IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14th DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE S.N. SATYANARAYANA W.P. NOs.34304-305/2017 (KLR-RR/SUR) BETWEEN:
1. SRI H.N.PRABHAKARA S/O LATE K.NAGAPPA AGED ABOUT 66 YEARS R/AT NO.22, V.S.NAIDU ROAD SHIVAJI NAGAR BENGALURU – 560 051.
2. SRI G.RADHAKRISHNA PILLAI S/O LATE GOVINDAN NAIR AGED ABOUT 57 YEARS R/AT “TEEKAYS”
NO.565/P, 5TH CROSS, 8TH MAIN HAL 2ND STAGE, INDIRA NAGAR BENGALURU – 560 008. …PETITIONERS (BY SRI GANAPATHY BHAT VAJRALLI, ADV.) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY REVENUE DEPARTMENT VIKASA SOUDHA DR.B.R.AMBEDKAR VEEDHI BENGALURU – 560 001.
2. THE ASSISTANT COMMISSIONER PANDAVAPURA SUB-DIVISION MANDYA DISTRICT MANDYA – 571 401.
3. THE TAHSILDAR SRIRANGAPATNA MANDYA DISTRICT MANDYA – 571 401. …RESPONDENTS (BY SRI KIRAN KUMAR T.L., AGA.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 16.10.2014 PASSED BY R-2 AT ANNEX-M AND DIRECT R-2 TO REMOVE THE NAME OF THE BURIAL GROUND IN THE RTC IN RESPECT OF SY.NO.153, MEASURING 20 GUNTAS, SITUATED AT HAMPAPURA GRAMA, KASABA HOBLI, SRIRANGAPATANA TALUK, MANDYA DISTRICT AND ETC.
THESE WRIT PETITIONS ARE COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioners herein are before this court impugning the order of the Assistant Commissioner in LND.CR.127/2014-15 dated 16.10.2014. Their grievance is that the Assistant Commissioner of Pandavapura Sub- Division, Mandya District, who is 2nd respondent herein has passed the aforesaid order in reserving 20 guntas of land in Sy.No.153 of Hampapura village, Kasaba Hobli, Srirangapatna Taluk, for utilizing the same as Government burial ground which is karab land situated in the midst of revenue land belonging to petitioners 1 and 2. The fact that the aforesaid survey number is a Government land is not in dispute and it is not in dispute that the said land is karab.
2. The grievance of the petitioners is that they are owners of several extent of lands under various survey numbers situated in Belavadi village, Kasaba Hobli, Srirangapatna Taluk, Mandya District; Hampapura village, Kasaba Hobli, Srirangapatna Taluk, Mandya District and also Rammanahalli village, Kasaba Hobli, Mysore Taluk, Mysore District. The lands which are belonging to them are situated in these three villages under various survey numbers and they are located continuously adjacent to each other and conveniently located to form a residential lay out by utilizing the lands belonging to the petitioners in the aforesaid three villages.
3. Their grievance is that the order of the Asst.
Commissioner dated 16.10.2014 is passed after they decided to form residential lay out in the lands belonging to them situated in the aforesaid three villages under various survey numbers. The impugned order of the Asst. Commissioner would come in the way of formation of residential lay out and better enjoyment of the property by the land owners and those who purchase residential sites in the aforesaid land. In that background these writ petitions are filed challenging the order of the 2nd respondent Asst. Commissioner dated 16.10.2014. One of the grounds raised in challenge to the impugned order is that, exercise of power under Section 71 of the Karnataka Land Revenue Act is in fact vested with the Deputy Commissioner of the District and the same is not available to the 2nd respondent in declaring the aforesaid land as burial ground and consequently passing the order impugned. In that background this Court had called upon the learned Addl. Government Advocate to furnish the Circular based on which the order impugned is passed. The said Circular bearing No.PÀA.E.14.¨sÀƸÁéªÁå(3)2002 dated 28.5.2002 is produced before this Court today along with a Memo the reading of which would clearly indicate that the same does not empower the 2nd respondent Asst. Commissioner to pass the impugned order exercising powers under Section 71 of the Karnataka Land Revenue Act.
4. In that view of the matter, the order impugned is required to be quashed, accordingly, it is quashed. While quashing the said order, this Court would feel it is necessary to observe that the competent Authority who would decide the right of petitioners to form residential lay out in the land belonging to them, shall not resort to arm twisting method of declaring the karab lying in midst of the lay out as burial ground to ensure that the implementation of their project is jeopardized by such orders. This Court also feel that the 2nd or the 3rd respondent viz. Asst. Commissioner and Tahsildar or any other Authority while exercising their power for declaring the Kharab land situated in the midst of petitioners land as burial ground should keep in mind the purpose for which the land in the vicinity is utilized and ensure that any order passed by them would not jeopardize the interest of the petitioners or anybody claiming title to the sites formed in future.
5. At this juncture learned Addl. Government Advocate would bring to the notice of this Court, if such restrictions are imposed, the Government would face difficulty in identifying burial ground in developed areas. Therefore, in this context, this Court while quashing the order impugned would observe that the Deputy Commissioner may yield the karab land which is situated in the midst of the revenue land for developing the lay out and in lieu of that to take in exchange any land of similar extent outside the boundary of the lay out for the purpose of declaring the same as burial ground after following the procedure required to be taken into consideration while giving such concession to the petitioners.
With such observation, these writ petitions are disposed of.
Dvr:
Sd/- JUDGE