Full Judgment
S.R. Bannurmath, J.
1. Heard the learned Counsel for the petitioners and the learned Counsels for the contesting respondents.
2. Being aggrieved by the order dated 5-6-1987 passed by the Land Tribunal, Sullia Taluk, insofar as rejection of the claim of the petitioners in respect of 77 cents in the land bearing Sy. No. 179 (179/P1) is concerned, the petitioners have approached this Court in the present writ petition.
3. The brief facts necessary for consideration are as follows.--After coming into force the Karnataka Land Reforms Act as amended by Act 1 of 1974 the petitioners filed their application dated 26th August, 1974 in Form 7 claiming occupancy rights in respect of the following lands.--
(i) Sy. No. 179 - 60 cents;
(ii) Sy. No. 186/1B -1 acre 13 cents;
(iii) Sy. No. 356/2 - 14 cents.
It is to be noted here itself that Sy. No. 179 totally measured 3 acres 47 cents. On earlier occasion by the order dated 20th October, 1981 the Tribunal granted occupancy rights to the petitioners in respect of Sy. No. 179/P2 measuring 1 acre 17 cents and Sy. No. 186/1BB measuring 1 acre 32 cents. Aggrieved by the same, the petitioners approached this Court in W.P. No. 11237 of 1982 claiming that even though by an amendment application dated 24-7-1980 they had claimed some more area in Sy. No. 179 the same was not considered by the Tribunal and as such necessary requirement of guidelines or direction be issued to the Tribunal to consider their claim in respect of remaining area (which is now the land in dispute).
4. This Court by the order dated 6-1-1984 remitted the case to the Tribunal for fresh consideration. After remand the Land Tribunal has once again considered the claim and by the impugned order affirmed the earlier grant only in respect of Sy. Nos. 179/P2 and 186/1BB. Hence, the present proceedings.
5. The main contention of the learned Counsel for the petitioners is that when this Court itself has directed the Tribunal to consider the claim of the petitioners in the earlier round of litigation, it was the bounden duty of the Tribunal to consider the claim on the basis of the records made available before it. It is submitted that absolutely there was no material placed by other side as to whether the petitioners were not cultivating the lands in dispute and on the other hand, when the petitioners had produced enough material to show their claim, rejection of their claim was illegal one. Further, it is contended that as against the impugned order when the petitioners had approached the then existing Appellate Forum, their application for considering additional evidence has also been allowed, but before the Appellate Forum could consider the appeal on merits, as the appeal came to be transferred tothis Court in the present writ petition, in the light of the judgment in the case of Maila Naika v. State of Karnataka and Ors., W.P. No. 28567 of 1991, DD: 20-1-1997, the writ petition has to be allowed; the impugned order of the Land Tribunal is to be set aside and the matter has to go back to the Tribunal for fresh consideration.
6. On the other hand, the learned Counsel for the contesting respondent vehemently contended that as the amendment application filed by the petitioners was beyond the time-limit prescribed in the light of the pronouncement of Division Bench of this Court in the case of Seethadevi v. Narayana Kamath and Ors., : ILR 1987 KAR1779 , and two judgments of the learned Single Judges in the case of R. Krishnaswamy Rao v. Lakshmaiah Setty, : ILR 1990 KAR369 , and the latest pronouncement in the case of Smt. Vimalamma Ballal and Anr. v. Mahabala Shetty and Ors., 1999(1) Kar. L.J. 394, the amendment application itself was not maintainable and the Tribunal could not have considered the claim at all. It is submitted that as the Tribunal has now rejected the claim though for some other reason, in the light of the law laid down by this Court in the aforesaid cases as the application for amendment itself was not maintainable, there was no question of setting aside the impugned order and remand of the case to the Tribunal.
7. I have heard the learned Counsel in detail and perused the records of the Tribunal secured for this purpose.
8. Before going into other contention so far as the law declared in Maila Naika's case, supra, is concerned, absolutely there is no dispute. But this Court cannot mechanically pass orders wherever parties have approached the Appellate Forum and their applications for additional evidence are either allowed or pending consideration. What is basically required to be seen is whether the impugned order of the Tribunal is sustainable or not. If the impugned order is sustainable for the reasons other than the merits or contentions, then this Court can reject the claim of the writ petitioner. Even in the recent pronouncement in the case of K.A. Subba Rao (deceased) by L.Rs v. Balarame Gowda and Ors., 1999(1) Kar. L.J. 206 : 1999(1) KCCR 5, the Division Bench of this Court has held that necessity of remanding a case arises only if the party was not given proper opportunity to adduced evidence but if the material on record show non-maintainability of the application itself, the Tribunal which does not get the jurisdiction to decide such case cannot be asked mechanically to consider the case afresh.
9. In the present case as stated earlier Form 7 filed by the petitioners dated 26-8-1974 was in respect of Sy. No. 179 (total extent 3 acres 47 cents) but the claim of the petitioners was confined to 60 cents alone. It is only on 24-7-1980 the petitioners have woken up like 'Rip Van Winkle' and have come up before the Tribunal seeking permission to amendtheir application by including an extent of 85 + 20 + 15 cents in Sy. No. 179 which even according to them belonged to three different owners. The law regarding the validity of the amendment application filed within or beyond the limitation is well-settled. Division Bench of this Court in the case of Seethadevi, supra, has held that in view of Sub-section (3) of Section 48-A if any mistake has been committed in the application filed in Form 7 filed within the time, the application for amendment can be made by the party concerned before the Tribunal and the Tribunal has the jurisdiction to allow the amendment application if it is satisfied that in not allowing the amendment application, it would result in miscarriage of justice. But it has also further laid down that no person can make an application in Form 7 or an application in the nature of an amendment after the expiry of the period fixed under Section 48-A(1) of the Act seeking occupancy rights in respect of new item of land not included in the application filed within the time. Similar are the other pronouncements by the learned Single Judge in the case of R. Krishnaswamy Rao, supra. In fact in R. Krishnaswamy Rao's case, supra, the learned Single Judge has held that.--
'(A) In Form 7 filed by the first respondent he specifically claimed occupancy right over an area of 17 guntas comprised in Sy. No. 49 of Beerasettihalli. The application seeking amendment came to be filed only after the Tribunal rejected the application filed by the first respondent in Form 7 and during the pendency of the appeal before the Land Reforms Appellate Authority. When the claim was confined to 17 guntas comprised in Sy. No. 49 any further claim in respect of the area other than 17 guntas comprised in the very same survey number would amount to making a fresh claim. The amendment sought for cannot at all be considered to be explanatory because it expands the claim of the applicant from 17 guntas to 2 acres. As such an application for amendment could not have been made and entertained as the amendment sought to expand the claim of the applicant in Form 7 and to make a fresh claim in respect of 1 acre 23 guntas comprised in Sy. No. 49 which was not made earlier.
(B) A statute dealing with and affecting the proprietary right of a citizen in a property should be strictly construed, but at the same time care should be taken to ensure that the interpretation does not result in miscarriage of justice and does not defeat or tend to defeat the object and intendment of the statute'.
10. Admittedly, in the present case the time to file application under Section 48-A(3) was originally 6 months from 1-3-1974 which came to be later amended and extended till 30th June, 1979` As such any amendment application either by way of correction of survey number or extent or even inclusion of new survey number must have to be filed within 30-6-1979. Admittedly, the present application filed by the petitioner as the records disclose and is undisputed is on 24-7-1980. As such the amendment application being filed beyond the time-limit prescribed was itself not maintainable one. No doubt on the earlier occasion when the petitioner approached this Court in W.P. No. 11237 of 1982, DD: 6-1-1984 the law regarding this aspect was not laid down. But as on this date considering this petition as the law is clear now, it has to be held that the amendment application filed by the petitioner on 24-7-1980 was beyond the time-limit prescribed and as such the Tribunal itself would not have got jurisdiction to consider the amended claim of the petitioner. Even though the Tribunal has not rejected the claim of the petitioner on that count since, in my view as the jurisdiction of the Tribunal depends on the applications filed within the time-limit prescribed, no purpose would be served by just remanding the case to the Tribunal to get same declaration of non-maintainability of the amendment application. In the light of the Division Bench pronouncement in the case of K.A. Subba Rao, supra, in my view, the petition is devoid of merits and has to be rejected only on the ground of amendment application being filed beyond the prescribed time-limit and as such the Tribunal having no jurisdiction to decide the claim of the petitioner.
11. In the result, the writ petition fails and the same is dismissed. Rule is discharged.
12. In the facts and circumstances of the case, there shall be no orders as to costs.