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Karnataka High Court
S.C.CHANDRAPPA - Appellant
Versus
STATE OF KARNATAKA - Respondent
Decided On : 06-10-05
W.A. : 2266 of 2005
[S. R. Nayak and V. Jagannathan, JJ]: The provision of Section 77 A in the context of the statute should be regarded as an extraordinary provision which is intended to help only those tenants who could not make application in Form No.7 under Section 45 readwith Section 48 of the Act within stipulated time but who have prima facie evidence to show that they were in actual possession and personal cultivation of the lands concerned as tenants as on the appointed date i.e., on 01,,03.1974 and that from that date onwards, they have been in continuous possession of such lands even on the date when amendment Act No. 23 of 1998 came into force. Section 77 A is not and cannot be regarded as a substitute for Section 45 readwith Section 48 of the Act which provision enables a tenant to make an application for grant of occupancy of rights.
Cases Referred: Approved & Followed: ILR 2002 Kar 1342.
Enquiry under the rule
KARNATAKA LAND REFORMS RULES, 1974 - Rule 26-C and Form 7A - Enquiry under - Enquiry is not one to grant occupancy on the applicant being actual tenant as on 1-3-1974 - This enquiry has to be under - Taken in form 7 Proceedings under Sections 45 and 48 - An applicant Under Section 77A cannot be allowed to prove that he was in actual cultivation as on the appoint day or as on 1-11-1998 on which date Section 77A came into existence, because these issues should have been satisfied and foregone - No applicant can claim land under Section 77A as a matter of right as the land has been vested in the Government which is also one of the conditions to maintain an application in Form 7A.
[S. R. Nayak and V. Jagannathan, JJ]: The proceeding under Section 77 A cannot be equated to a proceeding initiated by the Land Tribunal in pursuance of an application in Form No.7 made under Section 45 of the Act. It needs to be noticed at the threshold that if an applicant in Form No.7 establishes that he was in actual possession and personal cultivation of the subject lands as on the appointed date, that is, 01.03.1974, the land Tribunal is duty bound to grant occupancy rights of such lands. But, that is not the situation under Section 77 A of the Act, Section 77 A of the Act is only an enabling provision to grant a land which is already vested in the State Government to an applicant. No applicant in Form No.7 A can claim a land as a matter of right or as a matter of course. For varieties of reasons, the Assistant Commissioner may not grant land to an applicant.
Enquiry under - KARNATAKA LAND REFORMS ACT, 1961 - Section 77A - Enquiry under - Enquiry is not one to grant occupancy on the applicant being actual tenant as on 1-3-1974 - This enquiry has to be under - Taken in Form 7 Proceedings under Sections 45 and 48 - An applicant Under Section 77A cannot be allowed to prove that he was in actual cultivation as on the appoint day or as on 1-11-1998 on which date Section 77A came into existence, because these issues should have been satisfied and foregone - No applicant can claim land under Section 77A as a matter of right as the land has been vested in the Government which is also one of the conditions to maintain an application in Form 7A.
[S. R. Nayak and V. Jagannathan, JJ]: The proceeding under Section 77 A cannot be equated to a proceeding initiated by the Land Tribunal in pursuance of an application in Form No.7 made under Section 45 of the Act. It needs to be noticed at the threshold that if an applicant in Form No.7 establishes that he was in actual possession and personal cultivation of the subject lands as on the appointed date, that is, 01.03.1974, the land Tribunal is duty bound to grant occupancy rights of such lands. But, that is not the situation under Section 77 A of the Act, Section 77 A of the Act is only an enabling provision to grant a land which is already vested in the State Government to an applicant. No applicant in Form No.7 A can claim a land as a matter of right or as a matter of course. For varieties of reasons, the Assistant Commissioner may not grant land to an applicant.
KARNATAKA LAND REFORMS ACT, 1961 - Section 77A - Object - Is to enable persons who could not make an application in Form 7 under Section 45 read with Section 48 to file an application in Form 7A if they had prima facie evidence as to cultivation as on the appointed day upto insertion of Section 77A i e, 1-11-1998.
[S. R. Nayak and V. Jagannathan, JJ]: The provision of Section 77 A in the context of the statute should be regarded as an extraordinary provision which is intended to help only those tenants who could not make application in Form No.7 under Section 45 readwith Section 48 of the Act within stipulated time but who have prima facie evidence to show that they were in actual possession and personal cultivation of the lands concerned as tenants as on the appointed date i.e., on 01,,03.1974 and that from that date onwards, they have been in continuous possession of such lands even on the date when amendment Act No. 23 of 1998 came into force. Section 77 A is not and cannot be regarded as a substitute for Section 45 readwith Section 48 of the Act which provision enables a tenant to make an application for grant of occupancy of rights. 3
KARNATAKA LAND REFORMS ACT, 1961 - Section 77A - Indolence of the applicant - A person who missed the bus due to his indolence cannot be treated on par with a person who is vigilant in working out his legal remedies by making an application in Form 7 within stipulated time.
[S. R. Nayak and V. Jagannathan, JJ]: A person who has missed the bus due to his indolence cannot be treated on par with a person who is vigilant in working out his legal remedies by making application in Form No.7 within the stipulated time. We say this, because, law helps the vigilant, and not the indolent. That seems to be the legislative policy behind Section 77 A of the Act. If the legislature wanted to help even those tenants who did make application in Form No.7 within the stipulated time to secure grant of occupancy rights, of course, the law maker would have extended to make Form No.7 applications.
KARNATAKA LAND REFORMS ACT, 1961 - Section 77A - Grant of occupancy rights - Requirements to be met by an applicant - Should necessarily establish conditions specified in clauses (i), (ii) and (iii) of sub-Section (1).
[S. R. Nayak and V. Jagannathan, JJ]: An applicant in Form No.7 A under Section 77A of the Act is not entitled to seek an opportunity to establish that he was in actual possession and personal cultivation of the land concerned as a tenant on the appointed date, i.e., on 1-03-1974 or the date on which the amendment Act No. 23 of 1998 came into force with effect from 01.11.1998. The Division Bench has further held that the factum of possession and status of the applicant as on the appointed date should be an undisputed fact. It is also further held that the land in respect of which application in Form No.7 A is made is a tenanted land and such land must have been vested in the State Government already and that the Government records should reflect that position.
( 1 ) THIS writ appeal arises out of an application made by the appellant herein in Form 7-A under Section 77-A of the Karnataka Land Reforms act, 1961 (for short, the Act' ). The appellant claiming to be the tenant of agricultural lands comprised in Survey No. 263/3 measuring 11 guntas, survey No. 263/4 measuring 3 guntas, Survey No. 326/1 measuring 10 guntas and Survey No. 335/6 measuring 18 guntas, all situate in siddaghatta Village, KR. Pet Taluk, Mandya District made an application in Form 7-A under Section 77-A of the Act. The Assistant Commissioner, pandavapura Sub-Division who is the original authority, having conducted an enquiry by his order dated 17-7-2003 dismissed Form 7-A application filed by the appellant. Being aggrieved by the said order of the Assistant commissioner, the appellant preferred Appeal No. 951 of 2003 to the karnataka Appellate Tribunal, Bangalore (for short, 'the Tribunal' ). The tribunal, placing reliance on the judgment of the Division Bench of this court in the case of Hosabayya Nagappa Naik and Others v State of karnataka and Others, and having opined that the three conditions necessary for granting relief under Section 77-A of the Act did not exist, dismissed the appeal, by its order dated 24th September, 2003. The appellant being aggrieved by the order of the Assistant Commissioner and the Tribunal preferred Writ Petition No. 44484 of 2003. Learned Single judge of this Court, too, placing reliance on the judgment of the Division bench of this Court in Hosabayya Nagappa Naik's case, and without finding any flaw in the orders of the Assistant Commissioner and the tribunal, dismissed the writ petition by his order dated 16th February, 2005. Hence, this writ appeal by the aggrieved writ petitioner.
( 2 ) WE have heard Sri B. M. Krishna Bhat, learned Counsel for the appellant, Sri N. S. Sanjay Gowda, learned Counsel for the third respondent and Sri Deshraj, learned Government Advocate.
( 3 ) SRI B. M. Krishna Bhat, with his usual persuasiveness and vehemence would, at the threshold, point out that the Assistant commissioner as well as the Tribunal have rejected the application of the appellant in Form 7-A solely on the ground that in the record of rights and pahanis of the lands as on the appointed date, i. e. , on 1-3-1974, the name of the appellant is not shown as tenant-cultivator of the schedule land. The procedure adopted by the Assistant commissioner, according to Sri Krishna Bhat, is perfunctory and in total violation of the clear mandate contained in sub-section (1) of Section 77-A. Sri Krishna Bhat would draw our attention to the obligation cast on the authorised officer to hold an enquiry to find out whether the three conditions incorporated in sub-section (1) of Section 77-A exist or not. Sri krishna Bhat would also contend that fair opportunity was not given to the appellant by the Assistant Commissioner in the conduct of the enquiry and he was not given reasonable opportunity to produce evidence particularly documentary evidence such as gheni chit. It was also contended that though the gheni chit was produced before the tribunal, the Tribunal did not take that document into consideration in the way it should have done in the decision-making. Sri Krishna Bhat would also contend that the opinion of the Division Bench in the case of hosabayya Nagappa Naik cannot be regarded as good law in the light of the statutory provisions contained in Section 77-A of the Act. Sri krishna Bhat would conclude by submitting that the perfunctory enquiry conducted by the Assistant Commissioner and the Tribunal has resulted in failure of justice and, therefore, a case is made out for this court to step in under Article 226 to do justice to the appellant. Sri N. S. Sanjay Gowda, learned Counsel appearing for third respondent, per contra, while supporting the reasons assigned by the Assistant commissioner would point out that though sufficient opportunity was given to the appellant by the A
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