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Abdul Basheer Sab Vs. the State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 1053 of 1973
Judge
Reported inAIR1975Kant186; ILR1974KAR1313; 1974(2)KarLJ371
ActsKarnataka Land Revenue (Amendment) Act, 1964 - Sections 3 and 8; Karnataka Land Revenue (Amendment) Rules, 1960 - Rule 43G(7); Karnataka Land Grant Rules, 1969
AppellantAbdul Basheer Sab
RespondentThe State of Mysore and ors.
Appellant AdvocateT.S. Ramachandra, Adv.
Respondent AdvocateB.B. Mandappa, High Court Govt. Pleader and ;M.P. Eswarappa, Adv.
Excerpt:
.....by the state legislature. it is not a body owned or controlled or substantially financed by the government. it is also not a non-government organisation substantially financed directly or indirectly by funds provided by the appropriate government. it is no doubt true that any society in karnataka established by few or many individuals is required to be registered under the karnataka societies act. it is also not in dispute a society registered under the karnataka societies registration act, is also required to file its annual account and the elections are to be held from time to time in accordance with the bye-laws. the provisions of the societies registration act, 1960 is applicable to all societies are under the control of the government only regulate its activities and to see that..........of the alienation, the deputy commissioner issued notices to the grantees to show cause why the land granted to them, should not be resumed. in the enquiry held by him, the petitioner was also heard in the matter. he resisted in vain, the action of the deputy commissioner who by his order dated 20th february, 1971, cancelled the said grants and resumed the land free from all encumbrances with a direction to evict the petitioner therefrom.4. against the said order, the petitioner preferred an appeal to the divisional commissioner, who dismissed the appeal holding that the petitioner has no right to prefer an appeal. his further appeal to the government, was also dismissed, but on different grounds.5. this petition now brought is primarily on the contention that the deputy commissioner.....
Judgment:
ORDER

1. The question involved in this petition under Article 226, is of considerable importance and that is, whether under the Karnataka Land Revenue (Amendment) Rules, 1960 (hereinafter referred to as 'the Rules'), the Deputy Commissioner of a district is competent to resume land for contravening the terms of its grant.

2. The facts leading up to thispetition are:

In 1962, the Tahsildar, Shimoga Taluk, granted two acres of land each to some of the landless residents of the village. The grant was made at an upset price of Rs. 25 per acre followed by the issuance of grant certificate in which it was stated that the grantees shall not alienate the land for 15 years. The grantees remained in possession for about 6 years, and thereafter, they sold their land to the petitioner for valid consideration.

3. On coming to know of the alienation, the Deputy Commissioner issued notices to the grantees to show cause why the land granted to them, should not be resumed. In the enquiry held by him, the petitioner was also heard in the matter. He resisted in vain, the action of the Deputy Commissioner who by his order dated 20th February, 1971, cancelled the said grants and resumed the land free from all encumbrances with a direction to evict the petitioner therefrom.

4. Against the said order, the petitioner preferred an appeal to the Divisional Commissioner, who dismissed the appeal holding that the petitioner has no right to prefer an appeal. His further appeal to the Government, was also dismissed, but on different grounds.

5. This petition now brought is primarily on the contention that the Deputy Commissioner has no jurisdiction to resume the land. The relevant provisions which have material bearing on the question are Sections 3 and 8 of the Karnataka Land Revenue Act, 1964, and Rule 43-G (7) of the Rules. Section 3 provides:

'Chief controlling authority in revenue matters:-- The State Government shall be the chief controlling authority in all matters connected with land and land revenue administration under this Act.'

Section 8 provides:--

'Deputy Commissioner:-- (1) The State Government shall by notification appoint for each district a Deputy Commissioner, who shall be subordinate to the Divisional Commissioner.

(2) The Deputy Commissioner shall in his district exercise all the powers and discharge all the duties conferred and imposed on him under the Act or under any law for the time being in force. He may also exercise such powers and discharge such duties as are conferred and imposed on an Assistant Commissioner under this Act or under any other law for the time being in force, and in all matters not specially provided for by law, he shall act according to the instructions of the State Government.'

Rule 43-G (7) provides:--

'Grant of Lands under the preceding rules shall be subject to the following conditions:--

XX XX XX

xx xx xx

(7) the grant is liable to be terminated and the land resumed if any of the aforesaid conditions is not fulfilled, and on such resumption the land shall vest in Government free from all encumbrance :

Provided that no land shall be resumed under this clause except after giving an opportunity to the grantee or his successor in interest to show cause why the grant should not be terminated and the land resumed.'

6. It may be relevant to refer to Rule 43-1 of the Rules. The said rule confers power to cancel a grant on the authority which granted it, where the grant has been obtained by making false or fraudulent representations. Under the said rule, the authority which granted the land has no power to cancel it on the ground that the grantee has contravened the terms of the grant.

7. Rule 43-G (7) simply states that the grant is liable to be terminated and the land resumed if any of the conditions of the grant is not fulfilled. It does not specify the authority empowered to cancel the grant. In these circumstances, whether it would be competent for the deputy Commissioner to terminate the grant and resume the land to Government is the only question for decision.

The power of the Deputy Commissioner is located under Section 8 of the Karnataka Land Revenue Act. He could in his district exercise all the powers and discharge all the duties conferred and imposed on him under the Land Revenue Act or under any law for the time being in force. Obviously, there is no specific provision in the Land Revenue Act conferring power on him, to cancel any grant either made by him or any other authority. There is no other law by which such power is conferred upon him. The Deputy Commissioner may also exercise such powers and discharge such duties as are conferred and imposed on Assistant Commissioner under the Land Revenue Act. But the power to resume land for the contravention of the terms of any grant has not been given by any law to the Assistant Commissioner. Therefore, there is no question of the Deputy Commissioner exercising the power of the Assistant Commissioner. In all other matters which are not specially provided for by law, Deputy Commissioner shall act according to the instructions of the State Government. But so far as the grant of land and its resumption are concerned, it cannot be said that they are matters not specially provided for by law. They are regulated by the provisions of the Land Grant Rules. Therefore, the Deputy Commissioner on the said matters could not have acted at the instructions of the Government. Apart from that, it is not the case of the respondents that the Deputy Commissioner has (sic) terminated the grant and resumed the land at the instruction of the Government. It seems to me, therefore, that the impugned order made by the Deputy Commissioner must be held to be without authority of law.

8. The view taken by the Government that in the absence of an authority specified under Rule 43-G (7), the Deputy Commissioner shall be held to have power to resume the land, cannot be sustained. Under the Rules, the Deputy Commissioner cannot exercise power which is not conferred upon him. He has no inherent power to regulate the land grant. He is not a chief controlling authority in matters relating to Government land. Under Section 3, it is the State Government which shall be the chief controlling authority in all matters connected with land and land revenue administration. Therefore, the Deputy Commissioner cannot be held to have any implied power in matters pertaining to land and land revenue administration. He cannot also be considered as an Agent of the Government while performing his functions under the Act. The same was the view taken by the Bombay High Court in State of Bombay v. Chhaganlal Gangaram Lavar, : AIR1955Bom1 (FB) wherein it was observed at p. 1095 :

'...... Now it is wrong to Introduce the principles of agency when considering the various functions to be discharged by officers under the Land Revenue Code. These functions ere not discharged by these officers as agent of Government. These functions are discharged by them as officers upon whom certain obligations are imposed by statute and certain discretion is vested by statute. Therefore, in exercising these functions, they are exercising statutory duties and not duties as agents for Government. To talk of agent and principal is, in our opinion, again introducing principles well understood in the law of contract which have no application whatsoever when we are dealing with statutory rights end obligations.'

With respect, I entirely agree with the above observation.

9. In this context, it may not be out of place to refer to Karnataka Land Grant Rules, 1969, in which there is a special provision conferring power to resume land on an authority which granted the land in all matters where the grant has been obtained by making false or fraudulent representations, or for the contravention of the terms of the grant. Under the said Rule, the authority which granted the land would be competent to resume it even for the contravention of the terms of the grant. But, there was no similar rule when the Deputy Commissioner made the order which is impugned in the present case. It must, therefore, follow that the Deputy Commissioner then had no power to terminate the grant and resume the land.

10. In the result, and for the reasons stated above, this petition is allowed and the orders impugned are quashed.

11. In the circumstances, no order as to costs.

12. Petition allowed.


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