IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R. KRISHNA KUMAR WRIT APPEAL NO.3768/2019 (LR) BETWEEN MRS. SEVERINE D’SA W/O LATE STANY D’SA AGED ABOUT 57 YEARS R/AT : MARIYA KRIPA NEAR INDARUGIRI BELMAN VILLAGE KARKALA TALUK UDUPI DITRICT-576 111 …APPELLANT (BY SRI G BALAKRISHNA SHASTRY, ADVOCATE) AND THE LAND TRIBUNAL UDUPI TALUK UDUPI-576 101 REP BY ITS CHAIRMAN …RESPONDENT (BY SRI I THARANATH POOJARY, AGA) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 28/05/2019 IN W.P.NO.5203/2019, W.P.NO.5203/2019 BE ALLOWED AS PRAYED FOR, A WRIT OF MANDAMUS BE ISSUED TO THE LAND TRIBUNAL, UDUPI DIRECTING THE LAND TRIBUNAL, UDUPI TO CONSIDER THE APPLICATION DATED 14/06/2018 FILED BY THE APPELLANT AS PER ANNEXURE-A AND THIS WRIT APPEAL BE ALLOWED WITH COSTS THROUGHOUT IN THE INTEREST OF JUSTICE.
THIS WRIT APPEAL COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Office objections are waived.
2. Heard the learned counsel appearing for the appellant and the learned Additional Government Advocate appearing for the respondent. Considering the narrow controversy involved, the appeal is forthwith taken up for final disposal.
3. The present appellant is the writ petitioner who filed a writ petition seeking a writ of mandamus directing the respondent -Land Tribunal to consider the application dated 14th June 2018, a copy of which is annexed as Annexure-A to the writ petition. The case made out in the writ petition is that the lands measuring 27 cents in Survey No.216/9B and 81 cents in Survey No.152/27 of Belle Village were not included in Form No.7 filed by the predecessor of the appellant. It is pointed out in the petition that during the course of enquiry before the Land Tribunal, a surveyor was deputed to conduct spot inspection to report on the physical possession and cultivation of the lands by the tenant and upon spot inspection, the surveyor submitted a report wherein he specifically mentioned that the appellant’s predecessor/tenant (applicant before the Land Tribunal) was in possession of the aforesaid two items of land other than the lands which were mentioned in Form No.7. In the writ petition, reliance is placed on the order dated 21st August 1981 passed by the Land Tribunal.
4. The learned Single Judge, by the impugned order, rejected the writ petition. The learned Single Judge observed that what is sought by the appellant is amendment to Form No.7 filed by the appellant’s predecessor in the year 1974. He observed that it is not permissible to include additional survey numbers in the application in Form No.7 on the basis of which an order was made way back in the year 1981. He further observed that after lapse of 37 years, now the relief of including two lands in Form No.7 cannot be granted.
5. The learned counsel appearing for the appellant submitted that the predecessor of the appellant who applied by filing Form No.7 was found to be in possession of the aforesaid lands in two survey numbers as well. He also invited our attention to the copy of the order passed by the Land Tribunal which makes a reference to the aforesaid two lands in the two survey numbers. He urged that under the second proviso to sub-section (6) of Section 48A of the Karnataka Land Reforms Act, 1961 (for short ‘the said Act’), there is a power vested in the Land Tribunal to correct the extent of land in any order passed by it. He submitted that the only relief claimed in the writ petition was a direction to the Land Tribunal to decide the application in accordance with law. He submitted that the appellant never sought the relief of amending Form No.7 which was submitted in the year 1974.
6. The learned Additional Government Advocate supported the impugned order.
7. We have given careful consideration to the submissions. According to the case made out by the appellant, on the basis of the original Form No.7 filed by the predecessor of the appellant, an enquiry was made by the Land Tribunal by deputing a surveyor to conduct spot inspection. In the survey, it was found that the appellant’s predecessor was in possession and cultivation of the aforesaid two lands as well. Annexure-C is the copy of the survey report.
8. Thus, the case as pleaded in the writ petition is that the prayer made in Annexure-A to the writ petition was for correcting the extent of land mentioned in the order of the Land Tribunal and there was no prayer to include additional lands in Form No.7 filed by the appellant’s predecessor in the year 1974.
9. We are not on the question whether the appellant is entitled to the relief as prayed for in Annexure-A to the writ petition. However, we find that the learned Single Judge has proceeded on the footing that the prayer was for including additional lands in Form No.7 submitted by the appellant’s predecessor way back in the year 1974. The power to correct the extent of land is vested in the Land Tribunal by virtue of the second proviso to sub-section (6) of Section 48A of the said Act. Therefore, in our view, the learned Single Judge ought to have directed the respondent -Land Tribunal to decide the application at Annexure-A in accordance with law.
10. Accordingly, we pass the following order:
(i) The impugned order dated 28th May 2019 is hereby set aside;
(ii) W.P.No.5203/2019 is allowed in terms of prayer (i) thereof. We direct the Land Tribunal to decide the application at Annexure-A within a period of six months from the date on which a copy of this order is produced before it;
(iii) We make it clear that we have made no adjudication on the issue of entitlement of the appellant to the relief claimed in Annexure-A to the writ petition and all questions in this behalf are left open to be decided by the Land Tribunal;
(iv) The appeal is allowed on the above terms.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv