Karnataka High Court
Smt Leela vs Smt Rama Amma on 25 February, 2020
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.14744/2008 (LR)
BETWEEN:
Smt.Leela W/o late Krishna Moolya
Since dead by L.Rs.
1(a) Mrs.Sunanda d/o late Leela
Aged about 49 years
Nekkare, Chikka Mudnur Post,
Puttur taluk, D.K.District.
1(b) Babu Kulal s/o late Leela
Aged about 48 years
Nekkare House, Murva Post,
Manila village, Bantwal taluk,
D.K.District.
1(c) Balachandra Kulal s/o late Leela
Aged about 42 years
Nekkare House, Murva Post,
Manila village, Bantwal taluk,
D.K. District.
... PETITIONERS
(By Smt.Neeraja Karanth, Adv. for Sri.K.Shrihari, Adv.)
AND:
1. Smt.Rama Amma
W/o late Muruva Vishnu Bhat
Aged about 72 years
Since dead by L.Rs.
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1(a) Dayakumari
W/o Vishnu Bhat
D/o M.Vishnu Bhat
Major, Murva House and Post,
Manila village, Bantwala Taluk,
D.K.District.
2. The Asst.Commissioner
Mangalore - 575001.
Authorised officer under Section 77A of
Karnataka Land Reforms Act.
3. The Secretary to Govt. of Karnataka
Revenue Department,
Vidhana Soudha, Dr.Ambedkar Veedhi,
Bangalore - 560 001.
...RESPONDENTS
(By Sri.M.Narayana Bhat, Adv. for Sri.Subba Rao & Co.,
Advocate for R1(a);
Smt.M.C.Nagashree, Additional Government Advocate
for R2 & R3)
This Writ Petition is filed under Articles 226 and
227 of Constitution of India praying to quash the order
dated 08.10.2007 in Appeal No.486/2003 by Karnataka
Appellate Tribunal vide Annexure-A.
This Writ Petition coming on for final hearing this
day, the Court made the following:
ORDER
The petitioner has filed the present writ petition for a writ of certiorari to quash the order dated 08.10.2007 made in Appeal No.486/2003 on the file of -3- Karnataka Appellate Tribunal, Bengaluru (for short 'the KAT') (Heard at Mangaluru Camp).
2. It is the case of the petitioner that originally the father-in-law of the petitioner namely Manku Moolya was in possession and cultivation of the land owned by the 1st respondent's husband as a 'tenant' since very long time. After the demise of said Manku Moolya, his son, the husband of the petitioner, applied for grant of occupancy rights in respect of the lands in Survey Nos.53/2P2, 57/2 and 60/1 measuring 32 cents, 26 cents and 1 acre 45 cents respectively in Form No.7A under Section 77A of the Karnataka Land Reforms Act, 1961. The Assistant Commissioner who is the competent authority under Section 77A of the Karnataka Land Reforms Act, 1961, conducted spot inspection and enquiry. In view of the report submitted by the revenue authorities, the Assistant Commissioner granted occupancy rights in favour of the petitioner's husband vide order dated 26.02.2003 in the proceedings No.TNC/18/99-00, aggrieved by the said -4- order, the 1st respondent filed an appeal before the KAT in Appeal No.486/2003. The KAT considering all the materials on record, by the impugned order dated 08.10.2007 allowed the appeal and set aside the order passed by the Assistant Commissioner. Hence, the present writ petition is filed.
3. I have heard the learned counsel for both the parties to the lis.
4. Smt.Neeraja Karanth, learned counsel for the petitioners contended that the impugned order passed by the KAT by setting aside the order passed by the Assistant Commissioner exercising power under Section 77A of the Karnataka Land Reforms Act cannot be sustained in law. She further contended that the KAT proceeded to allow the appeal only on the basis of the judgment of the Division Bench of this Court in the case of Hosabayya Nagappa Naik & Others vs. State of Karnataka (ILR 2002 KAR 1342), which has no application to the facts of the present case. -5-
5. She further contended that the competent authority to grant occupancy rights is the Assistant commissioner, who after considering the entire material on record came to the conclusion that as on the appointed date i.e., 01.03.1974, the petitioner's husband was the tenant in respect of the lands in question and accordingly granted the occupancy rights and the same ought not to have been interfered with by the KAT by passing the impugned order. She further contended that the KAT only in one paragraph has recorded a finding that there is nothing on record to show that the lands in question were tenanted land and that no oral and documentary evidence were adduced by both the parties. Therefore she sought to allow the writ petition.
6. Per contra, Sri.Narayana Bhat learned counsel for the 1st respondent - landlord sought to justify the impugned order passed by the KAT and contended that the petitioner has not produced any material documents before the competent authority to prove that the -6- petitioner's husband was a tenant as on 01.03.1974 in respect of the properties in question. In the absence of any material documents produced, the Assistant Commissioner was not justified in granting occupancy rights in favour of the petitioner. He further contended that the landlord filed a suit in O.S.No. 80/1994 for permanent injunction in respect of Sy.No.60/1 measuring 1 acre 45 cents. The said suit came to be decreed on 20.01.1998 holding that the 1st respondent was in possession of the property in question. Therefore, the KAT is justified in reversing the order passed by the Assistant Commissioner.
7. He further contended that the KAT considering the dictum of this Court in the aforesaid Division Bench judgment, held that the petitioner's husband has not proved that he was the tenant as on 01.03.1974 and the lands having vested with the State Government, the same cannot be interfered with by this Court under Article 227 of the Constitution of India. -7-
8. He further contended that in view of the dictum of the learned single Judge of this Court in the case of B.Lakshmi Janardhana Bhat vs. Special Officer, Land Tribunal, Udupi, reported in (2013)1 KLJ 171, contended that, in the said case this Court has held that, 'the tenant should not have made any claim earlier as per the provisions of Section 77 of the Karnataka Land Reforms Act, 1961, and if, in the claim made earlier, he has left out some of the properties, subsequently, he is not entitled to claim those properties under Form 7A under Section 77A of the said Act and the same is impermissible'. Therefore, the Order passed by the Karnataka Appellate Tribunal setting aside the Order passed by the Assistant Commissioner is justifiable.
9. He further contended that the Division Bench of this Court, in the case of Lokayya Poojary and another vs. State of Karnataka and others reported in ILR 2012 KAR 4345 held that, 'vesting of the land with the State Government as on the date of application -8- means it should be reflected in RTC as government land, otherwise, the very application is not maintainable'. Therefore, he sought to dismiss the writ petition.
10. The learned Additional Government Advocate sought to justify the order passed by the KAT and fairly submits that both the Assistant Commissioner and KAT while passing the impugned orders have considered the pleadings and documents produced by the parties. The said submission is placed on record.
11. Having heard the learned counsel for the parties, it is the case of the petitioner that her father-in- law Manku Moolya was in possession and cultivating the lands in question as a tenant under the 1st respondent's husband since long time. After his death, the petitioner's husband Krishna Moolya had applied Form No.7A for grant of occupancy rights under Section 77A of the Karnataka Land Reforms (amended) Act, 1961.
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12. The present 1st respondent's husband has filed objections before the Assistant Commissioner and contended that the lands in question are 'punja' lands and the petitioner was not a tenant in respect of the lands in question and there was a suit pending between the parties in O.S.No.80/94 and the Civil Court declared that the petitioner was not in possession of Sy.No.60/1. Therefore, sought to reject the application.
13. The Assistant Commissioner without considering the pleadings of the parties and documents only in one paragraph has held that the applicant has constructed a house and it is stated that the name of the application is mentioned in the RTC extracts and therefore, proceeded to grant occupancy rights in favour of the present petitioner. There is absolutely no application of mind in the order passed by the Assistant Commissioner. As such, the statements were not recorded and the objections filed by the landlord and the contention raised by the tenant were not at all
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considered by the Assistant Commissioner, which is not a speaking order.
14. The said order was challenged by the landlord before the KAT in Appeal No.486/2003. The KAT allowed the appeal mainly on the reasons recorded at paragraph-8 is held as under:-
"8. In the instant case, after having gone through the records, it is noted that there is nothing on record to show that the lands in question were tenanted lands as on the appointed date i.e. 1.3.1974. Moreover, the lands in question have not been vested with the Government. For this reason, we are of the opinion that it was not correct for the Assistant Commissioner to have granted the land to the R-1 u/s.77-A of the Act. Hence, we answer the above point accordingly".
15. Though the learned counsel for respondent No.1 relied upon the dictum of the learned single Judge of this Court in the case of B.Lakshmi Janardhana Bhat
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stated supra, that the tenant should not have made any claim earlier if in the claim made earlier he is not entitled to claim those properties under Form 7A, there is no quarrel with regard to the said dictum. Admittedly, in the present case, there is no pleadings to the effect that the tenant had made claim in respect of the properties earlier and there is no findings either by the Assistant Commissioner or the Karnataka Appellate Tribunal. Therefore, the said dictum relied upon by the learned counsel has no application to the facts and circumstances of the present case.
16. The Division Bench of this Court, in the case of Lokayya Poojary supra, while considering the provisions of Section 77A of the Karnataka Land Reforms (Amended) Act, at paragraph 18, held that the tenant should not have made any claim earlier as per the provisions of Section 77 of the Karnataka Land Reforms Act, 1961, and if, in the claim made earlier, he has left out some of the properties, subsequently, he is not entitled to claim those properties under Form 7A
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under Section 77A of the said Act and the same is impermissible. Therefore, in a proceedings under Section 77-A, the enquiry that was contemplated under Section 48-A is excluded. This is a provision that enables a person who is in occupation of a land, of which he was a tenant and continues to be in possession as a tenant to apply for grant of such land, if he had failed to make an application for grant of occupancy rights within the time stipulated. Such a person is given an opportunity to make an application for grant of land provided he continues to cultivate the land and he was not holding land in 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 disputed, then, Section 77-A has no
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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 in dispute, is a condition precedent for application of Section 77-A"
17. These are all matters which are not at all considered either by the Assistant Commissioner under Section 77-A or the Karnataka Appellate Tribunal while allowing the appeal. Both the orders passed by the Assistant Commissioner and the Karnataka Appellate Tribunal are not speaking orders. If the KAT was not satisfied with the records to show that the petitioner's husband was not a tenant under the 1st respondent's husband as on the appointed date i.e., 01.02.1974, it ought to have recorded the reasons. But KAT allowed the appeal filed by the respondent-landlord in three lines order which is impermissible in law. When the rights of the parties are involved while considering the provisions of Section 77-A of the Karnataka Land Reforms Act for grant of occupancy rights, the Assistant
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Commissioner and the KAT ought to have considered the pleadings and material evidence on record before passing the orders in exercise of powers under the provisions of Section 77A of the Karnataka Land Reforms (Amendment) Act.
18. On a careful reading of both the orders passed by the Assistant Commissioner as well as the KAT, it is clear that both the Assistant Commissioner and KAT have not assigned any reason for granting the occupancy rights and setting the said order of the Assistant Commissioner by the KAT. In the view of the aforesaid reasons, the matter requires reconsideration by the competent authority i.e., the Assistant Commissioner strictly in accordance with the provisions of Section 77A of the Karnataka Land Reforms Act and in accordance with law.
19. For the reasons stated above, I pass the following order:-
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(i) The writ petition is allowed. (ii) The impugned order dated 08.10.2003
passed by the KAT in Appeal No.486/2003 and the order dated 26.02.2003 passed by the Assistant Commissioner in TNC/18/99- 00 are hereby quashed.
(iii) The matter is remanded back to the Assistant Commissioner for consideration afresh by considering the objections and documents to be filed by the landlord and the entire pleadings and material evidence to be produced by the tenant and the material on record and pass appropriate orders in accordance with law within a period of six months from the date of receipt of a copy of this order.
(iv) All the contentions of both the parties are kept open to be urged before the Assistant Commissioner.
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(v) Both the parties are hereby directed to appear before the Assistant Commissioner on 16.03.2020.
Ordered accordingly.
Sd/-
JUDGE Srl kcm