IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.No.41889/2017 (LR-RES) BETWEEN UMMAR S/O LATE MOIDU KUNHI, AGED ABOUT 56 YEARS, R/O AMBATEGADDE HOUSE, PERUVAJE VILLAGE, SULLIA TALUK, D.K.DISTRICT. ... PETITIONER (By Sri SACHIN B.S., ADV.) AND 1. JAGANNATH SHETTY S/O LATE SUBBAYYA SHETTY, AGED ABOUT 76 YEARS, LR OF LATE SMT.YAMUNAMMA R/O PERUVAJE GUTHU HOUSE, PERUVAJE VILLAGE, SULLIA TALUK, D.K.DISTRICT.
2. GOPINATHA SHETTY S/O.LATE SUBBAYYA SHETTY, AGED:MAJOR, R/O PERUVAJE GUTHU HOUSE, PERUVAJE VILLAGE, SULLIA TALUK, D.K.DISTRICT-574201.
3. THE COMPETENT AUTHORITY KARNATAKA LAND REFORMS ACT, THE ASSISTANT COMMISSIONER, PUTTUR SUB DIVISION, PUTTUR, D.K.-574201. ... RESPONDENTS (By Smt. B.P.RADHA, AGA FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DT.30.11.2016 PASSED IN APPEAL NO.305 OF 2008 VIDE ANNEX-A BY THE KARNTAKA APPELLATE TRIBUNAL AND CONFIRM THE ORDER DTD.16.10.2004 PASSED BY R-3 VIDE ANNEX-B, AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Learned Additional Government Advocate takes notice for respondent No.3.
2. This writ petition is filed challenging the order dated 30.11.2016 passed by the Karnataka Appellate Tribunal (for short, ‘the Tribunal’), thereby allowing Appeal No.305/2008 filed by respondent No.1 herein under Section 118(2) of the Karnataka Land Reforms Act, 1961 (for short, ‘the Act’).
3. Respondent No.1 – Jagannath Shetty had filed the said appeal before the Tribunal challenging the order passed by the Assistant Commissioner, Puttur Sub-Division, Puttur, on 16.10.2004 allowing the application in Form No.7A filed by the petitioner herein under Section 77A of the Act seeking grant of land. The Assistant Commissioner granted the land measuring 41 cents comprised in Sy.No.104/3 situated at Peruvaje Village in Sulia Taluk, Dakshina Kannada District.
4. It is the case of petitioner that there was delay of 3 years 119 days in filing the appeal before the Tribunal. The Tribunal condoned the delay and allowed the appeal filed by respondent No.1 on the ground that father of petitioner herein (applicant before the Assistant Commissioner) had already filed Form 7 in respect of several lands including Sy.No.104/3 claiming grant of occupancy rights as tenant and the Land Tribunal, on an earlier occasion, had dismissed the application with regard to Sy.No.104/3 while granting occupancy rights in respect of certain other lands, therefore, in the light of the provisions contained under Section 77A of the Act, the Tribunal has come to the conclusion that when a tenant had already availed the opportunity of filing application in Form 7 claiming occupancy rights, he is not entitled to file a fresh application under Section 77A of the Act.
5. Sri B.S.Sachin, learned counsel appearing for the petitioner contends that the Tribunal was in error in condoning the inordinate delay of 3 years 119 days in filing the appeal.
6. I have perused the entire materials on record. The Tribunal has condoned the delay exercising its discretion by accepting the explanation offered by respondent No.1 herein. The Tribunal has also come to the conclusion that the Assistant Commissioner had not promptly issued the certified copy and the certified copy issued did not bear the date on which the application was made, which gave room for some suspicion and lent support to the bonafides pleaded by respondent No.1/appellant before the Tribunal. Therefore, Tribunal was right and justified in taking a lenient view in the matter while condoning the delay.
7. Insofar as merits of the case is concerned, as rightly held by the Tribunal, father of the petitioner had already filed application in Form No.7 claiming occupancy rights in respect of some of the lands, but has rejected the request in respect of land bearing Sy.No.104/3. That being the position, present petitioner being the legal representative of his father could not have maintained a fresh application under Section 77A of the Act.
8. As is clear from Section 77A(1)(ii) of the Act, only a person who being entitled to be registered as an occupant of land under Section 45 or 49 of the Karnataka Land Reforms Act had failed to apply for registration of occupancy rights in respect of such land under Sub-section (1) of Section 48A within the period specified therein would be entitled to make an application under Section 77A of the Act, provided he satisfies the other conditions regarding vesting of the land under Section 44 and his actual possession and cultivation of the same as on the date of the commencement of Karnataka Land Reforms (Amendment) Act, 1997. In the instant case, as held by the Tribunal, father of the petitioner had filed Form No.7 seeking occupancy rights in respect of Sy.No.104/3. The said application was dismissed. Therefore, upon his death, his son, the present petitioner cannot maintain any application in Form No.7A under Section 77A. Hence, I do not find any illegality in the order passed by the Tribunal. Writ Petition being devoid of merit is dismissed.
Learned Additional Government Advocate is permitted to file memo of appearance for respondent No.3 within three weeks from today.
Sd/- JUDGE PKS