SUPREME COURT OF INDIA
Nagesh Datta Shetti
Vs.
State of Karnataka
C.A.No.853 of 2005
(Arijit Pasayat and S.H.Kapadia JJ.)
02.02.2005
Arijit Pasayat, J.
1. Leave granted.
2. 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
Single Judge in view of the fact that the Ankola Taluk Land Tribunal(in short
the 'Tribunal') had disposed of the matter pursuant to the direction given by
learned Single Judge.
3. 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 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. In the
absence of any order of stay, pursuant to the directions given by 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.
4. By the impugned judgment the High Court came to hold that though the learned
Single Judge had directed grant of occupancy rights and the 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.
5. 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 Tribunal
could be assailed before learned Single Judge. In view of the fact that learned
Single Judge had already directed that occupancy rights were 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 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.
6. 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 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 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 that ground alone granted
occupancy rights.
7. 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 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.
8. In the peculiar circumstances we remit the matter to the High Court for
fresh consideration. Writ Appeal No. 8208/1999 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.
9. The appeal is accordingly disposed of without any order as to costs.