Jayaraja Hegde Vs. State of Karnataka and Others - Court Judgment

Excerpt:
- income tax act,1961[c.a.no.43/1961] -- section 132 (4): [deepak verma & k.l. manjunath, jj] search & seizure examination of any person who is in possession or control of any books of accounts, documents, by an authorised officer, in the course of search or seizure statement made by any such person during examination - whether can be used as evidence, in any proceedings under the income tax act - ordinary letter dispatched by one of the partners of the assessee whether can be considered as a statement recorded as per section 132 (4) of the act held, the said letter cannot be treated as a statement said to have been made under sub-section (4) of section 132 of the income tax act since the said letter is not recorded on oath by the authorised officer during the course of search or seizure. further, it is also not in dispute that return has to be filed in the pro forma prescribed under the income tax act. the letter is not in such pro forma, wherein a partner of the assessee has stated that a revised return would be filed claiming deduction under section 80 hhc and he had only requested not to initiate any penal action against the partners of the assessee. therefore, it is clear that solely relying upon the said letter, the assessing officer could not have passed an order of assessment rejecting the revised return filed by the assessee indian evidence act,1872[c.a.no.1/1872] -- section 24, 28 & 58: [deepak verma & k.l. manjunath, jj] confession caused by inducement threat or promise relevancy of confession section 58 admission voluntarily made under whether the revenue can press in to service the provisions of sections 24 or 28 and section 58 of the evidence act held, either section 24 or section 28 cannot be pressed into service by the revenue since the case does not arise under the criminal proceedings or any other provisions of i.p.c., further, the letter cannot be made use of by the revenue as an admission since the letter is a conditional one and moreover the said letter cannot be treated as a return to be filed under the income tax act when the said letter cannot be treated as a return to be filed under income tax act, the same cannot be treated as an admission since the assessing officer was required to look into the revised return filed by the assessee and scrutinize the same and thereafter to pass an order on merits in accordance with law-question of law answered against the revenue. - in the present case there is nothing like fraud. 14. to overcome the lacuna in the petition it is contended that by implication fraud is alleged in the petition. section 48-a(5-a) of the land reforms act clearly says that when there is no objection in respect of any part of the claim, the tribunal may at once pass orders granting occupancy rights.order1. in this petition the order passed by the land tribunal, karkala, on 12-8-1986 in case no. trl. 1026/1976-77 granting occupancy rights to r-3, yuvaraja poovani in respect of survey nos. 222/4 (2 acres 56 cents), 222/5 (5 acres 44 cents), 222/9 (45 cents), 222/10 (64 cents), 222/11 (45 cents), 222/12 (14 cents), 222/13 (34 cents), 222/15 (2 acres 69 cents) and 222/16 (5 acres 91 cents) situated in marne village, has been challenged.2. i have heard the learned counsel for the petitioner, the learned government pleader for r-1 and r-2 and the learned counsel for r-3.3. r-3, yuvaraja poovani filed form no. 7 dated 28-12-1974 claiming occupancy rights in respect of the above bits of land. in the form no. 7 the third respondent showed chandranatha swamy devaru madhurapatna basti as the owner.4. the tribunal by its earlier order dated 2-2-1977 rejected the form no. 7 filed by the third respondent. thereupon the third respondent filed writ petition no. 12017 of 1981. this court by its order dated 28-7-1983 allowed the writ petition filed by the third respondent and remanded the matter for fresh enquiry in accordance with law.5. after the matter was remanded by this court, the tribunal passed the impugned order dated 12-8-1986. this order has been challenged by the petitioner.6. it is contended by the learned counsel for the third respondent that there is delay in filing this writ petition and the delay cannot be condoned. the learned counsel for the petitioner contended that he had explained the delay in paragraph 3 of the memorandum of writ petition.7. present petitioner jayaraja hegde claims right to the property in respect of which occupancy rights have been granted through his mother smt. heggadthi.8. this smt. heggadthi, mother of the present petitioner, filed c.p. no. 11500 of 1991 before this court as far back as the year 1991 with a view to challenging the impugned order dated 12-8-1986. the c.p. was filed in view of the amendment to section 17 of the land reforms act and she prayed that the c.p. should be converted into writ petition. she pleaded that she had filed appeal before the land reforms appellate authority which came to be subsequently abolished. the present third respondent yuvaraja poovani, who was the first respondent in the c.p., submitted before this court that the petitioner's mother smt. heggadthi had not filed any appeal before the land reforms appellate authority. the fact that she had not filed any appeal before the land reforms appellate authority was not controverted on behalf of smt. heggadthi. consequently this court rejected the c.p. by its order dated 17-7-1995.9. from the facts and circumstances stated above it is clear that the present petitioner's mother had been agitating the matter even prior to 1991, at any rate from 1991.10. the petitioner's mother smt. heggadthi filed another application making some prayer (which is not clear from the preamble of the order). she withdrew this petition on 8-8-1996.11. the present writ petition by the son jayaraja hegde has been filed on 20-12-1996. when the mother was agitating the matter since 1991 or even prior to that in respect of the order dated 12-8-1986, it cannot be said that the petitioner was not aware of the order dated 12-8-1986.12. i am of the opinion that in view of the circumstances stated above, there is no substance in the arguments advanced on behalf of the petitioner that the delay has been explained.13. the learned counsel for the petitioner relied on the decision of the supreme court in s.p. chengalvaraya naidu v jagannath . in this authority of the supreme court fraud on court was discussed. in the present case there is nothing like fraud. the learned counsel for the petitioner relied on the decision in m. pundalika prabhu v additional land tribunal, bantwal , wherein it has been laid down that fraud vitiates everything and no action taken on the basis of fraud could be maintained or accepted. in the instant case nowhere in the petition has the word 'fraud' been used.14. to overcome the lacuna in the petition it is contended that by implication fraud is alleged in the petition. the argument is far-fetched. i have ever been fond of the felicitous expression of an eminent judge of this court, justice shri k.s. hegde, that the law of pleadings is by no means an unwanted luxury - j. devaiah v nagappa and others .15. in the instant case, as i have already stated, there is no element of fraud committed by the third respondent-yuvaraja poovani. on the contrary the petitioner's mother committed fraud on the court when she filed c.p. no. 11500 of 1991 alleging that she had filed an appeal before the land reforms appellate authority, when in fact she had not filed any appeal.16. the learned counsel for the petitioner relied on the decision of this court in basappa v land tribunal . in this case the kartha of the hindu undivided family withdrew the writ petition which was contrary to the interests of another member (appellant). another member (appellant) filed writ appeal. it was contended that the appellant had no locus standi to file the writ appeal. this court rejected the preliminary objection holding that the withdrawal of the writ petition by channappa (kartha) was likely to affect the claim or rights of the appellant. in this authority the question of delay or laches was not involved.17. let me recapitulate. the petitioner's mother has been agitating the matter since 1991. if the petitioner says that he was not aware of the impugned order passed on 12-8-1986 till 1996, it is too big a pill to swallow.18. on the ground of delay alone the petition has to be thrown out.19. the order that i am going to pass is appealable. so i will decide the impugned order on merits also.20. the impugned order has been passed in favour of the third respondent on the admission made by the moktesar (administrator) chandranathaswamy devaru (owner). r-4, lingappa hegde is the father of r-3, yuvaraja poovani.21. at the time of arguments the learned counsel for the petitioner tried to hammer into my mind that the father (fourthrespondent), who has no authority, had made the admission and so the impugned order cannot be sustained. it is on record that the fourth respondent, father of the third respondent, was the moktesar of chandranathaswamy devaru at some point of time, but not at the relevant time.22. it is clear from annexure-j that one dharmaraja kattada, who was the moktesar at the relevant point of time, admitted in his statement before the land tribunal that the then moktesar devaraj hegde gave on lease the bits of lands involved in the present case to third respondent yuvaraja poovani somewhere in 1967-68 and since then the third respondent was paying six mudi rice towards rent and so the tribunal might grant occupancy rights to the third respondent. there is no substance in the argument that fourth respondent (lingappa hegde, father of the third respondent) admitted tenancy in favour of his son, third respondent. to repeat, it was the then moktesar, dharmaraja kattada, who admitted the tenancy in favour of the third respondent.23. it is argued by the learned counsel for the petitioner that the impugned order, is not a speaking order and it has been passed on the very day dharmaraja kattada made the admission. section 48-a(5-a) of the land reforms act clearly says that when there is no objection in respect of any part of the claim, the tribunal may at once pass orders granting occupancy rights.24. it has been laid down by this court in b.n. seetharamaiah and others v land tribunal, virajapet and others, that the question as to whether the high court should interfere with the order of the land tribunal must be guided by considerations of prejudice and likelihood of miscarriage of justice.25. in the instant case i do not see any prejudice or miscarriage of justice. after the perusal of the records and more importantly on the admission made by the moktesar the impugned order has been passed. what is wrong in it?26. for the aforesaid reasons, i am of opinion, there is no illegality committed by the land tribunal. the impugned order is unassailable. accordingly the writ petition is dismissed. in the circumstances of the case, no costs.

Judgment:
ORDER

1. In this petition the order passed by the Land Tribunal, Karkala, on 12-8-1986 in case No. TRL. 1026/1976-77 granting occupancy rights to R-3, Yuvaraja Poovani in respect of Survey Nos. 222/4 (2 acres 56 cents), 222/5 (5 acres 44 cents), 222/9 (45 cents), 222/10 (64 cents), 222/11 (45 cents), 222/12 (14 cents), 222/13 (34 cents), 222/15 (2 acres 69 cents) and 222/16 (5 acres 91 cents) situated in Marne village, has been challenged.

2. I have heard the learned Counsel for the petitioner, the learned Government Pleader for R-1 and R-2 and the learned Counsel for R-3.

3. R-3, Yuvaraja Poovani filed Form No. 7 dated 28-12-1974 claiming occupancy rights in respect of the above bits of land. In the Form No. 7 the third respondent showed Chandranatha Swamy Devaru Madhurapatna Basti as the owner.

4. The Tribunal by its earlier order dated 2-2-1977 rejected the Form No. 7 filed by the third respondent. Thereupon the third respondent filed Writ Petition No. 12017 of 1981. This Court by its order dated 28-7-1983 allowed the writ petition filed by the third respondent and remanded the matter for fresh enquiry in accordance with law.

5. After the matter was remanded by this Court, the Tribunal passed the impugned order dated 12-8-1986. This order has been challenged by the petitioner.

6. It is contended by the learned Counsel for the third respondent that there is delay in filing this writ petition and the delay cannot be condoned. The learned Counsel for the petitioner contended that he had explained the delay in paragraph 3 of the memorandum of writ petition.

7. Present petitioner Jayaraja Hegde claims right to the property in respect of which occupancy rights have been granted through his mother Smt. Heggadthi.

8. This Smt. Heggadthi, mother of the present petitioner, filed C.P. No. 11500 of 1991 before this Court as far back as the year 1991 with a view to challenging the impugned order dated 12-8-1986. The C.P. was filed in view of the amendment to Section 17 of the Land Reforms Act and she prayed that the C.P. should be converted into writ petition. She pleaded that she had filed appeal before the Land Reforms Appellate Authority which came to be subsequently abolished. The present third respondent Yuvaraja Poovani, who was the first respondent in the C.P., submitted before this Court that the petitioner's mother Smt. Heggadthi had not filed any appeal before the Land Reforms Appellate Authority. The fact that she had not filed any appeal before the Land Reforms Appellate Authority was not controverted on behalf of Smt. Heggadthi. Consequently this Court rejected the C.P. by its order dated 17-7-1995.

9. From the facts and circumstances stated above it is clear that the present petitioner's mother had been agitating the matter even prior to 1991, at any rate from 1991.

10. The petitioner's mother Smt. Heggadthi filed another application making some prayer (which is not clear from the preamble of the order). She withdrew this petition on 8-8-1996.

11. The present writ petition by the son Jayaraja Hegde has been filed on 20-12-1996. When the mother was agitating the matter since 1991 or even prior to that in respect of the order dated 12-8-1986, it cannot be said that the petitioner was not aware of the order dated 12-8-1986.

12. I am of the opinion that in view of the circumstances stated above, there is no substance in the arguments advanced on behalf of the petitioner that the delay has been explained.

13. The learned Counsel for the petitioner relied on the decision of the Supreme Court in S.P. Chengalvaraya Naidu v Jagannath . In this authority of the Supreme Court fraud on Court was discussed. In the present case there is nothing like fraud. The learned Counsel for the petitioner relied on the decision in M. Pundalika Prabhu v Additional Land Tribunal, Bantwal , wherein it has been laid down that fraud vitiates everything and no action taken on the basis of fraud could be maintained or accepted. In the instant case nowhere in the petition has the word 'fraud' been used.

14. To overcome the lacuna in the petition it is contended that by implication fraud is alleged in the petition. The argument is far-fetched. I have ever been fond of the felicitous expression of an eminent Judge of this Court, Justice Shri K.S. Hegde, that the law of pleadings is by no means an unwanted luxury - J. Devaiah v Nagappa and Others .

15. In the instant case, as I have already stated, there is no element of fraud committed by the third respondent-Yuvaraja Poovani. On the contrary the petitioner's mother committed fraud on the Court when she filed C.P. No. 11500 of 1991 alleging that she had filed an appeal before the Land Reforms Appellate Authority, when in fact she had not filed any appeal.

16. The learned Counsel for the petitioner relied on the decision of this Court in Basappa v Land Tribunal . In this case the Kartha of the Hindu Undivided Family withdrew the writ petition which was contrary to the interests of another member (appellant). Another member (appellant) filed writ appeal. It was contended that the appellant had no locus standi to file the writ appeal. This Court rejected the preliminary objection holding that the withdrawal of the writ petition by Channappa (Kartha) was likely to affect the claim or rights of the appellant. In this authority the question of delay or laches was not involved.

17. Let me recapitulate. The petitioner's mother has been agitating the matter since 1991. If the petitioner says that he was not aware of the impugned order passed on 12-8-1986 till 1996, it is too big a pill to swallow.

18. On the ground of delay alone the petition has to be thrown out.

19. The order that I am going to pass is appealable. So I will decide the impugned order on merits also.

20. The impugned order has been passed in favour of the third respondent on the admission made by the Moktesar (administrator) Chandranathaswamy Devaru (owner). R-4, Lingappa Hegde is the father of R-3, Yuvaraja Poovani.

21. At the time of arguments the learned Counsel for the petitioner tried to hammer into my mind that the father (fourthrespondent), who has no authority, had made the admission and so the impugned order cannot be sustained. It is on record that the fourth respondent, father of the third respondent, was the Moktesar of Chandranathaswamy Devaru at some point of time, but not at the relevant time.

22. It is clear from Annexure-J that one Dharmaraja Kattada, who was the moktesar at the relevant point of time, admitted in his statement before the Land Tribunal that the then moktesar Devaraj Hegde gave on lease the bits of lands involved in the present case to third respondent Yuvaraja Poovani somewhere in 1967-68 and since then the third respondent was paying six mudi rice towards rent and so the Tribunal might grant occupancy rights to the third respondent. There is no substance in the argument that fourth respondent (Lingappa Hegde, father of the third respondent) admitted tenancy in favour of his son, third respondent. To repeat, it was the then moktesar, Dharmaraja Kattada, who admitted the tenancy in favour of the third respondent.

23. It is argued by the learned Counsel for the petitioner that the impugned order, is not a speaking order and it has been passed on the very day Dharmaraja Kattada made the admission. Section 48-A(5-A) of the Land Reforms Act clearly says that when there is no objection in respect of any part of the claim, the Tribunal may at once pass orders granting occupancy rights.

24. It has been laid down by this Court in B.N. Seetharamaiah and Others v Land Tribunal, Virajapet and Others, that the question as to whether the High Court should interfere with the order of the Land Tribunal must be guided by considerations of prejudice and likelihood of miscarriage of justice.

25. In the instant case I do not see any prejudice or miscarriage of justice. After the perusal of the records and more importantly on the admission made by the Moktesar the impugned order has been passed. What is wrong in it?

26. For the aforesaid reasons, I am of opinion, there is no illegality committed by the Land Tribunal. The impugned order is unassailable. Accordingly the writ petition is dismissed. In the circumstances of the case, no costs.