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2008 DIGILAW 547 (KAR)

Gopal Dattu Pawar v. Deputy Commissioner, Belgaum

2008-09-24

N.KUMAR

body2008
Judgment :- Kumar, J. 1. Thelearned Government pleader is directed to take notice. 2. The petitioner has challenged in this writ petition the order passed by the Karnataka Appellate Tribunal in Misc.Petition No.13/06 dismissing the miscellaneous petition filed by the petitioner for recalling the order of rejection of the appeal for non-compliance of the office objection on the ground that it is not maintainable. 3. The petitioner is an ex-service man, who has worked in the Indian Army. On release from service, he has been granted eight acres of "D" class land in Sy.No.804/B of Athani Village in the year 1973 by the Deputy Commissioner. As the petitioner was cultivating in all 17 acres 14 guntas of land including the land granted as aforesaid, he sought for remaining extent of agricultural land in his possession. However, the Deputy Commissioner rejected the said request. Challenging the said order rejecting his request, he preferred an appeal before the Karnataka Appellate Tribunal in Appeal No. 112/05. On the ground that the petitioner-appellant did not rectify the defects pointed out by the office of the Karnataka Appellate Tribunal, the appeal came to be dismissed on 19.05.2005. Aggrieved by the same, he preferred an application under Section 28-A of the Karnataka Appellate Tribunal Regulations, 1979. The said miscellaneous petition came to be rejected by the Karnataka Appellate Tribunal following the judgment of this Court in Kulin DSouza Vs. The Authorized Officer And Others W.P.No.26809/05. Aggrieved by the same, the petitioner is before this Court. 4. I have heard the learned counsel for the parties. 5. Thefacts are not in dispute. In the aforesaid writ petition, this Court has held as under:- "Section 28-A is available only in the event of the petition being dismissed on merits. The impugned order is on account of non-compliance of office objections. Section 28-A is hence inapplicable in such circumstances. In the light of above discussion, the dismissal of appeal on the basis of the office objections by the Tribunal is to be set aside by this Court." Chapter-VI of the Regulation deals with the appearance of the parties and consequences of nonappearance. Regulation 26 deals with non-appearance of the appellant and the tribunal has the option of dismissing the same for default or decide on merits after hearing the respondent. Regulation 26 deals with non-appearance of the appellant and the tribunal has the option of dismissing the same for default or decide on merits after hearing the respondent. Regulation 27 provides for non-appearance of the respondent on the date of hearing and the Tribunal hearing the case on merits after hearing the appellant. In both the cases, it is an experts order on merits. Then, Rule 28-A provides for a remedy in such cases, which reads as under:- "Rule 28-A" – Where case is dismissed for default or on merits under Regulation 26, the appellant or the petitioner may make miscellaneous application to the Tribunal along with an affidavit within 30 days from the date of the order and where it is proved that he was prevented by sufficient cause from appearing when he was called for hearing, the Tribunal shall restore the case on such terms as to costs on otherwise as it deems fit. Provided that in case if the respondent had already put in appearance, an opportunity of being heard shall be afforded to him before restoration." Therefore, Regulation 28-A comes into operation in respect of two contingencies:- "(1) Where the case is dismissed for default; or (2) It is dismissed on merits under Regulation 26." In the aforesaid judgment, what has been stated is Section 28-A is available only in the event of the petition being dismissed on merits. The opening words of the Regulation are not noticed, in as much as that Section 28-A is available when the case is dismissed for default also. Dismissal for default includes dismissal on account of non-compliance of office objections. Therefore, Section 28-A provides for a miscellaneous application being filed. In that view of the matter, the impugned order passed by the Karnataka Appellate Tribunal is erroneous and requires to be quashed. 6. Hence, I pass the following:- ORDER .(1) Thewrit petition is allowed. .(2) Theimpugned order is hereby quashed. .(3) Theentire matter is remanded back to the Karnataka Appellant Tribunal to dispose of the miscellaneous application in terms of Chapter-VI and in the light of this judgment.