Research › Search › Judgment

Karnataka High Court · body

2005 DIGILAW 358 (KAR)

S. C. CHANDRAPPA v. STATE OF KARNATAKA

2005-06-10

S.R.NAYAK, V.JAGANNATHAN

body2005
S. R. NAYAK, J. ( 1 ) THIS writ appeal arises out of an application made by the appellant herein in Form 7-A under Section 77-A of the Karnataka Land Reforms act, 1961 (for short, the Act' ). The appellant claiming to be the tenant of agricultural lands comprised in Survey No. 263/3 measuring 11 guntas, survey No. 263/4 measuring 3 guntas, Survey No. 326/1 measuring 10 guntas and Survey No. 335/6 measuring 18 guntas, all situate in siddaghatta Village, KR. Pet Taluk, Mandya District made an application in Form 7-A under Section 77-A of the Act. The Assistant Commissioner, pandavapura Sub-Division who is the original authority, having conducted an enquiry by his order dated 17-7-2003 dismissed Form 7-A application filed by the appellant. Being aggrieved by the said order of the Assistant commissioner, the appellant preferred Appeal No. 951 of 2003 to the karnataka Appellate Tribunal, Bangalore (for short, 'the Tribunal' ). The tribunal, placing reliance on the judgment of the Division Bench of this court in the case of Hosabayya Nagappa Naik and Others v State of karnataka and Others, and having opined that the three conditions necessary for granting relief under Section 77-A of the Act did not exist, dismissed the appeal, by its order dated 24th September, 2003. The appellant being aggrieved by the order of the Assistant Commissioner and the Tribunal preferred Writ Petition No. 44484 of 2003. Learned Single judge of this Court, too, placing reliance on the judgment of the Division bench of this Court in Hosabayya Nagappa Naik's case, and without finding any flaw in the orders of the Assistant Commissioner and the tribunal, dismissed the writ petition by his order dated 16th February, 2005. Hence, this writ appeal by the aggrieved writ petitioner. ( 2 ) WE have heard Sri B. M. Krishna Bhat, learned Counsel for the appellant, Sri N. S. Sanjay Gowda, learned Counsel for the third respondent and Sri Deshraj, learned Government Advocate. Hence, this writ appeal by the aggrieved writ petitioner. ( 2 ) WE have heard Sri B. M. Krishna Bhat, learned Counsel for the appellant, Sri N. S. Sanjay Gowda, learned Counsel for the third respondent and Sri Deshraj, learned Government Advocate. ( 3 ) SRI B. M. Krishna Bhat, with his usual persuasiveness and vehemence would, at the threshold, point out that the Assistant commissioner as well as the Tribunal have rejected the application of the appellant in Form 7-A solely on the ground that in the record of rights and pahanis of the lands as on the appointed date, i. e. , on 1-3-1974, the name of the appellant is not shown as tenant-cultivator of the schedule land. The procedure adopted by the Assistant commissioner, according to Sri Krishna Bhat, is perfunctory and in total violation of the clear mandate contained in sub-section (1) of Section 77-A. Sri Krishna Bhat would draw our attention to the obligation cast on the authorised officer to hold an enquiry to find out whether the three conditions incorporated in sub-section (1) of Section 77-A exist or not. Sri krishna Bhat would also contend that fair opportunity was not given to the appellant by the Assistant Commissioner in the conduct of the enquiry and he was not given reasonable opportunity to produce evidence particularly documentary evidence such as gheni chit. It was also contended that though the gheni chit was produced before the tribunal, the Tribunal did not take that document into consideration in the way it should have done in the decision-making. Sri Krishna Bhat would also contend that the opinion of the Division Bench in the case of hosabayya Nagappa Naik cannot be regarded as good law in the light of the statutory provisions contained in Section 77-A of the Act. Sri krishna Bhat would conclude by submitting that the perfunctory enquiry conducted by the Assistant Commissioner and the Tribunal has resulted in failure of justice and, therefore, a case is made out for this court to step in under Article 226 to do justice to the appellant. Sri krishna Bhat would conclude by submitting that the perfunctory enquiry conducted by the Assistant Commissioner and the Tribunal has resulted in failure of justice and, therefore, a case is made out for this court to step in under Article 226 to do justice to the appellant. Sri N. S. Sanjay Gowda, learned Counsel appearing for third respondent, per contra, while supporting the reasons assigned by the Assistant commissioner would point out that though sufficient opportunity was given to the appellant by the Assistant Commissioner to produce documents in support of his case, the appellant did not avail of that opportunity and did not produce any document in support of his case. It was also contended that the so-called gheni chit sought to be produced before the Appellate Authority bears L. T. M. and, according to the third respondent, that is a concocted document. Sri Deshraj, learned government Advocate would support the order of the learned Single Judge. ( 4 ) HAVING heard the learned Counsels for the parties, the question that arises for our decision is whether the opinion of the learned Single Judge based on a judgment of a Co-ordinate Bench of this Court in the case of hosabayya Nagappa Naik can be faulted on any permissible ground of judicial review under Article 226. At the threshold, it needs to be noticed that Section 77-A was inserted into the Act by Karnataka Land Reforms (Amendment) Act, 1997 (Act 23 of 1998), with effect from 1-11-1998. The provision of Section 77-A in the context of the statute should be regarded as an extraordinary provision which is intended to help only those tenants who could not make application in Form 7 under Section 45 read with section 48 of the Act within stipulated time but who have prima facie evidence to show that they were in actual possession and personal cultivation of the lands concerned as tenants as on the appointed date, i. e. , on 1-3-1974 and that from that date onwards, they have been in continuouce possession of such lands even on the date when amendment act 23 of 1998 came into force. Section 77-A is not and cannot be regarded as a substitute for Section 45 read with Section 48 of the Act which provision enables a tenant to make an application for grant of occupancy rights. Section 77-A is not and cannot be regarded as a substitute for Section 45 read with Section 48 of the Act which provision enables a tenant to make an application for grant of occupancy rights. Sub-section (1) of Section 77-A reads as follows.- "77-A. Grant of land in certain cases.- (1) Notwithstanding anything contained in this Act, if the Deputy Commissioner, 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". ( 5 ) IT is quite clear that an applicant under Section 77-A in order to seek grant of land concerned should necessarily establish three conditions specified in clauses (i), (ii) and (iii) of sub-section (1 ). This position is not contested by Sri Krishna Bhat, learned Counsel for the appellant. What he, however, asserts is that sub-section (1) requires that the authorised officer, the Assistant Commissioner shall hold an enquiry which would enable an applicant under Section 77-A of the Act to prove the three conditions prescribed in clauses (i), (ii) and (iii) and in the instant case, such enquiry was not conducted by the Assistant commissioner. It is true that the Assistant Commissioner did not conduct the enquiry in the way the Land Tribunal conducts an enquiry in case of Form 7 declarations, but, the Assistant Commissioner and the tribunal were guided by the judgment of this Court in the case of hosabayya Nagappa Naik. It is true that the Assistant Commissioner did not conduct the enquiry in the way the Land Tribunal conducts an enquiry in case of Form 7 declarations, but, the Assistant Commissioner and the tribunal were guided by the judgment of this Court in the case of hosabayya Nagappa Naik. In that case, the nature and scope of the enquiry envisaged in sub-section (1) of Section 77-A of Act fell for decision-making. A Co-ordinate Bench of this Court, having considered the provisions of Section 77-A of the Act, in paragraph 7, held thus:"7. Having indicated the sweep and the extent of Rule 26-C let us now consider the scope of the Rule. Sub-rule (5) of the Rules is only to be understood in the context of Section 77-A and this is where the main provision of Section 77-A takes control of the situation. The procedure envisaged under Rule 26-C for the purposes of granting of land under Section 77-A of the Act cannot go beyond the purpose for which the Section is provided for. As noticed earlier, the object of the section is to provide an opportunity to those who might have been truly and lawfully tenants of the land, who were in possession and cultivation and continued to be in possession and cultivation, who might have missed the bus by not making an application within the stipulated period which in fact had come to be extended from time to time and to ensure that their possession and cultivation is continued without being disturbed any further. It is very essential to point out that an application under Section 77-A is not the same as an application under Section 45, and the enquiry contemplated under section 77-A cannot be the same as an enquiry conducted by the land Tribunal under Section 48-A of the Act. Whereas, on an application under Section 45, enquiry by the Land Tribunal is for grant of conferment of occupancy rights, an application under section 77-A to the Deputy Commissioner or other officer authorised by the State Government is for the purpose of grant of land. The provisions of Section 77-A is for the purpose of granting of land on satisfaction of certain conditions namely three conditions mentioned therein. It is to be noticed that conditions (1) and (2) are conditions which should have been satisfied and foregone in respect of the land. The provisions of Section 77-A is for the purpose of granting of land on satisfaction of certain conditions namely three conditions mentioned therein. It is to be noticed that conditions (1) and (2) are conditions which should have been satisfied and foregone in respect of the land. It is not an enquiry to ascertain whether a person can be granted land being a tenant as on the appointed date, such an enquiry was within the scope of Section 48a and not for the purposes of condition (1) of Section 77-A. Here the enquiry is only for a limited purpose to find out the accomplished fact as to whether the person was in actual possession and cultivation of the land on the appointed date. It is not as though the authorities are to hold an enquiry for the purpose of conferment of occupancy rights on the premise that the applicants were lawful tenants on the appointed date and the enquiry was for such purpose. The factum of the applicants being a lawful tenant on the appointed date and was in cultivation as on the appointed date is not to be established now in the present enquiry, but it should have been a concluded fact that the scope of the present enquiry is to let in evidence to satisfy or prove the existence of such a concluded fact. It is for the applicant to show that it was an undisputed fact and on record and that without anything furthermore he was a tenant lawfully in possession and cultivation of the land on the appointed date. The second condition is also of significance and importance in the context of considering the application i. e. , the land should have been vested in the State government as on the appointed date as it was a tenanted land. This again is an event which should have already taken place and as such the evidence that is required to be nlaced by the applicant to show that this is an event that'has taken place already. Obviously it should find a place in some official record, as vesting of the land is in favour of the State Government. In the absence of any such record is again becomes a disputed fact which again is not without the scope of an enquiry under Section 77-A of the Act. Obviously it should find a place in some official record, as vesting of the land is in favour of the State Government. In the absence of any such record is again becomes a disputed fact which again is not without the scope of an enquiry under Section 77-A of the Act. If these two conditions are fulfilled then there is the necessity and scope for inquiring with regard to the third condition namely as to whether the applicant has continued to be in possession and cultivation of such land as on the date of the commencement of the amending Act i. e. , 1-11-1998". ( 6 ) PERHAPS realizing that no exception can be taken to the order of the Assistant Commissioner or that of the Tribunal if we go by the statements of law made by the Division Bench in the case of Hosabayya nagappa Naik, Sri Krishna Bhat would understandably contend that judgment is not good law. In the said judgment, the Co-ordinate Bench has in unmistakable terms ruled that the object of Section 77-A is only to provide an opportunity to those who might have been truly and lawfully the tenants of the land, who were in possession and cultivation as on the appointed day and who continue to be in possession and cultivation even on the date of commencement of the Amendment Act 23 of 1998. It is also held by the Division Bench that an application under section 77-A is not the same as an application under Section 45, and the enquiry contemplated under Section 77-A cannot be the same as an enquiry conducted by the Land Tribunal under Section 48-A of the Act. Having so opined, the Division Bench with regard to the three conditions has held that conditions (i) and (ii) are conditions which should have been satisfied and foregone in respect of the land. It is not an enquiry to ascertain whether a person can be granted a land being a tenant as on the appointed date and that such an enquiry was warranted only in the case of Form 7 application where the enquiry was conducted under section 48-A of the Act. It is not an enquiry to ascertain whether a person can be granted a land being a tenant as on the appointed date and that such an enquiry was warranted only in the case of Form 7 application where the enquiry was conducted under section 48-A of the Act. The clear ratio of the judgment is that an applicant in Form 7-A under Section 77-A of the Act is not entitled to seek an opportunity to establish that he was in actual possession and personal cultivation of the land concerned as a tenant on the appointed date, i. e. , on 1-3-1974 or the date on which the Amendment Act 23 of 1998 came into force with effect from 1-11-1998. The Division Bench has further held that the factum of possession and status of the applicant as on the appointed date should be an undisputed fact. It is also further held that the land in respect of which application in Form 7-A is made is a tenanted land and such land must have been vested in the State government already and that the Government records should reflect that position. ( 7 ) WE have no good or weighty reason to differ from the opinion of the co-ordinate Bench. We have more than one reason to say so. As already pointed out, the proceeding under Section 77-A cannot be equated to a proceeding initiated by the Land Tribunal in pursuance of an application in Form 7 made under Section 45 of the Act. It needs to be noticed at the threshold that if an applicant in Form 7 establishes that he was in actual possession and personal cultivation of the subject lands as on the appointed date, that is, 1-3-1974, the Land Tribunal is duty-bound to grant occupancy rights of such lands. But, that is not the situation under Section 77-A of the Act. Section 77-A of the Act is only an enabling provision to grant a land which is already vested in the State government to an applicant. No applicant in Form 7-A can claim a land as a matter of right or as a matter of course. For varieties for reasons, the Assistant Commissioner may not grant land to an applicant. Section 77-A of the Act is only an enabling provision to grant a land which is already vested in the State government to an applicant. No applicant in Form 7-A can claim a land as a matter of right or as a matter of course. For varieties for reasons, the Assistant Commissioner may not grant land to an applicant. Secondly, a person who has missed the bus due to his indolence cannot be treated on par with a person who is vigilant in working out his legal remedies by making application in Form 7 within the stipulated time. We say this, because, law helps the vigilant, and not the indolent. That seems to be the legislative policy behind Section 77-A of the Act. If the legislature wanted to help even those tenants who did not make application in Form 7 within the stipulated time to secure grant of occupancy rights, of course, the law maker would have extended the time to make Form 7 applications. ( 8 ) COMING to the facts of this case, it is shown satisfactorily that the appellant has utterly failed to establish all the three conditions envisaged in clauses (i), (ii) and (iii) of sub-section (1) of Section 77 of the Act. It needs to be noticed that all the three conditions should coexist in order to enable the Assistant Commissioner to grant the lands sought by an applicant by virtue of the power conferred upon him. The revenue records would not support the contention of the appellant that he was in actual possession and personal cultivation of the subject lands as on the appointed date, i. e. , 1-3-1974 and that he continued to be in possession till the Karnataka Land reforms Amendment Act 23 of 1998 came into force with effect from 1-11-1998. Similarly, there is absolutely no evidence to show that the subject lands are vested in the State Government by virtue of the provisions of Section 44 of the Act. No Government records are placed before us to show that the subject lands are vested in the State government by virtue of Section 44 of the Act. Therefore, the Assistant commissioner, the Tribunal as well as the learned Single Judge are justified in not granting the relief to the appellant. Writ appeal is devoid of merit and it is accordingly dismissed. No costs. Therefore, the Assistant commissioner, the Tribunal as well as the learned Single Judge are justified in not granting the relief to the appellant. Writ appeal is devoid of merit and it is accordingly dismissed. No costs. ( 9 ) SRI Deshraj, learned Government Advocate is permitted to file memo of appearance within four weeks. --- *** --- .