M. RAMAKRISHNA RAO, J. ( 1 ) RESPONDENT-1 claiming to be a tenant in respect of Sy. No. 43/2b2 measuring 80 cents and Sy. No. 46/2 measuring 26 cents and another Sy. No. 46/1 indicate in Alike village, Bantwal Tlk. filed an application in Form-7 seeking occupancy right under S. 48a of the Kanataka land Reforms Act, 1961 (herein aftir called the Act ). The Land Tribunal having held an enquiry passed the impugned order, Annexure-K, dated 10. 2. 1981 granting occupancy right in favour of respondent-1 in respect of the first two survey numbers mentioned above. Aggrieved by the said order, the petitioner, land-owner, has approched this Court for relief. A few facts that are necessary for the disposal of the writ petition. are as follows. ( 2 ) IT is not in dispute that originally the lands in question were held by one jinnappa Gowda s o Kariya Gowda, on lease. It is allgeed in the writ petition that the said Jinnappa Gowda was a, chronic defaulter and, therefore, O. S. No. 504 of 1964 was filed against him in the Court of the Munsiff, Puttur, for the recovery of rents. That suit came to be decreed. Subsequently however Jinnapagowda filed an application under S. 25 of the Act in the Court of the Munsiff, as that court had the powers to deal with it prior to the amendment of 1974. In that application, the applicant Jinnappagowda sought permission to surrender the lands held by him in favour of the landowner as he was unable to manage the lands paying rents. The court by an order dt. 5. 3. 1968, Annexure- A, allowed the application permitting the applicant to surrender the lands in question. No appeal was filed against the said order and, therefore, it became final. ( 3 ) ACCORDING to the averments in the writ petition, pursuant to the order, annexure-A, Jinnappa Gowda surrendered the lands on the same day, as per Annexure-B which is dt, 5. 3. 1968. Thus here is an admission on the part of the petitioner that till the surrender of the lands in question, Jinnappa gowda was the tenant cultivating them. Jinnappa Gowda ceased to be the tenant after the surrender. It is averred in the petition that Jinnappa gowda's father Kariya Gowda had two wives. Respondent-1 is the daughter of Laxmi his first wife. Jinnappa Gowda ceased to be the tenant after the surrender. It is averred in the petition that Jinnappa gowda's father Kariya Gowda had two wives. Respondent-1 is the daughter of Laxmi his first wife. The said Laxmi filed O. S. No. 63 of 1968 against the petitioner within a few days after the surrender by Jinnappa Gowda. She asserted in the said suit that she was in possesion of the properties on the ground, that her father was a tenant over 'he said lands and that her step brother being a man of weak intellect, could not surrender the said lands, This suit was, however, resisted by the petitioner. An interim order of temporary injunction was issued in the said suit on 23. 11. 1968. As against the. same, petitioner filed an appeal in m. A. No. 34 of 1968 in the Court of the Civil Judge, Mangalore. The appeal was allowed as per Anunexure -C observing that, prima facve , Laxmi, mother of respondent-1, could not, be in possession of the properties. This order was challenged by Laxmi in c. R. Ps 1670 and 1671 of 1969 before this Court. This Court allowed the crps. on 6. 9. 1971, set aside the order of the Civil Judge and remanded the matter to the trial Court, without going into the merits of the case, with a direction to dispose of the main suit itself, by observing that the plaintiff had the benefit of temporary injunction beyond three years. ( 4 ) IT is stated that after the order of remand, the trial Court took the case on file, appointed respondent-1 as receiver on 18. 9. 1974 in respect of the suit lands and referred the question of tenancy under S. 133 of the Act to the concened Land Tribunal. During the pendency of the Civil revision petitions, Laxmi died and, therefore, respondent-1 and her two younger brothers came on record. Aggrieved by the order of appointment of respondent-1 as receiver, the petitioner filed an appeal to the Civil court which remanded the case for re-consideration. The trial Court, thereafter, could not go into the matter due to change of law. Respondent-1 continued to be the receiver. Aggrieved by the order of appointment of respondent-1 as receiver, the petitioner filed an appeal to the Civil court which remanded the case for re-consideration. The trial Court, thereafter, could not go into the matter due to change of law. Respondent-1 continued to be the receiver. This fact has been admitted by her in her statement recorded before the Land tribunal, which is produced at Annexure-E. ( 5 ) IN the meanwhile, respondent-1 filed an application in Form-7 claiming occupancy right in respect of the lands in question including Sy. No. 46/1 before the Land Tribunal, Bantwal. The land Tribunal having heard the parties on 23. 12. 1980, posted the case to 7. 1. 81 for pronouncement of orders. On the same day, the Chairman who held the enquiry in this case, was transferred and a new Chairman by name V. Munivenkatappa was posted. However the case was adjourned from 7. 1. 1981 to 23. 1. 1981 for pronouncement of orders; again the case was adjourned from from 23. 1. 1981 till 10. 2. 1981 on which date orders were pronounced declaring that respondent-1 was entitled for grant of occupancy right in respect of the lands in question. It is this order that is called in question by the petitioner in this writ petition. Sri. Keshava Bhat, learned councel for the petitioner, argued that when the Chairman who heard and posted the case for pronouncement of orders, was transferred, the Land Tribunal consisting of the new Chairman could not have disposed of the case without providing an opportunity to the petitioner of being heard and that, therefore, the impugned order was violative of sub-rule (8) of Rule 17 of the, Karnataka Land Reforms Rules, 1974 (hereinafter called the Rules ). In other words, he submitted that the Land Tribunal was called upon to decide as to whether respondent-1 was competent, to file an application in Form-7 secking occupancy right inasmuch as originally jinnappa Gowda was the tenant of the lands in question, who subsequently surrendered the same, and not respondent-1, daughter of Laxmi. Respondent-1 was in possession of the lands by virtue of the order by the Civil court and, therefore, the Land Tribunal was required to record a finding independently of the Civil Court having regard to S. 133 of the Act When such complicated question was involved in the case, the Land Tribunal. Respondent-1 was in possession of the lands by virtue of the order by the Civil court and, therefore, the Land Tribunal was required to record a finding independently of the Civil Court having regard to S. 133 of the Act When such complicated question was involved in the case, the Land Tribunal. after the new Chairman assumed the charge of the office of the Chairman, should have provided an opportunity to the petitioner of being heard. This having not been done, the impugned order could not be sustained in law. ( 6 ) IN order to appreciate the submission of Sri. Keshava Bhat it is necessary to refer to sub-rules (1) and (8) of r. 17 of the rules. They read. "17 (1)Procedure to be followed by the Tribunal - The Tribunal shall in respect of applications made to it follow the same procedure as specified for a summary enquiry under section 34 of the Karnataka Land revenue Act, 1964 subject to the condition that the records of the proceedings shall be maintained in a language understood by all its members. " (8) The order shall be, signed, in addition to the Chairman, by the other members of the Tribunal who heard to case". ( 7 ) IN view of the language employed in the sub-rules, the learned counsel contended that the present Chairman who took over as Chairman of the Land tribunal, after the case was closed and was set down for orders, should have given an opportunity to the parties of being heard. In order to strengthen his arguments, he relied upon a number of decisions. I will presently refer to them. In Syed Habibullah v. State of Mysore (1) Ahmed Ali Khan, J. , as he then was dealing with the provisions of S. 479a Cr. P. C. (5 of 1908) held as follows:-"where the predecessor judge recorded the finding and the successor judge who issued notice to the party did not apply his mind to the objections but solely depended upon the finding of the predecessor feeling fettered by that finding, the order filing a complaint would be in breach of s. 479a and must be set aside"at page 27 o,f the judgment the learned judge observed as follows: - "now, in the instant case, it is clear that the learned Sessions Judge has depended mainly upon the finding recorded by his predecessor. The order made by him gives an impression, as rightly contended on behalf of the petitioners by Mr. Deshapande, that the Sessions Judge, all through in his order found himself fettered by the finding recorded by his predecessor. ( 8 ) IN para-5 of the order, the learned Sessions Judge states: "my learned predecessor has expressed the opinion that the evidence tendered by these two respondents is false and fabricated and that the document Ex. P-3 is forged and it is produced before Court as evidence. . " again in para 6 of his order, it is stated :"in the present case, my learned predecessor has in fact found that the document Ex. P-3 is fabricated and it is a forged document it is produced before Court to show that p. W. 7, ie. the present 2nd respondent was getting a higher salary. Thus it appears that my learned predecessor has found that both P. Ws. 6 and 7 is the present respondents 1 and 2 have colluded with each other and fabricated the document Ex. P-3 and and have produced it before Court knowing that the document was a forged document or a false document". ( 9 ) THESE passages go in support of the argument advanced on behalf of the petitioners to the effect that the learned Sessions Judge did not apply his mind and solely depended upon the finding recorded by his predecessor. At page 28 the learned Judge summed up as follows : -"but the word 'therefore' is full of meaning. It is suggestive of the fact that on the reasons stated by his predecessor, the Sessions Judge found that a complaint should be filed. Therefore, the finding of the Sessions judge is qualified by the word 'therefore' and consequently it cannot be construed to be an independent finding". ( 10 ) IN A. K. Kraipak v. union of India, (2) a Constitution Bench of five Judges of the Supreme Court held as follows :"the dividing line between the administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. ( 10 ) IN A. K. Kraipak v. union of India, (2) a Constitution Bench of five Judges of the Supreme Court held as follows :"the dividing line between the administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like ours it is inevitable that the organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair arid just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise oi a judicial power are merely those which facilitate if not ensure a must and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judcial power". "17. This takes us to the question whether the principles of natural justice apply to administrative proceedings similar to that with which we are concerned in these cases According to the learned Attorney-General those principles have no bearing in determining the validity of the impugned selections. In support of his contention he read to us several decisions. It is not necessary to examine those decisions as there is a great deal of fresh thinking on the subject. The horizon of natural justice is constantly expanding. The question how far the principles of natural justice govern administrative enquires came up for consideration before the Queens Bench Division in re H. K. (An Infant), 1967-2 Q. B. 617 at p 636. The horizon of natural justice is constantly expanding. The question how far the principles of natural justice govern administrative enquires came up for consideration before the Queens Bench Division in re H. K. (An Infant), 1967-2 Q. B. 617 at p 636. Therein the validity of the action taken by an immigration officer came up for consideration. In the course of his judgment Lord parker, C. J. observed thus :"but at the same lime, I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him o,f the matters in the sub-section, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, normally bringing one's mind to bear on the problem, but acting fairly ; and to the limited extent that the circumstances of any particular case allow and within the legisative frame work under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permissible on the decided cases, because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or not a duty to act judicially or quasi-judicially". "20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent mis-carriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause Nemo debt esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem ). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries, from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just desion is the aim of both quasi-judicial enquiries, as well as administrative enquiries. An unjust decsion in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh koshy George v. University of Kerala, civil Appeal No. 990 of 1968, D|- 15. 7. 1968 = ( AIR 1969 SC 198 ) the rules of natural justice are not embodied rules. An unjust decsion in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh koshy George v. University of Kerala, civil Appeal No. 990 of 1968, D|- 15. 7. 1968 = ( AIR 1969 SC 198 ) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purposs whenever a complaint is made before a Court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case". Sri. Keshav Bhat contended that having regard to the provisions of sub-rule (8) of Rule 17 of the rules, the land Tribunal, after the new Chairman assumed the office of the Chairman of the Land Tribunal, should have heard the petitioner. In support of his contention, he relied on the deci sion in Travancore Rayons Ltd. , v. Union of India (3) wherein it is observed at para-7 as follows: ''the question raised before the collector of Customs was of a complicated nature and ,for its proper appreciation required familiarity with the chemical composition and physical properties of nitrocellulose, lacquers and of the substance produced by the appellant company. The Collector in deciding the appeal wrote an order running into 18 typed pages. There were before the Collector conflicting opinions of the Chemical Examiner and the Silk Mills Research Association, bombay. The Collector gave two personal hearings to the appellant company. No personal hearing was given by the Government of india to the appellant Company even though the matter raised complex questions. It is true that the rules do not require that personal hearing shall be given, but, if in appropriate cases where complex and difficult questions requiring familarity with technical problems are raised, personal hearing if given would conduce to better administration and more satisfactory disposal of the grievances of citizens". ( 11 ) IN view of the above, Sri. It is true that the rules do not require that personal hearing shall be given, but, if in appropriate cases where complex and difficult questions requiring familarity with technical problems are raised, personal hearing if given would conduce to better administration and more satisfactory disposal of the grievances of citizens". ( 11 ) IN view of the above, Sri. Keshav bhat, learned counsel for the petitioner, submitted that since certain complicated questions arose in the instant case, having regard to the points urged before the Land Tribunal by the petitioner against the claim of rcspondent-1, the Land Tribunal, after the new Chairman assumed the Office after the the closure of this case, should have heard the petitioner so that he would have apprised of these complex questions of law and fact to the new Chairman and the other members, before pronouncing the order. This having not been done, the impugned order could not be sustained in law. Over and above the decisions referred to above, Sri. Keshav Bhat alco relied upon the observations made by the learned author G. P. Singh in "principle of Statutory Interpretation", 2nd Edn. 1975 at page 223. This became necessary for the learned counsel to show that, by, virtue of the language employed in sub-rule (8) of rule 17, the impugned order was violative of the principles of natural justice. He stressed his argument on the words "who heard the case" appearing in the said sub-section. The learned author G. P. Singh in his book referred to above observed at page-223 while dealing with "affirmative words may imply a negative" as under :-"affirmative words stand on a weaker footing than negative words for reading the provision as mandatory; but affirmative words may also be so limiting as to imply a negative. In an appeal from West Africa, the privy Council approved of a passage from the judgment of the President of West African Court of Appeal (Sir Henley Coussey) in which referring to the relevant sections of the ordinance in question, the President stated: "it is true that there are no negative words in the sections referred to but the affirmative words are absolute, explicit and peremptory and when you find in an Ordinance only one particular mode of effecting the object, onq train of formalities, to be observed, the regulative provisions which the section prescribes, are essential and imperative. (Edward ramia Ltd. , v. African Woods ltd)". ( 12 ) REFERRING to the words 'shall' or 'shall and may' the learned author observed at page-224 as under:- "the use of the word 'shall' raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the consequences flowing from such construction. There, are numerous cases where the word 'shall' has, therefore, been construed as merely directory. "the word 'shall 'observes hidayatullah J. , "is ordinarily mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands. (Sainik motors v. State of Rajastan, AIR 1901 sc 1480) and points out Subbarao J. , "when a statute uses the word 'shall', prima facie it is mandatory, but the court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. If different provisions are connected with the same word 'shall' and if with respect to some of them the intention of the legislature is clear that the word 'shall' in relation to them must be given an obligatory or a directory meaning it may indicate that with respect to other provisions also, the same construction should be placed". ( AIR 1955 SC 233 ). ( 13 ) IN view of the foregoing, I will now refer to the construction of Rule 17 of the Rules made by a, Division Bench of this Court in Byrappa v. State of Karnataka (4) In the said decision, the division Bench examining the scope of rule 17 and considering the intendment of the Legislature in respect of the said rule held as follows at para-8:-"rule 17 of the Rules (renumerbed as sub-rule (1) by the amendment rules) required the Tribunal to decide an application made before it by following the procedure specified for a summary enquiry under S. 34 of the Revenue Act. S. 34 mandates that the officer conducting enquiry shall himself record in his own hand, the summary of the evidence. This court, having regard to the requirement of Rule 17 read with S. 34 of the Revenue Act, ruled in several cases that the summary of the evidence in an enquiry before the Tribunal, shall be recorded by the Chairman and, in our view, rightly. This court, having regard to the requirement of Rule 17 read with S. 34 of the Revenue Act, ruled in several cases that the summary of the evidence in an enquiry before the Tribunal, shall be recorded by the Chairman and, in our view, rightly. By the Amendment Rules, which came into force on 2. 11. 1979, rule 17 was numbered as sub-rule (1) and among others sub-rule (5) was inserted. In our view sub-rule (5) so inserted while retaining Rule 17, has given statutory recognition to the aforesaid rulings of this Court, by declaring that a brief summary of the evidence of each witness shall be recorded by the Chairman. Thus, in the matter of recording of oral evidence by the Chairman, the requirement of Rule 17 of the Rules both before and after insertion of sub-rule (5) has been in our view mandatory. Hence, it follows that any breach of such mandatory requirement vitiates the proceeding before the Tribunal". It is necessary to mention here that sub-rules (2) to (10) came to be inserted by the amendment dt. 2. 11. 1979 which is referred to in the above decision. Among others, sub-rule (5) also came to be inserted giving recognition to the rulings of this Court, by declaring that a brief summary of the evidence of each witness shall bo recorded by the Chairman. Since sub-rule (8) also came to be inserted by the said amendment, the view taken by the Division Bench in Byrappa's case while considering sub-rule (5) may conveniently be extended to this rule also, ie. , sub-rule (8 ). If the view taken by the Division Bench is made applicable to the provisions of sub-rule (8) also, then looking at the language employed in the said rule, I am clearly of opinion that the Chairman and the members who heard the case shall pronounce the orders. In the instant case, since the present Chairnlan who is a party to the impugned order, had not heard the case himself along with the members, there is a breach of sub-rule (8) of Rule 17 of the rules. In the instant case, since the present Chairnlan who is a party to the impugned order, had not heard the case himself along with the members, there is a breach of sub-rule (8) of Rule 17 of the rules. ( 14 ) IN view of the above, the submission of the learned counsel for the petitioner that, since certain complicated questions of law and facts arose in the instant case, the new Chairman who assumed the office after the closure of the case by his predecessor, should have afforded an opportunity to the parties of being heard before pronouncing the impugned order based upon the enquiry held by the previous Chairman is well founded. However, Sri Vasudeva aithal, learned counsel for respondent-1, maintained that, even though the present Chairman failed to hear the parties before passing the impugned order, it did not result in mis-carriage of justice and that, therefore, this court need not interefere with the impugned order. ( 15 ) IN view of my conclusion as above, the impugned order which is violative of sub-rule (8) of Rule 17 of the Rules, cannot be sustained in law and the same is liable to be set aside. In the result, this writ petition is allowed, rule issued is made absolute, the impugned order, Annexure-X, is quashed, without considering the merits of the case, only on the ground that there is a breach of sub-rule (8) of rule 17, and the matter stands remitted to the Land Tribunal Bant. wal taluk, with a direction to re-consider the case afresh, in accordance with law snd in the light of the observations made above, after affording an opportunity to both the parties of being heard. It is, however, made clear that the land Tribunal may provide another opportunity to both the parties of adducing evidence, if they choose to do so. No costs. Sri. Devadas, learned High Court government Pleader, is permitted to file memo of appearance for respondents 2 and 3 within two weeks. --- *** --- .