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2008 DIGILAW 281 (KAR)

Francis Rebello v. K. VimaIa

2008-06-11

N.K.PATIL

body2008
ORDER N.K. Patil, J. The Petitioner-tenant questioning the correctness of the order dated 10/01/2003 in proceedings No.LRT 28,383/81-82 vide Annexure -G” on the file of the Land Tribunal, Mangalore Taluk, rejecting his claim for registration of occupancy rights in respect of Sy.No.52/2A1A measuring 0-10 cents situate at Alape village, Mangalore Taluk, has presented the instant petition. 2. The undisputed facts of the case are that the petitioner claims that he has filed Form No.7 for registration of occupancy rights in respect of Sy.No.52/2A1A measuring 0-10 cents situate at Alape Village. The said application filed by the petitioner came up for consideration before the Land Tribunal and the same was rejected. The petitioner questioned the correctness of the order passed by the Land Tribunal by filing Writ Petition before this Court. The said Writ Petition filed by the petitioner was allowed and the order passed by the Land Tribunal was set aside and the matter was remanded for considering the same afresh. After remand, the Land Tribunal after hearing both sides through their Counsel and after evaluation of the original records and the material available on the file, has rejected the claim of the petitioner in view of the admission made by the petitioner that he has not filed any application seeking for registration of occupancy rights except stating that he has been in possession of the land in question since 75 years. In view of rejection of his claim, he filed the present writ petition seeking appropriate relief as stated supra. 3. The principal submission canvassed by Sri S.S.Sripathy, Learned Counsel appearing for the petitioner is that, the impugned order passed by the Land Tribunal is liable to be set aside on the ground that the Land Tribunal has not conducted proper enquiry in strict compliance of the relevant provisions of the Land Reforms Act and Rules and has given a finding contrary to the material available on records. To substantiate his submission, he has taken me through the records made available by the Government Pleader and the report issued by the Office of Tahsildar cum Secretary of the Land Tribunal stating that the petitioner has filed an application on 28/06/1976 and the Tribunal without referring to the said material, ought not to have recorded a finding that the petitioner has not filed an application for grant of occupancy rights and further he pleaded to point out that since several years the petitioner is paying taxes to the Gram Pamchayat and is subsequently paying taxes to the Corporation and is very much residing in the suit schedule lands. This aspect of the matter has not been looked into by the Tribunal nor has conducted proper enquiry in strict compliance of Rule 17 of the Land Reforms Rules read with Section 34 of the Land Revenue Act and the impugned order passed by the Land Tribunal is liable to be set aside. 4. Per contra, learned Counsel appearing for the respondent while opposing the contentions urged on behalf of the petitioner that the impugned order has been passed in strict compliance of the relevant provisions of Land Reforms Act and Rules and no error or illegality, as such, is committed by the Land Tribunal. Further, the learned Counsel appearing for the first respondent at the out set submitted that occupancy rights in respect of the land in question has already been granted in favour ofthe first respondent by the Land Tribunal in the year 1977 and the’said order as on date has become final and he further submitted that the subsequent application filed by the petitioner in the year 1976 for grant of occupancy rights was not maintainable as provided under the relevant provisions of the Land Reforms Rules. To substantiate his contention, he placed reliance on the Judgment of this Court in the case of PARAMESHWAR TIMMAYYA HEGDE AND OTHERS Vs. VENKATARAMAN MANJAPPA HEGDE SINCE DECEASED BY HIS LRs AND OTHERS, ILR 2000 Kar 3170 and the Judgment of the Division Bench of this Court in the case of DAVALSAB Vs. To substantiate his contention, he placed reliance on the Judgment of this Court in the case of PARAMESHWAR TIMMAYYA HEGDE AND OTHERS Vs. VENKATARAMAN MANJAPPA HEGDE SINCE DECEASED BY HIS LRs AND OTHERS, ILR 2000 Kar 3170 and the Judgment of the Division Bench of this Court in the case of DAVALSAB Vs. THE STATE OF KARNATAKA BY ITS SECRETARY FOR THE DEPARTMENT OF REVENUE AND OTHERS, ILR 2008 Kar 280, and submitted that, in view of the relevant provisions of the Land Reforms Rules and the law laid down, the subsequent application for grant of occupancy rights is not maintainable and the Land Tribunal has rightly rejected the claim holding that, there is no application, as such, filed by the petitioner seeking for grant of occupancy rights in respect of the land in question. Therefore, he submitted that the Writ Petition filed by the petitioner is liable to be dismissed as devoid of merits at threshold itself. 5. Having heard the learned Counsel appearing for both the parties, after careful evaluation of the original records made available by the learned Government Pleader appearing for respondents 3 and 4 and also after going through the impugned order passed by the Land Tribunal, Mangalore, what emerges is that the Land Tribunal after hearing the contentions of the Counsel representing the parties has framed the following points for consideration: After careful evaluation of the original records available on file and oral and documentary evidence adduced by the parties, the Land Tribunal by assigning valid reasons, has rejected the application filed by the petitioner holding that the petitioner has not filed any application for grant of occupancy rights and has also not produced any receipt, such as, revenue taxes, surrender deed etc., except making oral submission. In view of the specific finding recorded by the Land Tribunal by assigning cogent and valid reasons and the material available on record, interference by this Court is not advisable and I find no good grounds as such are made by the petitioner to entertain the instant writ petition and therefore I decline to interfere with the impugned order passed by the Land Tribunal. 6. 6. Yet, another reason as to why the instant Writ Petition filed by the petitioner is liable to be rejected at the threshold is for the reason that after careful evaluation of the original records, it emerges that the petitioner has filed Form No.7 for grant of occupancy rights on 14/08/1974 in respect of Sy. Nos. 52/1 measuring 0-16 cents, 52/9 measuring 0-05 cents and 52/12 measuring 0-03 cents totally measuring 0-24 cents. The same was numbered as LRT 28/1981-82 and occupancy rights has been granted in favour of the petitioner. Further it is the case of the petitioner that he has filed second application for registration of occupancy rights in respect of the land in question on 28/06/1976 without producing the photocopy of the same or an endorsement or communication issued by the Tahsildar in that behalf. Further, the learned Counsel has taken me through the original records and pointed out at page 108, the report submitted by the Secretary, 7th Land Tribunal, Mangalore, wherein he has stated that the petitioner has filed Form No.7 and on perusal of the same it is clear from the village-var-register that on 28/06/1976 the petitioner has filed an application and has claimed 0-04 cents. It is pertinent to note that the manner in which the report is submitted itself gives rise to doubt. The petitioner claims that he has filed another application on 28/06/1976 for grant of occupancy rights in respect of the land in question measuring an extent on 0-04 cents but what emerges from the original record which is available at ink page 108 is that, the Tahsildar has referred Sy. Nos. 165/5, 52/9, 52/12 measuring an extent of 0-08, 0-05 and 0-03 cents respectively and stated that there is no claim as such made by the petitioner inthe year 1976 in respect of other 3 sue Sy. Nos. as stated supra and also there is no need for the Secretary to effect the same in the village-var-register in respect of the 3 Sy. Nos. Nos. as stated supra and also there is no need for the Secretary to effect the same in the village-var-register in respect of the 3 Sy. Nos. as referred above on the basis of the application filed by the petitioner for grant of occupancy rights as early as on 14/08/1974 and the petitioner has categorically admitted in his cross-examination before the Land Tribunal that he has not filed Form No.7 and only taking advantage of the report given by the Secretary attached to the Tahsildar’s office that he is in possession of 10 cents whereas the possession claimed by the petitioner is 0-04 cents and he being a resident of the village, does not know and has categorically stated that there is an old building and what it emerged is that the petitioner has not stated true facts either before the Tribunal or before this Court disclosing the statement made by him. Further the electricity bill produced by the petitioner vide Annexure-J dated 07/10/1974 shows the name of the petitioner and that he is a resident of Kannur Village, Mangalore whereas the claim of the petitioner is in respect of the land in question situate in Alape village and there is no such schedule mentioned in the said receipt for having paid the electricity bill in respect of the land in question and this Court cannot take into consideration nor the same has any bearing on the facts of the case. It is not the case of the petitioner that all these receipts have been produced before the Land Tribunal and has substantiated that he is placing reliance for the first time that too without having produced the receipt pertaining to the schedule land. 7. The learned Counsel appearing for respondent No.1 and Government Advocate appearing for respondents 3 and 4 respectively rightly pointed out regarding the second application alleged to have been filed by the petitioner, as per the report of the secretary, there is no provision to entertain the subsequent application for grant of occupancy rights for the left out survey numbers under the Land Reforms Act. This aspect had come up for consideration before this Court and this Court in the case of PARAMESHWAR TIMMAYYA HEGDE AND OTHERS Vs. This aspect had come up for consideration before this Court and this Court in the case of PARAMESHWAR TIMMAYYA HEGDE AND OTHERS Vs. VENKATARAMAN MANJAPPA HEGDE SINCE DECEASED BY HIS LRs AND OTHERS (SUPRA) as stated supra has held that applicant is entitled to file Form No.7 only once and there is no provision under the Land Reforms Act to entertain the subsequent Form No.7. The law laid down as referred to above is: made applicable to the facts and circumstances of this case also. Int the instant case, it is the case of the petitioner that he has filed an application in the year 1974 and alleges to have filed a subsequent application in the year 1976. The said claim itself is barred by lawf and therefore the petitioner is not entitled to seek any relief as rightly held by the Land Tribunal. 8. Having regard to the facts and circumstances of the case and the factual and legal aspects of the matter, I am of the considered view that interference by this Court in the impugned order passed by the Land Tribunal is not justifiable. Hence, I decline to interfere with the impugned order passed by the Land Tribunal and the petition if dismissed as devoid of merits. Ordered accordingly.