IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NOs.50750/2017 & 35912/2018(CS-RES) BETWEEN:
SRI BYCHAPPA S/O LATE NANJE GOWDA AGED ABOUT 68 YEARS R/O VARADENAHALLI VILLAGE KASABA HOBLI TAMAKA POST KOLAR TALUK – 563 101 …PETITIONER (BY SRI A.G.SHIVANNA, ADVOCATE) AND :
1. THE DEPUTY COMMISSIONER KOLAR DISTRICT KOLAR -563 101 2. THE ASSISTANT COMMISSIONER KOLAR SUB-DIVISION KOLAR -563 101 3. THE THASILDAR KOLAR TALUK KOLAR DISTRICT – 563 101 …RESPONDENTS (BY SRI T.S.MAHANTESH, AGA FOR R1 TO R3) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER IN APPEAL NO.861/2014 DATED 27.05.2017 PASSED BY THE KARNATAKA APPELLATE TRIBUNAL VIDE ANNEXURE-F AND CONSEQUENTLY SET ASIDE THE ORDER OF THE 1ST RESPONDENT IN FOR.CR- 12/2006-07 DATED 02.07.2014 AS PER ANNEXURE-E AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner herein is claiming himself having right to enjoy usufructs of trees standing in lands bearing Sy.No.40 and 45 of Varadenahalli, Kasaba Hobli, Kolar Taluk and District, measuring to an extent of 3 acres. According to him, the said right was granted in his favour in proceedings bearing No.MNC.CR.No.12/1989-90, dated 13.7.1989 subject to conditions imposed therein. The said grant is pursuant to Rule 102-A of the Karnataka Land Revenue Rules, 1966.
2. Subsequently, it is stated that the Assistant Commissioner has conducted an enquiry and submitted a report in declaring Sy.No.40 measuring to an extent of 30 acres 15 guntas and Sy.No.45 measuring to an extent of 9 acres 15 guntas of Varadenahalli as Government Kharab land. While doing so, the right which was granted in favour of the petitioner with reference to enjoying the usufructs of trees standing in said lands to an extent of 3 acres is cancelled on the ground that he has not been following the conditions which were imposed while granting usufructory right and also on the ground that he has been carrying out unauthorized cultivation in the said lands.
3. It is stated that the order of Assistant Commissioner dated 20.2.2007 in No.FOR.CR.12/2006-07 in canceling the usufructory right of the petitioner was subject matter of challenge before the KAT in Appeal No.263/2007, which came to be dismissed by order dated 20.8.2009. Against the said order of dismissal, it is stated that the petitioner has approached this Court earlier in WP.No.28166/2009 and the said writ petition was disposed of by order dated 24.2.2010 in remanding the matter to the Deputy Commissioner of Kolar for reconsideration.
4. In the remanded proceedings, after considering the material on record the Deputy Commissioner has passed an order on 2.7.2014 reiterating the earlier order in canceling the order of grant dated 13.7.1989 in No.MSC.CR.12/1989-90 with a further direction to the Tahsildar of Kolar Taluk to take possession of the lands in question. Again, the said order was challenged before the KAT in Appeal No.861/2014 by the petitioner, which also came to be dismissed by order dated 27.5.2017. Hence, the present writ petition.
5. Heard the learned counsel for the petitioner as well as the learned Additional Government Advocate for contesting respondents. Perused the material on record. On going through the same it would indicate that the grant which is made in favour of the petitioner is with reference to right to collect usufructs from the trees standing on the lands in question. Admittedly, the same is subject to conditions which are imposed by the authority. If there is any violation of the conditions, it is open for the authorities to initiate appropriate proceedings. However, in the instant case, in the second round of litigation when the Deputy Commissioner took up the remanded proceedings has not conducted the proceedings effectively.
6. In that view of the matter, by setting aside the order dated 2.7.2014 passed by the Deputy Commissioner, Kolar, in proceedings bearing No.FOR.CR.12/2006-07 and also the order dated 27.5.2017 passed by the KAT in Appeal No.861/2014, the petitioner is relegated back to the Deputy Commissioner, Kolar in restoring the proceedings bearing No.FOR.CR.12/2006-07. In the said proceedings the petitioner will have to demonstrate that there is no violation of any of the conditions of grant of usufructory right in his favour for an extent of 3 acres of lands in Sy.No.40 and 45 of Varadenahalli village, Kasaba Hobli, Kolar Taluk. Thereafter, it is open for the Deputy Commissioner to pass appropriate orders in the said proceedings in accordance with law.
With such observations, these writ petitions are disposed of.
Sd/- JUDGE nd/-