Sri K P Jai Jagadeesh Vs the Land Tribunal

THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 12836/2012 & 12957-958/2012 DATED 10/12/2014.

¶33

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶34

CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI AND

¶35

HON'BLE MR. JUSTICE K. V. ARAVIND

¶36

ORAL JUDGMENT

¶37

(PER: HON'BLE MR. JUSTICE JAYANT BANERJI)

¶38

Heard Sri.Brijesh Kalappa, learned counsel appearing for the appellants, Sri.K.S.Rahul Cariyappa, learned Additional Government Advocate for respondent No.3 and Sri.I.Gopalakrishna, learned counsel appearing for respondent No.5.

¶39

The instant appeal has been filed seeking to challenge the judgment and order dated 10.12.2014 passed in WP.No.12836/2012 (LR-SEC.48-A) and WP.Nos.1295712958/2012. By the impugned judgment, the order dated 04.02.1993 passed by the Land Tribunal exercising jurisdiction under Section 48-A of the Karnataka Land Reforms Act, 1961,

¶40

4 -

¶41

NC: 2025:KHC:39673-DB WA No. 4827 of 2015

¶42

HC-KAR

¶43

was quashed. Further directions were issued to preserve certain easementary rights of the parties.

¶44

It appears that in proceedings under Section 4 of the Karnataka Certain Inams Abolition Act, 1977¹ an order was passed by the Land Tribunal Somwarpet on 30.10.1981 whereby the husband of the petitioner - respondent No.5, Sri.K.A.Nanjappa, was held to be the actual cultivator of the lands mentioned in the schedule to the order and was held to be eligible to be registered as occupant of the said land under the provision of the Act, 1977. However, his application under Section 48A (1) of the Karnataka Land Reforms Act, 1961 was rejected as not maintainable. The schedule to the order passed on the application of K.A.Nanjappa is as follows:-

¶45

SCHEDULE

¶46

*Village*	*Sy.No.*	*Extent* *A. C.*
Belur	74	2.95
	78/1	8.83
	78/2	0.55
	81/2	1.60
	90/5B	2.26

¶47

1 Act, 1977

¶48

5 - NC: 2025:KHC:39673-DB WA No. 4827 of 2015

¶49

HC-KAR

¶50

It appears that the Land Tribunal, Somarpet, on an application moved by Sri.K.P.Poovaiah, the father of the appellants filed under Section 48-A (1) of the Karnataka Land Reforms Act, 1961 and also under Section 4 of the Act, 1977, recorded evidence regarding plots of lands of several survey numbers. It was held by the Tribunal in its order of 30.10.1981 that the applicant, Sri.K.P.Poovaiah, was the actual cultivator of the lands mentioned in the schedule to the order. The factual position with regard to various survey numbers were considered including Survey Nos.80 and 79. It further held that the applicant was eligible to be registered as an occupant of the said lands under the provisions of the Act, 1977. It was noted by the Land Tribunal that the applicant had admitted that he had no right in Sy.No.78/2 and 90/5B.

¶51

The schedule to the aforesaid order dated

¶52

30/10/1981 passed on the application of K.P.Poovaiah, is as follows:

¶53

6 -

¶54

NC: 2025:KHC:39673-DB WA No. 4827 of 2015

¶55

HC-KAR

¶56

SCHEDULE

¶57

*Village*	*Sy.No.*	*Extent* *B. C.*
Belur	90/5A	1.45
	79	1.32
	90/41	9.32
	77/2	1.46
	81/1	9.65
	90/42	5.25

¶58

The aforesaid order dated 30.10.1981, passed on

¶59

the application moved by the appellants' father, Sri.K.P.Poovaiah came to be challenged before this Court in WP.No.1714/1992, by Sri.K.P.Poovaiah. By order dated 28.10.1985, the writ petition was allowed, holding that the impugned order of the Tribunal was not preceded by a proper inquiry. The impugned order of the Tribunal, insofar as it related to Survey Nos.80, 2/7, 2/8 and 79 of Belur Basavanahalli Village, was quashed. The matter was remitted to the Land Tribunal for fresh disposal of the petitioner's application after holding an enquiry in strict compliance with the relevant rules.

¶60

By an order dated 04.02.1993, passed on the application moved by Smt.Gangamma, the mother of the appellants, the Land Tribunal held that the wife of the aforesaid

¶61

7 -

¶62

NC: 2025:KHC:39673-DB WA No. 4827 of 2015

¶63

HC-KAR

¶64

Sri.K.P.Poovaiah, namely Smt.B.K.Gangamma, was to be recorded as an adhiboghadar in respect of several plots of land, including survey No.78/2 measuring 0.55 cents and Sy.No.95/5B measuring 2.26 acres.

¶65

The order of 04.02.1993, came to be challenged in the aforementioned three writ petitions in which the impugned judgment was passed.

¶66

The crux of the impugned judgment is reflected in

¶67

paragraph 11 thereof which reads as under:

¶68

"11. In so far as the claim made by the father of respondent Nos.5 and 6 is concerned, he had sought grant of occupancy rights of several survey numbers and on the very same date of the impugned order i.e., 30.10.1981, Land Tribunal granted occupancy rights in respect of six survey numbers. As already noted, father of respondent Nos.5 and 6 had not sought occupancy rights of the lands in question. Being aggrieved by the order dated 30.10.1981 (Annexure 'E' to the writ petitions), he had filed W.P. No.1714/1982 with regard to non-grant of occupancy rights of certain survey numbers. This Court on

¶69

8 - NC: 2025:KHC:39673-DB WA No. 4827 of 2015

¶70

HC-KAR

¶71

28.10.1985 while allowing the writ petition, remanded the matter to the Land Tribunal in so far as it related to only Sy. Nos.80, 2/7, 2/8 and 79 of Belur Dasehalli village. Therefore, remand made by this Court to the Land Tribunal was only in respect of those four survey numbers. Before this Court, there was no whisper with regard to the lands in question obviously for the reason that in respect of those lands no application in Form No.7 was filed by father of respondent Nos.5 and 6. It is only thereafter that mother of respondent Nos.5 and 6 through her power of attorney holder filed an application seeking grant of occupancy rights of the lands in question. The Tribunal ought not to have granted occupancy rights of the lands in question to respondent Nos. 5 and 6 or their mother, firstly because there was no claim made by their father in the first instance. Secondly, so far as the lands in question are concerned, occupancy rights were already granted to the husband of the petitioner. More significantly, the father of respondent Nos.5 and 6 had admitted the claim of the husband of the petitioner in the proceeding filed by him and it was disposed on 30.10.1981. Therefore, the illegal claim made by the mother of respondent Nos. 5 and 6 ought not to have been entertained at

¶72

9 -

¶73

NC: 2025:KHC:39673-DB WA No. 4827 of 2015

¶74

HC-KAR

¶75

all by the Land Tribunal. Therefore, the order of the Land Tribunal dated 04.02.1993 to that extent has to be quashed."

¶76

As far as the aspect of delay is concerned, after adverting to the judgments of the Supreme Court in MANIBEN DEVRAJ SHAH VS. MUNICIPAL CORPORATION OF BRIHAN, MUMBAI² , and in the case of ESHA BHATTACHARJEE VS. MANAGING COMMITTEE OF RAGHUNATHPUR NAFAR ACADEMY AND OTHERS³ it was held that there could be no straitjacket formula applied in considering a plea for condoning delay.

¶77

We find from perusal of the order dated 28.10.1985 passed by this Court in WP.No.1714/1982, that this Court had remanded the matter to the Tribunal after setting aside the order dated 30.10.1981 only insofar as it related to Survey Nos.80, 2/7, 2/8 and 79 and not in respect of other plots that found mention in the Schedule of the order of the Land Tribunal dated 30.10.1981 passed on the application of K.P.Poovaiah. Therefore, the subsequent order of the Tribunal dated 04.02.1993 insofar as it extended to properties beyond what

¶78

2 (2012) 5 SCC 157

¶79

3 (2013) 12 SCC 649

¶80

10 - NC: 2025:KHC:39673-DB WA No. 4827 of 2015

¶81

HC-KAR

¶82

was remitted by the order of the Court dated 28.10.1985, was without jurisdiction and void.

¶83

This Court in the impugned judgment has noted

¶84

that there was no whisper with regard to the lands in question, obviously for the reason that in respect of those lands, no application in Form No.7 was filed by the father of the respondent Nos.5 and 6. The respondent Nos.5 and 6 are the appellants before this Court. This Court has, in the impugned judgment, rightly observed that no occupancy rights could be granted in respect of the lands in question to the appellants herein or to their mother firstly, because there was no claim made by their father in the first instance and secondly, insofar as the lands in question were concerned, occupancy rights were already granted to the husband of the respondent No.5, that is, Sri.K.A.Nanjappa. Therefore, the order of the Land Tribunal dated 04.02.1993 to the extent that it had entertained the illegal claim made by the mother of the appellants, was quashed.

¶85