Karnataka High Court
Sri.Shivaji S/O Hanamantappa Mane vs The State Of Karnataka on 19 July, 2023
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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WP No. 102226 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 102226 OF 2021 (LR)
BETWEEN:
1. SRI. SHIVAJI S/O HANAMANTAPPA MANE,
AGED ABOUT 65 YEARS, OCC. AGRICULTURE,
R/O. BHARIDEVARKOPPA, TQ. HUBBALLI,
DIST. DHARWAD-580030.
2. SRI. ISHWARAPPA S/O HANAMANTHAPPA MANE,
AGED ABOUT 63 YEARS, OCC. AGRICULTURE,
R/O. BHAIRIDEVARKOPPA, TQ. HUBBALLI,
DIST. DHARWAD-580030.
3. SRI. RAMACHANDRA S/O HANAMANTAPPA MANE,
AGED ABOUT 60 YEARS, OCC. AGRICULTURE,
Digitally
R/O. BHAIRIDEVARKOPPA, TQ. HUBBALLI,
signed by DIST. DHARWAD-580030.
VISHAL
VISHAL NINGAPPA ... PETITIONERS
NINGAPPA PATTIHAL (BY SRI. G R GURUMATH, SR. COUNSEL FOR
PATTIHAL Date:
2023.07.21 SRI. G I GACHCHINAMATH, ADVOCATE)
12:10:10
+0530
AND:
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY TO REVENUE DEPARTMENT,
VIDHANA VEEDHI, BENGALURU - 01.
2. THE ASSISTANT COMMISSIONER & APPROPRIATE
AUTHORITY, DHARWAD, DIST. DHARWAD-580001,
& SLAO, KIADB, DHARWAD.
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3. SRI. LAXMAN S/O GURAPPA KOKARE,
AGED ABOUT 70 YEARS, OCC. AGRICULTURE,
R/O. NEAR IRANNA TEMPLE,
KAMANAKATTI CROSS, DHARWAD-580001.
4. SMT. SANNAVVA
SINCE DEAD BY HIS LRS.
4A. SRI. AVINASH
S/O LATE ASHOK SHIVAPPA NAIKAR,
AGED MAJOR, R/O. PACIFIC PARK,
HUBBALLI, TQ. HUBBALLI,
DIST. DHARWAD-580024.
5. SMT. SHANTAVVA
W/O KAIRYAPPA HONNAPUR,
AGED ABOUT 81 YEARS, OCC. AGRICULTURE,
R/O. NEAR IRANNA TEMPLE, KAMANAKATTI
CROSS, DHARWAD, PIN-580001.
... RESPONDENTS
(BY SRI. VINAYAK S KULKARNI, AGA FOR R1 & R2;
SRI. H H SHETTY & SRI. CHANDRASHEKHAR R HIEREMATH,
ADVOCATES FOR R3 TO R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL
FOR RECORDS IN RESPECT OF THE IMPUGNED ORDER
25.03.2021 BEARING APPEAL NO.495/2018 ON THE FILE OF
THE KARNATAKA APPELLATE TRIBUNAL BENGALURU & ETC.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 102226 of 2021
ORDER
The petitioners are before this Court invoking its jurisdiction under Articles 226 and 227 of the Constitution of India assailing the order Annexure - F passed by the Karnataka Appellate Tribunal, Bengaluru dated 25.03.2021 in Appeal No.495/2018.
2. Heard the learned counsel for the petitioners and the learned counsels for the respondents.
3. Facts leading to filing of this writ petition narrated briefly are, the petitioners claim to be in possession and cultivation of the land bearing Sy. No.717 measuring 1 acre 12 guntas and Sy. No.718 measuring 1 acre 20 guntas situated at Amargol Village, Hubballi Taluk and Dharwad District. The petitioners had filed Form No.7- A under the provisions of Karnataka Land Reforms Act, 1961 (hereinafter referred to as "Act of 1961) claiming occupancy rights of the aforesaid lands in question. The 2nd respondent / competent authority by order dated 27.03.2018 had granted occupancy rights of the lands in -4- NC: 2023:KHC-D:7450 WP No. 102226 of 2021 question in favour of the petitioners. The same was challenged by the 3rd to 5th respondents before the Karnataka Appellate Tribunal (hereinafter referred to as "Appellate Tribunal") in R.A. No.495/2018. The said appeal was allowed by the Appellate Tribunal vide the order at Annexure - F dated 25.03.2021. Being aggrieved by the same, the petitioners are before this Court.
4. Learned senior counsel appearing for the petitioners submits that the Appellant Tribunal is not justified in rejecting Form No.7-A of the petitioners on the ground the same was filed beyond the period of limitation.
He refers to sub Rule (2) of Rule 26-C of the Karnataka Land Reforms Rules, 1974 (hereinafter referred to as "Rules of 1974") and submits that the Appellate Tribunal was not justified in arriving at a conclusion that the limitation prescribed for filing Form No.7-A was six months from the date Rule 26-C of the Rules of 1974 came into force. He submits that this Court in the case of Basavva and others vs. Tangevva and others reported in ILR -5- NC: 2023:KHC-D:7450 WP No. 102226 of 2021 2013 KAR 5449 has not properly appreciated the effect of sub Rule (2) of Rule 26-C of the Rules of 1974 and if the interpretation made by this Court in Basavva's case is accepted, the same would virtually render sub Rule (2) of Rule 26-C otiose. He submits that no finding has been recorded by this Court in Basavva's case regarding the effect of sub Rule (2) of Rule 26-C of the Rules of 1974.
He also submits that the order in the case of Basavva was rendered without there being any deliberation and argument in this regard and therefore it has to be considered that the decision in the case of Basavva is passed sub silentio. In support of this argument of his he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi vs. Gurnam Kaur reported in AIR 1989 SC 38. He also submits that every clause of a statute is required to be construed with reference to the context and other clauses of the Act and therefore sub Rule (1) of Rule 26-C of the Rules of 1974 cannot be used to defeat the purpose of sub Rule (2) of Rule 26-C of the Rules of 1974. In this -6- NC: 2023:KHC-D:7450 WP No. 102226 of 2021 regard, he has placed reliance on the judgment of the High Court of Allahabad in the case of Jhinka Devi vs. State of UP.
5. Per contra, learned counsels appearing for the respondents have argued in support of the impugned order passed by the Appellate Tribunal and submit that undisputedly the application in Form No.7-A has been filed by the petitioners after the prescribed period of limitation and therefore the Appellate Tribunal was fully justified in allowing the appeal. They submit that the point that arises for consideration in this case is squarely covered by the orders passed in the case of Basavva and others and therefore the writ petition is liable to be dismissed.
6. The petitioners, who claim to be in occupation and cultivation of the lands in question had filed Form No.7-A before the competent authority without mentioning the place and date in the column found at the bottom of Form No.7-A. This aspect of the matter was taken note of -7- NC: 2023:KHC-D:7450 WP No. 102226 of 2021 by the Tribunal and in paragraphs 29 to 33, the Tribunal has observed as follows:
"29. We have carefully perused the original Form No.7- A filed by the Respondent No.2 to 4 herein available at Page No.57-58 of the lower court records. It is very interesting to note here that in the original Form No.7-A the Respondent No.2 to 4 herein have not at all mentioned the date on which they have signed the same and submitted to the Deputy Commissioner. They have kept the columns 'place' and 'date' appearing at the bottom of said Form No.7-A unfilled. It is not in dispute that the Respondent No.2 to 4 herein were Government servants. Normally, no educated person would submit any application without putting the specific date before signing the same. In this case, an inference has to be drawn that the Respondent No.2 to 4 herein have intentionally not mentioned the date in the Form No.7-A. An inference has to be drawn that they have omitted to mention the date only with an intention to suppress the date of filing of Form No.7-A. -8- NC: 2023:KHC-D:7450 WP No. 102226 of 2021
30. The Respondent No.2 to 4 have not placed any positive evidence on record to show that their Form No.7-A was filed within stipulated 06 months as per Rule 26-C(1) of the Rules. When the Appellants herein have specifically contended that the Form No.7-A was not filed within the stipulated period of time, therefore, the burden was on the Respondent No.2 to 4 herein to bring some piece of evidence to establish that their Form No.7-A was filed well within time.
31. It is very much relevant to note here that we find a note of the concerned official who received the said Form No.7-A with his signature and date. He has put the specific date as 22.07.1999, just below his signature. In the absence of any material placed on record by the Respondent No.2 to 4 herein we have to consider the date one mentioned as 22.07 1999, by the receiving officials of the revenue authority. It is very much pertinent to note here that at Page No.159 to 162 of the lower court records.,we find a memo filed by the learned counsel for the Respondent No.2 to 4 herein before the 1st Respondent along with list of document. Along -9- NC: 2023:KHC-D:7450 WP No. 102226 of 2021 with the said memo, there is a list of 12 documents in which the first document is referred as the application filed for the grant. In the said Sl. No.1, just before the description of the document as application for land grant, the date is shown as 22.07.1999. It means, before the 1st Respondent even the counsel for the Respondent No.2 to 4 herein had shown the date of filing of Form No.7-A as 22.07.1999.
32. At Page No.55-56 of the lower court records; we find the checklist prepared by the Revenue Inspector in which at Column No.1 not only the number of the Form No.7-A is recorded but even date of the registration of the same is also specifically mentioned. In the said checklist at Sl. No.1 we find the following entry:
"KLR/7A/278/98-99/31.07.1999."
33. From the above information gathered from the checklist, it can be said that the Form No.7-A of the Respondent No.2 to 4 herein was registered in the concerned register on 31.07.1999. Therefore, it is to be held that the Form No.7-A filed by the Respondent No.2 to 4 herein was beyond the time limit prescribed under Rule 26-C(1) of the Rules. In view of the
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 above referred decision, the 1st Respondent had no jurisdiction to entertain the Form No.7-A filed by the Respondents No.2 to 4 after expiry of 06 months period prescribed under aforesaid Rule. Therefore, on that count only it is to be held that the Respondent No.2 to 4 are not entitled for an order of grant in respect of the lands in question u/s.77-A of the Act."
7. Rule 26-C of the Rules of 1974 reads as follows:
"26-C. Procedure for grant of land by the Deputy Commissioner or the Officer authorised by the State Government under Section 77-A.-
(1) Every person eligible for grant of land under Section 77-A shall make an application in Form No.7-A within three months from the commencement of the Karnataka Land Reforms (Amendment) Rules, 1998.
(2) The Deputy Commissioner or the Officer authorised in this behalf may also take cognisance suo motu of cases falling under Section 77-A. (3) The Tahasildar of the concerned taluk shall issue individual notice in Form No.9-D and public notice in Form No.8-A to the persons
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 interest in the land, the grant of which under Section 77-A is under consideration.
(4) A list of such persons covered under sub-rules (1) and (3) shall be entered in a register, kept in Form 11-CC.
(5) The Deputy Commissioner or other Officer authorised in this behalf shall [after holding summary inquiry in the manner provided in Section 34 of the Karnataka Land Revenue Act, 1964 (Karnataka Act 12 of 1964)] grant land in accordance with Section 77-A and the Tahsildar shall issue title deed in Form No.11- CCC on payment of purchase price in accordance with Section 78.
(6) The first installment of the amount payable for the land granted under Section 77-A shall be payable in the Second Year from the date of the grant:
Provided that where the extent of the land granted under Section 77-A together with other land, if any held by him does not exceed ten acres of 'D' Class land, or an extent equivalent thereto comprising of one or more classes of other land specified in Part A of Schedule 1,
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 determined in accordance with the formula specified in Part B of Schedule I, he shall be exempted from paying the purchase price.]"
8. As could be seen from sub Rule (1) of Rule 26-C of the Rules of 1974, the application in Form No.7-A is required to be filed by the applicants within a period of six months from the aforesaid Rule coming into force. Rule 26-C of the Rules of 1974 has come into force with effect from 02.11.1998. Therefore, within a period of six months from the said date, the petitioners were required to file Form No.7-A. The material on record would go to show that the application in Form No.7-A was not filed within the stipulated period as provided under sub Rule (1) of Rule 26-C of the Rules of 1974. It is under these circumstances, the Appellate Tribunal has recorded a finding that the competent authority had no jurisdiction to entertain such Form No.7-A which was filed beyond the period of limitation as provided under sub Rule (1) of Rule 26-C of Rules of 1974.
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9. Learned senior counsel appearing for the petitioners submits that in view of the suo motu powers provided under sub Rule (2) of Rule 26-C of the Rules of 1974, the period of limitation prescribed under sub Rule (1) of Rule 26-C of the Rules of 1974 cannot be taken into consideration in its letter and spirit and it is his contention that if the limitation for filing Form No.7-A is taken into consideration as provided under sub Rule (1) of Rule 26-C of Rules 1974, the same would render sub Rule (2) of Rule 26-C otiose. This aspect of the matter was taken into consideration by the co-ordinate Bench of this Court in Basavva's case. In paragraphs 13 to 16 of the order passed in the said case, this Court has observed as follows:
"13. To achieve the object of Section 77-A, Rule 26-C of Karnataka Land Reforms Rules, 1974 came to be inserted with effect from 02.11.1998. Sub-Rule (1) of Rule 26-C enabled a person who is eligible for grant of land under Section 77-A to make an application in Form No. 7A within six months (which was earlier fixed as
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 three months) from the commencement of Karnataka Land Reforms (Amendment) Rules, 1998. Sub Rule (2) of Rule 26-C authorised the Deputy Commissioner or the authorised Officer in this behalf to take suo-moto cognizance of cases falling under Section 77-A.
14. Thus, a harmonious reading of the above provisions would indicate that a person eligible for grant of land under Section 77-A who was entitled to be registered as an occupant of such land under Section 45 or 49 had failed to apply for registration of occupancy rights within the period specified therein and had continued in actual possession and cultivation of such land on the date of commencement of Amendment Act (Act 23/1998) and said land having vested in the State Government under Section 44 was entitled to seek for grant of such land by filing an application in Form No. 7A within the prescribed period. The Deputy Commissioner or the Officer authorised in that behalf was also empowered to take suo moto cognizance of cases falling under Section 77-A.
15. In the light of above statutory provision, it requires to be examined as to
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 whether application in Form No. 7A for grant of such land is required to be filed mandatorily within the period prescribed under sub Rule (1) of Rule 26 C or the said period prescribed is to be ignored in view of sub Rule (2) enabling the Deputy Commissioner or Officer authorised in this behalf to take cognizance suo moto of cases falling under Section 77-A.
16. As already noticed herein above, Rule 26 C cannot go beyond the purpose for which the main provision of Section 77 A was enacted. The intention of the Legislature to introduce Section 77-A was to extend an opportunity to those who might have been truly and lawfully the tenants of the land, who were in possession and cultivation and continued to be in possession and cultivation of such land, who might have not filed application seeking grant of occupancy rights within the stipulated period though outer limit to file such applications came to be extended from time to time, and had continued in possession and cultivation without being disturbed to seek for grant of such lands. The correctness of the interpretation placed on Section 77-A by three Division Benches: came to be doubted by a Co-
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 ordinate Bench of this Court and having expressed the view that this aspect requires reconsideration by a Larger Bench, a reference came to be made to the Full Bench and after analysing the statutory provisions of Section 77- A and Rule 26-C the Full Bench in the case of Lokayya Poojary vs State of Karnataka (Supra) has held as under
11. INTERESTINGLY, as in the case of Rule 17 xxxx Asst. Commissioner. The enquiry contemplated under Section 77-A is to be confined only to the following:
1. Whether the person who has made an application under Section 77 A was in actual possession and cultivation of any land before the first day of March 1974;
2. Being entitled to be registered as occupants of such land under section 45 or 49, has failed to apply for registration of occupancy rights in respect of such land under sub-section (1) of Section 48-A within the period specified therein. In other words, if such an application had been filed, which claim is adjudicated upon by the Tribunal and if it is negatived, then such a person is not entitled to file an application under Section 77-A;
3. Whether such a person is continued to be in actual possession and cultivation of
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12. PROVISO makes it clear that xxxxx excess of 2 Hectares of land.
Therefore in the said proceedings the question whether the said land is a tenanted land or not, cannot be gone into, as is clear from the language used in Section 77 A The entire enquiry contemplated under Section 77 A is in respect of a land which is vested in the State Government under Section 44, as on 01.03.1974. It should be an undisputed fact if the said fact is dispute, then Section 77-A has no application. The jurisdiction under Section 77-A is attracted only in respect of undisputed tenanted lands Vesting of the land as on 01.03.1974 with the Government, which fact is not dispute, is a condition precedent for application of Section 77-A.
13. If a tenant makes an application, the question that arises for consideration is how he proves that it is a vested land. The vesting of the land is by operation of law.
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 No order of vesting need be passed. There cannot be an order declaring the vesting of the land Therefore, production of order of vesting is not the requirement of law and it is not possible and it cannot be insisted upon. However, it is for the applicant who comes to the Court to establish, that the land in question is a vested land. While establishing such fact, it is necessary that he should rely on undisputed documents and such undisputed documents may be in the nature of some official record showing vesting of the land in favour of the State Government. The Government record referred to in the judgment is not an order of vesting It is a record in proof of vesting. It may vary from case to case and depends upon the stand taken in each case, But, unless there is some official record evidencing the vesting of the land, the authorities under Section 77 A would get no jurisdiction to hold an enquiry and grant land under Section 77 A 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
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 orders, consequent mutation entries or any other record which is maintained by a public officer as opposed to private documents. It is in the context, the learned judges in the aforesaid judgments have stated that the land should have been vested in the State Government as on the appointed date. The said event should have already taken place. The evidence is required to be placed by the applicant to show that this is an event that has already taken place. In the context the observations to the effect that "obviously it should find a place in some official record as vesting of the land is in favour of the State Government" are made. This amendment came into force in 1997 roughly 18 years after the last date prescribed for filing applications under Section 45. For 18 long years after the vesting of the land if the tenant has continued in possession, there must be some evidence by way of a public record to show his possession, cultivation and enjoyment as recognised by the Government because after the vesting he
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 has to deal with the Government and not with the erstwhile owner How the Government as well as the applicant have dealt with this property during these 18 years assumes importance. In this context the observations made in the said judgments cannot be read as new conditions prescribed by the judges in Section 77-A by the process of judicial interpretation as sought to be urged by the Counsel for the petitioner. The Judges do not legislate.
14. E. They only interpret the provisions. Therefore, the argument that under the guise of interpretation, the judges have re-written the Section is not well founded. It is a case of misreading the judgment. Under these circumstances, the interpretation placed by the Division Benches is proper and legal. We do not find any need to clarify what has been already said. Accordingly the reference is answered. The matters shall be placed before the learned single Judge for decision in the light of the answer given herein above."
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10. Referring to the judgment of the Full Bench in the case of Lokayya Poojary vs. State of Karnataka, the co-ordinate Bench in Basavva's case at paragraph 17 has observed as follows:
"17. Keeping the principles laid down by the Full Bench referred to hereinabove, when facts on hand are examined it would emerge that deceased Kalappa filed Form No. 7A on 26.07.1999 seeking for grant of land in question, pursuant to which proceedings under Section 77- A came to be initiated by the 11th respondent Under Rule 26-C(1) the said application ought to have been filed within six months from the date of commencement of Karnataka Land Reforms (Amendment) Rules, 1998. Said Rules has undisputedly come into effect from 02 11 1998 This would clearly indicate that application in question which has been filed by deceased Kalappe was beyond the period prescribed under Rule 26-C and as such neither the 11th respondent nor the Appellate Tribunal had jurisdiction to entertain the claim made by deceased Kalappa for grant of land in question in his favour under Section 77 -A. Though Mr. Ajay Patil would contend that by virtue of a Circular having been issued by the revenue authorities on 01 06.1999 directing the revenue authorities across the State to find out and ascertain as to whether there is effective implementation of Section 77 A of the Act and to file a report to the Government, pursuant to which notice came to be issued directing the deceased Kalappa to file an application on or before 30.07 1999 and as such application In Form No. 7A came to be filed
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 on 26.07.1999 which is well within time, cannot be accepted Circulars do not have the statutory force and it would not be binding on the Courts while interpreting the provisions of a statute. For this proposition, the judgment of the Hon'ble Apex Court in the matter of J K Steel Limited vs Union of India & Others MANU/SC/0283/1968 AIR 1970 SC 1173, can be looked up whereunder it has been held as follows:
31. So far as the instructions issued by the Department are concerned there is hardly any doubt that the same are wholly irrelevant. In Craies on Statute Law Sixth Edn. at page 131 it is stated:
Explanatory notes regarding the working of an Act issued by a government department for the assistance of their officials are inadmissible for the purpose of construing the Act.
The same conclusion was arrived at by this Court in Commissioner Income Tax Madras v. K Srinivasan and K Gopalan, At pages 502-503 (of SCR)=(at p 118 of AIR) of that report it is observed:
He, (learned Counsel for the assessee) however, drew our attention to the directions contained in the Income-tax Manual in force for a number of years and contended that the department itself placed on sub-sections (3) and (4) of section 25 the same construction as was placed on them by the senior Judge in the High Court and that was the true construction of these two sub sections This argument in our opinion, has no validity. The department changed its view subsequently and amended the manual The interpretation placed by the department on these sub-sections cannot be considered to be a proper
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 guide in a matter like this when the construction of a statute is involved.
and as such the Circular dated 01 06 1999 would not come to his aid Even otherwise, the said Circular would not indicate that time stipulated under Rule 26-C(1) has been extended beyond the period of six months."
11. From the reading of aforesaid paragraphs in the case of Basavva which are quoted hereinabove, it is very clear that the co-ordinate Bench has clearly recorded a finding that notwithstanding sub Rule (2) of Rule 26-C of the Rules of 1974, the period of limitation for filing Form No.7-A has to be considered as six months from the date of commencement of the Karnataka Land Reforms (Amendment) Rules, 1998. Under the circumstances, the contention of the learned senior counsel for the petitioners that no finding was recorded by this Court in Basavva's case regarding the effect of sub Rule (2) of Rule 26-C of the Rules of 1974 needs to be rejected.
12. Further it is seen that in Basavva's case, this Court after appreciating the arguments addressed by the
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 learned counsels appearing for the parties, having taken into consideration all the relevant provisions of the statute, has rendered the aforesaid finding and therefore it cannot be said that the order passed in Basavva's case is passed sub silentio. Undisputedly the order passed in the case of Basavva has been upheld by the Division Bench of this Court in W.A. No.31262/2013 disposed of on 20.01.2014.
13. In the case of Jhinka Devi, the High Court of Allahbad at paragraph 33 has observed as follows:
"33. In the aforesaid decision in the case of Sultana Begum (supra) the earlier decisions in M. Pentiah v. Muddala Veeramallappa16, Gammon India Ltd. v. Union of India, 17 Mysore SRTC Mirja Khasim Ali Beg, 18 V. Tulasamma v. Sesha Reddy 19 Punjab Beverages (P) Ltd. v. Suresh Chand, 20 CIT v. National Taj Traders at Calcutta Gas Co. (Proprietary) Ltd. v State of WB-22 and J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.F.23 were referred and the principles were summarized as follows:
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"14. This rule of construction which is also spoken of as "ex visceribus actus" helps in avoiding any inconsistency either within a section or between two different sections or provisions of the same statute.
15. On a conspectus of the case-law indicated above, the following principles are clearly discernible (1) It is the duty of the courts to avoid a head- on clash between two sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them.
(2) The provisions of one section of a statute cannot be used to defeat the other provisions unless the court, in spite of its efforts, finds it impossible to effect reconciliation between them.
(3) It has to be borne in mind by all the courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other they should be so interpreted that, if possible, effect should be given to both This is the essence of the rule of "harmonious construction"
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NC: 2023:KHC-D:7450 WP No. 102226 of 2021 (4) The courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber"
is not harmonious construction (5) To harmonise is not to destroy any statutory provision or to render it otiose."
14. The principles laid down in the case of Jhinka Devi has virtually been taken care of by the co-ordinate Bench of this Court in Basavva's case. If the argument addressed by the learned senior counsel for the petitioners is accepted, virtually there could be no period of limitation for filing an application in Form No.7-A and that would not only defeat the very purpose of enacting Section 77-A of the Act of 1961, but it will render Rule 26-C(1) of the Rules of 1974 otiose.
Under these circumstances, I do not find any merit in this writ petition. Accordingly, the same is dismissed.
Sd/-
JUDGE Rsh/Ct:Bck List No.: 1 Sl No.: 18