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1987 DIGILAW 18 (KAR)

N. SUBBAN SHIVA RAO v. ANNI PINTO

1987-01-21

S.R.RAJASEKHARA MURTHY

body1987
RAJASEKHARA MURTHY, J. ( 1 ) PETITIONER is the son of late n. Shiva Rao. An application in Form No. 7, as required under the Land Reform Act ('act'), was filed by respondents 1 and 2 and the husband of Respondent-3 and father of Respondents 4 to 6, before the land Tribunal, Mangalore, seeking occupancy rights in respect of several survey numbers referred to therein. In the application - Form No. 7 the name of n. Rama Rao, father of respondents 7 and 8 and uncle of the petitioner was shown as the owner of all the survey numbers. ( 2 ) THE Tribunal by its order dated 25-4-1981 granted occupancy rights in respect of several numbers referred to in form No. 7. It is seen from the order that the owner, N. Rama Rao, though served remained absent. This order is challenged by the son of Subban Shiva rao. The order of the Tribunal is challenged on the ground that along with rama Rao, Shiva Rao end his son Subban shiva Rao, the petitioner are the joint- owners of the properties in question. ( 3 ) IT is urged that though the muigeni-chit, produced by the tenant before the Tribunal contained the names of the petitioner and his father being the owners of the properties in question along with Rama Rao on notice was issued either to the petitioner or to his father and the order came to be passed in their absence. The order of the Tribunal is therefore challenged on this ground and it is urged that the order of the tribunal is vitiated since the same is made without issue of notices to the interested parties and therefore the order should be set-aside on that sole ground. ( 4 ) THAT this sould be the order in the circumstances of the case and the facts stated by the petitioner is not disputed either on behalf of the tenants or by the Government Pleader. ( 5 ) EMERGENT notice was issued by this Court re. Rule and delay and the gcvt. Pleader was also directed to secure the records from the Tribunal. ( 6 ) SMT. Meena Ramachandra, has produced the records of the Tribunal before me. Both the learned Counsel for the petitioner and the tenants are heard. ( 7 ) THE delay is explained by the petitioner in Paragraph-3. Rule and delay and the gcvt. Pleader was also directed to secure the records from the Tribunal. ( 6 ) SMT. Meena Ramachandra, has produced the records of the Tribunal before me. Both the learned Counsel for the petitioner and the tenants are heard. ( 7 ) THE delay is explained by the petitioner in Paragraph-3. It is stated therein though the names of the petitioner and his father found a place in the mulgeni-chit, the Tribunal did not issue any notice before it proceeded to make order. Since the petitioner's father n. Shiva Rao died on 25-1-1976, this petition is now preferred only by his son subban Shiva Rao. ( 8 ) IT is stated that the petitioners came to know about the order of the tribunal only in June 1986 and immediately thereafter he applied for a certified copy of the order and filed the Writ petition on 14-7. 1986. ( 9 ) THE knowledge of the order of the Tribunal by the petitioner on the facts of this case does not assume much importance, since neither the petitioner nor his father had notice of the proceedings before the Tribunal at all. Therefore, in my opinion, failure to serve notices on the petitioner and his father would itself be sufficient to entertain the writ petition and issue Rule. ( 10 ) FOR the reasons stated above, the delaly in filing the writ petition is condoned and Rule is issued. ( 11 ) THE next question to be considered is whether the matter should be remanded to the Tribunal on the facts and circumstances set-out in the writ petition. ( 12 ) THOUGH provision is made in section 19 of the amending Act for transferring to the Appellate authority constituted under the said Act, any writ petition preferred to it against the order passed by the Tribunal under the Act, what matters are to be transferred to the appellate authority, which are the types of cases which are to be remitted back to the Tribunal, is left to the discretion of the High Court. it is not in every case where the Tribunal has made an order end a writ petition preferred against it, is entertained, that it is mandatory that all such matters should be transferred to the appellate authority. it is not in every case where the Tribunal has made an order end a writ petition preferred against it, is entertained, that it is mandatory that all such matters should be transferred to the appellate authority. One of the aspects of the power to tronsfer has received interpretation by the Division Bench of this Court in jainuddin Nizamuddin Munshi v Land tribunal (I. LR. 1986 Kar. page-2055 ). Interpreting the scope of the phrase, 'if it deems fit', occurring in Section 19 of the Amending Act, their Lordships have dealt with in Paragraph-8, 9 and 10, that Section 19 of the Amending Act does not give any mandate to transfer all writ petitions pending straightaway without notice to the opposite party. This observation was made, in my opinion, by their Lordships in the context of what they observed in the earlier paragraphs dealing with latches. On the facts of the present case, in my opinion, the only order that could be made is to remit the matter to the Tribunal for fresh enquiry after due service of a notice to the petitioner and all other interested persons and proceed to make a fresh order in accordance with law. That this is only an order that could be made in a case like this, is also clear on a reading of the provisions of section-6 of the Amending Act under which Section 113 has underwent changes. Though it is provided in Sub-Sec. (2) of Section 6 that the appellate- authority shall, for the purpose of the disposal of the appeals before it have the same powers as are vested in a Court of appeal under the Code of Civil Procedure, 1908, except the power of remanding the case to the Tribunal either for recording fresh decision or for recording further evidence or for any other purpose as may be prescribed. ( 13 ) THEREFORE, in the light of the provisions of Section 6, referred to above, it would be purposeless to transfer the cases to the appellate-authority since the appellate authority is not conferred with powers of remand, though it has all the powers of an appellate authority. The powers referred to in Sub-sec. ( 13 ) THEREFORE, in the light of the provisions of Section 6, referred to above, it would be purposeless to transfer the cases to the appellate-authority since the appellate authority is not conferred with powers of remand, though it has all the powers of an appellate authority. The powers referred to in Sub-sec. (2) of Section 6 of the Act is understood and interpreted as ihe power, (i) to take additional evidence; (ii) To re-appreciate the entire evidence; and (iii) To take appropriate decision on facts and also on law. (Vide paragraph-9 in Jainuddin's case ). ( 14 ) THEREFORE, for the reasons stated above, the order of the Tribunal) (Annexure-B) is set aside and the matter is remanded to the Land Tribunal, Mangalore taluk, Mangalore-1, with a direction to issue notice to the petitioner and all other interested persons and make a fresh order in accordance with law. Writ Petition is Allowed.