IN THE HEGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 12*" DAY 0F JANUARY, 2010 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINca:€§'ERiVA'.fg: . WRET PETITION i\£o.28187/ZOQSV(KLR§'REG§"_'l"~»: " BETWEEN: Smt. Ratnamma, W/O H. Venkataswamy, Aged about 48 years, R/at Bettadasanapura Vil|age",~.__ . ' Begur Hobli, Bangalore South~_'lTia!_ul+;_, " ' Bangaiore Rural District. ' Petitioner (By Sr! G.Saioas>ni$i'aiaJ5,'Adgyhooate) 1. The Deiju Bangaiore Rural E3i_str,ic:t,_ Banggafore ~--"=56OVO01."v_ 2'-,3 it .,The"...;i:'ahé.iic§.!?.,i', * ..... .. w ,Anekal_V'li'a.lu,k,'--.., ,__.Anei<'al The Land .Gr--anit Committee for . Regigaiarization of Unauthorized *._Cultivat;ioin of Land, ._An.e._kai Taluk, Anekai. "fRe_pr"esented by Secretary, , Aneiéal Taluk, Anekal ~-- 562 106 A i Respondents
(By Sri K.M. Natraj, Addi. Advocate General and
Sri R. Omkumar, AGA for R1~3)
|\.)
This writ petition is filed under Articles 226 and 227_..of the
Constitution of India praying to quash the impugned
endorsement issued by the R2, which is in form of Orci’e.r'”–Case
No.LND.RUC.SR.221/91-92 dated 11.9.2009, vide Ann~e.x_uVre>;2\__t’o,
the writ petition by issuing a writ of certiorari; and etc. _
This writ petition coming on for P
Group this day, the court made the foiio’wing”:’ -. –.
o_R__p__§…i.z.
rel i,mina_-rfi/it Heairi ng n’ ‘B.’ A V’
The petitioner has calied que’-s.tio’n second
responcient’s endorsement, dated _.’1’i’.9.3Z,QGf9..,(Anne$<'ure~D). She
has aiso sought a- writ of _e'.~r..)t"'t.iie_'_'.respondents to
consider her app|icatio_n.for3._ the..'..reg4u'i'ariz,a_.tio'n' of unauthorised
occupation.
2. The factsVVof’:’t.h’e brief are that the petitioner
ciaims to haxve *bVee’n_ R’iVin»~a,u’tshorisediy cuitivating the ianci
measuring}? acres 9’at.._,VSVy.No.156 of Huiimangaia Viiiage, ligani
Bangaiore Rural District for over 20 years.
It is h.ot’9.._inA d’isp_.iJ_te9..,”that the land in question is a Government
V’1r9VgVomai made an application, dated 3.9.1991
9944’é_:'{‘An’*n,e><ii,.re-B)'9for the reguiarization of her unauthorised
the said land. The respondent No.2 has issued an
V9ii*iip'u-gi*i9ed endorsement intimating that the petitioner's
9"'va'p'piication is rejected, as the land in question comes within a
figs'
forbidden zone of 18 kilometers from Bruhath Bangalore
Mahanagara Palike limits.
3. Aggrieved by the same, this petition is presente.d_i.i-.n°~.,_
4. Sri Sadashivaiah, the learned counsel forthe rp’e:tVlt’ionefr
submits that the impugned endorsemeintlils”w_ithout:lj:uri_sdiQi:’iovn”.
The third respondent has no yecompletencze vvh_–at’soever,”–~.:to~,
consider the petitioner’s app|icatio–n.§””~l. It his»Sri.aS;adavshi’vaiah’s’V’
grievance that the applicationoug»iit”‘tofhaVve._ been “p*la’ced before
the competent authority, name£.y’, try:-ell’Depuityfcosfinmissioner.
5. notice the provisions
contained in”-Rule V9?(5’lZ_ljVoi”th:e~.l{arnataka Land Revenue Rules,
1966 (heyreinafter_:’cailedA”‘.thle”V said Rules’) in support of his
:rf:’oVn’tenti’o.n’ that ‘i-fy.the'”glo’r*n’al land fall within the specified radius,
the’ grant of land can be disposed of only by
‘xsthe Deputy VC.orhmi”issioner. The provisions contained in Rule
of thesfaid Rules is extracted hereinbelow:
v._y_’.’j”A’97(5) from the date of commencement of the
Karnataka Land Revenue (Amendment) Rules, 2007,
V’ “the gomal lands in villages comprised within the
municipal corporation limité d the areas within 25”
kms, from the outer limits of Bruhat Bangalore
Mahanagara Palike, 10 kms, from the outer limits
the other City Corporations and 5 kms, fro’ifi-‘r”~tire_’___i it
outer limits of the City Municipal Councils sh__ali ti
disposed off by the Deputy Commissioneriiétsubject to-<3
the general orders of the State he-S4over.ni'nent
behalf. "
6. Nextly, the learned counsehtrelies on”Ru_l:e 8(6) of the
Karnataka Land Grant Rules”; ‘1§’_:69;;'(!fi€~!fe.ilfiafter called ’19s9
. Rules’) and submits that the_Ta:hs.ilda§:gu§’htV&:tl.ot”.to have placed
the application bevfo:re:;1ist»h’_e l\l’o:3′;”‘”he ought to have
placed the matter.V.be.teé:re Cojmmissioner. The same
provisions are extract-edV_
“8(6 is not competent to
grantland under.these rules or where the extent of
A’ land for”i’sm.ore than the extent of land he is
conjpetent togzrant he shall submit the application to
~the;- competent under these rules to
grant such’ ‘extent of land along with the report in the
K matter and such competent officer may pass orders
it ” ‘ * ._’graintingj”‘the land. ”
7; »The learned counsel submits that the respondent No.3
j_»-__has,no’competence even to reject the petitioner’s application. It
‘could have only been returned the application to the respondent
No.2 for placing the application before the Deputy
Commissioner. He has also relied upon the Division __i3ench
judgment of this Court in the case of THE
KARNATAKA BY ITS SECRETARY REVENUE ooeewafiiyisti-fit’
AND omens v. HOLEYAPPA mo Q3}-i_ERS_–‘repoirtveti-in’ ..V1|.-3″ ”
2007 KAR 259. He has read out the ii-eac£’_”i-tote”¢’-vvhiiich:7re.aC§.$
as foiiows:
“[c] KARNATAKA LAND }£ic:r,’__1″9i54-
SECTIONS 94–A, 94~aic4e}’iND.’_”94.»c’ ‘oi-f”7’;HE ACT AND
RULES – Rights given under’ti7e:”Sta_tutee»t)bject and
purpose of 5 Diversiohnflitoii lanai for other
purposes ~_ priveivijé-iincierhhha Statute in
favour of _unautheriser:i””occupants can neither be
taken away nor made nugatory unless
the provisions-ohf -_Se’cVtio.os 94–A, 94~B and 94–C of
_ the and Ruiesvvareideclared as unconstitutional –
. EiEtD, There is nothing wrong in diverting
_’eithe,r or any other reserved /and for
other when there is no sufficient cattle
popuiatifonih that area when there is no requirement
“of elantixfor free pasturage and the purpose for which
“‘:”_t’he”‘reservation does not exist — The occupation of
by unauthorised occupants has become
“inevitable which reality and factual situation has
he been taken note by the Grnment, therefore, the
statutory rights given to the unauthorised occupants
cannot be deprived of. The order of the learned
Single Judge is set aside. ” ”
8. He also brings to my notice the decision__§*e’rider’ed’ u
this Court in the case of MANJE GCWDA
KARNATAKA AND OTHERS reported in:…4:i’97’3_(‘2_)’«.:KL3».._:4o5§
The relevant head note portion,.t’w4_hich’he’readtV»’outi:’_reac§s.as_”*.
follows:
“Where once the’ i.Com_rngr”«.reachedA the
conclusion that he had the extent
sought by thepeti_tioriery’responi:ient’%4;.o’r any other
applicant, it. thjatithe .gDep.uty:’Commr cannot
grantior _rejecvt*_any,appiicatio_n for the area of land
that e§<cesslh';2s:l;iioi*vers. "
9. fiihe leamieid’ ‘1Ad’diti:onal Advocate General, Sri i<.M.
a scheme of the Land Revenue Act, Land
Re\re–n:ue-_i§ules~..a'iiVdf'-lcand Grant Rules is such that the application
the "-regularighizfation of unauthorised occupation has to he
""':ictons"idggered..only by the third respondent Committee. The
a'pplica'tio.n's for the grant of certain lands can be considered by
.,D.eputy Commissioner. The learned Additional Advocate
lhl"–«V.AVAG"eneral makes subtle distinction between the application for the
grant of land and the application for the regularization of
unauthorised occupation. The regularization of una4u'thoti'sed
occupation pre-supposes the occupation of the '~lia'hcié
unauthorisedly. On the other hand, the_a.pp_i_i'can'tH§o"r' 'o_Vfu"
land need not be its occupant.
10. The learned Additional Ad’v.oc»ate Genetalv-isuabimits that
the legislature has conferredthe the Committee,
as is evident from the provisionsA,_co’.ntafined,:’in{S;e.ction 94–A(1) of
the Karnataka Lan;d”Re§L=’enu_e said provision is
extracted herei ‘
“9<};}i"(xV1')iA tufes as may be
prescrib_ed_ the Government shall, by
notification, iicoiistitute .f'c_;r each taluk a committee
consistiog oi' such 'number of members not exceeding
fiv-e.€of,.A'-whom one '''shall be a member of Legislative
' .4issem'b[y*f'or::"th_e purpose of grant of land under sub-
11_. ll-ive':'brings to my notice the Rule 1080 of the said
with the procedure that the Regularization
'nCpVm.m.irttee has to follow. The said Rule is extracted
fih'erei nbelow:
fiifitt
“1080. Procedure of the Committee: (1) The
Committee or the Additional Committee shall, a4fter__c..,_
verifying the particulars furnished by the appii£’3ARf_’i”‘.j’
and after holding such enquiry as it deems nei?:gé’ssaryi’
determine the extent of land to which the
is entitled for grant and the amountiirequired’ Vto”be.,___ it
paid by him for the grant and the amount reqLiire’d”to’3′:
be paid by him for the grant “land, pubiish fa hhhcei
which shall be in Form No.52…iinrthe_,gChavadiyofiithe
Village in which the _is*’_V_situa’teo’» also in the
Office of the Mandal invitit;g__’.’.objections
from the interested proposed grant,
within such be -specifiedwbwin the notice,
which shail._not:j_be’w”iessb”.:ti:an”‘b’fifteen days from the
date
(2) the period specified in the
notice thekcommittee or the Additional Committee
shaft, considering the objections received and
. after _furth.er~.,enquiry, if necessary, recommend for
griangt unauthorisedly occupied by the
ap_plicant”of’to dismiss it subject to the provision of
_ Rule .,1o:§_3~1.
, On such recommendations, the Tahsildar who
‘shall be the Secretary of the Committee or the
C V’ “Additional Committee, as the case may be, shall,
issue an order of grant and issue certificate of grant
33%
or Saguvali Chit in Form VII specified under
Karnataka Land Grant Rules, 1969; or dismiss the
application, as the case may be;
(4) First instalment shall be paid in accorda’n7ce.’._!:
with clause (a) of subsection (6) of sgiiai Etlfldhflé
remaining two instalments of .:’vi-ii”IOUn’1′ if A
any, shall be paid by the applicahtt
from the expiry of the last date fixedfor paymen:t_of it
first instalment.
(6) Appeal against ;:oi”:I’er£f: “the Tahsildar
on the recommendations-of ‘the shall lie
to the Assistant:VComnjission:e,i,:: of Additional
Committee shall the Commissioner. ~
12. The A6tilti’o’nai’*:.AAci\rocaEe Genera: aiso brings to my
notice theinon ohst-ahVte”‘cEa’:ise contained in Section 94—A(6) of
the Revflehue Act, 1964, which states that the
the order of grant of land, on the
h’xsirecommetgdations.3’ot the Committee or the additionai Committee.
‘ Vrfirovisiom-‘eads as foiiows:
–..V”–..”§i¥4~A(6), Notwithstanding anything contained in
the preceding sub-section, —
(a) The Tahsildar concerned shall issue the order
of the grant of land, on he recommendations
H}
of the Committee or additional Committee, as
the case may be, if any, and issue the saguvali
chit. The amount payable if any, shall be paid
in three equal instalments, of which the
one shall be before the expiry of a periohd -1-
thirty days from the date of communlCation»A.l.:of._
the order of grant and the “‘rem’aininof’two’57’ I
within such period as may be pi?eséribed,” ” it
(b) xxxx
(C) The trees, if any,~.standingn the land”gra’nted
and granite in ism; sha_ll,;Continue to
belong to._the C50-verjnment, ‘i4il7ioh{.’may at its
dis;§,ds,edM arr it, in such manner
as it ., ‘ C
13. TheC:_”quest’ion..:’thhatsfalis from my consideration is
v\i_hether’,t_ne trhirdxréseovnderit Committee has the competence to
:’clonsideri,Vl’:t:~erlapeii<:ation for the reguiarization' of unauthorised
occudaa-di:.lAd=r gonna: land failing within the forbidden radius.
VTVo_answér this iesiue, the various provisions of the Act and Ruies
framed thereunder. are to be considered harmoniously. I do not
a"ny"head—0n coiiusion between the statutes and the Ruies,
it anti 'if"there is a confiict betwegrghe statute and the Rules, the
ll
provisions of the statute shall prevail over those of the rules.
The provisions contained in Section 94-A(1) and 94-A(6) which
are extracted hereinabove confer the power of considering the
application for the regularization of unauthorised occupa'ti'o»n on
the Committee.
14. As pointed out by the learned4AdditioIna.l(pdilcixxfiocatellwl
General, the subtie distinction has to;’~,be1’_’_’drawn.
appiication for the grant of the land’-a__nd thenapplli-cation-for thew
reguiarization of unauthorised occu.pati.oni_,g The’a.ppli{:ation for
the regularization of the un”aultgh.o’ricse{–dg}occupation pre–supposes
the possess_ion””o’r~ On the other hand,
the applicant’~fo_r4.the«gVran~t_lfu«r;the~~’land may not be the occupant
of the land. _ Th’e4°provisi”,onsv.loVf”‘tVhe Rules conferring the power on
the C-omm&iss’ion’e’r”‘for disposing of the application are in
reslpect_of’th:e._app’lica_::ion for grant of the land. Rule 1081) of the
‘W….said Ruies dea’|’in;g’i:;with the procedure of the Committee aiso
..’.{.”::(7.3al.l’i’!.:.iTeS the position. In the resuit, I negative the submission
.o_n”}behalf of the petitioner that the third respondent
‘ ‘V:u”iCornmigttee has no competence to dispose of the petitioner’s
ia_pp’lication for the regularization of unauthorised occupation.
fig};
But it does not mean that the endorsement issued by the
respondent No.2 is upheld on merits. The petitioner’s grievance
over the issuance of the impugned endorsement hasitos be
agitated by way of appeal before the Assistant
provided under Rule 108D(6) of the said Rules. t
15. This petition is dismissed, but
to the petitioner to avail of the appeal remedy. :i’aifiia’ppealti:§4A
filed before the Assistant Commissioner, listavmelkishall be
disposed of by him on me:-i:ts~,._ wifthou:ti”bei,.n’g_influe’noed by the
dismissal of this petition.