Smt. Siddalingamma Vs. M.R. Shanmugaswamy and Another - Court Judgment

Excerpt:
- employees state insurance act, 1948 [c.a. no. 34/1948] -- section 39: [k. ramanna, j]default in making remittance of the amount collected towards e.s.i. held, interest payable on each days delay. interest cannot be waived on the ground that the department had filed an appeal. - that the said evidence tendered by the respondent 1 as well as his witness was not challenged by the revision petitioner herein, despite the fact that the matter was adjourned from 5-10-1989 to 8-10-1989 and again that the matter was adjourned from 23-10-1989 to 25-10-1989 and that finally on 25-10-1989 the appellate authority had passed the impugned order allowing the appeal by setting aside the order passed by the land tribunal granting occupancy right to the revision petitioner. 364/2 as shown in form 7 and secondly that the land tribunal having afforded an opportunity to the contesting respondent 1 to adduce his side of the evidence, as well would have afforded an opportunity to the revision petitioner too to adduce his side of evidence. it is her further submission that when the matter was adjourned from 5-10-1989 to future dates, 18-10-1989 and 23-10-1989, nothing prevented the revision petitioner to resort to an application for affording her with yet another opportunity to adduce additional evidence, if any, and further to cross-examine the respondent 1 as well as his witness before the appellate authority. to sum up her argument, she submitted that the appellate authority had rightly appreciated the material evidence both on the records of the land tribunal as well as its own records and that in the said facts and circumstances, the instant revision petition does not merit any consideration. the facts and circumstances clearly establish that the application made by the 1st respondent was entirely a new application and against the appellant who was not a party to the original form 7 and therefore, was an application filed beyond the period fixed by section 48-a of the act. 10. to come to the merit part of the case, i have to point out that the revision petitioner having contested the case of the respondent 1 in the appeal having entered appearance in the appeal before the appellate authority had not prosecuted her case and had she been serious she would have definitely cross-examined the respondent 1 as well as his witness before the appellate authority; even otherwise when she was not before the appellate authority when the respondent 1 had examined himself and examined yet another witness, nothing prevented the revision petitioner to seek the permission of the appellate authority to cross-examine the respondent 1 as well as his witness on the subsequent two dates i. it is therefore impermissible for the revision petitioner to canvas before this court by resorting to the instant revision petition to complain that the appellate authority did not afford the revision petitioner an opportunity to adduce her side of the evidence. 363/2, very well endorsed by the inspection report of the land tribunal and according to smt.order1. this revision is filed by the tenant to challenge the order dated 25-10-1989 passed by the land reforms appellate authority, nanjangud in appeal no. dalr. aak. 123 of 1987, whereby the appellate authority had allowed the appeal of the respondent no. 1 by setting aside theorder dated 13-10-1986 passed by the respondent 2, land tribunal, kollegal, by granting occupancy right to the revision petition.2. i heard the learned counsel for the petitioner, smt. manjula devi for sri r.b. sadashivappa, the learned counsel for the contesting respondent 1, smt. s.n. sudha for sri g.s. visweswara and the learned high court government pleader, sri s.s. guttal, appearing for the respondent 2, land tribunal.3. the brief facts of the case are as hereunder:that the petitioner herein had filed form 7 before the land tribunal claiming occupancy right in respect of 1 acre 20 cents out of 3 acres 40 cents in s. no. 360/2 of mudigunda village, kollegal taluk; that at the first instance by an order dated 16-5-1979, the land tribunal had granted occupancy right to the revision petitioner after holding an enquiry and the said order came to be challenged in the hands of the landlord in a writ petition before this court and the said writ petition came to be allowed and the matter was remanded to the land tribunal for fresh enquiry; that in the meantime the surveyor attached to the respondent 1 held spot inspection and found that an extent of 1 acre 20 cents in s. no. 363/2 was in possession of the revision petitioner and upon that after two years or so, the revision petitioner made a personal request before the land tribunal to treat her claim as s. no. 363/2 instead of s. no. 364/2 as setout in form 7 filed by her earlier; that the land tribunal in pursuance of the direction issued in the writ petition, had also held yet another round of tenancy proceedings before permitting the parties to adduce evidence and thereafter on appreciation of evidence and upon hearing, the land tribunal had once again granted occupancy right in respect of the amended claim in s. no. 363/2, by its order dated 13-11-1986, that the landlord having been aggrieved thereto filed an appeal before the land reforms appellate authority (henceforth in brief as 'appellate authority'); that during the pendency of the appeal the contesting respondent 1 had filed an application to adduce additional evidence and that the said application came to be allowed by the appellate authority and in pursuance whereof the respondent 1 had also adduced further evidence by examining yet another witness before the appellate authority; that the said evidence tendered by the respondent 1 as well as his witness was not challenged by the revision petitioner herein, despite the fact that the matter was adjourned from 5-10-1989 to 8-10-1989 and again that the matter was adjourned from 23-10-1989 to 25-10-1989 and that finally on 25-10-1989 the appellate authority had passed the impugned order allowing the appeal by setting aside the order passed by the land tribunal granting occupancy right to the revision petitioner. it is the said order now under challenge before this court.4. the learned counsel for the revision petitioner, smt. manjula devi while taking me through the litigation before the land tribunal, before this court by way of writ petition and further by way of an appeal before the appellate authority submitted that the impugned order passed by the appellate authority is not sustainable mainly on the ground that theappellate authority found fault with the prayer for amending the claim permitting the revision petitioner to amend her claim to treat as the claim was in respect of s. no. 363/2 in place of s. no. 364/2 as shown in form 7 and secondly that the land tribunal having afforded an opportunity to the contesting respondent 1 to adduce his side of the evidence, as well would have afforded an opportunity to the revision petitioner too to adduce his side of evidence. it is her submission that, had the appellate authority afforded an opportunity to the revision petitioner by posting the case for adducing her side of the evidence, she would have produced counter evidence as against the evidence that was produced by the respondent 1 before the appellate authority. it is her further submission that even otherwise the appellate authority would have appreciated -the evidence adduced by the parties before the land tribunal, with reference to the inspection report of the land tribunal to say that the revision petitioner was in possession of the land in s. no. 364/2. hence according to her, the appellate authority would have confirmed the grant of occupancy right granted by the land tribunal. therefore, smt. manjula devi prayed that the impugned order passed by the appellate authority be set aside in allowing the instant revision petition and further confirming the order passed by the land tribunal granting occupancy right to the revision petitioner.5. as against the above argument, the learned counsel for the contesting respondent 1, smt. s.n. sudha argued that when the revision petitioner did not challenge the evidence that was tendered by the respondent 1 in examining himself as well as examining yet another witness to say that the revision petitioner did not cultivate the subject land at alt and that it was the respondent 1 who was cultivating the land, it is not available for the revision petitioner to complain before this court that the revision petitioner was not afforded with an opportunity. it is her further submission that when the matter was adjourned from 5-10-1989 to future dates, 18-10-1989 and 23-10-1989, nothing prevented the revision petitioner to resort to an application for affording her with yet another opportunity to adduce additional evidence, if any, and further to cross-examine the respondent 1 as well as his witness before the appellate authority. having not done that, the revision petitioner cannot reopen the case by resorting to the instant revision petition, smt. sudha further argued. even otherwise, according to her, when the pahani entries for the period from the year 1971 down to the year 1974 were showing the cultivation of the subject land by the respondent 1 himself, the appellate authority had rightly set aside the order of the land tribunal granting occupancy right to the revision petitioner. to sum up her argument, she submitted that the appellate authority had rightly appreciated the material evidence both on the records of the land tribunal as well as its own records and that in the said facts and circumstances, the instant revision petition does not merit any consideration.6. the learned counsel for the contesting respondent 1 had also relied upon a decision of the division bench of this court in seethadevi v narayana kamath and others, wherein this court held that it is impermissible for the land tribunal to permit a tenant to amend form 7 beyond 30-7-1979. in the said decision, this court held as hereunder:'the facts and circumstances clearly establish that the application made by the 1st respondent was entirely a new application and against the appellant who was not a party to the original form 7 and therefore, was an application filed beyond the period fixed by section 48-a of the act. the tribunal had no jurisdiction to entertain such an application. ....as the 1st respondent had not claimed that he was a tenant of any item of lands under the appellant he was at liberty to make a fresh application only before the expiry of 30-6-1979. not having done so, he is now trying to contend that the fresh application was in the nature of an amendment to the first application. it cannot be regarded as an application for amendment of the original form 7'.7. now the points for my consideration are as hereunder: (j) whether it was right on the part of the land tribunal to permit the revision petitioner to amend her claim to correct the s. no. 364/2 to s. no. 363/2 by an oral request by her(ii) whether the impugned order passed by the appellate authority is just and proper and based on material evidence on its record and on the records of the land tribunal8. i answer the points as hereunder:9. reg. point no. (i): that the petitioner had filed form 7 claiming occupancy right in respect of 1 acre 20 cents in s. no. 364/2 and two years thereafter when she had come to know that the subject land was not situated in s. no. 364/2 but it was situated in s. no. 363/2, she made an oral request to the land tribunal to correct the s. no. 363/2 in place of s. no. 364/2 in form 7. it is to be pointed out that under sub-section 3 of section 48-a of the land reforms act (henceforth in brief as 'act') by amendment act no. 1 of 1979 sub-section (3) of section 48-a came to be amended, to add that the land tribunal may for sufficient reasons shown permit the tenant to amend the application. in the instant case, it is not in dispute that the revision petitioner had not filed any application to amend the application; all that she did was to make an oral request to the land tribunal to correct her claim as if it is in respect of s. no. 363/2 and not in s. no. 364/2 as shown in form 7. in my considered view, when the revision petitioner had not made a prayer by resorting to an application to amend her original claim, it is not permissible for the land tribunal to permit the revision petitioner to amend her claim by such an oral request. in the circumstances, what was available to the revision petitioner was to resort to an application by serving a copy thereof on the otherside and it is thereafter the land tribunal would have considered the same on its merit. in the instant case in hand what the land tribunal appears to have done is that it had allowed the revision petitioner to amend her claim with a oral prayer before it. i donot think such a course is available to the revision petitioner if sub-section (3) of section 48-a is taken in its proper perspective. in that view of the matter, i feel that what the appellate authority held to say that there was no claim by the petitioner in respect of s. no. 363/2 appears to be correct. therefore, i hold that the permission granted by the land tribunal to treat the claim of the revision petitioner in respect of s. no. 363/2 in place of original claim in respect of s. no. 364/2 is not in consonance with law.10. to come to the merit part of the case, i have to point out that the revision petitioner having contested the case of the respondent 1 in the appeal having entered appearance in the appeal before the appellate authority had not prosecuted her case and had she been serious she would have definitely cross-examined the respondent 1 as well as his witness before the appellate authority; even otherwise when she was not before the appellate authority when the respondent 1 had examined himself and examined yet another witness, nothing prevented the revision petitioner to seek the permission of the appellate authority to cross-examine the respondent 1 as well as his witness on the subsequent two dates i.e., 18-10-1989 and 23-10-1989, by resorting to applications thereto. it is to be noted that the proceedings before the appellate authority did not come to an end on 23-10-1989, for the impugned order came to be passed only on 25-10-1989. it is therefore clear that till 25-10-1989 the revision petitioner did not raise even the little finger to resort to an application before the appellate authority either to adduce additional evidence or to cross-examine the respondent 1 and his witness before the appellate authority. it is therefore impermissible for the revision petitioner to canvas before this court by resorting to the instant revision petition to complain that the appellate authority did not afford the revision petitioner an opportunity to adduce her side of the evidence. in the totality of circumstances if we appreciate the way in which the revision petitioner had prosecuted her case right from the day one before the land tribunal, it does not leave one in doubt that she was not serious about her claim. had there been so, she would have taken care to see that her claim was amended by resorting to an application as contemplated under sub-section (3) of section 48-a of the act.11. at this stage, the learned counsel for the revision petitioner submitted that she had omitted to make yet another submission. the said submission is that when the petitioner had adduced her side of the evidence before the land tribunal, she had deposed that the subject land was not situated in s. no. 364/2 as block no. 71 but it was situated in s. no. 363/2, very well endorsed by the inspection report of the land tribunal and according to smt. manjula devi the appellate authority would have definitely considered that piece of evidence that the revision petitioner was in possession and enjoyment of the subject land in no. 363/2. in my view the situation would also not improve the matter as there was no claim in law by her before the land tribunal.12. the learned counsel for the contesting respondent 1, smt. sudha had cited the decision of this court referred to in para (b) supra, havinggone through the same i do not think the same is applicable to the facts and circumstances of the case.in that view of the matter, the revision petition fails and accordinglystands dismissed.sri s.s. guttal, hcgp is permitted to file memo of appearance within four weeks on behalf of the respondent 2-land tribunal.

Judgment:
ORDER

1. This revision is filed by the tenant to challenge the order dated 25-10-1989 passed by the Land Reforms Appellate Authority, Nanjangud in appeal No. DALR. AAK. 123 of 1987, whereby the Appellate Authority had allowed the appeal of the respondent No. 1 by setting aside theorder dated 13-10-1986 passed by the respondent 2, Land Tribunal, Kollegal, by granting occupancy right to the revision petition.

2. I heard the learned Counsel for the petitioner, Smt. Manjula Devi for Sri R.B. Sadashivappa, the learned Counsel for the contesting respondent 1, Smt. S.N. Sudha for Sri G.S. Visweswara and the learned High Court Government Pleader, Sri S.S. Guttal, appearing for the respondent 2, Land Tribunal.

3. The brief facts of the case are as hereunder:

That the petitioner herein had filed Form 7 before the Land Tribunal claiming occupancy right in respect of 1 acre 20 cents out of 3 acres 40 cents in S. No. 360/2 of Mudigunda Village, Kollegal Taluk; that at the first instance by an order dated 16-5-1979, the Land Tribunal had granted occupancy right to the revision petitioner after holding an enquiry and the said order came to be challenged in the hands of the landlord in a writ petition before this Court and the said writ petition came to be allowed and the matter was remanded to the Land Tribunal for fresh enquiry; that in the meantime the Surveyor attached to the respondent 1 held spot inspection and found that an extent of 1 acre 20 cents in S. No. 363/2 was in possession of the revision petitioner and upon that after two years or so, the revision petitioner made a personal request before the Land Tribunal to treat her claim as S. No. 363/2 instead of S. No. 364/2 as setout in Form 7 filed by her earlier; that the Land Tribunal in pursuance of the direction issued in the writ petition, had also held yet another round of tenancy proceedings before permitting the parties to adduce evidence and thereafter on appreciation of evidence and upon hearing, the Land Tribunal had once again granted occupancy right in respect of the amended claim in S. No. 363/2, by its order dated 13-11-1986, that the landlord having been aggrieved thereto filed an appeal before the Land Reforms Appellate Authority (henceforth in brief as 'Appellate Authority'); that during the pendency of the appeal the contesting respondent 1 had filed an application to adduce additional evidence and that the said application came to be allowed by the Appellate Authority and in pursuance whereof the respondent 1 had also adduced further evidence by examining yet another witness before the Appellate Authority; that the said evidence tendered by the respondent 1 as well as his witness was not challenged by the revision petitioner herein, despite the fact that the matter was adjourned from 5-10-1989 to 8-10-1989 and again that the matter was adjourned from 23-10-1989 to 25-10-1989 and that finally on 25-10-1989 the Appellate Authority had passed the impugned order allowing the appeal by setting aside the order passed by the Land Tribunal granting occupancy right to the revision petitioner. It is the said order now under challenge before this Court.

4. The learned Counsel for the revision petitioner, Smt. Manjula devi while taking me through the litigation before the Land Tribunal, before this Court by way of writ petition and further by way of an appeal before the Appellate Authority submitted that the impugned order passed by the Appellate Authority is not sustainable mainly on the ground that theAppellate Authority found fault with the prayer for amending the claim permitting the revision petitioner to amend her claim to treat as the claim was in respect of S. No. 363/2 in place of S. No. 364/2 as shown in Form 7 and secondly that the Land Tribunal having afforded an opportunity to the contesting respondent 1 to adduce his side of the evidence, as well would have afforded an opportunity to the revision petitioner too to adduce his side of evidence. It is her submission that, had the Appellate Authority afforded an opportunity to the revision petitioner by posting the case for adducing her side of the evidence, she would have produced counter evidence as against the evidence that was produced by the respondent 1 before the Appellate Authority. It is her further submission that even otherwise the Appellate Authority would have appreciated -the evidence adduced by the parties before the Land Tribunal, with reference to the inspection report of the Land Tribunal to say that the revision petitioner was in possession of the land in S. No. 364/2. Hence according to her, the Appellate Authority would have confirmed the grant of occupancy right granted by the Land Tribunal. Therefore, Smt. Manjula Devi prayed that the impugned order passed by the Appellate Authority be set aside in allowing the instant revision petition and further confirming the order passed by the Land Tribunal granting occupancy right to the revision petitioner.

5. As against the above argument, the learned Counsel for the contesting respondent 1, Smt. S.N. Sudha argued that when the revision petitioner did not challenge the evidence that was tendered by the respondent 1 in examining himself as well as examining yet another witness to say that the revision petitioner did not cultivate the subject land at alt and that it was the respondent 1 who was cultivating the land, it is not available for the revision petitioner to complain before this Court that the revision petitioner was not afforded with an opportunity. It is her further submission that when the matter was adjourned from 5-10-1989 to future dates, 18-10-1989 and 23-10-1989, nothing prevented the revision petitioner to resort to an application for affording her with yet another opportunity to adduce additional evidence, if any, and further to cross-examine the respondent 1 as well as his witness before the Appellate Authority. Having not done that, the revision petitioner cannot reopen the case by resorting to the instant revision petition, Smt. Sudha further argued. Even otherwise, according to her, when the pahani entries for the period from the year 1971 down to the year 1974 were showing the cultivation of the subject land by the respondent 1 himself, the Appellate Authority had rightly set aside the order of the Land Tribunal granting occupancy right to the revision petitioner. To sum up her argument, she submitted that the Appellate Authority had rightly appreciated the material evidence both on the records of the Land Tribunal as well as its own records and that in the said facts and circumstances, the instant revision petition does not merit any consideration.

6. The learned Counsel for the contesting respondent 1 had also relied upon a decision of the Division Bench of this Court in Seethadevi v Narayana Kamath and Others, wherein this Court held that it is impermissible for the Land Tribunal to permit a tenant to amend Form 7 beyond 30-7-1979. In the said decision, this Court held as hereunder:

'The facts and circumstances clearly establish that the application made by the 1st respondent was entirely a new application and against the appellant who was not a party to the original Form 7 and therefore, was an application filed beyond the period fixed by Section 48-A of the Act. The tribunal had no jurisdiction to entertain such an application. ....As the 1st respondent had not claimed that he was a tenant of any item of lands under the appellant he was at liberty to make a fresh application only before the expiry of 30-6-1979. Not having done so, he is now trying to contend that the fresh application was in the nature of an amendment to the first application. It cannot be regarded as an application for amendment of the original Form 7'.

7. Now the points for my consideration are as hereunder: (j) Whether it was right on the part of the Land Tribunal to permit the revision petitioner to amend her claim to correct the S. No. 364/2 to S. No. 363/2 by an oral request by her

(ii) Whether the impugned order passed by the Appellate Authority is just and proper and based on material evidence on its record and on the records of the Land Tribunal

8. I answer the points as hereunder:

9. Reg. Point No. (i): That the petitioner had filed Form 7 claiming occupancy right in respect of 1 acre 20 cents in S. No. 364/2 and two years thereafter when she had come to know that the subject land was not situated in S. No. 364/2 but it was situated in S. No. 363/2, she made an oral request to the Land Tribunal to correct the S. No. 363/2 in place of S. No. 364/2 in Form 7. It is to be pointed out that under sub-section 3 of Section 48-A of the Land Reforms Act (henceforth in brief as 'Act') by amendment Act No. 1 of 1979 sub-section (3) of Section 48-A came to be amended, to add that the Land Tribunal may for sufficient reasons shown permit the tenant to amend the application. In the instant case, it is not in dispute that the revision petitioner had not filed any application to amend the application; all that she did was to make an oral request to the Land Tribunal to correct her claim as if it is in respect of S. No. 363/2 and not in S. No. 364/2 as shown in Form 7. In my considered view, when the revision petitioner had not made a prayer by resorting to an application to amend her original claim, it is not permissible for the Land Tribunal to permit the revision petitioner to amend her claim by such an oral request. In the circumstances, what was available to the revision petitioner was to resort to an application by serving a copy thereof on the otherside and it is thereafter the Land Tribunal would have considered the same on its merit. In the instant case in hand what the Land Tribunal appears to have done is that it had allowed the revision petitioner to amend her claim with a oral prayer before it. I donot think such a course is available to the revision petitioner if sub-section (3) of Section 48-A is taken in its proper perspective. In that view of the matter, I feel that what the Appellate Authority held to say that there was no claim by the petitioner in respect of S. No. 363/2 appears to be correct. Therefore, I hold that the permission granted by the Land Tribunal to treat the claim of the revision petitioner in respect of S. No. 363/2 in place of original claim in respect of S. No. 364/2 is not in consonance with law.

10. To come to the merit part of the case, I have to point out that the revision petitioner having contested the case of the respondent 1 in the appeal having entered appearance in the appeal before the Appellate Authority had not prosecuted her case and had she been serious she would have definitely cross-examined the respondent 1 as well as his witness before the Appellate Authority; even otherwise when she was not before the Appellate Authority when the respondent 1 had examined himself and examined yet another witness, nothing prevented the revision petitioner to seek the permission of the Appellate Authority to cross-examine the respondent 1 as well as his witness on the subsequent two dates i.e., 18-10-1989 and 23-10-1989, by resorting to applications thereto. It is to be noted that the proceedings before the Appellate Authority did not come to an end on 23-10-1989, for the impugned order came to be passed only on 25-10-1989. It is therefore clear that till 25-10-1989 the revision petitioner did not raise even the little finger to resort to an application before the Appellate Authority either to adduce additional evidence or to cross-examine the respondent 1 and his witness before the Appellate Authority. It is therefore impermissible for the revision petitioner to canvas before this Court by resorting to the instant revision petition to complain that the Appellate Authority did not afford the revision petitioner an opportunity to adduce her side of the evidence. In the totality of circumstances if we appreciate the way in which the revision petitioner had prosecuted her case right from the day one before the Land Tribunal, it does not leave one in doubt that she was not serious about her claim. Had there been so, she would have taken care to see that her claim was amended by resorting to an application as contemplated under sub-section (3) of Section 48-A of the Act.

11. At this stage, the learned Counsel for the revision petitioner submitted that she had omitted to make yet another submission. The said submission is that when the petitioner had adduced her side of the evidence before the Land Tribunal, she had deposed that the subject land was not situated in S. No. 364/2 as Block No. 71 but it was situated in S. No. 363/2, very well endorsed by the inspection report of the Land Tribunal and according to Smt. Manjula Devi the Appellate Authority would have definitely considered that piece of evidence that the revision petitioner was in possession and enjoyment of the subject land in No. 363/2. In my view the situation would also not improve the matter as there was no claim in law by her before the Land Tribunal.

12. The learned Counsel for the contesting respondent 1, Smt. Sudha had cited the decision of this Court referred to in para (b) supra, havinggone through the same I do not think the same is applicable to the facts and circumstances of the case.

In that view of the matter, the revision petition fails and accordinglystands dismissed.

Sri S.S. Guttal, HCGP is permitted to file memo of appearance within four weeks on behalf of the respondent 2-Land Tribunal.