IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.6086/2019(LR) BETWEEN 1. ISHWARA NAIK S/O KRISHNA NAIK AGED ABOUT 64 YEARS 2. NARAYANA NAIK S/O KRISHNA NAIK AGED ABOUT 61 YEARS BOTH ARE RESIDING AT MUNDAMULE HOUSE, MANILA VILLAGE, BANTWAL TALUK, D.K. DISTRICT.
PIN 574243. ... PETITIONERS (BY SRI G RAVISHANKAR SHASTRY, ADVOCATE) AND 1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO DEPARTMENT OF REVENUE, M.S. BUILDING, Dr.B.R. AMBEDKAR ROAD, BANGALORE – 560 001.
2. THE AUTHORIZED OFFICER AND ADDITIONAL DEPUTY COMMISSIONER DAKSHINA KANNADA DISTRICT, MANGALURU D.K PIN 575001.
3. BEEPATHUMMA W/O ABDUL RAHIMAN MAJOR R/AT THALAKKALA HOUSE, MANJESWARA TALUK, KASARGOD DISTRICT, KERALA.
PIN 671323.
4. NEBISATH MISRIA W/O KAYIMNHAJI MAJOR R/AT THALAKKALA HOUSE, MIAPADAVU POST, MANJESHWARA TALUK KASARGOD DISTRICT, KERALA PIN 671323.
5. MOIDU KUTTI S/O KUNHALI HAJI MAJOR THALEKKIMAR HOUSE, NAIRMOOLE POST, MANILA VILLAGE BANTWAL TALUK, D.K. DISTRICT. PIN 574260.
6. KAIRUNNISA W/O ABBAS MAJOR GUNAJE HOUSE, NIRCHALU POST, PERADALA VILLAGE KASARGOD DISTRICT, KERALA PIN 671551.
7. MARIAMMA W/O ISMAIL MAJOR KABAKA HOUSE, KABAKA POST PUTTUR TALUK, PUTTUR D.K. DISTRICT-574 221.
8. MOHAMMED RASHIF S/O KUNHALI HAJI MAJOR THALEKKIMAR HOUSE, NAIRMOOLE POST, MANILA POST, BANTWAL TALUK, D.K. DISTRICT. PIN 574 260.
9. MUSHEERA W/O HAMEED MAJOR KUBANURU HOUSE, KANNATTIPARE POST, UPPALA, KASARGOD PIN 671322. …RESPONDENTS (BY SRI B.S.BUDIHAL, HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NOs.1 AND 2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 16.01.2019 IN T.N.C.23/99-2000 PASSED BY THE 2ND RESPONDENT CERTIFIED COPY OF WHICH IS PRODUCED AT ANNEXURE-A AND CONSEQUENTLY APPLICATION FOR AMENDMENT MADE BY THE PETITIONERS BE ALLOWED.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Learned Additional Government Advocate takes notice for respondent Nos.1 and 2.
2. Petitioners herein, who are said to be the sons of Krishna Naik, are seeking quashing of the interim order dated 16.01.2019 (Annexure ‘A’ to the petition) passed by the second respondent – Authorized Officer and Additional Deputy Commissioner, Dakshina Kannada District, Mangaluru, in proceedings No.T.N.C:23/99-2000.
3. It is the case of petitioners that their father, Krishna Naik, was a chalageni tenant in respect of agricultural land measuring to an extent of 01-17 Acre in Sy. No.156/2B situate in Manila village, Bantwal Taluk, Dakshina Kannada District, under one M. Kunhali Beary / Kunhiali Beary (son of Moidu Kutti Beary) since the year 1968-69. Subsequently, the land owner, M. Kunhali Beary, died and respondent Nos.3 to 9 in this petition are said to be his legal representatives. It is stated that the petitioners’ father was an illiterate and he had inadvertently not filed Form No.7. However, after the Karnataka Land Reforms Act, 1961, was amended and Section 77A was inserted by the Karnataka Act No.23 of 1998 with effect from 01.11.1998, petitioners filed an application in Form No.7A seeking grant of 0.71 Acre of land in Sy. No.155/2B situate in Manila village, Bantwal taluk. According to petitioners, subsequent to filing of the said application, they learnt that they were in actual possession of land in Sy. No.156/2B and not 155/2B as stated in Form No.7A filed by them.
4. The records would indicate that the petitioners’ father, Sri Krishna Naik, during his life time did not file application in Form No.7 seeking occupancy rights with reference to the land bearing either Sy. No.156/2B or 155/2B of Manila village. However, the said person is said to have died leaving him surviving his two sons, namely, the petitioners herein. Petitioners do not furnish the date of death of their father. Petitioners have filed an application in Form No.7A seeking occupancy rights in respect of the land bearing Sy. No.155/2B measuring to an extent of 0-71 Acre on 28.01.1999. By then, their father Krishna Naik had died.
5. The said application was registered in proceedings No.TNC.23/99-2000 before Assistant Commissioner and Competent Authority, Land Tribunal, Bantwal. In the said proceedings, though petitioners herein had filed Form No.7A seeking occupancy rights in respect of the land measuring to an extent of 0-71 Acre in Sy. No.155/2B, their claim was considered in respect of the land measuring 0.71 Acre in Sy. No.156/2B of Manila village. The land owner – M. Kunhali Beary / M. Kunhali Haj, who entered appearance in the said proceedings, contended that neither the applicants nor their father was tenant in respect of the said land. He claimed that the said land had fallen to his share in a family partition vide registered partition deed No.338:1938 and that he was in possession of the said land and income derived from the said land was used for the activities of Masjid. The Assistant Commissioner after considering the material on record, rejected the application in Form No.7A filed by the petitioners herein vide order dated 21.01.2003 (Annexure ‘G’ to the petition), which was the subject matter of challenge in Appeal No.393/2003 preferred by petitioners herein before the Karnataka Appellate Tribunal (hereinafter referred to the ‘K.A.T’), Bengaluru. The K.A.T., by its judgment dated 19.02.2008, dismissed the appeal by confirming the order dated 21.01.2003 passed by the Assistant Commissioner and competent Authority, Land Tribunal.
6. Petitioners being aggrieved by the said judgment of the K.A.T., as well as the order dated 21.01.2003 passed by the Assistant Commissioner and competent Authority, preferred writ petition in W.P. No.9222/2009 (LR-RES) before this Court. A coordinate Bench of this Court, by its order dated 14.12.2009 (Annexure ‘B’ to the petition), quashed the order dated 21.01.2003 passed by the Assistant Commissioner and competent Authority as well as the judgment dated 19.02.2008 passed by the K.A.T., in Appeal No.393/2003 and remanded the matter to the Assistant Commissioner / Authorized Authority with direction to restore the case No.TNC.23/1999-2000 on file, issue notice to the parties and reconsider the matter afresh. As against the said order dated 14.12.2009, Sri Kunhiali Beary preferred writ appeal in W.A. No.285/2010 (LR-RES) before this Court. A Division Bench of this Court by its judgment dated 10.02.2010, dismissed the said appeal.
7. It is stated that in the remanded proceedings No.TNC:23/99-2000, petitioners filed an application seeking permission to amend Form No.7A in order to correct the survey number of the land as ‘Sy. No.156/2B’ instead of Sy. No.155/2B’ and its extent as ‘1.17 Acre’ instead of ‘0.71 Acre’ before the second respondent - Authorized Officer and Additional Deputy Commissioner. The said application was contested by respondents therein, who are respondent Nos.3 to 9 in this petition.
8. The second respondent, by his order dated 16.01.2019 (Annexure ‘A’ to the petitions), held that the applicants – petitioners herein cannot be permitted to amend the survey number and extent of the land, in respect of which occupancy rights were sought by them at the time of filing of Form No.7A as the Karnataka Land Reforms Act, 1961, did not provide for such amendment and accordingly, rejected the application filed by petitioners herein. Being aggrieved by the same, the petitioners are before this Court.
9. This Court before ordering issuance of notice to the contesting respondents, heard the learned counsel for the petitioners. Perused the order impugned along with the other material available on record.
10. It is submitted that there was confusion with reference to the land in respect of which occupancy right was sought by petitioners in Form No.7A filed by them. Initially, petitioners filed application in Form No.7A seeking occupancy right in respect of the land measuring 0.71 Acre in Sy. No.155/2B. Subsequently, the same is sought to be corrected as ‘156/2B’ measuring ‘1.17 Acre’ in the application in Form No.7A. It is seen that coordinate Bench of this Court at paragraph No.5 of its order dated 14.12.2009 passed in W.P. No.9222/2009 has felt that it was open for the petitioners to seek clarification before the Competent Authority where they initially filed the application in Form No.7A. However, the said order does not give any indication that the Competent Authority was bound to accept the same and permit the petitioners to proceed with the application in Form No.7A filed by them. It is in this background that when an application was filed before the second respondent – Authorized officer and Additional Deputy Commissioner seeking amendment to Form No.7A, the same came to be rejected vide interim order dated 16.01.2019, which is impugned in this petition.
11. On going through the material available on record, this Court is unable to understand how the proceedings in TNC No.23/99-2000 itself could be maintained by the petitioners when their father during his life time had not informed them to seek occupancy right in respect of any portion of land either in Sy. No.155/2B or 156/2B of Manila Village. When the entire records are looked into, petitioners does not give the date of death of their father and for what reason they want to suppress the said information is not known to this Court. However, it is clearly seen that the petitioners’ father, Krishna Naik, was alive when the Karnataka Act No.23 of 1998 amending the provisions of the Karnataka Land Reforms Act, 1961, came into force on 01.11.1998 and he did not choose to seek occupancy rights in respect of the said land during his life time. It is after the death of Krishna Naik, his children (petitioners herein) are trying to seek occupancy right in respect of the said land. The most surprising thing in the entire proceedings is the greed of petitioners to seek occupancy right with reference to the land in which they were not under cultivation. They are not even aware of the land for which they are trying to seek occupancy right. It is seen that petitioners have filed their application in Form No.7A to secure occupancy right in respect of the land measuring 0.71 Acre in Sy. No.155/2B, they participated in the proceedings before the Assistant Commissioner and Competent Authority as well as the Karnataka Appellate Tribunal and thereafter, when order and judgment passed by the said authorities were subject to challenge in writ petition in W.P. No.9222/2009, they realized that there was a mistake on their part in mentioning survey number and the extent of land in their application in Form No.7A and sought for amendment. Though a coordinate Bench of this Court permitted them to seek the said clarification before the Competent Authority that itself would not indicate that their application should be allowed by the competent authority. The impugned order passed by the second respondent does not suffer from any illegality or infirmity so as to call for interference by this Court.
12. Accordingly, this Writ Petition is rejected. While doing so, a copy of this order is directed to be sent to the second respondent – Authorized officer and Additional Deputy Commissioner, Dakshina Kannada District, Mangaluru, to be placed in proceedings No.TNC.23/99-2000 which is pending consideration before the said Authority.
13. Learned High Court Government Pleader is directed to file his memo of appearance within two weeks from today.
Sd/- JUDGE sma