IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA WRIT PETITION No.37253/2016 (LR – RES) BETWEEN :
SMT.JAYAMMA W/O LATE H.G.SHAMANNA, SINCE DEAD BY HER LR.
SMT. M.R. MEERA, W/O H.A.VIJAYAKUMAR, AGE 62 YEARS, R/AT NO.1, 4TH ‘A’ MAIN ROAD, HEBBAL, BENGALURU - 560 024.
(CAUSE TITLE AMENDED VIDE COURT ORDER DATED 10.01.2017.) ...PETITIONER (BY SRI C.VINAY SWAMY, ADV.) AND :
1. THE STATE OF KARNATAKA REP. BY ITS SECRETARY REVENUE DEPARTMENT, GOVERNMENT OF KARNATAKA, BANGALORE-560 001.
2. THE SPECIAL LAND ACQUISITION OFFICER CHAIRMAN LAND TRIBUNAL BANGALORE DISTRICT/ASSISTANT COMMISSIONER, BANGALORE NORTH, BANGALORE-560 001.
3. THE CHAIRMAN KARNATAKA APPELLATE TRIBUNAL, M S BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE-560 001.
(R-3 DELETED VIDE COURT ORDER DATED 17.08.2016.) 4. THE SECRETARY LAND TRIBUNAL BANGLAORE NORTH TALUK (ADDITIONAL) THASILDAR, NORTH TALUK (ADDL.), YELAHANKA, BANGALORE-560064.
5. SRI GANGADHAR S/O LATE DODDAKEMPANNA AGED ABOUT 59 YEARS, R/AT NAGADASANAHALLI, YELAHANKA HOBLI, BANGALORE NORTH TALUK-560 064.
6. SRI H.A.VIJAYA KUMAR S/O LATE H.G.ANANDA RAO AGED ABOUT 62 YEARS, R/AT NO.1, 4TH MAIN ROAD, HEBBAL, BANGALORE-560024. …RESPONDENTS (BY SRI B.S.BUDIHAL, HGCP FOR R-1, R-2 & R-4; SRI T.M.VENKAT REDDY, ADV. FOR R-5;
R-3 IS DELETED VIDE COURT ORDER DATED 17.08.2016; R-6 IS SERVED, BUT UNREPRESENTED.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN LRF.7[A] 179/1999-2000 & RA.NO.818/2005 ON THE FILE OF R-3 AND SET ASIDE THE ORDER PASSED BY THE R-3 IN RA.NO.818/2005 DATED 30.03.2016 PASSED BY KARNATAKA APPELLATE TRIBUNAL AT BANGALORE [R-3], VIDE ANNEX-A AND CONFIRM THE ORDER PASSED IN LRF 7[A] 179/1999-2000 DATED 15.10.2004 PASSED BY SPECIAL LAND ACQUISITION OFFICER, BANGALORE DISTRICT [R-2] VIDE ANNEX-B.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON 29.01.2019, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, S.SUJATHA J., PASSED THE FOLLOWING:
O R D E R The petitioner has challenged the order passed by the respondent No.3 in R.A.No.818/2005 dated 30.03.2016 passed by the Karnataka Appellate Tribunal at Bengaluru ['Tribunal' for short] whereby the order passed in LRF 7 [A] 179/1999-2000 dated 15.10.2004 by the Special Land Acquisition Officer, Bengaluru District [respondent No.2] has been set aside and the proceedings are remanded to the Special Land Acquisition Officer for re-consideration.
2. It is contended that the respondent No.5 had filed application in Form-7A for grant of 1 acre 28 guntas of land in Sy.No.13 of Laxmisagara village, belonging to the petitioner, claiming that his father late Dodda Kempaiah and his uncle late Chikka Kempaiah were jointly cultivating the land as on 01.03.1974. Chikka Kempaiah had filed Form-7A, occupancy rights were granted to him for 3 acres 20 guntas whereas father of respondent No.5 late Dodda Kempaiah did not file Form-7. The respondent No.5 has filed application under Form-7A under Section 77-A of the Karnataka Land Reforms Act, 1961 ['Act' for short]. Special Officer for grant of land rejected the application of the respondent No.5 on the ground that the occupancy rights were granted for one of the family member, no other member of the same family is entitled for further grant. Aggrieved by the same, the respondent No.5 filed an appeal before the Karnataka Appellate Tribunal (‘Tribunal’ for short) in R.A.No.818/2005, wherein the order of the respondent No.2 was set aside and the matter was remanded back to the Special Officer/Assistant Commissioner, Bengaluru North. Being aggrieved by the same, the petitioner is before this Court.
3. Learned counsel Sri.Vinay Swamy.C, appearing for the petitioner submitted that the land in question was in the possession of the petitioner on the relevant date i.e., on 01.11.1998 as per the revenue records. The Form-7A filed by the respondent No.5 does not reveal the land owned/tenanted by him as on 01.11.1998. The respondent No.5 was holding lands to the extent of 2 Hectares of ‘D’ class land and has sold certain portion of the land but still possessing 6 acres of land even as on the date. Learned counsel referred to Annexures-J, K, L, M, M1, M2 and M3 to the writ petition – copies of the sale deeds and RTC extracts to substantiate his arguments in as much as the respondent No.5 possessing more than 2 hectors ‘D’ class land.
4. It was further argued that the occupancy rights were conferred on Chikka Kempaiah to the extent of 3 acres 20 guntas relating to the land in question and as such no other joint family member is entitled to further grant.
5. Learned counsel for the petitioner has referred to the following judgments:
ILR 2002 Karnataka 1342 ( Hosabayya Nagappa Naik & others Vs State of Karnataka, by its Secretary, Revenue Department & others) KCCR 2012(4) 3411 (Lokayya Poojary & another Vs. State of Karnataka & others) KCCR 2002(1) 266 (Punkuda Harijana Vs. The State of Karnataka & others) 6. Learned counsel Sri.T.M.Venkat Reddy appearing for the contesting respondent No.5 argued that there was no joint family status existing with Chikka Kempaiah and his father. Both had separate family status and thus entitled to occupancy rights separately as tenants of the land in question. Considering the same, the Tribunal rightly remanded the matter to the respondent No.2 to verify whether the respondent No.5 was not entitled for conferment of occupancy rights, in terms of proviso to Section 77-A[2] of the Act.
7. I have carefully considered the arguments advanced by the learned counsel appearing for the parties and perused the material on record.
8. There is no dispute regarding the legal proposition canvassed by the petitioner with reference to the judgments cited above.
9. The arguments advanced by the learned counsel for the petitioner prima-facie appears to have some force more particularly in the light of the judgments referred to supra as well as proviso to Sub- Section (2) of Section 77-A of the Act. However, the factual aspects not being adjudicated upon by the respondent No.2 and the matter being dismissed for want of jurisdiction, the same requires to be considered by the respondent No.2. The Tribunal being the last fact finding authority ought to have verified the same but in view of the remand order made, restoring the proceedings to the file of respondent No.2, setting aside the order of the Tribunal at this stage would not be reasonable.
10. Hence writ petition stands disposed of confirming the order of the Tribunal remanding the matter to the respondent No.2, for re-consideration. Respondent No.2 shall consider the matter afresh in accordance with law in an expedite manner after providing an opportunity of hearing to the parties, preferably within a period of eight weeks from the date of receipt of certified copy of the order. All the rights and contentions of the parties are left open.
Sd/- JUDGE NC/Dvr: