Sri Somachari v. State of Karnataka – by its Secretary

Sri Somachari S/o Kullachari 64 yrs, Koorgahalli Village Yelavala Hobli, Mysore Taluk Mysore Ningegowda @ Motappa – since dead by LRs Smt Deveeramma, 60 yrs Smt K Chikkamma, 35 yrs Smt Shantha, 33 yrs Sri Shivaram, 31 yrs Smt Savitri, 29 yrs Sri Shivanna, 26 yrs A) is the wife and B-F are the children of late Ninegowda @ Motappa and all are R/o Koorgahalli Village, Yelavala Hobli Mysore Taluk & District Sri Devegowda S/o Beetegowda 63 yrs, R/a Koorgahalli Village Yelavala Hobli, Mysore Tq & District 4 Sri Channegowda S/o Pichegowda 64 yrs, R/a Koorgahalli Village Yelavala Hobli, Mysore Tq & District Petitioners (By Sri B M Krishna Bhat, Adv.) 2 And 1 2 3 4 State of Karnataka – by its Secretary Revenue Department, M S Bldg. Dr Ambedkar Road, Bangalore Assistant Commissioner Mysore Sub-Dvn., Mysore Sri Mahadeva S/o Mmallappa 60yrs, R/o # 2886, 3rd Cross Halladakeri, Laskar Mohalla Mysore Sri Devarajegowda, 60 yrs S/o late Nagegowda R/a Koorgahalli Village Yelavala Hobli, Mysore (By Sri Shashidhar S Karmadi, GP) Respondents The Writ Petitions are filed under Art.226/227 of the Constitution praying to quash the order dated 26.7.2001 – annexure A by the Assistant Commissioner, Mysore Sub-Dvn., Mysore, etc. The Writ Petitions having been reserved for Orders on 21 st June, 2012, the Court made the following: ORDER 3 Petitioners have sought for quashing the order of the Karnataka Appellate Tribunal in No.908-911/2003 on 4.4.2006 – annexure B and also the order of the Assistant Commissioner, Mysore Sub-Dvn., at annexure A dated 26.7.2001. Petitioners are said to be persons included in the list of persons to be granted the right of occupancy over the lands claimed by them under the provisions of S.77A of the Karnataka Land Reforms Act. According to the petitioners, they have satisfied the requirement of law for grant of land stating that they are lawful tenants under the landlord who is the 3 respondent. It is their case, the order of the Assistant Commissioner and the Appellate Tribunal is passed without holding an inquiry. Even the petitioners have approached this Court in WP 46989/2002 and WP 30082- 84/2003 challenging the order of the Assistant Commissioner dated

26.7.2001. However, this Court had directed the petitioners to approach the Karnataka Appellate Tribunal and the Appellate Tribunal also dismissed the claim of the petitioners by the impugned order. Hence, these petitions. 4 Heard the counsel representing the parties. According to the petitioners’ counsel, the authorities have erred in rejecting the claim of the petitioners on the ground that their names were not recorded in the relevant RTC for the year 1973-74 and rather, the representation at annexure D dated 21.8.1998 submitted to the government itself indicate that petitioners are in possession in Sy.No.151. Despite that, on various grounds the Assistant Commissioner as well as the Appellate Authority erroneously rejected the claim of the petitioners. Learned counsel has relied upon the judgment on Order of Reference in WP 28203/2004 on 22.1.2011 to contend that the order of vesting need not be in a particular form and no order of vesting need be passed. The application filed by the petitioners, having regard to the fact that they are in possession as per the mahazar, itself goes to show that these lands were not considered for grant earlier by the Land Tribunal and on the ground that 5 already land has been granted in favour of third person, the Appellate Tribunal has rejected the claim of the petitioners which is erroneous. It is also submitted, petitioners were in possession and occupation of the land as tenant and continue to be in possession and had applied for grant but that has not been considered. Further, learned counsel has also relied upon the decision in the case of MOR Modern Co-operative Transport Society Ltd Vs Financial Commissioner & Secretary to Govt. of Haryana & Anr – (2002) 6 SCC 269 to contend that Statute must be read as a whole and the expression the Statute must be understood in a sense consistent and conducive to the legislative intend and if two interpretations are are possible, mischief rule should be applied. Counsel has relied upon the case of Bhatia International Vs Bulk Trading S A & Anr – (2002) 4 SCC 105 in the matter of interpretation of statutes. Accordingly, learned counsel has relied upon the Reference Order and other judgments of this Court. The judgment in the case of Padmasundara Rao (dead) & Ors Vs State of Tamil Nadu & Ors – 2002 AIR SCW 1156 has been relied upon by the learned counsel to contend the reliance on precedents cannot be placed without discussing fact situation of the decision relied upon. 6 Per contra, Government Pleader submitted, as per the finding of the Appellate Tribunal and the Assistant Commissioner, already application was filed by the petitioners in respect of this property. In a common order passed by the Land Tribunal earlier, the property which is claimed by these petitioners were granted to one Siddegowda and their claim under Form 7 has been rejected and once Form 7 filed by the petitioners claiming right has been rejected and granted in favour of some other person, claiming the same land by filing Form 7A is not maintainable and the property is not available. Even the report at annexure D, regarding possession and the very Act under S.77A bars maintaining second Form 7 application by filing Form 7A. In support of his contention, learned counsel has relied upon the judgment of this Court in the case of Smt Nagamma & Anr Vs State of Karnataka & Ors - 2001(5) KLJ 548 and also the case of Somayya & Ors Vs State of Karnataka & Ors - 2006(4) KLJ 353 to contend, the benefit of grant is available to only such of tenants who had failed to file Form7 for occupancy rights within the period specified but had continued in possession and actually cultivating the land. Accordingly, he has sought for dismissal of the writ petition. 7 As per the submission of the petitioners’ counsel, question of vesting of the land as per S.44 of the Land Reforms Act is not in question since already the subject matter of property claimed by the petitioners is already shown as tenanted land. In other words, petitioners’ claim has been rejected by the Tribunal and the land has been granted in favour of one Siddegowda. Once Form 7 is filed claiming occupancy rights, second application is not maintainable as is held by this Court in Nagamma’s case cited supra. In Nagamma’s case, it is held that law contemplates making of only one application giving the particulars of all lands held by the applicant in his capacity and an order disposing of such application bars further application being made. Further, in Somayya’s case cited supra, it is also held that the benefit granted is only available to tenants who have failed to apply for occupancy rights. But, in this case, petitioners are shown to have already filed an application and the very application in Form 7A is as good as claiming occupancy rights by filing second application. 8 What is also noticed is, already the property in question claimed by the petitioners have been granted in favour of third persons and petitioners also wanted to claim the very same property by maintaining a separate application in Form 7A, after the amendment. Annexure D is the application given to the Tahsildar by the villagers of Korgalli Villge and it is not an authentic report. Rather it is only a prayer of the villagers to grant those properties to petitioners and others concerned which cannot be held to be authentic document to consider the case of the petitioners. Learned counsel has also insisted upon to hold an inquiry as per Rule 26(c) of the Land Reforms Rules. However, the Assistant Commissioner as also the Appellate Tribunal have considered all these aspects and passed a detail order. There is no scope for interference in the orders passed by the competent authorities. Petitions are dismissed. Sd/- Judge