled to hold land because of prohibition is one thing and he being a tenant u/s.2(34) is another. Answer to the former may be in the negative though that to the later ....
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.... one should be proceeded against twice for the same cause. [Halsbury's Laws of England, Fifth Edition, Volume 12, para 1168, LexisNexis] It is one of public policy that the best interest of society demands that, litigation be concluded, at least as a concession to shortness of human life. Added, economy of the time of courts is one of the obviously beneficial results of the doctrine and this feature becomes immensely important as Courts/Tribunals nowadays are extremely burdened. The doctrine has another aspect of public policy: it promotes peace & quiet in the community through the creation of certainty. Legal battles cannot be kept alive in eternity. Opinio juris broadly supports that the doctrine applies not only as between the parties but qua the court, as well. Its invokability ordinarily is not dependent upon correctness of the decision. Finality marches over fallibility, in some institutions of the society. (b) This doctrine has many shades & reflections and its invokability is qualified, depending upon the text of provision in the statute. Some jurisdictions have enacted this doctrine in its widest amplitude whereas others have not. Section 11 of Code of Civil Procedure, ....
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....As already observed above, the conventional doctrines like res judicata, estoppel, etc., would govern inter alia writ proceedings subject to all just exceptions vide P.BANDOPADHYA VS. UNION OF INDIA [(2019) 13 SCC 42] regardless of applicability of CPC and Evidence Act. The conditions & qualifications that apply to the proceedings before statutory Tribunals/Authorities would govern the writ proceedings in which their orders are examined, cannot be much disputed. This is a fortiori true because of Rule 39 of the Writ Proceedings Rules, 1977 which is coined as under: "39. Application of the High Court of Karnataka Rules, etc .- The provisions of the High Court of Karnataka Rules, 1959, the rules made by the High Court of Karnataka under the Karnataka Court Fees and Suits Valuation Act, 1958, and the provisions of the Code of Civil Procedure, 1908, shall apply, as far as may be, to proceedings under [Article 226 and/or Article 227] and writ appeals in respect of matters for which no specific provision is made in these rules". (b) Another Coordinate Bench of this Court in D.THIMMAPPA SHEIKA vs. STATE OF KARNATAKAS [2000 (1) KarLJ 34] having examined the above provision of t....
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....sive body for adjudication of the claim for occupancy u/s 48A of the 1961 Act; only it can hold proceedings and record satisfaction of Triple Test; only then land will vest in the State. A writ court cannot vest the private property in the State sans adjudicatory process on merits taking place at the hands of the Tribunal. This view gains impetus from the observations in BOREGOWDA L.G vs. BANGALORE DEVELOPMENT AUTHORITY [1983 SCC OnLine Kar 101]. We repeat that, whether land had vested in the State, was not decided at the hands of Tribunal. (c) Learned Single Judge's order was challenged in W.A.No.1030/1988 filed by the appellants c/w W.A.No.1867/1989 filed by the land owner. The Coordinate Bench dismissed the same vide order dated 21.09.1990. At para 10, it had framed the following two specific questions for consideration: "1) Whether the Company was not entitled to grant of occupancy rights being a juristic person not capable of cultivating tenanted lands physically is it hence to be denied occupancy rights. 2) Does the denial of occupancy rights in the aforesaid circumstances to the Company render the Act retrospective?" Paragraph 50 being prominent o....
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....No. 1867/1989 were specific and they were de hors the Triple Test. Lastly, it can be arguably added that the Deputy Commissioner's order dated 21.08.2007 being novum causa interveniens, there is no scope for invoking res judicata, even in its widest sense. (e) This court cannot blindly apply res judicata to the appeal at hands in view of the observations of the Apex Court in SAJJADANASHIN SAYED MD. B.E. EDR. V. MUSA DADABHAI UMMER [(2000) 3 SCC 350]: "18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says: a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter "directly and substantially" in issue ... The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. One has to examine the plaint, the written statement, the issues and the judgment....
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.... Judge and the Co-ordinate Bench have mentioned about the Land Tribunal order dated 25.05.1984 and the proceedings that arose therefrom. As already mentioned above, the Tribunal did not say one single word about vesting of the land in the State; it could not have said either inasmuch as the Triple Test was not put to test in the said proceedings. Therefore, these orders have to be construed as being collateral to the foundational proceedings in which Land Tribunal order was put in challenge. Added, the observations do not show the vesting of land as to oust the appellants once for all from the arena of lis. What is significant is the observation made in the subject writ appeal 'it is open for the State authorities to initiate such other proceedings which warrants in the facts and circumstances of the case to take possession ... ' Had the land been vested in the State, this observation would not have been made at all. Simply the Coordinate Bench would have directed the government to take possession of the lands. (c) There were several collateral and coordinate proceedings between the parties wherein, observations as highlighted by the learned AGA do occur. Again we say th....
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....CTER: (a) Learned Sr. Advocate Mr. M.B. Nargund and B.L. Acharya appearing for the appellants submitted that the subject lands do not have agricultural character and therefore, they are miles away from the precincts of 1961 Act. In support of this contention, they pressed into in service another Coordinate Bench decision U.M.RAMESH RAO vs. UNION BANK OF INDIA [2021 SCC OnLine Kar 6203] in the light of section 31(i) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. This Ruling was rendered in the context of the exemption that would avail to agricultural lands from attachment & auction for effectuating the security for recovery of bank loans. The object & subject matter of these legislations are indisputably different; so also, their legislative fields; the former is relatable to Entry in the Union List whereas the latter concerns Entry in the State List of VII Schedule to the Constitution. Thus, we opine that the provisions of 2002 Act are not in pari materia with those of 1961 Act. That being the position, the decision pressed into service does not much come to the aid of appellants. (b) Learned AGA whose performance ....
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....g the land. Section 80 proscribed transfer of agricultural land to non-agriculturists. All these three provisions have been done away with by Act 56 of 2020 and that too with retrospective effect from the date they were brought on the statute book i.e., from 01.03.1974. In other words, the holding of land by the appellant-company under the lease in question from the beginning shall be deemed to be lawful. This amendment needs to be given full effect, there being no controlling factors enacted therein. That being the position, the substratum on which the claim for occupancy was rejected and as a consequence, land was arguable vested in the State, has been removed by operation of amendment Act. Therefore, Deputy Commissioner's order seeking to take possession of the subject lands, and all other proceedings in which the same was put in challenge, now rendered insignificant. This nova lex interveniens enure to the benefit of the appellants. This view gains support from the Apex Court decision in STATE BANK'S STAFF UNION MADRAS VS UNION OF INDIA, AIR 2005 SC 3446, wherein it is observed: " ... Whenever any amendment is brought in force retrospectively or any provision o....