Karnataka High Court
Sri B N Nagarajan vs Venkataramanappa Since Deceased By His ... on 6 March, 2013
Equivalent citations: 2013 (2) AKR 652
Bench: K.L.Manjunath, Ravi Malimath
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6th DAY OF MARCH, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE RAVI MALIMATH
W.A.NO.2405/2012(LR)
BETWEEN
1 SRI B N NAGARAJAN
S/O LATE B NARAYANASWAMY
AGED ABOUT 76 YEARS
NO.9, "SRI RAGHAVENDRA NILAYA"
GIRLS SCHOOL STREET
SESHADRIPURAM
BANGALORE-560020 ... APPELLANT
(By Sri : ABHINAV R, ADV. )
AND :
VENKATARAMANAPPA
SINCE DECEASED BY HIS LRS
1 SRI GOPALAPPA @ GOPALA REDDY
S/O LATE VENKATARAMANAPPA
AGED ABOUT 51 YEARS
R/O NOSENOOR VILLAGE, JIGANI HOBLI
ANEKAL TALUK, BANGALORE URBAN DISTRICT
2 SRI NARAYANA REDDY
S/O LATE VENKATARAMANAPPA
AGED ABOUT 49 YEARS
R/O NOSENOOR VILLAGE
JIGANI HOBLI, ANEKAL TALUK
BANGALORE URBAN DISTRICT
3 SRI CHANDRA REDDY
S/O LATE VENKATARAMANAPPA
2
AGED ABOUT 48 YEARS
R/O NOSENOOR VILLAGE
JIGANI HOBLI, ANEKAL TALUK
BANGALORE URBAN DISTRICT
4 STATE OF KARNATAKA
DEPARTMENT OF REVENUE
M S BUILDINGS
DR AMBEDKAR VEEDHI
BANGALORE-560001
REP BY ITS SECRETARY
5 THE LAND TRIBUNAL
ANEKAL TALUK
ANEKAL, BANGALORE URBAN DISTRICT
SMT. RAMAKKA
SINCE DECEASED BY HER OTHER LRS
6 SRI B N THYAGARAJA
S/O LATE B NARAYANASWAMY
AGED ABOUT 79 YEARS
PRESENT NO. 17, SANKEY ROAD
BANGALORE-560020
7 SMT. T PUSHPA
D/O LATE B NARAYANASWAMY
AGED ABOUT 69 YEARS
PRESENT NO. 1751, 50 FEET ROAD, 2ND STAGE
KUMARASWAMY LAYOUT, BANGALORE-560078
... RESPONDENTS
(By Smt : NALEENA LOGAN FOR R1-R3;
SRI.D.VIJAYAKUMAR, AGA FOR R4 & R5;
R6 - SERVED; R7 IS EX-PARTE )
THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN THE WRIT PETITION NO.3041/2007(LR) DATED
22/03/2012.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, MANJUNATH J, DELIVERED THE FOLLOWING:
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JUDGMENT
The legality and correctness of the order passed by the Learned Single Judge in W.P.No.3041/2007 dt.22.3.2012 is called in question in the present appeal.
2. The facts leading to this appeal are as hereunder:
The appellant herein was respondent-3(a) before the learned Single Judge in the Writ Petition. The Writ Petition was filed by the respondents-1 to 3. Late Venkataramanappa had filed an application in Form-7 before the Land Tribunal, Anekal, in case No. LRF/ATC/2135, 2138/75-76 claiming occupancy rights in respect of Sy.No.104 of Bommandalli village measuring 10 acres 1 gunta under one Ramakka, the mother of the appellant herein. The application filed by Venkataramanappa came to be allowed by the Tribunal by its order dt. 30th October 1981 granting 4 acres of land and rejected the claim in regard to the remaining extent of 6 acres 1 gunta.
3. Being not satisfied with the order of the Tribunal, Venkataramanappa filed the Writ Petition before this Court in W.P.No.4722/1988. The Writ Petition came to be 4 dismissed on 5.12.1994. Challenging the grant of occupancy rights to an extent of 4 acres, the appellant and other members of his family filed W.P.NO. 42439/2001, which Writ Petition came to be allowed on 6.7.2004 and this court set aside the order of the Tribunal granting occupancy right in respect of 4 acres of land and remanded the matter to the Tribunal for fresh consideration in accordance with law.
4. After remand, the Tribunal rejected the claim made by Venkataramanappa by its order dt.25.5.2006 vide Annexure-K to the Writ Petition, which order was questioned by his LRs. i.e. respondents-1 to 3 by filing the Writ Petition in question.
5. The learned Judge after hearing the parties only on the ground that the Tribunal had permitted the parties therein to file an affidavit in lieu of their examination-in-chief, following the provisions of Order 18 Rule 4 of CPC, holding that the procedure followed by the Tribunal is contrary to the Judgment in K.SOMASHEKARA SHETTY VS. DEVAKI & OTHERS reported in ILR 2005 KAR 3534 further holding that the Land Tribunal being not a 5 court, CPC cannot be made applicable, allowed the Writ Petition and the matter has been remanded to the Land Tribunal for fresh consideration in accordance with law. This order is called in question in this appeal.
6. The main contention of the appellant's counsel before us is that the learned Judge did not consider the effect of Sec.113 of the Karnataka Land Reforms Act, wherein the CPC is made applicable in respect of an application and proceedings under the Karnataka Land Reforms Act, 1961, which provision of law has come into force with effect from 6.12.1985 and when once the CPC is made applicable to the proceedings of the Land Tribunal, if the Tribunal has followed the provision of Order 18 Rule 4 CPC, the learned Judge should not have set aside the findings of the Tribunal on a technical ground. He further contends that when the matter was pending before the Tribunal, both the parties have filed the affidavit in lieu of examination-in-chief and having not raised any objection at the initial stage and the respondents should not have permitted to contend that the procedure followed by the Land Tribunal was contrary to Rule 17 of the Karnataka Land Reforms Rules. He further submits that prior to 6 amendment to the Civil Procedure Code, the parties were required to let-in examination-in-chief by way of oral evidence which used to be recorded by the concerned tribunal/courts. In order to simplify the procedure and to save the time of the parties and the court, Order 18 Rule 4 has been introduced and if the same is followed by the Tribunal, the learned Judge should not have interfered with the same. According to him, the Judgment in K.SOMASHEKARA SHETTY VS.DEVAKI AND OTHERS did not consider the actual effect of Sec.113 of the Karnataka Land Reforms Act, 1961 and did not consider the effect of the word 'Tribunal' used in the aforesaid section properly. According to him, the Tribunal includes 'Court'. He further contends that this court had an occasion as to examine whether the Land Tribunal can be considered as a Court or not in C.N. SEETHARAM VS. STATE OF KARNATAKA reported in ILR 1988 KAR 2053, wherein this court has held that 'Court' is inclusive of Tribunal. When once the Tribunal has been considered as a Court, the learned Judge while considering the case of SOMASHEKARA SHETTY did not consider the effect of the Judgment in C.N.SEETHARAM VS. STATE OF KARNATAKA and if the 7 aforesaid Judgment had been considered by the court while deciding the case of SOMASHEKARA SHETTY, the learned Single Judge therein would not have ruled that the Tribunal cannot follow Order 18 Rule 4 of CPC., and that Rule 17 of the Karnataka Land Reforms Rules is mandatory for the Tribunal to record the evidence. He further submits that when two views are possible, the court is required to consider one which curtails the procedure without eluding the justice and the procedural law is always sub-servient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice shall not be followed.
7. To support his argument, he has placed reliance on the Judgment of the Apex court in SHREENATH AND ANOTHER VS. RAJESH AND OTHERS reported in AIR 1998 SC 1827. Therefore, he requests the court to allow the appeal and set aside the order passed by the learned Single Judge and remand the matter to the learned Single Judge to consider the Writ Petition on merits and in accordance with law.
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8. An attempt is made by the learned counsel appearing for the respondents to support the Judgment of the learned Single Judge on the ground that Rule 17 is mandatory for the Tribunal in order to record the evidence and the word used in Sec.113 of the Karnataka Land Reforms Act 1961 is 'Court' and not the Tribunal and therefore the Judgment in K.SOMASHEKARA SHETTY has been rightly followed by the learned Single Judge.
9. Having heard the counsel for the parties, the only point to be considered by us in this appeal is that in view of sec.113 of the Karnataka Land Reforms Act 1961, whether the Tribunal is required to follow Order 18 Rule 4 CPC for recording the evidence or required to follow Rule 17 of the Karnataka Land Reforms Rules.
10. In order to appreciate the rival contentions, it would be appropriate for us to examine the provision of Section 113 of the Karnataka Land Reforms Act 1961 and Rule 17 of the Karnataka Land Reforms Rules 1974 and so also Order 18 Rule 4 CPC.
Section 113 of Karnataka Land Reforms Act, 1961 reads as hereunder:
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"113.Application of the Code of Civil Procedure-
(1) 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.
(2) x x x x x (3) x x x x x"
Rule 17 of Karnataka Land Reforms Rules reads as hereunder:
"17. 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 enqiry of each case shall be noted by the Chairman immediately after hearing or the holding of spot inspection by the tribunal.10
(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.
(6) If there are more applications than one for registration of occupancy rights by different persons in respect of the same land, those cases shall be clubbed together and a common order passed. (7) Prayer on an interlocutory application has to be considered by the tribunal strictly in relation to the reliefs sought for.
(8) The order shall be signed, in addition to the Chairman, by the other members of the tribunal who heard the case.
(9) All orders shall be speaking orders, namely, the points for decision, the decisions themselves and the reasons for the decisions shall be mentioned. The orders shall be pronounced in the open court. (10) No member of the tribunal shall participate in the deliberations or decision of a case in which he is personally interested. "
Order-XVIII Rule 4 of CPC reads as hereunder:
"4. Recording of evidence.- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. Provided that where documents are filed and the 11 parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
(2) The evidence (cross-examination and re-
examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has beenn furnished to the Court, shall be taken either by the Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit. (3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:
Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.12
(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time. (6) The High Court or the District Judge, as the casemay be, shall prepare a panel of Commissioners to record the evidence under this rule. (7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.
(8) The provisions of Rules 16, 16-A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule."
11. A perusal of Sec.113 of the Karnataka Land Reforms Act, CPC is made applicable in respect of an application and proceedings under this Act before the Court. The word emphasized u/s 113 is 'Court'. Relying upon the word used in Section 113 as 'Court' the Judgment in SOMASHEKARA SHETTY case has been delivered by the learned Single Judge. Relying upon the word used as 'Court' in section 113 considering Rule 17 of the Karnataka Land Reforms Rules 1974, this court has held that procedural law has to be followed by the Land Tribunal and 13 it is however ruled that there is no provision for the Tribunal to do it in any other manner, the Tribunal cannot adopt a different procedure which would defeat the aim and object of the legislation. Therefore, what is to be examined by us by following Order 18 Rule 4 of CPC whether it would defeat the aim and object of Rule 17 of the Karnataka Land Reforms Rules or not.
12. This court in C.N. SEETHARAM VS. STATE OF KARNATAKA had occasion to examine whether the Land Tribunal can be considered as a court or not. But the said case has been decided by this court while examining the provisions of Section 195 Cr.P.C. Considering the provision of Section 195 Cr.P.C. this court has held that Tribunal includes the 'Court'. But sub-section 3 of Section 195 of Cr.P.C. clearly envisages the definition of 'Court' to take cognizance under the provision of Sec.195 of Cr.P.C. Therefore, we are of the view that the Judgment in C.N.SEETHARAM VS. STATE OF KARNATAKA cannot be made squarely applicable to the facts and circumstances of this case.
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13. Be that as it may, even if we hold the Judgment in SEETHARAM VS. STATE OF KARNATAKA is not applicable, still we have to examine whether the word used is 'Court' in Sec.113 of Karnataka Land Reforms Act 1961, can be made applicable to the Tribunal. While dealing with Chapter IX of the Karnataka Land Reforms Act 1961, Sec.113 has been amended.
The said Chapter commences from Section 111 from Constitution of Tribunal, Duties of Tahsildar and Tribunal and the Application of the Code of Civil Procedure, Commencement of proceedings, Enquires, Execution of orders, Appellate Authority, Appeals, Revision, etc. Chapter IX reads as hereunder:
"Procedure and jurisdiction of Court and Appeals.
111. Constitution of Tribunal(omitted)
112. Duties of Tahsildar and Tribunal
113. Application of the Code of Civil Procedure
114. Commencement of proceedings
115. Enquires
116. Execution of orders 116-A. Appellate Authority (Omitted) 116-B. Conduct of Business of the Appellate Authority (Omitted) 15
117. Execution of orders under repealed enactments for recovery of rent (Omitted)
118. Appeals 118-A. Revision by the Regional Commissioner.
119. Stay of execution of orders
120. Transfer of proceedings (Omitted)
121. Orders in Appeal.
121-A. Revision by the High Court
122. Limitation 122-A. Review by the Tribunal.
123. Court Fees
124. Enquiries and proceedings."
14. Prior to 15.1.1970 instead of 'Court' the word 'Tribunal' was there and by virtue of the amendment by deleting the word 'Tribunal' the word 'Court' has been introduced. From this it is clear that the intention of the legislature in using the word 'Court' by deleting the word 'Tribunal' is very clear that instead of 'Tribunal' word used as 'Court'. The Chapter deals with the constitution of the Tribunal and the Enquiries to be conducted by the Tribunal and so also procedure to be adopted. While holding an enquiry by the Tribunal if the intention of legislature is to apply the provision of CPC while conducting the enquiry and in such circumstances if the Tribunal has followed 16 Order 18 Rule 4 CPC, it cannot be said that the procedure followed by the Tribunal wound run counter to Rule 17 of the Karnataka Land Reforms Rules 1974. As per Rule 17 of the Karnataka Land Reforms Rules, evidence has to be recorded in the hands of the Chairman. But Order 18 Rule 4 CPC provides to file an Affidavit in lieu of examination-in- chief and when once affidavit is filed, the parties are entitled to examine the witnesses any further to mark the documents and to cross-examine the witnesses by the other side. Therefore, right of cross-examination has not been taken away by the Tribunal by adopting Order 18 Rule 4 of CPC.
15. Similarly, Sec.115 of the Karnataka Land Reforms Act deals with the procedure to be followed while conducting the enquiry by the Tribunal. Section 115 reads as hereunder:
"115. Enquiries.- (1) The court shall exercise the powers, and shall as far as possible follow the procedure of a court of small causes as provided in the law for the time being in force relating to the powers and procedure of such court in making enquiries, recording of evidence and of decisions at such enquiries.17
(2) For the purpose of any enquiry or proceedings under this Act the Tribunal, the Deputy Commissioner or other officer of the Revenue Department may exercise all or any of the powers under the Karnataka Land Revenue Act, 1964 and shall follow such procedure as may be prescribed. (3) In every enquiry in which the parties are heard before orders are passed, the orders shall be pronounced in open court after notice to the parties, and the decision of the court or the Tribunal, the Deputy Commissioner or other officer intimated to the parties concerned by post.
16. Prior to 15.1.1970 in Section 115, the word used was 'Tribunal' and the same is substituted 'Court' later, which enable the Tribunal to exercise powers as far as possible follow the procedure of a Court of Small Causes as provided in the law for the time being in force relating to the powers and procedure of such court in making enquiries, recording of evidence and of decision of such enquiries.
17. Though the word `Court' is used under Sec.13 of the Karnataka Land Reforms Act, it has to be construed as only `Tribunal', because any procedure or application under the Act is necessarily to be considered only by the 18 tribunal or by the competent authority for any violation of provisions of the Act and no matter can be taken into civil court. Considering the background of Sec.13 of the Act, we are of the view that though the word used as `Court', it has to be considered as only tribunal or competent authority, because no matter arising out of the Karnataka Land Reforms Act can be dealt by any court.
18. From this it is clear, the Tribunal can follow the procedure contemplated by a court while recording the evidence of the parties. When Order 18 Rule 4 provides for mode of evidence by way of affidavit and if the same is followed by the Tribunal, the court cannot say that the same is running counter to Rule 17 of the Land Reforms Rules 1974.
19. The Supreme Court in SREENATH AND ANOTHER VS. RAJESH AND OTHERS reported in AIR 1998 1827 has ruled as hereunder:
"In interpreting any procedural law, where more than one interpretation is possible, one which curtails the procedure without eluding justice is to be adopted. The procedural law is always subservient to and is in aid to justice. Any interpretation which 19 eludes or frustrates the recipient of justice is not to be followed. "
20. From the above ruling of the Hon. Supreme Court, it is clear that even under the Karnataka Land Reforms Act, Sec.113 provides to follow the CPC. Similarly Rule 17 of the Karnataka Land Reforms Rules provides the Chairman to record the oral evidence in writing. Therefore, two methods can be followed by the Tribunal. If the parties are directed to file the affidavit in lieu of their examination-in-chief, it would save the timings of the Tribunal and so also the parties and filing of an affidavit on Oath will not take away the rights guaranteed to the other side and if the Chairman is required to record the evidence, it is nothing but wasting the time of the Tribunal. In such circumstances if the Tribunal has followed Order 18 Rule 4 of CPC, it cannot be ruled that it would frustrates the recipient of justice. On the contrary it would enure to the benefit of all the parties.
21. In the circumstances, we are of the view that the Judgement in K.SOMASHEKARA SHETTY VS. DEVAKI AND OTHERS is held to be no longer a good law and the 20 procedure followed by the Tribunal adopting Order 18 Rule 4 has to be upheld by this Court.
22. In the result, the appeal is allowed. The order passed by the learned Single Judge is hereby set aside. Since the Writ Petition has not been disposed of by the Learned Single Judge on merits, the matter is remanded to the Learned Single Judge with a request to hear and dispose of the Writ Petition on merits and in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE Ak