ORDER
Jagannatha Shetty, Ag. C.J.
1. The learned Single Judge being of the opinion that an important question, viz., the ambit and scope of Section 19 of the Karnataka Land Reforms (Amendment) Act, 1986 (Karnataka Act No. 19/86) (hereinafter called 'the Amendment Act') falls for consideration in these petitions, has referred the same to a Division Bench for disposal.
2. In all these petitions, the challenge is to the orders made by the Land Tribunals, under Section 48A of the Karnataka Land Reforms Act, 1961 ('the Act'). Till the coining into force of the Amendment Act such orders had been made final as provided under Sub-section (6) of Section 48A of the Act. Neither an appeal nor a revision nor even a review on merits was provided. The parties aggrieved by the orders of Land Tribunals had only to take recourse to the Writ Jurisdiction of this Court. Therefore, these petitions bad been preferred under Articles 226 and 227 of the Constitution of India.
3. For the first time by introducing Sub-section (1-A) to Section 118 of the Act by Section 8 of the Amendment Act, an appeal against every decision of the Land Tribunal to an Appellate Authority has been provided for. Likewise, adding Section 121A to the Act by Section 11 of the Amendment Act, a further revision to this Court has been provided for against the orders of the Appellate Authority.
In so far as the orders of Land Tribunals are concerned, it is only such orders pronounced subsequent to the coming into force of the Amendment Act that can be challenged in an appeal and thereafter in revision.
As far as the decisions rendered by Land Tribunals prior to the coming into force of the Amendment Act are concerned, if the petitions have been presented before this Court and rule nisi is issued, Section 19 of the Amendment Act enables this Court to transfer the Writ Petitions or Writ Appeals as the case may be, if it deems fit to the Appellate Authority for disposal according to law, as if they were appeals presented before it.
The question is what is the criteria for transferring the Writ Petitions or Writ Appeals to Appellate Authorities under Section 19 of the Amendment Act read with Article 226 of the Constitution of India.
While examining the scope of Section 19, it may be relevant to consider as to why the legislature thought it fit to amend the provisions of the Act by providing for an appeal against every order of the Land Tribunal.
4. The Land Tribunals are constituted at the Taluk level and each Tribunal is presided over by an Officer of the rank of an Assistant Commissioner and also consists of certain non-official members. The aggrieved parties had no remedy under the Act to challenge the orders of Land Tribunals. They had no go other than to approach this Court by means of Writ Petitions under Articles 226 and 227 of the Constitution. The scope of enquiry under Articles 226 and 227 of the Constitution is very much limited. The investigation of disputed facts is not permissible and the finding of fact recorded by Tribunals are seldom interfered with unless such finding has been vitiated by consideration of irrelevant material or by non-consideration of material evidence. So most of such petitions resulted in the orders of the Tribunals being struck down and matters remitted to Land Tribunals for fresh disposal according to law. In a large number of cases, the aggrieved parties had to approach this Court again and again in respect of the same matter.
5. While disposing of the petitions, in several cases this Court had occasion to refer to this sorry state of affairs and the need to take appropriate steps to remedy the situation. Observations made in one such case and to which there is also reference in the preamble to the Amendment Act may be noted. In Yellappa Adivappa Madiwalar -v.- The State and ors., W.P. No. 28841 1981 etc. DD. 14th August 1985 it is observed as follows :
'Orders similar to the impugned orders have been quashed, by this Court in more than twenty to thirty thousand Writs filed against the orders of the Land Tribunals in this State. Inspite of the directions made by this Court in those Writ Petitions, it is manifestly clear that the Tribunals have not in any way made any effort to improve their performance in the discharge of their duties for a satisfactory adjudication of the tenancy rights of the poor tenants. Therefore, it is a matter for the Government to take notice of this unsatisfactory and perfunctory, manner in which the Tribunals are discharging their adjudicatory functions and consider whether the Karnataka Land Reforms Act should be suitably amended by constituting Appellate Tribunals consisting of the District Judge and Deputy Commissioner at the District level with power to take additional evidence if necessary, for rendering substantial justice to the parties at the District level instead of compelling them to some to the High Court where in exercise of its extra-ordinary jurisdiction it is not possible to give them substantial relief. The accessory recommendations have already been made by the High Court in this regard but these observations have been made in the light of the experience of this Court in more than twenty thousand. Writ Petitions which have been disposed of over a period of 3 to 4 years.'
It is against this background, the relevant provisions of the Amendment Act may be noticed :
Section 7 of the Amendment Act inserting Section 116A provides for constitution of Appellate Authority. It reads :
'7. Insertion of new Sections 116A and 116B :- After Section 116 of the Principal Act, the following Sections shall be inserted, namely :-
116A. Appellate Authority- (1) The State Government shall, by notification, constitute a Land Reforms Appellate Authority for each district or a part of a district or group of districts, as may be specified in the notification, consisting of two members, of whom, one shall be an officer in the Cadre of Civil Judge (hereinafter referred to as Judicial Member) and the other, an officer not below the rank of a Deputy Commissioner and includes a Civil Judge or Principal Civil Judge, as the case may be, to whom a reference is made under Section 116B.
(2) ......................................................
116B.........................................................'.
Section 8 of the Amendment Act has inserted Sub-section (1A) to Section 118 of the Principal Act, It reads :
'8. Amendment of Section 118.- In Section 118 of the Principal Act, before Sub-section (2), the following sub-section shall be inserted, namely :-
'(1A) Save as otherwise provided in this Act, from every decision or order passed by the Tribunal under this Act, after the commencement of the Karnataka Land Reforms (Amendment) Act, 1986, an appeal shall lie to the Appellate Authority ; and the Appellate Authority shall send a copy of every order passed by it to the Tahsildar, the Secretary of the Tribunal and the parties concerned.'
Section 6 of the Amendment Act has inserted Sub-section (2) to Section 113 of the Principal Act. It reads :
'6. Amendment of Section 113.- Section 113 of the Principal Act shall be renumbered as Sub-section (1) thereof and after Sub-section (1) as so renumbered, the following subsections shall be inserted namely :-
'(2) The Appellate Authority shall, for the purposes of the disposal of the appeals before it, have the same powers as are vested in a Court of Appeal under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), except the following, namely ;-
(a) power of remanding the appeal to the Tribunal, either for recording fresh decision or for recording further evidence or for any other purpose ;
(b) power of referring any point or points for decision to the Tribunal ;
(c) such other matters as may be prescribed ;
(3) ........................................................'.
By Section 11 of the Amendment Act, Section 121A has been inserted conferring revisional power on the High Court. It reads :
'11. Insertion of new Section 121A.-After Section 121 of the Principal Act, the following Section shall be inserted, namely :-
121A. Revision by the High Court.-The High Court may at any time call for the records of any order or proceeding recorded by the Appellate Authority under this Act or any other law for the purpose of satisfying itself as to the legality of such order or as to the regularity of such proceeding and may pass such order with respect thereto as it thinks fit ;
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard.'
Section 19 of the Amendment Act provides:
'19. Transfer of pending proceedings.- The High Court may, if it deems fit, transfer to the Appellate Authority having jurisdiction, a Writ Petition preferred to it against an order passed by the Tribunal, under the Karnataka Land Reforms Act, 1961 or under any other law, either before or after the coming into force of the Karnataka Land Reforms (Amendment) Act, 1986 in which rule has been issued by it after condoning the laches, if any and any appeal preferred against the orders passed in such Writ Petition and admitted by it, pending before it. On such transfer, the Writ Petition or as the case may be, the Writ Appeal shall, notwithstanding anything contained in this Act, be deemed to be an appeal filed before the Appellate Authority and the parties thereof may be permitted to amend their pleadings in such manner as they may deem fit.'
6. From the above provisions, it will be seen that the Appellate Authority envisaged shall consist of two members, of whom, one shall be an officer in the cadre of Civil Judge and the other, an officer not below the rank of a Deputy Commissioner. From every decision or order passed by the Tribunal, after the commencement of the Amendment Act, an appeal shall lie to the Appellate Authority. The Appellate Authority has been conferred with the same powers as are vested in a Court of Appeal under the Code of Civil Procedure, 1908 except the power of remanding the appeal to the Tribunal or the power of referring any point or points for decision to the Tribunal.
7. Section 19 of the Amendment Act is an enabling provision for the High Court to transfer the pending Writ Petitions to the Appellate Authority. It states that the High Court may, if it deems fit, transfer-to the Appellate Authority having jurisdiction, a Writ Petition preferred to it against an order passed by the Tribunal. The Writ Petition might have been preferred either before or after the coming into force of the Amendment Act in which Rule has been issued by the Court after condoning the laches, if any. It also states that the High Court may, if it deems fit. transfer any appeal admitted against the orders passed in such Writ Petitions. If the High Court transfers such Writ Petition or Writ Appeal, then, it shall, notwithstanding anything contained in the Amendment Act, be deemed to be an appeal filed before the Appellate Authority and the parties may also with the permission of the Appellate Authority amend the pleadings in such manner as they deem fit.
8. No doubt, Section 19 provides that the High Court may, if it deems fit, transfer Writ Petition or Writ Appeal to the Appellate Authority. It is a discretion but not a mandate. It is out of deference and in keeping with the powers of the High Court under Articles 226 and 227 of the Constitution. No legislative mandate, however, could be directed to the High Court to take off the list any matter pending under Article 226 or 221 of the Constitution of India. No law can take away or curtail the jurisdiction of the High Court under Article 226 except by way of amendment of the Constitution.
9. It, however, becomes obvious that it was the intent of the legislature that those who have filed the Writ Petitions in the Court challenging the orders of Land Tribunals, may also have a remedy by way of an appeal before the Appellate Authority if the High Court thinks that such a remedy should be provided to the parties. The Appellate Authority has got wide powers : (i) To take additional evidence ; (ii) To re-appreciate the entire evidence; and (iii) To take appropriate decision on facts and also on law. It would be, therefore, proper for the High Court to transfer the Writ Petitions if the order of the Tribunal was made without holding a proper enquiry, or it is perfunctory or unsatisfactory in the light of the material on record or in the light of the the contentions raised. But if the matter is not required to be adjudicated by the Appellate Authority., or if the Writ Petition itself is not maintainable for want of locus standi to the petitioner or if the petitioner is guilty of laches or acquiescence, it would be not necessary to transfer the Writ Petitions. In such cases it would be, indeed, proper for the High Court not to exercise its discretionary power under Article 226 of the Constitution or to transfer the Writ Petitions to Appellate Authorities. Besides, the matters which have been allowed to rest for years by the parties or the matters in which third parties have acquired rights under bona fide transactions should not also be raked up. That is not the purpose for which the Appellate Authorities have been constituted.
10. In this context, we may add but a word regarding the laches in filing the Writ Petitions and this Court condoning it before issuing Rule Nisi. Section 19 of the Amendment Act may give an impression that such Writ Petitions could straight away be transferred to the Appellate Authority without notice to the opposite party. But no matter should be transferred to the Appellate Authority without notice to the opposite party. If after notice, the opposite side raises the question of laches or acquiescence, this Court should again examine that question and if it is found that the petitioner is guilty of laches or acquiescence, then Writ Petitions should not be transferred to the Appellate Authority.
11. What we have said above equally applies to Writ Appeals also. If the contentions raised, regard being had to the order of the Land Tribunal, could more satisfactorily be adjudicated by the Appellate Authority, it is desirable to transfer the Writ Appeal also. But the Writ Appeal cannot be transferred keeping in tact the order of the learned Single Judge. That would be embarrassing for the Appellate Authority to deal with the matter, It is, therefore, necessary for this Court to examine briefly the merits of the order of the learned Single Judge and also the order of the Land Tribunal for the purpose of considering whether the Writ Appeal is a fit case for transfer to the Appellate Authority. If this Court is satisfied that the matter in Writ Appeal also should go to the Appellate Authority for proper and effective disposal, then the order of the learned Single Judge may be reversed and the matter be transferred to the Appellate Authority.
In many cases this Court might have made interim orders either in the Writ Petition or in the Writ Appeal. It is needless to state that in such cases unless this Court expressly states that the Appellate Authority could make an appropriate order in that behalf, the interim order shall continue till the disposal of the matter by the Appellate Authority.
12. Lastly we must point out one other important thing. When this Court transfers the matter to Appellate Authority, it shall give a date for the parties to appear before the Appellate Authority to receive further orders. Such a date should necessarily be given to avoid delay in the service of notice and disposal of the matter by the Appellate Authority.
13. In the light of these principles, we may now dispose of the individual cases.
W.P. No. 3891 of 1980
This petition is directed against the order dated May 10,1977 of the Land Tribunal, Savanur (Vide its order bearing No. KLR. SR. 38/28). It has been preferred by the legal representatives of the claimant before the Land Tribunal. The claim for occupancy rights has been rejected. Rule has been issued by this Court on March 4, 1980. No objections either on the ground of laches or on other grounds for the maintainability of the petition have been taken up. We have perused the order of the Tribunal in the light of the contentions raised. We are satisfied that the matter is required to he adjudicated by the Appellate Authority. The petition, therefore, deserves to be transferred to the Appellate Authority and accordingly, it is hereby transferred to the Appellate Authority, Dharwad, for a fresh disposal according to law.
Parties are directed to appear before the Appellate Authority, Dharwad on July 28, 1986 to receive further instructions in the matter.
Let a copy of this order be transmitted to the Appellate Authority by the end of June, 1986.
W.P.No. 33309 of 1982
This petition has been preferred by the claimant before the Land Tribunal. It is directed against the order dated January 15, 1982 passed by the 14th Land Tribunal, Udupi in its proceeding No. LRY 100/185/3905/81-82. The petition does not suffer from any laches. Nor can it be said that it is not maintainable. We have perused the order of the Tribunal in the light of the contentions raised. We are satisfied that the matter is required to be adjudicated by the Appellate Authority. Therefore, this proceeding is transferred to the Appellate Authority, Mangalore, for disposal according to law.
The parties are directed to appear before the Appellate Authority, Mangalore on July 28, 1986 to receive further instructions in the matter.
Let a copy of this order be transmitted to the Appellate Authority by the end of June, 1986.
W.P. No. 7090 of 1982
The challenge in this petition is to the order dated October 25, 1981 of the 4th Land Tribunal, Udupi in its proceeding No. LRY 59-505 TRI 10131-80-81. It has been preferred by the opponents 4 and 5 before the Tribunal. The petition neither suffers from laches nor is it liable to be dismissed as not maintainable for any other reason.
We have perused the order of the Tribunal in the light of the contentions raised. We are satisfied that the matter is required to be adjudicated by the Appellate Authority. The petition, therefore, stands transferred to the Appellate Authority, Mangalore, for disposal according to law.
The parties are directed to appear before the Appellate Authority on July, 28, 1986 to receive further instructions in the matter.
Let a copy of this order be transmitted to the Appellate Authority, before the end of June, 1986.
W.P. No. 17987/84
A combined order dated August 21, 1981 of the Land Tribunal, Pandavapura, passed in its consolidated proceeding bearing No. LRF. 957/74-75 and other cases is under challenge in this petition. The petition has been preferred by some of the claimants before the Tribunal who are aggrieved by that order. No objections for the maintainability of the petition either on the ground of laches or for other reasons raised by the opposite party. Rule has been issued on November 19, 1984. We have perused the order of the Tribunal in the light of the contentions raised. We are satisfied that the matter is required to be adjudicated by the Appellate Authority.
The petition, accordingly, stands transferred to the Appellate Authority, Mandya, for fresh disposal according to law.
Parties are directed to appear before the Appellate Authority on July 28, 1986 to receive further instructions in the matter.
Let a copy of this order be transmitted to the Appellate Authority, Mandya, by the end of June, 1986.
W.P.No.500/86
This petition in which Rule has been issued on January 9, 1986 is directed against the order dated October 29, 1985 in Case No. K.LR-SR-81 of the Land Tribunal, Bijapur. This petition does not suffer from any laches nor is there any objection as to the maintainability of the same. We have perused the order of the Tribunal in the light of the contentions raised. We are satisfied that the matter is required to be adjudicated by the Appellate Tribunal. Accordingly, it stands transferred to the Appellate Authority, Bijapur District, for a fresh disposal according to law.
The parties are directed to appear before the Appellate Authority on July 28, 1986.
Let a copy of this order be transmitted to the Appellate Authority by the end of June 1986.