Hameed vs State Of Karnataka

Petitioner herein is applicant in Form No.7A before the competent authority under the amended provisions of the Karnataka Land Reforms Act,

namely 2nd respondent - Assistant Commissioner. In the said application, the petitioner has sought for occupancy right in respect of 57 cents of land in

Sy.No.51/1 of Kolnadu village, Bantwal Taluk, Dakshina Kannada District.

It is the case of the petitioner that, his grand father â€" Hasakunhi Beary was tenant under one Shankar Alva s/o Maindappa Alva Tiruvache for

more than 30 years prior to the date of filing of Form No.7A. According to him, though his grand father had tenancy right in respect of aforesaid land,

he did not choose to file Form No.7. As such, when an opportunity was given by the Legislators to those of the persons, who did not avail the

opportunity to seek tenancy right in respect of land in their occupation and cultivation, he choose to claim the same by filing Form No.7A. In that

behalf, in the proceedings which was conducted before the 2nd respondent â€" Assistant Commissioner, after recording evidence of the parties the

competent authority by order dated 20.5.2003 considered his claim for grant of occupancy right to 57 cents of land in Sy.No.51/1 of Kolnadu village.

The landlord of land in question, respondent before the competent authority being aggrieved by the order of competent authority in conferring

occupancy right in respect of land in question in favour of petitioner herein, preferred an appeal before the Karnataka Appellate Tribunal in Appeal

No.922/2003, wherein the appeal filed by landlord was allowed, consequently, the order of grant of occupancy right in favour of petitioner in

proceedings No.TSC.36/1999-00 vide order dated 20.5.2003 was set aside by judgment dated 13.1.2012. Being aggrieved by the said divergent finding

rendered by the Karnataka Appellant Tribunal, the applicant in Form No.7A before the competent authority has come up in this writ petition

contending that the judgment passed by the Karnataka Appellate Tribunal in setting aside the grant of occupancy right in his favour, is erroneous for

more than one reason.

According to the petitioner, the fact that petitioner’s grand father Hasakunhi Beary was tenant of aforesaid land is confirmed by letter dated

14.11.2000 and 18.10.2002, issued by the Gram Panchayath, wherein it is clearly shown that there is a house in existence on land in question which

was initially in possession and occupation of his grand father from 1972-73 to 2002-03 vide Annexures - D and D1 and that, the endorsement for

having received property tax which is dated 18.10.2002 issued in Form No.1A (Rule 8 of Gram Panchayath Act and Rules) would indicate that his

grand father has also paid tax as on 31.3.2003. All these documents though were available on record, the same is not looked into by the Karnataka

Appellate Tribunal while reversing the order of grant of competent authority. The petitioner would also state that the Tribunal has totally ignored the

statement recorded on behalf of the land owner’s sister, where in her statement before the competent authority she has clearly stated that the

petitioner was in possession of the property in question as tenant.

Per contra, learned counsel for 3rd respondent would state that the documents which are produced by the petitioner along with his application in

Form No.7A itself would clearly disentitle him for the relief sought under Section 77A of the amended provisions of the Karnataka Land Reforms

Act. According to him, in first place land bearing Sy.No.51/1 of Kolnadu village is not an agricultural land, consequently, the applicant before the

competent authority, who is petitioner herein is not an agriculturist by profession, which is disclosed by himself in his application in From No.7A where

he would state that his profession is business in clearly meaning that he is not an agriculturist. In his application, though the applicant contends that he

has been in possession and cultivation of the land in question as tenant, the same is not the land which can be cultivated as could be seen from the

documents produced by him.

Firstly, the documents which are at Annexures - D, D1 and E issued by Kolnad Gram Panchayath would disclose that land bearing Sy.No.51/1 of

Kolnadu village is residential property and not an agricultural property.

Further, in a suit in OS.No.310/2002 vide Annexure-G, which was filed by the brother of 3rd respondent for partition the land in question, which is

shown at Sl.No.3 of item No.2 to the schedule to suit would clearly disclose that the land in question is dry land. In addition to that, there is one more

document which is produced by the petitioner at Annexure-H, a notice sent from the petitioner to (1) Branch Manager, Syndicate Bank, (2) Vyvasaya

seva Sahakari Sangha/Bank Ltd., and (e) Secretary of PCAR Bank (Land Development Bank) of Bantwal Taluk would indicate that the aforesaid

land was in his possession under an agreement of sale dated 18.3.1984. In the said notice, the schedule which is given would indicate that the land in

question is dry land or in other words Punja land, which cannot be considered for grant under the provisions of either under Section 48A or the

amended provisions of Section 77A of the Karnataka Land Reforms Act.

The learned counsel for 3rd respondent would further contend that, though the petitioner contends that he is in possession of entire extent of 57

cents in Sy.No.51/1 of Kolnadu village, the defence which is raised by respondent No.3 is that the petitioner is in possession of the building, which is

constructed in Sy.No.51/1 and not the entire extent of 57 cents. According to 3rd respondent, the remaining land is still in his possession and

enjoyment, which was never given to the petitioner.

However, in this proceedings the learned counsel for 4th respondent tried to assert that petitioner has right to seek occupancy right in respect of

land bearing Sy.No.51/1 of Kolnadu village. Incidentally, 4th respondent is the person, who has given a statement before the competent authority in

supporting the claim of petitioner.

When the material on record is seen, particularly from the point of plaint in the original suit which is filed by the petitioner himself vide Annexure-G,

it would clearly indicate that respondents 3 and 4 though brother and sister, they are at logger heads. In other words, they are not in good books and

there is an internal fight between them with reference to properties of the family. It is in this background, it is stated that 4th respondent has supported

the claim of petitioner both before the competent authority and also before this Court as submitted by the learned counsel for 3rd respondent in this

proceedings. On appreciation of the material available on record, this Court has absolutely no doubt about said submission of 3rd respondent.

However, the internal dispute between respondents 3 and 4 cannot be permitted to be taken advantage by the petitioner and consequently, his prayer

for grant of occupancy right in respect of a non agriculture land, more particularly, a Punja land on which a residential house is in existence, cannot be

considered for grant under Section 77A of the Karnataka Land Reforms Act, 1961.

Accordingly, by confirming the order passed by the Karnataka Appellate Tribunal in Appeal No.922/2003, dated 13.1.2012, the rejection of

tenancy claimed by the petitioner, is confirmed, which does not call for interference of this Court and this writ petition is dismissed.