Karnataka High Court
Gurasiddappa S/O Channappa Udapudi vs The Assistant Commissioner Jamkhandi ... on 12 January, 2021
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12 T H DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
W.P.No.2106/2006 (LR)
Between
1. Gurusiddappa S/o.Channappa Udapudi,
Since deceased by his LRs.
1(a) Karabasappa S/o.Channappa Udapudi,
Aged 50 years, Occ: Agriculture,
Since deceased by his L.Rs.
1(a)(b). Guru S/o.Karabasappa Udapudi,
Age 20 years, Occ: Student,
R/o.: Kadara Koppa,
Tq.: Badami, Dist.: Bagalkot.
1(a)(c). Smt.Annapurna W/o.Karabasappa
Udapudi, Age 40 years,
Occ: Agriculture,
R/o.: Kadara Koppa,
Tq.: Badami, Dist.: Bagalkot.
1(b) Shivappa S/o.Channappa Udapudi,
Age 46 years, Occ: Agriculture,
1(c) Irappa S/o.Channappa Udapudi,
Age 35 years, Occ: Agriculture,
1(d) Shankareppa S/o.Channappa Udapudi,
Age 30 years, Occ: Agriculture,
All are residents of Kadarakoppa,
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Taluk Badami, Dist.: Bagalkot.
... Petitioners
[By Shri S.S.Halalli, Advocate for L.Rs. of deceased petitioner;
Shri B.Chidanand, Advocate for P1(d)]
And
1. The Assistant Commissioner,
Jamkhandi Division,
Jamkhandi, Dist.: Bagalkot.
2. The Tahasildar, Mudhol,
District Bagalkot.
... Respondents
[By Shri V.S. Kalasurmath, HCGP]
This writ petition filed under Articles 226 and 227 of
Constitution of India praying to quash the impugned orders
vide Annexure-D passed by respondent No.1 - authority and
the notification dated 29.11.2005, vide Annexure-E, passed
by respondent No.2 - authority and etc.,
This petition coming on for Preliminary Hearing-'B'
group, this day, the Court made the following:
ORDER
The petitioner is seeking for quashing of Annexures - D and E.
2. The brief facts of the petitioners' case is that the petitioner was a tenant of the lands bearing Sy.No.77/1 measuring 8 acres 3 guntas and Sy.No.78/1 measuring 8 acres 9 guntas situated at Lokapur. It was cultivated by the deceased petitioner Shri Gurusiddappa S/o.Channappa -3- Udapudi from 1963-64. The said fact was admitted regarding cultivation as a tenant till 09.10.1975 as his name was appearing in the cultivator's column from 1963-64. The petitioner being a tenant under the Karnataka Land Reforms Act, 1961 filed Form No.7 under Sections 45 and 48(1) of the said Act claiming occupancy rights in respect of Sy.Nos.77/1 and 78/1. The Land Tribunal, Mudhol granted occupancy right in favour of Gurusiddappa in respect of the aforesaid lands. The order of the Land Tribunal has attained finality, the name of the petitioner late Gurusiddappa had entered in the record of rights as owner to the land pursuant to the order of the Land Tribunal till 2004. After the demise of Gurusiddappa, the legal heirs of the petitioner requested the respondent authorities to enter their names in the record of rights and Pahani as legal heirs in terms of survival ship certificate issued by Tahasildar, Badami. The respondent - Authorities continued the name of Gurusiddappa even after his demise instead of entering the names of the legal heirs of the petitioner. The first respondent - the Assistant Commissioner on the request of second respondent issued a letter dated .../10/2005, issued a notification under Section 73(1) of the -4- Karnataka Land Reforms Act in respect of the land bearing Sy.No.77/1 situated at Lokapur. The Second respondent - authority pursuant to the letter dated .../10/2005 issued a notification dated 29.11.2005 vide Annexure-E under Section 77 of the Karnataka Land Reforms Act, 1961 inviting the applications for the landless persons for distribution of the said lands of the petitioner bearing Sy.No.77/1 measuring 8 acres 3 guntas. The petitioner aggrieved by Annexures-D and E filed this writ petition.
3. The respondents have not filed objections to the main petition.
4. Heard the learned counsel appearing for the petitioners and also the learned HCGP.
5. Learned counsel for the petitioners submits that the impugned order at annexure-E passed by second respondent is without jurisdiction. Section 67 of the Karnataka Land Reforms Act empowers only the Land Tribunal to determine the extent of excess land. The respondent has no jurisdiction to issue Annexure-E. Hence, he prays to allow the writ petition.
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6. Per contra, the learned HCGP submits that the order passed by the second respondent is without jurisdiction and he submits that he has no objection for allowing the writ petition only on the ground that the second respondent has no jurisdiction to pass the impugned order at annexure-E.
7. Perused the records and also considered the submissions of the learned counsel appearing for the parties. It is not in dispute that the name of the petitioner - Gurusiddappa was appearing in the cultivator's column in ROR since from 1964-65 and the name was continued as a tenant till 10.06.1975. The petitioner filed Form No.7. The Land Tribunal granted occupancy rights in respect of two lands bearing Sy.Nos.77/1 and 78/1 as per annexure-A. Order of Land Tribunal has attained finality. After the demise of the petitioner - Gurusiddappa, the legal heirs of the petitioner submitted an application for entering their names in the revenue records. In order to appreciate the contention of the petitioners, it is necessary to consider Section 67 of the Land Reforms Act, 1961, which reads as under:
"67. Surrender of land in certain cases. - [(1) (a) Save as provided in section 66-A, on receipt of the declaration under section 66 the Tahsildar shall,--6-
(i) verify the particulars contained therein as regards the survey number and the extent of the land;
(ii) determine to which class, A, B, C or D, the land belongs; and
(iii) place the declaration and the connected records before the Tribunal.
[(aa) Where a portion of the holding declared before a Tahsildar is situated within the jurisdiction of another Tahsildar, the former shall send a copy of the declaration to the latter, who shall make the verification and determination specified in item (i) and (ii) of clause (a) in respect of such portion and send the copy of the declaration and the connected records to the former Tahsildar, who shall place them before the Tribunal.]
(b) Thereupon and after such enquiry as may be prescribed, the Tribunal shall determine the extent of the holding and the area by which such extent exceeds the ceiling area.
(c) Where the total extent of the holding so determined by the Tribunal is equal to or less than the ceiling area, the person concerned shall be entitled to retain his entire holding; but where the total extent is more than the ceiling area, such person shall be liable to surrender such extent of land as will, after such surrender, bring the total extent of land retained by him to the extent of the ceiling area.
(d) The order of the Tribunal shall be final and shall be communicated to the person concerned and also the Tahsildar.] [(1A) Where the land held by a family consist of 'stridhana' land which may be surrendered, the extent of 'stridhana' land to be surrendered shall in no case be more than the proportion which the extent of -7- 'stridhana' land bears to the extent of other land held by the family.
(1B) Where a person holds lands cultivated by him personally as well as lands cultivated by a tenant, the surrender of surpluas land by him shall with reference to the land cultivated by a tenant, be subject to the provision of Chapter III.] (2) The [Tribunal] shall serve on every person who is liable to surrender land under sub-section (1), a notice specifying therein the extent of land which he should surrender, and requiring him to file a statement in such manner and within such period as may be prescribed specifying therein the land which he proposes to surrender.
[(3) If the person concerned files such declaration within the prescribed period, the [Tribunal] may subject to the provision of sub-section (3A) pass an order approving the surrender and the said land shall thereupon be deemed to have been surrendered by such person.
(3A) If the land proposed to be surrendered is not suitable on the ground of inaccessibility or any other ground that may be prescribed, the [Tribunal] may pass an order rejecting it and call upon the person concerned to file a fresh statement specifying therein other suitable land. On the filing of such statement the [Tribunal] shall pass an order approving such surrender and the said land shall thereupon be deemed to have been surrendered by such person. If such person fails to file a fresh statement, the [Tribunal] may [itself] select the land which shall be surrendered by such person and pass an order to that effect and thereupon the said land shall be deemed to have been surrendered by such person.] (4) If the person concerned does not file such statement within the prescribed period, the [Tribunal] may [itself] select the land which shall be surrendered by the person concerned, and pass an order to that effect; and thereupon the said land shall be deemed to have been surrendered by such person.
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(5) An order under sub-section [(3), (3A) or (4)] relating to surrender of land shall be passed in respect of land which, as far as practicable, forms a survey number, or a recognised part of survey number of a sub-division of a survey number.
[67A. Payment for use and occupation of land. - (1) Every person possessing land in excess of the ceiling area, as determined under this Chapter, shall pay to the State Government for the period he was in possession or such extent of land from the date of the order determining the excess, such compensation for the use and occupation of such land as the Tribunal may determine in the prescribed manner.
(2) Any sum payable under sub-section (1) may be recovered as arrears of land revenue.]"
8. Section 67 of the Act deals with surrender of land, that the Tahasildar on the receipt of declaration under Section 66 of the Act shall verify the record and place it before the tribunal and thereupon and after such enquiry the tribunal shall determine the extent of holding and the area by which extent exceeds the ceiling area. The tribunal determines the extent of holding is less or more ceiling area, if it is more than ceiling area, such a person shall be liable to surrender such extent of land. The order of the tribunal shall be final and the same shall be communicated to the person concerned and also to Tahasildar.
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9. In the present case, the respondents have not placed any record to demonstrate that the Tahasildar hold an enquiry regarding determination of holding of lands by the petitioners and also not placed any order to show that the tribunal has passed an order as per clause (c) sub-Section (1) of Section 67 of the Act determining that the petitioners are holding land more than ceiling limit and also has not produced any records to show that the tribunal has issued any notice under sub-section (2) of Section 67 of the Act of surrendering the lands. From the perusal of the records, the petitioners are in possession of land under reference.
10. Second respondent issued a notification under sub-Section (1) of Section 73 of the Act, 1961 in respect of the land bearing Sy.No.77/1. In order to appreciate the same, it is necessary to consider Section 73 of the Act, which reads as under:
73. Claims for [the amount] and payment of [the amount]. - [(1) As soon as may be after the service of the order made under section 67, the Tahsildar shall publish a notification containing the particulars of the lands vested in the State Government.
(1A) After the publication of the notification under sub-section (1), the Tahsildar shall determine
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the amount payable in respect of the land which has vested in the State Government.] (2) The provisions of sections [48B] and 50 shall mutatis mutandis be applicable for determining the persons entitled to [the amount] and the apportionment of [the amount].
[(3) The amount payable under sub-section (1) shall be paid in [nontransferable and non- negotiable] bonds carrying interest at the rate of five and a half per cent per annum and of guaranteed face value maturing within a specified period not exceeding twenty years:
Provided that the amount payable under the bonds issued under this subsection may be paid in such number of installments not exceeding twenty as may be prescribed.] [(4) Notwithstanding anything in sub-section (3), on or after 1st March 1984, the balance and interest thereon payable in accordance with the said sub-section shall, in lieu of the bonds specified therein, be paid in the following manner, namely:-
(a) The interest accrued at the rate of five and a half per cent per annum till 1st March, 1984 remaining unpaid shall be paid in five consecutive annual, as far as may be, equal installments commencing from 1st March, 1984 in National Savings Certificates;
(b) the whole or, as the case may be, part of the balance specified in sub-section (1), payable before 1st March, 1984 remaining unpaid shall be paid in five consecutive annual, as far as may be, equal installments commencing from the said date in National Savings Certificates.
(c) the whole or, as the case may be, part of the said balance payable on or after 1st March, 1984 shall be paid in ten consecutive annual, as far as may be, equal installments commencing from the said date in National Savings Certificates:
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Provided that along with each of the installments referred to in items (b) and (c), the interest thereon from 1st March, 1984 at the rate of five and a half per cent per annum upto the date of payment thereof shall also be paid in National Savings Certificates.]
11. Section 73 of the Act deals with claims for (the amount and payment of (the amount). Sub-Section (1) of Section 73 contemplates that after service of the order made under Section 67 of the Act, the Tahasildar shall publish a notification containing the particulars of the lands vested in the State Government.
12. One of the pre conditions for issuing a notification under sub-Section (1) of Section 73 of the Act is that there must be an order passed under Section 67 of the Act. Annexure-E does not disclose regarding the receipt of an order under Section 67 of the Act. When no order is passed under Section 67 of the Act, the Tahasildar - respondent No.2 has no jurisdiction to invite an application from the landless persons under Section 73 of the Act, 1961. Thus, annexure-E issued by respondent No.2 is without jurisdiction and is not sustainable in the eye of law. The same deserves to be set aside.
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13. In view of the above discussions, I proceed to pass the following:
ORDER
(i) The writ petition is allowed in part.
(ii) The impugned order at annexure-E is hereby set aside.
(iii) However, the original owner is no more and the legal heirs of the petitioner -
Gurusiddappa are entitled to get their names entered into the revenue records.
(iv) The second respondent is directed to
consider the representation of the
petitioners and pass appropriate order in accordance with law.
SD/-
JUDGE Vnp*