Sanna Karibasappa vs Mudegowdra Mahadevappa and Others

The petitioner Sanna Karibasappa was the respondent before the second respondent Land Tribunal, Hadagalli Taluk in Case No. 499/75-76 which was initiated on an application filed by the first respondent Mudegowdra Mahadevappa under Section 48A of the Karnataka Land Reforms Act 1961 (shortly called the Act), for registering him as an occupant in respect of Sy Nos. 570B and 570CD in all measuring 5 acres and 53 cents, of Helagundi village of Hadagalli Taluk. The petitioner contested the application on the ground that he is in actual enjoyment of the lands in question personally cultivating them and the first respondent was never a tenant in respect of those lands under the petitioner. The second respondent rejected the contention of the petitioner and allowed the application directing the registration of the occupancy right in the name of the first respondent as per the order d|.11-8-77 at Ext.F. Aggrieved by the order of the second respondent the petitioner has filed this writ petition under Art. 226(1)(b) and (c) of the Constitution to quash the order at Exhibit F.

Sri K. Channabasappa, learned Advocate appearing for the pettitioner advanced three fold contentions.

The first contention advanced by him is that the application filed by the first respondent under Sec. 48A of the Act which was made beyond the time allowed for filing such application was erroneously admitted without recording a finding that there was sufficient cause shown by the the first respondent for admitting the application and as such the Tribunal could not have proceeded with the enquiry into the case of the first respondent.

Sub-sec(1) of S. 48A of the Act which is the relevant section reads as follows:

"Every person entitled to be registered as an occupant under Sec. 45 may make an application to the Tribunal in this behalf. Every such application shall, save as provided in this Act, be made on or before 31st day of December 1974, provided that the Tribunal may, within one year from that date for sufficient cause shown, admit an application made beyond the date but on or before 30th June 1977."

It is seen from the above provision that the time allowed for makidng an application by a person claiming registration of occupancy right under Sec. 45 was on or before 31st December, 1974. However, under the proviso to sub-sec(1) of Sec. 48A, the Tribunal has the discretion for sufficient cause shown to admit an application made beyond 31st day of December 1974 but on or before 30th June 1977. The Tribunal has no jurisdiction to admit an application after 30th June 1977. The applicant has to show sufficient cause if his application for registration of occupancy right is made after 31st December 1974. The land-holder should be afforded an opportunity of showing that the cause shown by the applicant is not sufficient. After hearing the applicant as well as the land-holder, the Tribunal may in its discretion if the cause shown is sufficient admit the application. But, if the cause shown in its opinion is not sufficient then the application has to be rejected in limine.

When a law prescribes a period of limitation for an action, such action has to be brought within the prescribed period. No Court or Tribunal shall have any jurisdiction to entertain an action or proceedings brought after the expiry of the period of limitation prescribed. Where the law gives a discretion to the Court or the Tribunal for sufficient cause shown, to admit an action brought beyond the prescribed time limit, the dicretion has to be exercised in accordance with the well settled principles of law after affording reasonable opportunity to both the parties of being heard. Where the application is made beyond the period of limitation prescribed under Sec. 48A of the Act and cause is shown for condonation of the delay, the Tribunal cannot straightaway go into the merits of the application unless it admits the application after being satisfied that the cause shown is sufficient for condonation of the delay. The law contemplates an adjudication and a finding by the Tribunal about the condonation of the delay before admitting the application for consideration on merits.

In the instant case, an application in Form No. 7 was filed by the first respondent for registering him as an occupant in respect of the suit lands before the second respondent on 5-9-75 and it was admitted on 26-9-75. Admittedly, the application was filed beyond 31-12-74, the time limit prescribed under Sec. 48A of the Act. He has also filed a separate application showing cause for condonation of the delay, along with the application in Form No. 7. However, there is no evidence on record to show that the second respondent has considered whether the cause shown by the first respondent for filing the application beyond the time limit was suffi-cient for condoning the delay and admitting the application. The second respondent should have considered the sufficiency or otherwise of the cause shown for condonation of the delay after giving an opportunity to the petitioner in the matter and should have recorded a clear finding before admitting the application that the cause shown was sufficient. The second respondent appears to have admitted the application in a mechanical way without applying the mind to the question of sufficiency or otherwise of the cause shown. This is clear from the one word order made by the second respondent on the application ''admit''. The order does not say that the application had been admitted after condoning the delay, being satisfied that the cause shown by the first respondent was sufficienit. The enquiry by the second respondent into the merits of the claim of the first respondent by admitting the application made beyond the date fixed namely, 31-12-74 being not in accordance with law, is clearly without jurisdiction. This is more so in view of sub-sec(8) of Sec. 48A, wherein it is laid down that the right of any person to be registered as an occupant shall have no effect if the application is not made within the time allowed under sub-sec (1). This error in the exercise of the jurisdiction to go into the merits of the application filed by the first respondent has clearly vitiated the order of the Tribunal which affects the property rights of the Petr.

The second contention is that the Tribunal has not followed the provisions of the Act and the Rules framed thereunder in the enquiry held and as such the whole proceeding is vitiated.

Sec. 48A of the Act deals with the enquiry by the Tribunal on the application filed by a person entitled to be registered as an occupant under Section 45. Sub-sections (1) to (3) deal with the time within which the application for registration of the occupancy right has to be made and the mode of service of notice to all the persons interested in the land in respect of which the registration of the occupancy right is claimed.

Sub-sec(4) provides where no objection is filed against the claim for registration of occupancy right, the Tribunal may either grant or reject the application after such verification as it considers necessary.

Sub-sec(5) stipulates an enquiry to be held where an objection is filed disputing the validity of the applicant''s claim or setting up a rival claim for determining the person entitled to be registered as an occupant.

Sub-section(5A) lays down the procedure where part of the claim is admitted.

Reference to other sub-sections is not necessary for our purposes.

As regards the procedure to be followed by the Tribunal in the enquiry in respect of applications made to it, Rule 17 of the Karnataka Land Reforms Rules, 1974 (shortly called the Rules) lays down that the Tribunal shall follow the same procedure as is specified for a summary enquiry under Sec. 34 of the Karnataka Land Revenue Act, 1964 subject to the condition that the records of the proceedings shall be maintained in a language understood by all its members.

Section 34 of the Land Revenue Act 1964, deals with summary enquiry. It stipulates that when a summary enquiry is prescribe for determination of any question, the officer conducting the enquiry following the summary procedure shall have to record in his own hand the summary of the evidence and a minute of the proceedings containing the material averments made by the parties interested, the decision and the reasons for the same in any of the languages specified in the section. Proviso to Sec. 34 gives a discretion to the officer conducting the summary enquiry if he deems fit to follow all or any of the provisions applicable to a formal enquiry.

Sec. 33 of the said Act provides for the procedure in a formal enquiry. Under the formal enquiry procedure, the evidence shall be taken down in full by the officer conducting the enquiry or if he is unable to do so on, account of physical disability or other reasons to be recorded, cause such evidence to be taken down in full in writing in his presence and hearing and under his personal superintendence and directions and such record shall be signed by him.

The record of this case would show that the Tribunal has followed a novel procedure in recording the evidence of the witnesses on either side. The first respondent has examined six witnesses on his behalf in addition to himself. The evidence of the first respondent was recorded separately. As regards the evidence of the six witnesses produced by him, the Tribunal instead of recording their evidence separately, recorded a combined statement of the six witnesses and took their signatures to it. The similar procedure was followed in the case of the four witnesses examined by the petitioner. The normal rule of recording evidence will be to examine each witness separately on oath and to recored his deposition in full elicited in the chief-examination, cross-examination and re-examination if any, and it shall be signed by the officer recording the deposition. In the deposition of the witnesses examined for the respondent there is a note made ''no cross-examination''. The witnesses examined on behalf of the petitioner were cross-examined. The cross-examination part of the deposition would also to show that a combined statement of all the witnesses in the cross-examination was recorded. Taking down of combined statement of the witnesses would not be in conformity with the well recognised rules of recording the evidence. The mode of recording the evidence of the witnesses in this case clearly demonstrates the ignorance of the members of the Tribunal about the procedure to be followed in the conduct of the enquiry under the provisions of the Act. The enquiry conducted in the instant case cannot be said to be a valid enquiry in the eye of law and as such the final order passed on the basis of such an enquiry also cannot be held as one made in conformity with the provisions of law.

The third and the final contention urged in the case is that the second respondent-Tribunal has not followed the mandatory provisions of Pule 17 of the Rules in maintaining the records of the proceedings.

It is provided under the second part of the Rule 17 that the records of the proceedings in an enquiry shall be maintained in a language understood by all its members. The impugned order is drawn in English by dictation. The order sheet in the case was also maintained in English. The petitioner has sworn in Para 7 of the petition that one of the members of the Tribunal Sri M. Mylappa does not know English. He only knows to sign in Kannada and as such it cannot be said that he has participated in arriving at the decision since the order-sheet as well as the impugned order were drawn in English language not known to him. This statement of the petitioner has not been controverted. It is seen from the impugne older that all the members including the Chairman except the member Sri M. Mylappa, have signed in English whereas the latter signed in Kannada. In such circumstances it is reasonable to hold that the member Sri M. Mylappa does not know English and if he knew English, certainly he would have signed the order in English. If he does not know English, that is the finding recorded on the basis of the material produced in the case, then it would follow that he could not have participated in arriving at the decision that was embodied in the impugned order. Maintaining the order-sheet and recording the final order in English, a language not understood by all the members of the Tribunal, was in clear violation of the mandatory provisions of Rule 17.

From what has been stated above, it follows that the impugned order is vitiated on more than one ground bringing the case clearly under Clause (b) and (c) of Art. 226(1) of the Constitution resulting in substantial failure of justice causing injury to the petitioner of substantial nature.

In the result, the impugned Order d|. 11-8-77 is hereby quashed and the case is remanded to the second respondent for fresh adjudication in accordance with law after affording both the parties a reasonble opportunity of adducing fresh evidence and of being heard.

The rule is made absolute. No costs.