SMT BASAVVA W/O RUDRAYYA NEELANNAVAR vs. SMT TANGEVVA W/O KALLAPPA KENCHANNAVAR

: 1 : IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 14TH DAY OF AUGUST, 2013 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.31641/2008 (LR) BETWEEN: 1. SMT BASAVVA W/O RUDRAPPA NEELANNAVAR @ BYAHATTI, AGE: 55 YEARS, R/O UNAKAL, TQ. & DIST: HUBLI. 2. IRAVVA D/O RUDRAPPA NEELANNAVAR, AGE: 33 YEARS, R/O AMMINABHAVI, TQ. & DIST: DHARWAD. ... PETITIONERS (BY SRI.A.P.MURARI FOR SRI. ANANDKUMAR A MAGADUM, ADV.) AND: 1. SMT TANGEVVA W/O KALLAPPA KENCHANNAVAR DECEASED BY LRS R.2 & R.5 (AMENDED AS PER COURT ORDER DATED: 12.11.2010) 2. NEELAVVA W/O GADIGEPPA MENSIKAYI AGE MAJOR, R/O UNAKAL, TQ. HUBLI, DIST: DHARWAD. R

: 2 : 3. YELLAPPA S/O KALLAPPA KENCHANNAVAR, AGE: MAJOR, R/O UNAKAL, TQ. HUBLI, DIST: DHARWAD. 3.A GURUAPPA S/O. YALLAPPA KENCHANNAVAR, AGE: MAJOR, R/O. UNKAL, TQ: HUBLI, DIST: DHARWAD. 3.B GANGADHAR S/O. YALLAPPA KENCHANNAVAR, AGE: MAJOR, R/O. UNKAL, TQ: HUBLI, DIST: DHARWAD. 4. NINGAVVA W/O SANGAPPA PATTANAGI AGE: MAJOR R/O GULBARGA 5. SIDDAVVA W/O SHIVANAGOUDA RAYANAL AGE: MAJOR R/O RAYANAL TQ HUBLI, DIST: DHARWAD. 6. NINGAVVA SIDDAPPA KENCHANNAVAR AGE MAJOR R/O UNAKAL TQ HUBLI, DIST: DHARWAD. 7. GURAPPA SIDDAPPA KENCHANNAVAR AGE MAJOR R/O UNAKAL TQ HUBLI, DIST: DHARWAD. 8. CHENNAPPA

: 3 : S/O SIDDAPPA KENCHANNAVAR AGE MAJOR R/O UNAKAL TQ HUBLI, DIST: DHARWAD. 9. RATHNAVVA D/O SIDDAPPA KENCHANNAVAR AGE MAJOR R/O UNAKAL TQ HUBLI, DIST: DHARWAD. 10. SHIVANAND SIDDAPPA KENCHANNAVAR AGE MAJOR R/O DURGADA LANE TQ HUBLI 11. ASSISTANT COMMISSIONER AND COMPETENT AUTHORITY SUB DIVISION HUBLI, DIST: DHARWAD. 12. THE STATE OF KARNATAKA BY ITS SECRETARY DEPT OF REVENUE M S BUILDING BANGALORE. ... RESPONDENTS (BY SMT.VIDYAVATHI K, AGA FOR R11 AND 12, SRI.AJAY U.PATIL, ADV FOR R1 TO 3 TO 10) - - - - - - - - - - THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 30.11.2005 PASSED BY THE KARNATAKA APPELLATE TRIBUNAL, BANGALORE, IN APPEAL NO.1610/2003 AT ANNEXURE-A AND ETC., THIS WRIT PETITION COMING ON FOR ORDERS AND THE SAME HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

: 4 : ORDER This petition is by the landlord seeking for quashing of the order passed by the Appellate Tribunal in Appeal No.1610/2003 dated 30.11.2005 Annexure-A whereunder Form No.7A filed by the tenant is allowed by setting aside the order passed by the Assistant Commissioner, Hubli in KLR7A/UNKAL/SR/22-1998-99 dated 26.09.2003, Annexure-E whereunder said application under Form 7A seeking for grant of land had been dismissed. 2. I have heard the arguments of Sri.A.P.Murari, learned Advocate appearing on behalf of Sri. Anandkumar Magadum for petitioner. Sri.Ajay U.Patil, learned Advocate appearing on behalf of Respondent Nos. 1, 2, 3A, 3B and 4 to 10 and Smt.Vidyavathi, learned AGA appearing for R-11 and R-12. I have perused the original records made available by learned Additional Government Advocate. 3. One Sri.Kalappa had filed Form No.7A on 26.07.1999 seeking grant of land measuring 34 guntas in

: 5 : Sy.No.589 (Sy.No.66/2), situated at Unnkal village, Hubli Taluk (hereinafter referred to as ‘land in question’) contending interalia that deceased Kalappa was a tenant of said land and he was cultivating the same during his life time and on his demise, his L.Rs (respondents-1 to 10 herein) are cultivating the same till date. It was also contended that Kalappa had not filed Form No.7 seeking grant of occupancy rights under Section 45 of the Karnataka Land Reforms Act, 1974 and as such, after amendment to the said Act and introduction of Section 77A, Form No.7A was filed by deceased Kalappa before competent authority and Assistant Commissioner, Sub Division, Hubli – 11th respondent herein. Said authority after issuing notice to the parties and after conducting spot inspection found that the land in question has not been cultivated and entries in the revenue records indicated that land in question is ‘pada’ (fallow land). It also found that RTC extracts for the years 1994-95 to 2001-02 indicated that in the cultivator’s column, entry

: 6 : has been made to the effect ‘pada’. Hence, application came to be rejected by order dated 26.09.2003 – Annexure-E. Being aggrieved by this order, respondents-1 to 10 herein filed an appeal before Karnataka Appellate Tribunal to Bangalore in appeal No.1610/2003. Appellate Tribunal after issuing notice to writ petitioners herein and after securing original records held that RTCs of land in question for the years 1973-74 to 2001-02 reflected the name of Kalappa in column No.12(2) and nature of cultivation is shown and categorized as ‘III’ to mean that cultivation is by a tenant. Hence, it came to a conclusion that appellants therein had satisfied that deceased Kalappa was cultivating the land in question as a tenant immediately prior to 01.03.1974 when Act No.1/1974 came into force. It further held that he had continued to be in possession and cultivation of the same when Section 77A of the Act was introduced vide Act No.23/1978 (wrongly mentioned as such though amendment Act came into force by Act No.23/1998). Hence, Tribunal came to a

: 7 : conclusion that applicant would be entitled to grant under Section 77A of Karnataka Land Reforms Act and as such, allowed the appeal, set aside order passed by 11th respondent and also allowed form No.7A filed by late Kalappa and granted said lands to his legal heirs namely, respondents-1 to 10 herein under Section 77A of the Karnataka Land Reforms Act, vide order dated 30.11.2005 – Annexure-A. It is this order which is sought for quashing by writ petitioners in the present writ petition. 4. The contention of the learned counsel appearing for the petitioners is that Assistant Commissioner by order dated 26.09.2003 on appreciation of the records and also after conducting a spot inspection had arrived at a conclusion that land in question is a fallow land and there was no cultivation carried out in said land. He contends that Appellate Tribunal erroneously proceeded to examine the issue and arrived at a conclusion that amongst the three ingredients required

: 8 : to be satisfied by an applicant for grant of land in a proceedings when an application is filed in Form No.7A namely i) whether tenant was in actual possession and cultivation of the land immediately before the 1st day of March, 1974? ii) whether the land vested in the State under Section 44 of the Act? and, iii) whether applicant had continued to be in actual possession and cultivation as on the date of commencement Act of Karnataka Land Reforms (Amendment) Act, 1997 that applicant satisfies all these criteria by erroneously interpreting and construing that said amendment Act had come into force in the year 1978 by Act 23/78 and as such it has proceeded to arrive at a conclusion that as on 1978, applicant was both in possession and cultivation of land in question which requires to be set aside since the Amendment Act 23/1998 came into force in the year 1998 by Act 23/1998 and not by Act 23/1978 as erroneously understood by the Appellate Tribunal and it is in this background Appellate Tribunal was required to examine

: 9 : as to whether applicant was in possession and cultivation of land in question as on the date the Amendment Act came into force i.e., 01.11.1998 and not as on 1978 as understood by the Tribunal. He would also draw attention of the Court to the entry found in the RTC extract Annexure-D for the years 1993-94 to 2000-01 whereunder the land in question has been described as ‘pada’ to mean fallow land. He would submit that under section 2 (10) of the Karnataka Land Reforms Act, 1961 the word `cultivation’ has been defined to mean tilling the land for raising or improving agricultural produce and to carry on agricultural operation and in the instant case the RTC entries as per Annexure-D would indicate that said land had been left fallow from the years 1993-94 onwards and as on the date of Amendment Act coming into force i.e., 01.11.1998 the land in question was not being cultivated by the applicant and as such the one of the criteria prescribed under section 77A namely “applicant had continued in actual possession and cultivation of such

: 10 : land” is not fulfilled and as such applicant was not entitled to grant of said land. He would also draw attention of the Court to the finding recorded by Assistant Commissioner that nature of the land being fallow and contends that said finding was arrived at after conducting a spot inspection. 5. He would further contend that an application in Form No.7A was required to be filed within the time stipulated or prescribed under the Karnataka Land Reforms (Amendment) Rules, 1998 namely Rule 26C i.e., within six months from the date of amendment came into force and application in question was filed on 26.07.1999 and in the instant case it was filed beyond the prescribed period of 6 months and as such the very jurisdiction of the Assistant Commissioner to entertain said application was not available and hence, order of the Appellate Tribunal granting said land in favour of the applicant be set aside by rejecting the application filed in Form No.7A.

: 11 : In support of his submissions he has relied upon the judgment rendered by the Full Bench of this Court in the matter of LOKAIAH POOJARI VS STATE OF KARNATAKA REPORTED IN 2012 (4) KCCR 3411. On these grounds, he contends that order of the Tribunal requires to be set aside and also prays for allowing the Writ petition by quashing the order dated 30.11.2005 (Annexure-A ) passed by Karnataka Appellate Tribunal. 6. Per contra, Sri.Ajay U.Patil, learned counsel appearing for respondent Nos.1, 2, 3A and 3B, 4 to 10 would draw the attention of the court to paragraph 12 of the Tribunal’s order to contend that Tribunal on factual examination has found that from the year 1973-1974 to 2001-2002, name of the applicant has continued in column No.12 (2) of RTC and cultivation is shown as that of the applicant by referring to category (iii) to mean that cultivation is being made by a tenant and in view of said factual finding arrived at by the Appellate Tribunal, this

: 12 : Court should not interfere with the said factual finding in exercise of writ jurisdiction and upset the factual finding. He would further elaborate his submission by contending that land in question was tenanted land as on 01.03.1974 undisputedly and as such it stood vested in the State by operation of law namely section 44 and such vesting having not been questioned by the writ petitioner in the year 1974 or 1978 as the case may be and as such present writ petition is not maintainable since they have no locus-standi to question the same at this length of time. He would submit that from 1956-57 to 1993-94 name of the applicant has been reflected in the cultivators column and even thereafter also as per the RTC extract produced at Annexure-D which is upto 2001-02 and for the year 1993-94 onwards in column 12(9) it has been entered as `pada’ meaning `fallow land’ and same being a rebuttable presumption no evidence was tendered by the petitioners demonstrate that it is a `pada’ land and when the spot inspection had been conducted without notice to

: 13 : the tenant finding recorded as such by 11th respondent would not be binding on the applicant and as such he contends Appellate Tribunal has rightly discarded said report and this fact has been rightly taken note of by the Appellate Tribunal and it does not call for interference. He would submit a stray entry in RTC extract would not take away the right of a applicant. He would further submit that land in question is an agricultural land and on account of same having not been converted to non agricultural purposes its identity as an agricultural land would continue particularly when column 12(2) of RTC extract reflects the name of the tenant in the cultivators column and same having not been rebutted by the landlord the entries found in revenue records enures to the benefit of applicant and a presumption has to be raised in favour of the applicant. He would draw the attention of the court to the definition of the word `land’ as defined under section 2 (18) of the Karnataka Land Reforms Act, 1961 to contend that when the land is

: 14 : capable of being used for agricultural purposes it would include different types of land namely, horticultural land, forest land, garden land, pasture land, plantation and tope but does not include house site or land used for non agricultural purposes and he contends that land in question not being used as a house site or for any non agricultural purposes it would not take away the characteristic of the land. In support of his submission he relies upon the judgment of this Court reported in R.ANANDA VS NANJUNDASWAMY AND OTHERS REPORTED IN 2006(6) AIR KAR R 476.

: 15 : challenged. He would submit that landlord is in possession and cultivating the land personally. 8. Having heard the learned advocates appearing for the parties, on perusal of the case papers, records made available by the Government Advocate and authorities relied upon by the respective learned advocates, I am of the considered view that following points would arise for my consideration: 1. Whether the application filed in Form 7A by the applicant for grant of land was barred by limitation? 2. Whether the order of the Tribunal allowing the application filed in Form No.7A by the applicant is liable to be affirmed, set aside or modified? 3. What order? 9. In order to adjudicate the points formulated hereinabove, it would be necessary to take into consideration the relevant provisions of Karnataka Land

: 16 : Reforms Act which will have bearing to the facts of the present case. Hence, following provisions of the Karnataka Land Reforms Act are extracted herein below: “ 2(10) – “To Cultivate” with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultural produce whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operation thereon; and the expression “uncultivated” shall be construed correspondingly; 2(11) – “To cultivate personally” means to cultivate land on one’s own account – (i) by one’s own labour; or (ii) by the labour of any member of one’s family or; (iii) by hired labour or by servants on wages payable in cash or kind, but not in crop share, under the personal supervision of oneself or by member of one’s family;

: 17 : 2(18) – “Land” means agricultural land, that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope but does not include house-site or land used exclusively for non agricultural purposes; “77A – Grant of land in certain cases – (1) Notwithstanding anything contained in this Act, if the Deputy Commissioner, or the [or any other officer authorised 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 under Section 44; and (ii) being entitled to be registered as an occupant of such land under Section 45 or 49, has failed to apply for registration of occupancy rights in respect of such land under sub-section(1) of

: 18 : section 48-A 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 [xxx] 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 2 hectares of `D’ class of land or its equivalent thereto] (2) The provisions of sub-section (2-A) and (2-B) of Section 77 and the provisions of Section 78 shall apply mutatis mutandis in respect of the grant of land made under sub-section (1):] Rule 26C – Procedure for grant of land by the Deputy Commissioner or the Officer authorised by the State Government under section 77-A – (1) Every person eligible for grant of land under section 77-A shall make an application in Form No.7-A within (six months)

: 19 : from the commencement of the Karnataka Land Reforms (Amendment) Rules, 1998. (2) The Deputy Commissioner or the Officer authorised in this behalf may also take cognisance suo moto of cases falling under Section 77-A. (3) The Tahsildar of the concerned taluk shall issue individual notice in Form No.9-D and public notice in Form No.8-A to the persons interested in the land, the grant of which under Section 77-A is under consideration. (4) A list of such persons covered under sub- rules (1) and (3) shall be entered in a register, kept in Form 11-CC. (5) The Deputy Commissioner or other Officer authorised in this behalf shall [after holding summary inquiry in the manner provided in Section 34 of the Karnataka Land Revenue Act, 1964 (Karnataka Act 12 of 1964] grant land in accordance with Section 77-A and the Tahsildar shall issue title deed in Form No.11- CCC on payment of purchase price in accordance with Section 78. 6) The first installment of the amount payable for the land granted under Section 77-A shall

: 20 : be payable in the Second Year from the date of the grant: Provided that where the extent of the land granted under Section 77-A together with other land, if any held by him does not exceed ten acres of `D’ Class land, or an extent equivalent thereto comprising of one or more classes of other land specified in Part A of Schedule 1, determined in accordance with the formula specified in Part B of Schedule I, he shall be exempted from paying the purchase price.] ANALYSIS OF STATUTORY PROVISION: 10. Section 77A was introduced by Amendment Act 23/1998 which came into effect from 01.11.1998. It enabled the applicants to seek for grant of lands, subject to criteria prescribed under the said Section being fulfilled by them. Simultaneously, Rule 26-C also came to be introduced by way of Karnataka Land Reforms Amendment Rules, 1998 with effect from 02.11.1998. Three conditions required to be fulfilled for grant of land under Section 77A are as under:

: 21 : (1) Applicant was in actual possession and cultivation immediately prior to 01.03.1974 which was vested in the State Government; (2) Being entitled to be registered as occupant under Section 45 or 49, had failed to apply for registration of occupancy rights within the period prescribed; (3) Has continued in possession and cultivation of such land on the date of commencement of amendment Act. The word ‘cultivation’ has been defined under Section 2(10) to mean till the land for purpose of raising or improving agricultural produce by manual or by cattle or by machinery. ‘To cultivate personally’ as per Section 2(11) would mean, one’s own account, by one’s own labour, labour of member of one’s family or hired labour or by servants on wages but not in crop share. ‘Land’ has been defined under Section 2(18) to mean capable of being used for agricultural purpose or purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope but it

: 22 : does not include house site or land used exclusively for non agricultural purposes. RE: POINT NO.1 11. Section 77A came to be introduced by amendment Act 23/1998 with effect from 01.11.1998. Said provision enables a person to seek for grant of such land if on the appointed date a person was in possession and cultivation of such land not exceeding one unit which has vested in the State Under Section 44 and had failed to make an application under Section 45 or 49 of the Act for registration of occupancy rights within the prescribed period and has continued to be in actual possession and cultivation of such land. A perusal of the said provision would indicate that Deputy Commissioner or any other Officer authorised by the State Government in this behalf is empowered to grant such land to such person, if satisfied after holding an enquiry that such person is

: 23 : entitled to grant in terms of Section 77-A subject to such restrictions and conditions as may be prescribed. 12. At the time of introduction or insertion of Section 77A the Legislature had not imposed any time restriction on the authorities for adjudicating claims thereunder. However, by Act 34/1998 introduced with effect from 15.02.1999 a period of one year from the date of the commencement of the Amendment Act was prescribed as the period within which such grant was required to be made by the authorities. Thereafter by Act 22/2001 with effect from 27.08.2001 period of limitation prescribed came to be omitted. Thus, the period within which the grant was required to be made came to be omitted. In other words, from the date of Amendment Act 23/1998 came to be introduced till 15.02.1999 there was no period prescribed for disposing of an application filed for grant of land under Section 77-A. Likewise, from 27.08.2001 onwards the same position has continued.

: 24 : However, for the interregnum period i.e., from 15.02.1999 till 27.08.2001, the Deputy Commissioner or any Officer authorised by the State Government in that behalf was required to grant the land to which an application was filed within one year. However, the substantive law did not prescribe period of limitation for filing of an application for grant of the land under Section 77-A of the Act. However, grant of land under Section 77A to such persons was subject to such conditions and restrictions as prescribed. 13. To achieve the object of Section 77-A, Rule 26-C of Karnataka Land Reforms Rules, 1974 came to be inserted with effect from 02.11.1998. Sub-rule (1) of Rule 26-C enabled a person who is eligible for grant of land under Section 77-A to make an application in Form No.7A within six months (which was earlier fixed as three months) from the commencement of Karnataka Land Reforms (Amendment) Rules, 1998. Sub rule (2) of Rule

: 25 : 26-C authorised the Deputy Commissioner or the authorised Officer in this behalf to take suo-moto cognizance of cases falling under Section 77-A. 14. Thus, a harmonious reading of the above provisions would indicate that a person eligible for grant of land under Section 77-A who was entitled to be registered as an occupant of such land under Section 45 or 49 had failed to apply for registration of occupancy rights within the period specified therein and had continued in actual possession and cultivation of such land on the date of commencement of Amendment Act (Act 23/1998) and said land having vested in the State Government under Section 44 was entitled to seek for grant of such land by filing an application in Form No.7A within the prescribed period. The Deputy Commissioner or the Officer authorised in that behalf was also empowered to take suo-moto cognizance of cases falling under Section 77-A.

: 26 : 15. In the light of above statutory provision, it requires to be examined as to whether application in Form No.7A for grant of such land is required to be filed mandatorily within the period prescribed under sub rule (1) of Rule 26-C or the said period prescribed is to be ignored in view of sub rule (2) enabling the Deputy Commissioner or Officer authorised in this behalf to take cognizance suo-moto of cases falling under Section 77-A. 16. As already noticed herein above, Rule 26-C cannot go beyond the purpose for which the main provision of Section 77-A was enacted. The intention of the legislature to introduce Section 77-A was to extend an opportunity to those who might have been truly and lawfully the tenants of the land, who were in possession and cultivation and continued to be in possession and cultivation of such land, who might have not filed application seeking grant of occupancy rights within the stipulated period though outer limit to file such

: 27 : applications came to be extended from time to time, and had continued in possession and cultivation without being disturbed to seek for grant of such lands. The correctness of the interpretation placed on Section 77-A by three Division Benches came to be doubted by a co-ordinate bench of this Court and having expressed the view that this aspect requires reconsideration by a larger bench, a reference came to be made to the Full Bench and after analysing the statutory provisions of Section 77-A and Rule 26-C the Full Bench in the case of LOKAYYA POOJARY V/S STATE OF KARNATKA reported in 2012(4) KCCR 3411 has held as under: “11. INTERESTINGLY, as in the case of Rule 17 xxxx. Asst. Commissioner. The enquiry contemplated under Section 77-A is to be confined only to the following: 1. Whether the person who has made an application under Section 77-A was in actual possession and cultivation of any land before the first day of March 1974;

: 28 : 2. Being entitled to be registered as occupants of such land under section 45 or 49, has failed to apply for registration of occupancy rights in respect of such land under sub-section (1) of Section 48-A within the period specified therein. In other words, if such an application had been filed, which claim is adjudicated upon by the Tribunal and if it is negatived, then such a person is not entitled to file an application under Section 77-A; 3. Whether such a person is continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms Amendment Act, 1977. 12. PROVISO makes it clear that xxxxx excess of 2 Hectares of land. Therefore, in the said proceedings the question whether the said land is a tenanted land or not, cannot be gone into, as is clear from the language used in Section 77-A. The entire enquiry contemplated under Section 77-A is in respect of a land, which is vested in the State Government under Section 44, as on 01.03.1974. It should be an undisputed fact. If the said fact is dispute, then Section 77-A has no application.

: 29 : The jurisdiction under Section 77-A is attracted only in respect of undisputed tenanted lands. Vesting of the land as on 01.03.1974 with the Government, which fact is not dispute, is a condition precedent for application of Section 77-A. “13. If a tenant makes an application, the question that arises for consideration is how he proves that it is a vested land. They vesting of the land is by operation of law. No order of vesting need be passed. There cannot be an order declaring the vesting of the land. Therefore, production of order of vesting is not the requirement of law and it is not possible and it cannot be insisted upon. However, it is for the applicant who comes to the Court to establish, that the land in question is a vested land. While establishing such fact, it is necessary that he should rely on undisputed documents and such undisputed documents may be in the nature of some official record showing vesting of the land in favour of the State Government. The Government record referred to in the judgment is not an order of vesting. It is a record in proof of vesting. It may vary from case to case and depends upon the stand taken in each case, But, unless there is some official record evidencing the vesting of the land, the authorities under Section 77-A would get no jurisdiction to hold an enquiry and grant land under Section 77-A to the applicant. The official record referred to therein may be in the form of Land Revenue receipts, record of rights, Index of land, mutation orders, consequent mutation entries or any other record which is maintained by a

: 30 : public officer as opposed to private documents. It is in the context, the learned judges in the aforesaid judgments have stated that the land should have been vested in the State Government as on the appointed date. The said event should have already taken place. The evidence is required to be placed by the applicant to show that this is an event that has already taken place. In the context the observations to the effect that “obviously it should find a place in some official record as vesting of the land is in favour of the State Government” are made. This amendment came into force in 1997 roughly 18 years after the last date prescribed for filing applications under Section 45. For 18 long years after the vesting of the land if the tenant has continued in possession, there must be some evidence by way of a public record to show his possession, cultivation and enjoyment as recognised by the Government, because after the vesting he has to deal with the Government and not with the erstwhile owner. How the Government as well as the applicant have dealt with this property during these 18 years assumes importance. In this context the observations made in the said judgments cannot be read as new conditions prescribed by the judges in Section 77-A by the process of judicial interpretation as sought to be urged by the Counsel for the petitioner. The judges do not legislate. 14. E. They only interpret the provisions. Therefore, the argument that under the guise of interpretation, the judges have re-written

: 31 : the Section is not well founded. It is a case of misreading the judgment. Under these circumstances, the interpretation placed by the Division Benches is proper and legal. We do not find any need to clarify what has been already said. Accordingly the reference is answered. The matters shall be placed before the learned single Judge for decision in the light of the answer given herein above. " 17. Keeping the principles laid down by the Full Bench referred to hereinabove, when facts on hand are examined it would emerge that deceased Kalappa filed Form No.7A on 26.07.1999 seeking for grant of land in question, pursuant to which proceedings under Section 77-A came to be initiated by the 11th respondent. Under Rule 26-C (1) the said application ought to have been filed within six months from the date of commencement of Karnataka Land Reforms (Amendment) Rules, 1998. Said Rules has undisputedly come into effect from 02.11.1998. This would clearly indicate that application in question which has been filed by deceased Kalappa was beyond the period prescribed under Rule 26-C and as such neither the

: 32 : 11th respondent nor the Appellate Tribunal had jurisdiction to entertain the claim made by deceased Kalappa for grant of land in question in his favour under Section 77-A. Though Mr.Ajay Patil would contend that by virtue of a Circular having been issued by the revenue authorities on 01.06.1999 directing the revenue authorities across the State to find out and ascertain as to whether there is effective implementation of Section 77-A of the Act and to file a report to the Government, pursuant to which notice came to be issued directing the deceased Kalappa to file an application on or before 30.07.1999 and as such application in Form No.7A came to be filed on 26.07.1999 which is well within time, cannot be accepted. Circulars do not have the statutory force and it would not be binding on the Courts while interpreting the provisions of a statute. For this proposition, the judgment of the Hon’ble Apex Court in the matter of J.K.STEEL LIMITED vs UNION OF INDIA & OTHERS reported in AIR 1970 SC

: 33 : 1173 can be looked up whereunder it has been held as follows: “31. So far as the instructions issued by the Department are concerned there is hardly any doubt that the same are wholly irrelevant. In Craies on Statute Law Sixth Edn. at page 131 it is stated: "Explanatory notes regarding the working of an Act issued by a government department for the assistance of their officials are inadmissible for the purpose of construing the Act." . The same conclusion was arrived at by this Court in Commissioner Income Tax, Madras v. K. Srinivasan and K. Gopalan, At pages 502-503 (of SCR) = (at p. 118 of AIR) of that report it is observed: "He, (learned Counsel for the assessee) however, drew our attention to the directions contained in the Income-tax Manual in force for a number of years and contended that the department itself placed on sub-sections (3) and (4) of section 25 the same construction as was placed on them by the senior Judge in the High Court and that was the true construction of these two sub- sections. This argument in our opinion, has no validity. The department changed its view subsequently and amended the manual. The interpretation placed by the department on these sub-sections

: 34 : cannot be considered to be a proper guide in a matter like this when the construction of a statute is involved." and as such the Circular dated 01.06.1999 would not come to his aid. Even otherwise, the said Circular would not indicate that time stipulated under Rule 26-C(1) has been extended beyond the period of six months. 18. Further contention of Mr.Patil that the name of the deceased Kalappa finds a place in the revenue records as recorded by the Appellate Tribunal is sufficient enough to hold that deceased Kalappa was a tenant immediately prior to 01.03.1974 and continued to be in possession and cultivation of the said land and as such the order of the Tribunal allowing the application filed by late Kalappa and granting the land in question to his legal heirs cannot be found fault with, requires to be examined with utmost circumspection, for the reasons stated hereinbelow.

: 35 : 19. It has been held by the Full bench in Lokayya Poojari’s case referred to supra that Section 45 and Section 77-A were intended to cover two independent fields. It has been held as under. “12. PROVISO xxx independent fields. Similarly, if a person has availed the benefit of Section 45-A and lost the battle, Section 77-A was not meant to give him one more opportunity, a second innings. The power to grant occupancy rights under Section 45 was vested with a quasi-judicial authority like a Tribunal. On the day the amendment introducing Section 77A came into force, the Tribunals were in existence and functioning. The intention of the legislature was not to give them jurisdiction to decide the claims under Section 77-A. A separate machinery is now contemplated under Section 77-A. The enquiry that was contemplated under Section 45 is totally different from the enquiry under Section 77-A, as is clear from the fact that corresponding to Section 77-A Rule 26(c) was enacted and the claim under Section 77-A had to be adjudicated in terms of the procedure prescribed under Section (sic Rule) 26 (c). A reading of Section 77-A makes it very clear this provision has a limited application. It applies to only certain cases. It is necessary to bear in mind the context in which Section 77-A is introduced. This provision finds a place in Chapter IV, whereunder as per Section 77 a provision is made for disposal of surplus lands on such land being vested with

: 36 : the Government and also other lands which are vested in the State. When deceased Kalappa had not filed Form No.7A for grant of land in question within the time prescribed and intent of the legislature is to provide those persons who had continued in possession and cultivation of the lands and who missed the bus namely had not filed an application in Form No.7 seeking grant of occupancy rights, Section 77-A came to be introduced for grant of such lands subject to three limitations prescribed therein. If the intention of the Legislature was to ignore the period of limitation to file such application, then there would have been no necessity or need for introducing Section 77-A. 20. It is only for the reason that those persons who had failed to file Form NO.7 for grant of occupancy rights within the time stipulated and to extend such persons, one more opportunity Section 77-A came to be introduced by way of amendment with effect from 01.11.1998 subject to

: 37 : condition stipulated in Section 77A being fulfilled by an applicant. Thus, the words “subject to such restrictions and conditions and in the manner, as may be prescribed” as found in Rule 26-C would acquire significance. The ‘restriction’ and ‘condition’ has been prescribed under the Karnataka Land Reforms (Amendment) Rules, 1998 prescribing the period of limitation of six months (which was initially three months) from the date of commencement of the Rules to seek for grant of land which Rules undisputedly came into effect from 02.11.1998. Thus, an applicant who has failed to file an application within the prescribed period i.e., within 6 months from 02.11.1998 would loose his right to claim grant of such land under Section 77-A. This view would get fortified when we look at Section 48-A of the Karnataka Land Reforms Act. On coming into force of amendment Act i.e., Act No.1/1974 with effect from 01.03.1974 a tenant was entitled to seek for grant of occupancy rights by filing an application in Form No.7. To adjudicate such claims, a

: 38 : machinery has been provided under the Act namely, the Land Tribunals constituted under the Act was empowered to enquire into such applications filed under Section 48A. The Land Tribunal after issuing notices to the concerned and holding an enquiry, would pass orders granting the occupancy rights. Though initially time limit was fixed for filing application in Form No.7 by the tenants, it came to be extended from time to time and the last of such extension came to an end on 30.06.1979. Thereafter, Tribunals did not have power to entertain the application filed beyond the said period or adjudicate the applications filed beyond the said date. Since the time limit was prescribed, the tenant could not have enforced his right after the expiry of the said time prescribed though he was in cultivation of such lands and vested with the Government. Even in respect of the tenanted land where application had not been filed within the prescribed time though tenant continued in possession and occupation of such land and was cultivating the same, question of

: 39 : granting occupancy right did not arise, obviously on account of non filing of an application within prescribed period. Thus, by amendment to the Karnataka Land Reforms Act Legislature introduced Section 77A, to meet the situation for granting such lands to a person who had failed to file Form No.7 and even after vesting of the land with the Government and who had continued in possession and enjoyment of such land by cultivating such land. Simultaneously, Rules also came to be amended. Accordingly, Rule 26-C came to be inserted by Notification No.RD 116 LRA dated 30.10.1998 with effect from 2.11.1998 prescribing outer limit of six months to file applications in Form No.7A. 21. In the instant case, Form No. 7A was filed by deceased Kalappa on 26.07.1999 i.e., being beyond the period of limitation of six months from the date of commencement of the Karnataka Land Reforms (Amendment) Rules 1998 which came into effect from

: 40 : 02.11.1998 and as such, said application could not have been entertained, examined or adjudicated either by the 11th respondent or by the Karnataka Appellate Tribunal. Hence, point No.1 formulated hereinabove requires to be answered by holding that application in Form No.7A filed on 26.07.1999 by deceased Kalappa was beyond the period prescribed under Rule 26-C (1) of the Karnataka Land Reforms (Amendment) Rules, 1998. RE: POINT NO.2: 22. Tribunal while allowing the application Form No.7A filed by deceased Kalappa has set aside the order passed by 11th respondent dated 26.09.2003. A perusal of said order dated 26.09.2003 would indicate that land in question had stood vested with the State and this was not challenged by the petitioners. The 11th respondent while examining the claim of the deceased Kalappa for grant of land has conducted a spot inspection on 19.09.2003 and found that it is a “pada” land namely uncultivated land.

: 41 : The RTC extracts for the period 1994-95 to 2001-02 would also indicate that the nature of the land in question has been entered as “pada”. The Appellate Tribunal while re- appreciating the documentary evidence found that RTCs of the land in question for the year 1973-74 to 2001-2002 reflects the name of deceased Kalappa in Column No.12 (2) and the nature of cultivation is shown as category III. There is no dispute that if a land is categorized as category III it would mean that it is a tenanted land. Appellate Tribunal has also recorded a finding that as per Mutation Entry No.7877 dated 05.07.1978 would indicate that the land in question has vested in the State under Section 44 of the Act. On these grounds, the Appellate Tribunal came to a conclusion that the spot inspection report of the Assistant Commissioner dated 19.09.2003 cannot override the documentary evidence or said finding recorded in Order dated 26.9.2003 has no evidentiary value.

: 42 : 23. At the cast of repetition it requires to noted that three ingredients which are required to be proved by an applicant seeking grant of land under Section 77-A are: (i) Applicant is in possession and cultivation as on 01.03.1974 on vesting of the land in the State Government, (ii) was entitled to be registered as an occupant under Section 45 or 49 but failed to apply for registration 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 Amendment Act. It is not in dispute that, deceased Kalappa intended to take the benefits of Section 77A and as such he had filed Form No.7A seeking grant of land in question. Pre- requisite for seeking such grant of Land, applicant should have been in possession and cultivation of such land before 1st day of March 1974 and should have been

: 43 : entitled to be registered as an occupant of such land under Section 45 or 49 but had failed to apply for registration of occupancy rights under Sub-section (1) of Section 48A within the period prescribed therein and thereafter continued in actual possession and cultivation of such land. The enquiry prescribed under Section 77A would be in respect of a land which has vested in the State Government under Section 44 as on 01.03.1974. There cannot be any dispute as to vesting of the land in question in the State Government inasmuch as records would indicate that land in question was treated as category III Land i.e., “tenanted Land” as on 01.03.1974 which would mean that it had stood vested in the State. 24. The Deputy Commissioner or any other Officer authorised under the Act to grant Land under Section 77A will get jurisdiction to entertain or consider such application only if the applicant was in possession and cultivation of such Land as a tenant immediately prior to

: 44 : 01.03.1974 when Act 1 of 1974 came into force and continued to be in possession and cultivation of the same when Section 77A of the Act was introduced. Thus, vesting of land would be automatic or deemed vesting under Section 44 of the Act. Revenue entries in the records would indicate the name of Sri. Kalappa having been continued under Category-III which means it was a tenanted land and it had stood vested in the State. Learned counsel appearing for the petitioner does not dispute the fact about land in question having vested in the State under Section 44. The learned counsel appearing for the legal heirs of the deceased tenant also do not dispute the fact that no application under Form No.7 had been filed for grant of occupancy rights. In so far as the third ingredient which was required to be satisfied by an applicant would be not only actual possession but would also mandate that such person should be in actual cultivation of such land. The entries in the revenue records would raise a presumption under Section 133 of the Karnataka Land Revenue Act and

: 45 : it is a rebuttable presumption. Merely because the category of the land is reflected as “pada”, it cannot be held that it was not in the cultivation of the tenant. In Column No.12 (2) of the RTCs the name of deceased Kalappa is found. The presumption has not been rebutted by the petitioners. As such, finding of the Tribunal on the issue of entries found in the revenue records cannot be found fault with. However, the grant of the land on the basis of Form No.7A which was undisputedly belatedly filed such grant could not have been made by the Tribunal in favour of the legal heirs of deceased tenant. Hence, point No.2 requires to be answered by holding that Tribunal could not have granted the land in favour of the legal heirs of the tenant and same has to be set aside. RE: POINT NO.3: 25. Undisputedly, the land in question had stood vested with the State in the year 1974 under Section 44 of the Karnataka Land Reforms Act as discussed

: 46 : hereinabove. Deceased Sri.Kalappa had not filed an application for grant of occupancy rights in Form No.7 though land in question was a tenanted land. As such, he filed Form No.7A on 26.07.1999 seeking for grant of land under Section 77-A. Said application being belated or having been filed beyond the prescribed period and there being no power available to the Deputy Commissioner or Officer authorised by him to extend the period of limitation, such land has to be held as having vested in the State and as such State would be entitled to deal with the land in question as per the provisions of the Karnataka Land Reforms Act. In fact to grant such land vested in the State, Section 77A was introduced under Chapter V i.e., for distribution of land to those landless persons. Hence, the State would be at liberty to dispose of the land in question in accordance with the Karnataka Land Reforms Act. 26. Hence, for the reasons aforestated, following:

: 47 : ORDER i) Writ petition is hereby allowed in part, ii) Order dated 30.11.2005 passed in Appeal No.1610/2003 by Karnataka Appellate Tribunal (Annexure-A) is hereby quashed and application in Form No.7A filed by deceased Sri.Kalappa is hereby rejected. iii) The land in question having vested with the State, it would be entitled to deal with the said land and dispose the same in the manner provided under the Karnataka Land Reforms Act. Parties to bear their respective costs. (Sd/-) JUDGE Jm/SBN/-