Kempanna vs State of Karnataka

Per K.V. Narayanaraju, M.-This appeal under S. 49 of the Karnataka Land Revenue Act is from the order dated 10-10-1980 passed by the learned Deputy Commissioner, Kolar, in MSC. CR. 35/80-81 rejecting the request of the appellant for grant of hakdari rights over certain trees by the side of Kolar-Antharaganga road near Keelukote village, Kolar Taluk.

The appellant asked for hakdari rights on the ground that the trees were planted and raised by his ancestors. It appears that on an earlier occasion the claim was rejected by an order dated 16-6-1973 on the ground that the trees had been planted before the coming into force of the Karnataka Land Revenue Act; and now the learned Deputy Commissioner has pressed into service not only that circumstance, but also the one that the appellant had no documentary evidence to show that permission was granted to plant and rear the trees.

The appellant has contended that the learned Deputy Commissioner erred in passing the order without giving a hearing, and that his view that the trees had been planted before the coming into force of the Land Revenue Act, and that permission had not been taken earlier, and therefore hakdari cannot be granted, is contrary to law.

We heard the Counsel for the appellant and the learned Assistant State Representative. We must first refer to the question of limitation. The appellant has said that he was not aware of the order dated 10-10-1980 till 27-10-1980 and therefore the delay if any may be condoned. The appeal is presented on 26-12-1980 after having obtained the copy of the order on 11-11-1980- There is nothing to show that the Deputy Commissioner ever informed the appellant that the matter would be decided on 10-10-1980. Therefore the delay is condoned.

Rule 102-A(2) speaks of granting hakdari rights over trees which have been raised on Government lands prior to the coming into force of the Land Revenue Rules. That Rule does not lay down as a condition precedent to the grant of hakdari rights, the planting of the trees after coining into force of the Land Revenue Act. Nor does the Rule require the existence of earlier permission to raise trees. On the other hand that sub-rule clearly implies the grant of hakdari rights to persons who have raised the trees without any kind of permission. The Deputy Commissioner is expected to hold an enquiry for collecting oral and documentary evidence, if any, for the purpose of ascertaining the truth of the contention that the person claiming or his predecessor had in fact raised the trees. The rule only says that if the claimant or his predecessor had raised the trees and the grant of rights cannot be objectionable, the right claimed has to be granted.

It is rather unfortunate that in many cases the Deputy Commissioners have been rejecting the claims only on the ground that there was no earlier permission, without expressing a clear and definite opinion on the question whether or not the claimant or his predecessor had in fact raised the trees. No intelligible objection is made out. In the present case the Tahsildar and the Assistant Commissioner appear to have recommended the grant and the Deputy Commissioner does not appear to have applied his mind and recorded a finding either way whether or not the appellant or his predecessor had raised the trees. It is necessary that he must address himself to the question whether the trees had been raised by the appellant or his predecessor and if satisfied as to the truth of the contention, he should grant hakdari right unless he makes out strong objection from the point of public interest.

Since relevant matters have not been taken into account by the learned Deputy Commissioner, and the claim has been disposed of on irrelevant considerations, we set aside the order passed by the Deputy Commissioner and remit the matter to him for a fresh disposal in accordance with law, keeping in mind the observations made above.

Appeal allowed and case remanded