Allowed

Bhimappa, S/O Shivappa Malagali v. State of Karnataka

Karnataka HC8 Sept 2020WP/60466/2010

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed writ petitions challenging an Assistant Commissioner's order granting land under Form 7A of the Karnataka Land Reforms Act. The Court held the order unsustainable as a Form 7 application for the same land was already pending before the Land Tribunal, making the Form 7A application maintainable and directing the Tribunal to adjudicate the pendency.

What did the court decide?

The Assistant Commissioner's order dated 18.01.2011 granting land under Form 7A was set aside. The Land Tribunal Belgaum is directed to dispose of the pending Form 7 application for occupancy rights.

Bhimappa, S/O Shivappa Malagali Vs State of Karnataka — Land Acquisition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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Dated this the 8^th day of September 2020

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Before

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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Writ Petition No.61409 of 2011 (LR) C/w W.P. No.60466 of 2010 (KLR-RES)

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IN W.P.NO.61409/2011

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BETWEEN

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SHRI.BASAVANNEPPA YALLAPPA KOCHCHARAGI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O PANAGUTTI (PANAGUDDI), TALUKA & DIST: BELGAUM.

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SHRI. GANGAPPA YALLAPPA KOCHCHARAGI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O PANAGUTTI (PANAGUDDI) TALUKA & DIST: BELGAUM. ...PETITIONERS

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(BY SRI. VITTHAL S. TELI, ADVOCATE)

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AND

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THE STATE OF KARNATAKA, REP.BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, M.S.BUILDING, BANGALORE.

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THE ASSISTANT COMMISSIONER, BELGAUM SUB DIVISION, BELGAUM.

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THE TAHSILDAR, BELGAUM TALUKA, BELGAUM.

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SRI.SOMAPPA SHIAVAPPA MALAGALI, SINCE DIED REP.BY LRS

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4A. BASALINGAWWA W/O SOMAPPA MALAGALI,

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4B. BASAGOUDA SIVAPPA MALAGALI,

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4C. ADIVEPPA SOMAPPA MALAGALI,

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4D. KEMPAVVA SIDDAPPA ASUNDI,

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4E. SEBAKKA RUDRAPPA ASUNDI

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4F. BASAVVA LAGAMAPPA MALAGALI,

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R/O HARANKOL, TAL & DIST: BELGAUM.

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SHRI.BHIMAPPA SHIVAPPA MALAGALI, SINCE DIED BY LRS.

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5A. IRRAPPA,

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S/O. BHIMAPPA MALAGALI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: HUDALI, TAL & DIST: BELAGAVI.

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5B. SANGAPPA, S/O. BHIMAPPA MALAGALI, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: K MALLAPUR, TAL: GOKAK, DIST: BELAGAVI.

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5C. ANNAWWA, W/O. NAGAPPA GONI, AGE: 45 YEARS, OCC: HOUSEHOLD, R/O: HUDALI, TAL & DIST: BELAGAVI. 5D. SHIVANGOUDA,

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S/O. BHIMAPPA MALAGALI, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: K MALLAPUR, TAL: GOKAK, DIST: BELAGAVI.

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5A. IRRAPPA,

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S/O. BHIMAPPA MALAGALI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: HUDALI, TAL & DIST: BELAGAVI.

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5E. SOMAPPA, S/O. BHIMAPPA MALAGALI, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: HASANAKALLA, POST: K.MALLAPUR, TQ: GOKAK, DIST: BELAGAVI.

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5A. IRRAPPA, S/O. BHIMAPPA MALAGALI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: HUDALI, TAL & DIST: BELAGAVI.

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5F. MAHADEVI, W/O. PRAKASH DYAGANANATTI, AGE: MAJOR, OCC: HOUSEHOLD, R/O: NABAPUR, TAL: GOKAK, DIST: BELAGAVI.

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SRI.TAYAPPA SHIVAPPA MALAGALI, (SINCE DIED REPRESENTED BY LRs)

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6A. GOURAWWA W/O TAYAPPA MALAGALI,

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6B. BASAPPA TAYAPPA MALAGALI,

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6C. SHIVANGOUDA TAYAPPA MALAGALI,

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6D. DUNDAPPA TAYAPPA SHIVAPPA,

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6E. GANGAVVA W/O BASAPPA SHETTENAVAR,

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R/O HARANKOL, TAL & DIST: BELGAUM.

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SHANKAR SHAIVAPPA MALAGI, SINCE DIED BY LRs.

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7A. NILAVVA SHANKAR MALAGALI, AGE ABOUT 45 YEARS, OCC: AGRICULTURE

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7B. SOMAPPA SHANKAR MALAGALI, AGE ABOUT 25 YEARS, OCC: AGRICULTURE,

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BOTH 7A AND 7B ARE R/O MUSLMARI POST: MALLAPUR, TAL: GOKAK, DIST: BELAGAVI.

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GOUSKHAN ALIAS BABAKHAN RAJAQSAB DESAI (DECEASED REPRESENTED BY LRs)

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8A. SRI.AMINSAB RAJAQSAB DESAI,

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MAHABOOB BABASAHEB DESAI, (DECEASED REPRESENTED BY LRs)

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9A. ISMAIL MAHABOOB DESAI,

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9B. IQBAL MAHABOOB DESAI,

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9C. RASUL MAHABOOB DESAI,

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RAFEEJA ALIAS AMMIJAN BABASAHEB DESAI

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BABASHA BABASAB DESAI,

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SMT.SHAHAJAN APPASAB DESAI, 13. SMT.MEERAMBEE APPASAB DESAI,

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HAMATHKHAN APPASAB DESAI,

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RASHOOL APPASAB DESAI,

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IQBAL APPASAB DESAI, 17. ISMAIL APPASAB DESAI, 18. SMT.RIYAS BEGAM APPASAB DESAI, 19. SMT.FATIMA OR DWAJI APPASAB DESAI, 20. MOHAMMED KHANSAB DESAI, (DECEASED BY LRS) 20A. APPASAB MOHAMMED DESAI, 20B. BASHEER MOHAMMED DESAI, RESPONDENT NO.8 TO 20 ARE RESIDENTS OF POST: ANKALGI, TQ: GOKAK, DIST: BELGAUM.

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SMT.ASADBEGAM UMARKHAN DESAI, R/O BELGAUM. ...RESPONDENTS

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(BY SRI. V.S.KALASURMATH, HCGP FOR R1 TO R3 SRI. DINESH M.KULARNI, ADVOCATE R5A. SRI. JAGADISH PATIL, ADVOCATE FOR R5D SRI. SHARAD V.MAGADUM, ADVOCATE FOR R21)

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(NOTICE TO R4(B-F), R5(E), R6(C), R6(D), R7(A) – SERVED) (NOTICE TO R5(B) HELD SUFFICIENT) (NOTICE TO R8-R20 DISPENSED WITH)

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(PETITION STANDS DISMISSED AGAINST R5(C & F), R6 (A, B & E), R7(B)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18/01/2011 PASSED BY THE

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RESPONDENT NO.2 VIDE BEARING THE HARANKOL/7A/SR/816/2003 AND SAME IS PRODUCED AT ANNEXURE-P.

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IN W.P. NO.60466/2020

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BETWEEN BHIMAPPA, S/O SHIVAPPA MALAGALI AGE 95 YEARS OCC:AGRICULTURE R/O HARANKOLLA TQ:DIST:BELGAUM SINCE DECEASED REPRESENTED BY HIS L.R., SHIVAGONDA S/O BHIMAPPA MALAGALI. AGE: 48, OCC: AGRICULTURE, R/O HARANKOLLA, TQ & DIST: BELAGAVI. ...PETITIONER

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(BY SRI. JAGADISH PATIL, ADVOCATE)

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A N D

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THE STATE OF KARNATAKA BY ITS SECRETARY DEPT OF REVENUE M.S.BUILDING BANGALORE-1 BENGALURU CITY

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THE LAND TRIBUNAL BELGAUM REP BY ITS SECRETARY I.E TAHASILDAR BELGAUM BELGAUM, BELAGAVI

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SMT.ASAD BEGUM DESAI AGE 68 YEARS, R/O BELGAUM NOTE:AS PER THE KNOWLDEGE AND INSTRUCTIONS SHE IS THEONLY LEGAL

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HEIR OF LAND LORD

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THE SUPERINTENDENT OF POLICE BELGAUM, BELAGAVI

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BASAVANEPPA YALLAPPA KOCHCHARAGI, AGE: 44 YEARS OCC: AGRICULTURE, R/O: PANAGUTTI, TQ & DIST: BELAGAVI.

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GANGAPPA YALLAPPA KOCHCHARAGI, AGE: 43 YEARS OCC: AGRICULTURE, R/O: PANAGUTTI, TQ & DIST: BELAGAVI. …RESPONDENTS

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(BY SRI. V.S.KALASURMATH, HCGP FOR R1, 2 & 4 SRI VITHAL S. TELI, ADVOCATE FOR R5 & R6) (NOTICE TO R3 IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT NO.2 TO DISPOSE OF THE FORM NO.7 IN FILE NO. KLR/SR/HARAANKOLLA/92 PENDING FOR ADJUDICATING IN RESPECT OF RS NO. 22/1 OF HARANKOLLA VILLAGE; AND TO DIRECT THE RESPONDENT NO.5 TO GIVE POLICE PROTECTION, TILL DISPOSAL OF THE FORM NO.7 BY THE LAND TRIBUNAL BELGAUM.

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THESE WRIT PETITIONS COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner in W.P. No.60466 of 2010, Sri. Bhimappa, S/o Shivappa Malagali, has filed the writ petition for a direction to the Land Tribunal, Belgaum ( the second respondent ) to consider and dispose of the Form No.7 in KLR/SR/Haraankolla/92 under the Karnataka Land Reforms Act, 1961 (for short, ‘ the Act ’) filed by him and his family members for grant of occupancy rights for the land in R.S. No.22 (presently R.S. No.22/2) of Harankolla village, Belgaum Taluk. The petitioners in the other writ petition in W.P. No.61409 of 2011, Sri.Basavanneppa Yallappa Kochcharagi and Sri. Gangappa Yallappa Kochcharagi, have impugned the Assistant Commissioner’s order dated 18.01.2011 in Harankol/7A/SR/816-2003 granting land measuring 2 acres 15 guntas and 8 annas in the aforesaid land in R.S. No.22/2 of Haraankolla village, Belgaum Taluk, in favour of Somappa Shivappa Malagali ( the 4^th respondent in W.P. NO.61409/2011 )

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while observing that the remaining extent of 10 acres 1 gunta 8 anas of land in this R.S. No. 22/2 stands vested to the Government.

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It is undisputed that the total extent of the land in R.S. No.22 of Harankolla Village, Belgaum Taluk is 25 acres and 18 guntas, and that this entire extent was originally owned by owners generally identified as ‘ Desai family ’. Sri. Bhimappa S/o Shivappa Malagali, the petitioner in W.P. No.60446 of 2010, has purchased the eastern portion of this total extent measuring 12 acres 29 guntas (presently R.S. No. 22/1 ) from the original owners under the sale deed dated 12.02.1972: neither the title to nor possession of this eastern portion measuring 12 acres 29 guntas is subject matter of this dispute. The dispute is confined only to the western portion measuring 12 acres 29 guntas bearing the present R.S. No. 22/2, and this land is referred to as the ‘ Subject Property ’.

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3. The rival submissions in W.P. No.60466

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of 2010 :

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3.1 The learned counsel for the petitioner, Sri. Bhimappa, S/o Shivappa Malagali, contends that Sri Bhimappa, S/o Shivappa Malagali, along with his family members, filed application in Form No.7 of the Act for registration of occupancy rights to the land in R.S. No.22 of Harankolla Village, Belgaum Taluk, and this application in Form No. 7 is still pending consideration.

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The Special Tahsildar for Land Reforms, Belgaum, has issued Endorsement dated 25.07.1975 informing Sri. Bhimappa, S/o Shivappa Malagali and his family members that such application is not in the prescribed form and therefore, they have to file necessary application in prescribed Form.

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3.2 However, after this Endorsement dated 25.07.1975, the application in Form No. 7, which was filed with the concerned in Gokak Taluk, is transferred to the Special Tahasildar for Land Reforms, Belgaum

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Taluk for further action, and in fact the concerned has

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also issued notice of hearing on 05.03.1982. Nevertheless, this application has remained without adjudication. The learned counsel, in support of this submission, relies on an extract of entry at Sl.No.16 dated 12.08.1974 in the Village-wise registration of applications maintained by the Special Tahasildar for Land Reforms, Gokak and a copy of the Notice of hearing issued by the Land Tribunal, Belgaum.

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The learned counsel for the petitioners in W.P. No.61409 of 2011, Sri.Basavanneppa Yallappa Kochcharagi and Sri. Gangappa Yallappa Kochcharagi (who are the purchasers of the Subject Property – according to them from the original owners under the sale deed dated 25.04.2006) contend that the application in Form No.7 by Sri Bhimappa, S/o Shivappa Malagali ( the petitioner in W.P. No.60466 of 2010 ) and his family members is for the entire extent of the land in Sy.No.22 of Harnakolla village, Belgaum

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despite the purchase of the eastern portion, Taluk. Therefore, such application cannot be maintained.

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However, neither the learned counsel for

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these petitioners nor the learned HCGP are unable to point out any circumstance which, at this point in time, could lead to a reasonable inference against the authenticity of the aforesaid extract of the Village-wise Registration of applications maintained by the Special Tahasildar for Land Reforms, Gokak. They are also unable to dispute that if indeed such application in Form No. 7 is filed the same should have been adjudicated on merits and not kept pending.

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6. The submissions in W.P. No.61409 of

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2011 :

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6.1 Though Sri Bhimappa, S/o Shivappa Malagali ( the petitioner in W.P. No.60466 of 2010 ) and his family members contend that they filed an application in Form No.7 for registration of occupancy

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rights for the entire extent of land in R.S. No.22 of Harankolla village and the same is pending consideration, they filed another application in Form No.7A of the Act for grant of very same land. This application in Form No.7A of the Act is decided by the Assistant Commissioner in the proceedings in Harankol/7A/SR/816-2003 by the impugned order dated 18.01.2011.

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6.2 Sri.Basavanneppa Yallappa Kochcharagi and Sri. Gangappa Yallappa Kochcharagi, ( the petitioners in W.P.No.61409/2011 ) were necessary parties to the proceedings in Harankol/7A/SR/816-2003, and the Assistant Commissioner could not have decided on the Form No.7A without these petitioners being extended an opportunity. In fact, the application filed by these petitioners to come on record in the proceedings before the Assistant Commissioner is unjustly rejected.

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6.3 The Assistant Commissioner could not have

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considered this application in Form No.7A for grant of land in view of the undisputed fact that the Sri Bhimappa, S/o Shivappa Malagali ( the writ petitioner in W.P. No.60466 of 2010 ) and his family members had submitted an application in Form No.7 of the Act for registration of occupancy rights. As such, the Assistant Commissioner’s impugned order dated 18.01.2011 is liable to be set aside, apart from the ground of violation of principles of natural justice, on the ground of maintainability.

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6.4 The learned counsel relies upon a Full Bench decision of this Court in Lokayya Poojary and

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Anr. vs. State of Karnataka & Ors.¹ in support of his contention that an application in Form No.7A would not

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be maintainable when an application in Form No.7 is

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1 2013(1) AKR 555

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filed. The learned counsel relies upon paragraph 18 which reads as follows:

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“18. If we keep the above principle and the legislative intent in mind, what emerges is while amending the Act and introducing Section 77-A, the legislature was very clear in its mind that by the said amendment, they were not intending to have one more forum for registration of occupancy rights under Section 45 of the Act. These two provisions were intended to cover two independent fields. Similarly, if a person has availed the benefit of Section 45-A and lost the battle, Section 77A was not meant to give him one more opportunity, a second innings. The power to grant occupancy rights under Section 45 was vested with a quasi-judicial authority like a Tribunal. On the day the amendment introducing Section 77A came into force, the Tribunals were in existence and functioning. The intention of the legislature was not to give them jurisdiction to decide the claims under Section 77-A. A separate machinery is now contemplated under Section 77-A. The enquiry

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that was contemplated under Section 45 as is clear from the fact that corresponding to Section 77-A rule 26(c) was enacted and the claim under Section 77-A had to be adjudicated in terms of the procedure prescribed under section 26(c). A reading of Section 77-A makes it very clear this provision has a limited application. It applies to only certain cases. It is necessary to bear in mind the context in which Section 77-A is introduced. This provision finds a place in chapter IV, whereunder as per Section 77 a provision is made for disposal of surplus lands on such land being vested with the Government and also other lands which are vested in the State. Therefore, in a proceedings under Section 77-A, the enquiry that was contemplated under Section 48-A is excluded. This is a provision that enables a person who is in occupation of a land, of which he was a tenant and continues to be in possession as a tenant to apply for grant of such land, if he had failed to make an application for grant of occupancy rights within the time stipulated. Such a person is

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given an opportunity to make an application for grant of land provided he continues to cultivate the land and he was not holding land in excess of 2 hectares of land. Therefore, in the said proceedings the question whether the said land is a tenanted land or not, cannot be gone into, as is clear from the language used in Section 77-A. The entire enquiry contemplated under Section 77A is in respect of a land, which is vested in the State Government under Section 44, as on 01.03.1974. It should be an undisputed fact. If the said fact is dispute, then Section 77-A has no application. The jurisdiction under Section 77-A is attracted only in respect of undisputed tenanted lands. Vesting of the land as on 01.03.1974 with the Government, which fact is not in dispute, is a condition precedent for application of Section 77-A.”

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The learned counsel for Sri. Bhimappa Shivappa Malagali ( the petitioner in W.P. No.60466 of 2010 ) does not dispute that, in view of the aforesaid decision by a Full Bench of this Court, the application

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in Form No.7A for grant of land either by Sri. Bhimappa Shivappa Malagali or the members of his family would not be maintainable, but emphasizes that their earlier application in Form No.7 for registration of occupancy rights is still pending consideration. The learned counsel’s endeavor is to persuade this Court to hold that the purchasers, Sri. Basavanneppa Yallappa Kochcharagi, and Sri. Gangappa Yallappa Kochcharagi, cannot challenge the Assistant Commissioner’s impugned order dated 18.01.2011 because the land in R.S. No.22/2 being tenanted land would vest with the Government w.e.f 01.03.1974 under Section 44 of the Karnataka Land Reforms Act.

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After recording the rival submissions in these two writ petitions, it would be necessary to record that the learned counsel for Bhimappa Shivappa Malagali ( the petitioner in W.P. No.60466 of 2010 ) points out that he had challenged the mutation entry in favour of the purchasers, Sri.Basavanneppa Yallappa

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Kochcharagi and Sri. Gangappa Yallappa Kochcharagi ( the petitioners W.P. No.61409 of 2011 ) under the sale deed dated 25.04.2006 before the Assistant Commissioner in an appeal under Section 136(2) of the Karnataka Land Reforms Act and the Assistant Commissioner set aside the mutation entry observing that the Subject Property stood vested with the Government reserving liberty to the parties to make necessary application for grant thereof.

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The learned counsel for the purchasers, Basavanneppa Yallappa Kochcharagi, and Sri. Gangappa Yallappa Kochcharagi ( the petitioners W.P. No.61409 of 2011 ) submits that these purchasers have impugned the Assistant Commissioner’s order in a review petition in RB.RTA.124/2007-08. The Deputy Commissioner by order dated 30^th September 2010 has allowed the review petition setting aside the Assistant Commissioner’s order and restoring the Tahsildar’s order for mutation in favour of the petitioners. As such,

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as of date, the revenue entries for the Subject Property stated in the names of these purchasers - petitioners.

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In view of the decision by the Full Bench of this Court, it is obvious that neither Sri Bhimappa, S/o Shivappa Malagali (the petitioner in W.P. No.60466 of 2010) nor his family members can maintain an application in Form No.7A for grant of the subject property because another application in Form No.7 for registration of occupancy rights filed by them is yet to be decided. On this short ground, though the question of violation of principles of natural justice is canvassed, the impugned order dated 18.01.2011 by the Assistant Commissioner in proceeding No. Harankol/ 7A/SR/816/2003 cannot be sustained and will have to be set aside.

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Further, as it remains rather indisputable

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that the application in Form No.7 of the Act filed for registration of occupancy rights is not adjudicated

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despite the issuance of notice of hearing, a direction to the Land Tribunal to dispose of such application in Form No.7 would be justified. Furthermore, the contentions as regards whether such application is indeed filed, if the application is filed, it is filed in time and whether the application could be made including the total extent of land when the eastern portion is purchased and every other contention will have to left open to be decided by the Land Tribunal while deciding the application in Form No.7. Therefore, the following:

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ORDER

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a. The writ petition in W.P. No.60466 of 2010 is

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allowed. The Land Tribunal, Belgaum, is directed to dispose of the petitioner’s application in Form No.7 which is registered at Sl.No.16 on 12.08.1974 as mentioned in the Village-wise register of the applications maintained by the Special Tahasildar for Land Reforms, Gokak, strictly in accordance with law and as expeditiously as possible but within

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an outer limit of nine months from the date of receipt of a copy of this order.

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b. The petitioner-tenant and the purchasers, who claim to have stepped into the shoes of the original owners, shall appear before the Land Tribunal, Belgaum, without further notice on 12^th of October 2020.

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c. The writ petition in W.P. No.61409 of 2011 is allowed and the Assistant Commissioner’s order dated 18.01.2011 in Harankol/7A/SR/816/2003 is set aside. The question of revenue entries for the land in R.S. No.22/2 of Harankolla village, Belgaum Taluk shall be subject to the decision of the Land Tribunal as per the directions now issued.

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Sd/JUDGE

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Kms

Bhimappa, S/O Shivappa Malagali v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Bhimappa, S/O Shivappa Malagali v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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