VENKATARAMAN DEV Vs. GAJANAM LAKSHMI BANGERI

JUDGEMENT

(1.) WE have heard the learned Advocates representing the contesting parties and the learned Government Advocate for respondents 2 and 3 on merits. The short controversy that has arisen in this case centres around the question as to whether the Land Reforms Tribunal was justified in accepting the written statement filed by the power of attorney holder of the applicants, treating the same as examination-in-chief and thereafter offering the GPA holder for cross-examination. The reason why this issue has come into sharp focus is because when the GPA holder was cross-examined by the Chairman he has unequivocally admitted that the landlord was in possession since about the year 1970-71 and this admission has been further compounded when the witness was cross-examined by one of the members and the witness has again confirmed this position. This evidence enabled the Tribunal to take the view that even assuming some tenancy rights subsisted that these came to an end by the year 1970-71 and that on the appointed date i. e. , 1-3-1974, that the applicant-tenant could not be said to have been in possession. Obviously, this makes all the difference because the appellant's learned counsel has relied on a Full Bench decision of this Court in Balesha rama Khot and Others v Land Tribunal, Chikodi and Others, wherein the Full Bench has taken the view that a party not in possession on the appointed date would be disqualified from preferring the claim for occupancy rights. The applicants challenged the order of the Tribunal rejecting their claim and the learned Single Judge in a short order has upheld the position that if the witness has not deposed before the Tribunal or in other words has not made a statement before the Tribunal that this constitutes a breach of the requirements of the Rule 17. Obviously, the learned Single Judge had proceeded on the footing that this Court had consistently taken a very rigorous view of the procedural requirements in respect of the conduct of these cases before the Tribunal and in a string of judgments this Court held that even if the statement of the witness has been taken down by a member of the Tribunal and not by the Chairman in his own handwriting that it constitutes non-compliance with procedure and vitiates the proceedings. On the short ground that the written statement is not the examination-in-chief and that even though the witness was cross-examined this constitutes a breach of the procedural requirement, the Tribunal's order was set aside and the case was remanded. This appeal challenges that order.

(2.) APPELLANT's learned Advocate submitted that the view of the learned Single Judge is too narrow, too technical and furthermore that it would have the result of creating an illegality insofar as this is not a case in which the author of the written statement was not available for cross-examination. His submission is that it was necessary for the learned Single Judge to have looked at the material on record which would clearly indicate that the original tenant has passed away and that the possession was restored to the appellants several years prior to the coming into operation of the Land Reforms Act and the submission therefore was that the remand of the case in such circumstances is counter-productive as no useful purpose could emerge. On the other hand, respondent's learned Advocate submitted that the admissions given by the power of attorney holder who represented the original tenant are obviously collusive and that it is very necessary for corrective action to be taken insofar as the legal heirs of the original tenants will come and depose in person and secondly, the submission was that even upto the year 1973-74 there is reference to the name of the old tenants in the revenue records. He therefore, submits that it is only in the interest of justice that a full and complete enquiry should take place and that the order of remand ought not to be interfered with. As far as the learned Government Advocate is concerned, he has pointed out to the court and perhaps very correctly that this is a situation in which the written statement has been treated as examination-in-chief and it is his submission that the whole challenge is absolutely academic for the simple reason that it makes hardly any difference whether the statement of the witness is recorded during the hearing or whether it is submitted in the form of a written statement because the opposite party has the full right to cross-examine the witness and elicit the truth. That has in fact happened in this case.

(3.) WE need to record once and for all that it is high time that this court stopped either entertaining or upholding technicalities of the present type. It is very necessary that even as far as procedural compliance is concerned, that the principle of substantial compliance which the law recognises must be pressed into operation. Secondly, the Court need to at all times bear in mind the fact that even in instances where there may be slight deviations or slight non-compliance as long as it has not resulted in any substantial prejudice to the parties and more importantly, as long as it has not resulted in any illegality that the Courts must not accept the position that such deviations vitiate the proceedings. All errors or instances of deviation, particularly where it is of a minor nature, will not affect the legality or the validity of the proceedings and this is a principle which needs to be borne in mind. We need to illustrate that as far as the present case is concerned the statement of the GPA holder has been tendered in the form of a written statement and it is not as though this statement is not on record. In our considered view, this minor deviation would not in any way affect the legality or the validity of these proceedings because the deponent has been made available for cross-examination. There were full and adequate opportunity for the opposite parties to test the veracity and correctness of the statement that had been tendered, which has in fact been done. Under these circumstances, we are not in agreement with the view expressed by the learned Single Judge on this point. We need to add here that since the records clearly indicate that the tenant was not in possession as on the appointed date the grant of occupancy rights has been rightly rejected. Respondents' learned Advocate submited that his instructions are that his clients are still in possession and that consequently, if they have any other rights that these orders should not come in their way. As far as this is concerned, we need to clarify that this proceeding is confined to the grant of or refusal of occupancy rights alone. If there are any other subsisting rights between the parties they are free to agitate them before the appropriate forum.