Karnataka High Court
Nijalingappa vs Siddappa Mallappa Gadigeppagol And ... on 12 February, 2001
Equivalent citations: 2002(1)KARLJ234
Author: H.N. Narayan
Bench: H.N. Narayan
ORDER
The Court
1. The learned Government Pleader is directed to take notice for the State. By consent, the petitions are taken up for final disposal, heard and disposed of by this order.
2. These writ petitions are directed against the order of the Assistant Commissioner, Bijapur Sub-Division, Bijapur dismissing the applications filed by the petitioner herein in Form 7-A under the amended provisions of the Karnataka Land Reforms Act (Act 23 of 1998), in exercise of the delegated powers.
3. A few facts necessary for the disposal of these writ petitions are as under:
The writ petitioner has alleged that Survey No. 517 measuring 2 acres 32 guntas and Survey No. 518 measuring 2 acres 38 guntas including phut kharab of 2 guntas situated within the village limits of Chim-malgi, Basavana Bagewadi Taluk in Bijapur District belong to respondents 1 to 4. Both are tenanted lands. The petitioner was in actual possession and cultivation of these lands as tenant on lavani basis. He continued to be in possession of these lands as tenant as on the appointed date i.e., 1-3-1974. The petitioner could not file Form 7 claiming occupancy rights in respect of these lands due to ignorance and poverty and therefore as per the amended provisions of the Land Reforms (Amendment) Act, 1997, he made separate applications seeking registration in respect of these lands within the time prescribed, before the Deputy Commissioner, Bijapur. Without holding an enquiry, the 5th respondent passed an order dismissing his applications vide Annexure-C.
4. The writ petitioner has challenged the order of the Assistant Commissioner on the following grounds:
(a) That the Assistant Commissioner could not have delegated the powers of holding an enquiry to his subordinates viz., the 6th respondent-Tahsildar and he could not have relied upon the report submitted by the 6th respondent and he did not hold any enquiry at all.
(b) In spite of satisfactory material on record to show that the petitioner was cultivating the lands as tenant on the appointed date and continued to be in actual possession and cultivation of the lands on the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997, the 5th respondent has erroneously dismissed his applications without giving him sufficient opportunity.
(c) The 5th respondent has not decided the points which are required to be decided under Section 77-A of the Act and therefore the finding of the 5th respondent is factually incorrect and it is liable to be set aside.
5. The question that arises for consideration in these writ petitions is whether the Assistant Commissioner has dismissed the applications filed in Form 7-A in contravention of the provisions of Section 77-A of the Act?
6. It is undisputed that the petitioner filed applications in Form 7-A under the amended provisions of Section 77-A of the Act. The provisions of Section 77-A came into effect from 1-11-1998. The question of law involved is whether the petitioner who made his claim under Section 77-A by filing applications in Form 7-A has complied with the ingredients of Section 77-A of the Act.
7. Section 77-A(1) of the Act reads as follows.-
"77-A. Grant of land in certain cases.--(1) Notwithstanding anything contained in this Act, if the Deputy Commissioner, (or any other officer authorised by the State Government in this behalf) is satisfied after holding such enquiry as he deems fit, that a person.-
(i) was, immediately before the first day of March, 1974 in actual possession and cultivation of any land not exceeding one unit, which has vested in the State Government under Section 44; and
(ii) being entitled to be registered as an occupant of such land under Section 45 or 49 has failed to apply for registration of occupancy rights in respect of such land under Sub-section (1) of Section 48-A within the period specified therein; and
(iii) has continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997, he may (within one year from the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997) grant the land to such person subject to such restrictions and conditions and in the manner, as may be prescribed".
8. The petitioner made a statement before the Revenue Inspector as in Annexure-B1 on 22-11-1999 wherein he has admitted that he owns land to the extent of 12 acres. Apart from this land in his possession, he has now claimed 2 acres 32 guntas in Survey No. 517 and 2 acres 38 guntas in Survey No. 518 of Chimmalgi Village in Basavana Bagewadi Taluk which comes to 17 acres 30 guntas of land i.e., more than 2 hectares of land. He has produced Annexures-D and E, the extracts of the Record of Rights and pahani patrike for the years 1981-82 to 1999-2000. His name is shown as cultivator for the first time in the year 1981-82. There is no other revenue record indicating his cultivation of the lands in question just prior to the appointed date. He has also not produced any evidence to show that he had paid lavani or rent to the owners.
9. The first contention canvassed for consideration by Sri Ashok R. Kalyanashetty, learned Counsel for the petitioner is that the Assistant Commissioner has not held any enquiry and that he relied on the report made by his subordinates viz., the Tahsildar and he has not appreciated the records produced by the petitioner.
10. On the appointed date, 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. Under Section 44(2)(a) of the Act, all rights, title and interest vesting in the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Government free from all encumbrances. The rights of the landowners, permanent tenants, protected tenants and other tenants holding such lands is defined in Clauses (f) and (g) of Section 44(2) of the Act.
11. The report submitted by the Tahsildar to the Assistant Commissioner disclosed that there is no entry in the register showing vesting of lands in question in the State Government as required under Section 44 of the Act. The learned Counsel for the petitioner has contended that the Assistant Commissioner has relied upon the report of the Tahsildar without personally holding an enquiry. Section 77-A(1) of the Act provides that if the Deputy Commissioner or any other officer authorised by the State Government in this behalf is satisfied after holding such enquiry as he deems fit, which contemplates a report from the concerned Tahsildar also, he may grant the land. There is nothing illegal in calling for a report from the subordinate revenue officers regarding certain matters which are not readily available to the Assistant Commissioner and which the parties often omit or refuse to place on record before the authority. The petitioner has failed to show that immediately before the First day of March, 1974, he was in actual possession and cultivation of the land not exceeding one unit (now two units), which has vested in the State Government under Section 44. The Record of Rights disclosed that his name as cultivator is shown for the first time in the year 1981-82 long after coming into force of the Amendment Act (Act 26 of 1974). The statement made by the petitioner disclosed that he was already holding 12 acres of agricultural land. Even if it is taken as 'D' class land, the petitioner is holding more than 2 units of land. The new amendment was brought in by introducing Section 77-A of the Act to enable the poor and illiterate tenants to claim occupancy rights even after lapse of 25 years. The provisions of Section 77-A are available only to those tenants who are holding less than one unit of land which is subsequently enhanced to 2 units as on the appointed date. It is no doubt true that the extension of time to make applications claiming occupancy rights even after lapse of 25 years has given rise to lot of litigations before the Land Tribunal and the High Court. But, notwithstanding this fact, the amended provision has helped the needy and illiterate persons who failed to make necessary claim before the Land Tribunal for grant of occupancy rights. While considering the application made under Section 77-A in Form 7-A, the Assistant Commissioner (Deputy Commissioner) exercising the powers under Section 77-A has to examine Clauses (i) to (iii) of Section 77-A(1) in particular. While doing so, the authority is required to hold an enquiry as he deems fit. The words 'as he deems fit' do not give him any discretion to sit whenever he wants and dismiss an application. It must be remembered that the Deputy Commissioner or the Assistant Commissioner is exercising quasi-judicial functions while considering applications filed under Section 77-A of the Act. An enquiry contemplated under the Land Reforms Act is an enquiry contemplated under the Rules. However, I may, hasten to add that the report submitted by the subordinate revenue officer to the authority in this behalf is a part of the enquiry. Where the applicant satisfies the authority by producing prima facie material to show that he was a tenant as on the appointed date and that he continued to cultivate the land in that capacity till the date of his application under Section 77-A of the Act and that the land vests with the State Government as required under Section 44 of the Act, the authority has no option except to grant occupancy rights. In the absence of any such material before the authority, the applicant is not at all entitled for an order for grant of occupancy rights. In this case, the Assistant Commissioner is right in dismissing the applications made by the petitioner as there is no strict compliance of Section 77-A of the Act.
12. Therefore, the writ petitions stand dismissed.