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2025 DIGILAW 423 (KAR)

George S/o P. K. Samuel v. Assistant Commissioner

2025-06-16

E.S.INDIRESH

body2025
ORDER : E.S.INDIRESH, J. 1. In this writ petition, petitioner is assailing the order dated 26.09.2017 passed by the Karnataka Appellate Tribunal, Bengaluru, in Appeal No.1039/2014 vide Annexure-A, inter alia, sought for confirmation of the order dated 19.04.2010 in the proceedings No.7A/1413/1999-2000 passed by the respondent No.1. 2. The facts in nutshell for the purpose of adjudication of the writ petition are that, one Smt.Tarabai, wife of Sri.Narayana Rao Chandavarakar - grandmother of respondent No.2 was the owner of the land bearing Sy.No.14/1 of Talaguppa village to an extent of 2.21 acres. The said Smt.Tarabai has sold an extent of 1 acre of land in favour of the father of the petitioner - P.K. Samuel and his wife Smt. Vanthibai as per registered Sale Deed dated 15.10.1959 (Annexure-B). It is also stated in the petition that, apart from 1 acre of land which was purchased by the father of the petitioner as per the registered Sale Deed referred to above, the father of the petitioner was in possession of remaining extent of 1 acre in Sy.No.14/1, which totally measures 2.21 acres. After the death of the father of the petitioner - P.K. Samuel, the petitioner continued to be in possession to an extent of 2 acres in land bearing Sy.No.14/1. It is also stated that, the RTC extracts as per Annexure-C series stand in the name of the father of the petitioner. In view of the amendment made to the Karnataka Land Reforms Act (hereinafter referred to as 'the Act'), more particularly, with regard to Sec.77A, the petitioner has filed Form No.7A before the first respondent and the first respondent has conferred occupancy right with respect to Sy.No.14 measuring 1 acre as per order dated 19.04.2010 in case No.7A/1413/99-2000(Annexure-F). Feeling aggrieved by the same, the respondent No.2 has filed appeal before the Karnataka Appellate Tribunal in Appeal No.1039/2014 and the Karnataka Appellate Tribunal, by Order dated 26.09.2017 (Annexure-A), allowed the appeal and as such, set aside the order at Annexure-F, dated 19.04.2010, passed by the first respondent. Hence, this petition is filed by the petitioner. 3. I have heard Sri.B.G. Mahesh, learned counsel for the petitioner, Sri. K.P. Yoganna, learned Additional Government Advocate for respondent No.1 and Sri. R. Gopal, learned counsel for respondent No.2. 4. Sri. Hence, this petition is filed by the petitioner. 3. I have heard Sri.B.G. Mahesh, learned counsel for the petitioner, Sri. K.P. Yoganna, learned Additional Government Advocate for respondent No.1 and Sri. R. Gopal, learned counsel for respondent No.2. 4. Sri. B.G. Mahesh, learned counsel for the petitioner contended that, the father of the petitioner - P.K. Samuel and his wife Smt. Vanthibai, have purchased an extent of 1 acre out of 2.21 acres in Sy.No.14/1 of Talaguppa Village as per registered Sale Deed at Annexure-B. He further contended that, after the death of the father of the petitioner, the petitioner is in possession of the land to an extent of 1 acre. It is also stated in the petition that the father of the petitioner - P.K. Samuel was in possession of the remaining extent of 1 acre in the very same survey number and therefore the petitioner is in possession of 2 acres of land in Sy.No.14/1. It is also argued that, the father of the petitioner has filed Form No.7A before respondent No.1 and the respondent No.1 vide order dated 19.04.2010 has conferred occupancy right vide Annexure-F. In that view of the matter, learned counsel for the petitioner argued that the finding recorded by the Karnataka Appellate Tribunal is contrary to records and without considering the fact that the land to an extent of 1 acre has been granted in favour of the father of the petitioner, the Tribunal has passed the impugned order at Annexure-A, which requires to be interfered with in this writ petition. 5. Per contra, Sri. R. Gopal, learned counsel for the respondent No.2 argued that the respondent No.2 is in possession of 1.2 acres of land and the petitioner herein is in possession of remaining 1 acre of land as per the registered Sale Deed dated 15.10.1959 and the land to an extent of 1.21 acres was not in possession of the father of the petitioner and the said extent of land was not the subject matter of tenancy nor vested with the State government and in that view of the matter, grant of 1 acre of land by the respondent No.1 in favour of the father of the petitioner as per Annexure-F is incorrect, and same was rectified by the Karnataka Appellate Tribunal and accordingly, sought for dismissal of the petition. 6. 6. Learned Additional Government Advocate Sri.K.P. Yoganna, argued on the lines of learned counsel appearing for respondent No.2. 7. In the light of the submissions made by learned counsel appearing for the parties, it is not in dispute that, the grandmother of respondent No.2 - Smt. Tarabai was the absolute owner of the land bearing Sy.No.14/1 of Talaguppa village, measuring 2.21 acres of land. The father of the petitioner purchased 1 acre out of 2.21 acres as per registered Sale Deed dated 15.10.1959 (Annexure- B). The proceedings have been conducted by the first respondent as per Annexure-F under Section 77-A of the Act based on the Form No.7A filed by the father of the petitioner claiming 1 acre of the land in Sy.No.14/1. I have carefully examined the finding recorded by respondent No.1 at Annexure-F and I am of the opinion that the respondent No.1 has failed to consider the procedure contemplated by this Court with regard to enquiry to be conducted under Section 77A of the Act. It is also not forthcoming from the order passed at Annexure-F and the order passed by the Karnataka Appellate Tribunal at Annexure-A with regard to date of vesting of the land with the Government and therefore, it is relevant to cite the Judgment of the Full Bench of this Court in the case of LOKAYYA POOJARY AND ANOTHER Vs. STATE OF KARNATAKA AND OTHERS reported in ILR 2012 KAR 4345.Paragraph Nos.3 and 4, 12 to 16 therein read as under: 3. It is not disputed and it cannot be disputed that in view of the passing of the Karnataka Land Reforms Amendment Act, by virtue of Section 44, all the lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under Section 5, shall with effect on and from the said date, stand transferred to and vested in the State Government. Therefore, the vesting of the tenanted land is by operation of law. No written order is needed under the provisions of the Act for completion of vesting. Once vesting takes place, the right of the owner of the land stands extinguished and the property vests in the State Government free from all encumbrances. Therefore, the vesting of the tenanted land is by operation of law. No written order is needed under the provisions of the Act for completion of vesting. Once vesting takes place, the right of the owner of the land stands extinguished and the property vests in the State Government free from all encumbrances. Notwithstanding such vesting the tenant may continue in possession of the property. In fact the condition precedent for vesting is, the land in question must be a tenanted land. Even if the tenant is not in possession, but it is a tenanted land. Even if the tenant is not in possession, but if it is a tenanted land, land vests in the Government. Therefore, there is no difficulty in holding that law does not prescribe any written order for giving effect to the intention of the Legislation. In the aforesaid judgment, in Hosabayya's Case, nowhere it is stated that unless there is a written order of vesting, the land cannot be said to have vested in the State. In this context it is necessary to refer to the observation in Hosabayya's Case, for which exception is taken. The same is as under: “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 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 48-A and not for the purposes of condition (I) 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 applicant being a lawful tenant on the appointed date and was in cultivation as on the appointed date is not to be established now for the present enquiry, but it should have been concluded fact and 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. 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 been already taken place and as such the evidence that is required to be placed 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 it again becomes a disputed fact which again is not within 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 commencement of the amending Act i.e., 1.11.1998.” 4. It is the words “Obviously it should find a place in some official records, as vesting of the land is in favour of the State Government” is understood to mean that there should be an order in writing of vesting of the land or in the records of the Government there should be an entry to the effect that this land is a vested land. We are afraid, we will be reading too much into the said sentence, as the language employed therein is very plain. What the Learned Judges in the aforesaid observation meant was, in a proceeding under Section 77-A no enquiry regarding vesting of the land is contemplated. The condition precedent for application of Section 77-A is, the land in respect of which application is made is a vested land. What the Learned Judges in the aforesaid observation meant was, in a proceeding under Section 77-A no enquiry regarding vesting of the land is contemplated. The condition precedent for application of Section 77-A is, the land in respect of which application is made is a vested land. If that is not in dispute, then the enquiry contemplated under Section 77-A is to find out firstly, whether the applicant was, immediately before the first day of March, 1974 in actual possession and cultivation of the said land; secondly, whether the said land does not exceed one unit; thirdly, whether the said person was entitled to be registered as an occupant of such land under Section 45 or 49; fourthly, whether such a person 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 lastly, whether the said person 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. In this context it has been held that unless the applicant placed before the authority such evidence in the form of some official record to show that the land in question was a vested land he cannot succeed as, an enquiry as contemplated under Section 48-A is not permissible. It is in this background, in order to put at rest there exists any doubt, it would be appropriate to interpret the said Section keeping in mind the object with which this amendment was brought to the Karnataka Land Reforms Act and the procedure which is prescribed for “grant of land” in certain cases as the head note of the Section makes it explicitly clear. “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. “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 dateof commencement of the Karnataka Land Reforms (Amendment) Act, 1997. he may grant the land to such person subject to such restrictions and conditions and in the manner, as may be prescribed. Provided that the land so granted together with the land already held by such person shall not exceed 2 Hectares or ‘D’ Class of land or its equivalent thereto. (2) The provisions of sub-Sections (2A) and (2B) of Section 77 and the provisions of Section 78 shall apply mutatis mutandis in respect of the grant of land made under sub-Section (1).” * * * 12. Though the Karnataka Land Reforms Act was enacted in the year 1961, radical amendments were brought to the said Act only in the year 1974 by Act 1/1974 by which by a stroke of pen all the tenanted lands were declared to have vested with the Government. The whole object of the said amendment was to see that the Tiller of the land gets occupancy rights in respect of the land and also to discourage absentee landlordism. After making a declaration that such tenanted land vested with the Government, the Act provided for grant of occupancy rights to those tenants who were cultivating the land immediately prior to the appointed date i.e., 1.3.1974. Chapter III of the Act deals with conferment of ownership of tenants. All lands held by or in the possession of tenants prior to the date of commencement of the Amendment Act, i.e., 01.03.1974 stood transferred to and vested in the State Government. Chapter III of the Act deals with conferment of ownership of tenants. All lands held by or in the possession of tenants prior to the date of commencement of the Amendment Act, i.e., 01.03.1974 stood transferred to and vested in the State Government. The effect of such vesting was, all rights, title and interest vesting in the owners of such lands ceased and vested absolutely in the State Government free from all encumbrances. The only right to which the landlord was entitled to, was to receive the amount from the State Government as provided under Section 47 of the Act. The landlord was not given the right to claim the land. However, the tenant was given a right to be registered as occupant in respect of such land. Section 45 conferred a right on tenants to get themselves registered as occupants of land subject to their satisfying the conditions mentioned therein. The tenant who wanted occupancy rights under Section 45 of the Act has to make an application to the Tribunal. In order to adjudicate the claims of such persons, a machinery was also created under the Act in the form of Land Reforms Tribunals. The power to confer occupancy rights on such tenants was vested with the Tribunal constituted under Section 48 of the Act. If a tenant filed an application claiming occupancy rights, then Section 48-A provided for an enquiry by the Tribunal, which is constituted under Section 48 of the Act. As is clear from the provisions of Section 48-A, as soon as the Tribunal received an application from a tenant requesting for registration of occupancy rights in his favour within the time prescribed, the Tribunal was under an obligation to issue individual notices to the persons mentioned in the application and also to such others as may appear it to be interested in the land. If any objection is filed disputing the validity of the applicant's claim or setting up rival claim, an enquiry was contemplated. The Tribunal shall hold an enquiry. After enquiry, if the Tribunal was satisfied that the applicant was a tenant and the land in question was a tenanted land, it would grant occupancy rights in favour of such applicant. If there was no objection, the Tribunal may at once pass orders granting the application. Initially, a time limit was prescribed for filing such applications. After enquiry, if the Tribunal was satisfied that the applicant was a tenant and the land in question was a tenanted land, it would grant occupancy rights in favour of such applicant. If there was no objection, the Tribunal may at once pass orders granting the application. Initially, a time limit was prescribed for filing such applications. However, from time to time it came to be extended. The last of such extension came to an end on 30.6.1979. Thereafter, the Tribunals were denuded with the power to entertain any such applications claiming occupancy rights. When an application had been filed by the tenant seeking for occupancy right, it was open to the landlord to whom notice was sent to contest the claim and show that the applicant was not a tenant of the land in question under him and the land in question was never a tenanted land and was in his self occupation. On such contention being taken, a duty was cast upon the Tribunal to go into the question whether the land in question was a tenanted land and thereafter, to record a finding whether the applicant was a tenant of the land in question and depending upon the material placed before it, to grant the land or reject the application. If it recorded a finding that the land in question was not a tenanted land, then such a land would not vest with the Government. The applicant had no right to seek for occupancy rights. The Tribunal had no jurisdiction to grant any occupancy rights. As a time limit was prescribed, even if a tenant was in cultivation of the lands and the land had vested with the Government, the tenant could not have enforced his right after the expiry of the said time. There were also cases where the land in question was a tenanted land and the tenant continued in occupation of the tenanted land and was cultivating the same, consequently, the same vested with the Government, but the said tenant could not be granted occupancy rights because he had not filed an application within the prescribed time. 13. Chapter IV deals with Ceiling on Land Holdings.Sections 63 and 64 provides for such ceiling. 13. Chapter IV deals with Ceiling on Land Holdings.Sections 63 and 64 provides for such ceiling. The land which is in excess of ceiling laid down in Sections 63 and 64 shall be surrendered to the State Government and a separate procedure is prescribed for adjudicating the excess of ceiling land and such excess land vest with the Government free from all encumbrances. Section 67 provides for surrender of lands in certain cases and such surrendered land also vest with the Government. Similarly, the lands which are acquired contrary to the provisions contained in Chapter V, namely 79-A, 79-B and 80 also vest in the Government. Section 77 of the Act deals with disposal of surplus land. It provides for grant of such surplus land in favour of dispossessed tenants who are not registered as occupants, displaced tenants having no land, landless agricultural labourers, landless persons and released bonded labourers. The said provision specifically did not provide for grant of lands to tenants who were in occupation of the land prior to 01.03.1974 vested with the Government, because they did not make an application for grant of land. Insofar as grant of the vested land to certain persons is concerned, it is the provisions of the Land Grant Rules, 1969 which are to be applied. In this background, in the year 1997, the Legislature felt that some of the tenants who continued to cultivate the land, which was vested with the Government and for various reasons could not file the applications, if they had to stand in the queue probably they might not get the said land granted. It is in those cases, as they had missed the bus and as they were actually cultivating the land prior to vesting and continued to cultivate the land from the date of vesting till 1997, a provision was thought of for grant of such land. It is to meet such a situation, Section 77-A has been introduced by the Karnataka Legislature by Act No. 23 of 1998. It is in the nature of a preferential treatment for grant of tenanted lands, which are vested with the Government, in favour of the tenant subject to his satisfying the conditions stipulated therein. 14. It is clear from the language used while describing Section 77-A that the Legislature described it as ‘grant of land in certain cases’ and not in all cases. 14. It is clear from the language used while describing Section 77-A that the Legislature described it as ‘grant of land in certain cases’ and not in all cases. The heading of the Section makes it clear that it is not a case of grant of occupancy rights or registering them as occupants of land. On the contrary, it is a case of grant of land. The said provision applies to lands which are vested in the State Government under Section 44. In other words, it is a land which is a tenanted land which is vested with the Government under Section 44, in respect of which the tenant who was entitled to grant of occupancy rights under Section 45, has not made an application within the time prescribed and therefore he has lost his right for registering him as occupant of the said land. When such a tenant, if he is continued in actual possession and cultivation of such land, on the date of commencement of the Karnataka Land Reforms Amendment Act, the authority under the said provisions may grant the land to such person, subject to the conditions stipulated therein being fulfilled. 15. By virtue of the powers conferred by Section 137 of the Act, the Government of Karnataka has made the Karnataka Land Reforms Rules, 1974, (for short, hereinafter referred to as the ‘Rules’). Rule 17 of said Rules prescribes the procedure to be followed by the Tribunal. It in turn provides for the procedure as specified for a summary enquiry under Section 34 of the Karnataka Land Revenue Act, 1964. Therefore, the procedure to be followed by the Land Reforms Tribunal is prescribed. Section 77-A also provides for holding an enquiry before such grant. The enquiry to be held under Section 77-A is not an enquiry under Rule 17 of the Rules. The intention of the Legislature is very clear when the Government introduced Rule 26-C by way of Notification dated 31.10.1998 which came into effect from 02.11.1998. The authority to grant land under Section 77-A is the Deputy Commissioner or the other Officer authorised by the State Government in this behalf. In other words, the power to grant land under Section 77-A is not conferred on the Tribunal. The authority to grant land under Section 77-A is the Deputy Commissioner or the other Officer authorised by the State Government in this behalf. In other words, the power to grant land under Section 77-A is not conferred on the Tribunal. The application under Section 45 is to be filed in Form No. 7, while an application under Section 77-A is to be filed in Form No. 7-A. 16. Interestingly, as in the case of Rule 17, for conducting enquiry, the procedure prescribed under Section 34 of the Karnataka Land Revenue Act, 1964, is not made applicable to enquiry under Section 77-A of the Act. In an enquiry under Section 77-A read with Section 26-C, the question of the authority going into the question whether the land in question is a tenanted land or not, would not arise, which question, the Tribunal constituted under the Act alone is competent to go into under Section 48 of the Act. No such power or jurisdiction has been conferred under Section 77-A on the Deputy Commissioner or the Assistant Commissioner. The enquiry contemplated under Section 77-A is to be confined only to the following: (1) Whether the person who has made an application under Section 77-A was in actual possession and cultivation of any land before the first day of March, 1974; (2) Being entitled to be registered as occupants 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. In other words, if such an application had been filed, which claim is adjudicated upon by the Tribunal and if it is negatived, then such a person is not entitled to file an application under Section 77-A; (3) Whether such a person is continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms Amendment Act, 1977." 8. Following the declaration of law made by Full Bench of this Court as noted above, it is the duty of the claimant/petitioner herein to establish by producing undisputed documents in the nature of some official record showing vesting of the land in favour of the State Government and such proof of vesting is to be considered by the Tribunal while granting the land to the claimant. In that view of the matter, on careful consideration of the observation made by the first respondent at Annexure-F, wherein, the procedure contemplated by this Court in the case of LOKAYYA POOJARY (supra) has not been followed by the first respondent and therefore it has to be held that there is procedural irregularity in passing the order at Annexure-F. Be that as it may. The Karnataka Appellate Tribunal by the impugned order at Annexure-A, set aside the order passed by respondent No.1, however, observation has been made with regard to vesting or otherwise of the land in question and also identification of the land disputed by both the parties. In that view of the matter, I am of the view that, it is a fit case to remand the matter to the respondent No.1 to re-consider the case of the parties afresh and pass appropriate orders following the declaration of law made by this Court in LOKAYYA POOJARY (supra). It is also pertinent to mention here that the Karnataka Appellate Tribunal has not considered the procedure to be adopted in terms of the Order of this Court in LOKAYYA POOJARY (supra). 9. Hence, I pass the following: ORDER (i) Writ Petition is allowed in part. (ii) Order dated 26.09.2017 in Appeal No.1039/2014 (Annexure-A) passed by the Karnataka Appellate Tribunal at Bengaluru, is hereby set aside. (iii) Order dated 19.04.2010 in Dispute No.7A/1413/99-2000 (Annexure-F) passed by respondent No.1 is hereby set aside and the matter is remanded to respondent No.1 to re- consider the issue afresh and to pass appropriate order in terms of the Full Bench Order of this Court in LOKAYYA POOJARY (supra) at the earliest, after affording opportunity of hearing to both side parties.