IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.50158/2017(KLR-RES) BETWEEN D. S. RAJARAO AGED ABOUT 76 YEARS S/O M.S.RAMACHANDRA RAO, CHIKKASANE VILLAGE, KASABA HOBLI, DEVANAHALLI TALUK. ... PETITIONER (BY SRI RADHANANDAN B S, ADVOCATE) AND 1. THE TAHSILDAR DODDABALLAPUR DODDABALLAPUR TALUK-561 203.
2. THE ASSISTANT COMMISSIONER DODDABALLAPUR SUB-DIVISION, DEVANAHALLI TOWN-562 110.
3. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT PHODIUM BLOCK, VISHVESHWARAIAH TOWERS DR AMBEDKAR VEEDHI, BANGALORE- 560 001 ... RESPONDENTS (BY SRI T.S.MAHANTESH, AGA FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND SET ASIDE THE IMPUGNED ORDER DTD 20.05.2017 PASSED BY THE 3rd RESPONDENT ON HIS FILE IN R.P.NO.45/2014-15 VIDE ANNEXURE-H AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner herein is impugning the endorsement dated 26.2.2010 passed by the 1st respondent - Tahsildar, Doddaballapur, in No.RRT.CR.No.475/2009-10 vide Annexure-F, which is confirmed by the 2nd respondent – Assistant Commissioner by order dated 11.2.2014 in proceedings bearing No.RA.(DE):51/2010-11 vide Annexure – G and also by the 3rd respondent – Deputy Commissioner by order dated 20.5.2017 in RP.No.45/2014- 15 vide Annexure-H.
2. Brief facts leading to this writ petition are as under:
Petitioner herein is member of the joint family which was owning several items of lands in Chikkasanne village, Devanahalli Taluk, Bengaluru Rural District. Admittedly, the property in question is land bearing Sy.No.6 of Chikkasanne village, measuring to an extent of 1 acre 25 guntas, which is referred to as Government Hakkudari Thopu thereby indicating that the said land was granted to the family of the petitioner to grow trees in the said land and to utilize the usufructs there from for their use. The petitioner would state that the original order under which the right to hold Hakkudari Thopu is not available with him. However, when the partition took place in the larger family of the petitioner, right to enjoy Hakkudari Thopu is given to the share of petitioner’s father in the Partition Deed which is registered in the office of the jurisdictional Sub Registrar on 5.7.1951. With this it is clearly seen that the right of the family of petitioner’s in holding the said land is there for several decades. After Kethwari records being discontinued and Index of Land and Records of Right were introduced, Sy.No.6 is registered in Index of Land as Sarkari Hakkudari Thopu with the petitioner’s name as the person in possession and enjoyment of the same thereby clearly indicating that the said land is Government land on which there exists plantation, which is in possession and enjoyment of the petitioner’s ancestors.
3. When matter stood thus, it is stated that the petitioner approached the Tahsildar prior to 2005 seeking removal of the word ‘Sarkari Hakkudari Topu’ from RTC. Since there was no action on the part of the Tahsildar, he approached the Assistant Commissioner of Doddaballapur in RRT.No.15/2005-06 seeking removal of the said word, which is rejected by him by order dated 26.1.2005. The said order of rejection was subject matter of revision before the Deputy Commissioner Revision Petition No.134/2005-06 which initially came to be allowed thereafter, retraced by the very same authority under Section 136(3) of the Act. Against the said order the petitioner was before this Court in WP.No.2321/2007, wherein the Coordinate Bench of this Court in its order dated 22.2.2007 observed that the Tahsildar shall conduct an enquiry and thereafter, to pass appropriate orders in aforesaid RRT proceedings.
4. It is in this background the order dated 26.2.2010 was passed by the 1st respondent – Tahsildar in RRT.CR.No.475/2009-2010 in rejecting the application of the petitioner holding that the said land is Government land therefore, the name of Government cannot be removed and ownership right cannot be conferred on the petitioner by entering his claim in the column meant for owners. The said order of Tahsildar was subject matter of challenge before the 2nd respondent - Assistant Commissioner in No.RA(DE).51/2010-11 wherein the 2nd respondent in his order dated 11.2.2014 would observe that the grant which is made in favour of the petitioner’s family is for the purpose of cultivating the same, developing plantation thereon, to utilize the usufructs there from therefore, the petitioner’s family could not have any title to the said land and hence, question of considering his name to be registered in the RTC as owner, does not arise. The said order dated 11.2.2014 was subject matter of challenge before the 3rd respondent – Deputy Commissioner in Revision Petition No.45/2014-15. The 3rd respondent - Deputy Commissioner has also reiterated the reasoning given by the 2nd respondent and accordingly, dismissed the revision petition by order dated 20.5.2017, which is sought to be challenged in this writ petition.
5. Heard the learned counsel for the petitioner and learned Additional Government Advocate. Perused the orders impugned as well as the material on record. On going through the same, it is clearly seen that what is granted in favour of the petitioner’s family prior to 2005 is right to develop plantation on land bearing Sy.No.6 of Chikkasanne village and to use the proceeds from said plantation. Though the grant certificate is not produced by the petitioner and the learned Additional Government Advocate would submit that the said record is not available, this Court would observe that in similar circumstances where the right of Hakkudari Thopu was considered by this Court, it is clearly seen that the said right is only limited to the enjoyment of the usufructs grown on the land, at no point of time the Government intended to convey title to the said land in favour of grantees who were given right to develop plantation and then use the usufructs there from. In the instant case also the right of the petitioner to the land in question is similar to that. In any event, that does not give right to the authorities to unilaterally take away such land for whatever purpose they want.
6. Under similar circumstances this Court in an unreported judgment has observed that said right would continue with the grantee till such time the Government decides to utilize the said land for any public purpose and till such time, question of disturbing the possession and enjoyment of usufructs by the petitioner does not arise. In fact, as and when the Government decides to utilize the said land for any public purpose, then it is open for it to direct the petitioner to remove the trees at his cost thereafter, to surrender the land to the Government without expecting any compensation for such acquisition and also with a condition that he shall not have any objection to the Government to take away the land which was given to the family of petitioner’s for the purpose of raising plantation and take usufructs there from.
7. At this juncture it is relevant to look at the provisions of Rule 102-A of the Karnataka Land Revenue Rules, 1969, which reads as under:
“102-A. Planting of Trees by private persons on Government Lands.-(1) The Deputy Commissioner may subject to the following conditions, grant permission to any person to plant and grow trees on lands vesting in the State Government, in any village, namely.-
(i) the grantee and his successor-in-interest (hereinafter referred to as “Hakdar”) shall be entitled only to the usufruct of such trees and not to any other right over the trees or lands on which they are plainted;
(ii) fee of twenty paise per annum for every tree planted shall be paid as ground rent;
(iii) the Hakdar shall raise trees within two years from the date, the permission is granted;
(iv) the Hakdar shall not do any act which is destructive or permanently injurious to the land;
(v) the Hakdar shall not interfere with any existing or customary rights of the public or of owners of adjoining land over such land;
(vi) the permission will be liable to be cancelled for contravention of any of the above conditions and the Hakdar shall not be entitled to any amount for such cancellation;
(vii) the Hakdar shall not be entitled to any amount when such trees have to be removed for widening of roads or for other public purposes or when the land is disposed of under the Karnataka Land Grant Rules, 1969. If the trees are to be removed for any of the said purposes, the Hakdar may be allowed to remove the trees at his own cost.”
(2) In cases where trees have already been raised by any person on the lands vesting in Government prior to the coming into force of these rules, the persons concerned may apply to the Deputy Commissioner for grant of permission to collect the usufruct of such trees. If the Deputy Commissioner is satisfied that such person has raised the trees and is of the opinion that the grant of permission is not objectionable he may grant permission to such person to collect the usufruct of such trees subject to the conditions mentioned in sub-rule(1):
Provided that he ground rent in respect of such trees shall be paid from the date of their planting.
3. A register called in respect of such trees for each village shall be maintained wherein a record shall be made of the trees already existing on the land and of the permission hereafter granted to the Hakdar for raising the trees. The register shall be preserved in the Taluk Office.
4. The Register shall be checked by the Tahsildar at least once in a year.”
8. In the light of aforesaid provision, question of enlarging the right of the petitioner from that of holding the land and enjoying the usufructs there from to that of absolute ownership does not arise. Accordingly, this writ petition is disposed of distinguishing the right of the petitioner in aforesaid terms and also protecting him from any other type of dispossession from the property in question except in the manner observed in this order.
Sd/- JUDGE nd/-