Sankappa Bhandari vs State of Karnataka and Others

Balakrishna, J.-The subject matter of the writ petition are the kumki lands in respect of the landed property of the petitioner Sy. Nos. 107/1 to 107/7 of Ramakunja village, Puttur Taluk. The petitioner claims to be the mulgenidar of these kadim lands as claimed by him. Annexure-E is produced in support of the assertion of the petitioner that the classification of the lands is Kadim Warg. The petitioner is aggrieved by the order of the Tribunal which rejected the contention of the petitioner.

Apart from the merits of the case, the point for consideration is whether there was a publication of notice inviting objections in the village for reservation of the land in question as common wood land. That there should be sufficient publication of the notice is not disputed; but the question is whether the notice stated to have been published satisfies the requirements of law.

On the first occasion, it appears that there was a certification by the Shanbhogue on the rear portion of the notice that the notice had been published on 9-6-1959 whereas according to the person who published the notice, the notice is supposed to have been publicised on 8-9-1959. The Assistant Commissioner, Puttur, having discovered the infirmity, ordered fresh publication of notice. Thereafter, the village officer who was given the responsibility of publication of the notice certified that in respect of the notice published no objections were received and accordingly submitted a report on 6-5-1962 to the Tahsildar. However, in the said certificate, the village officer had only subscribed his signature; but he had not mentioned the date. But the Revenue Inspector had submitted a report wherein he had mentioned the date of publication of the notice. When this was brought to the notice of the Special Deputy Commissioner, Mangalore, in appeal that this aspect had been overlooked and that there was no sufficient notice in the eye of law, the Deputy Commissioner held that such a notice satisfies the requirement of law even though the certification of the village officer does not contain the date.

The point for consideration is whether the notice is defective and whether there was proper publication on a particular date is beyond doubt.

According to the material on record, the Revenue Inspector is stated to have published the notice in the village and submitted his report to the competent officer. According to procedure, the publication of a valid notice has to be certified by the village officer. It is not in dispute that the village officer had certified that a notice was published by the Revenue Inspector, but what the village officer did was that he signed the certificate without mentioning the date knowingly or unknowingly. Non-mention of the date casts some reasonable doubt on the question whether there was a publication on a particular date for the reason that the certification itself is incomplete. The purpose of the notice is to invite objections from aggrieved persons. That such an opportunity was afforded has to be strictly construed and it is not the case of the State that notice is not required to be published at all before action is taken for reservation of land for common wood land. The petitioner insists that kumki privilege which is recognised by the Supreme Court in the decision rendered in State of Mysore v K.C. Adiga, AIR 1976 SC 853, cannot be ignored and that the privilege is virtually equated to a right to property. It would be relevant to reproduce a portion of the said order passed by the Supreme Court. In para 23, the Supreme Court has observed thus:

"Although styled as ''privileges'', kumki rights are recognised by these statutory Rules and the Standing Orders aforesaid. They are property rights notwithstanding the fact that their scope is restricted and there exercise is subject to these statutory Rules. Therefore, these rights could be curtailed, abridged or taken away only by law and not by an executive fiat".

Thus, when the privileges attached to kadim land cannot be tinkered with so casually and without being preceded by a notice as contemplated by a procedural law, it is difficult to sustain the finding of the Deputy Commissioner which has been accepted by the Tribunal that even though the certification does not bear the date, notice is deemed to have been published properly. I do not agree with the finding and since I am not satisfied with the truth or otherwise of publication of notice as required by law, it strikes at the very root of the case and the order passed by the Assistant Commissioner which is subsequently confirmed by the Deputy Commissioner and the Tribunal cannot stand legal scrutiny, however pains takingly written the order might be, on merits. The requirements of law have to be complied with. Issue of a notice in accordance with law is a necessary concomitant of rule of law because noncompliance results in denial of procedural fairness and thereby conflicts with principles of natural justice. An order without notice in accordance with law is no order at all.

For the above reasons, I allow this writ petition and quash the impugned orders. The case is remitted back to the Assistant Commissioner with a direction to cause the publication of fresh notice in accordance with law and afford a reasonable opportunity of hearing to the petitioner with liberty to adduce such evidence as he may deem fit and dispose of the case in accordance with law expeditiously.

Writ petition allowed.