IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA WRIT PETITION No.40498/2010 (KLR - RES) BETWEEN:
SRI. C.L.XAVIER AGED ABOUT 33 YEARS S/O C.A.LORENCE, RESIDENT OF PUSOLIKE HOUSE DHARMASTHALA VILLAGE AND POST BELTHANGADY TALUK D.K.DISTRICT.
... PETITIONER [BY SRI. N.SHANKARANARAYANA BHAT, ADVOCATE] AND:
1. THE DEPUTY COMMISSIONER MANGALORE, D.K. DISTRICT.
2. THE ASSISTANT COMMISSIOENR PUTTUR, D.K. DISTRICT.
3. THE TAHASILDAR BELTHANGADY D.K. DISTRICT.
…RESPONDENTS [BY SRI. KIRAN KUMAR T.L., AGA] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RELEVANT RECORDS AND SET ASIDE THE ORDER OF THE DEPUTY COMMISSIONER, DAKSHINA KANNADA DISTRICT MANGALORE DATED 8.6.1999 VIDE ANNEXURE-A AND THE ORDER OF THE KARNATAKA APPELLATE TRIBUNAL, BANGALORE IN APPEAL NO.23/2004 DATED 9.1.2009 MARKED AS ANNEXURE-C BY ISSUE OF A WRIT OF CERTIORARI.
THIS WRIT PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner herein is the owner of revenue land bearing survey No.155/2P measuring an extent of 01 acre 30 cents in Dharmasthala Village, Belthangady Taluk. According to Petitioner, himself and owners of adjacent lands bearing survey Nos.151/4P, 151/6, 151/9P, 151/10P,155/2P and 158/3 together had Kumki rights over 04 acres 50 cents of land in survey No. 156/1A and also 04 acres 78 cents in survey No.153 of Dharmasthala Village, Belthangady Taluk.
2. The grievance of the petitioner herein is, the aforesaid 09 acres 28 cents of land is ordered to be removed from kumki rights of the petitioner and other adjoining owners of the aforesaid lands and it is decided that the same is to be utilized for construction of a private bus stand. Further grievance of the petitioner is that, before taking up such an exercise an enquiry is required to be conducted after giving due notice to the persons who have kumki right over the said land and thereafter, decision is to be taken to reduce the same from kumki rights of revenue land owners as referred to above. It is stated that in the instant case no notice is given to him, without any notice proceeding has been issued and an order was passed reducing kumki rights of petitioner and other adjoining land owners over the said unoccupied poonja land in survey Nos. 156/1A and 153 together measuring to an extent of 09 acres 28 cents on which, the Deputy Commissioner, Mangalore, D.K.District- first respondent herein has decided to construct a private bus stand.
3. The petitioner would further state that, after coming to know of the same, he preferred an appeal challenging the order of the Deputy Commissioner passed in Appeal No.A.Dis.LND(1B):PDR:211/98-99 dated 8th June 1999 in extinguishing kumki privilege over the said lands in appeal No.23/2004. It is seen that the adjacent owners also have filed another appeal in appeal No.296/2004. Both the appeals were taken up for consideration and same were disposed of by common order on 13.06.2005, wherein the appeal filed by the petitioner herein and also the owners of adjoining lands were dismissed as barred by limitation. As against the said order, it is seen, the writ petition was filed by the writ petitioner herein in W.P.No.11760/2005 (KLR-RES) which was disposed of by this Court by order dated 01.02.2007 in setting aside the judgment passed in appeal No.23/2004 and remanding the same for fresh consideration to the Karnataka Appellate Tribunal with certain observations.
4. It is seen that the remanded appeal also came to be dismissed by judgment dated 09.10.2009 which is challenged in this writ petition on two grounds. One of that is, next to land bearing survey No.156/1A and 153 of Dharmasthala village there is another government land which is available for the use of construction of a private bus stand. The government would have considered the same instead of reducing kumki rights of the petitioner over land bearing survey Nos.156/1A and 153 of Dharmasthala village, but it is not considered despite their being representation by the petitioner and other adjoining land owners in that behalf. It is also urged that the finding of the Tribunal with reference to service of notice to the petitioner is erroneous and that inspite of there being a direction to the Karnataka Appellate Tribunal to consider the remanded appeal on merits it has not considered it on merits.
5. Heard the learned counsel for the petitioner as well as the learned Additional Government Advocate appearing for respondents. Perused the judgment impugned with other documents which are relied upon by the petitioner.
6. On going through the same, it is seen that no- doubt the petitioner is the owner of land bearing survey No. 155/2P measuring 1 acre 30 cents. It is stated that he along with others has kumki rights over 9 acres 28 cents of land which is now sought to be utilized for construction of a private bus stand. The decision to construct a private bus stand is taken in the year 1999. Immediately, thereafter proceedings are initiated to reduce the kumki rights over the foresaid lands by issuing notice to the parties. As could be seen from the judgment in appeal No.23/2004, in para -8 of the said judgment, it is seen that notice was sent to the petitioner as well as the adjacent owners. Notice to his neighbour, T.G.Thomas, S/o. Joseph, K.U.Jon, S/o Ullahanna and to petitioner C.L.Xavier, is refused by them. Thereafter, notice is affixed on the wall of the house of the parties and the same is in accordance with the procedure prescribed under Section 30 of the Karnataka Land Revenue Act. The Tahasildar after following the procedure prescribed therein has issued a certificate which would indicate that the notice is duly served on the petitioner herein who is one of the parties to the said proceeding and also others which cannot be disputed though it has not been accepted by the petitioner with sole intention to protract the proceedings and therefore, due importance cannot be given to the same.
7. It is further seen that the land bearing survey No.153,156/1A are government lands in which neither the petitioner herein nor his neighbours have any proprietary right to seek confirmation of occupancy rights or grant in their favour and the same is only limited to the extent of using that as kumki for cultivation of his revenue land and to use the same for securing green manure and fire wood for their property which right can never be enlarged beyond that as contemplated under Section 79 of the Karnataka Land Revenue Act. Therefore, much importance cannot be given to the said line of the arguments also.
8. Coming to the grounds urged that the respondents- State could have considered the adjacent land for the purpose of construction of a private bus stand, this Court would observe that such a defence is not available to the petitioner inasmuch as it is the privilege of the government to decide which of its property is more suitably available for the public purpose. In the fact situation, when the land bearing survey Nos. 153 and 156/1A having found to be more suitably situated adjacent to the road for formation of bus stand, the decision of the government to utilize the same after reducing kumki rights of the petitioner and others appears to be just and proper and therefore, the same cannot be interfered with.
9. Now coming to the another ground which is raised that in the remanded matter the Tribunal has not considered the merits of the case is also erroneous, inasmuch as the impugned judgment would clearly indicate that the provision of Sections 29 and 79 of Land Revenue Act, 1964 which respectively deals with procedure of service of notice and rights of government over the said land in which the petitioner has kumki rights and the right of the petitioner with reference to the kumki rights is discussed at length and thereafter having found that same cannot be enlarged to any other better title, the government utilizing the same for formation of private bus stand is rightly accepted by the Tribunal.
10. In addition to that, it is seen, the said decision is accepted by all other neighbours who have allowed the kumki rights available to them being reduced in the said situation, this Court find either setting aside the judgment passed in appeal No.23/2004 or to remand the same for fresh consideration does not arise as urged by the petitioner herein. Accordingly, this writ petition is dismissed.
Sd/-
JUDGE tsn*