IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P.NO.34585/2019 (KLR-RES) BETWEEN:
SMT. HONNAMMA W/O SRI. RANGAPPA AGED ABOUT 82 YEARS RESIDING AT MACHOHALLI VILLAGE, DASANAPURA HOBLI BENGALURU NORTH TALUK PIN – 560 091.
(BY SRI. VIJAYA KUMAR K, ADVOCATE) ...PETITIONER AND:
1 . THE STATE OF KARNATAKA BY ITS REVENUE DEPARTMENT REPRESENTED BY ITS PRINCIPAL SECRETARY M.S. BUILDING, BENGALURU – 560 001.
2 . THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT D.C. OFFICE BUILDING, KANDAYA BHAVANA, K.G. ROAD BENGALURU – 560 001.
3 . THE THASILDAR BENGALURU NORTH TALUK KANDAYA BHAVANA, K.G. ROAD BENGALURU – 560 001.
4 . MATHA VIDYA KENDRA TRUST (R) NO.13, 60 FEET ROAD AMARAJYOTHINAGAR VIJAYANAGAR BENGALURU – 560 040 REPRESENTED BY ITS PRESIDENT.
…RESPONDENTS (BY SRI. Y.D. HARSHA, AGA FOR R-1 TO R-3; SRI. KALYAN BASAVARAJA, SR. COUNSEL A/W SRI. PRAJWAL K. ARADHYA, ADVOCATE FOR R-4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH/SET ASIDE THE ORDER DATED:23.07.2019 PASSED BY THE HON’BLE KARNATAKA APPELLATE TRIBUNAL IN APPEAL NO.1012/2015 (ANNEXURE-A) HOLDING THE SAME AS ILLEGAL.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner has laid challenge to order dated 23.07.2019 passed in Appeal No.1012/2015 vide Annexure-A by Karnataka Appellate Tribunal whereunder tribunal has passed the following order.
Sri.BRP Advocate present. Respondent absent. “As on today it is not possible to formulate points as expressed by full bench”.
Sd/- Sd/-
23.07.2019 23.07.2019 2. Petitioner herein being aggrieved by order dated 28.10.2005 passed by the second respondent granting 6 acres of land in Sy.No.84 situated at Machohalli village, Dasanapura hobli, Bangalore North Taluk in favour of fourth respondent herein contending interalia that petitioner had already been granted said land to an extent of 2 acres 30 guntas and Saguvali chit had been issued way back in the year 1961 i.e., on 19.05.1961 and thereafter grant certificate had been issued by the Tahsildar, Nelamangala on 27.08.1964 and as such said land could not have been allotted in favour of fourth respondent, had challenged the same. In the said appeal an application came to be filed by the appellant i.e., petitioner herein under Section 151 C.P.C to summon the original records from the office of the Thasildar-third respondent relating to grant of land in Sy.No.84 of Machohalli village, Dasanapura Hobli, now Bangalore Taluk whereunder petitioner sought for summoning five documents. Revenue member has made a note in the order sheet of the appeal No.1012/2015 vide Annexure-A to the effect that at the time of preparing the judgment he had noticed that original documents relating to grant is to be perused and as such directed the matter be listed before the Bench. Whereas judicial Member was of the view that documents which was summoned are already on record produced by petitioner (appellant) himself and they being certified copies same would be examined. Hence, he expressed his dissent to opinion expressed by the administrative member. In the background of two views expressed by members registry placed the file before Chairman of the Tribunal. The Chairman of the Tribunal ordered for placing the matter before full bench.
3. On matter being placed before full bench of the Karnataka Appellate Tribunal it has been opined that as per regulations 54(a) of Karnataka Appellate Tribunal Regulation, 1979 it would mandatory on the part of the members of the bench who differ in opinion an any point have to formulate specific point for determination by the full bench and there by no specific point raised by the members of the bench who have expressed different opinion, it would be difficult for the full bench to express opinion or record a finding in the absence of such specific point for determination being referred. Hence, matter came to be ordered to be placed before regular bench. When matter was placed before bench of two members, the impugned order dated 23.07.2019 has been passed extracted herein supra.
4. It is the contention of Sri. Vijayakumar K, learned counsel appearing for petitioner that members of Division Bench of the tribunal who disagreed with the opinion and had expressed two different views ought to have formulated points for determination and as such by formulating a specific point for determination by full bench ought to have been referred and this exercise having not been undertaken, he prays for impugned order being set aside.
5. Before going into illegality of the impugned order, it requires to be noticed at this juncture that application in question viz., which triggered the issue and which has been filed by the petitioner under Section 151 CPC is for summoning original records from the office of Thasildar- third respondent. Under said provision inherent power is available under CPC and only when there is no provision available under CPC said provision can be invoked.
6. Under Section 11(A) of the Karnataka Appellate Tribunal Act, 1976 provisions of the CPC to the extent as may be applicable under clause (a) to (e) would be applicable to the proceedings under said Act. Clause (b) of Section 11 (a) and clause (b) and (c) would clearly indicate that where discovery and production of any document or any other material which is produceable as evidence or requisitioning any public record or copy thereof from any other court or office, then in such circumstances tribunal would have the power of a civil court while trying a suit under the Code of Civil Procedure. In other words, provisions of CPC to the extent provided under Section 11(a) would be attracted. In that view of the matter for summoning of a document or record from any other Court provisions Order 13 Rule 10 CPC would squarely be applicable. This provision having not been invoked, application in question is liable to be rejected on this ground itself.
7. Be that as it may. Learned judicial member has rightly noticed that documents which have been summoned by petitioner under the application filed under Section 151 CPC vide Annexure-D are all documents which are already available on record produced by the petitioner himself and they being certified copies, it can be looked into while adjudicating the appeal. As such learned judicial member has rightly opined summoning of original records from third respondent- authority would not arise.
8. The question of referring any matter/appeal or revision to the full bench by the chairman in exercise of his power vested under Section 7 of the Act would be subject to the Rules as may be prescribed and for regulating the practice and procedure to be followed by tribunal regulations can be made by the tribunal in exercise of power vested under Section 15 of the Act with prior sanction of the State Government and in the instant case said regulation having been made namely Karnataka Appellate Tribunal Regulations, 1979 reference to full bench would arise under the contingencies prescribed under regulation 54. Regulation 54(a)(iv) would clearly indicate that when members differ in opinion on any point material for the decision of the case they are required to make recommendation for constitution of full bench by formulating specific points for determining by the full bench. In other words, issue may be one question of law or procedural and until and unless such point is not formulated, question of full bench determining an issue in the absence of any point formulated by the bench so referring would not arise.
9. In the instant case full bench has rightly declined to entertain reference in the absence of point formulated by the division bench. When matter was remitted back to division bench, members have expressed that it would not be possible for them to formulate points. In other words, division bench hearing matter itself is in doubt as to whether its opinion would constitute a point for determination by the full bench. There cannot be any illegality said to have been committed by the division bench in this regard so as to call for exercise of supervisory jurisdiction by this court under Article 227 of the Constitution of India.
10. As rightly observed by the judicial member certified copy of the document which is sought to be summoned being already available on record. It is for the division bench to take a call or a decision on the basis of said documents. In that view of the matter, this Court is of the view there is no illegality or irregularity committed by the tribunal calling for interference. I find no other good ground having been made out to entertain this petition. Hence, petition stands dismissed. Tribunal to expedite the hearing of the appeal.
SD/- JUDGE RU