Smt.Chandravathi vs Sri.N.Subban Shiva Rao
2022 Latest Caselaw 12186 Kant

                          1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 27TH DAY OF SEPTEMBER, 2022

                       PRESENT

             THE HON'BLE MR. ALOK ARADHE
                 ACTING CHIEF JUSTICE

                         AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

           WRIT APPEAL NO.915/2021(LR)

BETWEEN:

SMT. CHANDRAVATHI
D/O OOVAMMA
AGED ABOUT 69 YEARS
R/AT MAROLI, PADAMANE
KANKANADY, MANGALURU - 575 002.      ...APPELLANT

(BY SRI VISHWAJITH RAI M, ADV.)

AND:

1.     SRI N. SUBBAN SHIVA RAO
       S/O LATE N. SHIVA RAO
       AGED ABOUT 64 YEARS
       R/AT NO.17
       MILTON STREET, COOKE
       TOWN, BENGALURU - 560 005.

2.     SMT. PREMI ROW
       W/O G.M. ROW
       AGED ABOUT 75 YEARS
       R/AT NO.11, LlOYD ROAD
       COOKE TOWN
       BENGALURU - 560 005.
                         2


3.   SMT. SHIELA P BARUA
     W/O P. BARUVA
     AGED ABOUT 59 YEARS
     R/AT NO.7/8 HIGH STREET
     COOKE TOWN
     BENGALURU - 560 005.

     SMT. TARA N. CHANDAVARKAR
     DEAD BY HER LR'S

4.   SMT. LALITH MULHERKAR
     D/O LATE TARA N CHANDAVARKAR
     AGED ABOUT 70 YEARS.

5.   SMT. ILA CHANDAVARKAR
     D/O LATE TARA N, CHANDAVARKAR
     AGED ABOUT 68 YEARS.

6.   SRI PREMANAND CHANDAVARKAR
     S/O LATE TARA N. CHANDAVARKAR
     AGED ABOUT 65 YEARS

7.   SRI SMIR KRISHNAMURTHI
     GRAND S/O LATE TARA N CHANDAVARKAR
     AGED ABOUT 39 YEARS.

     ALL ARE R/AT "PRANAM, NO 7
     PLACE CROSS ROAD
     BENGALURU - 560 020.

8.   SMT. SHANTHA A GERSAPPA
     W/O A.B. GERSAPPA
     AGED ABOUT 62 YEARS
     R/AT NO 7/8, II CROSS
     PLACE CROSS ROAD
     BENGALURU - 560 020.

9.   M. NAGESH
     S/O LATE OOVAMMA
     AGE MAJOR
     R/AT MAROLI PADE HOUSE
                             3

      (OPP H.O. KARNATAKA BANK)
      KADRI, MANGALURU - 575 002.

10.   LAND TRIBUNAL
      MANGALURU
      REPRESENTED BY ITS CHAIRMAN.

11.   STATE OF KARNATAKA
      REPTD BY THE SECRETARY TO
      GOVERNMENT OF KARNATAKA
      M.S. BUILDIGN
      DR. AMBEDKAR ROAD
      BENGALURU - 560 001.            ...RESPONDENTS

(BY SRI K.R. SUBRAMANYA RAO, ADV., FOR R-1 TO R-8;
(R-2 TO R-8 REP. BY GPA HOLDER OF R-1);
SMT. NAMITHA MAHESH B.G., AGA FOR R-10 & R-1;
R-9 IS SERVED)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE ORDER DATED 16.03.2021 IN
W.P.NO.33277/2021 (LR) PASSED BY THE LEARNED
SINGLE JUDGE OF THIS HON'BLE COURT AND DISMISS
THE SAID WRIT PETITION.

     THIS APPEAL COMING ON FOR              PRELIMINARY
HEARING THIS DAY, VISHWAJITH                SHETTY J.,
DELIVERED THE FOLLOWING:

                    JUDGMENT

This intra court appeal is filed assailing the order

dated 16.03.2021 passed by the learned Single Judge of

this Court in W.P.No.33277/2012.

2. We have heard the learned counsel appearing

for the parties and also perused the material available on

record.

3. Facts leading to filing of this appeal briefly

stated are, the mother of the appellant and her brother

M.Nagesh namely respondent No.9 herein had filed two

separate Form No.7 under the Karnataka Land Reforms

Act, 1961 (for short "the Act, 1961") claiming occupancy

rights of the lands mentioned therein. In Form No.7 filed

by M.Nagesh, he had requested for granting occupancy

rights in respect of land bearing survey No.108/1A while

the mother of the appellant namely Smt. Oovamma had

filed Form No.7 in respect of land bearing survey

No.110/1, 108/1A, 110/6, 6/2C and 6/2A. Since the land

bearing survey No.6/2C and 6/2A were situated in a

different village, the claim in respect of said two items of

land was transferred to another Tribunal while the claim

in respect of other three items of the land which were

situated in Kadri B Village was considered by the

respondent/Tribunal and by order dated 14.10.1980, the

Tribunal had granted occupancy rights of the land

bearing Nos.108-1A1, 108-1A2, 110-6A of Kadri B Village

in favour of the appellant's mother. Subsequently, in the

year 2009, an application was filed by the legal

representatives of late Oovamma contending that the

Tribunal by mistake had granted occupancy rights of the

land bearing survey 108-1A2 and 110-6A instead of

110/1 and accordingly had prayed to rectify the said

mistake committed by the Tribunal. The said application

was opposed by the landlords. The Tribunal by order

dated 23.09.2011 allowed the said application and

directed to carryout necessary correction in the order

dated 14.10.1980 with regard to the survey number of

the property. The said order dated 23.09.2011 was

challenged by the landlords in W.P.No.33277/2012 which

was allowed by the learned Single Judge of this Court

vide order impugned and being aggrieved by the same,

respondent No.4 in the said writ petition who is the

daughter of Oovamma has filed this intra court appeal.

4. Learned counsel for the appellant submits

that the learned Single Judge had erred in observing that

the Tribunal had reviewed its own order dated

14.10.1980 while passing the order dated 23.09.2011.

He submits that the Tribunal has exercised its powers

under Section 48-A(6) of the Act, 1961 and corrected the

clerical or typographical error that had crept in

mentioning wrong survey number. He refers to the Form

No.7 and submits that the land bearing survey No.110/1

was claimed in Form No.7 and the Tribunal had granted

survey No.108/1A2 instead of the said survey number

and it is under this circumstance, a request was made

before the Tribunal to rectify the mistake by mentioning

the correct survey number of the property. He submits

that the Tribunal in order to ascertain the correctness of

the prayer made in the application had held a spot

inspection and found that the legal representatives of late

Oovamma were in possession of the land bearing survey

No.110/1 and accordingly has passed an order in

exercise of its powers under Section 48-A(6) of the Act,

1961 rectifying the mistake committed by it in

mentioning the survey number of the land in its order

dated 14.10.1980. He submits that the Tribunal has

jurisdiction and power to correct its mistake and in

support of his contention, he has relied upon the

judgments reported in the case of Ramachandra

Devasthanam Sawada vs. Subbanna Shetty & Ors.1,

Y.S.Ramachandra Rao vs. State of Karnataka and

Others2 and in the case of Honnamma and Ors. vs.

Nanjundaiah(D) by L.Rs. and Ors3.

5. Per contra, the learned counsel appearing for

the landlords has argued in support of the order passed

by the learned Single Judge and contends that the

application is filed after a lapse of 29 years and

therefore, the Tribunal was not justified in entertaining

the application. He submits that the Tribunal has virtually

reviewed its own order and therefore, the learned Single

Judge was justified in setting aside the said order. He,

accordingly, prays to dismiss the appeal.

6. From the perusal of Form No.7 which is

produced on record at Annexure-B, it is seen that Smt.

Oovamma had made a claim for grant of occupancy

rights of land bearing survey No.110/1 situated at Kadri

ILR 1998 KAR 1588

ILR 2005 KAR 2111

2008 AIR SCW 2787

B Village, Mangaluru Taluk. In addition to the same, she

had also made a claim in respect of the land bearing

survey Nos.108/1A and 110/6 situated in the very same

village. The Tribunal by its order dated 14.10.1980 had

granted occupancy rights of the land bearing survey

No.108-1A1, 108-1A2 and 110-6A in favour of late

Oovamma. Though there was no claim in respect of land

bearing survey No.108/1A2, the Tribunal had granted

occupancy rights of the said land in favour of late

Oovamma. The legal representatives of late Oovamma

later filed an application under Section 48-A(6) of the

Act, 1961 before the Tribunal to rectify the mistake

committed by it in its order dated 14.10.1980 contending

that though the claim in Form No.7 was in respect of land

bearing survey No.110-1, the Tribunal has erroneously

mentioned the survey number and has granted land

bearing survey No.108-1A2 in the order dated

14.10.1980.

7. This Court in the case of Ramachandra

Devasthanam Sawada (supra) has appreciated the

powers of the Tribunal under Section 48-A(6) of the Act,

1961 and held that the land Tribunal has got a

jurisdiction to correct the mistake on its own or on an

application by any of the parties, for the reasons to be

recorded in writing after hearing all the parties. In the

case of Y.S.Ramachandra Rao (supra), this Court held

that the Tribunal has got jurisdiction to grant occupancy

right in respect of a survey number not mentioned in

Form No.7, if by mistake the applicant had mentioned a

different survey number. In the said case, it has been

also held that the Tribunal has power to verify and

ascertain the correctness of the survey number and pass

appropriate orders. In the case of Honnamma (supra),

the Hon'ble Supreme Court has held that the prayer to

amend Form No.7 by correcting survey number or the

extent cannot be rejected merely on the ground of

limitation.

8. In the instant case, after application was filed

under Section 48-A(6) of the Act, 1961, for rectifying the

mistake committed by the Tribunal, the Tribunal has held

a spot inspection to verify the veracity of the prayer

made before it and the material on record would go to

show that the legal representatives of

claimant/Smt.Oovamma were found in the possession of

the land bearing survey No.110/1 and taking this aspect

into consideration, the Tribunal has exercised its power

under Section 48-A(6) of the Act, 1961 and rectified the

mistake committed by it in mentioning the survey

number of the land in its order dated 14.10.1980.

Undisputedly, in Form No.7 a claim was made in respect

of the land bearing survey No.110/1 and not in respect of

land bearing survey No.108/1A2.

9. Section 112B of the Act, 1961 provides with

regard to duties of the Tribunal which includes power to

make necessary verification and hold an enquiry

including local inspection. The Tribunal in exercise of the

said powers had held a local inspection in respect of the

land in question pursuant to the application made by the

legal representatives of late Oovamma seeking

rectification of survey number in the order passed by the

Tribunal and after being satisfied that the legal

representatives of the original claimant Smt. Oovamma

were in possession of land bearing survey No.110/1 had

proceeded to correct the mistake committed by it in

mentioning wrong survey number in its order dated

14.10.1980.

10. The learned Single Judge without

appreciating this aspect of the matter had allowed the

writ petition vide order dated 16.03.2021 on a erroneous

conclusion that the Tribunal had virtually reviewed its

own order dated 14.10.1980.

11. In our considered view the facts and

circumstances of the case would go to show that the

Tribunal in fact has exercised its power under Section 48-

A(6) of the Act, 1961 and rectified the mistake

committed by it and corrected the survey number of the

land in the order passed by it dated 14.10.1980 and it

has not exercised the power of the review as held by the

learned Single Judge. Under the circumstances, we are of

the considered view that the order of the learned Single

Judge cannot be sustained. Accordingly, the following:-

ORDER

i. Writ appeal is allowed.

ii. Order dated 16.03.2021 passed by

the learned Single Judge in

W.P.No.33277/2012 is quashed.

Sd/- ACTING CHIEF JUSTICE

Sd/- JUDGE

NMS