SEVERINE PINTO Vs. H.J. MASCARENHAS AND OTHERS

JUDGEMENT

(1.) LIKE the proverbial question from Hamlet, this High Court has been agitating the issue particularly in Land Reforms cases "to remand or not to remand" and this has been the subject matter of numerous decisions over the years. Having regard to the poor caliber of the Land Tribunals, the utter disregard for the procedure prescribed by law and the integrity levels which often raise a question mark, the High Court was inundated with a magnitude of thoroughly unsatisfactory orders and for a long time there was no option except to set them aside and remand the cases, often times with specific directions with regard to what was required to be done. The High Court at that time obviously overlooked the fact that the Tribunals were so brazen that they either disregarded the High Court orders or what was even better is that they passed fresh orders with a new set up of blunders and that explains the multiple remand phenomenon that is continued for close to three decades and during which in this field of law alone over 2,18,600 cases have been remanded. We need to put the brakes on this state of affairs as being felt necessary not only by this Court, but also the Apex Court and in the series of later decisions, this Court has considerably reduced remand orders in all except those few instances where it was absolutely inevitable. In the present instance, as we shall point out, the Appellant's learned Counsel submitted for a variety of reasons that a remand would be justified despite the length of the litigation, which commenced in June, 1977. It would be necessary for us to also record that with certain amount of ingenuity it would almost always be possible to contrive of an argument whereby the litigation can be kept alive and continued, but, the real question is as to whether this is permissible and in the public interest. The Courts must always bear in mind the fact that whenever indulgence is shown to one party to a litigation that it is at the expense of the opposite party, who is at the receiving end and what may appear to be sympathetic or compassionate justice to one turns out to be unfair and torturous to the opposite party.

(2.) THE present appeal has been directed against a decision of the learned Single Judge in Writ Petition No. 25934 of 1993 decided on 24.10.2000. The late husband of the Appellant before us had applied to the Tribunal through Form No. 7 on 27.7.1974 where by he had claimed occupancy rights in respect of eight items of lands totally measuring about seven acres. The Tribunal, through a majority Judgment, the Chairman dissenting but the other four members overruling him, granted occupancy rights and that decision was the subject matter of challenge through the writ petition in question. The learned Single Judge allowed the petition and set aside the decision of the Tribunal and we may summarise the reasons for doing so. It was because, there is a clear -cut finding to the effect that the lands in question are punja lands or in other words, dry lands which are not cultivated and that consequently, no occupancy rights could be granted in respect thereof, as it was a condition precedent under the provisions of the Land Reforms Act that the land in question must answer to the description of agricultural land. The learned Single Judge has, interalia, relied on one of the later Division Bench decisions reported in Subhakar and Others Vs. The Land Tribunal, Karkala Taluk, Karkala and Others, (1999) 4 KarLJ 524 , wherein the Division Bench of this Court has unequivocally held that there can be no question of granting occupancy rights in respect of punja lands. The supplementary ground upheld by the learned Single Judge was that the revenue records do not support the claim of the applicant for grant of occupancy rights and that this was an additional ground for disqualifying him. The applicant having passed away, his widow has challenged the decision of the learned Single Judge through the present appeal and the dual contention canvassed before us is to the effect that even dry lands are punja lands, if they are capable of being used for agricultural purposes, and come within the definition of 'land' as envisaged by Section 2(18) of the Land Reforms Act, that factually the lands are not barren lands, that there are several fruit bearing trees on those lands, and that consequently, they would answer to the description of an orchard, and the consequently, the learned Single Judge was in error in having disqualified the Appellant. The supplementary contention canvassed was to the effect that the powers exercised by the High Court under its writ jurisdiction are not parallel to the appellate powers, that the scope is limited, and that once the Tribunal had, through a speaking order, arrived at a particular decision on merits, that interference was not justified. On behalf of the land owners, the order of the learned Single Judge was stoutly defended. The learned Government Pleader pointed out that the Tribunal had seriously erred in conferment of occupancy rights in the face of record that the facts did not justify it and that the learned Single Judge had acted well within his jurisdiction in having corrected the error in question. Also, the learned Government Pleader opposed the plea for a further remand on the ground that the law does not contemplate multiple opportunities that the litigation had gone on for long enough and that nothing more could be produced to supplement the present record and consequently that the decision of the learned Single Judge required to be confirmed.

(3.) MR . Hegde, learned Counsel who represents the contesting land owners, as also the learned Government Pleader, were both unanimous about the fact that the admission on the part of the applicant right from the initial stages that these lands are punja lands which is borne out by the relevant revenue records virtually concludes the matter and that some stray statements to the effect that a few cashew trees are supposed to be in existence on the land cannot alter the true nature and complexion and character of the lands in question. In law, their contention was that, it is a condition precedent before the provisions of the Land Reforms Act can be made operative that it should be unequivocally demonstrated that the lands are agricultural lands in the true sense of the term. Their contention was that this concept pre -supposes the fact that crops are raised on a regular basis and that they are harvested. Their last submission was that as far as the coastal areas are concerned, that the existence of cashew trees is something that would be found even in forest areas and that this could not help the case of the Appellant.