VEERAYYA Vs. ASSISTANT COMMISSIONER BAGALKOT

JUDGEMENT

(1.) 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 under Section 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 under Section 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.

(2.) INITIALLY, the Tribunal granted the land to the appellant which was challenged in appeal no. 683/2002 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 under Section 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 under Section 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.

(3.) 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 under Section 48-A of the act or praying for grant of land under Section 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 under Sections 45 or 49 and who have failed to apply for grant of occupancy rights 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 under Section 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 under Sec. 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 Nayak v. State of Karnataka, by Secretary revenue Department, (ILR 2002 Kar 1342) : (2002 AIR Kant HCR 1040) and in the case Aboobakkar v. The Authorised Officer, puttur, Dakshina Kannada District, (W. A. No. 5390/2002 disposed of on 6-12-2006 ). This Court has noted that unlike the claim for grant of occupancy rights under Section 48-A, which is a right vested in the tenant, the right or prayer for grant of land under section 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 under Section 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 coming into force of the Karnataka Land Reforms act, 1960 as amended by Act 1 of 1974 with effect from 1-3-1974.