IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.26111/2017(KLR-LG) BETWEEN SMT JYOTHI V RAI W/O VIJAYA MOHANA RAI, AGED ABOUT 45 YEARS, R/AT NEAR PATRAO HOSPITAL, DHARBE, PUTTUR-574 202 ... PETITIONER (BY SRI SMT.KAVITHA D FOR SRI TEJAS RAI K, ADVOCATES) AND 1. STATE OF KARNATAKA REPRESENTED BY SECRETARY TO REVENUE DEPARTMENT M.S.BUILDING BENGALURU-560001 2. THE UNDER SECRETARY GOVERNMENT OF KARNATAKA REVENUE DEPARTMENT - GRANTS-I M.S.BUILDING BENGALURU-560001 3. THE DEPUTY COMMISSIONER DAKSHINA KANNADA MANGALORE-575001 4. THE ASSISTANT COMMISSIONER PUTTUR SUB-DIVISION, PUTTUR, DAKSHINA KANNADA DISTRICT-574202 5. THE TAHASILDAR SULLIA TALUK, SULLIA, D.K DISTRICT-574239 ... RESPONDENTS (BY SRI B.S.BUDIHAL, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO CONSIDER THE REPRESENTATIONS DTD:2.11.2015, 21.9.2016, 11.1.2017 SUBMITTED BY THE PETITIONER WITH REGARD TO PERMANENT GRANT OF LAND IN HER NAME WHICH HAS BEEN GRANTED VIDE ORDER DTD:14.8.1958 PASSED BY THE SPECIAL OFFICER [C.C.] SOUTH KANARA DISTRICT UNDER ANNEXURE-D, E, AND H.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner herein is claiming permanent ownership to land bearing Sy.No.140A/1-A, measuring to an extent of 10 acres 89 cents situated at Mupperia village of Sullia Taluk, Dakshina Kannada District.
2. The records would indicate that under South Canara District Lease of Lands for Cashew Cultivation Rules, 1957, the aforesaid land was leased in favour of the petitioner’s father-in-law, Mr.Krishna Rai s/o M.Yellianna. Admittedly, the said lease was for a period of 30 years with certain terms and conditions attached to it, where an option is available to the lessee to seek permanent ownership to the leased land after the expiry of lease period provided. Copy of the lease agreement at Annexure-A would indicate that the petitioner’s father-in-law was the lessee and that he was in possession and cultivation of the land in question from 14.8.1958 till his death on 12.1.2006 and subsequently, the land in question is under the cultivation and enjoyment of the mother-in-law of petitioner, herself and the family members.
3. It is stated that the petitioner’s father-in-law has complied with all the terms and conditions of the lease and as such, during his lifetime he was entitled to seek permanent ownership over the land in question. However, he having died intestate and without making any application seeking permanent ownership, his wife had made an application and during her lifetime she had executed a Will dated 12.1.2006 in favour of the petitioner with regard to the land in question. Therefore, after her death, petitioner is entitled to seek permanent ownership of said land and she is in possession and cultivation of the same. The petitioner would further state that she made several representations to the respondents to consider regarding permanent ownership in her favour with reference to the land in question. It is her grievance that the said representations are not considered till today, hence, she has filed the present writ petition.
4. When this mater is taken up for consideration, learned counsel for the petitioner would bring to the notice of this Court that under similar circumstances this Court has disposed of WP.No.23608/2018 on 22.2.2019 (Mr.Gunapal Athikari –vs- State of Karnataka & ors.,) and the said order would squarely apply to the facts of this Case.
5. Heard the learned counsel for the petitioner and the learned Additional Government Advocate. Perused the material on record as well as the order passed in writ petition, referred to supra. The same would indicate that this Court has disposed of the aforesaid writ petition by relying on the order passed in WP.No.30532/2015, disposed of on 19.1.2017 (Ramanatha Shetty –vs- State of Karnataka & Another), wherein the Coordinate Bench of this Court would rely upon the Division Bench judgment rendered earlier in WA.Nos.5242/2004 c/w 5103/2004, 5331/2004 and 5046/2004, disposed of on 26.10.2017 as well as the order passed on 23.7.2012 in WP.No.23692/2012.
6. The observations made by the Division Bench in WA.No.5242/2004 and connected matters reads as under:
“8. In our considered view, on the basis of decision of Supreme Court referred to supra upon which strong reliance is rightly placed by the learned counsel for the appellants and also in view of vested right accrued upon the land in question in favour of appellants the leasehold rights were granted and the said Rules have got statutory force. The determination of market value of granted land must be on the basis of Rule-23 but not Rule-17. Rule-17 is applicable to the grant of land in favour of fresh grantees but not in favour of lessees who had acquired vested right under the Rules, 1957. Therefore, we have to hold that determination of the market value of the granted land must be reckoned which was prevalent at the time of grant of the same by lease under sub-rule (1) of Rule(iii) of 1957 Rules, this is what is referred to in Rule-23 of KLG Rules. In the absence of Rule-we also, appellants are liable to pay the value of land as fixed as on the date of grant of leasehold rights in favour of the appellants. These aspects are not considered by the learned single Judge while setting aside the order of KAT, no doubt, various other decisions of the Supreme Court are referred to by him in the impugned order which have no relevance to the fact situation as the learned Single Judge did not examine the Rules of 1957, which have got enforceable character and conferred the vested statutory rights upon the appellants in respect of the land in question and similarly placed persons. Non- consideration of the said Rules of 1957 and the terms and conditions of the grant order upon which the vested rights are conferred upon the appellants and similarly placed persons are not examined and considered by the learned Single Judge at the time of passing the impugned order. Therefore, the impugned order is liable to be set aside and the order of KAT must be revived, but fair submission is also made by the appellants counsel having regard to the potentially of the land and market value of the land, the learned counsel for the owners have submitted that they would pay 300 times the price of the land revenue assessed per acre which was prevailing as on the date of grant.
In view of the above fair submission on behalf of the appellants, there Writ Appeals are allowed. The impugned order is set aside. The Deputy Commissioner shall quantify the market value of the land in question and collect the price of the land in question from the owners and shall also issue grant certificate in their favour as expeditiously as possible, but no costs are awarded.”
7. The observations made by the learned Single Judge in WP.No.23692/2012 disposed of on 23.7.2012 reads as under:
“10. It is necessary to notice here that a submission was made by the counsel for the appellants before the Division Bench that having regard to the potentiality of the land and its market value, the appellants were prepared to pay the price at 300 times the land revenue payable on the lands in question which was prevailing as on the date of grant. Therefore, after holding that the order of the Appellate Tribunal did not call for interference and that the order passed by the learned Single Judge had to be set aside, the Division Bench referring to the submission made by the appellants directed the Deputy Commissioner to quantify the market value and collect the price of the land from the owners and thereafter issue Grant Certificate. This is the essence of the direction issued.
11. But, the Deputy Commissioner has ignored the entire reasoning assigned by the Division Bench and has merely proceeded to construe the order passed by the Division Bench as one directing him to collect the market value. Based on this wrong construction of the order passed by the Division Bench of this Court, the impugned communication was issued vide Annexure- A calling upon the Tahsildar to give sales statistics of the lands in the village for the last three years so as to enable him to find out the market value to be collected from the petitioner. This approach of the Deputy Commissioner is totally illegal and erroneous and is contrary to the direction issued by the Division Bench of this Court.
12. The tenor of the judgment passed by the Division Bench of this Court is that the market value at the rate of 300 times the land revenue assessed on the land as was prevaliling on the date of grant had to be collected. In fact the Division Bench upheld the order of the Tribunal wherein the market value had to be collected by referring to the decision of the Full Bench of the Tribunal which had held that the amount to be collected was 200 times the land revenue payable. But as a submission was made by the petitioner herein agreeing to pay the amount at 300 times the land revenue payable, the Division Bench directed the Deputy Commissioner to quantify the market value on that basis.
8. Accordingly, this writ petition is allowed. The 2nd respondent Deputy Commissioner, Dakshina Kannada, Mangaluru, is hereby directed to consider the applications/representations of the petitioner in accordance with law and in terms of the orders passed by this Court in the writ petitions, referred to supra. The same shall be concluded by the Deputy Commissioner within a period of 3 months from the date of receipt of a copy of this order and Permanent Ownership Certificate/Saguvali Chit shall be issued.
Learned Additional Government Advocate is permitted to file memo of appearance within two weeks from today.
Sd/- JUDGE nd/-