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2001 DIGILAW 347 (KAR)

M. Ramachandra Prabhu v. State of Karnataka

2001-04-11

B.PADMARAJ

body2001
ORDER B. Padmaraj, J.—Heard the learned Counsel on either side and carefully perused the case papers including the impugned order made by the second Respondent-Assistant Commissioner at Annexure-'L'. 2. By the impugned order made by the second Respondent-Assistant Commissioner at Annexure-'L', he has confirmed the valuation made by the third Respondent-Tahsildar at Annexure-'G'. The relevant portion of the impugned order made by the second Respondent-Assistant Commissioner at Annexure-'L' reads thus: KANNADA MATTER - 3. Learned Counsel for the Petitioner has contended before me that the orders of the Respondent Nos. 2 and 3 suffers from material irregularity and exercise of jurisdiction in fixing valuation and without proper enquiry under the Karnataka Land Reforms Act and Rules. He further contended that the impugned order made by the second Respondent is also without reason and made mechanically and hence it is invalid in law. While elaborating this submission, he contended that the second Respondent - Assistant Commissioner after the matter was remitted back by this Court to consider the contention of the parties inspite of the Petitioner having submitted that the valuation is too high, no proper enquiry has been made but mechanically following the earlier enquiry, totally ignoring that the house is tiled house, hatti- kottige on an agricultural land which is situated in Sy. No. 80/4 only on 0.32 acres now fixing the compensation is contrary to Land Reforms Act is nothing but an action done by the Respondents under the pretence of exercising of one power but usurping another power which is unsustainable and void. He also contended that there is material irregularity on the face of it and the impugned order is bad in law, totally contrary to law and it is not valid. According to the learned Counsel for the Petitioner, the impugned orders are unreasonable and the Revenue Authorities ought to have seen that there is no basis and also absolutely no ground to fix the valuation at Rs. 47,965/- to the residential house etc. in Sy. No. 80/4A which measures only 0.27 acres. He contended that the Respondents have failed to apply their mind to the requirement of the provisions contained in Section 48B of the Karnataka Land Reforms Act and the impugned orders are made without following the procedure as prescribed under law and without enquiry and hence, the conclusions arrived at by both the authorities below are manifestly perverse and illegal. He contended that the Respondents have failed to apply their mind to the requirement of the provisions contained in Section 48B of the Karnataka Land Reforms Act and the impugned orders are made without following the procedure as prescribed under law and without enquiry and hence, the conclusions arrived at by both the authorities below are manifestly perverse and illegal. He also contended that the proceedings of Respondents 2 and 3 are liable to be set aside as they have proceeded on irrelevant material and that the Respondent Nos. 2 and 3 without application of mind and without any basis whatsoever has come to conclusion that there is contravention of the provisions of the Karnataka Land Reforms Act which is totally illegal, incorrect and bad in law. He further contended that no opportunity was given to the Petitioner while fixing the premium by the Tahsildar under Section 48B of the Karnataka Land Reforms Act. He also contended that though the Assistant Commissioner had at one stage stated that the order made by the Tahsildar determining the amount is an exparte order, but subsequently, the very same authority stated it to be a good order which on the face of it is highly arbitrary and illegal. According to the learned Counsel for the Petitioner, the procedure as prescribed under Sections 36 and 37 of the Karnataka Land Revenue Act have not been followed in fixing the amount by the Tahsildar under Section 48B. He contended that the Assistant Commissioner did not assign any reason as to why he has agreed with the valuation made by the Tahsildar and that further, the said valuation made by the Tahsildar having been set aside by the Assistant Commissioner in his earlier order, it was not at all available and there was no other valuation made by any other authority in the manner as prescribed under Section 48B of the KLR Act. He also contended that there has been no proper compliance of Section 47(3) of the Karnataka Land Reforms Act after the earlier valuation made by the Tahsildar has been set aside. But strangely, he contended that the Tahsildar proceeded to say that the earlier valuation is correct and proper and the same being accepted by the Assistant Commissioner in its impugned order at Annexure-'L', is not in accordance with law. But strangely, he contended that the Tahsildar proceeded to say that the earlier valuation is correct and proper and the same being accepted by the Assistant Commissioner in its impugned order at Annexure-'L', is not in accordance with law. He contended that the acceptance of valuation made by the Tahsildar by the Assistant Commissioner is contrary to law and highly arbitrary. He further contended that the dispute no doubt is only with regard to the valuation of the property and not with regard to any other aspect, but then, the determination has to be made in accordance with Section 48B of the Karnataka Land Reforms Act and that exercise being not done by the competent revenue authority, the impugned orders made both by the Tahsildar as well as the Assistant Commissioner cannot be sustained in law. He contended that the earlier valuation which has been cancelled by the Assistant Commissioner in the appeal, could not have been revived by the Assistant Commissioner in its impugned order at Annexure-'L' while confirming the order of the Tahsildar at Annexure-'G'. He contended that the building in question being of the year 1901 and the subsequent repairs being effected by the Petitioner have not at all been taken into consideration by the competent authorities while determining the premium under Section 48B of the KLR Act. He also contended that even the directions issued by this Court while remitting back to the Assistant Commissioner have not been followed by the Assistant Commissioner and hence, the impugned order made by the Assistant Commissioner at Annexure-'L' cannot be sustained in law. He has relied upon a decision of this Court in the case of Puttavva Kom Mallappa Vs. State of Karnataka, ILR (1987) KAR 737 , wherein it is held as under: Section 48B of the Act provides that the Tahsildar has to determine, interalia, the compensation payable under Section 47 of the Act. Section 112 of the Act prescribes the duties of the Tahsildar and the Tribunal. According to Section 112(A)(1) of the Act, it is the duty of the Tahsildar to determine the amount payable under Section 47 of the Act and also to prepare a statement of distribution of the amount under Section 48B of the Act in cases where there are more than one claimant for compensation. According to Section 112(A)(1) of the Act, it is the duty of the Tahsildar to determine the amount payable under Section 47 of the Act and also to prepare a statement of distribution of the amount under Section 48B of the Act in cases where there are more than one claimant for compensation. Rule 20 of the Karnataka Land Reforms Rules provides as to the particulars which should be incorporated in the statement of valuation prepared under Section 48B of the Act. Rule 39 of the Rules prescribes the procedure to be followed by the Revenue Officers for enquiries. In view of the above rule, a Tahsildar holding an enquiry under Section 48B read with Section 112(A)(1) of the Act, has to follow the procedure prescribed under Section 33 of the Land Revenue Act. The procedure to be followed in a formal enquiry is prescribed under Section 36 of the Land Revenue Act. In view of these provisions and also having regard to the principles of natural justice, it is obligatory for the Tahsildar to determine the compensation payable to the erstwhile land-owner under Section 47 read with Section 48B of the Act in a regular enquiry at which evidence is recorded and this has to be done after due notice to the erstwhile land-owner as well as to the person in whose favour occupancy right has been granted. 4. Therefore, a Tahsildar, holding an enquiry for ascertaining the value of a well or other structures of permanent nature constructed by the landlord on a land in respect of which occupancy right is granted in favour of an individual, under Sub-section (3) of Section 47 read with 48 of the Karnataka Land Reforms Act, 1961, is under a duty to hold the enquiry as prescribed in Section 36 of the Karnataka Land Revenue Act, 1964 after due notice to the parties concerned and recording evidence regarding the value of the well or other structures. 5. As against this, the learned Counsel for the Respondent No. 4 has contended that the Petitioner could not be considered to be a person aggrieved by the order inasmuch as in the appeal filed before the Assistant Commissioner, he had specifically contended that being a small holder, he is not liable to pay any compensation. 5. As against this, the learned Counsel for the Respondent No. 4 has contended that the Petitioner could not be considered to be a person aggrieved by the order inasmuch as in the appeal filed before the Assistant Commissioner, he had specifically contended that being a small holder, he is not liable to pay any compensation. He further contended that there being an alternative efficacious remedy of revision provided under the Karnataka Land Reforms Act, the remedy of Writ is not available to the Petitioner. He also contended that the impugned order made by the Assistant Commissioner is quite in conformity with the directions issued by this Court and hence, it cannot be faulted. He contended that the valuation made by the Tahsildar was based upon the valuation made by a Technical person and hence, it cannot be said to be arbitrary or illegal. He contended that in so far as the determination of compensation is concerned, the Tahsildar who is the competent authority has determined the premium on the basis of the materials available before him including the valuation made by the Technical Officer and such determination made by the Tahsildar needs no interference. He contended that it is no doubt true that on the earlier occasion, the Assistant Commissioner had set aside the order of the Tahsildar on the ground that it was an exparte order, but after remand, the Tahsildar considered all the materials and passed the impugned order at Annexure-'G'. He contended that the valuation made by the Technical person had been taken as a basis to determine the value under Section 48B of the KLR Act as the said material was not seriously disputed by any of the parties. He contended that after the matter was remanded what was contended by the Petitioner before the Tahsildar was that the premium fixed was excessive and not that it has been made without notice to him and hence, it is now not open to the Petitioner to contend before this Court that the valuation has been made without holding a proper enquiry. He also contended that this Court remitted the matter to the Assistant Commissioner with certain directions and accordingly, the Assistant Commissioner considered the order of the Tahsildar at Annexure-'G' in the light of the observations made by this Court and found it to be just and proper and hence he did not interfere with the order of the Tahsildar. He therefore contended that the order of the Assistant Commissioner at Annexure-'L' is perfectly legal and valid and it needs no interference at the hands of this Court in its Writ Jurisdiction. In support of his submissions, learned Counsel for the Respondent No. 4 has relied upon a decision in the case of Gururaj Gurunath Govind Rao Mutalik Desai Vs. The State of Karnataka, in AIR 1995 Kara 267, wherein it is held as under: In Section 118 only matters relating to appeals are dealt with and no powers of provisions relating to revision are referred to or considered. Therefore, finality in Section 118(2b) would only make it clear that no further appeal would lie for in the event it had not been rendered final, an appeal could have been preferred against an order made by the Assistant Commissioner also to the Tribunal as provided in Section 118(2) of the Act. If it were to be construed that the Assistant Commissioner exercises powers even in relation to matters other than Section 83 of the Act, an appeal would lie to the Tribunal, in the circumstances, on the scheme of the provisions of the Act, Section 118A would cover an order made by the Assistant Commissioner under Section 118(2b). Merely because an expression "final" is used, in Section 118(2b) it cannot be said that a revision would not lie against such an order. ILR 1986 Kant 1059 Overruled. Commissioner of Sales Tax, U.P., Lucknow Vs. Agra Beverages Corporation (P) Ltd., Agra, AIR 1989 SC 922 , Distinguished (Paras 15, 16 and 17) Section 57 of Karnataka Land Revenue Act consists of two parts: one part refers to the meaning to be attributed to the expression "final" while the other part refers to the powers of the Tribunal. In understanding the meaning of the expression "final", the order part of the provision need not be looked at. In understanding the meaning of the expression "final", the order part of the provision need not be looked at. Hence, on the basis of Section 57 of the Karnataka Land Revenue Act, it could be construed that expression "final" in Section 118(2b) should be understood as only pertaining to appeal. 6. Learned Government pleader for the Respondents 1 to 3 has contended that the Tahsildar after consideration of the valuation made by the Technical person and the other materials placed on record has fixed the premium which is just and proper and it needs no interference and accordingly, the Assistant Commissioner in his impugned order at Annexure-'L' has confirmed the same which also needs no interference by this Court. He also contended that the Writ Petition filed by the Petitioner without exhausting the alternative efficacious remedy of revision provided under the Statute is not maintainable in law. 7. By way of reply, learned Counsel for the Petitioner while placing reliance upon the two decisions, one of the Hon'ble Supreme Court in the case of U.P. State v. Mohd. Nooh in AIR 1958 SC 86 and another of our own High Court, in the case of T.R. Ramaiah and Others Vs. Deputy Commissioner, Chitradurga District and Another, AIR 1975 Kant 77 has contended when the directions issued by this Court while remitting the matter back to the Assistant Commissioner have not been followed by the Assistant Commissioner, this Court will certainly interfere and alternate remedy of revision is not a bar to entertain the Writ Petition. 8. In the light of the submissions made on both sides, the question that would arise for consideration in this Writ Petition is whether the impugned order made by the second Respondent-Assistant Commissioner at Annexure-'L' confirming the order of the third Respondent-Tahsildar at Annexure-'G' needs any interference at the hands of this Court in its Writ jurisdiction. 9. In the instant case, it appears that the valuation was made by a Technical person and based on that, the order of the Tahsildar came to be passed at Annexure-'G'. It is no doubt true that at one stage, the order of the Tahsildar on being challenged before the Assistant Commissioner came to be set aside by the Assistant Commissioner vide Annexure-'F' on the ground of being an exparte order. But then, the materials for fixing the valuation are concerned, viz. It is no doubt true that at one stage, the order of the Tahsildar on being challenged before the Assistant Commissioner came to be set aside by the Assistant Commissioner vide Annexure-'F' on the ground of being an exparte order. But then, the materials for fixing the valuation are concerned, viz. the report of the Technical person was still available on record and it cannot be said to have been completely wiped off the record by mere setting aside the order of the Tahsildar. It is no doubt true under Section 48B of the Karnataka Land Reforms Act, it is for the Tahsildar to determine the amount payable under Section 47 after holding the necessary enquiry as contemplated under law. But then, in order to enable the Tahsildar to arrive at a just determination, the parties must make available the relevant materials before him. In the instant case, as I have already noticed, one of the material that was already available before the Tahsildar for determining the value was the valuation made by the Technical person. Though the order of the Tahsildar has been set aside on the ground that it was an exparte order, the materials placed before him were still available and it was for the party who wants to rebut that material was required to adduce evidence. But in this case, it appears that after the matter was remanded by the Assistant Commissioner to the Tahsildar, no such fresh material was made available before the Tahsildar and under the circumstances, therefore, the Tahsildar on the basis of the materials available before him, determined the value and passed the impugned order as per Annexure-'G'. It would be of some relevance to note here itself that before the Tahsildar, as could be seen from the impugned order of the Tahsildar at Annexure-'G', the only contention that was raised by the Petitioner was that the premium fixed was excessive. With regard to this contention, the Tahsildar found that the Petitioner did not make available any material to show that the premium fixed is excessive. Under the circumstances, there being no material before the Tahsildar to hold that the valuation made by the Technical person was on the higher side, it proceeded to pass the order as per Annexure-'G'. With regard to this contention, the Tahsildar found that the Petitioner did not make available any material to show that the premium fixed is excessive. Under the circumstances, there being no material before the Tahsildar to hold that the valuation made by the Technical person was on the higher side, it proceeded to pass the order as per Annexure-'G'. It is to be seen therefore, that the Tahsildar had once again based his findings on the valuation made by the expert and the other materials available on record before him. The said order of the Tahsildar was confirmed by the Assistant Commissioner. But this Court in Writ Petition No. 26811 of 1998 set aside the order of the Assistant Commissioner and remitted it back to the same authority for fresh consideration. The operative portion of the order made by this Court in Writ Petition 26811 of 1998 reads as under: 8. Accordingly, the petition is allowed in part. The order Annexure-J passed by the second Respondent is quashed. The case stands remitted to the Assistant Commissioner for disposing of the appeal filed by the Petitioner afresh after hearing the parties and after considering all the contentions of the parties including the written arguments filed on behalf of the Petitioner. The Assistant Commissioner is directed to dispose of the appeal within two months from the date of receipt of a copy of this order. 10. It is to be seen therefore from the order made by this Court in the earlier Writ Petition, the Assistant Commissioner was required to dispose of the matter afresh after hearing the parties and after considering all the contentions of the parties including the written arguments filed on behalf of the Petitioner. Accordingly, after the matter was remitted back to the Assistant Commissioner, the appeal has been considered afresh in the light of the observations made by this Court in Writ Petition No. 26811 of 1998 and the impugned order came to be passed as per Annexure-'L'. I have carefully perused the impugned order made by the Assistant Commissioner at Annexure-'L'. It cannot be said that the Assistant Commissioner did not pass the fresh order in the light of the observations made by this Court. I have carefully perused the impugned order made by the Assistant Commissioner at Annexure-'L'. It cannot be said that the Assistant Commissioner did not pass the fresh order in the light of the observations made by this Court. The Assistant Commissioner on consideration of the entire materials placed on record and after hearing the arguments on both sides, found that the valuation made by the Tahsildar is just and proper and it needs no interference. It cannot, therefore, be said that the order of the Assistant Commissioner is not in accordance with the directions issued by this Court in the earlier Writ Petition. Both the authorities below have taken into consideration the materials placed before them by the parties and after careful consideration of the same, determined the premium at Rs. 47,965/- with regard to the structure etc. that was found on the land. It was sought to be contended by the learned Counsel for the Petitioner that the Tahsildar while determining the value under Section 48B did not take into consideration the fact that the structure was in existence from 1901 and the subsequent repair works were done by the Petitioner to maintain the property. It is no doubt true that he ought to have taken into consideration the said fact provided the Petitioner had placed such material before the Tahsildar or before the Assistant Commissioner. But as I could see from the impugned order made by the Tahsildar at Annexure-'G' that no such materials were placed by the Petitioner and on the other hand, the only contention that was raised by the Petitioner was that the premium fixed was excessive. A perusal of the impugned order made by the Assistant Commissioner at Annexure-'L' would indicate that both the parties had been given sufficient opportunity to put forth their case and ultimately on the basis of the materials available before him, the Assistant Commissioner proceeded to confirm the valuation made by the Tahsildar. In a proceeding under Article 226, this Court cannot sit in appeal over the findings recorded by the competent revenue authorities to reappreciate the evidence or to correct error of fact on the ground that the evidence on which it was passed was not satisfactory or sufficient, particularly when the finding of the appellate authority under the Statute is final and inconclusive. In the instant case, as I have already stated it cannot be said hat there was no evidence at all for the Revenue authorities to fix the valuation. On the other hand, based on the valuation made by the Technical person, the Tahsildar as well as the Assistant Commissioner proceeded to fix the valuation which cannot be said to be either illegal or improper especially when the Petitioner did not chose to place any materials before the said authorities to show that the valuation made by the Technical person is either incorrect or improper. After the matter was remitted back to the Assistant Commissioner by this Court, the second Respondent-Assistant Commissioner having passed the impugned order at Annexure-'L', after hearing both the parties, the Petitioner cannot have any grouse now, that he had no opportunity to have his say in the matter. Then, the only question that remains for consideration is with regard to the valuation made by the Tahsildar and confirmed by the Assistant Commissioner. Both the authorities below on the basis of the materials made available before them after affording sufficient opportunities to both the parties have now fixed the premium which at any rate, cannot be said to be either illegal or perverse. It was found on facts by the Revenue Authorities that there was a tiled roof house, a cattle shed, a well etc. in the land. It appears that the valuation of all these structures had been done by a Technically qualified person. The said valuation made by the technical person though alleged to be excessive, but no material was placed on record to show as to how it was excessive. In the absence of any such material placed on record, the Assistant Commissioner having found the value fixed by the competent valuator to be just and proper, over ruled the contentions raised by the Petitioner and confirmed the valuation made by the Tahsildar on the basis of the valuation made by the competent valuator. A careful perusal of the materials placed on record would show what was sought to be contended before the Revenue authorities by the Petitioner was that the premium fixed was excessive and not that there was no sufficient or adequate opportunity for the Petitioner to have his say in the matter of fixing the premium. A careful perusal of the materials placed on record would show what was sought to be contended before the Revenue authorities by the Petitioner was that the premium fixed was excessive and not that there was no sufficient or adequate opportunity for the Petitioner to have his say in the matter of fixing the premium. The Petitioner though contended that the premium fixed is excessive, did not place any material on record to show what was the reasonable premium and how it could be said to be excessive. In the absence of any such material placed by the Petitioner and in the face of the valuation by the competent valuator, the Assistant Commissioner was justified in accepting the said valuation and confirming the order of the Tahsildar. It is pertinent to note that the valuation made by the Tahsildar is only in a sum of Rs. 47,965/- for the structures and the well which on the facts and circumstances of the case appears to be reasonable and by no stretch of imagination, it could be said to be excessive. Therefore, substantial justice has been done between the parties and hence, it requires no interference by this Court by its Writ jurisdiction. In my view, when substantial justice has been done and the impugned order made by the Assistant Commissioner at Annexure-'L' does not suffer from any such infirmity so as to call for interference by this Court in its Writ jurisdiction, the Writ petition filed by the Petitioner is liable to be dismissed and it is accordingly dismissed. In the circumstances of the case, there is no order as to costs.