Nathappa, since deceased by L.Rs vs Venkatarayappa and Others

S. Abdul Nazeer, J.—Learned HCGP is directed to take notice on behalf of respondents-2 and 3.

The petitioners have called in question the order passed by the Karnataka Appellate Tribunal in Appeal No. 399/2003 dated 21.1.2004 whereby the Tribunal allowed the Appeal filed by them while setting aside the order passed by the respondent No. 3 dated 21.1.2003.

One Nathappa, father of the petitioners, filed an application in Form No. 7 for grant of occupancy rights in respect of Sy. No. 58 of Nalamachanahalli, Chintamani, measuring 2 acres 26 guntas of land. The Land Tribunal, Chintamani, by its order dated 3.10.1979 granted occupancy rights in respect of 1 acre of land out of 2 acres 26 guntas in the said survey number.

It is not in dispute that the said Nathappa had not challenged the said order of the Land Tribunal in not granting occupancy rights in respect of 1 acre and 26 guntas. The legal representatives of the said Nathappa made an application in Form No. 7A for grant of balance of 1 acre 26 guntas of land in the said survey number. The third respondent-Assistant Commissioner granted the lands as per Annexure ''F'' in favour of the petitioners.

The first respondent filed an Appeal before the Karnataka Appellate Tribunal, Bangalore, challenging the said order of the Assistant Commissioner. The Tribunal after considering the entire materials placed on record allowed the Appeal.

I have heard the learned Counsel for the petitioners and the learned HCGP for respondents-2 and 3.

Learned Counsel for the petitioners submitted that in view of Sub-clause (iii) of Section 77A of the Karnataka Land Reforms Act, the L.Rs of late Nathappa have continued to be in actual possession and cultivation of land on the date of commencement of the Karnataka Land Reforms Act, 1997. Therefore, they are entitled for grant of occupancy rights in respect of the lands in dispute. On the other hand, the learned HCGP submits that the said Nathappa had applied for grant of occupancy rights u/s 48A of the Act for grant of occupancy rights in respect of lands measuring two acres 26 guntas. The Land Tribunal granted occupancy rights in respect of 1 acre only. Petitioners cannot maintain an application for grant of the balance of 1 acre 26 guntas of land, having regard to Section 77A(1)(ii) of the Act.

Section 77A of the Land Reforms Act is as follows: "77A grant of land in certain cases:

(1) Notwithstanding anything contained in this Act, if the Deputy Commissioner or the (or any other officer authorized by the State Government in this behalf) is satisfied after holding such enquiry as he deems fit, that a person.-

(i): Was immediately before the first day of March, 1974, in actual possession and cultivation of any land not exceeding one unit, which has vested in the State Government u/s 44; and

(ii): Being entitled to be registered as an occupant of such land u/s 45 or 49, has failed to apply for registration of occupancy rights in respect of such land under Sub-section (i) of Section 48A within the period specified therein; and

(iii): has continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997.

He may (within one year from the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1977) grant the land to such person subject to such restrictions and conditions and in the manner, as may be prescribed.

Provided that the land so granted together with the land already held by such person shall not exceed two hectares of ''D'' class of land or its equivalent thereto).

(2) The provisions of Sub-section (2A) and (2B) of Section 77 and the provisions of Section 78 shall apply mutatis mutandis in respect of the grant of land made under Sub-section (i)."

It is clear from the language employed in Sub-section (ii) of Section 77A(1) of the Act that a person being entitled to be registered as an occupant of such land u/s 45 or 49 of the Act, has failed to apply for registration of occupancy rights in respect of such land under Sub-section (i) of Section 48A of the Act within the period prescribed, alone is entitled for grant of lands u/s 77A of the Act. It is also clear that for grant of lands u/s 77A of the Act, the applicant has to fulfill all the three conditions contained in Sub-sections (i) to (iii) of Section 77A(1) of the Act read with the proviso to the said section. The object of Section 77A of the Act is to provide an opportunity to the tenants who could not avail of the opportunity in the first instance to file an application in Form No. 7 for grant of occupancy rights. The object of Section 77A of the Act cannot be taken as to provide one more opportunity to those who had already availed the first opportunity of claiming occupancy rights in Form No. 7 and whose application was partially granted and partially not granted by the Land Tribunal. An application u/s 77A is not the same of the application u/s 45 of the Act. An application u/s 45 is for confirmation of occupancy rights and an application u/s 77A of the Act is for the purpose of grant of lands. Admittedly, father of the petitioners had applied for grant of occupancy rights in respect of the lands in question u/s 48A of the Act earlier. The petitioners cannot maintain an application for grant of the same lands u/s 77A of the Act.

The Tribunal on a consideration of the entire materials placed on record has come to the conclusion that the petitioners are not entitled for grant of the said lands. I do not find any error in the order impugned requiring interference.

In the result, the Writ Petition is dismissed.

Learned HCGP is permitted to file her memo of appearance within eight weeks from today.