1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE10H DAY OF JULY, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL ® W.P.No.8574/2016 & W.P.Nos.48997-998/2016 (LR-RES) BETWEEN SMT.MACHI POOJARTHI, AGEDA BOUT73YEARS, D/O LATE MARLI POOJARTHI, HEDDARI MANE, HEMMADI VILLAGE, VANDSE HOBLI, KUNDAPURA TALUK, UDUPI DISTRICT, PIN CODE:576201. ... PETITIONER (By Sri VENKATESH C. & Sri SHANKAR REDDY C., ADVS.) AND1 2. THE ASSISTANT COMMISSIONER, KUNDAPURA, UDUPI DISTRICT, PIN CODE-576 201. SRI RANGANATH KAMATH, S/O RAMAKRISHNA KAMATH, AGED ABOUT73YEARS, R/AT GANGOLI VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT, PIN OCDE:576 201. ... RESPONDENTS (By Smt.B.P.RADHA, AGA FOR R1; Sri A.ANANDA SHETTY A., ADV. FOR C/R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES226& 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER
DT.30.11.2015 MADE IN APPEAL6282007 2 VIDE ANNEXURE-M, ON THE FILE OF THE KARNATAKA APPELLATE TRIBUNAL AT BENGALURU AND ALLOW THE SAID APPEAL; AND TO QUASH THE IMPUGNED ORDER
92.2007 VIDE ANNEXURE-C ON THE FILE OF THE ASST.COMMISSIONER, KUNDAPURA SUB DIVISION, UDUPI DISTRICT, AND ALLOW THE APPLICATION FILED FOR CORRECTION OF SURVEY NUMBER IN FORM NO.7A BY THE PETITIONER AND ETC. THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
1 In these writ petitions, petitioner is challenging the order dated 09.02.2007 passed by the Assistant Commissioner rejecting Form 7-A filed under Section 77-A of the Karnataka Land Reforms Act, 1961 (for short, ‘the Act’) confirmed in appeal by the Karnataka Appellate Tribunal (for short, ‘KAT’) in Appeal No.628/2007 dated 30.11.2015.
2. Mother of the petitioner – late Marli Poojarthi was cultivating certain lands as tenant under the father of respondent No.2 by name Ramakrishna Kamath. She filed application in Form 7 claiming occupancy rights in respect of three lands. The said application, upon inquiry was partly allowed granting occupancy rights in respect of two survey numbers and was rejected in respect of Sy. No.67/2. This order was passed on 29.08.1980. 3 3. After the amendment to the Act, by which Section 77-A was incorporated, mother of the petitioner filed application in Form 7-A claiming occupancy rights in respect of Sy. Nos.67/2 and 68/2. She died during the pendency of the said application. Petitioner came on record before the Land Tribunal.
4. Petitioner claims to have filed an application seeking amendment of the application filed in Form 7-A to replace Sy. No.189/4 in the place of Sy.No.68/2. It has to be noticed here that Sy. No.68/2 measured 44 cents, whereas Sy. No.189/4 measured 5 acre 1 cent. There was no ambiguity with regard to survey numbers and their boundaries. However, petitioner wanted to replace a different survey number by amending Form 7-A.
5. This application filed seeking amendment was rejected on 09.02.2007. On the same day, the Assistant Commissioner has passed the final order, thereby rejecting the application filed under Section 77-A holding that there was no material placed before him to show that petitioner was a tenant as on 01.03.1974 and the land stood vested in the State. This order was challenged in appeal before the KAT. The KAT has dismissed the appeal. 4 6. KAT has found that petitioner had availed the opportunity of seeking grant of occupancy rights earlier by filing Form 7. Therefore, there was no justification for the petitioner to again seek occupancy rights by filing Form 7-A under the amendment provision i.e., Section 77-A of the Act. In this background, petitioner has approached this Court challenging both these orders.
7. Main contention urged is that application filed seeking amendment to replace Sy. No.189/4 in place of Sy. No.68/2 has not been considered while passing the main order; that rejection of application filed in Form 7 was in respect of different survey number and not those claimed by the petitioner by filing Form 7-A; and that there was no application of mind to the facts and circumstances of the case.
8. Learned Counsel for the respondent-owner strongly refutes the aforesaid contentions and justifies the order passed. He points out that at no point of time, petitioner or her mother were tenants in respect of Sy. No.68/2 or Sy. No.67/2, let alone in respect of Sy. No.189/4, for which no claim had been made. He submits that amendment application was not maintainable 5 in a proceeding under Section 77-A. He relies on the judgment of the Full Bench of this Court in the case of LOKAYYA POOJARY & ANOTHER VS STATE OF KARNATAKA & OTHERS – 2013(1) AKR555to urge that scope of enquiry before the Assistant Commissioner was limited.
9. Learned Additional Government Advocate also supports the impugned order.
10. Having heard the learned Counsel for all the parties, I find that petitioner has not produced Form 7 filed by her mother earlier. It is not in dispute that Form 7 was filed in respect of three lands which included Sy. Nos.57/3 and 67/2. So far as Sy. No.57/3 is concerned, she has been granted occupancy rights. In so far as Sy. No.67/2 was concerned, her application was rejected. This order was passed by the Land Tribunal on 29.08.1980. Mother of the petitioner was satisfied with the said order. She did not challenge the same. Therefore, rejection of the application in respect of Sy. No.67/2 attained finality.
11. Mother of the petitioner could not have maintained another application to claim occupancy rights for the same Sy. 6 No.67/2 by filing Form 7-A after introduction of Section 77-A in the Act by way of amendment. The said provision, particularly clause (ii) of sub-section (1) of Section 77-A makes it clear that a person who being entitled to be registered as an occupant of a land under Section 45 or 49 had 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, can only maintain an application under Section 77-A, that too if he had continued to be in actual possession and cultivation of such land on the date of commencement of Section 77-A i.e., as on 01.11.1998. Therefore, in the instant case, petitioner’s application seeking occupancy rights for Sy. No.67/2 was not maintainable as the same had been earlier rejected as per order dated 29.08.1980 passed by the Land Tribunal.
12. In respect of Sy. No.68/2, there is nothing on record to show that petitioner had not included this survey number in Form 7 filed earlier. For reasons best known to the petitioner, she has not produced the copy of Form 7, or for that matter, order passed by the Land Tribunal on 29.08.1980 to show if she had indeed laid a claim for Sy. No.68/2 also. Be that as it may, petitioner does not press her claim for Sy. No.68/2 7 because according to her, the application ought to have been made for Sy. No.189/4 measuring 5 acres 1 cent. Petitioner wanted amendment of Form 7-A to incorporate an altogether different survey number in place of Sy. No.68/2.
13. There is no provision under Section 77-A to seek such amendment to replace another survey number in place of the one mentioned in Form 7-A. Correcting a bonafide or inadvertent mistake is one thing but replacing altogether different survey number in the place of the one applied is another. If mother of petitioner had indeed omitted to include Sy.No.189/4 measuring 5 acres 1 cent while filing form No.7, she could have certainly asked for correction of form No.7 before it was disposed of. It cannot be said that she was not aware of non-inclusion of the same because she was indeed granted occupancy rights in respect of one of the lands while rejecting the request in respect of two other lands.
14. Inquiry before the Land Tribunal under Section 48-A would be comprehensive. It vests the Tribunal with vast powers unlike Section 77-A. An application seeking amendment of Form No.7 could have been, perhaps, maintained in the said proceedings provided it was shown that the application had 8 been made to correct any discrepancy or mistake committed in describing the survey number or its measurement properly.
15. So far as the present application filed before the Assistant Commissioner under Section 77-A, such power cannot be conceded in as much as, the very purpose of Section 77-A is to enable the tenant to file an application seeking grant of land for which he was a tenant and in respect whereof he had failed to seek occupancy rights within the time prescribed by filing Form No.7. It is too much for the petitioner to contend that even while filing Form 7-A under Section 77-A, he was not sure which survey number his mother had omitted to claim at the time of filing Form 7. Indeed, the facts would reveal that she had sought for grant of land bearing Sy. No.67/2 also which was rejected earlier. She claims another Sy. No.68/2 and later upon her death, her daughter-petitioner herein comes up with an application stating that a mistake had been committed in mentioning Sy. No.68/2 instead of mentioning Sy. No.189/4.
16. There could be no ambiguity in mentioning the survey numbers, in the instant case because Sy. No.189/4 measured 5 acres 1 cent, whereas Sy. No.68/2 measured only 44 cents. Therefore, it cannot be said that it was a case of a bona fide 9 mistake committed while mentioning the survey number. In the guise of correction, petitioner seeks to lay claim to a new survey number. This is impermissible under Section 77A. If the same is allowed, it will enable the claimant to lay claim by including other lands even after the time statutorily fixed had expired to file applications. Therefore, such an application cannot be entertained and the same has been rightly rejected by the Assistant Commissioner.
17. In so far as the merit of the claim under Form 7-A is concerned, the Assistant Commissioner has recorded a finding that there was no material to establish that land was a tenanted land as on 01.03.1974. Even before this Court, there is no material placed to show that the land was vested in the State as on 01.03.1974. There is no such record either in respect of Sy. No.68/2 or Sy. No.189/4 to show that it had been under the cultivation of the petitioner, and therefore, stood vested in the State as a tenanted land.
18. As held by the Full Bench in Lokkayya Poojary’s case referred to above, Assistant Commissioner has no power or authority to record a finding by permitting the parties to lead evidence other than in respect of official records to show that 10 the land was a tenanted land and stood vested in the State. The documents on which petitioner could have relied upon are the RTC extracts, land revenue receipts and such other Government records. None of these documents are placed on record to show that the land was a tenanted land and vested in the State. On the other hand, some of the revenue records viz., RTCs have been produced by the respondent. They do not disclose the name of the petitioner or her mother as tenant in respect of Sy. No.189/4.
19. Therefore, this is a case where petitioner is trying to lay claim repeatedly seeking occupancy rights in respect of the lands in question over which neither she has any rights nor has she succeeded in establishing the same. Hence, concurrent findings recorded by both the authorities below cannot be found fault with. Therefore, these writ petitions are dismissed. KK Sd/- JUDGE