Mudderu Thimmappa @ M. Thimmappa vs The Deputy Commissioner, Chitradurga and Others

Though this petition is listed for preliminary hearing, the same is heard on merits and disposed of by this order, with a direction to Sri K. Nagaraja, the learned High Court Government Pleader, to take notice for respondents.

The petitioner filed an application in Form 50 for grant of 5 acres 20 guntas of land in Sy. No. 86 of Duggavara Village by regularising his unauthorised occupation of the same, under the provisions of Section 94-A of the Karnataka Land Revenue Act, 1964 (hereinafter called "the Act").

Chapter XIII-A of the Karnataka Land Revenue Rules, 1966 (hereinafter called "the Rules") deals with the regularisation of unauthorised occupation of land, according to which any person who is in unauthorised occupation of any land may make an application in writing to the Tahsildar of the Taluk in Form 50 along with the fee prescribed. The said application will have to be considered either by the committee or by the additional committee constituted by the Government in accordance with Rule 108-E or Rule 108-EE of the rules. The Assistant Commissioner of the concerned sub-division or any other officer of the equivalent rank nominated by the State Government shall be the Chairman of the additional committee. Whereas, any one of the members of the committee constituted under Rule 108-E of the rules may be nominated by the State Government as the Chairman.

The committee of which the Assistant Commissioner was the Chairman considered the application of the petitioner and recommended to reject the same on the ground that his annual income is more than Rs. 8,000/-. Aggrieved by the said recommendation, the petitioner filed an appeal before the Deputy Commissioner, Chitradurga District, under sub-rule (6) of Rule 108-D of the rules. The Deputy Commissioner by his order dated 10-9-1997 dismissed the appeal. Hence, this petition under Articles 226 and 227 of the Constitution of India.

In view of Sections 49 and 50 of the Act, I am of the view that this is not a case which warrants interference of this Court in its discretionary jurisdiction as an alternative remedy is available by way of a second appeal u/s 50 of the Act.

Sri B.M. Siddappa, the learned Counsel appearing for the petitioner, has contended that no second appeal is available in view of sub-rule (6) of Rule 108-D of the rules. It is his further contention that, in view of a specific appeal provision having been allowed in the rules, the provisions providing appeals in the Act are not attracted. Sri K. Nagaraja, the learned High Court Government Pleader, has, however, contended that Rule 108-D of the rules is not a substantive provision allowing appeals against any order made under the Act, and therefore Section 49 and Section 50 are the only provisions which deal with the appeals.

Sections 49 and 50 of the Act reads as under.--

"49. Appeals from original orders.--Save as otherwise expressly provided, an appeal shall lie from every original order passed under this Act or the rules made thereunder and from every order made in exercise of the powers conferred by Section 54 of the Code of Civil Procedure, 1908 (Central Act 5 of 1908):--

(a) If such an order is passed by a Revenue Officer subordinate to the Assistant Commissioner whether or not invested with the powers of the Assistant Commissioner or the Deputy Commissioner to the Assistant Commissioner;

(b) If such an order is passed by the Assistant Commissioner, whether or not invested or delegated with the powers of the Deputy Commissioner, to the Deputy Commissioner;

(c) If such an order is passed by the Deputy Commissioner, to the Tribunal;

(d) If such an order is passed by the Divisional Commissioner, to the Tribunal;

(e) If such an order is passed by a Survey Officer below the rank of an Assistant Superintendent of Land Records or the Assistant Superintendent for Settlement, to the Assistant Superintendent of Land Records or the Assistant Superintendent for Settlement, as the case may be;

(f) If such an order is passed by a Survey Officer of the rank of an Assistant Superintendent of Land Records or Assistant Superintendent for Settlement, to the Deputy Commissioner of Land Records or the Deputy Commissioner for Settlement, as the case may be;

(g) If such an order is passed by the Deputy Commissioner of Land Records or the Deputy Commissioner for Settlement, to the Director of Survey, Settlement and Land Records;

(h) If such an order is passed by the Director of Survey, Settlement and Land Records, to the Tribunal.

Second appeal.--(1) A second appeal shall lie against any order passed in a first appeal u/s 49.--

(a) If such an order is passed by the Assistant Commissioner, to the Deputy Commissioner;

(b) If such an order is passed by the Deputy Commissioner, to the Tribunal;

(b1) If such an order is passed by the Assistant Superintendent for Settlement or the Assistant Superintendent of Land Records, to the Director of Survey, Settlement and Land Records;

(c) If such an order is passed by the Deputy Commissioner of Land Records or Deputy Commissioner for Settlement or by the Director of Survey, Settlement and Land Records to the Tribunal.

(2) An order passed on second appeal shall be final".

Section 51 prescribes the limitation for filing appeals and it reads thus.--

"51. Limitation of appeals.--

No appeals shall lie.--

(a) in the case of a first appeal after the expiry of sixty days from the date of the order appealed against; and

(b) in the case of second appeal, after the expiry of ninety days from the date of the order appealed against".

Sub-rule (6) of Rule 108-D of the rules on which Sri B.M. Siddappa placed reliance in support of his case reads as under.--

"108-D(6) Appeal against orders made by the Tahsildar on the recommendations, of the Committee shall He to the Assistant Commissioner, and of the Additional Committee shall lie to the Deputy Commissioner".

It is seen from the aforesaid rule that it prescribes the authority to which the appeal is allowed under the provisions of the Act and the rule by itself would not confer any right to file appeals. It is also material to see that rules does not deal with the period of limitation for filing any appeal. In view of the authority to make recommendations for grant by way of regularisation of unauthorised cultivation having been vested in two bodies, namely the committee and the additional committee, the additional committee to be presided over by the Assistant Commissioner of the sub-division or by an Officer of the equivalent rank, it became necessary to specify the authorities to which the appeals shall lie against the order made by the Tahsildar under sub-rule (3) of Rule 108-D of the rules. Rule 108-D of the rules is, in their very nature, not a substantive provision providing appeals against the orders made by any authority either under the Act or under the rules framed thereunder. On the other hand, Section 49 of the Act allows an appeal against every original order made by any authority under the Act or the rules to such authority to which appeal is allowed and Section 50 provides a second appeal against the order made in the first appeal and such appeals will have to be filed within the period prescribed u/s 51 of the Act.

From the provisions of Sections 49, 50, 51 and Rule 108-D of the Act and the rales, it is clear that appeals are allowed only under Sections 49 and 50 of the Act and, Rule 108-D(6) specifies the authorities to which appeals would lie against the order made by the Tahsildar depending upon the committee making recommendation.

It is further contended by Sri K. Nagaraja, the learned High Court Government Pleader, that the appeal before the Deputy Commissioner itself is not maintainable as the order of dismissal of his application is not impugned in the appeal. The decision of the committee is followed by an order of the Tahsildar and these objections was not raised before the Deputy Commissioner and, therefore, it cannot be raised in this petition.

For the reasons aforesaid, this petition fails and, therefore, rejected leaving liberty to the petitioner to file a second appeal before the appropriate authority if he is so advised.

The certified copies of the order may be returned to the petitioner as soon as the application for return is filed along with the typed copy of the impugned order.

In the circumstances of the case, there is no order as to costs.

Sri K. Nagaraja, the learned High Court Government Pleader is permitted to file memo of appearance within four weeks.