Hadali Rajeeva Shetty vs Manjayya Shetty and Others

K. Jagannatha Shetty, J.—This petition under Article 227, raises a short but an important question. The question is whether the Assistant Commissioner, while holding a summary enquiry u/s 83 of the Karnataka Land Reforms Act, 1961 (Act No. 10 of 1962), hereinafter referred to as the Act, could decide whether a person is a tenant or not. The facts leading to the petition are simple and all I need say is this:--

On 14th May 1969, the petitioner purchased certain agricultural lands from respondent-2. Respondent-1 claiming to be the tenant of the said land, filed an application before the Assistant Commissioner u/s 83 of the Act. He prayed therein that the sale in favour of the petitioner should be declared invalid. The Assistant Commissioner held an enquiry and set aside the sale, holding that respondent-1 was a tenant and the impugned sale was in contravention of Section 39 of the Act. It may be relevant to state that u/s 39 it is obligatory for the landlord to offer his lands to his tenant before he sells the same to any other person. It was found in the instant case that respondent-2 did not make such an offer to respondent-1.

Against the order of the Assistant Commissioner, the petitioner appealed before the Karnataka Revenue Appellate Tribunal. The main question urged before the Tribunal was relating to the jurisdiction of the Assistant Commissioner to decide the disputed question of tenancy set up by respondent-1. It was urged that in a summary jurisdiction vested in the Assistant Commissioner u/s 83, the Assistant Commissioner has no power to decide the question of tenancy as the same is required to be decided by the Tribunal constituted under the Act. The Revenue Appellate Tribunal did not agree with the contention. It held that though Section 132 of the Act bars the jurisdiction of the Civil Court to decide the disputed question of tenancy claimed by any party, that bar cannot be extended to the Assistant Commissioner who is required to hold an enquiry regarding the validity of any sale complained of. The Tribunal observed:

The intention of the Legislature is clear, namely that only the jurisdiction of the Civil Court to decide such questions is barred and not any other authority. The Revenue Appellate Tribunal after referring to Sections 82, 83, 112, 132 and 133 of the Act observed that it is only the Civil Court which could make a reference in respect of any issue arising in the suit which is required to be decided by the Tribunal constituted under the Act and no such power is given to the Assistant Commissioner while holding a summary enquiry u/s 83. The Tribunal further held that the power to hold a summary enquiry regarding the sale complained of also includes the power to determine all questions relating to the validity of the sale. Thereupon, the Tribunal considered the merits of the case on evidence and recorded a finding that respondent-1 is a tenant of the lands purchased by the petitioner. The petitioner''s appeal was accordingly dismissed. 3. The following provisions of the Act have got a hearing on the question to which an answer has to be found. The Act has been substantially amended by the Karnataka Act I of 1974. Section 82 of the Act provides:

Reporting of illegal transactions, -- Every village officer and every officer of the Revenue, Registration and Land Records Departments shall report to the prescribed authority, as the case may be every transaction in respect of any land in contravention of any of the provisions of this Act, which comes to the notice of such officer.

(By Karnataka Land Reforms (Amendment) Act, 1973, the words "Court or other" in the above Section are omitted and after the words "of this Act" the words "as they stood before and as they stand after the date of amendment of the Amendment Act" shall be inserted.)

Section 83 provides:

Inquiry regarding illegal transactions. -- The prescribed authority shall, after a summary inquiry, determine whether the transaction reported to it u/s 82 or coming to its notice in any other manner is in contravention of the provisions of this Act, and make a declaration accordingly. Any transaction so declared to be in contravention of any of the provisions of this Act shall be null and void.

(In Act I of 1974, after the words "of this Act" in two places, the words "as they stood before or as they stand after the date of commencement of the Amendment Act" shall be inserted).

Section 112 so for as it is relevant provides:

Duties of Court, -- For the purpose of this Act, the following shall be the duties and functions to be performed by the Court, namely:--

(a) xx xx xx

(b) to decide whether a person is a tenant or not.

(The above question after the Karnataka Act I of 1974 is required to be decided by the Tribunal).

Section 132 provides:

Bar of jurisdiction. -- (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Court, the Deputy Commissioner, the Assistant Commissioner, the Tahsildar, the Mysore Revenue Appellate Tribunal or the State Government in exercise of their powers of control.

(2) No order of the Court, the Deputy Commissioner, the Appellate Authority, the Mysore Revenue Appellate Tribunal, or the Tahsildar made under this Act shall be questioned in any civil or criminal court.

Section 133 provides:

Suits involving issues required to be decided under this Act, -- (1) If any suit instituted in the Court as defined in this Act, involves any issues which are required to be settled, decided or dealt with by that court under this Act the same shall be tried as preliminary issues and the suit shall be proceeded with after deciding such preliminary issues.

(2) (a) If any suit instituted in any Civil Court (that is ther than the Court as defined in this Act) involves any issues which are required to be settled, decided or dealt with by the Court then the Civil Court shall stay the suit and refer such issues to the Court for decision.

(b) On receipt of such reference the Court shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court which has made the reference.

To make the picture complete, I have to refer to Section 39 which provides that ''if a landlord at any time intends to sell the land held by a tenant, he shall first give option to his tenant by a notice in writing to purchase the land and in case where the tenant refuses to purchase, he may sell the land to others''.

The Act has constituted different authorities to decide different questions. By Sections 112, 132 and 133 it becomes clear that the Legislature wanted to bar the jurisdiction of Civil Courts to decide whether a person is a tenant or not. The power to decide that question has been exclusively given to the Tribunal. The Assistant Commissioner has been constituted as a prescribed authority to determine the nature of the transaction complained of. He could invalidate any transaction by suo motu action or at the instance of the interested party. The power conferred on the Assistant Commissioner is to hold a summary enquiry. In that limited jurisdiction, he cannot confer upon himself the power to decide any question which the Act expressly confers on the Tribunal. If the Legislature had intended that the Assistant Commissioner also should decide the question whether a person is a tenant or not, nothing would have been easier to give expression to such an intention by express words in the enactment.

The reasoning of the Tribunal that there is no provision made under the Act for the Assistant Commissioner to refer the disputed question of tenancy for decision to the Tribunal and therefore he should be held to have the power to decide the question is not warranted by the provisions of the Act.

The Assistant Commissioner, of course, is not competent to refer the disputed question of tenancy to the Tribunal. But that does not mean, he himself could decide that question.

It was urged for respondent-1 that the question whether respondent-1 is a tenant or not, is an incidental question and not a question relating to the jurisdiction of the Assistant Commissioner to enquire into the sale complained of and therefore the Assistant Commissioner was competent to decide the said question. It is difficult to accept this contention. The status of respondent-1 is an important question to be decided by the Assistant Commissioner before he makes a declaration invalidating the sale complained of. The Assistant Commissioner could declare the sale invalid only when he finds that respondent-1 was a tenant and his landlord has not offered to respondent-1 to purchase the land. The entire matter before the Assistant Commissioner rests on the tenancy pleaded by respondent-1. It was not an incidental question which falls for adjudication before the Assistant Commissioner. It was one of the main questions for decision, I do not think that the Assistant Commissioner could decide such an important question affecting the rights of the parties in his summary jurisdiction. When there is no provision in the Act conferring jurisdiction on the Assistant Commissioner to decide whether a person is a tenant or not and when there is a special provision conferring power on the Tribunal to decide that question, it has to be held that the Assistant Commissioner cannot decide the said question. The fact that the Assistant Commissioner has been conferred suo motu power to initiate proceedings for invalidating any transaction made in contravention of any of the provisions of the Act, makes no logical distinction in the above proposition. I may make it clear that in every case when the tenancy is pleaded or disputed the Assistant Commissioner need not stay his hands. If there is undisputed and unimpeachable evidence regarding the said question, the Assistant Commissioner would be justified in continuing the proceedings. It is only when the question raised involves a bona fide dispute and is susceptible of two prima facie opinions, the Assistant Commissioner would be well-advised to stop further proceedings and ask the person who is interested in setting aside the transaction to go to the Tribunal for a declaration that he is a tenant of the disputed lands. When such a declaration is produced before him, he may proceed with the enquiry and make an order thereafter in accordance with law. The case on hand, on perusal of the evidence, shows that there is a bona fide dispute on the tenancy pleaded by respondent-1. The view taken by the Tribunal is therefore patently erroneous and the impugned orders must be held to be without authority.

In that view, I think it unnecessary to consider the other contentions raised by counsel for the parties. In the result, the petition is allowed and the impugned orders are quashed. Liberty, however, is reserved to the parties to obtain proper declaration from the Tribunal constituted under the Act and to pursue their remedies before the Assistant Commissioner u/s 83 of the Act. In the circumstances, I make no order as to costs.