B.K. Ramachandra vs State of Karnataka and Another

K.V. Narayana Raju, M.-This appeal under section 49 of the Karnataka Land Revenue Act is from the order dated 21-11-1977 passed by the learned Deputy Commissioner, Chikmagalur in B. Dis. LND. PR. 212/75-76 granting 5 acres out of gomal Sy. No. 168 of Balur village, Mudigere on lease for coffee cultivation to the second respondent D'' Souza on certain conditions.

The appellant has contended that in 1960-61 he was granted 2 acres out of that Sy. No. 168 (401 acres) for coffee cultivation; that since those 2 acres were uneconomical, he applied in 1967 for grant of another 8 acres 24 guntas and record was built up on such application, that he entered on the land and raised coffee which is now 12 years old; that the Revenue Authorities have also levied T.T. fine of Rs. 5,653-95; and that in the year 1975-76 the Tahsildar issued a notice calling upon the appellant to vacate the land in question, he filed a writ petition and the Hon''ble High Court quashed the eviction notice; that his application for grant has been pending all the time, and clandestinely the second respondent gave an application for the grant of the same land and also secured an order; that when the appellant was busy performing the obsequies of his mother who died on 15-5-1979, the second respondent with the assistance of the police and in a high handed manner dismantled the green fence raised by him, and on 31-5-1979 the second respondent himself told that 5 acres had been granted to him. The appellant has further said that on 31-5-1979 he applied to the Deputy Commissioner to remove the fence and asserting that the respondent could not have been granted land when his own application was pending. The Deputy Commissioner ordered the removal of the fence. On 13-6-1979 the appellant applied for a copy which was supplied on the same day.

The appeal is presented on 26-6-79 with an application for condonation of delay. The appellant has stated in the affidavit that he came to know of the order only on 31-5-1979 from the very second respondent, that he was busy in connection with the obsequies of his mother, and that he came to know the terms of grant only on receiving the copy of the order on 13-6-1979, and that therefore the delay if any in filing the appeal from the order dated 21-11-1977 be condoned. We condone the delay.

The counsel for the second respondent remained absent when the case was called on for hearing on 9-3-1981. Only the counsel for the appellant and the State Representative were heard. The file received from the Deputy Commissioner does not contain the application given by the respondent or the reports of the Tahsildar and the Assistant Commissioner There is a memo dated 6-11-1976 of the Deputy Commissioner returning the Darkhast record with a statement that land out of gonial could not be granted and that however a clarification was sought from the Government. Subsequently there is a note on 18-11-1977 that according to the availability list 60 acres of land was available for disposal and that 180 acres had been reserved, and that the Government had issued a circular to grant excess gomal land. The note also mentions that the land had been appropriated by the Assistant Commissioner on 6-2-1975 for coffee cultivation. Thereafter the Deputy Commissioner has approved the office note for grant of 5 acres at Rs. 700 per acre on 20-11-1977. The formal order has been prepared on 21-11-1977.

We have given serious thought as to what exactly is to be done in cases of this kind where the Deputy Commissioner makes a grant on the recommendation of the subordinates, and a person like the appellant complains that the land granted has all along been in his possession and that in fact his application for grant is also pending. The counsel for the appellant has invited reference to the decision of our High Court dated 30-7-1979 in Ramaih v. State, ILR (1979) 2 Kar 2219, holding:

"An examination of all the Land Grant Rules clearly indicates that when there is more than one application for grant of one and the same land the competent authority has necessarily to consider all the applications together and dispose of them together. Such a course, if not adopted, will result in non-consideration of an eligible applicant and rejection of his application would result in failure of justice............. Law apart, failure to consider the applications together when the applications for grant of one and the same land is not in the interest of justice."

In the case before us there is nothing to show that the appellant filed an application for grant after the land was put on the availability list. He has of course produced an extract from the Darkhast Register of the year 1966-67 which mentions that he applied for 5 acres of land in Sy. No. 168 for coffee cultivation, and that such application was sent on 15-5-1977 to the Revenue Inspector. The appellant has also produced record of rights extract which shows that the appellant was in possession of 7 acres 30 guntas in the years 1972-1973 and 1973-1974 and 6 acres 30 guntas in the years 1975-76 and 1976-77. It may be needless to point out that no finding can be recorded on the correctness or otherwise of such contentions which somehow or the other were not before the Deputy Commissioner.

We are of the opinion that if really the appellant feels aggrieved by the order passed by the Deputy Commissioner, it is easy and better for him to approach the very Deputy Commissioner for cancelling the grant under Rule 25 of the Land Grant Rules on the ground that the grant has been obtained by making false or fraudlent representations or is contrary to the Rules. An enquiry into a complaint of the kind made by the appellant could be made only in a original proceeding and not in an appeal from the decision in a proceeding to which the appellant was not a party, and whose claim was not brought to the notice of the authority granting land. We are convinced that in all such cases the only course for the aggrieved person is to approach the Deputy Commissioner under Rule 25 of the Land Grant Rules, and not prefer an appeal. It is not difficult to see that the appellate court or this Tribunal is not possessed of all the material that may be necessary to give a finding in favour of the appellant. His complaint requires a full and proper enquiry.

For the reasons mentioned above we dismiss the appeal and refer the appellant to the learned Deputy Commissioner for redress. We may also mention that a similar order was passed on 17-1-1981 in Apl. 129/80, Nagappa v. Venkatapp.