NIJALINGAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) By these petitions under Article 226 of the Constitution of India, petitioners are questioning the constitutional validity of Karnataka Act 18 of 1990. This Court in Yellappa Adivappa Madiwalar v State of Karnataka and Others , made certain observations to the effect that land tribunals had not been carrying out the directions issued by this Court in several writ petitions in which their orders were challenged and they had not made any efforts to improve their functions in the discharge of their duties for satisfactory adjudication of tenancy rights of poor tenants and in that background recommended to the Government that it will be appropriate to constitute an appellate tribunal consisting of two members one having judicial experience and the other having experience on the revenue side with power to take additional evidence, if necessary, for rendering substantial justice to the parties at the district level instead of compelling them to come to this Court wherein the power exercisable under Article 226 of the Constitution is not sufficient to give substantial relief In that regard this Court also noticed its past experience of remanding the matters over and over again. This formed part of the Objects and Reasons of the Bill that ultimately became Act 19 of 1986 by which Sections 116-A and 116-B of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as 'the Act') were introduced into the Act providing for an appeal, appellate forum and procedure thereto. However, subsequently, by Act 18 of 1990 the said provisions of Sections 116-A and 116-B were deleted by Section 6 of the Act and a provision was made by Section 17 thereof to get the proceedings pending before the appellate authorities reverted to this Court after observing certain formalities as provided therein.

(2.) In the Statement of Objects and Reasons while introducing the Bill which culminated in the Act impugned herein, this is what is stated: "After the Karnataka Land Reforms Act, 1961, was amended by Act 1 of 1974, it was expected that litigations pertaining to the tenancies would be disposed off early. However, the Act was again amended by Act No. 19 of 1986, and provision was made for an appeal to the land reforms appellate authority with two official members, of whom one was a Civil Judge from the Judicial Department and another from the Revenue Department not below the rank of a Deputy Commissioner. Earlier to the Amendment Act No. 19 of 1986, the orders of the land tribunals were final and they could only be questioned before the High Court in its writ jurisdiction. However, from the past experience, it is found that the desired results were not forthcoming from the constitution of the appellate authorities. The system has also not proved to be beneficial in the majority of the cases. Hence, after taking all factors into consideration, the Government decided to abolish the land reforms appellate authorities and to make the decision of the tribunal final. Hence the Bill." The learned counsel for the petitioners urged that the authorities concerned could not have enacted Section 6 of the impugned Act to delete Sections 116-A and 116-B inasmuch as those provisions were enacted virtually in deference to the directions of this Court. Having done so it was not open to the Legislature to have deleted the same subsequently. In Section 17 of the Act although it is provided that a petition filed by a party concerned whose proceeding is pending before the appellate authority to get the same treated as a writ petition or a writ appeal if the High Court deems fit to do so, it is virtually a mandate and judicial power is effectively taken away by a legislative fiat. And State Legislature has no power to give a mandate to the High Court and in this context relied upon a decision of this Court in Jainuddin Nizamuddin Munshi v Land Tribunal , wherein it was observed by this Court, while on the previous occasion when the provisions providing for proceeding to be transferred to the appellate authorities from this Court by reason of Act 19 of 1986 were challenged, that no law can take away or curtail the jurisdiction of the High Court under Article 226 of the Constitution except by way of amendment to the Constitution, It is submitted that Section 17 of the Act impugned herein is an inroad into the exercise of power under Article 226 of the Constitution. The learned counsel for the petitioner characterised the exercise of such power as a colourable legislation and relied upon a decision of the Supreme Court in Sonapur Tea Company Ltd. v Must. Mazirunnessa , to contend that a colourable legislation is one in which the Legislature transgresses limits of its legislative powers and conceals its real purpose under cover of legitimate and reasonable provisions and thus seeks to do indirectly what cannot be done directly.

(3.) Section 6 of the impugned Act repeals Sections 116-A and 116-B thus rendering remedy of appeal unavailable. Section 17 of the impugned Act reads as follows: "17. Pending proceedings.The High Court on the application filed by the appellant (which expression shall also include the petitioners of the writ petitions and appellants of the writ appeals transferred to the appellate authority) before the expiry of ninety days from the commencement of the Karnataka Land Reforms (Amendment) Act 1990, whose appeal was pending immediately before such commencement, before such authority, may if it deems fit, and after condoning the laches, if any, treat such appeal as a writ petition or as the case may be a writ appeal preferred to the High Court against the order by the tribunal under the principal Act." It is well settled principle of law that Legislature has power to provide for an appeal and to create an appellate forum and in a given case it may omit to do so. In the present case, in view of the observations made by this Court in Yellappa Madiwalar's case referred to earlier, provision for appeal against orders of land tribunals was made but as experience showed that it did not have the desired effect the Legislature thought fit to do away with such appeal. Whether an appeal should be provided or not against an order is a matter of policy with Legislature and should be left to its wisdom. If the law on the matter is so we do not think we can take any exception to the deletion of Sections 116-A and 116-B of the Act. Though this Court may have made certain observations the State having found that it did not have the desired results it was open to change its policy and do away with the appeals against the orders of the land tribunals. Hence we cannot say that Legislature had no jurisdiction to abolish appeals against orders of the land tribunal.