Bheemachar vs Land Tribunal Bagalkot

Holiyappa, the petitioner in W.P. No. 10768/77 claimed occupancy right by making an application dated 21-8-1974 in form No. 7 as required under Section 48A(1) of the Karnataka Land Reforms Act, 1961 (for brief the ''Act'') in respect of S. No. 168/1 measuring 4 acres and S. No. 168/2 measuring 5 acres 5 guntas situate in Gaddanakeri village of Bagalkot Taluk in Bijapur District claiming himself to be the tenant of those lands for the past 40 years. Bhimachar, the petitioner in W.P. No. 9667 of 1977 is the owner of S. No. 168/1 and the 2nd respondent Krishnachar in W.P. No. 10768/1977 is the owner of S. No. 168/2. The 3rd respondent Maliyappa in W.P. No. 10768/77 is said to be the mortgagee in possession of the lands in question.

The 1st respondent Land Tribunal, Bagalkot, after holding the enquiry, passed the impugned order dated 23-6-1977, a true copy of which is at Ex. H granting the application of Holiyappa in respect of S. No. 168/1 and rejecting the same in respect of S. No. 168/2. Holiyappa, being aggrieved by the order of rejection of his claim in respect of S. No. 168/2 has filed W.P. No. 10768/77 whereas Bhimachar, the owner of S. No. 168/1 being aggrieved by the order granting occupancy right in respect of S. No. 168/1 in favour of Holiyappa, the petitioner in W.P. 10768/77, has filed W.P. No. 9667/1977.

Since the matter under consideration in both these writ petitions arises out of the same order, both the writ petitions are taken together for hearing and I propose to dispose of them by this common order.

The learned counsel appearing for the petitioners in the above two writ petitions, while assailing that part of the order which is against the petitioners concerned have urged in the course of their arguments that the tribunal did not hold the enquiry as contemplated under law, that the documents produced were not considered by the tribunal while rendering the impugned order, that the order in question is not a speaking order as the finding of the tribunal is not supported by any reasons and Bhimachar, the petitioner in W.P. No. 9667/1977 was not given proper opportunity to put forward his case.

So far as the contention urged by Shri C.M. Desai, learned counsel for the petitioner in W.P. No. 9667 of 1977 that Bhimachar was not given proper opportunity to put-forward his case, it appears from the record that on 23.6.1977, on which date the tribunal recorded the statements of the other parties and the witnesses and rendered the impugned order, Bhimachar was not present. This is clear from the proceedings of the tribunal recorded in the order sheet of 23-6-1977 wherein the tribunal stated that the applicant Maliyappa and opponent Krishnachar were present. On the same day, the tribunal has recorded the statements of the claimant Maliayappa and one of the opponents Krishnachar and some other witnesses. There is no statement of Bhimachar recorded on that day. This would go to show further that Bhimachar was not present on the final date of the enquiry on which day, the impugned order was made. However, the Tribunal in its impugned order has stated that on the day the case was disposed of, the applicant and the opponents (thereby indicating both the opponents) were present. Obviously, this must be an incorrect statement. The petitioner Bhimachar in W.P. No. 9667/77 has specifically averred that he was informed of the date of hearing of the case as 23-6-1977 by a notice dated 14-6-1977 issued by the tribunal but as he was ill, he sent a letter on 21-6-1977 enclosing a medical certificate for adjournment of the case, in support of this ground, he has produced the copy of the certificate of posting Ext.-B along with his writ petition which bears out that a letter addressed to the Tahsildar-Secretary, Land Tribunal, Bagalkot, was despatched on 21-6-1977. This fact gains substantial support from the order sheet maintained by the tribunal for the date 23-6-1977 in which the presence of Bhimachar is not noted whereas the presence of the claimant Holiyappa and the other opponent Krishnachar was specifically noted. However, the tribunal appears to have proceeded on the basis that Bhimachar was also present while making the impugned order. This appears to be an obvious error committed by the tribunal and as such, I find sufficient force in the contention canvassed by Shri C.M. Desai, learned counsel for the petitioner, that Bhimachar was not given proper opportunity to put-forward his case before the Tribunal. 6. Now coming to the next contention that the enquiry was not held in accordance with law, we have to bear in mind the provisions contained in R. 17 of the Rules framed under the Act and S. 34 of the Karnataka Land Revenue Act, 1964. Rule 17 stipulates that the tribunal shall, in respect of applications made to it, follow the same procedure as specified for a summary enquiry under S. 34 of the Karnataka Land Revenue Act. S. 34 of the Karnataka Land Revenue Act lays down that when a summary inquiry is prescribed for determination of any question, the officer conducting the enquiry shall, himself as such enquiry proceeds record in his own hand the summary of the evidence of the witnesses examined during the course of the enquiry. It appears to me that the mandate of S. 34 of the Land Revenue Act that the officer conducting the enquiry shall himself record the summary of the evidence in his own hand, has got great significance since what he records is not the whole of the evidence but only a summary of it, which the officer conducting the enquiry thinks relevant in the circumstances of the case. In that view of the matter, it is imperative upon the officer conducting the enquiry to record the summary of the evidence in his own hand, and if he delegates that part of his work to some other agency or if the records of the enquiry do not show that this mandate was complied with, one must hold that the enquiry held was not in compliance with Sec. 34 of the Land Revenue Act and is invalid and vitiated.

In the instant case, the summary of the evidence of the witnesses examined in the course of the enquiry was recorded in Kannada. The Chairman has subscribed his signature to the summary of the evidence recorded, below the note "before me" xxxx Even the original order passed by the tribunal is in Kannada. There is no comparison between the handwriting of the writings of the original order and the writings of the summary of the evidence recorded in the course of the enquiry. The only inference that can be drawn from this situation will be that the summary of the evidence of the witnesses examined during the course of the enquiry and the original order drawn up were not written by the same person. The fact that the Chairman of the tribunal put his signature below the note made in the summary of the evidence recorded that it was recorded before him would clearly go to show that it was not recorded by him. Further we find that in some of the statements recorded, the signature of the deponent was obtained at the place indicating cross mark. If the summary of the evidence was recorded as and when the witness was examined, there was no need to put a cross-mark indicating that the signature of the deponent should be taken at that place. This circumstance leads to the inference that the statements have been recorded by some person other than the Chairman of the Tribunal and then the statements so recorded were placed before the Chairman for his signature and also to obtain the signature of the deponent at the place marked ''X''. All these circumstances compel me to observe that the enquiry held by the tribunal was not in accordance with R. 17 of the Rules framed under the Act read with S. 34 the Karnataka Land Revenue Act, 1964.

One other contention pressed into service was that the tribunal did not refer to some of the records produced in the case. It is seen from the records of the proceedings that Holiyappa produced certain rent-payment receipts passed in his favour by Krishnachar, owner of S. No. 168/2. The tribunal did not considerd these documents while rejecting the claim of Holiyappa for the grant of occupancy right in respect of the said land. The tribunal has also not discussed and considered the oral evidence adduced in this case. The order in question is not a speaking order inasmuch as the findings are not supported by reasons.

The points discussed above, are sufficient to dispose of these writ petitions. Hence, I do not propose to deal with the other contentions urged by the petitioners in their respective writ petitions. They are at liberty to urge those contentions before the Tribunal.

From what has been stated above, it follows that both the writ petitions areentitled to succeed.

In the result, for the reasons stated supra, the rule is made absolute in both the writ petitions. The impugned order dated 23-6-1977 (Ext.-H) is hereby quashed. The matter is remitted to the 1st respondent-land tribunal for fresh disposal in accordance with law after giving opportunity to all the parties to 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 his own costs.