IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 24TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.2582 OF 2018 (LR-SEC-77) BETWEEN:
SRI. B. HANUMANTHAPPA SON OF LATE GIRIYAPPA AGED ABOUT 65 YEARS RESIDING AT MALLENAHALLI VILLAGE TALAGUNDA HOBLI SHIKARIPURA TALUK SHIVAMOGGA DISTRICT PIN-577 428.
...APPELLANT (BY SRI. M.K. GIRISH, ADVOCATE) AND:
1. AUTHORIZED OFFICER AND ASSISTANT COMMISSIONER LAND TRIBUNAL, SHIKARIPURA SHIVAMOGGA DISTRICT PIN-577 427.
2. THE THASILDAR SHIKARIPURA TALUK SHIKARIPURA SHIVAMOGGA DISTRICT PIN-577 427.
3. SRI. KRISHNAPPA NAIKA SON OF VENKANNA NAIKA AGE: MAJOR, CHIKKERUR VILLAGE HIREKERUR TALUK, HAVERI DISTRICT PIN - 581 111.
(BY SRI. S.S. MAHENDRA, AGA FOR RESPONDENTS 1 AND 2) ...RESPONDENTS THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 02/07/2018 PASSED IN WP NO.26098 OF 2018 [LR SEC-
77] BY ALLOWING THIS WRIT APPEAL.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 02.07.2018 passed by the learned Single Judge in W.P.No.26098 of 2018, by which the petition was dismissed, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying to quash the order dated 05.10.2016 in proceedings No.L.R.T. 7A.CR.01/99-2000 passed by the first respondent and also to quash the order dated 22.02.2018 passed by the Karnataka Appellate Tribunal in Appeal No.98 of 2017 and for a mandamus directing the first respondent to declare that the petitioner is the tenant in respect of land bearing Sy.No.146/6 measuring 2 acres 5 guntas of Mallenahalli village, Talagunda Hobli, Shikaripura Taluk, Shivamogga District and to grant occupancy certificate.
3. The petitioner claims that he is the tenant of land bearing Sy.No.146/6 to an extent of 2 acres 5 guntas of Mallenahalli village, Talagunda Hobli, Shikaripura Taluk, since last several years. Earlier his father was cultivating the land. It is stated that his father Giriyappa had three brothers and the joint family was cultivating the land in question. After the death of the brothers of petitioner’s father, Giriyappa, father of the petitioner continued to cultivate and after death of Giriyappa, the petitioner continues to cultivate the land in question. It is stated that the petitioner’s father Giriyappa failed to file Form No.7 under the Karnataka Land Reforms Act, 1961 (for short ‘the Act’) seeking occupancy rights. Subsequently, after amendment of the Act and after insertion of Section 77-A the petitioner filed application for grant of occupancy rights on 17.12.1998. The Authorized Officer, by order dated 05.10.2016 rejected the application filed by the petitioner on the ground that, neither the name of the petitioner nor his father appear in the Pahani and the Pahani for the period from 1970-71 to 1979-80 is not available. Further, the Authorized Officer also noted that the family of the petitioner owns land in excess of ceiling limit. Aggrieved by the said order of the Authorized Officer, the petitioner filed appeal before the Karnataka Appellate Tribunal. The Karnataka Appellate Tribunal by order dated 22.02.2018 dismissed the appeal confirming the order passed by the Authorized Officer. The Appellate Tribunal while dismissing the appeal observed that the family of the petitioner possessed excess land and also observed the non-availability of RTC for the years 1970 to 1980. Being aggrieved by both the orders, the petitioner filed instant writ petition.
4. In the writ petition, the petitioner contended that he had made application prior to amendment of the Act and as such, the same would have no application. The learned Single Judge on examination of the contentions raised by the petitioner dismissed the writ petition holding that the application of the petitioner is to be considered in the light of the law as prevailing on the date of consideration of the application. Thus, rejected the writ petition. Hence, the petitioner is in appeal.
5. Heard the learned counsel for the appellant and learned Additional Government Advocate for Respondents No.1 and 2. Perused the appeal papers.
6. Learned counsel for the appellant would submit that the learned Single Judge failed to properly appreciate the facts and circumstances of the case. Further it is submitted that the petitioner was cultivating the land as on 01.03.1974 and continued to cultivate the land as on the date of insertion of Section 77-A. Hence, the petitioner is entitled for grant of occupancy rights. Further it is contended that it is not proper on the part of the authorities as well as the learned Single Judge to observe that the petitioner’s family is holding lands above ceiling limit. The Tahsildar had issued endorsement stating non- availability of RTCs from 1970 to 1980 and non-availability of RTCs ought to have been held in favour of the petitioner. Hence prays for allowing the appeal.
7. Per contra, learned Government Advocate would support the order passed by the learned Single Judge and submits that the petitioner has admitted before the learned Single Judge that his family owns the lands in excess of ceiling limit. As the petitioner holds land in excess of ceiling limit, he would not be entitled for occupancy rights. Thus prays for dismissal of the appeal.
8. On going through the order of the learned Single Judge and the appeal papers, we are of the view that the learned Single Judge has passed a detailed reasoned order which requires no interference by this Court. It is the case of the petitioner that the petitioner and his father were cultivating the land as tenants in Sy.No.146/6 measuring 2 acres 5 guntas situated in Mallenahalli village, Talagonda Hobli, Shikaripura Taluk, Shivamogga District for a very long period. It is an admitted fact that the father of the petitioner Giriyappa failed to file Form No.7 under the Act seeking grant of occupancy rights. But, subsequently, the petitioner filed an application in Form No.7A on 17.12.1998 seeking occupancy rights, after insertion of Section 77-A to the Act. Section 77-A of the Act reads as follows:
“[77-A. Grant of land in certain cases.-(1) Notwithstanding anything contained in this Act, if the Deputy Commissioner, or the [or any other officer authorized by the State Government in this behalf] is satisfied after holding such enquiry as he deems fit, that a person,-
(i) was, immediately before the first day of March, 1974 in actual possession and cultivation of any land not exceeding one unit, which has vested in the State Government under Section 44; and (ii) being entitled to be registered as an occupant of such land under Section 45 or 49 has failed to apply for registration of occupancy rights in respect of such land under sub-section (1) of Section 48-A within the period specified therein; and (iii) has continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997, he may grant the land to such person subject to such restrictions and conditions and in the manner, as may be prescribed.
[Provided that the land so granted together with the land already held by such person shall not exceed 2 hectares of D class of land or its equivalent thereto.] (2) The provisions of sub-sections (2-A) and (2-B) of Section 77 and the provisions of Section 78 shall apply mutatis mutandis in respect of the grant of land made under sub- section (1).]”
Reading of the above provision would make it clear that a person shall be in actual possession and cultivation of land not exceeding the limit stated therein which is vested with the State Government as on 1st March 1974, and who has failed to apply for grant of occupancy rights and continued to be in actual possession and cultivation of such land as on the date of commencement of the Karnataka Land Reforms (Amendment) Act 1997, would be eligible to get occupancy rights under Section 77-A of the Act. Further one has to fulfill the conditions enumerated under the above stated Section.
7. On going through the material on record and after hearing the learned counsels, we are of the view that the petitioner would not fulfill the criteria or conditions enumerated under the provisions of the Act. Neither the petitioner would come within the ceiling limit prescribed under Section 77-A(1)(i) of the Act nor the petitioner has established that the land in question was in his possession as on 01.03.1974 and continued to be in possession and cultivation of the said land as on the date of amendment Act of 1997. The learned Single Judge noticed that the petitioner has admitted the holding of lands by his family members, however it was submitted that the land is held by the petitioner’s son. It is the case of the petitioner that till 1970, the names of his Uncles Bheemanna and Basavanyappa were shown in the RTC and subsequently, Column No.12 is kept blank. Further it is seen that the name of the petitioner nor his father appears in the RTC in respect of the land in question. Even though there was no RTC for the years 1970 to 1980 the same cannot be held in favour of the petitioner. It is for the petitioner to prove that he was a tenant of the land as on 01.03.1974 and continued to be in possession and cultivation of the land as on the date of amendment Act. The petitioner has failed to prove the same by producing material documents. The contention that no land stands in the name of the petitioner and as such the Authorities could not have held that the petitioner owns land in excess of ceiling limit, it is to be noted that after the death of father of the petitioner Giriyappa, as per mutation register, the mutation entries have been transferred in the name of the son of the petitioner instead of transferring in the name of petitioner. It is an admitted fact that the said land is the ancestral family property. Therefore, looking into the holding of land by the family of the petitioner, the authorities have rightly come to the conclusion that the petitioner holds land in excess of ceiling limit as stated in Section 77-A of the Act. Further, the petitioner has failed to fulfill the condition that he was cultivating the land as on the date of coming into force of the Land Reforms (Amendment) Act, 1974 as well as on 1997. The learned Single Judge by his reasoned order has rightly rejected the writ petition, which is neither erroneous nor perverse. The petitioner has not made out any ground to interfere with the order passed by the learned Single Judge. Accordingly, the appeal is dismissed.
In view of dismissal of the appeal, I.A.No.2 of 2018 does not survive for consideration. Accordingly, I.A.No.2 of 2018 is rejected.
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JUDGE JUDGE mpk/-* CT:KHV