IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL NO.545 OF 2012 (LR) BETWEEN:
SRI RAMA POOJARY SON OF BACHA POOJARY AGED ABOUT 60 YEARS RESIDING AT: AMASEBAILU VILLAGE KUNDAPURA TALUK UDUPI DISTRICT-575 001.
...APPELLANT (BY SRI: K. CHANDRANATH ARIGA, ADVOCATE) AND:
1. SRI SADHASHIVA KODGI SON OF LATE SARVOTTAMA KODGI AGED ABOUT 59 YEARS RESIDING AT AMASEBAILU VILLAGE TOTADA BAILU KUNDAPURA TALUK UDUPI DISTRICT.
SINCE DEAD, REPRESENTED BY HIS LRs 1(A) SMT. SHASHIKALA S. KODGI WIFE OF LATE SRI SADHASHIVA KODGI AGED ABOUT 62 YEARS RESIDING AT AMASEBAILU VILLAGE THOTADA BAILU KUNDAPURA TALUK UDUPI DISTRICT.
1(B) MR. A SHANKARA NARAYAN KODGI SON OF LATE SRI SADHASHIVA KODGI AGED ABOUT YEARS RESIDING AT AMASEBAILU VILLAGE TOTADA BAILU KUNDAPURA TALUK UDUPI DISTRICT.
(R-1(A) AND (B) AMENDED VIDE COURT ORDER DATED 31.01.2015) 2. THE LAND TRIBUNAL KUNDAPURA TALUK UDUPI DISTRICT.
3. THE STATE OF KARNATAKA SECRETARY TO REVENUE DEPARTMENT M.S. BUILDING BENGALURU-560001 REPRESENTED BY ITS SECRETARY.
…RESPONDENTS (BY SRI: NAGARAJ HEGDE, ADVOCATE FOR R1(A & B); SRI: LAKSHMINARAYAN, AGA FOR R2 AND R3) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.39268 OF 2011 (LR) DATED 15.11.2011 AND DISMISS THE WRIT PETITION.
***** THIS WRIT APPEAL COMING ON FOR HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 15.11.2011 passed in Writ Petition No.39268 of 2011 by the learned Single Judge, in allowing the writ petition and quashing the impugned order vide Annexure-A of the Tribunal, respondent No.1 therein has filed this appeal.
2. The facts of the case are that, the appellant is a tenant of various lands in question. He made an application in Form No.7 seeking the grant of occupancy rights with respect to 5 survey numbers. In terms of his application in Form No.7, by the order dated 20.08.1981, the Tribunal passed the final order. It also took note of the statement made by the landlord that, he has no objection to grant the occupancy rights. However, in the operative portion of the order, even though tenancy rights were conferred on various survey numbers, survey No.58/1B was omitted. Thereafter, an application was filed by the appellant on 01.02.1997 seeking to correct the anomaly. The Tribunal by the impugned order dated 12.07.2011, granted the occupancy rights of the left over survey number.
3. Questioning the same, respondent No.1 herein filed the instant writ petition. The learned Single Judge was of the view that a power is conferred on the Land Tribunal to review its own order and that is referable only to the proceedings under Section 67 of the Act, inasmuch as if the order under Section 67 of the Act is obtained by fraud, misrepresentation or suppression of facts, the Tribunal can review its order suo moto within a period of two years from the date of such order within 31st day of December, 1995, whichever is later. Therefore, it found fault with the order of the Tribunal in passing the impugned order therein. Consequently, the petition was allowed by quashing the order of the Tribunal.
4. The learned counsel for the respondents places reliance on Section 122-A of the Karnataka Land Reforms Act and contends that the power can be exercised only if the order has been obtained by fraud, misrepresentation or suppression of facts or by furnishing false, incorrect or incomplete declaration. Even that is to be done within a period of two years from the date of such order or on or before 31.12.1995, whichever is later. Therefore, he pleads that firstly, the application is beyond limitation. Secondly, that there is no fraud, misrepresentation or suppression of facts.
5. On the other hand, the same is disputed by the learned counsel for the appellant. He submits that Section 122-A of the Act is not applicable to the present facts at all. What is attracted in the instant case is the first proviso to Section 48-A of the Act, which reads as follows:
“Provided that the Tribunal may, on the application of any of the parties, for reasons to be recorded in writing, correct any clerical or arithmetical mistakes in any order passed by it.”
Hence, he pleads that the very finding recorded by the learned Single Judge has no nexus with the facts of the case. Admittedly, an error has been committed by the Tribunal which could be construed as a clerical error. Hence, he submits that the appeal be allowed.
6. On hearing learned Counsels, we are of the view that appropriate relief is called for. We have considered the application filed by the appellant. It is not narrated in the application that the same has been filed under Section 122-A of the Land Reforms Act. We have considered the impugned order of the learned Single Judge. It is not narrated that the order has been passed in exercise of the power under Section 122-A of the Act. The earlier order of the Tribunal granting occupancy rights clearly indicates that Survey No.58/1B was one of the land for which grant of occupancy rights was sought for. It is also narrated that the landlord has no objection for grant of occupancy rights. It is on this basis that the application was allowed. However, Survey No.58/1B was left out, due to inadvertence. It is so because, the said survey number was already considered by the Tribunal in the earlier part of the order dated 20.08.1981.
7. Our view was strengthened by the fact that the order of the Tribunal dated 20.08.1981 was not questioned by the landlord at all. Ostensibly, he has no objection for grant of occupancy rights in favour of the tenant. The proviso to Section 48-A of the Act, would clearly indicate that the Tribunal can on the application of any of the parties, correct any clerical or arithmetical errors in any order passed by the Tribunal. Therefore, the first proviso of Section 48A of the Act, would stand applicable and not Section 122A of the Act. Therefore, we find an error committed by the learned Single Judge while holding that the Tribunal has no power to review its own order and that the power exercised by the Tribunal in its impugned order is not the power conferred on it in terms of the first proviso to Section 48A of the Act. It is further not even the case of respondent No.1 that he is in cultivation of the land or that he has disputed the tenancy. The earlier order of the Tribunal would clearly indicate that he had no objection to grant the occupancy rights.
8. For all these reasons, we are of the view that the order of the learned Single Judge is erroneous. Hence, the appeal is allowed. The order of the learned Single Judge dated 15.11.2011 passed in Writ Petition No.39268 of 2011 is set aside. The impugned order before the learned Single Judge dated 12.07.2011 passed in T.R.I.No.11479 of 80-81 by the Land Tribunal, Kundapura, is affirmed.
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JUDGE JUDGE *bgn/-