(Prayer: This Writ Appeal is filed under Section 4 of the Karnataka High Court Act praying to set aside the order passed in the writ petition no. 13975/2005 dated 22.02.2007.)
1. The appellants have assailed the correctness of the order dated 22.02.2007 passed in W.P. No. 13975/2005 by the learned Single Judge, wherein the respondent herein had assailed the correctness of order dated 28.02.2005 passed in RB/LND-II/AP/CR-3/04-05 and order dated 30.03.2000 passed by the Assistant Commissioner, Sirsi Sub-Division Sirsi.
2. The brief facts of the case are:
The respondent herein claiming to be a well qualified M.SC. graduate filed Form NO. 50 under Rule 108 for regularization of unauthorized cultivation of land measuring 3.00 acres of Margundi Village of Sirsi Taluk. On 09.07.1991 pursuant to the application filed by the respondent herein and after verifying the contents of the prescribed form filed by the respondent, the third appellant submitted his report to the Committee for Regularization of Unauthorized cultivation. The said committee in turn has passed a resolution dated 01.09.1994 regularizing his unauthorized cultivation. The third appellant being aggrieved by the decision taken by the Regularization Committee has filed an appeal before the Second appellant in proceedings No. LAE/12/98-99. The said matter came up for consideration before the second appellant on 30.03.2000. After conducting thorough enquiry, the said authority rejected the claim of the respondent on the ground that, he is holding more than 2 hectares of land. Assailing the correctness of the order passed by the second appellant, the respondent herein filed an appeal under Section 136(3) of Karnataka Land Revenue Act, before Deputy Commissioner-first appellant herein. The first appellant in turn, after thorough verification of material available on record, held that the respondent posses more than 14.6.06 (A-G-A) of ‘D’ class land and is entitled to the share in the property inherited through the family as per the order passed by the second appellant by its order dated 28.02.2005 in proceedings No. RB/LND-II/AP/CR-3/2004-05. Not being satisfied with the order passed by appellants 2 and 1, the respondent herein filed W.P. NO. 13975/2005. The said matter came up before the learned Single Judge on 22.02.2007. The writ petition filed by the respondent was allowed and the orders passed by the appellants 2 and 1 dated 30.03.2000 and 28.02.2005 respectively were set aside. Being aggrieved by the order impugned, passed by the learner Single Judge, the appellants have presented this appeal.
3. Sri.Mahesh Wodeyar, learned AGA appearing for the appellants at the outset submitted that, the order impugned passed by the learned Single Judge cannot be sustained and is liable to vitiate at the threshold itself. To substantiate his submission, he has taken through the record available on file and pointed out that, in the prescribed form No. 50 filed under Rule 108 of the Land Revenue Rules in relevant column No 11, he has stated that, he does not possess land in his own name, but got share in the inherited properties. This declaration given on oath by filing prescribed form for registration of unauthorized cultivation of the land is contrary to the material available on record. As a matter of fact, as per the report submitted and after evaluation of the relevant application filed by the respondent, he is in possession of extent of 14.6.06 (A-G-A) land, which would be more than 2 hectares of land and therefore, he is not eligible for seeking regularization of unauthorized cultivation of the land. This aspect has been rightly considered by the appellants 2 and 1 respectively and after affording reasonable opportunity through their counsel and after critical; evaluation of record available on file have recorded the finding of fact and learned Single Judge ought not to have interfered with the orders passed by the appellants 2 and 1 respectively on the basis of the report submitted by the third appellant. Therefore, the order impugned passed by the learned Single Judge is liable to be quashed.
4. As against this, learned counsel appearing for the respondent, inter alia, contended that, the impugned order passed by the learned Single Judge is just and proper and the orders passed by the appellants 2 and 1 are rightly set aside, after due consideration of the material available on records,. Therefore, interference by this Court is uncalled for and there is also no good ground as such made out by the appellants to interfere with the impugned order passed by the learned Single Judge.
5. After hearing the learned AGA appearing for the appellants and learned counsel appearing for the respondent, the only point that arise for consideration is:
“Whether the order impugned passed by the learned Single Judge is sustainable in law?”
6. After critical evaluation of the original record available on file, what is emerges that, the respondent has filed the application dated 09.07.1991 without disclosing his qualification and genealogy of the family and also as to whether the family owned any agricultural land, in column 12 of the application. It is significant to note that, a copy of the Form No. 50 is found out at ink page 105 of the records. There, the respondent has stated that he is getting income of Rs.5,000/- only. It is further significant to note that, as per the report submitted by the Tahasildar after considering the prescribed form filed by the respondent as referred to above, the family of respondent was holding total extent of land 29-2(A-G). Out of which, 16-4-4 (A-G-A) was dry land, 11-14-12(A-G-A) was wet land 1-38 (A-G) was garden land, which stood in the name of father of the respondent. After the death of the father of the respondent, the said property was partitioned among four shares and the respondent got 4-1-1(A-G-A) of dry land, 2-33-15 (A-G-A) of wet land and 0-19-8(A-G-A) of garden land. After this converted into ‘D’ class land, the holding of the land of respondent worked out to 14-1-06(A-G-A). This is in excess of the ceiling limit of 2 hectares of ‘D’ class land as prescribed under relevant provisions of the Act and Rules. With these factual aspects and on the basis of the report, the learned counsel for the respondent submitted before the appellants 2 and 1, that the said land should not be considered, as the same come to the share of the respondent only after the death of his father. Both the authorities, appellants 1 and 2, after critical evaluation of the oral and documentary evidence an after evaluation of the relevant material available on file, strictly in compliance of relevant provision of Act and Rules have recorded a concurrent finding of fact. However, it appears the learned Single Judge did not have the benefit of going through the original records, as they were not made available before him. Learned AGA appearing for the appellants submits that, the learned Single Judge has proceeded on the basis of the material available on records.
7. Having regard to the facts and circumstances of the case as referred to above, we are of the considered view that, the order impugned passed by the learned Single Judge cannot be sustained and is liable to be vitiated. The appellants 1 and 2 after assessing oral and documentary evidence and other relevant material available on file have recorded a concurrent finding of fact. During the course of the submission, the learned counsel appearing for the respondent submits that, after the death of his father, he got share in the property. After taking these aspects and also the submissions as stated supra, we do not find any justification in the impugned order of the learned Single Judge. Accordingly, the order passed by the learned Single Judge is liable to be set aside.
8. Yet another reason as to why, the orders passed by the appellants 2 and 1 respectively are sustainable is for the reason that after through verification of the relevant material available on file and after taking into consideration the report submitted by the third appellant, the appellants 1 and 2 have rightly held that the respondent is not entitled for unauthorized cultivation of the land, because he was holding more than 2 hectors of land. It is however, relevant to note here itself that, during the course of the submission, when we put a specific question to the learned counsel appearing for the respondent Sr. A.P. Hegde to verify the qualification and occupation of the applicant/respondent on instructions over telephone, he has been informed that, the respondent is M.Sc. graduate and is not employed and he is an agriculturist and cultivating the land. The said information is as per the declaration application filed in Form No. 50 under Rule 108 of the Rules. Column Nos. 8 and 9 of the said application show that, the land consists of fruit bearing trees and grass and he is cultivating the land since 01.07.1984. Further, what emerges is that, the original printed form has been filled in black ink and there is tampering of the year of the application, at 3rd page of the application and in the first column, the name of the respondent is written in a different handwriting and different colour ink. All these aspects, go to show that, the respondent intentionally and deliberately has not spelt out the truth and has wantonly suppressed the material fact without stating the true facts. As such, the application, seeking regularization of unauthorized cultivation of the land cannot be maintained.
9. After perusal of the impugned order of the learned Single Judge, what emerges is that, the learned Single Judge at paras 7 and 8 has observed that, there is delay of three years in canceling the order of regularization and that, if the father of the respondent was having lands, the same cannot be taken into account in order to regularize the land cultivated by the respondent. The said two reasoning given by learned Single Judge are contrary to the material on record. In the instant case, there is no delay for cancellation of regularization. The second appellant after going through the matter in detail and after conducting thorough enquiry, giving sufficient opportunity to both the parties, has held that, the respondent is not entitled for regularization of unauthorized cultivation of the land. As a matter of fact, the respondent has wrongly invoked the provision of Section 136(3) of the Karnataka Land Revenue Act, against the order of the Assistant Commissioner for regularization of unauthorized cultivation of land. It is significant to note that against the order of the Assistant Commissioner, revision is not maintainable before the Deputy Commissioner of the District under the said provision. However, the Deputy Commissioner being the District Magistrate has got sue-motu power to verify the legality o the order passed by the second and third appellants as envisaged under the relevant Provisions of the Land Revenue Act and Rules. This aspect has not been looked into nor appreciated, nor referred in the impugned order passed by the learned Single Judge. Therefore, the order passed by the learned Single Judge cannot be sustained and is therefore, liable to vitiate.
10. Having regard to the facts and circumstances of the case stated supra, the instant appeal is allowed. The impugned order passed by the learned Single Judge dated 22.02.2007 in W.P. No. 13975/2005 is hereby set aside. The writ petition filed by the respondent stands dismissed as devoid of merit.