BALAPPA Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) THE petitioner, questioning the legality and validity of the order dated 30th April, 2005 bearing No. KLR. CR. 67/2002-03 on the file of the first respondent, vide Annexure-A, has presented the instant writ petition. OR in the alternative has prayed for regrant of the property bearing R. S. No. 125/3 of Kannolli Village of Jamkhandi Taluk measuring 2 acres which had been vested in the Government in pursuance of the order of the Assistant Commissioner by considering the proviso of Section 5 (4) of the Karnataka Village Offices Abolition Act, 1961, as per the representation/application filed by petitioner dated 28th August, 2003 vide Annexure-H, without dispossessing him from the land in question and as per the direction issued by this Court on 8th December, 2003 in the earlier round of litigation in Writ Petition No. 39295 of 2003.

(2.) IT is not in dispute that, petitioner had earlier filed a writ petition in W. P. No. 39295 of 2003 assailing the correctness of the order dated 26th May, 2003 on the file of the first respondent herein and had further sought for a direction to consider his application dated 30th August, 2003. The said writ petition had come up for consideration before this Court on 8th December, 2003 and the said writ petition stood disposed of with a direction to first respondent herein to consider the request of the petitioner in the matter of grant of land and to do the said exercise after hearing all the parties concerned. After disposal of the said writ petition filed by the petitioner in the earlier round of litigation, the first respondent by his order dated 30th April, 2005 bearing No. KLR. CR. 67/2002-03 has rejected the application filed by petitioner, on the ground that, there is no provision under the Village Offices Abolition Act to consider his request under Sub-section (4) of Section 5 of the Karnataka Village Offices Abolition Act, 1961 (hereinafter called 'kvoa act' for short ). Further, the first respondent herein directed the Tahsildar to dispossess the petitioner and take possession and thereafter to proceed further as per Section 77 of the karnataka Land Reforms Act, 1961, for disposal of the same, since the said land is vested in government. Being aggrieved by the impugned order passed by the first respondent, vide annexure-A, petitioner herein felt necessitated to present the instant writ petition.

(3.) I have heard learned Counsel appearing for petitioner and learned Counsels appearing for respondents. After careful perusal of the impugned order passed by the first respondent, it is manifest on the face of the order that, the first respondent has committed an error in not considering the application filed by the petitioner for grant of land and without compliance of the direction issued by this Court, in earlier round of litigation dated 8th December, 2003 made in w. P. No. 39295 of 2003, wherein this Court has specifically directed the first respondent-the assistant Commissioner, Jamkhandi to consider the request of the petitioner in the matter of grant of land after hearing all the parties concerned. In the instant case, from the order passed by the said authority, it can be seen that, after considering the case made out by the petitioner and the second respondent herein, he has given a specific finding, rejecting the request of the petitioner in just one line holding that, petitioner is not entitled for grant of land under the kvoa Act and that, the land is vested in Government on the ground that, the earlier grant made in favour of the father of the petitioner was in violation of the grant as is evident from the documentary evidence available on file. Therefore, petitioner is not entitled for grant of the said land. Further, the said authority has committed a grave error in issuing direction to the Tahsildar, to take possession of the land and proceed with, disposal of the same under Section 77 of the karnataka Land Reforms Act. These two directions given by the said authority is contrary to the mandatory provisions of the KVOA Act inasmuch as the same is without considering the mandatory provisions of the statute and without conducting proper enquiry. It is significant to note here itself that, it is duty cast on the statutory authority to consider the claim of petitioner under Sub-section (4) of Section 5 of the KVOA Act in pursuance of the direction issued by this court in earlier round of litigation and to comply with the statute and thereafter proceed. The assistant Commissioner has rightly proceeded with the vesting of land in view of contravention of the terms and conditions of grant, but, so far as non-consideration of the request of the petitioner on the ground that, there is no provision under the KVOA Act to consider the request of petitioner and directing the Tahsildar to take up the proceedings as envisaged under Section 77 of the Karnataka Land Reforms Act, is not justifiable for the reason that, there is a clear provision under the KVOA Act, wherein it has been defined under Section 2 (l) (c) that, 'code' means 'the Karnataka Land Revenue Act, 1964'. Such lands which are vested in Government for contravention of grant, the said lands should be disposed of as per the provisions of the KVOA act and not under Section 77 of the Karnataka Land Reforms Act. Therefore, in view of not passing the impugned order in strict compliance of the KVOA Act and as per the earlier direction issued by this Court, I am of the considered view that, at any stretch, the impugned order passed by first respondent cannot be sustained and hence, it is liable to be set aside. In my considered view, the matter requires reconsideration afresh by the authority and to take appropriate decision in accordance with law, after affording an opportunity to petitioner and dispose of the same, as expeditiously as possible, within reasonable time, that may be fixed by this Court.