ORDER
1. These writ petitions are filed with a prayer to issue a writ of mandamus directing the respondents to consider the petitioner’s application for regularisation of unauthorised occupancy of three items of lands.
2. I heard the learned Counsel for the petitioner, Sri Kiran Gangannavar appearing along with Sri Madanmohan M. Khannur. The respondents though served with notices had remained absent. Therefore, the learned High Court Government Pleader, Sri S.S. Guttal, is directed to take notice for the said respondents. I also heard him.
3. The brief facts of the case are as hereunder:
That the petitioner was at in respect of 4 acres 9 guntas in S. No. 220, 37 guntas in S. No. 276 and 1 acre 2 guntas in S. No. 277 of Mishrikote Village, Kalaghatagi Taluk; that he being an illiterate, out of ignorance had not applied for grant of occupancy right before the jurisdictional Land Tribunal. However, even to this date, he is an occupant of the said extents of land and that therefore, the occupancy of the petitioner in respect of the said extents of land is unauthorised and it is for that reason he had filed an application before the respondent 2-Deputy Commissioner, praying for regularisation of his unauthorised occupancy.
4. The learned Counsel for the petitioner, Sri Gangannavar, urged before me that even in filing the application as at Annexure-B to the writ petition before the Deputy Commissioner, it is clear that he had not filed the same before the proper authority as contemplated under Section 94A of the Land Revenue Act, for the same came to be filed before the Deputy Commissioner instead of before the Tahsildar. He had drawn
my attention to the said Annexure-B, wherein the LTM had been affixed by the petitioner. It is also argued by him that when such an application came to be filed before the Deputy Commissioner, it was incumbent for the said authority to place the application before the proper authority for the purpose of consideration. Therefore, he prayed that writ of mandamus be directed to the authority to consider the application as at Annexure-B to the writ petition for the purpose of regularisation of unauthorised occupancy of the above said extents of land.
5. The learned Government Pleader appearing for the respondents vehemently opposed the prayer in the writ petitions. It is his submission that if at all the petitioner was an unauthorised occupant, he had to file an application for regularisation of unauthorised occupancy before the jurisdictional Tahsildar and in the instant case in hand, admittedly, for consideration of such an application the same was not filed before the proper authority since it was filed before the Deputy Commissioner, respondent 2, and therefore, according to him, consideration of such an application for regularisation of the unauthorised occupancy of the petitioner by the authority did not arise at all. It is also his submission that when the petitioner had not applied for grant of occupancy right before the Land Tribunal well in time, it is not available for the petitioner now in turn to file an application for regularisation of occupancy right before the Revenue Authority. Therefore, he submitted that there is no merit in the instant writ petitions and that the same has to be dismissed.
6. It is true that the application as at Annexure-B to the writ petitions was not filed before the Tahsildar as contemplated under Rule 108 of the Land Revenue Rules read with Section 94A of the Land Revenue Act. It is argued by the learned Government Pleader that the petitioner cannot be treated as an unauthorised occupant. Admittedly, the petitioner continued to stay on the lands he was once cultivating without there being any occupancy right granted to him under Section 48A of the Land Reforms Act, and therefore, it is obvious that he has no right to continue to stay in the lands. It is contended by the petitioner that he was a cultivator of the subject lands for over 40 years and that he had not filed the Form No. 7 for grant of occupancy right due to his ignorance. As we see Annexure-B his application for regularisation, he had affixed his LTM. It is quite possible in such a circumstances that he might not have applied for grant of occupancy right before the Land Tribunal as contemplated under Section 48A of the Land Reforms Act. Nevertheless, on perusal of Annexure-B, it is found out that his father had filed Form No. 11 instead of Form No. 7. In the said circumstances, it appears to me that occupancy of the petitioner on the subject land has to be construed in law as unauthorised, for the petitioner continued to stay on the tenanted lands vested in State. The learned Government Pleader has not pointed out any other provision of law to treat the petitioner other than that.
7. As pointed out by the learned Government Pleader the petitioner had not filed any application for regularisation of unauthorised occu-
pancy before the jurisdictional Tahsildar as contemplated under Rule 108 of the Karnataka Land Revenue Rules even if he has to be treated as unauthorised occupant. But it cannot be disputed that such an application was not filed before an Authority, for Annexure-B came to be filed before the respondent 2-Deputy Commissioner. It appears to me that in the facts and circumstances, the application of the petitioner would have naturally been forward to the jurisdictional Tahsildar by the respondent 2-Deputy Commissioner, for the application in question was filed by the petitioner for a specific purpose of regularisation of his unauthorised occupancy of lands as set out therein in the application.
8. If we advert to Section 94A of the Land Revenue Act, it is clear that an application to get unauthorised occupation regularised, an application thereto has to be filed-on or before six months from 20-3-1991, the day on which the said section came to be added to by way of amendment of the Act. If we see Annexure-B, it is clear that the said application was filed on 31-7-1991 and if that is so, the said application is filed by the petitioner well in time.
9. In that view of the matter, in my considered view, one cannot take the Rule hard and fast as if iron clad to deny the statutory benefit that is available to the beneficiaries thereunder. Therefore I feel that the instant writ petition has to be allowed and that there shall be a mandamus to the respondent 2 to place the petition dated 31-7-1991 as at Annexure-B to the writ petition to the jurisdictional Tahsildar for the limited purpose of consideration of the same. Therefore, I pass the following:
ORDER
(i) The respondent 2-Deputy Commissioner is hereby directed to place the petition of the petitioner as at Annexure-B to the writ petition before the jurisdictional Tahsildar, Kalaghatagi, within 3 months from the date of communication of this order.
(ii) The respondent 3-Tahsildar being the Secretary of the Committee for regularisation of unauthorised occupation under Section 94A of the Land Revenue Act is also directed to place the said application of the petitioner before the said Committee on priority basis.
However, it is made clear that the Authorities are at liberty to decide the claim of the petitioner strictly on merits not being influenced in any way by any of the observations herein made either in favour or against the petitioner.
The writ petition therefore succeeds and accordingly allowed. No costs.
Sri S.S. Guttal, learned Government Pleader is permitted to file memo of appearance within three weeks on behalf of the respondents.