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Basappa Gurusangappa Baragundi Vs. the Land Tribunal, Badami and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Appeal No. 591 of 1978 with Writ Petn. Nos. 812 and 5715 to 5717 of 1978
Judge
Reported inAIR1980Kant175; 1979(2)KarLJ370
ActsConstitution of India - Article 226; Karnataka lands Reforms Act, 1962 - Sections 48-A
AppellantBasappa Gurusangappa Baragundi
RespondentThe Land Tribunal, Badami and ors.
Appellant AdvocateS.R. Bannurmath, ;R.B. Guttal (in W.P. Nos. 5715 to 5717 of 1978), ;T.S. Ramachandra (in W.A. No. 501 of 1978) and ;R.V. Jayaprakash (in W.A. No. 501 of 1978), Advs.
Respondent AdvocateB.B. Sandpaper, Govt. Pleader, ;T.S. Ramachandra (in W.P. Nos. 812 and 5715 to 5717 of 1978), ;R.V. Jayaprakash (in W.P. Nos. 812 and 5715 to 5717 of 1978), ;Padmanablia Mohale, ;R.B. Guttal (in W.P.
Excerpt:
- karnataka municipalities act, 1964.[k.a. no. 22/1964]. sections 3 & 11(1): [ashok b. hinchigeri, j] constitution of urban local bodies under number of councillors specified in column 3, in respect of municipal areas-legislative prescription of number of councillors for madikeri municipal council is 23 -upgradation of madikeri town municipal to city municipal council in view of amendment to section 3 of the act - issue of notification for madikeri c.m.c. fixing the number of wards at 31- challenge as to validity held when the legislature, in exercise if its wisdom, has fixed the number of councillors at 23 for a municipal area with a population between 20,000 and 40,000, the executive has fixed it at 31. the timely and tenable objections raised by the second respondent state election..........counsel 'in the appeal and in these petitions and we are deciding them by this common judgment.2. writ appeal no. 591 of 1978 is from the order of venkatesh, permitting writ petition no. 7584 of 1977 being withdrawn by the petitioner therein. this appeal is by basapa gurusangappa bargundi, who was the power of attorney holder for channappa shanmukhappat barundi the petitioner in writ petition no,7584/1977.3. the case of the appellant is briefly thus: channappa, shanmukhappa bargundi had made an application under s. 48-a of the karnataka land reforms act, 1961 (hereinafter referred to as the act) before the land tribunal, badami taluk for being registered as occupant of certain lands. channappa had made that application as the 'kartha' of the hindu undivided family of which the appellant.....
Judgment:

D.M. Chandrashekhar, C.J.

1. These lour petitions under Art. 226 of the Constitution have been referred to a Division Bench by Bhimiah, before 'whom they had, come up in the first instance. The reason for so referring them is that they are inter-connected with Writ, Appeal No. 591 of 1978. We have heard arguments of learned Counsel 'in the appeal and in these petitions and we are deciding them by this common judgment.

2. Writ Appeal No. 591 of 1978 is from the order of Venkatesh, permitting Writ Petition No. 7584 of 1977 being withdrawn by the petitioner therein. This appeal is by Basapa Gurusangappa Bargundi, who was the power of attorney holder for Channappa Shanmukhappat Barundi the petitioner in Writ petition No,7584/1977.

3. The case of the appellant is briefly thus: Channappa, Shanmukhappa Bargundi had made an application under S. 48-A of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as the Act) before the Land Tribunal, Badami taluk for being registered as occupant of certain lands. channappa had made that application as the 'Kartha' of the Hindu undivided family of which the appellant was also a member. Hence, that application must be regarded as being on-behalf of the appellant also. Subsequently Channappa withdrew the writ petition. such withdrawal was contrary to the interest of the appellant , therefore, the appellant has presented this apple thought he was not a party in his own right to Wright petition no.7584 of 1977,but was only a power of attorney holder for petitioner therein.

4. Writ Petitions Nos. 5715 to 5717 of 1978 have all been presented by Padappa Shivanappa, Desai. Therein, he has challenged the three separate orders of the Tribunal, granting occupancy rights to respondents 4, 5 and 6 therein. He has claimed to be the owner of all the lands Act of which the Tribunal had occupancy rights to respondents 4 to 6. His contention was that those respondents were not tenants of those lands and that the Tribunal was not justified in granting occupancy rights to them.

5. Learned Counsel for respondents 9, 10 and 12 in the appeal, raised a preliminary objection as to the locus stand of appellant to file the appeal. They contended that as he was not a party in his own right in Writ Petition No. 7584 of 1977 and the petitioner therein, Channappa Shanmukhappa Baragundi, had withdrawn that writ petition he (the appellant) had no right , to maintain this appeal from the order in that writ petition.

6. The question whether a person who, is not a party to an original proceeding can Me an appeal there from was considered by this Court in Shivaraya v. Siddawa (AIR 1963 Mys 127). The law on the point was stated thus by SomnathIyer, J. (as he then was):

'Leave to a person to appeal from a decree or order in a proceeding to which he was not a party should not be ordinarily granted unless he establishes that he has an interest which is affected by the order or decree from which he proposes' to appeal. If he establishes that he has such interest, it seems to me that it is not necessary for him to further establish that if he does not institute an appeal with the leave of the Appellate Court, the consequence will be that the order or decree against which he proposal to appeal becomes conclusive without his being able to question such decree or order in other proceedings. In my opinion, the question as to whether leave should or should not be granted should depend upon the facts of each case and it is for the appellate Court to decide whether the case before it is a fit one for the grant of such leave.'

7. No doubt the appellant had not made a separate application seeking leave f the Court to prefer this appeal. But, the absence of such application is only a formal defect and does not affect the jurisdiction of the Court to deal with the appeal. Since the appellant has contended at he has a share in the lands in respect of which Channappa Shanmukhappa Bargundi has made an application under Section 48-A of the Act, the withdrawal of to writ petition by Channappa is likely o affect is claim to those lands. Hence e overrules the objections of learned counsel for respondents 9, 10 and 12 in appeal and hold that the present appeal is maintainable.

8. It is unnecessary to deal with several contentions urged by the learned Counsel in this appeal and these writ'. Petitions because they can be disposed of on a short ground.

9. The appellant has filed a memo producing a copy of the application made by him under S. 48-A of the Act before the Tribunal, on 20-8-77.

10. By the Karnataka Land Reforms (Amendment) Act, 1978, the time limit forming an application under S. 48-A has been extended u to the expiry of six months from the date of commencement of S. I of that Act, which came, into force on 1-1-1979. Hence, the appellant's application before the Tribunal was in time.

11. When rival applications are made before the Tribunal for grant of occupancy right in respect of the same land, it is, in our opinion. The duty of the Tribunal to consider together those rival applications and decide them by a common order 'otherwise, there cannot be a proper adjudication of the rival claims. Even if one of the rival applicants had filed his application earlier and the Tribunal had granted him occupancy right in respect of that land and subsequently another applicant makes an application within the time limit provided by S. 48A in respect of the same land, the Tribunal cannot decline to consider the subsequent application on the ground that it has already granted occupancy right in respect of that land to the earlier applicant. The Tribunal is bound to consider every application on file within the time limit provided by the Act and it is no answer to such application to say that that land is not available for grant of occupancy right therein. The only way in which the Tribunal can be enabled to consider the later application, is to set aside its earlier order arid to direct it (the Tribunal) consider together both the rival applications and to decide thereon. It may look startling that an order of the tribunal which was valid when it was made and did not suffer from any infirmity, should be set aside, merely because another person makes a rival application in respect of the same name land after the Tribunal has ranted occupancy right in respect of that land to the earlier applicant. But there is no other way in which the Tribunal can discharge its obligation to consider all applications filed in time.

12. Applying the above principle, the orders ma e by the Tribunal on the applications of respondent 9, 10 and 12 in this appeal, and of the petitioner in Writ Petition No. 812 of 1978, have to be quashed in order that the Tribunal may consider together and dispose of by a common order, the aforesaid applications and the application made by the appellant in Writ Appeal No. 591 of 1978. In this view, it becomes unnecessary to consider other contentions of parties in this appeal' and these writ petitions.

13. In the result, we allow Writ Appeal No. 591 of 1978, reverse the order of the learned single judge and quash, the orders of the Land Tribunal, Badami, dated 18-2-1977 in K. L. R. LT. SR. 2223, 1597, 1995, 2194, 1629, 2206, 1635, 1874 ' 1624, 828 and 2209 and the order of the Land Tribunal, Badami, dated 25-2, 1977 in K. L. R. TSR Nos. 2195, 12, 1644, 1968 11, 2293. 2215, 216, 1901, 1596, 2216, 1065, 2199, 2198, 2197, 1554, 2255, 2258, 2201, 2256, 1639, 1636, 1626, 16A 1622, 1588, 2200 and 1637 (which have been produced as. Exhibits-D and E in W. P. No. 7584 of 1977). We allow Writ Petitions Nos. 812 and 5715 to 5717 -of 1978 and quash the order of the Land Tribunal Badami, dated 5-12-1977 in K. L. R. LTSR, 1651, 17M 1817. 1631, 1851 and 1941.

14. We direct the Land Tribunal to consolidate all the aforesaid applications. To hear them together after giving opportunity to the applicants and the objectors before it to me their statements and to adduce evidence and to decide those applications by a common order.

15. In these cases, the parties will bear their own costs.

16. Order accordingly.


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