Karnataka High Court
Sri Mammade Beary vs The State Of Karnataka on 29 August, 2012
Author: B.S.Patil
Bench: B.S.Patil
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.Nos.23742-43/2012 (LR-SEC-77)
BETWEEN:
1. Sri Mammade Beary,
Aged about 82 years
S/o Sri Ibrai Beary
R/o Mangila Padav House,
Veerakhamba Village,
Bantwal Taluk, D.K.
2. Sri Yadava Shettigar,
Aged about 41 years
S/o Sri Chennappa Shettigar
R/o Mangila Padav House,
Veerakhamba Village,
Bantwal Taluk, D.K. ... PETITIONERS
(By Sri Pundikai Ishwara Bhat, Adv.)
AND:
1. The State of Karnataka,
Rep.by its Secretary,
Department of Revenue,
M.S.Building,
Bangalore.
2. The Assistant Commissioner &
The President, Land Tribunal,
Bantwal Taluk, D.K. Dist.
3. Abdul Rehman
Major,
S/o Ismail
2
Hazare, Banari House,
Vitlapadnur Village,
Bantwal Taluk, D.K. Dist. ... RESPONDENTS
(By Sri Shashidhar S.Karmadi, GP for R1 & 2,
Sri S.Vishwajith Shetty, Adv. for C/R3)
These writ petitions are filed under Articles 226 & 227 of
the Constitution of India, praying to quash the order dated
5.4.2012 passed by the Karnataka Appellate Tribunal,
Bangalore vide Annexure-A and etc.
These petitions coming on for preliminary hearing-B
group this day, the Court made the following:
ORDER
1. Learned Government Pleader is directed to take notice for respondents 1 and 2.
2. In these writ petitions, petitioners are calling in question the order dated 05.04.2012 passed by the Karnataka Appellate Tribunal, Bangalore, in Appeal No.850/2002 thereby allowing the appeal by setting aside the order passed by the Assistant Commissioner.
3. Petitioners were respondents 2 and 3 before the Karnataka Appellate Tribunal. They were the applicants before the Assistant Commissioner. They had applied application in 3 Form No.7A seeking grant of land as per the provisions contained under Section 77-A of the Karnataka Land Reforms Act, 1961 (for short 'the Act').
4. The Assistant Commissioner allowed the application and granted the land holding that they were the tenants and had failed to file applications in Form No.7 and were therefore entitled to maintain the application in from No.7A.
5. The Appellate Tribunal has reversed the said order and has rejected the application holding that as the lands in question were not tenanted lands as on 01.03.1974 and were not vested in the State and as there was no material to show that petitioners 1 and 2 herein were the tenants of the lands, the Assistant Commissioner was not right and justified in granting the lands.
6. Learned counsel appearing for the petitioner contends that the Appellate Tribunal was in error in recording such findings inasmuch as if only the petitioners had been given an opportunity before the Asst.Commissioner to represent themselves through an advocate they would have produced necessary documents to establish their tenancy. He further 4 points out that the tax paid receipts produced which pertain to the house in occupation of the petitioners disclosed that they were occupying the premises constructed in the lands and were cultivating the lands.
7. Learned counsel appearing for the 3rd respondent strongly supports the order passed by the Appellate Tribunal and places reliance on the judgment of this Court in the case of HOSABAYYA NAGAPPA NAIK AND OTHERS v. STATE OF KARNATAKA AND OTHERS - 2002(3) KLJ 53, and the judgement of the Full Bench of this Court in the case of LOKAYYA POOJARY AND ANOTHER v. STATE OF KARNATAKA AND OTHERS in W.P.No.28203/2004 c/w W.P.No.27528/2005 disposed of on 22.01.2011 to contend that the Tribunal was right and justified in rejecting the claim made by the petitioners under Section 77- A of the Act.
8. I have heard the learned counsel for the parties and perused the orders passed by the Assistant Commissioner and the Karnataka Appellate Tribunal apart from the materials placed on record.
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9. As can be seen from the provisions contained under Section 77-A of the Act, it is introduced by Act No.23/1998 providing for grant of lands, in case the competent Authority is satisfied that immediately prior to 1st March 1974 the land was in actual possession and cultivation of the applicant as a tenant and was vested in the State under Section 44 and being entitled to be registered as an occupant of such land the applicant had failed to apply for registration of occupancy rights as per the provisions contained under Sub-Section (1) of Section 48(A) of the Act within the period specified therein. Further, the applicant must have continued to be in actual possession and cultivation of the property on the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997. Therefore, it is clear that the scope of enquiry to be conducted by the competent authority for granting the land under Section 77-A of the Act is very limited to ascertain whether the land was in the possession and cultivation of the applicant immediately prior to 01.03.1974 and having been duly vested in the State and continued to be in his possession as on the date the amended Act came into force.
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10. The scope of this provision and the enquiry to be conducted has been dealt with by the Division Bench of this Court and subsequently by the Full Bench in the aforementioned two judgments. It is clearly held in these judgments that the enquiry that the Assistant Commissioner is required to be held is not similar to the one that is held by the Tribunal but is limited in its scope and ambit.
11. In the instant case, materials on record as appreciated by the Appellate Tribunal show that no agricultural activity was carried on by the petitioners in the lands in question. Admittedly, the 1st petitioner claims to be in possession of the land measuring 7 cents which approximately comes to a little more than 60ft x 40 ft and the 2nd petitioner claims to be in possession to an extent of 4 cents of land which will be less than that of a site measuring 60ft x 40 ft. They are no doubt in occupation of the house constructed in the said lands and there are some fruit bearing trees in and around the house. In the absence of any revenue records to show that the petitioners were carrying on agricultural activities as tenants and were growing crops in that capacity in the lands in question, it cannot be held that they were the tenants of the lands and the 7 lands stood vested in the State Government as on 01.03.1974 as per Section 44 of the Act. In fact this is the clear and categorical finding recorded by the Appellate Tribunal after appreciating the evidence on record.
12. The Tribunal has found that as per the evidence given by the 2nd petitioner, admittedly there were no documents to establish that the lands were under cultivation. He has further admitted that except the portion where the house was constructed the rest of the land was not given to him. It is in this background that the Tribunal has come to the conclusion that even though the petitioners were in occupation of the house constructed in the land and have paid the house tax they were not tenants in cultivation of the land and therefore the essential ingredients for invoking 77-A were lacking.
13. This finding of the Tribunal is consistent with the provisions contained under Section 77-A and in conformity with the judgments rendered by this Court referred to above. Hence, I do not find any merit in these two writ petitions.
Therefore, these writ petitions are dismissed. 8 Learned Government Pleader is permitted to file memo of appearance within three weeks.
Sd/-
JUDGE VP