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C.J. Shekharappa Vs. State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 41160 of 1982
Judge
Reported inILR1985KAR2775; 1985(2)KarLJ111
ActsKarnataka Land Reforms Act, 1961 - Sections 67(3), 67(3A), 67(4), and 122A
AppellantC.J. Shekharappa
RespondentState of Karnataka and ors.
Appellant AdvocateShivaraj Patil, Adv.
Respondent AdvocateMeena Ramachandran, H.C.G.P.
Excerpt:
.....of surplus land or regarding surrender of land -- surrender once accepted not subject to review by land tribunal.;the tribunal passed an order dated 8-8-1977 declaring the holding of the petitioner was in excess by 6 acres; the petitioner surrendered 6 acres of land comprised in s.no. 733 a/i and 437 a/ib of uttangi and ittige village respectively, which were accepted by the tribunal, and vested in the state government by virtue of notification dated 3-3-1978, published in the karnataka gazette dated 6-4-1978.;the tribunal once again passed an order, dated 6-6-1982, accepting the surrender of 6 acres of land comprised in s. no. 537/b of ittige village, on the basis of the proposal made by the 3rd respondent tahsildar purporting to act in pursuance of the order of the tribunal dated..........of members in his family, the nature of the land and other particulars, before the 2nd respondent-land tribunal. the tribunal took up the declaration presented by the petitioner in case no. 416/74 75 and after conducting an enquiry, passed an order on 8-8-1977 as per annexure-a declaring the holding of the petitioner was in excess by 6 acres and further directing the petitioner to surrender the said 6 acres of land on or before 20-8-1977 failing which the tribunal would select any of the lands declared for the purpose of the surplus land. in pursuance of the said order, the petitioner voluntarily gave anapplication stating that he would surrender 6 acres of land i.e., 2.67 acres comprised in s.no.733a/l and 3-33 acres comprised in s.no. 467a/1b of uttangi and ittige village.....
Judgment:
ORDER

Kudoor, J.

The material facts on which this Writ Petition, one under Articles 226 and 227 of the Constitution, is founded are the following:

1. The petitioner CJ. Shekharappa filed an application in Form-11 under Section 66 of the Karnataka land Reforms Act, 1961 (for short the 'Act') declaring the total extent of his holding, the number of members in his family, the nature of the land and other particulars, before the 2nd Respondent-Land Tribunal. The Tribunal took up the declaration presented by the petitioner in Case No. 416/74 75 and after conducting an enquiry, passed an order on 8-8-1977 as per Annexure-A declaring the holding of the petitioner was in excess by 6 acres and further directing the petitioner to surrender the said 6 acres of land on or before 20-8-1977 failing which the Tribunal would select any of the lands declared for the purpose of the surplus land. In pursuance of the said order, the petitioner voluntarily gave anapplication stating that he would surrender 6 acres of land i.e., 2.67 acres comprised in S.No.733A/l and 3-33 acres comprised in S.No. 467A/1B of Uttangi and Ittige village respectively. The Tribunal accepted the surrender and a copy of the same was served upon the Tahsildar, who, as required under Section 73(1) of the Act, published the Notification dated 3-3-1978 in the Karnataka Gazette dated 6-4-1978 containing the particulars of the lands vested in the State Government and deemed to have been surrendered as per the Gazette Notification, the copy of which is at Annexure B. After the surrender was accepted, the lands surrendered were got surveyed by a surveyor who recorded the statement of the petitioner, the copy of which is at Annexure-C. After the petitioner surrendered the lands in pursuance of the order passed by the land Tribunal and the acceptance of the land surrendered by the petitioner, the 2nd Respondent, all of a sudden started proceedings to take an area of 6 acres out of S.No. 573B of Ittige village purporting to act in pursuance of the order passed by it on 8-8-1977 as per Annexure-A, on a report submitted by the 3rd Respondent which the 2ndRespondent appeared to have accepted. The petitioner further learnt that on the basis of the report of the 3rd Respondent, the 2nd Respondent made an order dated 6-6-1982 in the very same file in which it had made the order as per Annexure A ordering to accept 6 acres of land in S.No. 573B of Ittige village and in pursuance of the said order, another Gazette Notification dated 28-6-1982 was got published in the Karnataka Gazettee dated 22-7-1982 as required under Section 73(1) of the Act. The petitioner came to know about the later order dated 6-6-1982 passed by the 2nd Respondent from the Gazette Notification only about a month back when the village accountant informed the petitioner that Respondents 2 and 3 have taken the land measuring to an extent of 6 acres in S.No. 573/B as surplus land and that possession of the said land would be taken shortly. Being perturbed by receipt of the said information about the later developments, the petitioner submitted a detailed representation to the 3rd Respondent bringing to his notice the earlier proceedings, a copy of which is at Annexure-D. Thereupon the petitioner made attempts to secure some records to take further steps but he was supplied with an endorsement as per Annexure-E dated 23-1-1982 and thereafter the petitioner filed this Writ Petition for the issue of a Writ of Certiorari or any other Writ or Order or direction quashing the Notification dated 28-6 1982 issued under Section 73(1) of the Act and also all further proceedings pursuant to the order of the 2ndRespondent-Tribunal dated 6-6-1982.

2. Although the notice of the Writ Petition was served upon the Respondents, none appeared in the initial stage. The Court directed the Tahsildar and Secretary of the land Tribunal, Hadagali to be present before the Court with the original records and when he ultimately appeared before the Court with the records, he sought the assistance of the Learned High Court Government Pleader to make his re-presentation and the Court made available the services of the Learned High Court Government Pleader to assist the Court in this case, representing the Respondents.

3. The original records of the Tribunal have been secured through the Secretary and are available for reference.

4. Sri. Shivaraj Patil, learned Advocate appearing for the petitioner seriously contended among other things that since the Tribunal had accepted the surplus land surrendered by the petitioner and the same had become final once, it had no jurisdiction to go behind that order and take fresh steps to select other item of land of its choice for the purpose of securing surplus land from the possession of the petitioner. The power of review bestowed upon the Tribunal under Section 122-A will not apply in respect of acceptance or otherwise of the surplus land surrendered by the petitioner in pursuance of an order made after the determination of the surplus holding as required under Section 67(1) of theAct as Section 122A specifically refers to its application to an order made under Sub-section (1) of Section 67 of the Act.

5. For better appreciating the contentions urged by Sri Shivaraj Patil, it is necessary to refer to the relevant pro visions of the Act.

6. Section 63 of the Act places limitation regarding the extent of the holding of a person or a family. Section 66 provides for filing of declaration of holding before the land Tribunal in Form-11 with necessary particulars as detailed in Section 66 of the Act. Sub-section (1) of Section 67 empowers the Tribunal, after holding an enquiry, to deter-mine the extent of the holding of a person or a family entitled to hold and declaring the surplus land of his holding. Section 67(2) provides that after making an order under Sub-section (1), the Tribunal shall serve a notice upon the party who is liable to surrender the land, specifying the extent of the land which he should surrender, requiring him to file a statement in such manner and within the period specified therein specifying the land which he proposes to surrender. Sub-section (3) stipulates that if the personconcerned files a declaration within the prescribed period, the Tribunal may, subject to the provisions of Sub-Section (3A) pass an order approving the surrender and the land shall thereupon be deemed to have been surrendered by such person. Sub section (3A) provides that if the land proposed to be surrendered is not suitable on any ground, the Tribunal may pass an order rejecting the proposed surrender and calling upon the person concerned to file a fresh statement specifying therein other suitable land and on the filing of such statement, the Tribunal shall pass an order approving such surrender and the said land shall thereupon be deemed to have been surrendered by such, person. If such person fails to file fresh statement, the Tribunal itself may select theland which shall be surrendered by such person and pass an order to that effect and thereupon the said land shall be deemed to have been surrendered by such person. Sub-section (4) provides that if the person concerned does not file a statement within the prescribed period, the Tribunal itself may select the land which shall be surrendered by the person concerned and on making such an order it shall be deemed that such land to have been surrendered by such person. Sub-section (1) of Section 73 stipulates that after the service of the order made under Section 67, the Tahsildar shall publish a notification containing the particulars of the lands vested in the State Government.

7. There is no appeal or revision provided against an order passed by the land Tribunal in respect of thedetermination of the holding of a person or a family and the declaration of the surplus land to be surrendered by him or by it. Equally, there is no provision for appeal or revision against the order passed by the Land Tribunal in respect of surrender of the surplus land. The only provision made under the Act is for review of an order passed by the Tribunal under Sub-section (l) of Section 67, under Section 122-A of the Act for the reasons stipulated therein.

8. Against this background of these provisions, if we consider the argument urged by Sri Patil, one may not find it difficult to reach the conclusion that the Tribunal has no jurisdiction to go behind the order, once it has accepted the surrender of the surplus land surrendered by the party concerned in pursuance of an order made under Section 67(3), (3A) and (4) of the Act. On the basis of this legal position, I shall now proceed to consider the matter on hand on its merits.

9. The petitioner presented an application in Form-11 as required under Section 66 of the Act declaring his holding with necessary particulars, The Tribunal after holding an enquiry, made an order on 8-8-1977 as per Annexure - A declaring the holding of the petitioner was in excess by 6 acres and further indicating that the petitioner shall surrender 6 acres of land to the Government before 20-8-1977. There is hardly any doubt that in pursuance of the said order, the petitioner proposed to surrender 6 acres of land being the surplus of his holding as held by the Tribunal consisting of 2.67 acres in S.No. 733A/1 and 3-33 acrescomprised in S.No. 437A/1B of Uttangi and Ittige village respectively. An application filed by the petitioner in this regard is found in the original records. However, the records of the Tribunal do not contain the order passed by the Tribunal in accepting the lands proposed to be surrendered by the petitioner. The petitioner has produced the copy of the notification dated 3-3-1978 published in the Karnataka Gazette dated 6-4-1978 as required under Section 73(1) of the Act. The said notification does indicate that thepublication in question was under Section 73(1) of the Act. The Tahsildar could take steps to publish a notification as required under Sub-section (1) of Section 73, only upon the service of an order made under Section 67. Sub-clause (d) of Sub-section (1) of Section 67 provides that the order of the Tribunal shall be final and shall be communicated to the person concerned and also the Tahsiidar. Further the said Gazette Notification published by the Tahsildar would show that an order under Section 67(4) of the Act had already been passed under office order No. 416/74-75 Hadagali dated 8-8-1977 specifying the lands shown in the schedule mentioned in the notification which shall be surrendered by theconcerned declarant and which are deemed to have been surrendered to the Government by the said person. The properties shown in the schedule to the Notification were S.Nos.733 Part A/1 (obviously a typographical error for S.No 733A/1) measuring 2-67 acres and S.No. 437A/1B measuring 3-33 acres. Thus it is seen from these material on recordthat the Tribunal had passed an order declaring the holding of the petitioner was in excess by 6 acres and that thepetitioner had surrendered 6 acres of land comprised in S.Nos. 733A/1 and 437A/IB of Uttangi and Ittige village respectively which were accepted by the Tribunal and which were vested in the State Government as could be seen from the Notification dated 3-3-1978 published in the Karnataka Gazette dated 6-4-1978. From the original records it is seen that the Tribunal once again passed an order dated 6-6-1982 accepting the surrender of 6 acres of land comprised in S. No 537/B of Ittige village on the basis of the proposal made by the 3rd Respondent Tahsildar purporting to act in pursuance of the order of the Tribunal dated 8-8-1977 as per Annexure-A and consequent upon the order dated 6-6-1982, another Notification dated 28-6-1982 was issued underSection 73(1) of the Act and published in the Karnataka Gazette dated 22-7-1982, which, in my opinion, was clearly without jurisdiction and so clearly illegal. Necessarily it follows from this that any further proceedings taken pursuant to the order dated 6-6-1982 are also equally without jurisdiction and illegal.

10. In the result, for the reasons stated above, the rule issued is made absolute. The order dated 6-6-1982, the Notification dated 28-6-1982 published in the Karnataka Gazette dated 22-7-1982 and all further proceedings taken pursuant to the order dated 6-6-1982 are quashed. In the circumstances of the case, I direct each party to bear his own costs.


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