MOULASAB Vs. MOULASAB

JUDGEMENT

(1.) THE petitioners' learned Advocate contended that the revenue records consistently support the petitioners' contention that respondents 1 and 2 are entitled to only 1 acre 32 guntas in sy. No. 84/5 and that as far as the extent of 6 acres is concerned that the occupancy rights have wrongly been granted. He referred to several documents which i refrain from reproducing here because even though, after three remands the tribunal has gone into an elaborate narration with regard to the material produced and the contentions raised by the two sides, there is no proper reasoning nor is there any proper basis for the conclusion arrived at.

(2.) THE learned Advocate who represents respondents 1 and 2 submitted that his clients have produced a host of documents in support of their plea that they are entitled to occupancy rights in respect of the whole of the survey numbers and his contention was that no interference is called for. The learned government Advocate also submitted that despite the fact that the tribunal dces not seem to have recorded any reasoning and short justification for the conclusion that from the order taken as a whole, this court could uphold the same on the ground that there was sufficient material on record for the conclusion.

(3.) WHEN confronted with the submission that if the tribunal's order lacks the requisite ingredients to justify the conclusion, that it would be difficult to sustain it, Mr. Patil, submitted that if that is the position, the only option is to re-direct the tribunal to pass a proper speaking order justifying the conclusion. His submission that in a hotly contested proceeding of this type, that it would be outside the ambit and scope of this court to record any conclusions as this would constitute an appreciation of evidence which cannot be done in a writ petition. Mr. Patil, has placed reliance on a decision of this court in the case of radhakrishna setty v land tribunal, somwarpet and another, wherein this court has while expressing serious displeasure with regard to the manner in which the tribunals are constituted and the way in which they were found functioning, still held that it would not be permissible for the high court to take over the tribunal's function by passing orders in which effectively occupancy rights are granted, or for that matter, directing the tribunals to do so. This precisely was the situation in a case that went up in appeal to the division bench, in the case of r. Venkatarao v munivenkatappa and others, wherein the division bench went a step further to point out that the high court could not exercise any of the powers that were exclusively vested in the tribunal and that it would be acting beyond its jurisdiction to issue a specific direction to grant occupancy rights. The view taken was that the tribunal is the competent forum to independently evaluate the material before it, consider the law and confer or refuse occupancy rights and that while exercising the powers of judicial review, the high court could only confirm or set aside the order and in the latter case, the only option left would be to direct the tribunal to reconsider the matter de novo if the necessity arose. The third situation wherein the high court could pass an order conferring occupancy rights, was held to be beyond the scope of this court.