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2013 DIGILAW 947 (KAR)

C. S. Gangadharaiah v. Deputy Commissioner

2013-08-20

D.V.SHYLENDRA KUMAR

body2013
Judgment : 1. Writ petitioner claims interest in an extent of one acre of land in Sy No 74 of Dandenahalli village, Thippasandra hobli, Magadi taluk in Ramanagaram district, as per proceedings of the land grant committee in its meeting held on 19-8-2004 in No LND/CR/267/2003-04. The claim of the petitioner is that he is in unauthorized occupation and cultivation of an extent of 1 acre 30 guntas of land in this survey number for more than 30 years and he had made an application in form No 50 to the committee for regularization and the committee in the proceedings referred to above has resolved to grant one acre of land and following the same, saguvali chit also came to be issued in favour of the petitioner and RTC stands in his name thereafter. Petitioner claims to be continued in possession and enjoyment of the subject land. It is also claimed that 57 other persons who were also in unauthorized occupation and cultivation of government land had also been granted saguvali chit. 2. When matter stood thus, it appears, the local MLA had visited the place and informed the tahsildar that the land was required for the purpose of formation of residential sites to be distributed free of cost to siteless persons and therefore had directed the tahsildar to submit a report to the assistant commissioner. The assistant commissioner in strict obedience of the directions of the MLA, it appears, passed an order dated 3-1-2007 [copy at Annexure-B to the writ petition] cancelling the grant quoting the power under Rule 108K of the Karnataka Land Revenue Rules, 1966 [for short, the Rules] without even issue of notice to the petitioner about such cancellation nor hearing the petitioner. 3. Petitioner, on coming to know about this order and being aggrieved by the same, preferred an appeal to the deputy commissioner questioning the order of the assistant commissioner. Deputy commissioner took up the appeal and issued notice to persons concerned and file was later transferred to the deputy commissioner, Ramanagaram district on the formation of the said district. Deputy commissioner, Ramanagaram when took up the matter on 22-10-2008, found the appellant-writ petitioner was not present and proceeded to decide the case in his absence. Deputy commissioner took up the appeal and issued notice to persons concerned and file was later transferred to the deputy commissioner, Ramanagaram district on the formation of the said district. Deputy commissioner, Ramanagaram when took up the matter on 22-10-2008, found the appellant-writ petitioner was not present and proceeded to decide the case in his absence. Deputy commissioner noticed that the assistant commissioner had also while cancelling the grant observed that the land was not suitable for cultivation and found no occasion to interfere with the order of the assistant commissioner and dismissed the appeal in terms of his order dated 10-12-2008 [copy at Annexure-C to the writ petition]. 4. It is against these two orders, the present writ petition. 5. Notice had been issued to the respondents. Respondents are represented by Ms M C Nagashree, learned government pleader. 6. Having regard to the short question, this matter is taken up for disposal and I have heard Sri K Shantharaj, learned counsel for petitioner and Ms M C Nagashree, learned government pleader for respondents. 7. Submission of learned counsel for petitioner is that the impugned orders, particularly the order passed by the assistant commissioner, suffer from a patent illegality of not issuing notice to the petitioner; that no opportunity had been given to the petitioner; that the deputy commissioner instead of according proper opportunity, has also decided the case unilaterally in the absence of the petitioner and therefore both orders are not tenable. 8. Moreover, learned counsel for petitioner submits that the assistant commissioner did not pass order on his own on the merits of the case, but at the dictate of the local MLA and therefore exercise of power under Rule 108K becomes bad in law. 9. Learned government pleader, though seeks to support the impugned orders, is not in a position to effectively defend them, as it is a fact that the assistant commissioner proceeded to pass order even without notice to the petitioner, more so, when the grant order in favour of the petitioner was required to be cancelled. 10. On a perusal of the impugned orders, it is to be noticed that as per the proviso to Rule 108K of the Rules before cancelling any grant, an opportunity of hearing to the grantee is mandated and that is not complied. 10. On a perusal of the impugned orders, it is to be noticed that as per the proviso to Rule 108K of the Rules before cancelling any grant, an opportunity of hearing to the grantee is mandated and that is not complied. As to whether the subject land was a cultivable land or not or it was under cultivation should have been decided after issue of notice to the petitioner and that is also not done. The impugned orders invariably suffer from not according proper opportunity to the petitioner. 11. In the circumstance, this writ petition is allowed and the impugned orders passed by the assistant commissioner and affirmed by the deputy commissioner are quashed by issue of writ of certiorari. It is, however, made clear that the power under Rule 108K can be exercised by following the due process of law and after issuing notice to the petitioner. Rule made absolute. Writ petition allowed.