MADHAV BANDOPANT KULKARNI Vs. LAND TRIBUNAL

JUDGEMENT

(1.) THE appellants before us have assailed the order of remand dated 15. 6. 1999 passed by the learned Single Judge while disposing of Writ Petition Nos. 18961 and 24667/1998. The original petitioners, who are the appellants before us, are admittedly the land owners of a small piece of land which measures hardly 15 guntas. Though it is technically described as being located in Kalkamba village, effectively the area is now included within Belgaum City and the principal point of dispute centers around the question as to whether occupancy rights could have at all been granted in respect of this small piece of land which has been more particularly described as a backyard, the reason that it is the case of the land owners that the land has been converted to N. A. used as early as 31. 10. 1963. The original applicant, since deceased and now represented by his L. Rs. R-2 to R-12, had applied for grant of occupancy rights in respect of this piece of land, the contention being that it is agricultural land, that there are mango trees located on it, and that the applicant was in possession and was, therefore, eligible for grant of occupancy rights. His contention was also that he was cultivating the land, which has been disputed by the owners. But, in any event, there are several litigations between the parties some of which are still pending. After the first round of litigation before the Tribunal, the case was remanded for fresh decision and on the next occasion, after a vigorous contest, the Tribunal, through a detailed speaking order through a majority 4 to 1 decision, granted occupancy rights. It is relevant to mention here that the Chairman, who was a Government Officer, has given detailed reasons in the order which are effectively to the effect that the land in question having been converted for non-agricultural use in the year 1963, that it cannot qualify as agricultural land on the appointed date i. e. , 1. 10. 1973, and that the consequently, the Tribunal was not competent to grant occupancy rights since the first ingredient viz. , requirement that the land in question should be agricultural land, was not in existence. The remaining four members, however, dissented with the Chairman and recorded the finding that occupancy rights should be granted and it is against this order that the Writ Petitions in question were preferred. We need to mention here that the order is a rather mixed up one, because there is some reference in the order attributable to the majority members, who also referred to the fact that it is non-agricultural land, to conclude with the finding However, in our opinion, the occupancy rights are liable to be granted. As indicated by us earlier, it is this order that was the subject matter of challenge before the learned Single Judge, who after hearing the learned Single Judge, who after hearing learned advocates, recorded the finding that if the members, eventhough by majority, overruled the findings of the Chairman and assuming that they are entitled in law to do so, that they must support their conclusions and decisions through proper reasons and in the absence of any reason, the majority decision is virtually relegated to the position of a non-speaking order and it is on this ground that the order was set aside and the learned Single Judge directed a remand. The present appeals assail the validity of the remand order.

(2.) WE need to refer here at the very outset that appeals Courts seldom entertain challenge to remand orders, but, that the appeal Bench has more than once laid down, as has been done by us some time back, that there are instances when a remand is totally and completely unjustified and in those few cases, the appeal Court may be required to intervene. We have had occasion to refer to the submissions canvassed by the learned Government Pleader, who did point out to us in every one of these cases that the moment some technical flaw is pointed out with regard to the Tribunals order, that a remand is asked for and that over 2. 1 lakh cases have been travelling up from the Tribunal and back to the Tribunal in the course of the last about 30 years and that the whole purpose of the Land Reforms Act has been either frustrated in many cases or misused and abused in many others. The learned Government Pleader submitted, as a matter of propriety, that remands could only be justified where there is no other option and where it is absolutely essential and that remand for the sake of remand on the basis of technicalities is not only harsh and inappropriate to the party, who is at the receiving end, but that it is against public purpose.

(3.) THE appellants learned counsel submitted before us that the document at Annexure-C conclusively establishes that as far as this 15 guntas of land is concerned, that by order dated 31. 10. 1963, N. A. permission was granted and it is his submission that this was a good ten years prior to the amendment of the Land Reforms Act and that irrespective of what contention has been raised by the other side and irrespective of any plea with regard to possession, etc, that in law, the Chairman was 100 per cent right in his finding that no occupancy rights could have been conferred. His submission is that it is a condition precedent under the Land Reforms Act that the land in question must be agricultural land and then alone that the Tribunal assumes jurisdiction to grant occupancy rights. The discretion of allowing conversion from agricultural land to non-agricultural activity vests with the Government and Mr. Kulkarni pointed out to us from the record which we have reviewed that the decision of 1963, which was the subject matter of a lot of debate before the Tribunal, has not been either challenged by the respondents nor has it been set aside. That decision is a final decision of which documentary evidence has been produced and which is unassailable and his submission is that in this background, even assuming that the majority members on the last occasion did not support their decision on merits, that the learned Single Judge totally overlooked the basic principle that even if the Tribunals order was wrong and has to be set aside, that by remanding the case, no other result could ever have been conceived of. In this view of the matter, the learned Counsel submitted that the only correct course of action for the learned Single Judge was to set aside the Tribunals order and substitute it, as the superior courts always do, by a correct speaking order.