JUDGMENT
1. The appellant has preferred this writ appeal being aggrieved by the rejection of his writ petition by the learned Single Judge on 6-12-1999 ‘(Bhavera Kenchappa v. B. Ragkavendrachar Ors.). The appellant herein filed the writ petition challenging the order of eviction passed by the Tahsildar, Honnali Taluk dated 17-5-1996. As per the averments of the writ petition, respondents 1 to 3 were the village officers in whose favour 72-09 acres of land situated at Chatnahalli Village of Honnali Taluk were regranted by the Assistant Commissioner on 10-3-1969. As per the orders of regrant, Sy. Nos. 69 and 140 of Chatnahalli Village were also included. The appellant herein claiming to be a tenant under respondents 1 to 3, in respect of Sy. No. 69 measuring 1-04 acres and Sy. No. 140 measuring 4-00 acres is in possession of the same. Subsequently, under an agreement of sale dated 5-9-1969 the appellant agreed to purchase the above said land from the respondents. In other words, appellant was a tenant till 5-9-1969 and thereafter he came to be an agreement-holder in respect of these two parcels of land. Though the agreement has been entered into, no sale deed was obtained by the appellant from respondents 1 to 3, but he continued to be in possession of the land. After the introduction of Karnataka Land Reforms Act, appellant herein filed an application before the Land Tribunal, Honnali
and the application of the appellant was rejected by the Tribunal as per the order dated 18-7-1977 holding that the lands claimed by the appellant were not re-granted in favour of respondents 1 to 3 and the said lands were still considered as inam lands. On that short ground, the application came to be rejected. Again, the Land Tribunal by its order dated 26-8-1977 granted the occupancy right in favour of the appellant in respect of 1-04 acres of land in Sy. No. 69 and 4 acres of land in Sy. No. 140 and the petitioner continued to be in possession pursuant to the orders of the Land Tribunal. The detailed order passed on 26-8-1977 is not on record. The circumstances in which the Tribunal passed the second order one month later are not clear from the order sheet filed by 1st respondent. Though the notice was issued to respondents 1 to 3 herein by the Land Tribunal, they did not contest the case arid therefore the Tribunal considering the evidence of the petitioner granted occupancy right on 26-8-1977. On an application filed by the respondents 1 to 3 herein, proceedings were initiated before the Tahsildar, Honnali Taluk for eviction of the appellant in respect of Sy. Nos. 69 and 140 of Chatna-halli in case No. T.T.C.R. 10/92-93. The said proceedings were initiated by the respondents pursuant to the provisions of Section 5(6) of the Karnataka Village Offices Abolition Act, 1961 (hereinafter refer to as ‘the Act’). After holding a detailed enquiry, Tahsildar on 17-5- 1996 passed an order of eviction while holding that the respondents therein have a right to recover the sale price through Court.
2. Being aggrieved by the order of eviction passed by the Tahsildar, Honnali, the appellant filed an appeal before the District Judge, Shi-moga in M.A. Nos. 31 and 47 of 1996. The District Judge, after hearing the parties held that the appeal filed by the appellant was not maintainable in view of Sub-section (2) of Section 3 of the Act and directed the parties to present the appeal before the appropriate authority. Subsequently, writ petition was filed by the appellant herein challenging the order of eviction passed by the Tahsildar, Honnali in Writ Petition No. 22970 of 1998 on the ground that when the Land Tribunal had confirmed the occupancy rights in his favour and the said order had not been challenged by respondents 1 to 3, Tahsildar could not have passed an order of eviction by invoking Sub-section (6) of Section 5 of the Act. According to the appellant, he continues to be in possession of the property as a tenant under the respondent and therefore the order of eviction passed holding that the appellant is in possession of the property under the part performance of the sale agreement was one without jurisdiction. It is also pleaded by him that the Tahsildar had no jurisdiction to pass an order of eviction, as long as the order of the Tribunal is in force and that the proceedings have been initiated by misrepresenting the facts before the Tahsildar and that such application has been filed by the respondents 1 to 3 15 years after the order granting occupancy certificate by the Tribunal in his favour and 23 years after the order of regrant made in favour of the respondents. In other words, it is contended by the appellant that within a reasonable time, respondents did not initiate proceedings before the Tahsildar. The petition of the appellant was opposed by respondents 1 to 3. According to them, appellant is
in possession of the property by virtue of Section 53-A of the Transfer of Property Act and therefore the order of Tahsildar cannot be challenged by the appellant claiming support under the orders of the Tribunal dated 26-8-1977. They also contended that the orders of the Tribunal dated 26-8-1977 has to be ignored by the Court in view of rejection of the application of the appellant by the Tribunal on 18-7-1977. It is contended by the respondents that when once the Tribunal had rejected the application of the petitioner on 18-7-1977, Tribunal will not get jurisdiction to grant occupancy right again on 26-8-1977 in respect of the same land between the same parties. They also contended that the orders of the Tribunal dated 26-8-1977 need not be challenged by them as the same was passed without jurisdiction.
3. After hearing the parties, learned Single Judge dismissed the petition by holding that the appellant herein had not approached the High Court while invoking Article 226 of the Constitution of India with clean hands. According to the learned Single Judge, petitioner has suppressed the order passed by the Land Tribunal rejecting the application of the appellant on 18-7-1977. Mainly on the ground of suppression of facts, writ petition of the petitioner came to be rejected. Being aggrieved by the said order, present appeal is filed by the appellant.
4. We have heard the learned Advocate for the appellant as well as the 1st respondent who represented respondents 1 to 3 as party in person. Sri G.S. Visweswara, learned Counsel, who appeared for the appellant mainly contended that the learned Single Judge has not looked into all the materials presented by the petitioners. According to him, the application of the appellant was rejected by the Tribunal on 18-7-1977 solely on the ground that there was no order of regrant in respect of these lands and the order of the Tribunal has been referred to by the Tahsildar in his order dated 17-5-1996 and therefore it cannot be said that appellant has suppressed the material facts. He also contends that the Tahsildar has proceeded to pass an order of eviction on the ground that appellant is in possession of the lands by virtue of Section 53-A of the Transfer of Property Act quite contrary to the provisions in Section 5(6) of the Act. He further contends that the Tahsildar has not considered the orders of the Land Tribunal. He further contends that respondents who initiated the eviction proceedings before the Tahsildar have not placed all the material facts before the Tahsildar and their main ground to seek eviction of the appellant is that he is in possession by virtue of Section 53-A of the Transfer of Property Act and purposely the respondents did not mention about the order passed by the Land Tribunal. In other words, according to the learned Counsel for the appellant, respondents 1 to 3 have suppressed the material facts before the Tahsildar in not bringing to his notice about the order passed by the Tribunal. He also contended that only when the appellant produced the orders of the Tribunal by way of reply, respondents contended before the Tahsildar that there was no necessity for them to challenge the order of the Tribunal, as the Tribunal had rejected the application on an earlier occasion. According to the respondents, when once the Tribunal had rejected the application on 18-7-1977, Tribunal had no jurisdiction to
reconsider the matter again on 26-8-1977. Therefore, 1st respondent contends that the order passed by the Tribunal on 26-8-1977 as one without jurisdiction and that the appellant cannot contend that he is in possession of the property pursuant to the order passed by the Tribunal and that his possession cannot be protected by virtue of the orders of the Tribunal.
5. After hearing the Advocates for the appellant and the respondent, party in person, what emerges for our consideration in this appeal are:
Whether there was any suppression of material facts as held by the learned Single Judge?
Whether the Land Tribunal had jurisdiction to grant the occupancy certificate in favour of the appellant on 26-8-1977 when his application has been rejected by the Tribunal on 18-7-1977?
Whether the Tahsildar had jurisdiction to entertain the -application of the respondents under Section 5(6) of the Karnataka Village Offices Abolition Act?
6. Learned Single Judge has mainly dismissed the writ petition on the ground that the appellant herein has suppressed the material fact and according to him, the appellant herein has not disclosed the orders of the Tribunal dated 18-7-1977 wherein the application of the appellant was rejected by the Tribunal. Learned Counsel for the appellant Sri G.S. Visweswara contends that the appellant has not suppressed any material facts. He submits that the appellant has produced the orders of the Tahsildar in the writ petition and the Tahsildar in the course of the order, has referred to the orders of the Tribunal dated 18-7-1977 and even the order sheet of the Tribunal has been produced by the respective parties. According to the respondents, the appellant herein has suppressed the material fact as in the body of the writ petition. Appellant has not disclosed the rejection of his application by the Tribunal on 18-7-1977. In the instant case, appellant herein has not challenged the order passed by the Tribunal, but he has challenged the order of eviction passed by the Tahsildar, Honnali Taluk in case No. T.T.C.R. 10/92-93 which proceedings were initiated by the respondents by invoking Section 5(6) of the Act, When the appellant has challenged the orders of the Tahsildar and which order has been produced, it is difficult for us to accept that there was suppression of material fact by the appellant. In the impugned order, Tahsildar has referred to both the orders passed by the Tribunal. Therefore, it cannot be held that there is suppression of facts.
7. The respondents who initiated the proceedings under Section 5(6) of the Act, are parties before the Tribunal. Respondents 1 to 3 have not challenged the orders of the Tribunal dated 26-8-1977. Four years thereafter the proceedings have been initiated by the respondents before the Tahsildar for summary eviction. While making an application, respondents have not stated before the Tahsildar about the order passed by the Tribunal granting occupancy rights in favour of the appellant. When the respondents are parties before the Tribunal and the occupancy rights
have been conferred on the appellant, even if the orders of the Tribunal are void or one without jurisdiction, the respondents should have challenged the same before the appropriate authorities, which they have failed to do so.
8. The summary eviction order was passed by the Tahsildar purportedly under Sub-section (6) of Section 5 of the Act read with Section 7 thereof. Sub-section (6) of Section 5 was introduced by the Amendment Act of 1978. By the same Act, Section 7 was introduced in the place of old Section 7 with retrospective effect from 24-12-1975.
Section 5(6) reads as follows;
“Notwithstanding anything contained in any law for the time being in force, any agreement for transfer of land resumed under clause (e) of Section 4, entered into prior to regrant thereof under Sub-section (1), shall be null and void and any person in possession thereof in furtherance of such agreement shall be summarily evicted therefrom by the Deputy Commissioner”.
Section 7 is as follows:
Eviction of unauthorised holders etc.–(1) Where any land resumed under clause (3) of Section 4 is in the possession of an unauthorised holder such unauthorised holder shall be summarily evicted therefrom and the land shall be taken possession by the Deputy Commissioner in accordance with law;
Provided that no such summary eviction shall be made except after giving the person affected a reasonable opportunity of making representation.
(2) Any order of eviction passed under Sub-section (1) shall be final and shall not be questioned in any Court of law and no injunction shall be granted by any Court in respect of any proceeding taken or about to be taken by the Deputy Commissioner in pursuance of the power conferred by Sub-section (1).
(3) The land from which an unauthorised holder is evicted under Sub-section (1) shall,
(a) if it was granted or continued in respect of or annexed to an inferior village office; and
(b) in other cases be disposed of in accordance with the law applicable to the disposal of unoccupied, unalienated lands”.
After resumption of the land, the Assistant Commissioner regranted the land in favour of the respondents on 10-3-1969. An agreement for sale was entered into on 5th September, 1965, i.e., after the commencement of the Act, but no concluded sale took place. Even earlier to that, admittedly, the appellant was in possession as a tenant. According to the respondents, inasmuch as the agreement of sale was entered into after resumption and prior to regrant and the appellant is in possession thereof in part performance of the grant of sale, the agreement shall be deemed to be null and void and the person in possession is liable to be
summarily evicted. In our view, the stand of the respondents cannot be sustained. The words ‘in furtherance of such agreement’ is important. The possession of the appellant is traceable to lease and even after the agreement he continued to be in possession thereof. The possession has not been obtained by the appellant by virtue of or under the agreement of sale. The possession which the appellant had was anterior to the agreement of sale and the mere execution of agreement of sale does not alter the character of possession. The moment the agreement has been executed, it cannot be said that the possession under the lease had lost its identity. It is relevant to mention that in the agreement of sale, there was no recital that the appellant was put in possession under the said agreement. In fact, the prior possession of the appellant as per lease has been recognised. Under these circumstances, Sub-section (6) of Section 5 could not have been invoked by the Tahsildar.
9. The respondent appearing as party in person contended that the agreement for transfer of land includes a lease transaction also and the lease having been made prior to regrant, is null and void and therefore the person in possession is liable to be summarily evicted. It is contended that the ‘lease’ is also a ‘transfer’. We find it difficult to sustain this argument in the context in which the agreement for transfer of land is used, followed by the words ‘in furtherance of such agreement’. It is difficult to stretch the applicability of Section 5(6) to the tenancy created under an oral lease. Therefore, even assuming that lease is transferred in one sense, the context and the language employed in Sub-section (6) does not admit of the interpretation that an oral tenancy shall be construed to be an agreement for transfer of land.
10. There is another ground for holding that the appellant was not in unauthorised possession or that he is an unauthorised holder within the meaning of Section 7 of the Act. We have already noted that by the order of the Land Tribunal dated 26-8-1977, occupancy rights under the Karnataka Land Reforms Act were granted to the appellant. It is the contention of the respondents that the said order is liable to be ignored for the simple reason that the Land Tribunal had no jurisdiction to pass such order after rejecting the application of the appellant a month earlier. The contention of the respondent has to be repelled mainly for the reason that the respondent failed to question the order of the Land Tribunal, even if it was passed illegally, though they were aware of the proceedings before the Land Tribunal. For this, the answer of the respondent is that this order need not be specifically questioned because it is a void order. We find it difficult to accept this contention. It is to be noted that the application filed by the appellant for grant of occupancy rights was rejected on 18-7-1977 not on merits, but on the ground that the land was not regranted. There was an obvious factual error because admittedly regrant had taken place much earlier to the date of disposal of the application. When once the Tribunal became aware of the fact, this mistake was rectified and a fresh order was passed on 26-8-1977 granting occupancy rights in favour of the appellant. Though it is not clear from the record, the reasonable inference to be drawn is that within a few days the applicant brought the obvious mistake to the
notice of the Tribunal and the Tribunal rectified the same and considered the application on merits. An order of this nature cannot be said to be without jurisdiction. There was no reason why the respondents failed to challenge the said order. Having failed to challenge the order dated 26-8-1977, the respondents cannot at this stage urge the Court to ignore that order despite the fact that it is based on a mistake of essential fact. We therefore, reject the contention of the respondents (party in person).
11. In the result, the order of the learned Single Judge is set aside and the writ appeal stands allowed. The impugned order of the Tahsildar dated 17-5-1996 is hereby quashed. No order as to costs.