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2001 DIGILAW 778 (KAR)

Punkuda Harijana v. State of Karnataka

2001-10-08

D.V.SHYLENDRA KUMAR, M.F.SALDANHA

body2001
JUDGMENT M.F. Saldanha, J.—We have heard the appellant's learned Advocate as also the learned Government Advocate who is directed to take notice for Respondents 1 and 2. At this stage, we have not issued any notice to the Respondents 3 and 4. 2. The main point raised by the appellant's learned Advocate centres around the ambit and scope of Section 77-A of the Karnataka Land Reforms Act ('the Act' for short). By the amendment in question, undoubtedly the State Government had granted a concession to those of the persons who would otherwise have been qualified for the grant of occupancy rights, but who have, for some reason or other, had not applied within the prescribed period of time. The proceedings relating to applications under Section 77-A of the Act have been coming up to this Court from time to time and different facets of the law have been thrown up for consideration; recently this Court had occasion to examine the nature of enquiry that is contemplated, the ambit and scope etc. In this case, what we need to highlight is that undoubtedly, by the amendment, it is permissible for application to be presented for the grant of the land in question provided the conditions are satisfied, but there are certain angles of the law which we need to very clearly re-state-the first of them is the fact that certain deadlines were prescribed in the year 1974 and thereafter, from time to time the tensions went on until the year 1979 which means that for a full period of effectively five years, it was open to those who have qualified, to approach the Tribunal for the grant of occupancy rights. The Land Reforms Act was a special piece of legislation and it is a matter of record that applications not only by the thousand but virtually by the lakh, were presented from every nook and corner of the State. The Land Reforms Act was a special piece of legislation and it is a matter of record that applications not only by the thousand but virtually by the lakh, were presented from every nook and corner of the State. The reason why we refer to this is because the submission is often canvassed that the applicant who has come forward for the first time with a claim under Section 77-A of the Act was ignorant of the requirements and the like and it is very necessary to point out that the forum before whom the application is presented, for that matter the Court before which the case ultimately comes up, will have to be totally satisfied that the party in question was validly and genuinely prevented from filing the application in question. This is condition precedent because, the object or placing Section 77-A on the statute book is not in order to permit persons who desire to take their chance by making applications for the grant of additional lands or lands to which they have never made any claim and the object is also not that the various forums and the Courts should be crowded with applications which are totally undesirable. It will therefore be necessary for the applicant to demonstrate to the total and complete satisfaction of the authority of the Court that there was genuine and valid ground for the application not having been presented earlier. 3. With this background, what we need to point out is that as far as the present appeal is concerned, the appellant before us has applied under Section 77-A of the Act for the grant of 36 cents of land in S. No. 24/2. The usual plea has been put forward that he was illiterate and ignorant and therefore, that he had not preferred this claim earlier. The situation gets rather complicated because, the record indicates that the present applicant had not only preferred one, but two applications, for grant of occupancy rights within the prescribed time and in respect of three pieces of lands adjoining the present land, the Tribunal had granted occupancy rights. The question that stares one in the face is as to how a person who had approached the competent authorities not once but twice for the grant of occupancy rights, can plead any form of ignorance. The question that stares one in the face is as to how a person who had approached the competent authorities not once but twice for the grant of occupancy rights, can plead any form of ignorance. The second and more important aspect of the case which assumes importance is the legal position in so far as the Form No. 7 is required to disclose the entire total holdings of the applicant, those of the lands in respect of which the occupancy rights are claimed or any other holdings. If the applicant has gone through this exercise not once but twice and still contends that he was either ignorant or not in a position to make an application in respect of another piece land, it would be too far-fetched for the person to assume that a Court would swallow such a story. What totally disqualifies the applicant in such a situation is the fact that having filed the requisite application which is on par with a declaration before the Tribunal on not one, but two occasions and having indicated the land in respect of which occupancy rights are asked for, if the lands which are the subject matter of Section 77-A applications were not then disclosed, the normal implication would be two fold - firstly, that the earlier applications genuinely reflected the total holdings and that the applicants were not qualified to apply in respect of the lands which are now the subject matter of the application and secondly, that the present application obviously is false in so far as the applicant was not qualified to apply on the earlier occasion in respect of these lands. This being the position, the learned Single Judge has set aside the order passed by the Assistant Commissioner in view of the several other reasons that are set out by him. It is against that order that the present appeal has been filed. 4. The appellant's learned Advocate vehemently submitted before us that the solitary ground on which the land lady had challenged the grant order before the learned Single Judge was that no enquiry or rather no proper enquiry had been conducted. His submission is that if the learned Single Judge was inclined to uphold the challenge, that the only order that could have been passed was that a proper enquiry should have been held. His submission is that if the learned Single Judge was inclined to uphold the challenge, that the only order that could have been passed was that a proper enquiry should have been held. We are not in agreement with this submission for the reason that irrespective of what was the nature of the challenge, what the High Court was required in exercise of its power of judicial review, was to reconsider the order passed by the Assistant Commissioner, it was certainly open to the High Court to either remand the case or if the circumstances warranted, to set aside the order in question and refuse a remand. We do concede that in many of the proceedings where the order of the lower authority is set aside, that the High Court would remand the case either for further hearing or for that matter, a denovo proper consideration of the records. That presupposes the fact that the record is capable of some other conclusion and that the High Court, in the interest of justice, considers it necessary for a reconsideration to be done. There can be a small category of cases in which the nature of the proceedings is such that, there is absolutely no scope for a remand, such as the present one where in our considered view, there is absolutely no justification for the non-inclusion of this land in the earlier two applications and considering the record, we see no justification for the filing of the application under Section 77-A of the Act, as we shall presently indicate. The question of any remand is therefore totally ruled out. 5. The appellant's learned Advocate has placed very strong reliance on the revenue records and he points out to us that in respect of this piece of land, the entries very clearly show his name upto the year 1967-68. The Assistant Commissioner has recorded a finding that the appellant's name was deleted in the year 1972. Quite apart from that position, from the copy produced before us by the appellant's learned Advocate, it is clear that no entries were made for the period 1968-80. This being the position, it would be impossible for the appellant to contend that these documents could assist him in any way as far as the position on the appointed date is concerned. This being the position, it would be impossible for the appellant to contend that these documents could assist him in any way as far as the position on the appointed date is concerned. The other aspect of the case is that the learned Single Judge, though he was not required to do so, has carefully scrutinised the record and one of the facts that has come to his notice is that when the earlier applications were made, that a survey was conducted and that the other three lands in respect of which occupancy rights were claimed were granted because the survey indicated that the appellant was in occupation and possession as a tenant, but as far as the present land is concerned, the survey does not establish this position. This is an aspect of the case on merits, but having regard to our basic finding on the first issue, it hardly requires any further consideration. 6. Another aspect of the case on which the appellant's learned Advocate places reliance was the fact that the 'Geni' chit has been relied on and he submits that since there are no survey numbers indicated therein, that is not the fault of the appellant, but that this would be indicative of the fact that the appellant is still in occupation and cultivation as a tenant. The learned Single Judge has considered this side of evidence and very rightly held that the document in question cannot further the case of the appellant. We are in total agreement with this finding. 7. Lastly, the appellant's learned Advocate submitted that since the Assistant Commissioner has once granted the occupancy rights to the appellant, that if the learned Single Judge was not in agreement with that finding that he ought to have afforded the appellant an opportunity of substantiating his case. We have taken cognizance of the entire evidence on record and for the reasons already indicated by us, it is our considered view that no useful purpose would be served by elongating this litigation as the entire record which we have reviewed, cannot and will not assist the appellant in establishing that he was entitled to the grant of occupancy rights as on the appointed date of for that matter, that the land had vested in Government. 8. Having regard to the aforesaid findings, we decline to interfere with the orders passed by the learned Single Judge. 8. Having regard to the aforesaid findings, we decline to interfere with the orders passed by the learned Single Judge. The appeal accordingly fails on merits and stands dismissed. No order as to costs.