VENKATAPPA v. L. N. DATTATRI — 1977 DIGILAW 239 (KAR)

GOVINDA BHAT, C. J. ( 1 ) THE appellant, Venkatappa made an application in Form No. 7 to the land Tribunal, Tarikere, on 26th December 1975 for grant of occupancy right in respect of 3 acres 12 guntas of agricultural land in S. No. 141 of hulsoor village, Lakkavalli Hobali, Tarikert Taluk. Respondent-1, dattatri is the holder of the said land. Though the said application was made after the expiry of the period of limitation prescribed under sub-sec (1) of Sec. 48a of the Karnataka Land Reforms Act 1961 (hereinafter called the Act), no cause was shown for condonation of delay in making the application. ( 2 ) THE Tribunal straightaway issued notice in Form No. 9. Parties and their witnesses were examined and the Tribunal by its order in lrt. 3/ 1975-76 allowed the application and granted occupancy right to the appellant. That order was challenged by respondent-1, before this court in WPNo. 1995 of 1977 in which Rule Nisi was issued. The appellant did not appear to contest. The matter came up for final disposal before Bhimiah, J. . who, by his order dated 9-8-1977 allowed the writ petition and quashed the order of the Tribunal. The reason given by the learned Judge for quashing the order of the Tribunal is that it is based on no evidence. ( 3 ) AGGRIEVED by the said order, the appellant has come up in appeal. The main ground urged in this appeal is that the learned Single judge ought to have remitted the matter back to the Tribunal for adjudication afresh. When this appeal came up for hearing on 1st December, 1977, Sri A. V. Albal, learned Counsel for Respondent-1 raised the contention that the entire proceedings before the Tribunal commencing with the issue of notice in Form No. 9 was without jurisdiction as the application for grant of occupancy right was made beyond the period of time prescribed under sub-8ec. (1) of Sec. 48a of the Act, that the appellant had shown no cause for condonation of delay, for making the application beyond the time provided and that the Tribunal had not admitted the application. Since the question thus raised is an important question of law, we directed that the State of Karnataka should be impleaded as a party-respondent and notice should be issued to the High Court Government advocate. Since the question thus raised is an important question of law, we directed that the State of Karnataka should be impleaded as a party-respondent and notice should be issued to the High Court Government advocate. The matter was adjourned to this day for further hearing. Today we heard learned Counsel for the parties including Sri V. C. Brahmarayappa for the State. ( 4 ) THE reason given by the learned Single Judge that the order of the Tribunal is based on no evidence, is not correct. Sri Albal, learned counsel for Respt-1 did not attempt to support that reasoning of the learned single Judge. The question of sufficiency of evidence is different from a case where there is no evidence. In the instant case, the appellant and his witnesses were examined, in support of his claim. The statutory presumption is in favour of respondent-1 under Sec. 133 of the Karnataka land Revenue Act, as the entries in the Record of Right show that the land was cultivated personally by the land-holder during the period immediately prior to 1st March 1974. ( 5 ) WE have perused the order o. f the Tribunal. It has referred to the fact that the Record of Rights do not show the name of the appellant as cultivator of the land during the relevant period. Having noticed that fact, the Tribunal has not given any reason for rejecting the statutory presumption to be drawn under Sec. 133 of the Karnataka Land Revenue act. The appellant has not adduced any evidence before the Tribunal to show that the entries in the Record of Rights were not correctly recorded and no reliance should be placed thereon. The Tribunal has not discussed the relevant evidence, oral and documentary, bearing in mind the relevant provisions of law. Its conclusion that the appellant ig a tenant of the land, is 'therefore arbitrary and capricious. Therefore, the order of the Tribunal was liable to be quashed. ( 6 ) THE next question is whether the matter ought to be remitted back to the Tribunal for adjudication afresh. The application of the appellant, as stated earlier, was made on 26th December 1975, beyond the period of limitation prescribed under sub-sec (1) of Sec. 48a of the Act. In that application he did not show any cause for preferring the application beyond time. The application of the appellant, as stated earlier, was made on 26th December 1975, beyond the period of limitation prescribed under sub-sec (1) of Sec. 48a of the Act. In that application he did not show any cause for preferring the application beyond time. Where a period of limitation is prescribed for any action, such action has to be brought within the presribed time and if, one is brought beyond the time, the Court or the Tribunal, has no jurisdiction to entertain the same, unless, by law, the Court or the Tribunal has the power to condone the delay. In Luchmun Singh v. Shumshere Singh (1) the Judicial Committee of the Privy Council held that an order of a Civil court admitting an application for review of judgment after the expiration of ninety days from the date of its decree without stating that there was or that it had been shown to its satisfaction that there was sufficient cause or excuse for the delay, was improperly granted and ought to be set aside. ( 7 ) SUB-SEC. (1) of Sec. 48a of the Act was introduced by the karnataka Act No. 1 of 1974. The said provision has undergone a number of amendments. As it originally stood, it read thus : every person entitled to be registered as an occupant under sec. 45 may make an application to the Tribunal in this behalf. Every such application shall, save as provided in this Act, be made within six months from the date of commencement of the Amendment Act, provided that the Tribunal may, within one year from that date for sufficient cause shown admit an application made beyond six months. The said sub-section as it now stands, reads thus : every person entitled to be registered as an occupant under sec. 45 may make an application to the Tribunal in this behalf. Every such application shall, save as provided in this Act be made on or before the 31st day of December 1974, provided that the Tribunal may, for sufficient cause shown admit an application made beyond that date but on or before 30th day of June 1977. 45 may make an application to the Tribunal in this behalf. Every such application shall, save as provided in this Act be made on or before the 31st day of December 1974, provided that the Tribunal may, for sufficient cause shown admit an application made beyond that date but on or before 30th day of June 1977. It is necessary to make a reference to sub-sec (8) of S. 48a of the Act, which states that where no application is made within the time allowed under sub-sec (1), the right of any person to be registered as an occupant shall have no effect. ( 8 ) THE right to claim occupancy is a right conferred by the Act. Such an application has to be made within the time allowed by sub-sec (1) of S. 48a. If no application is made within the time allowed, the right of every person entitled to claim registration of occupancy, is lost. In other words, if no application is made within the time allowed by sub-sec (1) of Sec. 48a of the Act no person can claim occupancy right under Chapter-Ill of the Act. If an application is made after 31st Deer, 1974, the Tribunal has the jurisdiction to confer occupancy right on the applicant provided it admits the application having satisfied itself that the cause shown for making the application belatedly, is sufficient for condonation. The proviso to sub-sec. (1) of S. 48a of the Act is in pan materia with Sec. 5 of the Limitation Act, 1963. ( 9 ) IN the instant case, the appellant who is the applicant before the Tribunal showed no cause whatever for condonation of delay. The tribunal made no order admitting the application. It was argued by sri M. S. Gopal, learned Counsel for the appellant that when the Tribunal issued notice in Form No. 9 to respondent-1 by implication it should be deemed to have admitted the application though there is no express order made in writing. This argument is clearly untenable. ( 10 ) IT was also argued by Sri M. S. Gopal that respondent-1 did not raise this objection before the Land Tribunal and that he ought to have raised the same before the Tribunal. It is not disputed that no notice was issued to respondent-1 before the issue of notice in Form 9. No copy of the application dt. ( 10 ) IT was also argued by Sri M. S. Gopal that respondent-1 did not raise this objection before the Land Tribunal and that he ought to have raised the same before the Tribunal. It is not disputed that no notice was issued to respondent-1 before the issue of notice in Form 9. No copy of the application dt. 26th Decr, 1975 was served on respondent-1. The notice in Form No. 9 did not state the date of the application either. Respondent-1 could have had no knowledge of the date of the application when the notice in Form No. 9 did not disclose the date of the application and consequently respondent-1 could not have raised the bar of limitation before the Tribunal. ( 11 ) IN our judgment the notice issued by the Tribunal in Form-9 was one without jurisdiction as the application of the appellant was made beyond the time allowed by law and he had not shown any cause for condonation of delay. The commencement of the proceedings for grant of occupancy right was, therefore, clearly illegal and without jurisdiction. The learned Single Judge should have quashed the entire proceedings commencing with the issue of notice in Form No. 9 including the order of the Tribunal and it was unnecessary to go into the other grounds urged in the writ petition. Therefore, there is no ground to remit the matter back to the Tribunal for adjudication afresh. Accordingly this appeal fails and is dismissed, but in the circumstances, without costs. Sri V. C. Brahmarayappa, learned High Court Govt Pleader is permitted to file his memo of appearance within two weeks. --- *** --- .