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2007 DIGILAW 566 (KAR)

S. M. KRISHNA v. SECRETARY DEPARTMENT OF REVENUE

2007-09-04

N.K.PATIL

body2007
N. K. PATIL, J. ( 1 ) PETITIONERS, questioning the correctness of the impugned order dated 30th May 2005 in proceedings No. LND/ra/60/2003-04 passed by third respondent and the order dated 17th December 2005 in proceedings No. R. A. No. 74/2005-06 passed by second respondent vide annexures-N and O respectively, have presented the instant writ petition. Further, petitioners have sought for a direction, to remand the matter for reconsideration by fifth respondent strictly in accordance with law within the time limit. ( 2 ) THE grievance of petitioners in the instant writ petition is that, petitioners herein are claiming that, the land in question has been cultivated since the time of their ancestors and thereafter, they have continued to cultivate the land in question un-authorizedly since more than three and half decades. In view of he amendment of the Karnataka land Revenue Rules, it is the case of petitioners that, they have filed the application seeking regularization of their un-authorized cultivation. The said application had come up for consideration before the fifth respondent-Committee for Regularization of Unauthorized Occupation and the fifth respondent, rejected the application filed by petitioners seeking regularization of un-authorised cultivation of land in question on the ground that, the land in question has been granted in favour of sixth respondent. Petitioners herein, being aggrieved by the said rejection of their application, have filed the appeal before the third respondent-Assistant Commissioner, chikkaballapur Division, Chikkaballapur in Proceedings No. RA. (o) 94/ 2003-04 and the said matter had come up for consideration before the third respondent on 8th December 2003. After hearing both parties, and after considering the submission made by petitioners, the said authority has allowed the appeal with reference to the relevant material available on file and held that, petitioners have already filed Form No. 53 seeking regularization of un-authorized cultivation and directed the competent authority to dispose of the same in accordance with law. Be that as it may. ( 3 ) THE third respondent herein - Assistant Commissioner, chikkaballapur on the basis of the report dated 15th April 2005, submitted by the Tahsildar Shidlaghatta and objection filed by sixth respondent, has reviewed his own order without issuing notice to the petitioners and without conducting proper enquiry and proceeded to pass the impugned order dated 30th May 2005 in proceedings No. LND. RA. RA. 60/2003-04 vide Annexure-N, withdrawing the earlier order passed by him and directed the Tahsildar, shidlaghatta Taluk to take appropriate decision as per the order passed by fifth respondent in favour of sixth respondent. Assailing the correctness of the order passed by third respondent vide Annexure-N, petitioners herein have filed the revision petition under Section 136 (3) of the karnataka Land Revenue Act in Proceedings No. RA. 74/2005-06 before the second respondent-Deputy Commissioner, Kolar District, Kolar and the second respondent, in turn, after hearing both sides and after considering the material available on record, specifically opined that, the order passed by third respondent is not in accordance with law. Further, the said authority observed that, in the interest of justice, the reasons assigned by the Assistant Commissioner, for reviewing his own order is justifiable and dismissed the revision filed by petitioners. Being aggrieved by the impugned orders passed by respondents 2 and 3 respectively vide annexures-O and N respectively, petitioners herein felt necessitated to present the instant writ petition, seeking appropriate reliefs, as stated supra. ( 4 ) I have heard learned Counsel appearing for petitioners and learned counsel appearing for respondents. ( 5 ) AFTER careful perusal of the impugned orders passed by respondents 3 and 2 vide Annexures-N and O respectively, it is manifest on the face of the said orders that, both the authorities have committed a grave error of law and illegality in proceedings to pass the impugned orders. It is significant note that, it is not in dispute that, earlier, when the petitioners had filed the appeal before the third respondent, the said authority has allowed the appeal and directed the fifth respondent to consider the alleged application filed by petitioners in Form No. 53 for regularization of un-authorized cultivation. It is significant note that, it is not in dispute that, earlier, when the petitioners had filed the appeal before the third respondent, the said authority has allowed the appeal and directed the fifth respondent to consider the alleged application filed by petitioners in Form No. 53 for regularization of un-authorized cultivation. Thereafter, suo motu, on the basis of the alleged report submitted by fourth respondent dated 12th April 2005 and 15th april 2005 and also the representation dated 4th May 2005 submitted by sixth respondent, the third respondent has reviewed his own order and proceeded to pass the impugned order dated 30th May 2005 vide Annexure-N. The entertainment of the alleged report/communication issued by the tahsildar and the objection filed by sixth respondent and exercising the power as envisaged under the Act after passing the order is beyond the jurisdiction of third respondent and the same is contrary to the relevant provisions of the Karnataka Land Revenue Act and Rules nor the said authority has got any jurisdiction to entertain and pass such orders, reviewing his own order under the relevant provisions of the Karnataka land Revenue Act and Rules. Therefore, I am of the considered view that, the impugned order passed by third respondent is one without jurisdiction and the same cannot be sustained on this ground alone and is therefore liable to be set aside at the threshold itself. ( 6 ) SO far as the order passed by the second respondent- Deputy commissioner, Kolar District, Kolar, entertaining the revision filed by petitioners under sub-section (3) of Section 136 of the Act is concerned, I am of the view that, the second respondent has also committed a grave error resulting in serious miscarriage of justice for the reason that, the said authority being the revisional authority, having power as envisaged under the relevant provisions of the Act and Rules, has proceeded to pass the order without proper application of mind and contrary to the relevant provisions of the Act, that too without having jurisdiction to entertain the revision filed by petitioners under Section 136 (3) of the Act against the order passed by the Assistant Commissioner. Therefore, both the authorities have committed grave error in proceeding to pass the impugned orders, without proper application of mind and contrary to the relevant provisions of the Karnataka Land Revenue Act and Rules. Therefore, both the authorities have committed grave error in proceeding to pass the impugned orders, without proper application of mind and contrary to the relevant provisions of the Karnataka Land Revenue Act and Rules. Therefore, I am of the considered view that, at any stretch of imagination, the impugned order passed by respondents 3 and 2 vide Annexures-N and O cannot be sustained and hence, they are liable to be set aside. ( 7 ) HAVING regard to the facts and circumstances of the case, as stated above, the writ petition filed by petitioners is disposed of as follows: i) The writ petition filed by petitioners is allowed; ii) The impugned order passed by third respondent dated 30th may 2005 bearing No. LND. RA. 60/2003-04 vide Annexure-N and the order dated 17th December 2005 in No. RA. 74/2005-06 vide Annexure-O are hereby set aside and the matter sands remitted back to fifth respondent to reconsider the application alleged to have been filed by petitioners in Form No. 53 and dispose of the same in accordance with law after affording opportunity to petitioners, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this order.