John D'' Souza Since Deceased by LRs vs Vijaya Bank and Others

Gopal Gowda, J.—This petition is filed seeking to review the order dated 7-7-2003 passed in W.P.No. 249971997. Along with the review petition certain documents are produced to substantiate the tenancy claim. The first respondent has filed objections to the review petition

Mr. S.R. Goutham, learned Counsel for the first respondent-Vijaya Bank submits that the review petition so not maintainable. He further submits that the documents now produced were not produced in the writ petition and even objections statements was also not filed. According to the learned Counsel, Annexure-D clearly shows that the nature of the land had been changed long back. He submits that since this Court has remanded the matter for fresh disposal with liberty to the parties to produce the documents, no prejudice is caused to seek review of the order. The learned Counsel also pointed-out that the order of the Land Tribunal is dissenting in which the Chairman and two Members favoured the applicant but the other two Members did not sign the proceedings resulting in violation of Rule 17(8) of the Karnataka Land Reforms Rules. The learned Counsel, in the circumstances, justifies the remand order and prays for dismissal of the review petition.

Having heard the learned Counsel for the parties, I have perused the documents produced now. I am of the view that it is a fit case to allow the review petition for the following reasons:

i) In the written statement filed by the first respondent herein before the Land Tribunal, at paragraph 2 it is stated that the land in question is classified as Dry but now shown as bagayat.

ii) The first respondent Bank has filed R.R.C. No. 238/1972 u/s 42 of the erstwhile Mysore Land Reforms Act, 1962 in the Munsiff Court for recovery of rent from the petitioner''s father. In that the land is described by its Survey Number, extent as 2 acres 11 guntas and assessed at Rs. 3.19/-. It is also stated that rent u/s 8 of Mysore Land Reforms Act was not yet fixed.

iii) The afore mentioned factors clearly establish that the land in question is agricultural land. If the same was non-agricultural land as contended by the Bank, there was no necessity for it to initiate rent recovery proceedings under the Land Reforms Act.

iv) The other ground taken is that the father of review petitioners was not a tenant of the land. It is pertinent to note that in para 2 of the written statement filed before the Land Tribunal eventhough it is stated that the applicant is not a tenant, in the beginning of para 3 it is stated that "the applicant viz., John D'' Souza is not the only tenant in the property". This pre-supposes that in addition to the applicant, there were other tenants also. In other words, the applicant has been recognised as "tenant".

v) In the application rent recovery proceedings the Bank has stated thus:

The Opponents tenants are only statutory tenants and there is no agreed rate as regards the rent payable by them for the year ending 31/3/1971. And they have not paid the rent for the year 31-3-1971. The rent u/s 8 of the Mysore Land Reforms Act has not yet been fixed and the opponents are liable to pay the said rent to the Petitioner. The said rent is more than 15 muras of rice and 4000 sheaves of straw, Rs. 300/- toward value of coconut and other yields from tree growth. The tree growth and other improvements I the land all have been effected by landlord and predecessors in titled of landlord. The opponents are liable to pay the rent due at the fair rate to be determined u/s 8 of Mysore Land Reforms Act as there is no contract between the landlord and opponents for the above period. The lands in possession of opponents has got tank and irrigation water facilities.

(Emphasis supplied)

From what has been extracted above, two things are clear. The first is, the applicant is the tenant of the land and the second is, the land is agricultural land.

vi) In the statement given by the Bank''s representative on 23-12-1975, produced as Annexure-E, he has stated that the land in question is under the tenancy cultivation of the applicant for the last 30 years and that they have no objection for granting occupancy rights to the applicant. In view of this categorical statement, the occupancy rights granted will have to be upheld and the writ petition filed by the Bank is liable to be dismissed. For that purpose, the order passed in the writ petition will have to be reviewed.

vii) The contention that the land is not agricultural land and therefore occupancy right cannot be granted, is untenable and cannot be accepted. The reason is already mentioned above. That apart, in the absence of conversion order, as held in AIR 1995 SC 235 the claim that the land in question has lost its agricultural character, is liable to be rejected. Therefore, the reliance placed upon Annexure-D in this regard is misplaced.

viii) Eventhough the order of the Land Tribunal is not signed by two members and the matter is remanded for fresh disposal on technical grounds, for the reasons stated above, I am of the firm view that further consideration of the matter is wholly unnecessary and the remand order requires review. this Court under Articles 226 & 227 of the Constitution can do what the Tribunal will do, as held in the decision. Reported in AIR 1980 SC 1786.

xi) Another reason which compelled me to put an end to the litigation is time factor. The proceedings started in the Land Tribunal in the year 1975. There is no point in remanding the matter after a lapse of 32 years for fresh adjudication when sufficient material is available on record to grant relief, especially in view of the admitted facts.

For the reasons stated above, the review petition is allowed. The order dated 7-7-2003 passed in W.P. No. 2499/97 is reviewed. The writ petition is dismissed.

After dictating the order, learned Counsel for the first respondent Bank made a oral request to stay this order to approach the Apex Court. For the reasons stated above, it is not a fit case for granting stay. Hence, the oral request for stay is rejected.