Mary Monthero and Others vs The State of Karnataka and Others

K.L. Manjunath, J.—Challenging the legality and correctness of the order passed by the learned Single Judge in W.P. Nos. 6806-6815/2013 dated 10.06.2013, the present appeals are filed.

Heard Sri Ashok Haranahalli, learned Senior Counsel appearing for the appellants and Sri Rajendra Prasad Shetty, learned Counsel appearing for the respondent No. 3 and learned Government Advocate for respondent Nos. 1 and 2.

The facts leading to the filing of these appeals are as hereunder:

"The dispute is in regard to non-granting of occupancy rights by the Land Tribunal, Mangalore, in Sy. No. 98 situated in Kudupu Village in Mangalore Taluk. Several persons filed Form No. 7 claiming occupancy rights in respect of Sy. No. 98 of Kudupu Village and also claiming occupancy rights in respect of other lands under respondent No. 3. On an earlier occasion, Sy. No. 98 of Kudupu Village was also granted to the applicants who had filed form No. 7. Aggrieved by the granting of occupancy rights by the Land Tribunal, Mangalore, a writ petition came to be filed by the third respondent in W.P. No. 14605/1994.

This Court by its order dated 16.09.2006 quashed the order of the Land Tribunal and remanded the matter for fresh consideration so far as it relates to Sy. No. 98 of Kudupu Village only.

After remand, the Land Tribunal, recording the evidence and conducting spot inspection came to the conclusion that the land in question is a punja land and it was never brought into cultivation and that the punja land cannot be the subject matter of Form No. 7. Accordingly, the application filed in Form No. 7 came to be rejected.

Aggrieved by the same, the writ petitions were filed before the learned Single Judge. The learned Single Judge having heard the learned Counsel for the parties relying upon the judgment of this Court in Subhakar and Others Vs. The Land Tribunal and Others, came to the conclusion that since it is a punja land in South Canara District, occupancy rights cannot be granted unless such land is brought into cultivation. Since the learned Single Judge was also of the opinion that the land in Sy. No. 98 of Kudupu Village, had not been brought into cultivation by the applicants, writ petitions came to be rejected. Challenging the concurrent findings of the Land Tribunal and the learned Single Judge, the present appeals are filed."

Sri Ashok Haranahalli, learned Senior Counsel appearing for the appellants contends that the Tribunal has committed an error in rejecting the application of the appellants solely relying upon the spot inspection conducted by the Tribunal. According to him, the spot inspection was held in the year 2012 and based on the report of spot inspection, the application filed by the appellants could not have been rejected in view of the entries in the RTC extract which have a presumptive value under the provisions of the Karnataka Land Reforms Act. Therefore, he contends that the orders of the learned Single Judge and the Land Tribunal requires to be set aside.

Per contra, Sri Rajendra Prasad Shetty, learned Counsel for the third respondent submits that at no point of time, the land in question was cultivated by any of the appellants herein and there is a rebuttable presumption in regard to the entries in RTC and the entries in the RTC were incorrect and therefore, with the consent of the appellants the spot was inspected by the Tribunal, since the appellants had no objection to conduct the spot inspection in order to ascertain whether these lands in question were being cultivated at any point of time. The spot was inspected in the presence of the parties and the Advocates. During the spot inspection, it was noticed by the Chairman that the land is a hilly area and was never brought into cultivation and there were only shrubs. Therefore, the finding of the Tribunal cannot be found fault with at this length of time by the appellants. In the circumstances, he requests the Court to dismiss the appeals.

Learned Government Advocate also supporting the order of the Tribunal requests the Court to dismiss the appeals.

Having heard the learned Counsel for the parties, the only point to be considered by us in these appeals is:

"Whether any error is committed by the learned Single Judge in confirming the order passed by the Land Tribunal and whether the Land Tribunal was justified in rejecting the application filed by the appellants in Form No. 7?"

The nature of the land is not in dispute. Admittedly, Sy. No. 98 of Kudupu Village, is a punja land. In view of the law laid down by this Court and also by the Hon''ble Apex Court in Subhakar and Others Vs. Harideesh Kumar and Others, occupancy rights in respect of punja land cannot be granted to the applicants unless it is established before the Tribunal that punja land was being used for agricultural purpose and the tenants were cultivating the same.

One of the appellants Bernard Montheiro, in his evidence dated 30.07.2011 has categorically deposed that he has no objection to conduct the spot inspection by the Tribunal in order to ascertain the topography of the land in the nature of cultivation and based on the same, the Land Tribunal has also conducted spot inspection. When the spot was inspected, the appellants and their Counsel were also present. The Tribunal has noticed that it is a hilly area and it was never brought into cultivation and no horticultural plants were there. The findings of the spot inspection are not questioned by the appellants.

The only point urged by Sri Ashok Haranahalli, learned Senior Counsel in regard to the findings of the spot inspection is that the spot was inspected in 2012 when the application was filed in 1978-79. The Tribunal was required to look into whether the land had been brought into cultivation on 01.03.1974 i.e., on the date when the Karnataka Land Reforms Act, came into force and he has also relied upon the entries in the RTC extracts.

We have perused the RTCs produced by the parties. It shows the existence of cashew plantation, coconut trees and mango trees. It is not the case of the appellants herein that subsequent to the land vested in the Government under the Karnataka Land Reforms Act, the cashew plantation including mango and coconut trees were cut and removed and therefore, the land has become fertile.

In the evidence it is not stated by the parties that after the application was filed in Form No. 7 they have removed the horticultural plants. Therefore, it is difficult to accept that as per the RTC Entries the appellants herein had brought the land into cultivation and there was cashew plantation and also fruit bearing trees. If the Tribunal appreciating the evidence let in by the parties came to the conclusion that it is a punja land and was never brought into cultivation and based on the same, if the application is rejected by the Land Tribunal, this Court cannot find fault with the same. We are of the view that no error is committed by the learned Single Judge in rejecting the writ petitions.

In the result, the appeals are dismissed.