Karnataka High Court
Late Balasaheb Patil Since Decd By Lrs vs State Of Karnataka on 26 June, 2018
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION No.7293 OF 2005 (LR)
BETWEEN:
BALASAHEB PATIL
SINCE DECEASED BY LRS
1. SUDHATHAI PATIL
SINCE DECEASED BY HER LRS,
2. BABURAO PATIL S/O.BALASAHEB PATIL
AGE: 62 YEARS,
R/O MANGOOR VILLAGE
CHIKKODI TALUK
BELGAUM DISTRICT
3. VEERADAVAL PATIL S/O.BALASAHEB PATIL
SINCE DECEASED BY HIS LRS
3A. PADMAVATHI W/O. VEERADAVAL PATIL,
AGE: 60 YEARS, R/O.MANGOOR VILLAGE,
TALUK: CHIKODI, DIST: BELAGAVI,
REPTD BY POWER OF ATTORNEY HOLDER
SRI.AMRUTHLAL KHETMAL SHAH,
AGE: 58 YEARS, OCC: BUSINESS,
R/O.BHAKTHI PUJA NAGAR, B WARD,
KOLHAPUR.
4. RANJANI MADHUKAR NILLE
2
AGE: 70 YEARS, R/O RAJESH APARTMENTS
RAJARAMPURI 6TH LANE
KOLHAPUR
5. ANJANADEVI KIRAN SULTANI
AGE: 60 YEARS, R/O BHARATH HOUSING SOCIEY
RAJARAMPURI 8TH LANE
KOLHAPUR
6. SAVITRIDEVI BABURAO TIPPANAVAR
AGE: 57 YEARS, NEAR THAKUR GARAGE
PB ROAD, BELGAUM
7. SHITAL KUMAR BALASAHEB PATIL
AGE: 52 YEARS, R/O RAJESH APARTMENTS
RAJARAMPURI, 6TH LANE
KOLHAPUR
... PETITIONERS
(By Sri.VENKATESH DALAWAI ADV. FOR
SRI. H.M.DHARIGOND ADV.
FOR P2 TO P7 WHO ARE LRS OF DECEASED P1)
AND:
1. STATE OF KARNATAKA
BY LAND TRIBUNAL
BELGAUM DISTRICT
BELGAUM
2. PARASHURAM DATTU SAVANTH
AGE MAJOR, R/O. BASAVAN GALLI,
HOSUR, SHAHAPUR, BELAGAVI.
3. LAKSHMIBAI PARASHURAM SAVANTH
AGE MAJOR, R/O. BASAVAN GALLI,
HOSUR, SHAHAPUR, BELAGAVI.
4. DEELIP PARASHURAM SAVANTH
AGE MAJOR, R/O. BASAVAN GALLI,
3
HOSUR, SHAHAPUR, BELAGAVI.
5. SHEELABAI PARASHURAM SAVANTH
AGE MAJOR, R/O. BASAVAN GALLI,
HOSUR, SHAHAPUR, BELAGAVI.
6. YELLAPPA DATTU SAVANTH
AGE MAJOR, R/O. BASAVAN GALLI,
HOSUR, SHAHAPUR, BELAGAVI.
7. LATE MANOHAR DATTU SAVANTH SINCE
DECEASED BY LRS
7(A) LATHA MANOHAR SAVANTH
AGE MAJOR, R/O. BASAVAN GALLI,
HOSUR, SHAHAPUR, BELAGAVI.
7(B) SACHIN MANOHAR SAVANTH
AGE MAJOR, R/O. BASAVAN GALLI,
HOSUR, SHAHAPUR, BELAGAVI.
7(C) VAISHALI MANOHAR SAVANTH
AGE MAJOR, R/O. BASAVAN GALLI,
HOSUR, SHAHAPUR, BELAGAVI.
8. NARAYAN DATTU SAVANTH
AGE MAJOR, R/O. BASAVAN GALLI,
HOSUR, SHAHAPUR, BELAGAVI.
... RESPONDENTS
(By Sri.A.R.RODRIGUES AGA FOR R1;
SRI.M.G.NAGANURI ADVOCATE
FOR R2 TO R6, R7(A) TO R7(C) & R8)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED ORDER DTD. 20/2/2004 VIDE
ANNEXURE 'E' AND ETC.
4
THIS WRIT PETITION COMING ON FOR HEARING ON
IA THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Writ Petition is listed for Hearing (on IA No.4/2018). With the consent of learned counsel on both sides, it is heard finally.
2. Petitioners are the legal representatives of one Balasaheb Patil. They have preferred this Writ Petition assailing order dated 20.02.2004 (Annexure 'E'). By that order, respondent No.1 Land Tribunal, Belagavi has granted occupancy rights in respect of R.S. No.393 measuring two Acres Three Guntas in favour of respondent No.2, and other private respondents are his family members.
3. I have heard learned counsel for petitioners, learned counsel for respondent Nos.2 to 8 and learned Additional Government Advocate for respondent No.1.
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4. Learned counsel for petitioners mainly contended that the impugned order dated 20.02.2004 which is at Annexure 'E' cannot be considered as an order in the eye of law as the said order has not been signed by the Chairman as well as by the Members of respondent No.1 Land Tribunal. Drawing my attention to the impugned order, he submitted that the said order is signed by the Chairman and only three Members, whereas the Land Tribunal consists of five Members. He submitted that one of the Members, namely Sri.Arjun Parashuram Chougule, has not signed the impugned order. That the said order is technically not correct and therefore, on that ground, the impugned order may be quashed and the matter may be remanded for fresh consideration. In support of his submission, learned counsel for petitioners places reliance on the judgment of a Division Bench of this Court in 6 the case of Vijaya Bank, by its Chief Manager Vs. The Secretary to the Government of Karnataka, Revenue Department and Others, reported in ILR 2008 KAR 1481, wherein the Division Bench has considered the scope and ambit of the Rule 17(8) of the Karnataka Land Reforms Rules, 1974 (hereinafter referred to as 'the Rules' for the sake of brevity) and has held that when a Member has not expressed his dissent nor has signed the order, it is a nullity and cannot be considered to be a valid judicial adjudication.
5. Learned counsel for petitioners also drew my attention to another order passed by a learned Single Judge of this Court in Writ Petition No.60125 of 2012 [KLR] connected with Writ Petition No.67863 of 2011 [LR] disposed off on 08.02.2012, (Moulasab S/o.Fakirasab Jakathi and others Vs. The State of Karnataka, by its Secretary and others), wherein this Court, on 7 following the judgment of Division Bench of this Court referred to above, has held that when the Land Tribunal consists of five members, on hearing the application for grant of occupancy rights filed in Form No.7, only four Members have signed, there is clear violation of Rule 17(8) of the Rules. Learned counsel for the petitioners, therefore, submits that the impugned order may be quashed and the matter may be remanded for reconsideration by the Land Tribunal.
6. Per contra, learned counsel for respondent Nos.2 to 8, placing reliance on another judgment of this Court in the case of Virupakshappa V. Vs. Dangadi Hanumanthappa and others, reported in 1978 (1) KLJ 464, contends that if there is a difference of opinion amongst the Members of the Tribunal, the majority view binds the minority and that would be the decision of the Tribunal. That in the instant case, four persons 8 out of five persons have signed the impugned order. The same should be considered as the majority view, even if for a moment, it is to be assumed that a Member who has not signed has dissented. He, therefore, submitted that there is no merit in the Writ Petition and the Writ Petition may be dismissed.
7. Learned Additional Government Advocate very fairly submits that the impugned order comprises of only four signatures of the Chairman and three Members and having regard to Rule 17(8) of the Rules, appropriate orders may be made in this Writ Petition.
8. Having heard the learned counsel for the respective parties, it is noted that Rule 17 of the Rules defines the procedure to be followed by the Land Tribunal. Rule 17(8) of the Rules states that the order of the Land Tribunal shall be signed, in addition to the Chairman, by the other Members of 9 the Tribunal who heard the case. A cursory reading of the said Rules would indicate that the Legislature has intentionally used the expression 'shall' to make it mandatory for every Chairman and Members of the Tribunal who have heard the case to sign the order. In fact, the said intent of the Legislature has been adverted to by the Division Bench of this Court in Vijaya Bank's case in paragraph (4) as under:
"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 Rules, 1974, 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 salutary object of law is effectively 10 manifested in Rule 17(8) of the Karnataka Land Reforms Rules. It is evident that five members have heard the matter. Only three 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 head the matter is a nullity and the said order cannot be considered as a valid juridical adjudication."
9. In the aforesaid case, out of five Members who heard the case, only three Members had signed the order and two of them had not signed the order. The Chairman and one of the members who had signed the order had expressed note of dissent for grant of occupancy rights in 11 favour of respondent No.4 therein. In the above circumstances, the Division Bench has held that the impugned order was a nullity and had no validity in the eye of law. Following the said judgment, a learned Single Judge of this Court in the case of Moulasab and others, has opined that when five Members have heard the application filed in Form No.7 and only four Members have signed the order, there is clear violation of Rule 17(8) of the Rules.
10. In my view, aforesaid judgment and orders of this Court are squarely applicable to the present case, since in the instant case, out of five Members who have heard the matter, the Chairman and three Members have signed the impugned order, whereas one of the Members has not signed the order at all.
11. As far as the order passed by this Court in the case of Virupakshappa is concerned, it is 12 noted that in the said case, the contention was with regard to the opinion of the Tribunal not being unanimous one, there was no decision in the eye of law and therefore, was liable to be quashed. That contention was negatived by a learned Single Judge of this Court and it was held that where there is a dissent amongst the Members of the Tribunal, the majority view would prevail and that should be the decision of the Tribunal. A dissent would imply that there is an order which would be signed by the Members and Chairman who have dissented.
12. But, in the instant case, there is no view expressed by one of the Members. Merely because he has not expressed any view, it cannot be a conjecture that even if his view was a dissent, it would have resulted in a majority opinion by the other persons who had signed the order. That is 13 not the way of considering a judicial order or a quasi-judicial order, as in the instant case.
13. The Rule expressly uses the expression 'shall' which means a mandatory requirement to be applied. Therefore, reliance placed in the case of Virupakshappa by the learned counsel for respondent Nos.2 to 8 is of no assistance at all.
14. In the circumstances, impugned order at Annexure 'E' dated 20.02.2004 is quashed. The matter is remanded to the Land Tribunal, Belagavi, for fresh reconsideration.
15. At this stage, learned counsel at the Bar submitted that respondent No.1 Land Tribunal has to be reconstituted. Learned Additional Government Advocate is requested to bring to the notice of the Principal Secretary, Department of Revenue, Government of Karnataka, about the reconstitution of respondent No.1 Land Tribunal. 14 Once the Tribunal is reconstituted, it shall dispose off the matter within a period of six months from the date of its reconstitution. All other contentions on both sides are left open.
16. With the aforesaid observations and directions, the Writ Petition is disposed off.
17. In view of disposal of the Writ petition, I.A. No.4 of 2018 also stands disposed off.
Sd/-
JUDGE RK/-