Karnataka High Court
Chandrashekarappa vs State Of Karnataka on 7 July, 2023
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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WP No. 66807 of 2009
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 66807 OF 2009 (LR)
BETWEEN:
1. CHANDRASHEKARAPPA
S/O VEERUPAKSHAPPA GOVANKOPPA
@ SAVADATTI,
SINCE DEAD BY HIS LR'S.
1(a) NEELAVVA
W/O LATE CHANDRASHEKARAPPA
GOVANKOPPA @ SAVADATTI,
AGE: 68 YEARS, OCC: AGRICULTURE.
1(b) BASAVARAJ
S/O LATE CANDRASHEKARAPPA
GOVANKOPPA @ SAVADATTI,
AGE: 52 YEARS,
Digitally
signed by OCC: AGRICULTURE & BUSINESS.
RAKESH S
HARIHAR
RAKESH Location: 1(c) SHIVANAND
S High Court S/O LATE CHANDRASHEKARAPPA
of Karnataka,
HARIHAR Dharwad GOVANKOPPA @ SAVADATTI,
Date:
2023.07.10 AGE: 52 YEARS,
12:05:26 OCC: AGRICULTURE/BUSINESS,
+0530
ALL ARE R/O: TOTAGERA ONI,
MADIHAL, DHARWAD.
1(d) VIJAYALAXMI
W/O GURUPUTRAPA ANGADI,
AGE: 36 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O. SUTAGATTI, TQ: SAUNDATTI,
DIST: BELGAUM.
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WP No. 66807 of 2009
1(e) RATNA W/O SURAJ PATIL,
AGE: 30 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O. SAMBRA, DIST: BELGAUM.
PETITIONERS NO.1(a) TO 1(e)
R/BY THEIR G.P.A HOLDER PETITIONER NO.1(b)
... PETITIONERS
(BY SRI. IRAFAN JALGAR & SRI. A.M. NADAF, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
R/BY ITS SECRETARY,
REVENUE DEPARTMENT,
VIDHAN SOUDHA, BENGALOORU-01.
2. THE LAND TRIBUNAL, DHARWAD,
R/BY ITS CHAIRMAN, DHARWAD.
3. DATTATRAYA S/O NARASINGH UDUPA,
SINCE DEAD BY HIS LR'S .
3(a). LEELABAI W/O DATTATRAYA UDUPA,
AGE: MAJOR, OCC: HOUSEHOLD WORK.
3(b). MADAN S/O DATTATRAYA UDUPA,
AGE: MAJOR, OCC: PRIVATE SERVICE.
3(c). MOHAN S/O DATTATRAYA UDUPA,
AGE: MAJOR, OCC: PRIVATE SERVICE,
ALL ARE R/O. UDUPI ONI, HOSAYALLAPR,
DHARWAD, DIST: DHARWAD.
4. MALLESHAPPA S/O MALLAPPA GODIKATTI,
SINCE DEAD BY HIS LR'S.
4(a). NAGAVVA W/O MALLESHAPPA GODIKATTI,
SINCE DECEASED,
R4(b) TO R4(h) ARE TREATED AS LR'S OF R4(a)
4(b). SHANKREPPA S/O MALLESHAPPA GODIKATTI,
SINCE DECEASED BY HIS LR'S
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WP No. 66807 of 2009
BASAVARAJ S/O SHANKARAPPA
DEAD BY HIS LR'S
4(b)(1). CHANNAVVA
W/O LATE BASAVARAJ GODIKATTI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. MADIHAL LAST CROSS,
DHARWAD (LAST BUS STOP).
4(b)(2). IRAPPA
S/O LATE BASAVARAJ GODIKATTI,
AGE: MINOR.
4(b)(3). ANJALI
D/O LATE BASAVARAJ GODIKATTI,
AGE: MINOR.
4(b)(2) & 4(b)(3) ARE MINORS
BY NATURAL GUARDIAN MOTHER 4(b)(1)
CHANNAVVA W/O LATE BASAVARAJ GODIKATTI,
R/O. MADIHAL LAST CROSS, DHARWAD,
(LAST BUS STOP).
4(c). SHIVAPPA S/O MALLESHAPPA GODIKATTI,
DEAD AND UNMARRIED.
4(d). CHANDRASHEKRAPPA
S/O MALLESHAPPA GODIKATTI,
DEAD AND UNMARRIED.
4(e). IRAPPA S/O MALLESHAPPA GODIKATTI,
AGE: MAJOR, OCC: COOLIE.
4(f). BASAVARAJ S/O MALLESHAPPA GODIKATTI,
SINCE DECEASED BY HIS LR'S.
4(f)(1). MALLIKARJUNA S/O BASAVARAJ GODIKATTI,
AGE: 26 YEARS, OCC: COOLIE,
R/O. AANJANEYA NAGAR,
KELAGERI, DHARWAD.
4(f)(2). MANJUNATH S/O BASAVARAJ GODIKATTI,
AGE: 24 YEARS, OCC: COOLIE,
R/O. AANJANEYA NAGAR,
KELAGERI, DHARWAD.
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WP No. 66807 of 2009
4(f)(3). MALLAVVA S/O BASAVARAJ GODIKATTI,
AGE: 22 YEARS, OCC: HOUSEHOLD,
R/O. AANJANEYA NAGAR,
KELAGERI, DHARWAD.
4(g). SAVITREVVA W/O GANAPATEPPA HIPPARAGI,
AGE: MAJOR, OCC: HOUSEHOLD WORK.
4(h). FAKKIRAVVA W/O GANGAPPA HARIKOPPA,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
ALL ARE R/O. MRUTUNJAYA NAGAR,
DHARWAD, DIST: DHARWAD.
4(i). GANGAWWA W/O MALLESHAPPA GODIKATTI,
AGE: MAJOR, OCC: HOUSEHOLD WORK.
4(j). MRUTUNJAYA S/O MALLESHAPPA GODIKATTI,
SINCE DEAD BY HIS LRS.
4(j)(1). PARWATEVVA W/O MRUTUNJAYA GODIKATTI,
AGE: MAJOR, OCC: HOUSEHOLD WORK.
4(j)(2). MALLIKARJUN S/O MRUTUNJAYA GODIKATTI,
AGE: MINOR, OCC: NIL.
4(j)(3). RAVI S/O MRUTUNJAYA GODIKATTI,
AGE: MINOR, OCC: NIL.
4(j)(4). SANTOSH S/O MRUTUNJAYA GODIKATTI,
AGE: MINOR, OCC: NIL,
SINCE RESPONDENT NOS.4(j)(2) TO 4(j)(4)
ARE MINORS IN AGE,
R/BY THEIR NATURAL MOTHER BEST
NEXT FRIEND AND MINOR GUARDIAN
RESPONDENT NO.4(j)(1)
PARWATEVVA W/O MRUTUNJAYA GODIKATTI,
4(k). MAHANTESH S/O MALLESHAPPA GODIKATTI,
AGE: MAJOR, OCC: COOLI.
4(l). NEELAVVA D/O MALLESHAPA GODIKATTI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
ALL ARE R/O. SAIDAPUR, DHARWAD,
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WP No. 66807 of 2009
DIST: DHARWAD, HANUMAN TEMPLE,
BACKSIDE GULAGANJIKOPPA, DHARWAD.
... RESPONDENTS
(BY SRI. M.H. PATIL, AGA FOR R1 & R2;
SRI. ANANT MANDAGI, SENIOR COUNSEL
FOR SRI. CHETAN MUNNOLI & SMT. SURABHI KULKARNI
ADVOCATES FOR R4(e);
SRI. V.G. BHAT & SRI. J.B. HURAKADLI, ADVOCATE FOR R4(g);
SRI. GANESH RAIBAGI, ADVOCATES FOR R4(f)(1 to 3);
SRI. L.T.MANTAGANI , ADVOCATE FOR R4(i), R4(j)(1), R4(k);
R4(j)(2 to 4) ARE MINORS REP. BY R4(j)(1);
SRI. IRANNA N.MALLANGOUDA & SRI. MOHAMMED HANEF
& SRI V. AMMINABAVI ARE GPA HOLDER
OF R4(i), R4(j)(1) & R4(k);
NOTICE TO R3(a), R3(b), R3(c), R4(c), R4(d) & R4(h)
IS HELD SUFFICIENT;
R4(b)(2 & 3) ARE MINORS REP. BY R4(b)(1);
R4(c) to R4(h) ARE LRs. OF DECEASED R4(a);
R4(c) to R4(l) are LRs. Of deceased R4(b);
R4(l) & R4(b)(1) ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT
IN THE NATURE OF CERTIORARI, QUASHING THE IMPUGNED
ORDER VIDE ANNEXURE-M DATED 30-11-2009 PASSED BY THE
LAND TRIBUNAL, DHARWAD IN KLR/DHARWAD/SR-12+60, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION, HAVING BEEN HEARD AND
RESERVED ORDERS ON 14.06.2023, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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WP No. 66807 of 2009
ORDER
1. This writ petition under Articles 226 & 227 of the Constitution of India is filed by the rival claimant challenging the order at Annexure-M, dated 30.11.2009, passed by the respondent-Tribunal, wherein the Form No.7 filed by the petitioner, rival claimant under the provisions of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as "the Act of 1961") has been rejected and the occupancy rights of the land in question, has been granted in favour of respondents No.4.
2. Heard the learned counsel for the parties.
3. Facts leading to filing of this writ petition as revealed from the records, narrated briefly are, the agricultural land in Block No.1, measuring 14 acres 24 guntas of Dharwad Village & Taluka (hereinafter referred to as "the land in question"), originally belonged to respondent No.3. The land in question was leased to respondent No.4 by respondent No.3. Respondent No.4 in turn allegedly subleased the land in question in favour of -7- WP No. 66807 of 2009 the petitioner herein under a unregistered document dated 28.04.1972. From the year 1972-73 onwards, the entries in the revenue records of the land in question stood in the name of the petitioner. After coming into force of the Act No.1 of 1974, the petitioner as well as respondent No.4 had filed two separate Form No.7 under the provisions of the Act of 1961, claiming occupancy rights of the land in question. The Land Tribunal, by order dated 31.12.1981 had granted the occupancy rights of the land in question in favour of the legal representatives of the deceased- respondent No.4 and rejected the claim of the petitioner. The said order was questioned by the petitioner before this court in W.P. No.3440/1982. During the pendency of the said writ petition, the Land Reforms Appellate Authority was constituted and the pending writ petition was transferred to the Appellate Authority at Dharwad and was renumbered as LRA No.266/1986. After the abolition of the Land Reforms Appellate Authority in the year 1990, the said appeal was retransferred to this Court and was renumbered as W.P. No.28789/1991. The said writ petition -8- WP No. 66807 of 2009 was allowed by this Court on 30.03.1999 and the matter was remitted to the Tribunal. The Tribunal thereafter, vide the order impugned dated 30.11.2009 rejected the Form No.7 filed by the petitioner and granted the occupancy rights of the land in question in favour of the legal representatives of the deceased-respondent No.4. Being aggrieved by the said order, the petitioner is before this Court.
4. Learned counsel for the petitioners submits that the Tribunal has failed to properly appreciate the oral and documentary evidence available on record and has erred in passing the impugned order. He submits that the petitioner was in possession and cultivation of the land in question as on 01.03.1974 and immediately prior to the said date and the revenue records of the land in question clearly demonstrate the same. He also submits that this Court in the earlier round of litigation, having considered the possession of the land in question by the petitioner, had granted an interim order protecting his possession and the said order, which was passed on 01.03.1982 was -9- WP No. 66807 of 2009 continued till the disposal of the said writ petition. He submits that the Tribunal has not given proper opportunity to the petitioner for producing the relevant document and also to lead evidence. He places reliance on Sections 45 & 49 of the Act of 1961 and submits that even the subtenants are entitled for grant of occupancy rights. He submits that in the absence of any material to show that respondent No.4 or his legal representatives were in possession and cultivation of the land in question, the Tribunal could not have granted the occupancy rights of the land in question in their favour. He submits that the judgments on which reliance has been placed by the Tribunal would not be applicable to the fact of this case. He has placed reliance on the following judgments in support of his case:
(i) Tammanna Parisa Gundale Vs. the State of Karnataka and Others reported in AIR 1978 Kar 199;
(ii) Ningayya Erayya Hiremath Vs. Land Tribunal reported in ILR 1988 (4) KAR 2915;
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WP No. 66807 of 2009
(iii) K.M. Mathew S/o Palayi Kizhakkekara Mathaiy and another Vs. Hamsa Haji S/o Pothiyill Mommutty and Others reported in (1987) 3 SCC 326.
5. Per contra, learned Senior counsel appearing for the legal representatives of respondent No.4 referring to Section 21 of the Act of 1961 contends that any sub-tenancy created after 02.10.1965 is void. He also submits that there is no material to prove the sub-tenancy in favour of the petitioner and even if it is presumed that the sub-tenancy was created in the year 1972, the same is not valid. He also submits that respondent No.4 was only a protected tenant, which is evident from the material on record and therefore, the sub-tenancy created, if any, by him is not valid under Section 21 of the Act. He submits that the Tribunal having appreciated all these aspects of the matter has rightly rejected the Form No.7 filed by the petitioner and granted the occupancy rights of the land in question in favour of the legal representatives of respondent No.4. In support of his contention, he has placed reliance on the following judgments:
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(i) Beera Aayu Agera Vs. Land Tribunal, Ankola, Uttara Kannada District and Ors. reported in ILR 1998 KAR 2381;
(ii) Chikkanna Since deceased by LRs. and Others Vs. State of Karnataka, Rep. by Secretary to Govt., Revenue Department, and Others, reported in ILR 2010 KAR 3901.
6. In reply, learned counsel for the petitioner submits that even if it is held that the petitioners are not entitled for grant of occupancy rights on the ground that sub-tenancy created was not valid, the Tribunal was not justified in granting the occupancy rights of the land in question in favour of respondent No.4 when there is absolutely no material on record to show that they were in possession and cultivation of the land in question as on 01.03.1974 and immediately prior to the said date. He submits that undisputedly the land in question is a agricultural land and in view of Section 44 of the Act of 1961, the land vests with the Government.
7. The question that would arise for consideration in this writ petition is, whether the Tribunal was justified in
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WP No. 66807 of 2009rejecting the Form No.7 filed by the petitioner and allowing the Form No.7 filed by the deceased-respondent No.4.
8. Learned counsel for the petitioner has raised a contention that the petitioner was not granted sufficient opportunity before the Tribunal to adduce evidence and to produce documents in support of his case. From the perusal of the order sheet maintained by the Tribunal, which is made available to this Court by the learned AGA, it is seen that the Tribunal has granted sufficient opportunity to all the parties to lead evidence as well as to produce documents. In fact, on behalf of the petitioner, voluminous documents have been produced before the Tribunal and therefore, it cannot be said that the Tribunal had not granted sufficient opportunity to the petitioner to adduce evidence and to produce documents in support of his case.
9. Learned counsel for the petitioner has also contended that in view of Sections 45 & 49 of the Act of 1961, even the sub-tenants are entitled to be registered
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WP No. 66807 of 2009as occupants of the tenanted lands. From the reading of Sections 45 & 49 of the Act of 1961, it is very clear that even sub-tenants are entitled to be registered as occupants of the land, provided, the sub-tenancy is created lawfully. According to the petitioner, the sub-tenancy was created on 28.04.1972. Section 21 of the Act of 1961 provides the bar for subletting or creating sub- tenancy. A reading of the said provision of law makes it abundantly clear that creation of sub-tenancy after coming into force of Section 21(1) of the Act of 1961 was prohibited. Section 21 of the Act of 1961 had come into force with effect from 02.10.1965.
10. In the case of Beera Aayu Agera (supra), wherein the sub-tenancy was created on 07.07.1972, this Court at paragraph No.9 has observed as follows:
"9. Under Section 45(1) of the Act a person ciaiming occupancy on the ground of being a sub- tenant can succeed only if he is able to show that the sub-letting in his favour was lawful. In the present case as per the self-showing of the petitioner, he had acquired sub-tenancy rights on 7-7-1972 i.e., after the coming into force of the
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provisions of the Act, therefore the said sub- tenancy was hit by provisions of Section 21 which absolutely prohibits the sub-letting of the lands held by a tenant. Therefore, even if the agreement at Annexure-G is held to be genuine for the sake of argument still it was void in view of Section 23 of the Contract Act, 1872, conferring no right on the petitioner. In view of this legal aspect, even if it be accepted that the petitioner had discharged certain obligations undertaken by him under the said agreement and he was in fact personally cultivating the land, but still since in the eye of law, he cannot be treated as a subtenant, therefore no benefit of occupancy can be accorded to him in view of the mandatory provisions contained in Section 45 of the Act. Therefore I do not find any error in Tribunal's order so far it relates to the rejection of the application filed by the petitioner is concerned."
11. In the case of Chikkanna Since deceased by LRs. and Others (Supra), the Division Bench of this Court at paragraph No.10 has observed as follows:
"10. It is thus clear from the provision contained in Section 21 that, a bar is enacted for sub-letting the land held by any tenant except by a permanent tenant. The proviso and the succeeding sub-sections save assignment by way of partition
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and by certain other categories of tenants like a soldier, seaman or in respect of certain transactions of loan or mortgage executed in favour of State Government or some Companies or Co-operative societies. Section 21 is in the statute book and has come into force with effect from 02.10.1965 Therefore, it is clear that, the prohibition for sub- letting the land is in existence since 02.10.1965 If that be so, unless it is established that the predecessor-in-title of the writ petitioners were permanent tenants of the lands in question, they could not have sub-let the lands after 02.10.1965 The facts as pleaded do not make the proviso to sub-Section (1) of Section 21 applicable to the present case. However, no opinion need be expressed in this regard at this stage. It has to be therefore, noted that if sub-tenancy is created after 02.10.1965, it cannot be regarded as lawful in view of the prohibition enacted under Section 21."
12. It is the specific case of respondent No.4 that he was only a protected tenant of the land in question and not a permanent tenant. Section 2(23) of the Act of 1961 defines "permanent tenant", which reads as follows:
"(23) "permanent tenant" means a tenant [who cultivates land personally] :-
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(a) the commencement or duration of whose tenancy cannot satisfactorily be proved by reason of antiquity of such tenancy; or
(b) whose name or the name of whose predecessor-in-title has been entered in the record of rights or in any public record or in any other revenue records as a permanent tenant; or
(c) who by custom, agreement or the decree or order of a Court holds the land on lease permanently; or
(d) who holds land as mulgenidar, mirasdar or khatakul; and includes any person whose tenancy is under the provisions of any law presumed to be co-extensive with the duration of the tenure of the landlord."
13. In the revenue records that are available in the original record, respondent No.4 is only referred to as a protected tenant and not as a permanent tenant. Even this Court in the earlier round of litigation has recognised respondent No.4 as a protected tenant. Therefore, in view of the law laid down in the case of Chikkanna Since deceased by LRs. and Others (Supra), unless the
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WP No. 66807 of 2009petitioner establishes that respondent No.4 was a permanent tenant of the land in question, the sub-tenancy, which is created after 02.10.1965 is hit by Section 21 of the Act. The only exception made in Section 21 of the Act is for tenancy created by permanent tenant and if not the bar under Section 21 of the Act automatically gets attracted in a case where the sub- tenancy is created after 02.10.1965. Under the circumstances, the petitioner, who claims to be the sub- tenant with effect from 28.04.1972 cannot be granted the occupancy rights of the land in question in view of the mandatory provisions contained in Sections 45 & 49 of the Act of 1961, which states that tenants whose tenancy is created unlawfully would not be entitled to seek grant of occupancy rights.
14. In view of the aforesaid analysis of the matter, the order of the Tribunal cannot be found fault with, even though the reasons assigned by the Tribunal for rejection of petitioner's claim may not be correct. The judgments on which petitioner's learned advocate has placed reliance
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WP No. 66807 of 2009would therefore not applicable to the facts of the present case. It is trite that judgments can be relied upon as precedents, if only they are applicable to the facts and circumstances of the case.
15. Learned counsel for the petitioner has argued that even if the petitioner is held to be not entitled for grant of occupancy rights on the ground that his sub-tenancy is not legally valid, the Tribunal could not have granted the occupancy rights of the land in question in favour of respondent No.4 in the absence of any material to show that he was in actual possession and cultivation of the land in question as on 01.03.1974 and immediately prior to the said date. The material on record would go to show that the revenue records of the land in question for the period from 1972-73 onwards continuously stood in the name of the petitioner. Respondent No.4 had unsuccessfully challenged the said mutation entries before the Assistant Commissioner as well as before the Deputy Commissioner.
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WP No. 66807 of 2009
16. In addition to the revenue records, which stand in the name of the petitioner from the year 1972-73 onwards as evidenced from Annexures-C & D, the documents at Annexures-E & F under which the petitioner was permitted by Hubballi - Dharwad Municipal Corporation to lay pipes in the land in question for connecting to the drainage of the Corporation and the penalty imposed on the petitioner for damaging the drainage pipeline would further demonstrate that the petitioner was in possession and cultivation of the land in question after 1972. There is absolutely no documents to show that respondent No.4 was in occupation and cultivation of the land in question as on 01.03.1974 or immediately prior to the said date. Unless, respondent No.4 is able to demonstrate that he was in occupation and cultivation of the land in question as on 01.03.1974 and immediately prior to the said date, he is not entitled for grant of occupancy rights under the provisions of the Act of 1961.
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WP No. 66807 of 2009
17. In the earlier round of litigation, when the original order of the Land Tribunal dated 31.12.1981 was called in question by the petitioner herein before this Court in W.P. No.3440/1982, recognizing the petitioner's possession over the land in question, after hearing the contesting private respondents, this Court had passed order dated 01.03.1982 granting temporary injunction in favour of the petitioner, and the said order reads as follows:
"Admittedly husband of respondent 4 and father of respondents 5 to 15 deceased Sri Malleshappa was protected tenant of this land. The case of the petitioner is that there was a sub lease in the year 1972 in his favour. In the mutation proceedings the Tahsildar as well as the Asst. Commissioner have held that the petitioner who was in possession of the property as a tenant, as such his name should be entered in the register showing him as cultivator. Form 1972 upto 1980- 81, the petitioner is shown as the person cultivating this land in the cultivators column of R.T.C. The Chairman of the Tribunal in his descenting view after referring to the document and also the oral evidence adduced by both the parties has held that the petitioner was in possession of the property as
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on the notified date and his possession is lawful. But the majority member who have diagreed with the view of the Chairman have nowhere recorded that deceased Mallesh was in possession of the property as on the notified date. In the majority members have held that his possession is not lawful whether his possession is lawful or not is a matter requires examination."
18. In the year 1986 after the Appellate Authority was formed, W.P. No.3440/1982 was transferred to the Land Reforms Appellate Authority. After abolition of the Appellate Authority in the year 1990, the pending appeals before the Appellate Authority were retransferred to this Court and the petitioner's case after retransfer was renumbered as W.P. No.28789/1991 and the said writ petition was disposed off on 30.03.1999 and while remitting the matter, this Court had directed the parties to maintain status-quo. The material on record therefore, prima facie would go to show that the petitioner was throughout in possession and cultivation of the land in question and it is not in dispute that the land in question is
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WP No. 66807 of 2009an agricultural land within the meaning of Section 2A(18) of the Act of 1961.
19. Section 44 of the Act of 1961 provides that all lands held by or in possession of the tenants immediately prior to commencement of the Amendment Act, other than the lands held by the tenants under lease permitted under Section 5 of the Act shall with effect on and from the date on the aforesaid provision coming into force stand transferred to and vest in the State Government. Section 44 of the Act of 1961 had come into effect from 01.03.1974. The material on record would go to show that the land in question, which is a land within the meaning of Section 2A(18) of the Act of 1961 was in possession and cultivation of the petitioner as sub-tenant. Sections 45 and Section 49 provide that even the sub-tenants are entitled for grant of occupancy rights of the land under the provisions of the Act of 1961, provided that the sub- tenancy was created lawfully. The petitioner's claim for grant of occupancy rights is being rejected in the present case for the reason that his sub-tenancy was created only
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WP No. 66807 of 2009in the year 1972, which is much after Section 21 of the Act coming into force and respondent No.4 was only a protected tenant and he was referred to as protected tenant even in the order of temporary injunction, which was granted by this Court in the year 1982. Therefore, it cannot be said that respondent No.4 was in possession and cultivation of the land in question as on 01.03.1974 or immediately prior to the said date.
20. A tenant who is not in possession and cultivation of the land as on 01.03.1974 or immediately prior to the said date is not entitled for grant of occupancy rights. It is not the case of the respondent No.4 that he was illegally dispossessed from the land in question. Only tenants who were wrongfully dispossessed or illegally prevented from cultivation are entitled for grant of occupancy rights even if they are not in possession and cultivation of the land as on 01.03.1974 or immediately prior to the said date [Ballesha Rama Khot and others Vs. the Land Triubnal, Chikkodi and others (1978)1 Kant LJ 116 (FB)],
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WP No. 66807 of 2009
21. The tenancy of petitioner, who was in actual possession and cultivation of the land in question as on 01.03.1974 and immediately prior to the said date was not a valid tenancy. The Division Bench of this Court in the case of Tippavva Vs. the Deputy Commissioner, Bagalkot, reported in 2012(3) KCCR 2372 has held that Section 44 of the Act of 1961 comes into play only in a situation where the tenancy is a valid tenancy and person in possession and cultivation is a tenant, as recognized under the Act of 1961 and not any other person. Therefore, the land in question had not vested with the State under Section 44 of the Act of 1961 as on 01.03.1974 and unless the land vests with the State, the Tribunal has no jurisdiction to entertain the claim under Form No.7 or Form No.7A of the Act of 1961. Therefore, the Tribunal was not justified in granting the occupancy rights of the land in question to respondent No.4. The question for consideration is accordingly answered partly affirmative.
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WP No. 66807 of 2009
22. Under the circumstances, the impugned order to the extent it relates to granting occupancy rights of the land in question to respondent No.4 cannot be sustained. Accordingly, the following:
ORDER
(i) The writ petition is partly allowed.
(ii) The impugned order at Annexure-M, dated 30.11.2009, passed by the respondent-
Tribunal to the extent it relates to granting of occupancy rights of the land in question to respondent No.4 / legal representatives of respondent No.4 is quashed.
Sd/-
JUDGE Vnp* / Ct:Bck List No.: 1 Sl No.: 1