A. F. COLASO v. STATE OF MYSORE — 1973 DIGILAW 281 (KAR)

( 1 ) A. F. Colaso-the petitioner-is a coffee planter in Chikmagalur District adjacent to his plantations, there lies certain Government waste land. The petitioner has encroached a part of it. To penalise the petitioner, the Tahsildar initiated proceedings under S. 94 of the Mysore Land Revenue act, 1964 (hereinafter Called 'the Act' ). ( 2 ) THE Tahsildar on enquiry held that the petitioner has encroached 34 acres and 6 guntas of Government land. He has levied coffee assessment with cess and a fine of Rs. 25 for 1963-64. He levied double the coffee assessment with cess and a fine of Rs. 100 per acre for the years 1964-65 to 1968-69. The petitioner challenged the said order in a revision petition before the Mysore Revenue Appellate Tribunal. The Tribunal found that the petitioner has encroached only 10 acres 27 guntas and not 34 acres 6 guntas. On that basis it modified the order of Tahsildar, affirming the rates at which the assessment made and fine levied by Tahsildar. ( 3 ) AGGRIEVED by the order, the petitioner has preferred this writ petition under Article 227. ( 4 ) THE argument of Mr. T. S. Ramachandra for the petitioner is very much limited. He confined his attack against the imposition of fine at the rate of Rs. 100 per acre. He says that there is no finding given by the authorities that the petitioner has made use of the unauthorized occupation for the purpose of cultivation of any crop. ( 5 ) IN order to appreciate the contention, I have to closely scrutinise section 94 of the Act. 100 per acre. He says that there is no finding given by the authorities that the petitioner has made use of the unauthorized occupation for the purpose of cultivation of any crop. ( 5 ) IN order to appreciate the contention, I have to closely scrutinise section 94 of the Act. It reads thus :"any person who shall unauthorisedly enter upon the occupation of any land set apart for any special purpose or any unoccupied land which has not been alienated and any person, who uses or occupies any such land to the use or occupation of which he is not entitled or has ceased to be entitled, shall pay twice such amount of assessment for every year of his unauthorised occupation, as would be leviable in the same village on the same extent of similar land used for the same purpose; and shall also be liable, at the discretion of the Deputy commissioner, for every year of his unauthorised occupation, to a fine not exceeding five hundred rupees per acre, if such occupation has been for the purpose of cultivation, and not exceeding one thousand rupees per acre, if such occupation has been for any non-agricultural purpose. " ( 6 ) THE section consists of mainly two parts. By the first part, the person who unauthorisedly enters upon the occupation of any land set apart for any special purpose or any unoccupied land which has not been alienated or uses or occupies such land, shall pay twice such amount of assessment for every year of his unauthorised occupation, as would be leviable in the same village on the same extent of similar land used for the same purpose. Under the second part, he shall also be liable, at the discretion of the Deputy Commissioner, for every year of his unauthorised occupation, to a fine not exceeding Rs. 100 per acre, if 'such occupation' has been for the purposes of cultivation, and not exceeding Rs. 1,000 per acre, if such occupation has been for any non-agricultural purpose. It is, therefore, seen that the fine in addition to the assessment could be levied if the petitioner was found to have used the encroachment for the purposes of cultivation or fox any non-agricultural purpose. On this aspect of the matter, there is no finding recorded by the authorities below. It is, therefore, seen that the fine in addition to the assessment could be levied if the petitioner was found to have used the encroachment for the purposes of cultivation or fox any non-agricultural purpose. On this aspect of the matter, there is no finding recorded by the authorities below. In the absence of such a finding, the imposition of fine is clearly illegal and without the authority of law. ( 7 ) MR. Ramakrishna, learned High Court' Government Pleader contended that the purpose for which the petitioner made use of his encroachment, cannot be determined in this petition and that the petitioner should have urged that question before the Tribunal. I agree with him that the determination of the said question depends upon the investigation of facts, which cannot be done in this petition but to sustain the order of fine, it is absolutely necessary to record such a finding. It is for the Tahsildar to make proper investigation whether during the relevant period the petitioner has made use of his unauthorised occupation for agricultural or non-agricultural purposes. If, after proper enquiry, with opportunity to the petitioner, the Tahsildar finds that the encroachment in question was made use of for agricultural or non-agricultural purposes, then he may impose the fine in accordance with law. ( 8 ) IN the result, the petition is allowed in part. The order impugned in so far as it relates to the imposition of fine of Rs. 25 for 1963-64 and rs. 100 per acre, for the years 1964-65 to 1968-69 is hereby quashed. The the remaining pprtion of the order is kept undisturbed. No order as to costs. --- *** --- .