Karnataka High Court
Shambulingappa S/O. Kalaveerappa ... vs The State Of Karnataka on 18 July, 2023
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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WP No. 104655 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 104655 OF 2014 (LR)
BETWEEN:
SHAMBULINGAPPA S/O. KALAVEERAPPA
KORISHETTAR, AGE: 73 YEARS,
OCC: AGRICULTURE, R/O. BELAGALPETH,
TQ: HANAGAL, DIST: HAVERI.
... PETITIONER
(BY SMT. PALLAVI S PACHHAPURE, &
SRI. F V PATIL, ADVOCATES)
AND:
VISHAL 1. THE STATE OF KARNATAKA,
NINGAPPA R/BY ITS SECRETARY FOR REVENUE,
PATTIHAL M S BUILDING, BANGALORE-560001.
Digitally signed by
VISHAL NINGAPPA
PATTIHAL 2. THE LAND TRIBUNAL, HANAGAL,
Date: 2023.07.21
12:14:35 +0530 R/BY ITS CHAIRMAN,
TQ: HANAGAL, DIST: HAVERI.
3. THE ASSISTANT COMMISSIONER,
SAVANUR, TQ: SAVANUR, DIST: HAVERI.
4. GANGAVVA KOM NISSIMAPPA GULED,
SINCE DECEASED BY HIS LR'S
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WP No. 104655 of 2014
4A. NAGAPPA S/O. BASAVANNEPPA GULED,
AGE: MAJOR, OCC: AGRICULTURE
R/O. BELGALPETH, TQ: HANAGAL,
DIST: HAVERI.
4B. YELLAPPA S/O. BASAVANNEPPA GULED,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. BELGALPETH, TQ: HANAGAL,
DIST: HAVERI.
4C. RAMESH S/O. BASAVANNEPPA GULED,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. BELGALPETH, TQ: HANAGAL,
DIST: HAVERI.
4D. SHIVAKUMAR S/O. BASAVANNEPPA GULED,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. BELGALPETH, TQ: HANAGAL,
DIST: HAVERI.
4E. SAROJAVVA W/O. SIDDAPPA MANDANNAVAR.
AGE: MAJOR, OCC: HOUSEWIFE &
AGRICULTURE,
R/O. BENDIGERI, TQ: SHIGGAON,
DIST: HAVERI.
4F. YALLAVVA W/O. SHEKAPPA MATTIHALLI,
AGE: MAJOR, OCC: HOUSEWIFE &
AGRICULTURE, R/O. HALIYAL, TQ: HUBLI,
DIST: DHARWAD.
4G. PREMAVVA W/O. VENKANAGOUDA PATIL,
AGE: MAJOR, OCC: HOUSEWIFE &
AGRICULTURE, R/O. MUDDINKOPPA, TQ:
SHIGGAON, DIST: HAVERI.
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WP No. 104655 of 2014
4H. BASAVANEVVA W/O. VIRUPAKSHAPPA
DODDAHUNASIKATTI,
SINCE DECEASED BY HER LR'S
5. VIRUPAKSHAPPA DODDAHUNASIKATTI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. HOSAKOPPA ONI, POST: BELAGALPET,
TQ: HANAGAL, DIST: HAVERI.
6. KARABASAVVA W/O RAMESH GULED,
AGE: MAJOR, OCC: HOUSE WIFE,
R/O. POST: BELAGALPET, TQ: HANAGAL
DIST: HAVERI.
7. SIDDAPPA S/O VIRUPAKSHAPPA
DODDAHUNASIKATTI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. POST: BELAGALPET, TQ: HANAGAL
DIST: HAVERI.
8. NILAPPA S/O VIRUPAKSHAPPA
DODDAHUNASIKATTI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. POST: BELAGALPET, TQ: HANAGAL
DIST: HAVERI.
... RESPONDENTS
(BY SRI. VINAYAK S KULKARNI, AGA FOR R1-R3;
SRI. M S HARAVI, ADVOCATE FOR R4(A-G) & R5-R7;
R8 SERVED; R5-R8 ARE THE LR'S OF DECEASED R4H)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI,
QUASHING THE IMPUGNED ORDER VIDE ANNEXURE-H
DATED 23/07/2011 IN APPEAL NO.768/2006 PASSED BY
KAT. BANGALORE & ETC.
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WP No. 104655 of 2014
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
"(A) Issue a writ in the nature of certiorari quashing the impugned order vide Annexure-H, dated 23.07.2011 in Appeal No.768/2006, passed by KAT, Bengaluru, in the interest of justice and equity.
(B) Issue a writ in the nature of certiorari quashing the impugned order bearing No.LMSR-89/67+77:37, dated 16.09.1976, vide Annexure-E, in the interest of justice and equity.
(C) Pass such other suitable order/s as this Hon'ble Court deems fit and proper in the nature and circumstances of the case, in the interest of justice and equity."
2. Heard the learned counsel appearing for the parties.
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3. Facts leading to filing of this writ petition, narrated briefly are, the petitioner claims to be the tenant in occupation & cultivation of the land bearing Sy.No.167/1+2/1 measuring 3 acres situated at Belagalpeth Village, Hangal Taluka, Haveri District. It is his case that respondent No.4 had executed advance lease deed, which was termed as "Agava Lavani" in favour of the petitioner on 17.02.1966. On the strength of the said lease deed, the entries in the revenue records of the land in question were mutated in the name of the petitioner and the same continued from the year 1967-68 to 2001-02. After coming into force of the Karnataka Act No.1 of 1974, the petitioner had filed Form No.7 claiming occupancy rights of the land in question. The same was rejected by the Tribunal, by order at Annexure-E, dated 16.09.1976. Thereafter, on 30.03.1999, the petitioner had filed an application in Form No.7A as provided under Section 77-A of the Karnataka Land Reforms Act, 1961. The Competent Authority, vide order dated 28.02.2006 had allowed the claim of the petitioner in Form No.7A and granted the -6- NC: 2023:KHC-D:7436 WP No. 104655 of 2014 occupancy rights of the land in question to the petitioner. Assailing the said order, respondent No.4 had filed an appeal before the Karnataka Appellate Tribunal. The Appellate Tribunal, vide its order dated 23.07.2011 at Annexure-H, allowed the said appeal and set aside the order passed by the Assistant Commissioner, dated 28.02.2006. It is under these circumstances, the petitioner is before this Court.
4. Learned counsel appearing for the petitioner submits that the order at Annexure-E, dated 16.09.1976 is not a speaking order and it is passed in violation of the principles of natural justice. She submits that the said order is signed only by the Chairman of the Tribunal and the other Members of Tribunal have not signed the said order and therefore, the same is nonest in the eye of law. She also submits that in the subsequent proceeding that was initiated by the petitioner by filing Form No.7A, the landlord has clearly admitted the possession of the petitioner and therefore, the matter requires -7- NC: 2023:KHC-D:7436 WP No. 104655 of 2014 reconsideration. She submits that the advance lease deed transaction or "Agava Lavani" is considered as lease transaction and not a mortgage transaction and in this regard, she has placed reliance on the judgment of this Court reported in the case of Marthanda Rao Shankar Rao Patil and others Vs. the Land Tribunal, Haveri, by its Secretary Special Tahsildar, Haveri Taluk, Dharwad District and another reported in ILR 1977 KAR 648. She submits that since the order at Annexure-E is a nonest order, the question of delay will not come in the way of this Court in quashing the said order and in support of this contention, she has placed reliance on the judgment of the Hon'ble Supreme Court in the case of State of Orissa and others Vs. Brundaban Sharma and another reported in 1995 Supp (3) SCC 249. She has also placed reliance on the judgment of this Court in the case of S.Shivalingaiah Vs. State of Karnataka and others reported in 2006(5) Kar.L.J. 425.
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5. Per contra, learned counsel appearing for the contesting private respondents submits that the petitioner's claim in Form No.7A was not maintainable, since the petitioner had already filed a claim in Form No.7 in respect of the land in question and therefore, the Appellate Tribunal was justified in passing the order at Annexure-H, dated 23.07.2011. He submits that there is no explanation to the inordinate delay in filing the writ petition challenging the order dated 16.09.1976. He submits that even though the order passed by the Tribunal is a nonest order, the petitioner is required to challenge the same within a reasonable period. He submits that, since the petitioner has not offered any explanation to the inordinate delay caused in filing the writ petition, no relief can be granted to him. In support of his arguments, he has placed reliance on the following judgments:
(i) Ramjas Foundation and others Vs. Union of India and others reported in 1993 Supp (2) SCC 20;-9-
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(ii) Vishwas Nagar Evacuees Plot Purchasers Association and another reported in (1990) 2 SCC 268; &
(iii) P.S. Sadasivaswamy Vs. State of Tamil Nadu reported in (1975) 1 SCC 152.
6. I have given my anxious consideration to the arguments addressed on both sides and also perused the material available on record.
7. It is not in dispute that respondent No.4 had executed the advance lease deed in favour of the petitioner on 17.02.1966. A perusal of the said document, which is available at Annexure-B would go to show that the lease was for a period of thirteen years. The said deed is termed as "Agava Lavani Patra". From the reading of the terms of the deed, it is very clear that the said deed is a lease deed and not a mortgage deed. In the case of Marthanda Rao Shankar Rao Patil and others (Supra), this Court after appreciating the terms of the deed termed as "Agava Lavani" has observed that the transaction under
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NC: 2023:KHC-D:7436 WP No. 104655 of 2014 the said deed was in reality a advance lease deed and not a mortgage deed.
8. From the perusal of the order at Annexure-E, passed by the Land Tribunal, it is seen that absolutely no reasons have been assigned by the Tribunal for rejecting the claim made by the petitioner in Form No.7. The petitioner, who had appeared before the Tribunal had made a statement that the lease deed executed in his favour was valid for a further period of six years and the landlord had admitted the same. After recording the same, without assigning any reason, the Tribunal has rejected the Form No.7 filed by the petitioner. Though, in the operative portion of the order, it has been observed that the order is passed unanimously by the Tribunal, from the perusal of the order at Annexure-E, it is seen that only the Chairman of the Tribunal had signed the impugned order and the other Members of the Tribunal are not signatories to the order.
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9. The Division Bench of this Court in the case of Vijay Bank Vs. The Secretary to the Government of Karnataka and others in Writ Appeal No.1942/2006, disposed off on 20.06.2007, in almost identical circumstances were a challenge was made to the order passed by the Tribunal after a delay of 32 years, after referring to Rule 17(8) of the Karnataka Land Reforms Rule, in paragraph No.4 of the order, has observed as follows:
"4. After carefully going through the impugned order passed by the learned single Judge in review and the provisions of Rule 17(8) of the Karnataka Land Reforms Act, we are of the opinion that the failure of the members to sign the order is not merely a technical lapse but it goes to the very root of the matter. The judicial discipline requires that in a multi member judicial/quasi judicial adjudicatory body, all the adjudicators who have heard the matter should pronounce their written opinion at the same time and place and all of them should sign the order. The said salutory object of law is effectively manifested in Rule 17(8) of the Karnataka Land Reforms Act. It is evident that five members have heard the matter. Only three
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NC: 2023:KHC-D:7436 WP No. 104655 of 2014 members have signed the order and two of them have not signed the order. The Chairman and one of the members who have signed the order have expressed note of dissent for grant of occupancy rights in favour of 4th respondent. Only one of the members who have signed the order has opined that occupancy rights to be granted in favour of 4th respondent. On totality of the consideration of facts and the material, we are of the view that the impugned order of the Tribunal which is not signed by the all the members who have heard the matter is a nullity and the said order cannot be considered as a valid juridical adjudication."
10. In the proceedings that was initiated by the petitioner subsequently by filing Form No.7A, the landlord had appeared before the Competent Authority and admitted the relationship between the parties. Even during the course of arguments, learned counsel appearing for the petitioner has submitted that only after the expiry of the lease period under Annexure-B, the landlords have taken possession of the land, which means that as on 01.03.1974, the petitioner / tenant was in occupation and cultivation of the land in question.
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11. As rightly contended by the learned counsel appearing for the contesting private respondents, the petitioner's claim under Form No.7A in respect of the land in question was not maintainable in view of the fact that the petitioner had already filed Form No.7 claiming occupancy rights of the very same land. The Appellate Tribunal was therefore, fully justified in setting aside the order passed by the Assistant Commissioner / competent authority, dated 28.02.2006, under which, the petitioner was registered as the occupant of the land in question. No illegality or irregularity can be found in the said order passed by the Karnataka Appellate Tribunal, vide Annexure-H, dated 23.07.2011.
12. Insofar as the question of delay in filing the writ petition is concerned, the Division Bench of this Court in the case of Vijaya Bank (supra), wherein a challenge was made to the order passed by the Tribunal after a lapse of 32 years, has held that since the order was not signed by all the Members of the Tribunal, the said order is a nullity
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NC: 2023:KHC-D:7436 WP No. 104655 of 2014 and the same cannot be considered as a valid juridical adjudication. The Hon'ble Supreme Court in the case of State of Orissa and others (Supra) at paragraph No.18, has observed as follows:
"18. Under these circumstances, it cannot be said that the Board of Revenue exercised the power under Section 38-B after an unreasonable lapse of time, though from the date of the grant of patta by the Tehsildar is of 27 years. It is true that from the date of the alleged grant of patta 27 years did pass. But its authenticity and correctness was shrouded with suspicious features. The records of the Tehsildar were destroyed. Who is to get the benefit? Who was responsible for it? The reasons are not far to seek. They are self-evident. So we hold that the exercise of revisional power under Section 38-B by the Board of Revenue was legal and valid and it brooked no delay, after it had come to the Board's knowledge. That apart as held by the Board of Revenue, the order passed by the Tehsildar without confirmation by the Board is non est. A non est order is a void order and it confers no title and its validity can be questioned or invalidity be set up in any proceeding or at any stage."
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13. A Co-ordinate Bench of this Court, in the case of S.Shivalingaiah (Supra) has observed that, it is a settled position of law that refusal to condone the delay in a matter, where a grave injustice is likely to occur, it would be travesty of justice not to condone the delay in such cases. In the said case, this Court at paragraph Nos.11 & 12 has observed as follows:
"11. In the instant case, the impugned order does not spell out the reasons given by the members of the Tribunal for disagreeing with the view expressed by the Chairman and, therefore, the impugned order cannot be sustained in law and, moreover, when the Chairman has categorically arrived at a finding supported by reasons that the contesting respondent was never in cultivation of the land in question, it was all the more necessary on the part of the other members of the Tribunal to have given their reasons for holding that the petitioner's father was not a tenant.
12. In the light of the foregoing reasons, the delay in filing the writ petition requires to be condoned and the impugned order is liable to be set aside as it is erroneous and contrary to law."
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14. In the case of Ramjas Foundations & others (Supra) the Hon'ble Supreme Court taking into consideration the facts and circumstances of the said case, at paragraph No.14 has observed as follows:
"14. XXXXX In the facts and circumstances of the case before us the appellants were also sitting on the fence and did not take any steps of challenging the notifications under Sections 4 and 6 of the Act till 1973 though the grounds now sought to be urged were available to the appellants as soon as such notifications were Issued. Thus viewing the matter from any angle we are clearly of the view that the writ petition was also liable to be dismissed on the ground of laches and delay on the part of the appellants apart from other grounds already dealt by us."
15. In the case of Vishwas Nagar Evacuees Plot Purchasers Association and another Vs. Under Secretary, Delhi Administration and Others reported in (1990) 2 SCC 268 considering the facts and circumstances of the said case, the Hon'ble Supreme Court had held that the delay was not properly explained.
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16. In the case of P.S. Sadasivaswamy (Supra) the Hon'ble Supreme Court was considering the case where there was a delay fourteen years in filing the writ petition in a service matter and taking into consideration that a person aggrieved by an order promoting a junior over his head had approached after a delay of fourteen years had held that at least within six months or at the most within a period of one year, the petitioner ought to have approached the writ Court. In none of the cases, which have been cited by the learned counsel for the petitioner, the challenge to an order, which was nonest and void ab initio, which fell into consideration. Therefore, I am of the view that the judgments on which reliance has been placed by the learned counsel for the contesting private respondents cannot be made applicable to the facts and circumstances of the present case. It is trite that the judgments can be relied as precedents only if they are applicable to the facts and circumstances of the case and not otherwise.
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17. In the present case, the impugned order at Annexure-E, passed by the Land Tribunal is not only a nonest order but the same is also not a speaking order and therefore, the same cannot be sustained in the eye of law. In addition to the same, the material on record would prima facie go to show that the tenant was in occupation and cultivation of the land in question as on 01.03.1974 and even thereafter and therefore, the order passed by the Tribunal rejecting the claim of the petitioner cannot be sustained. Accordingly, the following:
ORDER The writ petition is partly allowed. The impugned order at Annexure-E, dated 16.09.1976 passed by the Land Tribunal is quashed and the matter is remitted to the Tribunal for fresh consideration in accordance with law after giving an opportunity of being heard to both the parties.
Sd/-
JUDGE Vnp*/Ct:Bck List No.: 1 Sl No.: 46