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2001 DIGILAW 905 (KAR)

Jayamma v. State of Karnataka

2001-12-12

D.V.SHYLENDRA KUMAR, M.F.SALDANHA

body2001
JUDGMENT M.F. Saldanha, J.—We have heard the appellants' learned Counsel virtually on merits and we have directed the learned Government Advocate to take notice for Respondent-1 to Respondent-3. 2. These appeals are directed against an order dated 4.10.2001 passed by the learned Single Judge whereby he has dismissed the writ petitions in question. The controversy relates to an application for regularisation in respect of unauthorised occupation of certain gomal lands. It is unnecessary for us to go into the facts and figures because the grievance of the Petitioners before the learned Single Judge was that they had applied for regularisation of certain area of land and that the regularisation committee on 3.7.1999 had regularised only an area of 1 Acre 10 Guntas which was less than the area that had been applied for. It was against this order that an appeal was preferred to the Assistant Commissioner who in turn, by his order dated 7.8.2000 not only dismissed the appeal but set aside the whole of the grant. We clarify here that the grievance projected by the appellants before the Assistant Commissioner was that the grant to the extent that had been applied for had not been conceded to whereas the Assistant Commissioner while dismissing the appeal set aside the whole of the grant or in other words set aside the grant even in respect of the lesser area that had been allotted. The appellants before us preferred two writ petitions wherein several grounds were agitated, one of them was to the effect that a perusal of the order sheet will show that the appeal had been adjourned several times and that there is nothing in the order sheet to support the view that on the date when the order was passed or prior to that, the appellate authority had effectively heard the parties and applied his mind to the facts of the case. We refrain from effectively going into these technicalities because the present appeal is effectively preferred against the order passed by the learned Single Judge who has based his order on some far more serious material. In the appellate order, the Assistant Commissioner has recorded the finding that the appellants are disqualified from being allotted lands or in other words from applying for regularisation since the records indicate that they possess sufficient lands. In the appellate order, the Assistant Commissioner has recorded the finding that the appellants are disqualified from being allotted lands or in other words from applying for regularisation since the records indicate that they possess sufficient lands. The learned Single Judge has not referred to these aspects of the case at the time of the hearing of the petitions. Mr. Patil, learned Counsel who represents the appellants advanced a two fold submission, the first being that certain material has been produced before us in respect of the plea that the records in respect of the lands which allegedly were held by the appellants or their family are not available but more importantly that if this is to be the material on the basis of which the appellants are to be disqualified that this should have been put to them or this material should have been made available to them so that they could have contested the position. The plea taken up was that this has been done virtually behind the back of the appellants and that consequently, the finding recorded under this head is liable to be set aside. It does appear to us from the submissions made that it is true that there is a possibility that the appellants may not have been specifically confronted with this material but we are guarded in recording this finding because there is nothing conclusive. However, purely out of a sense of abundant caution we have decided to totally ignore this particular head of material on the basis of which the appellants have been disqualified. 3. The main ground on which the learned Single Judge has dismissed the writ petitions proceeds on the footing that the appellate authority has recorded a conclusive finding to the effect that the appellants had received through six demand drafts for a sum of Rs. 1,50,000/- each of which the dates and numbers have been set out, a sum totalling Rs. 9 lakhs in anticipation of the sale of the lands of which they were asking for regularisation. The authority has held that this conduct on their part and these transactions have totally and completely disqualified them from being eligible for regularisation. 1,50,000/- each of which the dates and numbers have been set out, a sum totalling Rs. 9 lakhs in anticipation of the sale of the lands of which they were asking for regularisation. The authority has held that this conduct on their part and these transactions have totally and completely disqualified them from being eligible for regularisation. The learned Single Judge has held that having regard to the conduct of the Petitioners before him and the transactions which clearly indicates that the lands were attempted to be sold even before they were regularised in favour of the appellants that they were totally and completely disqualified for grant of any reliefs. Mr. Patil, learned Counsel who represents the appellants has vehemently submitted that assuming without admitting that some agreement of this type may have taken place as alleged by the appellate authority that then at the very highest that the appellants would be disqualified from continuing with the grant or in other words that the grant could be cancelled after confronting the appellants with this material. His further submission is that the appellate authority, even assuming he did not uphold the submission canvassed before us, was limited in the appeal to decide as to whether the balance portion of the land for which the appellants had applied and which was not allotted to them should be allotted or not and that the appellate authority had no jurisdiction whatsoever to question the grant of the lesser area which was not the subject matter of the appeal. We do not accept this submission for the simple reason that the appellate authority was concerned with the whole of the issue that was before him viz., question of regularisation. If the appellate authority came to the conclusion that the appellants were disqualified from asking for regularisation or that they were not entitled to regularisation he was well within his jurisdiction to record a finding to that effect and to set aside the order. 4. We do consider that this is a case of some seriousness because even though various very guarded and involved statements have been made in the petitions, there is no averment anywhere to the effect that the transactions referred to by the appellate authority which effectively constitutes advance trading in the land in respect of which regularisation was sought is incorrect. We do consider that this is a case of some seriousness because even though various very guarded and involved statements have been made in the petitions, there is no averment anywhere to the effect that the transactions referred to by the appellate authority which effectively constitutes advance trading in the land in respect of which regularisation was sought is incorrect. We have very carefully perused the record and we do not find a single word anywhere which disputes this particular transaction. The material in question is substantial in so far as the date has been mentioned, the bank has been mentioned, the amounts have been mentioned, party in whose favour the D Ds have been drawn has also been recorded and if any of these was false we would have expected that this would have been made the first ground in the petition that has been filed. We have no hesitation in holding that the Appellate Authority was fully justified in relying on this material which was brought to his notice and relying on this material. We need to observe in passing that this regularisation of unauthorised occupation of Government lands is something that the law hardly approves of. This is a concession that a Government has been making in respect of a class of poor persons in respect of small areas of land, and in respect of the situations wherein Government is of the view that by evicting those persons greater injustice would result for the simple reason that the areas in question are very small, the persons are extremely poor and if they are residing on the lands or if they are cultivating these lands a concession is made in their favour. The whole purpose behind the regularisation is in order to help and assist the genuine, deserving bonafide persons. If it comes to the notice of the authorities that the persons who have asked for regularisation have accepted huge amounts of money for these very lands even before regularisation has come into being, then that is a sufficient and valid ground on which the grant even assuming it has been made is liable to be set aside. We do not see the wisdom behind the argument that a separate proceeding is necessary for this purpose. 5. We do not see the wisdom behind the argument that a separate proceeding is necessary for this purpose. 5. In our considered view having regard to the facts of the present case, the Appellate Authority was fully justified in having passed the order which he has done. We are effectively concerned with the subsequent stage of the litigation, viz., the order passed by the learned Single Judge and in our considered view, for the reasons already indicated by us the appellants before us had a full and complete opportunity of pointing out whatever they wanted with regard to the validity or otherwise of the money transaction. There is absolutely nothing that has been done in this regard either before the learned Single Judge or at the appeal stage and consequently, we hold that even as far this material is concerned that the appellants had been granted adequate opportunity of dealing with it. 6. In the light of our findings, we see no ground to interfere with the order passed by the learned Single Judge. The appeals in question fail and stand dismissed.