IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.21950/2010(KLR-RES) BETWEEN 1. JANABAI, W/O LATE PUNDARIKA RAO, AGED ABOUT 60 YEARS, 2. K.P.MEGHARAJ, S/O LATE PUNDARIKA RAO, AGED ABOUT 45 YEARS, 3. K.P.SHIVARAJ, S/O LATE PUNDARIKA RAO, AGED ABOUT 40 YEARS, ALL ARE RESIDING AT NYAMTHI, HONNALI TALUK, DAVANAGERE DISTRICT. …PETITIONERS (BY SRI S.B.HALLI, FOR SRI G.C.SHANMUKHA, ADVOCATES) AND :
THE ASSISTANT COMMISSIONER AND AUTHORISED OFFICER UNDER THE LAND REFORMS ACT, DAVANAGERE SUB-DIVISION, DAVANAGERE, DAVANAGERE DISTRICT. …RESPONDENT (BY SRI KIRAN KUMAR.T.L, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF THE RESPONDENT IN DATED 27.04.2006 (ANNEXURE-G) AND ORDER OF KAT IN DATED 28.01.2010 (ANNEXURE H) AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners herein are widow and children of respondent in LRF.CR.1/1998-99 on the file of the Assistant Commissioner and Authorized Officer under the Land Reforms Act, Davanagere and appellants in RA.No.868/2006 on the file of KAT, Bangalore.
2. The brief facts leading to this writ petition are as under:
First petitioner’s husband Pundarika Rao and father of petitioner Nos.2 and 3 is said to be grantee of land bearing Sy.No.100 measuring to an extent of 3 acres situated at Basvanahalli village, Govinakovi Hobli, Hollali Taluk, Shivamogga District. The records would indicate that aforesaid land was granted in favour of Pundarika Rao in or around 1947. Thereafter, it is stated that he was in possession and cultivation of the same until his death and subsequently it is said to be in possession, cultivation and enjoyment of the petitioners herein.
3. When matter stood thus, an application is said to have filed by a person named D.Mahadevappa s/o Veerappa of Basavanahalli village seeking occupancy right in respect of aforesaid land by filing Form No.7A, which is registered as LRF.CR.1/1998-99 before the Assistant Commissioner and Authorized Officer under the Land Reforms Act, wherein the Assistant Commissioner after conducting an inquiry proceeded to hold that the land in question is granted land. However, the applicant D.Mahadevappa s/o Veerappa was not the grantee or tenant under the grantee and as such, issuance of occupancy right in his favour does not arise. Accordingly, dismissed the application by order dated 27.4.2006. While doing so, the objections which were filed by the first petitioner’s husband – Pundarika Rao, who was respondent in the said proceedings is not considered and an order was made for resumption of land to the Government, which was subsequently challenged by the petitioners herein as legal heirs of Pundarika Rao in Appeal No.868/2006 before the Karnataka Appellate Tribunal (‘the Tribunal’ for short), Bangalore.
4. In the appeal before Tribunal, the matter was heard at length. Wherein the Tribunal accepted the contention of petitioners herein that Form No.7A, which was filed by D.Mahadevappa seeking occupancy right in respect of Sy.No.100/P and 234 to an extent of 2 acres and 1 acre 32 guntas, respectively was rightly rejected by the Assistant Commissioner, for the reason that Pundarika Rao, the husband of first petitioner and petitioner Nos.2 and 3 was grantee of an extent of 4 acres of land in Sy.No.100 of Basavanahalli village under a grant dated 12.7.1947, said Pundarika Rao was in possession ever since the said date and that the land was not leased to any person. The Tribunal further observed that 1 acre out of 4 acres was sold by said Pundarika Rao to one Kallappa s/o Chikkappa and retained 3 acres for himself and subsequently, Pundarika Rao died on 21.9.1998 leaving him surviving the petitioners herein.
5. The Tribunal also observed that the entries in RTC for few years showing the name of one Holesara Chikkappa as cultivator was a wrong entry, therefore, in the fact situation the order passed by the Assistant Commissioner and Authorized Officer under the Land Reforms Act is arbitrary, illegal and unjust, that the Assistant Commissioner has not followed the procedure properly and he has not looked in to the legal provisions carefully before passing the order for resumption of the land. Accordingly, by allowing the appeal, the Tribunal has passed an order remanding the mater to Assistant Commissioner and Authorized Officer under the Land Reforms Act, Davanagere, with a direction to go through the observations made in the judgment dated 28.1.2010 in Appeal No.868/2006 and thereafter, to dispose of the matter in LRF.CR.1/1998-99 afresh. The said judgment of the Tribunal is under challenge in this writ petition.
6. Heard the learned counsel for the petitioners as well as the learned AGA appearing for the respondents. The material on record would clearly indicate that the order of the Assistant Commissioner and Authorized Officer under the Land Reforms Act is perverse in nature, inasmuch as he has not even bothered to look in to the material that was available on record to see the rights of the parties, namely the applicant – D.Mahadevappa and that of respondent – Pundarika Rao. It is seen that when the Assistant Commissioner was convinced that the land bearing Sy.No.100/P of Basavanahalli village was indeed granted in favour of Pundarika Rao in the year 1947 and after having found that no grant is made in favour of Mahadevappa by the Government or that there is no material to show that he was a tenant of the land as claimed by him in the application in Form No.7A, should have confined its order only in rejecting the application of Mahadevappa and should not have exceeded its jurisdiction in ordering resumption of land to the Government without taking in to consideration the grant made in favour of Pundarika Rao, which he has observed in his order. Therefore, the said order is erroneous and the same is rightly interfered with by the Tribunal.
7. However, when the order of the Tribunal is looked in to, it is seen that there was no need for the Tribunal to refer the matter back to the Assistant Commissioner to reopen the application in LRF.CR.1/1998-99 and to pass orders afresh based on the observations made in the appeal. In fact, the Tribunal ought to have allowed the appeal in its entirety by quashing the erroneous portion of the order dated 27.4.2006 in resuming the land to the Government, thereafter, it should have accepted the title of Pundarika Rao and should have ordered for the land to be registered and continued in the name of the legal heirs of deceased Pundarika Rao, in whose favour the land in question was granted in the year 1947 as rightly accepted by the Assistant Commissioner and the Authorized Officer under the Land Reforms Act.
8. In that view of the matter, accepting the reasoning given by the Tribunal in its judgment dated 28.1.2010 in Appeal No.868/2006 this Court would modify the order of the Tribunal in accepting the portion in upholding rejection of Form No.7A of Mahadevappa and confirming the grant in favour of Pundarika Rao. However, the portion of the judgment which deals with the Tribunal in remanding the matter back to the Assistant Commissioner and Authorized Officer, Davanagere to reconsider the application in LRF.CR.1/1998-99 afresh is set aside. Further, it is hereby ordered that the land resumed to the Government should be restored to the petitioners herein and they should be permitted to continue in possession, cultivation and enjoyment of the same with the revenue entries being restored to their name in all the revenue records.
With the aforesaid observations, this writ petition is disposed of.
Sd/- JUDGE nd/-