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2008 DIGILAW 654 (KAR)

H. A. Siddiqui v. The State of Karnataka

2008-11-03

P.D.DINAKARAN, V.G.SABHAHIT

body2008
Judgment :- P.D. Dinakaran, CJ. The unsuccessful writ petitioner is the appellant before us. 2. Heard both sides. 3. TheTahsildar, Heggadadevanakote - the 5th respondent by endorsement notification dated 29.7.2008 issued under Section 83(5) of the Karnataka Land Revenue Act, 1964 found that the petitioner is carrying on a resort in the revenue land bearing Sy. No.32 of Gandathur Village, Heggadadevanakote Taluk to an extent of 3 acres is being used for a resort viz., non-agricultural purpose unauthorisedly and therefore locked and sealed the cottages therein and the same was challenged by the petitioner-appellant herein in Writ Petition No. 11893 of 2008. 4.1. The case of the petitioner was that the petitioner was in possession of the said 3 acres of land in Sy. No.32 of Gandathur Village, Heggadadevanakote Taluk even though the same admittedly belongs to the Government. As an unauthorised occupant of the said land, the petitioner's wife filed an application on 14.4.1999 for regularising her occupation presumably under Section 94-A of the Karnataka Land Revenue Act read with Rule 108-CC of the Karnataka Land Revenue Rules. The petitioner who was able to get a no objection certificate dated 14.3.1999 from Gram Panchayat also successfully got the electricity service connection and telephone connection in the name of his wife. But after her death the petitioner also filed another application on 16.8.2005 under Section 94-A for regularisation of the above land in his name before the Committee concerned constituted under Section 94-B read with Rule 108-CC. 4.2. It is brought to our notice through relevant records the impugned land was already granted to one Kalegowda s/o Doddakari Gowda of the same village by the Committee constituted under Section 94-A read with Rule 108-D by proceedings dated 7.12.1992. After her death, the petitioner made a representation on 16.8.2005 to bring him as a legal representative of the deceased wife Shahnaz Fatima to the proceedings initiated under Section 94-B read with Rule 108-CC and requested to regularise his occupation with reference to the impugned land. On the strength of the above electricity service connection and telephone connection the petitioner also filed an application for mutation of his name in the revenue records and got the revenue sketch prepared showing the impugned land is in his occupation and was successful in getting the mutation entries in his favour. 4.3. On the strength of the above electricity service connection and telephone connection the petitioner also filed an application for mutation of his name in the revenue records and got the revenue sketch prepared showing the impugned land is in his occupation and was successful in getting the mutation entries in his favour. 4.3. However, the same was cancelled by proceedings dated 15.7.2006 by Executive Officer, Taluk Panchayat, H.D. Kote of course after giving him an opportunity and considering his explanation, in the meeting of the Taluk Panchayat Committee on 26.5.2006. Accordingly, Katha granted in favour of his wife was cancelled by proceedings dated 15.7.2006 which was challenged by the petitioner in Writ Petition No. 16061 of 2006 and his Court by order dated 20.3.2007 quashed the said proceedings dated 15.7.2006 and the matter was remitted to the Taluk Panchayat with a direction to give reasonable opportunity to the petitioner who is the legal representative of the deceased Shahnaz Fatima on the ground that the said order dated 15.7.2007 was passed against the petitioner's wife Shahnaz Fatima, who had already died and without hearing the petitioner. 4.4. Pursuant to the said proceedings the Taluk Panchayat by proceedings dated 18.6.2007 directed the petitioner as well as the Secretary of Gram Panchayat to maintain status quo until a decision is taken by the Committee constituted under Section 94-A read with Rule 108-CC. In the meanwhile, having come to know that the petitioner is using the impugned agricultural land for non-agricultural purpose viz., running a resort, the Tahsildar issued the present impugned endorsement notice dated 21.7.2008. Hence the present writ petition viz., Writ Petition No. 11893 of 2008. 5. On behalf of the petitioner it was contended by the learned Counsel for the petitioner that the petitioner's wife had already obtained licence from the Gram Panchayat for putting up constructions; was paying tax for the same and therefore there is no basis for the respondent-Tahsildar to issue the impugned endorsement notice. The only explanation offered on behalf of the petitioners is that he had put up construction on the agricultural land only for the purpose of residence and therefore the respondent has not jurisdiction to seal the premises. 6. The only explanation offered on behalf of the petitioners is that he had put up construction on the agricultural land only for the purpose of residence and therefore the respondent has not jurisdiction to seal the premises. 6. The learned Single Judge, not convinced with the contentions, observed that this a classic case of collusion between the Revenue Officers and the petitioner wherein 3 acres of valuable land adjoining the river Kabini was encroached by the petitioner and his late wife and they continue to be in possession though their occupation is not regularised till date. The learned Single Judge also observed that neither the electricity service connection and the telephone service connection obtained by the petitioner of course based on the no objection certificate by the Village Panchayat, nor the licence granted by the Village Panchayat for putting up construction would confer any right to claim occupancy right to the petitioner. In view of the observation found in the impugned proceedings, the learned Single Judge is also satisfied that the petitioner had put up beautiful resorts and he is neither a poor farmer nor an illiterate villager but an encroacher of the valuable public property. Therefore, learned Single Judge finding no merit in the writ petition, dismissed the same with a further direction to the Deputy Commissioner of the District to take appropriate action against the petitioner as well as the Revenue officials concerned who have issued the licence and no objection certificate for electricity service connection and licence for constructing the building and also to take appropriate steps to restore the property which rightly belongs to the Government by order dated 16.9.2008. Hence the present appeal. 7. Mr..B.V. Acharya, learned Senior Counsel reiterated the submissions that were made before the learned Single Judge. 8.1. Per contra learned Government Advocate invited our attention to the fact that the impugned land had already been granted to one kalegowda s/o Doddakari Gowda of the same village by proceedings dated 7.12.1992 with whom the petitioner had entered into an agreement for sale violating Rule 108-J (1) and (2) and therefore the Assistant Commissioner had already initiated action against the original grantee for having violated the conditions of the grant by invoking Rule 108-J of the Karnataka Land Revenue Rules in the year 2005. Despite the fact that the impugned land had already been granted to one Kalegowda s/o Doddakari Gowda of the same village, the petitioner's wife still made an application on 14.3.1999 for regularisation of the impugned land in her favour and suppressing the fact that the impugned land was granted to one Kalegowda s/o Doddakari Gowda of the same village, the petitioner and his wife have obtained licence for construction on the land and also no objection certificate for electricity service connection and telephone connection successfully and also got mutation of the records in favour of Shahnaz Fatima, the petitioner's wife which was cancelled by proceedings dated 15.7.2006 by the Tahsildar which of course was set aside by he order of this Court in Writ Petition No. 16061 of 2006. Shahnaz Fatima died earlier to the cancellation and the matter stood remitted and therefore, the Taluk Panchayat Committee passed an order of status quo against the petitioner pending finalisation by the regular Committee constituted under Section 94-A read with Rule 108-CC. 8.2. Mr. Veerappa, learned Government Advocate rebutting the contentions submitted that in view of the fact that the impugned land was already granted to one Kalegowda s/o Doddakari Gowda of the same village and the cancellation proceedings are also pending before the Competent Committee, the application made by the petitioner on 14.3.2007 where the petitioner had impleaded himself as legal representative of Shahnaz Fatima by his letter dated 15.8.2005 is without jurisdiction as the impugned land is no more available for grant and the status of the petitioner is nothing but that of a trespasser and not an unauthorised occupant within the meaning of the Act and Rules for claiming regularisation under Section 94-A of the Act. 8.3. The second limb of the argument of the learned Government Advocate is that the 5th respondent-Tahsildar being the local revenue officer and his subordinate officers viz., Survey Officer are well within the jurisdiction to take appropriate action as and when any agricultural land is used for non-agricultural purpose in the instant case for running a resort on the Bank of the Kabini river. Therefore, according to the learned Government Advocate the impugned action taken by the Tahsildar is well within his jurisdiction and the petitioner's resort is not only required to be sealed but also liable to be summarily evicted as provided under Section 83(5) which reads as hereunder: “85. Therefore, according to the learned Government Advocate the impugned action taken by the Tahsildar is well within his jurisdiction and the petitioner's resort is not only required to be sealed but also liable to be summarily evicted as provided under Section 83(5) which reads as hereunder: “85. (1) .(2) ....... .(3) ....... .(4) ....... .(5) The Tahsildar or a Survey Officer may subject to such a rules as may be prescribed in this behalf, prohibit the use for certain purposes of any land liable to the payment of land revenue and may summarily evict any holder or other person who uses or attempts to use the same for any such prohibited purpose.” 9. We have given our careful consideration to the submission of the learned Counsels for the parties. The issue that arises for our consideration is: .(i) Whether the 5th respondent-Tahsildar has got power and jurisdiction to issue the impugned endorsement notice dated 29.7.2008. .(ii) Whether the application made by the petitioner's wife before the Committee on 14.3.1999 is maintainable in law? (iii) Whether the Assistant Commissioner is right in taking action against the grantee and the petitioner for exercising the power conferred under Rule 108-J (1) and (2). .(iv) The scope and authority of the Deputy Commissioner to take further action in the matter as directed by the learned Single Judge. .(v) The scope of remittance proceedings before the regular Committee as directed by order dated in 16.9.2008 in Writ Petition No. 11893 of 2008. Finding and decision: 10.1. As the issues -1 to 5 are interrelated, we propose to consider all the issues comprehensively. There is no dispute as to the fact that the impugned lands are agricultural lands and they could not be used for non-agricultural purpose unless otherwise they are reclassified by the Competent Authority in appropriate proceedings. The Tahsildar and the Surveyor being the local authorities who are authorised and competent to assess the revenue liable to be paid by the occupant under the provisions of the Karnataka Land Revenue Act and Rules framed thereunder are empowered to prohibit the use of agricultural land for any other non-agricultural purpose and are also entitled to initiate summary eviction proceedings as provided under Section 83(5) of the Act referred to above. 10.2. 10.2. The impugned endorsement sealing the cottages which are used as resorts is incidentally done in exercise of the power under Section 83(5) of the Act, just like that of the interim suspension pending disciplinary action in service jurisprudence. Such incidental powers have to be read into the enabling provision. Therefore, the power to seal the impugned cottages which is incidental in nature cannot be complained of as without jurisdiction as the same has to be read into the power to initiate the summary eviction of the holders or other persons who use or attempt to use the revenue land for any other purpose other than agricultural purpose which is prohibited unless otherwise the land is reclassified by Competent Authority in appropriate proceedings. 10.3. Mr. Acharya, learned Senior Counsel who argued for the appellant-writ petitioner has not placed any record before us to satisfy this Court that the land impugned is reclassified for the use of any other purpose other than agricultural purpose. On the other hand learned Senior Counsel contends that the appellant is still using it only for agricultural purpose for raising ragi and other crop and what was constructed in the impugned land is only a residence and nothing. However, we are unable to accept the argument the petitioner is a poor agriculturist who is using the impugned land for raising ragi. How come it is possible for a poor farmer to apply for telephone connection and to get licence for construction of five cottages? Even though it is our ardent wish that poor farmers too should such facilities. We are not inclined to accept the claim that the petitioner is a poor farmer. 10.4. We also add, what is contemplated under Section 83(5) is only summary eviction proceedings and not a full fledged enquiry which we give liberty to the Tahsildar shall hold further without any further delay and the Deputy Commissioner concerned as directed by the learned Single Judge shall bestow his personal attention for taking appropriate action not only for initiating eviction proceedings by the Tahsildar but also against the other revenue officials who have colluded with the petitioner in this regard including the Gram Panchayat of course after giving fair and reasonable opportunity to the respective individuals in the Gram Panchayat and to proceed in accordance with law. 11. 11. This leads us to the next issue viz., whether the impugned land is still available either for the deceased wife of the petitioner, much less to the petitioner himself for grant under Section 94-A read with Rule 108-CC. It is true that the respondents have not filed any objection before the learned Single Judge as there was no occasion for the same because the writ petition got dismissed in liinini. It is settled law where a writ of certiorari was prayed for, the Government is always at liberty to produce the relevant records and make their submissions based on the records available. There is no need to admit each and every writ petition when the Government is ready to make their submission based on the records. In other words, it will only increase the pendency. In the instant case learned Government Advocate has placed the additional facts which are not available in the affidavit viz., the impugned land was already granted to one Kalegowda s/o Doddakari Gowda of the same village as early as on 7.12.1992 and conditions of grant had also been violated and action was initiated by the Assistant Commissioner exercising the power conferred under Rule 108J (1) and (2) which reads as hereunder: "108J. Conditions for Grant of Land: (1) The grant of land under this Chapter shall be subject to the following conditions, namely: .(i) the grantee shall not alienate the land nor use it for non-agricultural purposes for a period of fifteen years from the date of issue of saguvali chit or certificate of grant of him; .(ii) thegrantee shall cultivate the land personally; (iii) the grantee shall within a period of six months from the date of issue of saguvali chit or certificate or grant in respect of the granted land, plant and maintain not less than one tree per every ten areas (guntas) of land or ten trees per hectare of land, at his cost. In case the tree planted were to die or get damaged due to causes beyond his control, he shall replant in its place another tree and year them. (iv) for contravention of any of the above conditions, the grant shall be liable to be cancelled and resumed to Government free from all encumbrances by the Assistant Commissioner: Provided that to such cancellation shall be made without giving the grantee an opportunity of being heard. (iv) for contravention of any of the above conditions, the grant shall be liable to be cancelled and resumed to Government free from all encumbrances by the Assistant Commissioner: Provided that to such cancellation shall be made without giving the grantee an opportunity of being heard. (2) Thefollowing shall not be regarded as alienation for purposes of sub-rule (1): (a) Mortgage of the land in favour of State Government or a Co-operative Society or a Scheduled Bank or the Agricultural Refinancing Corporation or the Karnataka State Agro Industries Corporation for loans obtained for improvement of such land or for buying cattle or agricultural implements for the cultivation of such land; and (b) leasing of the land in accordance with the provisions of the Karnataka Land Reforms Act, 1961." 12. Despite the fact that the petitioner was successful in getting the revenue records mutated in his favour and khatha was also go transferred in his wife's name still the vigilant revenue officers at some point had taken action against them by cancelling the change of khatha in the name of the petitioner's wife which again was challenged by the petitioner on the ground that he was not given an opportunity and therefore this Court applying the principles of natural justice set aside the order dated 15.7.2006 cancelling the khatha in favour of the wife of the petitioner Shahnaz Fatima and remitted the matter for fresh consideration by order dated 20.3.2007 in Writ Petition No. 16061 of 2006. Pursuant to the remittance the Panchayat Committee directed the parties to maintain status quo which we are unable to understand or appreciate and in the meanwhile the petitioner got the change of khatha based on the agreement entered into by the original grantee and succeeded in getting licence and also the telephone and electricity-connection. In the meanwhile, the Assistant Commissioner also initiated action against the original grantee for cancellation under Rule 108-B which is still pending. This is a typical illustration of how the pending legal proceedings have been exploited by vested persons in collusion with the revenue authorities at different levels and at different points of time against the legislative intent in favour of the weaker sections for whose benefit the impugned welfare legislation was enacted. This is a typical illustration of how the pending legal proceedings have been exploited by vested persons in collusion with the revenue authorities at different levels and at different points of time against the legislative intent in favour of the weaker sections for whose benefit the impugned welfare legislation was enacted. It is unfortunate that the Court could do little in these matters except to direct the Competent Authority, as rightly observed by the learned Single Judge, to bestow their personal attention in the matter within three months. It is true even though the Deputy Commissioner is the ultimate authority of the District in these matters, he cannot call before him all the records of the proceedings and take necessary action in each and every matter. It will attract the concept of abrogation of power. 13. In our considered opinion it would suffice to direct the regular Committee to dispose of the matter within 45 days after due notice to all the parties. Hence we make the following order: (i) The Committee shall dispose of the pending application filed by the petitioner's wife deceased Shanaz Fatima where the petitioner has impleaded himself as a legal representative within 45 days and the Assistant Commissioner shall dispose of the appeal within 45 days independently. (ii) The Deputy Commissioner being the Appellate Authority and the revenue head of the District is, as rightly directed by the learned Single Judge directed to bestow his personal attention and to oversee the entire proceedings and take appropriate action not only with regard to the rights of the petitioner and the original grantee but also to take appropriate disciplinary action against the erring officers. 14. Finding no reason to interfere with the order, the writ appeal is dismissed with the above directions.