Karnataka High Court
Smt. Neelavva W/O. Gadigeppa vs Smt Basavva W/O Rudrayya Neelannavar on 20 January, 2014
Bench: N.Kumar, C.R.Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JANUARY 2014
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE C.R.KUMARASWAMY
W.A. No.31262/2013 (LR)
BETWEEN:
1. Smt. Neelavva W/o Gadigeppa,
Mensikayi,
Age: Major, R/o Unkal,
Taluk: Hubli, Dist: Dharwad.
Yellappa S/o Kallappa Kenchannavar
Since deceased by his LRs.
2. Guruappa S/o Yallappa Kenchannavar,
Age: Major,
R/o Unkal, Taluk: Hubli,
Dist: Dharwad.
3. Gangadhar S/o Yallappa Kenchannavar,
Age: Major, R/o Unkal, Taluk:Hubli,
Dist: Dharwad.
4. Smt. Ningavva W/o Sangappa Pattanagi,
Age: Major, R/o Gulbarga,
Dist: Gulbarga.
5. Smt. Siddavva W/o Shivanagouda Rayanal,
Age: Major, R/o Rayanal, Taluk: Hubli,
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Dist: Dharwad.
6. Ningappa S/o Siddappa Kenchannavar,
Age: Major, R/o Unkal, Taluk: Hubli,
Dist: Dharwad.
7. Guruappa S/o Siddappa Kenchannavar,
Age: Major, R/o Unkal, Taluk: Hubli,
Dist: Dharwad.
8. Channappa S/o Siddappa Kenchannavar,
Age: Major, R/o Unkal, Taluk: Hubli,
Dist: Dharwad.
9. Ratnavva D/oSiddappa Kenchannavar,
Age: Major, R/o Unkal, Taluk: Hubli,
Dist: Dharwad.
10. Shivanand S/o Siddappa Kenchannavar,
Age: Major, R/o Durgad Lane, Hubli,
Dist: Dharwad.
... Appellants
(By Sri. V P Kulkarni & Ajay U Patil, Advocates)
AND:
1. Smt. Basvva W/o Rudrappa Neelannavar,
Age: 63 years,
R/o Byahatti, Taluk: Hubli,
Dist: Dharwad.
2. Iravva D/o Rudrappa Neelannavar,
Age: 38 years,
R/o Amminbhavi, Taluk: Dharwad,
Dist: Dharwad.
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3. The Assistant Commissioner &
Competent Authority, Sub-Division,
Hubli, Dist: Dharwad.
4. The State of Karnataka,
By its Secretary, Department of Revenue,
M S Building,
Bangalore.
... RESPONDENTS
(By Smt. K Vidyavati, AGA for respondents)
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This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act, praying to set-aside the order of
the learned single judge passed in WP No.31641/2008 dated
14.08.2013 and dismiss the writ petiton.
This writ appeal coming on for preliminary hearing this
day, N. Kumar, J. delivered the following:
JUDGMENT
This writ appeal is filed challenging the order passed by the learned single judge who has set-aside the order passed by the Karnataka Appellate Tribunal which has dismissed the application filed under Section 77(A) of the Karnataka Land Reforms Act, for granting a land.
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2. The subject matter of the proceedings is a land bearing Sy.No. 589(Sy.No.66/2), measuring 34 guntas, situated at Unkal village, Hubli Taluk. One Kallappa had filed a Form No.7A on 26.07.1999 seeking grant of the aforesaid land contending that he was a tenant of the said land and he was cultivating the same. He had not filed Form No.7 seeking grant of occupancy rights under Section 45 of the Karnataka Land Reforms Act, 1974. Therefore, after amendment to the said Act and introduction of Section 77(A), Form No.7A was filed. The Assistant Commissioner, before whom the said application was filed, after enquiry found the said land had not been cultivated and entries in the revenue records indicated it is a pada land for the years 1994-95 to 2001-02. RTC extracts indicates that the land is a Pada, therefore, the application came to be rejected on 26.09.2003. In the meanwhile he died. Aggrieved by the said order, his legal heirs preferred an appeal before the Tribunal. The Tribunal after securing the records found from the years 1973-74 to 2001-02 name of Kallappa reflected in column No.12(2) and :5: nature of cultivation is shown and categorized as 'III' that the cultivation is made by a tenant. Therefore, it came to the conclusion that the appellants have satisfied that the deceased Kallappa was cultivating the said land. It further held he had continued to be in possession and cultivation of the said land when Section 77(A) of the Act was in force. Therefore, it set-aside the order of the Assistant Commissioner granted the land to the legal heirs. Aggrieved by the said order, owners of the land had preferred the writ petition before this Court. Learned single judge after considering the rival contention of the parties was of the view that the application filed in Form No.7(A) by Kallappa granting the land was barred by limitation and therefore he set-aside the order of the Tribunal and dismissed the application. Aggrieved by the said order, this writ appeal is filed.
3. Learned counsel for the appellants assailing the impugned order contends in the Act no limitation is :6: prescribed. It is only in the Rules, limitation of three months was prescribed, subsequently it was extended to six months by virtue of Notification. The application was filed on 26.09.1999. If six months is computed from the date of notification, the application is within time. Secondly, he contended the Rule 26(C) also provides for Suo-moto initiation of the proceedings by the Deputy Commissioner. In view of the Circular issued by him, Village Accountant had issued a notice to the applicant and no period is prescribed for Suo-moto proceedings. Therefore, seen from any angle, learned single judge was not justified in dismissing the application on the ground of limitation when no ground was urged either before the Assistant Commissioner or before the Tribunal. Therefore, he submits that the impugned order requires to be set-aside.
4. Scope of enquiry under Section 77(A) was the subject mater of the decision in the case of Lokaiah Poojari Vs. State of Karnataka reported in 2012(4) KCCR 3411, where :7: it has been held in the aforesaid judgment, "unless there is some official record evidencing the vesting of the land, the authorities under Section 77A would get no jurisdiction to hold an enquiry and grant land under Section 77A to the applicant. The official record referred to therein may be in the form of Land Revenue receipts, record of rights, index of land, mutation orders, consequent mutation entries or any other record which is maintained by a public officer as opposed to private documents". Therefore, condition precedent for attracting Section 77A, vesting of the land in the State should not be in dispute and it should be evidenced from the records and the landlord should not be contesting the said possession. Vesting of the land takes place when the land is tenanted on the date of the commencement of the Act. This Court consistently held if the tenant is cultivating the land on the due date then it vests with the land, such cultivation is atleast three years prior to the date of vesting, he must be continuing in the land in question. For attracting Section 77(A) not only he should be cultivating the land prior to the :8: date of vesting, he should be in possession and cultivating the land till date he makes an application under Section 77(A). The Assistant Commissioner recorded the findings on the basis of the revenue records, which shows that the land was a Pada i.e., uncultivated. For setting-aside the order, the Tribunal looked into the records from the years 1973-74 to 2001-02 and came to the conclusion that he was cultivating. The said finding is illegal. Prior to 1973-74, no name was entered and it was entered as Pada and nobody was cultivating the land prior to 1973-74. Therefore, it ceases to be tenanted land. It did not vest with the State. Under the Provisions of the Land Revenue Act, it was in the possession of the State for non-payment of taxes by the owner of the land. That property cannot be the subject matter of the proceedings under Section 77A of the Land Reforms Act. In the facts and circumstances of the case, we are satisfied that the very initiation of the proceeding is without jurisdiction. Section 77A is not attracted to the facts of the case in hand. :9:
No merits. Dismissed.
In view of dismissal of the appeal, all pending applications are also dismissed consequently.
SD/-
JUDGE SD/-
JUDGE JTR