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2006 DIGILAW 86 (KAR)

SOMAYYA v. STATE OF KARNATAKA

2006-01-20

K.RAMANNA

body2006
ORDER This is a writ petition filed by the legal representatives of late Kollagonda challenging the order dated 29-7-2000 passed by the Assistant Commissioner, Bhatkal whereby the second respondent rejected the Form 7 filed by deceased Kollagonda to the remaining extent of 27 guntas of land out of Survey No. 343/1 situate at Kappa Village, Bhatkal Taluk. Therefore, assailing the said order he has come up with this writ petition only on the ground that the impugned order is contrary to law and without holding a proper enquiry, rejected the application saying that application filed under Section 77-A is not maintainable and the Tribunal is not justified in passing a cyclostyled order which is highly illegal and arbitrary and the Tribunal has not recorded the statement of the parties concerned. Without proper enquiry, the Tribunal rejected the application filed by the L.Rs. of late Kollagonda which is illegal and is in violation of the principles of natural justice and Article 14 of the Constitution of India. Hence, this writ petition. 2. Heard the learned Counsel for the legal representatives of the deceased petitioner/applicant, learned Counsel for respondents 3(a) to 3(c) and learned High Court Government Pleader for respondents 1 and 2 and perused the records. During the course of arguments, learned Counsel for the L.Rs of the deceased petitioner contended that initially Kollagonda, the father of the petitioners filed Form 7 wherein he has claimed only 20 guntas of land out of Sy. No. 343/1 which was measuring 1 acre 20 guntas. Subsequently, he filed an application in Form 7-A under Section 77-A of the Karnataka Land Reforms Act but the Tribunal without holding proper enquiry passed the impugned order, dated 29-7-2000 and it is not a speaking order and the deceased Kollagonda who was cultivating the land as a lawful tenant to the extent of 1 acre 17 guntas but his claim limited only to an extent of 20 guntas. Therefore, the Tribunal has granted 20 guntas of land and he is not debarred from filing a fresh application under Section 77-A as he has already constructed a house and he is paying necessary tax and revenue. Therefore, rejection of the application filed in Form 7-A by the petitioners is a clear violation of the mandatory provisions of Karnataka Land Reforms Act, 1961 and Karnataka Land Reforms Rules, 1974 and principles of natural justice. 3. Therefore, rejection of the application filed in Form 7-A by the petitioners is a clear violation of the mandatory provisions of Karnataka Land Reforms Act, 1961 and Karnataka Land Reforms Rules, 1974 and principles of natural justice. 3. On the other hand, learned Counsel for respondents 3(a) to 3(c) contended that since the petitioner has already availed the opportunity by filing an application for grant of occupancy rights to the extent of 7 guntas, he cannot subsequently file an application for grant of remaining 27 guntas of land out of Sy. No. 343/1 of Kappa Village and the Tribunal has rightly rejected the application. Since, the application filed under Section 77 -A is not at all maintainable, there is no need to hold a detailed enquiry and the Tribunal is right in rejecting the application at the threshold. Therefore, the present writ petition is not at all maintainable. 4. In support of this contention, learned Counsel for the respondents 3(a) to 3(c) has relied on a decision in Nathappa (deceased) by L.Rs v. Venkatarayappa (deceased) by L.R. and Others, wherein this Court has held as follows.- "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 fulfill all the three conditions contained in Section 77-A(1)(i) to (iii) 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. 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 of the Act". 5. On the other hand, learned High Court Government Pleader for respondents 1 and 2 submits that when once the father of the petitioners had availed an opportunity by filing an application in Form 7 for grant of occupancy rights to the extent of 20 guntas, now he cannot file a fresh application in Form 7-A under Section 77-A claiming remaining extent of 27 guntas out of Sy. No. 343/1 and there is a clear bar under Section 77-A that those who have not availed of the opportunity by filing application in Form 7-A claiming occupancy rights, such persons are entitled to file application under Section 77-A(i). In the instant case, Tribunal is right in rejecting the application filed by the petitioner. Therefore, learned High Court Government Pleader prays for dismissal of the writ petition. 6. I have carefully examined the material placed on record. It is an undisputed fact that one Kollagonda, the father of petitioners 1 to 5 had filed Form 7 claiming occupancy rights to the extent of 20 guntas and accordingly occupancy rights has been granted. That the Tribunal has already conferred occupancy rights to the extent of 20 guntas of land and the petitioners herein have not challenged the earlier order granting occupancy rights to the extent of 20 guntas of land by the Tribunal. Petitioners have not given any cogent reasons. When late Kollagonda himself stated that he is said to have been in possession of the entire extent of the land Sy. Petitioners have not given any cogent reasons. When late Kollagonda himself stated that he is said to have been in possession of the entire extent of the land Sy. No. 343/1 under deceased respondent 1, he ought to have claimed the entire extent. Without challenging the earlier order, he has filed Form 7 claiming remaining extent of 20 guntas. When a tenant who had availed of an opportunity by filing an application in Form 7 claiming occupancy rights to some extent of the land, either he or his L.Rs are not entitled to file a fresh application under Section 77-A claiming the remaining extent of the land by filing an application in Form 7-A and there is a clear bar under Section 77 -A(iii) of the Karnataka Land Reforms Act and it is also not in dispute that late Kollagonda, the father of the petitioners has not challenged the earlier order. When the late Kollagonda limited his claim to the extent of 20 guntas, the Tribunal is right in granting whatever the claim made by him in the earlier application in Form 7. Therefore, the main object of Section 77-A of the Karnataka Land Reforms Act is to see that those who have not filed an application claiming occupancy rights before the Tribunal that they were the tenants immediately prior to 1-3-1974 and that they have not claimed earlier. Such persons are allowed to file Form 7 claiming occupancy rights but in the instant case, that Section 77-A of the Karnataka Land Reforms Act cannot be taken into consideration to provide one more opportunity to the applicant or his legal heirs are to file an application under Form 7-A. When once such an opportunity was availed by filing Form 7 claiming occupancy rights, such persons or his legal heirs are not entitled to file fresh application. Therefore, the Tribunal is right in rejecting the application filed by the petitioners under Form 7-A. There is no need to hold fresh enquiry to find out whether the deceased petitioner/applicant was in possession of remaining 27 guntas or not out of Sy. No. 343/1. Hence writ petition is dismissed as devoid of merits.