IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA BETWEEN:
WRIT PETITION No.14050/2016 (KLR-LG) *& WP.NO.23973/2016 SRI NAGESH K S S/O SHIVARAMAYYA AGED ABOUT 42 YEARS RESIDING AT VASUKI NILAYA IDKIDU VILLAGE BANTWALA TALUK D.K.DISTRICT – 574201. ... PETITIONER (BY SRI S RAJASHEKAR, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY REVENUE DEPARTMENT M.S.BUILDING BENGALURU – 560 001.
2. THE DEPUTY COMMISSIONER DAKSHINA KANNADA DISTRICT.
3. THE ASSISTANT COMMISSIONER MANGALURU, D.K.DISTRICT – 575001.
4. THE TAHASILDAR BANTWALA TALUK D.K.DISTRICT – 574201. ... RESPONDENTS *inserted vide chamber order dt.13.5.2019.
(BY SRI T S MAHANTESH, AGA FOR R.1 TO 4) *THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM R-2 WHICH ULTIMATELY RESULTED IN PASSING OF ENDORSEMENT ANNEXURE – A DATED 21.02.2015 MADE BY SECOND RESPONDENT.
*THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner herein is claiming permanent ownership of land bearing Sy.No.184/1-A and Sy.No.183/1-A measuring 3 acres 54 cents and 3 acres 23 cents respectively of Idkidu Village, Bantwal Taluk, Dakshina Kannada District.
2. The records would indicate that under South Canara District Lease of Lands for Cultivation Rules, 1957, the aforesaid lands were leased in favour of petitioner’s grandfather K.Venkapaiah. Admittedly, the said lease was for a period of 30 years with certain terms and conditions attached to it, where an option is available to the lessee to seek permanent ownership to the leased land after the expiry *corrected vide chamber order dt.13.5.19 of lease period provided. Copy of the lease agreement at Annexure – B would indicate that the petitioner’s grandfather was the lessee and that he was in possession and cultivation of the land in question from 16.01.1959 till his death in the year 1984. Subsequently, in a partition in the family the aforesaid lands has fallen to the share of the petitioner himself and hence, the petitioner is under cultivation and enjoyment of the same.
3. It is stated that the petitioner’s grand father has complied with all the terms and conditions of the lease and as such, during the lifetime of his grand father he was entitled to seek permanent ownership over the land in question. However, when petitioner’s grandfather’s application was pending, partition has taken place and these properties have fallen to the share of the petitioner and petitioner is seeking issuance of permanent ownership to him.
4. The grievance of the petitioner is that inspite of several representations, the State represented by the Deputy Commissioner has not taken any steps to fix the nominal value for granting permanent ownership of land in question to the petitioner. Instead, endorsement is issued vide Annexure –“A’’ dated 21.02.2015 in proceedings No.LND(3):CR:23/2013-14/B7/149328/87 in rejecting his prayer, which is sought to be challenged in this proceeding.
5. However, when this matter is taken up for consideration, learned counsel for the petitioner would bring to the notice of this Court that under similar circumstances several writ petitions are also disposed of. One of them on which he would place reliance before this Court is in W.P.No.23608/2018, disposed of on 22.02.2019 (GUKNAPAL ATHIKARI vs STATE OF KARNATAKA AND OTHERS), wherein this Court would rely upon the Division Bench judgment rendered earlier in WA.Nos.5242/2004 c/w 5103/2004, 5331/2004 and 5046/2004, disposed of on 26.10.2017 as well as the order passed on 23.7.2012 in WP.No.23692/2012, which would cover the fact situation in the present case.
6. The observations made by the Division Bench in WA.No.5242/2004 and connected matters reads as under:
“8. In our considered view, on the basis of decision of Supreme Court referred to supra upon which strong reliance is rightly placed by the learned counsel for the appellants and also in view of vested right accrued upon the land in question in favour of appellants the leasehold rights were granted and the said Rules have got statutory force. The determination of market value of granted land must be on the basis of Rule-23 but not Rule-17. Rule-17 is applicable to the grant of land in favour of fresh grantees but not in favour of lessees who had acquired vested right under the Rules, 1957. Therefore, we have to hold that determination of the market value of the granted land must be reckoned which was prevalent at the time of grant of the same by lease under sub-rule (1) of Rule(iii) of 1957 Rules, this is what is referred to in Rule-23 of KLG Rules. In the absence of Rule-we also, appellants are liable to pay the value of land as fixed as on the date of grant of leasehold rights in favour of the appellants. These aspects are not considered by the learned single Judge while setting aside the order of KAT, no doubt, various other decisions of the Supreme Court are referred to by him in the impugned order which have no relevance to the fact situation as the learned Single Judge did not examine the Rules of 1957, which have got enforceable character and conferred the vested statutory rights upon the appellants in respect of the land in question and similarly placed persons. Non-consideration of the said Rules of 1957 and the terms and conditions of the grant order upon which the vested rights are conferred upon the appellants and similarly placed persons are not examined and considered by the learned Single Judge at the time of passing the impugned order. Therefore, the impugned order is liable to be set aside and the order of KAT must be revived, but fair submission is also made by the appellants counsel having regard to the potentially of the land and market value of the land, the learned counsel for the owners have submitted that they would pay 300 times the price of the land revenue assessed per acre which was prevailing as on the date of grant.
In view of the above fair submission on behalf of the appellants, there Writ Appeals are allowed. The impugned order is set aside. The Deputy Commissioner shall quantify the market value of the land in question and collect the price of the land in question from the owners and shall also issue grant certificate in their favour as expeditiously as possible, but no costs are awarded.”
7. The observations made by the learned Single Judge in WP.No.23692/2012 disposed of on 23.7.2012 reads as under:
“10. It is necessary to notice here that a submission was made by the counsel for the appellants before the Division Bench that having regard to the potentiality of the land and its market value, the appellants were prepared to pay the price at 300 times the land revenue payable on the lands in question which was prevailing as on the date of grant. Therefore, after holding that the order of the Appellate Tribunal did not call for interference and that the order passed by the learned Single Judge had to be set aside, the Division Bench referring to the submission made by the appellants directed the Deputy Commissioner to quantify the market value and collect the price of the land from the owners and thereafter issue Grant Certificate. This is the essence of the direction issued.
11. But, the Deputy Commissioner has ignored the entire reasoning assigned by the Division Bench and has merely proceeded to construe the order passed by the Division Bench as one directing him to collect the market value. Based on this wrong construction of the order passed by the Division Bench of this Court, the impugned communication was issued vide Annexure-A calling upon the Tahsildar to give sales statistics of the lands in the village for the last three years so as to enable him to find out the market value to be collected from the petitioner. This approach of the Deputy Commissioner is totally illegal and erroneous and is contrary to the direction issued by the Division Bench of this Court.
12. The tenor of the judgment passed by the Division Bench of this Court is that the market value at the rate of 300 times the land revenue assessed on the land as was prevaliling on the date of grant had to be collected. In fact the Division Bench upheld the order of the Tribunal wherein the market value had to be collected by referring to the decision of the Full Bench of the Tribunal which had held that the amount to be collected was 200 times the land revenue payable. But as a submission was made by the petitioner herein agreeing to pay the amount at 300 times the land revenue payable, the Division Bench directed the Deputy Commissioner to quantify the market value on that basis.
8. After giving careful consideration to the submissions made by the learned counsel for the petitioner and on going through the judgments, referred to supra, it may not be appropriate for this Court to take a contradictory stand and to give a finding in the present case contrary to the finding of Division Bench and the learned Single Judge in the said judgments.
9. Accordingly, *these writ petitions are allowed. The impugned order at Annexure – A bearing No.
*corrected vide chamber order dt.13.5.19 No.LND(3):CR:23/2013-14/B7/149328/87 dated 21.02.2015 is quashed. The 2nd respondent – Deputy Commissioner, Dakshina Kannada District is hereby directed to collect the nominal price at the rate of 300 times the land revenue payable per acre that was prevailing as on the date of grant and issue Permanent Ownership Certificate to the petitioner. The same shall be concluded by the Deputy Commissioner within a period of 3 months from the date of receipt of a copy of this order and Permanent Ownership Certificate/Saguvali Chit shall be issued.
Learned Additional Government Advocate is permitted to file memo of appearance within two weeks from today.
Sd/- JUDGE brn