Karnataka High Court
Parvathamma W/O Late G Venkanna vs The State Of Karnataka Rep By Its ... on 10 October, 2012
Bench: N.Kumar, Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF OCTOBER 2012
PRESENT
THE HON'BLE MR. JUSTICE N. KUMAR
AND
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WA No.48 OF 2008(LR)
BETWEEN:
1. PARVATHAMMA
W/O LATE G VENKANNA
A/A 95 YEARS
HEMASAMARANAHALLI, JALA HOBLI
BANGALORE NORTH (ADDL) TQ
...APPELLANT
(By M/s. RAO & RAO, ADVOCATES)
AND
1. THE STATE OF KARNATAKA REP BY ITS
PRINCIPAL SECY
DEPT. OF REVENUE
M.S.BUILDING
BANGALORE 1
2. THE LAND TRIBUNAL BANGALORE NORTH TQ
REP BY THE ASST.COMMISSIONER
BANGALORE NORTH SUB DIVISION
PODIUM BLOCK VISHVESHWARAIAH CENTER
BANGALORE 1
2
3. TAHSILDAR
BANGALORE NORTH(ADDL.) TQ
YELAHANKA TOWNSHIP
BANGALORE-64
C SIDDALINGA DEVARU
SINCE DECEASED BY HIS LEGAL
REPRESENTATIVES
4. NATASHEKAR
S/O LATE C SIDDALINGA DEVARU
SINCE DEAD BY LRs
(a)KALPANA, 45 YEARS
W/O.LATE NATASHEKAR
(b)MALLIKARJUN, 26 YEARS
S/O. LATE NATASHEKAR
(c)DEEPAK, 24 YEARS
S/O. LATE NATASHEKAR
ALL RESIDING AT HUNASAMARANAH
JALA HOBLI BANGALORE NORTH-562 157
5. H S RAVINDRA, 47 YEARS
S/O LATE C SIDDALINGA DEVARU
R/O HUNASAMARANAHALLI
JALA HOBLI
BANGALORE NORTH(ADDL.) TQ
6. H S CHANDRAMOULI, 45 YEARS
S/O LATE C SIDDALINGA DEVARU
R/O HUNASAMARANAHALLI
JALA HOBLI
BANGALORE NORTH(ADDL.) TQ
7. S G KUMAR, 43 YEARS
S/O LATE C SIDDALINGA DEVARU
R/O HUNASAMARANAHALLI
3
JALA HOBLI
BANGALORE NORTH(ADDL.) TQ
... RESPONDENTS
(By Smt. M.C. AKKAMAHADEVI, AGA FOR R1-3; SRI.
P.D.SURANA, ADVOCATE FOR R4(a-c) AND R-5 TO R-7)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN THE WRIT PETITION
NO.10262/2007 DATED 3/12/2007.
This writ appeal coming on for hearing this day, N.
KUMAR, J. delivered the following:-
JUDGMENT
This appeal is preferred challenging the order passed by the learned Single Judge who has quashed the order passed by the Land Tribunal dated 5.4.2007.
2. For the purpose of convenience, the parties are referred to as they are referred to in the writ petition.
3. The land bearing Survey No.28/2 measuring 3 acres 15 guntas situated at Hunasemaranahalli Village, Jala Hobli, Bangalore(North) Additional Taluk, which now falls within the Bangalore East Taluk is the Devadaya Inamland belonging to Chandramouleshwara 4 Swamy Temple. The fourth respondent in the writ petition namely Smt.Parvathamma filed an application under Section 5 of the Mysore Religious and Charitable Inams Abolition Act, 1955 seeking grant of occupancy rights in respect of the aforesaid land. By an order dated 31.8.1962 an extent of 1 acre 20 guntas was granted to her as a permanent tenant. However, the mutation entry in respect of the entire extent of land stood in her name. Her sister's son-in-law by name C.Siddalingadevaru, the petitioner in the writ petition got his name entered in the revenue records from 1974- 75 to 1984-85. Thereafter his name was not entered/continued. Therefore, he filed an application requesting for inclusion of his name in the revenue records to the Tahsildar. The Tahsildar rejected the said request by an order dated 24.12.1993. Aggrieved by the said order, he preferred an appeal under Section 136(2) to the Assistant Commissioner. The appeal came to be dismissed by an order dated 30.7.1994. Thereafter, he made a representation to the Government 5 requesting for grant of 1 acre 26 guntas of land in the aforesaid survey number. The Government after considering his request forwarded the said application to the Special Deputy Commissioner for Inams to consider the said application as the application under Section 32 of the Karnataka (Personal and Miscellaneous) Inams Abolition Act, 1954. The Special Deputy Commissioner considering the said application by an order dated 28.12.1998 granted occupancy rights. On coming to know of the said order, the fourth respondent preferred a writ petition in W.P.5041/99 before this Court challenging grant of occupancy rights. The said writ petition was allowed by an order dated 23.8.1999 and the matter was remanded back to the Special Deputy Commissioner for Inams Abolition to hear all the parties concerned and even to decide the case on merits. At this stage, the fourth respondent filed an application in Form No.7A under Section 77A of the Karnataka Land Reforms Act, 1961 before the Assistant Commissioner seeking grant of land to an 6 extent of 3 acres 20 guntas. The said application was filed on 22.12.1988. Now it transpires from the records that the said application filed in Form No.7(A) and after remand by the High Court the application filed by the petitioner for grant of occupancy rights were placed before the Additional Land Tribunal, Bangalore North Taluk. The Tribunal after considering the respective contentions held that the petitioner failed to prove the tenancy rights in his favour in respect of the land, whereas Parvathamma has been in possession of the land and the same has been confirmed by the records. Therefore, it rejected the application filed by the petitioner and allowed the application filed by the fourth respondent-Smt. Parvathamma and granted occupancy rights in respect of 1 acre 32 guntas by an order dated 5.4.2007 as per Annexure-"P". Aggrieved by the said order, the petitioner preferred a writ petition. The learned Single Judge on consideration of the entire material on record held that the land in question is Devadaya Inam land, the grant of occupancy rights in 7 respect of the said land is governed by the provisions of the Mysore Religious and Charitable Inams Abolition Act. Therefore, the application filed by the petitioner under the provisions of the Karnataka (Personal and Miscellaneous) Inams Abolition Act, 1954 is not maintainable. It also held Form No.7A filed by the fourth respondent is only an afterthought and a mischievous exercise which could not have been permitted. Therefore, it set aside the order of the Land Reforms Tribunal reserving liberty to the petitioner to pursue such remedies which are available to him. However, insofar as the claim of the fourth respondent is concerned nothing was said. Therefore, aggrieved by the said order, the fourth respondent has preferred this appeal.
4. The learned counsel for the fourth respondent-appellant assailing the impugned order passed by the learned Single Judge contends on the application filed by him under Section 77A of the Karnataka Land Reforms Act that the land had been 8 granted in his favour and therefore, an appeal lies under Section 118(2) of the Karnataka Land Reforms Act to the Karnataka Appellate Tribunal. Therefore, the learned Single Judge was not justified in entertaining the writ petition and setting aside the said order. He also contended that the petitioner has not preferred any application in the prescribed form. His claim is under the provisions of the Karnataka (Personal and Miscellaneous) Inams Abolition Act whereas the land in question is governed by the Mysore Religious and Charitable Inams Abolition Act. Therefore, the application was not maintainable and submits that the learned Single Judge was not justified in setting aside the order in favour of the appellant.
5. Per contra, the learned counsel for the petitioner supported the impugned order. He further contends that though the fourth respondent filed an application for grant of occupancy rights in respect of the entire extent of land under the provisions of the Mysore Religious and Charitable Inams Abolition Act, 9 her claim was conceded only to an extent of 1 acre 20 guntas. She did not choose to challenge the said order rejecting her claim in respect of the remaining extent. Therefore, she is estopped from claiming the very same land under any other statute and the application filed under Section 77A was not maintainable.
6. In the light of the aforesaid facts and rival contentions, it is clear the land bearing Survey No.28/A measuring 3 acres 15 guntas is a Devadaya Inam land. With the passing of the Mysore Religious and Charitable Inams Abolition Act, this Devadaya Inam land vested with the Government. The said Act conferred rights on the tenants to apply for grant of occupancy rights. The fourth respondent made an application under Section 5 of the Act seeking grant of occupancy rights. The petitioner contends her request was only to grant land to an extent of 1 acre 20 guntas. However, the fourth respondent contends that the claim was for the entire extent, but the grant was only to an extent of 1 acre 20 guntas. It is not in dispute that an extent of 1 acre 20 10 guntas was granted to the fourth respondent by order dated 31.7.62. The material on record discloses, though only 1 acre 20 guntas was granted, her name finds a place in the mutation records to the entire extent of land. The name of the petitioner who happens to be the son-in-law of the fourth respondent's sister is entered in the mutation register from 1974-75 to 1984-85. Thereafter his name is not continued. His attempt to get the name included failed. It is thereafter he made an application straightaway to the Government seeking grant of 1 acre 20 guntas in the said survey number. As there is no provision under which the Government can grant him land on that application, the Government forwarded the application to the Special Deputy Commissioner to treat the said application as an application under the Karnataka (Personal and Miscellaneous) Inams Abolition Act as time was extended under the said Act for filing applications. It is thereafter, the said application was allowed and grant was made. In the writ petition filed by the fourth 11 respondent, the grant was set aside and the matter was remanded. The Tribunal was called upon to decide whether the petitioner was entitled to grant of occupancy rights or not under the Karnataka (Personal and Miscellaneous) Inams Abolition Act. It is here the Tribunal declined to grant the order on the ground that he has not proved his tenancy rights. Now the learned Single Judge rightly held that the land in question is Devadaya Inam land vested under the provisions of the Mysore(Religious and Charitable Inams Abolition)Act, 1955. The question of applying the provisions of Karnataka(Personal and Miscellaneous) Inams Abolition Act, 1954 in respect of Devadaya Inam land is not permissible. Therefore, the said application under the provisions of Karnataka(Personal and Miscellaneous) Inams Abolition Act, 1954 is not maintainable. However, liberty is reserved to the petitioner to work out his remedy in the manner known to law. Dealing with the application filed by the fourth respondent under Section 77A of the Karnataka Land Reforms Act, 1961, 12 the learned Single Judge was of the view that it is a mischievous exercise and he has set aside the grant in favour of the fourth respondent. The application filed by the fourth respondent is under Section 77A. The authority under the Land Reforms act who is vested with the power to adjudicate such claims is the Assistant Commissioner and not the Tribunal. Though the application is filed to the Assistant Commissioner, the Assistant Commissioner being the Chairman of the Land Reforms Tribunal, the Tribunal has taken up the said application and has considered the said application along with the application of the petitioner. The Land Reforms Tribunal has no jurisdiction to consider the application under Section 77A of the Act. Therefore, the order passed by the Land Reforms Tribunal granting occupancy rights is one without jurisdiction and to that extent it is rightly set aside by the learned Single Judge. If it is an order under Section 77A, a statutory appeal is provided if that order had been passed by the Assistant Commissioner. As the order is passed by the Tribunal 13 writ petition is the only remedy. Therefore, we do not see any substance in the contention of the learned counsel for the appellant. But the Tribunal exceeded its jurisdiction in deciding the application under Section 77A. Therefore, the order is rightly set aside. But the application under Section 77A has to be adjudicated by the Assistant Commissioner. As no liberty is given or direction is issued, the appellant is rightly aggrieved and he is before this Court. In the circumstances, we have to issue a direction to the Assistant Commissioner to consider the application of the fourth respondent under Section 77A and pass orders in accordance with law.
7. In that view of the matter, we pass the following:-
ORDER The writ appeal is partly allowed. The application filed by the appellant-
fourth respondent in Form No.7A under Section 77A of the Karnataka Land Reforms act, 1961 shall be restored to 14 its original file and the Assistant Commissioner shall decide the application under Section 77A of the Act.
All the contentions urged by both the parties are left open to be decided in such an enquiry to be conducted by the Assistant Commissioner. Ordered accordingly.
It is made clear that the Assistant Commissioner shall decide the claim in accordance with law and on merits without being influenced by any of the observations made by this Court or by the learned Single Judge or by the Tribunal which order has been set aside by the learned Single Judge.
Sd/-
JUDGE.
Sd/-
JUDGE.
*alb/-.