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Judgment
Ajit J. Gunjal
The petitioner is assailing the order passed by the Land Tribunal conferring occupancy rights on respondent No.3 in respect of various items of lands as reflected in Form No.7. The dispute in the present proceedings in only in respect of 7 items of lands as under:
Taluka & District
Village
Sv.Nos.
Measuring
Udupi
Byrampalli
108/8A
0-15 cents
Byrampalli
108/7
0-13 cents
Byrampalli
28/3H
0-08 cents
Byrampalli
28/31
0-64 cents
Shiroor
83/1A
3 acres 60 cents
Shiroor
217/1
1 acre 73 cents
Shiroor
217/5
0-12 cents
The Land Tribunal having regard to the material on record was of the view that respondent No.3 has established that he is cultivating the lands as a tenant and has granted occupancy rights. Undoubtedly, the lands in question along with other lands would belong to Sri. Venkataramana Temple, Harikandige situated at Byrampally village. Taluka and District. Udupi i.e., Respondent No.4. In the proceedings before the Land Tribunal, the temple was represented by one of the Trustees, one Damodara Naika. The petitioners claim to be devotees of the temple and are questioning the order passed by the Tribunal and also submit that there is no claim by the 3rd respondent in respect of 4 items of land and insofar as 3 items of lands are concerned, the same are considered as poonja i.e., non-agricultural lands. Since the claim made by the 3rd respondent was not properly defended in respect of these items of lands, the petitioners are before this Court. In the circumstances, the order passed by the Tribunal warrants interference.
Mr. G. Balakrishna Shastry, learned counsel appearing for the petitioners submits that the petitioners are the devotees of the temple and hence, they do have locus to file this writ petition inasmuch as the 4th respondent has not taken care of the proceedings. He further submits that a Division Bench of this Court has ruled that in the absence of" the Trustees taking care of the properties of the temple, it is open for the devotees to question the same.
The learned counsel appearing for respondent No.3 supports the impugned order. He submits that notwithstanding the fact that the applicant has not made a claim in respect of 4 items of land, the Tribunal having granted the same, it is to be presumed that he is cultivating the land as a tenant. Insofar as 3 items of lands, which are classified as poonja are concerned, he submits that notwithstanding that the lands are poonja lands they are cultivable. He would press into service a ruling of this Court in the case of Subhakar and Others Vs. The Land Tribunal and Others, .
Insofar as the jurisdiction of the Tribunal to entertain an application in Form No.7 when there is no claim, undoubtedly. Section 48A of the Act would contemplate that application is required to be made for grant of occupancy rights. In the absence of any application in respect of those lands, the question of the Tribunal examining the matter and granting occupancy rights would not arise. Even Section 48(6)(2) provisos will not assist the applicant, it few of the Survey Numbers are left out. The petitioners have made available Form No.7 filed by the 3rd respondent, a copy of which is produced at Annexure ''B'' Indeed it is to be noticed that there is no claim in respect of 4 items of land i.e., Sy. Nos. 108/8A. 103/7, 28/3H and 28/31. Indeed the question of conferring jurisdiction on a statutory authority fell for consideration before the Apex Court in the case of Kiran Singh and Others Vs. Chaman Paswan and Others, . The Apex Court has observed thus:
Ii is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could he set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it: is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of the parties.
In the case of hand, I am of the view that the-Tribunal could not have conferred occupancy rights in respect of these four items of land, which were not claimed in Form No.7. To that extent, the petitioner is entitled to succeed. Insofar as the remaining 3 items of lands are concerned i.e., Sy. Nos. 83/1A, 217/1 and 217/5, I am of the view that, notwithstanding the fact that they are classified as poonja lands having regard to the Division Bench Ruling of this Court on poonja lands, the same cannot be classified as non-agricultural lands inasmuch as there are various varieties of poonja lands. The Division Bench in the case of Subhakar and Others Vs. The Land Tribunal and Others, has observed thus:
There cannot be any dispute about the above classification. Wherever Punja lands are converted into wet baghayat and garden lands, the same was called as Punja baghayat, Punja mel nanja, Punja taram nanja, Punja vanpayir etc.
The statement made by the 3rd respondent discloses that he has been cultivating all the lands as disclosed in Form No.7 including the lands, which are described as poonja. Having regard to the decision rendered by this Court and the finding recorded by the Tribunal, I am of the view that the occupancy rights granted in favour of the 3rd respondent in these three items of land i.e., Sy. Nos. 83/1, 217/5 and 217/1 cannot be faulted.
Indeed insofar as the locus of the petitioners to question the order of the Tribunal is concerned, a Division Bench of this Court has ruled that even the Devotees can question the order passed by the Tribunal. Having said so, I am of the view that the order passed by the Land Tribunal warrants modification. Hence, the following order:
(a) Petitions are allowed in part.
(b) The claim of the 3rd respondent in respect of 4 items of lands i.e. Sy. Nos. 108/8A. 108/7. 28/3H and 28/31 in Byrampalli village. Udupi is quashed.
(c) The order passed by the Land Tribunal insofar as the remaining extents of lands are concerned, stands confirmed.
Petitions stand disposed of accordingly.
Rule is issued and made absolute to the extent indicated above.
Mr. Shashidhar S. Karamadi, learned HCGP appearing" for respondents 1 and 2 is permitted to file memo of appearance within four weeks.