Karnataka High Court
Suhas S/O. Vishwanath Kalghatgi vs The State Of Karnataka on 13 July, 2017
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JULY 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
WRIT PETITION NO.62510/2012 ( LR)
BETWEEN:
1. SUHAS S/O VISHWANATH KALGHATGI,
SINCE DECEASED REPRESENTED BY LR'S
1A. SMT.SUPRIYA W/O SUHAS KALGHATGI,
AGE 54 YEARS, OCC: HOUSEHOLD,
1B. SMT.SWAPNIL S/O SUHAS KALGHATGI,
AGE 32 YEARS, OCC: SERVICE,
1C. MS.SARIKA D/O SUHAS KALGHATGI,
AGE 30 YEARS, OCC: SERVICE,
1D. MR.SAMARTH S/O SUHAS KALGHATGI,
AGE 27 YEARS, OCC: SERVICE,
ALL R/O 76/2, HOME CO-OP.HGS,
RELIEF ROAD, DAULAT NAGAR,
SANTACRUZ (W), MUMBAI-400054.
PETITIONERS 1A TO 1D ARE REPRESENTED
BY THEIR GPA HOLDER
MR.ANIL VIJAYABASAPPA PATTED,
AGE 42 YEARS, OCC: BUSINESS,
R/O LIG 181, MAHANTESHNAGAR,
BELGAUM.
... PETITIONERS
2
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY, REVENUE DEPT.,
M.S.BUILDING, BENGALURU.
2. THE LAND TRIBUNAL,
BY ITS CHAIRMAN,
BELGAUM, BELGAUM.
3. KALLAPPA S/O MINU PATIL
SINCE DECEASED BY HIS LRS.,
3(A) PARASHURAM S/O KALLAPPA PATIL,
AGE : 50 YEARS, OCC: SERVICE,
R/O BAHAREGALI, KANGRALI B.K,
TQ: BELGAUM, DIST: BELGAUM.
3(B) YALLAPPA S/O KALLAPPA PATIL,
AGE 48 YEARS, OCC: AGRICULTURE,
R/O BAHAREGALI, KANGRALI B.K.,
TQ: BELGAUM, DIST: BELGAUM.
3(C) GANAPAT S/O KALLAPPA PATIL
AGE 45 YEARS, OCC: AGRICULTURE,
R/O BAHAREGALI, KANGRALI B.K.,
TQ: BELGAUM, DIST: BELGAUM.
3(D) VITHAL S/O KALLAPPA PATIL,
AGE 42 YEARS, OCC: AGRICULTURE,
R/O BAHAREGALI, KANGRALI B.K.,
TQ: BELGAUM, DIST: BELGAUM.
4. RAMCHANDRA S/O MINU PATIL
SINCE DECEASED BY HIS LR'S.
4(A) SMT.MALAN W/O RAMACHANDRA PATIL,
AGE 49 YEARS OCC: AGRICULTURE,
R/O BAHAREGALI, KANGRALI B.K,
TQ: BELGAUM, DIST: BELGAUM.
3
4(B) SHRI MARUTI S/O RAMACHANDRA PATIL,
AGE 21 YEARS OCC: SERVICE IN KPTCL,
R/O BAHAREGALI, KANGRALI B.K,
TQ: BELGAUM, DIST: BELGAUM.
4(C) SMT.SHALAN D/O RAMACHANDRA PATIL,
W/O DAYANAND BENNALKAR,
AGE 42 YEARS OCC: AGRICULTURE,
R/O BAHAREGALI, KANGRALI B.K,
TQ: BELGAUM, DIST: BELGAUM.
5. SHRI TANAJI S/O MINU PATIL,
AGE 32 YEARS OCC: AGRICULTURE,
TQ: BELGAUM DIST: BELGAUM.
RESPONDENTS
(BY SMT.K.VIDYAVATI, AGA FOR R1 & R2)
(BY SRI M.G.NAGANURI, ADVOCATE FOR R3(A) TO 3(D),
R4(A) & (4B) AND R5. NOTICE TO R4(C)-SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 226 OF CONSTITUTION OF INDIA PRAYING TO
ISSUE WRIT OF CERTIORARI TO GET ASIDE THE
ORDER DATED 23.12.2011 VIDE ANNEXURE-G VIDE
NO. KANGRALI BK: SR: 16 PASSED BY THE
RESPONDENT NO.2.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners have called in question the order passed by the Land Tribunal, Belagavi on IA 4 filed by the tenants i.e., respondents No.3(a) to (3(d), 4(a) to 4(c) and 5 under section 48A(3) of Karnataka Land Reforms Act, 1974 R/w Section 151 of CPC for amendment of Form No.7. The said application was filed in the year 2011 precisely on 13.09.2011. The said application was supported by an affidavit and the same was also contested by the owners i.e., petitioners herein by filing detailed objections. After considering the application and the objections, the Land Tribunal by its majority opinion passed an order allowing the said application and permitted the above said respondents to amend the Form No.7 filed by them.
2. Of course there is a divergent opinion expressed by the Chairman on one side and the members on the other, of the Land Tribunal, wherein the members of the Land Tribunal were of the opinion that the amendment application requires to be allowed. The Chairman was of the opinion that the amendment application is liable to be rejected, but by 5 majority opinion, the amendment application was allowed.
3. The learned counsel for the petitioners in support of the grounds urged before this Court in writ petition strenuously contended that, the cut off date for filing the form No.7 was extended to the tenants up to 30.06.1979. Therefore, there cannot be any amendment after 30.06.1979 to the form No.7 filed by the tenants. He further contended before this Court that, the Tahasildar has passed an order stating that, only 4 acres of the land in Sy.No.64 of Kangarali B.K Village out of 11 acres 36 guntas vest with the Government. Therefore when, only 4 acres of land vest with the Government, the tenants cannot be allowed to extend the same to 11 acres 36 guntas by amending the original Form No.7.
4. Thirdly the learned counsel contended that the Chairman is right in rejecting the application because the RTC extract right from the beginning, show that, out of 11 acres 36 guntas only 4 acres were in possession of the tenants. Further that it is 6 specifically shown by mentioning the numerical 3 (tenanted) in front of the names of the tenants and numerical 1 (own authorization) to the remaining extent so far as the owners are concern. Therefore, as against the RTC extract the tenants want to incorporate that they are the tenants to the extent of 11 acres 36 guntas which is not permissible under law. Further the learned counsel strenuously contends that, this court has remitted the matter in the year 1997 for fresh disposal of the case to the Land Tribunal and respondents one way or the other, are dragging on the proceedings.
5. It is argued that, the original Form No.7 filed before the Land Tribunal was in the year 1974. The tenants have filed the writ petition before this court on various occasion calling in question the proceedings before the Land Tribunal on various grounds. For a period of more than 37 years they kept quite and slept over their rights without amending the From No.7 at the earliest point of time. Therefore, for all these reasons, he contends that the 7 Land Tribunal has committed serious error in allowing the application.
6. Per contra the learned counsel for the contesting respondents has strenuously submitted that an amendment was brought to the Land Reforms Act in the year 1979 by Act No.1/1979, wherein amended Section 48A(3) empowers the Land Tribunal, for valid and sufficient reasons to permit the tenants to amend the application. Further he submitted there is no embargo to file the amendment application within the cut off date of 30.06.1979. The said argument is not applicable, the relied upon various rulings so far as this aspect is concerned.
7. Further he added that the merits of the case should not be considered by the court at the time of allowing of application the only point that, the Court has to taking consideration is, whether such an amendment is required for proper adjudication of the rights of the parties. Ultimately the amended 8 portion of the Plaint or Form No.7 has to be established by the parties in order to seek right on the basis of such amended pleading.
8. Lastly the learned counsel contended that though there is some delay, but the parties are of villagers and if really they are entitled for such remedy before the Land Tribunal that should not be curbed merely because there is a delay in filing such application. The delay should not come in the way of administering proper and correct justice. Therefore, he submitted before this court that, order passed by the Land Tribunal is proper and correct.
9. On perusal of amendment application, the contesting respondents would like to delete the note put up underneath in the Form No.7 which reads as follows;
NOTE: Applicants are in possession as tenants for the extent of 4 acres 18 guntas.
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10. By virtue of the said deletion of the note, the tenants would like to say before the Land Tribunal that they have been in possession and enjoyment of whole extent of Sy.No.64 to an extent of 11 acres 36 guntas as tenants instead of 4 acres 18 guntas only. Now coming to the arguments urged before this court, the learned counsel has relied upon various rulings of this court but in my opinion those decisions are not necessarily to be referred in view of latest decision of the Apex Court.
11. The learned counsel for the petitioner has cited a judgment in W.P.No.112519/2014 dated 04.02.2016 wherein, this court was of the opinion that no amendment shall be entertained to Form No.7 after the cut of date of 30.06.1979. This court expressed this opinion after relying upon the rulings of this court reported in 1989 (3) Kar.L.J 440 between R.Krishnaswamy Rao Vs. Laxmaiah Shetty and others and also another ruling reported in 2002(6) Kar.L.J 10 178 between Channappa Gouda and others Vs. The State of Karnataka and others.
12. Of course in the above said rulings the cut of date has been specifically considered by the court and held that, the application for amendment to Form No.7 after 30.06.1979 is not maintainable.
13. The learned counsel for the respondents herein has relied upon a ruling of the Apex Court which is reported in (2008) 12 SCC Page 338 between Honnamma & others Vs. Nanjundaiah since dead by his LRs., and others.
Wherein the Apex Court at paragraph No.16 has observed that;
"The amendments have however been allowed with respect to the other survey numbers and also with respect to a change in the name of the village(s) on the understanding a mere misdescription of the property was to be rectified by amendment.11
To our mind, therefore, a mere misdescription while identifying the land in Form No.7 as originally filed would not be hit by the embargo with respect to the last date of filing of Form No.7 i.e., on 30.06.1979".
The Apex Court also observed that, "the party cannot be refused amendment in a case of misdescription of property as the purpose of amendment is to ensure that the real issue are addressed and that in such a case no question of limitation would arise and the amended plaint must be deemed to have been instituted on the date on which the original plaint had been filed. We are, therefore, of the opinion that the finding of the High Court on the question of limitation is erroneous".
14. One more ruling relied upon by the learned counsel reported in (2007) 15 SCC 629 between Syed Beary dead by LRs., Vs. Dennis Lewis dead by LRs., and others.
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The Apex court has observed to the effect that;
"the land tribunal has allowed the amendment application as there was obvious mistake committed in mentioning survey number in Form No.7. The learned counsel submitted that Survey No.129/7 did not even exist in the village kodi at all. The tenant was in possession of two survey numbers i.e., Sy.No.96 and 124/4B. The fact that, the tenant was in possession of the lands was admitted by land lord. According to the learned counsel it was not a case of making a new claim for grant of occupancy rights for two survey numbers altogether. Under section 48A(3) it was permissible to amend Form No.7".
The Apex Court, having coming to the such a conclusion, has held that the Tribunal has got power to allow the amendment application.
15. Looking to the above said facts and circumstances and the law laid down by the Apex Court, the jurisdiction of the Land Tribunal is crystal 13 clear that it has got power to allow the application for amendment even after the alleged cut off date of 30.06.1979. However, the Land Tribunal has to consider whether such an application is necessary for proper adjudication of the rights of the parties. In this back ground if it is perused, of course the Tahasildar has passed an order on the basis of Form No.7 that, only 4 acres 18 guntas vest with the Government under the Land Reforms Act. Of course as argued by the learned counsel for the petitioner the RTC extract also show the possession of the tenant to an extent of 4 acres 18 guntas. But the Court at this stage cannot draw any inference on the basis of the revenue entries in the RTC extract. Ultimately, the court has to consider on the basis of the documentary and oral evidence, whether the tenants are able to show before the Land Tribunal that they have been enjoying the property as tenants to the extent of 11 acres 36 guntas or only to an 14 extent of 4 acres 18 guntas, that, can only be thrashed out after recording the evidence and giving finding at the time of disposing of the case on merits. What is to be looked into by this court is that, whether such an amendment is necessary for proper adjudication of the rival contentions of the parties. Here in this case by way of amendment the tenants wants to establish before the Tribunal that they are the tenants of 11 acres 36 guntas and not, only to an extent of 4 acres 18 guntas.
16. On the other hand it is the contentions of the owners that the respondents are the tenants only to an extent of 4 acres 18 guntas even that has also been disputed before the Land Tribunal that they are not at all the tenants of the lands. Therefore, the contentious issue arise between the parties is that;
"to what extent the tenants are in possession and enjoyment of the property; that has to be adjudicated by the Land Tribunal. Therefore, that becomes a 15 contentious issue before the Tribunal for the purpose of deciding the entire dispute between the parties.
Therefore the amendment sought, is required to be allowed by the Land Tribunal and accordingly same has been allowed rightly by the land Tribunal. In this regard, the learned counsel has also relied upon a ruling of the Apex Court reported in (2006) 4 SCC Page 385 between Rajesh Kumar Agarwal and others Vs. K.K.Modi and others, wherein the Apex Court has made an observation, as to what the court has to consider at the time of considering the amendment application, it is observed at paragraph No.18 that , "it is settled by a catena of decisions of this court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court".
At paragraph No.19 it is further observed that, 16 "While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment".
17. Therefore, in view of the above said observation made by the Apex Court, the sole object for considering the amendment application by the court as Tribunal is that whether on the basis of such amendment sought by the parties, the court can completely resolve the dispute between the parties without leaving the parties to approach any other forum, and also that, the court can avoid the multiplicity of proceedings and complexities in the case. Upon the above said principles, I have already narrated that the contentious issues between the 17 parties is with reference to extent of the lands with the tenants as occupants of the said lands and whether they are entitled for occupancy rights to the extent as claimed by them or only to the extent as mentioned in Form No.7 earlier. As I have said, that can only be established or thrashed out after the full dressed enquiry by the Land Tribunal.
18. The learned counsel also brought to the notice of this court that the order of the Land Tribunal is not been signed by all the members of the Land Tribunal. Therefore, the order is vitiated by serious procedural irregularity which is incurable in nature. Of course the said principle is proper and correct but whether the said principle can be applied to the facts of the case is to be looked into. In this particular case, as I have already observed that there is a divergent opinion by the members and as well as chairman of the Land Tribunal. As could be seen from the order of the Land Tribunal, the members 18 given written opinion under Section 48A(3) of the Karnataka Land Reforms Act, holding that the amendment application is required to be allowed and the said opinion has been signed by the all the members of the land tribunal except the chairman. The rival opinion expressed by the Chairman is also annexed to the opinion of the members and ultimately the chairman has held that the majority view should sustain and accordingly amendment application was allowed and order was signed by the 3 members and the chairman of the Land Tribunal. Under the above said circumstances, virtually looking into the entire order including the conclusion expressed by the Land Tribunal members it contained signatures of all the members and as well as the Chairman. Under the above said facts and circumstances, I don't find any strong reasons to accept the argument of the learned counsel particularly so far as this aspect is concerned. 19
19. Last but not least, of course there is a long delay in filing the amendment application. As the Supreme Court has observed in the above said case, the delay itself should not come in the way of adjudicating the rights of the parties once for all. Therefore, in my opinion the delay can be condoned by imposing some costs. Therefore the Tribunal would have also considered the delay in filing the application which has not been done by the Tribunal. Under the above said circumstances, I am of the opinion if I impose cost of Rs.5,000/- to be payable to the petitioners herein by the respondents it would meet the ends of justice, hence, the following order.
ORDER Writ petition is partly allowed.
The amendment application allowed by the land Tribunal is confirmed on imposing costs of Rs.5,000/- on the 20 respondents No.3(a) to 3(d), 4(a) to 4(c) and 5 to be payable to the petitioners.
As the matter is pretty old, the Land Tribunal is hereby directed to dispose of the main matter itself as expeditiously as possible.
Sd/-
JUDGE EM/-