SOMAYYA AND OTHERS Vs. STATE OF KARNATAKA REPTD. BY ITS SECRETARY TO THE DEPT. OF REVENUE, ASST. COMMISSIONER AND NARAYAN

JUDGEMENT

(1.) THIS is a writ petition filed by the legal representatives of late Kollagonda challenging the order dated 29.7.2000 passed by the Assistant Commissioner, Bhatkal whereby the second respondent rejected the Form No. 7 filed by deceased Kollagonda to the remaining extent of 27 Guntas of land out of Survey No. 343/1 situate at Koppa village, Bhatkal Taluk. Therefore, assailing the said order he has come up with this writ petition only on the ground that the impugned order is contrary to law and without holding a proper enquiry, rejected the application saying that application filed under Section 77A is not maintainable and the Tribunal is not justified in passing a cyclostyled order which is highly illegal and arbitrary and the Tribunal has not recorded the statement of the parties concerned. Without proper enquiry, the Tribunal rejected the application filed by the L. Rs. of late Kollagonda which is illegal and is in violation of the principles of natural justice and Article 14 of the Constitution of India. Hence this writ petition.

(2.) HEARD the learned Counsel for the legal representatives of the deceased petitioner/applicant, learned Counsel for R -3 (a to c) and learned High court Government Pleader for respondent Nos. 1 and 2 and perused the records. During the course of arguments, learned Counsel for the L. Rs. of the deceased petitioner contended that initially Kollagonda, the father of the petitioners filed Form No. 7 wherein he has claimed only 20 Guntas of land out of SY.No. 343/1 which was measuring 1 Acre 20 Guntas. Subsequently, he filed an application in Form No. 7A under Section 77A of the K.L.R. Act but the Tribunal without holding proper enquiry passed the impugned order, dated 29.7.2000 and it is not a speaking order and the deceased Kollagonda who was cultivating the land as a lawful tenant to the extent of 1 Acre 17 Guntas but his claim limited only to an extent of 20 Guntas. Therefore, the Tribunal has granted 20 Guntas of land and he is not debarred from filing a fresh application under Section 77A as he has already constructed a house and he is paying necessary tax and revenue, Therefore, rejection of the application filed in Form No. 7A by the petitioners is a clear violation of the mandatory provisions of K.L.R. Act and Rules and principles of natural justice.

(3.) IN support of this contention, learned Counsel for the respondents No. 3(a) to 3(c) has relied on a decision reported in I.L.R. 204 Kar 3666 (Nathappa, Since Deceased By L.Rs. v. Venkatarayappa and Ors.) wherein this Court has held as follows: 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 under Section 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 under Section 77A of the Act. It is also clear that for grant of lands under Section 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 under Section 77A is not the same of the application under Section 45 of the Act. An application under Section 45 is for confirmation of occupancy rights and an application under Section 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 under Section 48A of the Act earlier. The petitioners cannot maintain an application for grant of the same lands under Section 77A of the Act.