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1979 DIGILAW 70 (KAR)

NAGAPPA CHANNAPPA v. STATE OF KARNATAKA

1979-03-08

CHANDRASHEKARAIAH, K.S.PUTTASWAMY

body1979
CHANDRASHEK. HAR, CJ. ( 1 ) THIS petition under Art. 226 of the Constitution, has been referred to a division Bench. ( 2 ) THE'petitioner owned several lands. On 21-8-1976 he filed a declaration under S 66 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as 'the Act') stating that he owned a total extent of 63. 38 acres of Class d lands. On the day he filed that declaration, his family consisted of only 5 members. ( 3 ) THE Tahsildar, Savanur Taluk, purported to make an order on 11-10-1975. Therein, he stated, inter alia, that on verification of the particulars of the lands in the declaration made by the petitioner, it was seen that his family held 63 acres and 12 guntas of land, that the ceiling area of land which that family could hold, being 54 acres, an extent of 9 acres and 12 guntas of land constituted surplus area of lands which the petitioner was liable to surrender to the Government. The order further stated that the petitioner should prefer his objections, if any, within 30 days from the date of receipt of that order and furnish a statement showing the particulars of the land which he desired to surrender as surplus lands. The order of the Tahsildar does not indicate that any notice had been served on the petitioner or that he had been heard before that order was made. ( 4 ) THE Land Tribunal treated the aforesaid order of the Tahsildar as a provisional order and issued a notice to the petitioner as contemplated by subsection (2) of Section 67 of the Act, specifying therein the extent of surplus lands which he should surrender, and requiring him to file a statement as to which lands he chose to surrender. In reply to that notice, the petitioner filed an "application on 7-5-1976 stating that the number of members of his family had increased from 5 to 6 due to the birth of a child on 10-12-1974 and that the permissible ceiling area for the family should be increased by two more units i. e. 10. 8 acres of lands. In reply to that notice, the petitioner filed an "application on 7-5-1976 stating that the number of members of his family had increased from 5 to 6 due to the birth of a child on 10-12-1974 and that the permissible ceiling area for the family should be increased by two more units i. e. 10. 8 acres of lands. ( 5 ) ON 29-6-1976, the Tribunal made an order in which it rejected the petitioner's claim that the ceiling area of land for his family should be determined taking into account the addition of one more member, namely, the child born on 10-12-1974. The Tribunal took the view that the number of members of the petitioner's family as on 1-3-1974, had to be taken into account and that S. 2 (12) of the Act did not make any provision for taking into account any addittion to the number of members of family due to births subsequent to 1-3-1974. ( 6 ) THE purported order of the Tahsildar dated 11-10-1975 determining the ceiling area of land for the petitioner's family and the surplus area of land which the petitioner had to surrender, was made without notice to the petitioner and without affording him an opportunity of being heard. That order being violative of principles of natural justice, was invalid. The impugned order of the tribunal dated 29-6-1976 based upon that order of the Tahsildar was also vitiated. ( 7 ) UNDER S. 63 of the Act the ceiling area of lands which a family is permitted to hold, varies with the number of members of the family. The learned Government Advocate who appeared for the Tribui. al, sought to support the view taken by the Tribunal that the number of members of the family as on 1-3-1974, should be the basis for determining the ceiling area of land applicable for that family and that any addition to the number of members of the family subsequent to 1-3-1974. . cannot be taken into consideration. The learned Additional government Advocate relied on sub-section (1) of S. 66 which provides inter alia, that every person who on the date of commencement of the Amendment act (i e 1-3-1974) holds lands of the several extents specified therein or more shall, on or before 31-12-1974, submit in the prescribed form a declaration containing the particulars of the lands held by him specified in that sub-section. The learned Additional Government Advocate argued that since S. 65 (1) provides that every person who on 1-3-1974 holds certain extents of lands should make a declaration, the material date for determining the ceiling area, is 1-3-1974 (the date of commencement of the Amendment Act) and that any subsequent increase or decrease in the number of members in the family of such person, would be immaterial. ( 8 ) WE are unable to accept the above contention of the learned Additional government Advocate. The date mentioned in sub-section (1) of S 66 is only for the purpose of determining the liability to make a declaration. But there is nothing in that section to indicate that that date should be regarded as the point of time with reference to which the extent of ceiling area permissible for a family should be determined. In the absence of any express provision in the Act saying that the date with reference to which the liability to furnish a declaration is fixed, should also be the date with reference to which the ceiling area of land which a family is permitted to retain should be determined, there is no reason why the authority empowered under S. 67 to determine the ceiling area of land for each family, should not make such. determination on the basis of the state of facts prevailing on the date of its order making such determination. The learned additional Government Advocate was not able to give any reason as to why any increase or decrease of the number of members of the family subsequent to 1-3-1974 should be left out of account for such determination. ( 9 ) IN the present case, we have already held that there was no valid determination under S 67 of the ceiling area of land which the petitioner's family could retain, because the order of the Tahsikdar purporting to make such determination was vitiated on account of not issuing notice to the petitioner and not holding an enquiry. By the Karnataka Land Reforms (Third Amendment) Act, 1976 (Karnataka Act No 44 of 1976) S. 67 of the Principal Act has been amended and the power to determine the extent of the ceiling area of lands and the surplus area above the ceiling area, is taken away from the Tahsildar and has been conferred on the Tribunal. By the Karnataka Land Reforms (Third Amendment) Act, 1976 (Karnataka Act No 44 of 1976) S. 67 of the Principal Act has been amended and the power to determine the extent of the ceiling area of lands and the surplus area above the ceiling area, is taken away from the Tahsildar and has been conferred on the Tribunal. Now the Tribunal has to make under S. 67 a determination of the ceiling area of lands which the petitioner's family can retain and the surplus exteat of lands which has to be surrendered by the petitioner. The Tribunal is directed to consider the petitioner's claim that a child was born in his family on 10-12-1974. If the Tribunal finds that such claim is true, the tribunal has to determine the extent of the ceiling area on the basis of the increase of the number of the members of the family, ( 10 ) IN the result, we allow this petition, quash the order of the Tahsildar dated 11-10-1975 and the order of the Tribunal dated 29-6-1976 (produced a exhibit B ) and direct the Tribunal to make under S. 67 a fresh order after taking into consideration the application made by the petitioner intimating the birth of a child in his family. In this petition, parties will bear their own costs. --- *** --- .