SIDDAIAH ALIAS HUCHAIAH Vs. SIDDAIAH

JUDGEMENT

(1.) THIS Writ Petition under Articles 226 and 227 of the Constitution of India is filed being aggrieved by the order passed by the Karnataka Appellate Tribunal in Appeal No. 80/1998 dated 23. 02. 2001, allowing the appeal and setting aside the order passed by the Deputy Commissioner, mandya District, dated 15. 09. 1995 and remitting the matter to the Assistant Commissioner, mandya Sub-Division, Mandya, to conduct spot inspection of the area in question, after giving due notice to the parties and to get the land surveyed and fix the boundaries of the kharab land and to identify as to who is in possession of what extent of kharab land and take action to regularize the occupation in favour of the parties in possession after following the procedure laid down in this regard and in the light of the observations made in the order.

(2.) IT is the case of the petitioner that the grand mother of the petitioner, Smt. Kallamma made an application seeking for grant of land and the Assistant Commissioner by order dated 21. 01. 1960, granted on lease basis an extent of 01 Acre 30 Guntas, including a portion of 30 Guntas of kharab land in Sy. No. 7 and similarly three other persons were granted different portions of land in survey No. 7 and respondent No. 1 was granted 01 Acre 01 Gunta of land on lease basis in the said survey number. Before the grant certificate could be issued, Smt. Kalamma, the grand mother of the petitioner expired and grant certificate was issued in favour of the petitioner as he succeeded to the estate of Smt. Kalamma. The first respondent and three others challenged the grant made in favour of the petitioner by filing an appeal before the Deputy Commissioner, mandya, who by order dated 19. 10. 1966, dismissed the appeal and wherefore, the grant made in favour of the petitioner has become final and the. said order has been confirmed by the karnataka Appellate Tribunal in Appeal No. 908/1976. Thereafter, there was re-survey and the land measuring 01 Acre 30 Guntas granted to the petitioner was given Sy. No. 220 and the land measuring 01 Acre 01 Gunta granted in favour of the first respondent was given new Survey No. 221. Being aggrieved by the said survey and demarcation, the first respondent filed revision before the Director of Survey Settlement and Land Records and the said revision was dismissed by order dated 13. 11. 2000 and thereby, confirming the extent of the land granted in favour of the petitioner as 01 Acre 30 Guntas including kharab portion of 30 Guntas. It is further averred that after bringing the said 30 Guntas of kharab portion within the granted land, the petitioner made application for assessment of the said kharab portion for land revenue as the same was brought under cultivation. Though what had been sought for by the petitioner was levying assessment in respect of an unassessed kharab portion which was already granted in favour of the petitioner, the matter was treated by the authorities as if it was a grant proceeding and enquiry was held and ultimately, an assessment of Re. 1/- was fixed in respect of the kharab portion brought under cultivation. Pursuant to the order passed by the Assistant Commissioner, the petitioner was asked to deposit Rs. 500/- per Acre and also fresh assessment. The Assistant Commissioner instead of making it as an assessment proceedings, issued a fresh grant certificate also, Respondent No. 1 again preferred an appeal against the proceedings of the Assistant Commissioner and the Deputy commissioner by his order dated 30. 03. 1990, remanded the matter to the Assistant commissioner. The Assistant Commissioner after remand, by order dated 27. 08. 1990, directed that the extent of 30 Guntas of kharab land brought under cultivation by the petitioner and in respect of the other three persons should be forfeited to the Government. Respondent No. l did not prefer any appeal against the said order, but, the petitioner filed an appeal before the Deputy commissioner by order dated 15. 09. 1995 setting aside the order and confirming the assessment levied on the kharab portion. The Deputy Commissioner while considering the matter has pointed out that the said portion of 30 Guntas has already been granted to the petitioner in the earlier grant and subsequently, kharab portion was brought under cultivation and therefore, it is only a matter of levying assessment. As against the said order, one Siddhe Gowda filed appeal no. 19/1997 before the Karnataka Appellate Tribunal and the Appellate Tribunal by order dated 07. 04. 1999, dismissed the appeal and confirmed the order dated 15. 09. 1995 passed by the deputy Commissioner, Against the order of the Deputy Commissioner dated 15. 09. 1995, respondent No. 1 filed Appeal No. 80/1998 before the Karnataka Appellate Tribunal and the appellate Tribunal, by order dated 23. 02. 2001, set aside the order of the Deputy Commissioner dated 15. 09. 1995 and has made observation that 30 Guntas of kharab land cannot be granted to the petitioner though in the last sentence, it is stated that the matter is remitted to the Assistant commissioner and the order is passed without application of mind and without considering any document and without understanding the matter in the proper perspective and wherefore, the writ petition to set aside the order passed by the Karnataka Appellate Tribunal dated 23. 02. 2001 as per Annexure Q.

(3.) I have heard and considered the contentions of the learned Counsel appearing for the petitioner and the learned Counsel appearing for respondent No. 1 and the learned High Court government Pleader appearing for Respondents 2 to 5.