ORDER
1. This writ petition came to be registered on receipt of the appeal papers in Appeal No. LRA 872 of 1986 on the file of the District Land Reforms Appellate Authority, Bangalore District. That appeal was registered as a deemed appeal on transfer of W.P. No. 33742 of 1982 by this Court. In the said writ petition, the petitioner herein had challenged the order dated 26-7-1982 in No. CRF INM 159 ATC 84 of 1979-80. In passing the same, the respondent 2-the Land Tribunal, Anekal had rejected the claim of the petitioner as well as that of the respondent 1 on the ground that the earlier order dated 10-3-1975 in case No. AIMI-7:74-75 the non-party Special Deputy Commissioner, Bangalore District, had granted occupancy right in respect of 3 acres 13 guntas in Sy. No. 4 of Nekkundi, Dommasandra Village, Anekal Taluk, to the respondent 1.
2. This matter had been listed for preliminary hearing ‘B’ Group and by consent of parties, the matter had been taken up for final hearing. Accordingly, rule is hereby issued.
3. I heard the learned Counsel for the petitioner, Sri B.N. Ananthanarayana and the learned Counsel for the contesting respondents 1 and 4, Sri S.N. Bhat. The respondent 2-the Land Tribunal and the respondent 3-the State are represented by the learned Additional Government Advocate, Sri M.N. Ramanjaneya Gowda. I heard all of them and further perused the writ papers as well as the Appellate Authority.
4. I feel that the facts of the case in brief are necessary to be narrated. The same are as hereunder:
5. That, the petitioner herein had put forth his claim for grant of occupancy right before the non-party Special Deputy Commissioner on 10-10-1974 in Form No. 1 under the Karnataka Certain Inams Abolition Act. That, thereafter, he had yet again put forth his claim on 10-10-1974
and on 25-3-1978 before the non-party Special Deputy Commissioner. The claim was made in respect of 3 acres 13 guntas in Sy. No. 4 of Nekkundi Domniasandra Village (henceforth referred to as ‘subject land’) as a tenant under the respondent 4. That, the respondent 1 claiming to be an Archak of the respondent 4-Sri Veerabhadraswamy Temple had also filed his claim, also in Form No. 1 before the non-party Special Deputy Commissioner claiming occupancy right based on his service to the respondent 4-the deity. That, the non-party Special Deputy Commissioner had granted the occupancy right to the respondent 1 by his considered order dated 10-3-1975, whereas he had not decided the claim of the petitioner. That, with the change of jurisdiction, the non-party Special Deputy Commissioner forwarded the claim papers of the petitioner to the respondent 2-the Land Tribunal for consideration of the same. That, before the Land Tribunal, the respondent 1 yet again filed Form No. 7 claiming occupancy right in respect of the subject land. That, the Land Tribunal considered the claim of the petitioner that was transferred by the non-party Special Deputy Commissioner and further the claim of the respondent 1 put forth before it and passed the common order. In passing the same, the Land Tribunal had rejected the claim of both the parties on the ground that the land in question was granted to the respondent 1 by the Special Deputy Commissioner by his considered order dated 10-3-1975. Having been aggrieved thereof, the petitioner had resorted to the writ petition in W.P. No. 33742 of 1982. That, the writ petition was transferred to the Appellate Authority as stated above. That, before the Land Reforms Appellate Authority, the petitioner had filed an application to adduce additional evidence by the Appellate Authority, which came to be abolished later and with the result, the original writ petition is back to square and therefore, the original writ petition wherein the order dated 10-3-1975, copy as at Annexure-A to that writ petition is before this Court.
6. The learned Counsel for the petitioner while taking me through the impugned order and further the facts of the case submitted that the Land Tribunal would have recalled the order dated 10-3-1975 passed by the Special Deputy Commissioner granting occupancy right to the respondent 1 and further considered the claim of the petitioner on the one side and the claim of the respondent 1 commonly to pass a common order. Therefore, according to him, the Land Tribunal had entered into an error in rejecting the claim of the petitioner as well as that of the respondent 2 made on the second occasion mainly on the ground that the non-party Special Deputy Commissioner had already granted occupancy right and as such the subject land was not available for the Land Tribunal to grant. In support of his argument, he had also cited before a reported decision of the learned Single Judge of this Court in Sri Mallikarjuna Sharma Shivacharya Swamy Gurumallikarjuna Swamy Hire-math (since deceased) by his successor in interest v Vishwanath Basalingappa Hiremath and Others.
7. The learned Counsel for the contesting respondent 1, Sri S.N. Bhat on the other side while supporting the impugned order passed by the Land Tribunal argued that under Section 6-A of the Karnataka Personal and Miscellaneous Inams Abolition Act, the Land Tribunal had to consider only the case of an Archak and as such, according to him, it was totally impermissible for the petitioner to put forth his claim either before the non-party Special Deputy Commissioner or for that matter before the Land Tribunal. He had also cited a Division Bench Ruling of this Court in M.N. Shivappa v State of Karnataka and Others, wherein Section 6-A of the Inam Abolition Act, 1954 as amended in 1973 came for consideration.
8. In the light of the above submissions made, the points that arise for my consideration are as hereunder:
1. Whether there was justification on the part of the non-party Special Deputy Commissioner to transfer the claim of the petitioner alone to the Land Tribunal while leaving the earlier dated 10-3-1975 granting occupancy right in respect of the subject land to the respondent 1 to sustain.
2. Whether the impugned order passed by the Land Tribunal in rejecting the claim of the petitioner as well as that of the respondent 1 made on the second occasion is just and proper.
3. Whether the order passed by the non-party Special Deputy Commissioner on 10-3-1975 granting occupancy right to the respondent 1 has to be interfered with by this Court in the instant writ petition or not.
9. Regarding Point No. 1: It is an admitted fact that the respondent 1 had filed Form No. 1 claiming occupancy right in respect of the subject land as an Archak. It is also an admitted fact that the petitioner herein had also filed Form No. 1 on more than one occasion claiming occupancy right claiming to be tenant before the non-party Special Deputy Commissioner. When the jurisdiction vested in the Special Deputy Commissioner was transferred to the Land Tribunal, the Special Deputy Commissioner had transferred the claim of the petitioner for consideration of the same by the Land Tribunal. It is not in dispute that the subsequent application filed by the petitioner before the Special Deputy Commissioner was well in time. Furthermore, it is also not in dispute that both the parties have put forth the claims in respect of the common land situated in common survey number. If the Special Deputy Commissioner had granted the occupancy right to the respondent 1 in consideration of his earlier application and that subsequently, the petitioner herein had also filed his claim in respect of the very same land well in time, to me it appears that the Special Deputy Commissioner would have recalled the order dated 10-3-1975 granting occupancy right to the respondent 1 and thereafter transferred the claim of the petitioner on the one side and the respondent 1 on the other to the Land Tribunal.
This, in fact, was the view of the Division Bench of this Court in Basappa Gurusangappa v Land Tribunal, Badami and Others . In the said decision, the Division Bench held that if a rival applicant filed his application earlier and the Tribunal had granted the occupancy right in respect of the land to one and subsequently another applicant had filed an application well in time, the Tribunal was duty bound to consider the later application by setting aside its earlier order and thereafter consider both the applications commonly. In the above decision the Division Bench of this Court held as hereunder:
“Appellant had locus standi to file the appeal. The fact that he had not made a separate application seeking leave of the Court to prefer the appeal was only a formal defect and did not affect the jurisdiction of the Court to deal with the appeal.
Even if one of the rival applicants had filed his application earlier and the Tribunal had granted him occupancy right in respect of the land and subsequently another applicant makes an application within the time limit provided by Section 48-A in respect of the same land, the Tribunal is bound to consider the later application by setting aside its earlier order and consider both the rival applications”.
10. This, in fact, what the Special Deputy Commissioner would have done before transferring the claim of the petitioner as well as that of the respondent 1 to the Land Tribunal as I have observed hereinabove. Therefore, in my considered view, there was no justification on the part of the non-party Special Deputy Commissioner to transfer only the claim of the petitioner leaving at rest the order dated 10-3-1975 that came to be passed in favour of the respondent 1 granting occupancy right to him.
11. Regarding Point No. 2: In consideration of the claim of the petitioner that was transferred by the non-party Special Deputy Commissioner to the Land Tribunal and further in consideration of the fresh application made by the respondent 1 in Form No. 7 before the Land Tribunal, the Land Tribunal had passed the impugned order rejecting both the claims on the ground that the subject land was not at all available for grant inasmuch as the non-party Special Deputy Commissioner had granted the subject land to the respondent 1 by his considered order dated 10-3-1975.
12. I have developed genuine doubt whether the Land Tribunal could recall the order dated 10-3-1975 that was passed by the non-party Special Deputy Commissioner, for the reason that the jurisdiction to try the claim under the Karnataka Certain Inams Abolition Act, 1977 came to be withdrawn in favour of the Land Tribunal. The learned Additional Government Advocate argued that when the jurisdiction was changed from the Special Deputy Commissioner to the Land Tribunal, it was very much permissible in law for the Land Tribunal to recall that order passed by the Special Deputy Commissioner and consider the claims
commonly to pass a common order. I sought the assistance of the Bar in this regard. The learned Counsel, Sri Mohandas N. Hegde, present before Court assisted me in this regard. It is his argument that when the Special Deputy Commissioner had passed the order granting occupancy right to the respondent 1 in consideration of the application earlier, it was not available for the Land Tribunal to recall that order. According to him, that order had to be interfered within the process known to law and in the ordinary course of event that would have been in the hands of the KAT as the law stood then.
12-A. I have given my anxious consideration on the point at controversy before me. To me it appears that the argument of the learned Additional Government Advocate is more acceptable, for it was only the jurisdiction that was changed from the Special Deputy Commissioner to the Land Tribunal in the matter of trying the claims of the parties put forth in Form No- 1 made under the Karnataka Certain Inam Abolition Act or in other words to say that the Special Deputy Commissioner was exercising the jurisdiction under the Karnataka Certain Inams Abolition Act in the earlier round, whereas the Land Tribunal was vested with the very same jurisdiction in the second round. Therefore, in the said facts and circumstances of the case, it appears to me that it was permissible for the Land Tribunal to recall the order that came to be passed granting occupancy right to the respondent 1 by the Special Deputy Commissioner.
13. Therefore, in my considered view, in the peculiar facts and circumstances of the case, instead of considering the claim of the petitioner as well as that of the respondent 1 made before it, the Land Tribunal would have recalled the order dated 10-3-1975 passed by the Special Deputy Commissioner granting occupancy right to the respondent 1 and further considered the claim of the petitioner on the one side and the claim of the respondent 1 on the other commonly, no matter that the same was made in the second round in Form No. 7. Hence, it also appears to me that the Land Tribunal was at error in rejecting the claim of the petitioner as well as of the respondent 1 as it did.
14. Regarding Point No. 3: Now I consider the Point No. 3. In consideration of the Points Nos. 1 and 2, I have come to the conclusion that the non-party Special Deputy Commissioner would have recalled the order and transferred the claim of the petitioner as well as of the respondent 1 to the Land Tribunal when there was change of jurisdiction and that when that was not done by the non-party Special Deputy Commissioner, the Land Tribunal would have recalled the order dated 10-3-1975 granting occupancy right to the respondent 1 and further considered the claim of the petitioner on the one side and that of the respondent 1 on the other commonly. Therefore, it is obvious that the order dated 10-3-1975 passed by the non-party Special Deputy Commissioner has to be interfered with at least now in the instant writ petition and that the same has to be quashed, no matter that the same is not challenged before this Court in the writ petition. Hence, I feel it appropriate to do so by following the Ruling of the Division Bench of this
Court in Basappa Gurusangappa’s case, supra. But now yet again, the jurisdiction of the Land Tribunal had been withdrawn in favour of the Special Deputy Commissioner in view of the law laid down by the Division Bench of this Court in Shri Kudli Sringeri Maha Samsthanam, Kudli v State of Karnataka and Others.
15. In view of the above, I feel that it is appropriate for this Court to remit the matter to the non-party Special Deputy Commissioner to decide the claim of the petitioner on the one side as well as the claim of the respondent 1 on the other by holding common enquiry.
Therefore, I pass the following:
ORDER
1. The impugned order dated 26-7-1982 in case No. CRF INM 159 ATC 84 of 1979-80, passed by the respondent 2-the Land Tribunal rejecting the claim of the petitioner as well as the respondent 1, copy as at Annexure-A in W.P. No. 33742 of 1982 is quashed and further the order dated 10-3-1975 in No. AIMI 7:74-75 passed by the non-party Special Deputy Commissioner granting occupancy right in respect of the subject land to the respondent 1 is also quashed.
2. The matter is remitted to the non-party Special Deputy Commissioner to consider the claim of the petitioner on the one side and the claim of the respondent 1 on the other in respect of the subject land commonly to pass a common order. Let the non-party Special Deputy Commissioner do that after holding due enquiry in consonance with law after issuing notices to both the sides and also to the respondent 5-the Tahsildar, who is the Muzrai Officer of the respondent 4-the deity.
3. In view of the circumstances that the claims of the parties have not been decided one or the other for long, the non-party Special Deputy Commissioner is also directed to dispose of the claims within a period of six months from the date of communication of this order.
4. The writ petition therefore succeeds and accordingly stands allowed. Rule issued earlier made absolute. No cost.
The Registry is directed to forward the case records of the Land Tribunal together with the copy of this order to the non-party Special Deputy Commissioner, Bangalore Urban District, as he has not been made a party before this Court in the writ petition. The Registry may also forward a copy of this order to the Land Tribunal, Anekal for its information.
The learned Additional Government Advocate is directed to forward a copy of the order herein passed separately to the Special Deputy Commissioner, Bangalore Urban District, Bangalore.