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1990 DIGILAW 197 (KAR)

K. C. THIMMAIAH v. M. M. SOMAIAH

1990-05-29

M.RAMAKRISHNA RAO

body1990
RAMAKRISHNA, J. ( 1 ) IN this petition under Articles 226 and 227 of the Constitution, the petitioner has called in question the legality and correctness of the orders passed by the Deputy commissioner of Kodagu (respondont-2) at annexure-E and that of the Karnataka appellate Tribunal, Bangalore (respondent 3) at Annexure-H. ( 2 ) A few facts that are necessary fordisposal of this Writ Petition are as follows: the 1st respondent had approached the then Chief Minister of the State of karnataka seeking for grant of certain land in his favour on the ground that he had been an Indian Olympic Hockey Player. He had specifically requested for grant of 10 acres of land for Plantation purposes. That application came to be forwarded to the Deputy Commissioner, Kodagu, to built up records and to send proposals. 2. 1. Again, on 14-10-1981, another application came to be presented before the then Chief Minister of State of Karnataka. That application again came to be forwarded to the Deputy Commissioner, kodagu, with a similar direction. 2. 2. It seems, pursuant to the said direction, the Tahsildar, Virajpet, had recommended to the Deputy Commissioner to grant 8 acres of paisari land in Sy. No. 315/1 (84-06 acres) of Arji Village in favour of the 1 st respondent. Based upon the said recommendation, the Deputy Commissioner (2nd respondent) passed the impugned order, (Annexure-E) granting 8 acres of land in the said survey number for Coffee Plantation. The relevant portion of the order granting the land in favour of the 1st respondent reads as follows : "in the circumstances explained in the Preamble, an extent of 8 (eight) acres of land out of paisary Sy. No. 315/1 of Arji Village is granted to Sri maneyapanda M. Somaiah, Hockey Player, for Coffee cultivation as per the general directions issued by the Government in Circular No. RD 19 LGP 82 dated 22-1-1982 read with rule 16 of k. L G. Rules, 1969 for coffee cultivation on recovery of land value at Rs. 800/- per acre, subject to disposal of tree growth by the Forest Department. ( 3 ) THE petitioner aggrieved by thisorder of the Deputy Commissioner, filed an appeal before the Karnataka Appellate tribunal, Bangalore, under S. 49 of the Karnataka Land Revenue Act, challenging the legality and correctness of the said order of the Deputy Commissioner. 800/- per acre, subject to disposal of tree growth by the Forest Department. ( 3 ) THE petitioner aggrieved by thisorder of the Deputy Commissioner, filed an appeal before the Karnataka Appellate tribunal, Bangalore, under S. 49 of the Karnataka Land Revenue Act, challenging the legality and correctness of the said order of the Deputy Commissioner. The Tribunal, by its order dated 22-10-83 (Annexure-H) dismissed the appeal confirming the order of the Deputy Commissioner (2nd respondent ). Hence this Writ Petition. ( 4 ) SRI P. P. Muthanna, learned Counselfor the petitioner, has taken the following contentions attacking the impugned orders :4. 1 The 1st contention raised in support of the Writ Petition is that the deputy Commissioner was in error in having granted the land in question in favour of the 1st respondent when the land in the said survey number, namely, sy. No. 315/1, had been reserved for gomal and that too when there was insufficient gomal in the Village Arji and that therefore, the Deputy Commissioner was not right in passing the impugned order in favour of the 1st respondent. 4. 2 The second contention wes that the Deputy Commissioner was in error in having not considered the applications of a number of persons, including that of the petitioner, seeking grant of land in the said survey number. 4. 3 The third contention was that the deputy Commissioner had failed to comply with the mandatory requirements of law relating to land grant under the Karnataka land Grant Rules, 1969 (hereinafter referred to as the Rules), in-as much as there was no notification having been issued calling for applications for grant of land as required by law. ( 5 ) THE main grievance of the petitioner is that his case having been similarly situated, and his application having been rejected, the Deputy Commissioner ought not to have considered the application of the 1st respondent for grant of land. The petitioner being an ex-Serviceman seeking for grant of land in respect of 3 acres in Sy, No. 315/1 of Arji village, his application ought to have been considered on priority basis as provided in the Rules. This having not been done, the deputy Commissioner was not right in granting the land in favour of the 1st respondent. The petitioner being an ex-Serviceman seeking for grant of land in respect of 3 acres in Sy, No. 315/1 of Arji village, his application ought to have been considered on priority basis as provided in the Rules. This having not been done, the deputy Commissioner was not right in granting the land in favour of the 1st respondent. ( 6 ) THE 1st respondent, the contestedparty, having been served, remained unrepresented, and therefore, I have no benefit of his say in the matter. ( 7 ) APART from the above contentionsraised by the petitioner, the Writ Petition deserves to be allowed on one more important aspect of the matter arising in this petition. 7. 1 Rule 27 of the Rules reads thus : ''27. Powa rs of the State government notwithstanding anything contained in the preceding Rules, the State government may, suo motu,or on the recommendation of the Divisional commissioner or the Deputy Commissioner, if it is of the opinion that, in the circumstances of any case or classes of cases, it is just and reasonable to relax any of the provisions of these Rules, by order, direct such relaxation, recording the reasons for such relaxation, subject to such conditions as may be specified in the orders and thereupon lands may be granted, in such a case or classes of cases in accordance with such direction". Indeed, the above rule has been extracted in the order by the Tribunal while dismissing the appeal of the petitioner. But, unfortunately the Tribunal failed to take note of the essential features of Rule 27 and the State Government also failed to follow it in the instance case. ( 8 ) BY a perusal of Rule 27, it is clearthat in the event of the State Government intending to exercise power under the above Rule, it may do so, suo moto or on the recommendation of the Divisional commissioner or the Deputy Commissioner and if it is of the opinion that in the circumstances of any case or classes of cases, it is just and reasonable to relax any of the provisions of these Rules, it may, by order, direct such relaxation recording the reasons for such relaxation. ( 9 ) IN the instant case, I do not findany such specific order made by the State government relaxing the general conditions of the grant of land as provided under the Rules so as to enable the State government to treat the 1st respondent's case as a special case by relaxing the provisions of the Rules for grant of land in question. There is no reference to such an order having been made by the State government in the order of the Deputy commissioner, Annexure-E, granting the land. The only reference found in Annexure-E is the recommendation of the tahsildar of Virajpet. In the absence of any specific order to be made by the State government in exercise of the power under Rule 27, it is not possible for the deputy Commissioner to exercise power for grant of land as a special case as has been done in the instant case. ( 10 ) INDEED, if, on the other hand,the Deputy Commissioner was of the opinion that it was a case for granting the land in favour of the 1st respondent, the deputy Commissioner would have done so in compliance with the normal requirement of the Rules. This having not been done, the Deputy Commissioner was not cempetent to pass such an order treating the applicant's (1st respondent) case as a special case as he happened to be the indian Olympic Hockey Player, which is not disputed by the petitioner. It is open to the State Government to relax any of the provisions of the Rules in exercise of the powers under Rule 27 of the Rules extracted above. In other words, since the State Government did not pass any order as a special case relaxing the general conditions of the Rules, the contention of the petitioner that he being an ex-serviceman and his application having been rejected, the Deputy Commissioner was not right in granting in favour of respondent-1 the land in Sy. No. 315/1 which is reserved for gomal and which is found insufficient has to be accepted. Therefore, this one ground is enough to allow the Writ Petition. No. 315/1 which is reserved for gomal and which is found insufficient has to be accepted. Therefore, this one ground is enough to allow the Writ Petition. ( 11 ) BEFORE concluding, it is necessary to refer to another aspect of thematter, Dealing with the reasons assigned for condoning the delay of a few days in filing the appeal, the Tribunal has observed that the impugned order, Annexure-E, came to be passed on 5-2-1982 ; that it came to the knowledge of the petitioner on 19-4-1982 ; that he immediately filed an application on the same day for a certified copy of the order ; that certified copy was received by him on 20-4-1982 ; and that the appeal came to be filed on 5-5-1982. It has further observed that there is no sufficient ground to condone the delay. ( 12 ) A period of 90 days is providedfor filing an appeal before the Tribunal from the order of the Deputy Commissioner, under Section 49 of the Karnataka land Revenue Act. The petitioner came to know that on 19-4-82 the Deputy Commissioner passed an order on 5-2-1982 for which he was not a party and then without any waste of time he filed an application for a certified copy which was given to him on 20-4-1982. He was able to go to Bangalore on 29-4-1982 and present the appeal through his Counsel on 5-5-1982. It cannot be said that there is inordinate delay or laches on the part of the petitioner in filing the appeal. Unfortunately the Tribunal failed to take a pragmatic view and unanalytically approached in considering the cause shown in explaining the delay. This again is erroneous. In these circumstances I have no option but to allow the writ petition and quash both the impugned orders. ( 13 ) IN the result, the Writ Petition isa/lowed. The impugned orders Annexures 'e' and 'h' are quashed. However, it is open to the authorities to consider the application/s of the 1st respondent afresh for grant of land in accordance with law, if they are so advised. Under the circumstances, there will be no order as to costs. Writ petition allowed. --- *** --- .