IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NO.1263 OF 2019 (KLR-REG) AND WRIT APPEAL NO.2523 OF 2019 BETWEEN:
1 . T.A. SHANMUKHAPPA GOWDA AGED ABOUT 68 YEARS S/O LATE ANNAIAH GOWDA 2 . I.S. JAYACHANDRA AGED ABOUT 55 YEARS S/O LATE SARJAPPA GOWDA 3 . ESHWARAPPA .T AGED ABOUT 45 YEARS S/O LATE DAKAPPA GOWDA APPELLANTS ARE RESIDENTS OF SONALE VILLAGE, HUMCHA HOBLI HOSANAGARA TALUK-577418 SHIVAMOGGA DISTRICT-577201 (BY SHRI S.V. PRAKASH, ADVOCATE) AND:
1 . THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY DEPARTMENT OF REVENUE ... APPELLANTS VIDHANA SOUDHA BENGALURU-560001 2. DEPUTY COMMISSIONER SHIVAMOGGA DISTRICT SHIVAMOGGA CITY – 577201 3. THE ASSISTANT COMMISSIONER SAGAR SUB-DIVISION SAGAR-577401 SHIVAMOGGA 4 . THE TAHASILDAR & SECRETARY THE COMMITTEE FOR REGULARIZATION OF UNAUTHORISED OCCUPATION HOSANAGARA TALUK-577418 SHIVAMOGGA DISTRICT 5 . T. G. SHIVAPPA GOWDA AGED ABOUT 50 YEARS S/O GURAPPA GOWDA 6 . T. R. VIVEK AGED ABOUT 45 YEARS S/O T RUDRAPPA 7 . T. K. ESHWARAPPA GOWDA AGED ABOUT 45 YEARS S/O THOTAPPA GOWDA RESPONDENTS 5 TO 7 ARE R/AT SONALE VILLAGE HUMCHA HOBLI HOSANAGARA TALUK-577418 SHIVAMOGGA DISTRICT-577201 ... RESPONDENTS (BY SHRI VIKRAM HUILGOL, HCGP FOR R1 TO R4; SHRI PRUTHVI WODEYAR, ADVOCATE FOR R5 & R6; R7 - SERVED) ---
THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 24.07.2017 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT IN W.P.NO.45271-45272/2014 BY ALLOWING THIS WRIT APPEAL IN THE ENDS OF JUSTICE AND CONSEQUENTLY DISMISS THE WRIT PETITION FILED BY THE RESPONDENTS 5 AND 6 IN W.P.NO.45271-272/2014 AND ETC.
THESE APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellants, the learned Additional Government Advocate appearing for the first to fourth respondents and the learned counsel appearing for the fifth and sixth respondents. The seventh respondent is duly served with the notice issued under the order dated 15th July 2019.
2. Perused the affidavit filed in support of the application – I.A.No.1/2019 seeking condonation of delay. It is pointed out that the appellants had applied for review on the ground that they had no opportunity to contest the writ petitions. The contention of the appellants is that they had engaged the services of an advocate who, instead of filing vakalat in the writ petitions, filed the same in another writ petition and that is how the present appellants were not represented. The application is opposed by the learned counsel appearing for the fifth and sixth respondents. He relies upon the assertions made in the objections filed to the application for condonation of delay. It is pointed out that the explanation that the advocate filed vakalath in another petition cannot be accepted.
3. The fact remains that the present appellants were not represented before the learned Single Judge. According to them, they had engaged an advocate who filed the vakalath in some other matter. The appellants filed a review petitions before the learned Single Judge on that ground which was rejected. Therefore, according to us, this is a fit case where the delay in preferring the appeals will have to be condoned. Accordingly, I.A.No.1/2019 is allowed.
4. Considering the nature of the controversy involved in the matter, the appeals are taken up for final disposal. The appellants challenged the order dated 25th September 1994 passed by the Tahsildar and Secretary, Committee for Regularization of Unauthorized Occupation under Rule 108(D)(6) of the Karnataka Land Revenue Rules, 1966 by way of an appeal before the Assistant Commissioner. The said appeal was allowed and the subject land was ordered to be taken over by the State Government. An appeal was preferred against the said order of the Assistant Commissioner by the fifth and sixth respondents before the Deputy Commissioner which was dismissed. The fifth and sixth respondents, therefore, filed writ petitions before the learned Single Judge. By the impugned order, by setting aside the orders passed by the Assistant Commissioner and the Deputy Commissioner, consequential action of restoring the names of the appellants in the revenue records was directed.
5. The submission of the learned counsel appearing for the appellants is that the Deputy Commissioner has observed that as per M.R.13/1995-96, the subject land has been classified as a forest land and there was no question of regularization thereof. He pointed out that the order passed by the Assistant Commissioner proceeds on the footing that the land is a forest land. He submitted that if the learned Single Judge was of the view that there was no detailed finding recorded to come to a conclusion that the land is a forest land, in fact, an order of remand ought to have been passed.
6. The learned counsel appearing for the fifth and sixth respondents opposed the appeals. He submitted that there is a document produced by the said respondents in these appeals which will show that the subject land is not a forest land and therefore, no interference is called for.
7. We have considered the submissions. There are two grounds on which the Assistant Commissioner has set aside the grant. The first is that the subject land is a forest land and the second is that it was held in excess of the prescribed limit. The finding about the nature of the land has been confirmed by the Deputy Commissioner apart from the ground of holding of the land in excess of the prescribed limit.
8. If according to the learned Single Judge there was no finding recorded to show that the subject land is a forest land, the appropriate course would have been to send back the matter to the Assistant Commissioner for fresh consideration.
9. Though the Assistant Commissioner has set aside the order on the ground that the subject land is a forest land, there is an observation to the contrary by the learned Single Judge in paragraph 16. Therefore, the only appropriate course open for the learned Single Judge was to remand the matter for fresh consideration by the Assistant Commissioner so that there can be in depth consideration of the issue whether the subject land is a forest land or not. The document which is sought to be produced by the fifth and sixth respondents can be considered by the Assistant Commissioner.
10. Hence, we pass the following order:
(i) The impugned order dated 24th July 2017 is hereby quashed and set aside;
(ii) The order dated 26th June 2008 and 24th October 2013 passed by the Assistant Commissioner and the Deputy Commissioner respectively are set aside;
(iii) The appeal preferred by the appellants against the order dated 25th September 1994 is restored to the file of the Assistant Commissioner, Sagar Sub-Division, Sagar;
(iv) After granting an opportunity to both the parties to produce documents, the said appeal shall be decided on its own merits by the Assistant Commissioner as expeditiously as possible and in any event, within a period of three months from 4th November 2019;
(v) We direct the appellants and the fifth and sixth respondents to appear before the concerned Assistant Commissioner on 4th November 2019 at 3.00 p.m. for fixing the schedule of hearing;
(vi) We make it clear that all the contentions on merits are kept open to be decided by the Assistant Commissioner.
(vii) Accordingly, the appeals are partly allowed in the above terms;
(viii) There is no order as to costs.
Sd/- CHIEF JUSTICE Sd/- JUDGE SN