NAGESH DATTA SHETTI AND ORS.

A v.

THE STATE OF KARNATAKA AND ORS.

FEBRUARY 2, 2005

[ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] B

~ :.- Appellate Court-Appeal-Scope of-Writ appeal against direction of Single Judge remanding the matter to Land Tribunal with the direction to grant occupancy rights to respondents-Tribunal granting occupancy rights c as directed-Writ appeal dismissed as infructuous with the observation that Tribunal's order can be questioned before Single Judge-Held, the basic issue was whether the direction given by Single Judge could be maintained when matter was being remitted for adjudication by Tribunal-Division Bench had admitted appeal to examine legality of such direction-It should have considered the matter on merits-Matter remitted to High Court for decision D of writ appeal on merits.

Practice and Procedure:

Stay of proceedings-Single Judge of High Court remanding matter to Tribunal-Order challenged in writ appeal-No interim relief prayed-Tribunal E deciding the case-Held, in given cases court/forum to which matter is remitted can await decision in appeal where directions given are impugned.

In a writ petition arising out of an order of the Land Tribunal, the Single Judge of the High Court, while remanding the matter to the Land

~ Tribunal directed it to grant occupancy rights in favour of the respondents. F

Appellants filed a writ appeal challenging the said order but did not file any application for stay of the proceedings before the Tribunal, which granted occupancy rights in line with the directions given by the Single Judge. The Division Bench of the High Court dismissed the writ appeal.

In the appeal before the Supreme Court, it was contended for the G

appellants that in view of the fact that the Single Judge had already ... directed occupancy rights to be granted to the respondents, the Division Bench of the High Court erred in holding that the decision of the Tribunal could be assailed before the Single Judge. 1065 H

A Disposing of the appeal and remitting the matter to the Division Bench of the High Court, the Court

HELD: The Division Bench of the High Court was not justified in holding that the writ appeal had been rendered infructuous because of the subsequent decision of the Tribunal. The Tribunal acted only on the B basis of the direction given and on that ground alone granted occupancy rights. The High Court had admitted the writ appeal to examine legality of such direction. The basic issue was whether the direction given by Single Judge could be maintained, when the matter was being remitted by Single Judge to the Tribunal for fresh adjudication. Any decision taken by the C Tribunal has to be per force sub.iect to the decision in the writ appeal.

Therefore, the Division Bench should have considered the matter on merits without concluding that the writ appeal had become infructuous.

(1067-G-H; 1068-C-D[

2. The High Court had admitted the writ appeal to examine legality D of the direction given by Single Judge. Unfortunately, the Tribunal did not

' .

keep the proceedings pending though it was brought to its notice that the ..\

writ appeal had been admitted. Appellants have also contributed to the confusion to a great measure by not seeking stay of direction. In given cases the court/forum to which the matter is remitted can await decision in the appeal where the directions given are impugned. (1067-H; 1068-A-B)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 853 of 2005.

From the Judgment and Order dated 18.11.2002 of the Karnataka High Court in W.A. No. 8208 of 1999.

F Radhakrishna S. Hegde, Chandra Prakash Tyagi, Ms. Savitri Pandey and P.P. Singh for the Appellants.

Brij Bhusan, Sanjay R. Hegde, Krishnanand Pandeya for the Respondents.

G The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted.

Challenge in this appeal is the judgment of a Division Bench of the Karnataka High Court refusing to interfere with the order passed by learned H Single Judge in view of the fact that the Ankola Taluk Land Tribunal (in

N.D. SHETTI v. STATE (PASAYAT. J.) 1067

short the 'Tribunal') had disposed of the matter pursuant to the direction A given by learned Single Judge.

The appellants had filed the writ appeal before the Division Bench of the Karnataka High Court aggrieved primarily by that part of the order of learned Single Judge who had remanded the matter to the Tribunal, with a specific direction to grant occupancy rights in favour of the respondents, who B were the petitioners in the writ petition. The appeal was admitted but there was no order of stay passed in the appeal either directing stay of further proceedings before the Tribunal or staying operation of the order of learned Single Judge, as no application had been filed for grant of any interim relief.

Jn the absence of any order of stay, pursuant to the directions given by C learned Single Judge the proceedings came to be heard by the Tribunal which hold that the respondents were to be granted occupancy rights in line with the mandate given by learned Single Judge.

By the impugned judgment the High Court came to hold that though the learned Single Judge had directed grant of occupancy rights and the D Tribunal had followed the directions, it was open to the present appellants to question the correctness of the decision of the Tribunal before the learned Single Judge. Accordingly the writ appeal was dismissed.

In support of the appeal, learned counsel for the appellants submitted that the Division Bench was not justified in holding that the order of the E Tribunal could be assailed before learned Single Judge. In view of the fact that learned Single Judge had already directed that occupancy rights wre to be conferred on the respondents, no relief could be granted to the appellants.

It is pointed out that though the Tribunal was requested to keep the matter pending in view of the fact that the Writ Appeal had been admitted, the F Tribunal did not do so.

Per contra learned counsel appearing for the respondents supported the impugned judgment and submitted that the view expressed by the High Court in the impugned judgment does not suffer from any infirmity.

As the factual scenario noted above goes to show specific challenge in the writ appeal was in respect of the direction given by learned Single Judge to grant occupancy rights to the respondents. That was the basic issue which

was to be adjudicated by the Division Bench in the writ appeal. The basic issue, as noted above was whether the direction given by learned Single Judge could be maintained, when the matter was being remitted by learned H

A Single Judge_ to the Tribunal for fresh adjudication. In a given case there can be limited remand and giving finality to an issue. may be permissible. In the present case the High Court had admitted the writ appeal to examine legality of such direction. Unfortunately, the Tribunal did not keep the proceedings pending though it was brought to its notice that the Writ Appeal had been B admitted. Appellants have also contributed to the confusion to a great measure by not seeking stay of direction. In given cases the Court/Forum to which the matter is remitted can await decision in the appeal where the directions given are impugned. A copy of the order passed by the Tribunal pursuant to the direction given by learned Single Judge has been placed on record. It clearly shows that the Tribunal acted only on the basis of the direction given and on C that ground alone granted occupancy rights.

The High Court was not justified in holding that the writ appeal had been rendered infructuous because of the subsequent decision of the Tribunal.

Correctness of the order passed by learned Single Judge was being challenged in the writ appeal. Any decision taken by the Tribunal has to be per force D subject to the decision in the writ appeal. Therefore, the Division Bench

. ,

should have considered the matter on merits without concluding that the writ ...,

appeal had become infructuous.

In the peculiar circumstances we remit the matter to the High Court for fresh consideration. Writ Appeal No. 8208/I 999 shall be restored to file and shall be dealt with in accordance with law. As the matter is pending since

long, High Court is requested to explore the possibility of early disposal of the Writ Appeal. We make it clear that we have not expressed any opinion on the merits of the case.

The appeal is accordingly disposed of without any order as to costs.

R.P.

Appeal disposed of.