Karnataka High Court
Hosabayya Nagappa Naik And Ors. vs State Of Karnataka And Ors. on 18 January, 2002
Equivalent citations: ILR2002KAR1342, 2002(3)KARLJ53, 2002 AIR - KANT. H. C. R. 1040, 2002 AIHC 1644 (2002) 3 KANT LJ 53, (2002) 3 KANT LJ 53
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
JUDGMENT
1. In these appeals the appellants seek for setting aside the order dated 20th March, 2001 of the learned Single Judge whereby the learned Single Judge has dismissed Writ Petition Nos. 9477 to 9486 of 2001 which had been preferred by the appellants being aggrieved by the order dated 28-9-2000 passed by the 2nd respondent-Assistant Commissioner rejecting their applications made under Section 77-A of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as 'the Act' for short).
2. The appellants had filed the said applications under Section 77-A of the Act contending that they are the persons actually in possession and cultivation of the lands mentioned in their applications and that their forefathers had been cultivating these lands as tenants, that by ignorance due to illiteracy they had not made applications for conferment of occupancy rights under Section 48-A of the Act, that in view of introduction of Section 77-A by amending Act 23 of 1998 with effect from 1-11-1998 they have been enabled to sustain their rights as they are the persons who have continued to be in possession and cultivation of the same and as such the lands are required to be granted in their favour as per the provisions of Section 77-A of the Act and for such purpose they had filed applications before the Assistant Commissioner who is the officer authorised for this purpose by the State Government. However, the appellants' applications came to be rejected by the Assistant Commissioner holding that on perusal of the records and relevant materials it was found, that the records did not disclose that the applicants were cultivating the lands as tenants as on the appointed date i.e., 1-3-1974, their name did not figure in the revenue records indicating such cultivation and further that the lands had not vested in the State Government as on 1-3-1974 and there were no records to indicate that the lands have so vested with the State Government as on the appointed date and moreover the owners being in possession and cultivation of the lands the requirement of Section 77-A was not satisfied and as such rejected the applications.
3. The applicants being aggrieved had preferred writ petitions and the learned Single Judge has dismissed the writ petitions upholding the order of the Assistant Commissioner being of the view that the materials on record are not indicating that either the petitioners were in possession as tenants on the appointed date or that the lands have vested in the State Government as on that date and as such the Assistant Commissioner did not have occasion to look into the applications any further and the question of further holding an enquiry did not arise. The learned Single Judge also held that the petitioners were not able to demonstrate before the writ Court as to how the finding of fact recorded by the authority was not correct and proper and as such the petitioners had not made out any ground for interference and the writ petitions were dismissed. Being aggrieved the petitioners are before us.
4. Sri Ravivarma Kumar, learned Counsel for the appellants has submitted that the Assistant Commissioner has not followed the due procedure contemplated under Rule 26-C of the Karnataka Land Reforms Rules which is the required procedure to be followed while considering the application in Form 7-A filed under Section 77-A of the Act. In this regard the learned Counsel has drawn the attention of the Court to Sub-rule (5) of Rule 26-C which indicates that a summary enquiry is required to be held for the purposes of an application filed under Section 77-A which is to be in the manner provided under Section 34 of the Karnataka Land Revenue Act, 1964. The learned Counsel while drawing parallel to the proceedings contemplated under Rule 17 to be followed by the Land Tribunal while considering the application under Section 45 of the Act for which an enquiry as under Section 48-A is to be conducted by the Land Tribunal, submits that even the enquiry contemplated to be followed by the Land Tribunal under Rule 17 has to be in the form of a summary enquiry under Section 34 of the Karnataka Land Revenue Act, 1964 and as such submits that to this extent the enquiry whether under Rule 17 or under Rule 26-C is one and the same and as such if the Assistant Commissioner had not conducted an enquiry in such manner the order passed by the Assistant Commissioner becomes bad. The submission of the learned Counsel is that Section 34 of the Act has come in for judicial interpretation in a series of decisions. The scope of an enquiry under Section 34 is more or less on the well-delineated lines as noticed in these judicial pronouncements and anything short of it will vitiate the proceedings and the order becomes bad. The object of drawing the attention of the Court to such enquiry is to point out that the witnesses had not been examined before the Assistant Commissioner and the petitioner-applicants had not been given an opportunity to cross-examine the landlord-respondents. It is the submission of the learned Counsel that no adequate opportunity was given to the appellants by the Assistant Commissioner to adduce evidence before him nor were they allowed to cross-examine the owner-respondents 3 and 4. The learned Single Judge having not taken note of this lacuna in procedure the order passed by the Assistant Commissioner as well as the order of the learned Single Judge is bad, is the submission. The other grounds urged by the learned Counsel for the appellants before the learned Single Judge was that the order of the Assistant Commissioner was a non-speaking order. The learned Counsel has also submitted that the learned Single Judge has misunderstood the main object of Rule 26-C of the Rules in holding that Rule 26-C to the extent it seeks to override the provisions of Section 77-A of the Act is to be ignored as non est in law. Learned Counsel submits that this observation of the learned Single Judge is not in consonance with the settled principles of interpretation and as such the order of the learned Single Judge requires to be set aside, the writ petitions to be allowed and the case be remanded to the Assistant Commissioner for fresh enquiry, so that the appellants get an opportunity to lead evidence, also have an opportunity to cross-examine the respondent-owners and establish their case for grant of land.
5. Smt. Geetha Devi, learned Counsel for the respondents submits that the scope of an enquiry as contemplated under Section 77-A of the Act is not the same as the one envisaged under Section 48-A of the Karnataka Land Reforms Act. The learned Counsel submits that the scope of an enquiry under Section 77-A is a limited one and confined to three aspects namely, (1) as to whether the applicant was, before the appointed dated i.e., prior to 1-3-1974, actually in possession and cultivation of any land and.............. (2) whether the applicant was entitled to register as an occupant of such land; and (3) has continued to be in actual possession and cultivation of such land on 1-11-1998. The learned Counsel for the respondents further submits that the procedure contemplated for an enquiry under Section 48-A is provided for under Rule 17 of the Karnataka Land Reforms Rules which had come in for judicial interpretation through a catena of decisions of this Court. However, the Legislature has made a conscious departure in the matter of providing for an enquiry to be conducted in the context of an application under Section 77-A and by indicating that such enquiry should be in conformity with Rule 26-C of the Rules which provided for making an application in Form 7-A, a distinction from an application to be made in Form 7 for an enquiry under Section 48-A of the Act is made. The learned Counsel submits that when the provisions of Section 77-A and Rule 26-C were introduced, the interpretation which had been placed on an enquiry contemplated under Rule 17 of the Land Reforms Rules was very much within the knowledge of the Legislature and nevertheless the Legislature having made a conscious departure by providing for an enquiry as provided under Rule 26-C, the understanding of the scope of an enquiry under Rule 26-C cannot be and should not be interpreted to be the same as one contemplated under Rule 17 of the Land Reforms Rules.
6. Let us now consider the submissions. Section 77-A of the Act reads as under:
"77-A. Grant of land in certain cases.--(1) Notwithstanding anything contained in this Act, if the Deputy Commissioner, or any other officer authorised by the State Government in this behalf is satisfied after holding such enquiry as he deems fit, that a person,
(i) was, immediately before the First day of March, 1974 in actual possession and cultivation of any land not exceeding one unit, which has vested in the State Government under Section 44; and
(ii) being entitled to be registered as an occupant 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; and
(iii) has continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997.
He may grant the land to such person subject to such restrictions and conditions and in the manner, as may be prescribed.
(2) The provisions of Sub-sections (2-A) and (2-B) of Section 77 and the provisions of Section 78 shall apply mutatis mutandis in respect of the grant of land made under Sub-section (1):
Provided that the land so granted together with the land already held by such person shall not exceed 2 hectares or 'D' Class of land or its equivalent thereto".
This provision has been introduced by the amending Act 23 of Act 1998 with effect from 1-11-1998. The provisions enable a person who was a lawful tenant as on the appointed date and who had failed to make an application under Section 45 of the Act within the stipulated period and as he was a lawful tenant on the appointed date and the land having vested in the State Government and a person having continued to cultivate the land or any portion of the land, to make an application for grant of that land to the Deputy Commissioner or any other officer authorised by the State Government in this behalf and the authority to grant the land to such a person after holding such enquiry as he deems fit and being satisfied on such an enquiry that the person is a person entitled for grant in terms of Section 77-A of the Act. Though, no doubt the section says that "such enquiry as deems fit" is mentioned in the section, such enquiry to be followed by the Deputy Commissioner or the other officer authorised by the State Government in this regard is provided for under Rule 26-C of the Rules which reads as under:
"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 7-A within six 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 cognizance suo motu of cases falling under Section 77-A. (3) The Tahsildar of the concerned taluk shall issue individual notice in Form 9-D and public notice in Form 8-A to the persons interested in the land, the grant of which under Section 77-A in 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 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 I determined in accordance with the formula specified in Part B of Schedule I, he shall be exempted from paying the purchased price".
Now that the Rules provide for the manner of an enquiry to be held for the purposes of grant of land under Section 77-A, the interpretation that can be placed on the words "after holding such enquiry as he deems fit", occurring in Section 77-A(1) of the Act is to be understood as an enquiry as contemplated under Rule 26-C and in no other manner. When once the rules have been framed for the purposes of the procedure as contemplated which is required to fulfill the object of the section in the Act, the procedure can only be that and nothing beyond. To this extent we are unable to agree with the view expressed by the learned Single Judge that Rule 26-C of the Rules to the extent it seeks to over-ride or to control the provisions of Section 77-A of the Act is to be held as non est. We do not find any conflict between the rule and the section for holding of an enquiry as provided for under the Rules as the manner of an enquiry having been provided for under Rule 26-C, a statutory functionary like the Deputy Commissioner or any other officer authorised by the State Government in this regard, does not have the option to hold an enquiry in any manner as he deems fit, but can hold an enquiry only in the manner provided for under Rule 26-C of the Rules. To this extent we uphold the submission of the learned Counsel for the appellants that an enquiry is to be held only as under Rule 26-C and not in any manner that is found to be appropriate to the authority considering the application under Section 77-A. The Statutory Authority does not have any option in this regard but to follow the rules. It is the very object of the rule to eliminate any arbitrary or whimsical exercise of the power in the manner of enquiry to be held by the authority and it should be given full effect and there is no question of holding that the rule is bad or is to any extent in contravention of the provisions of the Act.
7. Having indicated the sweep and the extent of Rule 26-C let us now consider the scope of the Rule. Sub-rule (5) of the Rule is only to be understood in the context of Section 77-A and this is where the main provision of Section 77-A takes control of the situation. The procedure envisaged under Rule 26-C for the purposes of granting of land under Section 77-A of the Act cannot go beyond the purpose for which the section is provided for. As noticed earlier the object of the section is to provide an opportunity to those who might have been truly and lawfully tenants of the land, who were in possession and cultivation and continued to be in possession and cultivation, who might have missed the bus by not making an application within the stipulated period which in fact had come to be extended from time to time and to ensure that their possession and cultivation is continued without being disturbed any further. It is very essential to point out that an application under Section 77-A is not the same as an application under Section 45, and the enquiry contemplated under Section 77-A cannot be the same as an enquiry conducted by the Land Tribunal under Section 48-A of the Act. Whereas on an application under Section 45, enquiry by the Land Tribunal is for grant of conferment of occupancy rights, an application under Section 77-A to the Deputy Commissioner or other officer authorised by the State Government is for the purpose of grant of land. The provisions of Section 77-A is for the purpose of granting of land on satisfaction of certain conditions namely, three conditions mentioned therein. It is to be noticed that conditions (1) and (2) are conditions which should have been satisfied and foregone in respect of the land. It is not an enquiry to ascertain whether a person can be granted land being a tenant as on the appointed date; such an enquiry was within the scope of Section 48-A and not for the purposes of condition (1) of Section 77-A. Here the enquiry is only for a limited purpose to find out the accomplished fact as to whether the person was in actual possession and cultivation of the land on the appointed date. It is not as though the authorities are to hold an enquiry for the purpose of conferment of occupancy rights on the premise that the applicants were lawful tenants on the appointed date and the enquiry was for such purpose. The factum of the applicants being a lawful tenant on the appointed date and was in cultivation as on the appointed date is not to be established now in the present enquiry, but it should have been a concluded fact and the scope of the present enquiry is to let in evidence to satisfy or prove the existence of such a concluded fact. It is for the applicant to show that it was an undisputed fact and on record and that without anything furthermore he was a tenant lawfully in possession and cultivation of the land on the appointed date. The second condition is also of significance and importance in the context of considering the application i.e., the land should have been vested in the State Government as on the appointed date as it was a tenanted land, This again is an event which should have already taken place and as such the evidence that is required to be placed by the applicant to show that this is an event that has taken place already. Obviously it should find a place in some official record, as vesting of the land is in favour of the State Government. In the absence of any such record it again becomes a disputed fact which again is not within the scope of an enquiry under Section 77-A of the Act. If these two conditions are fulfilled then there is the necessity and scope for inquiring with regard to the third condition namely, as to whether the applicant has continued to be in possession and cultivation of such land as on the date of the commencement of the amending Act i.e., 1-11-1998.
8. We say this for yet another reason namely, that the last date for filing of application under Section 45 in Form 7 had been extended from time to time. If the scope of enquiry contemplated under Section 77-A of the Act was to be the same as an enquiry under Section 48-A of the Act then it would have been the simplest thing for the Legislature to extend such date instead of providing for a separate provision as under Section 77-A. On the other hand the Legislature has advisedly provided for an enquiry under the section and two very important distinguishing features have to be noticed. One is that the authority to whom the application under Section 77-A is to be made is the Deputy Commissioner or any other officer authorised by the State Government in this behalf and not the Land Tribunal which is the inquiring authority under Section 48-A of the Act and secondly, that the application in Form 7-A is for grant of land whereas an application under Form 7 of the Rules and filed under Section 45 of the Act was for grant of occupancy rights. Having regard to these distinctions we are of the view that the scope of enquiry under Section 26-C is to be understood for this purpose and not as though it is an enquiry as contemplated under Section 48-A of the Act though for enquiry under either section, Section 48-A or 77-A, it is mentioned to be a summary enquiry as contemplated under Section 34 of the Karnataka Land Revenue Act. Though the procedure mentioned under Rule 17 or 26-C of the Rules is the same procedure as the one contemplated under Section 34 of the Karnataka Land Revenue Act, one should not lose sight of the fact that the enquiry under Rule 26-C is for the purposes of Section 77-A for ascertaining fulfillment of the three conditions enumerated therein. As such the interpretation placed in the context of an enquiry under Rule 17 though is as provided under Section 34 of the Karnataka Land Revenue Act, cannot be very apt in the context of the provisions of Section 77-A and Rule 26-C. There cannot be any dispute about the fundamental requirements of one observing the principles of natural justice, recording the summary of evidence of the witnesses examined, for offering the witness examined in chief for cross-examination by the opposite side, affording sufficient opportunity to each party to present their case and passing of reasoned order ultimately on examination of the evidence on record. But in a situation where there is no scope for observance of these aspects as in the instant case where the documents on record does not indicate anything positive with regard to compliance of the first two conditions enumerated in Section 77-A, the question of offering the respondents for cross-examination or even shutting out the applicants from examining the witnesses for the purposes of proving the existence of the first two conditions does not arise. What is not in existence and is not borne out on record in respect of an accomplished fact and of a past event cannot be made good by means of oral evidence at the time of an enquiry for the purposes of Section 77-A of the Act.
9. The learned Counsel for the appellants has furnished a list of decisions interpreting the provisions of Section 34 of the Karnataka Land Revenue Act and submits that as per Rule 26-C of the Karnataka Land Reforms Rules while disposing of an application under Section 77-A of the Act an enquiry to be conducted is summary in nature and as indicated in Section 3434 of the Karnataka Land Revenue Act and the judicial consensus by understanding the scope of Section 34 of the Karnataka Land Revenue Act has been that the parties should be accorded an opportunity to lead their evidence and the witnesses examined on the other side should be offered for cross-examination. It is submitted that this is the minimum procedure that is required to be followed by the Deputy Commissioner while disposing of an application under Section 77-A of the Act.
10. In our considered view these decisions are not of much assistance to further the case of the appellants for the reasons which we have discussed already and having regard to the facts of the present case.
11. The learned Counsel submits that in the instant case the respondent-landlords did not choose to examine themselves and they did not enter the witness-box. Further, submits that on the other hand, a statement given by the power of attorney holder of the respondents was recorded by the Assistant Commissioner. This was taken to be evidence on behalf of the respondents and in this regard also petitioners were not accorded an opportunity to cross-examine the power of attorney holder of the respondents. In view of such defect in the enquiry and the enquiry being not in conformity with the procedure contemplated under Section 34 of the Land Revenue Act the matter requires to be remanded to the Deputy Commissioner for a proper enquiry.
12. Smt. Geetha Devi, learned Counsel for the respondents submits that the scope of an enquiry as contemplated under Section 77-A of the Act is not the same as the one envisaged under Section 48-A of the Karnataka Land Reforms Act. The learned Counsel submits that the scope of an enquiry under Section 77-A is a limited one and confined to three aspects namely, (1) as to whether the applicant was, before the appointed date i.e., prior to 1-3-1974, actually in possession and cultivation of any land and................; (2) whether the applicant was entitled to register as an occupant of such land; and (3) has continued to be in actual possession and cultivation of such land on 1-11-1998. The learned Counsel for the respondents further submits that the procedure contemplated for an enquiry under Section 48-A is provided for under Rule 17 of the Karnataka Land Reforms Rules which had come in for judicial interpretation through a catena of decisions of this Court. However, the Legislature has made a conscious departure in the matter of providing for an enquiry to be conducted in the context of an application under Section 77-A and by indicating that such enquiry should be in conformity with Rule 26-C of the Rules which provided for making an application in Form 7-A, a distinction from an application to be made in Form 7 for an enquiry under Section 48-A of the Act. The learned Counsel submits that when the provisions of Section 77-A and Rule 26-C were introduced, the interpretation which had been placed on an enquiry contemplated under Rule 17 of the Land Reforms Rules was very much within the knowledge of the Legislature and nevertheless the Legislature having made a conscious departure by providing for an enquiry as provided under Rule 26-C, the understanding of the scope of an enquiry under Rule 26-C cannot be and should not be interpreted to be the same as one contemplated under Rule 17 of the Land Reforms Rules.
13. On a perusal of the order passed by the learned Single Judge we find that the learned Single Judge has also elaborately discussed the factual situation in the present case and has given convincing and cogent reasons as to how the order passed by the Assistant Commissioner is not only correct and in consonance with the legal provisions but is also not one calling for any interference. We fully agree with the findings recorded by the learned Single Judge and we have no hesitation in upholding the order except to the extent of disagreeing with the interpretation sought to be placed on the extent of applicability of Rule 26-C which we have discussed supra.
14. In the light of the interpretation that we have placed on the scope of an enquiry for the purpose of Section 77-A of the Act and the view that we have taken, we hold that there is no scope for remanding the matter to the Assistant Commissioner as sought for by the learned Counsel for the appellants. In fact no useful purpose will be served by such a remand. Accordingly we dismiss the appeals. No costs.