IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH 2019 PRESENT THE HON’BLE MR. L NARAYANA SWAMY ACTING CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR W.A. NO.4616 OF 2015 (KLR-RES) BETWEEN:
KOTA VIDYA SANGHA KOTA-576 221 DAKSHINA KANNADA DISTRICT REPRESENTED BY ITS SECRETARY SRI. P. SUBRAMANYA UPADHYA ... APPELLANT (BY SRI. M.S. RAJENDRA, ADVOCATE FOR HOLLA & HOLLA) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE VIDHANA SOUDHA DR. AMBEDKAR VEEDHI BANGALORE-560 001 2. THE DEPUTY COMMISSIONER UDUPI DISTRICT, RAJATADRI MANIPAL, UDUPI-576 104 ... RESPONDENTS (BY SRI. S.S. MAHENDRA, AGA) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE ARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.35846/15 DATED:22.09.2015.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY ASHOK G. NIJAGANNAVAR J., PRONOUNCED THE FOLLOWING:
JUDGMENT This appeal is preferred for setting aside the order dated 22.09.2015 passed by the learned Single Judge in W.P. No.35846/15 and has prayed to allow the writ petition and grant the reliefs as prayed for.
2. The facts leading to this appeal are that, the appellant Kota Vidya Sangha which is a registered society is imparting education to the students from various backgrounds by establishing educational institutions like Pre University College, Girls High School, English Medium High School. The appellant with an intention to set up junior college approached the government for grant of land. The government was pleased to grant certain immovable property measuring 5 acres in Sy.No.12/4A of Gundmi village, Udupi taluk on lease for a period of 30 years during Dec. 1973 and a registered lease deed was executed in favour of the appellant. The said lease was cancelled on 24.6.1997 by the Deputy Commissioner which was challenged in W.P. No.17564/1997. The writ petition was allowed by order dated 01.06.1999 setting aside the order of cancellation of lease and directed the Deputy Commissioner to afford an opportunity to the appellant. On remand the objections were filed before the Deputy Commissioner. In order to put an end to the litigation the appellant consented for grant of 1 acre land in favour of Mogaveera Sangha out of the land leased out to the appellant. Then the Deputy Commissioner passed an order dated 11.2.2002 granting 1 acre land in favour of Mogaveera Sangha and to consider the renewal of lease in respect of the remaining portion of the land to the appellant. In pursuance of the said order the recommendation was made to the Divisional Commissioner to accord approval for grant of 1 acre land in favour of Mogaveera Sangha for a consideration of Rs.4,26,520/- and other incidental charges. Thereafter the appellant made representation dated 21.6.2002 to renew the lease for a period of 99 years and yet another representation dated 31.7.2002 was also made to the Deputy Commissioner to consider the government grant of 4 acres land to the appellant society as the said institution is imparting education and the land is also utilized for a college. The Deputy Commissioner, it is stated, considered the representation and conducted a spot inspection, drew a mahazar, published a notice and passed an order dated 16.7.2003 recommending to the State Government to grant land measuring 4 acres in Sy.No.12/4A in terms of Rule 18(3) of Land Grant Rules, 1969 (for short Rules) at the rate of Rs.4 lakh per acre. The Deputy Commissioner, it is said addressed another letter dated 9.3.2004 to the State Government to consider the grant of land in favour of the appellant at the rate of Rs.4,26,520 being the rate at which 1 acre land was granted to Mogaveera Sangha. In the light of new guidelines issued by the Government with regard to grant of land, the Deputy Commissioner is said to have submitted a further detailed revised recommendation to the Government on 14.6.2000 for grant of 4 acres land in Sy.No.12/4A in favour of appellant. In pursuance of the said recommendation the State Government has passed an order dated 17.01.2006 considering the recommendation of the Deputy Commissioner and accorded approval for grant of 4 acres land in favour of petitioner to be used as a play ground for an English Medium School after calculating the market value and other incidental charges. Then the Deputy Commissioner addressed a letter dated 11.10.2006 to the appellant to deposit a sum of Rs.1,00,87,300/- being the value of the land, calculated at the rate of Rs.25 lakh per acre being the market value and Rs.87,200/- being the conversional fee as per Annexure ‘L’.
3. The appellant made a representation dated 23.10.2006 to the Deputy Commissioner to reduce the value of the land who in turn addressed a letter dated 15/18.12.2006 to the State Government seeking permission to grant the land at the rate of Rs.4,26,520/- per acre. Another letter dated 17.12.2007 was also addressed to the Deputy Commissioner. As there was no response either by the Deputy Commissioner or the government, the appellant filed the writ petition to direct the respondents to calculate the value of the land as fixed by the Deputy Commissioner vide his order/ recommendation dated 16.07.2003 at the rate of 4 lakhs per acre and for issuance of a formal order of grant pursuant to the Government Order dated 17.1.2006. The writ of mandamus was dismissed by the learned Single Judge. Being aggrieved by the said order dated 22.09.2015 the appellant has come up in appeal.
4. The learned counsel for the appellant would strenuously contend that the order passed by the learned Single Judge is erroneous and contrary to the facts of the case. Rule 18(3) of the Land Grant Rules is misconstrued. The Deputy Commissioner was empowered to grant land on payment of upset price fixed by him for any educational or charitable institution. Thus he has passed the order dated 16.07.2003 recommending the State government to grant the schedule land to the appellant at the rate of Rs.4 lakhs per acre. The learned Single Judge has failed to notice that the recommendation of the second respondent i.e., the Deputy Commissioner is accepted by the State government and has accorded its approval. When the same has become final the learned Single Judge should not have held that the appellant had no legal right to seek a writ of mandamus. The learned Single Judge has failed to notice that when the word “site” has not been defined under the Act and Rules, the dictionary meaning of the same should have been adopted. The learned Single Judge has proceeded to hold that the appellant doesn’t have legal right to seek writ of mandamus. In view of the order passed by the State Government there was approval for permanent grant of land in question to the appellant. But the learned Single Judge has failed to notice the same. The appellant is an educational institution catering to the need of rural students. Admittedly, the appellant is in possession of the land for the last 42 years. Due to the inaction of the state to proceed in the matter, the fundamental rights of the appellant enshrined in Articles 14, 19 and 21 are violated. Thus, the order passed by the learned Single Judge is liable to be set aside.
5. The learned Government Advocate appearing for the respondent submitted that the learned Single Judge has rightly rejected the writ petition as the appellant had no legal right to claim the reliefs. The second respondent namely, the Deputy Commissioner had the right to fix the market value for the site and to grant the sites, but not in respect of the large extent of lands. In view of Rule 18(3) of Land Grant Rules the learned Single Judge has rightly opined that the Deputy Commissioner was not empowered to grant the land to the appellant or to fix the price of the same. There are no valid grounds to interfere with the impugned order. As such, the appeal deserves to be rejected.
6. It is an admitted fact that initially the land measuring 5 acres in Sy.No.12/4A was granted to the appellant Society on lease for a period of 30 years during the year 1973. The said lease period has come to an end in the year 2003. Thereafter the appellant has made representations to the Deputy Commissioner for renewal and for permanent grant of the land, which was forwarded to the government. The State Government has granted the approval as per Annexure ‘K’, which reads as under:
“ With reference to the above subject, while considering the above referred proposal, to the Secretary, Kota Vidya Sangha (Regd) Kota on lease basis sanctioned 4.00 acres in S.No.12.4A of Gundmi village, Udupi Taluk by removing the said land from the Kumki head, to this land as per the present government value and as per the rules by imposing other expenditures, to the said Educational Institution for the purpose of Play Ground, English Medium High School to grant permanently, I am directed to state that the government has given its prior permission for granting the same.”
7. In pursuance of the aforesaid order at Annexure ‘K’ the Deputy Commissioner has issued a notice directing the appellant to pay the value of the land, conversion fee and measurement, phodi fee, etc., within 15 days, failing which it will be considered that the appellant has no interest in taking possession of the land and the same would be reported to the government. The details of the land value as stated in Annexure ‘L’ are as under:
Sl.
No.
Details Amount Head of Account
8. It is pertinent to note that the appellant has not challenged either Annexure ‘K’ or Annexure ‘L’. Even though the appellant is willing to take the land, but is not ready to pay the land value fixed and demanded by the Deputy Commissioner as per Annexure ‘L’. The main grievance of the appellant is that out of 5 acres land which was leased to the appellant for a period of 30 years, 1 acre land was granted to Mogaveera Sangha at the rate of Rs.4,26,520/-. As such, the same yardstick should have been followed in fixing the price for the 4 acres land to be allotted to the appellant on the principle of equity.
9. In view of the rival contentions the main point in controversy that arises for consideration is that, “Whether the Deputy Commissioner had the authority to grant the land ? ”
10. The learned Single Judge has observed as follows:
“ 4. The Deputy Commissioner exercised a jurisdiction under Rule 18 of the ‘Rules’ while recommending grant of 4 acres of land in Sy.No.12/4A of Gundmi village in favour of the petitioner at the rate of Rs. Four lakhs per acre. For a better understanding of the said Rule, it is appropriate to extract the same which reads thus:
“ 18. Grant of building sites.-
(1) xxxx (2) xxxx (3) Notwithstanding anything contained these rules, the Deputy Commissioner, may grant sites on payment of upset price fixed by him for any educational or charitable institution or to a public authority and free of charge to persons belonging to (Scheduled Castes or Schedule Tribes or to a siteless person of the village whose annual income including that of his family, does not exceed (rupees eight thousand and four hundred) xxxx.”
(emphasis supplied) 5. The aforesaid rule invests in the Deputy Commissioner a jurisdiction to grant a ‘site’ on payment of upset price fixed by him for any Educational or Charitable institution or to a public authority and free of charge to persons belonging to scheduled caste/scheduled tribe or siteless persons of the village, whose annual income does not exceed 8,400/-. In other words, power invested in the Deputy Commissioner is to grant only a ‘site’. This being the jurisdiction under the Sub-rule, there can be no recommendation of the Deputy Commissioner for grant of four acres of land to the petitioner. The nomenclature of Rule 18 of the Rules is grant of sites and not land.”
11. According to the counsel for the appellant Rule 18(3) is misinterpreted. As per the dictionary meaning the entire extent of 4 acres land can be termed as a “site”. Thus, the Deputy Commissioner was empowered to grant land or send recommendation to the government for seeking approval.
12. On going through the interpretation made by the learned Single Judge in respect of Rule 18(3) of the Land Grant Rules, it is clear that the term “site” cannot be equated with the large extent of land. As such, the Deputy Commissioner had no locus standi for making recommendation to the government. But in the instant case the State Government has already accorded the approval for granting land by its order dated 17.01.2006. In pursuance of the said order the Deputy Commissioner has issued the demand notice for payment of the land value. At this stage the learned counsel for the appellant has not made out the grounds to show that the land value fixed by the Deputy Commissioner is unreasonable and contrary to the guidelines for fixing the market value or government value for the lands. As such, there are no grounds to hold that the demand for payment of land value as per Annexure ‘L’ is unjust or illegal.
13. The learned counsel for the appellant has contended that due to the inaction of the State the fundamental rights of the appellant enshrined under Articles 14, 19 and 21 of the Constitution of India are violated. As could be seen from the records, the State Government was ready to grant the land and has issued a direction as per Annexure ‘K’. There is no convincing material on record to show that there was inaction on the part of the State Government. Thus, the said contention of the counsel is devoid of merits.
14. For the foregoing reasons, we find no merits in the writ appeal. It thus fails and is accordingly dismissed.
Sd/-
ACTING CHIEF JUSTICE Sd/- JUDGE ykl