JUDGMENT Gopala Gowda, J. The correctness of the order dated 17/8/2004 passed by the learned single Judge rejecting the writ petition, is questioned in this appeal by the State of Karnataka and the Divisional Commissioner. 2. The brief facts of the case are, by order dated 19/8/1961 the Government leased an extent of 35 acres of land in Sy.Nos.39 and 40 of Addada village in Koppa Taluk in favour of deceased K.S.Ramadas the lessee for coffee cultivation with certain terms and conditions. On 28/4/1975 Saguvali Chit was issued to put him in possession of the land in respect of which leasehold rights was granted in favour of deceased K. S. Ramdas. Since coffee cultivation was not made within the stipulated period of five years, on 24/11/1997 as per the terms and condition of the grant order the lease of land was terminated and it was ordered to resume the land and to reserve the same for public purpose. The legal representatives of the grantee had challenged the termination order before the Karnataka Appellate Tribunal in Appeal No.5/98. The Tribunal allowed the appeal and quashed the order terminating lease passed by the Divisional Commissioner. The appellants herein challenged the said order in W.P.No.38212/2000. The learned single Judge rejected the writ petition and the same is questioned in this appeal. 3. Learned Addl. Government Advocate Mr. A.G. Shivanna, has rightly submitted that even though the land was leased in the year 1961, since Saguvali Chit was issued in the year 1975, the grantee should have raised coffee cultivation within five years, i.e, before 1980, Since coffee was not cultivated within the stipulated period, rightly order was passed cancelling the lease of the land. He further submitted that the Tribunal committed an error in setting aside the termination order and even the learned single Judge committed the same error. Another ground urged is that as per Rule 43-H of the Mysore Land Revenue (Amendment) Rules, 1960 the lease should have been confirmed within five years. Since the grantee did not obtain license from the Indian Coffee Board in compliance with the condition of the grant order, there is no confirmation of lease of land and therefore the cancellation is legal and valid. Learned AGA relied upon the decision of the Apex Court Guntaiah & Ors. vs Hamamma & Ors, (ILR 2005 Kar (SC) 4265). 4. Since the grantee did not obtain license from the Indian Coffee Board in compliance with the condition of the grant order, there is no confirmation of lease of land and therefore the cancellation is legal and valid. Learned AGA relied upon the decision of the Apex Court Guntaiah & Ors. vs Hamamma & Ors, (ILR 2005 Kar (SC) 4265). 4. Learned counsel Mr.V. Srinivasan Raghavan, for respondents 2 and 3 has sought to justify the orders of the Tribunal and the learned single Judge placing reliance upon the decision of the Apex Court Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim (1997) 6 SCC 71 ) and contended that power is not exercised within reasonable period for terminating the lease. The counsel also relied upon the Full Bench decision of this Court in Chikka Kullegowda Vs. State of Karnataka (1998 (1) Kar. L.J. 142 ) and contended that the conditions stipulated under Rule 43-G of the Rules are inapplicable to the case on hand. The learned counsel also relied upon the decision of the Apex Court Commissioner of Wealth Tax Vs. Suresh Seth (1981 ITR Vol. 129 p. 328) wherein “continuing wrong” is explained to rebut the submission of the learned AGA on behalf of the appellants that exercise of power by second appellant is legal and valid as the contravention of the condition stipulated to cultivate the granted land by planting coffee plantations is continuous one and therefore there is no delay or latches on the part of the second appellant in exercising his power and cancelling the grant order of lease of the land. Lastly, it is contended that 2nd appellant Divisional Commissioner has no power to terminate the grant order of lease of land as the lease of land was granted by the Deputy Commissioner. Therefore, he has conten ded that there is no merit in the appeal and requested to dismiss the same as the order of learned Single Judge in affirming the order of KAT is legal and valid in law. 5. The facts as such are not in dispute. The grant of lease of land in favour of deceased Ramadas was subject to certain terms and conditions. To appreciate the rival legal contentions and to consider the merits of the case, the relevant conditions imposed in the order dated 19/8/1961, produced as Annexure-R 2, granting lease are extracted hereunder: “1. 5. The facts as such are not in dispute. The grant of lease of land in favour of deceased Ramadas was subject to certain terms and conditions. To appreciate the rival legal contentions and to consider the merits of the case, the relevant conditions imposed in the order dated 19/8/1961, produced as Annexure-R 2, granting lease are extracted hereunder: “1. The area granted should be brought under cultivation within five years from the date on which the grantee taken possession of the lands. 2. The land is liable for resumption without any compensation to the grantee by terminating the grant it is appropriated for a purpose other than that for which the land is granted, or if any of the conditions of the grant are not fulfilled. “4. The grantee should obtain a license from the Indian Coffee Board for planting coffee on the area so leased within a period of 5 years from the date of such lease. 11. The grant of lands in this case is for coffee cultivation is only on lease basis in the first instance subject to the confirmation after the grantee obtains a license from the Indian Coffee Board for planting Coffee on the area so leased for a period of five years from the date of such lease.” As per the first condition, the granted land should have been brought under coffee cultivation within five years from the date of taking possession of the land as per Saguvali Chit Certificate. Though the lease was of the year 1961, the Saguvali Chit as per Annexure R-4 was issued on 28-4-1975. As per Clause 7 of the same, possession of the land was given to the original grantee deceased Ramadas. Therefore, from that date the coffee cultivation should have been made by him within five years from the date of taking possession of the land. But, no such cultivation is done is the finding of fact recorded by the second appellant. Thus, there is violation of first condition of lease by the original grantee and the appellants. 6. As per condition No.4 of the grant order, the grantee ought to have obtained license from the Indian Coffee Board for planting coffee plantation is the statutory legal requirement. The said license is not obtained is the undisputed fact, resulting in breach of the said condition. 7. 6. As per condition No.4 of the grant order, the grantee ought to have obtained license from the Indian Coffee Board for planting coffee plantation is the statutory legal requirement. The said license is not obtained is the undisputed fact, resulting in breach of the said condition. 7. As per condition No.2 of the grant order, if any of the conditions are not fulfilled by the grantee, the land is liable for resumption by terminating the lease of land. Invoking this condition, the lease has been terminated by the second appellant. Therefore, no fault can be found with the order of termination of lease passed by second respondent. 8. As per condition No.11, the lease of the land was subject to confirmation after obtaining license from the Coffee Board. Since no license was obtained from the Coffee Board, the lease of land was not confirmed is also undisputed fact. The resultant position is, absolute ownership of land was not conferred upon either the lessee or the respondents. Therefore, termination of lease and resumption of land is legal and valid. 9. The KAT placing reliance upon the decision of this Court reported in ILR 1988 Kar 400 has set -aside the termination of lease of land on the ground that there is inordinate delay in passing the order. The learned single Judge concurred with the same. In our view, the decisions relied upon by the learned counsel for respondents 2 and 3; the Tribunal and the learned single Judge are not applicable to fact situation of this case. 10. The contention that the Divisional Commissioner has no power to cancel the lease, is wholly untenable and cannot be accepted in view of the decision of the Apex Court in Guntaiah’s case referred to supra. Apart from the legal position the order of cancellation of lease is legal and valid for the reason that even though the lease was granted by the Deputy Commissioner, Divisional Commissioner being the higher officer than him, the higher officer can always exercise the powers of the subordinate officers. That apart, as long as breach of conditions of lease exists, it makes no difference as to who exercises the power. 11. For the reasons stated above, the order of the Tribunal and that of the learned single Judge cannot be sustained and the same are liable to be quashed and set aside. 12. That apart, as long as breach of conditions of lease exists, it makes no difference as to who exercises the power. 11. For the reasons stated above, the order of the Tribunal and that of the learned single Judge cannot be sustained and the same are liable to be quashed and set aside. 12. Before concluding, we are told that the three sons of the grantee are in possession of the land in question and they are agriculturists. Therefore, as a measure of equity, instead of denying the entire extent of land, we feel that ends of justice will be met if each son of the grantee is earmarked 5-00 acres of land in a stretch and the remaining 20-00 acres of land only can be resumed by the appellants. 13. Accordingly, the writ appeal is partly allowed. The orders of the learned single Judge and that of the Tribunal are set aside only to an extent of 15-00 acres. The appellants are hereby directed to grant 5-00 acres of land to each son of the grantee with contiguity as per the Land Grant Rules. The remaining 20-00 acres can be earmarked and utilised for any other public purpose.