Judgment:
ORDER
1. The petitioner in this petition had filed Form No. 2-A to register her as owner in respect of the land measuring 25 cents in Sy. No. 88/3C3 situated at Padu Village, Udupi Taluk, Udupi District. Her application came to be rejected by the Tribunal by means of its order dated 11th January, 1982, a copy of which has been produced as Annexure-A to this petition. In this petition filed under Articles 226 and 227 of the Constitution of India, the said order is called in question.
2. Sri Vyasa Rao, learned Counsel appearing for the petitioner in support of the prayer of the petitioner that the impugned order is liable to be quashed made four submissions. Firstly, he submitted that under Section 38 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as 'the Act') a person who is residing in a dwelling house is entitled to be registered as the owner of the said house and land appurtenant thereto which is necessary for the enjoyment of the house and when that is the position, the Tribunal without considering this aspect of the matter in Order-Annexure-A rejected the claim of the petitioner mainly on the ground that in respect of the very land measuring 25 cents which is part of land measuring 79 cents, the Tribunal had granted occupancy rights in favour of the 2nd respondent. This he points out is totally erroneous in law. Secondly, he submitted that the one other reason given by the Tribunal to reject the claim of the petitioner is that the lease of the building in question is covered by the rent bond executed by the petitioner. According to him, the Tribunal is required to consider the question as to whether the petitioner is an agricultural labourer or not and even if there is a rent bond, that will not defeat the rights of the petitioner to be registered as an owner as provided under Section 38 of the Act. Thirdly, he submitted when the petitioner has made an application in Form No. 2-A to register her as a owner in respect of the land in question as provided under Section 38 of the Act, the Tribunal should have clubbed the application filed by the petitioner in Form No. 2-A and the application filed by the 2nd respondent in Form No. 7 and conducted joint enquiry. According to him, since this procedure has not been followed, the petitioner is put to irreparable injury and hardship and therefore, the order impugned is liable to be quashed. Finally, he submitted that the impugned order came to be passed with-out conducting any enquiry as prescribed under law and also without giving an opportunity to the petitioner to establish her claim that she is entitled to be registered as a owner in respect of the land in question. It is the submission of the learned Counsel appearing for the petitioner that the petitioner is a poor villager and since she was not well on the date when the proceedings was fixed for enquiry before the Tribunal, she had sent her relative before the Tribunal to seek for an adjournment of the proceedings and under those circumstances the Tribunal ought to have adjourned the proceedings to enable the petitioner to establish her claim. In support of the claim that the petitioner was not well on 11th January, 1982, the petitioner has produced a medical certificate issued by one Dr. Ramadas Gowda, as Annexure-C to this petition, wherein the Doctor has certified that the petitioner was suffering from urinary tract infection with fever from 10th January, 1982 to 12th January, 1982.
3. However, Smt. Pushpalatha Acharya, learned Counsel appearing for the 2nd respondent while strongly supporting the impugned order submitted that the petitioner who had failed to appear before the Tribunal when the case was fixed for enquiry cannot be permitted to make a grievance of the order passed by the Tribunal before this Court. According to her, the conduct of the petitioner totally disentitles her for any equitable relief at the hands of this Court. It is her submission that the claim of the petitioner that she was not well and that she had sent a relative to the Tribunal is totally incorrect. Elaborating this, she submits that if the petitioner had sent a representative or relative of hers as claimed by the petitioner, the minimum that was required of her was to state the name of the person who was deputed by the petitioner to appear before the Tribunal; and since that information is lacking, this Court must hold that the petitioner has not sent anybody to the Tribunal to seek for an adjournment of the proceedings. She further submitted that since the claim made by the petitioner to register her as an occupant made in Form No. 2-A is quite distinct and different from the claim made by the 2nd respondent to register him as an occupant of the land in question as provided under Section 48-A of the Act, and there is no duty cast on the Tribunal to club the said applications and conduct joint-enquiry. She submits that Rule 17 of the Rules which requires the Tribunal to club Form No. 7 does not apply to the facts of the present case as the application is filed by the petitioner in Form No. 2-A. In this connection she drew my attention to sub-rule (6) of Rule 17 of the Rules.
4. In the light of the rival contentions advanced by the learned Counsel appearing for the parties, the only question that would arise for consideration is whether the impugned orders are liable to be quashed?
5. The Tribunal by means of its Order-Annexure-A, dated 11th January, 1982 has rejected the claim of the petitioner as contended by the learned Counsel appearing for the petitioner on two grounds. Firstly, on the ground that in respect of the very land occupancy right was granted in favour of the 2nd respondent; and secondly, on the ground that the husband of the petitioner had initially executed a rent bond and thereafter the petitioner had executed a rent bond in respect of the house inquestion. In my view both the reasons given by the Tribunal to reject the claim of the petitioner to register her as owner of the land in question is unsustainable. Admittedly, the application filed by the petitioner to register her as owner was pending consideration on the date when Order-Annexure-B, dated 22nd December, 1981 came to be passed by the Tribunal registering the 2nd respondent as occupant in respect of the entire 79 cents in Sy. No. 88/3C3 which includes the land and the dwelling house in respect of which the petitioner has made an application to be registered as an owner. Under these circumstances, it is also necessary to notice that the Order-Annexure-B granting occupancy right in respect of the entire 79 cents as stated above came to be passed by the Tribunal on 22nd December, 1981 and the Order-Annexure-A rejecting the claim of the petitioner came to be passed on 11th January, 1982 i.e., within a period of less than a month. Sub-section (1) of Section 44 of the Act provides that all the tenanted lands with effect from the date of commencement of the amendment Act stands transferred and vests in the Government i.e., on 1st March, 1974. Section 45 of the Act provides for every tenant who was in possession and cultivating the land as on 1st March, 1974 is entitled to be registered as an occupant. Further, Section 38 of the Act also states that if in any village an agricultural labourer is ordinarily residing in a dwelling house on a land not belonging to him, then, notwithstanding anything contained in any other law, but subject to sub-sections (2) and (3) of Section 38, such dwelling house along with the site thereof and land immediately appurtenant thereto and necessary for the purpose of enjoyment shall on the date of publication of the Karnataka Land Reforms (Amendment) Act, 1978 in the Official Gazette vest absolutely in the State Government free from all encumbrances and the agricultural labourer is entitled to be registered as an owner thereof. It is useful to extract sub-section (1) which reads as hereunder:
'38. Dwelling houses of agricultural labourers,etc.--(1)(a) If, in any village, an agricultural labourer is ordinarily residing in a dwelling house on a land not belonging to him, then, notwithstanding anything contained in any other law, but subject to sub-sections (2) and (3), such dwelling house along with the site thereof and land immediately appurtenant thereto and necessary for its enjoyment, shall, on the date of publication of the Karnataka Land Reforms (Amendment) Act, 1978 in the Official Gazette, vest absolutely in the State Government, free from all encumbrances and the agricultural labourer shall be entitled to be registered as owner thereof'.
6. Therefore, just as all the tenanted lands vest with the State Government under sub-section (1) of Section 44 of the Act, if a dwelling house is occupied by an agricultural labourer in a village subject to the provisions of sub-sections (2) and (3) of Section 38 of the Act, tbe said dwelling house along with the appurtenant land would absolutely vest in the State Government free from encumbrances. Therefore, I am of the view that though Rule 17 of the Rules in terms does not provide that an application made under Form No. 2-A should be also clubbed with anapplication made in Form No. 7, the principle behind the said Rule must be made applicable and the mandate of the said Rule must be read into the applications filed in Form No. 2-A; and therefore, the application filed in Form No. 7 must be clubbed together with the application filed in Form No. 2-A if the said applications relate to the same land. Just as Section 48-A of the Act confers power on the Tribunal to conduct an enquiry pursuant to the application filed by the tenant in Form No. 7, clause (b) of sub-section (1) of Section 38 provides that every application made to the Tribunal in prescribed Form (i.e., Form No. 2-A) should be enquired into by the Tribunal in the manner specified in or under Section 48-A of the Act. It is necessary to point out that the dwelling house and the land immediately appurtenant thereto and necessary for its enjoyment if it is located in a village and in occupation of an agricultural labourer, the said house and the land statutorily vests with the State Government just as all the agricultural lands which are in the occupation of the tenants vest with the State Government. Therefore, when there are rival claims made in respect of the very land, apart from the application of the principles underlying Rule 17 of the Rules, in my view, fair play, the principle of law imbibed to the principles of natural justice which is deep rooted in the system of administration of justice in our Courts and Tribunals; and justness of the procedure required to be followed by the Tribunal persuades me to take the view that in the interest of justice all the applications should be clubbed together and disposed of by a common order. Otherwise it is needless to state that it would lead to multiplicity of proceedings and any decision taken on the application of one applicant without notice to the other applicant will be liable for challenge by the other applicant on the ground that he was not heard and the said order came to be passed by the Tribunal without following the principles of natural justice. Admittedly, in the instant case both the applications have not been clubbed together. As noticed by me earlier, one of the reasons given by the Tribunal to reject the claim of the petitioner is that in respect of the very land occupancy right has been granted in favour of the 2nd respondent. Therefore, on this short ground alone the orders impugned passed by the Tribunal are liable to be quashed. Further, as noticed by me earlier, Section 38 of the Act provides a right to an agricultural labourer who is ordinarily residing in a dwelling house on a land not belonging to him to register himself as an owner of the said dwelling house along with the site thereof and land immediately appurtenant thereto and necessary for its enjoyment. When a statute confers a right on an agricultural labourer on his satisfying the requirements of Section 38 of the Act to get himself registered as an owner of the said dwelling house and the surrounding land, in my view, the Tribunal has seriously erred in law in rejecting the claim on the ground that in respect of the same land occupancy right had already been granted to the 2nd respondent. Merely because occupancy right had already been granted in respect of the very land to the 2nd respondent, it does not take away the jurisdiction of the Tribunal to again consider the claim of the petitioner to register him as the owner of thedwelling house and the land in question in the backdrop of the rights claimed by the 2nd respondent. The matters that are required to be considered by the Tribunal to register a person as an occupant of an agricultural land are quite distinct and different from the matters that the Tribunal is required to consider while considering the claim of a person to register him as an owner of the dwelling house and the surrounding land.
7. Further, as observed by me earlier, the Tribunal has rejected the claim of the petitioner on the ground that the petitioner was occupying the building in question on the basis of a rent bond. This approach made by the Tribunal also in my view is totally erroneous in law. Section 38 of the Act does not deprive an agricultural labourer who is in occupation of a dwelling house, of his right to register him as owner of the said land even if the initial entry into the dwelling house is by virtue of a rent bond executed by him. The only requirement of law is that the dwelling house must be located in a village and the claimant must be an agricultural labourer and he should be ordinarily residing in the dwelling house on the date of coming into force of the Act in 1978 i.e., Act No. 1 of 1979 on 1st January, 1979. The Tribunal while considering the claim of the petitioner has completely overlooked this aspect of the matter. On this ground also, the order impugned passed by the Tribunal is liable to be quashed.
8. In the light of the above conclusion, I find it unnecessary to consider the other two submissions made by Sri Vyasa Rao. Therefore, in the light of the discussion made above, the Order-Annexure-A, dated 11th January, 1982 rejecting the claim of the petitioner and Order-Annexure-B, dated 22nd December, 1981 insofar as it relates to the extent of 25 cents of land in respect of which the petitioner had made a claim are hereby quashed. The Order-Annexure-B remains undisturbed in respect of the remaining portion of the land in Sy. No. 88/3C3. The Tribunal is directed to consider the application filed by the petitioner in Form No. 2-A with reference to the claim made by the 2nd respondent for grant of occupancy right in respect of the said 25 cents of land. The Tribunal while reconsidering the matter should keep in mind the observation made by me in the course of this order. The Tribunal shall conduct fresh enquiry and pass appropriate orders after giving an opportunity to the parties and in accordance with law. The parties are reserved liberty to lead evidence in support of their respective claim. The Tribunal shall take fresh decision in the matter as expeditiously as possible and at any event of the matter not later than nine months from the date of receipt of a copy of this order. In terms stated above, this petition is allowed and disposed of.
9. Sri Aswathanarayana, learned Additional Government Advocate is given four weeks' time to file his memo of appearance.