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1975 DIGILAW 133 (KAR)

VENKANNA v. FAKIRAPPA

1975-09-02

VENKATACHALAIAH

body1975
( 1 ) THE dispute involved in this writ petition relates to a land bearing Sy. No. 51 (old) 63 (new) situated in Hosahajli village, Koppal Taluk. The said land originally belonged to one Hanumanthappa son of Amateppa mulimani. The petitioner purchased it in the year 1965. Tt had been leased in favour of the first respondent and he was in possession of it. The petitioner claiming to be the purchaser of the land dispossessed the first respondent in 1967. The first respondent filed an application before the Land tribunal, Koppal in 1968 stating that he had been dispossessed by the petitioner illegally and praying that the Tribunal might direct redelivery of the land to him. The said application was made under S. 41 of the Karnataka land Reforms Act (hereinafter referred to as the 'act') as it stood then. The Land Tribunal rejected his application by its order dated 30-3-1972. The appeal filed by the first respondent against that order before the district Judge, Raichur, was dismissed on 20-9-1972. Against the order of the district Judge, the first respondent preferred a revision petition before this court in C. R. P. 265 of 1973. The said revision petition was allowed by this court on 4th January, 1974. By that order, the High Coturt declared that the 1st respondent was a tenant of the land when he was forcibly dispossessed and directed the petitioner to put the first respondent in possession of it. Against that order, the petitioner filed a Special Leave Petition under Art. 136 of the Constitution before the Supreme Court in S. L. P. (Civil) No. 755 of 1974. That petition was allowed to be withdrawn and dismissed by the supreme Court on 18-12-1974. Thereafter, on 5-3-1975 the first respondent applied to the Deputy Commissioner, Raichur, to execute the order passed by this Court and to put him in possession of the land in question. The deputy Commissinoer forwarded the application to the Tahsildar, Koppal, for necessary action. The Tahsildar registered the said application and proceeded to take action. On 5-3-1975 the first respondent made an application directly to the Tahsildar under S. 116 (2) of the Act to execute the order passed by the High Court and to put him in. possession of the property. ( 2 ) SEC. The Tahsildar registered the said application and proceeded to take action. On 5-3-1975 the first respondent made an application directly to the Tahsildar under S. 116 (2) of the Act to execute the order passed by the High Court and to put him in. possession of the property. ( 2 ) SEC. 116 (2) of the Act reads as follows : "an order of the Tribunal or other authority awarding possession or restoring the possession or use of any land shall be executed in the same manner as an order passed by a Revenue Officer under the mysore Land Revenue Act, 1964. " ( 3 ) IN this writ petition the petitioner has questioned the order of the deputy Commissioner forwarding the application to the Tahsildar and the action taken by the Tahsildar on the application made by the first respondent on 5-3-1975. ( 4 ) IN support of the writ petition, Sri K. S. Desai, learned counsel for the petitioner, contended that on the coming into force of the Karnataka land Reforms (Amendment) Act I of 1974 the order passed by the High court became inexecutable. Reliance was placed by the learned Counsel for the petitioner on sub-sec (3) of Sec. 91 of the Act I of 1974. It reads as follows:" (3) All applications or proceedings other than those referred tq in sub-sec. (2) which are required to be decided or disposed of by the tahsildar or the Tribunal specified in the principal Act as amended by this Act- (a) pending before any Munsiff Court immediately before the date of commencement of this Act shall with effect from that date stand transferred to the Tahsildar or the Tribunal, as the case may be and shall be disposed of by him or it as if they had been instituted or commenced before him or it; (b) having been disposed of by the Munsiff Court, are pending in appeal or revision, such appeal or revision shall abate without prejudice to the question involved in the applications or proceedings giving rist to such appeal or revision, being commenced afresh before the Tahsildar or the Tribunal as the case may be, as if the amendments made by this Act to the principal Act were in force at the time the right for making such applications or commencing such proceedings accrued. "the above sub-sec. "the above sub-sec. (3) of S. 91 was introduced by the Karnataka Land reforms (Second Amendment and Miscellaneous Provisions) Act, 1974, karnataka Act No. 31 of 1974 in substitution of the original sub-sec. (3) of s. 91 of the Karnataka Act No. I of 1974. ( 5 ) SUB-SEC. (3) of S. 91 which was in force when the first respondent made his application before the Tahsildar does not state that all orders and decrees which had been made prior to the coming into force of the Act I of 1974 would become void and unenforceable. It only provides that where any proceedings other than those referred in S. 91 (2) are pending before any munsiff they shall stand transferred to the Tahsildar or the Tribunal as the case may be as required by clause (a) of S. 91 (3) and where having been disposed of by the Munsiff are pending in appeal cr revision such appeal or revision shall abate without prejudice to the question involved being agitated before the Tahsildar or the Tribunal again as stated in clause (b) of S. 91 (3 ). The appeal and revision referred to in Cl (b) are those before the District Judge and the High Court as the case may be. In the instant case no appeal or revision was pending before the District Judge or High court on 3-8-1974 on which date Act 31 of 1974 is deemed to have come into force. ( 6 ) THE petitioner cannot derive any assistance from the decision of this Court in Kadappa Parappa v. Bademiyahasanmiya, 1975 1 Karlj. 369. in support of his contention that the orders already passed by the High Court in revision could not be enforced under S. 116 (2) of the Act. That decision was rendered in a revision petition pending before the High Court. According to that decision, the effect of S. 91 (3) as substituted by Act. 31 of 1974 is that all applications and proceedings other than those falling under sub-sec. That decision was rendered in a revision petition pending before the High Court. According to that decision, the effect of S. 91 (3) as substituted by Act. 31 of 1974 is that all applications and proceedings other than those falling under sub-sec. (2) of s. 91 pending before any Munsiff Court immediately before the date ot commencement of the amendment Act stand transferred to the Tahsildar or the Tribunal as the case may be, and where matters have been disposed of by the Munsiff Court which are pending in appeal or revision such appeal or revision shall abate without prejudice to the question involved in the applications or proceedings giving rise to such appeal or revision, being commenced afresh before the Tahsildar or the Tribunal as the case may be, as if the amendments made by this Act to the Principal Act were in force at the time the right for making such applications or commencing such proceedings accrued. Since the revision petition had been disposed of by this, court on 4-1-1974, there was no pending proceeding before the High Court which could abate. S. 91 (3) does not in any way invalidate the orders which had become final. It only deals with proceedings pending before the Munsiff and the District Judge and in the High Court in revision but not under arts. 226 and 227 of the Constitution. ( 7 ) IT was however contended that the special leave petition under Art. 136 of the Constitution was pending before the Supreme Court on the relevant date and by reason of S. 91 (3) (b) it had to be held that the proceedings pending before the Supreme Court also abated. It is difficult to subscribe to the above view for the following reasons. First, what was pending before the Supreme Court was not an appeal but only a petition for special leave to appeal under Art. 136. Secondly the State Legislature could not pass any law which would affect the jurisdiction of the Supreme Court under Art. 136 of the Constitution. It cannot make a law declaring that a matter pending before the Supreme Court under Art. 136 should be treated as having abated. Secondly the State Legislature could not pass any law which would affect the jurisdiction of the Supreme Court under Art. 136 of the Constitution. It cannot make a law declaring that a matter pending before the Supreme Court under Art. 136 should be treated as having abated. It is beyond its legislative competence to do so since under entry 65 of List II of the Seventh schedule of the Constitution the State legislature can make a law affecting the jurisdiction and powers of ail courts except the Supreme Court, with respect to any of the matters in that List. The Supreme Court by its order dated 18-12-1974 permitted the petitioner to withdraw the petition. If really the petition had abated the question of permitting the petitioner to withdraw the petition would not have arisen. Hence, there is no substance in the contention urged on behalf of the petitioner that by reason of pendency of a special leave petition before the Supreme Court, the entire proceedings commencing with the proceedings instituted before the Land Tribunal and ending with the proceedings before the Supreme Court under Art. 136 would becume void and inoperative. It is therefore rejected. I hold that the order passed by this court in C. R. P. 265 of 1973 on 4-1-1974 remains unaffected and is still enforceable under S. 116 (2 ). ( 8 ) SUB-SECTION (2) of S. 91 of Act 1 of 1974 to which also my attention was drawn by the Counsel for the petitioner is not applicable to this case as it only refers to applications for resumption made by landlords. ( 9 ) IT was next contended by Sri K. S. Desai, that before taking action under S. 116 (2) of the Act, the Tahsildar has to follow the prescribed procedure. I have no doubt that the Tahsildar before dispossessing the petitioner would follow the appropriate procedure. Hence no direction need be issued in this regard. ( 10 ) IT was lastly argued on behalf of the petitioner that the proceedings before the Tahsildar under S. 116 (2) of the Act cannot be continued by the first resppondent because he has made an application under S. 48a of the Act before the Land Tribunal for treating him as the occupant of the land in question. There is very little substance in this contention also. There is very little substance in this contention also. The purposes of S. 116 (2) and S. 48a are entirely different. S. 116 (2) is intended for the execution of the orders passed by any authority under the Act and s. 48a is intended for determining whether the person is a tenant entitled to be registered as an occupant. ( 11 ) IN the result, this writ petition fails and is dismissed with costs. Advocate's fee Rs. 100. --- *** --- .