Karnataka High Court
Smt Yamuna vs The State Of Karnataka on 17 January, 2013
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION NO.19050 OF 2012 [LR]
C/W WRIT PETITION NO.33310 OF 2012
WP NO.19050/2012
BETWEEN
1. Smt. Yamuna
W/o U.S.Bhandary
R/o Ullal, Mangalore,
Dakshina Kannada,
Since deceased by her L.R.s.
1(a). Smt. Harini Shyam
W/o H.S.Bhandary
Aged 54 years
1(b). Smt. Vidhya P. Bhandary
Alias Smt. Vidhya
Aged 52 years,
W/o late K.P.Bhandary
R/o Sandhya Nilaya,
Ullal Bailu,
Mangalore-575 020.
1(c). Smt. Vijaya Kumari
W/o Santosh Ullal
Aged 51 years
R/o Sandhya Nilaya,
Ullal Bailu,
Mangalore-575 020.
1(d). Smt. Sandhya G. Manjeshwar
Alias Sandhya
W/o Girish Manjeswar
Aged 49 years
2
R/o Sandhya Nilaya,
Ullal Bailu,
Mangalore-575 020. ... Petitioners
(By Sri S.B.Pavin, Advocate)
AND:
1. The State of Karnataka
By its Secretary to
Revenue Department
Vidhana Soudha
Bangalore-560 001.
2. The Land Tribunal
Mangalore
Dakshina kannada
By its Chairman
Mangalore, D.K. - 575 001.
3. Sri M. R. Battya
S/o Ayyappa Vadeya
83 years, Handloom Weaver,
R/o Alape, Mangalore-575 007.
Dakshina Kannada.
4. Sri D.Narayana Rao
Since deceased by his L.R.
D. Nagendra Rao,
Aged 62 years
R/o A-2, Peenland Apartments,
Pinto Lane, Bejai,
Mangalore-565 004. ... Respondents
(By Sri Shashidhar S.Karamadi, HCGP for R1 & R2:
Sri Jayakumar S.Patil, Senior Counsel for
Sri S.Vishwajith Shetty, Advocate for C/R3;
Ms.Anuparna, Advocate for
Sri K.Shashikiran Shetty, Advocate for R4)
This writ petition is filed under Articles 226 and 227 of the
constitution of India praying to call for the records and after
examining the same be pleased to quash the impugned order dated
27.4.2012, passed by the R2 Land Tribunal, Mangalore under
Annexure-A by issue of writ of certiorari and etc.
3
WP NO.33310/2012:
BETWEEN:
Sri M.R.Battya,
S/o Ayyappa Vadeya,
Aged about 82 years,
R/o Alape Village,
Mangalore Taluk,
D.K.District. ... Petitioner
(By Sri Jayakumar S.Patil, Senior Counsel for
Sri Vishwajith Shetty, Advocate)
AND:
1. The State of Karnataka
Represented by its secretary
Revenue Department,
Vidhana Soudha,
Bangalore-560 001.
2. The Land Tribunal,
Mangalore Taluk,
By its Secretary.
3. Sri D.Narayana Rao
Since deceased by his L.R.
D. Nagendra Rao,
Aged about 62 years
R/at A-2,
Peenland Apartments,
Pinto Lane, Bejai,
Mangalore-565 004.
4. Smt. Yamuna
W/o U.S.Bhandary,
R/o Ullal, Mangalore,
Since deceased by her LRs.
4(a). Smt. Harini Shyam
W/o H.S.Bhandary
Aged about 54 years,
R/o Sandhya Nilaya,
Ullal Bailu,
Mangalore - 575 002.
4
4(b). Smt. Vidhya P. Bhandary
Alias Smt. Vidhya
Aged about 50 years,
W/o late K.P.Bhandary
R/o Sandhya Nilaya,
Ullal bailu, Mangalore-575 020.
4(c). Smt. Vijaya Kumari
W/o Santosh Ullal
Aged about 51 years
R/o Sandhya Nilaya,
Ullal Bailu,
Mangalore-575 020.
4(d). Smt. Sandhya G. Nanjeshwar
Alias Sandhya,
W/o Girish Manjeswar
Aged about 49 years
R/o Sandhya Nilaya,
Ullal Bailu,
Mangalore-575 020. ... Respondents
(By Sri R.B.Sathyanarayana Singh, HCGP for R1 & R2:
Ms.Anuparna, Advocate for
Sri K. Shashikiran Shetty, Advocate for R3:
Sri S.B.Pavin, Advocate for R4(a-d))
This writ petition is filed under article 226 and 227 of
the constitution of India praying to call for the records from
the 2nd respondent Tribunal which ultimately resulted in
passing the order vide Annexure-A order dated 27.4.2012
made in No. LRT No.2492/78-79 passed by the 2nd
respondent and etc.
These petitions coming on for preliminary hearing this
day, the Court made the following:
5
ORDER
The petitioner's grievance in W.P.No.19050/2012 is over the Land Tribunal's order, dated 27.04.2012 (Annexure-A), granting the occupancy rights to the respondent No.3 in respect of the land measuring 1 acre out of the total extent of 3 acres standing at Sy.No.27 of Alape village.
2. The facts of the case in brief are that the respondent No.3 has filed an application in Form No.7 for the grant of the occupancy rights on 18.12.1976 (Annexure- F). The Land Tribunal, by its order, dated 11.09.1981 has rejected the said application. Aggrieved by the same, the respondent No.3 filed W.P.No.23526/1981. This Court, by its order, dated 30.11.1983 quashed the said order of the Tribunal and remanded the matter to it. The Tribunal, by its order, dated 08.08.1985, allowed the third respondent's application in part by granting the occupancy rights in respect of the 70 cents of land. The third respondent filed W.P.No.486/1985 agitating for the grant of the occupancy right of the larger extent of the land. The petitioner filed W.P.No.20034/1985 contending that the third respondent is not entitled to the grant of 70 cents. On the creation of the 6 Land Reforms Appellate Authority, both the cases got transferred to the said newly constituted appellate forum. The said Appellate Authority, by its order, dated 28.04.1989 has set aside the Tribunal's order and dismissed the Form No.7 application. These orders are challenged by the third respondent by filing L.R.R.P.Nos.3341/1989 and 3133/1989. This Court, by its order, dated 11.03.1989 allowed the said Revision Petitions and remanded the matter to the Tribunal again. The Tribunal, by its order, dated 21.01.2003 granted the occupancy rights to the third respondent in respect of the land measuring 1 acre. This order of the Land Tribunal was challenged by the petitioner by filing W.P.No.10145/2003. This Court by its order, dated 13.02.2008 quashed the Tribunal's order and remanded the matter to the Tribunal for fresh enquiry. The Tribunal has now passed the impugned order, granting the occupancy rights to the third respondent in respect of 1 acre of land.
3. Sri S.B.Pavin, the learned counsel for the petitioner assails the impugned order urging several contentions. He submits that the Land Tribunal has not paid any attention to the mulgeni chit (Annexure-B) to the writ petition, which was 7 marked as Ex.R4 in the proceedings before the Tribunal. He submits that the perusal of the said document reveals that at the time of entering into mulgeni arrangement about 120 years ago (07.01.1899) itself, it was not an agricultural land. The same was executed by Kundathaya Narnappayya in favour of the petitioner's grand uncle namely, Eshwara Bhandary. He further submits that the said erstwhile owner Kundathaya has stated that neither he nor his representative would demand back the property in question.
4. He submits that the third respondent was inducted as a tenant into the residential buildings on the lands in question. In support of his submissions, he brings to my notice that the petitioners' mother had filed O.S.No.475/1963 against Kamaruddin and Dawood Beary seeking the possession, arrears of rent, mesne profits, etc. in the Court of Munsiff, Mangalore. The suit is decreed on 11.12.1964 (Annexure-C). On getting Kamaruddin and Dawood Beary vacated, the residential buildings were leased to the third respondent. He submits that the third respondent has executed the rent chit, dated 03.04.1967 (Annexure-D). These being the undisputed facts, the third respondent 8 cannot claim that the land was agricultural and that he was a tenant in respect of an agricultural land, so submits Sri Pavin.
5. The learned counsel submits that the land in question falls within the territorial limit of Mangalore Corporation. The properties are mentioned in the Tax Demand Register. He submits that the receipts at Exs.R7 to R21 show that the property tax was being paid by the petitioner's mother Gowri Hengsu on behalf of Ramrao.
6. The learned counsel submits that in Form No.7, the third respondent has only shown the name of Yamuna (the deceased petitioner) as the owner of the land. The fourth respondent Narayana Rao is a total stranger to the land in question.
7. The learned counsel submits that in Form No.7 itself, the third respondent's avocation is shown as handloom. He cannot therefore be taken as a cultivator or an agriculturist.
9
8. The learned counsel also brings to my notice the statement made by the respondent No.3 before the Land Tribunal on 12.04.2002, which reads as follows:-
"¸ÀzÀj d«ÄãÀ£ÀÄß ¨Á¬Ä ªÀiÁw£À ªÉÄÃ¯É AiÀĪÀÄÄ£À nÃZÀgï ZÁ®UÉÃt £É¯ÉAiÀÄ°è 3 JPÀgÉ d«ÄãÀ£ÀÄß ¤ÃrgÀÄvÁÛgÉ."
9. He also brings to my notice the admission made by the third respondent in the written submission filed before the Tribunal, which reads as follows:-
"£Á£ÀÄ ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÆèPÀÄ C¼À¥É UÁæªÀÄzÀ ¸À.£ÀA.27gÀ ¥ÉÊQ 3-00 JPÀgÉ ¸ÉÊl£ÀÄß 1965 jAzÀ ²æêÀÄw AiÀĪÀÄÄ£À JA§ÄªÀªjÀ AzÀ ZÁ®UÉÃt ¥ÀqÉzÀÄ C£ÀĨs« À ¸ÀÄwÛzÀÄ...
Ý .."
10. The learned counsel relies on this portion of the third respondent's statement for buttressing the submission that he took it from Smt Yamuna (the deceased petitioner).
11. He also brings to my notice what the third respondent has stated in the affidavit filed in support of his application for temporary injunction before the Land Tribunal. Para 4 of the affidavit reads as follows:-
"The owner of Smt. Yamuna is trying to dispossess him from the residential building by expediting the trial of the suit in O.S.No.967/1979."10
12. The learned counsel submits that the execution of the rent-agreement by the third respondent is admitted by him in the written statement filed in H.R.C.No.267/1989 before the Munsiff, Mangalore.
13. He further submits that the Munsiff has delivered a categorical finding that the third respondent is a tenant in respect of the residential building and ordered his eviction. This is confirmed in the Rent Revision Petition by the District Judge and further by this Court in the House Rent Revision Petition.
14. The learned counsel also takes serious exception to the third respondent putting an additional construction on the land in question and sub-letting the same to several parties. Having done all these acts, the third respondent is not justified in taking the stand that the land in question is agricultural. He submits that the spot-inspection report is full of flaws. There is a discrepancy between the actual number of trees existing on the land and their number shown in the inspection report. He submits that the trees are planted only in the 80's and 90's.
11
15. Sri Jayakumar S.Patil, the learned Senior Counsel appearing for Sri S.Vishwajith Shetty for the caveator/respondent No.3 submits that the eviction order passed by the Munsiff Court, Mangalore has not attained the finality; the matter is pending consideration before the Apex Court in S.L.P.No.2606/2000. Therefore, the finding on the character of the land that it is a non-agricultural has not attained the finality. The issue of whether the Court under the Karnataka Rent Act, 1999 has the jurisdiction is pending consideration before the Apex Court.
16. The spot-inspection report, dated 17.10.2009 (Annexure-M) is reflective of the fact that the land was capable of being cultivated. He submits that the joint inspection took place in the presence of the petitioner and others. He submits that the first petitioner has admitted in the course of cross-examination that the spot inspection report is reflective of the factual position.
17. As far as the possession aspect is concerned, it is the submission of the learned Senior Counsel that the owner and his son themselves have stated that the respondent No.3 12 has been in possession of the land in question. He submits that even the petitioners have also admitted of the possession of the respondent No.3. The petitioners contend that the respondent No.3 is in possession of the land and is in occupation of the non-agricultural lands.
18. He submits that the extent of the land stranding at Sy.No.27 of Alape Village totally measures 5 acres 30 cents. The occupancy rights are already granted in respect of the lands measuring 2 acres 30 cents. He submits that the granting of the occupancy rights in respect of 2 acres 30 cents have attained the finality. If the remaining portion of the land at Sy.No27 abutting the land in question could be held to be agricultural land, the land in question cannot be held to be non-agricultural land.
19. The learned Senior Counsel submits that the Tribunal has erred in granting the occupancy rights to the respondent No.3 only in respect of 1 acre. The tenor of this Court's order, dated 13.02.2008 (Annexure-K) passed in W.P.No.10145/2003 is clear that the enquiry in the remanded matter has to be in respect of the entire extent of 3 acres. He 13 submits that the petitioners' application is also for the grant of occupancy rights for 3 acres.
20. He brought to my notice the provisions contained in Sections 132 and 133 of the Karnataka Land Reforms Act, 1961 ('the said Act' for short) for advancing the contention that the delivering of the finding by any forum other than the Tribunal on issues like whether the lands were agricultural, whether they were tenanted are the ones without jurisdiction. He also brought to my notice the provisions contained in Section 112(B)(b) and (bb) of the said Act and submits that the legislature has specifically enumerated the duties of the Tribunal for deciding whether a person is a tenant or not and whether the land, in respect of which the occupancy rights are sought, is an agricultural land or not.
21. The learned Senior Counsel relies on the Full Bench decision of this Court in the case of KORAGA MARAKALA AND ANOTHER vs. SMT.KAMALA AND OTHERS reported in AIR 1988 SC 123. It is held therein that when the legislature has vested exclusive jurisdiction with the Tribunal 14 with regard to certain matters, the civil court is not competent to decide those questions.
22. Nextly he also brings to my notice the Division Bench's decision in the case of K.RAVINDRANATHA SHETTY AND ANOTHER vs. SMT.MAIRE HENGASU AND ANOTHER reported in ILR 2004 Kar.1615, wherein it is held that if the defendant in a suit pleads the tenancy, the issue relating to tenancy should be referred to the Land Tribunal under Section 133 of the said Act.
23. The learned Senior Counsel submits that under Articles 226 and 227 of the Constitution of India, the review of the decision-making process can be sought, the same could be on the ground of procedural irregularity, denial of opportunity, etc. But what the petitioners are doing amounts to seeking the review of the decision itself, which is not permissible.
24. If the Tribunal's fact-finding is based on the material evidence placed on its record, it cannot be interfered with, more so when the finding cannot be said to be perverse. In this regard, he sought to draw support from the Apex 15 Court's judgment in the case of RAM AND ANOTHER vs. STATE OF KARNATAKA AND OTHERS reported in (2004) 7 SCC 796.
25. The learned Senior Counsel submits that the third respondent's application cannot be thrown out on the ground that his name does not figure in the revenue records. He submits that neither the names of the respondent No.3 nor of the petitioners figure in the revenue records. However, that the third respondent is in possession of the land in question is not disputed either by the petitioners or by the fourth respondent landlord.
26. The learned Senior Counsel has read out para 4 of the Apex Court's judgment in the case of MOHAN BALAKU PATIL AND OTHERS vs. KRISHNOJI BHAURAO HUNDRE (DEAD) BY L.Rs) reported in (2000) 1 SCC 518. It reads as follows:
"4. It appears to us that the appellate authority could not have placed any reliance on the subsequent revenue records inasmuch as the appellants had constructed the building on the land in dispute; that the electricity bills had been paid by them; that the land was in their possession. In the face of this finding of fact, the appellate authority could not raise the presumption 16 under Section 133 of the Act that the entries made in the Record of Rights was correct. When a finding of fact had been recorded that the appellants had been in possession, it will be startling to hold that the respondent was himself cultivating the land. The rent paid by the appellants to the respondent and the partition in their family had no bearing on the question of possession of the land and cultivation thereof. When, in fact, the Tribunal made local enquiry by spot inspection and had come to the conclusion that the appellants were in possession, that factor should have weighed with the appellate authority, particularly in the face of the admission made by the respondent that the appellants had constructed the building on the land and were paying charges in respect of the electric pump set used for irrigating the land and ought to have held that the appellants were cultivating the land. In addition, the land in question was shown not to be cultivated by the respondent as the respondent was residing nowhere near the land but at a faraway place and that the land was not cultivated personally by the owner and the persons cultivating the land were not members of their family nor was there any evidence that the appellants were servants or hired labourers on wages and (sic. the appellate authority) ought to have, on that basis, held the appellants as deemed tenants in respect of the land. The presumption arising under Section 133 of the Act in respect of the entries made in the Record of Rights stood displaced by the finding of fact recorded that the appellants were in actual possession of the land and were cultivating the same. In the face of such 17 an admission made by the respondent, it is difficult to accept the finding recorded by the appellate authority as affirmed by the High Court that in view of the entries made in the Record of Rights, the appellants could not be stated to be in possession of the land on the relevant date nor were they cultivating the same."
27. Sri S. Vishwajith Shetty, the learned counsel appearing for the respondent No.3 in W.P.No.19050/2012 and for the petitioner in W.P.No.33310/2012 submits that having found that the said party is in possession of the entire extent of the land, the Tribunal is not justified in allowing his claim only in respect of about only 1/3rd of what he has prayed for in Form No.7 application. He submits that the land in question was undisputedly the agricultural land as on the cut-off date of 1.3.1974. It had not come in the limits of Mangalore City. As a matter of fact, Mangalore Corporation came into existence around 1985. Without prejudice to this contention, he submits that assuming, without admitting, that it has fallen within the limits of City, then also the Land Tribunal's jurisdiction to hold the enquiry in respect of the lands in question is not ousted. The occupancy rights can be granted so long as it falls within the expression 'land', which is defined in Section 2(A)(18) of the said Act. For advancing 18 this submission, he has relied on the Division Bench's judgment of this Court in the case of SHIDDAPPA KARIYAPPA AND ANOTHER v. LAND TRIBUNAL, RANEBENNUR AND OTHERS reported in 1978(1) Kar.L.J.83, wherein it is held that the Land Reforms Act does not exclude from its purview the land situated within the limits of Municipalities or Corporations, if the land comes within the definition of land in Section 2(A)(18).
28. Sri Shetty submits that the petitioner's mother had filed Form No.7 application. For the reasons best known to herself, she withdrew it. Even by the petitioner's admission, her mother was only a mulgeni tenant. As she is not the owner of the property, she cannot resist the granting of the occupancy rights to the tenant, more so when she has withdrawn her Form No.7 application.
29. Sri Pavin, the learned counsel for the petitioner, in the course of his rejoinder, submits that the petitioner's mother had filed Form No.7 under a mistaken impression. As she was neither an agriculturist nor was the land an agricultural land (it was falling within the Municipal limits), a request was made by her to reject her Form No.7. 19
30. Sri Pavin submits that the mulgenidar falls within the expression 'landlord' as given in Section 2(20) of the said Act. The said provision reads as follows:
"2. Definitions: (20) "Landlord" means a person who has leased land to a tenant and includes a person entitled to receive rent from a tenant.
Explanation.- An intermediary such as a permanent tenant or mulgenidar, mirasi tenant or khata kul who having taken land on lease from the land-owner has leased it to another person shall be deemed to be the landlord with reference to the person to whom the land is leased;"
31. Nextly he brings to my notice, the definition of the 'land' contained in Section 2(18) of the said Act which is as follows:
"2. Definitions: (18) "Land" means agricultural land, that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope but does not include house-site or land used exclusively for non agricultural purposes;"
32. As per the above extracted definition, a house- site or the land exclusively used for non-agricultural purpose is not the land for the purpose of granting the occupancy rights. 20
33. He submits that the third respondent had constructed 18 units and let them out. He further submits that the third respondent himself has filed H.R.C.Petition No.88/2011 against one of his tenants/sub-tenants. The photographs in Ex.R45 series are clearly reflective of the non- agricultural use of the land in question. The spot-inspection report is not dependable, as it does not refer to the handloom operations being carried out on a big scale in a portion of the land in question. He submits that on the basis of a stray admission made by a party, the inspection-report cannot be taken on its face value.
34. Ms.Anuparna, the learned counsel appearing for Sri Shashikiran Shetty for the respondent No.4 would support the impugned order passed by the Land Tribunal.
35. I have gone through the Land Tribunal's order. I have also browsed through the lower court records.
36. The question that falls for my consideration is whether the Land Tribunal has re-considered the matter in the letter and spirit of this Court's earlier order, dated 21 13.02.2008 passed in W.P.No.10145/2003. The directions, inter alia, are as follows:
"(i) ..................
(ii) ...................
(iii) Since there was already a spot inspection of the land in question, the Tribunal shall consider the same along with the evidence, both oral and documentary, that has already been placed on record by both the parties and thereafter discussing the same, it shall dispose of the matter.
(iv) Narrating the evidence of the witnesses in the impugned order without its proper appreciation would not be enough. Therefore, the Tribunal shall consider the evidence of the both sides, discuss the same and then give its specific finding either accepting or rejecting the evidence of a particular witness and then pass the final order."
37. Keeping this earlier order in view, let me examine as to what is the oral and documentary evidence placed on the record of the Tribunal and how it is appreciated.
38. Ex.R4 is a mulgeni chit executed by Kundathaya Narnappayya in favour of Eshwara Bhandary on 07.01.1889. The said Eshwara Bhandary is the uncle of the petitioners' mother, Gouri. Kundathaya Narnappayya has undertaken in the said mulgeni chit that he would not take back the 22 possession of the land and that he would not seek the increase in the geni charges. The said document further states that Eshwara Bhandary's successors may enjoy the property. The document at Ex.R4 has come into existence at an undisputed point of time. Anybody claiming under Kundathaya Narnappayya cannot claim the rights better or higher than the rights of Kundathaya Narnappayya. This aspect is not noticed by the Tribunal. The fourth respondent does not have the competence to concede to the claim of the third respondent, if the fourth respondent is claiming under Kundathaya Narnappayya. If the fourth respondent is making any claim in his own right and in any case independently of Kundathaya Narnappayya, then also it is incumbent for the Tribunal to examine the basis for the fourth respondent's claims and thereafter deliver its finding.
39. The Tribunal has also not paid any attention to the finding delivered by the Munsiff, Bangalore in H.R.C.No.267/1989 wherein it is held that the third respondent has executed the rent bond (Ex.P1 in the HRC proceedings executed by the petitioner). The Munsiff allowed the eviction petition. It is also upheld by the District Court in 23 R.R.P.No.128/1992 (Exs.R30 and R31). Further this Court has also upheld the said two concurrent orders in H.R.R.P.No.31/2009; that the property tax was also being paid in respect of the lands in question by the petitioner's mother Gouri. The property tax paid receipts are Exs. R7 to R21. The spot- inspection report is to be relied upon, but it does not mean that all other documentary evidence is to be excluded. Further, as the spot-inspection report does not speak of the handloom operations, the Land Tribunal has assessed its reliability.
40. The Tribunal has also not paid weightage to the vital material placed on its record. The third respondent has stated in his affidavit filed in support of the I.A. for temporary injunction before the Land Tribunal that the petitioner is trying to dispossess him from the residential building. This statement of the third respondent shows that there are residential buildings on the lands in question. The Land Tribunal has not said anything as to which portion of the land has retained its agricultural character and which portion has assumed the non-agricultural character. 24
41. I do not propose to observe anything about the permissibility of the occupant of dwelling house to make an application in Form 2A under Section 38 of the said Act, as the same is not the subject matter of this writ petition.
42. The Tribunal has not taken into account the buildings standing on the land in question. That there is a house building existing on the land in question is not in dispute. As per the last part of the definition found in Section 2(A)(18), the land does not include the house-site or the land being used exclusively for the non-agricultural purposes.
43. There can be no dispute that one of the enumerated duties of the Tribunal is to decide whether the person is a tenant or not, as per Section 112(B)(b) of the Act. But the said decision has to be taken in juxtaposition with the other duty cast upon the Land Tribunal by Section 112(B)(b)(bb) of the Act of deciding whether the land was or was not an agricultural land as on the material date of 01.03.1974.
44. For all the aforesaid reasons, I quash the impugned order. The Land Tribunal is directed to decide the matter afresh in compliance with the directions issued by this Court 25 in its order, dated 13.02.2008 (Annexure-K) in W.P.No.10145/2003 and in the letter and spirit of this order.
45. I am nextly left with the consideration of the tenant's petition (W.P.No.33310/2012) wherein he is agitating for granting the occupancy rights in respect of the remaining 2 acres of land. The petitioner's grievance in W.P.No.33310/2012 is over not granting the full extent of land as prayed for in Form No.7 application.
46. It is worthwhile to notice that in the earlier round of litigation, the Tribunal by its order, dated 02.11.2003 has granted the occupancy rights only in respect of one acre of the land. The tenant had not challenged the same agitating for larger extent of the land. He was content with the granting of occupancy rights only in respect of one acre. The granting of the occupancy rights in one acre was challenged by owner (the petitioner in W.P.No.10145/2003). It is in her petition that the earlier order granting the occupancy rights in respect of one acre came to be quashed.
47. When the matter is remanded for considering the grievance of the owner over the granting of one acre of land, 26 the respondent No.3 is not entitled to agitate his right for the occupancy rights for more than one acre of land. I therefore, dismiss W.P.No.33310/2012.
48. Liberty is reserved to all the parties to lead further/additional evidence, if they so desire.
49. No order as to costs.
Sd/-
JUDGE LB/Cm/-