MALLIGENAHALLI MAHESHWARAPPA Vs. K N RAMARAO

JUDGEMENT

(1.) THE appellants in these appeals and respondents 6 to 15 were the petitioners in Writ Petition Nos. 10209, 10213, 10214 and 10217 of 1996 respondents 1 (i) to 1 (v), 2 (i) to 2 (iii) and respondents 4 and 5 were the respondents in the writ petitions. In these appeals, the appellants have called in question the correctness of the order dated 8th March, 2000 made in the writ petitions referred to above.

(2.) THE facts in brief are as follows: the subject-matter of dispute in these appeals pertains to lands measuring 33 acres in Sy. No. 26 and 28 acres and 4 guntas in Sy. No. 39 of salabalugadi, Surahonne Village, Honnali Taluk, Shimoga District. Undisputedly, the said lands were Patel Umbli lands. On the application filed by the 1st respondent-deceased K. N. Ramarao and the 3rd respondent-N. Venkoba Rao who were the holders of the village office, land measuring 23 acres in Sy. No. 26 was re-granted as provided under the Karnataka Village offices Abolition Act, 1961 (hereinafter referred to as 'the Act') in favour of the said Rama Rao and another 10 acres in the said survey number in favour of deceased 2nd respondent-Ranga Rao. Land measuring 10 acres in Sy. No. 39 was re-granted in favour of the 3rd respondent-Venkoba Rao by means of order dated 10th September, 1987, a copy of which has been produced as annexure-A to these appeals. When the matter stood thus, in the year 1993 deceased Rama Rao made an application under Section 7 of the Act praying to evict the respondents 1 to 28, who are unauthorisedly cultivating the lands, and restore the same to their possession. The Tahsildar who was appointed as a Deputy Commissioner under Section 2 (d) of the Act to discharge the function of the Deputy Commissioner, by means of notification dated 29th august, 1979 in No. RD 415 MVS 79 made an order dated 23rd February, 1994, a copy of which has been produced as Annexure-H directing eviction of the 28 persons who were in possession and cultivation of the lands on the ground that their possession was unauthorised. In the said order, he further directed that the possession of the said lands should be handed over to the legal heirs of deceased Rama Rao. Aggrieved by the said order, all the 28 persons who were in possession and cultivation of the lands in question preferred an appeal before the District Judge as provided under sub-section (2) of Section 3 of the Act. The District Judge by means of his order dated 25th August. 1995, a copy of which has been produced as Annexure-K to this appeal dismissed the appeal confirming the order-Annexure-H dated 23rd february, 1994 passed by the Tahsildar. Aggrieved by the said order, the appellants in these appeals and respondents 6 to 15 filed the writ petitions out of which these appeals arise, challenging the order- Annexure-H, passed by the Tahsildar and also the order-Annexure-K passed by the District Judge. The learned Single Judge by means of his order dated 8th March; 2000 dismissed the writ petitions. Aggrieved by the said order, as noticed by us earlier, these appeals are filed.

(3.) SRI Raviprakash, learned Counsel appearing for the appellants at the very outset submitted that since the respondents 6 to 15 were not immediately available to file the writ appeals challenging the correctness of the impugned order passed by the learned Single Judge could not join the appellants to file these appeals; and under those circumstances they have been made as party respondents in these appeals. Sri Raviprakash challenging the correctness of the order passed by the learned Single Judge and also the orders passed by the district Judge and the Tahsildar impugned in the writ petitions made four submissions. Firstly, he submitted that since undisputedly the lands in question were re-granted under Section 5 of the Act to the holders of the village office i. e. , to the aforesaid late Rama Rao, Ranga Rao and the 3rd respondent-N. Venkoba Rao, the Tahsildar in the purported exercise of the power conferred on him as the Deputy Commissioner could not have passed order-Annexure-H. According to the learned Counsel, since the application filed by the said Rama Rao seeking eviction of the tenants was not maintainable before the Tahsildar, the order-Annexure-H passed by the tahsildar is liable to be quashed by this Court as one without jurisdiction. In support of this submission, he relied upon the judgment of this Court in the case of Bapu Mallu Khot v Deputy Commissioner, Belgaum and Others. Secondly, he submitted that since the order-Annexure-H was passed by the tahsildar without conducting any enquiry and giving an opportunity to the persons against whom order-Annexure-H came to be passed, to establish that they were in possession and cultivation of the lands in question as on 1st march, 1974 and their possession being lawful, it was not permissible for the tahsildar to pass the impugned order-Annexure-H, the said order is liable to be quashed on the ground that the same came to be passed in disregard of the principles of natural justice. It is his submission that since it is the case of the persons in possession of the land against whom notice for eviction was issued that they were the agricultural tenants in possession and cultivating the land as on 1st April, 1974 and as such they were entitled for grant of occupancy right in respect of the lands in question and the application filed by them was directed to be filed by the Tribunal on the short ground that the Tribunal had no jurisdiction to entertain the application since at that stage no order was made re-granting the lands in question in favour of the holders of the land. The Tahsildar could not have proceeded to make the impugned order without going into the question as to whether the possession of the lands in question by the persons who were admittedly in possession of the same was lawful or they were trespassers on the lands in question. Sri Raviprakash also submitted that the entry in the record of rights and pahani in respect of the lands in question discloses that various persons against whom an order of eviction is sought by deceased Rama Rao, were cultivating the lands in question as tenants and the observation made by the Tahsildar in No. TC 34/64-65, dated 30th July, 1966 also shows that the tenants against whom order-Annexure-H came to be passed were sub-tenants under one Veerabhadrappa. Thirdly, he submitted that the orders-Annexures-H and K are liable to be quashed on the ground that the said orders came to be passed in a mechanical manner ami without there being any application of mind on the part of the Tahsildar as well as the learned District Judge. Finally, he submitted the learned Single judge has failed to appreciate all these matters in the course of his order; and he has proceeded to reject the writ petitions only on the ground that the grievance made by the petitioners in the writ petitions was not a valid one. Elaborating this submission, learned Counsel pointed out that the approach made by the learned Single Judge that the writ petitions were belatedly presented, is contrary to facts.