Veerayya Saraganachari vs The Assistant Commissioner, Bagalkot Sub-Division and Others

S.R. Bannurmath, J.—This appeal is filed challenging the order of the learned Single Judge dated 26.2.2007 dismissing the writ petition of the appellant. The appellant had filed Form No. 7 u/s 77-A of the Karnataka Land Reforms Act (for short ''the Act) as amended by Act 1 of 1974 for grant of a land bearing Sy.No. 111/2 of Sulibhavi village, Hungund Taluk, on the ground that even though he was a tenant in occupation and possession of the land in question as on 1.3.1974, by inadvertence he has not filed application for grant of occupancy rights as required u/s 48-A of the Act and in view of the amended provision of Section 77-A of the Act, he is entitled for grant of the land.

Initially, the Tribunal granted the land to the appellant which was challenged in appeal No. 683/02 by the landlords and the Karnataka Appellate Tribunal reversed the finding of the Land Tribunal. Aggrieved by the same, the appellant approached this Court in the aforesaid writ petition. Considering the fact that, in the earlier proceedings between the appellant and the contesting respondent-landlord in O.S. No. 6/75 and as there is a finding by the Tribunal that the appellant is not a tenant in occupation of the land in question as on 1.3.1974. This finding was affirmed by the appellate authority and even by this Court and the Civil suit was disposed of. Relying upon the finding of the Land Tribunal under the referred question u/s 133 of the Act, the learned Single Judge held that as there was positive finding against the appellant that he is not a tenant in occupation of the land in question, he cannot claim benefit u/s 77-A of the Act and as such upholding the order the Appellate Tribunal dismissed the writ petition. Aggrieved by the same, the appellant has approached this Court in the present appeal.

Sri F.V. Patil, learned Counsel for the appellant taking us through the provisions of the Section 48 vis-a-vis Sections 131, 133 and Section 77-A of the Act contended that, merely because in a question referred to the Tribunal arising from a suit, a finding is given by the Tribunal that the appellant was not a tenant that does not bar him from claiming occupancy rights either u/s 48-A of the Act or praying for grant of land u/s 77-A of the Act.

By drawing our attention to Sub-clause (2) of Clause (1) of Section 77, it is submitted that only those persons who are entitled to be registered as occupants u/s 45 or 49 and who have failed to apply for grant of occupancy lights can come within the purview of the Section 77-A of the Act. It is submitted that even though there is a finding by the Tribunal holding that the appellant is not a tenant, it would not come in the way of the appellant from claiming the right u/s 77-A of the Act. On perusal of the provisions, it is to be noted that the scope of enquiry and jurisdiction of the Tribunal u/s 48-A vis-a-vis Section 77-A of the Act have been explained by two Division Bench judgments of this Court, in the case of Hosabayya Nagappa Naik and Others Vs. State of Karnataka and Others, and in the case Aboobakkar v. The Authorised Officer, Puttur, Dakshina Kannada District and Anr. W.A. No. 5390/02 disposed of on 6.12.2006). This Court has noted that unlike the claim for giant of occupancy rights u/s 48-A, which is a right vested in the tenant, the right or prayer for giant of land u/s 77 is not a right. As such it is only wherever by inadvertence a tenant who has not filed his application in Form No. 7 in time, the authority under the provisions was given discretionary power to grant such land to the person so claiming. But there are two conditions to comply with by the claim u/s 77-A of the Act. The first condition is that the land should have been vested in the State and the second is that the claimant should be entitled to be registered as an occupant of the land in question. So far as vesting is concerned, under the provisions of Section 44 of the Act, all the lands held are in possession of the tenant stood vested in the Government on coining into force of the Karnataka Land Reforms Act 1960 as amended by Act 1 of 1974 with effect from 1.3.1974.

In the present case, there is no order of vesting passed by the State. On the other hand, there is positive finding of the competent authority viz., the Tribunal even though on a reference by the Civil Court u/s 133 that the appellant is not a tenant in occupation of the land in question as on 1.3.1974. Once there is a finding that the appellant is not a tenant of the land in question by a competent authority, which has been tested by the appellant and has been held against him through out including this Court, there is no question of the land vesting in the State. In our view, the first condition precedent has not been satisfied by the appellant to claim the land u/s 77-A of the Act.

Similarly Sub-clause (2) of Clause (1) of Section 77-A states that the person entitled to be registered under law as an occupant who has failed to apply for registration of occupancy rights can claim grant of land u/s 77-A of the Act. In our view, the stress given by the legislature and the words ''entitled to be registered'' is very important. Basically, the applicant u/s 77-A has to prima facie satisfy that he was entitled to be registered as occupant of the land in question i.e., with reference to Sections 44, 45 and 48-A of the Act.

In the present case, as there is a positive finding of the Tribunal even though u/s 133 of the Act to the effect that the appellant was not a tenant of the land in question as on 1.3.1974, we find that he was not at all entitled to be registered as occupant even under the provisions of Sections 45 or 49 of the Act also. In view of the same, we find that the learned Single Judge was justified in upholding the finding of the Appellate Tribunal and rejecting the claim of the appellant for grant of the land u/s 77-A of the Act.

Hence, we find the appeal is devoid of merits and the same is rejected.