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V. Virupakshappa Vs. D. Hanumanthappa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 2529 of 1977
Judge
Reported inAIR1978Kant131; ILR1978KAR1010; 1978(1)KarLJ464
ActsKarnataka Land Reforms Act, 1962 - Sections 45, 47(2), 47(3), 48, 48(4), 48(5), 48(6), 48A and 48C; Karnataka Land Reforms Rules, 1974 - Rules 16 and 17; Constitution of India - Articles 226 and 227; Constitution of India (42nd Amendment) - Article 226; Karnataka Appellate Tribunal Act, 1976 - Sections 2A(35); Karnataka Co-operative Societies Act, 1959; Karnataka Sales Tax Act, 1957; Karnataka Land Revenue Act, 1964 - Sections 34; Karnataka Land Reforms Act, 1961 - Sections 48, 48A and 48C; Karnataka Land Reforms (Amendment) Act, 1973; University of Saugar Act, 1946
AppellantV. Virupakshappa
RespondentD. Hanumanthappa and ors.
Appellant AdvocateM.R. Achar, Adv.
Respondent AdvocateH. Ranga Vittalachar, Adv. and ;C. Shivappa, Govt. Pleader
Excerpt:
.....sales tax act, 1957, and karnataka high court act, the legislature would have provided for a majority decision, 7. on the other hand, the learned counsel for the contesting respondent and the learned counsel for the state, argued that if gathered from the broad scheme of the act it appears that the intention of the legislature was that in case of difference of opinion amongst the members of the tribunal the majority view should prevail. dissent is bound to be there and more so in matters like these where controversial questions of facts and law arise. a requirement of unanimity is exceptional. ' in this connection a recent english decision also affords good guidance. with respect to the first question, i think it is now pretty well established, that where a number of persons are..........the decision of the tribunal.6. while trying to substantiate his contention that a decision of the land tribunal to be properly so called should be an unanimous verdict, the learned counsel for the petitioner argued that since the act and the rules made thereunder do not provide that majority view should prevail in case of differences amongst members, it should be taken that the intention of the legislature was that any decision of the tribunal should only be a unanimous one. otherwise, according to him, as in the case of several other enactments like the kamataka appellate tribunal act, 1976, karnataka co-operative societies act, 1959, karnataka sales tax act, 1957, and karnataka high court act, the legislature would have provided for a majority decision,7. on the other hand, the.....
Judgment:
ORDER

1. This petition filed under Article 226 of the Constitution of India is directed against the order dated 21-1-1977 passed by the Land Tribunal, Hospet, in case No. 1401 of 1074-75, marked as Exhibit 'C' in the case.

2. The proceeding is still pending before the Tribunal. The order in question is an interim order.

3. The petitioner, Virupakshappa, and the first respondent, Dangadi Hanumanthappa, are rival claimants for occupancy rights over a piece of land measuring 2 acres 59 cents in Sy. No. 116 of Amaravathi village. IIospct Taluk. Both have filed applications under Section 48-A of the Karnataka Land Reforms Act, 1961 (hereinafter called the Act). Lingappa (respondcnt-2), Jambanna (respon-dent-3) and Nandappa (respondent-4) are admittedly the owners of the land in question.

3-A. Each of the claimants sought for a temporary injunction in his favour alleging that the other rival claimant was trying to interfere with his peaceful possession of the land in question and that he be restrained from doing so. The Tribunal, after recording their statements and hearing all concerned, upheld by a majority the claim of Dangadi Hanumanthappa for an interim injunction and rejected that of Virupakshappa.

4. This interim order is attacked mainly on two grounds, Firstly, it is urged, relying on a decision of this Court, that this was not a case for preferential treatment with an interim injunction of one of the rival claimants at the cost of the other and that on the other hand an appointment of an interim receiver would have been just and proper Secondly, it is stated that the order of the Tribunal, not being a unanimous decision of all the members of the Tribunal, was no decision at all in the eye of law, and therefore was liable to be quashed.

5. Let us first consider the latter submission. It is a fact that the impugned order is not an unanimous verdict, but is based on the majority opinion. Of the three members who participated in the proceeding on that day, the two non-official members have upheld the claim of Hanumanthappa and the Chairman of the Tribunal has dissented from their view. According to the Chairman, Hanumanthappa was not entitled to any ad interim order in his Savour as his claim for occupancy right itself was not on solid grounds, Virupakshappa, according to the Chairman, was also not entitled to an interim order as he bad failed to show the urgent necessity for such an order in his favour. However, in view of the majority opinion of the two non-official members holding that Hanumanthappa should be granted an ad interim order in his favour, the same was rendered as the decision of the Tribunal.

6. While trying to substantiate his contention that a decision of the Land Tribunal to be properly so called should be an unanimous verdict, the learned counsel for the petitioner argued that since the Act and the Rules made thereunder do not provide that majority view should prevail in case of differences amongst members, it should be taken that the intention of the legislature was that any decision of the Tribunal should only be a unanimous one. Otherwise, according to him, as in the case of several other enactments like the Kamataka Appellate Tribunal Act, 1976, Karnataka Co-operative Societies Act, 1959, Karnataka Sales Tax Act, 1957, and Karnataka High Court Act, the legislature would have provided for a majority decision,

7. On the other hand, the learned Counsel for the contesting respondent and the learned Counsel for the State, argued that if gathered from the broad scheme of the Act it appears that the intention of the legislature was that in case of difference of opinion amongst the members of the Tribunal the majority view should prevail. In their view any other construction in the circumstances of the case would lead to unfortunate consequences defeating the very purpose and the object of the Act.

8. The Act received the assent of the President on 5-3-1962 and it came into force on 2-10-1985. There have been several Amendments of which the Amendment Act of 1973 (Act 1 of 1974) introduces many important changes in the Act. The Act provides for an uniform law in the entire State of Karnataka in the matter of agrarian relations, conferment of ownership on tenants, ceiling on land holdings and for certain other connected matters. Originally certain categories of landholders had been permitted to resume portions of the lands under cultivation of their tenants. This was done away with by Act 1 of 1974. Act 1 of 1974 came into force on 1-3-1974. In the Act as it stood prior to 1-3-1974 the Court, as constituted under the Act, was the forum to decide the disputes arising out of claims for occupancy rights. The Munsiffs of the respective areas had been constituted as 'Courts' for purposes of the Act. The power to determine the surplus areas had been conferred On the Tahsildars. Act 1 of 1974 provided for the constitution of separate Land Tribunals to decide disputes arising out of the claims for occupancy rights. Subsequently by another amendment the power to determine surplus holdings has also been conferred on the Tribunals.

9. Section 48 of the Act which provides for the Constitution of Tribunals reads as follows:

'48. Constitution of Tribunals.-

(1) The State Government shall, by notification constitute for each Taluk a Tribunal for purposes of this Act consisting of the following members, namely:--

(i) the Assistant Commissioner of the Revenue sub-division having jurisdiction over the Taluk or an Assistant Commissioner specially appointed for the purpose by the State Government;

(ii) four others nominated by the State Government of whom at least one shall he a person belonging to Scheduled Castes or Scheduled Tribes.

Provided that if in its opinion it is necessary so to do the State Government may constitute additional Tribunals for any Taluk and the Deputy Commissioner, may, subject to any general or special orders of the State Government, distribute the work among the Tribunals in any Taluk.

(2) The Assistant Commissioner shall be the Chairman of the Tribunal.

(3) The State Government from time to time likewise re-constitute the Tribunal.

Any proceeding pending before the Tribunal shall be continued by the re-constituted Tribunal as if the same were instituted before it.

Explanation: For the purpose of this subsection 're-constitution' shall include removal of a member from or nomination of a new member to the Tribunal.

(4) The quorum to constitute the meeting of the Tribunal and the procedure to be followed by it shall be such as may be prescribed.

(5) No act or proceeding of the Tribunal shall be deemed to be invalid by reason only of the existence of any vacancy among its members or any defect in the constitution or re-constitution thereof.

(6) The non-official members of the Tribunal shall be entitled to such travelling and other allowances as may be prescribed.

(7) The Tahsildar or any officer specially appointed for the purpose by the State Government, shall be the Secretary of the Tribunal.

(8) No legal practitioner shall be allowed to appear in any proceeding before the Tribunal.'

Section 48-A which prescribes the procedure to be followed by the said Tribunals reads as follows:--

'48-A. Enquiry By the Tribunal, etc.,

(1) Every person entitled to be registered as an occupant under Section 45 may make an application to the Tribunal in this behalf. Every such application, save as provided in this Act, be made on or before the 31st day of Dec. 1974, provided that the Tribunal may, for sufficient cause shown, admit an application made beyond that date but on or before 30th June 1977.

(2) On receipt of the application, the Tribunal shall publish or cause to be published a public notice in the village in which the land is situated calling upon the landlord and all other persons having an interest in the land to appear before it on the date specified in the notice. The Tribunal shall also issue individual notices to the persons mentioned in the application and also to such others as may appear to it to be interested in the land.

(3) The form of the application, the form of the notices, the manner of publishing or serving the notices and all other matters connected therewith shall be such as may be prescribed.

(4) Where no objection is filed, the Tribunal may, after such verification as it considers necessary, by order. either grant or reject the application.

(5) Where an objection is filed disputing the validity of the applicant's claim or setting up a rival claim, the Tribunal shall, after enquiry, determine, by order, the person entitled to be registered as occupant and pass coders accordingly.

(5A) Where there is no objection in respect of any part of the claim, the Tribunal may at once pass orders granting the application as regards that part and proceed separately in respect of the other part objected to.

(6) The order of the Tribunal under this section, shall be final and the Tribunal shall send a copy of every order passed by it to the Tahsildar and the parties concerned.

(7) The person to be registered as an occupant shall pay to the State Government an amount equal to fifteen times the net annual income referred to in Sub-section (2) of Section 47 of Schedule-1 in the case of A class, B class and C Class lands referred to in Part A of Schedule-I and 20 times such income in the case of D class lands referred to in the said Part-A- plus the amount, if any, payable under Sub-section (3) of that section:

Provided that the premium payable by a permanent tenant shall be six times the difference between the rent and the laud revenue of the land.

(8) Where no application is made within the time allowed under Sub-section (1) the right of any person to be registered as an occupant shall have no effect.'

10. Act 1 of 1974 did not provide for the constitution of additional Tribunals. But by a subsequent amendment by Act No. 18 of 1976 it was provided for the constitution of additional Tribunals for any Taluk and for distribution of work amongst the Tribunals. The necessity for additional Tribunals was felt because of a large number of applications in some Taluks. Though the concerned Deputy Commissioners have been given powers to distribute the work between the Tribunals situated in a Taluk there is no provision providing for transfer ot cases from one Tribunal to another and this fact--has to be borne in mind. As provided in Sub-section (4) of Section 48 the quorum to constitute the meeting is required to be prescribed under the rules. Under Sub-s. (5) no act or proceeding of the Tribunal will be invalid only because of a vacancy among its members or there being any defect in the constitution or reconstitution of the Tribunal. Under Rule 16 of the Karnataka Land Reforms Rules, 1974, three members including the Chairman will constitute the quorum. As provided in Rule 17 the Tribunal in conducting its proceeding has to follow the procedure laid down for a summary enquiry under Section 34 of the Karnataka Land Revenue Act, 1964. Each Tribunal consists of an Assistant Commissioner who is its Chairman and four other non-officials of whom at least one should be a person belonging to Scheduled Castes or Scheduled Tribes. Legal practitioners are barred from appearing before the Tribunals. The Secretary of the Tribunal (he is not a member of the Tribunal) is either the Tahsildar or an officer specially appointed by the State Government. No appeal is provided against the decision of the Tribunal. As contended by the learned Counsel for the petitioner neither the Act nor the rules provide for a decision by the majority members of the Tribunal. The Tribunal, as defined in the Act (Section 2-A (35)) means the Tribunal constituted under Section 48. Section 48-A which lays down the procedure to be followed by the Tribunal says that the order of the Tribunal shall be final (Sub-section (6) of Section 48). According to the learned Counsel for the petitioner, in the circumstances, the Tribunal means the members of the Tribunal constituting a quorum at each meeting and any decision rendered therein shall have to be a unanimous decision of all the members present, as otherwise it would be no decision at all in the eye of law.

11. As already stated above, though the Tribunal consists of the Chairman and tour non-official members, only three of them will constitute the necessary quorum lor the meeting.

12. In such a validly convened meeting of the Tribunal if a decision is taken, not unanimously but by a majority, would it be invalid is the question.

13. Since the Act and the Rules made thereunder are silent on this aspect, we have to look to the broad scheme of the Act and the intention of the legislature for guidance.

14. There are various theories in the matter of interpretation of statutes one of which, though it should be resorted to very sparingly, is to find out the intention of the legislature and to place that construction which would help to achieve the real object underlying the act without doing violence to the fundamental law of the land or the basic principles underlying the legal system of the country. In this connection it may be useful to quote what Maxwell has stated. Maxwell on Interpretation of Statutes--12th Edition--page 229:

'Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's un-skillfulness or ignorance of the law.....'

15. Now, suppose the decision is not an unanimous one, what is the way out? Is there any provision in the Act for transferring cases from one Tribunal to another? If there is no unanimity and no alternate Tribunal to deal with a matter the result would be that the matter remains undecided. That surely would not have been the intention of the legislature. Besides this, human nature being what it is it is not possible to expect all the members to agree on a particular course of action. Dissent is bound to be there and more so in matters like these where controversial questions of facts and law arise. The legislature was not unaware of this. In the circumstances it is fair to assume that the legislature intended that in case or any dissent amongst the members of the Tribunal the majority view should prevail and that should be the decision of the Tribunal.

16. In Great Britain, as observed by S. A. de Smith in his Judicial Review of Administrative Action (3rd Edition), 'the general rule is that a Tribunal discharging functions of a public nature neither exceeds jurisdiction nor errs in law merely by arriving at a majority decision; a requirement of unanimity is exceptional.' In this connection a recent English decision also affords good guidance. Under the British Rent Act of 1998, to determine fair rent of dwelling houses, powers are conferred on Rent Assessment Committees constituted under Section 42 of that Act In June 1970 a Rent Assessment Committee of London Rent Assessment Panel, by a majority determined fair rent of a certain tenanted premises. It was argued in Picea Holdings Ltd. v. London Rent Panel, (1971) 2 QB 216, that the Rent Assessment Committees have no power to give majority decisions, there being no such provision in the Act providing for the constitution of such Tribunals. In this connection similar enactments providing for such Tribunals and permitting majority decisions were cited at the Bar to say that since there is no such provision in the Rent Act of 1968 it has to be assumed that the legislature intended that the decisions of the Rent Assessment Committees, to be valid decisions, must be unanimous. Lord Parker, C. J., who spoke for the Bench observed that the general principle in such cases was that the majority will conclude the minority and the act of the majority will be the act of the whole. To deduce this general principle the learned Judge placed reliance on an earlier ruling of the year 1798. His observations may usefully be quoted:

'Mr. Slynn who has appeared as amicus (curiae) has however in this connection referred to a case in the Court of Appeal in New Zealand; Atkinson v. Brown (1963) NZLR 755. The facts of that case matter little. The importance of it is that it conveniently collects and deals with the relevant authorities on the matter. North, J., the president of the court in that case, pointed out that the general principle dealing with this point was laid down as long ago as 1798 in Grindley v. Barker (1798) 1 B. and P. 229. In that case Eyre C. J., approached the matter in this way. He said, at page 236:

' ... .1 thought this question would turn on two general' heads of inquiry. First, what the general rule of law was in the case of bodies of men entrusted with powers of this nature; whether they must all concur, or whether the decision of the majority would bind the whole? Secondly, suppose the latter to be the general rule, whether that general rule is to be controlled by the intent of the legislature as collected from the scope and provisions of this Act. With respect to the first question, I think it is now pretty well established, that where a number of persons are entrusted with powers not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole'......

'Approaching this case with that general principle in mind, it would appear that this is not a case purely of private interest being involved; it no doubt is a matter of private concern between landlord and tenant, but it is quite clearly, under the scheme of the legislation, a matter of considerable public concern and public interest that fan-rents should he fixed. Accordingly this qualifies, as I see it, for coming within the general principle.'

17. Though as argued by the Counsel for the petitioner, the provisions of the Rent Act are not entirely similar to those of the Act, the principle enunciated above deserves consideration.

17-A. The Supreme Court has also applied this principle while upholding the decision, not of that of a Tribunal of this nature, but of a selection committee constituted to recommend names for appointment to the post of a Vice-Chancellor. The committee had been constituted under the provisions of the University of Saugar Act, 1946. Of the three members of the Committee only two participated in its deliberations and suggested a name. It was not acceptable to the Chancellor on the ground that the recommendation had been made not by all members but only by two out of the three who constituted the committee. In this connection the Supreme Court has observed in Ishwar Chandra v. Sathyanarain : [1972]3SCR796 as follows (at p. 1816 of AIR):

'If, for one reason or the other, one of them could not attend, that does not make the meeting of others illegal. In such circumstances where there is no rule or regulation or any other provision fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat could not be held to be invalid- This proposition is well recognised and is also so stated in Halsbury's Laws of England, Third Edition (Vol. IX, page 48, para 95). It is therefore unnecessary to refer to any decisions of the subject.'

18. It may be fairly assumed that in this Country also the general rule is (in the words of Section A. de Smith) 'that a Tribunal discharging functions of a public nature neither exceeds jurisdiction nor errs in law. merely by arriving at a majority decision', unless the legislature provides otherwise. Since, in the instant case the legislature is silent on the point, it may be inferred, as already stated above, that its intention was that in case of differences of opinion amongst the members of the Tribunal, the majority view binds the minority and that would be the decision of the Tribunal.

19. Thus, in the circumstances of the case and for the reasons mentioned above, the impugned order rendered by the majority members of the Tribunal will be the decision of the Tribunal and it cannot be attacked as not a valid decision on the ground that it is not an unanimous one.

20. While assailing the validity of the order on merits, the learned Counsel for the petitioner also submitted that extraneous and irrelevant considerations have weighed with the Tribunal in allowing Hanumanthappa's claim for temporary injunction, and therefore the order deserves to be quashed.

21. Under Section 48-C of the Act the Land Tribunals have been conferred with powers to issue interlocutory orders in the nature of a temporary injunction or appointment of a receiver. This is a discretionary power and they have to exercise the same judicially. The Tribunal also has powers to revoke or modify such an order. The learned Counsel submits that in the light of the facts of this case where there are bona fide rival claims to the tenancy right, the proper order would have beery to appoint a receiver instead of 'granting ad-interim order of injunction in favour of one of the claimants at the cost of the other. In this connection he placed reliance on a decision of this Court in Kamala Handthy v. Ananthayya, (1974) 2 Kant LJ 34. It is true this Court has observed in the said decision that 'in any suit where there is a bona fide dispute between the parties on the question whether the suit lands were held by one of the parties as a tenant immediately prior to 1-3-1974 it would be just and convenient to appoint a receiver for the disputed property pending final disposal of the suit.' But it may be noted here that the said decision was rendered by this Court sitting in revision against an order of a civil court (the Munsilf)-This Court while exercising its powers tinder Article 226 as 'amended by the 42nd Amendment can issue any writ or direction only for the enforcement of any rights conferred by the provisions of Part III; or for the redress of any injury of a substantial nature by reason of the contravention of any other provisions of the Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law, or other instrument made thereunder; or for the redress of any injury by reason of any illegality in any proceeding by or before any authority under any provision referred to in Sub-clause (b) where such illegality has resulted in substantial failure of justice. It will thus be seen that for obtaining redress of any injury caused by reason of any illegality in any proceedings by or before any authority, such illegality should have resulted in substantial failure of justice. Only on substantial grounds can the orders, more so, the discretionary interim orders of subordinate Tribunals, be interfered with, f have perused the impugned order. It could have been more happily worded. There was no reason for the members of the Tribunal to have made observations which are likely to prejudicially affect their decision on merits. However, since this is only an interim order it is sufficient if it is impressed on the members of the Tribunal that they should not be swayed by the observations made in the interim order while talking a decision finally on merits. It is not necessary either to quash the interim order or to modify it. 'The Tribunal is directed to expeditiously hear and dispose of the rival claims.

22. Hence, the writ petition is dismissed. The rule is discharged.

23. Parties are directed to bear their owncosts.

24. Petition dismissed.


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