SANJIVI ALIAS LAXMI AMMA v. STATE OF KARNATAKA — 1975 DIGILAW 89 (KAR)

( 1 ) SRI Chandrakantaraj Urs, learned High Court Govt Advocate prayed for an adjournment of this appeal and the connected appeal on the ground that he has not received instructions from the Govt. On 9-6-1975, he was told to get ready for hearing within two weeks as the question raised in his appeal is a pure question of law and thq matter is one of public importance concerning a larger number of cases now pending before the Tribunals constituted under the Karnatkaa Land Reforms Act, 1961 (hereinafter called 'the Act' ). This Court has the power of guperintendence by virtue of Art. 227 of the Constn, over all Tribunals constituted under the Act. If the procedure followed by the Tribunals which has been challenged before us, is not corrected at the earliest opportunity, it may drive thousands of pepple to approach this Court for relief under Arts. 226 and 227 of the Constn. Hence we refused the prayer for adjournment of the hearing of this appeal and the connected appeal. This appeal is directed against the order of Jagannatha Shetty, J. dt. 7th April, 1975, made in WP. 1583 of 1975 by which the learned Single judge rejected the writ petition at the preliminary hearing stage. . ( 2 ) IN order to appreciate the contentions urged on either side, it is necessary to briefly set out the relevant facts: The appellant Sanjivi alias laxmi Amma is the! widow of one Subbayya Prabhu. The third respondent appanna Sheregare claims that he is a tenant in respect of about 24 acres of agricultural lands in Sullia taluk in the Dist of S. Kanara. On coming into force of the Karnataka Land Reforms Act, 1961, as amended by Act I of 1974, the third respondent under S. 45 of the Act made an application before the Land Tribunal fox registering him as an occupant of the said lands, particulars of which were given in his application made to the Tribunal On receipt of the said application, the) Tribunal (2nd respondent) issued a notices to the appellant in Form 9 read with Rule 19 (1) and Sec. 48a (2) of the Act. We may mention that the notice states that it is under Rule 9 (11) which is clearly an error. The relevant Rule is rule 19 (1 ). The notice reads thus : ( 3 ) WP. We may mention that the notice states that it is under Rule 9 (11) which is clearly an error. The relevant Rule is rule 19 (1 ). The notice reads thus : ( 3 ) WP. 1583 of 1975 came up for preliminary hearing before Jaga- nnatha Shetty, J. and it was urged by the Counsel for the writ petitioner that the notice issued by the Tribunal has proceeded on the assumption that the lands mentioned in ,the Schedule have vested in the State Govt under S. 44 (l) of the Act and what the Tribunal has to determine is the person entitled to be registered as an occupant of the said lands under s. 45. The oase, of the appellant is that the third respondent is not cultivating the lands; on the other hand, the lands are in the personal cultivation of the appellant and her sons who are members of a joint Hindu family. The learned Single Judge rejected the writ partition on the ground that it is open to the appellant to appear before the Tribunal and contend that the lands have not vested in the State Govt and the application made by the third respondent was not maintainable and therefore it is too premature to consider the contentions of the petitioner Jagannatha Shetty, J. observed in the course of this order that the impugned notice assumes that the lands in respept of which the third respondent has made the application have vested in the State Govt under S. 44 (l) of the Act. The learned judge also observed that such a conclusion could not be the conclusion of the Tribunal as no enquiry had been held by the Tribunal. It. is necessary to set qut the material portion of the order of Jagannatha Sheitty, J. It reads : it has to he stated that respondent 3 has already filed an application under S. 45 of the Act before the Tribunal that he should be registered as an occupant of the lands. On that application, the Tribunal has issued the notice, relevant portion of which I have set out earlier. It is true that the notice reads that the lands in respect of which respondent 3 has made a claim are vested in the State Govt under S. 44 (l) of the Act. But that cannot be the conclusion of the tribunal. On that application, the Tribunal has issued the notice, relevant portion of which I have set out earlier. It is true that the notice reads that the lands in respect of which respondent 3 has made a claim are vested in the State Govt under S. 44 (l) of the Act. But that cannot be the conclusion of the tribunal. No enquiry has been done hither to by the Tribunal. It is open to the petitoner to appear before the Tribunal and contend that the lands are not vested in thq State Govt and the application made by respondent 3 was not maintainable. It is too premature to consider the the contention of the petitioner. ( 4 ) AGGRIEVED by the order of the learned Single Judge, the writ petitioner has preferred this appeal. ( 5 ) THE question for decision in this appeal is whether the learned single Judge was right in the view he has taken that the writ petition is too premature to consider the contentions of the petitioner when he has taken the view that on a perusal of the notice issued by the Tribunal, it proceeds as if the lands in respect of which the third respondent has made a claim have vested in the State Govt under S. 44 (l) of the Act. ( 6 ) BEFORE us it was not contended by Sri Chandrakantharaj Urs, learned High Court Govt Advocate, that the Tribunal has already decided that the third respondent is a tenant of the lands mentioned in the notice in Form 9. Sri Urs submitted that the view taken by the learned Single judge that the writ petition is too premature is correct and that it is open to the writ petitioner to contend before the Tribunal that the third respondent is not a tenant of the lands and that the, appellant and the members of her family are cultivating the lands personally. He further submitted that any such decision arrived at by the Tribunal can be challenged before this Court and therefora we should not interfere at this stage. ( 7 ) THE relevant provisions of the Act which we must notice are Ss. 44, 45, 48a and 112b of the Act. The relevant Rue is Rule 19 and Forms 7, 8 and 9. ( 7 ) THE relevant provisions of the Act which we must notice are Ss. 44, 45, 48a and 112b of the Act. The relevant Rue is Rule 19 and Forms 7, 8 and 9. ( 8 ) UNDER the scheme of the Act, all lands held by or in the possession of the tenants immediately prior to the date of commencement of the amendment Act, other than lands held by them under leases permitted under Sec. 5, shall stand transferred to and vast in the State Govt with effect from 1-3-1974 (Vide S. 44 (l ). S. 45 provides for registration of tenants as occupants of land held by them as tenants. Sub-sec (l) of S. 45 states that subject to the provisions of the succeeding sections of Chap. III every person who was a tenant shall be entitled to be registered as an occupant in respect of the lands of which he was a tenant before the date of vesting and which he has bean cultivating personally. Thus S. 45 provides for registration of applicants as occupants in respect of the lands of which they were cultivating personally as tenants. S. 48a provides for enquiry by the Tribunal on receipt of an application made under Sec. 45. Sub-sec (2) of S. 48a states that on receipt of the application, the Tribunal shall publish or cause to be published a public notice, in the village in which, the land is situated calling upon the landlord and the tenant to appear before it on the date specified in the, notice and also issue individual notices to the persons mentioned in the application and to such others as mayappear to it to be interested in the land. Sub-sec (3) states that 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 by rules. Sub-section (4) states that where no objection is filed, the Tribunal may, after such verification as it considers necessary, by order, either grant or reject the application. Sub- sec (5) states that where an objection is filed disputing the validity of the applicant's claim or setting up a rival claim, the Tribunal shall after enquiry determine, by order, the person entitled to be registered as occupant and pass orders accordingly. Sub- sec (5) states that where an objection is filed disputing the validity of the applicant's claim or setting up a rival claim, the Tribunal shall after enquiry determine, by order, the person entitled to be registered as occupant and pass orders accordingly. According to sub-sec (6) the order of the Tribunal under S. 48a is final. Rule 19 provides that the application under sub- sec (1) of S. 48a shall be in Form 7 and that the applicant shall furnish particulars of all the lands held under each separate tenancy in one or more than one Taluk in respect of which the applicant claims to, be entitled to he registred as an occupant. It also pravides that the, Tahsildar, on receipt of the application shall verify the particulars mentioned in the application with reference to the entries in the Record of Rights after getting the concerned registers himself and also note the same on the application. The public notice and the individual notice referred to in sub-sec (2) of S. 48a shall be in Forms 8 and 9 respectively. The application in Form 7 requires the applicant to state the particulars regarding the situation of the lands, their survey and sub division numbers as also the areas and assessment and the period for which the applicant has been cultivating the lands as tenant. The Form does not require the applicant to produce, any document in support of the application. The Public Notice which is prescribed shall be in Form 8. Form 8 reads : whereas the lands mentioned below have vested in the State government under S. 44 (l) of the Act and whereas the Tribunal has to determine the person who, is entitled to be registered as an occupant of the, said lands under S. 45. Now, therefore, notice is hereby given to,- (a) all tenants entitled to be registered as occupants under S. 45; (b) all landlords of such lands and all other persons interested in such land; to appear before the Tribunal on. . . . . . . . with documentary evidence, if any, in support of their claim. " we have set out the notice issued under Form 9. Now both Forms 8 and 9 notices proceed from a stage subsequent to the determination of the question whether the. lands claimed by a particular applicant have vested in the State Govt. . . . . . . . with documentary evidence, if any, in support of their claim. " we have set out the notice issued under Form 9. Now both Forms 8 and 9 notices proceed from a stage subsequent to the determination of the question whether the. lands claimed by a particular applicant have vested in the State Govt. The enquiry contemplated as per the Public Notice as also the Individual Notice is limited to the determination of the question as to which of the applicants is entitled to be registered as an occupant. It is relevant to state that there may be several cases where more than one person is claiming to be tenant. ( 9 ) THE Tribunal being a creature of the statute, its powers are limited by the Statute. Since Ss. 44, 45 and 48a provide for registration of tenants as occupants of glands which have vested in the State Govt as on 1 -3-1974, it is essential that the Tribunal, at the very threshold of the enquiry, must determine whether the lands have vested in the State Govt under S. 44 (l) of the Act. The Rules made under the Act have not made any provision for such an adjudication. The Forms prescribed are only meant to determine the person to be registered as an occupant. The Rules and Forms prescribed thereunder have not provided for any procedure to be followed to determine whether the lands claimed by an applicant have vested in the state Govt or not. Sri Chandrakantharaj Urs, learned High Court Govt advocate strenuously contended that the Tahsildar who is required to verify the application made by the alleged tenant has to make a note whether the record of Rights show that the lands are in the possession of tenants and if there are. such Record of Rights the presumption is that the entry in the Record of Rights is correct and the Tribunal is entitled to presume that such lands have vested in the State Government. ( 10 ) IN our judgment there can be no presumption that the lands shown by an applicant in his application made to the Tribunal have vested in the state Govt. ( 10 ) IN our judgment there can be no presumption that the lands shown by an applicant in his application made to the Tribunal have vested in the state Govt. It is common knowledge, that in the Dist of S. Kanara which formed partt of the State of Madras, there were no Record of Rights register maintained and the Record of Rights prepared recently have not become final after publication and calling for objections. It is also common knowledge that the largest number of applications for registration as occupants are from S. Kanara. The appellant has stated in her writ petition that the third respondent has claimed to be a tenant in respect of agricultural lands measuring about 24 acres, that the Tahsildar after making enquiries regarding the lands in question has made an order and that both sides being not satisfied with that order have appealed to the Asst Commr, and the matter is still pending before him. Sri B. V. Acharya, learned Counsel for the appellant, stated before us that white the claim of the third respondent is in respect cf 24 acres of agricultural lands, the Tahsildar has held that the third respondent is a tenant only in respect of 4 acres and therefore both sides have preferred appeals. Under these circumstances, the Record of rights in the instant case can be of no assistance to either party since the dispute is pending in appeal before the higher Revenue Authorities. ( 11 ) WHEN there is no material before the Tribunal to come to a prima facie conclusion that the lands are in the possession of the applicant, no presumption can be drawn that the lands have vested in the State Govt under S. 44 (l ). In view of the Forms prescribed under the Rules by which the Tribunal is bound, the Tribunal cannot issue any notice other than a notice in Forms 8 and 9. When there is dispute between the, owner of the land and a person claiming to be a tenant regarding the alleged tenancy set up, that question should be decided at the very threshold of the enquiry before 'taking up the question of registration of the tenants as occupants. What lands have vested in the State under S. 44 (l) is a matter vitally affecting the property rights of the, land owners. The! What lands have vested in the State under S. 44 (l) is a matter vitally affecting the property rights of the, land owners. The! determination of the question whether a person is a tenant or no,t will depend upon evidence which has to be recorded by the Tribunal and the deicision most rest on the evidence on record. The decision of the Tribunal cannot be final ag its decision op this jurisdictional issue is liable to be corrected by this Court under Arts. 226 and 2. 27 of the Constn. If there were no Rules and Forms had not been prescribed, the Tribunal could have evolved its own procedure. But, in the instant case, the Tribunal's hands are bound by rules and the Forms prescribed. As the Rules new stand, the Tribunal cannot determine as to what lands have vested in the State under S. 44 (l ). The Tribunal can eonsidetr the application for registration under S. 45 only sfter it decides that the lands in dispute have vested in the State under s. 44 (l ). The stage at which the Tribunals should issue notices in Forms 8 and 9 is only after it has been decided that the lands have vested in the state Govt under S. 44 (l ). The landlord may not be interested in the registration of the occupant under S. 45 once there is an adjudication that the lands have vested in the State Govt. What he is interested is in the question whether the particular lands belonging to him have vested in the state under S. 44 (l ). The person or persons claiming to be tenants are; also interested in the adjudication of that question. In the instant case, the impugned notice in Form 9 stales that,the lands shewn in the Schedule, have vested in the State Gcvt. It was not, disputed before us by the learned high Court Govt Advocate, tha,t there has been no adjudication on that question. What the Tribunal has done is to put the cart before the horse. This error vitiates the entire proceedings and it is an error touching the jurisdiction of the Tribunal. Such an error cannot remain uncorrected by this Court. What the Tribunal has done is to put the cart before the horse. This error vitiates the entire proceedings and it is an error touching the jurisdiction of the Tribunal. Such an error cannot remain uncorrected by this Court. ( 12 ) THEREFORE, we allow this appeal and issue a writ in the nature of mandamus directing the second respondent Tribunal to recall the impugned notice in Form 9 as also the public notice in Form 8, and further to forbear from registering the third respondent as occupant until the question whether the lands claimed by him have vested in the State under S. 44 (l) of the Act is decided. The question of registration under Sec. 45 shall be taken up only thereafter. Parties to bear their own costs in this appeal. Ordered accordingly. --- *** --- .