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2000 DIGILAW 812 (KAR)

J. M. Ebrahim v. D. Krishnappa

2000-12-06

T.N.VALLINAYAGAM

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ORDER T.N. Vallinayagam, J.—Steps has been taken to Respondent No. 1(a) and Respondent No. 1(c) more than twice. In the light of the endorsements of the postal department service on the Respondent No. 1(a) and Respondent No. 1(c) is held sufficient and the Respondents remained absent. Respondents No. 1(a) to 1(c) remained absent. By consent of the counsel for the Petitioner and the Government Counsel the petitions are taken for disposal. The order sought to be assailed is one dated 26.10.1976 passed in LRF (A) G1/1379/1974-75 by the 2nd Respondent Land Tribunal. 2. It is contended that the Petitioner is the owner of Sy. No. 67 measuring 1-20 acres. The land stood in the name of his father as shown in the Pahani. After the death of his father the land stood in the name of his eldest son Habibulla. After the death of Habibulla the Petitioner succeeded. During the relevant period 1973-74 one Sri Doddayellappa Bagur has taken the land on mortgage for cultivating casurina trees and it was not tenanted to any of the persons mentioned in the tenants column in the Record of Rights. This Bagur Doddayellappa is different from Gundur Doddayellappa. But Gundur Doddayellappa taking advantage of the similarity in name filed an application in Form No. 7 and claimed occupancy rights. But the second Respondent had granted occupancy rights without notice to the Petitioner. After the death of Doddayellappa his son the first Respondent is enjoying the suit land as occupant. 3. It is further contended that the Petitioner's elder brother protested the granting of occupancy rights in favour of Doddayellappa by his letter dated 24.4.1976 and that letter is filed along with the petition. Without taking into consideration such letter and without notice to the Petitioner, the Tribunal chosen to pass the order, and the Petitioner came to know about it only when Annexure 'C' was issued and immediately he approached this Court. 4. On this ground the order is sought to be attacked. 5. Heard the Counsel and the Government Advocate. 6. The facts on the file reveal that no notice was issued and no opportunity was given to the Petitioner or his brother Habibulla or their father Abdul Jabbar for the proceedings before the Land Tribunal and on this ground of notice the proceedings must be quashed. 7. In the case of The Government of Mysore and Others Vs. 6. The facts on the file reveal that no notice was issued and no opportunity was given to the Petitioner or his brother Habibulla or their father Abdul Jabbar for the proceedings before the Land Tribunal and on this ground of notice the proceedings must be quashed. 7. In the case of The Government of Mysore and Others Vs. J.V. Bhat and Others, AIR 1975 SC 596 the Supreme Court considered the necessity of issuing notice and observing the rule of "audi alteram partem" made the following observations: It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but, on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding that the 'audi alteram partem' rule could be imported. The nature of the hearing would, of course, vary according to the nature of the function and what its just and fair exercise required in the context of rights affected. There can be no two opinions about the need to hear the affected persons before declaring an area to be a slum area under Section 3, or an area as a clearance area under Section 9 or before taking action under Section 10. All these difficulties will be removed if the affected persons are given an opportunity to be heard in respect of the action proposed. 8. This view of the Supreme Court was followed by this Court in the case of Meenakshamma Vs. Land Tribunal, Raichur and Others, 1978 (1) Karn LJ 220. The following ruling has been laid down: Though Sections 66 and 67 of the Act and Rule 24 of the Rules do not expressly provide for, or prohibit notice and opportunity to other persons who claim ownership rights or an interest in the lands in respect of which a declaration is filed by the land-holder, it would be proper to read into the provisions of the Act and Rules an opportunity of hearing, particularly when the action to be taken would affect the property rights of other persons. The principles of duty to act judicially and giving opportunity are applicable in construing the provisions regarding declarations under the Land Reforms Act and determination of excess lands and their surrender. The principles of duty to act judicially and giving opportunity are applicable in construing the provisions regarding declarations under the Land Reforms Act and determination of excess lands and their surrender. Therefore, persons claiming rights in the land are entitled to notice and opportunity of hearing from the Land Tribunal. 9. This was based upon the Maxwell on the interpretation of Statutes at page 358 of Eleventh Edition, wherein the "Implied Duty to Act judicially" is defined in the following words. In giving judicial powers to affect prejudicially the rights of person or property, a statute is understood as silently implying when it does not expressly provide, the condition or qualification that the power is to be exercised in accordance with the fundamental rules of judicial procedure, such, for instance, as that which requires that, before its exercise, the person sought to be prejudicially affected shall have an opportunity of defending himself. 10. Following the above two dicta the impugned order is set aside as no notice was given to the parties before their rights were decided. 11. The writ petition is allowed and the case is remitted to the Tribunal for fresh consideration in accordance with law.