IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO.13023 OF 2018 (KLR-RES-PIL) BETWEEN 1. The Gomala Samrakshana Samithi Sarmekadu Gomala Arji Village, Virajpet Represented by its President/Secretary Sri.B.G.Purushothama S/o Late B.J.Gangadhara Aged about 85 years Arji Village and Post-571218 Virajpet, South Coorg 2. Sri.B.R.Ganesh S/o Late B.P.Ramaiah Aged about 58 years Arji Village and Post 571218 Virajpet, South Coorg 3. Sri.P.L.Vittala S/o Late Chennappa Aged 55 years Arji Village and Post 571218 Virajpet, South Coorg ... Petitioners (By Sri.Aruna Shyam.M., Advocate) AND 1. The State of Karnataka Represented by its Principal Secretary Revenue Department M.S.Building Dr.B.R.Ambedkar Veedhi Bengaluru – 560001 2. The Deputy Commissioner Madikeri, Coorg District 571201 3. The Assistant Commissioner Virajpet Sub-Division Madikeri, Coorg District 571201 4. The Tahasildar Virajpet Taluk Virajpet 571218 ... Respondents (By Sri.P.B.Achappa, AGA) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order/proceedings of the respondent No.2 dated 12.6.2017 thereby reserving only 15.02 acres of land in Sy.No.315/1P1 (Sy.No.315/1 as per sketch) as gomal land under Section 71 of the Karnataka Land Revenue Act and Rule 97 of the Karnataka Land Revenue Rules, 1966 and seeking for a direction to reserve the entire extent of 89.06 acres of land in the said survey number as gomal land vide Annexure-A and etc.
This writ petition, coming on for orders, this day, Chief Justice, made the following:
ORDER Heard the learned counsel for the petitioners and the learned Additional Government Advocate appearing for the respondents.
2. By this writ petition under Article 226 of the Constitution of India, which is in the nature of a Public Interest Litigation, a prayer is made for quashing the order dated 12th June 2017 of the second respondent. By the said order, only an area of 15.12 acres of land in Sy.No.315/1 was reserved as a gomal land in exercise of powers under Section 71 of the Karnataka Land Revenue Act, 1964 (for short, ‘the said Act’).
3. Our attention is invited to the impugned order at Annexure-A. The impugned order is passed for giving effect to the order dated 17th June 2016 passed by this Court in W.P.No.38835/2015. The impugned order notes that an area of 15.12 acres should be reserved as a gomal land. The impugned order records that as total cattle is 656, about 78.72 hectares of land has to be reserved going by the test laid down in sub-rule (1) of Rule 97 of the Karnataka Land Revenue Rules, 1966 (for short, ‘the said Rules’). It is observed that only an area of 15.12 acres in Sy.No.315/1 is reserved. A conclusion is recorded that as sufficient forest area exists, the area reserved for gomal land can be reduced. A report of the Tahasildar is relied upon, in which it is recorded that 40.78 acres in Govt. Sy.No.371 and 175.25 acres in Sy.No.333/1P1 is a forest land which is available.
4. The submission of the learned counsel appearing for the petitioner is, firstly, that the entry in the forest land is not available as a matter of right. Secondly, he submitted that the directions contained in the Circular dated 20th August 2009 have not been followed.
5. The learned Additional Government Advocate relied upon the statement made in the objections in paragraph 4. It is pointed out the extent of area reserved in the same Sy.No. for different purposes. He pointed out that as adequate forest land is available in the area, reserving lesser area as a gomal land is permissible in terms of the said Rules.
6. We have given careful consideration to the submissions. Section 71 of the said Act empowers the Deputy Commissioner to set apart lands which are property of the State Government and which are not in lawful occupation of any person or persons for free pasturage for the village cattle. Section 72 of the said Act confers power to regulate the use of such pasturage.
7. Rule 97 of the said Rules is material for our consideration. Sub-rule (1) of Rule 97 provides that a Government land shall be set apart for free pasturage for the cattle of each village in such a manner that an area of 12 hectares for every hundred heads of cattle is available. The explanation to the sub-rule(1) gives an indication as to how the heads of the cattle should be calculated. Sub-rule (3) provides that if there is no grazing land available in the village or the land available falls short of the requirements prescribed by sub-rule (1), deficit may be made up by setting apart the Government land available in the adjacent village. Sub-rule (4) deals with how the Deputy Commissioner shall determine the extent of land necessary to be set apart for free pasturage.
8. In the objections, it is stated that in Sy.No.351/1, apart from reservation as a gomal land for 15 acres and 12 acres, there are other reservations for KSRTC depot, school, for disposal of municipal waste, burial grounds, etc. Such area constitutes 26.13 acres. However, it is mentioned that on the said area of 26.13 acres, there is an encroachment. It is pointed out that the encroachment to the extent of 11.04 cents has been regularized. It is further stated that 8 acres of land has been granted to one M.S. Uttappa and the remaining is reserved for free pasturage for the village cattle.
9. We must note here that there is an encroachment made by the villagers on substantial area. No effort is made by the authorities to remove the encroachments. From the impugned order, it appears that, even assuming that adequate land is not available in village, no effort is made to find out whether deficit of gomal land as required by sub-rule (1) of Rule 97 of the said Rules can be taken care of by reserving a land in the adjoining village.
10. The contesting respondent has relied upon sub- rule (2) of Rule 97 of the said Rules by holding that adequate forest land is available. However, the question whether the villagers will get an entry in the forest land for grazing of their cattle as a matter of right has not been considered. Therefore, in our view, the entire issue needs reconsideration at the hands of the Deputy Commissioner. If the Circular relied upon by the petitioner is still in force, the Deputy Commissioner will have to consider the said Circular.
11. Accordingly, we dispose of the petition by passing the following order:
(i) We direct the Deputy Commissioner, Kodagu District, Madikeri to reconsider the case for providing gomal land in addition to an area of 15.12 acres already reserved for that purpose;
(ii) The Deputy Commissioner will also consider whether encroachment on the land in the same Sy. No. can be removed and a part of the area can be made available as a gomal land;
(iii) If there is a shortfall of gomal land in the village, the Deputy Commissioner also consider the option of reserving a suitable land from the adjoining village as a gomal land;
(iv) This exercise shall be completed by the Deputy Commissioner within a period of 3 months from today;
(v) We make it clear that this exercise shall be undertaken to find out whether the additional area of over and above 15.12 acres already reserved can be reserved as a gomal land;
(vi) Needless to add that the Deputy Commissioner will also consider whether an access to the forest land is available as a matter of right to the villagers for grazing their cattle;
(vi) If the Circular relied upon by the petitioner dated 20th August 2009 is still in force, the Deputy Commissioner is bound to consider the same in accordance with law;
(vii) The Deputy Commissioner shall also take into consideration what is recorded in paragraph 30 of the order dated 17th June 2016 passed in W.P.No.38835/2015;
(viii) With the above directions, the petition is disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE Cm/-