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2003 DIGILAW 124 (KAR)

Madhav Bandopant Kulkarni v. Land Tribunal

2003-02-03

M.F.SALDANHA, M.S.RAJENDRA PRASAD

body2003
JUDGMENT 1. The appellants before us have assailed the order of remand dated 15-6-1999 passed by the learned Single Judge while disposing of Writ Petition Nos. 18961 and 24667 of 1998. The original petitioners, who are the appellants before us, are admittedly the landowners of a small piece of land which measures hardly 15 guntas. Though it is technically described as being located in Kalkamba Village, effectively the area is now included within Belgaum City and the principal point of dispute centers around the question as to whether occupancy rights could have at all been granted in respect of this small piece of land which has been more particularly described as a backyard, the reason being that it is the case of the landowners that the land has been converted to non-agricultural use as early as 31-10-1963. The original applicant, since deceased and now represented by his legal representatives - respondents 2 to 12, had applied for grant of occupancy rights in respect of this piece of land, the contention being that it is agricultural land, that there are mango trees located on it, and that the applicant was in possession and was, therefore, eligible for grant of occupancy rights. His contention was also that he was cultivating the land, which has been disputed by the owners. But, in any event, there are several litigations between the parties, some of which are still pending. After the first round of litigation before the Tribunal, the case was remanded for fresh decision and on the next occasion, after a vigorous contest, the Tribunal, through a detailed speaking order through a majority 4 to 1 decision, granted occupancy rights. It is relevant to mention here that the Chairman, who was a Government Officer, has given detailed reasons in the order which are effectively to the effect that the land in question having been converted for non-agricultural use in the year 1963, that it cannot qualify as agricultural land on the appointed date i.e., 1-10-1973, and that consequently, the Tribunal was not competent to grant occupancy rights since the first ingredient viz., requirement that the land in question should be agricultural land, was not in existence. The remaining four members, however, dissented with the Chairman and recorded the finding that occupancy rights should be granted and it is against this order that the writ, petitions in question were preferred. The remaining four members, however, dissented with the Chairman and recorded the finding that occupancy rights should be granted and it is against this order that the writ, petitions in question were preferred. We need to mention here that the order is a rather mixed up one, because there is some reference in the order attributable to the majority members, who also referred to the fact that it is non-agricultural land, to conclude with the finding "However, in our opinion, the occupancy rights are liable to be granted". As indicated by us earlier, it is this order that was the subject-matter of challenge before the learned Single Judge, who after hearing the learned Advocates, recorded the finding that if the members, even though by majority, overruled the findings of the Chairman and assuming that they are entitled in law to do so, that they must support their conclusions and decisions through proper reasons and in the absence of any reason, the majority decision is virtually relegated to the position of a non-speaking order and it is on this ground that the order was set aside and the learned Single Judge directed a remand. The present appeals assail the validity of the remand order. 2. We need to refer here at the very outset that appeal Courts seldom entertain challenges to remand orders, but, that the appeal Bench has more than once laid down, as has been done by us some time back, that there are instances when a remand is totally and completely unjustified and in those few cases, the appeal Court may be required to intervene. We have had occasion to refer to the submissions canvassed by the learned Government Pleader, who did point out to us in every one of these cases that the moment some technical flaw is pointed out with regard to the Tribunal's order, that a remand is asked for and that over 2.1 lakh cases have been travelling up from the Tribunal and back to the Tribunal in the course of the last about 30 years and that the whole purpose of the Karnataka Land Reforms Act has been either frustrated in many cases or misused and abused in many others. The learned Government Pleader submitted, as a matter of propriety, that remands could only be justified where there is no other option and where it is absolutely essential and that remand for the sake of remand on the basis of technicalities is not only harsh and inappropriate to the party, who is at the receiving end, but that it is against public purpose. 3. The appellants' learned Counsel submitted before us that the document at Annexure-C conclusively establishes that as far as this 15 guntas of land is concerned, that by order dated 31-10-1963, non-agricultural permission was granted and it is his submission that this was a good ten years prior to the amendment of the Karnataka Land Reforms Act and that irrespective of what contention has been raised by the other side and irrespective of any plea with regard to possession, etc., that in law, the Chairman was 100 per cent right in his finding that no occupancy rights could have been conferred. His submission is that it is a condition precedent under the Karnataka Land Reforms Act that the land in question must be agricultural land and then alone that the Tribunal assumes jurisdiction to grant occupancy rights. The discretion of allowing conversion from agricultural land to non-agricultural activity vests with the Government and Mr. Kulkarni pointed out to us from the record which we have reviewed that the decision of 1963, which was the subject-matter of a lot of debate before the Tribunal, has not been either challenged by the respondents nor has it been set aside. That decision is a final decision of which documentary evidence has been produced and which is unassailable and his submission is that in this background, even assuming that the majority members on the last occasion did not support their decision on merits, that the learned Single Judge totally overlooked the basic principle that even if the Tribunal's order was wrong and had to be set aside, that by remanding the case, no other result could ever have been conceived of. In this view of the matter, the learned Counsel submitted that the only correct course of action for the learned Single Judge was to set aside the Tribunal's order and substitute it, as the superior Courts always do, by a correct speaking order. 4. Mr. In this view of the matter, the learned Counsel submitted that the only correct course of action for the learned Single Judge was to set aside the Tribunal's order and substitute it, as the superior Courts always do, by a correct speaking order. 4. Mr. Shinde, learned Counsel who represents the respondents, submitted that the Tribunal members and the learned Single Judge have taken cognizance of certain other factors, the first of them being that there are other agricultural lands in the immediate vicinity and according to him, the respondents were not at all aware of the so-called conversion because, he maintains that, there are mango trees on that land even as of today, that no building activity has been done, that his clients, according to him, have been in possession and he further contends that it is their case that they are also carrying out some cultivation. The learned Counsel submitted that his clients do not accept the genuineness or correctness of the document Annexure-C and the reason for this being that his clients did apply for a certified copy of the document to the concerned authorities and the same was not forthcoming. The learned Counsel submitted that the land is a valuable piece of property and that obviously, the landowners have managed to procure this document Annexure-C by unfair means or that the same has been fabricated and this is the reason why his clients were unable to get a copy of the same. His further submission is that, there could not be a question of his clients challenging any conversion order because, they could not get a copy of that order at any time from the concerned authorities and it is his submission that this is the strongest evidence in support of the fact that the so-called non-agricultural conversion has not taken place at all. He then proceeded to point out to us that if Annexure-C is doubtful and will have to be rejected, that the Court would have to look at the simple question as to whether the land in question was agricultural land earlier as admittedly it was and secondly, the more important issue that arises under Section 2(18) of the Karnataka Land Reforms Act viz., whether the land is capable of being used for agricultural operations. Here, what he points out to us is that even land on which horticulture is carried out and land on which fruit trees are growing come within the definition of agricultural land and he advanced a strong plea that in these circumstances, it is very necessary that the Tribunal should examine all these aspects of the case and record a correct verdict. 5. The learned Counsel further submitted that this is a case in which admittedly the original applicant was put in-charge of the mango trees though the owners contend that he was only in the nature of a watchman, who was required to collect the mangoes and hand them over to the owners. What Mr. Shinde submits is that the nature of the operation was such that it would come clearly within the ambit of agricultural activity. To this extent, he relies on the averments in the pleadings before the Civil Court wherein the owners have categorised the applicant as a licensee who was allowed to look after the mango trees. His submission is that if the non-agricultural conversion order which is being relied upon were to be discarded as is required to be done, that his clients would straightaway qualify for grant of occupancy rights, and that consequently, the possibility of such a verdict ought not to be ruled out by this Court. While meeting the argument that occupancy rights could never be granted in respect of any land, Mr. Shinde submitted that if his clients are given an opportunity, they will establish that the land in question is agricultural and not non-agricultural and that is the main reason why the order for remand must be upheld. 6. In the first instance, we need to take into account the fact that before the appeal Bench interferes with an order of remand that it must be 100 per cent certain that no other view would be possible that a remand would be totally and completely useless and that it would virtually serve zero purpose. From this point of view, we have very carefully assessed the arguments canvassed by all the three learned Counsels before us. We have also applied our minds independently and very carefully to the entire record of the case that has been set out in the paper book. From this point of view, we have very carefully assessed the arguments canvassed by all the three learned Counsels before us. We have also applied our minds independently and very carefully to the entire record of the case that has been set out in the paper book. What emerges at the end of this exercise is that there is absolutely no ground on which the order dated 31-10-1963 granting non-agricultural permission can be called in question. This order was referred to while the proceedings were before the Tribunal and we do not see any real or valid challenge that has been presented to it. More important, if the order was false or fabricated as is now contended, it was open to the respondents to ask the Tribunal to summon the records or the respondents could have themselves summoned the authority concerned with the records and established once and for all as to whether or not such an order was in existence. The mere statement that certified copies were applied for and were not forthcoming is not good enough. We have also indicated earlier that the legal position is very clear insofar as the revenue authorities are the deciding authorities in matters of granting non-agricultural permission and if the authorities were satisfied and they did accord conversion from agricultural to non-agricultural, then, on and from the date of the order, the lands change complexion. Again, we do not find any record before us to justify the respondents' claim that any agricultural activity was being conducted there even prior to 1963. The existence of a few mango trees would not be sufficient to change the nature and character of the land, but, the more important aspect of the matter is that the appellants have described the original applicant as a licensee, whose duties were to gather the fruits and this status is very different from the status of an agricultural tenant. These are all aspects of the case that we have examined before coming to the conclusion that on the present record, there could never ever be any possibility, even the remotest one, of the Tribunal being able to grant occupancy rights on this record. These are all aspects of the case that we have examined before coming to the conclusion that on the present record, there could never ever be any possibility, even the remotest one, of the Tribunal being able to grant occupancy rights on this record. That being the position, the remand is not only totally unjustified, it would be a miscarriage of justice because, we have referred to the repeated submissions that have emanated from the learned Government Pleader with which we are in total agreement, that where an unjustified remand is directed, that the opposite party is virtually at the receiving end, the torture of lengthy litigation and another round of the case coming up to the higher Court as also the burden on the judicial forums is something that is contraindicated. We do concede however, that it is only in a small minority of cases where all the aforesaid ingredients are present that the Appellate Court will interfere with an order of remand. 7. Having regard to the aforesaid position, in our considered view, since the learned Single Judge was in error in having directed the remand, we partially modify the order passed by the learned Single Judge. While upholding the earlier part of the order setting aside the Tribunal's order granting occupancy rights, we set aside the latest part of it remanding the case. It necessarily follows by implication that the Form 7 stands rejected. The appeals succeed to this extent and stand disposed of. 8. No order as to costs.