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2015 DIGILAW 472 (KAR)

K. Usman Shafi v. State of Karnataka

2015-04-25

N.K.PATIL, RATHNAKALA

body2015
JUDGMENT Rathnakala, J. 1. These appeals are by the aggrieved petitioner of W.P. Nos. 16503 and 17067 to 17069 of 2004, wherein, the learned Single Judge vide order dated 7-12-2011 disposed of the said writ petitions on certain terms. To align the events in chronological order: The appellant's father namely Kunhimonu alias Iddina Beary was a protected tenant under respondents 3 and 4 in respect of lands located in Upinangadi Village, Puttur Taluk, Dakshina Kannada District. He filed Form 7 seeking confirmation of occupancy rights before the Land Tribunal, Puttur Taluk, as follows: Under respondent 3 the lands in Survey No. 42/3 to an extent of 2 acres 50 cents, in Survey No. 43/5 to an extent of 3 acres 63 cents, in Survey No. 42/4 to an extent of 10 cents; under respondent 4 in respect of lands in Survey No. 41/2 to an extent of 1 acre 58 cents, in Survey No. 41/1B to an extent of 0.51 cents, in Survey No. 42/2 to an extent of 1 acre 90 cents, respectively. His application was numbered as LRYT No. 3334/74-75. Respondents 5 to 7 also filed similar applications in respect of some of the above lands, the application of respondent 5 was registered in LRYT No. 917/75-76 and that of respondent 6 is numbered as LRYT No. 3897/74-75. The Land Tribunal conducted separate enquiry in respect of these applications vide order dated 3-12-1976, Kunhimonu was granted occupancy rights in respect of 4 items of lands only by rejecting his prayer in respect of other lands. Respondent 5 was granted occupancy rights in respect of the lands claimed by Kunhimonu, respondent 6 was granted 36 cents of land in Survey No. 41/1B, respondent 7 was conferred occupancy rights in respect of 10 cents in Survey No. 42/4, vide order dated 4-11-1976. The appellant's father challenged the order of the Land Tribunal in rejecting his claim in respect of 4 items in Writ Petition No. 12171 of 1977. He died during the pendency of the said writ petition. The appellant and his two brothers/ respondents 8 and 9 were brought on record. The writ petition was allowed by quashing the order passed by the Land Tribunal in respect of the lands in Survey Nos. He died during the pendency of the said writ petition. The appellant and his two brothers/ respondents 8 and 9 were brought on record. The writ petition was allowed by quashing the order passed by the Land Tribunal in respect of the lands in Survey Nos. 42/3, 43/5, 42/4, 41/1B and 42/2 with a direction to the Land Tribunal to club all the four applications filed by the appellant's father and respondents 5, 6 and 7 and to hold common enquiry. On remand, the Land Tribunal confirmed its earlier order. The order was challenged in W.P. No. 29969 of 1994. The writ petition was allowed vide order dated 23-1-2002, the order of the Land Tribunal was quashed and the matter was remanded for fresh disposal after issuing notice to the concerned parties and to give opportunity to lead evidence. The Land Tribunal, on 29-3-2003 passed the order holding that the land in Survey No. 42/2 measuring 1 acre 90 cents is uncultivated for last 40 to 50 years and rejected the claim. The appellant filed Writ Petition Nos. 16503 of 2004 and 17067 to 17069 of 2004. After giving audience to both the parties, learned Single Judge disposed of the writ petitions on following terms: "(i) The petitioner is entitled for occupancy rights to an extent of 5 acres 33 cents. (ii) Respondent 5 is entitled for occupancy rights to an extent of 2 acres 60 cents. (iii) Respondent 6 is entitled for occupancy rights to an extent of 36 cents. (iv) Respondent 7 is entitled for occupancy rights to an extent of 10 cents. (v) Insofar as Sy. No. 42/2 is concerned, the claim stand rejected. (vi) In Sy. No. 42/3, an extent of 2 acres 21 guntas is granted, notwithstanding the fact that the claim is 5 acres 56 cents. (vii) The Land Tribunal shall carve out the extent of land which has been granted to the petitioner, respondents 5, 6 and 7." 2. Sri A.V. Gangadharappa, learned Counsel for the appellant submits that the learned Single Judge without authority exercised the jurisdiction of the Land Tribunal under Section 48-A of the Karnataka Land Reforms Act, 1961 (hereinafter referred to 'the Act') and had partly allowed the petitions and rejected the claim, so far they relate to portions of the lands claimed by the appellant's father. Without holding proper enquiry and without affording any opportunity to the appellant to adduce his evidence, the Land Tribunal has passed the order impugned which was before the learned Single Judge. The father of the appellant and subsequent to him, the appellant all through are agitating for registration of the occupancy rights in respect of all the six items of lands. Though in the order of Land Tribunal, there is reference to the spot inspection, no notice of the spot inspection was served on him, when he applied for a certified copy of the spot inspection, the same was not furnished to him; if at all such spot mahazar had been conducted, definitely, the Land Tribunal would have furnished the certified copy to him. Hence, the finding of the Land Tribunal that the land in Survey No. 42/2 is not cultivable land and there is a wild growth of forest trees on the land is perverse and incorrect. The Tribunal has proceeded on a wrong approach, that the earlier orders passed by the Tribunal is not set aside by this Court. In the absence of the appellant, statements of two of the respondents was recorded without opportunity to him to cross-examine them. Though the Counsel for the appellant prayed time on his behalf, by bringing to the notice of the Tribunal that the appellant was indisposed, the Tribunal overlooked his submission. The learned Single Judge has drawn adverse presumption against him acting upon the erroneous and arbitrary finding of the Tribunal. Hence, the order of the learned Single Judge and so also the Land Tribunal may be set aside, matter may be remanded to the Tribunal by affording opportunity by him to participate in the enquiry. 3. Sri K. Srihari, learned Counsel representing respondents 7(a), 7(b), 7(d), 7(e), 7(f), 8, 10, 11 and 12, legal heirs of rival tenants, deceased tenants-Muliya Siddanna Hegde and Ibrayi Beary would support the impugned order of the learned Single Judge. 4. The submission of Sri K. Chandranath Ariga, learned Counsel for respondents 13(b) and 13(c), legal heirs of Ramaiah Hegde is to the effect that in respect of the land in Survey No. 42/2 measuring 10 guntas, Ramayya Hegde was a sub-tenant under Siddanna Hegde/the chalageni tenant: He filed Form 7 by mentioning the names of both landlord Basti Gopalakrishna and Siddanna Hegde. The Land Tribunal in its order dated 4-11-1976 has given a finding that it was a non-agricultural land and the said order was never challenged. The appellant herein was not a party in the case LRYT No. 3804/74-75. The owner had given consent before the Tribunal for confirmation of the occupancy rights in his favour. Accordingly, the said land is granted in his favour by the Land Tribunal in LRYT No. 3804/74-75, dated 4-11-1976 has become final. Even the learned Single Judge earmarked the controversy that the nature of the land in Survey No. 42/2 is to be ascertained, in his judgment at para 22. At this length of time, the order of the Tribunal in respect of the land in Survey No. 42/2 may not be disturbed and the appeal is liable to be dismissed as against legal heirs of deceased Ramaiah Hegde. 5. Sri N.K. Ramesh, learned Counsel arguing for respondents 4 and 5, the sons of late Eshwar Bhat/the original owner of the lands bearing Survey Nos. 41/2, 41/1B and 42/2, submits that Survey No. 42/2 was a dry land and was not under cultivation. However, after remand in accordance with the directions by this Court in W.P. No. 29969 of 1994 (KLRA), the Tribunal vide its order dated 27-3-2003 fixed the spot mahazar in the presence of the appellant only. Though opportunity was given to him to cross-examine the respondents, willfully he remained absent and did not file written argument. Since the case had to be disposed of within the time frame fixed by the Court in W.P. No. 1985, the Land Tribunal was constrained to dispose of the case without heeding to the prayer of appellant's Advocate for adjournment. In view of specific direction issued by this Court in W.P. No. 29969 of 1994, the Land Tribunal on conducting spot mahazar passed an order exclusively in respect of Sy. No. 42/2 of Uppinangadi Village by holding the same as non-agricultural land. At no point of time, this land was tenanted and the learned Single Judge rightly on the available material on record has excluded this land from the lis and said finding does not call for interference. 6. No. 42/2 of Uppinangadi Village by holding the same as non-agricultural land. At no point of time, this land was tenanted and the learned Single Judge rightly on the available material on record has excluded this land from the lis and said finding does not call for interference. 6. In the light of the rival submission made at the Bar and also on perusal of the impugned order, it emanates that original tenant Kunhimonu alias Iddina Beary, made application for registration of the occupancy right as the protected tenant under respondent 3-Basti Gopala Krishna and father of respondents 4 and 5 namely late Ishwara Bhat. At the same time, respondents 5 to 7 also filed applications in respect of some of the lands in survey numbers claimed by Kunhimonu. The applications of all the four of them were dealt separately and separate orders were passed as per the table below: 7. Appellant's father challenged in his W.P. No. 12171 of 1977 in respect of the lands rejected for him and granted to respondent 5-Siddanna Hegde and respondent 6-Ebrahim Beary. This Court vide order dated 10-11-1983, quashed the order of the Tribunal insofar it relates to the land in dispute between the tenants and remanded the matter. The Tribunal on 26-11-1985 confirmed its earlier order. The Tribunal had granted 10 cents of land in Survey No. 44/4 in favour of respondent 7-Ramaiah Hegde in LRYT No. 3804/74-75. By then, the original tenant was no more and the present appellant challenged the said order also by amending his Writ Petition No. 18724 of 1985. The writ petition was transferred to Land Reforms Appellate Authority and the matter was set down for recording the evidence. At that stage, Land Reforms Appellate Authority came to be abolished and the matter was brought before this Court. The writ petition was numbered as W.P. No. 29969 of 1994. The W.P. No. 29969 of 1994 came to be allowed vide order dated 23-1-2002 and the matter was remanded to the Land Tribunal vide order dated 29-3-2003. The Tribunal held that the land in Survey No. 42/2 measuring 1 acre 90 cents is a non-cultivated land with wild trees of 50 to 60 years age. 8. On 17-5-2003, the Tribunal passed a common order in respect of lands in LRYT Nos. 3334/74-75, 917/1975-76 and 3897/1974-75 and confirmed the earlier order passed by the Tribunal on 4-11-1976. The Tribunal held that the land in Survey No. 42/2 measuring 1 acre 90 cents is a non-cultivated land with wild trees of 50 to 60 years age. 8. On 17-5-2003, the Tribunal passed a common order in respect of lands in LRYT Nos. 3334/74-75, 917/1975-76 and 3897/1974-75 and confirmed the earlier order passed by the Tribunal on 4-11-1976. The petitioner filed Writ Petition Nos. 16503 and 17067 to 17069 of 2004 on the ground that after the remand, no spot mahazar was held and he had no opportunity to cross-examine the rival tenants-respondents. Thereby, in these writ petitions, he has challenged the order passed by the Land Tribunal on 17-5-2003 in LRYT Nos. 3334/74-75, 917/1975-76 and 3897/1974-75 whereby, occupancy rights is confirmed in favour of respondents 5 to 7 in respect of lands in Survey Nos. 43/1 to an extent of 1 acre 07 cents, 43/3 to an extent of 1 acre 75 cents, 43/2 to an extent of 2 acres 03 cents, 32/2A1 to an extent of 2 acres 72 cents, 32/2B to an extent of 18 cents, 32/2A2 to an extent of 37 cents, 32/2c to an extent of 20 cents, 43/5 (p) to an extent of 87 cents and 42/3(p) to an extent of 2 acres 21 cents and also seeking to quash the order of the Land Tribunal dated 4-11-1976 in LRYT No. 3897/74-75. The learned Single Judge was of the view that, now the controversy is only on Survey No. 42/2 and the matter could have been remitted to ascertain the nature of the land keeping the writ petition proceedings pending. Because of the reluctance on the part of the petitioner, he took over on himself onus of determining the entitlement of each of the tenant to the disputed land and has disposed of the writ petition by determining the entitlement of petitioner and the respondents 5 to 7. On the basis of the observation made by the Land Tribunal that the land in Survey No. 42/2 is not an agricultural land, the claim in respect of the said land is rejected. 9. In the backdrop of the above, a short question that arises for our consideration is: 'Whether the learned Single Judge was justified in deciding the entitlement of occupancy rights of each of the tenant?' 10. 9. In the backdrop of the above, a short question that arises for our consideration is: 'Whether the learned Single Judge was justified in deciding the entitlement of occupancy rights of each of the tenant?' 10. No doubt having noticed that it was a long drawn litigation, several times having taken sojourn between the Land Tribunal and this Court and having in mind to do justice and equity between the parties and to put an end to the protracted litigation, the learned Single Judge might have disposed of the writ petition in the terms supra. 11. The Apex Court in the case of Nirmala J. Jhala vs. State of Gujarat and Another, AIR 2013 SC 1513 : (2013) 4 SCC 301 : (2013) 2 SCC (L and S) 270, at para 6 III, held as under: "III. Scope of judicial review – (i) It is settled legal proposition that judicial review is not akin to adjudication on merits by re-appreciating the evidence as an Appellate Authority. The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings. (Vide State of Tamil Nadu and Another vs. S. Subramaniam, AIR 1996 SC 1232 ; R.S. Saini vs. State of Punjab, (1999) 8 SCC 90 : AIR 1999 SC 3579 and Government of Andhra Pradesh and Others vs. Mohd. Nasrullah Khan, AIR 2006 SC 1214 ) (ii) ........................" 12. Coming back to the matrix on hand, the learned Single Judge in W.P. No. 29969 of 1994 (dated 23-1-2002) while remanding the case, ordered at para 7, which read thus: "7. In the result, the writ petition is allowed. Rule is made absolute. The impugned order dated 9-12-1985 passed by the Land Tribunal, Puttur, Dakshina Kannada District in Case No. LRYT. 3334/74-75, is hereby quashed and the matter is remitted back to the Land Tribunal, Puttur, to consider the case afresh on merits after issuing notices to all the parties concerned and after giving due opportunity to them. It is made clear that, insofar as the land bearing Sy. 3334/74-75, is hereby quashed and the matter is remitted back to the Land Tribunal, Puttur, to consider the case afresh on merits after issuing notices to all the parties concerned and after giving due opportunity to them. It is made clear that, insofar as the land bearing Sy. No. 42/2 of Uppinangadi Village, Puttur Taluk, the Land Tribunal, Puttur has to first decide whether the land is an agricultural land or not and only if it is found that it is an agricultural land then only it gets jurisdiction to decide the tenancy issue and not otherwise." 13. It is needless to remind that 'Enquiry' by the Tribunal is in accordance with Section 48-A of the Act, 1961 and Rule 17 of Karnataka Land Reforms Rules, 1974 read with Section 34 of Karnataka Land Revenue Act, 1964. It is obvious that spot inspection in respect of Survey No. 42/2 of Uppinangadi Village was without notice to the appellant and his statement is not recorded. Statements of two of rival claimants are recorded but it is without cross-examination. When the matter was before Land Reforms Appellate Authority, appellant had filed applications seeking permission to adduce additional evidence. His applications were allowed and the evidence was yet to be recorded and at that stage, the Appellate Authority was abolished, permitting the parties to file application under Section 17 of the Act, 1961. Accordingly, the application filed by the appellant herein was allowed and the same was converted to writ petition and the lis was again before this Court. That being so, the Tribunal could not have overlooked the procedural aspect and so also the direction issued by the Court. It is needless to say that the Tribunal skipped the statutory provision so also the directions issued by this Court and the procedure adopted was vitiated. 14. Hence we are of the considered opinion that learned Single Judge fell into error by acting on fragile and insufficient oral evidence and documentary evidence of improperly held enquiry contrary to the relevant provisions of the Karnataka Land Reforms Act and Karnataka Land Reforms Rules read with Section 34 of the Karnataka Land Revenue Act, 1964. 15. At the same time, it is also to be noted that in W.P. No. 12171 of 1977, the learned Single Judge had set aside the orders passed by Land Tribunal pertaining to land in Sy. Nos. 15. At the same time, it is also to be noted that in W.P. No. 12171 of 1977, the learned Single Judge had set aside the orders passed by Land Tribunal pertaining to land in Sy. Nos. 42/3P measuring 2 acres 31 cents, 43/5P measuring 87 cents, 41/1BP measuring 35 cents, with a direction to the Tribunal for fresh disposal of the claim of the petitioner for the lands in Survey Nos. 42/2 measuring 1 acre 90 cents and 42/4 measuring 10 cents. In view of the discussions supra, the Tribunal is also required to comply the direction issued by learned Single Judge in W.P. No. 12171 of 1977 also. 16. That apart, in the W.P. Nos. 16503 and 17067 to 17069 of 2004, the petitioner had challenged the orders of the Land Tribunal whereby, occupancy right was conferred in favour of respondents 5 to 7, as discussed supra. In the light of the discussion supra, said orders of the Land Tribunal whereby the Tribunal held separate enquiry and conferred occupancy rights in favour of the rival tenants needs to be set aside for such consideration along with the application filed by the father of the appellant herein. That apart, pursuant of the disposal of the writ petition, the Tribunal has passed order on 3-1-2013 Annexure-T, conferring registration of the occupancy right to the petitioner, respondents 5 to 7. Consequent to the setting aside of the order of the learned Single Judge, the subsequent common order passed by the Tribunal on 3-1-2013 in Case Nos. LRYT/3897/74-75, LRYT/3334/74-75 and LRYT/3804/74-75, is nullity in the eye of law and the same has to be set aside. 17. For the present, we are not expressing our opinion on the merits of the case since the very enquiry held by the Tribunal is vitiated and the matter requires to undergo proper enquiry before determining the entitlement of the appellant by strictly adhering to the procedure contemplated under Section 48-A of the Act read with Rule 17 of the Karnataka Land Reforms Rules and Section 34 of Karnataka Land Revenue Act and also as per the direction issued in W.P. No. 29969 of 1994. 18. Accordingly, the appeal is allowed. 19. The judgment of the learned Single Judge in W.P. Nos. 18. Accordingly, the appeal is allowed. 19. The judgment of the learned Single Judge in W.P. Nos. 16503 and 17067 to 17069 of 2004, dated 7-12-2011 and the orders passed by the Land Tribunal, Puttur, Dakshina Kannada District, in: (a) Case No. LRYT. 3334/74-75, dated 29-3-2003. (b) Case Nos. LRYT. 3334/74-75, 917/75-76 and 3897/74-75, dated 17-5-2003, insofar as it relates to conferring occupancy right on respondents 5 to 7 in respect of lands in Survey No. 42/3 measuring 2 acres 50 cents, 43/5 measuring 0.87 cents, 42/4 measuring 0.10 cents, 41/1B measuring 0.15 cents and Survey No. 42/2 measuring 1 acre 90 cents of Uppinangady Village, Puttur Taluk. (c) Case No. LRYT. 3804/74-75, dated 4-11-1976 (insofar as it relates to Survey No. 42/4 measuring 0.10 cents of Uppinangadi Village, Puttur Taluk). (d) Case Nos. LRYT. 3897/74-75, 3334/74-75 and 3804/74-75 and 917/75-76, dated 3-1-2013, are hereby quashed. 20. The matter is remitted back to the Land Tribunal, Puttur, for fresh consideration strictly in accordance with the direction issued in W.P. No. 29969 of 1994, dated 23-1-2002 and also W.P. No. 12171 of 1977 (disposed of on 10-11-1983), in strict adherence to the procedure contemplated by Section 48-A of the Karnataka Land Reforms Act and Rule 17 of the Karnataka Land Reforms Rules, 1974 as expeditiously as possible. 21. The parties are directed to co-operate with the Tribunal for speedy disposal of the case. However, the case shall be disposed of within an outer limit of eight months from the date of appearance of the parties/service of notice on them. Parties are directed to appear before the Tribunal on 2nd June, 2015 and be informed about the further date of hearing. All the contentions are left open. In view of disposal of the main appeals on merits. I.A. Nos. 1 of 2012 and 2 of 2013 does not survive for consideration and hence, they are also disposed of as having become infructuous. Appeal Allowed.