Anjanappa vs Land Tribunal, Nelamangala, and Others

In this writ petition, the petitioner Anjanappa has challenged the order dated 18-9-1975, a true copy of which is produced at Ext. E, passed by the first respondent-Land Tribunal, Nelamangala rejecting the application filed by the petitioner for being registered as an occupant in respect of 1 acre 11 guntas of land comprised in S. No. 65 situate in Kambalu village of Nelamangala Taluk in Bangalore District.

The matter arises in this way:

The petitioner made an application in Form No. 7 as required under S. 48A(1) of the Karnataka Land Reforms Act, 1961 (For short ''the Act''), for being registered as an occupant in respect of 1 acre 11 guntas of land comprised) in S. No. 65 of Kambalu village, claiming himself to be the tenant in respect of the land in question from the year 1960-61 for a period of 13 years. He made this application on 27-7-1974 which was registered as L.R.F. KBL/1-75-76. The Tribunal issued individual notice dated 10-8-1975 in form No. 9 to the petitioner Anjanappa. It was not served upon him. The date of the enquiry in the said notice was stated as 18-9-1975. On 18-9-1975, one Shivanna, the brother of the petitioner Anjanappa appeared before the Tribunal. The Tribunal after conducting a summary enquiry, passed the order Ext. E rejecting the application filed by the petitioner. It is the validity and legality of this order that is under challenge in this writ petition.

Sri K.T. Mohan, learned advocate appearing for the petitioner in the course of his submission pressed into service among others that the impugned order was made, by the Tribunal in violation of the fundamental principles of natural justice inasmuch as the Tribunal did not hold an enquiry as contemplated under the provisions of the Act and the rules framed thereunder; that no individual notice as required under S. 48A (2) of the Act was served upon the petitioner and that the order in question was passed on no evidence.

Sri A.V. Gangadharappa, learned advocate appearing for the second respondent per contra contended that the petitioner herein was adequately represented by his brother Shivanna who appeared before the Tribunal on behalf of the petitioner; that there was no need for the Tribunal to record the statement of the parties since Shivanna admitted before the Tribunal that the petitioner herein was a mortgagee in respect of the land in question, and finally submitted that there is no good ground to interfere with the order passed by the Tribunal.

The original records of the Tribunal is made available by the High Court Government Pleader. It is seen from the original records that the petitioner Anjanappa made an application in Form No. 7 on 27-7-1974 for grant of occupancy right in respect of the land in question claiming himself to be the tenant for 13 years from the year 1960-61. A duplicate carbon copy of the individual notice in Form No. 9 issued to the petitioner is also found in the records of the Tribunal. It is dated 10-8-1975. That notice appears to have been served on one G. Thimmaiah. Below his signature, there is an endorsement "served by me" with another initial which is unintelligible. Apart from this one document, there is no other document found in the records of the Tribunal to conclude positively that individual notice as required under S. 48A(2) of the Act was served upon the petitioner Anjanappa.

As I said before, the date of hearing of the application was 18-9-1975 as. per the aforementioned individual notice. What transpired on 18-9-1975 before the Tribunal is clear from the order-sheet of the date Ext. E-1, which reads thus "Case called. Both parties present. On behalf of applicant his brother Shivanna appeared and admitted mortgage. Conducted summary enquiry. It is proved that this applicant is in possession of the land by virtue of a mortgage for Rs. 2200/- the mortgage is not released. Hence the application is rejected. Orders pronounced.

It is obvious from the order-sheet dated 18-9-1975 that the petitioner was not present on the date the impugned order was made. But on the other hand, it is stated in the order-sheet that on his behalf his brother Shivanna appeared and admitted the mortgage. It is not known how this Shivanna appeared before the Tribunal on 18-9-1975. There is no record in the records of the Tribunal to show that this Shivanna was ever served with notice issued to the petitioner. As I referred earlier, individual notice issued to the name of the petitioner Anjanappa was served upon one G. Thimmaiah. Thus, it is not possible to hold from the records that shivanna appeared before the Tribunal in pursuance of the individual notice issued to the petitioner. The only other way by which the said Shivanna could appear before the Tribunal was in pursuance of a public notice, that has got to be published as required under S. 48A(2) of the Act. Strange, enough, as it were, we do not find any material in the records of the proceedings before the Tribunal for having published a public notice as required under S. 48A (2) of the Act. In this state of affairs, it is very curious to know how this Shivanna could appear before the Tribunal voluntarily on 18-9-1975 and make an admission detrimental to the interest and the claim of the petitioner. In this connection it is pertinent to note that the petitioner has averred in his petition that this Shivanna who is his divided brother joined hands with the patel of the village who was inimically disposed towards him and both of them worked against the interest of the petitioner.

Shri A.V. Gangadharappa, learned counsel for the 2nd respondent maintained in the course of his submission that it is not open to the petitioner to contend that he was not served with individual notice as required under S. 48A (2) of the Act since he was represented by his brother Shivanna before the Tribunal. In support of this submission he placed reliance on R. 43 (c) and (d) of the Karnataka Land Reforms Rules 1974 (Hereinafter referred to as the ''Rules'').

Before adverting to Rule 43 of the Rules it will be useful and relevant to refer to sub-sec. (2) of S. 48A of the Act and Rule 19 of the Rules. S. 48A (2) contemplates two types of notices. The first one is a public notice to be published in the village in which the land is situate, calling upon the landlord and all other persons having an interest in the land to appear before the Tribunal on the date specified in the notice. The second part of the said sub-section postulates that the Tribunal shall also issue individual notices to the persons mentioned in the application and also to such others as may appear to it interested in the land. Rule 19 provides that the public notice and individual notice referred to in sub-sec. (2) of S. 48A of the Act shall be in Form No. 8 and 9 respectively. Sub-rule (2) of R. 19 provides that such notice in addition to being served in the manner laid down in R. 43 shall also be published in the Chavadi of the village concerned and in the offices of the village panchayat and the Tahsildar for a period of not less than thirty days. A combined reading of S. 48A(2) and R. 19 would make it abundantly clear that the legislature intended an effective mode of service of the notice to the parties interested in the land in respect of which the claim for occupancy right is made. That is why S. 48A(2) contemplates, in addition to the publication of a public notice, issue of individual notices to the persons mentioned in the application and also to such others as may appear to the tribunal to be interested in the land. It seems to me in the context in which sub-sec. (2) of S. 48A of the Act is enacted and Rule 19 is framed, the compliance of both these provisions is mandatory and failure to adhere to them would render the whole of the enquiry invalid and vitiated

In this background, we have to read clauses (c) and (d) of Rule 43 of the Rules on which the learned counsel for the second respondent placed reliance. Rule 43 (c) and (d) read, thus:

"43. Manner of service of notice or order under the Act or the Rules: Any notice, or order issued or made under the Act or these rules shall be served on the person concerned in the following manner-

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(c) in the case of a family, be served upon the person in management of such family or of the property of such family, in the manner specified in clause (d);

(d) in the case of an individual, person be served- (i) by delivering or tendering the notice or order to the person concerned or his Advocate of authorised agent; or (ii) by delivering or tendering the notice or order to the adult member of the family; or (iii) by sending the notice or order to the person concerned by registered post acknowledgement due; or (iv) If none of the aforesaid modes of service is practicable, by affixing the notice or order in some conspicuous part ofthe last known place of residence or business of the person concerned"

Family is defined under S. 2 (A) (12) of the Act as follows:

"(12) ''family'' means- (a) in the case of an individual who has a spouse or spousses, such individual, the spouse or spouses and their minor sons and un-married daughters, if any;

(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;

(c) in the case of an individual who is a, divorced person and who hag not remarried, such individual and the minor sons and unmarried daughters, whether in his custody or not; and (d) where an individual and his or her spouse are both dead, their minor sons and unmarried, daughters."

It is obvious from the definition of the family that a brother isnot a member of the family within the meaning of the Act. It is no doubt true that the joint family is also defined under the Act which means in the case of persons governed by Hindu Law, an undivided Hindu Family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence. A clear distinction is maintained throughout the Act between the family and joint family whereever those expressions are used. However, in the context of registration of occupancy right and fixing the ceiling limit of the land, the joint family is not taken into consideration as an unit except in calculating the'' extent of land held by a person who is not amember of the family but is a member of the joint family and also in calculating the extent of land held by a member of the family who is also a member of the joint family, for taking into account the share he would get in the joint family property along with his other properties for the purpose of calculating the celling limit. In view of the fact that the individual notice as contemplated under S. 48A(2) of the Act is to be served to the persons mentioned in the application and also to such others as may appear to the Tribunal to be interested in the land, the mode of service prescribed in clause (d) of R. 43 of the, rules would be appropriate. One of the modes of service provided under clause (d) is by delivering or tendering the notice of order to some adult member of the family. "Family", as defined under the Act has been taken as the unit for the purpose of fixing the ceiling limit and under that definition a brother or evena major son are excluded from the definition of ''family''. It is also provided under the Act that for the purpose of fixing the ceiling limit individual or separate properties of all the members, of the family has to be taken into account. Since, aclear distinction is kept throughout the Act between ''family'' and a ''joint family'' wherever those two expressions are used, I am unable to read into sub-clause (ii) of Cl. (d) of R. 43 that adult member of the family would include the adult member of the joint family, for the simple reason that adult member of the joint family may not be interested in the claim of a member of the "family" as defined under the Act so as to effectively represent him not only for receiving the individual notice but also to represent him in the proceedings before the Tribunal. In that view of the matter, I am inclined to hold that in order to constitute a proper and due service of an individual notice under Cl. (d) (ii) of R. 43, the service must be made by delivering or tendering the notice to some adult member of the "family" as defined under the Act and not to any member of the "joint family."

In the case on hand, the individual notice issued in the name of the petitioner was served upon one G. Thimmaiah. It is not known how this G. Thimmiah is related to the petitioner. As regards Shivanna, who appeared before the tribunal, the petitioner has stated in his writ petition that he is his divided brother. There is no material to hold that the individual notice issued to the petitioner was even delivered or tendered to the said Shivanna. Under no circumstances either G. Thimmaiah or Shivanna would come under the fold of the "family" of the, petitioner as defined in the Act. In that view of the matter, neither Thimmaiah was entitled to receive the individual notice on behalf of the petitioner nor Shivanna could represent him before the Tribunal. Taking into consideration all the relevant circumstances of the case, I am inclined to hold that no individual notice as required under S.48A (2) of the Act was duly served upon the petitioner.

Now coming to the second leg of the contention that no enquiry was held by the Tribunal as contemplated under the Act and, the Rules, it is relevant to reproduce the operative portion of the order which reads thus:

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Admittedly the petitioner was not present before the Tribunal on the date the impugned order was made. That being the position, the petitioner would not have made any statement in the manner stated by the Tribunal in its impugned order. As per the order-sheet of the date 18-9-1975, it is seen that Shivanna the brother of the petitioner appeared on behalf of the petitioner and admitted the mortgage. No statement of the said Shivanna was also recorded by the Tribunal. As a matter of fact, the Tribunal did not conduct any enquiry as contemplated under R. 17 of the Rules, read with S. 34 of the Karnataka Land Revenue Act, 1964. It is true that under S. 48A of the Act, different procedure is provided under different circumstances. Sub-sec. (4) of S. 48A stipulates that where no objection is filed, the Tribunal may, after such verification as it considers necessary, by order, either grant or reject the application. Sub-sec. (4) of S. 48A contemplates a, situation where no objection is filed by the opponent to a claim put forward by a claimant by presenting an application in Form No. 7 as required under S. 48A(1) of the Act for being registered as an occupant in respect of a land. Sub-sec. (5A) also contemplates a situation where there is no objection by the opponent in respect of any part of the claim put forward by a claimant for registration of occupancy right. The only other provision that is relevant to be noticed is sub-sec. (5) of S. 48A of the Act. It stipulates that where objection is filed disputing the validity of the applicant''s claim or setting up a rival claim, the Tribunal shall, after enquiry determine by order, the person entitled to be registered as occupant and pass orders accordingly. In the instant case, certainly the second respondent disputed the claim of the petitioner. A curious andstrange situation was created by the appearance of Shivanna claiming himself to be the brother of the petitioner and making an admission on behalf of the petitioner that the petitioner was holding the land as a mortgagee. Undoubtedly, the socalled admission made by Shivanna on behalf of the applicant who is the petitioner herein, was detrimental to the claim of the petitioner made in hiss application in Form No. 7. If the petitioner himself had appeared before the Tribunal and made an admission detrimental to his own interest set out in his claim application, the matter would have been different. In the instant case, on the other hand, when somebody else, whether he be his brother or other relation took the notice and appeared before the tribunal on behalf of the petitioner and made a statement detrimental to the claim made by the petitioner in his application, the tribunal should have, in the interest of justice, secured the presence of the petitioner and ascertained from him what was his stand regarding his claim made in his application which was before the, tribunal for its decision. The tribunal should have conducted the enquiry as required under R. 17 of the Rules read with S. 34 of the Karnataka Land Revenue Act, 1964, after securing the presence of the petitioner by issuing fresh notire to him and getting it personally served upon the petitioner. In that view of the matter, I am inclined to hold that the Tribunal has committed a legal error in not following the provisions of the Act and the Rules. These two grounds are sufficient to hold that the impugned order Ext. E is liable to be set aside.

Incidentally, I may also, observe that the property in question cannot be dealt with in any other way till the matter between the parties arising out of the application filed by the petitioner for occupancy right is finally disposed of by the Tribunal. The petitioner has produced Ext. H, a notification issued by the third respondent-Special Tahsildar under S. 77 of the Act, calling for applications for the disposal of the land in question on the ground that it had vested in the Government under S. 59 of the, Act The third respondent shall not have any power to deal with the land in question as proposed by him in his notification Ext. H so long as the matter is before the Tribunal on the application filed by the petitioner for registration of occupancy right. The action taken by the Tahsildar is invalid and vitiated and liable to be quashed.

In the result, for the reasons stated supra, the, rule is made absolute. Both Exts. E and H are hereby quashed. The matter is remitted to the Tribunal for fresh disposal in accordance with law after giving opportunity to the, parties to the adduce evidence and also to raise all the pleas that are open to them. In the circumstances of the case, I direct each party to bear their own costs.