Karnataka High Court
Smt. Evulin D'Souza W/O Late Hilari ... vs The Authorised Officer Under Sec-77A Of ... on 21 April, 2006
Equivalent citations: 2006(4)KARLJ682
Author: R. Gururajan
Bench: R. Gururajan
ORDER R. Gururajan, J.
1. Petitioner is before this Court challenging the order dtd 12-5-2005 passed in appeal No. 20/2005.
2. Petitioner filed an application in form No.7A under the Karnataka Land Reforms Act seeking occupancy rights. The said application came to be rejected in terms of an order dt 2-12-2001. Aggrieved by the said order, petitioner filed an appeal before the Karnataka Appellate Tribunal, in appeal No. 20/2005. The tribunal has chosen to dismiss the appeal in terms of an order dtd 12-5-2005. This order is challenged in this writ petition.
3. Petitioner would say that the appeal was posted for admission on 12-1-2005. Office raised objections in the matter. Clarification was sought for by the office. Office wanted the RTC record to be made available before admission. Matter was posted before the court for compliance of office objections on 11-2-2005. Learned Counsel for the petitioner required the petitioner to send the RTC of the schedule land. Petitioner sent an intimation that it is difficult to get the copy of the same. In the meanwhile, the matter was posted to 12-5-2005. The tribunal dismissed the appeal for non-prosecution. According to the petitioner, the dismissal is unsustainable in law. There is no legal requirement to produce the RTC before admission in terms of the regulations. Petitioner with these facts wants the order to be recalled.
4. Emergent notice was issued. Thereafter the matter was posted on 9-3-2006. Parties were heard for sometime and thereafter this Court wanted an affidavit to be filed by the Registrar with regard to the insistence on RTC for the purpose of admission of appeal by the tribunal.
5. An affidavit was filed by way of objection statement stating that since this requirement is essential to be established, the Karnataka Appellate Tribunal normally insists on RTC to be furnished at the time of admission; that this is not the case where the case has not been placed before the concerned Bench on the ground that the RTC was not produced before the Office of the Registrar of Karnataka Appellate Tribunal? that this subtle distinction is being made in this case, since the production of the RTC is considered as a necessary pre-requisite to the case; that it is not to be construed as a preliminary requirement, before the case is placed before the bench for hearing. It is further stated that from 12-1-2005 the case on hand has been posted before the court on several dates and on 12-5-2005 again the advocate was absent in view of this situation the Bench was compelled to pass the impugned order; that there exists a remedy of appeal to a party in such cases. It is further stated that there exists a circular where the tribunal normally insists the production of various documents including RTC in examining the cases, since these are land related matters. The said circular is filed along with the objection statement.
6. Heard the learned Counsel for the parties,
7. Learned Counsel for the petitioner would argue that Karnataka Appellate Tribunal Regulations does not require production of RTC at the time of admission and any insistence on such production is legally impermissible. He would say that the litigants and the lawyers are facing difficulties in the matter of presentation of appeal before the tribunal. He would say that the registery of the tribunal is not posting the appeal immediately despite there being urgency in the matter. Learned Counsel complains that there is no requirement of payment of PF at the time of admission, still lawyers and litigants are made to pay the PF by cash and in the event of dismissal of appeal at the admission stage, no refund is made to the litigant. He would also elaborate by saying that even if the litigant places all the documents for the purpose of admission before notice there are instances of the respondent getting not the copies but only the notice from the tribunal. Even with regard to copy application, he would further say that it would take quite a long time and in some cases copy applications are not traceable and in the absence of any acknowledgement, a litigant has to file a second application.
8. On noticing these factual difficulties, this Court directed Sri Ramesh Anneppanvar, learned HCGA to get instructions from the Registrar and make his submissions. Learned HCGA would say that insistence of RTC is in the light of circular instructions and the same is sought for in the light of judgment of this Court with regard to consideration of the case of the parties. He would also say that process fee is being paid in advance and the same is accounted for by the Registry.
9. After hearing the learned Counsel, I have carefully perused the material on record.
10. Land litigation is not new in this country. Agriculture is the bone of economy in this country. Even today, agricultural reforms play a vital role in Indian economy. Agricultural rights are considered to be valuable rights for most of the Indians living on the rural side. The State Government in its wisdom has chosen to provide land agrarian laws for the purpose of providing a social welfare legislation measures in the matter of Karnataka Land Reforms Act. The said Act provides for form No. 7 and form No. 7A for the purpose of occupancy rights by an adjudicating body in terms of the Act. Form No. 7A is filed by those litigants who miss the bus in terms of the Division Bench judgment reported in ILR 2002 KAR. 1342. Assistant Commissioner is vested with the power of adjudication for the purpose of occupancy rights in terms of form No. 7A filed under Seciton 77-A of the Act. In the event of an adverse order parties have a right of appeal to the tribunal under Section 118 of the Act. It provides for a procedure in the matter of presentation of appeal and their registration.
11. Chapter 3 of the Karnataka Appellate Tribunal, 1979 would provide for a procedure in terms of Regulation 5 of the Regulations. Regulation 5 would read as under;
5(a) Every appeal or petition shall be accompanied by-
(i) a copy of the judgment or order or award served on the party by the authority or a certified copy thereof in respect of which the appeal or petition has been presented.
(ii) certified copy of the judgment or order of the tribunal in the case of a review petition.
(iii) application, if any, for condonation of delay and or stay of operation of the impugned order accompanied by an affidavit; and
(iv) as many copies of the memorandum of appeal or petition as they are respondents:
Provided that in the case of a miscellaneous application no certified copy of the impugned order need be filed.
(b) in addition to the requirements in Clause(a) there shall be filed in every case three paper books each containing a true copy of each of the documents mentioned in sub-classes (i) to (iii) of Clause (a).
Regulation 9 provides for presentation of appeal or petition, before the Secretary during office hours and on presentation the secretary shall endorse on it the date of receipt. He shall then examine it to see if it is filed within the time prescribed under the Statute, Rules or these Regulations and conforms to the provisions of the relevant Act, Rules and Regulations and any other law for the time being in force. Regulation 10 provides that if the secretary finds that the proper court fee is not paid or that papers presented to him are not in conformity with the provisions of the relevant law and regulations, he shall by a notice require the party concerned or his agent or pleader to rectify the defects within a period of twenty days from the date of notice. Where an appeal or petition is received by post, it shall be acknowledged by post, with a notice for rectification of defects, if any. If the defects are not rectified within the time allowed, the secretary shall place the case before any Member or a Bench on the date specified in the notice for orders. Thereafter a Member of the Bench after hearing is to pass an order directing the appeal to be registered or rejected. Where the appeal or petition is rejected, the Member or the Bench shall record the reasons for doing so.
12. From a reading of the regulations what is clear to me is that there is no requirement of production of RTC at the time of admission in terms of the Regulations. Therefore as rightly argued by the learned Counsel for the petitioner, the insistence of RTC at the time of admission is unsustainable in law in terms of the Regulations. Whenever first appeals are filed, registry normally calls for records and the RTC extracts would be available in the original records. If the RTC records are not filed by a party then that party would suffer the consequence in terms of the Act and the Regulations framed thereunder. The insistence on RTC at the time of scrutiny is totally unknown to the first appeal procedure. At the same time, this Court also must say that in the event of the appeal being posted before the court and in the event of the appellate authority being of the opinion that the RTC records are necessary for the purpose of consideration in the event of the order being bald or vague, then the court can direct the parties to produce the same for the purpose of consideration of the appeal on merits. In fact even this Court while entertaining a writ petition or appeal sometimes seek such documents for the satisfaction of the court. Satisfaction of the court for the consideration of appeal is different from the Registry insisting as a mandatory requirement for the purpose of posting it before the court. Calling of the documents by the court for considering is a judicial act where as the insistence on production of RTC by the Registry is only a ministerial act. The ministerial order must have the backing of Regulations in the matter of appeal proceedings.
13. It is further interesting to note that the Registry has chosen to place reliance on a circular said to have been issued on 30-11-2002 in the matter of production of RTC. Circular instruction has to be in aid of regulations in terms of the procedure in the matter of appeal. It cannot override the regulations. An administrative circular cannot modify or vary the regulations in the matter of consideration of appeal by a tribunal. Therefore reliance on the circular is wholly illegal and requires to be rejected by this Court.
14. Regulations are framed in terms of the power conferred under the Act for the purpose of presentation of appeal before the tribunal. The circular dtd 30-10-2002 is additional requirement not having the sanction of law for the purpose of admission not in conformity with the Act. It is also to be noticed by this Court that in terms of the averments in the objection statement that the registry is trying to make a distinction of a necessary pre-requisite and preliminary requirement. I am unable to understand this logic in terms of the objections. The Registry is bound by the Regulations and so long as the Regulations do not require any production before admission there can be no insistence of RTC by the registry except in the event of a judicial order by the tribunal. Therefore the argument of the Registry is required to be noticed for rejection.
15. Similarly, the Registry has chosen to give an incorrect statement saying that the appeal was dismissed on account of absence of advocate. As a matter of fact, if one reads the order carefully, it would show that the dismissal was on account of non-compliance with office objections in the matter of production of RTC. Therefore this argument also requires to be noticed for rejection.
16. Lastly it is argued by the State that the petitioner has the remedy of filing a Miscellaneous Petition under Section 28-A of the Act and therefore this Court need not interfere in the present cirumstances. Section 28-A is available only in the event of a petition being dismissed on merits. The impugned order is on account of non-compliance of office objections. Section 28-A is hence inapplicable in such circumstances. In the light of above discussion, the dismissal of appeal on the basis of office objections by the tribunal is to be set aside by this Court.
17. Before concluding, this Court is shocked to notice the affairs in the office of the tribunal. As I mentioned earlier, complaints are made with regard to non-refund of PF even after dismissal of the appeal at the admission stage; that appeals are not listed for admission in time; that no acknowledgement is being issued for copy application; that process fee is insisted even before admission. These complaints prima facie would show that the Registry of the tribunal, instead of helping the litigants, is probably trying to harass them. The Registry seems to have forgotten that those who come to the tribunal in the matter of land reforms are from rural area and many of them are from poorer sections of the society. They have to be provided justice in terms of law. Justice cannot be denied on account of these above procedures which has no sanction in law. At any rate, I do not want to express any opinion on these complaints since this is not the subject matter in this writ petition. I express my strong displeasure with reference to the way in which the Registry is functioning in the matter of admission procedure. I would direct the learned Government Advocate to place before the Chairman of the Tribunal a copy of this order for appropriate remedical measures in accordance with law. I further direct the office to send a copy of this order to the Administrative Judge so that suitable steps are taken in the larger interest of providing speedy justice to the rural folk of this country.
18. In these circumstances, this petition is accepted. The impugned order is set aside. The tribunal is directed to accept the appeal for admission and pass appropriate orders on admission without in any way being influenced by it earlier order or this order, while considering the merits of the matter. A direction is issued to the respondents to strictly follow the Regulations for the purpose of admission without reference to the circular.