Umesh vs The Deputy Commissioner and Others

K.L. Manjunath, J.—Appellant herein is challenging the legality and correctness of the orders passed by the learned Single Judge in W.P. No. 17384 of 2005, dated 11-7-2005. Facts leading to this case are as hereunder 3 acres of land in Sy. No. 26/P of Huluginakatte Village of Shikaripur Taluk was granted to appellant under temporary order of grant in the year 1964 subject to the condition he shall not part with or alienate for a period of 15 years and according to the appellant grant has been later confirmed by the order of the Assistant Commissioner, Sagar Sub-Division dated 13-5-1974. Appellant filed a revision u/s 136(3) of the Karnataka Land Revenue Act, 1964 before the Assistant Commissioner, Sagar Sub-Division in RA No. 15/1999-2000 challenging the revenue entries made in the name of respondent 4 in respect of the land in question. Though the appeal was filed by the appellant challenging the revenue entries made in the name of respondent 4, instead of considering the appeal of the appellant, Assistant Commissioner passed an order directing the Tahsildar to delete the name of 4th appellant from the revenue records and further directed the Tahsildar to forfeit the land forthwith on the ground that there is violation of condition of grant in parting with the possession of the land by him. The order passed by the Assistant Commissioner, Sagar Sub-Division dated 13-2-2003 was questioned by filing a revision before the Deputy Commissioner, Shimoga District, Shimoga in Case No. R. Misc. 55/2002-03 which petition came to be dismissed on 10-3-2005. Challenging the concurrent findings, aforesaid writ petition was filed by the appellant.

Learned Single Judge only on the ground that whether the land in question is under personal cultivation or not is a question of fact and the same cannot be gone into in a writ petition, dismissed the writ petition. In the circumstances, present appeal is filed.

We have heard the Counsel for the parties.

According to Mr. Dixit Assistant Commissioner, Sagar Sub-Division, has committed serious error in directing the Tahsildar, Shikaripur to forfeit the land and take possession of the same. According to him, very nature of the order passed by the Assistant Commissioner has to be set aside, since such an order is passed in an appeal filed by the appellant u/s 136(2) of the Karnataka Land Revenue Act (hereinafter referred to as ''the Act''). Whether there is violation of condition or not, has to be adjudicated in accordance with law, but such a finding cannot be given in a proceedings arising out of provisions of Section 136(2) of the Act. Therefore, he requests to set aside all the orders.

Per contra, learned Government Advocate made an attempt to support the orders passed by the Assistant Commissioner, Sagar Sub-Division and the Deputy Commissioner, Shimoga and also by the learned Single Judge in regard to the order of forfeiture of the land in question.

Having heard the Counsel for the parties, only point to be considered in this appeal is whether the Assistant Commissioner, Sagar Sub-Division would get jurisdiction to forfeit the land of the appellant in an appeal filed u/s 136(2) of the Karnataka Land Revenue Act?

It is not in dispute that 3 acres of land in Sy. No. 26/P of Huluginakatte Village of Shikaripur Taluk was granted to the appellant by virtue of temporary order of grant in the year 1964 subject to the condition that the same shall not be alienated for a period of 15 years and the said grant has been made permanent subsequently. In an appeal u/s 136(3) of the Karnataka Land Revenue Act by the appellant challenging the revenue entries made in the name of respondent 4, the scope of the appeal before the Assistant Commissioner was only in respect of an entry made in respect of the land revenue in the name of respondent 4. Therefore, what was required to be considered by the Assistant Commissioner, Sagar Sub-Division, was in regard to the legality and correctness of the entry made in the name of respondent 4 in respect of the land in question. Even during the course of the said proceedings, if the Assistant Commissioner had come to the conclusion that the appellant has violated the terms and conditions of the grant, it is for the authorities under the Karnataka Land Revenue Act who initiated separate proceedings for cancellation of the grant on account of the violation of the terms and conditions of the grant. Without doing so, without conducting an enquiry and without giving an opportunity for the appellant to have his say in the matter Assistant Commissioner passed an order to forfeit the land and to resume the same by the Tahsildar. Therefore, we are of the opinion that a serious error has been committed by the Assistant Commissioner in passing such an order in a proceedings arising out of Section 136 of the Karnataka Land Revenue Act. Section 136 of the Karnataka Land Revenue Act reads as hereunder:

Appeal and revision.-(1) The provisions of Chapter V shall not apply to any decision or order under this Chapter.

(2) Any person affected by an order made under Sub-section (4) or an entry certified under Sub-section (6) of Section 129 may, within a period of sixty days from the date of communication of the order or the knowledge of the entry certified, appeal to such officer as may be prescribed by the State Government in this behalf and his decision shall be final.

(3) The Deputy Commissioner may, on his own motion or on application of a party, call for and examine any records made u/s 127 and Section 129 and pass such orders as he may deem fit:

Provided that no order shall be passed except after hearing the party who would be adversely affected by such order.

An appeal or revision u/s 136 would be maintainable provided such appeal or revision filed by a person affected of an order under Sub-section (4) or an entry certified under Sub-section (6) of Section 129 of the Act and such appeal has to be disposed of by hearing all the parties concerned. Therefore, scope of Section 136(2) of the Act is only in regard to the entries made either under Sub-section (4) or Sub-section (6) of Section 129 of the Act. If there is violation of terms and conditions of the grant, such matter has to be considered by the concerned authorities under the Karnataka Land Grant Rules, 1969. Without doing so, Assistant Commissioner, Sagar Sub-Division could not have passed an order of resumption by cancelling the grant made in favour of the appellant. Similarly, Deputy Commissioner has also committed the same error.

According to us, learned Single Judge without considering the question of law arises in the writ petition, has dismissed the writ petition on the ground that it would be beyond the scope of Article 226 of the Constitution of India to hold an enquiry. According to us, without examining the scope of Section 136(2) of the Act and without considering the powers of the Assistant Commissioner in passing an order, dehorning the provisions of the Land Grant Rules and other provisions of the Act, has dismissed the writ petition. In the circumstances, we are of the opinion that writ appeal has to be allowed and the order passed by the Assistant Commissioner, Sagar Sub-Division in cancelling the land granted to the appellant and the order confirmed by the Deputy Commissioner, Shimoga and so also the order passed by the learned Single Judge are to be set aside.

Accordingly, this appeal is allowed. All the orders as aforesaid are hereby quashed. Parties to bear their costs.