Allowed
Sri Darnappa Poojary v. Sri M P Jeevandhar Kumar
Karnataka HCWP/45129/2014
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2024:KHC:30935 WP NO.45129 OF 2014 IN THE…
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2024:KHC:30935 WP NO.45129 OF 2014 IN THE…
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH WRIT PETITION NO. 45129 OF 2014 (LR)
BETWEEN:
SRI. DARNAPPA POOJARY S/O LATE PIJINA POOJARY AGED ABOUT 55 YEARS, R/AT KANJIKODI HOUSE, POST BANTWAL KASABA, BUNTWAL TALUK DAKSHINA KANNADA - 574 157.
…PETITIONER
(BY SRI. ROHIT URS D., ADVOCATE)
AND:
Digitally signed by ARUNKUMAR M S Location: High Court of Karnataka
RESPONDENTS 1(a) to 1(e) ARE R/AT NO.7/207(4), DHATHRI, PATNA SHETTY NAGARA, BETKERI, MOODABIDRI, MANGALURU TALUK, DAKSHINA KANNADA - 574 227.
…RESPONDENTS
(BY SRI.K. CHANDRANATHA ARIGA, ADVOCATE FOR R1(a) TO 1(e); SRI. RAJENDRA K.R., AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 03RD APRIL, 2014 PASSED IN APPEAL NO.958/2006 BY THE KARNATAKA APPELLATE TRIBUNAL, BENGALURU VIDE ANNEXURE-A; AND ETC.
THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDERS, COMING FOR PRONOUNCEMENT THIS DAY, E.S. INDIRESH J., MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
CAV ORDER
(PER: HON'BLE MR. JUSTICE E.S. INDIRESH)
This writ petition is filed by the petitioner assailing the order dated 03rd April, 2014 (Annexure-A) passed in Appeal No.958/2006 by the Karnataka Appellate Tribunal, Bengaluru
NC: 2024:KHC:30935 WP NO.45129 OF 2014
(for short, hereinafter referred to as 'Tribunal'), allowing the appeal preferred by the respondents.
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August, 2006 (Annexure-H). It is further stated in the petition that the respondent-land lord, being aggrieved by the conferment of occupancy right in respect of the subject land in favour of the petitioner, has filed Appeal No.958/2006 before the Tribunal. The Tribunal, after considering the material on record, allowed the appeal and as such, set-aside the order dated 03rd August, 2006 (Annexure-A) passed by the respondent No.2. Being aggrieved by the order passed by the Tribunal in Appeal No.958/2006 dated 03rd April, 2014, the petitioner has presented this writ petition.
Karnataka Land Reforms Act during the year 1974, the land was vested with the Government and the petitioner has filed application in Form No.7A (Annexure-F), seeking occupancy rights. He further contended that, the respondent No.2Authority, after conducting detailed enquiry in the matter and having been conducted the spot inspection, had rightly come to the conclusion that the father of the petitioner was cultivating the land in question and as such, occupancy right has been granted in favour of the petitioner. He further contended that, order dated 03rd August, 2006 (Annexure-H) passed by the respondent No.2, is only after hearing the respondent-landlord and therefore, the finding recorded by the Tribunal at paragraph 7 is contrary to the records. In this regard, learned Senior Counsel Sri. I. Tharanath Poojary, appearing for the petitioner placing reliance on the Full Bench judgment of this
Court in the case of LOKAYYA POOJARY AND ANOTHER vs. STATE OF KARNATAKA AND OTHERS reported in ILR 2012 KAR 4345 contended that the impugned order passed by the Tribunal is contrary to the judgment of this Court in the aforementioned case. He further contended that, after the land is vested with the Government, the tenant has to deal with the
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Government and not with the Landlord and the said aspect has been considered by the respondent No.2 at Annexure-H and same was erroneously interfered with by the Tribunal. Hence, he sought for interference of this Court.
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of the schedule property namely, land bearing Survey No.173/6 measuring 2.82 acres and Survey No.77/7 measuring 22 cents of Bantwal kasaba Village, Bantwal Taluk. In this regard, the petitioner has produced the Mahazar drawn by the Revenue Authorities as per Annexure-G, which would demonstrate that the father of the petitioner was cultivating the land in question. The said aspect has been considered by the respondent No.2, while granting occupancy right in favour of the petitioner as per Annexure-H. The petitioner has also produced RTC extracts as per Annexures 'J' and 'K'. The Full Bench of this Court in the case of LOKAYYA POOJARY (supra) had considered the procedure to be followed by the respondent-Authorities while considering Form No.7A. Paragraph 19 of the judgment reads as under:
"19. If a tenant makes an application, the question that arises for consideration is how he proves that it is a vested land. The vesting of the land is by operation of law. No order of vesting need be passed. There cannot be an order declaring the vesting of the land. Therefore, production of order of vesting is not the requirement of law and it is not possible and it cannot be insisted upon. However, it is for the applicant who comes to the Court to establish, that the land in question is a vested land. While establishing such fact, it is necessary that he should
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rely on undisputed documents and such undisputed documents may be in the nature of some official record showing vesting of the land in favour of the State Government. The Government record referred to in the judgment is not an order of vesting. It is record in proof of vesting. It may vary from case to case and depends upon the stand taken in each case. But, unless there is some official record evidencing the vesting of the land, the authorities under Section 77-A would get no jurisdiction to hold an enquiry and grant land under Section 77-A to the applicant. The official record referred to therein may be in the form of Land Revenue receipts, record of rights, index of land, mutation orders, consequent mutation entries or any other record which is maintained by a public officer as opposed to private documents. It is in this context, the Learned Judges in the aforesaid judgments have stated that the land should have been vested in the State Government as on the appointed date. The said event should have already taken place. The evidence is required to be placed by the applicant to show that this is an event that has already taken place. In that context the observations to the effect that "obviously it should find a place in some official record as vesting of the land is in favour of the State Government" are made. This amendment came into force in 1997 roughly 18 years after the last date prescribed for filing applicants under Section 45. For 18 long years after the vesting of the land if the tenant has continued in possession, there must be some evidence by way of a public record to show his possession, cultivation and enjoyment as recognised by the Government, because
after the vesting he has to deal with the Government and not with the erstwhile owner. How the Government as well as the applicant have dealt with this property during these 18 years assumes importance. In this context the observations made in the said judgments cannot be read as new conditions prescribed by the Judges in Section 77A by the process of judicial interpretation as sought to be urged by the Counsel for the petitioner. The Judges do not legislate. They only interpret the provisions. Therefore, the argument that under the guise of interpretation, the Judges have re-written the Section is not well founded. It is a case of misreading the judgment. Under these circumstances, the interpretation placed by the Division Benches is proper and legal. We do not find any need to clarify what has been already said."
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land. The Full Bench of this Court in the case of LOKAYYA (supra) has culled out that the enquiry is to be conducted by the respondent-Authorities as contemplated under Section 77A of the Karnataka Land Reforms Act and same is considered at paragraph 16 of the judgment, which reads as under:
"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 applicant 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 a actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms Amendment Act, 1977."
the land in question by the petitioner for grant of occupancy right was also considered by the Hon'ble Supreme Court in the case of MONTHI MENEZES (D) BY LR. vs. DEVAKI AMMA
(D) BY LR. AND ANOTHER made in Civil Appeal No.3539 of 2009 at paragraph 2.3, 6 and 10.1. Having taken note of the law declared by Hon'ble Supreme Court in the above case and ratio laid down by the Full Bench of this Court, it is the duty of the Court to look into the relevant documents produced by the parties to establish their continuous cultivation of the land in question. The Hon'ble Supreme Court in the above case, also had an occasion to consider the claim made by the petitioner
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therein with regard to the Punja land by considering the definition of land as setout in Section 2(18) of the Karnataka Land Reforms Act. In that view of the matter, I am of the opinion that the finding recorded by the Tribunal, requires to be set-aside in this writ petition, as the Tribunal has not considered the law declared by the Full Bench of this Court in the case of LOKAYYA POOJARY (supra) in the right perspective. Therefore, it is a fit case to remand the matter to the Tribunal to reconsider the issue afresh and pass appropriate orders in accordance with law. Accordingly, I pass the following:
O R D E R
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SD/(E.S.INDIRESH) JUDGE
ARK
Colour shows how this judgement treated each authority
Lokayya Poojary and Another vs. State of Karnataka and OthersRelied on
ILR 2012 KAR 4345 · Who else cites this
2 provisions across 2 enactments
Sri. Darnappa Poojary
Sri. M.P. Jeevandhar Kumar (since deceased) rep. by LRs
Mrs. M. Sumanaji
Mrs. Amritha M.
Mr. Sudesh Kumar M.
Mrs. Suchetha Sudhakar Kapu
E.S. INDIRESH
As recorded by the court registry
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