Venkateswara Dasaru vs Deputy Commr., Kolar and Another

Narayana Raju, K.V.-This appeal under Section 49 of the Karnataka Land Revenue Act is from the order dated 3-7-1979 passed by the learned Deputy Commissioner, Kolar in MSC. CR. 16/79-80 granting hakdari to the second respondent Bachappa over 17 honge, 2 Ala and 4 Hoovrchi trees of Sy. No. 33 of Burgamakalahalli. Ambajidurga Hobli, Chintamani Taluk.

The appeal has been filed on 3-3-1981 with application for condonation of delay. In the affidavit in support of that application the appellant has stated that he was not aware of the order dated 3-7-1979 till 10-2-1981 when his advocate in O.S. 268/80 on the file of the Munsiff. Chintamani told that the respondent was claiming right to 1 acre 30 guntas out of Sy. No. 33 together with trees thereon by virtue of the order passed by the Deputy Commissioner, that as advised by the advocate he applied for copy on 10-2-1981 which was supplied on 13-2-1981 and that therefore the delay if any may be condoned. The respondent has filed a counter affidavit saying that the allegations made are false. No material is put forth which establishes that the appellant had knowledge of the order earlier to 13-2-1981. In the circumstances, we accept the explanation, condone the delay and entertain the appeal.

In an unusually long memorandum of appeal with twenty seven paragraphs the appellant has narrated a long story about his father Marappa having renounced the world and become a Sadhu, established the Ashram or Kutira on the land in question, and also having raised the trees besides several fruit and flower plants and also vegetables. According to the appellant his father died in 1964 having been on the land for over ten years.

He has further said that on the night of 24/25-10-1979 respondent 2, his brothers, son and supporters trespassed and threatened him with injury to life and destroyed the tombs of his father and other relatives, cut the branches of the trees rem wed the plantain and mango seedlings and also took away Vigrahas installed. It is also said that several photos of Gods and Goddesses were stolen and that on the next day he lodged a complaint before the Police upon which a charge sheet was filed before the Criminal Court.

It is further mentioned that the second respondent himself has filed a private complaint before the Magistrate and also Original Suit 268/80 on the file of the Munsiff, Chintamani. He has contended that the second respondent in collusion with the Revenue Officers got up false record that he had raised the trees and that. the learned Deputy Commissioner without proper enquiry ought not to have granted hakdari.

It is interesting that in the counter affidavit filed on 27-4-1981 the second respondent has also stated that the Ashram was established by his own father Venkatappa and that he had raised fruit and flower plants and that his own father and his relatives were buried and tombs erected.

The counsel have been heard. We are of the opinion that dealing with an appeal it is not possible or desirable for this Tribunal to pronounce upon the correctness or otherwise of the story put forth by any of the parties. The learned Deputy Commissioner appears to have passed the order on the report dated 24-2-1979 of the Assistant Comissioner, Chikkaballapur which perhaps was based on the report of the Tahsildar who in all probability acted on the recommendation of the Revenue Inspector.

Rule 102-A of the Karnataka Land Revenue Rules empowers the Deputy Commissioner to grant hakdari after holding an enquiry into the claim of a person that he and his predecessors had raised trees on Government lands. There is nothing to indicate that the Deputy Commissioner personally visited the land and made enquiries with the neighbours. If that had been done the Deputy Comissioner perhaps would have been able to find out about the rival claims. According to the appellant the entire record has been built up behind him by the second respondent in collusion with villagers and certain Revenue Officers. Needless to say that very often the mahajans are subscribed to by partisan witnesses and very rarely it is possible to know if any of the subscribers are neighbours who should be in the better know of things. We repeat that we cannot set aside the order passed by the Deputy Commissioner only on the assertions if, not the tall claims of the appellant before this Tribunal. Nor would it be proper for us to set aside the order and remand the matter in the absence of definite material showing that the appellant or his father had raised the trees in question and was actually in possession of hut and other things on the land. This case as several others which have come before us shows that in the grab of obtaining hakdari over the trees, attempts are made to appropriate the entire extent of land surrounding the trees.

Having given our utmost consideration and thought to the problem like the one before us, we are of the opinion that a person like the appellant will have to approach the very Deputy Commissioner with a request to cancel the grant under Section 25 of the Karnataka Land Revenue Act, if not under Rule 25 of the Karnataka Land Grant Rules, 1969 on the ground that the order granting hakdari was the result of false or fraudulent representation.

As held by Privy Council in 6 Moo. Ind. App. 393 and AIR 1960 Mad. 482, every Court, whether a Civil Court or otherwise, must, therefore, in the absence of express provision in the Code for that purpose, be deemed to possess, as inherent in its very constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice. It is better that the very authority who has been misled into passing a wrong order is approached to correct the error by exercising the inherent power. It is needless to point out that the Deputy Commissioner can correct the wrong only on recording a finding that but for false or fraudulent representation the order passed would have been different. A power of correction in such circumstances will indeed be consistent with justice, equity and good conscience and it would not be inconsistent with any express provision in the Land Revenue Act.

We may also point out that having recourse to S. 25 of the Land Revenue Act is better and appropriate than preferring an appeal making out new facts which are different and at variance with the facts on record before the Deputy Commissioner.

For the foregoing reasons the appeal is dismissed without prejudice to the right of the appellant to approach the Deputy Commissioner for relief either under S. 25 of the Karnataka Land Revenue Act, or Rule 26 of the Karnataka Land Grant Rules, 1969.