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Judgment
Rama Jois, J.—In this writ petition, arising under the provisions of the Karnataka Land Reforms Act, 1961, (the Act'' for short), the following question of law arises for consideration:
''Whether the Tahsildar, holding an enquiry u/s 47 read with Section 48B of the Karnataka Land Reforms Act (the Act for short) for ascertaining the value of a well or other structures of permanent nature constructed by the landlord, on a land in respect of which occupancy right is granted in favour of an individual u/s 48-A of the Act, is under a duty to hold an enquiry after due notice to the parties and recording evidence regarding the value of the well or other structures ?
The facts and circumstances of the case, in which the above question arises for consideration, are as follow: The petitioner was a tenant lawfully cultivating 7 acres of land together with 1 acre 2 guntas of pot Kharab, in Chikerur village in Hirekerur taluka, Dharwad District. On 16-8-1974 he filed an application before the Land Tribunal, Hirekerur, in Form No. 7 read with Section 48-A of the Act claiming occupancy right in respect of the above land. The Tribunal by its order dated 11-5-1977 granted the occupancy right. Thereafter, the petitioner remitted the premium amount of Rs. 3,604-00 payable to the erstwhile owner as determined u/s 48-B read with Section 53 of the Act, The Certificate of Registration was also thereupon granted in favour of the petitioner in respect of the above lands. In all the revenue records, the name of the petitioner has been entered as the ''owner''.
Some time later, it appears that the 4th respondent-owner, made an application vide Annexure-A before the Tahsildar, Hirekerur, to the effect that the compensation given to him was meagre and therefore it should be enhanced. Pursuant to the said application, the Tahsildar appears to have asked the Assistant Executive Engineer, Hirekerur, to assess the value of the well. The Assistant Executive Engineer submitted his report, copy of which is produced as Annexure-B to the petition. It reads :
"Valuation of well situated in the land of Sy. No. 275 of Chikkerur in Hirekerur Taluka.
Size 35 m (average) x 30 m (average) 2.25 m (average)
Excavation in Soil Shady Soil-Sand Soft and average murms including stacking the materials as directed up to a distance of 30 m and lift of 2, 23 m 0 to 1, 5 m lift.
35 x 30 x 1.5 : 1575 car at 3.50 5,512-50 1.50 m to 2.25 m 35 x 30 x 0.75 : 787.50 at 4.10 3,328-75 -------- 8,741-25 ---------
Note 1. Valuation has worked out presuming that the well was constructed during 1977 -78.
The rates adopted are as per schedule of rates 1977-78.
Sd/- Asst. Executive Engineer,"
On the basis of the said valuation, the Tahsildar made the order dated 2-11-1982. It reads :
Pursuant to the above order, a communication was given by the Tahsildar to the petitioner on 3-3-1983. It reads ;
From the above documents it is clear that the value of the well was assessed at Rs. 8,741-25 and the said amount was paid to the fourth respondent by the Tahsildar. When the petitioner applied for loan for the purpose of digging a borewell, he came to know that the loan would not be sanctioned to him as the land in question had been encumbered to the extent of Rs. 8,741-25, assessed and paid in favour of fourth respondent. At this stage, the petitioner has presented this petition questioning the legality of the Assessment and the action taken by the Tahsildar to encumber his property to the extent of the above amount.
The contention of the petitioner is that the compensation of 3,604-00 determined and awarded to the fourth respondent, which was remitted by the petitioner on 23-7-1977, was final and there was no question of enhancing the said compensation. According to the petitioner, there was also no well in respect of which compensation could be awarded.
In view of these facts, the question set out first, arises for consideration. In order to find out the answer to the above question it is necessary to refer to the relevant provisions of the Act and the Rules framed thereunder. Section 47(3) of the Act, reads:
"47. AMOUNT PAYABLE :
XXX XXX XXX (3) Where there are wells or other structures of a permanent nature on the land constructed by the landlord the value thereof calculated in the prescribed manner shall also be payable."
Section 48-B of the Act provides that the Tahsildar has to determine, inter alia, the compensation payable u/s 47 of the Act. Section 112 of the Act prescribes the duties of the Tahsildar and the Tribunal. According to Section 112(A)(1) of the Act, it is the duty of the Tahsildar to determine the amount payable u/s 47 of the Act, and also to prepare a statement of distribution of the amount u/s 48-B of the Act in cases where there are more than one claimant for compensation. Rule 20 of the Karnataka Land Reforms Rules provides as to the particulars which should be incorporated in the statement of valuation prepared u/s 48-B of the Act. It reads :
"20. OTHER PARTICULARS TO BE FURNISHED u/s 48-B : The statement referred to in Sub-section (1) of Section 48-B shall contain the following other particulars, namely :
(i) Class of land i.e. whether ''A'', ''B'', ''C'' or ''D'' mentioned in the Schedule to the Act ;
(ii) Whether there are wells, trees or structures of permanent nature on the lands :
(iii) Details of the encumbrances and litigation, if any, in respect of the land ;
(iv) Name of legal heir in case of death of claimant.
(2) The Form of application under 48-B shall be in Form 9-C."
Rule 39 of the Rules prescribe the procedure to be followed by the Revenue Officers for enquiries. It reads :
"39. PROCEDURE TO BE FOLLOWED BY REVENUE OFFICERS FOR ENQUIRIES : Save as otherwise expressly provided in these rules, the Deputy Commissioner or other officers of the Revenue Department shall for the purpose of any enquiry or proceedings under the Act follow the procedure specified for a formal enquiry u/s 33 of the Karnataka Land Revenue Act, 1964."
In view of the above Rule, a Tahsildar holding an enquiry u/s 48-B read with Section 112(A)(1) of the Act, has to follow the procedure prescribed u/s 33 of the Land Revenue Act reads :
"Formal inquiry (1) In any formal inquiry prescribed for the determination of any question by or under this Act, or any law for the time being in force, the evidence shall be taken down in full, in writing in Kannada or English or in any such language as may be prescribed by the State Government for use in the district or part of the district, by the officer conducting the inquiry and shall be signed by him.
(2) Where on account of physical disability or other reason to be recorded, the officer conducting the inquiry does not take down the evidence himself, he shall cause such evidence to be taken down in full in writing in his presence and hearing and under his personal superintendence and direction and such record shall be signed by him.
(3) Every decision or order after a formal inquiry shall contains full statement of the grounds on which it is made or passed and shall be written and signed by the officer making the decision or passing the order, or from the dictation of such officer, in which case, a certificate to that effect shall be made signed by such officer in his own hand."
The procedure to be followed in a formal enquiry is prescribed u/s 36 of the Land Revenue Act. It reads :
"Hearing and decision to be in public and after notice --
(1) Every hearing whether in a formal or summary inquiry, shall be in public and the parties or their recognised agents shall have due notice to attend. Every order passed after hearing shall be signed and pronounced in open Court on a day of which due notice shall be given to the parties or their recognised agents :
Provided that when neither party nor his recognised agent is present in Court when the order is pronounced, the substance of the order containing the decision shall be communicated by post to such party or his recognised agent.
(2) If any party to a case or proceeding; whether in a formal or summary inquiry does not appear on the date fixed for Hearing, after due service of a notice or summons on him, the Case or proceeding may be heard and determined in his absence, or may be dismissed for default, as the case may be.
(3) The party against whom any order is passed under Subsection (2) may apply within thirty days from the date of such order or knowledge of the order in case the notice or summons was not duly served, to have it set aside on the ground that he was prevented by any sufficient cause from appearing at the. hearing and the Revenue Officer may, after a notice to the opposite party who was present on the date on which such order was passed and after making such inquiry as he considers necessary, set aside the order passed and decide the case on merits."
In view: of these provisions and also having regard to the principles of natural justice, it is obligatory for the Tahsildar to determine the compensation payable to the erstwhile land owner u/s 47 read with Section 48-B of the Act in a regular enquiry at which evidence is recorded and this has to be done after due notice to the erstwhile land owner as well as to the person in whose favour occupancy right has been granted.
For the aforesaid reasons, I answer the question set out first, as follows :
"A Tahsildar, holding an enquiry for ascertaining the value of a well or other structures of permanent nature constructed by the landlord on a land in respect of which occupancy right is granted in favour of an individual, under Sub-section (3) of Section 47 read with 48 of the Karnataka Land Reforms Act, 1961, is under a duty to hold the enquiry as prescribed in Section 36 of the Karnataka Land Revenue Act, 1964 after due notice to the parties concerned and recording evidence regarding the value of the well or other structures.
Having regard to Rule 20 of the Karnataka Land Re- forms Rules, the valuation in respect of the well must have been included in the earlier statement prepared by the Tahsildar while assessing the compensation u/s 47 read with Section 48-B of the Act, Even assuming that any mistake had been committed by the Tahsildar, as a result of which the well existing on the land had not been valued, the same could have been done by the Tahsildar only after due notice to the petitioner. As such a procedure has not been followed and a decision has been taken without notice to the petitioner, the same cannot be enforced against the petitioner.
Learned Counsel for the petitioner submitted that actually there was no well in the land and the compensation payable in respect of all items had already been included in the statement prepared by the Tahsildar earlier u/s 48-B of the Act read with Rule 20 of the Rules and therefore there was no justification for granting compensation in respect of the well. He further submitted that the Tahsildar has no jurisdiction to review the statement prepared under Rule 20 of the Rules and the orders made pursuant to the said statement and the only course open to the fourth respondent was to prefer an appeal against that order and therefore the earlier order of the Tahsildar should be regarded as final. In my opinion, this is a matter, which the petitioner is at liberty to place before the Tahsildar as and when a notice is issued to the petitioner proposing to revise the amount of compensation already fixed and remitted by the petitioner.
Learned Counsel appearing for the State submitted that, if in the opinion of this Court the order made by the Tahsildar is without jurisdiction the Government should have the liberty of recovering the amount of Rs. 8,741-25 from the landlord to whom the Tahsildar had already paid the amount. If the amount paid is in excess of the assessment order, it is for the revenue authorities to decide as to what action should be taken against the Tahsildar and what steps should be taken for recovering the amount, from the 4th respondent.
In the result, I make the following order :
(i) The Writ Petition is allowed.
(ii) A direction shall issue to the respondents not to encumber the land in respect of which occupancy right has already been granted by the Land Tribunal in favour of the petitioner with the amount of compensation awarded to Respondent-4 by the order of the Tahsildar dated 2-11-1982 (Annexure-C).
(iii) The Tahsildar shall, however, be at liberty to consider the claim of the fourth respondent in accordance with Jaw in the light of this order after due notice to the petitioner, and the petitioner shall be at liberty to contend that he had no jurisdiction to do so, and also to oppose the claim of Respondent-4 on merits.