Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 181 (KAR)

Honnappa S/o Saibanna v. Land Tribunal Sedam

2008-03-12

D.V.SHYLENDRA KUMAR

body2008
ORDER This writ petition arises in the background of the provisions of Sections 63, 64, 65, 66, 67 etc, in Chapter- IV of the Karnataka Land Reforms Act, 1961 (for short, the Act.) 2. Writ petitioners are incidentally beneficiaries of the provisions of the Act, Particularly Section 77 of the Act, which provides for disposal of surplus lands vested in the State in favor of landless persons belonging to SC/ST community subject to certain conditions. 3. Petitioners, four in number, became beneficiaries of and one such grant order dated 20-1-1976, said to have been passed by the Land Tribunal, Sedam as a sequel to its order dated 11-10-1967, by which the tribunal had determined a surplus holding of about 175 acres 15 guntas of land as a result of its proceedings in No. LRY/DEC/553/74-75 etc. While passing the order in these four cases, the tribunal, it appears, clubbed together the declarations filed by one Syed Barker Hussain with the declarations filed by his kith and kin and had taken that the four declarants together constitute one family and had determined surplus holdings on such premise. The order of the tribunal had been questioned by the declarants by filing WP Nos 5587-91 of 1977, amongst which, the writ Petition of the present third respondent figured as WP No 5588 of 1977. In terms of order dated 28-3-1983, this Court allowed this writ petition, set aside the order of the tribunal for not having followed due procedure and remanded the matter for fresh disposal in accordance with law. 4. In terms of order dated 28-3-1983, this Court allowed this writ petition, set aside the order of the tribunal for not having followed due procedure and remanded the matter for fresh disposal in accordance with law. 4. The tribunal, which did not notice the further developments such as part of surplus holding had already been granted in favour of the petitioners herein under Section 77 of the Act, proceeded to issue notices only to the declarants and heard the matter in so far as the declaration of the present third respondent Smt. Hussain Saheba Bee is concerned, passed an order on 26-12-1987, holding that the declarant who had indicated to be the owner to an extent of 55 acres of land comprised in five survey numbers, the total extent of 65 acres 22 guntas was to be held as holding of lands within the ceiling limit, as an extent of 12 acres 11 guntas in Sy No 524/1 of Sedam village, according to the tribunal, was a tenanted land and which had been granted in favour of a tenant, and therefore should be excluded from the holding of the declarant and if so excluded, the remaining extent of land being 53 acres 1 gunta i.e. within the celling limit of 54 acres of ‘D’ class land should be held that the declarant was not required to surrender any land and can retain the lands in the other survey numbers also. 5. The tribunal though passed such order, it appears, no consequential action had been taken and the petitioners continued to remain in possession of the land which had already been granted in their favour in the year 1977, though was part of the lands in respect of which declaration was filed by the third respondent and being comprised in Sy No 529 of the very village measuring 12 acres 7 guntas. 6. It appears, the tribunal suo motu reviewed its order yet again on 18-6-1996, a copy of which produced at Annexure-D to the writ petition, but affirmed its earlier order. The follow up action, it appears, was taken up for resumption of the lands from the petitioners in terms of four notices dated 20-3-2000 issued by the Assistant Commissioner. 6. It appears, the tribunal suo motu reviewed its order yet again on 18-6-1996, a copy of which produced at Annexure-D to the writ petition, but affirmed its earlier order. The follow up action, it appears, was taken up for resumption of the lands from the petitioners in terms of four notices dated 20-3-2000 issued by the Assistant Commissioner. Petitioners, who got alerted by issue of these notices, approached this Court by filing WP Nos 32764-67 of 2002, questioning not only the legality of these notices received by them but also the order passed by the tribunal on 19-6-1996 i.e. the order passed by the tribunal on remand from this Court in respect of its earlier order dated 11-10-1976. 7. It appears, in the meanwhile, the Assistant Commissioner proceeded to pass an order dated 31-8-2002, a copy of which produced at Annexure-G to the wit petition, reciting the developments and cancelling the earlier grant made in favour of the petitioners and consequently directed resumption of the land which had been granted in favour of the petitioners. It is thereafter when this order was sought to be given effect to, the petitioners have yet again approached this Court by filing the present writ petition and have obtained an interim order of stay to protect their possession and continue the possession. 8. Rule had been issued and the respondents had been put on notice and the respondents - land tribunal and the Assistant Commissioner are represented by Sri R. K. Hatti, learned Government Pleader and the third respondent is represented by Sri G Balakrishna Shastry. Statements of objections have been filed on behalf of the Assistant Commissioner as well as the third respondent. 9. Statements of objections have been filed on behalf of the Assistant Commissioner as well as the third respondent. 9. During the pendency of the writ petition, the petitioners have filed further applications seeking for protection of their possession by way of a restraint order and for bringing some additional materials particularly the proceedings of the tribunal in respect of the pendency of an application filed by one Thammanna, a person in whose favour the land bearing Sy No 524/1 had been granted by the land tribunal, but questioned by the third respondent in a writ petition and the matter having been remanded to the tribunal at her instance, is still pending consideration before the tribunal after the remand, and to contend that the very third respondent had indicated in these proceedings that she was only in cultivation of the land and not tenant was in cultivation of the land etc. 10. Appearing on behalf of the writ petitioners, submission of Sri D. Ameet Kumar, learned Counsel, is that the petitioners though are not parties to the proceedings before the tribunal in the cases requiring to be examined by the tribunal for determination of surplus holding of the declarant, they having been put in possession of certain parcels of land found to be surplus holdings of the declarant and that having happened in the year 1977 and ever since the petitioners have been in possession and cultivation of the land, if such grants were to be cancelled at a much later point of time, particularly in terms of the order of the year 2002, and as a sequel to the earlier orders of the tribunal, about which the petitioners are not aware of, it was only proper that they should have been given an opportunity of hearing before passing such orders, which, undoubtedly has the effect of affecting the interest of the petitioners also. 11. 11. With reference to the provisions of Section 122-A of the Act, Sri Ameet Kumar submits that if the order is to be reviewed, it is necessarily that the authority has to issue notice to all interested persons; that the petitioners herein can definitely be said to be interested persons, as the proceedings definitely can have a bearing on the petitioners in there being possibility of losing the lands granted in their favour and therefore submits that the petitioners should have been given an opportunity to have their say in such proceedings. Submission is that Annexure-G order being merely a consequential order, which definitely affects the petitioners, interest any other proceedings which can lead to such order are proceedings which are affected the interests of the petitioners and therefore the principles of natural justice requires all the persons who are likely to be affected should be given an opportunity or should be put on notice before passing any such orders. 12. It is the submission of learned Counsel for the petitioners that even today the petitioners are in possession and cultivation of the land and therefore they have every right to be heard in any proceedings which can be affected their present possession and the order of the tribunal to be taken to be bad. Learned Counsel would submit in this regard that the petitioners could have definitely pointed out to the tribunal whether the earlier order calls for any modification, particularly the order of the tribunal which had determined the surplus holding of 175 acres of the original declarant and if that order could be demonstrated to be a correct order, the petitioners would not have the present sufferings and consequences. Learned Counsel, therefore, urges for quashing of not only the order passed by the Assistant Commissioner under Annexure-G, but also the orders passed by the land tribunal under Annexure-D and C, both of them being one and the same, but the latter order being affirmation of the earlier order, they should be quashed and the matter remanded to the tribunal for proper enquiry and pass orders afresh. 13. Writ petition is totally opposed by Sri G. Balakrishna Shastry, learned Counsel for the third respondent. 13. Writ petition is totally opposed by Sri G. Balakrishna Shastry, learned Counsel for the third respondent. Sri Shastri submits that the petitioners in the first instance have no locus to question the orders passed by the tribunal in determining the holdings of surplus of the third respondent, as to whether it is surplus or otherwise. What is submitted is that petitioners are third parties to the proceedings before the land tribunal to determine surplus holding of a declarant; that the proceedings are not as though proceedings in rem, but they are virtually proceedings between the declarant and the State and the petitioners, if at all be persons who entered into the scene later and under different provisions of law viz., Section 77 of the Act, can nevertheless be said that they should also be heard before passing the impugned order, wherein surplus holding of the declarant is sought to be determined in terms of Section 63 of the Act. It is therefore urged that this Court should not examine the merits of the orders passed by the tribunal either under Section 87 or under Section 88 of the Act and if that cannot be examined, the petitioners cannot question the consequential action of the Assistant Commissioner, which is inevitable and which follows as a matter of course. 14. Alternative submission of learned Counsel for the third respondent is that the writ petition is also hit by delay and laches and is to be dismissed straight away; that and order passed by the land tribunal way back in the year 1987 cannot be questioned by filing a writ petition in the year 2005 and it is hopelessly hit by delay and laches and should be dismissed out rightly. It is submitted in this regard that even with reference to the order passed in the year 1996 (Annexure-D), writ petition being filed nine years thereafter, is again one suffering from undue delay and laches. 15. It is submitted in this regard that even with reference to the order passed in the year 1996 (Annexure-D), writ petition being filed nine years thereafter, is again one suffering from undue delay and laches. 15. One another argument in this regard advanced by Sri Shastri is that the petitioners though might have questioned the legality of the notice dated 20-3-2000 by filling WP No. 32764-67 of 2002, having not pursued these writ petitions to its logical conclusion and particularly having questioned the legality of the order of the land tribunal passed on 18-6-1996, and having abandoned those writ petitions and this Court having reserved liberty to the petitioners to question the validity of the subsequent order of the Assistant Commissioner, as a development subsequent to the filing of the writ petitions, the petitioners should not be permitted to question the legality of the land tribunal order passed on 19-6-1996, concluding that the third respondent declarant did not have any surplus land in her holding. 16. Learned Counsel for the third respondent would submit that the principles following the provisions of Order II, Rule 2 CPC would act in the way of the petitioners agitating the correctness or otherwise of the order of the land tribunal in the present writ petition, though the petitioners perhaps may question the legality of the order dated 31-8-2002 if they are able to explain the delay in preferring the writ petition even to question this order. 17. Sri R. K. Hatti, learned Government Pleader, appearing on behalf of the State, has made available the records and submits that the petitioners in fact have not locus to question the orders of the land tribunal in so far as they relate to the determination of the surplus holding of the declarant and with regard to the order passed by the Assistant Commissioner, submission is that the Assistant Commi-ssioner has the power to grant any land or to withhold or cancel land and the Assistant Commissioner having such power, the petitioners cannot find fault with the cancellation order passed by the Assistant Commissioner, particularly, as the Assistant Commissioner is bound to give effect to the orders passed by the land tribunal in holding that the third respondent declarant did not have any surplus holding in her possession and therefore urges for dismissal of the writ petition. 18. 18. I have given my anxious consideration to the submissions made at the Bar. A perusal of the records placed before the Court does not necessarily indicate that the tribunal had examined the declarations on their merit and had passed orders on a proper evaluation of the nature of holding of each declarant and entitlement of the declarant. In the earlier round, the tribunal had proceeded on the premise that the declarations are to be clubbed together being by persons of one family. In the present round in terms of the orders at Annexure-C and D, it is indicated that the third respondent declarant is treated a separate declarant and particularly as she is not a member of the family of the original declarant i.e. father of third respondent. It is no where indicated that the declarations were in respect of holdings of each declarant. While the argument that third respondent would constitute a family separate from the family of her father Syed Barker Hussain can be a valid argument if the declaration was in respect of holdings of third respondent. That arguments fails if the declaration filed by the third respondent is not in respect of her own holdings but in respect of holdings of her father and claiming a right in that holding. 19. That arguments fails if the declaration filed by the third respondent is not in respect of her own holdings but in respect of holdings of her father and claiming a right in that holding. 19. In so far as the argument relating to the locus standi is concerned, while it is true that the writ petitioners are not necessary parties before the land tribunal in the matter of determination of surplus holding of a declarant and that was the position in the first instance, as the petitioners have acquired some interest in the subject lands after the tribunal passed its first order and petitioners have been put in possession and continued to remain in possession and cultivation of the lands, as a consequence of the initial order dated 11-10-1976 and having been put in possession some time thereafter in the year 1977 have continued to remain in possession till now, it is only proper they are given opportunity even before the land tribunal as if the tribunal concludes that the declarant does not have any surplus holding, one of the consequences is on the writ petitioners to lose their lands and to this extent it should be said that they have, subsequent to the grant order have acquired interest in the proceeding and should be given an opportunity before the tribunal to put forth their version. 20. One another reason for so concluding is that the grant order recites that it is pursuant to the proceedings of the land tribunal. If the very land tribunal had granted some part of the surplus holding in favour of the petitioner, it is only proper that the land tribunal issues notice to such grantees if it has to pass an order which is in variance to its earlier order. I say so for the reason that opportunity or hearing before the Assistant Commissioner, who cancelled the grant earlier made will not be of any use or benefit to the petitoners, as the Assistant Commissioner has to simply give effect to the orders of land tribunal, cannot take any decision independently at variance to the order passed by the tribunal. It is the only real opportunity which the petitioners can get is before the land tribunal and therefore I am of the view that the petitioners have the sufficient locus to question that order of the tribunal. 21. It is the only real opportunity which the petitioners can get is before the land tribunal and therefore I am of the view that the petitioners have the sufficient locus to question that order of the tribunal. 21. In so far as the question of delay and laches is concerned, I find that the proceedings subsequent to 1977 are all without notice to the petitioners and the petitioners if at all became aware of the developments for the first time only in the year 2000 when they received notices from the Assistant Commissioner proposing cancellation/resumption. The petitioners in fact had filed writ petitions before this Court in the year 2002 nad to that extent had agitated their right before this Court. Withdrawal of the writ petitions was for the reason that subsequent order of the Assistant Commissioner in fact cancelled the grant itself and therefore it became necessary for them to file a fresh writ petition. It is no doubt true that there is some interval between the withdrawal of earlier writ petition in the year 2003 and filing of the present writ petition in the year 2005, but the petitioners, if continue to remain in possession and having not been dispossessed, so long as they are in possession, their possession is threatened by any subsequent action, it cannot be said that the cause of action is stale and the being in possession provides them a live cause of action to defend their existing possession. Therefore, I am of the view that the petition is not to be dismissed only on the ground of delay and laches. 22. Therefore, I am of the view that the petition is not to be dismissed only on the ground of delay and laches. 22. In so far as the merits of the petition is concerned, as noticed earlier, while the land tribunal has not discussed with regard to the actual holding of the declarant and the consequences that can follow in law if the declarant was not the holder of the lands in terms of the declaration, the tribunal will have to determine the definition of the family as is indicated in sub-Section (12) of Section 2 of the Act and the four situations mentioned therein in clauses (a) to (d) operate separately, irrespective of the fact that the family itself is the holder of lands in respect of which declaration is filed and it cannot be treated as the situations whether if holdings are of family contemplated in any of the situations under clauses (a) to (d) and other members of the very family, who can otherwise become a family by themselves claiming as a part of the declarant’s family, but nevertheless, entitle for holding because of the definition otherwise and therefore can file a declaration even in respect of surplus of the main member of the family. A declaration filed by one family holds good for all members of that family and in respect of the lands held by that family. It is not as though in respect of surplus holdings of one family the other members who can also come within the definition of family, but who do not have any holding in their names can file declarations, has been part of the main family, which has filed a declaration. Unless the other declarations filed by other members of the family are shown to be declarations in respect of their own surplus holdings there is no question of several persons claiming the status of ‘family’ under one declaration and seeking to make several declarations without the holdings are in the name of one person or one family. The land tribunal is required to evince awarencess to this position of law while examining the surplus holding of any family. 23. The land tribunal is required to evince awarencess to this position of law while examining the surplus holding of any family. 23. In the result, this writ petition has to be allowed, as the impugned orders passed by the land tribunal, either in the year 1986 or in the year 1996, are not fully in conformity with the requirement of law nor in consonance with the remand order passed by this Court directing the land tribunal to dispose of the declarations in accordance with law and after following the procedure as contemplated. The orders at Annexure ‘C’ nad ‘D’ are quashed by issue of writ of certiorari. Consequently, the order of the Assistant Commissioner at Annexure-G also stands quashed. The matter is remanded to the land tribunal, Sedam for fresh examination of the declaration filed by third respondent in accordance with law and in the light of the discussions in this writ petition, particularly with regard to the definition of ‘family’ and the entitlement of family in the Act for surplus holding of the family. Rule made absolute. 24. As a consequence to quashing of the impugned orders and in view of the fact that the petitioners have already been in possession and continued to remain in possession of the lands in question, even in terms of a factual report dated 28-8-2007 submitted by the Tahsildar, the possession of the petitioners is protected pending fresh order by the land tribunal in the proceedings before it and possession shall govern the order to be passed by the land tribunal, while taking suitable consequential action depending on the order to be passed by the land tribunal.