- 1 - ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.24687/2012(LR) BETWEEN 1. SMT K.SATHYAVATHI SHENOY AGED ABOUT 84 YEARS W/O LATE KUPU VENKATARAYA SHENOY, RESIDING AT "SREESADHANA" MAIN ROAD, KAPU, UDUPI-574 106 2. SRI. RAMESH VENKATRAYA SHENOY AGED ABOUT 64 YEARS S/O LATE KUPU VENKATRAYA SHENOY, R/AT "SRI SHANTHERI"
KADAMBODY ROAD, KULAI HOSABETTU, SURATHKAL, MANGALORE -575 026, D.K.
3. DR. SHAKUNTHALA SHENOY AGED ABOUT 62 YEARS D/O LATE KUPU VENKATARAYA SHENOY, W/O DR. H.MOHASDAS SHENOY, 4. SRI. VASANTHA VENKATARAYA SHENOY AGED ABOUT 56 YEARS S/O LATE KUPU VENKATARAYA SHENOY, NO.3 AND 4 ARE RESIDING AT SREESADHANA MAIN ROAD, KAPU-574106, UDUPI DISTRICT ... PETITIONERS (BY SRI Y.RAJENDRAPRASAD SHETTY, ADVOCATE) AND 1. THE STATE OF KARNATAKA REVENUE DEPARTMENT M.S. BUILDING DR.AMBEDKAR VEEDHI BANGALORE -560 001 REPRESENTED BY ITS SECRETARY 2. THE LAND TRIBUNAL UDUPI TALUK & DISTRICT UDUPI -574106 3. SRI. VINOD SHETTY MAJOR, S/O LATE KITTANNA SHETTY RESIDING AT MULUR, POST UCHILA, UDUPI TALUK & DISTRICT-574 117 ... RESPONDENTS (BY SRI B.S.BUDIHAL, HCGP FOR R1 & R2 SRI M.R.UPPIN, ADVOCATE FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 27.12.2011 PASSED BY THE 2ND RESPONDENT VIDE ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners herein are respondents in proceedings bearing No.LRY-101-105-235-TRI-668-669/1980-81 on the file of the Land Tribunal, Udupi.
2. Admittedly, the aforesaid proceedings is on an application filed by Kittanna Shetty seeking occupancy right in respect of 10 items of lands as could be seen in the copy of Form No.7 filed on 21.9.1974, at Annexure-B. The said lands were belonging to the respondent before the Additional Land Tribunal, namely Venktray Shenoy since deceased, represented by his widow and children.
3. Initially, the application which was filed by Kittanna Shetty was entertained by order dated 25.11.1981, wherein besides 10 items of lands for which he filed Form No.7 occupancy right was granted in respect of 3 other items of lands in (1) Sy.No.36/1A1 measuring to an extent of 0.02 cents, (2) Sy.No.32/1D measuring to an extent of 0.04 cents and (3) Sy.No.32/2B measuring to an extent of 0.05 cents.
It is stated that the Tribunal had also entertained the claim in respect of 2 lands which are admittedly punja lands viz., lands bearing (1) Sy.No.36/1B2 measuring to an extent of 1.05 cents and (2) 36/2A2 measuring to an extent of 0.03 cents. Besides these 5 lands, other survey numbers are also considered. The said order of Land Tribunal dated 25.11.1981 was subject matter of challenge before the Co- ordinate Bench of this Court in WP.No.35149/1992, which is disposed of by order dated 2.12.1999, wherein the Co- ordinate Bench of this Court interfered with the order of the Land Tribunal so far as the aforesaid 5 items of lands are concerned and remanded the matter back to the Tribunal for fresh consideration and rest of the order passed by the Tribunal which was not seriously challenged by the petitioners herein was allowed to be registered in the name of tenants.
4. In the remanded proceedings, evidence was recorded thereafter, by order dated 27.12.2011, at Annexure-A, the Additional Land Tribunal, Udupi Taluk reiterated its earlier order so far as aforesaid 5 items are concerned. The petitioners being aggrieved by the same have come up before this Court for the second time on the ground that the Land Tribunal was not justified in considering the prayer of the applicant in Form No.7 with reference to 3 items of lands which were not claimed in said application. Besides that, said 3 items were also not seen in Geni Chit, which was issued in favour of tenant - Kittanna Shetty. So far as remaining 2 items of lands are concerned, they are punja lands and though said 2 items were also not seen in Geni Chit, application was filed by the tenant claiming occupancy right in respect of said lands also.
5. What is surprising in this proceedings is, the manner in which the Additional Land Tribunal, Udupi, has considered the application of the tenant after the same was remanded for reconsideration. Initially, when the said application was decided on its merits in first round, the Land Tribunal has mechanically passed orders accepting the claim of tenant in respect of lands without looking in to whether the same is seen in Geni Chit or otherwise, whether it is Nanja land or Punja land or it is under cultivation in any other manner. Hence, when the petitioner herein approached this Court in earlier round of litigation, the Co- ordinate Bench of this Court while deciding WP.No.35149/1992 made certain categorical observations with reference to right of the applicant - Kittanna Shetty who was since dead and represented by his son 3rd respondent and regarding the correctness or otherwise of the order of the Land Tribunal in considering occupancy right in respect of lands which are not shown in Geni Chit and also in respect of the lands which are identified as punja lands.
6. In the remanded matter also, though the applicant who was represented by his legal heir and son was not able to demonstrate possession being handed over to him under Geni Chit and the lands in question being removed out of Punja classification, the Land Tribunal itself has assumed that said lands could be considered as lands which are cultivable in view of the fact that the owners of lands have decided to cultivate the same by themselves, accordingly, they should be considered for grant in favour of tenant, which could be the utmost absurd and strange observation on the part of the Land Tribunal, which had no authority to presume such aspects without documentary evidence.
7. Admittedly, the law is very clear with reference to occupancy right, wherein the first and foremost thing is that, the tenant will have to demonstrate that he is in possession of the land in question pursuant to Geni Chit given to him and his name should be shown as occupant in respect of each of the lands which he is claiming and secondly, it should be shown as cultivable land. In the instant case, the applicant – Kittanna Shetty and his children have failed to demonstrate both aspects. Inspite of that, the Land Tribunal has assumed said responsibility on itself in proving that tenant -Kittanna Shetty has established that he has got right to seek occupancy right in respect of aforesaid lands for the reason that, when the landholders have decided to withhold the lands for themselves, it is cultivable lands and therefore, occupancy right of which can be granted in favour of the tenant, is the absurd finding, which the Land Tribunal could not have arrived at.
8. In that view of the matter, this Court find that the order impugned lacks reasons as well as biased and not supported either by Geni Chit or any other document which supports tenancy claim of the respondents herein. Therefore, the entire order so far as aforesaid 5 lands are concerned, requires to be quashed.
9. Accordingly, this writ petition is allowed. The order dated 27.12.2011 passed in proceedings bearing No.LRY-101-105-235-TRI-668-669/1980-81 on the file of the Additional Land Tribunal, Udupi, so far as it pertains to conferring occupancy rights in favour of Kittanna Shetty in respect of lands bearing Sy.No.36/1A1 measuring to an extent of 0.2 cents, Sy.No.36/1B2 measuring to an extent of 1.5 cents, Sy.No.36/2A2 measuring to an extent of 0.3 cents, Sy.No.32/1D measuring 0.4 cents and Sy.No.32/2B measuring to an extent of 0.5 cents, is hereby quashed and declared that they are the lands in possession of 1st petitioner – Sathyavathi Shenoy and her children, who are legal heirs of original respondent before the Land Tribunal.
Sd/- JUDGE nd/-
*Inserted page Nos.10 & 11 vide Court order dated 26.4.2019 SNSJ:
26.04.2019 WP.NO.24687/2012 ORDER ON ‘FOR BEING SPOKEN TO’ In this matter it is brought to the notice of this Court that there are certain typographical errors in describing the land in question as cents instead of acres. Accordingly, they are corrected as under:
In paragraph 3, the typed portion which reads as “(1) Sy.No.36/1A1 measuring to an extent of 0.02 cents (2) Sy.No.32/1D measuring to an extent of 0.04 cents and (3) Sy.No.32/2B measuring to an extent of 0.05 cents” and “(1) Sy.No.36/1B2 measuring to an extent of 1.05 cents and (2) 36/2A2 measuring to an extent of 0.03 cents” is to be read as ‘(1) Sy.No.36/1A1 measuring to an extent of 0.02 Acres (2) Sy.No.32/1D measuring to an extent of 0.04 Acres and (3) Sy.No.32/2B measuring to an extent of 0.05 Acres’ and ‘(1) Sy.No.36/1B2 measuring to an extent of 1.05 Acres and (2) 36/2A2 measuring to an extent of 0.03 Acres’.
Similarly, in paragraph No.9 the portion which is typed as “Sy.No.36/1A1 measuring to an extent of 0.2 cents, Sy.No.36/1B2 measuring to an extent of 1.5 cents, Sy.No.36/2A2 measuring to an extent of 0.3 cents, Sy.No.32/1D measuring 0.4 cents and Sy.No.32/2B measuring to an extent of 0.5 cents” to be read as
Sy.No.32/1D measuring 0.04 Acres and Sy.No.32/2B measuring to an extent of 0.05 Acres’.
In the meanwhile, learned counsel for the petitioner would submit that the village and Taluk of the lands in question i.e, Muloor village and Udupi Taluk is not mentioned in the order, that the same may be mentioned and further with reference to quashing of proceedings in granting occupancy right in favour of Kittanna Shetty, it should be granting occupancy right in favour of the legal representatives of Kittanna Shetty, hence, the same may be corrected.
Accordingly, it is ordered.
Sd/- JUDGE nd