Karnataka High Court
Smt. Parvathi W/O Mahlingappa And Ors vs The State Of Karnataka & Ors on 6 June, 2017
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NOS.102911/2013
C/W 201464/2014 (LR)
IN WP NO.102911/2013
BETWEEN
1. SMT. PARVATHI
W/O MAHALINGAPPA,
AGED ABOUT 65 YEARS,
2. SRI. MALLAPPA
S/O MAHALINGAPPA,
AGED ABOUT 45 YEARS,
3. SMT. JAGADEVI
D/O MAHALINGAPPA
AGED ABOUT 35 YEARS,
ALL ARE RESIDENT OF KARMOOD VILLAGE,
TQ. KAMALAPUR, DIST. GULBARGA-585101.
... PETITIONERS
(BY SRI.RAVI.B.PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
THROUGH SECRETARY TO
REVENUE DEPARTMENT,
M.S.BUILDING,
BANGALORE-560 001.
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2. THE LAND TRIBUNAL
GULBARGA-585102
THROUGH ITS SECRETARY
3. SRI. NAGAMURTHY
S/O BANESHAPPA,
AGED ABOUT 58 YEARS,
OCC: GOVT. SERVANT TEACHER,
R/O JAVALGA, TQ. BHALKI,
DIST. BIDAR-585328.
4. SMT. SUBHADRABAI
W/O BANESHAPPA,
AGED ABOUT 68 YEARS,
R/O KALMOOD VILLAGE,
TQ. & DIST. GULBARGA-585103.
... RESPONDENTS
(BY. SRI.A.SYED HABEEB, AGA FOR R1 & R2)
(BY. SRI.JAMBAYYA SWAMI HIREMATH, ADV. FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 &
227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI, SIMILAR WRIT, ORDER OR
DIRECTIONS AND QUASH THE ORDER IMPUGNED PASSED BY
THE LAND TRIBUNAL GULBARGA IN FILE NO.LRA/TNC/27/79-
80 DATED 26.11.2012, AS AT ANNEXURE-D AND
CONSEQUENTIALLY DISMISS THE PROCEEDINGS IN ENTIRETY
AND PASS SUCH OTHER ORDER/S AS THIS HON'BLE COURT
DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE INCLUDING
AN ORDER AS TO THE COSTS OF THE PRESENT WRIT
PETITION.
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IN WP NO.201464/2014
BETWEEN
NAGAMURTHY S/O BANNESHAPPA,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O KALMOOD VILLAGE,
TQ. & DIST: GULBARGA-585 104.
... PETITIONER
(BY SRI.RAVI.B.PATIL, ADVOCATE)
AND
1. THE CHAIRMAN
LAND TRIBUNAL AND
THE ASST. COMMISSIONER,
GULBARGA SUB-DIVISION
GULBARGA-585101.
2. The Tahasildar,
Gulbarga Taluka,
Gulbarga-585101.
3. THE DEPUTY COMMISSIONER,
GULBARGA DISTRICT,
GULBARGA.
... RESPONDENTS
(BY. SRI.A.SYED HABEEB, AGA FOR R1 & R2)
(BY. SRI.JAMBAYYA SWAMI HIREMATH, ADV. FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 &
227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI IN NATURE OR ANY OTHER APPROPRIATE WRIT
OR ORDER OR DIRECTION QUASHING THE IMPUGNED ORDER
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BEARING NO. NO.LRA/TNC/27/79-80 DATED 26.11.2012
PRODUCED AT ANNEXURE-F TO THE WRIT PETITION.
ISSUE A WRIT OF MANDAMUS OR ANY OTHER
APPROPRIATE ORDER OR DIRECTION DIRECTING THE
RESPONDENTS IN THE FACTS AND CIRCUMSTANCES OF THE
CASE AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for both the parties. The W.P.No.102911/2013 filed by the alleged landlord and W.P.No.201464/2014 filed by the alleged tenant against the order dated 26.11.2012 made in LRA/TNC/27/79-80 as per Annexure-D & F respectively vesting land into Stage Government by the impugned order of the Tribunal.
02. It is the case of the petitioners in W.P.102911/2013 that they are the legal 5 representatives of the deceased Mahalingappa S/o Siddappa who was the lawful owner in possession of the land in Sy.No.75/4/2/1a measuring 5 acres 24 guntas of Kalmood village, Taluka Kamalapur, District Gulbarga. The said land was cultivated by the deceased Mahalingappa by engaging agricultural labor till 1982 and he was in peaceful possession and enjoyment of the same. It is the further case of the petitioners that one alleged Baneshappa S/o Bhujangappa filed Form No.7 claiming to be tenant in respect of the said lands and the Tribunal by an ex-parte order dated 20.02.1982 granted occupancy rights in favour of the said Banneshappa without the knowledge of the land owner Sri. Mahalingappa. Against the said order passed by the Land Tribunal, the petitioners filed W.P.No.33235/1995 before this court. This court after hearing both the parties on 14.11.2000 set aside the order of Land Tribunal and the matter was remanded to the Land Tribunal for fresh consideration after providing 6 opportunity to the petitioners. It is further case of the petitioners that the Land Tribunal issued notice to both the parties and 3rd respondent being the alleged son of the deceased Baneshappa who has examined as witness and admitting that there was no material produced to substantiate the alleged tenancy of the deceased Baneshappa and Form No.7 submitted by the deceased claiming tenancy occupancy rights in respect of the land in question. It is further case of the petitioners that the Land Tribunal though having come to the conclusion that the alleged tenancy of the deceased Baneshappa over the disputed land has not been proved, however holds that the land is a tenanted land and passed the impugned order holding that the land to be vested with the State Government on the basis of the alleged entries in column No.12(2) of the Pahani by the impugned order dated 26.11.2012.
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03. It is the case of the petitioner in W.P.No.201464/2014 that the original tenant Sri. Banneshappa S/o Bhujangappa died on 02.04.1993. The present petitioner who is the son of said Banneshappa and the Deputy Collector Gulbarga has granted land Sy.No.75 measuring 16 acres 1 gunta in favour of Banneshappa under Sub.Sec.6 of Sec.38 of Hyderabad Tenancy and Agricultural Lands Act 1950. Subsequently the Land Tribunal has also granted occupancy rights in the name of father of the petitioner on 20.02.1982 in respect of Sy.No.75/4/2/1-A measuring 5 acres 24 guntas and the said order of the Land Tribunal is the subject matter of this writ petition. This court remanded the matter for fresh consideration. It is further contended in the meanwhile the father of the petitioner expired and the LRs appeared before the Tribunal and the Tribunal after considering the entire material on record proceeded to pass the impugned order. I am of the considered view that Tribunal 8 without considering the material on record proceeded to hold that the tenant has not produced any documents to prove that they are cultivated lands as on 01.03.1974 and accordingly passed the impugned order.
04. Therefore both the alleged owner and alleged tenants have filed the present writ petitions against the impugned order passed by the Land Tribunal for vesting the land with the State Government.
05. I have heard the learned counsel for the parties to the lis.
06. Sri R.B.Patil, learned counsel for the petitioners, contended that the impugned order passed by the Land Tribunal vesting the land in favour of the State Government is erroneous and contrary to the material on record and the Land Tribunal has not considered the entire material on record. He further contended that the deceased Banneshappa S/o 9 Bhujangappa have not filed Form No.7. Therefore the impugned order passed by the Land Tribunal is without jurisdiction relying upon the entry in the revenue records and the respondent Nos.3 and 4 have not proved the alleged tenancy as on 01.03.1974. Therefore the impugned order vesting the land with the State Government is totally without jurisdiction. He further contended that this court in an earlier occasion in W.P.No.33235/1995 remanded the mater for fresh consideration. The Tribunal without considering any material on record proceeded to pass the impugned order vesting the land with the State Government. He further contended that the impugned order passed by the Land Tribunal without considering material on record and without holding spot inspection as contemplated under Karnataka Land Reforms Rules is erroneous and contrary to law. Therefore he sought to quash the passed by the Land Tribunal by allowing the writ petitions.
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07. In support of this contention, learned counsel for the petitioner relied upon the following judgments of this court.
(1) P.Manjunath Shenoy V/s Smt. Vishalakshi Pai and others, reported in ILR 1996 Kar 2340. (2) In the case of Late Hanumapp (Since Deaed) By LR's and Others V/s The State of Karnataka Rep. by its Revenue Secretary and Others reported in 2016 (1) Kar.L.R 413 DB.
08. Per contra Sri. Jambayya Swami Hiremath, learned counsel for the tenant-respondent No.3 and petitioner in WP No.201464/2014 contented that the impugned order passed by the Land Tribunal vesting the land with the State is erroneous and contrary to the material on record. The Land Tribunal has not taken into consideration, the earlier order passed by the Land 11 Tribunal while passing the present impugned order. He further contended that Land Tribunal has utterly failed to appreciate the evidence on record adduced by the petitioner and his mother. He further contended that the petitioner's father was the tenant cultivating the land as on 01.03.1974 and his name was depicted in ROR at column No.12(2) cultivator's column. He further contended that the revenue records since 1973-74 to 2012 clearly indicates that the father of the petitioner was cultivating the land. The Tribunal has not conducted the spot inspection of the land in question before passing the impugned order and the vesting the land with Government. The same is illegal contrary to law and liable to be set aside.
09. Learned High Court Government Advocate appearing for the Land Tribunal sought to justify the impugned order and contended that both the Landlord and the tenant failed to prove that they are in 12 possession and enjoyment of the land in question as on 01.03.1974. Therefore the Land Tribunal was right in vesting the land with the State Government. He further contended that in spite of the opportunity was given to both the parties after remand from this court, both parties have not produced documents. In the absence of any document produced by both the parties to prove that they are the Landlord and tenant, the Land Tribunal is justified in vesting the land with the State Government. Therefore he sought to dismiss the writ petitions.
10. In view of the rival contentions, the learned counsel for the parties, the only point arises for consideration in the present writ petition is:
Whether the Land Tribunal is justified in passing the impugned order vesting the land with the State Government under the provisions of Section 44 of the Karnataka Land Reforms Act 1961 in the facts and circumstances of the present case?13
11. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the records carefully.
12. It is specific case of the petitioner in W.P.No.102911/2013 that they are the owners of the properties in question and the respondent No.3 never cultivated the land as a tenant and the order of vesting the land with the Government by the Land Tribunal is erroneous. It is the case of the tenant-the petitioner in W.P.No.201464/2014 that he is the tenant under the landlord and he cultivated the lands as on 01.03.1974 and on earlier occasions also. The Tribunal granted occupancy rights in favour of the respondents holding that the respondent No.3 proved tenancy as on 01.03.1974. It is not in dispute that on earlier occasion, the Land Tribunal granted occupancy rights in favour of the tenants i.e. petitioners in W.P.No.201464/2014 and 14 it was subject matter in WP No.33235/1995 before this court. This court after hearing both the parties, by an order dated 14.11.2000 allowed the writ petition rule made was absolute and the order of the Land Tribunal 20.02.1982 was set aside and remanded the matter to the Land Tribunal for fresh consideration in accordance with law which reads as under:
"On perusal of the records of the Land Tribunal, it is clear that Mahalingappa who was shown as the owner of the land and under whom the third respondent claimed tenancy was not served with notice. Even the order of the Tribunal also shows that he was not present before the Tribunal and wherefore the contention of the petitioner that he was not served with notice is well founded. The other averment made in the petition that he was not aware of the order till he was served with suit summons in O.S.No.257 of 1995 has not been controverted and wherefore the same cannot be disbelieved. It is clear from the perusal of the order of the Tribunal thqat though both the 15 parties were not present before the Tribunal on the date of the order, the Tribunal has proceeded to confer occupancy rights in favour of the third respondent only on the basis of the entries in the record of rights and the fact that the respondent has not appeared and objected to conferment of occupancy rights. The question of the petitioner Mahalingappa appearing before the Tribunal and contesting the application filed by the third respondent would not arise at all as he was not served with notice by the Tribunal and therefore it is clear that the impugned order suffers from error apparent on the face of the record as the same has been passed without issuing notice to the petitioners and has been passed in violation of principles of natural justice and therefore, the impugned orders passed by the Tribunal as per Annexure-A cannot at all be sustained and the same is liable to be set aside. Accordingly, I pass the following order.
The writ petition is allowed. Rule is made absolute. The impugned order dated 20.02.1982 passed by the Land Tribunal II, 16 Gulbarga in No.LRA:BSC:27/79-80 is set aside and the matter is remitted to the Land Tribunal for fresh disposal in accordance with law after affording opportunity to the petitioners to present their case. It is to be observed that both Manhalingappa the owner and the third respondent - applicant before the Tribunal are now dead and the legal representatives are to be served with notice by the Tribunal.
13. After remand from this court stated supra, the Land Tribunal has initiated proceedings in the year 2012 then it was stopped and subsequently was proceeded with the proceedings and recorded the statement of the son of the tenant and not recorded any statement of the landlord. The Land Tribunal relied upon the cross examination of tenant by the landlord. The learned counsel Government Advocate produced the entire original records. The order sheet maintained by the Tribunal dated 15.02.2012 clearly depicts that the matter was adjourned for further evidence of the 17 landlord and posted the matter on 17.03.2012. On that day the Presiding Officer was busy, therefore posted on 28.04.2012 and there was no dates in between 28.04.2012 to 17.07.2012. Again the matter was called on 17.07.2012. The land owner was present for further clarification and arguments. The tenant was absent. It was posted on 26.07.2012. On 26.07.2012 the Land owner Parvati and Mallappa were present personally. The other land owners and respondent tenants were absent. The present land owner filed a memo for change of advocate, but not furnished N.O.C. and posted the matter on 06.08.2012. On that day the order sheet depicts that the owners present personally. The tenants absent and posted for orders as the records and statements have been taken for orders. Accordingly the impugned order was pronounced on 26.11.2012.18
14. The order sheet dated 06.08.2012 clearly depicts that as case called, the landlord owner present personally. The tenants absent and posted for orders observing that as the records and statements have been taken. Admittedly in the records produced by the learned Government Advocate, no statement of the landlord is forthcoming. Both the counsels appearing for the tenant as well as landlord fairly submit that the Land Tribunal has not recorded the statement of the landlord nor provided an opportunity. The learned Government Advocate unable to dispute the fact that the Land Tribunal has not recorded the statement of the landlord based on the records.
15. Though the learned counsel for the landlord submits that the tenants have not filed Form No.7, the said contention cannot be accepted as the record reveals the copy of Form No.7 and Form No.10 depicts that the tenant has filed Form No.7. On that basis, the 19 earlier the Land Tribunal granted occupancy rights in favour of the respondent No.3-tenant on 20.02.1982 and this court remanded the matter only on the ground that the order passed by the Land Tribunal without notice to the landlord which was in violation of the principles of natural justice and in the earlier proceedings, the petitioners have not taken such contention, that the tenant has not filed Form No.7. The contention taken by the landlord for the first time before this court which is impermissible.
16. The certified copies of the RTC entries from 1973-74 to 1977-78 in both column Nos.9 and name of the Banneshappa tenant, Mahalingappa S/o Siddappa landlord were shown at Column No.12(2). In the cultivators column name of Banneshappa shown as tenant. Though the order sheet depicts the Land Tribunal has considered the records and statement of both the parties, the order sheet is contrary to the 20 material on record. The Land Tribunal has not considered the available material on record before passing the impugned order.
17. It is mandatory on the part of the Land Tribunal to record the statements of both the parties as contemplated under Rule 17 (4) (5) of the Karnataka Land Reforms Rules 1974, which reads as under:
"(4) The progress in the enquiry of each case shall be noted by the Chairman immediately after hearing or the holding spot inspection by the Tribunal."
"(5) The opposite parties shall be allowed to cross-examine the witness and if it does not wish to so cross-examine, a note shall be made accordingly. A brief summary of the evidence given by each witness shall be recorded by the Chairman".21
18. Admittedly in the present case, the Land Tribunal has not recorded the statements of landlord as seen from the original records as stated by the learned Government Advocate and the learned counsel for the parties to the lis. The order sheet also does not depict that the Land Tribunal has provided an opportunity to the landlord to adduce evidence. Therefore the impugned order passed by the Land Tribunal is utter violation of the provision Rule 17(4) and (5) of the Karnataka Land Reforms Rules 1974. On that ground allowed the impugned order passed by the Land Tribunal cannot be sustained.
19. The Tribunal impugned order has recorded a specific finding that the either the landlord or the tenant has proved that they are in possession of the land in question on cut off date i.e., as on 01.03.1974, therefore the land vested with the State Government. The very 22 records produced by the learned Government Advocate depicts that RTC for the years 1973-74 to 1977-98 clearly depict the owner column No.9, the name of Mahalingappa the father of the present petitioners in W.P.No.102911/2013 and at column No.12(2) the tenants name Baneshappa the father of the present petitioner in W.P.No.201464/2014 are appearing. Therefore the impugned order passed by the Land Tribunal is contrary to the material on record. The Tribunal further held that the applicant has not proved as tenant. But land is tenanted which reads as under:
"F PÁgÀt¢AzÀ CfðzÁgÀ£ÀÄ UÉÃtôzÁgÀ£À®è¢zÀÝgÀÄ d«Ä£ÀÄ ªÀiÁvÀæ UÉÃtô d«Ä£ÉAzÀÄ RavÀªÁUÀÄvÀÛzÉ."
20. For the reason stated above, the issue raised in the present writ petition has to be held in the negative holding that the Land Tribunal is not justified in vesting the land with the State Government.
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21. In view of the aforesaid reasons, the writ petitions filed both the landlord and tenant are allowed. The impugned order passed by the Land Tribunal No.LRA/TNC/27/79-80 dated 26.11.2012 as per Annexure-D and F are hereby quashed. The matter is remanded to the Land Tribunal, Gulbarga for fresh consideration, after giving sufficient opportunity to both the parties as contemplated under Rule 17 of the Karnataka Land Reforms Act 1974 and after the considering entire material on record, proceed to pass the order strictly in accordance with law.
Sd/-
JUDGE SMP