S BANGARAPPA Vs. SOMAPPA

JUDGEMENT

(1.) 1. Throught our Judgment, the parties will be referred to in the manner they are arrayed in these Writ Appeals.

(2.) The facts leading to these appeals are as follows: Respondents 8 and 9 were owners of Sy.Nos.114 and 115 measuring 20 acres 26 guntas and 21 acres 21 guntas respectively of Lakkavalli Village, Sorab Taluk, Shimoga District. By and large, they were fallow and were cultivated by them personally. As per the entries in the Record of Rights in 1958-59 the column meant for cultivator mentions the name of Magur Parasanna. He is none other than the father of respondents 10 and 11. That position continued from 1959-60 to 1964-65. However, in 1965-66 onwards, the entries in the Record of Rights show the name of Magur Parasanna for Sy.No. 114, and for Sy.No. 115 the column remained blank. In 1966-67 the word " 3 " is found indicating thereby that they were under the personal cultivation of the owner. This position continued to be so even beyond 1-3-1974. We refer to the date 1-3-1974 because that is the relevant date for grant of occupancy rights under the provisions of the Karnataka Land Reforms Act, 1961, (hereinafter referred to as 'the Act"). While the matter stood thus, applications in Form No.7 were filed by respondents 10 and 11 claiming occupancy rights over these two survey numbers. It appears from the records that resumption applications were also filed on behalf of the owners on 23-9-1966 in relation to Sy.No. 114. The matter was not pursued. When Form No. 7 applications were pending adjudication before the Tribunal, respondent No. 10 filed an interlocutory application before the Tribunal under Section 48C of the Act for an injunction, stating that he was in possession and enjoyment of the lands as tenant and the said possession and enjoyment were sought to be disturbed by the so called owners and therefore they must be restrained from doing so. In support of this plea, respondent-10 examined himself and two witnesses. His statement, inter alia, was that after the death of his father Magur Parsanna, he and R-11 were cultivating the lands and therefore injunction must be granted against the owners. However, the Tribunal, by its order dated 15-10-1977 (Annexure-G), appointed a Receiver. When Form No.7 applications came up for final adjudication, the tenants (respondents 10 and 11) stated that they were not cultivating the lands in question. Accordingly, the Tribunal, by its order dated 16-2-1979 (Annexure-H) rejected the application in relation to Sy.No.114, and by its order dated 20-12-1980 (Annexure-J) rejected the application in respect of Sy.No.115. Thus the claim for occupancy rights in respect of these two lands came to be dismissed. The order of the Tribunal dated 16-2-1979 and 20-12-1980 (Annexures H and J) became final. Thereafter, an extent of 3 acres 30 guntas of land in Sy.No.114 was purchased by the second appellant Palakshappa by a registered sale deed dated 31-12-1980 (Annexure-K). On 4-5-1979, an extent of 10 acres 13 guntas of land in Sy.No.114 was purchased by one Veerappa who in turn sold the same in favour of the first appellant by a registered sale deed dated 8-2-1980. On the same day i.e., 8-2-1980 the first appellant purchased 7 acres of land in Sy.No.114 by a registered sale deed. Concerning Sy.No.115, on 31-12-1980 the third appellant purchased an extent of 10 acres 30 guntas. An equal extent of 10 acres 30 guntas was purchased on 27-8-1979 by one Basavanthappa who in turn sold the same to the second appellant on 8-2-1980. Thus a total extent of 40 acres and odd had come to be purchased by appellants 1 to 3, and if cultivated as one block.

(3.) In the year 1981, respondents 1 to 5, claiming to be the beneficiaries under Section 77 of the Act, filed Writ Petitions Nos.12197 and 12198/1981 contending, inter alia, as follows:- They are agricultural labourers/poor agriculturists possessing not more than one acre of land. They belong to Scheduled Caste. Lands bearing Sy.Nos. 114 and 115 of Lakkavalli are covered by Lakkavalli Lift Irrigation Scheme and they are very fertile in nature. The first appellant is a Member of the Legislative Assembly, and the other two appellants are his sister's sons. The first appellant had been representing Sorab Constituency consecutively for three times. In his capacity as M.L.A., the first respondent functioned as a member of the Land Tribunal, Sorab, for a considerable time. He was in a position to influence the members of the Tribunal. The first appellant, in order to gain personal profit, using his position, prevailed over the members of the Tribunal as well as the land owners. The sale deeds executed in favour of the second and third appellants were only ostensive, but they hold the land benami for the first appellant. The fact that Parasappa the deceased father of respondents 10 and 11 was a tenant of the two lands in question is undisputed. There are number of documents to support the same. Even assuming that they had made statements before the Tribunal that they were not cultivating these lands, the lands being held by tenants, will vest in the State Government under Section 44 of the Act. Respondents 10 and 11 not being entitled to the occupancy rights in respect of these lands, they will have to be disposed of in accordance with the provisions of Section 45(3) of the Act. Accordingly, the lands in question ought to have been made available for distribution to them (R-1 to R-5) under Section 77 of the Act. They (R-1 to R-5) being poor illiterate persons found it dif fo gather all the documents. A representation was made in this behalf to the Government bringing to its notice all these facts through their local leaders to take appropriate steps. In so far as influence was brought to bear upon the members of the Tribunal, the State Government has not taken any action. It is under these circumstances, this Court is approached under Article 226 of the Constitution. The Land Tribunal constituted under the Act is not only entrusted with the duties of conferring occupancy rights, but it is also required to decide whether a particular land is held by a tenant under Section 44 of the Act. if once the lands vest in the State Government under Section 44 the Tribunal shall confer occupancy rights on the tenants. If such a tenant is held not entitled to be registered as an occupant, the provisions of Section 45(3) will be applicable and as such the lands will be available for distribution under Section 77 of the Act. Thus it is clear, whatever might be the statements made by the so called tenants and the owners, there is always the possibility of collusion to defeat the provisions of the Act, and in such an event, it is the primary duty of the Tribunal to decide whether a particular land vests in the State or not. Where, therefore, the Tribunal has passed an order without regard to these provisions, it must be held to be bad because it has neither applied its mind nor has it verified any material such as entries in the Record of Rights etc. to consider the question whether the lands vest in the State or not. Such a vesting in the State is a jurisdictional factor and the same ought to have been gone into. Without determination of the same, the order of the Tribunal proceeds. Hence it is vitiated. The entries in the revenue records continued to show the name of the deceased father of respondents 10 and 11 as the tenant. The tenancy rights had not been put an end to either by surrender or by resumption. Therefore, it shall be deemed to have been continued. The first appellant was in a position to exercise influence over the members of the Tribunal as well as the other officials since he was a prominent leader in Congress-l Party as pioneering for the Chief Ministership. Only his close followers and henchmen were appointed as members of the Tribunal. Therefore the members owe their appointments to him and at his pleasure. They want to keep him in good humour by acting in accordance with his instructions as otherwise they would incur his displeasure. Sri Veerappa who was one of the members of the Tribunal and who was instrumental in passing the orders in respect of Sy.No.114, purchased the very land on 4-5-1979 shortly after passing the impugned order. Thereafter in his turn he sells the same on 8-2-1980 to the first appellant. This shows the influence exercised by the first appellant. It cannot be a matter of mere coincidence that the sister's sons of the first appellant came to purchase portions of Sy.Nos. 114 and 115 The purchases are not only benami but also to defeat the provisions of the Act. Hence the impugned orders of the Tribunal were not bona fide but were passed without applying the mind to aid personal acquisition of land by the first appellant. Even if the lands vest in the original owners that would be in excess of their holding and on that ground it would be available for distribution to them (R-1 to R-5). If only the Tribunal had applied its mind properly it would not have resulted in passing the impugned orders. It is on these grounds that respondents 1 to 5 prayed for quashing of the two orders of the Tribunal and for a direction to forfeit the lands in question and to distribute the same in accordance with Section 77 of the Act.