Karnataka High Court
Abdul Raheem S/O Abdul Hameed vs The State Of Karnataka & Ors on 21 July, 2014
Author: B.S.Patil
Bench: B.S.Patil
W.P.Nos.86660-661/2012
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IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 21ST DAY OF JULY, 2014
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.Nos.86660-661/2012 (LR)
BETWEEN:
Abdul Raheem S/o Abdul Hameed,
Aged about 64 years, Occ: Agriculture,
R/o Mailur Village, Tq. & Dist. Bidar.
... PETITIONER
(By Sri R.S. Sidhapurkar, Advocate)
AND:
1. The State of Karnataka,
Department of Revenue,
Represented by its Principal Secretary,
Vidhana Soudha, Bangalore - 560 001.
2. The Asst. Commissioner, Bidar,
Office of the Asst. Commissioner, Bidar,
Dist. Bidar - 585 401.
3. Shamsundar S/o Ramachandraiah,
H.No.2-16/A/1, Chaitanyapuri,
Behind Petrol Pump, Hyderabad
And near CL-7, IDA, Uppal,
Opp: Krishna Pharmaceutical Ltd.,
Hyderabad - 560 039.
... RESPONDENTS
(Sri Shivakumar Tengli, AGA for R1 & R2;
Sri Shivakumar Kalloor, Adv. for R3)
W.P.Nos.86660-661/2012
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These Writ Petitions are filed under Articles 226 & 227 of the
Constitution of India, praying to issue a writ in the nature of
certiorari and quash the order dated 26.12.2002 passed by the
respondent No.2 herein in file No.REV/CR-30/2002-03-3556 and
the order dated 29.06.2012 passed in appeal No.42 of 2003 by the
Karnataka Revenue Appellate Tribunal Bangalore, the certified
copies of which are at Annexure-E and G respectively.
These petitions coming on for Orders this day, the Court
made the following:
ORDER
1. Petitioner filed application under Section 77-A of the Karnataka Land Reforms Act, 1961 (for short 'the Act') on 10.11.1999 seeking registration of occupancy rights in respect of 7 acres 7 guntas of land comprised in Sy. Nos.10/1 and 10/2 of Mailur village in Bidar Taluk.
2. Petitioner appeared before the Assistant Commissioner through an Advocate, produced copies of lease deeds stated to have been executed by the owner of the land on 07.04.1970, 13.05.1975 and 17.04.1980 leasing out the agricultural land for cultivation as tenant. He did not file any application in Form No.7 seeking occupancy rights as prescribed under Section 45 of the Act within the time prescribed.
3. After the amendment to the Karnataka Land Reforms Act, by which, Section 77-A was introduced, application in Form No.7A was filed by the petitioner.
W.P.Nos.86660-661/2012 3
4. The Assistant Commissioner conducted spot inspection, verified the revenue records pertaining to the land and the tax paid receipts, if any, and has come to the conclusion that the land was not a tenanted land and it was not vested in the State Government and therefore, question of granting the land in favour of the petitioner under Section 77-A did not arise. The Assistant Commissioner has referred to and relied upon the judgment of this Court reported in the case of Lakshminarayana Rao Vs. Sai Rama Rao and Others - 2002 (4) KCCR 2218.
5. This order was challenged before the Karnataka Appellate Tribunal in Appeal No.42/2003 by the writ petitioner. The Karnataka Appellate Tribunal has concurred with the findings recorded by the Assistant Commissioner and it has re-considered the matter after going through the lower Court records in the light of the provisions contained under Section 77-A of the Act and the judgment rendered by this Court. The Tribunal has also taken note of the fact that no original lease deeds were produced nor the lease deeds which were for a period of more than one year were registered and therefore, they could be taken into consideration. Aggrieved by the concurrent findings recorded by the two authorities, the present writ petitions are filed.
W.P.Nos.86660-661/2012 4
6. I have heard the learned counsel for both parties.
7. The undisputed facts as emerge from the records are that the only documents on which petitioner places reliance are the unregistered lease deeds said to have been executed by the original owner in favour of the petitioner initially for a period of five years during the year 1970 followed by another lease deed for a further period of five years during the year 1975 and yet another lease deed in the year 1980 again for a further period of five years. These documents are disputed by the respondents stating that they are forged documents created for the purpose of laying baseless claim.
8. It is necessary to mention here that at no point of time right from 1970 onwards or even prior thereto name of the petitioner was entered as tenant in the revenue records pertaining to the land. Admittedly, petitioner has not paid land revenue assessed for the land. There is absolutely no other material, except the so- called lease deeds to show that the land was ever tenanted. On the other hand, it is the name of the 3rd respondent, which has been entered in the revenue records and it is he who has paid the land revenue. The lease deeds on which petitioner has placed W.P.Nos.86660-661/2012 5 reliance have been rightly rejected by both the authorities on the ground that they are unregistered documents.
9. Section 77-A of the Act pertains to grant of land in case falling within the scope of the said provision. The conditions stipulated therein are that the applicant who seeks grant of land under the said provision must have been a tenant in actual possession and cultivation of the land immediately before 01.03.1974 and the land must have vested in the State Government. In addition, the applicant must have continued to be in actual possession and cultivation of such land on the date of commencement of Karnataka Land Reforms (Amendment) Act, 1997. These are the essential conditions required to be satisfied before granting the land.
10. The Authority who is empowered to grant land under this provision is the Assistant Commissioner. In fact, the scope of the power of the Assistant Commissioner and the scope and ambit of the provision contained under Section 77-A of the Act has been considered by a Full Bench of this Court in the case of Lokayya Poojary and Another vs. State of Karnataka and Others - ILR 2012 KAR 4345.
W.P.Nos.86660-661/2012 6
11. In paragraphs 18 and 19 of the said judgment, the Full Bench has observed as under:
"18. If we keep the above principle and the legislative intent in mind, what emerges is while amending the Act and introducing Section 77-A, the legislature was very clear in its mind that by the said amendment, they were not intending to have one more forum for registration of occupancy rights under Section 45 of the Act. These two provisions were intended to cover two independent fields. Similarly, if a person has availed the benefit of Section 45-A and lost, the battle, Section 77-A was not meant to give him one more opportunity, a second innings. The power to grant occupancy rights under Section 45 was vested with a quasi judicial authority like a Tribunal. On the day the amendment introducing Section 77-A came into force, the Tribunals were in existence and functioning. The intention of the legislature was not to give them jurisdiction to decide the claims under Section 77-A. A separate machinery is no contemplated under Section 77-A. The enquiry that was contemplated under Section 45 is totally different from the enquiry under Section 77-A, as is clear from the fact that corresponding to Section 77-A, Rule 26(c) was enacted and the claim under Section 77-A had to be adjudicated in terms of the procedure prescribed under Section 26(c). A reading of section 77-A makes it very clear this provision has a limited application. It applies to only certain cases. It is necessary to bear in mind the W.P.Nos.86660-661/2012 7 context in which Section 77-A is introduced. This provision finds a place in Chapter IV, whereunder as per Section 77 as provision is made for disposal of surplus lands on such land being vested with the Government and also other lands which are vested in the State. Therefore, in a proceeding under Section 77- A, the enquiry that was contemplated under Section 48- A is excluded. This is a provision that enables a person who is in occupation of a land, of which he was a tenant and continues to be in possession as a tenant to apply for grant such land, if he had failed to make an application for grant of occupancy rights within the time stipulated. Such a person is given an opportunity to make an application for grant of land provided he continues to cultivate the land and he was not holding land in excess of 2 hectares of land. Therefore, in the said proceedings the question whether the said land is a tenanted land or not, cannot be gone into, as is clear from the language used in Section 77-A. The entire enquiry contemplated under section 77-A is in respect of a land, which is vested in the State Government under Section 44, as on 01.03.1974. It should be an undisputed fact. If the said fact is disputed, then Section 77-A has no application. The jurisdiction under section 77-A is attracted only in respect of undisputed tenanted lands. Vesting of the lands as on 01.03.1974 with the Government, which fact is not in dispute, is a condition precedent for application of Section 77-A. W.P.Nos.86660-661/2012 8
19. If a tenant makes an application, the question that arises for consideration is how he proves that it is a vested land. The vesting of the land is by operation of law. No order of vesting need be passed. There cannot be an order declaring the vesting of the land. Therefore, production of order of vesting is not the requirement of law and it is not possible and it cannot be insisted upon. However, it is for the applicant who comes to the Court to establish; that the land in question is a vested land. While establishing such fact it is necessary that he should rely on undisputed documents and such undisputed documents may be in the nature of some official record showing vesting of the land in favour of the State Government. The Government, record referred to in the judgment is not an order of vesting. It is a record in proof of vesting. It may vary from case to case and depends upon the stand taken in each case. But, unless there is some official record evidencing the vesting of the land, the authorities under Section 77-A would get no jurisdiction to hold an enquiry and grant land under Section 77-A to the applicant. The official record referred to therein may be in the form of land revenue receipts, record of rights, index of land, mutation orders, consequent mutation entries or any other record which is maintained by a public officer as opposed to private documents. It is in this context, the learned Judges in the aforesaid judgements have stated that the land should have been vested in the State Government as on W.P.Nos.86660-661/2012 9 the appointed date. The said event should have already taken place. The evidence is required to be placed by the applicant to show that this is an event that has already taken place. In that context the observations to the effect that "obviously it should find a place in some official record as vesting of the land is in favour of the State Government" are made. This amendment came into force in 1997 roughly 18 years after the last date prescribed for filing applications under Section 45. For 18 long years after the vesting of the land if the tenant has continued in possession, there must be some evidence by way of a public record to show his possession, cultivation and enjoyment as recognised by the Government, because after the vesting he has to deal with the Government and not with the erstwhile owner. How the Government as well as the applicant have dealt with this property during these 18 years assumes importance. In this context the observations made in the said judgments cannot be read as new conditions prescribed by the Judges in Section 77-A by the process of judicial interpretation as sought to be urged by the counsel for the petitioner. The Judges do not legislate. They only interpret the provisions. Therefore, the argument that under the guise of interpretation, the judges have re-written the Section is not well founded. It is a case of misreading the judgment. Under these circumstances, the interpretation placed by the Division Benches is proper W.P.Nos.86660-661/2012 10 and legal. We do not find any need to clarify what has been already said.
Accordingly, the reference is answered. The matters shall be placed before the learned single Judge for decision in the light of the answer given hereinabove.
Order accordingly."
12. In the light of the law laid down by the Full Bench and having regard to the fact that in none of the official records the name of the petitioner was found as tenant and in none of the official records the land is shown to have been vested under the provisions of the Act, petitioner could not have maintained an application invoking Section 77-A of the Act. Both the authorities have verified the revenue records and all other relevant documents before recording concurrent findings in this regard.
13. Petitioner cannot rely upon unregistered lease deeds in respect of immovable property which are admittedly for a period of more than one year and which are sought to be produced for the first time during the year 1999 that too the xerox copies. Therefore, the claim made does not fall within the provisions of Section 77-A of the Act nor is it bonafide. If at all the petitioner was really a tenant of the land, nothing prevented him from filing an application in Form No.7 under Section 45 of the Act.
W.P.Nos.86660-661/2012 11
14. Section 77-A of the Act is not meant to enable the persons like petitioner to lay a fresh claim in respect of non-existent tenancy unless the land had stood vested in the State.
Therefore, the petitions being devoid of merits are dismissed.
Sd/-
JUDGE LG