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2008 DIGILAW 268 (KAR)

Vaijanath Rao v. State of Karnataka

2008-06-05

AJIT J.GUNJAL, GUNJAL

body2008
ORDER Ajit J. Gunjal, J. The petitioners are questioning the order passed by the 2nd respondent, a copy of which is produced at Annexure ‘T’ and also has sought for a writ of mandamus to respondents 1 to 3 to cancel the entries in the Record of Rights relating to Sy. No.67/1 measuring 5 acres 8 guntas of Aliabad village, Taluk Bidar, District Bidar, which is made on the basis of the order produced at Annexure ‘T’. 2. The facts which are germane for the disposal of this writ petition can be summarised as follows: The land in question is Sy. No.67, which measures 18 acres 17 guntas in total. It is an Inam land. One Smt. Waheedunnisa Begum was a tenant of the said land. She made an application for grant of occupancy rights before the Special Deputy Commissioner (Inams) at Gulbarga. Pursuant to Annexure ‘A’ dated 14.04.1961 an extent of 6 acres and 17 guntas was granted in her favour. The remaining extent of 12 acres and odd also was granted in favour of Smt. Waheedunnisa Begum pursuant to Annexure ‘B’ dated 20.02.1962. The 4th respondent claims to have certain interest questions the order passed by the Special Deputy Commissioner (Inams) before the then Mysore Revenue Appellate Authority (MRAC). The said appeal was allowed and was remanded to the order at Annexure ‘C’, the claim of the 4th respondent for confirmation of occupancy rights was rejected. Incidentally, it is to be noticed that the said order has become final. This is one set of facts. 3. Pursuant to Annexure ‘E’ dated 11.10.1965, Smt. Waheedunnisa Begum sold the entire extent of 18 acres 17 guntas in favour of one John Thomas. The said Smt. Waheedunnisa Begum re-purchased the entire extent of Sy.No.67 pursuant to a sale deed dated 03.11.1971, a copy of which is produced at Annexure ‘F’ incidentally, it is to be noticed that pursuant to Annexure ‘G’ dated 23.03.1978 Smt. Waheedunnisa Begum, respondent No.4-Saida Khatoon and one Sagirunnissa Begum sold an extent of 8 acres 15 guntas in favour of one Smt. Uma Bai, W/o Ranoji. All the three have also sold an extent of 6 acres in favour of NGO’s Housing Co-operative Society pursuant to a sale deed dated 24.05.1977, copy of which is produced at Annexure ‘H’. All the three sold an extent of 2 acres 1 gunta in favour of Abdul Khaleel and Mohd. All the three have also sold an extent of 6 acres in favour of NGO’s Housing Co-operative Society pursuant to a sale deed dated 24.05.1977, copy of which is produced at Annexure ‘H’. All the three sold an extent of 2 acres 1 gunta in favour of Abdul Khaleel and Mohd. Abdul Gaffar pursuant to a registered sale deed dated 23.03.1978, copy of which is produced at Annexure ‘J’ another extent of 2 acres 1 gunta was sold by the three i.e., Waheeunnisa Begum, respondent No.4 and Sagirunnisa Begum in favour of one Mohd. Abdul Samad Siddique pursuant to a registered sale deed dated 23.03.1978, copy of which is produced at Annexure ‘K’ The petitioners have purchased an extent of 5 acres 8 guntas pursuant to a registered sale deed dated 09.09.1988 from Smt. Uma Bai, W/o. Rajoji, copy of which is produced at Annexure ‘P’. 4. Respondent No.4 filed an application for grant of occupancy rights in Form No. 1 under Certain Inams Ablition Act. 1977 to the extent of 5 acres 8 guntas. The said application is dated 26.06.1998, a copy of which is produced at Annexure ‘S’ Another application is filed by respondent No. 4 in Form No.7A under Section 77A of the Karnataka land Reforms Act on 26.06.1998. The Land Tribunal took up the application of the 4th respondent for grant of occupancy right in Form No.1 and held that respondent No.4 is entitled for confirmation of occupancy rights. Hence, granted the said application. Copy of the order passed by the Land Tribunal is at Annexure ‘T’. The said order is impugned in this writ petition. 5. Both Mr. B.C.Muddappa and Mr. Shivaramu, learned Counsel appearing for the contesting parties submit that these are the undisputed facts. 6. Mr. B.C.Muddappa, learned Counsel appearing for the petitioners would submit that the application filed by respondent. No. 4 in Form No. 1 under Section 11 of Certain Inams Abolition Act is barred by statute inasmuch as the last date for filing of the application was 31.03.1991. He further submits that in so far as the application in Form No.7A under Section 77A cannot be considered by the Land Tribunal inasmuch as under Section 77A of the Act, it is the Deputy Commissioner who is vested with the powers to adjudicate the application, which is filed in Form No. 7A. He further submits that in so far as the application in Form No.7A under Section 77A cannot be considered by the Land Tribunal inasmuch as under Section 77A of the Act, it is the Deputy Commissioner who is vested with the powers to adjudicate the application, which is filed in Form No. 7A. He further submits that the Record of Rights for the relevant period from the date of purchase is in the name of the petitioners. He further submits that the 4th respondent having sold her interest in Sy.No.67 could not have filed an application in Form No.7A. He further submits that the claim of the petitioner in Form No. 1 is also barred by res judicata inasmuch as her claim for grant of occupancy right was rejected earlier. 7. Mr. H.C. Shivaramu, learned Counsel appearing for respondent No.4 submits that a suit was filed in O.S.No. 164/2000 for declaration of title and all other consequential reliefs. He further submits that the orders passed by the Special Deputy commissioner rejecting the application of respondent No.4 is one without jurisdiction inasmuch as the said orders are passed under the Hyderabad Inams Abolition Act, which would not be applicable to the case on hand. He further submits that respondent No.4 is in possession and she is entitled to have the occupancy rights granted in her favour. 8. I have perused the papers and given anxious consideration to the submissions made by the learned Counsel appearing for the petitioners as well as respondents. Indeed the impugned order at Annexure ‘T’ is passed without notice to the petitioners who are interested persons as contemplated under the Act. A perusal of the order would disclose that the petitioners were not made parties to the proceedings. The application is for grant of occupancy rights in respect of an extent of 5 acres 8 guntas, which is purchased by the petitioners. It is also not in dispute that the names of the petitioners appear in the Record of Rights. Having regard to the fact that the petitioners are interested persons, they ought to have been notified of the proceedings. In fact the only contesting party before the Land Tribunal was State. Indeed the petitioners ought to have been made parties to the proceedings and they shall have been notified before the impugned order was passed. Having regard to the fact that the petitioners are interested persons, they ought to have been notified of the proceedings. In fact the only contesting party before the Land Tribunal was State. Indeed the petitioners ought to have been made parties to the proceedings and they shall have been notified before the impugned order was passed. Thus, the impugned order is in violation of the Principles of Natural Justice. 9. In normal course, this Court would have set aside the order of the Land Tribunal and remitted the matter to the Land Tribunal for fresh disposal, but however no useful purpose would be served by remitting the matter to the Land Tribunal for the following reasons: It is not in despite that the Land in question is an lnam Land. It is to be noticed that at one point of time, Smt. Waheedunnisa Begum claimed that she is a tenant of the entire extent. Initially her claim was granted by the Special Deputy Commissioner, (Inams) pursuant to two orders. But however, the said order was questioned by the 4th respondent and the Revenue Appellate Tribunal set-aside the order and remitting the matter. After remand, the claim of the 4th respondent was rejected, which has attained finality, which would necessarily mean that her claim for grant of occupancy rights is rejected pursuant to an order passed at Annexure ‘C’. What is significant is that the entire extent of land has changed hands, may not be in its entirety, but in small portions pursuant to various sale deeds, which are referred to earlier. Indeed, it is to be noticed that the 4th respondent has joined Waheedunnisa Begum as well as Sagirrunisa Begum in executing the sale deeds on various occasions. In so far as the present enquiry is concerned, the petitioner has purchased an extent of 5 acres 8 guntas from Smt. Uma Bai, pursuant to a registered sale deed dated 09.09.1988. 10. In the first instance. Waheedunnisa Begum, respondent No.4 and Sagirunnisa Begum sold an extent of 8 acres 15 guntas on 23.03.1978 and the petitioners have purchased a portion of it in the year 1988. It is to be noticed that the 4th respondent is a signatory and has joined the remaining two in executing the sale deed. Whatever title she had in the property has been transferred in favour of the petitioners. It is to be noticed that the 4th respondent is a signatory and has joined the remaining two in executing the sale deed. Whatever title she had in the property has been transferred in favour of the petitioners. Even assuming that the 4th respondent can claim occupancy rights after executing the sale deed in favour of smt. Uma Bai, no records are forthcoming to show that indeed she continued to cultivate the land as a tenant, which would entitle her to claim occupancy rights under Certain Inams Abolition Act. In fact respondent No.4 has lost all her rights pursuant to the sale deed in favour of Smt. Uma Bai. 11. The next question would be whether the application, which is filed under Section 11 of Karnataka Certain Inams Aboliton Act, 1977 is within time. To appreciate this contention Section 11 of the Act is required to be looked into. Section 11 of the Act of 1977 would read as under: “Procedure for registration as an occupant: (1) Every person entitled to be registered as an occupant under this Act shall make an application to the Tribunal constituted under the Karnataka Land Reform Act, 1961 on or before (31st March, 1984) Such application shall be disposed of by the Tribunal as if it is an application made under the said Act. (Provided that where the inam is an enfranchised inam, such application by the inamdar including holder of a minor inam shall be made to the Tahsildar on or before the 31st March 1991, The application shall be decided by the Tahsildar after issuing individual notices to the concerned inamdars and after such verification and enquiry held in such manner as may be prescribed)” A perusal of Section 11 would indicate that initially, the last date for filing of the application in Form No. 1 to claim occupancy right under the said Act was 31st March 1984. Thereafter, the time was being extended and finally, the last date to file the application was on or before 31st March 1991. Incidentally, it is to be noticed that if an application is filed within the stipulated time, the same is required to be considered by the Land Tribunal having regard to the provisions contained under the Land Reforms Act. But however, the question is whether the application filed by the 4th respondent is within time. Incidentally, it is to be noticed that if an application is filed within the stipulated time, the same is required to be considered by the Land Tribunal having regard to the provisions contained under the Land Reforms Act. But however, the question is whether the application filed by the 4th respondent is within time. Indeed the application for grant of occupancy right under the Act is filed on 26.06.1998. A perusal of the application would clearly indicate that it is filed under the Karnataka Certain Inams Abolition Act and under Rule 5 of the Rules, which would necessarily attract Section 11 of the Act. A perusal of the application, which is dated 26.06.1998 would indicate that the said application is filed beyond the last date as contemplated under Section 11 of the Act. Consequently, the said application is beyond time and could be termed as barred by statute. 12. In so far as Form No.7A is concerned, which is filed under sub-rule (1) of Rule 26(c) and under Section 77A of the Act, it is to be noticed that the Land Tribunal does not have jurisdiction to entertain the said application. Incidentally, it is to be noticed that the application, which is sought to be entertained by the Land Tribunal is the one which is found under Form No. 1. Be that as it may, since second application is filed under Section 77A of the Karnataka Land Reforms Act, I am of the view that the Tribunal has no jurisdiction to entertain the said application. 13. Having regard to the fact that both the contentions urged by the learned Counsel for the petitioners are to be accepted inasmuch as the application is beyond the statutory period and the 4th respondent having lost all her rights pursuant to the order passed by the Special Deputy Commissioner under the Inams Aboliton Act and that having attained finality and she having joined Waheedunnisa Bejum and Sagirunnisa Begum in executing the sale deed in favour of the petitioner’s vendor, I am of the view that the impugned order passed by the Land Tribunal at Annexure ‘T’ cannot be sustained. Consequently, the following order is passed: Petition stands allowed. Annexure ‘T’ stands quashed. 14. Rule is issued and made absolute. 15. Mr. S.Z.A. Khureshi, learned Additional Government Advocate appearing for respondents is permitted to file memo of appearance within four weeks.