Karnataka High Court
Booda Poojari vs Thomu Poojarthi on 29 September, 1988
Equivalent citations: ILR1989KAR781
ORDER Chandrakantaraj Urs, J.
1. In this matter coming up for admission after notice, a very important question has been raised by the petitioner and having regard to the numerous matters pending before various Land Reforms Appellate Authorities, this revision is disposed of by the following order finally.
2. The petitioner was the tenant - appellant before the Appellate Authority, Udupl, in LRA.73 of 1987 on its file. The appellant filed two applications which were numbered as I.As. 1 and 2. I.A.1 was under Section 119(2) of the Karnataka Land Reforms Act 1961 (hereinafter referred to as the Act), praying for stay of the operation of the order dated 28-9-1987 passed by the Land Tribunal, Udupl, in proceedings under the Act for registration of occupancy rights. I.A.2 was one purporting to have been made under Order 39 Rules 1 to 3 read with Section 151 of the Code of Civil Procedure seeking an injunction directing respondents 1 and 2 in the appeal before the Appellate Authority from interfering with the peaceful possession and enjoyment of the appellant of the lands in dispute.
3. As evidenced by the reasoning adopted by the Appellate Authority found in para 13 of the order it allowed I.A.1 holding that the power is specifically conferred upon it to stay the order of the Land Tribunal, but dismissed I.A.2 on the ground that power is not specifically conferred on the Appellate Authority and therefore it cannot issue temporary injunction, despite attention being drawn to Section 117 of the Code of Civil Procedure. Therefore, the appellant aggrieved by the dismissal of I.A.2 has approached this Court inter-alia contending that the Appellate Authority has failed to exercise the jurisdiction vested in it and therefore, the order calls for interference and appropriate directions to the Appellate Authority.
4. It is useful to notice in this connection that the Act is a, special enactment providing for certain things connected with agrarian reforms with the main object of conferring, title to the agricultural lands on persons who are actually cultivating them as tenants. For this purpose, at different points of time since the Act came into force in 1966, different forums have been devised to give finality to the orders conferring occupancy rights. To begin with, question of tenancy was to be determined by the Munsiff having territorial jurisdiction whenever the question of tenancy was raised between the landlord and tenant and it was for that purpose a Tribunal. But by the amendment made in 1974, some radical changes were introduced by which the jurisdiction of the Munsiff's Court to decide questions of tenancy was completely taken away and the same was conferred on the Land Tribunals to be constituted in accordance with the amended provisions of the Act. By subsequent amendments specific powers were also conferred upon the Land Tribunal extending its jurisdiction to decide not only questions arising under the Land Reforms Act, but also certain other laws touching upon agrarian reforms like the inams Abolition Acts of different integrating parts of the State. Specifically by introduction of Section 48C in 1975, while taking away the jurisdiction of the Civil Courts to decide questions which are required to be decided by the Land Tribunals, power was conferred on the Land Tribunals to grant injunction in order to protect the possession of one or the other party, who moved the Land Tribunal for such protection. The order of the Land Tribunal was final subject only to the jurisdiction of this Court under Articles 226 and 227 of the Constitution. This position was further altered by an amendment made in 1986 by which Appellate Authority was created and provisions were made for the Writ Petitions pending In the High Court to be transferred to the Appellate Authority for disposal, while revislonal jurisdiction was specifically conferred on the High Court to which reference will be made hereinafter.
5. Section 116A inserted by Act 19 of 1986 with effect from 6-12-1985 provides for the Constitution of the Appellate Authority it is as follows:
"(1) The State Government shall, by notification, constitute a Land Reforms Appellate Authority for each District or part of a District or group of District, as may be specified in the notification, consisting of two members, of whom, one shall be an Officer in the Cadre of Civil Judge (hereinafter referred to as Judicial Member) and the other, an Officer not below the rank of a Deputy Commissioner and includes a Civil Judge or Principal Civil Judge, as the case may be, to whom a reference is made under Section 116B.
(2) Subject to such conditions as may be prescribed, the State Government shall, by notification, specify the principal seat of the Appellate Authority and may likewise specify the other places, where the Appellate Authority may also have sittings.
Section 116B provides for the manner in which the business is to be transacted by the Appellate Authority in the discharge of its duties and functions both administrative and judicial. Section 118(1A) also introduced by the Amendment Act 19 of 1986 provides as follows:
"118(1A) Save as otherwise provided in this Act, from every decision or order passed by the Tribunal under this Act, after the commencement of the Karnataka Land Reforms (Amendment) Act, 1986, an appeal shall lie to the Appellate Authority; and the Appellate Authority shall send a copy of every order passed by it to the Tahsildar, the Secretary of the Tribunal and the parties concerned."
From the language employed in Sub-section (1A) of Section 118, it is abundantly clear that every order passed by the Land Tribunal is subject to the Appellate jurisdiction of the Appellate Authority whether it is final or interlocutory in character.
6. Section 121A of the Act confers on the High Court revisional jurisdiction for the purpose of satisfying itself as to the legality of such order or as to the regularity of such proceedings with power to pass such order with respect thereto in respect of the orders made by the Appellate Authority under the Act. While these changes of forums and jurisdiction under the Act were brought about, Section 113 of the Act was also correspondingly amended by Act 19 of 1986. For our purpose it is enough to extract Sub-sections 2 and 3 of Section 113 and they are as follows;
"113(1) xx xx xx (2) The Appellate Authority shall, for the purposes of the disposal of the appeals before it, have the same powers as are vested in a Court of Appeal under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), except the following, namely:-
(a) power of remanding the appeal to the Tribunal, either for recording fresh decisions or for recording further evidence or for any other purpose;
(b) power of referring any point or points for decision to the Tribunal;
(c) such other matters as may be prescribed;
(3) The State Government, may make Rules for -
(a) conferment of such other powers on the Appellate Authority as may be considered necessary;
(b) regulating the practice had procedure of the Appellate Authority and the conduct of its business."
Sub-section (2) of Section 113 poses no problem in understanding the width of power conferred upon the Appellate Authority, it shall have the same powers as are vested in a Court of appeal under the Code of Civil Procedure with the exceptions noted. Unlike the Civil Courts exercising appellate jurisdiction, the Appellate Authority shall not remand any case which it is seized with. It has to record a decision finally itself. It cannot also remand even for limited purpose of recording evidence. That is clearly with the object of avoiding delay in the disposal of matters before the Appellate Authority and matters pertaining to land reforms generally. The matters which may be prescribed are also excepted or taken outside the purview of Civil Court exercising appellate jurisdiction.
7. Sub-section (3) of Section 113 makes it abundantly clear that in addition to the powers of an Appellate Court under the Code of Civil Procedure, the Government may prescribe and confer additional powers on the Appellate Authority. If this is borne in mind and read with the Land Reforms Appellate Authority Rules, particularly Rule 12, which provides for Judgments and orders and Rule 14 which provides for the manner of entertaining and disposal of interlocutory applications, leaves no doubt in one's mind that the Appellate Authority may pass inter-locutory orders as well as pass its final Judgment on matters before it.
8. It would be useful at this stage to notice the provisions of Rule 5 of the Land Reforms Appellate Authority Rules, as an argument has been founded by the learned Counsel for the respondent on that Rule. Rule 5 specifically provides among other things the power on Appellate Authority to stay the order under appeal. (See: Sub-rules (5) and (6) of Rule 5 of the Appellate Authority Rules).
9. From the above, I have no doubt in my mind that unless some power is taken away by the provisions contained in the Act or by prescription of a particular power by Rules made by the State Government, the Appellate Authority is clothed with the powers of an Appellate Court under the Code of Civil Procedure. One has to look at Section 107 read with Order 41 Rule 33 of the Code of Civil Procedure to know the width of the power of Appellate Court. Section 107 of the Code of Civil Procedure reads as follows:
"(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power --
(a) to determine a case finally;
(b) to remand a cases
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken, (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
Therefore, It is clear, if the Appellate Authority can exercise all the power of a Civil Court exercising appellate jurisdiction under the Code of Civil Procedure, then it has the powers enumerated under Section 107 of the Code of Civil Procedure.
10. The learned Counsel for the respondent contended the opposite and placed reliance upon the Full Bench decision of this Court in the case of LINGAMMA v. STATE OF KARNATAKA 1981(2) KLJ 177 What fell for consideration of the Full Bench was the following question:
"Has the Appellate Tribunal constituted under Karnataka Appellate Tribunal Act, 1976, the power to make interim orders like an order appointing a Receiver for the properties in dispute during the pendency of an appeal before it?"
Section 54 of the Land Revenue Act confers the power on the Appellate Authority under that Act and that is as follows:
"54. Powers of Appellate Authority - The Appellate Authority may, for reaspns to be recorded in writing either annul, reverse, modify or confirm the order appealed from, or may direct the Officer making the order by himself or by any of his subordinate Officers, to make further inquiry or to take additional evidence on such points as the Appellate Authority may specify, or the Appellate Authority may itself make such inquiry or take such additional evidence:
Provided that no additional evidence, whether oral or documentary shall be directed to be taken, unless -
(a) The Revenue Officer from whose order the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the Appellate Authority requires any document to be produced or any witness to be produced or witness to be examined:
Provided further that when additional evidence is allowed to be produced, by an Appellate Authority, such authority shall record the reason for its admission," (As extracted by this Court in Lingamma's case).
The significant difference between Section 113(2) and (3) of the Act and Section 54 of the Karnataka Land Revenue Act as extracted above is that in the Land Revenue Act or Section 54 thereof there is no reference to either the Code of Civil Procedure or to a Court of appeal exercising Appellate power under the Code of Civil Procedure. In other words, Section 54 as held by the Full Sench has to be understood to be exhaustive, in the matter of conferment of power in itself and nothing could be implied or nothing was left to be Implied by the legislature. Therefore, the learned Counsel for the respondent contends that by implication the Appellate Authority under the Act could not be clothed with the power of the Civil Court. That would be begging the question. There is specific conferment of powers of an Appellate Court under the Code of Civil Procedure on the Appellate Authority by Section 113(2) and nothing is left to be implied. By reference to provisions contained in the Code of Civil Procedure, the provisions contained therein are legislated into the Karnataka Land Reforms Act in so far as the duties, functions and powers of the Appellate Authority are concerned subject to the exceptions created by the legislature itself in Sections 113(2)(a), (b), (c) and (d) and Sub-section (3) of the said Section. Therefore, while there cannot be any quarrel about the correctness of the opinion expressed by the Full Bench which is binding on me, it has no application to the question which fails for consideration in this case.
11. The Appellate Authority concerned in this case was clearly in error in declining to go into the merits of I.A.2 and grant relief solely on the ground that it has no power. It has the power, which is to be exercised in terms of Section 107 read with Order 41 Rule 33 of the Code of Civil Procedure as well as Order 39 Rules 1 and 2 of the Code of Civil Procedure.
12. Therefore, the revision is allowed. The order in so far as 1.A.2 is set aside and the Appellate Authority is now directed to consider I.A.2 on merits and dispose of the same in accordance with law decIared in the course of this order.