Baramappa S/O Ningappa ... vs Gurusiddappa Adopted Son Of ...
2021 Latest Caselaw 781 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 13TH DAY OF JANUARY 2021

                         BEFORE

     THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

             WRIT PETITION NO.49452/2004 (LR)

BETWEEN:

1.    BARAMAPPA S/O NINGAPPA KALAGOUDAR
      AGE 60 YEARS, R/O MUGUDA,
      TALUK & DIST DHARWAD

2.    BASAPPA S/O NINGAPPA KALAGOUDAR
      AGE 57 YEARS, R/O MUGUDA
      TALUK & DIST DHARWAD

3.    SMT. NAGAVVA W/O MALLAPPA KALAGOUDAR
      AGE 50 YEARS, R/O MUGUDA
      TALUK & DIST DHARWAD

4.    KALLAPPA S/O NINGAPPA KALAGOUDAR
      AGE 47 YEARS, R/O MUGUDA
      TALUK & DIST DHARWAD

5.    SHEKAPPA S/O NINGAPPA KALAGOUDAR
      AGE 44 YEARS, R/O MUGUDA
      TALUK & DIST DHARWAD
                                         .....PETITIONERS

(BY SRI.J S SHETTY, ADVOCATE)

AND

1.    GURUSIDDAPPA ADOPTED SON OF
      BASAPPA KALAGOUDAR
      AGE 63 YEARS,
      RETIRED ASSISTANT COMMERCIAL TAX OFFICER
                             2




     R/O NEAR TAVARGERI NURSING HOME,
     DHARWAD-580008

2.   RAVI S/O GURUSIDDAPPA KALEGOUDAR
     AGE 36 YEARS,
     R/O NEAR TAVARGERI NURSING HOME,
     DHARWAD-580008

3.   RAJSHEKAR
     S/O GURUSIDDAPPA KALEGOUDAR
     AGE 32 YEARS,
     R/O NEAR TAVARGERI NURSING HOME,
     DHARWAD-580008

4.   ASSISTANT COMMISSIONER
     AND COMPETENT AUTHORITY
     DHARWAD.
                                          ....RESPONDENTS

(BY SRI.S.N.BANAKAR, ADV. FOR R2 AND R3
  SRI VINAYAK KULKARNI, AGA FOR R4
  PETITION DISMISSED AGAINST R1)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT OR DIRECTION IN THE NATURE
OF WRIT TO QUASH THE ORDER DATED 24.06.2003, PASSED BY
THE FOURTH RESPONDENT IN K.L.R MUGUDA/7A/S.R.2/99-2000,
THE COPY OF WHICH HAS BEEN PRODUCED AT ANNEXURE-A, AND
ALOS THE ORDER DATED 19.11.2004, IN APPEAL NO.980/2003,
PASSED    BY  THE    KARNATAKA   APPELLATE   TRIBUNAL,  AT
BENGALURU, THE COPY OF WHICH HAS BEEN PRODUCED
HEREWITH AT ANNEXURE-B ANY OTHER RELIEF WHICH THIS
COURT    DEEMS    FIT  TO   GRANT   IN   THE   FACTS   AND
CIRCUMSTANCES OF THE CASE, MAY KINDLY BE GRANTED IN
FAVOUR OF THE PETITIONER ALONG WITH COST OF THIS WRIT
PETITION IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS PETITION COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
                                   3




                               ORDER

The present writ petition is filed by petitioners praying to

issue writ of certiorari praying to quash the order dated 24.06.2003

passed by the fourth respondent in Muguda/7A/S.R.2/99-2000, and

also the order dated 19.11.2004 in appeal No.980/2003 passed by

the Karnataka Appellate Tribunal (for short 'KAT').

2. It is stated that the petitioners are the owners and they

are in possession and cultivation of the land bearing Sy.No.140/3,

measuring 1 acres 20 guntas situated at Muguda Village, Taluk and

District Dharwad. It is further case of the petitioners that their

name in the record of rights (ROR) was standing from the year

1967-68 till 2003-04 and the said land is not vested with the State

Government. When this being the fact, the respondent Nos.1 to 3

have filed an application in Form No.7A (Annexure-J) claiming grant

of land under Section 77A of the Amended Karnataka Land Reforms

Act, (for short ' the Act') before the competent Authority Cum

Assistant Commissioner, Dharwad. It is further stated that the

Assistant Commissioner without holding proper enquiry and without

giving the proper opportunity of hearing, granted the lands in

favour of respondent No.2 and rejected the claim of respondent

Nos.1 and 3. Challenging the said granting of lands in favour of

respondent No.2, the petitioners have preferred an appeal before

the KAT in 980/2003 challenging the order passed by respondent

No.4, granting lands in favour of respondent No.2. The KAT

dismissed the appeal filed by the petitioners confirming the order

passed by the Assistant Commissioner. Being aggrieved the

owner/petitioners have filed the present writ petition challenging

the said two orders.

3. Learned counsel for the petitioners vehemently

submitted that the land in question is not vested with the State

Government and unless it is vested with the State Government the

application filed in Form No.7A cannot be entertained and the said

application is not maintainable as per the conditions enumerated in

Section 77A of the Act. Further submitted that as on the appointed

date i.e. on 01.03.1974, the respondent No.2 was not in possession

and was not cultivating the land in question. Therefore, as per

Section 77A of the Act, the lands granted in favour of respondent

No.2 is not correct. Further submitted that as per Annexure-C,

ROR, it is proved that the petitioners are owners and they are in

actual possession and cultivating the lands, which show that they

are in possession from the year 1967-68 till 2003-04 and at any

point of time the respondent Nos.1 to 3 were not in possession and

cultivating the lands. Therefore, submitted that the Assistant

Commissioner-respondent No.4 has not appreciated the scope and

ambit of Section 77A of the Act and wrongly granted occupancy

rights in favour of respondent No.2. Further submitted that

respondent No.4, only on the basis of the report of Revenue

Inspector, has granted lands in favour of respondent No.2. As per

the proceedings and as per Annexure-U, the respondent No.4 has

not ordered the Revenue Inspector for making spot inspection of

the land. Therefore submitted that there is no coherence in the

proceedings conducted as per Annexure-U and order passed for

granting of lands impugned herein. Therefore the respondent No.2

has failed to prove the conditions enumerated for seeking grant of

lands as per Section 77A of the Act but the respondent No.4 has

wrongly granted lands in favour of respondent No.2, which is

accepted by the KAT without ascertaining the material facts on

record. Further submitted that the observations made by the KAT

in the impugned order were pertaining to respondent No.3 and the

application filed by respondent No.2 has been allowed by

respondent No.4 and hence the observations made by the KAT is

also not correct and perverse in nature. Therefore, on all these

grounds the learned counsel prays to allow the appeal by setting

aside the impugned orders.

4. On the other hand, learned counsel appearing for

respondent Nos.2 and 3 vehemently contended that the respondent

No.4, after ascertaining the fact that the land is tenanted land

vested with the State Government and that respondent No.2 was in

cultivation and possession as on appointed date 01.03.1974 and

therefore considering all these facts has granted lands in favour of

respondent No.2. Further submitted that the respondent No.4

being the Assistant Commissioner has vested with the power made

spot inspection of the land and accordingly found that respondent

No.2 is in possession and has been cultivating the land having

possession over the land even prior to the appointed date

01.03.1974 and that possession was continued till the date of filing

the application. Therefore, after considering all these facts as

borne out from the records, has rightly granted lands in favour of

respondent No.2, which is confirmed by the KAT after perusing the

records. Therefore, submitted that the writ petition is being devoid

of merits. Hence, prays to dismiss the petition.

5. As per Section 77A of the Act, certain conditions are

enumerated seeking grant of land by filing application in Form

No.7A, before the Competent Officer. The land must be tenanted

which is in possession and cultivation of the tenant as on the

appointed date 01.03.1974 and the land must have been vested

with the State Government before granting lands as per Section

77A of the Act. In this regard I place the reliance of the Division

Bench of this Court in the case of S.C.Chandrappa Vs. State of

Karnataka & Others reported in 2005(4) Kar.L.J.453, wherein it

is held at paragraph Nos.4 and 5 as under:

4. Having heard the learned Counsels for the parties, the question that arises for our decision is whether the opinion of the learned Single Judge based on a judgment of a Co-ordinate Bench of this Court in the case of Hosabayya Nagappa Naik can be faulted on any permissible ground of judicial review under

Article 226. At the threshold, it needs to be noticed that Section 77-A was inserted into the Act by Karnataka Land Reforms (Amendment) Act, 1997 (Act 23 of 1998), with effect from 1-11-1998. The provision of Section 77-A in the context of the statute should be regarded as an extraordinary provision which is intended to help only those tenants who could not make application in Form 7 under Section 45 read with Section 48 of the Act within stipulated time but who have prima facie evidence to show that they were in actual possession and personal cultivation, of the lands concerned as tenants as on the appointed date, i.e., on 1-3-1974 and that from that date onwards, they have been in continuouce possession of such lands even on the date when amendment Act 23 of 1998 came into force. Section 77-A is not and cannot be regarded as a substitute for Section 45 read with Section 48 of the Act which provision enables a tenant to make an application for grant of occupancy rights. Sub-section (1) of Section 77-A reads as follows.--

"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 within one year from the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997 grant the land to such person subject to such restrictions and conditions and in the manner, as may be prescribed".

5. It is quite clear that an applicant under Section 77-A in order to seek grant of land concerned should necessarily establish three conditions specified in Clauses (i), (ii) and (iii) of Sub-section (1). This position is not contested by Sri Krishna Bhat, learned Counsel for the appellant. What he, however, asserts is that Sub-section (1) requires that the authorised officer, the Assistant Commissioner shall hold an enquiry which would enable an applicant under Section 77-A of the Act to prove the three conditions prescribed in Clauses (i), (ii) and (iii) and in the instant case, such enquiry was not conducted by the Assistant Commissioner. It is true that the Assistant Commissioner did not conduct the enquiry in the way the Land Tribunal conducts an enquiry in case of Form 7 declarations, but, the Assistant Commissioner and the Tribunal were guided by the judgment of this Court in the case of Hosabayya Nagappa Naik. In that case, the nature and scope of the enquiry envisaged in Sub-section (1) of Section 77-A of Act fell for decision-making. A Co-ordinate Bench of this Court, having considered the provisions of Section 77-A of the Act, in paragraph 7, held thus:

"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 Rules 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 right 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 that 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 is again becomes a disputed fact which again is not without 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".

6. In the present case upon considering Annexure-C, ROR

which is from the year 1967-68 till 2003-04, the petitioners and

their father are shown as owners of the land at column No.9 and

cultivators in column No.12, that they are cultivating the lands.

Even on the appointed date 01.03.1974 and for the relevant year

1973-74 name of the petitioners are continued being owner and

cultivator of the land. There is no proof by the respondent Nos.1 to

3 that they are in possession and cultivating the land as on the

appointed date 01.03.1974. Upon considering the order passed by

the respondent No.4, he has rejected the application filed insofar

respondent Nos.1 and 3 are concerned but allowed the application

filed by the respondent No.2 granting lands in favour of respondent

No.2. Respondent No.4 had observed in his order that he has

directed the Revenue Inspector to make spot inspection of the land

and upon the report submitted by the Revenue Inspector, it is

found that the respondent No.2 is in possession over the land about

20 years. Therefore, by assigning this reason has granted lands in

favour of respondent No.2. Upon perusing Annexure-U, which is

order sheet maintained in the said proceedings maintained by the

respondent No.4 and considering the order of grant passed by the

respondent No.4 in favour of respondent No.2, the respondent No.4

has not directed the Revenue Inspector to make spot inspection of

the land but the respondent No.4 has observed in the impugned

order that he has directed the Revenue Inspector to make spot

inspection of the land by mentioning the same in the order granted

lands in favour of respondent No.2, but the observation in the

impugned order that he had directed spot inspection is not reflected

in the order sheet at Annexure-U. Therefore, the observation is

perverse as there is mismatch between the proceedings recorded in

the order sheet at Annexure-U and observations in the impugned

order at Annexure-A. Therefore, the respondent No.2 has not

proved the fact that he was cultivating the land as on 01.03.1974

and continued possession and cultivation till 01.11.1998 on which

dated Section 77-A has come into force. Therefore, the respondent

No.2 is not entitled for grant of land as per Section 77-A of the Act.

7. Further the respondent Nos.2 and 3 have failed to prove

that the land is vested with the State Government and as on the

appointed date 01.03.1974 the tenanted lands have been vested

with the State Government but in the present case there is no

record to show that the land is vested with the State Government.

Annexure-C shows that the land is not tenanted land but which is in

the ownership of petitioners' father and petitioners. Therefore,

unless the land is vested with the State Government, grant of lands

cannot be made as per Section 77A of the Act as it is condition

precedent for considering the application in Form No.7A as per the

principles of law laid down by the Division Bench of this Court

stated supra.

8. Further upon considering the order passed by the KAT

produced at Annexure-B, there is observation made by the KAT that

the cultivation of respondent No.2 is clear from the records that

respondent No.2 had paid electricity bills of the pump set installed

on the land and also loan obtained from Karnataka State Co-

operative Agriculture & Rural Development Bank Ltd., which is

found at page Nos.37 and 39 of the TCR and upon perusing the said

record placed by the learned AGA which shows that they pertain to

respondent No.3 but not belongs to respondent No.2. Therefore, in

this regard the findings given by the KAT while confirming the order

passed by respondent No.4 is even proved to be perverse as

contrary to the evidence on record. Further the said records at

page Nos.37 and 39 as observed by the KAT from the TCR which is

for the period from 1998 and 2007 respectively, these documents

fails to prove that respondent No.2 was cultivating and is in

possession over the land as on the appointed date 01.03.1974.

These documents at page Nos.37 and 39 of TCR are pertaining to

respondent No.3, but not respondent No.2. Therefore, the

condition precedent for seeking grant of land is not proved by

respondent No.2, from the records as it is relied.

9. Further the respondent No.2 has not produced any

documents to show that as on the appointed date 01.03.1974, he

was in possession and cultivating the land. It is the contention

taken by the petitioners at paragraph No.4 of the writ petition that

respondent No.1 is Government Servant and respondent No.2 is

Businessman who is running automobile shop at Kittur of Belagavi

District and even though the petitioners have not produced any

documents but this fact has not been disputed by the counsel for

the respondent Nos.2 and 3. The respondent No.1 is father and

respondent Nos.2 and 3 are sons of respondent No.1. Further more,

upon considering the age of respondent No.2 as he was 36 year old

while filing writ petition in the year 2004, therefore, as on

01.03.1974 the respondent No.2 was hardly aged about 5 or 6

years. On these circumstances it cannot be inferred that

respondent No.2 was cultivating the land and is in possession as on

the appointed date 01.03.1974. Therefore, for all the reasons

discussed above, the order passed by the respondent No.4 while

granting lands in favour of respondent No.2 which is confirmed by

the KAT as per Annexure-B is not correct as being perverse and

they are passed in the absence of any evidence proving to claim for

grant of lands. Therefore, the impugned orders at Annexure-A and

B are not sustainable in law for the reasons above discussed and

hence they are liable to be set aside. Accordingly, the impugned

order dated 24.06.2003 passed by the respondent No.4 in K.L.R.

Muguda/7A/S.R.2/99-2000, produced at Annexure-A and also the

order dated 19.11.2004 in appeal No.980/2003 passed by the

Karnataka Appellate Tribunal, Bengaluru are hereby quashed.

10. Hence, I pass the following:

ORDER

The petition is allowed.

The impugned order dated 24.06.2003 passed by the

respondent No.4 in K.L.R. Muguda/7A/S.R.2/99-2000, produced at

Annexure-A and also the order dated 19.11.2004 in appeal

No.980/2003 passed by the Karnataka Appellate Tribunal,

Bengaluru are hereby quashed.

Rule issued is made absolute.

Sd/-

JUDGE

RM