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2002 DIGILAW 765 (KAR)

M. ANANTHA PADMANABHA BHAT v. KALI POOJARTHI

2002-12-11

K.RAMANNA, M.F.SALDANHA

body2002
( 1 ) WE have heard the appellant's learned Advocate, learned Advocate for the contesting respondent and the learned Government Advocate on merits. ( 2 ) THIS appeal is one more classic illustration of a situation in which despite Land Tribunal having granted substantial areas of the land to the applicant leaving aside one very small piece for very valid reason that desperate attempt is made to grab that piece of land also. ( 3 ) BRIEFLY stated, the original applicant who is the father of respondent 1 had applied for the grant of occupancy rights in respect of six pieces of land. The Tribunal by order dated 5-8-1981 granted occupancy rights in respect of 5 of the lands in question about which there is no dispute because the landowner has, as per the indication in the record virtually conceded the claim. Despite this, we must say to the credit of the Tribunal, that there is a clear indication in the order that even though the proceeding was virtually ex parte that it has fulfilled its obligations by examining the claim, cross-checking the records, verifying the areas and the exact land under cultivation and has thereafter granted occupancy rights. The dispute is in respect of an area of 90 cents in Sy. No. 508/2. In the order dated 5-8-1981 while the five survey numbers and their areas are mentioned there is no reference to this piece of land i. e. , 508/2 measuring 90 cents. Form 10 was issued some time thereafter and it appears from the record that some time in the year 1992 an application was filed for inclusion of this survey number in the lands granted to the tenant by the name of Thammu Poojari, but no orders were passed on that application. The tenant made a Will in which he has bequeathed the lands to his son and the daughter as late as in the year 1996. The daughter who is the present respondent 1 to this appeal filed an application requesting the Tribunal to carry out what was termed as a correction. The tenant made a Will in which he has bequeathed the lands to his son and the daughter as late as in the year 1996. The daughter who is the present respondent 1 to this appeal filed an application requesting the Tribunal to carry out what was termed as a correction. The case made out was that in Form 7 this land has been claimed, that in the revenue records there is a reference to the original tenant Thammu Poojari even as far as this survey number is concerned and that it was an obvious mistake on the part of the tribunal not to have granted occupancy rights in respect of this land and that therefore, the original order be corrected. This application was resisted by the present appellant who is the landowner. His contention was that the land in question is punja land and that this land was never leased out to the tenant, that there is no mistake and that consequently, there is no question of it being included in the original order. The Tribu- rial rejected the application against which the present respondent 1 filed a Writ Petition No. 7607 of 1998 which was disposed of by the learned single Judge by order dated 31-1-2001. ( 4 ) WE need to mention here that one of the objections that was raised in the writ petition by the present appellant's learned Advocate was to the effect that the application for correction was filed 16 years after the original order was passed, that the application is motivated by mala fides. It is very clear that the original tenant had accepted the fact that this land was not included on a very valid ground and despite this, after his death his daughter has sought to have the record corrected on an absolutely false plea. The learned Single Judge on the basis of some of the decisions undoubtedly took the view that in appropriate cases a court will grant a relief even at a belated stage and that limitation is absolutely no bar to reject the application as far as delay is concerned. The learned Single Judge on the basis of some of the decisions undoubtedly took the view that in appropriate cases a court will grant a relief even at a belated stage and that limitation is absolutely no bar to reject the application as far as delay is concerned. The learned Single Judge has also observed that since there are some references to the original tenant in the revenue records that the matter does require a fresh enquiry and has therefore remanded the case to the tribunal for re-determination of the issue regarding grant of occupancy rights in relation to Sy. No. 508/2. The present appeal assails the correctness of that order. ( 5 ) NORMALLY, this Court would be slow in entertaining an appeal against an order of remand but experience has shown that in this class of cases it has unfortunately become the order of the day to in discriminately remand proceedings to the Tribunal. We have cases that have gone to the Tribunal and come back here as many as 8 or 9 times and which are still being remanded. It has therefore become absolutely essential for the Appeal Court to examine as to whether the remand orders are valid, whether the facts and circumstances of the case justify them or otherwise. This appeal was admitted and has now come up for hearing before us. ( 6 ) THE appellant's learned Advocate submitted that in the first instance this particular piece of land is punja land and that there is absolutely nothing on record to justify its being included in the definition of land as postulated under Section 2 (18) of the Land Reforms Act. Secondly, he submitted that assuming in a given case an error has taken place, that the law is well-settled and is to the effect that the order must be corrected at the earliest point of time and that too, within a reasonable time frame. His short submission is that there is absolutely no error in this case, that in fact the Tribunal rightly rejected the grant of occupancy rights as far as this piece of land is concerned and that the plea put forward that it was an error was only a clever method of trying to snatch an order from the Tribunal on grounds which were far from honest. Lastly, his submission is that from the facts and circumstances, once an order assumes finality, that it becomes sacrosanct and that no court should permit a reopening. ( 7 ) AS against this position, Mr. Shastry who represents the contesting respondent submitted that in the first instance the Tribunal has not recorded any specific finding rejecting the claim as far as Sy. No. 508/2 is concerned and it is his submission that where it was an exparte proceeding and where the case was uncontested, if this survey number has not been mentioned the only explanation could be that it was by error. He then proceeds to state that the tenant was an illiterate person that there was no issue or dispute between the parties as the record indicates, that it was only at a belated stage that it came to his notice that this error had taken place and that was why the first application was made in the year 1992. He capitalised on the fact that there is a straight admission in the cross-examination of the present appellant who states that the application filed by the tenant in the year 1992 is in the handwriting of the landowner. We refuse to attach any significance to this statement for the simple reason that it is almost an absurdity for us to believe that an application filed by the tenant could have been written by the opposite party. This is because when the issue did come up a few years later it has very clearly come on record in the deposition of the landowner that this particular survey number was never leased to the tenant and therefore there could be no question of his supporting an application for writing it off. ( 8 ) MR. Shastry's main submission is that Sy. No. 508/2 virtually adjoins the remaining lands that have been granted and his contention is that irrespective of the description of the land in the revenue records as long as the name of the tenant appears and as long as it can be assumed that it is inter-dependant on the other agricultural lands that it will have to be held that it comes within the definition of Section 2 (18) also because of the fact that according to him, it would be land that is capable of being' brought under cultivation. He did draw our attention to several decisions but all that we need to observe is that there are instances when lands which are not strictly under cultivation get included in the definition under Section 2 (18) for special reasons. These special reasons are not present as far as this case is concerned and we have the evidence of the landowner that this particular plot is a punja land. Secondly, the revenue records indicate that it is red sand and thirdly, even in the categorisation it has been entered as Khuski. Consequently, it would be impossible to hold that this particular plot of land or piece of land qualifies for being defined as agricultural land or that occupancy rights could be granted in respect thereof. This, in our considered view, is the real reason why the Tribunal excluded it on the original occasion. ( 9 ) MR. Shastry's last submission is that as far as the entries are concerned, if the tenant's name appears there and if he has been recorded earlier as tenant in respect of this piece of land that the occurancy rights ought to have been granted to him. It is not ail lands that are covered under the Land Reforms Act and the Land Reforms Act very clearly excludes certain categories of land and we have already held that sy. No. 508/2 would not come within the definition of cultivable land. ( 10 ) THE real point in issue is the question as to whether under the facts and circumstances of this case, the reopening should have been permitted. The Tribunal was perfectly justified in having rejected the application for reconsideration and we need to hold once again that there is a doctrine of finality which applies to all proceedings and barring very strong and very exceptional situations, Courts will refuse to reopen final orders after the lapse of a considerable period of time. Unless this principle is strictly observed, it will virtually open the floodgates, particularly to mischievous and ingenious applications such as the one made in the present case. In totality therefore, it is our considered view that even in the year 1992 since 11 years had already passed and Form 10 had been issued much earlier, that the Tribunal would have been justified in having straightaway rejected the application. In totality therefore, it is our considered view that even in the year 1992 since 11 years had already passed and Form 10 had been issued much earlier, that the Tribunal would have been justified in having straightaway rejected the application. Having examined the facts of the present case we find it a little difficult to hold that the application was either bona fide or honest and this is an additional reason why in our considered view the learned Single Judge has grossly erred in having directed a reopening of the present proceeding. ( 11 ) HAVING regard to the aforesaid situation we see no valid justification either on facts or in law for the order in question to have been set aside; the order passed by the Tribunal to stand restored. At this stage, the respondent's learned Advocate points out to us that one of the documents relied on by his client is Ex. B to the writ petition which is an application filed by the landlord for recovery of rent from the tenant in which there is a clear reference to Sy. No. 508/2. We concede this position but we have already clarified that this would not under any circumstances confer a right on the tenant to the benefit of occupancy rights unless the ingredients of the Land Reforms Act are satisfied. ( 12 ) ON the question of costs, we have pointed out to the respondent's learned Advocate that this Court has recorded the finding that the application made and all the subsequent litigations were obviously motivated and that it totally lacks bona fides. It is very necessary in such situations that the Court must compensate the opposite party who has been at the receiving end and secondly, that litigations of this type must be discouraged. It is therefore necessary for the Court to quantify the costs and to award exemplary costs. ( 13 ) MR. Shastry states that his clients are very ordinary persons from a rural background and his request is that the Court should not award costs because there was ample justification for the application. Normally, we would have awarded costs quantified at Rs. 10,000/- but with regard to what has been pointed out we reduce the amount to Rs. 5,000/ -. The appeal succeeds with costs quantified at Rs. 5,000/ -. x --- *** --- .