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2004 DIGILAW 333 (KAR)

NATHAPPA v. VENKATARAYAPPA BIN NARAPPA

2004-06-05

S.ABDUL NAZEER

body2004
S. ABDUL NAZEER, J. ( 1 ) LEARNED HCGP is directed to take notice on behalf of respondents 2 and 3 ( 2 ) THE petitioners have called in question the order passed by the karnataka Appellate Tribunal in Appeal No. 399 of 2003, dated 21-1-2004 whereby the Tribunal allowed the appeal filed by them while setting aside the order passed by the respondent 3 dated 21-1-2003. ( 3 ) ONE Nathappa, father of the petitioners, filed an application in form 7 for grant of occupancy rights in respect of Sy. No. 58 of nalamachanahalli, Chintamani, measuring 2 acres 26 guntas of land. The Land Tribunal, Chintamani, by its order dated 3-10-1979 granted occupancy rights in respect of 1 acre of land out of 2 acres 26 guntas in the said survey number. ( 4 ) IT is not in dispute that the said Nathappa had not challenged the said order of the Land Tribunal in not granting occupancy rights in respect of 1 acre 26 guntas. The legal representatives of the said nathappa made an application in Form 7-A for grant of balance of 1 acre 26 guntas of land in the said survey number. The third respondent- assistant Commissioner granted the lands as per Annexure-F in favour of the petitioners. ( 5 ) THE first respondent filed an appeal before the Karnataka appellate Tribunal, Bangalore, challenging the said order of the assistant Commissioner. The Tribunal after considering the entire materials placed on record allowed the appeal. ( 6 ) I have heard the learned Counsel for the petitioners and the learned HCGP for respondents 2 and 3. ( 7 ) LEARNED Counsel for the petitioners submitted that in view of clause (iii) of Section 77-A (1) of the Karnataka Land Reforms (Amendment) Act, 1997, the L. Rs of late Nathappa have continued to be in actual possession and cultivation of land on the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997. Therefore, they are entitled for grant of occupancy rights in respect of the lands in dispute. On the other hand, the learned HCGP submits that the said Nathappa had applied for grant of occupancy rights under Section 48-A of the Act for grant of occupancy rights in. respect of lands measuring two acres 26 guntas. The Land Tribunal granted occupancy rights in respect of 1 acre only. On the other hand, the learned HCGP submits that the said Nathappa had applied for grant of occupancy rights under Section 48-A of the Act for grant of occupancy rights in. respect of lands measuring two acres 26 guntas. The Land Tribunal granted occupancy rights in respect of 1 acre only. Petitioners cannot maintain an application for grant of the balance of 1 acre 26 guntas of land, having regard to Section 77-A (l) (ii) of the Act. ( 8 ) SECTION 77-A of the Karnataka Land Reforms Act is as follows:"77-A. Grant of land in certain cases. (1) Notwithstanding anything contained in this Act, if the Deputy Commissioner, or the or any other officer authorised by the State Government in this behalf is satisfied after holding such enquiry as he deems fit, that a person. (i) was immediately before the first day of March, 1974, in actual possession and cultivation of any land not exceeding one unit, which has vested in the State Government under section 44; and (ii) being entitled to be registered as an occupant of such land under Section 45 or 49, has failed to apply for registration of occupancy rights in respect of such land under sub-section (1) of Section 48-A within the period specified therein; and (III) has continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka land Reforms (Amendment) Act, 1997, he may within one year from the date of commencement of the karnataka Land Reforms (Amendment) Act, 1997 grant the land to such person subject to such restrictions and conditions and in the manner, as may be prescribed: provided that the land so granted together with the land already held by such person shall not exceed 2 hectares of 'd' class of land or its equivalent thereto. (2) The provisions of sub-sections (2-A) and (2-B) of Section 77 and the provisions of Section 78 shall apply mutatis mutandis in respect of the grant of land made under sub-section (1)". (2) The provisions of sub-sections (2-A) and (2-B) of Section 77 and the provisions of Section 78 shall apply mutatis mutandis in respect of the grant of land made under sub-section (1)". ( 9 ) IT is clear from the language employed in Section 77-A (1) (ii) of the act that a person being entitled to be registered as an occupant of such land under Section 45 or 49 of the Act, has failed to apply for registration of occupancy rights in respect of such land under sub-section (1) of Section 48-A of the Act within the period prescribed, alone is entitled for grant of lands under Section 77-A of the Act. It is also clear that for grant of lands under Section 77-A of the Act, the applicant has to fulfil all the three conditions contained in clauses (i) to (iii) of Section 77-A (l) of the Act read with the proviso to the said section. The object of Section 77-A of the Act is to provide an opportunity to the tenants who could not avail of the opportunity in the first instance to file an application in Form 7 for grant of occupancy rights. The object of Section 77-A of the Act cannot be taken as to provide one more opportunity to those who had already availed the first opportunity of claiming occupancy rights in Form 7 and whose application was partially granted and partially not granted by the Land Tribunal. An application under Section 77-A is not the same of the application under section 45 of the Act. An application under Section 45 is for confirmation of occupancy rights and an application under Section 77-A of the Act is for the purpose of grant of lands. Admittedly, father of the petitioners had applied for grant of occupancy rights in respect of the lands in question under Section 48-A of the Act earlier. The petitioners cannot maintain an application for grant of the same lands under Section 77-A f the Act. ( 10 ) THE Tribunal on a consideration of the entire materials placed on record has come to the conclusion that the petitioners are not entitled for grant of the said lands. I do not find any error in the order impugned requiring interference. In the result, the writ petition is dismissed. Learned HCGP is permitted to file her memo of appearance within ight weeks from today. I do not find any error in the order impugned requiring interference. In the result, the writ petition is dismissed. Learned HCGP is permitted to file her memo of appearance within ight weeks from today. --- *** --- .