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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 07TH DAY OF NOVEMBER 2012
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON’BLE MR.JUSTICE V.SURI APPA RAO
W.A.NO.469/2010(KLRA) BETWEEN:
B S RAMASWAMY S/O SRINIVASAIAH SINCE DEAD BY LRS. 1.S K VENKATALAKSHMAMMA W/O B S RAMASWAMY
AGED 74 YEARS, R/O BAGALUR BANGALORE NORTH TALUK BANGALORE DISTRICT. 2.B R NAGARAJ
S/O LATE B S RAMASWAMY
MAJOR R/AT BAGALUR
BANGALORE NORTH TALUK, BANGALORE DISTRICT.
3.B R RAJASHEKAR S/O B S RAMASWAMY MAJOR R/AT BAGALUR
BANGALORE NORTH TALUK, BANGALORE DISTRICT.
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4.B R SRINIVASAMURTHY S/O LATE B S RAMASWAMY MAJOR
R/AT BAGALUR BANGALORE NORTH TALUK, BANGALORE DISTRICT.
5.AMBUJA PRAKASH B R
D/O LATE B S RAMASWAMY Age:39 YEARS W/O BHANUPRAKASH R/ON O.55/18, KRISHNA, 21ST MAIN, 22ND CROSS, VIJAYANAGAR BANGALORE 40
6.SHAILAJA D/O LATE B S RAMASWAMY Age:37 YEARS W/O K SATHYNARAYANA R/O ESWARA TEMPLE STREET CHIKKABALLAPUR
KOLAR DISTRICT. ... APPELLANTS
(BY SRI. S M BABU ADVOCATE)
AND:
1. GOVERNMENT OF KARNATAKA BY ITS SECRETARY REVENUE DEPARTMENT VIDHANA SOUDHA BANGALORE 1.
2. THE LAND TRIBUNAL DEVANAHALLI,
BY ITS CHAIRMAN
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3. NARAYANAPPA S/O GULLAPPA MAJOR,SINCE DECEASED BY LEGAL REPRESENTATIVES
3.SMT AKKAYAMMA
W/O NARAYANAPPA AGE MAJOR R/AT YEDIYUR VILLAG MAHADEVAKODIGANAHALLI BANGALORE NORTH TALUK
4.SRI LOKESH
S/O LATE NARAYANAPPA R/AT YEDIYUR VILLAGE, MAHADEVAKODIGANAHALLI,
BANGALORE NORTH TALUK.
5. SRI NARAYANASWAMY
S/O LATE NARAYANAPPA R/AT YEDIYUR VILLAGE, MAHADEVAKODIGANAHALLI, BANGALORE NORTH TALUK.
6.NAGARAJ S/O LATE NARAYANAPPA Age: 30 YEARS R/O YEDIYUR VILLAGE HAMLET, BAGLUR POST JALAHOBLI, BANGALORE NORTH
TALUK 562 145 ... RESPONDENTS
(BY SRI.K.KRISHNA, AGA FOR R1 AND R2, SRI N G KOTRE ADVOCATE FOR R3-6)
*****
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WRIT APPEAL FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION
NO.30929/2001(KLRA) DATED 18/06/2009.
THIS WRIT APPEAL COMING ON FOR ORDERS THIS DAY, N.KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
The landlord has preferred this appeal
challenging the order passed by the learned Single
Judge who declined to entertain the Writ Petition
where they had challenged the order of the Land
Tribunal granting occupancy rights in favour of the
private respondents.
2. The subject matter of this proceedings is land
bearing sy.no.134 measuring 8 acres situated at
Mahadevakodigehalli, Devanahalli taluk, Bangalore
district. The original third respondent Shri Narayan
filed an application in form no.7 under Section 48-A of
the Karnataka Land Reforms Act (hereinafter referred to
as the ' Act' for short) on 30.12.1974 for grant of
occupancy rights in sy.no.93 measuring 4 acres 20
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guntas situated at Chalumakunte village, Devanahalli
taluk. He impleaded one H.Kempaiah and
B.S.Ramaswamy as the landlords. The Tribunal issued
notice to the said landlords. In the said proceedings,
the said Ramaswamy did not appear before the Tribunal
on service of notice. Behind the copy of the notice, he
made an endorsement that land bearing sy.no.93 of
Chalumkunte village does not belong to him.
Thereafter, the Tribunal examined the applicant. They
also verified the RTC registers available in the Taluk
Office. The said RTC showed that the applicant was the
kathedar of the land applied by him. In other words,
he was the landlord of the said land. Therefore, on the
ground that there existed no relationship of landlord
and tenant and the land in question not being a
tenanted land did not vest with the Government,
rejected form no.7. The said order of the Land Tribunal
was not challenged by Narayanappa.
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3. However on 5.2.1982, he filed a petition
accompanied by an affidavit contending in form no.7
which he had filed earlier, he wanted occupancy rights to
be granted in respect of sy.no.134 of Yediyur village
measuring 8 acres which is hamlet of
Mahadevakodigehalli. Since he was an illiterate, he got
the application written by other persons, who by mistake
entered sy.no.134 under the column showing the lands
owned by the owner or tenant or in other capacity and
sy.no.93 as the land in respect of which form no.7 is filed.
It was due to oversight and it was unintentional. The said
land is a shanbag service inam land of
Mahadevakodigehalli for which B.S.Ramaswamy is a
hakdar. He has been cultivating the said land since five
years and paying wara to the landlord. B.S.Ramaswamy
got the land re-granted in his favour as per the order
dated 30.10.1981 by the Tahsildar, Devanahalli Taluk.
Therefore, he requested to consider his Form no.7
application and confirm the occupancy rights in
his favour under the provisions of the Act. The
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Tribunal took up the said application, issued notice to
B.S.Ramaswamy. Ramaswamy on being served with the
notice filed his objections contending the case
LRF.3/1974-75 was heard on 16.10.1981 at Budigere
village and the Tribunal had rejected the petitioner’s
claim. In the said case, survey number referred to were
those of Chalumakunte village and he was in no way
connected with the survey numbers. Therefore, the
application was rejected. He submitted that it is indeed
strange how different survey number of
Mahadevakodigehalli, were inserted in the application.
Once the application was rejected, the Tribunal cannot
and shall not reopen the application with different survey
numbers. Though he has applied copies of form no.7
and the order sheet in the case, as it was not supplied to
him, he prayed for time. On 5.4.1982 both the parties
were present. On 3.7.1982, the members of the Land
Tribunal desired to inspect the land and hence,
posted the case for spot inspection to 09.07.1982 by
11 a.m. On 09.07.1982, spot inspection could not be
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done for want of time and the case was reserved for spot
inspection without fixing the date. On 10.11.1982, the
Tribunal obtained the case file and opined that spot
inspection was not necessary. They opined to get the
land measured by the Surveyor to note the extent of
survey number in which the applicant is in possession.
Accordingly, the case was referred for measurement. On
20.8.1982, the report of the Surveyor with the sketch was
placed before the Tribunal. The members examined the
report of the Surveyor indicating the extent and the
Survey number in which the petitioner is on possession.
On perusal of the sketch, members felt that the petitioner
is in possession of 8.01 acres of land in sy.no.134 of
Yediyur hamlet of Mahadevakodigehalli, which is in the
katha of B.S.Ramaswamy. Therefore, the petitioner is
entitled to occupancy rights over the said land.
The Tribunal took note of the submission of
B.S.Ramaswamy and also the RTC extracts produced.
The RTC extracts produced shows that applicant
Narayanappa is the cultivator of the said land since
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1973-74 to 1981-82 on wara basis. The report of the
Surveyor indicates that the applicant is in cultivation of
the land in sy.no.134 of Yediyur village.
B.S.Ramaswamy denied the cultivation of the land by
the applicant on the plea that the cultivation is
unlawful. The Tribunal on consideration of the said
material came to the conclusion that the land in
question is tenanted land as on 1.3.1974 and the
applicant is a tenant of the same and he is entitled for
registration of the occupancy rights. Therefore, they
passed an order accordingly on 20.8.1982. Aggrieved
by the said order, the landlord preferred the Writ
Petition.
4. The learned Single Judge on consideration of the
rival contentions and the various judgments cited by
both the parties was of the view that the prayer to
modify the mistake committed by the person who has
filed a form no.7 is always available to the Tribunal, to
rectify the same on its own or by way of an application
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made by the parties. Under Section 48-A after hearing the
contesting parties, amendment could be made. In the
instant case, notice was issued to the landlord to appear,
contest the matter and thereafter., an order allowing the
amendment was passed. Sub-section (3) of Section 48-A
of the Act confers power on the Tribunal to permit
amendment. Therefore, he was of the view that there is no
illegality or infirmity committed by the Tribunal in passing
the impugned order. The villagers, agriculturists and
tenants, and by and large are illiterate and ignorants.
Though at the instance of some people, they have come
forward to file form no.7, since they are illiterates and
ignorants, they cannot make an application by furnishing
correct survey numbers. As the power is conferred on the
Tribunal for amendment, the Tribunal suo moto can
correct such error. The Tribunal has recorded that since
the applicant is illiterate, he got the tenancy application
written by another person who by mistake entered
survey number 93 in the relevant column as against
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134, such error is by oversight and unintentional.
Therefore, the learned Single Judge found no good
reason to interfere with the order of the Tribunal.
Hence, Writ Petition came to be dismissed. Aggrieved
by the said order, landlord has preferred this appeal.
5. The learned Counsel for the appellants assailing
the impugned order contended that though by virtue of
an amendment, power is conferred on the Tribunal to
amend form no.7, such an application is to be filed
before the disposal of form no.7 before the Tribunal.
Hence, the Tribunal after passing an order rejecting
form no.7 for whatever reason, has no jurisdiction to
entertain the application for amendment of form no.7.
Insofar as the correction of arithmetical or clerical error
is concerned, the Tribunal is vested with such power
but that power does not extend to reverse the order
passed by the Tribunal. In the order which is passed, if
there is a clerical or arithmetical mistake in the order,
the Tribunal could correct it. But in the guise of
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correcting the typographical or clerical error, it cannot
rewrite the order or reverse the order passed earlier and
therefore, he submitted that the Tribunal had no
jurisdiction to entertain the amendment application
and reverse the order passed in form no.7. The learned
Single Judge has not properly appreciated the facts and
the law on the point and thus committed serious error
in dismissing the petition. Therefore, the appeal has to
be allowed.
6. Per contra, learned counsel appearing for the
applicant contended the applicant is an illiterate
person, a villager and a farmer. He had to depend on
others for filling up form no.7. While filing form no.7,
a person who filled up form no.7 instead of mentioning
sy.no.134 has mentioned sy.no.93. But in the last
column sy.no.134 is also mentioned. Therefore, it is
not the case of substitution. It is not a case of new
claim. All that is sought is the claim instead of
sy.no.93, it has to be read as sy.no.134 which is clearly
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mentioned in last column of form no.7. By
amendment, the power is conferred on the Tribunal to
allow the amendment applications by correcting the
survey numbers even after passing of the orders. The
Tribunal has been conferred power to correct clerical
and arithmetical mistakes. All that has been done in
the instant case is as sy.no.93 mentioned therein is an
arithmetical mistake, it is corrected and correct
sy.no.134 is written and therefore, he submits that both
the Tribunal and learned Single Judge were justified in
passing the impugned order. In support of his
contention, he relied on various judgments of this Court
as well as the Supreme Court.
7. In the light of the aforesaid facts and the rival
contentions, the point that arises for consideration is
“Whether the impugned orders passed by both the
Tribunal and as well as the learned Single Judge is in
accordance with law?”.
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8. The Karnataka Land Reforms Act, 1961 was enacted
with the intention of having a uniform law in the State of
Karnataka. After re-organization of the States relating to
agrarian relations, conferment of ownership on tenants,
ceiling on land holdings and for certain other matters.
The radical change brought about by the said legislation
was all the tenanted lands as on the appointed date as on
1.3.1974 vested with the Government free from all
encumbrances. The tenants who were in possession of
the land therein on the appointed date were conferred a
right to seek for registration of the occupancy of the land
which were in their possession. The Land Reforms
Tribunal were constituted to deal with these claims of
tenancies excluding the jurisdiction of the Civil Court to
go into the said question. Section 48-A of the Act
prescribed the procedure to be followed by the Tribunal
while considering such claims. However, a time limit was
fixed for filing such applications, the last date for filing
such application was 30.6.1979.
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9. In the instant case, the applicant filed an application
in form no.7 under Section 48-A of the Act on 31.12.1974
within the time prescribed. In form no.7 filed, he sought
for occupancy rights in respect of land bearing sy.no.93
measuring 4 acres 20 guntas situated Chalumkunte
village of Devanahalli village. In the said form no.7 in the
last column, he has mentioned the lands which he owns,
one such land being sy.no.134 measuring 8 acres but the
claim for grant of occupancy rights was in respect of land
bearing sy.no.93 measuring 4 acres 20 guntas situated at
Chalumkunte village. Ramaswamy was shown as the
owner along with one Kempaiah. When the notice of the
Tribunal was served on Ramaswamy, he made an
endorsement on the notice itself stating that he is not the
owner of the land and therefore, he has no interest in the
said land. On the date of hearing after noticing the said
endorsement, the Tribunal verified the claim of the
applicant with reference to records such as RTC.
The said record discloses that the applicant was the
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kathedar of the land and not a tenant. When he is not
the tenant of the said land, the land did not vest with
the Government. When he is the kathedar of the land,
question of granting land also in his favour do not arise.
Therefore, they passed an order on 24.4.1981 rejecting
form no.7. The said order dated 24.4.1981 was not
challenged by the applicant before this Court and
therefore, it attained finality.
10. On the contrary on 5.2.1982, he filed an
application pointing out the mistake which has
occurred in form no.7 and he requested that the said
application be treated as an application filed for grant of
occupancy rights in respect of sy.no.134 which in fact
is mentioned in the last column. When notice of the
said application was served on the landlord, he filed his
objections contending that once form no.7 is decided by
this Court, it has no jurisdiction to reopen the case to
entertain the application for amendment and to pass
any orders. Therefore, he requested for dismissal of the
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said application. But the Tribunal has proceeded to
grant occupancy rights. It is that order which is
upheld by the learned Single Judge. In this context,
reliance is placed on sub-sections 3 and 6 of Section 48-
A which reads as under:
“48(3)The form of the application, the form of the notices, manner of publishing or serving the notices and all other matters connected therewith shall be such as may be prescribed. [The Tribunal may for valid and sufficient reasons to permit the tenant
to amend the application.] (6) [The order of the Tribunal under this Section shall be final and the Tribunal shall] send a copy of every order passed by it to the Tahsildar and the parties concerned”.
The first proviso provided that the Tribunal may on the
application of any of the parties for reasons to be
recorded in writing, correct any clerical or arithmetical
mistakes in any order passed by it. There is a proviso
provided further that the Tribunal may on its own or on
application of the parties for reasons to be recorded in
writing correct the extent of the land in any order
passed by it, after causing actual measurement and
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after giving an opportunity of being heard the concerned
parties. These provisions have been the subject matter
of interpretation by Courts.
11. The learned Single Judge of this Court in the case
of HANUMANTHAPPA KALLAPPA DYAVANNANAVAR
(DECEASED) BY L.Rs .vs. STATE OF KARNATAKA
AND OTHES [2000(2) Kar.L.J. 594] at paragraphs 6
and 7 held as under:-
“(6)The question that requires to be
answered is whether the petitioner
would be entitled to point out what is
shown to be an obvious mistake
regarding the land in respect of which
he was claiming occupancy rights by
reason of the interchange of Survey
No.10/1 measuring 10 guntas of land
and Sy.No.44 measuring 7 acres and 10
guntas in the Form No.7 filed by him
and seek occupancy rights therefore.
An amendment of a claim obviously
means the incorporation of a new thing
either in the substitution of what is
already stated or by way of addition of
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something which is not already stated.
If it is a case of an amendment by an
incorporation of a new thing in the
claim, the decisions referred to above
would squarely apply and the petitioner
would not be entitled any relief. The
petitioner is not seeking to substitute or
add by way of an amendment in Form
No.7, but is only seeking to plead that
on account of ignorance, illiteracy, the
person who filled up the Form No.7 has
interchanged to Survey No.10/6 and
Survey No.44 in columns in which they
ought to have been mentioned, and is
praying that Survey No.44 be read as
the land in respect of which occupancy
rights are sought by him. Such a prayer
cannot be read as an amendment which
is barred by law by reason of its being
pointed out after the last date for filing
an application in Form No.7 i.e.,
30.6.1979. Hence, the Land Tribunal is
empowered to examine the claim of the
petitioner and there is no legal bar for
doing so.
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(7)The plea raised by the petitioner is
a question of fact that the Land Tribunal
would have to examine and if it is found
as a fact that there has been such an
interchange of Sy.Nos. the Land
Tribunal would be empowered to
examine the case of the petitioner so far
as it relates to Survey No.44 measuring
7 acres and 12 guntas.”
Yet another learned Single Judge in the case of Y.S.
Ramachandra Rao .vs. State of Karnataka and
others (ILR 2005 KAR 2111) at paragraph 11 as held
as under:-
“11. That brings me to the
question whether the Land Tribunal has
jurisdiction to grant occupancy right in
respect of a Survey Number not
mentioned in Form No. 7 by mistake of
an applicant and mentioning a different
survey number. A Division Bench of this
Court in Padmaraja Athikari v. Land
Tribunal, Karkal, held that the
applicants being villagers may be
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illiterates and ignorants, there is every
possibility that they may mention wrong
survey number in their Form 7. If the
Tribunal after holding an enquiry
ascertains the correct survey number
and grants occupancy right in respect of
that survey number, such an order
cannot be held to be without jurisdiction.
It is held as follows.--
"Though the claimant may mention
wrong numbers in his or her Form 7, the
Tribunal has got jurisdiction to verify and
ascertain the correctness of the numbers
because the possibility of mentioning
wrong numbers cannot be ruled out since
Form No. 7 will be filed by the villagers
who may be illiterates and ignorants.
Therefore, the Tribunal after due enquiry
finds out the correct survey number and
grants occupancy rights in respect of that
survey number even though the claimant
might have mentioned some survey
number wrongly. It cannot be said that
the Tribunal has no jurisdiction to pass
such order".
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Therefore, even if there is a mistake in
mentioning the survey number in Form 7
by the contesting respondents, it was
permissible for the Land Tribunal to
verify and ascertain the correctness of
the numbers and pass appropriate
orders. Thus, there is no substance in
the argument of the learned Counsel for
the petitioner that the land tribunal has
no jurisdiction to grant occupancy right
in respect of Sy. No. 643.”
The said learned Single Judge in the case of Smt.
Gangamma and another .vs. The Tahsildar and
others [ILR 2005 KAR 4852] at paragraphs 5 and 6
has held as under:-
“It is evident from the impugned
endorsement that the Land Tribunal has
rejected the application of the petitioners
to correct its order on the ground that it
does not have power to do so. By
Karnataka Act No. 31/95, second
proviso to Sub-section (6) of Section 48-A
was inserted which has come into force
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with effect from 20.10.1995. The said
proviso is as under :
"Provided further that the Tribunal
may on its own or on the application of
any of the parties, for reasons to be
recorded in writing, correct the extent of
land in any order passed by it after
causing actual measurement and after
giving an opportunity of being heard to
the concerned parties".
6. It is clear from the above proviso that
the Land Tribunal may on its own or on
the application of any of the parties,
correct the extent of land in any order
passed by it after causing actual
measurement and after giving an
opportunity of being heard to the
concerned parties. The Land Tribunal
has to assign reasons while passing
such an order. It may also correct the
order passed prior to . the insertion of
the above proviso.”
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The Apex Court in the case of Honnamma and others
.vs. Nanjundaiah(D) by L.Rs. and others [2008(4) AIR
Kar R 12] at paragraph 8 as held as under:-
“A perusal of the first and the
amended application would reveal that
as survey nos. 64, 81, 75, 75, 13 did not
figure in the original application, the
proposed amendment was rejected and
that order has been maintained even by
the High Court. The claim pertaining to
survey No. 12 in village Mylanahalli too
has also been rejected for the same
reasons. The amendments have
however been allowed with respect to
the other survey numbers and also with
respect to a change in the name of the
village(s) on the understanding that a
mere mis-description of the property
was to be rectified by amendment. To
our mind therefore, a mere mis-
description while identifying the land in
Form no. 7 as originally filed would not
be hit by the embargo with respect to the
last date of the filing of Form no.7 i.e. on
30th June, 1979. The judgment
25
referred to by the High Court is based
on a different set of facts in as much
certain items which had not been
included in the original plaint were
sought to be included by amendment, a
proposal which the court held could not
be justified. The observations in Jai Jai
Ram Manohar Lal vs. National Building
Material Supply, Gurgaon AIR 1969 SC
1267 are meaningful. It has been
observed that a party cannot be refused
amendment in a case of a mis-
description of property as the purpose of
amendment is to ensure that the real
issues are addressed and that in such a
case no question of limitation would
arise and the amended plaint must be
deemed to have been instituted on the
date on which the original plaint had
been filed. We are, therefore, of the
opinion that the finding of the High
Court on the question of limitation is
erroneous.”
Again the Supreme Court in the case of Syed
Beary(dead) by LRs. vs. Dennis Lewis(Dead) by LRs.
26
and others (2007) 15 Supreme Court Cases 629 at
paragraph(1) has held as under:-
“ The tenant applied for amendment of
Form 7 under Section 48-A(3) of the
Karnataka Land Reforms Act, 1961 for
correction of Survey No.129/7. The
Tribunal, having regard to the records,
survey report and the statement of the
landlord, concluded that there was a
mistake in giving survey number
originally in Form No.7 and allowed the
amendment. The appellant authority, on
consideration of the contentions
advanced on behalf of the parties, having
regard to the nature of amendment sought
for and looking to the records made
available, upheld the amendment ordered
by the Tribunal. While doing so, the
appellate authority also took note of the
fact that the landlord himself had
admitted that the tenant was in
possession of the lands in respect of
which amendment was sought in Form
7. The landlord filed a civil revision
before the High Court questioning the
validity and correctness
27
of the order made by appellate
authority, affirming the order made by
the Tribunal allowing the amendment of
Form 7, as sought for by the tenant. The
High Court, by the impugned order,
allowed the revision petition and set
aside the order of the appellate authority,
taking a view that the amendment
application should not be entertained
after 30-6-1979 which was the last date
for filing Form 7. Hence, this appeal by
the tenant.”
12. In the light of the aforesaid judgments, when we
examine the scheme of Section 48(A), it provides for an
enquiry by the Tribunal. It is clear originally the Tribunal
was not conferred any power to amend the application in
Form No.7. Noticing the difficulty expressed in the
implementation of the Act in particular having regard
to the fact that most of the tenants were illiterate and
had to depend on others for filling Form No.7 where it
is possible a mistake would creep in insofar as
survey number or the extent is concerned, by
28
way of amendment to Sub-Section(3) of Section 48A
power was conferred on the Tribunal to permit the tenant
to amend the application for valid and sufficient
reasons. Therefore, after the amendment of the aforesaid
provision, it is possible to amend Form No.7. The said
amendment application has to be necessarily filed before
the application for amendment is disposed of or
adjudicated or decided one way or the other. Once the
application in Form No.7 is disposed of by an order the
question of filing an application in a matter which is not
before the Tribunal would not arise. In fact, in the
corresponding provision in the Civil Procedure Code
namely Order VI Rule 7 the word used is “at any stage of
the proceedings” which is conspicuously missing in Sub-
Section(3) of Section 48A. It is because the order passed
by the Tribunal is final and no appeal is provided.
Though at some point of time an Appellate Authority
was constituted and appeal was provided for it was
abolished. Therefore, the order passed by the Tribunal
attains finality. Therefore, it necessary follows
29
if there is any mistake either in the survey number or
in the extent claimed or in the mentioning of the village
or any other particulars, though the applicant is
permitted to seek for an amendment that amendment
has to be necessarily filed before the application is
disposed of on merits. After the order is passed the
provisions of Sub-Section(6) provides for clerical and
arithmetical mistakes being carried out by the Tribunal
on an application filed by the parties. Therefore, what
can be corrected is an arithmetical mistake in the order
not in the application. Whatever may be the correction
so effected it cannot change the final order passed by
the Tribunal. Therefore, corrections are permitted in
the order of the Tribunal only insofar as it pertains to
survey number or extent or any such similar matters.
Under the guise of exercising power to correct any clerical
or arithmetical mistake in the order the mistake in the
application in Form No.7 cannot be corrected. The
second proviso provides for exercising of suo-moto
power by the Tribunal or on the application by the
30
parties to correct the extent of land after causing actual
measurement and after giving an opportunity of being
heard to the concerned parties. Therefore, under the
scheme the applicant has a right to seek amendment of
errors in Form No.7 before an order is passed on Form
No.7. After the order is passed if they are clerical or
arithmetical mistakes in the order, again he may make
an application for correcting such error in the order.
The suo moto power conferred on the Tribunal to
correct the extent of land is only after survey and after
hearing the parties. In all the judgments relied on either
the application for amendment was filed during the
pendency of the matter before the Tribunal or they were
filed in the High Court when the order passed by the
Tribunal was challenged. In none of those cases, the
application for amendment was filed before the Tribunal
after the Tribunal disposed of Form No.7. Therefore, the
said judgments have no application to the facts of
this case. Therefore, the Tribunal as well as the
learned Single Judge were not justified in permitting
31
such amendment and virtually the Land Reforms
Tribunal has rewritten the order and annulled the order
which was earlier passed, which is patently illegal and
requires to be set aside.
13. Even on merits we have carefully gone through
the material on record as this technical defect should not
defeat the valuable right conferred on the tiller of the
land under the Act. From the material on record it is
clear that it is their specific case in the affidavit filed in
support of the application for amendment that the land
in question is a Inam land-Shanbogi service land. The
land was regranted in favour of the holder of the village
office on 30.10.1981. Admittedly, the applicant is
claiming tenancy rights in the said land from 1973-74.
When this land was attached to the village office the said
land vested with the Government with the passing of the
Karnataka Village Officers Abolition Act, 1961 in the
year 1962. After the vesting of the land, the holder of
the village office could not have granted any tenancy
32
and even if any tenancy is created it is not valid in the
eye of law. Therefore, as on 1.3.1974 the land did not
vest with the Government under the Land Reforms Act
as it had already vested with the passing of the
aforesaid Act in the year 1962. If the tenancy is
created for the first time in the year 1973-74 it is well
settled while deciding the claims under the Land
Reforms Act, it has to be shown that the tenant was in
possession of the land as a tenant atleast three years
prior to 1.3.1974. On his own saying he was not
cultivating the land prior to 1.3.1974. It is obvious that
an attempt is made to claim occupancy rights under
the Land Reforms Act by filing an application in Form
No.7 to which the applicant was not entitled to. In that
view of the matter, even equity is not in his favour.
14. Therefore, we pass the following:-
ORDER
The appeal is allowed. The order
passed by the learned Single Judge as
well as the order passed by the Land
33
Reforms Tribunal granting occupancy
rights in favour of the applicant are
hereby set aside. The application filed for
amendment is dismissed.
The parties to bear their own costs.
SD/- JUDGE
SD/- JUDGE
sh, *alb/-