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2017 DIGILAW 825 (KAR)

Sambappa v. Syed Ahmed

2017-05-04

B.S.PATIL

body2017
JUDGMENT : 1. This Writ Petition is filed by the tenant aggrieved by the order passed by the Land Tribunal, Mysore Taluk, Mysore, thereby rejecting the application filed by him in Form No.7 seeking grant of occupancy rights as per the provisions contained under Section 48A of the Karnataka Land Reforms Act, 1961. 2. An application was filed by late Sambappa S/o Kempe Nanjappa. After his death, his legal representatives have come on record before the Tribunal and have prosecuted the case. The impugned order passed by the Tribunal is produced at Annexure-D. The same has been passed on 14.02.2007. Indeed, this was the third round of litigation before the Tribunal. On earlier two occasions, the Tribunal had conferred occupancy rights in favour of the tenant Sambappa. But, the same was set aside by this Court at the instance of the land owner-Syed Ahmed. The first Writ Petition was filed in W.P.No.9448/1976. The said Writ Petition was allowed remanding the matter back to the Land Tribunal with a direction to dispose of the same in accordance with law. This order was passed on 17.02.1977. After remand, the Tribunal again granted occupancy rights in respect of the land in question measuring 1 acre 22 guntas comprising Sy.No.71 of Belavatta Village, Mysore Taluk. The same was again challenged by the land owner-Syed Ahmed in W.P.No.13043/1977. This Court allowed the Writ Petition on the short ground that enquiry conducted by the Tribunal was not in accordance with the mandatory requirement of Rule 17 of the Karnataka Land Reforms Rules, 1974. The relevant portion of this order is extracted as under:- “2. It is seen from the records produced by the learned Government Advocate that the Chairman of the Tribunal is one B. Mahalingappa. But it does not appear from the records that he had recorded the statements of the parties and their witnesses. The statements do not bear the signature of the Chairman and therefore it is not clear as to who are the persons who recorded the statements. Further, the spot inspection report made on 23.8.1977 is not in the hand-writing in the handwriting of the person who wrote the report and the person who took down the statements. Further, the impugned order is also not in the handwriting of the Chairman and the same appears to have been dictated to a Kannada Stenographer and typed to the dictation of the Chairman. Further, the impugned order is also not in the handwriting of the Chairman and the same appears to have been dictated to a Kannada Stenographer and typed to the dictation of the Chairman. 3. In the circumstances, this Petition is allowed. The impugned order is quashed being violative of the requirements of Rule 17 of the Rules and the matter is remitted to the Tribunal for fresh disposal in accordance with law.” 3. Thereafter on 21.03.2002, the Tribunal passed a fresh order confirming occupancy rights in favour of the tenant. This order was challenged by the land owner in W.P. No. 24817/2002. The Writ Petition was disposed of on 21.02.2004 by holding that the Tribunal had committed an error of law in as much as it had failed to comply with Rule 17 of the Karnataka Land Reforms Rules read with Section 34 of the Karnataka Land Revenue Act and the Tribunal had also failed to record any finding regarding the existence of relationship of landlord and tenant and as to whether the land had vested in the State as on 01.03.1974. Accordingly, the Writ Petition was allowed. The order passed by the Land Tribunal was set aside and matter was remitted back for fresh consideration by the Land Tribunal, Mysore with the following directions: “i. The Land Tribunal, Mysore is hereby directed to conduct enquiry in strict compliance of Rule 17 of the Karnataka Land Reforms Rules read with Section 34 of the Karnataka Land Revenue Act and the directions issued by this Court on 04.01.1983 in W.P.No.13043/1997 and other orders passed by the this Court and to pass appropriate orders. ii. The Land Tribunal is directed to permit the petitioners 1(a) to (g) and the 3rd respondent herein to adduce oral and documentary evidence to substantiate their respective claims and thereafter, pass appropriate orders as expeditiously as possible taking into consideration with the matter is pending since decades between the parties.” 4. It is, pursuant to this order, the Land Tribunal has passed the impugned order at Annexure-D on 14.02.2007 after conducting fresh enquiry. After hearing the writ petition this Court found that the Tribunal had failed to comply with Rule 17 of the Karnataka Land Reforms Rules, which was mandatory. Therefore, the matter was again remanded back to the Tribunal for fresh consideration. A Writ Appeal was filed against this order in W.A.No.4521/2013. After hearing the writ petition this Court found that the Tribunal had failed to comply with Rule 17 of the Karnataka Land Reforms Rules, which was mandatory. Therefore, the matter was again remanded back to the Tribunal for fresh consideration. A Writ Appeal was filed against this order in W.A.No.4521/2013. The Writ Appeal was allowed on 30th January 2015 holding that the learned Single Judge had not stated how the Land Tribunal had committed an error in not complying with Rule 17 and in the absence of any reasons assigned in the order passed by the learned Single Judge to show how Rule 17 was not complied with, it was difficult to sustain the said order. Accordingly, while allowing the Writ Appeal, the Writ Petition is ordered to be reconsidered in accordance with law. This is how the matter is listed before this Court. 5. I have heard the learned counsel for the petitioners and the learned Government Advocate. Counsel appearing for contesting respondents is not present. The Government Advocate has made available original records. 6. Main contention urged by the learned counsel for the petitioner is that Tribunal failed to comply with the mandatory requirements of Rule 17 of the Karnataka Land Reforms Rules, 1974 which mandates that summary enquiry as contemplated under Section 34 of the Karnataka Land Revenue Act, 1964 has to be held in respect of the applications made before the Tribunal. He further points out that as per Section 34 of the Karnataka Land Revenue Act, while conducting summary inquiry, the officer conducting such inquiry shall record in his own hand, in Kannada or in English or in any other language of the taluk or village as declared by State Government, the summary of the evidence and a minute of the proceedings containing the material averment made by the parties interested and the decision and the reasons for the same. It is urged by the learned counsel that in the instant case, the Tribunal has not conducted summary inquiry as contemplated under Section 34 of the Karnataka Land Revenue Act. 7. It is urged by the learned counsel that in the instant case, the Tribunal has not conducted summary inquiry as contemplated under Section 34 of the Karnataka Land Revenue Act. 7. It is his next contention that the revenue records for the period from 1960 to 1970 stood in the name of the tenant, but subsequent thereof, the entries were changed in the name of the owner without valid mutation proceedings and therefore, the Tribunal ought not to have relied on the said entries in the revenue records as on 1.03.1974. 8. I have carefully considered these two contentions in the light of the evidence on record and the findings recorded by the Tribunal. As can be seen from the impugned order – Annexure-D, on 3.05.2006, counsel for petitioners herein appeared before the Tribunal and stated that they have no evidence to be adduced for the tenant in the matter and whatever evidence had been already adduced may be treated as evidence for the purpose of present enquiry. It is in this background, the Tribunal has proceeded on the basis that there was no fresh evidence that the applicant intended to adduce and the evidence which was already on record had to be looked into. However, the Tribunal has provided an opportunity to the other side to cross-examine the legal representative of the tenant. The owner has availed the opportunity to cross-examine. 9. Similarly, on behalf of the original owner, his legal representative has filed an affidavit dated 13.12.2006. This statement has been taken as written statement filed on behalf of the owner and he has been also subjected to cross-examination by the tenant. Thereafter, the Tribunal has considered the evidence already on record in the proceedings and the evidence of the legal representative of the tenant and also the legal representative of the owner in the form of written statement and cross-examination and has passed the impugned order. It has held that as directed by this Court it had followed the procedure prescribed in terms of Rule 17 of the Karnataka Land Reforms Rules and that evidence on record revealed that the land was not a tenanted land as on 01.03.1974 because the tenant failed to establish that he was lawfully cultivating the land as on the appointed date namely 01.03.1974 as tenant under the original owner Sri Syed Ahmed son of Syed Abdul Razak. In coming to this conclusion, the Tribunal has examined the assertion made by the tenant that for certain period from 1970 onwards, owner had got the entries effected in his favour by manipulating them and therefore, those entries could not be regarded as genuine one. It has rejected this stand of the tenant holding that there was nothing to show that any such manipulation had taken place. It has placed reliance on the revenue entries for the period from 1970 onwards which stood in the name of the land owner showing him as actual owner and cultivator of the land. In addition, it has also taken note of the fact that the legal representatives of the tenant expressed ignorance with regard to gutta (rent) paid to the land owner, the details of the survey number, when the land was converted into irrigated land from a dry land, etc. The Tribunal has therefore inferred from the cross-examination of the witness (legal representatives of the owner) that he had no correct or accurate information with regard to the land in question and the alleged tenancy. The Tribunal has also found that if really the land was a tenanted land as on 01.03.1974 or immediately prior thereto the revenue records could have shown the name of the tenant as actual cultivator and also the capacity under which he was cultivating the land. The Tribunal has also come to the conclusion that levy receipts placed before it did not disclose that tenant was cultivating the land in question and had grown crop in the said land. 10. The documents produced by the owner and the evidence given by the son of the owner by name Syed Iftikar Ahmed have been examined and accepted by the Tribunal to come to the conclusion that as on 01.03.1974 or immediately prior thereof name of Syed Ahmed had been mentioned as owner and cultivator of the land and the name of the tenant was not at all mentioned and therefore, the land could not be treated as tenanted land as on the appointed date so as to successfully lay a claim in respect of land in question. This finding of the Tribunal which is based on appreciation of evidence on record cannot be characterized as perverse so as to warrant interference in exercise of writ jurisdiction. 11. This finding of the Tribunal which is based on appreciation of evidence on record cannot be characterized as perverse so as to warrant interference in exercise of writ jurisdiction. 11. Insofar as the contention that Rule 17 of the Karnataka Land Reforms Rules has not been followed, it has to be stated that Rule 17 requires that summary enquiry as contemplated under Section 34 of the Karnataka Land Revenue Act has to be held. In this matter the very tenant has appeared before the Tribunal and submitted through his advocate that they have no evidence to adduce in the matter and that evidence adduced earlier may be treated as evidence on their behalf. It is in this background whatever documents had been earlier produced and whatever materials that had been placed by the predecessor-in-title of the writ petitioners was treated as material on behalf of the tenants. The legal representative of the tenant offered himself for cross-examination with regard to the said documentary evidence. After subjecting him to cross-examination, the written statement filed by way of affidavit by the legal representatives of the land owner was received and he was subjected to cross-examination. This procedure adopted cannot be regarded as contrary to Rule 17 read with Section 34. Indeed, this is in the nature of formal enquiry although the requirement is only summary enquiry. There is nothing to show that evidence by way of cross-examination was not recorded by the Tribunal. Indeed, the same has been recorded in detail and has been considered extensively by the Tribunal. It cannot be said that the Tribunal cannot receive written statement or sworn statement produced by the parties as long as the person who files the affidavit offers himself for cross-examination and the other party avails the opportunity of cross-examination. The procedural requirement stands satisfied because the evidence given by way of affidavit is tested by cross-examination. Hence, this contention advanced by the learned counsel for the petitioners cannot be accepted. Therefore, I am of the view that the Tribunal has not committed any illegality in passing the impugned order rejecting the application filed by the tenant. Hence, the writ petition being devoid of merit is dismissed.