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2013 DIGILAW 998 (KAR)

L. D. Ballal v. State of Karnataka

2013-08-28

H.BILLAPPA

body2013
Judgment : 1. In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has called in question, the order dated 07.06.2012, passed by the Land Tribunal, Moodabidri in case No.TRL-127/1977-78 vide Annexure-A. 2. By the Impugned Order at Annexure-A, the Land Tribunal, Moodabidri, has allowed the application filed by the petitioner for amendment of Form No.7 and permitted the petitioner to amend Form No.7 by including Sy.No.212/2A measuring 3.16 acres, Sy.No.101/1B measuring 0.91 acres, Sy.No.97/8 measuring 0.16 acres. In Sy.No.97/6 to insert 6.28 acres instead of 4.50 acres. 3. Aggrieved by that, the petitioner has filed this writ petition. 4. The third respondent S.M.Cardoza filed Form No.7 claiming occupancy rights in respect of Sy.No.97/6 of Pranthaya village measuring 4.50 Manja land and 1.50 acre Punja land. The Tribunal grants occupancy rights in favour of third respondent S.M.Cardoza in respect of Sy.No.97/6C measuring 6.28 acres, Sy.No.97/8 measuring 0.16 acres, Sy.No.101/1B measuring 0.91 acres, Sy.No.212/2A measuring 3.16 acres. It was challenged in W.P.No.30181/2003. The matter was remitted for fresh consideration. The respondent No.3(d) filed application for amendment of Form No.7 on 15.12.2011 to include some survey numbers.. It has been allowed. Therefore, this writ petition. 5. The learned Counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that the third respondent had filed Form No.7 claiming occupancy rights in respect of Sy.No.97/6. But, occupancy rights were granted in respect of Sy.No.97/6C measuring 6.28 acres, Sy.No.97/8 measuring 0.16 acres, Sy.No.101/1B measuring 0.91 acres, Sy.No.212/2A measuring 3.16 acres. It was challenged in W.P.No.30181/2003. The matter was remitted for fresh consideration. Thereafter, at the stage of arguments, the respondent No.3(d) filed application for amendment of Form No.7 which was barred by time. Further he submitted that the amendment sought for amounts to fresh claim and not permissible in law. He also submitted that Form No.7 was filed on 22.08.1974. The application for amendment has been filed on 15.12.2011. The last date for filing Form No.7 was 31.6.1979. Therefore, the application was not maintainable in law. The Tribunal has erred in allowing the application. Therefore, the impugned order cannot be sustained in law. In support of his submission he placed reliance on the following decisions: 1) ILR 1999 page 69 2) 1978(1) KLJ page 48 6. The last date for filing Form No.7 was 31.6.1979. Therefore, the application was not maintainable in law. The Tribunal has erred in allowing the application. Therefore, the impugned order cannot be sustained in law. In support of his submission he placed reliance on the following decisions: 1) ILR 1999 page 69 2) 1978(1) KLJ page 48 6. As against this, the learned AGA submitted that the impugned order is incorrect and cannot be sustained in law. He placed reliance on the decision reported in ILR 2002 KAR page 2917. 7. The learned counsel for the third respondent submitted that the impugned order does not call for interference. He also submitted that the amendment sought for does not amount to fresh claim. Though the respondent No.3 has claimed Sy.No.97/6, the description given by him includes the Sy.Nos.97/8, 101/1B, 212/2A also. Therefore, the amendment sought for does not amount to fresh claim. He placed reliance on the following decisions: 1) 1997(5) KLJ page 101 2) ILR 1998 page 453 3) 1998(4) KLJ page 229 4) 2005(4) KCSR 2477 8. I have carefully considered the submissions made by the learned counsel for the parties. 9. Before considering the rival contentions, it is appropriate to refer to the decisions cited. 10. In R.Krishnaswamy Rao vs. Lakshmaiah Setty reported in ILR 1990 KAR page 369, this court has held, application for amendment to include fresh area, though in the same survey number, amounts to fresh claim and not permissible. 11. In Basappa vs. Land Tribunal, Bagalkot and Others, reported in 1978(1) Kar. L.J. page 48, the Division Bench of this court has held that in view of Section 48(8) Tribunal has no jurisdiction to grant occupancy rights to a person who has not made application within time allowed by Section 48A(1) of the Act. 12. In Channappa Gowda & Ors. Vs. State of Karnataka by Secretary Revenue Department reported in ILR 2002 KAR page 2917, this court has held that time limit for allowing amendment of Form No.7 was on 31.06.1979. Thereafter, no application for amendment seeking addition of survey number or extent claimed can be entertained. 13. In U.T.Venkata Rao vs. Pakeera Patali and Others reported in 1997(5) Kar. L.J. 101, this court has held that non mention or wrong mention of survey number in the application is no ground to reject the claim. Thereafter, no application for amendment seeking addition of survey number or extent claimed can be entertained. 13. In U.T.Venkata Rao vs. Pakeera Patali and Others reported in 1997(5) Kar. L.J. 101, this court has held that non mention or wrong mention of survey number in the application is no ground to reject the claim. Limitation laid down under Section 48A(1) is not applicable to such correction. 14. In Monappa Achary vs. Kula Nagappa Gowda and others reported in ILR 1998 Kar. page 453, this court has held in the circumstances of the case, it cannot be said the amendment application enlarges the claim. 15. In Ramachandra Devastanam, Sawada vs. Subbanna Shetty and Others reported in 1998(4) Kar.L.J. page 229, this court has held that the Tribunal can either suo-moto or on the application of the party rectify the mistake. 16. In Smt. Gangamma and Another Vs. Tahsildar, Bangalore South Taluk and Others Respondents reported in 2005 (4) KCCR page 2477, this court has held that the Tribunal may on its own or on the application of any of the parties, correct the extent of land in any order passed by it after causing actual measurement and after giving an opportunity of being heard to the concerned parties. 17. From the above decisions, it is clear, the application for amendment to include fresh area, though in the same survey number amounts to fresh claim and not permissible. Tribunal has no jurisdiction to grant occupancy rights to a person if the application is not made within the time. Amendment seeking addition of survey number or extent cannot be allowed after 31.6.1979. The Tribunal can correct the mistake either suo-moto or on the application of the parties. 18. In the present case, the third respondent has filed Form No.7 claiming occupancy right in respect of Sy.No.97/6. The Tribunal by its order dated 31.12.1981 has granted occupancy rights in favour of the third respondent in respect of Sy.No.97/6C measuring 6.28 acres, Sy.No.212/2A measuring 3.16 acres, Sy.No.101/1B measuring 0.91 acres, Sy.No.97/8 measuring 0.16 acres. It was challenged in W.P.No.30181/2003. The matter has been remitted for fresh consideration. Thereafter, the parties have adduced evidence and addressed arguments. At this stage, the respondent No.3(d) has filed application for amendment of Form No.7 on 15.12.2011 to include Sy.Nos.97/8 measuring 16 cents, 212/2A measuring 3 acres 16 Cents, 101/1B measuring 91 Cents. It was challenged in W.P.No.30181/2003. The matter has been remitted for fresh consideration. Thereafter, the parties have adduced evidence and addressed arguments. At this stage, the respondent No.3(d) has filed application for amendment of Form No.7 on 15.12.2011 to include Sy.Nos.97/8 measuring 16 cents, 212/2A measuring 3 acres 16 Cents, 101/1B measuring 91 Cents. In Sy.No.97/6 to insert 6.28 acres instead of 4.50. The last date to file Form No.7 was on 31.06.1979. The Division Bench of this court in Basappa vs. Land Tribunal, Bagalkot and Others has held that in view of Section 48(8) the Tribunal has no jurisdiction to grant occupancy rights to a person, if application is not made within time. In Channappa Gowda & Ors. Vs. State of Karnataka by Secretary Revenue Department reported in ILR 2002 KAR page 2917, this court has held that the time limit for allowing amendment of Form No.7 was on 31.06.1979. Thereafter, no application for amendment seeking addition of survey number or extent already claimed can be entertained. This decision is squarely applicable to the facts of the present case. Therefore, the impugned order cannot be sustained in law. Accordingly, writ petition is allowed and the impugned order at Annexure-A is hereby quashed. The Tribunal is directed to consider the claim of the third respondent in respect of Sy.No.97/6C.