KALYANAMMA v. STATE OF KARNATAKA — 1979 DIGILAW 181 (KAR)

N. R. KUDOOR, J. ( 1 ) THE validity of the order dated 12. 9. 1977, a true cppy of which is at exhibit-G, passed by the 2nd respondent land Tribunal, Magadi, granting tht application made by Honnamma (3rd respondent) for registration, of occupancy is challenged by Kalyananma (the petitioner) who claims to be the owner of all the items of land except Sy. No. 31 situate in Sankegbarta kaval of Magadi Taluk over which occupancy was granted in favour of 3rd respondent, in this Writ petition. ( 2 ) THE matter arises in this way: the 3rd respondant made an application in Form No. 7 on 31. 12. 1974 as required under Section 48a (1) of the karnataka Land Reforms Act, 1961 (for short 'the Act') claiming occupancy in respect of 2 items of land Sy. Nos. 30 and 31 in Sankeghatta Kaval and 4 items of land Sy. Nos. 8913, 90, 88/10 and 88/2 in Hullenahalli Village of Magadi Taluk. She did not show the petitioner as her landlord in the application. Instead she mentioned her own name in the landlord's column. However the petitioner appeared before the Tribunal and contested the claim of the 3rd respondent. The Tribunal passed the order Exhibit-G granting the application made by the 3rd respondent. Hence this writ, petition by the petitioner. ( 3 ) SRI R. Anantharaman, the learned advocate for the petitioner, in the course of his Argument pointed out two infirmities among others to assail the impugned order. They are,: - (1) the enquiry conducted by the tribunal was not in accordance with law; and (2) that all the members of the Tribunal who took part m the proceeding and sal as members of the Tribunal in deciding the case, have not signed the order in token oi their approval of the order to be issued and also with the reasons given. ( 4 ) I shall proceed to consider these two points in the order in which they are formulated. ( 5 ) AS regards the, first point, Sri anantaraman contended for the petitioner that the Tribunal, did not follow the procedure in conducting the enquiry as specified for the summary enquiry under Section 34 of the Karnataka Land Revenue? act, 1964. ( 5 ) AS regards the, first point, Sri anantaraman contended for the petitioner that the Tribunal, did not follow the procedure in conducting the enquiry as specified for the summary enquiry under Section 34 of the Karnataka Land Revenue? act, 1964. Elaborating this contention further, he pointed out that the Tribunal did not record the summary of the evidence of many of the witnesses produced by the petitioner, that the tribunal recorded the combined statement of some of the witnesses and that the summary of the, evidence, was not recored by 'the Tribunal. ( 6 ) FOR proper appreciation of this contention, reference will have to be made to the provisions of law bearing upon this question. Sec. 48a of the Act deals with the enquiry by the Tribunal on an application made by a claimant far registration of occupancy. Sub-Section (5) of Sec. 48a lays down that when an objection is filed disputing the validity of the applicant's claim, or setting up a rival claim, the tribunal shall determine the person entitled to be registered as occupant after holding an enquiry and pass orders accordingly. Rule 17 of the Karnataka Land reforms Rules, 1974 (for short 'the rules) stipulates that the Tribunal shall in respect of applications made to it, follow the same procedure as specified for a summary enquiry under sec. 34 of the Karnataka Land revenue Act, 1964 subject to the condition that the record of the proceedings shall be maintained in a language understood by all its members. Section 34 of the Karnataka Land revenue Act, 1964 provides that the officer conducting the enquiry shall himself as such enquiry proceedes record in his own hand, the summary of the evidence. ( 7 ) THE Tribunal empowered to conduct the enquiry under Sec. 48a of the Act is the one constituted under sec. 48. As per Sec. 48, the Tribunal would consist of 5 members including the Chairman. However a quorum is fixed for every meeting of the Tribunal under Rule 16 which provides that 101 every meeting of the Tribunal a least 3 members, including the chairman shall be present. ( 8 ) FROM a bare reading of these provisions, it is manifest that the authority empowered to hold an enquiry on an application made by a claim under Sec. 48a (1) of the Act is the tribunal consisting of more, than one member. ( 8 ) FROM a bare reading of these provisions, it is manifest that the authority empowered to hold an enquiry on an application made by a claim under Sec. 48a (1) of the Act is the tribunal consisting of more, than one member. The modeof enquiry prescribed is the summary enquiry as specified under Sec. 34 of the karnataka Land Revenue Act. Sec. 34 of the Karnataka Land Revenue Act, stipulates thai m a summary enquiry the officer conducting the enquiry shall himself as such enquiry proceed , record in his own hand the summary of the evidence. Thus it is obvious from Sec. 34 that in the summary enquiry as provided therein, the officer conducting the enquiry shall record the summary of the evidence of the witnesses examined, that the summary of the evidence shall be recorded as the enquiry proceeds i. e. , to say as and when ench witness is examine and the recording of the summary of the evidence is by the officer conducting the enquiry in his own hand. When the authority prescribed for conducting the enquiry consists of more than one member as in he present case which is the tribunal, it follows that in, order to comply with the provisions of Sec. 34 of the Karnataka, Lapd Reforms act the summary of the evidence shall have to be recorded either by the Chairman or by any of the members of the Tribunal who is present and takes part in the meeting of the Tribunal and in h,is own hand ami by no other. This view I take is supported by a decision of this Court in Govind Rao v. The Land Tribunal, shakaripura, W. P. No. 5933/75. dt. 1-12-76 the records of the proceedings of the tribunal must show that the Tribunal has complied with S. 34 in recording the evidence adduced by the parties before it in the course of the enquiry. The provisions made in S. 34 of the karnataka Land Revenue Act that the summary of the evidence of the witnesess shall be recorded by the officer conducting the enquiry "in his own hand" is not without any significance. The provisions made in S. 34 of the karnataka Land Revenue Act that the summary of the evidence of the witnesess shall be recorded by the officer conducting the enquiry "in his own hand" is not without any significance. The importance of the provision, that the recording of the summary of the evidence by the officer conducting the enquiry in his own hand is discernible from S. 34 itself, as what is required to be recorded is only the "summary" of the evidence of the witness, as the enquiry proceeds and not a verbatim statement made by the witness. Thus it is clear to my mind that in a summary enquiry as specified in S. 34 of the Karnataka Land Revenue act, it is mandatory for the Tribunal to examine each witness separately and record separately the summary of the evidence of each witness and that the recording of the summary of the evidence must be either by the chairman or by any member of the tribunal present and taking part in the meeting of the Tribunal in his own hand. Recording of combined statement of the witnesses, is outside the scope of S. 34 of the Karnataka Land revenue Act. Similarly, the Tribunal cannot delegate the power of recording the summary of the evidence to any outside agency including any member of its staff. As regards the recording of the summary of the evidence of each witness separately, the same can be shown by the Tribunal by recording the summary of the evidence of each witness separately. So far as the second aspect that the recording of the summary of the evidence by the officer conducting the enquiry in his own hand, can be shown if the person who records the summary of the evidence he be the Chairman or any member of the Tribunal, makes a note on the summary of the evidence itself that it was recorded by him, under his signature. In the absence , of such a note, it is not possible to make out as to who has recorded the summary of the evidence and whether it is in his own hand. In the absence , of such a note, it is not possible to make out as to who has recorded the summary of the evidence and whether it is in his own hand. Even though S. 34 in terms does not say that the person who records the summary of the evidence should make a note, under his signature that it was recorded by him in his own hand, there can be no other way to show that S. 34 on this aspect has been complied with unless the summary of the evidence recorded by thei Tribunal leaves a, mark that it was recorded either by the Chairman or any member of the Tribunal in his own hand under his signature. So it seems to me that it is obligatory on the, part of the person who records the summary of the evidence to leave a 'note' on the recorded summary of the evidence to that effect under his signature. ( 9 ) IN the light of the above discussion, let me now examine the procedure followed by the Tribunal in the case on hand. The Tribunal has referred in its order Ext.-G that 13 witnesses produced by the respondent have been examined on 1-10-1975. However, it is strange to note that the statement of none of these 13 witnesses was recorded by the Tribunal as required under S. 34 of the land Revenue Act. Instead of recording the summary Of the evidence of these witnesses, a note was made by the Tribunal in the order sheet dated 1-10-1975 that all the, 13 witnesses produced by the respondent (petitioner herein) seated that the applicant (the 3rd respondent herein) and her late husband, were only the coolies for the land applied for grant. This is in clear violation of one of the mandates of S. 34 of the Karnataka Land Revenue Act. ( 10 ) FURTHER, we see from the records that 3 witnesses were examined on behalf of the 3rd respondent on 28-6-1977. The Tribunal adopted a curious procedure in recording their evidence. Instead of examining these 3 witnesses separately, and recording the summary of the evidence of each of them, the Tribunal recorded a combined statement of all these 3 witnesses. This is in clear violation of one other mandate ofs. 34 of the Karnataka Land revenue Act (See Sanna Karibasappa v. Mudegowda, (1878) 2 Kar. LJ. 26. Instead of examining these 3 witnesses separately, and recording the summary of the evidence of each of them, the Tribunal recorded a combined statement of all these 3 witnesses. This is in clear violation of one other mandate ofs. 34 of the Karnataka Land revenue Act (See Sanna Karibasappa v. Mudegowda, (1878) 2 Kar. LJ. 26. ( 11 ) IN Addition to these, the records of the Tribunal do not show that the summary of the evidence of the, witnesses was recorded either by the chairman or by any member of the tribunal in his own hand. Both in the combined statement of the 3 witnesses recorded by the Tribunal On 28-6-1977 referred above and also the statement of the petitioner recorded on the same day, we find a note at the foot of the summary of the evidence in English "before me" with a signature below it. The Tribunal appears to have examined and recorded the evidence of the petitioner once again on 5-9-1977 on which it placed reliance to reject the contention of the petitioner. After obtaining the signature of the petitioner on her evidence recorded on 5-9-1977, we find a note in English "before the land Tribunal Magadi" and below that note all the members including the chairman have signed. These documents do not show that the statements of the witnesses and the parties were either recorded by the Chairman or by any member of the Tribunal in his own hand as required under S. 34 of the Land Revenue Act. It seems to me that whoever records the summary of the evidence as required under S. 31 of the Land Revenue Act, either he be the Chairmen or any member of the Tribunal, has to have a note on the recorded evidence that it was recorded by him in his own hand for the purpose of due compliance of S. 34. For the aforementioned reasons, i am inclined to hold that the Tribunal has not complied with S. 34 of the karnataka Land Revenue Act in conducting the enquiry. ( 12 ) THIS takes me to the second contention urged on behalf of the petitioner. The original records of the proceedings before the Tribunal would show that on 12-9-1977 the date on which the impugned order was pronounced all the 5 members of the Tribunal including the Chairman were present. ( 12 ) THIS takes me to the second contention urged on behalf of the petitioner. The original records of the proceedings before the Tribunal would show that on 12-9-1977 the date on which the impugned order was pronounced all the 5 members of the Tribunal including the Chairman were present. They were N. Venkatanarasimhia, the Chairman of the. Tribunal and K. G. Channappa. , M. L. A. , bylavenkatappa, Thimmappa, and T. D. Maranna, the members of the tribunal. The deision of the tribunal contained in the impugned order was not dictated in the open Court on 12-9-1977. The order in question was prepared by dictation to the Typist, the typescript being edited by the Tribunal and pronounced in the open Cqurt on 12-9-1977. The order also makes a reference to the presence of all the 5 members including the Chairman at its preamble portion. It further stipulates that the decision rendered in the order was an un-animous decision of all the members present. However the order in question was signed by the Chairman and 3 other members. One of the members t D. Maranna who was present on 12-9-1977 when the decision was pronounced did not subsicribe his signature to the order though it mentions that it was the unanimous decision of all the members present. ( 13 ) THE scheme of the Act provides that it is the Tribunal constituted under s. 48 of the Act that is empowered under the Act to decide the question of conferring occupancy on an application presented to it by a claimant under s. 48a (1) of the Act. Hqwever Rule 16 provides for a quorum consisting of a lesser number of the members Of the tribunal to conduct the meeting of the Tribunal. It prescribes at least the presence of 3 members including the chairman as the quorum for conducting the meetings of the Tribunal. There is no provision in the Act empowering any member of the Tribunal ox the Chairman of the Tribunal to render a decision and pronounce the same on behalf of the Tribunal. It prescribes at least the presence of 3 members including the chairman as the quorum for conducting the meetings of the Tribunal. There is no provision in the Act empowering any member of the Tribunal ox the Chairman of the Tribunal to render a decision and pronounce the same on behalf of the Tribunal. In the absence of any provision to the contrary, a Tribunal consisting of more than one member, could pronounce the decision only when all the members of the Tribunal or in a given case all the numbers of the Tribunal who constituted the quorum and took part in the meeting subscribe thgir signature to the decision rendered by them in token of their approval of the same. If the decision of the Tribunal is by majority, even then the order to be issued by the tribunal, should contain the majority as well as the minority view and all the members who were present and took part in rendering the decision should sign the order in taken of their approval of the same. If a decision on the face of it shows that it is an unanimous decision of all the members who were present at the meeting, and does not show that it is signed by all those members, in token of their approval of the same, it is difficult to hold that it is an unanimous decision of all the members including that of the member or members who have not subscribed their signature in token of his or their approval of the same. The view that I take on this point gains support from the pronouncement of this Court in koragamma v. Coandapur Land Tribunal, (1978) 1 Kar LJ. 14 and Bangarappa Gowda v. The Land Tribunal, Sorab, WP 1741 76 dt. 9. 6. 1977. In that view of the matter, I am inclined to hold that the impugned order is not a valid order as it was not signed by T. D. Maranna one of the members of the tribunal who was present in the meeting of the Tribunal at which the impugned order was made. ( 14 ) THE conclusions reached by me on the two points discussed above are sufficient to dispose of the matter under consideration. Hence, I deem it unnecessary to traverse the other contentions canvassed on either side. ( 14 ) THE conclusions reached by me on the two points discussed above are sufficient to dispose of the matter under consideration. Hence, I deem it unnecessary to traverse the other contentions canvassed on either side. ( 15 ) IN the result for the reasons stated supra the rule is made absolute. The impugned order Ext.-G is quashed. The matter is remitted to the Tribunal for fresh disposal in accordance with law in the light of the observations contained in the body of the order, after giving opportunity to both parties to adduce evidence and also to raise all the pleas that are open to them. ( 16 ) IN the circumstances of the case, I direct each party to bear his own costs. --- *** --- .