Gopala Gowda, J.

The correctness of the order dated 17/8/2004 passed by the learned single Judge rejecting the writ petition, is questioned in this appeal by the State of Karnataka and the Divisional Commissioner.

2. The brief facts of the case are, by order dated 19/8/1961 the Government leased an extent of 35 acres of land in Sy.Nos.39 and 40 of Addada village in Koppa Taluk in favour of deceased K.S.Ramadas the lessee for coffee cultivation with certain terms and conditions. On 28/4/1975 Saguvali Chit was issued to put him in possession of the land in respect of which leasehold rights was granted in favour of deceased K. S. Ramdas. Since coffee cultivation was not made within the stipulated period of five years, on 24/11/1997 as per the terms and condition of the grant order the lease of land was terminated and it was ordered to resume the land and to reserve the same for public purpose. The legal representatives of the grantee had challenged the termination order before the Karnataka Appellate Tribunal in Appeal No.5/98. The Tribunal allowed the appeal and quashed the order terminating lease passed by the Divisional Commissioner. The appellants herein challenged the said order in W.P.No.38212/2000. The learned single Judge rejected the writ petition and the same is questioned in this appeal.

3. Learned Addl. Government Advocate Mr. A.G. Shivanna, has rightly submitted that even though the land was leased in the year 1961, since Saguvali Chit was issued in the year 1975, the grantee should have raised coffee cultivation within five years, i.e, before 1980, Since coffee was not cultivated within the stipulated period, rightly order was passed cancelling the lease of the land. He further submitted that the Tribunal committed an error in setting aside the termination order and even the learned single Judge committed the same error. Another ground urged is that as per Rule 43-H of the Mysore Land Revenue (Amendment) Rules, 1960 the lease should have been confirmed within five years. Since the grantee did not obtain license from the Indian Coffee Board in compliance with the condition of the grant order, there is no confirmation of lease of land and therefore the cancellation is legal and valid. Learned AGA relied upon the decision of the Apex Court Guntaiah & Ors. vs Hamamma & Ors, (ILR 2005 Kar (SC) 4265).

4. Learned counsel Mr.V. Srinivasan Raghavan, for respondents 2 and 3 has sought to justify the orders of the Tribunal and the learned single Judge placing reliance upon the decision of the Apex Court Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim (1997) 6 SCC 71) and contended that power is not exercised within reasonable period for terminating the lease. The counsel also relied upon the Full Bench decision of this Court in Chikka Kullegowda Vs. State of Karnataka (1998 (1) Kar. L.J. 142 ) and contended that the conditions stipulated under Rule 43-G of the Rules are inapplicable to the case on hand. The learned counsel also relied upon the decision of the Apex Court Commissioner of Wealth Tax Vs. Suresh Seth (1981 ITR Vol. 129 p. 328) wherein “continuing wrong” is explained to rebut the submission of the learned AGA on behalf of the appellants that exercise of power by second appellant is legal and valid as the contravention of the condition stipulated to cultivate the granted land by planting coffee plantations is continuous one and therefore there is no delay or latches on the part of the second appellant in exercising his power and cancelling the grant order of lease of the land. Lastly, it is contended that 2nd appellant Divisional Commissioner has no power to terminate the grant order of lease of land as the lease of land was granted by the Deputy Commissioner. Therefore, he has conten ded that there is no merit in the appeal and requested to dismiss the same as the order of learned Single Judge in affirming the order of KAT is legal and valid in law.

5. The facts as such are not in dispute. The gra