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Baby Vs. Nathu - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberWrit Appeal No. 1102 of 1981
Judge
Reported inAIR1982Kant262; ILR1981KAR1301; 1981(2)KarLJ406
ActsConstitution of India - Article 226; Karnataka Land Reforms Act, 1962 - Sections 48-A(1)
AppellantBaby
RespondentNathu
Appellant AdvocateP. Vishwanatha Shetty, Adv.
Respondent AdvocateA.V. Albal, Adv. Caveator
Excerpt:
.....(54 of 1948) section 79 and karnataka electricity board employees (conduct, discipline, control & appeal) regulations, 1987, regulation 14 petitioner alleged to have been involved in theft - criminal complaint also lodged in this regard - however, based on same evidence criminal court held that charge of theft is not proved and also recovery is not proved by prosecution - disciplinary authority relying upon admission of criminal charge by petitioner before investigation officer and in charge sheet, passing order of dismissal held, not proper, particularly, when enquiry was dispensed with and petitioner had no opportunity before disciplinary authority. further, statement made before investigating officer cannot be treated as an admission under section 27 of evidence act. - in..........of the karnataka land reforms act, 1061 (hereinafter referred to as 'the act' before the first land tribunal', udupi taluka (hereinafter referred to as the tribunal'), claiming occupancy right in respect of 20 cents of land in survey no. 53/313 and 20 cents of land in survey no. 53/5, both of moodanidambur village, belonging to respondent 3. the tribunal. by its order dated 30-11-1977, granted that application.4. that order was quashed by this court in a writ petition filed by respondent 3 and the petitioner's application under sec. 48-a(1) of the act was remitted to the tribunal for a fresh disposal. thereafter, the tribunal, by its order dated 9-6-1981, granted to the petitioner occupancy rights only in respect of 12 cents of land in survey no. 53/3b and 18 cents of land in survey.....
Judgment:

Venkatachala, C.J.

1. By consent of learned Counsel, this appeal was treated as having been posted for hearing and we heard them.

2. This appeal is from the order dated 24-7-1981 of Bhimiah, J. in Writ Petition No. 14284 of 1981 making absolute the exparte ad interim order of injunction granted by him earlier Respondent 3 there in has presented this appeal. For the sake of convenience, the parties will hereinafter be referred to according to their respective positions in the writ petition.

3. The petitioner had made an application under Sec, 48-A(1) of the Karnataka Land Reforms Act, 1061 (hereinafter referred to as 'the Act' before the First Land Tribunal', Udupi Taluka (hereinafter referred to as the Tribunal'), claiming occupancy right in respect of 20 cents of land in Survey No. 53/313 and 20 cents of land in Survey No. 53/5, both of Moodanidambur village, belonging to respondent 3. The Tribunal. by its order dated 30-11-1977, granted that application.

4. That order was quashed by this Court in a writ petition filed by respondent 3 and the petitioner's application under Sec. 48-A(1) of the Act was remitted to the Tribunal for a fresh disposal. Thereafter, the Tribunal, by its order dated 9-6-1981, granted to the petitioner occupancy rights only in respect of 12 cents of land in Survey No. 53/3B and 18 cents of land in survey No. 53/5 and rejected his claim in respect of 8 cents of land in Survey No. 53/3B and 2 cents of land in Survey No. 53/5.

5. That order. in so far it, concerned the rejection of the petitioner's claim, had been impugned in Writ Petition No. 14284 of 1981. The prayer of the petitioner in the writ petition, was to direct the Tribunal to grant him occupancy rights in respect of the extents of lands for which his claim was rejected. The interim prayer sought therein was for grant of an order of temporary injunction in respect of 30 cents of land Survey No. 53/3B and 18 cents of land in Survey No. 53/5 on the averment that he (the petitioner) was in possession of those lands and that respondent 3 was trying to disturb such possession.

6. The learned single Judge issued Rule in the writ petition on 17-7-1981 and granted the ex parte order of injunction sought for. That, order of ex parte injunction was made absolute by his order now under appeal.

7. Shri P. Vishwanatha Shetty, learned Counsel for the appellant (respondent 3 in the writ petition,) contended that the learned single judge, should have vacated the ex parte order of temporary injunction which had been granted. for the first time in the writ petition and should not have made, the ad interim order absolute. Shri Viswanatha Shetty further contended that when the Tribunal had held in its order impugned in the writ petition that the lands. occupancy rights of which were claimed by the petitioner, were nonagricultural lands, it could not have granted occupancy rights in respect of any portion of those lands in favour of the petitioner and that when the Tribunal had no jurisdiction to grant occupancy rights in respect of those lands, this Court was not justified in granting an order of temporary injunction for the first lime in the writ petition.

8. On the other hand, Shri A. V. Albal - learned Counsel for respondent 3 (the petitioner), sought to sustain the order of the learned single judge. He wanted us to examine the proceedings of the Tribunal and also other documents produced by him for satisfying ourselves as to whether the petitioner was in possession of the lands for which he had claimed occupancy rights.

9. In our view, the learned single Judge, in making the order under appeal, has overlooked the ruling of the Division Bench of this Court in Writ Appeal No. 355 of 1976 (Chowdaiah v. Land Tribunal). Therein, an ex parte order of injunction granted by Srinivasa Iyengar, J. having been vacated by Bhimiah, J.. and that latter order having been appealed from, it was held thus by the Division Bench while upholding the same:-

In order to grant an order of temporary injunction, this Court will have to enter into what may be styled as a mini-trial: virtually, the order of the Tribunal has to be reversed and it has to be held that the second respondent is not a tenant, and that the land in question has not vested in the State Government. This Court will not be justified in doing so in the exercise of its writ jurisdiction.

If the order of the Land Tribunal suffers from any error which can be corrected, then the order has to be quashed and the matter has to be remitted back to the Tribunal to give a fresh finding. That being the position. it would not be proper for this Court. in circumstances like this. to make an order of temporary injunction.'

10. We were not shown in the present case, any extraordinary ground which would justify our departing from the general rule enunciated by the Division Bench and upholding the order of the learned single Judge granting a temporary injunction.

11. For grant of an order of injunction for the first time, this Court has examine material on record or other material produced on behalf of parties and reach a finding thereon and such course if adopted, will amount to holding a mini-trial as pointed out in the ruling of the Division Bench. Moreover, any finding, if recorded by this Court at a preliminary stage of a writ petition .nay perhaps prejudice the case of either of the parties at the time of final hearing of such writ petition. Hence, in our view, the just order that could be made ordinarily in a case arising from an order of a Land Tribunal, would be to stay the operation of the order of the Land Tribunal so that status quo ante may be maintained.

12. However, Shri Albal contended that the power of this Court under Article 226 of the Constitution, is wide enough to make an order of interim injunction and that therefore the ruling of the Division Bench requires re-consideration.

13. The existence of power is one thing and the appropriateness of its exercise is another thing. We do not see any good ground which warrants reconsideration of the ruling of the Division Bench in Chowdaiah's case.

14. In the result, we allow this appeal partly, vacate the order of injunction granted by the learned single Judge and in its place, make an order staying the operation of the order of the Tribunal in so far it is impugned in the writ petition, until its (the writ petition's) disposal.

15. However, it is made clear that this judgment will not come in the way of the parties moving the learned single Judge for early disposal of the writ petition.

16. In this appeal, we make no order as to costs.

17. Appeal partly allowed.


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