Karnataka High Court
Mahaveer Chambanna Kallimani And Ors. vs State Of Karnataka And Ors. on 18 April, 1996
Equivalent citations: ILR1996KAR3646, 1996(7)KARLJ699, 1997 A I H C 1955
ORDER M.M. Mirdhe, J.
1. This Writ Petition is filed by the petitioners praying to quash the order passed by the Land Tribunal, Belgaum, produced at Annexure-A, confirming the occupancy rights on R-3 to R-8 by allowing their Form No. 1 filed by them under Section 5 of the Karnataka Certain Inams Abolition Act.
2. I have heard the Counsel for the petitioners, Government Pleader for R-1 and R-2 and the Counsel for R-3 to R-8.
3. The petitioners filed Form No. 7 and their Form No. 7 came to be allowed by the Tribunal by its order dated 3.7.1979. The land belonged to Chandramouleshwara Temple. R-3 to R-8 claimed to be the Vahivatdars of that Temple. The Temple represented by R-3 to R-8 filed Writ Petition No. 14033/1990 challenging the order of the Land Tribunal granting occupancy rights in these lands to the petitioners. This Court, by its order produced at Annexure-F, dismissed that Writ Petition confirming the order of the Land Tribunal granting occupancy rights to the petitioners. R-3 filed Writ Petition No. 5495/1992 for a direction to the Land Tribunal to consider Form No. 1 filed by the said respondents. That Writ Petition came to be allowed and a direction came to be issued to the Land Tribunal to consider. Form No. 1 filed by the petitioner in that Writ Petition. When the matter was before the Tribunal in pursuance of the directions given to the Tribunal, the Tribunal held enquiry wherein the petitioners and R-3 to R-8 participated. The Chairman held that the previous order passed by the Tribunal granting occupancy rights was final and conclusive and it cannot be reopened. But, the other members did not agree with the view of the Chairman and they decided to grant Form No. 1 filed by R-3 to R-8 and in pursuance of the majority decision, the impugned order came to be passed.
4. The perusal of the impugned order discloses that the Tribunal has not applied its mind to the evidence that has been led by both sides in support of their contentions. On this point itself, the impugned order is liable to be set aside, the Counsel for the petitioners and R-3 to R-8, who did not agree with each other on many points, do agree on this point that the order is not sustainable in law and the same is liable to be set aside. Even the perusal of the order goes to show that the Tribunal has failed to take into consideration the evidence led by both sides. Therefore, the impugned order is liable to be set aside.
5. But, the contention between both sides is as to what should be consequential order after setting aside the order of the Tribunal. The Counsel for the petitioners submits that in view of the previous order passed by the Land Tribunal, confirming occupancy rights in favour of the petitioners, and confirmed by this Court in Writ Petition No. 14033/1990, the Tribunal cannot reopen its own decision as the previous order of the Tribunal will operate as res judicata barring R-3 to R-8 from raising any contentions regarding the occupancy rights claimed by them under the Karnataka Certain Inams Abolition Act. The order of the Tribunal granting occupancy rights in favour of the petitioners was passed on 3.7.1979. The Chandramouleshwara Temple represented by the Trustees filed Writ Petition No. 14033/1990 challenging this order. It is apparent that the order was challenged after a lapse of nearly eleven years. In the previous order passed by the Land Tribunal, there was no consideration regarding Form No. 1 filed by R-3 to R-8. The previous Writ Petition was filed by the Temple as represented by its Vahivatdars. But these R-3 to R-8 have filed Form No. 1 not as the representatives of the Temple, but in their individual capacity as the Pujaris and Trustees. Moreover, the order in that Writ Petition is that it was unnecessary to go into the merits of the case as the Writ Petition was liable to be dismissed on laches. In the case of PUJARI BAI v. MADAN GOPAL, , the Supreme Court has held that when the Writ Petition is dismissed on the ground of laches, it cannot operate as res judicata.
6. The Counsel for the petitioners further submitted that R-3 filed Writ Petition No. 5495/1992 only against the Tribunal without impleading these petitioners for a direction to consider Form No. 1 filed by them and he committed a fraud on the Court in obtaining such a direction to the Tribunal. The order of this Court was passed on 16.4.1993. Thereafter, the matter went back to the Tribunal and the petitioners also participated in the proceedings. If it was the grievance of the petitioners that a fraud was committed and this Court was not justified in giving direction to the Tribunal, the remedy for the petitioners was to move this Court for modification of that order as held by the Supreme Court in the case of SHIVDEO SINGH AND ORS. v. STATE OF PUNJAB AND ORS., AIR 1963 SC 1909. The Counsel for the petitioners submits that as the petitioners have no grievance against that order, they did not move for any review of modification of that order. He submits that that order will have to be taken into consideration as a conduct of the respondents in suppressing the facts from the Court in getting that direction. The question whether that direction was rightly issued or not and is liable to be reviewed on the ground of alleged fraudulent conduct of the respondents cannot be considered by this Court in this Writ Petition. It was for the petitioners to get that order reviewed on the ground of the alleged fraudulent conduct of the respondents. Therefore, the direction that has been issued to the Tribunal so long as it is not reviewed by the Court will have to be held to be a direction in accordance with law.
7. In the case of BASAPPA GURUSANGAPPA v. LAND TRIBUNAL, 1979(2) KAR.L.J. 370, this Court has held as follows: , "Even if one of the rival applicants had filed his application earlier and the Tribunal had granted him occupancy right in respect of the land and subsequently another applicant makes an application within the time limit provided by Section 48A in respect of the same land, the Tribunal is bound to consider the later application by setting aside its earlier order and consider both the rival applications,"
It is made clear in this ruling that the Tribunal has got powers to revoke its own earlier order granting occupancy rights in order to consider the subsequent application filed within time in respect of the same land. The Division Bench was conscious of the effect of the law that they were laying down. That is why it as observed that it may look startling that an order of the Tribunal which was valid when it was made and did not suffer from any infirmity, should be set aside, merely because another person makes a rival application in respect of the same land after the Tribunal has granted occupancy right in respect of that land to the earlier applicant. The Tribunal has got powers to set aside its earlier order, even if that order has been confirmed by the High Court, if it is required to be considered along with another application filed by other person for the occupancy rights in the same land. The proper course to be followed in this respect would be to set aside the order of the Land Tribunal whether it is confirmed by the High Court or not and then consider both the forms together and pass orders in accordance with law.
8. The Counsel for the petitioners submits that this ruling will not come to the aid of the respondents because the words used in the ruling is "another applicant". His contention is that in view of these words "another applicant", the respondents cannot be considered to be another applicant in view of the fact that they had contested the Form No. 7 field by the petitioners on earlier occasion. In my opinion, that is not the correct interpretation of law laid down by this Court in the said ruling. The respondents had opposed the claim of the petitioners on the previous occasion when the petitioners were claiming occupancy rights by filing Form No. 7. But, they also filed Form No. 1 under a different enactment i.e., The Karnataka Certain Inams Abolition Act. When two such forms were pending before the Tribunal, both the forms are required to be considered together and if necessary by setting aside the order granting one of those forms on an earlier occasion.
9. Viewing the matter from any angle, I am of the view that the matter is required to be remanded to the Land Tribunal for considering Form No. 7 filed by the petitioners and Form No. 1 filed by R-3 to 8 together. Hence, I proceed to pass the following order:
The Writ Petition is allowed and the impugned order is set aside. The matter is remitted to the Land Tribunal, Belgaum, with a direction to consider Form No. 7 filed by the petitioners under the Land Reforms Act and Form No. 1 filed by R-3 to 8 under the Karnataka Certain Inams Abolition Act together and dispose of the case in accordance with law.