Karnataka High Court
Sri Darnappa Poojary vs Sri M P Jeevandhar Kumar on 5 August, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO. 45129 OF 2014 (LR)
BETWEEN:
SRI. DARNAPPA POOJARY
S/O LATE PIJINA POOJARY
AGED ABOUT 55 YEARS,
R/AT KANJIKODI HOUSE,
POST BANTWAL KASABA,
BUNTWAL TALUK
DAKSHINA KANNADA - 574 157.
...PETITIONER
(BY SRI. ROHIT URS D., ADVOCATE)
AND:
1. SRI. M.P. JEEVANDHAR KUMAR
SINCE DECEASED, REP. BY LR'S.
1(a). MRS. M. SUMANAJI
W/O M.P. JEEVANDHAR KUMAR
AGED ABOUT 79 YEARS.
Digitally signed by
ARUNKUMAR M S 1(b). MRS. AMRITHA M.
Location: High
Court of Karnataka D/O M.P. JEEVANDHAR KUMAR
AGED ABOUT 59 YEARS.
1(c). MR. SUDESH KUMAR M.
S/O M.P. JEEVANDHAR KUMAR
AGED ABOUT 59 YEARS.
1(d). MRS. SUCHETHA SUDHAKAR KAPU
D/O M.P. JEEVANDHAR KUMAR
AGED ABOUT 55 YEARS.
1(e). MR. ROHIT KUMAR M.
S/O M.P. JEEVANDHAR KUMAR
AGED ABOUT 52 YEARS.
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RESPONDENTS 1(a) to 1(e) ARE
R/AT NO.7/207(4), DHATHRI,
PATNA SHETTY NAGARA,
BETKERI, MOODABIDRI,
MANGALURU TALUK,
DAKSHINA KANNADA - 574 227.
2. THE AUTHORIZED OFFICER
LAND REFORMS AND THE
ASSISTANT COMMISSIONER,
BANTWAL TALUK,
DAKSHINA KANNADA DISTRICT.
...RESPONDENTS
(BY SRI.K. CHANDRANATHA ARIGA, ADVOCATE FOR R1(a) TO 1(e);
SRI. RAJENDRA K.R., AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 03RD APRIL, 2014 PASSED IN
APPEAL NO.958/2006 BY THE KARNATAKA APPELLATE
TRIBUNAL, BENGALURU VIDE ANNEXURE-A; AND ETC.
THIS WRIT PETITION HAVING BEEN RESERVED FOR
ORDERS, COMING FOR PRONOUNCEMENT THIS DAY, E.S.
INDIRESH J., MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
CAV ORDER
(PER: HON'BLE MR. JUSTICE E.S. INDIRESH)
This writ petition is filed by the petitioner assailing the
order dated 03rd April, 2014 (Annexure-A) passed in Appeal
No.958/2006 by the Karnataka Appellate Tribunal, Bengaluru
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(for short, hereinafter referred to as 'Tribunal'), allowing the
appeal preferred by the respondents.
2. The relevant facts for adjudication of this writ petition
are that the father of the petitioner-Pijina Poojary was
cultivating the land bearing Survey No.173/6 measuring 2.82
acres and Survey No.77/7 measuring 22 cents of Bantwal
Kasaba Village, Bantwal Taluk as a tenant. In this regard, the
petitioner had produced RTC extracts to substantiate that the
father of the petitioner was in cultivation of the land in question
as per Annexures 'B' to 'E'. It is also stated that, during the
year 1982 and 1989, entries in the RTC extracts were changed
in respect of the land in question in favour of the landlord.
3. It is the case of the petitioner that, after the death of
his father, the petitioner had filed Form No.7A claiming
occupancy right in respect of the subject land as per Annexure-
F and pursuant to the same, the competent authorities have
visited the spot and recorded the statement of parties and
Mahazar has been drawn as per Annexure-G. Thereafter, the
respondent No.2, having satisfied with the cultivation said to
have been made by the petitioner, has passed order dated 03rd
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August, 2006 (Annexure-H). It is further stated in the petition
that the respondent-land lord, being aggrieved by the
conferment of occupancy right in respect of the subject land in
favour of the petitioner, has filed Appeal No.958/2006 before
the Tribunal. The Tribunal, after considering the material on
record, allowed the appeal and as such, set-aside the order
dated 03rd August, 2006 (Annexure-A) passed by the
respondent No.2. Being aggrieved by the order passed by the
Tribunal in Appeal No.958/2006 dated 03rd April, 2014, the
petitioner has presented this writ petition.
4. Heard Sri. I. Tharanath Poojary, learned Senior
Counsel on behalf of Sri. Rohit Urs D., appearing for the
petitioner; Sri. K. Chandranatha Ariga, learned counsel
appearing for respondents 1(a) to 1(e); and Sri. Rajendra K.R.,
learned Additional Government Advocate appearing for
respondent No.2.
5. Sri. I. Tharanath Poojary, learned Senior Counsel
appearing for the petitioner contended that the father of the
petitioner was cultivating the land for more than five decades
and after the promulgation of the amendment made to the
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Karnataka Land Reforms Act during the year 1974, the land
was vested with the Government and the petitioner has filed
application in Form No.7A (Annexure-F), seeking occupancy
rights. He further contended that, the respondent No.2-
Authority, after conducting detailed enquiry in the matter and
having been conducted the spot inspection, had rightly come to
the conclusion that the father of the petitioner was cultivating
the land in question and as such, occupancy right has been
granted in favour of the petitioner. He further contended that,
order dated 03rd August, 2006 (Annexure-H) passed by the
respondent No.2, is only after hearing the respondent-landlord
and therefore, the finding recorded by the Tribunal at
paragraph 7 is contrary to the records. In this regard, learned
Senior Counsel Sri. I. Tharanath Poojary, appearing for the
petitioner placing reliance on the Full Bench judgment of this
Court in the case of LOKAYYA POOJARY AND ANOTHER vs.
STATE OF KARNATAKA AND OTHERS reported in ILR 2012
KAR 4345 contended that the impugned order passed by the
Tribunal is contrary to the judgment of this Court in the
aforementioned case. He further contended that, after the land
is vested with the Government, the tenant has to deal with the
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Government and not with the Landlord and the said aspect has
been considered by the respondent No.2 at Annexure-H and
same was erroneously interfered with by the Tribunal. Hence,
he sought for interference of this Court.
6. Per contra, Sri. K. Chandranatha Ariga, learned
counsel appearing for the respondents 1(a) to 1(e) sought to
justify the impugned order dated 03rd April, 2014 (Annexure-A)
passed by the Tribunal and contended that the Tribunal, had
rightly interfered with the order passed by the respondent No.2
and the petitioner herein has not produced any material before
the respondent-Authorities to establish that he is in possession
of the subject land. Accordingly, he sought for dismissal of the
writ petition.
7. Sri. Rajendra K.R., learned Additional Government
Advocate appearing for respondent No.2 sought to justify the
impugned order passed by the Tribunal.
8. Having heard the learned counsel appearing for the
parties and on perusal of the writ petition, there is no dispute
with regard to the fact that the petitioner had filed Form No.7A
(Annexure-F), seeking occupancy right in respect of two items
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of the schedule property namely, land bearing Survey No.173/6
measuring 2.82 acres and Survey No.77/7 measuring 22 cents
of Bantwal kasaba Village, Bantwal Taluk. In this regard, the
petitioner has produced the Mahazar drawn by the Revenue
Authorities as per Annexure-G, which would demonstrate that
the father of the petitioner was cultivating the land in question.
The said aspect has been considered by the respondent No.2,
while granting occupancy right in favour of the petitioner as per
Annexure-H. The petitioner has also produced RTC extracts as
per Annexures 'J' and 'K'. The Full Bench of this Court in the
case of LOKAYYA POOJARY (supra) had considered the
procedure to be followed by the respondent-Authorities while
considering Form No.7A. Paragraph 19 of the judgment reads
as under:
"19. If a tenant makes an application, the question
that arises for consideration is how he proves that it is a
vested land. The vesting of the land is by operation of
law. No order of vesting need be passed. There cannot
be an order declaring the vesting of the land. Therefore,
production of order of vesting is not the requirement of
law and it is not possible and it cannot be insisted upon.
However, it is for the applicant who comes to the Court to
establish, that the land in question is a vested land.
While establishing such fact, it is necessary that he should
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rely on undisputed documents and such undisputed
documents may be in the nature of some official record
showing vesting of the land in favour of the State
Government. The Government record referred to in the
judgment is not an order of vesting. It is record in proof
of vesting. It may vary from case to case and depends
upon the stand taken in each case. But, unless there is
some official record evidencing the vesting of the land,
the authorities under Section 77-A would get no
jurisdiction to hold an enquiry and grant land under
Section 77-A to the applicant. The official record referred
to therein may be in the form of Land Revenue receipts,
record of rights, index of land, mutation orders,
consequent mutation entries or any other record which is
maintained by a public officer as opposed to private
documents. It is in this context, the Learned Judges in
the aforesaid judgments have stated that the land should
have been vested in the State Government as on the
appointed date. The said event should have already
taken place. The evidence is required to be placed by the
applicant to show that this is an event that has already
taken place. In that context the observations to the effect
that "obviously it should find a place in some official
record as vesting of the land is in favour of the State
Government" are made. This amendment came into force
in 1997 roughly 18 years after the last date prescribed for
filing applicants under Section 45. For 18 long years after
the vesting of the land if the tenant has continued in
possession, there must be some evidence by way of a
public record to show his possession, cultivation and
enjoyment as recognised by the Government, because
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after the vesting he has to deal with the Government and
not with the erstwhile owner. How the Government as
well as the applicant have dealt with this property during
these 18 years assumes importance. In this context the
observations made in the said judgments cannot be read
as new conditions prescribed by the Judges in Section 77-
A by the process of judicial interpretation as sought to be
urged by the Counsel for the petitioner. The Judges do
not legislate. They only interpret the provisions.
Therefore, the argument that under the guise of
interpretation, the Judges have re-written the Section is
not well founded. It is a case of misreading the
judgment. Under these circumstances, the interpretation
placed by the Division Benches is proper and legal. We do
not find any need to clarify what has been already said."
9. Having taken note of the ratio laid down by the Full
Bench of this Court in the case of LOKAYYA POOJARY
(supra), it is the duty of the applicant/tenant to establish that,
he was cultivating the land as a tenant under the landlord as on
01st March, 1974 and thereafter continued the cultivation of the
land in question. It is also pertinent to mention herein that the
applicant must produce the relevant records to establish that
he was in cultivation of the land in question and as the land is
vested with the Government as on 01st March, 1974, it is the
duty of the applicant to establish his possession in a tenanted
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land. The Full Bench of this Court in the case of LOKAYYA
(supra) has culled out that the enquiry is to be conducted by
the respondent-Authorities as contemplated under Section 77A
of the Karnataka Land Reforms Act and same is considered at
paragraph 16 of the judgment, which reads as under:
"16. Interestingly, as in the case of Rule 17, for
conducting enquiry, the procedure prescribed under
Section 34 of the Karnataka Land Revenue Act, 1964, is
not made applicable to enquiry under Section 77-A of
the Act. In an enquiry under Section 77-A read with
Section 26-C, the question of the authority going into
the question whether the land in question is a tenanted
land or not, would not arise, which question, the
Tribunal constituted under the Act alone is competent to
go into under Section 48 of the Act. No such power or
jurisdiction has been conferred under Section 77-A on
the Deputy Commissioner or the Assistant
Commissioner. The enquiry contemplated under Section
77-A is to be confined only to the following:
(1) Whether the person who has made an
application under Section 77-A was in actual
possession and cultivation of any land before
the first day of March, 1974;
(2) Being entitled to be registered as
occupants of such land under Section 45 or
49, has failed to apply for registration of
occupancy rights in respect of such land
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under sub-Section (1) of Section 48-A within
the period specified therein. In other words,
if such an applicant had been filed, which
claim is adjudicated upon by the Tribunal and
if it is negatived, then such a person is not
entitled to file an application under Section
77-A;
(3) Whether such a person is continued to be
in a actual possession and cultivation of such
land on the date of commencement of the
Karnataka Land Reforms Amendment Act,
1977."
10. The aspect relating to the continuous cultivation of
the land in question by the petitioner for grant of occupancy
right was also considered by the Hon'ble Supreme Court in the
case of MONTHI MENEZES (D) BY LR. vs. DEVAKI AMMA
(D) BY LR. AND ANOTHER made in Civil Appeal No.3539 of
2009 at paragraph 2.3, 6 and 10.1. Having taken note of the
law declared by Hon'ble Supreme Court in the above case and
ratio laid down by the Full Bench of this Court, it is the duty of
the Court to look into the relevant documents produced by the
parties to establish their continuous cultivation of the land in
question. The Hon'ble Supreme Court in the above case, also
had an occasion to consider the claim made by the petitioner
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therein with regard to the Punja land by considering the
definition of land as setout in Section 2(18) of the Karnataka
Land Reforms Act. In that view of the matter, I am of the
opinion that the finding recorded by the Tribunal, requires to be
set-aside in this writ petition, as the Tribunal has not
considered the law declared by the Full Bench of this Court in
the case of LOKAYYA POOJARY (supra) in the right
perspective. Therefore, it is a fit case to remand the matter to
the Tribunal to reconsider the issue afresh and pass appropriate
orders in accordance with law. Accordingly, I pass the
following:
ORDER
1) Writ petition is allowed;
2) Order dated 03rd April,2014 (Annexure-A)
passed in Appeal No.958/2006 by the
Karnataka Appellate Tribunal, Bengaluru is
set-aside and matter is remitted back to the
Karnataka Appeal Tribunal for fresh
consideration and to dispose of the appeal
expeditiously, after providing fair opportunity
to the parties;
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3) Since the appeal before the Karnataka
Appellate Tribunal is of the year-2006, as the
parties are represented through their learned
counsel, parties are directed to appear before
the Karnataka Appellate Tribunal on 30th
August, 2024 at 11.00 a.m.
SD/-
(E.S.INDIRESH)
JUDGE
ARK
