M. KRISHNAPPA v. STATE OF KARNATAKA — 1980 DIGILAW 99 (KAR)

( 1 ) THIS writ petition is listed under 'b' group. The 3rd respondent Shantha; shetty who is the only contesting respondent is represented by her advocate Shrl B. V. Acharya. ( 2 ) THIS petition under Art. 226 and 227 of the Constitution is directed against the order da,ted 28-2-1979, a true copy of which is at Annexure-A, disr missing the claim application filed by the petitioner Krishnappa in Form-7 under S. 48a (1) of the Karnataka land Reforms Act, 1961 (for short the 'act') for being registered as an occupant in respect of 34 cents of land comprised in S. No. 63 of Kodialbail locality in Mangalore Town of Daksh- ina Kannada District, which will be hereinafter referred to as the 'suit land'. ( 3 ) IT is necessary to set out the relevant facts for proper appreciation of the rival contentions urged' on either side. ( 4 ) THE petitioner made an application in Form-7, a copy of which is at Annexure-B, claiming occupancy in respect of the suit land on 6-5-1976. The 3rd respondent contested the claim. The 2nd respondent-Land Tribunal, mangalore, rejected the application as per its order dated 28-2-1979 at Annexure-A on the ground that the petitioner was a monthly tenant in respect of the building in his possession, not a tenant of the coconut trees standing in the compound, a beedi contracter by profession and not a 'tenant' within the meaning of the act. It is this order that is under challenge in this writ petition. ( 5 ) SHRI S. R. Nayak, learned Advocate for the petitioner challenged the validity of the order impugned on three grounds and prayed for issue of rule; (1) that it is not a speaking order, there is no adjudication of the real disputes between the parties and it suffers from an error of law apparent on the face of the records, (2) that the tribunal did not conduct the enquiry in accordance with law and violated the rules of natural justice and (3) that there was contravention of subsection (8) of Sec. 48 of the Act inasmuch as the tribunal allowed a legal prctitioner to represent the 3rd respondent at the enquiry. ( 6 ) SHRI B. V. Acharya, learned advocate appearing for the 3rd respondent challenged the correctness of the grounds urged on behalf of the petitioner and maintained, that the order of the tribunal is legally sustainable, that there are no grounds to issue rule and that the writ petition is liable to be dismissed in limine. ( 7 ) THE short point that arises for determination at this stage will bq whether there is any ground to issue rule? ( 8 ) A perusal of the impugned order annexure-A would go to show that the tribunal, after conducting an enquiry, rejected the claim of the petitioner holding that he was a monthly tenant of the building, not a tenant of the coconut trees standing in the, compound, a beedi contractor and not a 'tenant' within the meaning of the act entitled to be registered as an occupant in respect of the suit land. ( 9 ) THE facts about which there is no dispute are: that the suit land is situated within the municipal limits of Mangalore Town measuring 34 cents, assessed to tax by the. Municipality consisting of a substantial storeyed building, a, portion of which is in the possession of the petitioner a,s a residential premises on a monthly rent of Rs. 20, that another portion of the same building is retained by the 3rd respondent lor her use and the remaining substantial portion of the building is tenanted by another tenant by name padmanabhachar on, a monthly rent of rs. 100, that there are latrines in, the suit land which are used by the tenants, that there are 31 coconut trees and 4 coconut plants and a few other fruit- bearing trees, that the coconut trees and other fruit-bearing trees were planted by the owners, that the trees were standing in the compound scattered all around the building, that the petitioner was a hotel-worker till 1974 and now a beedi contractor, that there are two paddy fields right in front of the building belonging to the 3rd respondent and which are in her possession:; that the suit land is not cultivated by use of plough and apart from the coconut trees and other fruit- bearing trees, there is no other type of cultivation on the suit land. ( 10 ) THE points that are in dispute between the parties are these: According to the petitioner, he became a tenant in respect of the residential house in the year 1956 and that of the garden in the year 1968. His further case is that he had planted four coconut plants. The 3rd respondent disputes this part of case of the petitioner. ( 11 ) ASSUMING all that the petitioner had stated about the lease-hold is correct, the question for consideration will be, whether the decision of the tribunal is erroneous and unsustainable as contended for the petitioner. The short and simple answer to this qusetion, in my opinion, will be in the negative. ( 12 ) THERE is no dispute between the parties that the petitioner is a tenant under the 3rd respondent. According to petitioner, he is a tenant, not only in respect of the residential premises in his possession but also the compound with coconut trees and other fruit- bearing -trees standing thereon. As against this, it is the case of the 3rd respondent that the suit land is a, house-site, situate in the heart of mangalore City, that the petitioner is only a monthly tenant in respect of a portion of the building and the compound with the fruit-bearing trees including the coconut trees was not leased out to him. Her case is that there was no relationship of landlord and, tenant between her and the petitioner in respect of the suit land within the meaning of the Act and that the lease in favour of the petitioner was not in respect of an agricultural land but only in respect of a, premises, for residential purpose. Thus, from the respective contentions of the parties, it is obvious that the dispute is only with regard to the nature of the leasehold premises under dispute. In determining the dominant character of the premises i. e. , whether agricultural or non-agricultural, np one factor is decisive and the cumulative effect of all the factors should be considered. Dealing with this question, a Division, Bench of this Courts has held in Vanajakshi v. Land, Tribunal udupi ( (1979) 1 Kar. L. J. 412.) as follows:"in determining the dominant character of the premises i. e. , whether agricutural or non-agricutural no one factor is decisive and the cumulative effect of all factors should be considered. Dealing with this question, a Division, Bench of this Courts has held in Vanajakshi v. Land, Tribunal udupi ( (1979) 1 Kar. L. J. 412.) as follows:"in determining the dominant character of the premises i. e. , whether agricutural or non-agricutural no one factor is decisive and the cumulative effect of all factors should be considered. Having regard to the circumstances tha,t the premises are situate within the municipal limits, that they are assessed to municipal ta,x, that the tenancy is monthly and not annual, tha,t the rent is also monthly and not annual and that the tenant is not an agriculturist by profession, the conclusion of the tribunal that the premises are non-agricultural, cannot be said to be erroneous and much less manifestly erroneous, so as to call for interference by this Court under article 226 of the Constitution, All that was stated in the aforesaid report of the Commissioner was about the existence of a, well, a pump, a pump-house, a cement storage tank and the trees in the premises. The existence of a well, a pump, a pump-house and a, storage tank are not inconsistent with the premises being a residential house with a compound appurtenant to it. It is not unusual to find residential houses with extensive compounds having a number of fruit bearing trees. It is not unusual to instal electric pumps and storage tanks for watering trees and plants in compounds of such houses. The number of trees in the premises in question, is not so large as to regard the same as an agricultural garden land. Especially in Dakshina kannada District most houses in towns are surrounded by coconut trees and other fruit-bearing trees and will have kitchen gardens. The resport of the, Commissioner even if it had been taken into account by the tribunal, could not have materially affected its decision. "if we apply the ratio of the above decision to the facts of Ihe case, both disputed and undisputed taken as a whole and assuming all that the petitioner has stated about the lease-hold and the 3rd respondent collecting a little extra rent from the petitioner towards the collection of the usufructs from the trees by him, either in kind or in, cash or both is correct, the only legitimate inference that could be drawn is that the suit land is not an agricultural premises. In that view of the matter, 1 am inclined to hold that the order impugned cannot be said to be erroneous and much less manifestly erroneous so as to call for interference by this Court under Arts 226 and 227 of the Constitution, ( 13 ) THE first contention urged by shri S. R. Nayak was that the order impugned is not a speaking order, that there was no adjudication of the real disputes between the parties and tha,t the order suffers froim an error of law on the face of the record. In support of his contention,, he placed reliance on 9 decision of the Supreme Court in siemens Engineering and manufacturing co. , v. Union of India ( AIR 1976 SC. 1785 . ). He drew my attention to Head-Note (B) of the decision which reads thus:"it is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi- judicial order must be supported by reasons. The rule requiring reasons to be given in support of an order is. like the principle of audi alter am partem, a basic principle of natural justice which must inform every quasi- judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law". ( 14 ) THE tribunal had referred to the evidence adduced by the parties, both oral and documentary, and also the observation made during the local inspection of the suit land. Having regard to the admitted facts, no detailed discussion of the evidence was necessary to decide the, question whether the petitioner was a tenant in respect of the suit land within the, meaning of the act. However, the tribunal has recorded its reasons in support of the order passed by- it rejecting the claim of the petitioner for being registered as an oecupant on the ground that he was a monthly tenant in respect of the residential house, a beedi contractor by profession and not a 'tenant' within the meaning of the Act. In that view of the matter, the ruling of the Supreme court referred above will not help the petitioner to sustain his first contention. In that view of the matter, the ruling of the Supreme court referred above will not help the petitioner to sustain his first contention. ( 15 ) THE second contention that the tribunal did not conduct the enquiry in accordance; with law and violated the rules of natural justice is based on, the allegation tha,t the statement of the husband of the 3rd respondent was recorded by a clerk (whose' name was not known to the petitioner) attached to the office of the 2nd respondent land Tribunal in an adjoining room and in the absence of the Chairman and Members of the Land Tribunal as well as the petitioner: This allegation, was not found in the original writ petition which was filed on 10-1-1980. It was introduced by means of an amendment application I. A. No. I dated 28-2-1980 which was allowed on 4-3-1980. ( 16 ) IT was the contention of Shri B. V. Acharya, learned counsel appearing for the 3rd respondent that this allegation was an after-thought purely imaginative and concocted. There is not much force in this contention. ( 17 ) IN the original writ petition a,ll that was stated on this aspect of the case was, that the petitioner was not allowed to cross-examine the husband of the 3rd respondent. The evidence of the husband of the 3rd respondent was recorded on 28-2-1979 as could be seen from the certified copy of his evidence produced by the petitioner at the time of hearing. On the same day, the statement of the petitioner was also recorded. This is also borne out by the certified copy of his deposition proh duced by the petitioner. The statement of the husband of the 3rd respondent was recorded by the Chairman as could be seen from the certified copy of the deposition. The 3rd respondent in her objection statement to I. A. I, has categorically denied the allegation that the statement of the husband of the 3rd respondent was recorded by 3 clerk attached to the office of the 2nd' respondent in an adjoining room in the absence of the Chairman, Members of the Tribunal and the petitioner. As stated above, on 28-2-1979, the state ment of the petitioner and also that of the husband of the 3rd respondent was recorded by the tribunal. It is not the case of the petitioner that his statement was not recorded by the tribunal. As stated above, on 28-2-1979, the state ment of the petitioner and also that of the husband of the 3rd respondent was recorded by the tribunal. It is not the case of the petitioner that his statement was not recorded by the tribunal. If his statement was recorded by the tribunal on'28-2-1979, I find no reason as to why the statement of the husband of the 3rd respondent was directed to be recorded by a clerk in an adjoining room in the absence of the chairman, Members of the Tribunal and the petitioner on the same day i. e. , on 28-2-197,9. Further, no such allegation was made by the petitioner in the first instance in his writ petition. All that he complained about the evidence of the husband of the 3rd respondent was that he was not allowed to cross- examine the husband of the 3rd respondent when his statement was recorded on 28-2-1979. All these circumstances persuade me to conclude that the allegation that the statement of the husband of the 3rd respondent was recorded by a clerk attached to the office of the 2nd respondent-Land tribunal in an adjoining room and in the absence of the Chairman, Members of the Tribunal and the petitioner is an after-thought. ( 18 ) AS regards the allegation that the petitioner was not allowed to cross- examine the husband of the 3rd respondent, i find no support from the material produced in the case at the time of the argument. It is not the case of the petitioner's counsel that the records of the proceedings of Hie tribunal would show that the petitioner was not allowed to cross-examin the husband of the 3rd respondent. The fact that there was no cross-examination of the husband of the 3rd respondent, by itself would not support the plea that the petitioner was not allowed to cross- examine him. Even the petitioner was not cross-examined as could be seen from the certified copy of his evidence recorded by the tribunal on 28-2-1979. On a consideration of all the relevant circumstances and the material produced before me, I am inclined to hold that there is'no force in the second contention as well. Even the petitioner was not cross-examined as could be seen from the certified copy of his evidence recorded by the tribunal on 28-2-1979. On a consideration of all the relevant circumstances and the material produced before me, I am inclined to hold that there is'no force in the second contention as well. ( 19 ) NOW coming to the 3rd and the last contention, it is an admitted fact that 3rd respondent was represented at the enquiry by her husband who is a practising advocate of this court. The question that arises for consideration will be whether the tribunal has committed any breach of Section 48 (8) of the Act by allowing the husband of the 3rd respondent to take part in the proceedings before it. ( 20 ) THE scope and object of the Act is to lay down a uniform law in the state ' of Karnataka relating to agrarian relations, conferment of ownership on tenants, ceiling on land- holdings and for certain other matters appearing therein. The husband of the 3rd respondent is a Member of the 'family' of the 3rd respondent within the meaning of clause (12) of subsection (A) of Section 2 of the Act. Section 45 of the Act provides for the tenant to be registered as occupant of land on certain conditions. 'tenant' is defined under clause (34) of subsection (A) of Sec. 2 and means an agriculturist who cultivates personally the land he holds on lease from a landlord and includes any of the persons mentioned in sub-clauses (i) to (iv) thereunder. Clause (11) of sub-section (A) of Section 2 provides that if the land held by a tenant is cultivated by the labour of any member of his family' or by hired-labour or by servants on wages payable in cash or kind under the personal supervision of any member of his family, the same would constitute' personal cultivation' of the land by the tenant himself. Section 4 of the Act provides that a person lawfully cultivating any land belonging to another person of his own family would not become a 'deemed tenant' in respect of such land under the latter. Under clause (7) of sub-section (A) of Section 2, it is provided that 'ceiling aera' means the extent of the land which a person or family is entitled to hold under Section 63. Under clause (7) of sub-section (A) of Section 2, it is provided that 'ceiling aera' means the extent of the land which a person or family is entitled to hold under Section 63. Section 48a (1) provides that every person entitled to be registered as an occupant under Section 45 may make an application to the tribunal within the time allowed therein for being registered as an occupant in respect of the land he holds as a tenant. Sub- section (2) provides for publishing a public notice calling upon the landlord and all other persons having an interest in the land to appear before the tribunal on the date specified in the notice. It further provides for issue of individual notices to the persons mentioned in the application and also to such others as may appear to the tribunal to be interested in the land. ( 21 ) FROM a reading of these provisions, it is clear that either in the matter of conferment of ownership on tenants or determining the land holdings within the ceiling area, the family as defined under the Act is treated as a unit or a nucleus. Against this background, i shall read Section 48 (8) of the Act. "48 (8): No legal practioner shall be allowed to appear in any proceedings before the tribunal". This provision places a bar against the legal practitioners to appear in any proceedings belore the tribunal. The question that arises for consideration will be whether Section 48 (8) would place any embargo against one member to represent another member of the family in the proceedings before the tribunal, if he happens to be legal practitioner by profession. ( 22 ) THE scope of su-section (8) of section 48 of the Act came up for consideration before this Court in K. Srinivasa Char v. Land Tribunal ( (1976) 1 Kar. LJ. 13 ). In that case, the petitioner was the owner of two lands bearing S. Nos. 82 and 891a of Harapanahalli village, respondent-2 applied to the Land Tribunal constituted under section 48 of the Act requesting it to declare that he was a tenant in possession of the said lands and that he was entitled to be registered as an occupant. In that case, the petitioner was the owner of two lands bearing S. Nos. 82 and 891a of Harapanahalli village, respondent-2 applied to the Land Tribunal constituted under section 48 of the Act requesting it to declare that he was a tenant in possession of the said lands and that he was entitled to be registered as an occupant. Pursuant to the said application, notice was issued by the Tribunal to the petitioner under Section 48a (2) of the Act to show cause as to why action should not be taken on the application made by respondent-2. At the hearing of the case before the tribunal, one Mr. B: P. Advocate by profession filed a power of attorney executed by the petitioner before the tribunal and requested the tribunal to permit him to act as an agent of the petitioner in that case. The tribunal declined to entertain the power of attorney of the petitioner and to permit him to take part in the enquiry as an agent of the petitioner. The Tribunal was of the opinion that sub-section (8) of Sec. 48 of the Act prohibited the legal practitioners from appearing before the tribunal and conducting the cases on behalf of the litigants even though they may be his friends armed with the power of attorney executed by them. The petitioner filed the writ petition questioning the correctness of the order of the tribunal and sought for the issue of a direction to the tribunal to permit Mr. B. P. , Advocate, to conduct the case before it on his behalf in his capacity as an agent. Rejecting the petition filed by the petitioner, venkataramiah, J. as he then was following the decision of the Bombay high Court in alembic Chemical Works ltd. , v. VYAS ( (1954) 2 L. L. J. 148.) observed:"it is clear from the observations of the Bombay High Court extracted above that the Tribunal should determine whether the party who has executed a power of attorney in favour of a legal practitioner is trying to' circumvent the legal bar imposed by sub-section (8) of Sec. 48 or not in a case like this. The question whether a party has tried to circumvent the law or not in such a case is a question of fact and it is not liable to be interfered with in a petition under Art. 226 of the Constitution. The question whether a party has tried to circumvent the law or not in such a case is a question of fact and it is not liable to be interfered with in a petition under Art. 226 of the Constitution. In this case, the Tribunal does not find that there was any genuine need to execute the power of attorney. "this decision, in my opinion would not support the contention urged by Shri s. R. Nayak that the bar imposed under sub-section (8) of Section 48 against the legal practitioners to appear in any proceedings before the tribunal is an absolute bar, irrespective of the fact whether the legal practioner is a member of the 'family' of the litigant within the meaning of the Act. This is clear from the observation of tendolkar, J. in Alembic Chemical work's case (4), quoted with approval by Venkataramiah J. in support of his decision in Srini. vasachar's case (1976 (1) Karl. J. 13) which reads thus:"therefore, it appears to me that if an officer of any trade union who is referred to in Sec. 36 (1) as qualified to represent a workman or an officer of an association of employers who is qualified to represent an employer under sub-section (2) or an officer or Director of a corporation through whom a Corporation is entitled to be represented by the procedure governing the Tribunal happens to be a legal practitioner, that fact by itself cannot disqualify him from appearing before the Tribunal. But this presupposes that such an officer is a regular officer either of the Trade Union or the Association or in the case of an officer of a Corporation a regula,r officer of the Corporation, and in the case of a Director that he is a bonafide Director not elected a Director merely for the purposes of enabling him to appear in- a pending proceeding before a Tribunal. In other words, if a legal practitioner is transformed into an officer of a registered trade Union or of an association of employers or of a corporation or is appointed a Director of a Corporation, in order to get over the disability imposed on a legal practitioner representing a parly, then such a person shall not be allowed to appear and represent a party. But short of an intention to circumvent the provisions: of Sec. 36 (4), if a legal practitioner is ordinarily a regular officer either of a Trade Union or an Association of employers referred to in Section 36 (1) and (2) or of a Corporation or if he is a Director bona fide appointed as a Director, T see nothing in sub-section (4) to prevent his appearing on behalf of the party merely by reason of the fact that he happens to be a legal practitioner". ( 23 ) IN the case on hand, it is not the contention of Shri S. R. Nayak that the husband of the 3rd respondent is disabled to appear before the tribunal but for his profession as legal practitioner. His contention is that since he happens to be a legal practitioner by profession, he is disabled or prevented from appearing for the 3rd respondent in the proceedings before the tribunal on account of the embargo contained in sub-section (8) of Section 48 of the Act. ( 24 ) AS stated earlier, there is no dispute in this case that the 3rd Respt. was represented in the proceedings before the tribunal by her husband in whose favour she executed a power of attorney. The tribunal entertained the power of attorney and allowed the husband of the 3rd respondent to appear on her behalf in the proceedings before it. The petitioner has averred in his amended writ petition that he represented to the Chairman and member of the, Land Tribunal that the husband of the 3rd respondent should not be allowed to participate in the proceedings as he is an advocate. In the first place, there is no material to show that the petitioner did raise any objection against the appearance of the husband of the 3rd respondent in the proceedings before the tribunal. He did not make any such allegation in his writ pttition as presented originally. He has introduced an allegation to that effect later, only by way of an amendment of the petition. Assuming that he did raise an objection against the appearance of the husband of the third respondent in the proceedings before the tribunal, the fact that the tribunal accepted the power of attorney and allowed the husband of the 3rd respondent to appear in the proceedings would go to show that his objection was not entertained by the tribunal. Assuming that he did raise an objection against the appearance of the husband of the third respondent in the proceedings before the tribunal, the fact that the tribunal accepted the power of attorney and allowed the husband of the 3rd respondent to appear in the proceedings would go to show that his objection was not entertained by the tribunal. In other words, the tribunal did not feel that the execution of the power of at torney by the 3rd respondent in favour of her husband was to circumvent the law as enacted under sub-sec. (8) of S. 48 of the Act. The question whether a party has tried to circumvent the law or not in such a case is a question of fact as laid down by this Court in Srini- vasachar's case (1976 (1) Kar. L. J. 13) and this court would not interfere with such a finding in a petition under arts. 226 and 227 of the Constitution- ( 25 ) EVEN otherwise, it seems to me tha,t sub-sec. (8) of S. 48 would not be a bar against the husband of the 3rd respondent to appear on behalf of the 3rd respondent in the proceedings before the tribunal. The bar against the legal practitioner to appear in the proceed- inge before the tribuntal enacted under sub-sec. (8) of S. 48 is a bar against a legal practitioner to fepresent a client in the normal course or in prosecution of his legal profession. As laid down in srinivasachar case (1976 1 Kar. L. J. 13), if a litigant makes an attempt by executing a power of attorney in favour of a legal practitioner to circumvent the legal bar imposed by sub-section (8) of Section 48, then, of course it is for the, tribunal to prevept such an attempt or device on the part of the litigant and refuse audience to. the power of attorney-holder-legal practitioner. However, it cannot be contended that under the Act, there is any prohibition against any member tr represent another member of his family in a proceeding before the tribunal much less a husband representing his wife or vice-versa, especially when the 'family' as defiined under the Act is taken as a unit or nucleus either in the matter of conferring occupancy or in fixing the 'family-holding' within the ceiling area. Every member is interested in the land belonging to the other member of his family and as such there is no bar for him or her to appear on behalf of the other, even if he or she; is a legal practitioner in any proceeding before, the tribunal. Sub-sec. (8) of Septum 48 shall have to be construed, in a just and reasonable manner lest it should lead to absurd results. If sub-section (8) of Section 48 is construed as laying down an absolute bar a,gainst the legal practitioners as a class to appear in any proceeding before the tribunal as contended by shri S. R. Nayak, then such a construction, in my opinion would lead to absurd results inasmuch as the same would render a bar even against a landlord or any other person interested in the suit land if he happens to be a legal practitioner to appear in the proceeding before the tribunal in pursuance of the publication of the; public notice or issuance of the individual notice as provided under sub-section (2) of Section 48a of the Act on an application made by a person entitled to be registered as an occupant under Section 45 for being registered as an occupant in respect of the said land. That would be equally applicable in the case of a person entitled to be registered as an occupant under Section 45 and makes an application to the tribunal in that behalf, to appear before the tribunal and plead his own, cause if he happens to be a legal practitioner. The legislature in my opinion, would not have intended to bring such a result by enacting sub-section (8) of Section, 48 of the Act. On a proper construction of sub-section (8) of Section 48, I am inclined to hold that the bar imposed against the legal practitioner to appear in any proceedings before the tribunal is in its normal sense, that is, to prevent a legal practitioner from appearing in any proceedings before the tribunal on behalf of his client in prosecution of his legal profession in whatever form. The legal bar under subsection (8) cannot be extended against a member to represent the other member of his family in the proceedings before the tribunal even if he happens to be a legal practitioner, since he is not appearing on behalf of the other member of the family in prosecution of his legal profession, but as a member of the family inter- ested in the subject matter of the dispute of which the other member is the owner. Hence, this contention also deserves to be rejected. ( 26 ) ON a careful consideration of the whole matter in all its aspects, I am. inclined to hold that there is no ground to issue rule in this case. Accordingly, the, writ petition is dismissed. However, in the circumstances of the case, I direct the parties to bear their own costs. --- *** --- .