CHAUABASAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE third respondent in THE writ petition is THE appelant before us. The writ petition was filed by THE third respondent before us. The writ petitioner asserted that he filed an application in form No. Vii under' section18-a a of THE Karnataka Land Reforms Act, 1964 ('THE act for short) claiming occupancy rights in respect of certain lands and THE said application was filed in THE year 1975, according to THE writ petitioner, THE said application was sent by registered post. A xerox copy of THE postal acknowledgment purporting to be THE acknowledgment of THE receipt of a registered article sent by THE addressee was filed as anncxure-b to THE writ petition. A postal receipt issued by THE postal authority also was produced. This indicates that on 23rd june, 1975, a letter was sent by registered post to THE tahsildar, land tribunal, dharwad. The postal acknowledgment (Annexure-B) also indicates that THE tahsildar received THE same. According to THE petitioner, THE landlord is a retired revenue official and THE petitioner trusted THE landlord and was under THE impression that his case would be posted before THE land tribunal. Only in THE year 1987 he realised that his application was not considered. On enquiry, he came to know that THE application sent by aim was removed from THE records. This, according to THE writ petitioner, was done on THE influence of THE 3rd respondent (appellant-landlord). When THE writ petitioner approached THE tribunal to consider his application, an endorsement was issued by THE special tahsildar on 7th november, 1987, stating that no application in form No. Vii was filed in respect of THE lands in question. According to THE petitioner, he also approached THE special deputy commissioner but did not receive any reply. Thereafter he filed THE present writ petition on 19th november, 1987. Before THE writ petitioner approached THE tahsildar regarding THE application filed in form No. Vii, he had filed a suit against THE landlord for an order of injunction. The learned single judge has allowed THE writ petition and directed THE land tribunal to hold an enquiry as to wheTHEr THE petitioner had in fact filed an application in form No. Vii. The learned judge foll. Wed THE decision reported in venkappa shettigarv THE special tahsildar, 1989.sy(1) kar. L.j. 14. Aggrieved by THE said Order, THE appellant preferred this writ appeal. Mr. V.t. raya reddy, learned counsel for THE appellant, contended that THE decision in venkappa shettigar's case is immaterial to THE facts of THE present case because THE writ petitioner has not at all proved that he has received THE acknowledgment for having filed form No. Vii application unlike in venkappa shettigar's case. In THE reported decision, THE petitioner had produced copy of THE application with an endorsement made on it by THE special tahshidar for having received THE application on 24-4-1979. It is in THEse circumstances, it was contended that THE learned judge in THE said case directed THE land tribunal to hold enquiry as to wheTHEr actually THE application had been filed. The learned counsel furTHEr pointed out thai if THE application has been filed in THE year 1975, it is unconceivable that THE applicant could have kept quiet for over 12years without enquiring about THEstage of THE application. The conduct of THE applicant itself is sufficient to reject his claim that he had filed any such application. It is furTHEr pointed out that time for filing form vii application was extended on several occasions starting with 30th june, 1975, to 30th june, 1979, statutory extensions were granted at least on five occasions. This could not have been omitted to be noted by THE applicant. According to THE learned counsel, THE tahsildar was competent to decide THE question wheTHEr proper application had been filed. For this purpose, THE learned counsel brought to our notice Section 112-a(u) of THE act read with Rule 44(1 )(c) and form ix(aa). Under Section 112-a(u) THE duties of THE tahsildar include THE duties to perform such oTHEr duties and functions as are imposed on THE tahsildar by any oTHEr Provisions of THE act or rules made THEreunder. Under Rule 44(l)(c), THE tahsildar shall maintain village-war register of THE applications under Section 48-a in form No. Ix(aa). Form ix(aa) prescribes format of THE register to be maintained by ihe tahsildar regarding THE applications filed under Section 48-a. Several details have to be filled up in THE register as and when application was received. If actually THE application has been received, THE same would have found a place in THE village-war register. It is for THE tahsildar to find out as to wheTHEr THE application has been received in his office by reference to this register and oTHEr relevant facts. The tahsildar has held in THE instant case, that no such application has been received from THE writ petitioner. If so, according to THE learned counsel for THE appellant, THEre was nothing left for THE land tribunal to enquire. Nowhere THE act vests THE power in THE tahsildar to give a finding as to wheTHEr an application has been filed under Section 48-a of THE act. The functions of THE tahsildar are mainly that of THE functions as secretary to THE land tribunal. No doubt on receipt of THE application, he has to gaTHEr some information and to make certain entries in THE register. But this function of THE tahsildar is only an executive function. If actually THE application is filed and THE same is omitted to be noted in THE register and THE applicant is prevented from approaching THE land tribunal to establish that he had in fact filed THE application, THE entire statutory relief granted to THE applicant will be lost. It is for THE land tribunal constituted under THE act to consider THE rights of THE parties. If THE tahsildar has to decide as to wheTHEr THE application has been filed before THE land tribunal or not, it will result in vesting THE power in THE tahsildar to prevent an applicant from getting his right decided by THE tribunal, in case THE tahsildar decides that THEre is no application at all. The finding that THEre is no application filed under Section 48-a results in THE denial of right of THE applicant to seek registration as tenant. This could be done only by THE land tribunal under THE Provisions of THE act. Therefore, in a case, where THE applicant asserts that he had filed an application, it is for THE land tribunal to examine THE said claim and give a finding. It is for THE land tribunal to consider all THE relevant facts such as THE conduct of THE parties, THE delay involved in making THE claim, THE reason for THE delay and such oTHEr matters that may be brought to THE notice of THE tribunal. The tribunal shall also examine THE effect of non-entry in THE register maintained in form 9-aa and it is for THE tribunal to arrive at THE decision wheTHEr non-entry in THE said register was due to any mistake, fraud or negligence or due to THE non-filing of THE application by THE claimant. We are in respectful agreement with THE observations made in venkappa shettigar's case, 1989(1) kar. L.j. 14. At page 15, it was held thus: