ORDER
Kudoor, J.
1. In this Writ Petition one under Articles 226 and 227 of the Constitution of India, one Krishna Bhat, owner of Petition-A’ Schedule properties, has sought for a Writ of certiorari or any other appropriate Writ or Order quashing the order dated 16-11-1981 Annexure-A, passed by the 1st respondent-Land Tribunal, Bantwal, granting occupancy fight in respect of ‘A’ Schedule properties in favour of the 3rd respondent-Narayana Gowda.
2. The matter arises in this way :
The 3rd respondent made an application on 23-8-1974 to the Land Tribunal, Bantwal, in Form-7 as required under Section 48A of the Karnataka Land Reforms Act, 1961, claiming occupancy right in respect of S. No. 8/9A of Vittal Padnur Village of Bantwal Taluk belonging to one Mahalinga Bhatta as could be seen from the entry made in the General Daily Register (GDR) at Sl. No. 4712. In the year 1980, the 3rd respondent appeared to have filed a copy of Form-7 application said to be the copy of the application made by him in the year 1974 along with the postal acknow Judgment for having sent the application to the Land Tribunal, Bantwal in the year 1974, on the ground that the application made by him was found missing in the office of the Land Tribunal. The Secretary of the Land Tribunal forwarded an extract of the entry made in the GDR relating to the application made by the 3rd respondent on 23-8-1974 and the copy of the application and acknowledgment filed by the 3rd respondent to the Secretary, Additional Land Tribunal, Bantwal, on 3-9-1980 with a request that if the application made by the 3rd respondent was not found in the office of the Additional Land Tribunal, the copy of the application forwarded may be considered and entered in the GDR. The Additional Special Tahsildar, Land Reforms, Bantwal, forwarded the same to the I Division Surveyor Ujjappa for measurement and report on 14-11-1980.
3. The Surveyor, on receipt of the papers from the Additional Special Tahsildar, issued notice to the parties on 21 1-1981 directing them to be present on the spot on 4-2-1981 for measuring the land. The surveyor in the course of measuring the land, recorded the statement of the parties, measured the lands pointed out by the 3rd respondent as the lands claimed by him for registration of occupancy right, prepared a sketch and a report and submitted the report along with the sketch and the statement of the parties recorded, to the Special Tahsildar. Thereafter, the case was set down for enquiry by the IV Additional Land Tribunal, Bantwal.
4. Notice on the application was issued to the parties on 10-7-1981 directing them to appear before the Tribunal at Town Hall, Vittal on 22-8-1981 where the enquiry was fixed to be conducted by the Tribunal. The statement of the petitioner. 3rd respondent and Mahalinga Bhatta, owner of S. No. 8/9A was recorded. The parties have also filed, documents in support of their respective contentions. Then the Tribunal fixed the spot inspection to be held on 17-9-81 On 17-9-1981 the Tribunal held the local inspection and drew up a local inspection report. In the course of the local inspection, the Tribunal questioned several persons present and included what they had stated, in the local inspection report and obtained their signature to the report. After the local inspection, the case was posted for further enquiry on 28-9-1981. On 28-9-1981, the 3rd respondent informed the Tribunal that he had made an application before the Deputy Commissioner, Mangalore, for transfer of the case to the file of some other Land Tribunal. The case was adjourned to 30-9-1981. On 30-9-1981, a direction was received from the Deputy Commissioner to await orders to proceed with the further enquiry. Thereafter the case suffered several adjournments and stood posted to 30-10-81, On 30 10-1981, an order was received from the Special Deputy Commissioner. Mangalore, transferring the case from the file of the IV Additional Land Tribunal to the III Additional Land Tribunal, Bantwal. Notice of further enquiry was issued to the parties to appear on 4-11-1981 and after a few adjournments, the case finally came to be posted on 24-11-1981. On that day the Tribunal conducted further enquiry and posted the case for orders on 26-11-1981. On 26 -11-1981, the Tribunal rendered its decision as per Annexure-A granting occupancy right in respect of ‘A’ schedule properties along with some other items of lands in favour of the 3rd respondent. It was in these circumstances, the petitioner has filed this Writ Petition challenging the correctness and legality of the order Annexure-A.
5. Sri P. Ganapathy Bhat, learned Counsel appearing for the petitioner, vehemently contended that the 3rd respondent did not lay any claim over the ‘A’ schedule properties in his application made before the Tribunal in the year 1974 and as such the Tribunal had no jurisdiction to hold an enquiry much less to confer occupancy right in respect of the ‘A’ schedule properties against which no claim was made, that the copy of the application produced by the 3rd respondent claiming to be the copy of the application made by him in the year 1974 is not the copy of the said application, that the Tribunal should have conducted an enquiry in the first instance to find out if the application made by the 3rd respondent in the year 1974 was missing and the copy of the application produced by him was true copy of the said application and the failure to record its findings on these two vital questions vitiated the enquiry, that the copy of the application produced by the 3rd respondent if treated as a fresh application for granting of occupancy right in respect of ‘A’ schedule properties, even then the Tribunal had no Jurisdiction to entertain the claim as its presentation was beyond the time finally extended for making the application, that the enquiry conducted was not in accordance with law, that there is no provision either in the Karnataka Land Reforms Act or in the Rules framed thereunder conferring power on the Tribunal or the Secretary of the Tribunal to send the application for granting occupancy right to a surveyor for measurement of the land and report, that the surveyor’s report in this case was made the basis for adjudicating the claim of the 3rd respondent as if it was the application for granting occupancy right which was impermissible as the Tribunal had no jurisdiction to traverse beyond what was claimed in the application unless the application is suitably amended as per law, that the power of local inspection conferred on the Tribunal was abused and misused by the Tribunal, that the case though stood transferred as per the orders of the Special Deputy Commissioner from the file of the IV Additional Land Tribunal to the III Additional Land Tribunal, the impugned order was rendered by the I Additional Land Tribunal which had no jurisdiction to adjudicate upon the dispute between the parties and finally submitted that for all these reasons, the impugned order is liable to be quashed.
6. Per contra Sri M. R. Janardhana, Learned Counsel appearing for the 3rd respondent argued in support of the impugned order and contended that the claim application made by the 3rd respondent in the year 1974 was found missing in the office of the Tribunal and as such the 3rd respondent produced in the year 1980 a true copy of the application along with the postal acknowledgment for having sent the application to the Land Tribunal in the year 1974 to take further action in the matter on the 3rd respondent coming to know of the missing of the application made by him earlier and as such it could not be successfully contended that there was no claim made by the 3rd respondent for registering him as an occupant in respect of the ‘A’ Schedule properties. However, he did not join issue with the other points raised by Sri Ganapathy Bhat. Finally he submitted that the case may be remanded to the Tribunal for fresh consideration.
7. The High Court Government Pleader appearing for respondents 1 and 2 argued on the same line as argued by Sri Jauardhan, the Learned Counsel for the 3rd respondent.
8. In the light of the rival contentions, the points arise for decision are the following:
(1) Whether the Tribunal or the Secretary of the Tribunal has the power or authority to send the application for granting occupancy right to a survey or for measurement and report ?
(2) What is the true scope and ambit of the power of local inspection conferred on the Tribunal ?
(3) Whether the Tribunal ought to have held a preliminary enquiry and recorded its finding in respect of missing of the application made by the 3rd Respondent in the year 1974 and genuineness and correctness of the copy produced ?
(4) Whether the 1st Additional Land Tribunal, Bantwal had no jurisdiction to decide the case ?
(5) Whether the enquiry conducted was not in accordance with law ?
9. I shall proceed to consider these points in the order in which they are formulated.
POINT NO. 1 :
10. The reason and purpose of the Karnataka Land Reforms Act, 1961 (for short the ‘Act’) as reflected from the preamble, show that it is an Act enacted to bring about a uniform law in the State of Karnataka relating to agrarian relations, conferment of ownership on tenants, ceiling on land holdings and for certain other matters appearing in the Act. It is relevant to notice the scheme of the Act for conferment of ownership on tenants.
11. Section 2 is the definition section. Sub-section (18) defines ‘land’ means agricultural land that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope but does not include house site, or land used exclusively for non agricultural purposes. Sub-section (32A) stipulates that ‘Tahsildar’ includes a Special Tahsildar empowered by the State Government to exercise all or any of the powers of the Tahsildar under the Act. Sub-section (33) defines ‘tenancy’ means the relationship of landlord and tenant. Sub-section (34) defines ‘tenant’ means an agriculturist who cultivates personally the land he holds on lease from a landlord and induces (i) a parson who is deemed to be a tenant under Section 4(n) a person who was protected from eviction from any land by me Karnataka Tenants (Temporary Protection from Eviction; Act, 1961 ; (iia) a person who cultivates personally any land on lease under a lease created contrary to the provisions of Section 5 and before the date of the commencement of the amendment Act ; (iii) a person who is a permanent tenant and (iv) a person who is a protected tenant. Sub-section (35)defines ‘Tribunal’ means the tribunal constituted under Section 48 of the Act.
Section 44 provides for vesting of all lands held by or in the possession of tenants immediately prior to the date of commencement of the Amendment Act with effect on and from the said date in the State Government.
Section 45 provides for registering tenants as occupants of lands on certain conditions. It stipulates that every person who was a tenant in respect of the land before the date of vesting and which he has been cultivating personally is entitled to be registered as an occupant subject to the provisions of the other Section in Chapter III.
Section 48 provides for constitution of the Tribunals Sub-section (1) stipulates that there shall be a Tribunal for each Taluk consisting of the Assistant Commissioner of the Revenue Sub-Division having jurisdiction over the Taluk or an Assistant Commissioner specially appointed for the purpose by the State Government and four other members to be nominated by the State Government of whom atleast one shall be a person belonging to Scheduled Caste or Scheduled Tribe. Provision is also made for constituting additional Tribunals for any Taluk. Sub-section (2) stipulates that the Assistant Commissioner shall be the Chairman of the Tribunal. Sub-section (7) provides that the Tahsildar or any officer specially appointed for the purpose by the State Government shall be the Secretary of the Tribunal.
Section 48A deals with enquiry by the Tribunal. Subsection (1) provides that every person entitled to be registered as an occupant under Section 45 may make an application to the Tribunal within the period stipulated therein. Sub-section (2) stipulates publication of the public notice calling upon the landlord and all other persons having an interest in the land to appear before it on the date specified in the notice. It further provides that the tribunal shall also issue individual notices to the parsons mentioned in the application and also to such others as may appear to it to be interested in the land. Sub-section (3) contemplates that the form of the application, the form of the notices, the manner of publishing or serving the notices and all other matters connected therewith shall be such as may be prescribed. It further provides that the Tribunal may for valid and sufficient reasons permit the tenant to amend the application. Sub-section (4) provides that the Tribunal may after such verification as it considers necessary by order either grant or reject the application, where no objection is filed to the claim. Sub-section (5) stipulates that where an objection is filed disputing the claim or setting up a rival claim, the Tribunal shall hold an enquiry and determine by order the person entitled to be registered as occupant and pass orders accordingly. Sub-section (5A) provides that where there is no objection in respect of any part of the claim, the Tribunal may at once pass orders granting the application as regards that part and proceed separately in respect of the other part objected to. Subsection (6) stipulates that the order of the Tribunal shall be final and it shall send a copy of every order passed by it to the Tahsildar and parties concerned. Sub-section (8) stipulates that where no application is made within the time allowed under Sub-section (1), the right of any person to be registered as an occupant shall have no effect.
Section 48B deals with the powers of the Tahsildar to determine the amount payable under Section 47, whereas Section 50 deals with his power in determining the encumbrances and payment of the amount while determining the amount payable under Section 48B.
Section 55 empowers the Tahsildar to issue certificate of registration in favour of the tenant subject to such rules as may be prescribed.
Section 112(A) lays down the duties of the Tahsildar and Section 112(B) lays down the duties of the Tribunal. Section 133 confers exclusive jurisdiction to the Tribunal to decide whether the land is or is not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st March 1974 and when such questions arise in any suit, case or proceedings concerning a land before a Civil or Criminal Court or Officer or Authority, the question shall be referred to the Land Tribunal and the Tribunal shall decide the question so referred to it and communicate its decision to such Court, Officer or Authority.
Rule 19 of the Karnataka Land Reforms Rules, 1974 (for short the ‘ Rules’) prescribes the form of application under Section 48A and the notice. Rule 19(1) lays down that the application under Sub-section (1) of Section 48A shall be in Form-7. It further stipulates that the application shall furnish particulars of all the lands held under each separate tenancy in one or more than one Taluk in respect of which the applicant claims to be entitled to be registered as an occupant and where the lands are situated in more than one Taluk, the application shall be filed before the Tribunal of the Taluk where the greater part of the lands are situated and on receipt of such application, the Tahsildar shall send the extracts of the application to the Tribunals concerned and in so far as the lands in his Taluk are concerned, he shall verify the particulars mentioned in the application with reference to the revenue records, including the record of rights wherever they are prepared and also note the same on the application. It further stipulates that the public notice and the individual notice referred to in Sub-section (2) of Section 48A shall be in Form-8 and Form-9 respectively.
Rule 17 provides the procedure to be followed by the Tribunal. Sub-rule (1) contemplates that the procedure to be followed in respect of the applications made to the Tribunal is as specified for a summary enquiry under Section 34 of the Karnataka Land Revenue Act, 1964. Sub-rule (4) Stipulates that the progress in the enquiry of each case shall be noted by the Chairman immediately after hearing or the holding of the spot inspection by the Tribunal. Sub-rule (5) provides that the opposite party shall be allowed to cross-examine the witness and if he does not wish to cross-examine, a note shall be made accordingly and further a brief summary of the evidence given by such witness shall be recorded by the Chairman.
Rule 21 provides that the Certificate of Registration of a tenant as an occupant of Sand shall be in Form-10 and Rule 21C provides that immediately on receipt of the final orders passed by the Tribunal under Section 48A conferring occupancy right to a tenant, the Tahsildar shall issue a certificate to such tenant that he has been registered as an occupant.
Rule 24 provides for enquiry by Tahsildar and it lays down that on receipt of a declaration under Section 66, the Tahsildar shall verify the correctness of the particulars furnished therein with reference to the entries in the record of rights, other documents if any produced and by making such local enquiry and inspection as he considers necessary either by himself or through any officer of the Revenue Department not lower in rank than of a Revenue Inspector.
Rule 44 stipulates that Tahsildar shall maintain certain registers. Sub-rules (1C) and (1D) prescribe the registers to be maintained in connection with the proceedings under Section 48A. These sub-rules came into effect from 12-6-1980.
Form-7 is the form prescribed for making an application under Section 48A(1) for registration of occupancy right. Among other things, the applicant is required to ‘furnish the name of the landlord and his address, the survey number, sub-division number and the extent of the land in respect of which occupancy right is claimed, together with the assessment, the village and taluk in which the land in question is situated and the period for which the applicant has been cultivating the said land as tenant.
Public notice in Form-8 and the individual notice in Form -9 shall be issued by the Secretary of the Tribunal in which among other things, the description of the lands in respect of which claim was made shall also be given.
12. These are the relevant provisions of the Act and the Rules. As noticed earlier, the Tribunal shall consist of 5 members including its Chairman. The Secretary of the Tribunal is not the Member of the Tribunal. The Tahsildar or any officer specially appointed for the purpose by the State Government shall be the Secretary of the Tribunal. The Tahsildar includes a Special Tahsildar empowered by the State Government to exercise all or any of the powers of the Tahsildar under the Act. Thus it is seen that in the normal course, the Tahsildar of the Taluk or a Special Tahsildar empowered by the State Government to exercise all or any of the powers of the Tahsildar under the Act would automatically become the Secretary of the Tribunal unless any other officer is specially appointed as Secretary of the Tribunal by the State Government. A close reading of the provisions of the Act and the Rules would show that the functions of the Tahsildar and the functions of the Secretary are different and distinct. No doubt a Tahsildar of the Taluk in certain circumstances may have to discharge dual functions under the Act and the Rules, one the functions as Tahsildar and the other the functions as Secretary of the Tribunal. However, we do not find any provision in the Act or the Rules, empowering either the Tahsildar or the Secretary of the Tribunal to refer the claim application made under Section 48A(1) to a surveyor for any purpose including for verification, measurement, recording of statements of the parties or the neighbours or preparing a sketch and making a report either before the commencement of the enquiry or during the course of the enquiry under Section 48A of the Act.
13. Now turning to the powers of the Tribunal also we do not find any provision empowering the Tribunal to refer the application made under Section 48A to a surveyor and call for a report from him either before the commencement of the enquiry or during the course of the enquiry. The only verification of the application before the commencement of the enquiry is as provided under Rule 19 which is by the Tahsildar and not by any other officer or agency.
14. As per the scheme of the Act and the Rules, once the application in Form-7 is received by the Tribunal under Section 48A of the Act and the application in question is verified by the Tahsildar as provided under Rule 19, the next step the Tribunal shall follow is as provided under Sub-section (2) publishing or causing to be published a public notice as well as issuance of individual notice stipulated therein so as to enable the parties interested in the land claimed by the applicant for registration of occupancy right to appear before the Tribunal on the date specified in the notice. It is provided under sub-section(3) that the Tribunal may for valid and sufficient reasons permit the applicant to amend the application. If no objection is filed or where there is no objection in respect of any part of the claim, the Tribunal may proceed to make an order as provided under sub-sections (4) and (5A) as the case may be. It is only when a claim is objected to or a rival claim is set up, the Tribunal shall conduct the enquiry to find out whether the applicant or which of the rival claimants is entitled to be registered as an occupant and pass orders accordingly. While conducting the enquiry, the Tribunal has to follow the procedure laid down in Rule 17. It is provided under Section 112B(a) of the Act that holding of an enquiry includes local inspection. Similarly sub-rule (4) of Rule 17 also indicates that the Tribunal in the course of conducting an enquiry may hold spot inspection. However, we do not find any provision to forward the application made under Section 48A, straightaway before taking up the enquiry or during the course of the enquiry to any other outside agency including the surveyor, either for verification, or measurement or for conducting a preliminary enquiry and submit a report for being used as a piece of material in the course of the enquiry.
15. The next question that requires to be examined is whether the Tribunal is totally prevented from obtaining a report from the surveyor in respect of the lands involved in the claim for grant of occupancy right and if it is not so prevented, then what would be the occasion to call for a surveyor’s report and the scope and ambit of such a report.
16. Undoubtedly, the Tribunal is required to determine before conferring ownership on the claimant, not only that the land is an agricultural land and that the claimant is a tenant of the said land from prior to 1st March 1974 but also the identification of the land over which occupancy right is claimed. If the question is examined from the point of view of determining the identity of the land over which occupancy right is claimed, no enquiry need be held if the claim is in respect of the whole of a survey number or the whole of a sub-division of a survey number. The difficulty would arise only in case the claim is made, to a portion of a survey number or a portion of a sub-division of a survey, number. In such a case, the Tribunal should determine the exact identity of the portion of the land in respect of which occupancy right is claimed. If the claimant while seeking occupancy right in respect of a portion of a survey number or portion of a sub-division of a survey number has furnished the boundaries of the portion of the land in his application, certainly the Tribunal should ascertain the extent of the land comprised within the boundaries for conferring occupancy right in respect of the said portion of the land. In such a case, the Tribunal could refer the particulars of the land to a surveyor or any other competent person to measure and fix the land within the boundaries given in the application and submit a report together with a sketch. Similarly where a claim is made in respect of a portion of a survey number or portion of a sub-division of a survey number and boundaries of the portion of the land are not given in the application, the Tribunal after examining the claimant and obtaining the boundaries of the land over which he laid his claim, could obtain such a report with sketch and use them as a place of material in the enquiry. In both these cases the report as well as the sketch would be used as a piece of evidence, provided the correctness of the report and the sketch is admitted by the parties and if not, on the proof of the report and the sketch by examining the author of it. This procedure would be part of the enquiry to be held by the Tribunal under Section 48A of the Act However, it must be remembered that the report and the sketch of the surveyor is not for initiating or enlarging the scope of the claim or for rendering the decision solely on that basis but is a report of an expert for determining the identity of the property claimed. The evidenciary value of the report and the sketch is as in the case of any other evidence subject to the test of its correctness by cross-examination of its author if its correctness is disputed. The Tribunal alone could exercise this power in the course of the enquiry and not by any other authority or officer such as the Secretary of the Tribunal or the Tahsildar.
POINT NO 2 :
17. As noticed earlier, Sub section (1) of Section 48A provides for making an application within the time allowed for registration of occupancy right by every person entitled to be registered as an occupant under Section 45. Subsection (1) of Section 45 stipulates that every person who was a tenant in respect of the lands before the data of vesting and which he has been cultivating personally, is entitled to be registered as an occupant. It necessarily follows that ‘land’ means land as defined in Section 2(18) and the ‘tenant’ means tenant within the meaning of Section 2(34) of the Act. Thus it is obvious that a person seeking registration of occupancy right must establish that the land in respect of which occupancy right was claimed is ‘land’ as defined in the Act, that he is a ‘tenant’ within the meaning of the Act, that he was a tenant in respect of the said land immediately before the date of vesting and which he has been cultivating personally. These questions are to be decided exclusively by the Tribunal as stipulated under Section 133 of the Act.
18. The two conditions laid down in Section 45 for registration of occupancy right are that the person claiming registration was a tenant of the land before the date of vesting and which be has been cultivating personally. The precondition for the operation of Section 45 is that the land in question was vested in the State Government under Section 44 of the Act. In Balesharam v. Land Tribunal, Chikodi, 1978 (1) K.L.J. 116 the Full Bench of this Court, while explaining the scope of Sections 44 & 45 observed that the land held by a person in his capacity as a tenant immediately prior to the date of commencement of the Amendment Act, 1974, which was not in his actual possession before the said date, also stood transferred to and vested in the State Government under Section 44(1) if the land is not held by him under a lease permitted by Section 5 of the Act, that the land must have been tenanted immediately prior to 1st March 1974 and not at any time in the past and that the person claiming occupancy right must have been a tenant of any of the classes stipulated in Sub-Section 1 of Section 45 and such person must have been personally cultivating the land immediately before 1st March 1974 and that the primary requirement for registration of occupancy rights therefore is that the person claiming such right must have been cultivating the land personally immediately prior to 1st March 1974 and if he was then out of possession by wrongful or illegal Act of others, he cannot be registered as an occupant merely on proof that the land was tenanted and so vested in the State Government. However, it was emphasized that if the tenant who was lawfully entitled to cultivate the land personally immediately prior to 1st March 1974 but was wrongfully or illegally prevented from doing so, he may take recourse to any one of the remedies provided under the Act to recover possession from the unauthorised occupant and request the Tribunal to defer consideration of his application till the possession of the land is restored to him and if he recovers possession in accordance with law, he may then ask the Tribunal to proceed with his application on the merits and when possession is so recovered, the Tribunal has to proceed on the basis that the tenant must be deemed to have been personally cultivating the land from the date of his dispossession till the date of restoration of possession.
19. The requirements of Sections 44 and 45 which were dealt with in the decision supra, 1978(1) K.L.J. 116 are the questions to be determined on art application filed by a person claiming occupancy right under Section 48A. In a case where no objection to the claim or no objection to any part of the claim is offered, then the Tribunal may pass orders as provided under Sub-section (4) or Sub-section (5A) as the case may be and if the claim is disputed, enquiry under Sub-section (5) is peremptory before making an order and enquiry includes holding a local inspection as laid down in Section 112(6)(a) and Sub-rule (4) of Rule 17. It is necessary to notice as to what has been provided both in the Rules of procedure and also in laying down the duties of the Tribunal, is holding spot or local inspection and not holding or conducting local enquiry or investigation.
19A. This takes me to consider the scope of holding local inspection.
20. Power of holding spot or local inspection has been conferred upon both the Civil and Criminal Courts. Order XVIII Rule 18 of the Code of Civil Procedure provides for the power of the Civil Courts to inspect. It stipulates that the Court may at any stage of a suit inspect any property or thing concerning which any question may arise ; and where the Court inspects any property or thing, it shall as soon as may be practicable make memorandum of any relevant facts observed and such memorandum shall form part of the record of the suit. Section 310 of the Code of Criminal Procedure. 1973, empowers the Criminal Courts to hold local inspection. It provides that any Judge or Magistrate may at any stage of an enquiry, trial or other proceedings, after due notice to the parties visit and inspect any place in which an offence is alleged to have been committed or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such enquiry or trial and shall without unnecessary delay, record a Memorandum of any relevant facts observed at such inspection and such Memorandum shall form part of the records of the case.
21. In Hariprasad Sahu v. Ropna Kharia, AIR 1938 Patna 288 dealing with the scope of Order XVIII Rule 18 of C.P.C. the Patna High Court observed :
“Order XVIII Rule 18 lays down clearly that the Court may, at any stage of the suit, inspect any property or thing concerning which any question may arise. But a series of decisions have laid down that the observations by a judge in the course of his local investigation cannot be substituted for the evidence of witnesses examined on the subject. It is obvious that in the case of a judge’s observations, the parties never get a chance of either cross-examining him on the various points raised or setting right his views if they are found to be erroneous.”
In Achutharamayya v. Soorappayya, AIR 1939 Madras 61 the Madras High Court dealing with the local inspection by the Court under Order XVIII Rule 18 of the Cods of Civil Procedure, observed :
“When the judge welcomes the presence of crowds of anonymous villagers and indulges in informal inquiries amongst the people in those crowds for the purpose of obtaining guidance in deciding the rights of the parties and treats the result of those inquiries as evidence in the case, there is an end of all judicial procedure. A judgment must be based on evidence which is admissible in law. There is no objection to adjudge viewing the place in dispute in order to enable him to visualize the locality and to appreciate the evidence before him. But there is absolutely no warrant for the procedure whereby the judge converts himself into an unofficial investigator and inquires of all and sundry regarding their views of the rights of the parties with the object of founding a judgment on what he has heard.”
This Court in Appayya Naika v. State of Mysore, AIR 1964 Mysore 177 had to deal with the scope and ambit of local inspection held by a criminal court in a proceedings under Section 145 of the Code of Criminal Procedure in exercise of its power under Section 539B of the code of Criminal Procedure, 1898 (same as Section 310 of the Code of Criminal Procedure, 1973) wherein it is laid down :
“Where in proceedings under Section 145, the Magistrate, in deciding the question of actual possession of the property in dispute held a local inspection at the suggestion of the parties, although the circumstances disclosed did not justify it, relied upon the extra-judicial information that he collected during the local inspection, largely allowed the impression created during the local inspection to influence his conclusion, freely made use of the revenue records which were not part of the records of the proceedings without affording opportunity to the party adversely affected by The conclusion to rebut that evidence, based his conclusion solely on the title deeds and did not consider at all the statements made by the witnesses in their affidavits filed on behalf of the parties ;
Held : that the order deciding the question of actual possession of the disputed property was vitiated and could not be supported and was liable to be set aside in revision.”
(as paraphrased in the Head Note)
22. All these decisions dealing with the scope of local inspection either by the Civil Courts or by the Criminal Courts are of the unanimous view that the power of local inspection cannot be extended to use the observations by a Judge in the course of his local inspection as a substitute for the evidence of the witnesses examined on the subject as, in the case of a Judge’s observation, the parties never get a chance of either cross-examining on the various points raised or setting right his views if they are found to be erroneous, that there is no objection to a Judge viewing the place in dispute in order to enable him to visualise the locality and to appreciate the evidence before him and there is absolutely no warrant for the procedure whereby the Judge converts himself into an unofficial investigator and enquires all and sundry regarding their views of the rights of the parties with the object of founding a judgment on what he has heard and to rely upon the extra-judicial information that he collected during the local inspection and allow the impression created during local inspection to influence his conclusion. In other words, the scope of the local inspection is primarily limited to make use of the observations made by the Judge on inspecting the spot for the purpose of enabling him to better appreciate the evidence adduced by the parties and proper understanding of the case. Logically it follows that conducting of the enquiry or the trial, and examination of the witnesses should precede the holding of the local inspection and not vice-versa. Further in the case of local inspection, the Judge is not empowered to question the people gathered at the time of the local inspection and collect information from them as it is usual that a large body of men would collect when a Judge or other authority go for local inspection and incorporate the summary of their say in his local inspection report and obtain their signature to it and make use of the same for moulding his decision one way or the other. This is essentially so when the power given to the Judge or the authority is one of local inspection and not local investigation or local enquiry.
In my view, these principles equally apply respecting the power of holding local inspection conferred on the Tribunals under the Act.
23. The view I take on the question gains support from a ruling of this Court in Belliappa v. Muthanna, ILR (Karnataka) 1980(1) 195 The relevant observations are found in para 15 of the order read :
“Local inspection forms part of enquiry. It is made so by the Amending Section 32 of Karnataka Land Reforms (Amendment) Act, 1979 which has amended Section 112 of the Act by inserting words “including local inspections” after the words “holding enquiries” in item A(I) under heading ‘B’ of Section 112 of the Act. Power of local inspection given to the Tribunal under the said amending Section will enable the Tribunal to better understand and appreciate the evidence on record. Hence, what has to be remembered by the Tribunal is that local inspection will serve its purpose if it is held after the completion of recording the evidence in the given case. As the parties interested in the case before the Tribunal are entitled to be present at the time of local inspection, the Tribunal has to hold the local inspection after giving due notice to the persons interested. Records or notes of such inspection should as far as possible be made immediately thereafter. I may state in this context that the practice of certain Tribunals of recording the evidence of persons whom they way meet at the time of local inspection, and preparing mahazars with the signatures of those persons can be of no use to the Tribunal inasmuch as the evidence so recorded or the mahazars so prepared cannot be used by the Tribunal in deciding the cases before it. It has to be remembered that the local inspection is meant to provide an opportunity to the members of the Tribunal to observe with their own eyes about the location of the land concerned in the dispute, the special features of the land and the surroundings thereof. If notes of inspection is prepared by the members of what they had observed in the course of local inspection, such notes will be definitely of assistance to the Tribunal in better following and understanding the evidence adduced by the parties in the case and appreciate the same. The Tribunal also has to bear in mind the fact that the evidentiary value of the notes of inspection though is by no means inferior to that of any other evidence, such evidence cannot totally displace the evidence recorded by it, as the main purpose of the notes of inspection is only to enable the Tribunal to understand and appreciate the evidence already adduced by the parties. However, it has to be noted that the notes of inspection will enable the Tribunal to test the accuracy of the evidence given by either of the parties in matters capable of observation. After recording of evidence and holding of local enquiry, if any of the parties desire that the Tribunal should hear their arguments in respect of various matters concerning the case, it would be desirable for the Tribunal to afford them such an opportunity, as such arguments may be of assistance to the Tribunal in making a just order.”
POINT No. 3 :
24. The 3rd respondent has produced a copy of Form-7 application said to be the true copy of the application made by him in the year 1974 obviously on the ground that the original application was found missing. As per the entry in the GDR, the original application was shown to have been made on 23-8-1974 claiming occupancy right in respect of only one S. No. 8/9A belonged to one Mahalinga Bhatta whereas in the copy of the application, the 3rd respondent has included four more items of lands of which two items of lands belonged to the petitioner. The surveyor in his report added two more survey numbers also belonged to the petitioner. The Tribunal proceeded on the basis, as could be seen from the impugned order that the claim made by the 3rd respondent was in respect of all the items of lands shown in the surveyor’s report. The petitioner had disputed the missing of the original claim application made by the 3rd Respondent and also challenged the correctness and genuineness of the copy of the application produced by the 3rd respondent. Such being the position, the Tribunal should have held a preliminary enquiry and determined whether the original application made by the 3rd Respondent was really missing and that the copy of the application produced was the true and correct copy of the original application. Without conducting a preliminary enquiry and recording a finding on the question of missing of the original application and the genuineness and correctness of the copy of the application, the enquiry conducted on the basis of the copy of the application and the surveyor’s report was wholly erroneous and without jurisdiction.
POINT No. 4 :
25. It is seen from the records that the application made by the 3rd Respondent was taken up for enquiry by the IV Additional Land Tribunal. It had issued the notice to the parties to appear before it on 22-8-1981. On 22-8-1981, it had conducted the enquiry, recorded the statement of the parties, received the documents, held the local inspection on 17-9-1981 and posted the case for further enquiry on 28-9-1981. Thereafter on 30-104981 the case was withdrawn from the file of the IV Additional Land Tribunal and transferred to the file of the III Additional Land Tribunal by the Deputy Commissioner on an application filed by the 3rd respondent for transfer, but the order in the case was passed by the I Additional Land Tribunal. The records do not show as to how the case was disposed of by the I Additional Land Tribunal when the case was directed to be transferred to the file of the III Additional Land Tribunal by the competent authority. In that view, it seems to me that the impugned order passed by the I Additional Land Tribunal was without jurisdiction.
POINT NO. 5 :
26. In the instant case, as could be seen from the records, the 3rd respondent had presented an application in Form-7 on 23-8-1974 claiming occupancy right in respect of S.No. 8/9A of which one Mahalinga Bhatta was the owner as found in the entry in the GDR. The 3rd respondent later produced a copy of the application said to be the copy of the original application made by him in Form-7 along with a postal acknowledgment for having sent the original application to the Land Tribunal, obviously on the assumption that the original application was found missing in the office of the Land Tribunal, Bantwal. The Secretary of the Land Tribunal, Bantwal, sent an extract of the entry in the GDR relating to the original application made by the 3rd respondent along with the copy of the application and the postal acknowledgment produced by the 3rd respondent to the Secretary, Additional Land Tribunal, Bantwal, as per his endorsement dated 3-9-1980. The file was put up before the Additional Special Tahsildar, Land Reforms, Bantwal, for necessary orders on 13-11-1980 whereupon the Additional Special Tahsildar forwarded the entire file to the I Division Surveyor, Ujjappa for measurement and report as par his endorsement dated 14-11-1980. The surveyor issued notices to the parties on 21-1-1981 in which he has referred to S. Nos. 8/9A, 8/9B, 7/2, 12/1A and 11/11 and directed the parties to be present on 4-2-1981. The surveyor submitted his report with the sketch to the Secretary of the II Land Tribunal, Bantwal on 4-2-1981, not only in respect of the five survey numbers mentioned in the notice but also in respect of two other survey numbers 11/3 and 11/4B, of which the petitioner was the owner of ‘A’ schedule properties consisting of S. Nos. 12/1 A, 11/11, 11/4B and another S. No. 11/3. The Tribunal proceeded on the basis that the 3rd respondent had claimed occupancy right in respect of all the survey numbers mentioned by the surveyor in his report. Although the entry in the GDR relates only to S.No. 8/9A belonged to Mahalinga Bhatta, the 3rd respondent has included in the copy of the application which was forwarded to the surveyor for measurement and report five survey numbers including Survey No. 8/9A belonged to Mahalinga Bhatta and also Survey No. 12/1A and 11/11 of which the petitioner was the owner. The surveyor in his report in addition to the five items of land mentioned in the copy of the application forwarded to him, included two more items of lands Survey No. 11/3 and 11/4B also belonged to the petitioner. Indeed these two survey numbers have not even been included by the 3rd respondent in the copy of the application produced by him. Besides what was claimed by the 3rd respondent was the whole of the subdivision of the survey numbers and not portions thereof. The surveyor in the guise of measuring the lands has also recorded the statements of the parties and enclosed them to the report. After the report was filed by the surveyor, the Tribunal issued notice on 10-7-1981 fixing the date of enquiry on 22-8-1981 on which day the enquiry was commenced. On that day the Tribunal recorded the statement of the parties, received the documents filed by them and posted the case for local inspection on 17-9-1981. On 17-9-1981 the Tribunal held the local inspection and in doing so, questioned a number of persons gathered at the time of the local inspection and incorporated their say in the local inspection report and obtained their signatures to it. The Tribunal as could be seen from the impugned order, not only proceeded with the enquiry on the assumption that the 3rd respondent had claimed occupancy right in his claim application in respect of all the items of lands shown in the surveyor’s report but also freely made use of the local inspection report and the information it collected from amongst the people in the crowd at the time of holding local inspection in deciding the issue in favour of the 3rd respondent. This procedure adopted by the Tribunal, in my view, is wholly impermissible and beyond its jurisdiction. The surveyor’s report as well as the local inspection report cannot be treated as evidence in the case and they are to be excluded. In this view of the matter, it must be held that the enquiry conducted by the Tribunal is not in accordance with law.
27. Sri P Vishwanatha Shetty, learned Advocate, sought leave of the Court to make his submission on the question of powers of the Tribunal in obtaining a report from the Surveyor on an application made under Section 48A of the Act and also on the scope and object of the local inspection to be conducted as part of the enquiry as the decision on these points will have a direct bearing on the question involved in W. P. No. 33788/81 in which he appears for one of the parties. The permission sought by Sri Shetty was granted since the points on which he desired to address his argument are questions of law.
28. Sri Shetty in the course of his arguments inter alia contended that one of the objects to be achieved under the Act is to confer ownership on the tenants of the lands held by them as tenants, that the tenants are by and large illiterates and not well-versed in conducting the litigation, that the need for referring the application made by them to the Surveyor and calling for a report from him in respect of the lands over which occupancy right was claimed would sub-serve the desired result to be achieved under the Act and in that view, even though there is no specific provision either under the Act or under the Rules to refer the matter for obtaining a Surveyor’s report, such a power should be deemed to have been vested in the Tribunal as part of holding the enquiry. On this basis he proceeded to argue that it is necessary to refer the application made under Section 48A of the Act to the Surveyor even if occupancy right is claimed in respect of the whole of survey number or the whole of a sub-division of a survey number and even where the question of identify of the property claimed does not involve and obtain a report from him in respect of the lands in the possession of the claimant so as to enable the Tribunal to adjudicate effectively the claim and conferment of occupancy right.
29. It seems to me that this argument is neither sound nor tenable, nor is it desirable to hold so, as it would cause greater injustice and give scope for laying speculative and dishonest claim over the properties in respect of which he did not lay claim for grant of occupancy right in his application, by pointing out to the surveyor the lands not claimed in his application alleging that he is in possession of them as well, as a tenant. That this could not be the function of the Tribunal is clear from the provisions of the Act and the Rules framed thereunder. A person entitled to be registered as an occupant under Section 45 of the Act is required to make an application in Form-7 giving all the details required to be mentioned therein including the survey number, the sub-division of a survey number, its extent, its situation such as village, taluk and district, the name of the owner and the period during which he was holding the land as tenant etc. In other words, before making an application in Form-7, he is required to collect these materials from the concerned authorities and make an application, furnishing all these details. On receipt of the application, Rule 19 requires verification of the application, by the concerned Tahsildar with reference to the revenue records and the records of rights wherever they are prepared and note the same on the application. Thereafter, public notice and the individual notice in Form 8 and 9 respectively as contemplated under Sub-section (2) of Section 48A shall have to be published and issued respectively, furnishing the details of the land over which occupancy right was claimed so as to enable the interested parties to submit their say. With all these, if the claimant discovers any mistake in his Form-7 application made to the Tribunal such as misdescription of the property claimed or mentioning wrong survey number or furnishing incorrect extent of the land or omitting to include any item of land, he could seek amendment of the application with the leave of the Tribunal as provided under Sub-section (3) of Section 48A of the Act. Thus the provisions of the Act and the Rules framed thereunder provide all safeguards to protect the interest of every person who claims occupancy right under the Act. As noticed earlier, the Tribunal, no doubt could refer the matter to the surveyor and obtain his report only for the purpose of identifying the property under the circumstances detailed and not beyond that. If the contention of Sri P.V. Shetty is accepted, it would, in my view, wide open the flood-gate of dishonest and mischievous claims under the guise of a report from the surveyor in every case for which there is no sanction of law.
30. Sri Shetty next contended that the scope of the local inspection and the stage at which the local inspection is to be held by the Tribunal in the course of the enquiry under the Act are not circumscribed and restricted as laid down by the judicial decisions in the case of local inspection by the Civil and Criminal Courts. In this regard his submission was that the Tribunal could hold a local inspection even before commencing the enquiry and recording the evidence and further in the course of the local inspection, the Tribunal could question the neighbours as well as the persons gathered at the local inspection and whatever information the Tribunal collected from them would form part of the local inspection report and could be used as a piece of material to arrive at a just decision. In support of his contention that the local inspection could be held even before commencing the enquiry and recording the evidence, Sri Shetty has placed reliance on certain observations made by this Court in Lakshmi Shedthi v. Udupi Taluk Land Tribunal, 1978 (1)KLJ 119.
31. As noticed earlier, the scope of the local inspection is primarily limited to make use of the observations made by the Judge/Tribunal on inspecting the spot for the purpose of enabling him/it to better appreciate the evidence adduced by the parties and proper understanding of the case. Logically it follows that conducting of the enquiry or trial & examination of the witnesses should precede the holding of the local inspection and not vice-versa. That is why local inspection is made part of the enquiry and not indepedent of the enquiry. Since the power of local inspection given to the Tribunal under the Act is to enable the Tribunal to better understand and appreciate the evidence on record, the proper stage at which local inspection to be conducted is only after the parties placed their evidence on record. Holding of local inspection before the parties placed their evidence on record would amount to putting the cart before the horse and would serve no purpose. On the other hand, it will have the effect of creating an impression in the mind of the Tribunal and it would result in pre-judging the issue before understanding the nature and scope of the evidence to be adduced by the parties. Thus it looks to me as noticed earlier that the local inspection shall have to be conducted only after recording the evidence and not before, so as to do full justice to he parties. The observation of this Court made in Laxmi Shedthi’s case, ILR (Karnataka) 1980(1) 195 (Supra) — “It is no doubt true that if a state of things is shown to exist, an inference of its continuity within a reasonable proximate time both forwards and backwards, may sometimes be drawn” — will not help to contend that the local inspection may be held event before recording the evidence.
32. Now turning to the next limb of the argument that it is permissible for the Tribunal to question the neighbours or the persons amongst the crowd collected during the local inspection and record their say on the question to be decided in the local inspection report and rely upon the same as a piece of material, deserves to be rejected straightaway as it has no sanction of the law either under the Act or the Rules. It strikes against the very fundamentals of administration of justice. Whatever information the Tribunal collect in an informal inquiry amongst the people gathered during the local inspection and incorporate the same in the local inspection report, it will not be evidence. There is absolutely no warrant for procedure whereby the Tribunal would convert itself into an unofficial investigator and enquire all and sundry regarding their views of the rights of the parties with the object of founding a judgment on what it had heard. A judgment or order must be based on evidence which is admissible in law. Elaborate procedure has been laid down under the Rules for recording the evidence. The Tribunal is not be permitted to rely upon the extra-judicial information that it has collected during the local inspection and allow the impression created by it to influence its conclusion. The parties will have no opportunity to test the correctness of such local inspection report. Thus I find no force in this argument.
33. Having regard to all the facts of the case, and also the discussion and the conclusion reached supra, the impugned order Annexure-A is liable to be quashed and the matter is required to be remanded to the Tribunal for fresh consideration.
34. In the result, for the reasons stated above, rule issued is made absolute. The impugned order Annexure-A is quashed. The matter is remanded to the Tribunal for fresh disposal in accordance with law and in the light of the findings contained in the order, after giving opportunity to both the parties to adduce evidence and also of being heard. In the circumstances of the case, I direct each party to bear his own costs.