KARIYAPPA GOWDA v. B. NARAYANA BHAT — 1996 DIGILAW 632 (KAR)

CHIDANANDA ULLAL, J. ( 1 ) THE petitioner herein had filed originally an appeal in No. L. r. a. a. 61 of 1988 before the land reforms appellate authority, puttur. The same was transferred to this court when the said appellate authority came to be abolished and a c. p. in No. 534 of 1991 was filed before this court to call for the records in the appeal. On receipt of the case records in the appeal, the instant writ petition is registered. Therefore, what is before this court is the said appeal in the form of a writ petition. ( 2 ) I heard the learned counsel Sri k. Vittal shetty for the petitioner and Sri k. s. vyasa rao for the respondent 1 and Sri m. n. ramanjaneyagouda, learned government pleader for the respondents 2 and 3. I have also perused the records. ( 3 ) THE brief facts of the case are as follows: the petitioner at the first instance had filed form No. 7 on 27-7-1974 claiming occupancy right in respect of 87 cents of land in survey No. 56/6 and 26 cents in survey No. 56/7, both of balila village of sullia taluk and again he had filed yet another form No. 7 on 20-8-1974 by adding yet another extent of land of 1 acre 27 cents in survey No. 56/3 also of balila village. The land tribunal at the first instance after holding an enquiry on both, the said two form No. 7 filed by the petitioner, granted occupancy right in respect of 40 cents of land in survey No. 56/6-a, 24 cents in survey No. 56/6-b, 17 cents in survey No. 56/7-a and 9 cents in survey No. 56/7-b. Having been aggrieved with the said Order, the petitioner herein had filed W. P. No. 8899 of 1977 to challenge the said order and this court while allowing the said writ petition on 25-1-1983 quashed the order therein and directed the land tribunal for fresh disposal of the case in strict compliance of Rule 17 of the land reforms rules. ( 4 ) THERE after, the land tribunal held yet another round of proceedings and passed the impugned order granting the very same extents of lands as above. ( 4 ) THERE after, the land tribunal held yet another round of proceedings and passed the impugned order granting the very same extents of lands as above. Having been aggrieved by the said Order, the petitioner herein preferred an appeal before the land reforms appellate authority, puttur, on the ground that the land tribunal passed the order without holding a spot inspection, without proper appreciation of the evidence both oral and documentary on its record and further without application of its mind to the facts and circumstances of the case. It is that appeal now before this court by way of writ petition with the abolition of the land reforms appellate authority. ( 5 ) THE learned counsel for the petitioner Sri k. Vittal shetty while urging the above grounds in the appeal memorandum argued that the instant writ petition is limited to the rejection of the claim of the petitioner with regard to 23 cents in survey No. 56/6 and 2 acres in survey No. 56/3. That 23 cents was worked out by him for the reason that the land tribunal had granted the petitioner with 40 cents in the bifurcated survey No. 56/6-a and 24 cents in the bifurcated survey No. 56/6-b, when the original claim in survey No. 56/6 was totally rejected. He had also pointed out that, in the second form No. 7 filed by the petitioner, he had claimed an extent of 1 acre 27 cents in survey No. 56/3 and the same was sought to be amended as 2 acres by filing an la. No. 1 before the land reforms appellate authority to amend the form No. 7 filed at the second instance on 20-8-1974. When it was brought to his notice that the said amendment application was rejected by the land reforms appellate authority as long back as on 16-12-1989, he amended his argument to restrict the original claim of the petitioner in respect of that survey No. I. e. 56/3 to 1 acre 27 cents. While referring to the impugned order wherein the tribunal held that as per the levy register and the saguwali register, the petitioner was found to be cultivating the land of 87 cents in survey No. 56/6, he argued that there is no valid reason for rejection of the claim of 23 cents in the said survey No. 56/6. While referring to the impugned order wherein the tribunal held that as per the levy register and the saguwali register, the petitioner was found to be cultivating the land of 87 cents in survey No. 56/6, he argued that there is no valid reason for rejection of the claim of 23 cents in the said survey No. 56/6. With regard to the rejection of the other claim of the petitioner in survey No. 56/3, he argued that the land tribunal in the impugned order observed that the petitioner was cultivating the land in question from 1971 to 1974 and in that connection, Sri shetty wanted to produce the extract of levy register to demonstrate before this court that the petitioner was giving levy to the authorities for the relevant period too. Therefore he prayed that the impugned order passed by the land tribunal be quashed and the matter remanded to the land tribunal for proper enquiry by affording opportunity to the petitioner to place his case before the land tribunal and further for passing appropriate order thereon. ( 6 ) THE learned counsel for the respondent 1 had argued that the grant of occupancy right to the petitioner even earlier by the land tribunal was by consent of the respondent 1. With reference to the second form No. 7 filed by the petitioner on 20-8-1974 to add yet another survey No. 56/3, he submitted that the same was an after thought and there was no truth in that additional claim. With reference to the rejection of 23 cents in survey No. 56/6, the learned counsel for the respondent 1 however submitted that the petitioner was cultivating only 64 cents out of the total extent of 87 cents and that therefore the land tribunal had rightly granted occupancy right in respect of 64 cents in survey No. 56/6-a and survey No. 56/6-b. Therefore he argued that there is no merit in the instant case of the petitioner and that the writ petition is liable to be dismissed. He had also cited before me a decision of this Court in Thunga Bai and others v Vishalakshi Heggadthi and another, on the point that when the official concerned who had prepared the levy demand notices is not examined, no reliance can be placed on the survey numbers noted in the said notices. He had also cited before me a decision of this Court in Thunga Bai and others v Vishalakshi Heggadthi and another, on the point that when the official concerned who had prepared the levy demand notices is not examined, no reliance can be placed on the survey numbers noted in the said notices. ( 7 ) HAVING heard both sides, I have carefully perused the records. It appears to me that the petitioner's main grievance is rejection of his claim in survey No. 56/3. The land tribunal in the impugned order had observed that the petitioner was cultivating an extent of 2 acres in the said survey No. For the period from 1969 to 1971, but he was not found to be cultivating the same for the period beyond 1971. In the circumstances, it appears to me that when he was not cultivating the land for the period beyond 1971, obviously vesting of that land in the state as on 1-3-1974 did not arise and that being the position, question of grant of occupancy right in respect of that extent of land does not arise at all. Even in the records of the land tribunal I did find an extract of the levy demand register in respect of the said survey No. 56/3, but the same was only for the period from 1988 to 1989. But in the said extract, the extent was shown as 3 acres 8 cents. The learned counsel for the petitioner made a last bid to place before me certain extracts of the levy register stated to be for the relevant period to show that the petitioner was paying the levy in respect of the said survey No. For the relevant period, but, I had to tell him curtly that the court cannot oblige him to receive at this belated stage of hearing the main matter and if at all he wanted to produce the same, he would have done that before the land reforms appellate authority. That being the position with regard to the claim of the petitioner in respect of survey No. 56/3, I find no good reason for the petitioner to complain regarding the rejection of that claim by the land tribunal. That being the position with regard to the claim of the petitioner in respect of survey No. 56/3, I find no good reason for the petitioner to complain regarding the rejection of that claim by the land tribunal. However, with regard to the other claim of the petitioner, i. e. , 23 cents in survey No. 56/6, my considered view is that the rejection by the land tribunal thereto is not just and proper for the following reasons: it is stated in page 4 of the copy of the impugned order appended to the appeal memorandum that the land tribunal had observed as follows: ( 8 ) IN the argument of the learned counsel for the respondent 1, he had pointed out that the grant of occupancy right earlier by the land tribunal was by conceding the case of the petitioner from grant of occupancy right in respect of the survey No. 56/6 and survey No. 56/7 as claimed by him by resorting to form No. 7 at the first instance on 27-7-1974. In this context, it is relevant to mention here that in the records of the tribunal, I found in page 2 of the order dated 28-4-1977 passed by the land tribunal at the first instance (earlier challenged in W. P. No. 8899 of 1977), the land tribunal had narrated that the respondent appeared before the tribunal and stated that the petitioner was a chalageni tenant in respect of 87 cents in survey No. 56/6 and 26 cents in survey No. 56/7. To quote the said part of the Order, the same reads as follows: the respondent appeared before the tribunal and stated that the petitioner is the chalageni tenant in respect of s. no. 56/6 measuring 0-87 acres and s. no. 56/7 measuring 0-26 acres only and he consented to grant the said lands in the name of the petitioner. P. w. 2 and r. w. 2 were examined by the tribunal". 56/6 measuring 0-87 acres and s. no. 56/7 measuring 0-26 acres only and he consented to grant the said lands in the name of the petitioner. P. w. 2 and r. w. 2 were examined by the tribunal". ( 9 ) IF above is the position with regard to the claim of the petitioner in respect of survey No. 56/6, I am at a loss to understand as to why the land tribunal had not granted the occupancy right in respect of the entire extent of 87 cents in the said survey No. 56/6 instead of restricting the grant of occupancy right in respect of 40 cents in the bifurcated survey No. 56/6-a-1 and 24 cents in the bifurcated survey No. 56/6-b. In my considered view, the land tribunal would have in the above facts and circumstances of the case naturally granted occupancy right in respect of the entire extent of 87 cents in the said survey No. To the petitioner as claimed by him. Whereas the land tribunal without any valid reason or cause restricted the grant of occupancy right only to 64 cents (40 cents in survey No. 56/6-a-1 and 24 cents in survey No. 56/6-b ). Therefore, I have got no hesitation to quash the impugned order and further to remand the matter to the land tribunal with a direction as hereunder: in the result, the impugned order dated 5-2-1988 in No. Lry 1379 of 1974-75 to 181 of 1974-75 passed by the respondent 2-land tribunal, sullia, in so far as the same related to rejection of the claim of the petitioner to an extent of 23 cents in survey No. 56/6 of balila village is quashed; in so far as the rejection of the claim of the petitioner in respect of survey No. 56/3 in passing the impugned order by the land tribunal is concerned, the same is confirmed, the matter is remanded to the land tribunal with a direction to pass appropriate order in the matter of grant of occupancy right to the petitioner in respect of his claim of 87 cents in survey No. 56/6 of balila village in the light of the above observation of this court. ( 10 ) LET the land tribunal pass such an order after issue of notices to all the parties concerned. ( 11 ) THE writ petition is partly allowed. the Rule made absolute to that extent. ( 10 ) LET the land tribunal pass such an order after issue of notices to all the parties concerned. ( 11 ) THE writ petition is partly allowed. the Rule made absolute to that extent. ( 12 ) IN view of the above Order, the office is directed to return the original records of the tribunal, now on the case file of this court to the land tribunal, sullia, dakshina kannada district, at the earliest. ( 13 ) THE office is further directed to send a copy of this order of the land tribunal, sullia, while returning the original records as directed. --- *** --- .