Karnataka High Court
B. Somanatha Rao, Dead By Lr. B. ... vs Karmil D'Souza, (Dead By Lrs. Anjal Bai, ... on 17 October, 2006
Author: K. Ramanna
Bench: K. Ramanna
ORDER K. Ramanna, J.
1. This writ petition is filed by the deceased Somanath son of V. Seetharama Rao to quash the order dated 18.8.98 passed by the Addl. Land Tribunal Bantwal in Case Nos. TNC. 7019/74-75, 7000/74-75 and 8590/74-75 ordering registration of land measuring 2 acres 76 cents in survey No. 44/1B2B2 of Bantwal Mooda village whereby the Tribunal granted occupancy right in favour of deceased first respondent-1 to 3.
2. The case of the petitioners in brief are that the deceased petitioner was the owner of the land bearing survey No. 44/1B2B measuring 2 acre 72 cents of Bantwal Muda village and he was in possession and enjoyment of the same and the said land is dry land containing karee mara tree growth raised. Those trees were reared and preserved by the deceased petitioner and it is not used for any agricultural purpose. Therefore, the provisions of Karnataka Land Reforms Act does not apply as the land in question is not fit for cultivation. At no point of time the deceased respondents-1 to 3 cultivated the land on lease basis and the karee mara trees raised therein being sold from time to time to various persons by the deceased petitioner. The land in question was never the subject matter of the lease or tenancy. Deceased respondents No. 1 and 3 and Benjamin D'Souza (husband of R-2) were tenants in respect of some other agricultural lands namely paddy fields. Survey No. 44/1B2B2 is a kareemara forest land surrounded by agalu. The deceased first respondent Kamel D'souza was appointed as a watchman to watch and preserve the said kareemara trees on an annual remuneration of one mura of rice. One mora of rice which was payable for the agricultural lands therefore the deceased first respondent had no right over the land in question over which kareemara trees was grown. The receipts if any issued to deceased first respondent for payment of rental in respect of agricultural lands and the said one mora of rice was given deductions for watching kareemara plantation and there was no claim made even in the application filed under Section 48A of KLR Act in the aforesaid cases by deceased respondents-1 and 3 and the deceased respondent No. 2 i.e., Benjamin D'souza. The RTC also stands in the name of deceased petitioner B. Somanatharao. It is further case of the LRs of the deceased petitioner that in the first instance the land tribunal Bantwal, conferred the occupancy right in respect of the land in question in favour of the deceased respondent No. 1 and 3 deceased Benjamin D'Souza i.e., respondent No. 2 by a majority opinion. But the Chairman of the Land Tribunal had given dissenting opinion even in the first instance. Therefore the writ petition filed by the deceased petitioner in W.P. 9799/77 was allowed by quashing the order dated 27.6.77 and remanded the matter on the ground that a fresh enquiry is to be held by the Tribunal. After remand an impugned order came to be passed on 19.8.88 which is liable to be quashed.
3. Heard the arguments of the learned Counsel for the petitioners and LRs. of respondents-1 to 3 and the learned High Court Govt. Pleader for respondents-4 and 5.
4. During the course of the arguments Sri P. Vasudev Ithal counsel for petitioner submitted that the land survey No. 44/1B2B measuring 2 acres 72 cents Bantwal Muda village is not a agricultural land and it is not fit for cultivation. Therefore, some kareemara trees were grown. Since the deceased respondents 1 to 3 never cultivated the said lands as a tenants and there was no lease agreement entered into. Since the deceased respondents-1 to 3 being the brother inter se cultivated some other lands on lease basis and rent was being paid in respect of those agricultural land (paddy field) to the extent of one mura of rice, therefore all the three brothers filed form No. 7 separately to confer occupancy right without any written document and filing of such applications in form No. 7 which was registered by the Land Tribunal separately is highly illegal and incorrect. One of the deceased respondents was watching the kareemara trees grown in the land in question as a watchman and the rental amount payable by them for cultivating some other paddy land is being deducted by giving one mura of rice. It is further argued that this Court has already allowed the writ petition filed by the very deceased petitioner on the ground that no proper enquiry was held by the Tribunal to grant occupancy right jointly in the name of the deceased respondents-1 to 3. The deceased petitioner had given consent to confer occupancy right in respect of some other lands. Therefore, in spite of remanding of the matter with observations made by this Court, without complying with the observations passed the impugned order has been passed even though the Chairman of the Land Tribunal given a dissenting opinion. It is further argued that deceased applicants have not claimed in respect of the land in question therefore the provisions of Section 48A of the KLR Act is not applicable. In this behalf the counsel for the petitioners relied on a decision of this Court reported in the case of Basappa v. Land Tribunal, Bagalkot TLQ. and Ors. 1978(1) Kar.L.J. 48 wherein Division Bench of this Court held that:
...Where the person, who would otherwise be entitled to claim occupancy right under Section 45 read with Section 48A had made no application in the manner provided to the Tribunal having jurisdiction, such person losses the right to claim occupancy right.
He has also relied on another decision of this Court reported in the case of Jingra Moolya and Anr. v. Balakrishna alias Subramanya Bhat 1995(6) Kar. L.J. 449 wherein this Court held that:
It is quite clear that the Tribunal can assume jurisdiction to adjudicate the claim of occupancy right, inter alia, only if an application to the said effect is filed by the person concerned within the prescribed time. If no such application is filed, then, the right to occupancy, even if admissible in respect of any piece of land, is lost because Section 48-A(8) provides that where no application is made within the time allowed under Sub-section (1), the right of any person to be registered as an occupant shall have no effect. The legislature has not invested the Tribunal to exercise any suo motu jurisdiction in this regard. Further the grant of such right depends upon establishing of certain foundational facts which can be determined only alter notices are served on the persons interested in the lands.
Further he relied on a decision of this Court reported in the case of V. Chandranna and Ors. v. The State of Karnataka and Ors. ILR 1998 KAR 2861 wherein this Court held that:
...Tribunal gets jurisdiction only in respect of lands referred to in Form No. 7. In the absence of any such application, any enquiry or Direction issued by the Tribunal becomes Ultra Vires being beyond the powers of the Act and thus a nullity and consequently making it legally unenforceable.
Further it is submitted by the learned Counsel for the petitioners that even after remand no opportunity was given to cross-examine the applicants. On 24.6.1988 an application came to be filed to permit him to cross-examine the applicants. The Tribunal neither allowed the application nor permitted him to cross-examine the applicants. The application is still pending. Hence the present writ petition be allowed.
5. It is further argued by the learned Counsel for the petitioner that the Tribunal has no jurisdiction to grant occupancy right when survey number has not been mentioned in Form No. 7. It is argued that in Form No. 7 dated 11.9.74 in all five items have been claimed but out of them four items in survey No. 45 and one in survey No. 46/B2. Therefore, the Tribunal without properly verifying the documentary evidence conferring of occupancy right jointly in the namely deceased respondents-1 to 3 without jurisdiction is liable to be quashed.
6. On the other hand the learned Counsel for respondents-1(a) to (d), R-2 (a) to (c) submitted that form No. 7 filed by the deceased respondent-1-3 though filed separate applications in form 7 on 31.12.1976 but claimed one and the same survey number i.e., survey No. 44/1 of Bantwal Muda village apart from claiming other items of the land to show that they were also cultivating the land survey No. 44/1 measuring 1 acre 45 cents. They have produced the village wara extracts of applications filed by them. The land survey No. 44/1 measuring 1 acre 45 cents. Therefore the Tribunal is right in conferring occupancy right in the joint names of deceased Respondents-1 to 3 in respect of land survey No. 44/1B2B. There is no illegality or infirmity in granting occupancy right by the Tribunal. Therefore, the present writ petition is liable to be quashed. It is further argued that the earlier writ petition filed by the deceased petitioner was allowed by this Court on the point of non-compliance of mandatory provisions of the said Act and Rules. After fresh enquiry the Tribunal has rightly come to the conclusion that the respondents-1 to 3 being the brothers inter se are jointly entitled to the land survey No. 44/1B2B measuring 2 acres 72 cents. It is argued that the non-mentioning of the correct survey number i.e., 44/1B2B is not a ground to reverse the order passed by the Tribunal. In support of this contention the learned Counsel relied on a decision of this Court reported in the case of Y.S. Ramachandra Rao v. State of Karnataka and Ors. wherein this Court held that:
Even if there is a mistake of an applicant in mentioning a different survey number in form No. 7, it is permissible for the Land Tribunal to verily and ascertain the correctness of the numbers and pass appropriate orders.
7. On the other hand the HGCP submitted that the order under challenge is in accordance with law and does not require any interference by this Court.
8. I have carefully examined the materials placed on record. No doubt that the deceased applicants R1 to 3 filed form No. 7 separately claiming five items of the land including land survey No. 44/1, The said applications filed in the year 1976. After the remand that too on 11.11.1986 the deceased respondents filed applications on 11.11.1986 to permit them to include the land survey No. 44/1 B2B2 in form No. 7 filed more than ten years back. Even alter quashing of the earlier order this Court remanded the matter with a direction to strictly follow the provisions of Karnataka Land Reforms Act and Rules to permit both parties to adduce evidence, allow them to cross-examine to the opposite parties and their witnesses. But in the instant case in spite of the application filed by the deceased petitioner landlord on 24.6.88 to permit him to cross-examine the applicants neither considered nor allowed the landlords to cross-examine, which is clear violation of principles of natural justice. Merely because names of the respondents-3(a) to (c) shown in the land acquisition proceedings is not a ground to confer occupancy right. Therefore, when there is violation of procedural law and the rules the order under challenge granting occupancy right jointly in respect of the land measuring 2 acres 72 cents of Bantwal Muda village out of land survey No. 44/1B2B2 is liable to be quashed.
9. In view the facts and circumstance of the case and the manner in which the enquiry conducted by the Tribunal the writ petition is allowed by quashing the order dated 18.8.1998. The matter is remitted back to the Land Tribunal, Bantwal with a direction to secure the presence of both parties i.e., LRs of both parties and allow them to adduce evidence and permit the both parties to cross-examine and after making spot inspection in the presence of both parties dispose of the case in accordance with law.