advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, August 11, 2016

whether an application for amendment of Form 7 could be entertained after 30th June, 1979. This Court answered the issue in the affirmative but again the question whether an amendment could be made in the application in Form 7 after the decision of the Tribunal was not the subject matter of discussion.= This was clearly impermissible and was an attempt to do so something in an indirect manner which could not have been done by him directly.= In our opinion, the Tribunal having adjudicated upon the application, it could only correct clerical or arithmetical errors as permitted by Section 48-A of the Act. The amendment sought by Narayanappa was not in the nature of a clerical or arithmetical errorWhat he sought was not only a change in the survey number but also a change in the village and also a change in the area of the land for which occupancy rights were claimed. This was clearly beyond the ambit of a clerical or arithmetical error. That apart, the order of the Tribunal passed on 24th April, 1981 had attained finality since Narayanappa did not challenge its correctness before any forum. Therefore, the proposed amendment sought by Narayanappa was not in the nature of an amendment to the original application in Form 7 but a fresh claim made by him for a different parcel of land after the cut- off date of 30th June, 1979. In other words Narayanappa sought to circumvent the provisions of the Act by making a fresh claim after the cut- off date by styling it as an amendment to the original application in Form -This was clearly impermissible and was an attempt to do so something in an indirect manner which could not have been done by him directly

                                                                  REPORTABLE
                         IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO. 7343  OF 2016
                (Arising out of S.L.P.(C) No. 18550 of 2013)
Narayanappa (D) By Lrs.                        .…Appellants
 Versus
B.S. Ramaswamy (D) By Lrs. & Ors.        ….Respondents

                               J U D G M E N T
Madan B. Lokur, J.
Leave granted.
2.  The question in this appeal is whether the High  Court  was  correct  in
holding  that  the  appellant  Narayanappa   (represented   by   his   legal
representatives) was not entitled to claim occupancy rights in the  land  in
question under of the provisions of the Karnataka Land  Reforms  Act,  1961.
In our opinion, the question is required to be answered in the  affirmative,
and we do so.
3.  On the enactment of the Karnataka Land Reforms  Act,  1961  (hereinafter
referred to as ‘the Act’) all tenanted lands on the appointed date  that  is
1st March, 1974 vested with the State Government free of  all  encumbrances.
However, tenants in possession of land on the appointed date  were  entitled
to seek registration of their  occupancy  rights  over  the  land  in  their
possession.  The Land Reforms  Tribunal  (hereinafter  ‘the  Tribunal’)  was
constituted to look into such claims, the last date  for  filing  the  claim
being 30th June, 1979.
4.  On 31st December, 1974 the appellant Narayanappa (now deceased)  claimed
occupancy right by filing an application in Form 7 under the Karnataka  Land
Reforms Rules, 1974 and invoking the provisions of Section 48-A of the  Act.
 In the application, Narayanappa claimed  occupancy  rights  in  respect  of
land  bearing  Survey  No.  93  measuring  4  acres  20  guntas  in  village
Chalamakunte in Devanahalli taluka.  In the application/Form  the  landlords
were shown to be H. Kempaiah and B.S. Ramaswamy.
5.  When Ramaswamy received notice of  the  application  from  the  Tribunal
with regard to the claim made by Narayanappa, he made an endorsement on  the
notice that he is not the  owner  of  the  land  and  therefore  he  has  no
interest in it.
6.  When the application was heard by the Tribunal, Narayanappa’s claim  was
verified and it was held that since he was not  a  tenant  in  the  land  in
question but was a kathedar, the question of granting  occupancy  rights  in
his favour did not arise.  Accordingly, the  Tribunal  passed  an  order  on
24th April, 1981 rejecting the  application/Form  7  filed  by  Narayanappa.
The impugned judgment and order passed by the High Court  records  that  the
order dated 24th April, 1981 was not challenged and has  attained  finality.

7.  On 5th February, 1982  well  after  the  cut-off  date  for  filing  the
application/Form  claiming  occupancy  rights,  Narayanappa  moved  for   an
amendment in Form  7.   Through  the  proposed  amendment,  he  now  claimed
occupancy  rights  in  Survey  No.  134  in  hamlet   Yediyur   in   village
Mahadevakodigehalli in Devanahalli taluka.  According to Narayanappa he  was
illiterate, the Form had  been filled up by someone on his behalf and  since
he was not able to understand its contents, a bona fide error had been  made
in not making a claim at the appropriate time in respect of Survey No.  134.
 At this stage, it may be mentioned that the claim made  by  Narayanappa  in
respect of Survey No. 93 was for  4  acres  20  guntas  of  land  while  the
proposed amendment in respect of Survey No. 134 was for 8 acres 01 gunta  of
land.
8.  When Ramaswamy  came  to  know  of  the  proposed  amendment  sought  in
Narayanappa’s application, he raised an objection  but  by  an  order  dated
20th August, 1982 the Tribunal accepted  the  application  and  thereby  the
proposed amendment, while rejecting the objections raised by Ramaswamy.
9.  Feeling aggrieved by the order passed by the Tribunal  Ramaswamy  (Dead)
by Lrs. preferred a writ petition in the Karnataka  High  Court  being  W.P.
No. 30929 of 2001  (KLRA).   The  learned  Single  Judge  hearing  the  writ
petition dismissed it by a judgment and order dated 18th  June,  2009.   The
learned Single Judge relied primarily on the provisions of  sub-Section  (3)
of Section 48-A of the Act to the effect that the Tribunal was empowered  to
permit an amendment in the application filed in Form 7.  It  was  held  that
the Tribunal was not only entitled to permit the amendment but  in  view  of
sub-Section (6) it was empowered to  suo  motu  rectify  any  error  in  the
application.
10. The relevant extract of Section 48-A of the Act reads as follows:-
“48-A. Enquiry by the Tribunal, etc. –  (1)  Every  person  entitled  to  be
registered as an occupant under Section 45 may make an  application  to  the
Tribunal in this behalf.  Every such application shall, save as provided  in
this Act, be made before the expiry of a period of six months from the  date
of the commencement of Section 1 of the Karnataka Land  Reforms  (Amendment)
Act, 1978.
(2)xxx xxx xxx
(3) The form of the application, the form of  the  notices,  the  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 permit the tenant to amend the application.
(4)   xxx xxx xxx
(5)    xxx xxx xxx
(5-A)  xxx xxx xxx
(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:
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:
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.
(7) xxx xxx xxx
(8)  xxx xxx xxx

11. Feeling aggrieved, Ramaswamy preferred  Writ  Appeal  No.  469  of  2010
(KLRA) before the Division Bench  of  the  Karnataka  High  Court.   By  the
impugned judgment and order dated 7th November, 2012  the  writ  appeal  was
allowed by the High Court. Feeling aggrieved, Narayanappa (now deceased  and
represented by his legal representatives) has preferred the present appeal.
12. In allowing the writ appeal, the High Court took into consideration  the
provisions of Section 48-A  of  the  Act  as  well  as  the  second  proviso
inserted in sub-Section (6) of Section 48-A  of  the  Act  which  came  into
force on 20th October, 1995 and which was  apparently  relied  upon  by  the
learned Single Judge without any specific reference to it.
13. Be that as it may, the High Court  considered  several  decisions  cited
before it and held that an  amendment  application  has  necessarily  to  be
filed before the Tribunal adjudicates on the application.  It was held  that
once the application in Form 7 is disposed of by the Tribunal, the  question
of its amendment would not arise since there was no application  before  the
Tribunal.  It was further held, on a reading of Section  48-A  of  the  Act,
that the Tribunal could rectify clerical or  arithmetical  mistakes  in  its
order but  that  thereafter  it  could  not  make  any  corrections  in  the
application in Form 7.
14. With reference to the various decisions cited before it, the High  Court
concluded that they relied  on  a  proposed  amendment  to  the  application
during the pendency of the proceedings before the  Tribunal.   As  such  the
cited  decisions  were  not  applicable  to   the   facts   of   the   case.
Consequently, the Division Bench of the High Court allowed the  writ  appeal
and set aside the order passed by the learned Single Judge as  well  as  the
order passed by the Land Reforms Tribunal.
15. Learned counsel for Narayanappa  was  not  able  to  cite  any  decision
before  us  to  the  effect  that  an  application  for  amendment  of   the
application in Form7 could be moved by a claimant after the disposal of  the
application by the Tribunal.   However,  reference  was  made  to  Hanumappa
(Dead) by Lrs. v. Seethabai & Ors.[1] wherein  an  amendment  in  the  order
passed by the Tribunal was permitted by this Court even though there  was  a
lapse of about 11 years in moving the application for amendment.
16. In that decision, instead of granting occupancy  rights  in  respect  of
Survey No. 45, the Tribunal had  granted  occupancy  rights  in  respect  of
Survey No. 54.  This Court held that this  was  an  obvious  clerical  error
that needed to be corrected.  Clearly, that decision has no  application  to
the facts of the present appeal.
17. Reference was also made by learned counsel for Narayanappa  to  Honnamma
& Ors.  v.  Nanjundaiah  &  Ors.[2]  to  contend  that  an  application  for
amendment of Form  7  was  permissible.   With  the  assistance  of  learned
counsel we have gone through the decision and find that  the  question  that
arose was whether the Tribunal could permit an amendment  of  Form  7  after
the  cut-off  date  of  30th  June,  1979  the  last  date  for  filing  the
application under Form 7.  This Court held that it was permissible to  amend
the application in Form 7 even after the cut-off date. The issue whether  an
amendment could be carried out in the application after the decision of  the
Tribunal was not under consideration  in  this  Court.  The  cited  decision
therefore does not render any assistance to Narayanappa.
18. Reference was also made to Syed Beary (Dead) By  Lrs.  v.  Dennis  Lewis
(Dead) by Lrs. & Ors.[3] where the same issue had arisen namely  whether  an
application for amendment of Form 7 could be entertained  after  30th  June,
1979.  This Court answered the  issue  in  the  affirmative  but  again  the
question whether an amendment could be made in the  application  in  Form  7
after  the  decision  of  the  Tribunal  was  not  the  subject  matter   of
discussion.
19. In our opinion, the Tribunal having adjudicated  upon  the  application,
it could only correct  clerical  or  arithmetical  errors  as  permitted  by
Section 48-A of the Act.  The amendment sought by  Narayanappa  was  not  in
the nature of a clerical or arithmetical error.   What  he  sought  was  not
only a change in the survey number but also a  change  in  the  village  and
also a change in the area of  the  land  for  which  occupancy  rights  were
claimed.  This was clearly beyond the ambit of a  clerical  or  arithmetical
error.  That apart, the order of the Tribunal passed  on  24th  April,  1981
had attained finality since Narayanappa did not  challenge  its  correctness
before any forum. Therefore, the proposed amendment  sought  by  Narayanappa
was not in the nature of an amendment to the original application in Form  7
but a fresh claim made by him for a different parcel of land after the  cut-
off date  of  30th  June,  1979.   In  other  words  Narayanappa  sought  to
circumvent the provisions of the Act by making a fresh claim after the  cut-
off date by styling it as an amendment to the original application  in  Form
7.  This was clearly impermissible and was an attempt to do so something  in
an indirect manner which could not have been done by him directly.
20. In view of the above, we find no reason to interfere with  the  judgment
and order passed by the Division Bench of the  High  Court  and  accordingly
dismiss the appeal.


                                        ……....………………….J

  (Madan B. Lokur)



                                                       ……….………………….J     New
Delhi;                                        (R.K. Agrawal)
August 8, 2016




-----------------------
[1]  Civil Appeal No.1737 of 1999 decided on 28th July, 2004.
[2]  (2008) 12 SCC 338
[3]  (2007) 15 SCC 629

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.