Karnataka High Court
Narayan Hanamanth Murali vs Land Tribunal on 24 July, 1986
Equivalent citations: ILR1986KAR4059, 1986(2)KARLJ257
JUDGMENT Rama Jois, J.
1. This Writ Appeal is presented against the order of the Learned Single Judge allowing the Writ Petition filed by respondent-4 against the order of the Land Tribunal, Basavana Bagewadi, and remitting the matter to the Land Tribunal.
2. The facts of the case in brief are as follow: Respondent No. 4 made an application before the Land Tribunal, Basavan Bagewadi, claiming occupancy rights in respect of 11 acres and 37 guntas of land in Sy. No. 1257/2 of Basavana Bagewadi. The application was resisted by the appellant on the ground that an exemption has been granted in respect of lands leased by persons who were members of the Armed Forces under Sub-section (2) of Section 5 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as the 'Act') and, therefore, the application of respondent-No. 4 could not be granted as he was, under the law, entitled to recover possession for self-cultivation after retirement from the Army. The Land Tribunal accepted the plea of the appellant and rejected the application of respondent-4. Aggrieved by the said order respondent-4 presented the Writ Petition before this Court.
3. It is seen from the order of the learned Single Judge and the Annexures produced in the Writ Petition, that even before the Tribunal rejected the application of respondent-4 for occupancy rights the Special Tahsildar had made an order dated 26-12-1980 (Annexure-D) in favour of the appellant. By the said order the plea of the appellant thai he was entitled to recover possession of the land from his tenant (respondent-4) in view of the exemption granted to the members of the Armed Forces under Section 5(2) read with Section 15 of the Act, was accepted and, accordingly, directed respondent-4 to deliver possession of the land in favour of the appellant. The learned Single Judge was of the view that unless respondent-4 challenged successfully the order of the Special Tahsildar (Annexure-D) he could not have any grievance against the order of the Tribunal rejecting his application.
4. However, as respondent-4 pleaded ignorance about the order of the Special Tahsildar, the learned Judge allowed the Writ Petition, set aside the order of the Land Tribunal, and remitted the matter to the Tribunal, and gave an opportunity to respondent-4 to challenge the order of the Special Tahsildar before the appropriate forum. Aggrieved by the said order the appellant has presented this appeal.
5. Sri R.S. Chakrabhavi, learned Counsel for the appellant urged the following contentions :
(1) As the appellant was a soldier, the provisions of Sections 44 to 48-A of the Act was not at all attracted, as Section 5 granted exemption from those provisions of the Act, in respect of soldiers. Therefore, the Tribunal was right in rejecting Form No. 7 filed by respondent No. 4, and therefore, the order of the Tribunal could not have been set aside by the learned Single Judge.
(2) As regards the order made by the Special Tahsildar directing the respondent-4 to deliver the possession of the land in question to the appellant, the said older had become final as the respondent No. 4 had not chosen to present an appeal even after, according to him, he came to know of chat order, when the Tribunal passed the order on 27-3-1981, the learned Single Judge should not have held that the period during which the writ petition was pending should be deducted in considering as to whether the appeal, if any, presented, by the 4th respondent against the order of the Special Tahsildar before the Assistant Commissioner was time barred or not.
6. Before proceeding to consider the rival contentions urged by the parties it is also necessary to consider one other additional contention which had been raised by respondent-4 in the Writ Petition, though the same has not been considered as it concerns the jurisdiction of the Tahsildar to pass the order when Form-7 presented by respondent-4 was pending before the Tribunal. The contention was the Special Tahsildar was under an obligation to keep the application of the appellant pending until the Land Tribunal disposed of the application of respondent-4 before it. This view is supported by the decision of the learned Single Judge of this Court in Venkatachar v. Land Tribunal, 1980(1) KLJ 232 and in Pavadappa v. Govindacharya, 1981(2) KLJ 605.
7. The Learned Counsel for the appellant submitted that Section 15 was a Special provision conferring special jurisdiction on the Tahsildar and therefore he was not obliged to keep the proceedings pending, particularly for the reason that by the force of Section 44 of the Act itself the land covered by Section 5 of the Act were excluded. He also submitted that in view of Sub-section (6) of Section 15 which provides that it is only after the Tahsildar makes declaration that the land is no longer covered by Section 5 of the Act, the land gets vested in the State and comes within the purview of the jurisdiction of the Tribunal. The contention urged for the appellant is coverd by a Division Bench decision of this Court in Narasing Gopala Rao v. Land Tribunal, 1984(1) KLJ 384 in which the earlier mentioned two decisions were over-ruled. Paras 9 to 11 of the Judgment furnishes complete answer to the contention urged by the appellant. The ratio of the Judgment is that as the Tahsildar has Jurisdiction to pass an order under Section 15 in respect of the application made by a soldier it is the Tribunal which is required to keep the matter pending when an application for resumption was pending before the Tahsildar. In view of this decision the two decisions of the learned Single Judge referred to earlier is no longer good law. Therefore, the contention that the Special Tahsildar could not have made the order during the pendency of the application of respondent-4 before the Land Tribunal is untenable.
8. Now coming to the main question arising for consideration viz., whether the Tribunal was right in rejecting the application of the respondent, it is necessary to refer to the undisputed facts of this case. The 4th respondent had taken the land in question on lease from Sri. Hanamant Tuloji Morale i.e., father of the appellant long back. The appellant joined Military service in the year 1956. The father of the appellant died some time in 1967. The appellant was discharged from the Army in the year 1971. From 1967 on wards the appellant continued respondent No. 4 as his tenant and the 4th respondent treated respondent-4 as his landlord and was paying rents to the appellant. In view of these undisputed facts, the following aspects are clear.
(i) The appellant was a soldier since 1956 up to 1971.
(ii) He became the owner of this land conseqent on the death of his father in 1967.
(iii) The appellant as a soldier continued the tenancy in favour of the 4th respondent.
(iv) The appellant retired from army in the year 1971.
From these facts it follows that the provisions of Section 5 are clearly attracted and therefore, the Land Tribunal had no alternative than to reject the application of respondent-4 claiming occupancy rights as the land in question had not stood vested in the State in view of the express exception incorporated in Section 44. Consequently the provisions of [Sections 45 to 48-A were not at all attracted to this case.
9. The learned Counsel for respondent-4 however strenuously contended that the appellant had not created the tenancy and the tenancy said to have been created was only by the father of the appellant and therefore, the specific conditions incorporated under Sub-section (2) of Section 5 was not attracted to this case. Elaborating this contention the learned Counsel submitted that the words 'created or continued, used in Section 5(2) must be read as created and continued and if so read as the appellant had not created the tenancy and admittedly it was his father who created the tenancy, provisions of Section 5 would not apply to his case.
10. This contention is also covered by Judgment of this Court in the case of Narasing Gopala Rao.3 In view of the ratio of the said Judgment with which we respectfully agree the contention urged on behalf of the appellant is untenable.
11. The second contention urged by the appellant is that when respondent-4 had not chosen to file the appeal under Section 118 of the Act against the order of the Special Tahsildar within the time allowed by the Act and he did not do so even after he came to know of the Tribunal's order, the learned Judge should not have observed that the period during which the Writ Petition was pending before this Court should be deducted in computing the period of limitation if and when respondent No. 4 prefers an appeal against the order of the Special Tahsildar.
12. In our view as the power to condone the delay in presenting an appeal against the order of the Special Tahsildar is conferred on the Assistant Commissioner it is for him to consider as to whether sufficient cause is shown by respondent-4 for the delay in presenting an appeal if and when he presented that appeal. The discretion is conferred on the Assistant Commissioner and therefore no direction can be issued to him to exercise his discretion in a particular manner. Therefore, as far as this matter is concerned, we respectfully disagree with the observation made by the learned Single Judge. The Assistant Commissioner has to apply his judicial discretion as to whether the 4th respondent had shown sufficient cause for the delay in presenting the appeal if and when it is presented.
13. The learned Counsel for respondent-4 contended that application of the appellant made before the Special Tahsildar, itself was not in time and therefore even though the 4th respondent had not challenged the said order in appeal he had challenged it in the Writ Petition and therefore this Court may go into the validity of the said order with reference to the above question.
14. Sri Chakrabhavi, learned Counsel for the 4th respondent submitted that immediately after the discharge of the appellant from the Army the appellant had been continuously requesting the authorities for securing him the possession of the land and it would not be correct to say that the application of the appellant before the Special Tahsildar was time barred. There are more reasons than one, for not considering the validity of the order of the Special Tahsildar. There is a right of appeal conferred on the 4th respondent against the order of the Special Tahsildar therefore it is not appropriate for this Court to consider the validity of the order in the Writ Petition. Secondly the said cause of action is entirely a different cause of action and though the 4th respondent chose to add a prayer for quashing the said order also in the Writ Petition, he could not have done so. It could have been challenged only in a separate and independent Writ Petition. Thirdly the question whether the notice was given by respondent-4 under Section 15 in time is a disputed question of fact.
15. Therefore, we do not express any opinion in the rival contention of the parties on the point.
16. In the result, we make the following order :
(1) Writ Appeal is allowed.
(2) The order of the learned Single Judge, in Writ Petition No. 7313/81 is set aside. The Writ Petition is dismissed.