Mulageni Tenancy.

Bipin Hegde, Advocate, Bangalore.

The recent judgment of the Karnataka High Court in Clarence Pais and others vs The State of Karnataka and another, upholds the validity of Karnataka Conferment of Ownership on Mulageni or Volamulageni Tenants Act, 2011. (Mulageni Act).

Similar to other land tenancy laws, the Mulageni Act confers full ownership on the tenants and the sub-tenants on payment of normative compensation.

This brief article deals with the history of Mulageni tenancy.

Mulageni tenancy is mainly prevalent in Dakshina Kannada district. Mula connotes ‘root’. Muladar is the landlord or owner of the land. Geni in Kannada means is the rental amount payable to Muladar either in cash or kind. Normally the tenant would pay geni in the form of produce every year.

A unique feature of Mulageni tenancy is that a Mulageni is permanent lease or a lease in perpetuity. The Mulagenidar can also transfer the land to another Mulagenidar for a consideration. The transfer can be without the permission of the Muladar. However, the new Mulagenidar has to pay the rental to the Muladar.

The right of eviction is conferred on the Muladar only if the Mulagenidar fails to pay the rent. One more feature is that the rental amount is nominal since the land was developed by the Mulagenidar.

After Tippu Sultan was killed in the Mysore War of 1799 the entire areas which were ruled by Tippu came under the administration of East India Company. The British Company demanded huge revenue from the landowners in the form of Shamil in addition to Kist amount. Later, these two collections were merged and ‘Sarasari Geni’ was fixed. However Mulageni tenancy as such was not abolished by the British. It was continued even after the independence.

The revolutionary reforms in the agricultural tenancy occurred in 1973 with the Karnataka Land Reforms (Amendment) Act of 1973. This legislative reforms helped many Mulagenidars to buy cheaply their full ownership and abandon the Muladars system.

Thus the revolutionary Land Reforms Act of 1973 did not abolish the Mulageni system although there was much dilution in the number of those households coming under the Mulageni system. The Mulagenidars were considered permanent tenants and the ownership of the land to Muladars was in perpetuity.

Karnataka Conferment of Ownership on Mulageni or Volamulageni Tenants Act, 2011.

The preamble to the Act states that the Act is to provide for conferment of ownership on mulagenidars or volamulagenidars. The Act takes note of the the huge investments made by the Mulagenidars by putting up structures, and improvements to the property either residential or commercial and the practical difficulty of the tenants to enjoy the holding to its full extent. The Act considers it in the public interest to provide for conferment of ownership on mulgenidars and volamulgenidars.

Section 3 of the Act deals with conferment of ownership right on Mulagenidar and Volamulagenidar and says that every mulagenidar or volamulagenidar who, on the date of commencement of the Act, is in possession and enjoyment of the holding shall be entitled to be conferred with ownership of the holding, on his fulfilling the conditions specified in the succeeding sections and on conferring such ownership right on him. The Section saves mortgages or charges created in respect of such holding.

Section 4 deals with conditions for eligibility of conferment of ownership. Mulgenidar or volamulagenidar shall be eligible for conferment of ownership right on him under the Act if he pays to the mulgar or intermediary an amount as may be determined by the Competent Authority by taking into consideration such guidelines as may be prescribed. Section 7 empowers the Competent Authority to determine the amount payable to the mulgar. The amount payable is 500 times of the lease rental as is evidenced in the records. However, where the Mulageni lease is conditional requiring the permission of the Mulgar for alienation of the property the amount payable shall be calculated at 1000 times of the lease rent.

Section 8 provides for issuance of Certificate of ownership. Section 9 provides for appeal and Section 10 bar jurisdiction of the Civil Courts to settle, decide or deal with any question which falls under the Act.

Challenge to the Mulageni Act. The constitutional validity of the Mulageni Act was questioned on the following grounds. (1) State legislature lacks competence to enact the Act. (2) Want of proper Presidential Assent to the Act under Article 254(2) of the Constitution. (3) Presidential Assent to the impugned Act does not extend to the protective Proviso to Article 31C. (4) The Act is discriminatory. (5) The Act is manifestly arbitrary & massively unjust. (6) The Act lacks public purpose and therefore is violative of Articles 26 & 300A of the Constitution. (7) The compensation payable to the muldars is illusory so as to render the impugned Act void under Article 300A of the Constitution.

The Karnataka High Court considers each one of these questions meticulously. One of the interesting arguments advanced on behalf of the petitioners is that the constitutional amendment to Article 31C vide 42nd Amendment Act 1976 which extended protection to the statutes made to give effect to any of the Directive Principles in Part IV
having been struck down in Minerva Mills case the original position therein is restored and that does not extend protection to the impugned Act under Article 31C.

Let me simply this argument. Relevant portion of Article 31C in its original form read as follows. (please see the highlighted portion)

31C. Saving of laws giving effect to certain directive principles.—
Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31.

Provided that where such law is made by the Legislature of a State, the
provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

The constitutional validity of Article 31C in its original form was upheld by the Supreme Court in Kesavananda Bharti case. However the Parliament amended Article 31C. The relevant portion reads as follows. (please see the highlighted portion) .

31C. Saving of laws giving effect to certain directive principles.—
Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19

Provided that where such law is made by the Legislature of a State, the
provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

Thus, the Parliament expanded the scope of Article 31C to include all or any of the principles laid down in Part IV instead of clause (b) or clause (c) of article 39.

This amendment was struck down by the Supreme Court in Minerva Mills case primarily on the ground that primacy of Part IV could not be given over Part III.

The argument of the petitioners was that with the Supreme Court striking down the amendment to Article 31C, the original position i.e. reference to clause (b) or clause (c) of article 39 got restored. Since the Mulageni Act is not enacted to give effect to Articles 39 (b) or (C), the same is unconstitutional.

The High Court deals with this question in paragraph IX as follows.

Firstly the impugned Act is made to give effect to the Directive Principles in Articles 39(b) & (c) which figured in the original text of Article 31C and continue till date; if that be so, one need not see what happened to 42nd Amendment of 1976 in Minerva Mills; Secondly, whether such a protection extends to the laws made to give effect to all other Directive Principles contained in Part IV is being examined by a Bench of Nine Judges in Property Owners Association vs State of Maharashtra; Thirdly, as already discussed above, no Assent of the President is secured to the impugned Act in terms ofnproviso to Article 31C. Fourthly, Sanjeev Coke having adverted to Minerva Mills extends protection to the statutes that are made to give effect to any of the Directive Principles in Part IV of the Constitution, of course
subject to Assent under the Proviso to Article 31C.

 Whether Minerva Mills case has the effect of restricting the scope of Article 31C only to Articles 39 (b) and (c) or it extends to all the provisions of Part IV is pending adjudication before the Supreme Court. But the fact remains that provisions similar Mulageni Act have already been upheld.

The hitherto continued confusion, lack of ownership and the related eternal problems have been finally put to rest by the Judgement of the Karnataka High Court.

This assures dignity and the human right to property to many Mulagenidars for sure.