Judgment:
ORDER
L. Narayana Swamy, J.
1. This petition is Died against the order passed in appeal No. 363 of 2002 dated 2/9/2002 passed by the Karnataka Appellate Tribunal, Ban galore and the petitioner herein sought for quashing the same.
2. Facts of the case as narrated by the petitioner are as under:
Land bearing Sy. No. 51/3 measuring 5 guntas, Sy. No. 51/4, 17 guntas, 50/3 measuring 28 guntas, Sy No. 50/2 measuring 26 guntas, 51/1 measuring 22 guntas, Sy. No. 52 measuring 1 acre 18 guntas, 51/2 meeasuring 2 acres 29 guntas, Sy. No. 50/1 measuring 23 guntas, Sy. No. 52 measuring 3 acres in all 13 acres 19 guntas situated at Nettigere village, Uttarahalli Hobli, Bangalore South Taluk has been purchased by the first respondent on 20/8/1988 from its owners without obtaining prior permission from the government and ultimately the said transaction since violated Section 79-B and 109 of the Karnataka Land Reforms Act, a case was registered against the respondents in Case No. LRF 83/164/2001 & 2002 on the file of the Assistant Commissioner, Bangalore South. By the order dated 13/5/2002 the appeal came to be allowed in favour of the petitioner. The Assistant Commissioner who allowed the appeal filed by the petitioners held that the transaction made by the respondents is in contravention of Section 79-B of the Land Reforms Act. Hence the lands were forfeited to the State Government and the Tahsildar was directed to take possession of the above said lands in accordance with law as contemplated Under Section 76 and 77 of the Karnataka Land Reforms Act. Being aggrieved, the respondents preferred an appeal before the Karnataka Appellate Tribunal, Bangalore in Appeal No. 363/2002 and the Appellate Tribunal by its order, dated 2/9/2002 allowed the appeal. Hence, this petition is presented by the petitioners.
3. The petitioners submit that the Respondent No. 1 is an educational institution. On the date of commencement of the Land Reforms Act and Section 79-B of the Act, no person other than a person cultivates the land personally shall be entitled to hold the lands. But in the instant case, the respondent No. 1, which is an educational institution should have obtained prior permission from the Government Under Section 109 of the Karnataka Lard Reforms Act. Hence the respondents have violated Section 109 of the Act. This aspect has not been dealt with by the Appellate Tribunal. Therefore, the petitioners have sought to quash the impugned order passed by the appellate tribunal.
4. Uuder Section 63 Sub-section (7) of the Land Reforms Act which contemplates that under Sub-section 7(a), educational, religious or charitable institution or society are prohibited from holding the land except where the income from the land is appropriated solely for the institution or the society etc.
5. Further Section 79-B of the Karnataka Land Reforms Act, hereinafter referred to as 'the Act' also prohibits holding of agricultural land by certain persons with effect from the date of commencement of the Amendment Act except the institution or society referred to in Sub-section (7) of Section 63 of the Act. In the instant case, the respondents have not obtained permission Under Section 63(7) and 79-B of the Act. Hence the impugned transaction of the land in question violates the provisions of the Act referred to supra.
6. This aspect has not been dealt with by the Appellate Tribunal. Section 109 of the Act exempts the educational institutions, industrial establishments, worshipping places etc., from holding the agricultural land with prior permission from the Government. The respondent has not obtained any permission Under Section 109 of the Act also. Hence it is submitted by the learned Counsel for the petitioners to quash the impugned order passed by the Karnataka Appellate Tribunal dated 2/9/2002 as per Annexure-B.
7. The learned Counsel for the respondents submits that the respondent institution is an educational institution represented by its Secretary who has purchased the agricultural lands, that the acquisition of land is not in contravention of Section 79-B of the Act. The phrase 'except as otherwise provided' in Section 79-B shows that the power is not absolute and exception has been provided in the Act. Section 63(7) of the Act has a overriding effect over all the provisions of the Act including Section 79-B. The contention of the respondents is that the land in question is a coffee plantation land is rejected by the appellate Tribunal and also Assistant Commissioner. Since the respondents have not challenged the observations made by the Appellate Tribunal, the same is not available to the respondents. Hence rightly the learned Counsel for the respondents did not press on the contention of land being plantation for the purpose of exemption. The learned Counsel for the respondents has relied upon the following decisions:
(i) 2002(2) KCCR 964 (Sri Nandi Basaveshwara Swamy Devaru v. The Deputy Commissioner, Davangere District and Ors. (2002 (2) KCCR 964) to contend that it is only the jurisdictional Divisional Commissioner under Rule 22 of the Karnataka Land Reforms Rules 1974 who is the competent authority to examine utilization of entire revenue solely and exclusively for the purpose of the society and therefore the Assistant Commissioner could not have passed the order impugned before the Karnataka Appellate Tribunal.
(ii) W.P. No. 16517/1987 (The State of Karnataka v. The Mysore Notre Dames Sisters Society (Regd.) to contend that all that is required to be done is that an educational institution shall hold the land but shall appropriate the income from the land solely for the purpose of the institution or the society or the trust concerned similar to the instant case. Therefore, the writ petition is liable to be dismissed.
(iii) : ILR 1989 Kar 897 (Management of Thungabhadra Sugar Works Ltd. v. State of Karnataka) to contend that Section 79B is inapplicable to the extent saved under Section 68(8) of the Act.
8. I have heard the learned Counsel for the parties.
9. The first respondent is an educational institution and second respondent is its secretary. It is also admitted by both the parties that the land in question has been purchased by the first respondent. Section 63(7) of the Act enables an institution, religious or charitable institution or society etc., to hold land except where the income from the land is appropriated solely for the institution or the society etc. The question of appropriating the income solely to the institution will have to be decided by the prescribed authority. Under the provisions of law, the Divisional Commissioner is the prescribed authority. The contention before the Assistant Commissioner was Under Section 63(7) if the fact of utilizing the entire income towards the institution is established then the exception Clause will attract. The word used in Section 63(7) is 'shall hold land' has been interpreted by the Karnataka Appellate Tribunal that if the institution merely establish that the entire amount is attributed towards the institution is sufficient. But the said interpretation is not a correct interpretation. The phrase 'hold the lands' means not merely owning or keeping the land. The agricultural lands purchased by any person shall be to hold the land for the purpose of agriculture and doing agricultural activities. It is not eligibility only to purchase agricultural land by it and aim of the provisions of law is to retain agricultural land only for the purpose of agricultural activities and also to prevent the investors, who want to misuse by using their capital to purchase the agricultural land from farmers. In the instant case, the respondents who are the educational institution basically they are not the agriculture oriented institutions where they can keep the land but they cannot hold it for agricultural activities. Hence the exception provided under Section 63(7) is not available to the respondents.
10. The Hon'ble Supreme Court in : (1996) 9 SCC 516 (Mst. BIBI Sayeeda and Ors. v. State of Bihar and Ors.) Paras- 21 and 22 referred to Black's law Dictionary at p.730 wherein the word hold' has been defined as:
1. To possess in virtue of a lawful title, as in the expression, common in grants, to have and to hold', or in that applied to notes, 'the owner and the holder'.
2. To be the grantee or tenant of another; to take or have an estate from another. Properly, to have an estate on condition of paying rent, or performing service.
* * *8. To possess; to occupy; to be in possession and administration of; as to hold office.
9. To keep; to retain; to maintain possession of or authority over.
In The Law Lexicon by P. Ramanatha Aiyar (Reprint Edition 1987) it is stated thus:
'Holder of the village'.- The expression holder of the 'village' in the concluding para of Section 216 of Act V of 1876, Bombay Land Revenue Code must be read as meaning the holder of the assessment or any part thereof of an alienated village, 18 B. 525.
'Hold' and 'holding' shall be applicable to any vested estate, whether for life or of a greater or less description, in possession futurity or expectancy in any immovable property. Act XXVII of 1866 (Trusttees), Section 2.
'Holding' means a share or portion of an estate held by one landowner or jointly by two or more landowners. Punjab Act XVII of 1887 (Land Revenue) Section 3, Clause 3.
'Holding' means land held under one title or agreement and surrounded by one set of boundaries. Provided that where two or more adjoining holdings form part and parcel of the site or premises of a dwelling house, manufactory, warehouse or place of trade or business, such heading shall be deemed to be one holding. Ben. Act III of 1884 (Municipal) Section 6, Clause 3.
The term 'holding' in the Bengal Municipal Act, Section 6, Clause (3) means land held by an occupier under one title or agreement and surrounded by one set of boundaries. 151C 548(549).
11. The Hon'ble Supreme Court in para 22 has held as follows:
22. It would, therefore, be clear that the word 'hold' used in Section 7-A would mean that the intermediary must hold, as owner under a title and in occupation of the land or the building in which the hats are conducted or bazars are situated in his own right as owner or by virtue of the authority or settlement It is not conducting hats, bazars or melas as contended for the appellants. In the light of the conjoint operation of Section 3 and 4(a) and in contra-distinction of the remainder rights of the intermediary/tenure-holder preserved under Sections 5 to 7, the conclusion becomes inevitable that the hats or bazars held by the intermediary vested under Section 3 in the State and the intermediary/tenure-holder stood divested of them and the pre-existing right, title and interest therein ceased. Even if we were to find that the word 'hold' used in Section 7-A means 'conduct', it would make no difference. If the intermediary has conducted a hat or bazar upon land which vests in the State within the stated period, the right to conduct the hat or bazar also vests in the State.
12. From Para 22 of the said judgment it would therefore be clear that the word 'hold' used in Section 7(a) would mean that the intermediary must hold as owner under a title and in occupation of the land or the building In which hats are conducted or bazars are situated in his own rights as owner or by virtue of the authority or settlement. In view of the said judgment, it is clear that mere holding or occupying the land does not itself sufficient Under Section 63(7) of the Act. Holding and keeping means by doing the agricultural activities as an agriculturist and utilizes its entire income for the institution itself. If it is ordinarily used 'holding' office does not mean only to sit in the office. It means to function in the office. Like that, holding an agricultural land is not itself sufficient but real meaning of it is to do the agricultural operations in it. The educational institutions by taking ground that holding land except where the income from the land is appropriated solely for the institution itself is not sufficient in claiming that the entire agricultural income is being utilized for the institution. Prior to this, the institution should confirm that by doing agricultural activities the institution is substantively being run. It is very useful for the institution like agricultural college or horticultural institutions and residential schools where entire expenditure of the residential schools depend upon the agricultural income. In the instant case, the second respondent has not taken any such stand either before the Assistant Commissioner or before the Appellate Tribunal.
13. Before the Assistant Commissioner, the respondent has taken a contention that it has been exempted Under Section 104 of the Land Reforms Act since in the revenue documents plantation growing coffee has been mentioned. The said contention has been determined by the appellate tribunal in para 7 of its judgment in respect of Point No. (a) whether the appellants have been able to prove that the lands in question were plantation lands. The answer was No. Against this observation, no appeal has been filed by the respondents. Hence I have not dealt with the same.
14. The appellate Tribunal has formulated other two points i.e., (b) & (c) which are as follows:
b) Whether the provisions of Section 63(7) of the Act will apply to this case?
c) Whether the impugned order is sustainable in law?
The Tribunal has answered points (b) and (c) are answered in the affirmative and negative respectively.
15. The Tribunal at Para 12 of its judgment has held that as long as the income from the lands purchased is appropriated for educational institutions, the transactions should be exempted from operation of Section 79B of the Act. The Appellate Tribunal has understood that as long as the income from the agricultural land is being fully appropriated towards the institution, then it is an exception Under Section 63(7)(a) is not correct. The purchaser basically must be an agriculturist. Secondly if the purchaser is an institution, religious, society, trust etc., they have to take permission Under Section 63(7)(a) of the Act. Mere taking a stand that income is being appropriated towards institution is not sufficient. In addition to that the purchaser should satisfy that they do agricultural operations and utilize its entire income towards the institution. In the instant case, no such ground has been taken. Therefore, there is no hesitation to hold that the present transaction where the educational institution, the respondents have purchased the agricultural land taking advantage of Section 63(7) of the Act, are not entitled to exemption as provided therein. The Karnataka Appellate Tribunal has not properly appreciated the facts situation and has erroneously set aside the order passed by the Assistant Commissioner holding that the transaction did attract the provisions of the Act. The order of the Appellate Tribunal is liable to be quashed and that of the Assistant Commissioner, Bangalore South Sub-Division, Bangalore is entitled to be restored.
16. In the instant case, the respondents have failed to satisfy that they do agricultural operations and utilize its entire income towards the institution.
17. In the result, this writ petition is allowed. The order dated 2/9/2002 in Appeal No. 363/2002 is hereby-quashed. The order dated 30.5.2002 in Case No. LRF(83) 164/2001-02 passed by the Assistant Commissioner, Bangalore South Sub-Division, Bangalore is hereby restored.