Karnataka High Court
K. Somashekara Shetty vs Devaki And Ors. on 29 June, 2005
Equivalent citations: ILR2005KAR3534, 2005(5)KARLJ248, AIR 2005 (NOC) 424 (KAR), 2005 A I H C 3845, (2005) 5 KANT LJ 248, (2005) 3 RECCIVR 796, 2005 AIR - KANT. H. C. R. 1879, (2005) 34 ALLINDCAS 495 (KAR), (2005) 4 KCCR 2309, (2006) 1 CIVLJ 156
Author: S. Abdul Nazeer
Bench: S. Abdul Nazeer
ORDER 18 RULE 4 - KARNATAKA LAND REFORMS ACT, 1961 - SECTIONS 48-A, 48-A(5) KARNATAKA LAND REFORMS RULES, RULES 17(1) AND (5) - KARNATAKA LAND REVENUE ACT, 1964 - SECTION 34 - ORDER 18 RULE 4 OF THE CPC AS AMENDED BY ACT 22 OF 2002 STATES THAT IN EVERY CASE THE EXAMINATION-IN-CHIEF OF A WITNESS SHALL BE ON AFFIDAVIT-WHETHER THE SAME PROCEDURE IS APPLICABLE IN MATTERS RELATING TO LAND REORMS PENDING BEFORE .THE LAND TRIBUNAL-HELD- It is clear from the provisions of Section 2(a) and Section 2(35) of the Karnataka Land Reforms Act that the provisions of the CPC are applicable only to Courts as defined under the Act and are not applicable to the Land Tribunals. Section 48-A of the Act provides for enquiry by the Tribunal. Sub-section (5) of Section 48-A of the Act States that where an objection is filed disputing the validity of the applicant's claim or setting up a rival claim, the Tribunal shall, after enquires, determine, by order, the person entitled to be registered as occupant after holding an enquiry. Therefore the provisions of CPC are not applicable to the Land Tribunal. Therefore, adopting the procedure prescribed in the CPC as amended by Act No. 22/2002 in the matter of examination-in-chief of the witness by way of affidavit is contrary to mandatory procedure prescribed in Rule 17 of Karnataka Land Reforms Rules. The Tribunal is required to record evidence as provided in Rule 17(5) of the Rules. It is not permissible to the Tribunal for accept examination-in-chief by way of affidavit. (B) KARNATAKA LAND REFORMS ACT, 1961 - SECTION 48-A (5)(1), KARNATAKA LAND REFORMS RULES, RULES 17(1) AND (5)-KARNATAKA LAND REVENUE ACT, 1964 - SECTION 34 - CODE OF CIVIL PROCEDURE, 1908-AMENDMENT ACT 22 OF 2002 - ORDER 18 RULE 4-WHETHER IT IS PERMISSIBLE FOR THE LAND TRIBUNAL TO ACCEPT EXAMINATION-IN-CHIEF BY WAY OF AN AFFIDAVIT IN ENGLISH WHEREAS RULES 17(1) AND (5) OF THE KARNATAKA LAND REFORMS RULES AND SECTION 34 OF THE KARNATAKA LAND REVENUE ACT PROVIDES THAT THE RECORDS OF THE PROCEEDINGS SHALL BE MAINTAINED IN THE LANGUAGE UNDERSTOOD BY ALL ITS MEMBERS AND THAT A BRIEF SUMMARY OF THE EVIDENCE GIVEN BY EACH WITNESS HAS TO BE RECORDED BY THE CHAIRMAN-HELD-It is not permissible to record evidence in English language not understood by all the members of the Tribunal because Rule 17(1) clearly states that the record of the proceedings shall be maintained in a language understood by all its members. Summary enquiry as provided in Section 34 of the Karnataka Land Revenue Act is prescribed for determination of the question in controversy. The procedure prescribed by the Act and the Rules referred to above has to be followed by the Land Tribunal while holding inquiry. (C) ADMINISTRATIVE LAW-LAND TRIBUNAL IS A CREATURE OF STATUTE-TRIBUNAL HAS TO FOLLOW PROCEDURE PRESCRIBED IN THE RULES-HOWEVER, THERE IS NO PROHIBITION TO ADOPT A DIFFERENT PROCEDURE-WHETHER SAME PERMISSIBLE-HELD-The Land Tribunal being a creature of statute, has to follow the procedure prescribed in the Rules while determining any question by or under the Act. Merely because there is no prohibition to do it in any other manner, the Tribunal cannot adopt a different procedure, which would defeat the aim and object of the legislation. Writ Petition allowed. ORDER S. Abdul Nazeer, J.
1. Petitioner is the owner of the land bearing Sy.No. 62/1A measuring 74 cents of Neerumarga village. One Dogra Poojary, husband of respondent No. 1 and father of respondent Nos. 2 and 3 had filed an application in Form No. 7 seeking grant of occupancy right in respect of the said land. Dogra Poojary died during the pendency of the proceedings before the Land Tribunal. The Land Tribunal by its order dated 21.1.2003 granted occupancy right in respect of the said land in favour of the legal representatives of Dogra Poojary namely respondent Nos. 1 to 3. The Petitioner has called in question the said order of the Land Tribunal in this writ petition.
2. I have heard Sri. S.S. Sripathy, Learned Counsel for the petitioner and Sri K. Gridhar, Learned Counsel for respondent Nos. 1 to 3 and Sri B. Veerappa, and learned Additional Government Advocate for respondent Nos. 4 and 5.
3. Sri. S.S. Sripathy, Learned Counsel appearing for the petitioner argues that the land in question is a punja land and is not capable of being cultivated. It is further submitted that the petitioner has filed objections to that effect before the Land Tribunal. The petitioner has led evidence in support of his contentions. The Land Tribunal has not considered the contentions urged by the petitioner. He submits that having regard to the facts and circumstances of the case, the Land Tribunal ought to have conducted a spot inspection as provided under Rule 17(4) of the Karnataka Land Reforms Rules (for short 'the Rules'). He submits that the Land Tribunal is not justified in granting occupancy right in favour of respondents 1 to 3.
4. Sri. K. Gridhar, Learned Counsel appearing for respondent Nos. 1 to 3 submits that the order impugned does not call for any interference in exercise of power under Articles 227 of the Constitution of India. He submits that in accordance with Sub-rule (9) of Rule 17 of the Rules, the Land Tribunal has passed the order. The Land Tribunal has formulated points for its decision and has assigned reasons for the conclusion and that it has passed a speaking order.
5. Sri. B. Veerappa, learned Additional Government Advocate argues that neither the petitioner nor respondents 1 to 3 have followed the procedure prescribed under the Rules while leading their evidence. He submits that examination-in-chief of the witnesses have been filed by way of affidavits in English, which is contrary to Section 48-A(5) of the Karnataka Land Reforms Act (for short "Act") read with Rule 17(1) and (5) of the Karnataka Land Reforms Rules (for short 'Rules'). He submits that having regard to Rule 17(1) of the Rules, summary enquiry has to be conducted as per Section 34 of the Karnataka Land Revenue Act and the records of the proceedings shall be maintained in the language understood by all its members. He submits that a brief summary of the evidence given by each witness has to be recorded by the Chairman. He further submits that the parties as also the Tribunal have to follow the procedure prescribed in the Rules. The parties cannot deviate from the Rules while leading their evidence, thereby defeating the object and purpose of the Act and Rules made thereunder.
6. In the light of the rival contentions of the parties, the points for consideration in this case are whether it is permissible for the Land Tribunal to accept examination-in-Chief by way by way of an affidavit in English and whether the order impugned is sustainable in law?
7. Order 18 Rule 4 of the Civil Procedure Code (for short 'CPC') as amended by Act 22 of 2002 states that in every case the examination-in-chief of a witness shall be on affidavit. The cross-examination and re-examination of the witness in attendance whose examination-in-chief by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it. The question for consideration is whether the same procedure is applicable in matters relating to land reforms pending before the Land Tribunal.
8. Section 113 of the Karnataka Land Reforms Act provides for application of the Code of Civil Procedure to the proceedings under Act. It is as follows;
"Application of the Code of Civil Procedure: save as otherwise expressly provided in this Act, the provisions of the Code of Civil Procedure, 1908 (Central Act 5 of 1908) shall be applicable in respect of all applications and proceedings under this Act before the Court".
Sub-section (a) of Section 2 defines the Court as follows;
"Court" means the Court of Munsiff within the local limits of whose jurisdiction the land is situated."
The Tribunal has been defined in Sub-section (35) of Section 2 of the Act as follows;
"Tribunal" means the Tribunal constituted under Section 48."
9. It is clear from the above provisions that the provisions of the CPC are applicable only to Courts as defined under the Act and are not applicable to the Land Tribunals. Section 48-A of Act provides for enquiry by the Tribunal. Sub-section (5) of Section 48-A of the Act states that where an objection is filed disputing the validity of the applicant's claim or setting up a rival claim, the Tribunal shall, after enquiry, determine, by order, the person entitled to be registered as occupant after holding an enquiry. The said provision is as follows;
"(5) Where an objection is filed disputing the validity of the applicant's claim or setting up a rival claim, the Tribunal shall, after enquiry, dermine, by order, the person entitled to be registered as occupant and pass orders accordingly."
10. Sub-Clause (xxxiv) of Section 137(2) of the Act provides for framing of rules regulating the procedure to be followed and the Forms to be adopted in the proceedings under the Act. Accordingly, the Rules have been framed regulating the procedure to be followed under the Act. Rule 17 of the Rules provides for the procedure to be followed by the Tribunal, which is as follows;
"Procedure to be followed by the Tribunal (1) The Tribunal shall in respect of applications made to it follow the same procedure as specified for a summary enquiry under Section 34 of the Karnataka Land Revenue Act, 1964 subject to the condition that the records of the proceedings shall be maintained in a language understood by all its members.
(2) Order sheet shall be maintained by the Chairman in respect of each case heard by the Tribunal, noting in it the day-to-day proceedings of the Tribunal relating to the conduct of the case.
(3) When a meeting is adjourned, the date, time and place of hearing of adjourned meeting shall be made known to the parties present and their signature obtained on the order sheet.
(4) The progress in the enquiry of each case shall be noted by the Chairman immediately after hearing or the holding of spot inspection by the Tribunal.
(5) The opposite party 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."
Sub-rule (1) of Rule 17 of the Rules states that the Tribunal shall in respect of applications made to it follow the same procedure as specified for a summary enquiry under Section 34 of the Karnataka Land Revenue Act, and that the records of the proceedings shall be maintained in a language understood by all its members.
Sub-rule (4) of Rule 17 of the Rules states that the progress in the enquiry of each case shall be noted by the Chairman immediately after hearing or the holding of the spot inspection by the Tribunal.
Sub-rule (5) of Rule 17 of the Rules makes it clear that the opposite party 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.
11. Section 34 of the Karnataka Land Revenue Act, 1964 deals with holding of summary inquiry. It is as follows;
"Summary Inquiry:- When a summary inquiry is prescribed for determination of any question by or under this Act or any law for the time being in force, the Officer conducting such inquiry shall himself, as such inquiry proceeds, 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, the decision and the reasons for the same:
Provided that it shall at any time be lawful for the Officer, if he deems fit, to conduct an inquiry directed by this Act to be summary, under all or any of the provisions applicable to a formal inquiry."
12. This Court in Bheemappa v. Land Tribunal, Jamakhandi, 1977 (2) Kar.LJ 190 has held that the combined effect of Rule 17 of the Land Reforms Rules and Section 34 of the Land Revenue Act is that evidence should be recorded in the hand-writing of the officer conduting an inquiry. This is a clear obligation imposed upon officers or authorities entrusted with the duty of holding a formal inquiry, recording of evidence on cyclo-styled pro-forma is impermissible.
13. In Dattatraya Pandit v. Land Tribunal, Hukkeri, 1997 (2) Kar. L.J 209, this Court has held that under Rule 17 of the Karnataka Land Reforms Rules, the Tribunal has to follow the procedure laid down by Section 34 of the Karnataka Land Revenue Act for holding enquires. It is further held that the said provisions do not permit the Tribunal to dispose of the cases merely on affidavits. It is as follows;
"According to Rule 17 of the Karnataka Land Reforms Rules, the Tribunal has to follow the procedure laid down by Section 34 of the Karnataka Land Revenue Act for holding enquiries. Section 34 read with Sections 35 and 36 of the Karnataka Land Revenue Act requires that the proceedings of the Tribunal should be held in open and it does not permit the Tribunal to dispose of cases merely on affidavits of parties in which case, the opposite party will have no opportunity of contesting the evidence by cross-examination. No following the above procedure is an illegality which vitiates the proceedings."
(emphasis supplied)
14. In Byrappa and Anr. v. State of Karnataka and Ors., 1981 (2) Kar.L.J.1 a Division Bench of this Court has held that having regard to the requirements of Rule 17 of the Rules, the summary of the evidence in an inquiry before the Tribunal should be recorded by its Chairman and this is mandatory. Any breach of the requirement vitiates the proceeding before the Tribunal.
15. In Seetharamaiah B.N. and Ors. v. Land Tribunal, Virajpet and Ors., 1985 (1) Kar.L.J. 369, a Division Bench of this Court has held that if the Chairman of the Tribunal is not in a position to write down the deposition of the parties and therefore, dictates the summary of the deposition either to a member of the Tribunal or to a member of the staff of the Tribunal who records the same accurately, any order passed on the basis of the evidence so recorded shall not be interfered with by the High Court.
16. In Sanna Karibasappa v. Mudegowdra Mahadevappa and Ors., 1978 (2) Kar.L.J. 26 this Court has held that maintaining the order sheet and recording the final order in English, a language not understood by all the members of the Tribunal is a clear violation of the mandatory provisions of Rule 17.
17. In the light of the discussion, I am of the view that the provisions of CPC are not applicable to the Land Tribunal. Therefore, adopting the procedure prescribed in the CPC as amended by Act No. 22/2002 in the matter of examination-in-chief of the witness by way of affidavit is contrary to mandatory procedure prescribed in Rule 17 of Karnataka Land Reforms Rules. The Tribunal is required to record evidence as provided in Rule 17(5) of the Rules. It is not permissible for the Tribunal to accept examination-in-chief by way of affidavit. It is also not permissible to record evidence in a language (English) not understood by all the members of the Tribunal because Rule 17(1) clearly states that the record of the proceedings shall be maintained in a language understood by all its members. Summary enquiry as provided in Section 34 of the Karnataka Land Revenue Act is prescribed for determination of the question in controversy. The procedure prescribed by the Act and the Rules referred to above has to be followed by the Land Tribunal while holding inquiry.
18. The Apex Court has repeatedly held that when the statute requires an action to be taken in a particular manner, the same has to be taken in the same manner. In Gujarat Electricity Board v. Giridharlal Motilal and Anr., it has been held that when the legislature has prescribed the manner of exercise of power on the State Electricity Board, it would exercise in that manner and no other way. In Ramachandrakeshav Adke (Dead) By Lrs v. Govind Jotichavare and Ors., , the Apex Court has held that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are forbidden. It is held as follows;
"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden.This rule squarely applies where the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other."
(Emphasis Supplied) A Constitution Bench of the Supreme Court in Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and Ors., has held that where a statute vests certain powers in an authority to be exercised particular manner, that power has to be exercised only in that manner.
19. The Land Tribunal being a creature of statute, has to follow the procedure prescribed in the Rules while determining any question by or under the Act. Merely because there is no prohibition to do it in any other manner, the Tribunal cannot adopt a different procedure, which would defeat the aim and object of the legislation.
20. It is the case of the petitioner that the land in question is a punja land and is not capable of cultivation. There is no finding recorded by the Tribunal on this aspect of the matter. When the landlord contends that the land is not capable of being cultivated, it is incumbent upon the Land Tribunal give a finding on this point, if necessary by holding a spot inspection. Further, the Land Tribunal is not justified in accepting the examination-in-chief of the witnesses by way of affidavits, particularly in English. It has not recorded a finding whether its members understand English language. In my view, the procedure followed by the Tribunal is contrary to law.
21. For the reasons stated above, the order impugned is not sustainable in law. The writ petition succeeds and it is allowed accordingly. The order impugned at Annexure-F dated 21.1.2003 is quashed. The matter is remitted back to the Land Tribunal for fresh disposal in accordance with law and in the light of the observations made above.
No costs.