CHIKKAHANUMAIAH, SON OF HANUMAIAH Vs. THE TAHSILDAR, TUMKUR TALUK, TUMKUR AND SRI GANGAHANUMAIAH, SON OF LATE HANUMANARASAIAH ALIAS BOOTAIAH

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner and the learned counsel for the respondents. It is the case of the petitioner that he and the father of the respondent one late Hanumanarasaiah @ Bootaiah, were the joint and absolute owners of 1/6th share of the properties in Sy. Nos. 8, 53 and 65 of Pandithanahalli, Hirehalli Post, Urdigere Hobli, Tumkur Taluk and District. It was the land attached to the office of the Thoti of Pandithanahalli and as such, the ancestors of the petitioner along with Hanumanarasaiah being Thotis of the said village, the property came to be re -granted jointly in favour of the petitioner and Hanumanarasaiah by an order of re -grant passed by the Tahsildar dated 25.07.1985. Thereafter, Hanumanarasaiah being fully aware of the order, did not choose to prefer any appeal. It is pursuant to the death of Hanumanarasaiah, the present petitioner Chikkahanumaiah has, on a specious plea that his father was stricken with paralysis and therefore, was not able to challenge the earlier order and had allowed the order to become final, sought to prefer an appeal in M.A. No. 8/2001 before the District and Sessions Judge, Tumkur. The said appeal was allowed and was remanded to the Tahsildar to reconsider the case of the second respondent by an order dated 28.03.2007. The same was challenged by way of a Writ petition in W.P. No. 10111/2007 before this Court and the order passed by the District Judge was set -aside and the matter remanded for a fresh consideration by an order dated 11.11.2008. Pursuant to such remand, the District Judge has yet again allowed the appeal of the Respondent No. 2 and remitted the matter to the Tahsildar. Aggrieved by the same, the petitioner is before this Court.

(2.) THE learned counsel for the petitioner would submit that the order that was in appeal before the District Judge was an order passed under Section 5 of the Karnataka Village Offices Abolition Act, 1961 (hereinafter referred to as the 'KVOA Act' for brevity) and not under Section 3 of the KVOA Act and therefore, he was coram non judice and would not have jurisdiction to have decided the said appeal. This is the settled position as laid down by this Court in various decisions. It is contended that the District Judge in the impugned order has erroneously come to the conclusion that the order dated 25.07.1985 was an order passed under the provisions of Section 3(1) of the KVOA Act and the finding on the face of it is erroneous, as the order was clearly one passed under Section 5(4) of the KVOA Act and there is no remedy available insofar as an order passed under Section 5 is concerned before the District Judge, which is completely lost sight of by the District Judge proceeding to hold that it was an order under Section 3(1), when in the order itself it is indicated that it was one passed under Section 5. This is the primary ground on which the present writ petition is filed. This is further elaborated by contending that any order pertaining to re -grant of land resumed under Section 4 of the KVOA Act, shall be governed under Section 5 of the KVOA Act. This is the proposition of law affirmed by a judgment of this Court in the case of Prakash K. Srivastava and Another vs. The Tahsildar and Others (ILR 2006 KAR 3005, and that once a statute does not provide for a remedy, the only recourse open was to seek relief in the writ jurisdiction of this Court and the appeal having been entertained by the District Judge is therefore without jurisdiction and nonest in law. The bona fides of the Respondent No. 2 has also been casually accepted by the court below. There was a delay of over 15 years in the appeal having been filed and the specious reason assigned that his father was paralytic and therefore, had not pursued any remedy, did not disable the respondent himself from doing so at the earliest point of time and the delay having been condoned and the appeal entertained on the erroneous footing, results in gross injustice to the petitioner especially since Section 5 of the Limitation Act, 1963, could not have been invoked and hence, seeks that the petition be allowed.

(3.) IN the view of this Court, the impugned order dated 25.07.1985 was one passed under Section 3(1) of the Act. Hence, the appeal filed was in accordance with law. The contention that it is an order of re -grant and therefore, under Section 5, is incorrect and no material is placed before the Court in this regard. In any event, the matter is at large before the Tahsildar and the petitioner would be entitled to put forth his claim insofar as the claim to re -grant on the footing that his father and before him, his ancestors were thotis rendering services and therefore, were entitled to re -grant. Hence, the limited question in this petition was whether the District Judge had acted without jurisdiction in entertaining the appeal and whether the order under appeal was one under Section 3 of the Act or under Section 5. The KVOA Act defines an authorised holder under Section 2(b) as follows: 2(b) "Authorised holder" means a person in whose favour a land granted or continued in respect of, or annexed to, a village office by the State or a part thereof has been validly alienated permanently, whether by sale, gift, partition or otherwise, under the existing law relating to such village offices The holder of a village office under Section 2(g) is defined as follows: 2(g) "Holder of a village office" or "Holder" means a person having an interest in a village office under an existing law relating to such office: Provided that where any village office has been entered in a register or record under an existing law relating to such village office, as held by the whole body of persons having interest in the village office, the whole of such body shall be deemed to be the holder; The powers of the Deputy Commissioner, or as the case on hand, the Tahsildar, to decide certain questions and appeals is spelt out under Section 3, which reads as follows: 3. Powers of Deputy Commissioner to decide certain questions and appeals. - (1) If any question arises - (a) Whether any land was granted or continued in respect of or annexed to a village office by the State, or (b) Whether any person is a holder of a village office, or (c) Whether any person is an authorised holder, or (d) Whether any person is an unauthorised holder, the Deputy Commissioner shall, after giving the party affected an opportunity to be heard and after holding an enquiry in the prescribed manner decide the question. (2) Any person aggrieved by such decision may file an appeal to the District Judge of the District within ninety days of such decision and the decision of the District Judge on such appeal shall be final. As per the amendment by Act No. 13/1978, the following proviso has been added to sub -section (2) of Section 3 which reads as follows: The provisions of Sections 4, 5, 12 and 14 of the Limitation Act, 1963 shall be applicable to such appeal. Therefore, the scope of the powers of the Deputy Commissioner and the questions that he could decide, are spelt out. In the case on hand, if there was disputed claim between the petitioner and the second respondent, it would fall under Section 3(b) since it was the petitioner's case that his father and his ancestors were rendering service of Thotis and therefore, were entitled to re -grant. The petitioner was really claiming under a holder of a village office. The argument on behalf of the petitioner in the first instance that there was no resistance from the father of the second respondent and therefore, the order passed under Section 3 had crystallized when it was granted in favour of the original holder of the office under whom he was claiming and therefore, could not be construed as an order trader Section 3, cannot be accepted. It is only if the proposition that the father of the second respondent had not resisted the claim and had allowed the order to be passed as accepted that such a contention may be possible. But, since the Respondent No. 2 has pointed out that though the petitioner's name did not figure in the mahazar that was drawn up on the spot inspection being conducted and it is only in the operative portion of the order that his name figures, is a glaring circumstance which the District Judge has taken into consideration in proceeding on the footing that the dispute was one which was decided under Section 3 and not under Section 5 which is the correct view taken by the District Judge. Therefore, the contention that the appeal was entertained by the District Judge though he did not have jurisdiction to do so, is not a tenable contention and since there is an order of remand where a question of fact namely whether it is the petitioner or the Respondent No. 2 who could claim under the holder of a village office is to be decided no prejudice would be caused to the petitioner. Accordingly, the petition stands dismissed. Incidentally, it is noticed that though the time prescribed for filing an appeal was 90 days, the second respondent had filed the appeal after considerable delay along with an application under Section 5 and even though the petitioner herein had contested the appeal on the question of limitation, the application under Section 5 has been heard at length and the District Judge has in the course of his judgment, dealt extensively on the question of limitation and has thereafter condoned it. The present writ petition does not raise any ground on the question of limitation. However, the counsel for the petitioner seeks to press this as a question of law which was required to be decided in the first instance. In view of the proviso to Section 3 of the KVOA Act, it cannot be said that the application for condonation of delay under Section 5 of the Limitation Act, 1963 was not maintainable. The finding on that application does not warrant any interference. The Writ Petition is without merit and is dismissed.