Karnataka High Court
Challa Venkata Naidu And Others vs State Of Karnataka And Others on 8 June, 2000
Equivalent citations: 2001(2)KARLJ466
ORDER
1. I have heard the petitioners' learned Advocate and the learned Government Advocate for respondents 1 and 2. Respondent 4 is served and unrepresented. It appears that despite efforts, the respondents 3 and 5 have not been served but, I am not delaying the disposal of the proceeding on that ground because the affected party who is required to be heard is represented by the learned Government Advocate and he has been heard in detail. However, after remand the Tribunal shall take necessary steps to ensure that all the necessary parties or their legal representatives have notice of the proceeding.
2. This is an unusual case where the petitioners contend that they had filed their application before the Tribunal for the grant of occupancy rights, and according to them, despite a long lapse of time, the cases were not taken up and they were under the impression that because the opposite parties were influential persons, that their cases have been put into cold storage. They filed writ petitions before the High Court and obtained a direction for the expeditious disposal of their cases whereupon, the Tribunal took up the same and after hearing the case passed a detailed speaking order dated 10-12-1993. The interesting aspect about this order is that the Tribunal in the first instance records a finding that the applications were not filed within the prescribed period of time and that therefore, the same are liable to be rejected. Thereafter, despite having held that the applications were not maintainable the Tribunal has proceeded to examine the case on merits and has recorded a prima facie finding which appears to be in favour of the petitioners. However, in view of the fact that they were disqualified on the earlier ground, the Tribunal has refused to grant occupancy rights.
3. The petitioners' learned Advocate has relied heavily on the report of the Tahsildar who has admitted that the papers in question were found in the office of the Tribunal and it is his submission that this is sufficient proof of the fact that the petitioners had in fact applied for the grant of occupancy rights. He further states that if the petitioners had applied late or if there were any other infirmities that these would have been recorded or that the petitioners should have been informed and in the absence of any such record, that it will have to be presumed that the applications were received and through some default were not processed and that this was the reason for the delay. In this view of the matter, he submits that the petitioners cannot be prejudiced because of any errors committed by the office of the Tribunal and he reinforces his argument by pointing out that it would he a grave miscarriage of justice if the petitioners who on merits are entitled to the grant of occupancy rights are disqualified due to no fault of theirs. His submission is that on the basis of this record that this Court should revise the order of the Tribunal and confirm the findings to the effect that the petitioners are entitled to the grant of occupancy rights.
4. The learned Government Advocate has very strongly opposed the grant of any reliefs in this case. He has emphatically stated that it is very clear that the petitioners had never applied for the grant of occupancy rights and that when some other disputes arose in relation to the possession that obviously, the applications were quietly planted in the office of the Tribunal and he submits that this could have easily taken place with or without the collusion of some of the subordinate staff. His submission is that at the relevant time when hundreds of applications were being filed and everyone of them was duly registered that there is no reason why the petitioners' applications alone should have escaped attention. The learned Counsel has further argued that the tell-tale circumstance in this case emerges from the fact that the petitioners are unable to produce the receipts/duplicate copies of the relevant applications which would have very clearly indicated precisely when these had been filed with the office of the Tribunal. I have not even asked for these to be produced because I have anticipated that as normally happens, the excuse will be put forward that after the long lapse of time that the parties who are rural agriculturists are not in a position to produce those documents. I will therefore have to proceed in the absence thereof.
5. The learned Government Advocate submitted that no indulgence should be shown to the petitioners because it is his contention that reading between the lines it is abundantly clear that the petitioners have played a fraud on the office of the Tribunal and are virtually getting away with it only because of the type of report put forward by the Tahsildar wherein he has only stated that applications were found in the office and has not reported the obvious, viz., that the circumstances under which they could have got there, are suspicious and require to be investigated in due course. The learned Counsel has submitted that it is not a question of any indulgence to the present litigants but the fact that it would afford an opportunity to like-minded persons to indulge in unfair practices and get the advantage thereof. He has therefore insisted that on the present record where the petitioners are unable to prove or establish to the satisfaction of the Court that they had filed the applications in time, that no interference with the order is competent.
6. While I concede that no allowance or leniency can be shown if a fraud is detected and the learned Government Pleader is right in this regard, the situation before the Court is slightly different. In the first instance, the time for filing of the applications was subsequently extended and the petitioners' learned Advocate states that since the earlier case had not been taken up that his clients once again presented their applications but, again there is no evidence of this. The real difficulty arises from the fact that the Tahsildar who at the stage when he was asked to look into the matter has reported the position that the documents were found in the office and has not recorded anything irregular or suspicious about the same and this is the only reason why the most charitable view will have to be taken and the Court will have to hold that the possibility of the applications having been overlooked at the initial stage cannot be ruled out.
7. The more important aspect of the case is that prima fade, on merits the Tribunal has had something to say in favour of the applicants and we are therefore left with the position whereby the applicants who may have a valid claim, will otherwise be totally disqualified on the technical plea in support of which there is no conclusive evidence to show that they had not applied within the prescribed period of time. Strangely enough, the record also does not establish that they had done so. I would, under these circumstances, be left with no option except to give the benefit of doubt to the petitioners.
8. Having regard to the aforesaid situation, the order of the Tribunal will necessarily have to be set aside. It is not permissible for this Court, in the absence of respondents 3 and 5 but, more importantly where it is a question of conferment of occupancy rights, to evaluate the evidence and grant or refuse occupancy rights because, the Division Bench has held that these are the special powers to be exclusively exercised by the Tribunal. The order is accordingly set aside and the case is remanded to the Tribunal along with the records with a direction that the Tribunal shall ensure that all the necessary parties have notice of the proceeding and thereafter, the Tribunal shall hear the parties and pass tresh orders on merits. Parties to maintain status quo in the meanwhile and if any interim orders are necessary liberty to move the Tribunal for this purpose.
The writ petition succeeds to this extent and stands disposed of. No order as to costs.