- (1.) The question raised in the several appeals is primarily that of the vires of S. 44 of the Karnataka Land Reforms Act, 1961 as amended by the Karnataka Land Reforms (Amendment) Act 1 of 1974. In order to appreciate the submissions made to us, it will be useful to set out the relevant provisions of the Act before it was amended by Act 1 of 1974. Section 2(6) as it stood before the amendment defined "basic holding" as meaning land which was equal to two standard acres. "Ceiling area" was defined as meaning land which was equal to eighteen standard acres. "Court" was defined to mean the Court of Munsif within the local limits of whose jurisdiction the land was situate. "Family holding" was defined as meaning land equal to six standard acres. "Small holder" was defined to mean a land owner owning land not exceeding two basic holdings whose total net annual income including the income from such land did not exceed one thousand two hundred rupees. "Standard acre" was defined to mean one acre of the first class of land or an extent equivalent thereto consisting of any one or more classes of land specified in Part A of Schedule I determined in accordance with the formula in Part B of the said Schedule. Chapter II (Ss. 4 to 43) contained 'General provisions relating to Tenancies' and Chapter III (Ss. 44 to 62) dealt with 'Conferment of ownership on tenants'. Section 5 prohibited the creation or continuation of any tenancy in respect of any land after the appointed day and barred the leasing of land for any period whatsoever. It was, however, provided that (a) any small holder might create or continue a tenancy or lease the land owned by him and (b) any land owner who was a minor, a widow, an unmarried woman, a person incapable of cultivating land by reason of any physical or mental disability or a soldier in service in the Armed Forces of the Union or a seaman, might create or continue the tenancy or lease the land owned by him or her. It was further provided that tenancies of resumable lands could be continued until the dispossession of the tenants under S. 14 and of non-resumable land until the date of vesting under S. 44. Section 14 provided for resumption of lands from tenants. Sub-secs. (1), (4) and (6) of S. 14 may be usefully extracted here. Sub-secs. (2), (3) and (5) do not appear to be necessary for the purposes of the present case. Sub-ss. (1), (4) and (6) were as follows :- "14, Resumption of land from tenants(1) Notwithstanding anything contained in Ss. 22 and 43, but subject to the provisions of this section and of Ss. 15, 16, 17, 18, 49, 20 and 41, a landlord may, if he bona fide requires land, other than land referred to in the first proviso to Cl. (29) of sub-s. (A) of S. 2, (i) for cultivating personally, or (ii) for any non-agricultural purpose, file with the Court a statement indicating the land or lands owned by him and which he intends to resume and such other particulars as may be prescribed. On such statement being filed, the Court shall, as soon as may be after giving an opportunity to be heard to the landlord and such of his tenants and other persons as may be affected, and, having due regard to contiguity, fertility and fair distribution of lands, and after making such other inquiries as the Court deems necessary, determine the land or lands, which the landlord shall be entitled to resume, and shall issue a certificate to the landlord to the effect that the land or lands specified in such certificate has been reserved for resumption; and thereupon the right to resume possession shall be exercisable only in respect of the lands specified in such certificate and shall not extend to any other land. Explanation :- Subject to such rules as may be prescribed, the Court within the jurisdiction of which the greater part of the land held by the landlord is situated shall be the Court competent to issue a certificate under this section." (2) and (3) xx xx xx xx xx xx xx xx (4) In respect of tenancies existing on the appointed day, as soon as may be after the expiry of fifteen months from the appointed day, as soon as may be after the statement under sub-s. (1) is filed, the Court shall after such inquiry as it deems fit, determine the lands which will be non-resumable lands leased to tenants for purposes of this Act." (5) xx xx xx xx xx xx xx xx xx xx xx (6) Notwithstanding anything contained in sub-s. (5), where the landlord belongs to any of the following categories, namely :- (i) minor; (ii) a person incapable of cultivating land by reason of any physical or mental disability; (iii) a widow; (iv) an unmarried woman; then, the application to the Court for possession of land shall be made, within fifteen months from the appointed day or one year from the date on which- (a) in the case of Category (i), he attains majority; (b) in the case of Category (ii), he ceases to be subject to such physical or mental disability; (c) in the case of Category (iii), she remarries; (d) in the case of Category (iv), she marries, whichever is later : Provided that where land is held by two or more joint landlords, the provisions of this sub-section shall not apply unless all such landlords, belong to the categories specified in Cls. (i) and (ii) and the application shall be made within one year from the date on which any one of such landlords ceases to belong to any such category and an application by any one of the joint-holders shall be deemed to be a valid application on behalf of all the joint-holders : Provided further that where a person belonging to any of the categories specified in Cl. (i) or (ii) of this sub-section, is a member of a joint family, the provisions of this subsection shall not apply unless all the members of the joint family belong to the categories specified in Cls. (i) and (ii), but where the share in the joint family of a person belonging to any of such categories has been separated by metes and bounds before the filing of the statement under sub-section (i), if the Court on inquiry is satisfied that the share of such person in the land separated, having regard to the area, assessment, classification and value of the land is in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion, the provisions of the sub-section shall be applicable to such person. (7) and (8) xx xx xx xx xx xx xx xx." Section 15 provided for resumption of land by soldiers and seamen. Section 16 prescribed the conditions restricting resumption of land under S. 14. It is necessary to extract the whole of S. 16. It was as follows :- "16. Conditions restricting resumption of land under S. 14 - The right of a landlord to resume for cultivating the land personally under S. 14, shall be subject to the following conditions, namely :- (1) If the landlord owns land not exceeding two basic holdings he shall be entitled to resume one half of the land leased to the tenant : Provided that the right to resume by such landlord shall be subject to the condition that in the case of a protected tenant, such tenant, shall be left with at least one standard acre of the land actually held by him, whichever is less. (2) If the landlord owns land exceeding two basic holdings, he shall be entitled to resume one-half of the area leased to the tenant, provided that the total area resumed by the landlord does not exceed three family holdings. (3) No landlord who has been cultivating personally land exceeding three family holdings shall be entitled to resume any land leased. (4) The right to resume land under Cls. (1) to (3) shall be subject to the further condition that the land resumed from all the tenants holding under the landlord together with the extent of land, if any, cultivated by the landlord personally and any non-resumable land held by him shall not exceed three family holdings. (5) In respect of lands cultivated with plantation crops, the landlord shall not be entitled to resume more than one-half of the land leased to a tenant. (6) If more tenancies than one are held under the same landlord, then the landlord shall be entitled to resume land only from tenants whose tenancy or tenancies are the shortest in point of duration: Provided that the landlord shall be entitled to resume lands held by protected tenants only if the required extent of land cannot be resumed from tenants other than protected tenants : Provided further that where such tenancy or tenancies shortest in point of duration shall on resumption leave with the tenants land in extent which will be less than a basic holding, the resumption shall be made in respect of tenancy or tenancies next longer in point of duration. (7) The right to resume land by the landlord, other than a landlord owning land not exceeding two basic holdings, shall be subject to the further condition that in the case of protected tenants. each protected tenant shall be left with a basic holding or the land actually held by him, whichever is less, (8) The right to resume land from any tenant shall be exercisable under S. 14 only once. (9) The income by the cultivation of the land of which he is entitled to resume shall be the principal source of income for the maintenance of the landlord. (10) If as a result of the resumption of land under S. 14, a fragment is created, the person entitled to the larger part of the land shall be entitled to the fragment also. (10-A) If any person has after the 18th November, 1961 and before the appointed day transferred any land. otherwise than by partition, then, in calculating the extent of land owned by such person for purposes of the preceding clauses, the area so transferred shall be taken into consideration, and land exceeding the resumable area so calculated shall be deemed to be non-resumable land, and such person shall not be entitled to resume such non-resumable land. Explanation - For purposes of this clause, a land shall be deemed to have been transferred, if it has been transferred by act of parties (whether by sale, gift, mortgage with possession, exchange, lease or any other disposition) made inter vivos. (10-B) Notwithstanding anything contained in Cls. (1) to (10) (both inclusive), or S. 142. the extent of land, if any, resumable. by any landlord in Bombay Area shall be subject to the restrictions and conditions specified in Ss. 31-A, 31-B and 31-C of the Bombay Tenancy and Agricultural Lands Act, 1948, as inserted by the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955 Bombay Act 13 of 1956), notwithstanding the provisions of the Bombay Tenancy (Suspension of Provisions and Amendment) Act, 1957 (Mysore Act 13 of 1957). (10-C) Notwithstanding anything contained in Cls. (1) to (10) (both inclusive), or S. 142, the extent of land, if any, resumable, by any landlord in the Hyderabad Area, shall be subject to the restrictions and conditions specified in the Hyderabad Tenancy and Agricultural Lands Act, 1950, as in force in the Hyderabad Area on the 1st November, 1956. (11) No landlord who at any time before the appointed day had resumed land from any tenant for personal cultivation under the Bombay Tenancy and Agricultural Lands Act, 1948. or the Hyderabad Tenancy and Agricultural Lands Act, 1950, shall be entitled to resume again under S. 14 any land left with the same tenant." Section 44 provided for the vesting of certain lands in the State Government. Sub-sec. (1) was as follows : "(1) As soon as may be after the determination of the non-resumable lands under sub-sec. (4) of S. 14. by each Court, the State Government may by notification declare that with effect from such date as may be specified in such notification (hereinafter referred to as the date of vesting) all the non-resumable lands determined by such Court which are leased to tenants, whether protected or otherwise, and all lands leased to permanent and other tenants referred to in the first proviso to Cl. (29) or sub-sec. (A) of S. 2 in the area within jurisdiction of such Court shall stand transferred to and vest in the State Government." Section 45 provided for the registration of tenants as occupants of land on certain conditions. Section 47 provided for the payment of compensation to the land owner in regard to the extinguishment of rights in lands vesting in the State Government under S. 44. Chapter IV (Ss. 63 to 79) dealt with 'ceiling on land holdings'. Section 63 prescribed the ceiling on the extent of land which any person may hold either as a landowner, landlord or tenant or as a mortgagee with possession or otherwise or partly in one capacity and partly in another. Section 68 provided for the 'vesting of land surrendered by the owner in the State Government.' Section 72 provided for payment of compensation for lands surrendered to and vested in the State Government. We are not concerned with Chapters V, VI, VII and VIII. Chapter IX dealt with 'Procedure and Jurisdiction of Court and Appeals'. Section 112 prescribed the duties of the Court and among the duties were "(g)" to issue a certificate relating to reservation of land for resumption under sub-s. (1) of S. 14 and (b) to determine the non-resumable lands under sub-s. (4) of S. 14." Sections 113, 114 and 115 provided for enquiry by the Court and the procedure to be adopted. Section 118 provided for an appeal from the Court to the District Court.
(2.) The broad scheme of the provisions mentioned or set out above was that there was not only to be a ceiling on the holding of land, the system of leasing of land was to be abolished and cultivating tenants were to be invested with rights of ownership. However, certain limited classes of cases were recognised where leases were permitted on the one hand and on the other tenants were deprived of the right to remain in possession of the land. It was provided that leases were permissible in cases when the landlord was under some disability as specified in S. 5. It was also provided that a landowner could seek, subject to the prescribed limits, resumption of land from tenants, if he bona fide required the land for cultivating personally or for any non-agricultural purpose. The right to resume land for personal cultivation was no doubt subject to several severe conditions, one of the most important of which was that the income by the cultivation of the land which he was entitled to resume should be the principal source of income for the maintenance of the landowner. In other words, the Act while fixing a ceiling on the holding of land and generally conferring ownership rights on tenants, did not altogether ignore the interests of the smaller landlords and did in fact after some measure of protection to those who desired to personally cultivate the tenanted land.
(3.) The Act was substantially amended in 1974. 'Basic holding' and 'family holding' ceased to be defined. "Ceiling area" was defined to mean the extent of land which the person or family was entitled to hold under S. 63. Section 5 was amended and the provisos were omitted. It was however provided by sub-sec. (2) that the prohibition against creation of tenancies or leases would not apply to tenancies created by a soldier or a seaman. The savings in respect of a minor widow or a minor woman under the original S. 5 was taken away. Section 14 was omitted. Section 16 was also omitted. Section 44 was amended. The new sub-sec. (1) of S. 44 is as follows :- "44(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 land held by them under leases permitted under S. 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government. A new S. 48 was introduced providing for the constitution of Tribunals, a Tribunal for each taluq consisting of the Assistant Commissioner of the Revenue Division and four other members to be nominated by the State Government of whom one shall be a person belonging to the scheduled castes or scheduled tribes. No qualifications were prescribed for the nomination of persons to membership of the Tribunal. Sub-sec. (8) of S. 48 provided that no legal practitioner shall be allowed to appear in any proceeding before the Tribunal. Section 48-A dealt with the procedure to be adopted by the Tribunal in its enquiry into applications made under S. 45 for registration of a person as an occupant. Section 112-A provided for the duties of the Tahsildar and S. 112-B provided for the duties of the Tribunal. The provision for an appeal from the decision of the Court and the further right of revision under the amended Act were taken away and there was no right of appeal or revision against the decision of the Tribunal. Thus, we see that the 1974 Amending Act took away the right which was saved by the original Act in favour of the widow. unmarried woman, minor and disabled person to create a tenancy or lease the land. The more important right which was taken away by the 1974 Amendment was the right of the landlord to resume the land if he bona fide required the land for personal cultivation or for a non-agricultural purpose. The right to resume the land if he bona fide required the land for personal cultivation was denied by the Amending Act even if the income by the cultivation of the land which he was entitled to resume was the principal source of income for the maintenance of the landlord.;