Hanumanthappa vs The Deputy Commissioner

B. Sreenivas Gowda, J.—This writ appeal is by the 4th respondent in the writ petition challenging the order of the learned Single Judge passed in W.P. No. 12620 of 2009 Eshwarappa Since Dead By His LRs. (Smt Rathnamma, Nagaraja and Umesh) Vs. The Deputy Commissioner Shimoga, The Assistant Commissioner Shimoga Sub-Division Shimoga, The Tahasildar Bhadravathi and Hanumanthappa, , wherein the learned Single Judge has allowed the writ petition and set aside the orders passed by the Deputy Commissioner and the Karnataka Appellate Tribunal. The facts leading to the filing of this appeal are stated as under:

"The father of Manjappa and seven others were granted different bit of lands in Sy. No. 38 of Sanyasikodamagge Village, Holehonnur Hobli, Bhadravathi Taluk, Shimoga District by the Tahsildar, Bhadravathi vide order dated 25-9-1976 under the Karnataka Land Grant Rules, 1969 on a condition that the grantees should bring the lands under cultivation within 2 years from the date of grant and they should not alienate the lands for a period of 15 years from the date of grant. The Tahsildar on coming to know that the grantees including the father of appellant had violated the terms of grant in not bringing the lands under cultivation within the stipulated period and on the other hand father of the appellant had alienated the land granted to him in favour of a third party by way of a mortgage has submitted a detailed report to the Assistant Commissioner, Shimoga recommending for cancellation of grant, who in turn returned the file to the Tahsildar pointing out that the lands being granted under the Land Grant Rules, 1969, the Tahsildar himself is the Competent Authority to cancel the grant as per Section 25 of the Karnataka Land Revenue Act, 1964. Thereafter, the Tahsildar after issuing show-cause notices to the grantees calling upon them to show cause as to why the lands granted in their favour should not be" cancelled on the ground of violation of terms of grant and after being satisfied that the grantees had violated the terms of grant, cancelled the grant vide his order dated 10-11-1987. The grantees aggrieved by the said order of the Tahsildar challenged the same by preferring an appeal in R.A. No. 33 of 87-88 before the Assistant Commissioner, Shimoga, who by his order dated 2-5-1989 dismissed the appeal and confirmed the cancellation of grant of land made by the Tahsildar. Some of the grantees aggrieved by the order passed by the Tahsildar in cancelling the grant and its confirmation order passed by the Assistant Commissioner, preferred second appeal before the Deputy Commissioner, who allowed the appeal and set aside the orders passed by the Tahsildar and the Assistant Commissioner and remitted the matter to the Tahsildar for reconsideration. Neither the appellant nor his father have carried the matter further thereby they have accepted the order passed by the Tahsildar in cancelling the grant and its confirmation order passed by the Assistant Commissioner. Thereafter the Tahsildar got the land granted in favour of the father of the appellant vested with the Government by effecting katha of the said land in the name of the Government vide M.R. No. 48/98-99 as evident from Annexure-C to the writ petition. In the meanwhile, the husband of respondent 4 and father of respondents 5 and 6 viz., Eshwarappa had filed Form 50 before the Land Grant Committee, Bhadravathi (hereinafter referred to as ''the Committee'') seeking to regularise 1 acre 20 cents of land in Sy. No. 38 of Sanyaskodamagge including the land granted in favour of the father of the appellant (hereinafter referred to as �land in question'') in his favour on the ground that he had been in unauthorised cultivation and occupation of the same since long time. The Committee after satisfying with the unauthorised cultivation of the land by Eshwarappa by its order dated 10/27-8-1998 ordered for regularisation of the land in his favour. The appellant challenged the said regularisation order passed by the Committee by preferring an appeal in R.A. No. 6 of 2001-02 before the Assistant Commissioner, Shimoga, who by order dated 21-2-2003 dismissed the appeal and confirmed the regularisation order passed by the committee in favour of Eshwarappa. Being aggrieved by the order passed by the Assistant Commissioner dated 21-2-2003 the appellant challenged the same by preferring an appeal in R.A. No. 4 of 2003-04 before the Deputy Commissioner, Shimoga District, who by order dated 16-4-2005 allowed the appeal and set aside the regularisation order passed by the Committee and its confirmation order passed by the Assistant Commissioner and in pursuance of the same he set aside even the order passed by the Tahsildar dated 10/27-8-1998 thereby he cancelled the grant of land made in favour of the father of the appellant even though it was not the subject-matter of the appeal and it was not even challenged in the said appeal. Being aggrieved by the said order passed by the Deputy Commissioner, the legal representatives of Eshwarappa i.e., respondents 4 to 6 challenged the same by preferring a revision petition in R.P. No. 305 of 2005 before the Karnataka Appellate Tribunal (hereinafter referred to as ''the Tribunal''). The Appellate Tribunal also dismissed the R.P. No. 305 of 2005 by an order dated 25-3-2009. Aggrieved by the orders passed by the Tribunal as well as the Deputy Commissioner, the respondents 4 to 6 herein preferred W.P. No. 12620 of 2009 before this Court. The learned Single Judge allowed the writ petition and set aside both the orders. Against the said order of the learned Single Judge, the 4th respondent in the writ petition has preferred this appeal."

Sri S.V. Prakash, learned Counsel appearing for the appellant submits that, along with the father of the appellant, seven other persons were granted different extent of land in Sy. No. 38 of Sanyasikodamagge Village of Bhadravathi Taluk and grant made in favour of the said seven persons also came to be set aside by the Tahsildar and all of them preferred an appeal before the Assistant Commissioner challenging the order passed by the Tahsildar in cancelling the grant of lands made in their favour. The Assistant Commissioner dismissed their appeal and confirmed the order passed by the Tahsildar. But some of them did not stop at that stage and they carried the matter further by preferring second appeal before the Deputy Commissioner, who allowed their appeals and set aside the orders passed by the Tahsildar and the Assistant Commissioner and remitted the matter to the Tahsildar for reconsideration and in view of the same, the entire matter is pending for consideration before the Tahsildar, thereby he submits that the order passed by the Tahsildar in cancelling the grant of lands made in favour of 8 persons including the father of the appellant is under consideration.

It is to be noted that the order passed by the Tahsildar cancelling the grant of 1 acre 9 cents of land in Sy. No. 38 made in favour of father of the appellant was challenged by him by preferring an appeal in R.A. No. 6 of 2001-02 before the Assistant Commissioner, who dismissed the appeal and confirmed the order passed by the Tahsildar. Thereafter, neither the appellant nor his father carried the matter further and thereby the cancellation of grant of land made in favour of the father of the appellant became final. It is for this reason, the learned Single Judge has held that cancellation of grant of land made in favour of the father of appellant had attained finality. If that is so, either the appellant or his father could not have challenged the regularisation of the said land made by the Committee in favour of Eshwarappa. The Deputy Commissioner without considering this material aspect of the matter has committed an error in allowing the appeal and setting aside the regularisation order made by the Committee in favour of Eshwarappa and its confirmation order passed by the Assistant Commissioner including the order passed by the Tahsildar cancelling the grant of land made in favour of the father of the appellant though it was not under challenge and remitting the matter to the Tahsildar. The Appellate Tribunal has also committed the same mistake in dismissing the revision petition filed by the legal representatives of Eshwarappa. Learned Single Judge noticing this material aspect of the matter that after cancellation of grant of land made in favour of the father of appellant having reached the finality the appellant had no locus standi to challenge the regularisation of the said land by the Land Grant Committee in favour of Eshwarappa has rightly allowed the writ petition and set aside both the orders passed by the Deputy Commissioner and the Appellate Tribunal and for this reason alone the appeal is liable to be dismissed.

It is also to be noted that the father of the appellant had owned 5 acres of arecanut land in Bhadravathi Taluk and after his death mutation of the said arecanut land came to be effected in the name of the appellant, that being so, neither the appellant nor his father was entitled for grant of any land in their favour including the land in question. The Tahsildar after coming to know that the father of the appellant had failed to bring the land granted to him under cultivation within the stipulated period, on the other hand he had alienated the same in favour of a third party within the period of non-alienation and further he was owning 5 acres of arecanut land and he was not eligible to be granted the land in question has rightly cancelled the grant of land made in favour the father of the appellant.

It is also to be noted that Eshwarappa after regularisation of the said land in his favour had availed the loan from the Primary Land Development Bank for improvement of the land and raised arecanut garden and after discharging the said loan he had raised the second loan from a Co-operative Society and had discharged the second loan also. Apart from that the Record of Rights pertaining to the land in question appeared in name of Eshwarappa and after his death in the name of his family members i.e. respondents 4 to 6 in this appeal right from the date of regularisation of land till date. For this reason also the appeal is liable to be dismissed.

We have carefully gone through the orders passed by the Tahsildar, the Committee, the Assistant Commissioner, the Deputy Commissioner, the Karnataka Appellate Tribunal and also the order passed by the learned Single judge of this Court and we do not find any error, illegality or infirmity in the order passed by the learned Single Judge of this Court warranting our interference that too, in an intra Court proceedings. Accordingly and for the reasons stated herein above, the appeal is dismissed as devoid of merits.

No order as to costs.