Karnataka High Court

Mr Charles G Rego vs Mr Arif Hussain Zain on 30 July, 2024

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                                                             NC: 2024:KHC:30132
                                                          MFA No. 7576 of 2022
                                                      C/W WP No. 28187 of 2014




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 30TH DAY OF JULY, 2024

                                             BEFORE

                             THE HON'BLE MR. JUSTICE E.S.INDIRESH

                      MISCELLANEOUS FIRST APPEAL NO.7576 OF 2022 (CPC)
                                           C/W
                              WRIT PETITION NO.28187 OF 2014

                      IN MFA NO.7576 OF 2022

                      BETWEEN:

                      MR. CHARLES G REGO
                      S/O LATE GABRIEL J REGO
                      AGED ABOUT 92 YEARS
                      FORMERLY RESIDENT OF NO.4-99
                      ALAPE, PADIL, MANGALURU
                      AND
                      PRESENTLY RESIDENT OF NO.103,
                      RAJANIGANDHA BUILDING NO.14
                      OSHIWARA MHADA, OFF LINK ROAD
                      ANDHERI WEST MUMBAI-400053 AND
                      REPRESENTED BY HIS GPA HOLDER/SON
Digitally signed by
ARUNKUMAR M S         AASHISH DOMINIC REGO
Location: High        AGED ABOUT 49 YEARS
Court of Karnataka
                      RESIDENT OF NO. 104, RAJANIGANDHA,
                      BUILDING NO.14, OSHIWARA MHADA
                      OFF LINK ROAD, ANDHERI WEST
                      MUMBAI-400053.

                      SINCE DECEASED REP. BY LRS.

                      1.   AASHISH DOMINIC REGO
                           S/O CHARLES REGO
                           AGED ABOUT 49 YEARS
                           RESIDENT OF 104, RAJANIGANDHA
                           BUILDING NO.14, OSHIWARA MHADA
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                                          NC: 2024:KHC:30132
                                       MFA No. 7576 of 2022
                                   C/W WP No. 28187 of 2014



     OFF LINK ROAD, ANDHERI WEST
     MUMBAI-400053.

2.   ZEUS REGO
     S/O CHARLES REGO
     AGED ABOUT 45 YEARS
     RESIDENT OF 104, RAJANIGANDHA
     BUILDING NO. 14, OSHIWARA MHADA
     OFF LINK ROAD, ANDHERI WEST
     MUMBAI-400053.

     REPRESENTED BY HIS GUARDIAN/
     NEXT FRIEND AASHISH DOMINIC REGO
     AGED ABOUT 49 YEARS
     S/O CHARLES REGO
     RESIDENT OF 104, RAJANIGANDHA
     BUILDING NO. 14, OSHIWARA MHADA
     OFF LINK ROAD, ANDHERI WEST
     MUMBAI-400053.


                                              ...APPELLANTS
(BY SRI. KESHAVA BHAT A., ADVOCATE)

AND:

1.   MR. ARIF HUSSAIN ZAIN
     S/O LATE K.M. ZAINULABDIN
     AGED ABOUT 58 YEARS
     R/O FAME VILLA
     VAS-LANE, I CROSS
     FALNEER, MANGALURU
     DAKSHINA KANNADA.

2.   MR. K. SATHISH SHETTY
     S/O LATE SUNDAR SHETTY
     AGED ABOUT 56 YEARS

3.   MRS. VINAYA S SHETTY
     W/O K. SATHISH SHETTY
     AGED ABOUT 46 YEARS
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                                         NC: 2024:KHC:30132
                                     MFA No. 7576 of 2022
                                 C/W WP No. 28187 of 2014



     BOTH R-2 AND R-3 ARE
     RESIDENTS OF @206, MAYUR PARK
     KADRI TEMPLE ROAD
     MANGALURU
     DAKSHINA KANNADA.

4.   M/S. HIGHLAND INFRASTRUCTURE &
     DEVELOPERS (PAN-ABHFM9088Q)
     A REGISTGERED PARTNERSHIP FIRM
     HAVING ITS OFFICE AT SHOP NO.F-17
     DOOR NO.2-11/26(38), GREEN CITY
     N.H.66, PERMANNUR VILLAGE
     MANGALURU
     DAKSHINA KANNADA.

5.   MR. K.A. IBRAHIM
     S/O LATE ABDULLA HAJI
     AGED ABOUT 52 YEARS
     MANAGING PARTNER OF
     M/S. HIGHLAND INFRASTRUCTURE &
     DEVELOPERS
     R/AT DOOR NO.3-85/101
     DILSHAD COTTAGE, GREEN GROUND
     DERLAKATTE
     MANGALURU TALUK.

6.   MR. MUBARAK SULAIMAN
     S/O IBRAHIM SULAIMAN
     AGED ABOUT 42 YEARS
     MANAGING PARTNER OF
     M/S. HIGHLAND INFRASTRUCTURE &
     DEVELOPERS, R/O MUBARAK MANZIL
     KUNDAPU HOUSE
     PAVOOR, KASARGODU DISTRICT
     KERALA STATE.

7.   MRS. SHARADA RAI
     W/O SUBBANNA RAI
     AGED ABOUT 81 YEARS
     R/AT PALTHAD HOUSE
     MANIKERE POST
     PUTTUR TALUK
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                                    MFA No. 7576 of 2022
                                C/W WP No. 28187 of 2014



     DAKSHINA KANNADA DISTRICT.
                                           ....RESPONDENTS
(BY SRI. HANEEF M.H., ADVOCATE FOR R1;
SRI. P.P. HEGDE, SENIOR ADVOCATE FOR
SRI. AJAY PRABHU M., ADVOCATE FOR
C/R2 & R3 AND FOR R4 TO R7)

     THIS APPEAL IS FILED UNDER ORDER XLIII RULE 1(R) OF
CIVIL PROCEDURE CODE, PRAYING TO SET ASIDE THE ORDER
OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM,
MANGALURU,    DAKSHINA     KANNADA   DISTRICT     DATED
21.09.2022 ON IA. NO.II IN O.S. NO.50 OF 2022 VIDE
ANNEXURE-A.

IN WP NO.28187 OF 2014

BETWEEN

CHARLES GREGORY REGO
SINCE DECEASED REP. BY LRS.

1.   AASHISH DOMINIC REGO
     S/O CHARLES G REGO
     AGED ABOUT 49 YEARS
     RESIDENT OF 104, RAJANIGANDHA
     BUILDING NO.14, OSHIWARA MHADA
     OFF LINK ROAD, ANDHERI WEST
     MUMBAI-400053.

2.   ZEUS REGO
     S/O CHARLES REGO
     AGED ABOUT 45 YEARS
     RESIDENT OF 104, RAJANIGANDHA
     BUILDING NO.14, OSHIWARA MHADA
     OFF LINK ROAD, ANDHERI WEST
     MUMBAI-400053.

     REPRESENTED BY HIS GUARDIAN/
     NEXT FRIEND AASHISH DOMINIC REGO
     AGED ABOUT 49 YEARS
     S/O CHARLES REGO
     RESIDENT OF 104, RAJANIGANDHA
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                                         NC: 2024:KHC:30132
                                     MFA No. 7576 of 2022
                                 C/W WP No. 28187 of 2014



     BUILDING NO. 14, OSHIWARA MHADA
     OFF LINK ROAD, ANDHERI WEST
     MUMBAI-400053.
                                              ...PETITONERS
(BY SRI. KESHAVA BHAT A., ADVOCATE)
AND:
1.   THE AUTHORISED OFFICER
     AND LAND ACQUISITION OFFICER
     CITY CORPORATION, MANGALURU-575 001.
     DAKSHINA KANNADA DISTRICT.

2.   SRI. KRISHNA PRASAD SHETTY
     S/O LATE CHANDRAHASA SHETTY
     AGED ABOUT 36 YEARS
     RESIDENT OF SHIVABAGH KADRI
     MANGALURU-575 001.
     DAKSHINA KANNADA DISTRICT.

3.   SRI. SUJEETH RAI
     S/O LATE SUBBANNA RAI
     AGED ABOUT 36 YEARS
     R/AT PALTHAD HOUSE, MANIKERE POST
     PUTTUR TALUK-574 201
     DAKSHINA KANNADA DISTRICT.

4.   SMT. SHARADA RAI
     W/O SRI. SUBBANNA RAI
     AGED ABOUT 77 YEARS
     PALTHAD HOUSE, MANIKARE POST
     PUTTUR TALUK
     DAKSHINA KANNADA DISTRICT-574 201.
                                        ...RESPONDENTS
     (BY SRI. RAJENDRA K.R., AGA FOR R1;
     SRI. K. SHRIHARI, ADVOCATE FOR R2;
     SRI. P.P. HEGDE, SENIOR ADVOCATE FOR SRI. AJAY
     PRABHU M., ADVOCATE R3 & R4)

       THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET
ASIDE THE IMPUGNED ORDER OF THE KARNATAKA APPELLATE
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                                        MFA No. 7576 of 2022
                                    C/W WP No. 28187 of 2014



TRIBUNAL DATED 17.03.2014 IN APPEAL NO.793 OF 2006
AFFIRMING    THE     ORDER   OF     THE   FIRST    RESPONDENT
AUTHORISED OFFICER DATED 09.06.2006 IN NO.LRT 7A
4398/2000-2001 VIDE ANNEXURES - A AND B AND ETC.

    THIS    APPEAL    AND    THIS   PETITION      HAVING   BEEN
RESERVED FOR ORDERS, COMING FOR PRONOUNCEMENT THIS
DAY, E.S. INDIRESH J., MADE THE FOLLOWING:

CORAM:   HON'BLE MR. JUSTICE E.S.INDIRESH

                      CAV JUDGMENT

In W.P.No.28187-188 of 2014, the petitioner is

assailing the order dated 17.03.2014 in Appeal No.793

of 2006 confirming the order of the respondent-

authorities dated 09.06.2006 in No.LRT.7A.4398 of

2000-2001, (Annexure-A and B respectively) interalia

sought for direction to the competent authority to

declare that the petitioner is the tenant of the

schedule land.

2. In MFA No.7576 of 2022, appellant is

petitioner in W.P.No.28187-188 of 2014, challenging

the order dated 21.09.2022 on IA No.II in OS No.50 of

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2022 (Annexure-A) on the file of II Additional Senior

Civil Judge and CJM Mangalore, D.K. District rejecting

the application filed by the plaintiff/appellant.

3. It is the case of the petitioner in

W.P.No.28187-188 of 2014 that, the predecessor of

the petitioner, late Daniel Pinto had taken the land

bearing Sy No.25/7, measuring 0.13 acres, Sy

No.25/1, measuring 1.48 acres and Sy No.25/6,

measuring 0.27 acres, totally measuring 1.88 acres, in

Alape village, Mangalore Taluk, on Moolageni Deed on

09.09.1882 as per Annexure-C. Thereafter, the said

Daniel Pinto gifted the Moolagani holdings to his

daughter Smt.Anna Maria Pinto Bai on 14.06.1884

(Annexure-D). After the death of Smt.Anna Maria

Pinto Bai, her children partitioned the property in

question as per registered Partition Deed dated

30.09.1920 (Annexure-E). The said property was

allotted to Gabrial Rego (father of the petitioner). The

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said Gabrial Rego died on 19.07.1936 and the

moolageni rights were inherited by his wife and

children. Thereafter, the daughters of Gabrial Rego

executed Release Deed in favour of the petitioner as

per Annexure-F dated 10.01.1989 and as such, the

petitioner contended that, the petitioner is in

possession, having title over the property in question.

It is also stated by the petitioner that, moolageni is

permanent lease and RTC extracts stands in the name

of the petitioner and as such, though the petitioner

has not filed Form No.7, claiming occupancy rights

within the stipulated time, however, the petitioner had

filed Form No.7A seeking occupancy rights as per

Annexure-H. The competent authority rejected the

claim made by the petitioner as per order dated

09.06.2006 (Annexure-B) and feeling aggrieved by

the same, the petitioner has approached the

Karnataka Appellate Tribunal at Bengaluru in Appeal

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No.793 of 2006 and the Tribunal by its order dated

17.03.2014 (Annexure-A) dismissed the appeal and

feeling aggrieved by the same, the petitioner

presented this writ petition.

4. Insofar as MFA No.7576 of 2022 is

concerned, the petitioner/appellant has filed OS No.50

of 2022 on the file of II Additional Senior Civil Judge

and CJM, Mangalore, D.K. District, seeking

cancellation of the Sale Deed dated 21.11.2018,

interalia sought for relief that the said Sale Deed is not

binding on the plaintiff. In addition to filing of the

plaint in OS No.50 of 2022, the appellant has filed IA

No.II under Order XXXIX Rule 1 and 2 of Code of Civil

Procedure, seeking, temporary injunction against the

defendants therein, not to alienate the suit schedule

property and the said application was rejected by the

Trial Court by its order dated 21.09.2022, (Annexure-

A) and feeling aggrieved by the same, the

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appellant/petitioner has preferred MFA No.7576 of

2022.

5. I have heard Sri.A. Keshva Bhat, learned

counsel appearing for the petitioner in W.P.No.28187-

188 of 2014 and for appellant in MFA No.7576 of 2022

and Sri.Rajendra K.R. learned Additional Government

Advocate appearing for the respondent-State, Sri.K.

Shrihari, learned counsel appearing for the respondent

No.2 and Sri. P.P.Hegde, learned Senior Counsel

appearing on behalf of Sri Ajay Prabhu M., learned

counsel appearing for the respondents 3 and 4 and

other respondents in MFA No.7576 of 2022.

6. Sri. A.Keshav Bhat, learned counsel

appearing for the petitioner contended that, both the

competent authorities and the Karnataka Appellate

Tribunal failed to take note of the registered

Moolageni Deed dated 09.09.1882 and subsequent

registered document namely, the Gift Deed dated

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14.06.1884 and the Partition Deed dated 30.09.1920.

It is also contended by the learned counsel appearing

for the petitioner that, once the moolageni is created

which is on permanent lease and as the petitioner,

said to be the tenant and further, as the petitioner and

his ancestors were in possession and enjoyment of the

land in question and therefore, the both the

authorities ought to have confirmed the occupancy

rights in favour of the petitioner. He also contended

that, the petitioner has constructed a house in the

schedule land and even in his absence, his family

members were residing in the suit schedule property

and therefore, the finding recorded by both the

authorities is contrary to the facts and circumstances

of the case. It is also contended by the learned

counsel appearing for the petitioner that, one

Ratnavathi Alva had acquired the property as per

registered Partition Deed dated 30.04.1966 and the

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petitioner has produced the said deed as per the

document produced along with IA No.1 of 2023 and

the said document makes it clear that, the moolageni

rent is being received by said Ratnavathi from the

ancestors of the petitioner and the said aspect would

demonstrates clear that, the petitioner is in possession

of the land in question and therefore, the finding

recorded by the competent authority and the

Karnataka Appellate Tribunal is contrary to law.

Accordingly, sought for interference of this court. In

order to buttress his arguments, he refers to the

judgment of this Court in the case of Monappa

Kottari and Others vs. David Pinto and Another

reported in ILR 2006 KAR 3936 and in the case of

Sakrappa vs. State of Karnataka reported in ILR

1985 (1) KAR 1833.

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7. Insofar as MFA No.7576 of 2022 is

concerned, Sri.A. Keshav Bhat, learned counsel

contended that the petitioner/appellant has filed OS

No.50 of 2022 before the Trial Court, challenging the

registered Sale Deed dated 21.11.2018, whereby the

defendant Nos.1 to 3 colluding with each other,

fraudulently got executed the said registered Sale

Deed from the plaintiff-appellant and the appellant

was compelled to vacate the plaint schedule property

and as such, though the Trial Court has granted ex-

parte interim order, however, dismissed IA No.II

erroneously without looking into the factual aspects on

record in the right perspective and as such, he

contended that, the finding recorded by the Trial Court

is contrary to scope of Order XXXIX Rule 1 and 2 of

Code of Civil Procedure and therefore, sought for

setting aside the impugned order dated 21.09.2022 in

OS No.50 of 2022 passed on IA No.II. In order to

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buttress his arguments, learned counsel, Sri.

A.Keshav Bhat, places reliance on the judgment of this

Court in the case of Nijalingappa vs. Siddappa

Mallappa Gadigeppagol reported in (2002) 1 KLJ

234 and in order to substantiate his arguments

relating to conversion of the land under Section 95 of

the Karnataka Land Revenue Act, he relied on the

dictum of the Hon'ble Supreme Court in the case of

State of Karnataka and others vs. Shankara

Textiles Mills Limited reported in AIR 1995 SC 234

and accordingly, sought for interference of this Court.

8. Sri. P.P. Hegde, learned Senior Counsel

appearing for Sri. Ajay Prabhu.M., for contesting

private respondents submits that, in W.P.No.28187-

188 of 2014, the mother of respondent No.3-Sharada

Rai is the owner of the land bearing Sy No.25/1C

measuring 34 cents of non-agricultural property of

Alape Village as she had acquired the same, as per the

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Release Deed dated 02.08.2011. In this aspect,

learned Senior Counsel submitted that originally land

in question was belonging to mother of Sharada Bai-

Ratnavathi Alva, as she had acquired the property as

per registered Partition Deed dated 30.04.1966 and

after her demise respondent No.3 succeeded to the

property in question. It is also contended that,

pursuant to the Release Deed made in favour of

respondent No.3, the khata certificate was issued in

favour of the respondent No.3 by the respondent-

authorities. While emphasizing on these aspects,

learned Senior Counsel submitted that, the petitioner

herein in order to knock off the property said to have

raised a plea that, an application in Form No.7-A

under Section 77-A of the Karnataka Land Reforms

Act, is filed and in this connection, the respondent

No.1 initiated proceedings in LRT.7A.4398 of 2000-01

which came to be rejected on 09.06.2006. It is also

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argued by the learned Senior Counsel that, the

respondent No.3 has made a complaint against the

interference made by the petitioner herein to the

competent Municipal Authority and also filed suit in OS

No.219 of 2013 against the petitioner and the suit is

pending consideration before the competent civil

court. It is also argued by the learned Senior Counsel

that as on 01.03.1974 itself the nature of the property

was changed as non-agricultural property and same

comes within the commercial zone as per Annexure-

R3 to R7 and therefore, it is contended that, as the

land has been classified as punja land and therefore,

the land in question do not come within the purview of

the provisions under Karnataka Land Reforms Act and

Accordingly, sought for dismissal of the writ petition.

9. Nextly, it is contended by learned Senior

Counsel Sri P.P.Hegde that, at no point of time, the

land in question was not leased in favour of any

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person much less the petitioner or his ancestors and

therefore, sought to justify the impugned order

passed by the respondent-authorities. Insofar as the

contentions raised by the learned counsel appearing

for the appellant in MFA No.7576 of 2022,

Sri.P.P.Hegde submitted that the Trial Court after

considering the material on record, has arrived at a

conclusion that, the Sale Deed said to have been

executed on 21.11.2018 and the suit is filed after

lapse of three years and as such, suit is barred by

limitation and the said aspect has been considered by

the Trial Court in detail and therefore, sought to

justify the order dated 21.09.2022 in OS No.50 of

2020 dismissing IA No.II filed by the

plaintiff/petitioner in the writ petition. In order to

buttress his arguments, Sri P.P.Hegde, learned Senior

Counsel appearing for the private respondents refers

to the judgment of this Court in the case of Lokayya

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Poojary and another vs. State of Karnataka and

others reported in ILR 2012 KAR 4345 and

submitted that, the vesting of the tenanted land is by

operation of law and no written order is required for

completion of vesting. He also refers to the judgment

of this Court in Hosabayya Nagappa Naik and

others vs. State of Karnataka and others reported

in ILR 2002 KAR 1342 regarding interpretation

made by this Court with regard to accepting Form

No.7A under Section 77A of the above Act. He also

refers to the judgment of the Hon'ble Supreme Court

in the case of General Manager, Electrical, Rengali

Hydro Electric Project, Orissa and others vs.

Giridhari Sahu and others reported in (2019) 10

SCC 695 with regard to interference to be made by

this Court while exercising jurisdiction of certiorari in

respect of the challenge made by the petitioner.

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10. Having heard the learned counsel appearing

for the parties, the perusal of the writ papers would

indicate that, the petitioner made a claim that, the

petitioner is having a moolageni rights in respect of

the land in question and as such, he made Form

No.7A under Section 77A of Karnataka Land Reforms

Act on 01.12.1998 stating that, he was cultivating the

land under the private respondents. Insofar as grant

of occupancy rights by virtue of acceptance of Form

No.7A of the Act, this Court in the case of Hosabaiah

Nagappa Naik at paragraphs 7 and 8 held as follows:

"7. Having indicated the sweep and the extent of Rule 26C let us now consider the scope of the Rule. Sub-Rule 5 of the Rule is only to be understood in the context of Section 77A and this is where the main provision of Section 77A takes control of the situation. The procedure envisaged under Rule 26C for the purposes of granting of land under Section 77A of the Act cannot go beyond the purpose for which the section is provided for. As noticed earlier the object of the section is to provide an opportunity to those who might have been truly and lawfully tenants of the land, who were in possession and

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cultivation and continued to be in possession and cultivation, who might have missed the bus by not making an application within the stipulated period which in fact had come to be extended from time to time and to ensure that there possession and cultivation is continued without being disturbed any further. It is very essential to point out that an application under Section 77A is not the same as an application under Section 45, and the enquiry contemplated under Section 77A cannot be the same as an enquiry conducted by the Land Tribunal under Section 48A of the Act. Whereas on an application under Section 45, enquiry by the Land Tribunal is for grant of conferment of occupancy rights, an application under Section 77A to the Deputy Commissioner or other officer authorised by the State Government is for the purpose of grant of land. The provisions of Section 77A is for the purpose of granting of land on satisfaction of certain conditions namely three conditions mentioned therein. It is to be noticed that conditions (1) and (2) are conditions which should have been satisfied and foregone in respect of the land. It is not an enquiry to ascertain whether a person can be granted land being a tenant as on the appointed date, such an enquiry was within the scope of Section 48A and not for the purposes of condition (1) of Section 77A. Here the enquiry is only for a limited purpose to find out the accomplished fact as to whether the person was in actual possession and cultivation of the land on the appointed date. It is not as though the authorities are to hold an enquiry for the purpose of conferment of occupancy rights on the premise that the applicants were lawful tenants on the appointed date and

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the enquiry was for such purpose. The factum of the applicants being a lawful tenant on the appointed date and was in cultivation as on the appointed date is not to be established now in the present enquiry, but it should have been a concluded fact that the scope of the present enquiry is to let in evidence to satisfy or prove the existence of such a concluded fact. It is for the applicant to show that it was an undisputed fact and on record and that without anything further more he was a tenant lawfully in possession and cultivation of the land on the appointed date. The second condition is also of significance and importance in the context of considering the application i.e., the land should have been vested in the State Government as on the appointed date as it was a tenanted land. This again is an event which should have already taken place and as such the evidence that is required to be placed by the applicant to show that this is an event that has taken place already. Obviously it should find a place in some official record, as vesting of the land is in favour of the State Government. In the absence of any such record is again becomes a disputed fact which again is not within the scope of an enquiry under Section 77A of the Act. If these two conditions are fulfilled then there is the necessity and scope for inquiring with regard to the third condition namely as to whether the applicant has continued to be in possession and cultivation of such land as on the date of the commencement of the amending Act i.e. 1.11.1998.

8. We say this for yet another reason namely that the last date for filing of application under Section 45 in Form No.

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7 had been extended from time to time. If the scope of enquiry contemplated under Section 77A of the Act was to be the same as an enquiry under Section 48A of the Act then it would have been the simplest thing for the Legislature to extend such date instead of providing for a separate provision as under Section 77A. On the other hand the Legislature has advisedly provided for an enquiry under the Section and two very important distinguishing features have to be noticed. One is that the authority to whom the application under Section 77A is to be made is the Deputy Commissioner or any other Officer authorised by the State Government in this behalf and not the Land Tribunal which is the inquiring authority under Section 48A of the Act and secondly that the application in Form No. 7A is for grant of land whereas an application under Form No. 7 of the Rules and filed under Section 45 of the Act was for grant of occupancy rights. Having regard to these distinctions we are of the view that the scope of enquiry under Section 26C is to be understood for this purpose and not as though it is an enquiry as contemplated under Section 48A of the Act though for enquiry under either section, Section 48A or 77k, it is mentioned to be a summary enquiry as contemplated under Section 34 of the Karnataka Land Revenue Act. Though the procedure mentioned under Rule 17 or Rule 26C of the Rules is the same procedure as the one contemplated under Section 34 of the Karnataka Land Revenue Act, one should not lose sight of the fact that the enquiry under Rule 26C is for the purposes of Section 77A for ascertaining fulfilment of the three conditions enumerated therein. As such the interpretation placed in

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the context of an enquiry under Rule 17 though is as provided under Section 34 of the Karnataka Land Revenue Act, cannot be very apt in the context of the provisions of Section 77A and Rule 26C. There cannot be any dispute about the fundamental requirements of one observing the principles of natural justice, recording the summary of evidence of the witnesses examined, for offering the witness examined in chief for cross examination by the opposite side, affording sufficient opportunity to each party to present their case and passing of reasoned order ultimately on examination of the evidence on record. But in a situation where there is no scope for observance of these aspects as in the instant case where the documents on record doesn't indicate anything positive with regard to compliance of the first two conditions enumerated in Section 77A, the question of offering the respondents for cross examination or even shutting out the applicants from examining the witnesses for the purposes of proving the existence of the first two conditions doesn't arise. What is not in existence and is not borne out on record in respect of an accomplished fact and of a past event cannot be made good by means of oral evidence at the time of an enquiry for the purposes of Section 77A of the Act."

11. In order to satisfy the respondent-

authorities for claiming occupancy rights, it is the duty

of the applicants to show that, he has filed an

application in Form No.7A interalia prove that, the said

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applicant was in cultivation of the land in question

from 01.03.1974 till the date of filing of Form No.7A.

The Act, permitted to grant maximum 02 Hectors of

land to such applicants. It is also to be noted that, the

land in question should have been vested with the

State Government under Section 44 of the Act in

terms of the language employed under 77A of the Act.

Upon filing of such application by the applicant, the

respondent-authorities have to follow Rule 26(c) of

Karnataka Land Reforms Rules. That apart, the Full

Bench of this Court in the case of Lokayya Poojary

(supra) at paragraph 12 to 19 held as follows:

"12. Though the Karnataka Land Reforms Act was enacted in the year 1961, radical amendments were brought to the said Act only in the year 1974 by Act 1/1974 by which by a stroke of pen all the tenanted lands were declared to have vested with the Government. The whole object of the said amendment was to see that the Tiller of the land gets occupancy rights in respect of the land and also to discourage absentee landlordism. After making a declaration that such tenanted land vested with the Government, the Act provided for grant of occupancy

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rights to those tenants who were cultivating the land immediately prior to the appointed date i.e., 1.3.1974. Chapter III of the Act deals with conferment of ownership of tenants. All lands held by or in the possession of tenants prior to the date of commencement of the Amendment Act, i.e., 01.03.1974 stood transferred to and vested in the State Government. The effect of such vesting was, all rights, title and interest vesting in the owners of such lands ceased and vested absolutely in the State Government free from all encumbrances. The only right to which the landlord was entitled to, was to receive the amount from the State Government as provided under Section 47 of the Act. The landlord was not given the right to claim the land. However, the tenant was given a right to be registered as occupant in respect of such land. Section 45 conferred a right on tenants to get themselves registered as occupants of land subject to their satisfying the conditions mentioned therein. The tenant who wanted occupancy rights under Section 45 of the Act has to make an application to the Tribunal. In order to adjudicate the claims of such persons, a machinery was also created under the Act in the form of Land Reforms Tribunals. The power to confer occupancy rights on such tenants was vested with the Tribunal constituted under Section 48 of the Act. If a tenant filed an application claiming occupancy rights, then Section 48-A provided for an enquiry by the Tribunal, which is constituted under Section 48 of the Act. As is clear from the provisions of Section 48-A, as soon as the Tribunal received an application from a tenant requesting for registration of occupancy rights in his favour within the time prescribed,

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the Tribunal was under an obligation to issue individual notices to the persons mentioned in the application and also to such others as may appear it to be interested in the land. If any objection is filed disputing the validity of the applicant's claim or setting up rival claim, an enquiry was contemplated. The Tribunal shall hold an enquiry. After enquiry, if the Tribunal was satisfied that the applicant was a tenant and the land in question was a tenanted land, it would grant occupancy rights in favour of such applicant. If there was no objection, the Tribunal may at once pass orders granting the application. Initially, a time limit was prescribed for filing such applications. However, from time to time it came to be extended. The last of such extension came to an end on 30.6.1979. Thereafter, the Tribunals were denuded with the power to entertain any such applications claiming occupancy rights. When an application had been filed by the tenant seeking for occupancy right, it was open to the landlord to whom notice was sent to contest the claim and show that the applicant was not a tenant of the land in question under him and the land in question was never a tenanted land and was in his self occupation. On such contention being taken, a duty was cast upon the Tribunal to go into the question whether the land in question was a tenanted land and thereafter, to record a finding whether the applicant was a tenant of the land in question and depending upon the material placed before it, to grant the land or reject the application. If it recorded a finding that the land in question was not a tenanted land, then such a land would not vest with the Government. The applicant had no right to seek for occupancy rights. The Tribunal

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had no jurisdiction to grant any occupancy rights. As a time limit was prescribed, even if a tenant was in cultivation of the lands and the land had vested with the Government, the tenant could not have enforced his right after the expiry of the said time. There were also cases where the land in question was a tenanted land and the tenant continued in occupation of the tenanted land and was cultivating the same, consequently, the same vested with the Government, but the said tenant could not be granted occupancy rights because he had not filed an application within the prescribed time.

13. Chapter IV deals with Ceiling on Land Holdings. Sections 63 and 64 provides for such ceiling. The land which is in excess of ceiling laid down in Sections 63 and 64 shall be surrendered to the State Government and a separate procedure is prescribed for adjudicating the excess of ceiling land and such excess land vest with the Government free from all encumbrances. Section 67 provides for surrender of lands in certain cases and such surrendered land also vest with the Government. Similarly, the lands which are acquired contrary to the provisions contained in Chapter V, namely 79-A, 79-B and 80 also vest in the Government. Section 77 of the Act deals with disposal of surplus land. It provides for grant of such surplus land in favour of dispossessed tenants who are not registered as occupants, displaced tenants having no land, landless agricultural labourers, landless persons and released bonded labourers. The said provision specifically did not provide for grant of lands to tenants who were in occupation of the land prior to 01.03.1974

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vested with the Government, because they did not make an application for grant of land. Insofar as grant of the vested land to certain persons is concerned, it is the provisions of the Land Grant Rules, 1969 which are to be applied. In this background, in the year 1997, the Legislature felt that some of the tenants who continued to cultivate the land, which was vested with the Government and for various reasons could not file the applications, if they had to stand in the queue probably they might not get the said land granted. It is in those cases, as they had missed the bus and as they were actually cultivating the land prior to vesting and continued to cultivate the land from the date of vesting till 1997, a provision was thought of for grant of such land. It is to meet such a situation, Section 77-A has been introduced by the Karnataka Legislature by Act No. 23 of 1998. It is in the nature of a preferential treatment for grant of tenanted lands, which are vested with the Government, in favour of the tenant subject to his satisfying the conditions stipulated therein.

14. It is clear from the language used while describing Section 77-A that the Legislature described it as 'grant of land in certain cases' and not in all cases. The heading of the Section makes it clear that it is not a case of grant of occupancy rights or registering them as occupants of land. On the contrary, it is a case of grant of land. The said provision applies to lands which are vested in the State Government under Section 44. In other words, it is a land which is a tenanted land which is vested with the Government under Section 44, in respect of which the tenant who was entitled to grant of occupancy rights

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under Section 45, has not made an application within the time prescribed and therefore he has lost his right for registering him as occupant of the said land. When such a tenant, if he is continued in actual possession and cultivation of such land, on the date of commencement of the Karnataka Land Reforms Amendment Act, the authority under the said provisions may grant the land to such person, subject to the conditions stipulated therein being fulfilled.

15. By virtue of the powers conferred by Section 137 of the Act, the Government of Karnataka has made the Karnataka Land Reforms Rules, 1974, (for short, hereinafter referred to as the 'Rules'). Rule 17 of said Rules prescribes the procedure to be followed by the Tribunal. It in turn provides for the procedure as specified for a summary enquiry under Section 34 of the Karnataka Land Revenue Act, 1964. Therefore, the procedure to be followed by the Land Reforms Tribunal is prescribed. Section 77-A also provides for holding an enquiry before such grant. The enquiry to be held under Section 77-A is not an enquiry under Rule 17 of the Rules. The intention of the Legislature is very clear when the Government introduced Rule 26-C by way of Notification dated 31.10.1998 which came into effect from 02.11.1998. The authority to grant land under Section 77-A is the Deputy Commissioner or the other Officer authorised by the State Government in this behalf. In other words, the power to grant land under Section 77-A is not conferred on the Tribunal. The application under Section 45 is to be filed in

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Form No. 7, while an application under Section 77-A is to be filed in Form No. 7-A.

16. Interestingly, as in the case of Rule 17, for conducting enquiry, the procedure prescribed under Section 34 of the Karnataka Land Revenue Act, 1964, is not made applicable to enquiry under Section 77-A of the Act. In an enquiry under Section 77-A read with Section 26-C, the question of the authority going into the question whether the land in question is a tenanted land or not, would not arise, which question, the Tribunal constituted under the Act alone is competent to go into under Section 48 of the Act. No such power or jurisdiction has been conferred under Section 77-A on the Deputy Commissioner or the Assistant Commissioner. The enquiry contemplated under Section 77-A is to be confined only to the following:

(1) Whether the person who has made an application under Section 77-A was in actual possession and cultivation of any land before the first day of March, 1974;

(2) Being entitled to be registered as occupants of such land under Section 45 or 49, has failed to apply for registration of occupancy rights in respect of such land under sub-Section (1) of Section 48-A within the period specified therein. In other words, if such an application had been filed, which claim is adjudicated upon by the Tribunal and if it is negatived, then such a person is not entitled to file an application under Section 77-A;

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(3) Whether such a person is continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms Amendment Act, 1977.

17. Proviso makes it clear that the land so granted together with the land already held by such person shall not exceed 2 Hectares of D' class of land or its equivalent thereto. In other words, if the applicant held land in excess of 2 Hectares of 'D' Class of land or its equivalent thereto, he was not entitled to grant of land under Section 77-A of the Act, even if he was a tenant of the land in question prior to 01.03.1974 and continued to be in possession of the land and cultivating the land till the introduction of Section 77-A of the Act. Though such land vested with the Government as on 01.03.1974, he was not entitled to grant of land.

18. If we keep the above principle and the Legislative intent in mind, what emerges is while amending the Act and introducing Section 77-A, the Legislature was very clear in its mind that by the said amendment, they were not intending to have one more forum for registration of occupancy rights under Section 45 of the Act. These two provisions were intended to cover two independent fields. Similarly, if a person has availed the benefit of Section 45-A and lost the battle, Section 77-A was not meant to give him one more opportunity, a second innings. The power to grant occupancy rights under Section 45 was vested with a quasi-judicial authority like a Tribunal. On the day the amendment introducing Section 77-A came

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into force, the Tribunals were in existence and functioning. The intention of the Legislature was not to give them jurisdiction to decide the claims under Section 77-A. A separate machinery is now contemplated under Section 77-A. The enquiry that was contemplated under Section 45 is totally different from the enquiry under Section 77-A, as is clear from the fact that corresponding to Section 77-A Rule 26(c) was enacted and the claim under Section 77-A had to be adjudicated in terms of the procedure prescribed under Section 26(c). A reading of Section 77-A makes it very clear this provision has a limited application. It applies to only certain cases. It is necessary to bear in mind the context in which Section 77-A is introduced. This provision finds a place in Chapter IV, whereunder as per Section 77 a provision is made for disposal of surplus lands on such land being vested with the Government and also other lands which are vested in the State. Therefore, in a proceeding under Section 77-A, the enquiry that was contemplated under Section 48-A is excluded. This is a provision that enables a person who is in occupation of a land, of which he was a tenant and continues to be in possession as a tenant to apply for grant of such land, if he had failed to make an application for grant of occupancy rights within the time stipulated. Such a person is given an opportunity to make an application for grant of land provided he continues to cultivate the land and he was not holding land in excess of 2 Hectares of land. Therefore, in the said proceedings the question whether the said land is a tenanted land or not, cannot be gone into, as is clear from the language used in Section 77-A. The entire enquiry contemplated

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under Section 77-A is in respect of a land, which is vested in the State Government under Section 44, as on 01.03.1974. It should be an undisputed fact. If the said fact is disputed, then Section 77-A has no application. The jurisdiction under Section 77-A is attracted only in respect of undisputed tenanted lands. Vesting of the land as on 01.03.1974 with the Government, which fact is not in dispute, is a condition precedent for application of Section 77-A.

19. If a tenant makes an application, the question that arises for consideration is how he proves that it is a vested land. The vesting of the land is by operation of law. No order of vesting need be passed. There cannot be an order declaring the vesting of the land. Therefore, production of order of vesting is not the requirement of law and it is not possible and it cannot be insisted upon. However, it is for the applicant who comes to the Court to establish, that the land in question is a vested land. While establishing such fact, it is necessary that he should rely on undisputed documents and such undisputed documents may be in the nature of some official record showing vesting of the land in favour of the State Government. The Government record referred to in the judgment is not an order of vesting. It is a record in proof of vesting. It may vary from case to case and depends upon the stand taken in each case. But, unless there is some official record evidencing the vesting of the land, the authorities under Section 77-A would get no jurisdiction to hold an enquiry and grant land under Section 77-A to the applicant. The official record referred

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to therein may be in the form of Land Revenue receipts, record of rights, index of land, mutation orders, consequent mutation entries or any other record which is maintained by a public officer as opposed to private documents. It is in this context, the Learned Judges in the aforesaid judgments have stated that the land should have been vested in the State Government as on the appointed date. The said event should have already taken place. The evidence is required to be placed by the applicant to show that this is an event that has already taken place. In that context the observations to the effect that "obviously it should find a place in some official record as vesting of the land is in favour of the State Government" are made. This amendment came into force in 1997 roughly 18 years after the last date prescribed for filing applications under Section 45. For 18 long years after the vesting of the land if the tenant has continued in possession, there must be some evidence by way of a public record to show his possession, cultivation and enjoyment as recognised by the Government, because after the vesting he has to deal with the Government and not with the erstwhile owner. How the Government as well as the applicant have dealt with this property during these 18 years assumes importance. In this context the observations made in the said judgments cannot be read as new conditions prescribed by the Judges in Section 77- A by the process of judicial interpretation as sought to be urged by the Counsel for the petitioner. The Judges do not legislate. They only interpret the provisions. Therefore, the argument that under the guise of interpretation, the Judges have re-written the Section is

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not well founded. It is a case of misreading the judgment. Under these circumstances, the interpretation placed by the Division Benches is proper and legal. We do not find any need to clarify what has been already said."

12. Perusal of the aforesaid two judgments

makes it clear that the respondent-authority has to

conduct an enquiry contemplated under Section 77 of

the Act and as the vesting of the land is by operation

of law and no order of vesting needs to be passed as

the vesting of the lands as on 01.03.1974 with the

respondent-Government, which is the condition

precedent for considering application under Section

77A of the Act. Following the aforementioned

judgments and on careful examination of the writ

papers as well as the finding recorded by Karnataka

Appellate Tribunal and the original authority, that the

land in question was converted for non-agricultural

purpose as per the notification dated 05.07.1993 and

that apart no documents have been produced by the

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petitioner to establish that, he was in cultivation of the

land in question on or prior to 01.03.1974 till the date

of on which he made application in Form No.7A. It is

also undisputed fact that, the petitioner and his wife

were working at Mumbai as the petitioner was in

service and therefore, as no records have been

produced by the petitioner to establish that he was in

cultivation of land in question, I am of the view that,

the respondent-authorities as well as the Karnataka

Appellate Tribunal, have rightly come to the

conclusion to dismiss the claim made by the petitioner

herein. Though the learned counsel appearing for the

petitioner made an attempt to argue about the

formalities to be complied with under Section 95 of

the Karnataka Land Revenue Act and also placing the

judgment of this Court in Nijalingappa (supra), I am

of the view that, the Full Bench of this court in the

case of Lokayya Poojary, thoroughly interpreted the

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scope and ambit of Section 77A of the Act with regard

to the jurisdiction of the respondent-authority to

accept application in Form No.7A and therefore, I do

not find any acceptable ground to interfere with the

order passed by the respondent-authorities. It is well

established principle in law by the Hon'ble Supreme

Court with regard to exercise the jurisdiction under

Article 226 and 227 of Constitution of India in the case

of General Manager, Electrical Rengali Hydro

Electric Project, Orissa (supra) paragraph 20 to 28

reads as under:

"20. An erroneous decision in respect of a matter which falls within the authority of the Tribunal would not entitle a writ applicant for a writ of certiorari. However, if the decision relates to anything collateral to the merit, an erroneous decision upon which, would affect its jurisdiction, a writ of certiorari would lie. See Parry & Co. Ltd. v. Commercial Employees Assn. The scope of writ of certiorari came in for an elaborate consideration by this Court in T.C. Basappa v. T. Nagappa . Therein, this Court, inter alia, held as follows: (T.C. Basappa case , AIR p. 444, paras 7, 9 & 10)

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"7. ... The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior court does not exercise the powers of an Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person (vide per Lord Cairns in Walsall Overseers v. London and North Western Railway Co., AC at p. 39.) ***

9. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances (vide Halsbury, 2nd Edn., Vol. 9, p. 880). When the jurisdiction of the court depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess (vide Bunbury v. Fuller ; R. v. Income Tax Special Purposes Commissioners ).

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10. A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings e.g. when it is based on clear ignorance or disregard of the provisions of law."

(emphasis supplied)

21. In Hari Vishnu Kamath v. Ahmad Ishaque this Court held: (AIR pp. 243-44, paras 21 & 23) "21. ... On these authorities, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. This is on the principle that a court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the legislature does not choose to confer a right of

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appeal against that decision, it would be defeating its purpose and policy, if a superior court were to rehear the case on the evidence, and substitute its own findings in certiorari. These propositions are well-settled and are not in dispute.

***

23. It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. ...

The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."

(emphasis supplied)

22. The question arose in Dharangadhara Chemical Works Ltd. v. State of Saurashtra. The question was whether the finding by the Tribunal under the Act about the party respondents being workmen was liable to be interfered with. After dealing with various tests relating to determining the issue, this Court also made the following observations: (AIR p. 269, para 19) "19. ... '... It is equally well settled that the decision of the Tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence.'"

(emphasis supplied)

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23. A Constitution Bench of this Court, in Yakoob v. K.S. Radhakrishnan , has spoken about the scope of writ of certiorari in the following terms: (AIR pp. 479-80, para

7) "7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals:

these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the

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tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque , Nagendra Nath Bora v. Commr. of Hills Division and Appeals and Kaushalya Devi v. Bachittar Singh )."

(emphasis supplied)

24. We may more importantly also advert to the view expressed by this Court in a matter which again arose under the Act in Parry & Co. Ltd. v. P.C. Pal . It was a case related to the scope of the jurisdiction of the tribunal in the matter of retrenchment under Section 25- F. This is what the Court held inter alia: (AIR p. 1340, para 11)

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"11. The grounds on which interference by the High Court is available in such writ petitions have by now been well established. In T.C. Basappa v. T. Nagappa it was observed that a writ of certiorari is generally granted when a court has acted without or in excess of its jurisdiction. It is available in those cases where a tribunal, though competent to enter upon an enquiry, acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. But a mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court once again observed that where the Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open to question under Article 226 unless it could be shown to be wholly unwarranted by the evidence. Likewise, in State of A.P. v. S. Sree Rama Rao this Court observed that where the Tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or where its conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person can ever have arrived at that conclusion, interference under Article 226 would be justified."

(emphasis supplied)

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25. We may advert to the decision of this Court in Mukand Ltd. v. Staff & Officers' Assn We may only advert to the following paragraphs: (SCC pp. 486-87, paras 47-49) "47. In support of his contention that this Court while exercising its power under Article 136 of the Constitution of India in an appeal from the judgment of the High Court rendered in exercise of its powers under Articles 226 and 227 of the Constitution of India will exercise the same power which the High Court could exercise and will not interfere with the finding of facts recorded by a tribunal, the learned counsel cited the judgment in Parry & Co. Ltd. v. P.C. Pal . In the said case, this Court held as under: (AIR p. 1341, para 13) '13. Since this is an appeal arising from a writ petition for certiorari we also would not interfere with the conclusions arrived at by the Tribunal except on grounds on which the High Court could have done.'

48. In Fuel Injection Ltd. v. Kamger Sabha this Court observed as under: (SCC p. 157, para 3) '3. ... But the present appeals are from a judgment of the High Court under Article 226 and so the jurisdiction of this Court in entertaining an appeal by special leave under Article 136 must ordinarily be confined to what the High Court could or would have done under Article 226.'

49. In our view, the material that was placed before the Tribunal was not considered or discussed and that there was, as such, no adjudication by the Tribunal. The whole award of the Tribunal, in our view, is liable to be set aside on the ground of non-application of mind by the

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Tribunal to the material on record. In the first place, the Tribunal has no jurisdiction to entertain and decide a dispute which covered within its fold "persons who are not workmen". That the material on record before the Tribunal as regards the comparable concerns was admittedly "sketchy" and incomplete as observed by the learned Single Judge of the High Court and that the award based on such material could not have been sustained."

(emphasis supplied)

26. In Durga Das Basu's Commentary on the Constitution of India, 9th Edn., in regard to the concept of no evidence, we find the following discussion:

"No evidence" does not mean only a total dearth of evidence. It extends to any case where the evidence taken as a whole is not reasonably capable of supporting the finding, or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. This "no evidence" principle clearly has something in common with the principle that perverse or unreasonable action is unauthorised and ultra vires. An order made without "any evidence" to support it is in truth, made without order made without "any evidence" is worthless, it is equal to having "no evidence" jurisdiction."

(emphasis supplied)

27. In fact, in the decision relied upon by the applicants viz. S. Viswanathan , it is, inter alia, held as follows:

(SCC p. 196, para 12) "12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in

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these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon."

(emphasis supplied)

28. On the conspectus of the decisions and material, we would hold as follows: the jurisdiction to issue writ of certiorari is supervisory and not appellate. The Court considering a writ application of certiorari will not don the cap of an appellate court. It will not re appreciate evidence. The writ of certiorari is intended to correct jurisdictional excesses. A writ of prohibition would issue when a tribunal or authority has not yet concluded its proceedings. Once a decision is rendered by a body amenable to certiorari jurisdiction, certiorari could be issued when a jurisdictional error is clearly established. The jurisdictional error may be from failure to observe the limits of its jurisdiction. It may arise from the procedure adopted by the body after validly assuming jurisdiction. It may act in violation of principles of natural justice. The body whose decision which comes under attack may decide a collateral fact which is also a jurisdictional fact and assume jurisdiction. Such a finding

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of fact is not immune from being interfered with by a writ of certiorari. As far as the finding of fact which is one within the jurisdiction of the court, it is ordinarily a matter "off bounds" for the writ court. This is for the reason that a body which has jurisdiction to decide the matter has the jurisdiction to decide it correctly or wrongly. It would become a mere error and that too an error of fact. However, gross it may amount to, it does not amount to an error of law. An error of law which becomes vulnerable to judicial scrutiny by way of certiorari must also be one which is apparent on the face of the record. As held by this Court in Hari Vishnu Kamath , as to what constitutes an error apparent on the face of the record, is a matter to be decided by the court on the facts of each case. A finding of fact which is not supported by any evidence would be perverse and in fact would constitute an error of law enabling the writ court to interfere. It is also to be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amenable to certiorari jurisdiction. This would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down (see Parry & Co. Ltd)."

13. Following the declaration of law made by the

Hon'ble Supreme Court in the aforementioned case

and law declared by the Full Bench of this Court in the

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case of Lokayya Poojary, as the vesting of the land

is an operation of law in respect of grant of land under

Section 77A of the Karnataka Land Reforms Act and

further as the petitioner fails to establish that he was

continuously in cultivation of the land as per the

language employed under Section 77A of the Act, I

am not inclined to interfere with the well reasoned