mr. s. bangarappa vs somappa on 5 february, 1991

8/13/2019 Mr. S. Bangarappa vs Somappa on 5 February, 1991

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Karnataka High CourtKarnataka High CourtMr. S. Bangarappa vs Somappa on 5 February, 1991Equivalent citations: ILR 1991 KAR 970Author: MohanBench: Mohan, S PatilJUDGMENT

Mohan, C.J.

1. Throught our Judgment, the parties will be referred to in the manner they are arrayed in these Writ Appeals.

2. The facts leading to these appeals are as follows:

Respondents 8 and 9 were owners of Sy.Nos. 114 and 115 measuring 20 acres 26 guntas and 21 acres 21guntas respectively of Lakkavalli Village, Sorab Taluk, Shimoga District. By and large, they were fallow andwere cultivated by them personally. As per the entries in the Record of Rights in 1958-59 the column meantfor cultivator mentions the name of Magur Parasanna. He is none other than the father of respondents 10 and

11. That position continued from 1959-60 to 1964-65. However, in 1965-66 onwards, the entries in theRecord of Rights show the name of Magur Parasanna for Sy.No. 114, and for Sy.No. 115 the columnremained blank. In 1966-67 the word "3" is found indicating thereby that they were under the personalcultivation of the owner. This position continued to be so even beyond 1-3-1974. We refer to the date1-3-1974 because that is the relevant date for grant of occupancy rights under the provisions of the KarnatakaLand Reforms Act, 1961, (hereinafter referred to as 'the Act').

While the matter stood thus, applications in Form No. 7 were filed by respondents 10 and 11 claimingoccupancy rights over these two survey numbers.

It appears from the records that resumption applications were also filed on behalf of the owners on 23-9-1966

in relation to Sy.No. 114. The matter was not pursued.

When Form No. 7 applications were pending adjudication before the Tribunal, respondent No. 10 filed aninterlocutory application before the Tribunal under Section 48C of the Act for an injunction, stating that hewas in possession and enjoyment of the lands as tenant and the said possession and enjoyment were sought tobe disturbed by the so called owners and therefore they must be restrained from doing so. In support of thisplea, respondent-10 examined himself and two witnesses. His statement, inter alia, was that after the death of his father Magur Parsanna, he and R-11 were cultivating the lands and therefore injunction must be grantedagainst the owners. However, the Tribunal, by its order dated 15-10-1977 (Annexure-G), appointed aReceiver.

When Form No. 7 applications came up for final adjudication, the tenants (respondents 10 and 11) stated thatthey were not cultivating the lands in question. Accordingly, the Tribunal, by its order dated 16-2-1979(Annexure-H) rejected the application in rel ation to Sy.No. 114, and by its order dated 20-12-1980(Annexure-J) rejected the application in respect of Sy.No. 115. Thus the claim for occupancy rights in respectof these two lands came to be dismissed. The order of the Tribunal dated 16-2-1979 and 20-12-1980(Annexures H and J) became final.

Thereafter, an extent of 3 acres 30 guntas of land in Sy.No. 114 was purchased by the second appellantPalakshappa by a registered sale deed dated 31-12-1980 (Annexure-K). On 4-5-1979, an extent of 10 acres 13guntas of land in Sy.No. 114 was purchased by one Veerappa who in turn sold the same in -favour of the firstappellant by a registered sale deed dated 8-2-1980. On the same day i.e., 8-2-1980 the first appellantpurchased 7 acres of land in Sy.No. 114 by a registered sale deed.

Mr. S. Bangarappa vs Somappa on 5 February, 1991

Indian Kanoon - http://indiankanoon.org/doc/343523/ 1


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Concerning Sy.No. 115, on 31-12-1980 the third appellant purchased an extent of 10 acres 30 guntas. Anequal extent of 10 acres 30 guntas was purchased on 27-8-1979 by one Basavanthappa who in turn sold thesame to the second appellant on 8-2-1980.

Thus a total extent of 40 acres and odd had come to be purchased by appellants 1 to 3, and it is cultivated asone block.

3. In the year 1981, respondents 1 to 5, claiming to be the beneficiaries under Section 77 of the Act, filed WritPetitions Nos. 12197 and 12198/1981 contending, inter alia, as follows:-

They are agricultural labourers/poor agriculturists possessing not more than one acre of land. They belong toScheduled Caste. Lands bearing Sy.Nos. 114 and 115 of Lakkavalli are covered by Lakkavalli Lift IrrigationScheme and they are very fertile in nature. The first appellant is a Member of the Legislative Assembly, andthe other two appellants are his sister's sons. The first appellant had been representing Soreb Constituencyconsecutively for three times. In his capacity as M.L.A., the first respondent functioned as a member of theLand Tribunal, Sorab, for a considerable time. He was in a position to influence the members of the Tribunal.The first appellant, in order to gain personal profit, using his position, prevailed over the members of theTribunal as well as the land owners. The sale deeds executed in favour of the second and third appellants were

only ostensive, but they hold the land benami for the first appellant.

The fact that Parasappa the deceased father of respondents 10 and 11 was a tenant of the two lands in questionis undisputed. There are number of documents to support the same. Even assuming that they had madestatements before the Tribunal that they were not cultivating these lands, the lands being held by tenants, willvest in the State Government under Section 44 of the Act. Respondents 10 and 11 not being entitled to theoccupancy rights in respect of these lands, they will have to be disposed of in accordance with the provisionsof Section 45(3) of the Act. Accordingly, the lands in question ought to have been made available fordistribution to them (R-1 to R-5) under Section 77 of the Act. They (R-1 to R-5) being poor illiterate personsfound it difficult to gather all the documents. A representation was made in this behalf to the Governmentbringing to its notice all these facts through their local leaders to take appropriate steps. In so far as influence

was brought to bear upon the members of the Tribunal, the State Government has not taken any action. It isunder these circumstances, this Court is approached under Article 226 of the Constitution.

The Land Tribunal constituted under the Act is not only entrusted with the duties of conferring occupancyrights, but it is also required to decide whether a particular land is held by a tenant under Section 44 of theAct, if once the lands vest In the State Government under Section 44 the Tribunal shall confer occupancyrights on the tenants. If such a tenant is held not entitled to be registered as an occupant, the provisions of Section 45(3) will be applicable and as such the lands will be available for distribution under Section 77 of theAct. Thus it is clear, whatever might be the statements made by the so called tenants and the owners, there isalways the possibility of collusion to defeat the provisions of the Act, and in such an event, it is the primaryduty of the Tribunal to decide whether a particular land vests in the State or not. Where, therefore, theTribunal has passed an order without regard to these provisions, it must be held to be bad because it hasneither applied Its mind nor has it verified any material such as entries in the Record of Rights etc. to considerthe question whether the lands vest in the State or not. Such a- vesting in the State is a jurisdictional factor andthe same ought to have been gone into. Without determination of the same, the order of the Tribunal proceeds.Hence it is vitiated. The entries in the revenue records continued to show the name of the deceased father of respondents 10 and 11 as the tenant. The tenancy rights had not been put an end to either by surrender or byresumption. Therefore, it shall be deemed to have been continued.

The first appellant was in a position to exercise influence over the members of the Tribunal as well as theother officials since he was a prominent leader in Congress-I Party as pioneering for the Chief Minister-ship.Only his close followers and henchmen were appointed as members of the Tribunal. Therefore the membersowe their appointments to him and at his pleasure. They want to keep him in good humour by acting in




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accordance with his instructions as otherwise they would incur his displeasure. Sri Veerappa who was one of the members of the Tribunal and who was instrumental in passing the orders in respect of Sy.No. 114,purchased the very land on 4-5-1379 shortly after passing the impugned order. Thereafter in his turn he sellsthe same on 8-2-1980 to the first appellant. This shows the influence exercised by the first appellant. It cannotbe a matter of mere coincidence that the sister's sons of the first appellant came to purchase portions of Sy.Nos. 114 and 115. The purchases are not only benami but also to defeat the provisions of the Act. Hencethe impugned orders of the Tribunal were not bona fide but were passed without applying the mind to aidpersonal acquisition of land by the first appellant.

Even if the lands vest in the original owners that would be in excess of their holding and on that ground itwould be available for distribution to them (R-1 to R-5). If only the Tribunal had applied its mind properly itwould not have resulted in passing the impugned orders.

It is on these grounds that respondents 1 to 5 prayed for quashing of the two orders of the Tribunal and for adirection to forfeit the lands in question and to distribute the same in accordance with Section 77 of the Act.

4. For reasons best known to them, none of the respondents in the Writ Petition (the appellants and R-6 toR-11 in these appeals), filed any statement of objections to the Writ Petition refuting the allegations made

therein. The Writ Petition came up before Justice Bopanna. Three interlocutory applications were filed viz.,I.A.No. I for impleading certain persons, I.A.No. II for raising additional grounds, and I.A.No. III fortransposing respondent-1 (State) as the petitioner in the Writ Petition. To the allegations made in I.A.No. I,the first appellant filed a statement of objections.

At the time of final hearing of the Writ Petition, it appears from the records, a prayer was made for grant of time to file counter, but that was rejected by the learned Judge. It also appears that the Writ Petition wassought to be taken put of the file of the learned Judge by filing a transfer application, which lead to certaincontempt proceedings.

On merits, the learned Judge, on the question of locus standi of respondents 1 to 5 to file Writ Petition, relying

upon the decision in PURANDHAR LAGAMA INGALE v. LAND TRIBUNAL, RAIBAG 1978(2) KLJ 339,which came to be followed in SAKRAPPA v. STATE OF KARNATAKA held that a duty had been cast onthe Tribunal to determine whether the lands stood vested in the State Government if the lands were tenantedimmediately prior to 1-3-1974. Should the lands vest in the State Government as on 1-3-1974, Section 77 of the Act would enable the State Government to distribute the land to the landless persons. Therefore, it is futileto contend that the Writ Petitioners have no locus standi.

The learned Judge held that in so far as respondents 8 and 9 before him (R-10 and R-11 before us) hadcategorically stated earlier that they were the tenants of the lands in question through their father since 30years, the Tribunal should have ascertained from them whether they made that statement voluntarily. Theresumption application dated 23-9-1966 had come into existence at an undisputed point of time long beforethe impugned orders, and in that application the name of the father of respondents 8 and 9 i.e., MagurParasappa is shown as tenant. These material documents should have been considered by the Tribunalnotwithstanding the fact that respondents 8 and 9 before him for reasons best known to themselves gave upthe plea of tenancy. The proceedings of the Tribunal disclosed shocking state of affairs in that they were thesubject matter of confidential enquiry by the Government in the year 1981, and concerning this the DeputyCommissioner, Shimoga by his letter dated 1-5-1981 had reported to the Revenue Secretary, but in spite of thesame no further action was taken. But for this public interest litigation the cases of abuse of power would havegone unnoticed.

On these findings, the learned Judge quashed the orders of the Tribunal and remitted the matter to theTribunal for a fresh disposal after issuing notice to the State Government and in the light of the decision of this Court in MUNISWAMY v. LAND TRIBUNAL, ANEKAL, 1980(2) KLJ 239.




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Thus, these Writ Appeals.

5. Sri P.P. Muthanna, learned Counsel for the appellants, contends as follows:

Respondents 1 to 5 have no locus standi to mainta in the Writ Petition as they are not beneficiaries underSection 77 of the Act. It is not stated in the Writ Petition as to how public interest is advanced. On thecontrary by stating that the petitioners are agricultural labourers or poor agriculturists they seek to obtain forthemselves the benefit of Section 77 of the Act. Therefore, in the garb of public interest litigation what issought to be achieved is nothing more than personal interest. This certainly is not the scope of public interestlitigation. Then again there is unwarranted presumption that surplus lands are available for distribution underSection 77. It is not even the case of the petitioners that they have made applications under Section 77 in theprescribed form and they could lay a claim to those surplus lands. Without making any effort in that direction,on the assumption that the orders of the Tribunal are bad and on the further assumption that the lands wouldbe available and on yet other assumption that they would be the beneficiaries under Section 77 merely on aspeculative basis, the Writ Petition has come to be preferred. The case rests on the doctrine of doublepossibility. This Court should not encourage such imaginary claims. From this point of view, the WritPetitioners have absolutely no locus standi at all. The learned single Judge was not right in relying on thedecision in 1978-2 Kar.L.J. 339 as that case proceeded on a wrong assumption as though the Tribunal was

entrusted with the duty of distribution of surplus land under Section 77, and therefore that is not correct inlaw. It was that reasoning which persuaded the learned Judge to conclude on the question of locus standi.Once that reasoning falls to the ground, the locus standi also cannot remain.

In support of his contention that the Writ Petitioners have no locus standi to maintain the Writ Petition, thelearned Counsel relied on (1) MAGANBAI v. UNION OF INDIA, AIR 1983 SC 783; (2) KALVAN MAL v.STATE, (3) NAGINDER SINGH v. PUNJAB UNIVERSITY,

(4) S.P. GUPTA AND ORS. v. PRESIDENT OF INDIA AND ORS., (5) D. RUDRAIAH v. CHANCELLOR,U.A.S.,

BANGALORE, AIR 1971 Mysore 84, Paras 105 & 106 and (6) VENKATESWARA RAO v. GOVT. OFA.P., AIR 1986 SC 828.

The second submission of the learned Counsel is that the order of the Tribunal is one inter parties withreference to grant of occupancy rights to the tenants. The tenants had made statements that they were notcultivating the lands in question; on the contrary they stated that they were cultivating some other surveynumber. This statement is in accord with the entries in the Record of Rights for the year 1965-66 or at any ratefrom 1966-67 onwards indicating ownership cultivation. If that be so, where the Tribunal rejected theapplications on merits and those orders have become final, how could the Writ Petitioners challenge thesame? The parties aggrieved by those orders did not choose to challenge, nor did they think it worthwhile toquestion the correctness of those orders. In other words, when these orders have become final and conclusive,no one can question the same. In such an event, the High Court cannot interfere as laid down inBABHUTMAL v. LAXMIBAI, and GUJARAT STEEL TUBES LTD. v. ITS MAZDOOR SANGHA, . Theresumption applications came to be filed only with reference to Sy.No. 114; nerely because those applicationswere filed in 1966 it does not mean that entries in the Record of Rights for 1966-67 onwards have to berejected. No doubt in the interlocutory application filed before the Tribunal for grant of injunction underSection 48C a statement was made by the tenant that till the death of his father he was cultivating the land; butlater on, if the tenants chose to give up their cases, who are the petitioners to contend to the contrary? Theycannot urge that they are beneficiaries under Section 77, and they are estopped from contending so. This is nota public interest litigation in view of the decisions in BIHAR LEGAL SUPPORT SOCIETY, NEW DELHI v.CHIEF JUSTICE OF INDIA, , UPENDRA BAXI v. STATE OF U.P.; ,




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STATE OF H.P. v. STUDENT PARENTS MEDICAL COLLEGE, ; and S.P. Gupta v. President of India? Inany event, in so far as the orders of the Tribunal had become final and were binding between the parties, it isnot open to the Writ Petitioners to attack those orders collaterally. If they are permitted to do so, the doctrineof finality attached to a Court proceeding will cease. If they are so permitted, all the proceedings - whetherthey be of the Tribunal or of the Courts - would be rendered nugatory at the instance of a third party and thattoo on an imaginary claim.

It is settled law that no Judgment can be attacked collaterally. In the instant case the attack is as though thefirst appellant had influenced the members of the Land Tribunal; it was he who was responsible for theirappointment; therefore they were obliged to him and consequently they passed orders to oblige him topurchase the lands in question. The details as to whether these members of the Tribunal were ever appointedby the first appellant, are themselves not furnished. What was the nature of influence that was brought to bearby the first appellant on these members again is not explained. The members of the Tribunal themselves arenot impleaded. They alone would be the proper persons to answer this allegation of bias or influence. Bymerely impleading the Tribunal which is represented by its Secretary, this allegation of bias or influence couldnot be answered. The nexus between the tenants giving up their claims and the influence of the first appellanton the members of the Tribunal is not established. The Writ Petitioners are merely indulging in surmises.

The learned Judge was not correct in going into the merits of the matter as though he was exercising anappellate jurisdiction over the orders of the Tribunal. The correctness or otherwise of the orders of theTribunal was not before him. The specific case was that the orders were brought about by the influence of thefirst appellant. Only when such influence is established the orders would become vitiated and not on accountof being less meritorious. The allegations against the first appellant are bald in nature and therefore they couldnot be countered. Even if they are not countered, it would not make the position any the less bad for the firstappellant, as laid down in HEM LALL BHANDARI v. STATE OF SIKKIM, .

Though ti me was asked for preferring counter statement to refute the allegations made in the Writ Petition,that was denied. Assuming without admitting that the Writ Petitioners' allegations were true, how could thisCourt go into the same under Article 226 of the Constitution? This important aspect of the matter had not been

considered at all. The learned Judge assumed from certain events which had followed after the rejection of Form No. 7 applications viz., purchases by appellants 1 to 3, that the orders of the Tribunal were bad in law. Itappears to be a case of reasoning backwards. Then again the order of remand is made as though nothingconsequential had happened. After the rejection of those applications, the rights of third parties have come tointervene. There are sale deeds of later dates than the rejection of the applications in Form No. 7. They cannotbe interfered with under Article 226, more so, when after the purchase the appellants have enormouslyimproved the lands. This Court has no power to set aside the sale transactions validly entered into between theparties, under Article 226. They cannot be treated lightly because when the sales came to be effected therewas no impediment, legal or otherwise, to purchase the properties. The fact that one of the members of theTribunal viz., Veerappa came to purchase the land on 4-5-1979 long after the applications in Form No. 7 wererejected on 16-2-1979, cannot lead to the inference that the decision was rendered in order to enable the saidVeerappa to purchase. The position will be all the more so, in the absence of anything to indicate that anyprior interest had been acquired by means of an Agreement of Sale or in any other manner. No material onrecord had ever been produced.

As far as the first appellant is concerned, he purchases practically after one year viz., on 8-2-1980 a moiety of Sy.No. 114. As regards Sy.No. 115 they came to be purchased not even directly but from third partypurchasers. The Writ Petitioners would contend that the purchases by appellants 2 and 3 are benami. Such aplea is not open to them to raise because the law relating to benami has been held to be retroactive inMITHILESH KUMARI v. PREM BIHARI KHARE, . Even otherwise, the mere allegation of benami cannotstand proved by itself. All the ingredients of benami will have to be established by evidence. There isabsolutely no evidence. Further, the allegation of benami if could be decided, it could only be done through acivil suit on positive evidence. By no stretch it could be contended that it could be decided under Article 226




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of the Constitution. If these transactions are altogether ignored and orders of remit are passed they areunsupportable in law. By such remittal, the rights of the third parties are seriously jeopardised. As a matter of fact, this aspect of the matter had completely escaped the attention of the learned single Judge.

Lastly it is submitted that the affidavits sworn to in this case do not conform to the provisions of Order 19Rule 3 of the Code of Civil Procedure, nor again to Rule 3 of the Writ Proceedings Rules read with Form No.2. One is at a loss to understand as to what are the paragraphs which are based on personal knowledge andwhat are the other paragraphs based on information. Affidavits of this kind should not be encouraged, is thedictum laid down in STATE OF BOMBAY v. PURUSHOTHAM JOG, . That clearly postulates compliancewith Order 19 Rule 3 of the Code of Civil Procedure. This is all the more so when allegations bordering onmala fides are made against the first appellant. Specific allegations in this regard will have to be made andproved as laid down in SUKHWINDER PAL BIRAN KUMAR v. STATE OF PUNJAB, and BARIUMCHEMICALS LTD. v. COMPANY LAW BOARD,

.

6. Sri Rangavithalachar, learned Counsel appearing for Respondent-8, adopts the arguments of Sri Muthannaand adds that under Section 48A(2) public notice has to be issued while adjudicating upon the grant of

occupancy rights. Form No. 8 prescribed under the said Section states all persons interested. Therefore, if really respondents 1 to 5 were interested in opposing the grant and claiming benefit under Section 77, nothingprevented them from doing so. Not having attempted to oppose, it is not possible for them to agitate. Section77 comes in at the very late stage; First and foremost, surplus land must be available. Even then nothing isshown as to how they are entitled in accordance with Rule 26B of the Rules read with Form 11B. It is nottheir case that they had made applications. Not even the possibility of entitlement is pleaded. Therefore, theyare merely indulging in imaginary claims. Concerning the locus standi, the learned Counsel, citesRUDRAIAH RAJU v. STATE OF KARNATAKA, particularly the passage at page 627.

7. Mr. Jayakumar S. Path, learned Counsel for Respondents 1 to 5, in answer to the arguments of the learnedCounsel for the appellants, submits as follows:-

Respondents 10 and 11, the tenants who preferred Form No. 7 applications, did not file any statement of objections in the Writ Petition. Respondents 8 and 9, the owners, also did not file the counter. Likewise, theappellants too did not file any counter in the Writ Petition. Where, therefore, allegations are required to be metand if those allegations are not refuted, the Court is entitled to draw a presumption that those allegations standproved. Respondents 1 to 5 came forward with the Writ Petition on two grounds: (i) the availability of landsunder Section 77 for distribution, and (ii) the first appellant was an influential member of the Tribunal. Thefirst appellant later became a Minister. Being a Minister he was in a position to appoint members. Thisauthority was used against the tenants, respondents 10 and 11, and utilising his position their applicationswere got rejected. A person entrusted with a power to implement the Act, has used the very machinery for hispersonal profit. That amounts to subversion of law. Therefore, any citizen of the taluk has a standing to agitatethe same. Prior to filing the Writ Petition, the matter was reported to the Government. Though after an enquirya report was submitted, no action was taken. In such an event, after gathering all these particulars, if respondents 1 to 5 approached this Court in order that the orders of the Tribunal obtained are so designed as tofacilitate the purchase of the lands by the first appellant, the Court cannot ignore this and drive away thepetitioners stating that they have no locus standi. In 1978-2 Kar.L.J. 339) the grant of occupancy rights wasobjected and even in such a case the locus standi was upheld. Similarly in Rudraiah Raju v. State of Karnataka(at page 618) the locus standi was upheld where there was a public injury. After all, the power under Article226 of the Constitution is to be exercised for correcting the Tribunals. In this case, it is all the more so becauseof the influence of the first appellant over the members of the Tribunal. As a matter of fact, in para-7 of theWrit Petition at paras 7a and 7b specific allegations have been made in this regard. For reasons best known tothe first appellant, they were not controverted by filing a statement of objections. Now to say that the counterfiled to I.A.No. 1 would enure to the benefit of the Writ Petition is only an attempt to salvage something.




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It is incorrect to state that respondents 1 to 5 are not beneficiaries under Section 77 of the Act. It is open tothem to claim as beneficiaries. To make one unit they will fall under Item No. 6 of Form No. 11B.

As regards Record of Rights, the entries upto 1966 show the name of the tenant. The presumption in law is,once the lands were tenanted, i t continues to be so unless there has been a resumption by the landlord orsurrender by the tenants. That has not been established. It is somewhat surprising that the tenants who cameforward with Form No. 7 Applications and who were hotly contesting and sought an order of injunction andwho gave specific statement about their cultivation and succeeded in obtaining an order of appointment of receiver, would suddenly go back on their stand and give up their claims for occupancy rights. It is thispeculiarity which impressed the learned single Judge. This coupled with the fact that all these properties aresold in quick succession and ultimately the first appellant and the other two appellants becoming owners of the property, cannot but lead to any conclusion other than the one that it was due to the influence of the firstappellant. Strangely, the statement of Respondent-11 in relation to Sy.No. 114 is not available. Only thestatement of Respondent-10 dated 16-2-1979 is available. There are three orders of the Tribunal. One of themembers of the Tribunal himself goes to purchase the property. After purchase, the entire extent of 40 acresand odd is under cultivation as one block. All these could not happen unless the first appellant was schemingto get at these properties. The way in which the Tribunal dealt with the matter in a perfunctory manner, andthe subsequent events of purchase, clearly points out as though it was all designed to enable the first appellant

to purchase the property. It is a clear case of abuse of power. From this point of view it cannot be contendedthat the orders of the Tribunal have become final and binding and therefore they could not be interfered with.Consequently, none of the decisions cited by the learned Counsel for the appellants with regard to the finalityof Judgments will be of any use to the appellants.

Section 48A of the Act contemplates notices of hearing. That has to be read along with Rule 19(2) of theKarnataka Land Reforms Rules (for short 'the Rules'). Two kinds of notices are talked of under Forms 8 and 9.These notices are only for the persons interested to project their claims in relation to occupancy rights.Certainly a claim of the nature as contended by the Writ Petitioners under Section 77 cannot come within thepurview of the notices so as to require them to enter appearance at that stage and oppose. This is not a case of collateral attack. Fraud unravels everything. Where, therefore, fraud on power had been exercised this Court is

not powerless under Article 226 of the Constitution to interfere as laid down in EXPRESS NEWSPAPERSPVT. LTD. v. UNION OF INDIA, . When allegations against the first appellant were made that he hasinfluenced the members of the Tribunal, he ought to have countered them by filing a statement of objection. Itwas such statement of objection that was insisted in PARTAP SINGH v. STATE OF PUNJAB, .

It cannot be contended that there has been any delay in approaching this Court because the Writ Petitionershad to gather materials. The fraud came to be known only after the appellants came to purchase theseproperties thereby depriving the petitioners from obtaining the statutory benefit under Section 77. Nor againcould it be urged that there had been any acquiescence to disentitle them to approach this Court.

The learned single Judge has merely remitted the matter for fresh consideration. If the appellants are sure of their claims nothing would be easier for them than to put forth their claims by supporting evidence and get thematter agitated. Once the order rejecting the registration of occupancy rights is set aside as has been done bythe learned single Judge, the further transaction including sales will be of no avail. If the lands in question arefound to be tenanted lands, the vesting will take place only in favour of the State Government under Section44. The law thereafter renders the sales invalid entitling the present owners viz., the appellants tocompensation. From this point of view, there is no need to adjudicate upon the validity of the sales. It is notthe contention of respondents 1 to 5 that under Article 226 such a validity could be gone into. The citationsreferred by the learned Counsel for the appellants in this behalf are not relevant. This is a public interestlitigation because while saying that respondents 1 to 5 are poor agriculturists or landless labourers they areonly projecting their claims as beneficiaries under Section 77. They are benefited as members belonging toscheduled caste. As a matter of fact, the scheduled castes, as a class, would be benefited.




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With regard to the nature of the affidavits filed, the applicability of either Order 19 Rule 3 CPC or Rule 3 of the Writ Proceedings Rules ought to have been taken up at the earliest, not after the Court had entertained theWrit Petition and adjudicated upon those allegations.

8. Having regard to the above arguments, we pose the following questions for our determination:-

(1) Whether the Writ Petitioners have locus standi to maintain the Writ Petition?

(2) Whether the orders of the Land Tribunal were brought about by the influence of the first appellant?

(3) What is the effect of non-impleading of the members of the Land Tribunal?

(4) Whether the Writ Petitioners are guilty of laches or acquiescence?

(5) What is the effect of the affidavit not conforming to Order 19 Rule 3 CPC or Rule 3 of the WritProceedings Rules?

(6) What is the effect of the respondents in the Writ Petition not filing a counter?

(7) Whether the orders of the Tribunal having become final, could be attacked collaterally under Article 226of the Constitution?

(8) Whether the order of remit is sustainable?

9. The facts of the case do not admit of much controversy. Lands bearing Sy.Nos. 114 and 115 measuring 20acres 26 guntas and 21 acres 21 guntas respectively situate at Lakkavalli Village, Sorab Taluk, originallybelonged to respondents 8 and 9. Respondents 10 and 11, claiming occupancy rights in respect of these landsunder chp. provisions of the Act, preferred their applications in Form No. 7 (Annexures B and C), stating thatthese lands were leased to their father Parasappa who had been cultivating them for over a long period.

Pending adjudication of these applications an interim application was preferred before the Tribunal for grantof in jucnt ion. In support of tha t appl ica t ion, respondent-10 and two other wi tnesses v iz . ,Channabasappagowda and Shivallngappagowda were examined. By an order of the Tribunal dated15-10-1977 (Annexure-G) a Receiver was appointed.

Form No. 7 applications came up for final disposal on 16-2-1979. Respondent-11 Basappa stated before theTribunal that he was not cultivating either of the two lands, but was cultivating Sy.No. 42. Hence by an orderof the same day 16-2-1979 (Annexure-H) his application was rejected. Thereafter on the same day, theapplication of Respondent-10 Lelappa was taken up. He also stated that he did not cultivate Sy.No. 114 at anytime, and therefore his application in relation to Sy.No. 114 was rejected, and the case was adjourned inrespect of Sy.No. 115. On 20-12-1980 the Tribunal considered the claim of respondent-10 in respect of Sy.No. 115; he stated before the Tribunal that he was not cultivating that land, and therefore his application inrespect of that land also was rejected by an order Annexure-J.

Thus by these orders of the Tribunal, the applications in Form No-7 filed by respondents 10 and 11 came to berejected. The orders had become final and become binding inter parties.

Respondents 1 to 5 attacked these orders by filing Writ Petition Nos. 12197 and 12198/1981 as a Public CauseLitigation, claiming benefits under Section 77 of the Act. The gravamen of attack against these orders is thatthe first appellant (Respondent-5 in the Writ Petition) as an M.L.A. of Sorab Constituency was veryinfluential. He was a member of the Land Tribunal and subsequently he became a Minister. He was in aposition to appoint the members of the Tribunal. The applications in Form No. 7 filed by respondents 10 and11 the tenants, had been rejected under the influence and instructions of the first appellant in order to gain




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personal profit. Using his position he has prevailed over the members of the Tribunal as well as the tenants.The later purchases including the purchase by one Veerappa who was a member of the Tribunal soon after thedismissal of Form No. 7 applications of tenants, clearly establish that these orders of the Tribunal had come tobe passed with ulterior motives. The first appellant is one of the persons entrusted with the work of implementing the Act intended for the benefit of the tillers of the soil and the down-trodden agriculturallabourers. Instead he had used the very Act for his personal benefit by taking advantage of his position. Hehimself has purchased a portion of the land. In addition, the purchases have come to be effected in the namesof his sister's sons benami. This was with a view to escape from the ceiling limit.

Even assuming that the statement of the tenants that they had not been cultivating the lands In question wastrue, then, the lands being held by tenants would vest in the State Government. Respondents 10 and 11 notbeing entitled to occupancy rights, the matter will have to be disposed of in accordance with the provisions of Section 45(3) of the Act. Thus the lands in question ought to have been made available for distribution tothem (Writ Petitioners) and the like persons under Section 77 of the Act.

In fact, Mr. Jayakumar S. Patil, learned Counsel, urges while addressing arguments on locus standi, that thecase of the Writ Petitioners is rested on two grounds viz., (i) the benefits likely to accrue under Section 77 inthe event of the orders of the Tribunal being set aside, and (ii) the first appellant using his influence got orders

passed by his henchmen and had seen to the rejection of the applications filed in Form No. 7 by respondents10 and 11. A person with the power to implement the Act, has used the very machinery for personal profit.This amounts to subversion of law. Therefore, any citizen of the taluk has a standing to agitate the same, allthe more so because, prior to filing the Writ Petition the matter was reported to the Government and on anenquiry a report was submitted, but no further action was taken.

The important question that arises therefore before us is whether on these allegations a public cause litigationcould be maintained and whether the allegations of influence by the first appellant have been established?

It is from this perspective we consider the case will have to be examined. We say so because as we havepointed out the orders of the Tribunal dated 16-2-1979 and 20-12-1980 have become final and binding as

between the parties concerned.

Here are persons (Writ Petitioners) who question on the ground that the Judgment had been procured byinfluence in order to gain personal profit which stood established by the subsequent purchases by theappellants.

The Karnataka Land Reforms Act is an Act which wants to usher in a uniform law relating to land reforms. Itis the law relating to (i) agrarian relations, (ii) conferment of ownership on tenants, (iii) ceiling on landholding, and (iv) allied matters. Section 77 is one of the important Sections of the Act. That speaks as to thevesting of land in the State Government. We can extract the same:-

"44. VESTING OF LAND IN THE STATE GOVERNMENT:

(1) All lands held by or in the possession of tenants including tenants against whom a decree or order foreviction or a certification for resumption is made or issued immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under Section 5, shall, with effecton and from the said date, stand transferred to and vest in the State Government.

(2) Notwithstanding anything in any decree or order of or certificate issued by any Court or authority directingor specifying the lands which may be resumed or in any contract, grant or other instrument or in any other lawfor the time being in force, with effect on and from the date of vesting and save as otherwise expresslyprovided in this Act, the following consequences shall ensue, namely:-




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(a) all rights, title and interest vesting in the owners of such lands and other persons interested in such landsshall cease and be vested absolutely in the State Government free from all encumbrances,

(b) all amounts in respect of such lands which become due on or after the date of vesting shall be payable tothe State Government and not to the land owner, landlord or any other person and any payment, made incontravention of this clause shall not be valid;

(c) all arrears of land revenue, cesses, water rate or other dues remaining lawfully due on the date of vesting inrespect of such lands shall after such date continue to be recoverable from the land owner, landlord or otherperson by whom they were payable and may, without prejudice to any other mode of recovery, be realised bythe deduction of the amount of such arrears from the amount payable to any person under this Chapter;

(d) no such lands shall be liable to attachment in execution of any decree or other process of any Court andany attachment existing on the date of vesting and any order for attachment passed before such date in respectof such lands shall cease to be in force;

(e) the State Government may, after removing any obstruction which may be offered forthwith takepossession of such lands;

Provided that the State Government shall not dispossess any person of any land in respect of which itconsiders, after such enquiry as may be prescribed, that he is PRIMA FACIE entitled to be registered as anoccupant under this Chapter;

(f) the land-owner, landlord and every person interested in the land whose rights have vested in the StateGovernment under Clause (a), shall be entitled only to receive the amount from the State Government asprovided in this Chapter;

(g) permanent tenants, protected tenants and other tenants holding such lands shall, as against the StateGovernment, be entitled only to such rights or privileges and shall be subject to such conditions as are

provided by or under this Act; and any other rights and privileges which may have accrued to them in suchlands before the date of vesting against the landlord or other person shall cease and determine and shall not beenforceable against the State Government."

The next Section is Section 45 under which the tenants are entitled to be registered as occupants of land oncertain conditions. The material date of holding is important i.e., 1-3-1974. Chapter-IV containing Sections 63to 79 prescribes ceiling on land holdings. Section 77 deals with the disposal of surplus land. A scheme hasbeen envisaged under this Section that 50 per cent of the lands shall be reserved for distribution amongpersons belonging to the scheduled castes and scheduled tribes, however, subject to such restrictions andconditions as may be prescribed. The power of disposal is to be exercised by (a) Deputy Commissioner, or (b)any other Officer authorised by the State Government in this behalf. As to who would be entitled to obtainthese lands, is catalogued under that Section. When the Section talks of landless persons, we are to turn ourattention to Rule 26AA of the Rules which reads as follows:-

"26-AA. GRANT OF SURPLUS LAND:

(1) Out of the surplus land vesting in the State Government as specified in Section 77, and remaining afterreservation for any public purpose under Sub-section (3) of Section 77, fifty per cent shall be reserved forgrant to persons belonging to scheduled castes and scheduled tribes. The land so reserved shall be distributedto the following categories to the extent noted against each in the following order of preference:-

1. Dispossessed tenants who are not registered as occupants. Not exceeding one unit each




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2. Displaced tenants having no land. - do -

3. Landless agricultural labourers. - do -

4. Landless persons and ex-military personnel whose gross annual income does not exceed Rs. 2,000/-. - do -

5. Released bonded labourers - do -

6. Other persons residing in villages of the same Panchayat and whose gross annual income does not exceedRs. 2,000/-. Not more than the extent required to make up one unit

Provided that if there are no applications falling under Item 6, belonging to Scheduled Castes and ScheduledTribes residing in villages of the same Panchayat, the land available may be granted to applicants belonging toScheduled Castes and Scheduled Tribes but residing in villages of neighbouring Panchayats.

(2) The remaining fifty percent of the land mentioned in sub-rule (I) shall be distributed to the followingcategories of applicants to the extent noted against each in the following order of preference:

1. Dispossessed tenants who are not registered as occupants. Not exceeding one unit each

2. Displaced tenants having no land - do -

3. Landless agricultural labourers. - do -

4. Landless persons and Ex-Military Personnel whose gross annual income does not exceed Rs. 2,000/-. - do -

5. Released bonded labourers. - do -

6. Other persons residing in villages of the same Panchayat and whose gross annual income does not exceed

Rs. 2,000/-. Not more than the extent required to make up one unit.

(3) The Consultative Committee constituted for the Taluk by the Government under Rule 24 of the KarnatakaLand Grant Rules 1969 shall be consulted in respect of all applications for grant of surplus land in the Taluk concerned and its recommendations shall be given due consideration by the authority authorised to grant theland under these Rules.

Provided that no such consultation shall be necessary where no consultative committee has been soconstituted for the taluk."

The procedure for grant of land under Section 77 is delineated under Rule 268 of the Rules and Form 11B. Itis in this factual and legal background, we will now proceed to examine the first of the questions posed fordetermination.

10. QUESTION No. 1:

On the question of locus standi, we will refer to some of the important decisions. In Venkateswara Rao v.Govt. of A.P. in dealing with the question as to who could file a Writ Petition under Article 226 of theConstitution, it was held in paragraph-8 as follows:

"(8), The first question is whether the appellant had locus standi to file a petition in the High Court underArticle 226 of the Constitution. This Court in Calcutta Gas Co. (Proprietory) Ltd. v. State of West Bengal,(1962) Supp. 3 SCR 1 at page 6: (AIR 1962 SC 1041 at page 1047), dealing with the question of locus standi




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of the appellant in that case to file a petition under Article 226 of the Constitution in the High Court,observed:

"Article 226 confers a very wide power on the High Court to issue directions and Writs of the naturementioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is,therefore, clear that persons other than those claiming fundamental right can also approach the Court seekinga relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder;but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforcea legal right...The right that can be enforced under Article 226 also shall ordinarily be the personal orindividual right of the petitioner himself, though in the case of some of the Writs like habeas corpus or quowarranto this rule may have to be relaxed or modified."

Has the appellant a right to file the petition out of which the present appeal has arisen? The appellant is thePresident of the Panchayat Samithi of Dharmajigudem. The villagers of Dharmajigudem formed a committeewith the appellant as President for the purpose of collecting contributions from the villagers for setting up thePrimary Health Centre. The said committee collected Rs. 10,000 and deposited the same with the Block Development Officer. The appellant represented the village in all its dealings with the Block DevelopmentCommittee and the Panchayat Samithi in the matter of the location of the Primary Health Centre at

Dharmajigudem. His conduct, the acquiescence on the part of the other members of the committee, and thetreatment meted out to him by the authorities concerned support the inference that he was authorised to act onbehalf of the committee. The appellant was, therefore, a representative of the committee which was in law thetrustees of the amounts collected by it from the villagers for a public purpose. We have, therefore, nohesitation to hold that the appellant had the right to maintain the application under Article 226 of theConstitution. This Court held in the decision cited supra that 'ordinarily' the petitioner who seeks to file anapplication under Article 226 of the Constitution should be one who has a personal or individual right in thesubject matter of the petition. A personal right need not be in respect of a proprietary interest: it can also relateto an interest of a trustee. That apart, in exceptional cases as the expression 'ordinarily' indicates, a person whohas been prejudicially affected by an act or omission of an authority can file a Writ even though he has noproprietary or even fiduciary interest in the subject matter thereof. The appellant has certainly been prejudiced

by the said order. The petition under Article 226 of the Constitution at his instance is, therefore,maintainable."

Therefore, it has to be examined whether any personal or individual right of respondents 1 to 5 is affected. Or,even to put it broadly, whether they had been prejudicially affected by an act or omission of the LandTribunal. It is not denied before us that the Tribunal did have jurisdiction to pass the orders. It is not evenmade out before us that the Tribunal did not have competence to decide the matter. The claim of respondents1 to 5 that had the applications been not dismissed the lands would have vested in the State under Section 44and consequently would be available for distribution under Section 77, is rather speculative in character.There is not even a pleading as to how these surplus lands would be available. Nothing is stated as to howrespondents 1 to 5 would be entitled in accordance with Rule 26B of the Rules read with Form 11B. Thepossibility of entitlement is not pleaded. It is all assumed for the purposes of the case. Then again, unless anduntil a specific right based on a statute is infringed, it cannot be contended that the order of the Tribunal iswrong on merits. Concerning those merits, these respondents cannot have any say whatever because, the orderof the Tribunal has become final and conclusive between the parties. In this connection, we may usefully referto the decision in J. FERNANDES & CO. v. DEPUTY CHIEF CONTROLLER I & E., . The Head-note (A)reads as follows:

"A petition under Article 32 will not be competent to challenge any erroneous decision of an authority. Awrong application of law would not amount to a violation of fundamental right. If the provisions of law aregood and the orders passed are within the jurisdiction of the authorities there is no infraction of fundamentalright if the authorities are right or wrong on facts. Hence no petition under Article 32 will lie on the groundthat Licensing Authorities misapplied or wrongly applied the Imports and Exports (Control) Act, 1947."




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that the Writ Petitions at the instance of persons for whose benefit Section 77 of the Act has been incorporatedby the Legislature are maintainable and the preliminary objection raised on behalf of the respondents on theground that the petitioners have no LOCUS STANDI to present these Writ Petitions has to be rejected."

(Emphasis supplied)

With respect, we are unable to subscribe to the proposition of law as laid down by the learned Judge that theLand Tribunal is entrusted with the duty of distributing the excess lands. Under Section 77 of the Act, thepower of distribution is to be exercised by the Deputy Commissioner or any other officer authorised by theState Government in this behalf. Thus, on a wrong premise the learned Judge proceeded to hold that theTribunal while granting occupancy rights had prevented the petitioners from enjoying the benefit of Section77 as otherwise the lands would continue to vest in the owners thereby rendering them to be surplus.Therefore, it was held that the order of the Tribunal if passed without holding an enquiry under Section48A(4) read with Section 112B of the Act and Rules 17 and 19 of the Rules, would be had. The same wasdone deliberately on account of collateral considerations viz., personal interest of respondents 3 and 4 thereinwho passed the impugned orders which came to be set aside. It was also held that those orders wereperfunctory and stereo-typed.

The case on hand differs vitally fn that what respondents 1 to 5 are contending is that the tenants should havebeen granted occupancy, rights. If that were to be so, we do not know how Section 77 would come into play.If really the Tribunal is not entrusted with the duty of distribution of excess/surplus lands there cannot be anydereliction on this account. The fact that respondents 1 to 5 belong to Scheduled Castes will not, by itself,enable them to claim the benefit of Section 77 of the Act. We have already seen the corresponding Rule viz.Rule 26AA and the satisfaction of the requirements prescribed in Form 11B. Therefore, the reliance placed bythe learned Judge on the said decision, without noting these important aspects, cannot be said to be correct.

11. The next case that is referred by the learned single Judge is Rudraiah Raju's case. In paragraphs 20 to 22of the said Decision, it is stated as follows:-

"20. (i) It is however necessary to observe that in order that petition in public interest is entertained against analleged unlawful or MALA FIDE Governmental action, the magnitude of the injury to public interest must besuch as would fall for interference in a Public Interest Petition. It is not any and every illegal action whichcould be permitted to be challenged in Public Interest Petition. For instance, if an appointment to a Class-IVpost or Class-III post or a licence to be some petty business is granted to one rejecting the claim of another inviolation of law, certainly it would not be a fit matter for interference in Public Interest Petition. Such casescould be brought before the Court only by unsuccessful applicants. As observed by the Supreme Court in thecases cited supra, there would be infinite varieties of situations and it is for the Courts to decide in a givencase as to whether it merits interference at the hands of the Court in a Public Interest Petition.

(ii) Similarly, as observed by the Supreme Court at para 23 of the Judgment in S.P. Gupta's case and para 47of the Judgment in Fertilizer Corporation Kamagar Union's case, the Courts cannot interfere in matters of internal management of Government and make a roving inquiry as to what the Government should or shouldnot have done in respect of any matter. For instance, whether the Government adopts the policy of bottlingliquor or scraps it, if it had already introduced it, is a matter of policy and the Court cannot inquire into thepropriety of the decision. But if the Government takes a decision which is injurious to public health, as wascontended before the Kerala High Court that sachetting of arrack was injurious to the health of consumers, aPublic Interest Petition is maintainable. The decision of the Kerala High Court on a Public Interest Petitiondirecting the Government to re-examine its decision regarding sachetting of arrack on which the learnedCounsel for the State relied to show that its decision to give up sachetting of arrack was good, if injurious tothe public interest can be a subject matter of Public Interest Petition. However, if the Government takes apolicy decision to fix the selling rate of arrack very high either to ensure a greater income to itself or to makeit prohibitive for poorer section with the object of saving them from consuming arrack, it could not possibly




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be a matter for interference by the Courts, Similarly as pointed out by one of the learned Counsel for therespondents, a welfare measure like supply of free uniform and/or text books to school children at the cost of the exchequer is a matter of policy and the Court cannot inquire as to whether the decision is good or bad onthe ground it was an unnecessary expenditure from exchequer. Such matters, as held by Krishna Iyer, J., atparagraph 47 of the Judgment in Fertilizer Corporation Kamagar Union's case, are out of bounds for theCourts. What is within the jurisdiction of the Courts is clearly enunciated at the end of paragraph 47. Therelevant sentence reads:-

"The broad parameters of fairness in administration, bona fides in action and the fundamental rules of reasonable management of public business if breached will become justiciable."

The enunciation of the point as above and the enunciation of this aspect in paragraphs 18, 19 and 19A in S.P.Gupta's case gives clear guidelines to decide the question of locus standi of the petitioners in these petitions.

21. After giving our careful thought and consideration to the point urged for both the parties in the light of theratio of the Judgments of the Supreme Court, we are of the view that as the allegation in the petition is that inconferring the largess or privilege consisting of a business turnover of over 50 crores of rupees to respondents3 to 10 which enable them to earn huge profits, the Government had acted in flagrant violation of law,

arbitrarily, capriciously and mala fide, every citizen resident of this State has sufficient interest to approachthe High Court seeking nullification of such decision.

22. The Supreme Court has, in clearest terms, laid down that if a challenge to arbitrary or MALA FIDEadministrative action which seriously affects Rule of Law is disallowed, disrespect for law would be theconsequence which would strike a severe blow to Rule of Law and force the people to fight out the matter inthe streets. Therefore, citizens must be allowed to resort to a legal remedy in the Courts and should not beforced to go to the streets to resort to unconstitutional methods to express their protest against suchGovernmental decisions. Any such situation created by taking a narrow, pedantic view about locus standi,even in situations in which arbitrary or capricious or MALA FIDE exercise of power is alleged and the extentand gravity of such unlawful action is such as would make a mockery of Rule of Law, the consequence would

be disastrous in that it might mark the beginning of the end of the faith of the people in the Rule of Law.These are the weighty reasons which have persuaded us to hold that the petitioners have the locus standi toprosecute the petitions and we hold accordingly."

We will consider the question whether the orders of the Tribunal affect the Rule of Law, in the later part of theJudgment. What injury could respondents 1 to 5 be said to suffer on an imaginary claim for which not even afoundation has been laid in the Writ Petition? The grounds raised in the Writ Petition are self-contradictory.While in paragraph-9 it is stated that if Section 45(3) is applicable the lands will be available for distribution,what is urged in paragraph-11 is the right of the tenants to get occupancy rights. It is not even stated as to howrespondents 8 and 9 would become excess land holders. As to what was their original holding is not made out.If these lands are included whether it would exceed the ceiling limit of 54 Acres of D-Class land prescribedunder the Act, is not even stated. Therefore, except mentioning Section 77 as though it could be invoked as amatter of course, nothing is stated in support of the Writ Petition. Only when there is an entitlement, and if byreason of the order that entitlement is affected, respondents 1 to 5 could complain. They cannot assume thatSection sec would apply to instante; nor can they proceed on the assumption that they are the only personsbelonging to Scheduled Caste who would be entitled to the benefit of this Section for aught one knows theremay be others who belong to Scheduled Caste who can also stake their claims under Section sec. All this, onthe postulate that Section sec applies if at all. As we have pointed out, the application of Section sec itself isdoubtful. Therefore, on a mere possibility on the supposed application of Section sec and on the supposedright to get the benefit under Section sec disregardful of the claims of others, Writ Petition cannot be filed.Therefore, we are of the view that this is a case of possibility upon possibility, and the doctrine of doublepossibility would apply.




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It cannot be even urged that this is a Public Cause Litigation intended to benefit all the members belonging toScheduled Caste. On the contrary, what is urged in the Writ Petition is purely a private interest stating thatthey are all poor agriculturists or agricultural labourers owning small extent and on that basis project theirclaims under Section sec.

Of course, we would consider the second part of the case as urged by Mr. Jayakumar Patil about the influenceof the first appellant over the members of the Tribunal, later.

Thus we conclude on the first question that respondents 1 to 5 do not have locus standi to maintain the WritPetition.

12. QUESTIONS 2 & 3:

We will take up questions 2 and 3 together. Concerning these, the gravamen of the charge is that the firstappellant being entrusted with the duty of implementing the Karnataka Land Reforms Act, had abused hisposition and procured these orders by influencing the members of the Tribunal and thereafter purchased theproperties in his own name and in the names of 2nd and 3rd appellants who hold the same as benami. Much ismade of the fact that one of the members of the Tribunal viz., Veerappa purchased 10 acres 13 guntas in

Sy.No. 114. It should be remembered that this purchase was on 4-5-1979 whereas the application under FormNo. 7 in relation to Sy.No. 114 came to be disposed of long before that date viz. 16-2-1979. Therefore, thiscannot advance the case of respondents 1 to 5.

What was the nature of influence that was brought to bear by the first appellant on the members of theTribunal is not stated. Rightly, therefore, it is contended by Mr. Muthanna that the nexus between the tenantsgiving up their claims and the influence of the first appellant on the members of the Tribunal had not beenestablished at all. The entries in the Record of Rights clearly establish one thing. Whatever might have beenthe position prior to 1964-65, in 1965-66 the entries show the name of Magur Parasanna in respect of Sy.No.114, and in respect of Sy.No. 115 no entry is made. From 1966-67 onwards the entries show that the lands areunder cultivation by the owners, viz., respondents 8 and 9. If, therefore, the statement of the tenants viz.,

respondents 10 and 11 is consistent with these entries, how could the Court assume that the first appellant hadinfluenced the members. On a careful perusal of the Judgment of the learned single Judge, we are unable tosee any finding that the orders of the Tribunal came to be passed at the instance of the first appellant. Havingregard to the nature of the case pleaded by respondents 1 to 5 it was incumbent on the learned Judge to findso. Then only the order would become bad as biased. We may at once hasten to add that no case of mala fideshas been pleaded specifically. However, in the course of the arguments the learned Counsel for respondents 1to 5 would urge so. It is well settled law that a plea of mala fides must be specific in its character and cannotremain on vagueness or inference. On a reading of the Judgment of the learned Judge, we find that withoutrecording a finding about the influence brought to bear by the first appellant the learned Judge dealt with thematter as though he was exercising an appellate jurisdiction over the orders of the Land Tribunal. Inparagraph-7 he has observed as follows:-

"I have already referred to the proceedings before the Tribunal. No statement of Respondent 9 was recordedby the Tribunal. But his application was rejected on the alleged admission made by him. Though he has notchallenged the impugned order, the right of the Government to challenge that order and the right of petitionersas probable beneficiaries of the land in question cannot be questioned. Respondent 8 in his earlier statementhad categorically stated that he and Respondent 9 were the tenants of the land through their father since 30years. Therefore the Tribunal should have ascertained from them whether they made their alleged statementvoluntarily. Therefore, without going into other serious irregularities, the impugned orders are liable to bequashed."

We do not know how the right of the Government to challenge the order of the Tribunal which in fact wasnever challenged, would render the order of the Tribunal bad. Then again, it was not stated even indirectly




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that the statements of the tenants - respondents 10 and 11 - were not voluntary. In paragraph-9 of hisJudgment the learned Judge faults the Tribunal for not considering the material documents viz., theresumption application and the index of land for the years 1958-59 to 1964-65. Here again, it is a matterpertaining to the merits. While we are at this, we are obliged to state as pointed out already that the entries inthe Record of Rights from 1966-67 onwards are totally different. If the material date is 1-3-1974, how does itmatter if these documents have not been considered? Whatever it is, this aspect falls under the realm cf merits.

In paragraph-13 the learned Judge again dealing with the merits comes to the conclusion that where a tenantwithdraws his application there is the possibility of collusion and therefore notice ought to have been orderedto the State Government. Concerning this, he relies on Muniswamy's case. First and foremost, this is not acase of withdrawal of application. This is only statement in accordance with the entries found in the Record of Rights for the years 1966-67 and onwards upto 1-3-1974 and even beyond that. If really the State wasaggrieved nothing prevented the State from questioning the correctness of the order. The parties aggrieved donot find it worthwhile to come to this Court. More than above all this, we are clearly of the view that thenon-impleading of the members of the Tribunal who are supposed to have obliged the first appellant, is fatalto the Writ Petition. The allegations made in paragraph-12 of the Writ Petition are that the first appellant had ahold over the members of the Tribunal; they were the close followers and henchmen of the first appellant;they owe their appointment and continuance as members of the Tribunal to the pleasure of the first appellant;

therefore they wanted to keep him in good humour by acting in accordance with his instructions, not being ina position to incur his displeasure; thus to facilitate the first appellant to purchase the lands in question theorders have come to be passed. These allegations, we take it, are serious in nature. Whether the members of the Tribunal were subjected to influence or not, could be answered only by them. If what is pleaded byrespondents 1 to 5 is a bias, it is the subjective state of mind. In De Smith's Judicial Review of AdministrativeAct, Fourth Edition, page 262, it is said: "A 'real likelihood' of bias means at least a substantial possibility of bias. Again at page 263 it is stated:-

"Whether a real likelihood of bias existed to be "determined on the probabilities to be inferred from thecircumstances, not upon the basis of the impressions that might reasonably be left on the minds of the partyaggrieved or the public at large"."

It is the members of the Tribunal alone who could confirm or deny the aforesaid allegations made byrespondents 1 to 5. There is absolutely no explanation as to why the members of the Tribunal have not beenimpleaded. It is not even stated as to who the members of the Tribunal are. It is not even pleaded whether thefirst appellant was responsible for their appointment. Unless and until they specifically are called upon toanswer these charges, without impleading them which is a serious flaw, these allegations will be of ho usewhatever. Only when they are impleaded and if they do not answer, the Court could draw the necessaryinference that the order of the Tribunal was actuated by bias.

In Partap Singh v. State of Punjab, it is stated at page 75 as follows:

".....In the present case there were serious allegations made against the Chief Minister and there were severalmatters of which he alone could have personal knowledge and therefore which he alone could deny, but whatwas, however, placed before the Court in answer to the charges made against the Chief Minister was anaffidavit by the Secretary to Government in the Medical Department who could only speak from officialrecords and obviously not from personal knowledge about the several matters which were alleged against theChief Minister. In these circumstances, it would not be proper to brush aside the allegations made by thepetitioner, particularly in respect of those matters where they were supported by some evidence of adocumentary nature, seeing that there was no contradiction by those persons who alone could havecontradicted them."

Therefore, the members of the Tribunal who alone would have the personal knowledge of influence are notbefore us because they have not been impleaded to answer this charge of influence. However, it is argued on




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behalf of respondents 1 to 5 that the Tribunal had been impleaded and the Secretary could have answered. TheTribunal is an outside body. Even then, the Secretary of the Tribunal could have only spoken from therecords. This was what exactly was criticised in C.S. ROWJEE vs STATE OF A.P., which reads:

"22. The next question is as regards the inference to be drawn from these facts which in the absence of theirdenial have to be taken as true. It is here that we have felt the greatest uneasiness, because if the facts whichserve as the foundation for the plea of mala fides are made out, the only question would be whether theinference of mala fides on the part of the Chief Minister would be a reasonable one to draw. It is at this pointthat we are faced with the necessity of having to proceed without there being any effective answer to thepropriety of drawing the inference which the appellants desire. There has been no denial by the Chief Ministernor an affidavit by any person who claims or can claim to know personally about the truth about thoseallegations. The Secretary to the Home Department - one Mr. S.A. Iyengar has filed a counter affidavit inwhich the allegations we have set out earlier have been formally denied. He says,

'I have been expressly instructed and authorised by the Hon'ble the Chief Minister to state that the allegationssuggesting personal animus and giving mandate are false and mischievous and have been deliberately made tocreate an atmosphere of sympathy.'

The learned Advocate General did not suggest that the Court could act upon this second hand denial by theChief Minister as the statement by Sri S.A. Iyengar is merely heresay. We are therefore constrained to holdthat the allegations that the Chief Minister was motivated by bias and personal illwill against the appellantsstand unrebutted."

Relying on Express Newspapers' case Mr. Jayakumar S. Patil submitted that where there is a fraud on powerthe Court could always interfere. It should carefully be noted that was a case in which notice of re-entry wassought to be quashed on the ground of mala fides. But, here, as we have stated earlier, there is not even aspecific allegation of mala fide.

In Y.K. SETTY v. SOMANNA NAIKA, it is clear by a reading of paragraphs 4 and 5, allegations were made

specifically naming the persons. But, here, it is not so. Then again in 1978-2 Kar.L.J. 339 the members of theTribunal were impleaded as respondents 3 and 4. But, here, for reasons best known to the Writ Petitioners thatcourse has not been adopted.

To us, it appears that having regard to the subsequent events viz., the purchases by the appellants 1 to 3, theinference is drawn that the orders were made to facilitate these purchases. Hereagain, by merely stating thatappellants 2 and 3 are holding benami, the ingredients of benami are not stated. This is a matter to be provedon evidence. It is not the function of the Writ Court. It has to be established only through a civil suit. Merelybecause appellants 2 and 3 are related to the first appellant, straightaway the sales in their favour cannot beheld to be benami. Whether such a plea of benami is open to respondents 1 to 5 itself is a moot point because,in Mithilesh Kumari v. Prem Behari Khare it has been held in Headnote (D) as follows:-

"The Benami Transaction (Prohibition) Act contains no specific provision making its operation retrospective.The Act is a piece of prohibitory legislation and it prohibits benami transactions subject to stated exceptionsand makes such transactions punishable and also prohibits the right to defences against recovery of benamitransactions as defined in Section 2(a) of the Act. The Parliament has jurisdiction to pass a declaratorylegislation. As a result of the provisions of the Act all properties held benami at the moment of the Actcoming into force may be affected irrespective of their beginning, duration and origin. This will be so even if the legislation is not retrospective but only retroactive. The Act contains no specific provision making itsoperation retrospective.

In its sweep Section 4 envisages past benami transactions also in its retroactivity. In this sense the Act is botha penal and disqualifying statute. In case of a qualifying or disqualifying statute it may be necessarily




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retroactive. When an Act is declaratory in nature the presumption against retrospectivity is not applicable.Acts of this kind only declare. A statute in effect declaring the benami transactions to be unenforceablebelongs to this type. The presumption against taking away vested right will not apply in this case inasmuch asunder law it is the benamidar in whose name the property stands, and law only enabled the real owner torecover the property from him which right has now been eliminated by the Act. In one sense there was a rightto recover or resist in the real owner against the benamidar. Ubi Jus ibi remedium where there is a right, thereis a remedy. Where the remedy is barred, the right is rendered unenforceable. In this sense it is a disablingstatute. All the real owners are equally affected by the disability provision irrespective of the time of creationof the right. A right is legally protected interest. The real owner's right was hitherto protected and the Act hasresulted in removal of that protection."

Thus we conclude on questions 2 and 3 that the influence stated to have been exercised by the first appellanthas not been established. This vital aspect of the matter had not been gone into by the learned single Judge,and the effect of non-impleading of the members of the Tribunal is fatal to the Writ Petition.

13. QUESTION No. 4

The plea of acquiescence is made on the basis of Section 48A(2). That Section deals with the procedure to be

adopted by the Tribunal with regard to the enquiry. Sub-section (2) states as follows:

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

There are two kinds of notices that are contemplated. One is Form 8 and the other is Form 9 as under:

FORM 8

[See Rule 19(1)]

PUBLIC NOTICE UNDER SECTION 48A(2)

Whereas the Tribunal has to determine the person who is entitled to be registered as an occupant of the landsdescribed below under Section 45.

Now, therefore, notice is hereby given to -

(a) all other persons entitled to be registered as occupant under Section 45;

(b) all landlords of such lands; and all other persons interested in such lands;

to appear before the Tribunal on.....with documentary or other evidence, if any in support of their claim.

(Description of the land)

(Here enter the particulars)

Place: SECRETARY OF THE TRIBUNAL." Dated:

FORM 9




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[See Rule 19(1)]

INDIVIDUAL NOTICE UNDER SECTION 48A(2)

Whereas the Tribunal has to determine the person who is entitled to be registered as an occupant of the landsdescribed below under Section 45.

Now therefore, notice is hereby given to Sri/Smt...... (here specify the name of the applicant or other personswho appear to the Tribunal to be interested in the land) to appear before the Tribunal on......with documentaryor other evidence if any.

(Description of the land)

(Here specify the particulars)

Place: SECRETARY OF THE TRIBUNAL." Dated:

Rule 19(2) of the Rules reads as follows:-

"(2) Such notice in addition to being served in the manner laid down in Rule 42 shall also be published in thechavadi of the village concerned and in the offices of the village panchayat and the Tahsildar for a period of not less than thirty days."

Therefore, Form-8 is a notice to the public while Form-9 is individual notice. While dealing with this, thelearned Judge in 1978-2 Kar.L.J. 3391 states as follows:-

"Further he submitted that having regard to the wordings of Section 48A of the Act and Form-8, only personswho have got a right of ownership in the land or right of tenancy, individual or joint, are required to appearbefore the Land Tribunal and, therefore, as the said notice is not intended to the class of persons to which the

petitioners belong, their non-appearance before the Land Tribunal cannot be a ground for rejecting theirpetitions on the ground of acquiescence. I am inclined to agree with the submission made on behalf of thepetitioners that the petitions cannot be dismissed on the ground of acquiescence on their part."

We are unable to agree with this reasoning. Three kinds of persons are taken in: (i) the tenants, (ii) thelandlords and (iii) all other persons interested in such lands. In Clause (b) of Form-8 there is a semi-colon, andwhen it says: "all other persons interested in such lands" it excludes the persons who have a right of ownership in the land or a right of tenancy. It is, therefore, open to any member of the public like respondents1 to 5 to appear before the Tribunal and require the Tribunal to determine first whether the lands vest in theState or not. Though we have interpreted Section 48A(2) read with Rule 19 and Forms 8 and 9, only in ouranxiety to lay down the correct proposition of law, we do not think we should non-suit respondents 1 to 5 onthe ground of acquiescence or even laches. As a matter of fact, it is stated in the Writ Petition that they beingilliterates and they were not aware of the order, it took some time to gather materials and take appropriatesteps. Further they were under the impression that the State Government will take appropriate action theyhaving made representations to the Government concerning these facts. This is our answer to question No. 4.

14. QUESTION No. 5

Order 19 Rule 3 of the Code of Civil Procedure states as follows:

"3. (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove,except on interlocutory applications, on which statements of his belief may be admitted; provided that thegrounds thereof are stated."




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affect the fundamental rights of the citizens under Article 19(1). What the judicial decision purports to do is todecide the controversy between the parties brought before the Court and nothing more. If this basic andessential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronouncedby Court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamentalrights of citizens. Just as an order passed by the Court on the merits of the dispute before it can be challengedonly in appeal and cannot be said to contravene the fundamental rights of the litigants before the Courts socould a judicial order collateral to proceedings but directly concerned with the proceedings be challenged inappeal under Article 136 of the Constitution, but it cannot be said to affect the fundamental rights of thepetitioners. The character of the judicial order remains the same whether it is passed in a matter directly inissue between the parties or is passed incidentally to make the adjudication of the dispute between the partiesfair and effective. Expl: ; Disting;

, Rel on.

If the test of direct effect and object which is sometimes described as the pith and substance test, is applied inconsidering the validity of legislation, it would not be inappropriate to apply the same test to judicialdecisions. If a judicial order is passed by the Court in exercise of its inherent jurisdiction and its sole purposeis to help the administration of justice then any incidental consequence which may flow from the order will

not introduce any constitutional infirmity in it. and

and and . Ref.

In this connection it is necessary to refer to another aspect of the matter and that has relation to the nature andextent of the Supreme Court's jurisdiction to issue Writ of Certiorari under Article 32(2). It is well settled thatthe powers of this Court to issue Writs of Certiorari under Article 32(2) as well as the powers of the HighCourts to issue similar Writs under Article 226 are very wide. In fact, the powers of the High Courts to issuesimilar Writs under Article 226 are very wide. In fact, the powers of the High Courts under Article 226 are ina sense wider than those of the Supreme Court, because the exercise of the powers of the Supreme Court toissue Writs of Certiorari are limited to the purposes set out in Article 32(1). There is yet another aspect of this

matter to which it is necessary to refer. The High Court is a superior Court of Record under Article 215. If thedecision of a superior Court on a question of its jurisdiction is erroneous, it can, of course, be corrected byappeal or revision as may be permissible under the law; but until the adjudication by a superior Court on sucha point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the Writ Jurisdiction of the Supreme Court. If questions about the jurisdiction of superior Courts of plenary

jurisdiction to pass orders like the impugned order are allowed to be canvassed in Writ Proceedings underArticle 32, logically, it would be difficult to make a valid distinction between the orders passed by the HighCourts inter parties, and those which are not inter parties in the sense that they bind strangers to theproceedings. Therefore, having regard to the fact that the impugned order has been passed by a superior Courtof Record in the exercise of its inherent powers, the question about the existence of the said jurisdiction aswell as the validity or propriety of the order cannot be raised in Writ Proceedings taken out by the petitionersfor the issue of a Writ of Certiorari under Article 32...."

Again, dealing with the principles of Res Judicata, it was observed in SATHYADHYAN v. SMT.DEORAJIN DEBI, as follows:

"The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is thatonce a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and futurelitigation. When a matter - whether on a question of fact or a question of law - has been decided between twoparties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Courtor because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit orproceedings between the same parties to canvass the matter again. This principle of res judicata is embodiedin relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the




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principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. Theresult of this is, that the original court as well as any higher Court must in any future litigation proceed on thebasis that the previous decision was correct."

Therefore, if the order of the Tribunal had become final, not having been questioned further in the mannerknown to law, we do not think it will be open to this Court under Article 226 to render findings on merits onthe alleged influence of the first appellant on which no finding has been rendered in the Judgment underappeal. If such a challenge is allowed, then no order of the Tribunal could even reach finality. In Babhutmal v.Laxmibai it is stated in paragraph-7:

"7. The Special Civil Application preferred by the appellan

mr. s. bangarappa vs somappa on 5 february, 1991

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