R. KRISHNASWAMY RAO v. LAKSHMAIAH SETTY — 1989 DIGILAW 357 (KAR)

SWAMI, J. ( 1 ) BY consent of both sides the petition is heard for final disposal. ( 2 ) IN this Civil Revision Petition under section 121-A of the Karnataka Land reforms Act, 1961 (hereinafter referred to as the 'act') the petitioner has challenged the order dated 19-4-1989 passed by the land Reforms Appellate Authority, Mandya in Appeal No. 372 of 1986 allowing Interlocutary applications IV and V filed by the first respondent/appellant. ( 3 ) THE first respondent filed an application in Form No. 7 claiming occupancy right in the lands bearing Section nos. 42 and 49 measuring 3 acres 3 guntas and 17 guntas respectively, situated at beerashetty Village, Taluk Pandavapura. The Land Tribunal rejected the application by the order dated 24-10-1980. The petitioner challenged the same before this court in W. P. 31307/1982. The writ petition came to be transferred to the Land Reforms appellate Authority under Section 19 of the karnataka Act, 19/1986. Pursuant to the transfer the writ petition was numbered as appeal No. 372/1986. In that appeal the first respondent filed two applications I. As IV and V seeking the following reliefs :"for the reasons set out in the accompanying affidavit, the applicant appellant prays that the Hon'ble Court be pleased to permit (he appellant to amend the Form No. VII as per the schedule by deleting Sy. No. 42 and extent shown against in Sy. No. 42 and rectifying the extent shown against the Sy. No. 49 and then ordered to proceed with the case on merits, in the interest of justice and equity. Schedule sy. No. 49 measuring 2 acres of land situated at Beerasetiihalli village, bounded on the East : land of Appellant and Shivanna. West : V. C. Nala South : land of appellant (Lakshmaiah' Setty) and north : land of Rajarao (R. Krishnaswamy rao ). This be mentioned in Form No. VII by deleting existing sy. no. and the extend in Form No. VII. "the prayer was similar in both the applications. The land Reforms Appellate authority allowed both the applications and permitted the first respondent to amend the form No. 7 so as to include the claim for 2 acres comprised in Sy. No. 49 of Beeraset- tihalli. no. and the extend in Form No. VII. "the prayer was similar in both the applications. The land Reforms Appellate authority allowed both the applications and permitted the first respondent to amend the form No. 7 so as to include the claim for 2 acres comprised in Sy. No. 49 of Beeraset- tihalli. From the operative portion of the order of the land Reforms Appellate authority it is clear that the prayer of the first respondent to delete Section No. 42 from Form No. 7 does not appear to have been granted. ( 4 ) IT is contended on behalf of the petitioner that within the time allowed by the act, the first respondent filed Form No. 7 claiming occupancy right over an area of 17 guntas comprised in Section No. 49 and as such it was not open to the first respondent to amend From No. 7 so as to include the entire extent of Section No. 49. Such a claim becomes a fresh claim and as on the date the application seeking amendment was made no fresh claim could have been made in law because the amendment application was made after the expiry of the last date fixed for filing form No. 7 under the Act. On the contrary it is contended by the learned counsel for the first respondents that the amendment is only explanatory and it does not amount to making a fresh claim, and as such as held by a Division Bench of this Court in Seethadevi v Narayana Kamath (I. L. R. 1987 Kar. 1779) form No. 7 can always be amended even after the expiry of the last date fixed under the Act. ( 5 ) THEREFORE, the question that arises for consideration is as to whether the Land reforms Appellate Authority is justified in law in allowing I. As IV and V. ( 6 ) AT this stage itself it is relevant to advert to the decision of this Court in seethadevi's case. In that case there was no application filed for amendment. On the contrary a separate application in Form No. 7 seeking occupancy right in the lands which were not mentioned in the earlier application was filed. The Division Bench held thus : "5. In that case there was no application filed for amendment. On the contrary a separate application in Form No. 7 seeking occupancy right in the lands which were not mentioned in the earlier application was filed. The Division Bench held thus : "5. There can be no doubt that, in view of sub-section (3) of Section 48a, if any mistake has been committed in the application filed in Form No. 7 filed within time the application for amendment can be made by the party concerned before the Tribunal, and the tribunal has the jurisdiction to allow the amendment application if it is satisfied that in not allowing the amendment, it would result in miscarriage of justice. But, as far as this case is concerned, we confine our consideration to the question whether the application in question, read with the subsequent application made by respondent-1 could be regarded as an application for amendment at all? As stated earlier Form-7 was filed by respondent-1 as early as 10-8-1974. The lands in respect of which he claimed to be a tenant and landlords from whom respondent-1 has secured tenancy were set out. There was no statement in the said application that respondent-1 was a tenant of the present appellant. It is for the first time in the amendment application which was received by the tribunal on 31-8-1987, respondent-1 claimed to be a tenant of the appellant in respect of the lands specified in the said application. By no stretch of imagination the said application can be regarded as an amendment to the application made earlier as it is entirely a new claim made against a person who was not at all a party to the application filed earlier. It is clear from the application that respondent-1, who was a resident of a small town like karkala, sent the said application by registered post and even so, respondent-1 has put the date on the application as 30-6-1979 so as to make it appear that the application was filed on the last date fixed by the Act. When the first respondent realised that the application was time barred, he came with a subsequent application as an amendment to the earlier application. When the first respondent realised that the application was time barred, he came with a subsequent application as an amendment to the earlier application. The facts and circumstances clearly establish that the application made by the first respondent was entirely a new application and against the appellant who was not a party to the original Form No. 7 and, therefore, was an application filed beyond the period fixed by Section 48a of the Act. The Tribunal had no jurisdiction to entertain such an application. This is also the view taken by this Court in Virupaxappa Basappa v Land tribunal, Dharwar and Ors (1980 (2) KLJ 428 ). We entirely agree with the view taken by Kudoor, J. in the said decision. 6. Learned Counsel for the first respondent, however, maintained that the first application read with the subsequent application made before the Tribunal would show that what the first respondent was seeking only an amendment to the earlier application. We are of the view that as the first respondent had not claimed that he was a tenant of any item of lands under the appellant he was at liberty to make a fresh application only before the expiry of 30-6-1979. Not having done so, he is now trying to contend that the fresh application was in the nature of an amendment to the first application. It cannot be regarded as an application for amendment of the original Form No. 7. In the result, we answer the question set out first as follows : No person can make an application in Form No. 7 or an application in the nature of an amendment after the expiry of the period fixed under Section 48a (1) of the act seeking occupancy right in respect of new item of land not included in the application filed within time. Therefore, the ratio of the said decision is that no fresh claim can be made by way of an amendment after the expiry of the last date fixed under the statute. Consequently, the question that will arise for consideration is whether the amendment sought for by the first respondent amounts to a fresh claim. ( 7 ) IN Form No. 7 filed by the first respondent he specifically claimed occupancy right over an area of 17 guntas comprised in Section no. 49 of Beerasettihalli. Therefore, his claim was confined to only 17 guntas. ( 7 ) IN Form No. 7 filed by the first respondent he specifically claimed occupancy right over an area of 17 guntas comprised in Section no. 49 of Beerasettihalli. Therefore, his claim was confined to only 17 guntas. It was open to him to make a fresh claim before the expiry of the last date fixed under the Act. However, no such attempt was made by the first respondent. The application seeking amendment came to be filed only after the tribunal rejected the application filed by the first respondent in Form No. 7 and during the pendency of the appeal before the Land reforms Appellate Authority. When the claim was confined to 17 guntas comprised in section No. 49 any further claim in respect of the area other than 17 guntas comprised in the very same survey number would amount to making fresh claim. The amendment sought for cannot at all be considered to be explanatory because it expands the claim of the applicant from 17 guntas to 2 acres. Such an application for amendment could not have been made and entertained as the amendment sought to expand the claim of the applicant in Form No. 7 and to make a fresh claim in respect of 1 acre 23 guntas comprised in Section No. 49 which was not made earlier. Therefore, it is not possible to hold that the amendment sought for is only explanatory and relates to the land claimed in Form No. 7 It is already pointed out that what was claimed in Form No. 7 was only 17 guntas. Any claim exceeding 17 guntas even though comprised in the same survey number amounts to a fresh claim because it includes the fresh area. Merely because the area claimed forms part of the same survey number it is not possible to hold that it is not a fresh area claimed by the applicant. Any claim exceeding 17 guntas even though comprised in the same survey number amounts to a fresh claim because it includes the fresh area. Merely because the area claimed forms part of the same survey number it is not possible to hold that it is not a fresh area claimed by the applicant. As the claim has a serious consequence on the proprietory right and the Act prescribes the last date for making such a claim any other interpretation would result in serious miscarriage of justice and it would seriously jeoparadise the proprietory right because it would result in permitting the applicant in form No. 7, after the expiry of the last date fixed by the Act, to bring into the fold of form No. 7 the land or a portion of the same survey number which is not claimed by him within the period permitted by the Act. A statute dealing with and affecting the proprietary right of a citizen in a property should be strictly construed; but at the same time care should be taken to ensure that the interpretation does not result in miscarriage of justice and does not defect or tend to defeat the object and intendment of the statute. Therefore, I am of the view that the land Reforms Appellate Authority was not justified in law in allowing the amendment sought for by the first respondent because as on the date of filing the applications, the first respondent could not have made a fresh claim. ( 8 ) FOR the reasons stated above, the Civil revision Petition is allowed. The order dated 19-4-1989 passed by the Land Reforms appellate Authority in Appeal No. 372/1986 allowing I. As IV and V is set aside. The land Reforms Appellate Authority is directed to proceed with the appeal in accordance with law. --- *** --- .