Karnataka High Court
Sri K Thukaram Hegde S/O Ananthayya ... vs Ramesh Kumar Hegde S/O Amba @ Akkamma ... on 15 December, 2011
Author: A.S.Bopanna
Bench: A.S.Bopanna
ER THE # IN THE HIGH COURT OF KARNATAK A, BANGALORE ATED THIS THE 157 DAY OF DECE MBER, 2071 PRESENT - HON'BLE MR. VIKRAMAJIT SEN, ACv PING Ct NEF = JUSTICE THE HON'BLE MR. JUSTIC] ALS. BOP. AN [NA _ T APPEAL NO. 2127 2011 LR) Between - Sri K. Thukararmn Hegde. S/o Ananthayva He éde Aged about 74 years R/o Nidmballl, 'Moodu Tanse. Kalvanapura Post rs : Udupi Taluk & District. ne Appellant (By Sri A Keshava: Bhat. Adv3_ ., Rée. Nidmballi, Moodu Tonse Malvanapura Post "Ud ape Taluk é & District. "The. Au shrorised O Hiicer "Head Quarter \ssistant & C vompeter| | Authority Deputy Commissioner's Officer Udupi Taluk, "Udup ipl /by its Secretary, .. Respondents sarmpat Anand Shetty, Adv. for Ri SrBYV cerappa, AGA for R2} fled u/s 4 of the Karnataka z sel aside the order passed in dated 03.02.2011. . eo es ° Reforms Rules, 1974 (KLR Rules' for short) B o This appeal having been reserved for Orders, coming on lor pronouncement this day. A. S. Bopanna J., pronounced the following: JUDGMENT
The appellant is assailing the order dated 03. 02.2911] passed by the learned Single Judge in Resjew petition. I 5 BIC & ) FO IOR No.271/2009. By the said order, the learned Single Judge wef has reviewed his order "dated 05.12.2008 | passed in W.P.No. 1306/2008 (LR-RES)-and has quashed the order dated 02.01.2008 of the Karnataka Appetlate Tribunal and remanded the" matter to the. Authorised Officer for reconsideration, by. leaving 6pén .all contentions of the parties...
2. The sequence ip which the events have uy nfoided is that the first respondent herein taking advantage of the insertion.of Section 77A to the Karnataka Land Reforms Act) i961. CKLR Act' for short} Aled a: slications in Form-7A a8 provided under Rule 26-C(l) of the Karnataka Land y the applications dated 24.12.1978 and 12.04.1999, the first ~ respondent sought for grant of the lands which were indicated therein. The said lands had been stated ica belong to the predecessors of the appellant herein under sco ee €
4. In the light of the rival contentions and considering the fact that the request for grant is under Section 77A of KLR Act, it is necessary to ke€p- ir: view the nature of right created thereunder ard. ie Scope "of - Bow.
enquiry that is contemplated, This has. alre: eady « cs be en considered by a Division Benen in 4 he casi if Hosabaiyoa Nagappa Naik and Others "US State of Karnataka and Others (2002 {3) Kid 53 @By.. The requirement as articulated therein is that the fand for. which application is made should. be a tenanted laud as. on 01.03.1974 and vested in the. State Government as provided under Section 44 of the KLR Act, The -=pplicant should have been the fenant of such land: AS. on 01.03.1974 but failed to apply 4u ndey Section 4 f Form No.7). However such tenant * should 4 nuinue to remain in possession of the land even AS: on OL] h19 98 (Act No.23 of 1998) when Section 77 A "WAS irserted, . &. In the instant case, the Authorised Officer found that the first respondent herein had satisfied the above "holiced requirement and granted him the land. The Appellate Tribunal however held that the said AAA 5 requirements were not satisfied. The learned Single J udge, at the first instance, while dismissing the writ petition was influenced by the material that the first respondent ina revenue proceedings relating to DLM.LR. New °9/95- OE. hs ad contended that he had perfected his. title. by y adverse ; possession and therefore, he was n ot a tenant: whereby - the land was also not the teran ted land. But in the review proceedings, the learned Single | 2 Judge not i ced that such statement by the first-1 respec ndent re late d to three items of lands only. Since there was ain fot certain other items of property, itv was 18 opined t that tne > first respondent should have his say. beier ee the "Authorised Officer, which resulted in the remand: .
6. Learned. counsel for the appellant strenuously cd "contended that the other items of land are claimed in a : separate: applicat ion dated 12.04.1999 and as such, the second application is not maintainable, Hence, the oa _ et sestion: of remand did not arise. Reliance is placed on the Division Bench decision of this Court in the case of : - Davalsab ~vs- The State of Karnataka by its Secretary ~ for the Department of Revenue and Others LR 2008 Kar 280), to contend that the declaration of law that a Cs 6 second application in Form No.7 is not maintainable would apply even in respect of Form No.7A. The ] earned counsel pa for the respondents would however refer to the decision oF Hosabayya Nagappa Naik (supra]l to point owt the distinction between the two proceedings .< hue. to which the - decision in the case of Davalsab cannot pe a precedent for"
the present nature of proceedings . Having given our thoughtful consideration. we tind that ihere i a marked difference between the Proce ee: ces Luni ier Section 45 and the one under Section. FIA. of Pthe ¥ KLR BE t as explained in the case of Hosabey we 1 Nagappa Naik (supra). both with regard to. the | ial "ure of claim, and the requirements to be satisfied, 20 also. the" nature of enquiry. Further, this Court in "ths case: of -Davatsab, while applying the _ principles of { Order U Rule 2 of CPC had also considered as * to, whether 'Tribun ial can be considered as 'Court' with a reference eta the definition contained in the KLR Act. In the
- proceediiigs under Section 77A of the KLR Act, the application is made to the Deputy Commissioner and enquiry is by the De puty Commissioner or the Officer "authorised b ay the State Government which will nol answer the definition of 'Court'. One other concern expressed in the said case is the mu iiplicity of proceedings. This could L | ee 7 definitely defeat the claim of alleged tenant if the second application is made after the first proceedings have concluded, as an afterthought. But. in the instait case, both the applications were available when the. proceedings were commenced by the Authorised Officer and. the order"
dated 08.03.2006 is a single or der 2 respect" Gl 'all the lands claimed in both the applications. That apart, "Rule 26-C{2) of KLR Rules pre cov ides for the ; Deputy Commissioner or Aulhorised Olfic« er. to take SuO motu cognizance of cases falling undet Séetion 77-A. Hence, the decision relia "upon by 'the eatued counsel for the appellant is not of assistance in the present circumstance.
7. it is. next - conte aded that the remand is not justiied Inasmuch. 3. tikere is a prohibition under Section "5 of the KLR Act apainst creating or continuing tenancy . and 'there * is.no document to establish that the first res SPO mdent v was a tenant prior to the amendment Act. The
-- 'contention on behalf of the respondents is that apart from ~ the.materials relied on to establish tenancy as on the "appointed date, Section 4 of the KLR Act also provides for persons to be the deemed tenants. On this aspect, we see mo merit in the contention of the learned counsel for the Fr ds i Are appellant. Section 5 of KLR Act no doubt prohibits creation and continuation of tenancy from the date of the Amendment Act ie., from 01.03.1974. In the instant Case, the Form No.7A is filed on 24.12.1998 and. 12.04.1999 wherein the appellant has stated that he "has 'been the"
tenant for the last 32 years, which if calculated -would 'be - the year 1966 L.e., prior to the Amendment act, Further, we fail to gather the logic of such contention when the requirement itself is that it should be tenanted land as on 01.03.1974 and sho ds. have 'Vested in the State Government whith would be decided on the fact situation and no persor. would or seuld claim based on a tenancy created thereaiter, ~
8. It is further. contended that the appellant is the "son-in-law of the sister of the first respondent and as such, "the first respondent cannot claim to be a tenant under his sister being a family member. It is his case, on that oo. ground itself, the application would not be maintainable, ~ Fhe Jearned counsel for the respondents apart from placing
-reliance on the decision of the Hon'ble Supreme Court in _the case of S. Venkatappa -~vs- Nerayanappa and Others (2001 (4) Scc 703) and on the decision of the ee Rs, Oe learned Single J udge in the case of Gopal Rao -vs- Land Reforms Tribunal {1979(2) I J id} contended that in the instant case, the undisputed fact is that on 15.12.1966 there has been partition and it is due to this fact. the first respondent was cultivating the Irene' tenant on severance of the status o (family. The decisions _ cited above indicate that thé re is nie Ba r fo F the brother of a grandson to claim tenancy under KLR Act depending on the fact situation. Hence . in our opinion, when the matter is remanded to the Authorised Officer, i is for the Officer to arrive al a hading of fact and . apply the law on the subject.
Q. The learhea counsel for the appellant also made reference to the eonténtion stated to have been taken by the Arstiespondent in the revenue proceedings about the nature of his possession being adverse, which according to him diserttitles the first respondent, to contend that he was os th possession as a tenant. Further, it is contended that the first respondent has got large extent of lands in the
- partition and the grant contemplated under Section 774 js only one unit and as such, the first respondent is not entitled to Ale such application. The learned counsel for and of bis. sister asa > & Ss a the first respondent rebutted such contention by explaining the circumstances However. what is to be noticed in this regard is that all other aspects relating to entitlement for srant or otherwise would a rise. or ny, after the Authorised Offic er decides the prima ry isu' of vesting' :
on the appointed date based on as finding -of "fact, Depending on the same, the other issues, including the conferition noticed above would ; arise. - Herice, if any conclusion is attempted to be reached: at this stage, it would amount to putting the: cart be fore the horse, which we would desist from.doing, For alt the above said Peasons, we see no merit in this ¢ appeal. The a wppeal "is accordingly dismissed. No costs, Taos fF ake fi Tociex: ¥/N