IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 27TH DAY OF FEBRUARY, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH WRIT PETITION NOS.5343-5345 OF 2010(KLR-RES) BETWEEN:
1. SRI G.RAMA BHAT S/O LATE RAMA BHAT, HINDU, AGED ABOUT 72 YEARS, RESIDING AT LADA BAGAMBILA, KOTEKAR VILLAGE, POST:KOTEKAR, MANGALURU TALUK, PIN:574 160.
2. SRI K.RAJARAM BHAT S/O LATE RAMA BHAT, HINDU, AGED ABOUT 49 YEARS, RESIDING AT BAGAMBILA, KOTEKAR VILLAGE, POST:KOTEKAR, MANGALURU TALUK, PIN:574 160.
3. SRI K.GOPALAKRISHNA BHAT S/O LATE RAMA BHAT, HINDU, AGED ABOUT 47 YEARS, RESIDING AT BAGAMBILA, KOTEKAR VILLAGE, POST:KOTEKAR, MANGALURU TALUK, PIN:574 160. ... PETITIONERS (BY SRI O.SHIVARAM BHAT, ADVOCATE) AND:
THE DEPUTY COMMISSIONER D.K., MANGALURU. ... RESPONDENT (BY SRI T.S.MAHANTESH, AGA) ***** THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON JUDGMENT DATED 11.1.2010 PASSED BY THE KARNATAKA APPELLATE TRIBUNAL, BENGALURU IN APPEAL NOS.668/2004, 218/2006 AND 219/2006 WHICH ORDER HAS ARISEN OUT OF THE ORDER DATED 7.6.2004 PASSED BY THE RESPONDENT VIDE ANNEXURES-A AND B RESPECTIVELY.
THESE WRIT PETITIONS COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner No.1 claims to be the wargadhar of land bearing Sy.No.310/1B measuring 1 acre 95 cents in which Sy.Nos. 309,311 and 312 measuring 2 acres is a kumki land and the 1st petitioner is in possession and enjoyment of the aforesaid 3 survey Numbers and he is using the said land for better enjoyment of warga land. He is using the said lands for taking green manure and the right of kumki in respect of Sy.No.309, 311, 312 of Kotekar village, Mangaluru Taluk, Dakshina Kannada. Petitioner No.2 is the wargardhar of Sy.No.310/1A measuring 1 acre 75 cents. Petitioner No.3 is the wargadhar of land bearing Sy.No. 310/1A measuring 2 acres. The Deputy Commissioner issued a notice dated 4-6-1999 and 31-8-1999 to the petitioners calling for objections for extinguishment of kumki privilege granted to them. The petitioners filed their objections. Petitioners 1, 2 & 3 represented by their learned counsels entered appearance and disputed the same. On considering the same, the Deputy Commissioner passed an order extinguishing the kumki right in respect of Sy.No.314 totally measuring 11 acres 62 cents, out of which to an extent of 0.42 cents, Sy.No.312/1 totally measuring 9 acre 12 cents, out of which to an extent of 0.48 cents and Sy.No.309 totally measuring 11 acres 0.81 cents, out of which to an extent of 1 acre 0.12 cents. Aggrieved by the same, the petitioners filed an appeal No.459/2000 before the Karnataka Appellate Tribunal which allowed the appeal and set aside the order of the Deputy Commissioner and remanded the same for a fresh consideration. After remand by the appellate Tribunal the Deputy Commissioner has passed the impugned order vide Annexure-B. Aggrieved by the same, 3 appeals were filed before the Karnataka Appellate Tribunal which were dismissed. Hence, the present petitions.
2. The learned counsel for the petitioners contends that the kumki right given to the petitioners has been recognized in law and the same were wrongly withdrawn. That the finding recorded by the authorities are unsustainable. They run opposite to the records that kumki rights were withdrawn that too, for the purpose of making house sites. Hence, he pleads that the petitions be dismissed.
3. The learned Government Advocate disputes the same.
4. On hearing learned counsels, I’am of considered view that there is no merit in these petitions. The authorities on considering the material on record as well as grounds of remand recorded a finding of fact that there is non-availability of kumki lands in order to recognize the kumki rights of the petitioners. Such rights of the petitioners can be recognized provided such lands exist. When such lands did not exist, the question of recognizing their rights would not arise for consideration. The reasoning assigned by the authorities are just and proper. I do not find any ground to interfere. Even otherwise, there is no material produced before the authorities or before the appellate Tribunal in order to indicate that there is availability of kumki lands in order to recognize such rights.
5. The further contention is that no adequate opportunity was granted to the petitioners. This too runs opposite to the records. The petitioners were represented by their respective counsels before the authorities. They have even relied upon the various Judgments in support of their case. Therefore, to contend that adequate opportunity was not granted is incorrect.
6. The further contention is that the application in Form No.53 has been made seeking regularization of the land by the 2nd petitioner. Therefore, it is pleaded that at least such an application be considered. I’am of the considered view that the contentions with regard to the filing of Form No.53 for grant of lands due to unauthorised occupation runs contrary to the plea of the petitioner of kumki privilege. Privilege is one that is granted as a largesse by the State. Therefore seeking regularisation of land, on the ground that they have been in unauthorised occupation of kumki lands, cannot be accepted. Even though they may possess kumki rights over the lands in question, they cannot enter and occupy the said land forcibly and permanently. Kumki rights and unauthorised occupation are contrary rights. They do not run together. Hence, the application is liable to be rejected on this ground also.
7. For the aforesaid reasons, in view of the absence of any material and the finding of the authority that there is non-availability of kumki land, such privilege cannot be entertained. Consequently, the petitions being devoid of merit, are rejected. Rule discharged.
SD/- JUDGE Rsk/-