Karnataka High Court
Duregappa (Deceased) By L.R vs State Of Karnataka And Ors. on 10 February, 2004
Equivalent citations: 2004(4)KARLJ32
Author: N.K. Patil
Bench: N.K. Patil
ORDER N.K. Patil, J.
1. In this writ petition, the petitioner has questioned the legality and correctness of the order dated 15-12-1981 in Case No. TNC.VR.210/1976-77 passed by the third respondent-Land Tribunal, Sorab Taluk, Shimoga District, in respect of Sy. No. 332 measuring 5 acres 22 guntas situated at Moodidoddikoppa Village, Sorab Taluk, Shimoga District. Further, he sought a direction to the third respondent-Land Tribunal to enquire, consider and dispose of his application bearing L.R. No. 717 of 1967 under Section 7 of the Karnataka Land Reforms Act filed before and transferred from the II Additional Munsiff Court, Sagar, to the file of the third respondent herein.
2. The case of the petitioner is that, he was a tenant of the land in question for more than 15 years from 1963-64. Respondent 4 and respondent 5-Gangadhara Rao, since deceased by his legal representatives, are the owners of the land in question. In the year 1963-64, respondents 4 and 5(a) forcibly dispossessed the petitioner from the said land, contrary to law. As per the relevant provisions of the Karnataka Land Reforms Act, 1961, which came into force on 2-10-1965, the petitioner filed an application in Form 7 under the said Act within the prescribed time, seeking restoration of tenancy. The said application filed on the file of the II Additional Munsiff Court, Sagar, dated 3-10-1966 was numbered as Miscellaneous No. 22 of 1967, later L.R No. 717 of 1967. The respondents 4 and 5 filed their objections. When the matter was pending adjudication, in view of Karnataka Act No. 1 of 1974 coming into force, all the pending proceedings before the previous Land Tribunal were transferred to new Land Tribunal formed in the year 1974 onwards. Hence, restoration Case Nos. TR.Mis. 882 of 1966 and 83 Mis. 22 of 1967 are transferred to the Land Tribunal, Sorba/the third respondent herein. When things stood thus, in view of coming into force of Karnataka Act No, 1 of 1974, petitioner has filed an application under Section 48-A to register him as an occupant of the land in question and the said application registered as No. TNC.VR.123/74-75/Moodi was dismissed by the Land Tribunal by its order dated 22-5-1976 and the deceased 6th respondent-Sri Basevannyappa, now since deceased by L.Rs 6(a) to 6(f), was conferred occupancy rights in respect of the said land as per separate order dated 22-5-1976 passed in No. TNC.VR.2/74-75/Moodidoddikoppa. Being aggrieved by the said orders passed by the Land Tribunal, petitioner filed W.P. No. 6606 of 1976 before this Court. The said writ petition was dismissed by this Court on the ground that the petitioner was not in possession and cultivation as on the date of vesting and farther refused to consider the claim of the petitioner under Section 7 of the Karnataka Land Reforms Act. Against the said order, petitioner filed W.A No. 303 of 1977, which was also dismissed by this Court, by its order dated 1-8-1977 at the stage of preliminary hearing. Be that as it may. By Section 43 of the Karnataka Act No. 1 of 1979, Section 7 was amended and power was conferred on the Land Tribunal to confer occupancy right on the tenants who were unlawfully dispossessed. To the safer side, the petitioner filed another application in Form 7 within the extended period. The said application came up for consideration before the Land Tribunal on 15-12-1981. On that day, the petitioner filed an application to club this application with that of old and transferred application for restoration under Section 7 of the Karnataka Land Reforms Act. But, however, the Tribunal without considering his request, without conducting an enquiry and without taking into consideration the well-settled law laid down by the Division Bench and Single Judge of this Court, dismissed the application of the petitioner dated 15-12-1981 on the sole ground that the application filed by the petitioner in Form 7 has already been rejected and therefore, the question of considering his application once again does not arise. Assailing the said order dated 15-12-1981 in Case No. TNC.VR.200/76-77 passed by the Land Tribunal, Sorab, the petitioner has presented the instant writ petition.
3. The principal submission canvassed by the learned Counsel for the petitioner is that, the Land Tribunal has committed an error in not clubbing the application of the petitioner filed in Form 7 and restoration application pending before it, before passing the impugned order and the impugned order is passed without assigning any reasons or discussions. In short, it is not a speaking order. Further, to substantiate his submission, he placed reliance upon the law laid down by this Court in the case of Nanjunda Bhatta S.V. v. State of Karnataka and Ors., 1979(2) Kar. L.J. 167 Further, he was quick to point out that the said order is passed without following the law laid down by the Full Bench of this Court in Balesha Rama Khot and Ors. v. Land Tribunal, Chikodi and Ors., 1978(1) Kar. L.J. 116 (FB) and without conducting enquiry in strict compliance of the mandatory provisions of the Karnataka Land Reforms Act and Rules. He therefore submitted that the impugned order is vitiated and the same is liable to be set aside.
4. I have heard the learned Counsel appearing for the petitioner and the learned Government Pleader appearing for respondents 1 to 3.
5. After careful perusal of the impugned order passed by the Land Tribunal and after going through the original records available on the file and the stand taken by the learned Counsels appearing for the parties, I am of the considered opinion that the Land Tribunal has committed an error of law in passing the impugned order without taking into consideration the material available on record and the stand taken by the petitioner. Hence, the impugned order passed by the Land Tribunal cannot be sustained. As stated supra, the petitioner filed W.P. No. 6606 of 1976 feeling aggrieved by the order passed by the Land Tribunal dated 22-5-1976, rejecting his claim and this Court has rejected the said writ petition. Against that order, the petitioner filed W.A. No. 303 of 1977 and it was also dismissed at the stage of preliminary hearing. But, however, this Court has amply clarified regarding the validity of the application filed by the petitioner under Section 7 of the Amerced Act. The Court was concerned only as to whether the Land Tribunal was right in rejecting the application of the petitioner on the ground that admittedly, he is not in possession of the land in question since 1963. But, this fact has not been disputed by the petitioner before the Land Tribunal. As a matter of fact, after dismissal of the said writ petition, he has filed another application in Form 7 for grant of occupancy rights in view of amendment of Section 7 by Section 43 of Karnataka Act 1 of 1979 and when the matter came up for hearing, he filed another application and requested the Land Tribunal to club this application with that of old and transferred application for restoration under Section 7 of the Act and pass orders in accordance with law. The Tribunal without taking into consideration the relevant provisions of the Karnataka Land Reforms Act and Rules, has proceeded to reject the claim of the petitioner on the sole ground that his application has already been rejected and the same was confirmed by this Court. The said reasoning assigned by the Land Tribunal is contrary to the material on record. In the instant case, the request of the petitioner is to consider his application filed under Section 7 of the Act regarding restoration of possession and thereafter to consider his application filed in Form 7 for grant of occupancy rights. But, this aspect of the matter has been overlooked by the Land Tribunal and it has erred in rejecting the claim of the petitioner. In a similar circumstance, as rightly pointed out by the learned Counsel appearing for the petitioner, this Court in the case of Nanjunda, Bhatta S.V., supra, held that "where the tenant voluntarily surrendered his tenancy rights in 1962 and since then, the owner was in possession and cultivating personally, the land is not a tenanted land and as the tenant was not in possession of it as a tenant either on 1-3-1974 or immediately prior to that date, the provisions of the Act do not apply. Since, the tenant/claimant was out of possession immediately prior to the commencement of the Amendment Act, he is not entitled to be registered under Section 45 of the Act, If he was aggrieved by the surrender and dispossession thereunder, his remedy is under Section 7 of the Act for restoration and then approach the Tribunal for relief. The relevant portion of the said judgment reads thus.--
"8. Now coming to the second contention, it seems to me that the point involved for decision will not detain us for long. It is not the case of the 3rd respondent that he was in possession of the land in question and cultivating it personally either on 1-3-1974 or immediately prior to it. On the other hand, the definite case set up by him before the Land Tribunal was, that he was forced to give up possession and cultivation of the land in question in favour of the petitioner in the year 1962 under Exhibit A (vide Exhibit C his deposition before the Tribunal). A Full Bench of this Court in Balesha Rama Khot's case held that a tenant who was lawfully entitled to cultivate the land personally immediately prior to the commencement of the Amendment Act, but was wrongfully prevented from doing so, is not entitled to registration of occupancy rights under Section 45 of the Act. The Court further observed that the tenant who was lawfully entitled to cultivate the land personally immediately prior to 1-3-1974 but was wrongfully or illegally prevented from doing so, may take recourse to any one of the remedies provided under the provisions of the Act to recover possession and may request the Land Tribunal to defer consideration of his application till the possession of the land is restored to him. If he recovers possession in accordance with law, he may then ask the Tribunal to proceed with his application on merits. When possession is so recovered, the Tribunal has to proceed on the basis that the tenant must be deemed to have been personally cultivating the land from the date of his dispossession till the date of restoration of possession".
6. The ratio laid down in the said decision would apply to the facts of the case on hand. Admittedly, the petitioner was not in possession of the land in question and cultivating it personally either on 1-3-1974 or immediately prior to that date. He was dispossessed from the land in question by virtue of surrender made in the year 1963. The petitioner had rightly filed an application under Section 7 of the Karnataka Land Reforms Act, 1961 for restoration of tenancy. The said application was pending on the file of the II Additional Munsiff, Sagar and after coming into force the Act No. 1 of 1974, the same was transferred to the new Land Tribunal formed in the year 1974 onwards and hence, Case Nos.TR.Mis. 882 of 1966 and 83 Mis. 22 of 1967 were transferred to the Land Tribunal-third respondent herein. In view of the Amendment of Act No. 1 of 1974, petitioner filed an application which was numbered as TNC.VR.123/74-75/Moodi in Form 7 for grant of occupancy rights of the land in question and the same was dismissed by the third respondent. Further, it is significant to note that the impugned order passed by the Land Tribunal does not contain any reasons or discussions for rejecting the claim of the petitioner. In short, it is not a speaking order. Hence, the order passed by the Land Tribunal is vitiated and the same is liable to be set aside. Yet another ground on which the impugned order passed by the Tribunal is liable to be set aside is for non-compliance of the mandatory provisions of the Karnataka Land Reforms Act and Rules.
7. Having regard to the facts and circumstances of the case as stated above and taking into consideration the legal aspect of the matter as enumerated above, I do not find any good ground to sustain the impugned order. Hence, it is liable to be set aside.
8. For the foregoing reasons, writ petition stands disposed of with the following directions.--
1. Writ petition is allowed. The impugned order passed by the Land Tribunal dated 15-12-1981 in No. TNC.VR. 210/76-77 is hereby set aside. The matter stands remitted back to the third respondent-Land Tribunal, Sorab for fresh consideration in accordance with law.
2. Further, the Land Tribunal is directed to conduct enquiry and dispose of the application of the petitioner in L.R. No. 717 of 1967 transferred from the Second Additional Munsiff, Sagar, to its file in strict compliance of Section 7 of the Karnataka Land Reforms Act in accordance with law after affording an opportunity to the petitioner and the contesting respondents and other interested persons as expeditiously as possible, taking into consideration, the matter is pending adjudication since several years.
9. The office is directed to return the original records to the Land Tribunal, Sorab immediately,
10. Sri Kempanna, learned Government Pleader is permitted to file his memo of appearance within two weeks from today.