M. Shivappa vs State of Karnataka and Others

In these petitions under Art. 220 of the Constitution, the petitioners have challenged the notices/eviction order dated 20.7.1977 issued by the Tahsildar, Arkalgud (Ext. C, C-1 to C-16).

The petitioners claim to be the owners, occupiers and cultivators of certain agricultural lands detailed in their respective petitions. Their case is that they have purchased the lands from the previous owners for valuable consideration and they are in their lawful occupation as owners thereof. In these circumstances, the petitioners urge that the action taken by the Tahsildar calling upon them to quit and deliver possession of their lands is unauthorised.

In the notices, which are similarly worded, the Tahsildar has not set out all the facts and circumstances, the nature and history of the lands justifying his action. But from the very brief statement made in the notices, the Tahsildar appears to hold (1) that the lands were inam lands attached to the village offices the tenure of which has been abolished and has vested in the State Government and (2) that the alienations made by the holders of village offices were in contravention of S. 5(3) of the Karnataka Village Offices Abolition Act of 1961 (hereinafter referred to as ''the Act''). On the above basis, the Tahsildar has called upon the petitioners to quit and deliver vacant possession of the lands within 7 days of the receipt of the notices. But in the view, I propose to take, it is unnecessary to examine the rival claims of the parties to the lands.

On 24.12.1975, the Governor of Karnataka by virtue of the powers conferred by clause (1) of Art. 213 of the Constitution, promulgated the Karnataka Village Offices Abolition (Amendment) Ordinance of 1975 (Karnataka Ordinance No. 31 of 1975) (hereinafter referred to as the 1975 Ordinance,) effecting certain amendments to the Act. For reasons that are not necessary to notice for purposes of these cases, the said Ordinance was not replaced by an Act of the Legislature and therefore that Ordinance lapsed on the expiry of the time stipulated by the Constitution. The impugned notices appear to have been issued by the Tahsildar having regard to the provisions made in the 1975 Ordinance.

On 3/6/1978, the Governor of Karnataka promulgated another Ordinance called the Karnataka Village Offices Abolition, (Amendment) Ordinance 1978 (Karnataka Ordinance No. 7 of 1978) (hereinafter referred to as ''the 1978 Ordinance'') effecting various amendments to the Act giving retrospective effect from 24.12.1975 on which day the 1975 Ordinance was promulgated but which lapsed subsequently. The 1978 Ordinance has been replaced by the Karnataka, Village Offices Abolition. (Amendment) Act of 1973) (Karnataka Act No. 13 of 1978) (hereinafter referred to as ''the 1978 Act''). Sub-section (2) of S. 1 of the 1978 Act had given retrospective effect to Sections 2, 3 & 7A in Section 4 of that Act from 24.12.1975 on which day the 1975 Ordinance was promulgated by the Governor S. 7(1) of the Act as it stood prior to its amendment by the 1978 Act that is material for our purpose reads thus:

"7. Eviction of unauthorised holders etc: (1) Where any land resumed under clause (3) of section 4 is in the possession of unauthorised holder, such unauthorised holder shall be summarily evicted therefrom and the land shall be taken possession of by the Deputy Commissioner in accordance with law:

Provided that no such summary eviction shad be made except after giving the person affected a reasonable opportunity of making representation.

(2) Any order of eviction passed under sub-section (1) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by the Deputy Commissioner in pursuance of the power conferred by sub-section (1)."

The rest of the provisions of Section 7 are omitted being unnecessary for the purpose of these cases.

Shri S. Shivaram, learned Counsel for the petitioners, contended that the power to evict persons in unauthorised occupation of the lands has to be exercised by the Deputy Commissioner of the District after providing an opportunity to make representations to those that are in occupation of the lands and the notices issued by the Tahsildar in contravention of S. 7 of the Act are invalid.

Learned counsel for the respondents contended that the impugned notices should be treated as notices issued by the Deputy Commissioner under Sec. 7 of the Act and are valid.

S. 7 of the Act as it stood prior to its amendment by the 1978 Act or as it stands by virtue of the amendment made by the 1978 Act, has exclusively conferred the power of evicting persons in unauthorised occupation of lands on the Deputy Commissioner. The word ''Deputy Commissioner'' has been defined in S. 2(d) of the Act. According to this Section it is open to the State Government to appoint any officer to perform the powers end functions of a Deputy Commissioner for any area and in the absence of such an appointment, it means the Deputy Commissioner of the District. It is not shown before me that on the day the impugned notices were issued by the Tahsildar, he had been appointed as the Deputy Commissioner under the Act. The Act or any other Act has not empowered the delegation of the power conferred on the Deputy Commissioner to any other officer. When the Act has exclusively conferred the power of eviction on an officer specially appointed by the State Government as a Deputy Commissioner or on the Deputy Commissioner of the District that power can be exercised only by the said officers and not by any other subordinate officer. The reason for the Legislature conferring that power exclusively on the Deputy Commissioner, is not a matter with which the Courts are concerned. But one thing that is clear is, that the Legislature in its wisdom has conferred that power only on an Officer specially appointed by the State Govt. or on the Deputy Commissioner of the District and that being so, it is only those officers that can exercise that power and not any other subordinate officer. Any inconvenience or difficulty, the authorised officers may face in exercising that power is not a matter for the Courts to solve. In this view, I hold that the Tahsildar had no jurisdiction and power to issue the impugned notices.

The assertion of the petitioners that the impugned notices/eviction orders were made by the Tahsildar, without issuing them any show cause notices and an opportunity to state their case, is not denied by the respondents. Apart from this, the impugned notices themselves abundantly bear the said assertion of the petitioners

S. 7 as it originally stood directed the authority to effect evictions in accordance with the provisions of the Land Revenue Act, according to which also a show cause notice, consideration of the same and an order thereto were necessary (vide S. 94 of the K.L.R. Act). The proviso tosub-section (1) of S. 7 which was given retrospective effect from 24.12.1975 by the 1978 Ordinance, but not so by the 1978 Act, that replaced it, declares that no order for eviction against an unauthorised holder or occupier of the land shall be made by the authority without giving the person concerned a reasonable opportunity of making his representations. According to this proviso, the authority before enforcing the summary eviction is required to issue a show cause notice against any person who is believed to be the unauthorised holder or occupies of the lands resumed to Government, consider his representations, make an order for summary eviction and then enforce the same against such persons. All these requirements made in the proviso are in accordance with one of the basic principles of natural justice i.e. audi alteram partem. A person even if he is in unauthorised occupation cannot be evicted without complying with the above requirements of the proviso which being couched in negative terms, has to be construed as ''a mandatory provision,'' As the impugned notices are in contravention of S. 7 of the Act prior to its amendment by the 1978 Ordinance and the 1978 Act and the Proviso to Sub-section (1) of Sec. 7 of the Act, as it stands at present and the principles of natural justice, they are liable to be quashed on that ground also.

In the light of my above discussion, I quash the impugned notices issued by the Tahsildar. But this does not prevent the Deputy Commissioner of the District or the officer authorised by Government to initiate such proceedings are permissible under the Act and complete the same in accordance with law and in the light of the observations made in this order.

Rule issued is made absolute.

In the circumstances of the case, I direct the parties to bear their own costs.