1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.29973 OF 2012 (KLR-RR/SUR) BETWEEN:
SRI T.NAGAPPA, S/O LATE THIRUKAPPA, AGED 56 YEARS, RESIDING AT ANAGODU VILLAGE, KASABA HOBLI, DAVANAGERE TALUK, DAVANAGERE DISTRICT – 570 001. ...PETITIONER (BY SRI R.A.DEVANAND, ADVOCATE) AND:
1. SRI ABDUL GAFOOR SAB, S/O RAZACK SAB, AGED 63 YEARS, RESIDING AT ANAGODU VILLAGE, KASABA HOBLI, DAVANAGERE TALUK, DAVANAGERE DISTRICT – 570 001.
2. SRI H.M.MARALU SIDDAPPA, S/O SRI NANJUNDAPPA, AGED 52 YEARS, RESIDING AT ANAGODU VILLAGE, KASABA HOBLI, DAVANAGERE TALUK, DAVANAGERE DISTRICT – 570 001.
3. THE ASSISTANT COMMISSIONER, DAVANAGERE SUB-DIVISION, DAVANAGERE – 577 001.
4. THE DEPUTY COMMISSIONER, DAVANAGERE SUB-DIVISION, DAVANAGERE – 577 001. ...RESPONDENTS (BY SRI T.S.MAHANTESH, AGA FOR R3 & R4;
R1 and R2 are served and unrepresented) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF RESPONDENT NO.4 DATED 11.06.2012 VIDE ANNEXURE – ‘G’.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner herein is impugning the order of the fourth respondent dated 11th June, 2012 in proceedings No. ULND/CR/135/2003-04.
2. The order impugned is passed after an enquiry being conducted by the fourth respondent pursuant to a direction issued by the Co-ordinate Bench of this Court in W.P.No.13549 of 2005 (KLR-RES) dated 13th March, 2007.
The order impugned is passed in holding that the land bearing Sy.No.123/3 is ‘B’ kharab land as reflected in Akarbandh. Hence, the same is reserved for public purpose under Rule 21(2) of the Karnataka Land Revenue Rules, 1966. As such, the same cannot be considered for regularization of unauthorized cultivation by any person and any application filed seeking regularization of the same cannot be considered by the Committee constituted by the State for Regularization of Unauthorized Cultivation of Lands. Therefore, the order dated 04th April, 1998 of the said Committee is illegal and is subjected to challenge in this writ petition.
3. This proceedings has chequered history. The records would indicate that an application in R.A.No.54 of 1996-97 was filed by one Thirukappa who is the father of the petitioner T.Nagappa seeking occupancy rights in respect of 2 acres 30 guntas in Sy.No.123/3 of Anugodu Village, Kasaba Hobli, Davanagere Taluk and Davanagere District. The said application was initially allowed by the Assistant Commissioner of Davanagere Sub-Division by order dated 21.09.1998. Wherein it is observed that the said land was Government kharab land, which is wrongly classified as Government Gunduthopu. Therefore, the entry in indicating the said land as Government Gunduthopu should be removed and thereafter, the same should be registered in the name of the applicant Thirukappa, Son of late Dasappa pursuant to Section 122(B) of Karnataka Land Revenue Act. The Assistant Commissioner, Davanagere would further direct the Tahsildar to register the name of the petitioner’s father as occupant of the said land.
4. The aforesaid order was subjected to challenge by the President of Grama Panchayath of Anugodu Village, Davanagere Taluk in appeal bearing No.R.A.97 of 2000-01 on the file of Deputy Commissioner, Davanagere where the order of Assistant Commissioner in Proceedings No.R.A.54 of 1996-97 dated 21.09.1998 was confirmed by the Deputy Commissioner by order dated 22.10.2001. It is seen that the said order was subject matter of challenge by the very same person, namely, the President of Anugodu Grama Panchayath in W.P.No.8057 of 2002. The said writ petition came to be dismissed by order dated 03.12.2003 with an observation that the contention of the petitioner in the said writ petition regarding land bearing Sy.No.123/3 measuring 2 acres 30 guntas is not available for regularization as the said land is Gunduthopu, will be considered by the Committee constituted for regularization at the time of considering the application filed by the petitioner who is the son of the original applicant Thirukappa.
5. Pursuant to the order of the Co-ordinate Bench of this Court dated 03.12.2003, the Committee constituted for Regularization of Unauthorized Cultivation confirmed occupancy rights in favour of the petitioner to an extent of 2 acres 30 guntas in Sy.No.123/3 (which is wrongly referred to as Sy.No.123/2 in ULND.CR.135 of 2003-04 on the file of Deputy Commissioner, Davanagere). However, the said order was subjected to challenge before the Deputy Commissioner in ULND.CR.135 of 2003-04 where the order of the Committee constituted for Regularization of Unauthorized Cultivation dated 04.04.1998 was set aside with a direction to the Tahsildar, Davanagere to take possession of the aforesaid land.
6. It is seen that this order of the Deputy Commissioner dated 21.03.2005 was subject matter of challenge before the Co-ordinate Bench of this Court in W.P.No.13549 of 2005 which was filed by the petitioner herein. The said writ petition was allowed by order dated 13.03.2007 and the application of the petitioner was sent to 4th respondent Deputy Commissioner for re-consideration afresh on merits. It is pursuant to the order of the Co- ordinate Bench of this Court in W.P.No.13549 of 2005, the fourth respondent re-heard the matter in ULND.CR.135 of 2003-04 and by order dated 11.06.2012 allowed the application wherein he would observe that “the land in dispute is the land, which is classified as ‘B’ kharab land under Rule 21(2) of the Karnataka Land Revenue Rules, 1966”. Accordingly, the same could not have been regularized either by the Assistant Commissioner or the Committee constituted for Regularization of Unauthorized Cultivation and accordingly, would set aside the order of the Committee constituted for Regularization of Unauthorized Cultivation in its order dated 04.04.1998. Consequently, directed the said land should be registered in the name of the Government. The direction which was issued to the Tahsildar, Davanagere to that extent is subject matter of challenge in these proceedings.
7. When this matter is pending consideration, at the request of the learned counsel appearing for the petitioner, an order was passed on 04.01.2018 in this proceedings directing the learned Additional Government Advocate to secure original survey records pertaining to the land bearing Sy.No.123 of Anugodu Village, Davanagere Taluk and Davanagere District, (which measures totally 24 acres 29 guntas) from the office of ADLR, Davanagere Taluk, Davanagere District, to ascertain whether there was infact existence of an extent of 2 acres 38 guntas of land classified as Gunduthopu land.
8. Pursuant to the order of this Court dated 04.01.2018, the original records were secured and produced before this Court along with Xerox copies of the originals, which are produced before the Court on 25.01.2018. On that date, the Court Officer was directed to compare the Xerox copies along with the original records and thereafter to retain the Xerox copies of the original as true copies in the records of this writ petition and return the original records to the Government Advocate who had secured the same from the office of ADLR. Accordingly, the said documents, which are produced by the learned Government Advocate on 17.01.218 are taken on record.
9. When this matter is heard on merits in the presence of the learned counsel, Sri.R.A.Devanand appearing for the petitioner and learned counsel Sri.T.S.Mahantesh for the contesting Respondent-State, the original records which are made available to this Court are looked into. The same would reveal that initially in the year 1928, a portion of land bearing Sy.No.123/3 of Anugodu Village was available as Gunduthopu as could be seen from R.R.Hissa Tippani on 11.09.1928. Thereafter, it is seen that there is one more document available in the record in R.R.Hissa Tippani dated 19.02.2003 where an extent of 2 acres 30 guntas is shown as land under cultivation of Sri.Nagappa, Son of Sri.Thirukappa. When the said document is looked into, there is reference to an order being passed to measure the land vide MPR No.427 dated 19.02.2003. On the basis of that, the measurement is seen at L.No.121, further, there is reference to the name of Sri.Nagappa, Son of Thirukappa entered as a cultivator of the said land, which was earlier classified as Gunduthopu land.
10. Besides this, the ADLR has produced the entire records which would indicate different portions of Sy.No.123/3, in indicating in whose name the said portions are standing as on the date when the records were produced before this Court. When the same is looked into, there is no reference as to how Gunduthopu measuring 2 acres 30 guntas in Sy.No.123/3 as on 11.09.1928 came to be re-classified as kharab or any other land and subsequently registered in the name of Nagappa, Son of Thirukappa.
11. At this juncture, learned counsel appearing for the petitioner would draw the attention of this Court to the order of the Assistant Commissioner dated 21.09.1998 in R.A.No.54 of 1996-97 where at Page No.2 Para No.3 there is reference to an extent of 2 acres 30 guntas of land being shown as kharab land, which according to the Assistant Commissioner wrongly classified as Gunduthopu land and thereafter, he would consider that, it should be classified as kharab land. However, it is seen that the said officer has no authority to re-classify any land. The order of the Assistant Commissioner dated 21.09.1998 appears to be mischievous, which was passed at the first instance, when the application of the petitioner’s father was taken up for consideration to regularize aforesaid land in his name.
12. At this juncture, the Court would take a pause and observe as to how the land which is reserved as Gunduthopu prior to 1928 could be changed from Gunduthopu to kharab land and how it could be considered for regularization of unauthorized cultivation by any person including the petitioner herein is something which has not been answered by any of the authorities which has gone through this matter at different stages in proceedings No.R.A.No.54 of 1996-97 on the file of Assistant Commissioner, Davanagere and also in R.A.No.97 of 2000- 01 on the file of the Deputy Commissioner, Davanagere and also by the Committee to which Co-ordinate Bench of this Court directed the matter for consideration either to accept or reject the application of the petitioner for regularization of unauthorized cultivation.
13. It is subsequent to aforesaid orders, the fourth respondent by his order dated 11.06.2012 in ULND:CR:135:2003-04 has passed a detailed order wherein he would categorically state that at no point of time, there was any order passed by any authority in re-classifying the land in Sy.No.123/3 of Anugodu Village from Gunduthopu to that of revenue land classified as kharab and particularly, ‘B’ kharab. He would also go to the extent of mentioning even assuming that this land is ‘B’ kharab, it is a Government land, which cannot be considered for regularization of unauthorized cultivation.
14. While doing so, he would also observe one more aspect regarding the entitlement of the petitioner’s father Thirukappa to seek regularization of said land as alleged unauthorized occupant. Admittedly, the petitioner’s father, resident of Anugodu Village, had total holding of an extent of 4 acres 34 guntas. Since he was holder of sufficient extent of land, he is disentitled to seek regularization of unauthorized cultivation of 2 acres 30 guntas even if illegal reclassification of said land by the Assistant Commissioner in his order dated 21.09.1998 is accepted.
15. In this background, when the writ petition filed by the petitioner is seen, it clearly establishes that he is unable to substantiate that the order of the fourth respondent Deputy Commissioner is erroneous, firstly, not holding the aforesaid land as Gunduthopu land, which is wrongly referred to as ‘B’ kharab and subsequently, in demonstrating that he is entitled to seek regularization of the aforesaid extent on the ground that the family of the petitioner did not have sufficient extent of land for cultivation and as such, they were eligible to seek regularization to an extent of 2 acres 30 guntas as rightly discussed by the fourth respondent and rejected the same giving valid and cogent reasons, which does not call for interference by this Court in this writ petition. Accordingly, this writ petition is hereby rejected.
Sd/- JUDGE DH