Karnataka High Court
Sri. Chandrahasa Bhandary vs The State Of Karnataka on 18 November, 2021
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2021
PRESENT
THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT APPEAL NO. 346 OF 2021(KLR-RR/SUR)
BETWEEN:
1. SRI.CHANDRAHASA BHANDARY
AGED 62 YEARS,
S/O SRI AITHAPPA BHANDARY
R/AT KANNAKKURU HOUSE,
BELMA VILLAGE, MANGALORE TALUK
D.K.DISTRICT-574 199
2. SRI.ABDUL KAREEM
S/O B.K.HASANABBA
AGED ABOUT 54 YEARS,
R/AT KANAKOOR HOUSE,
BELMA VILLAGE,
MANGALORE TALUK-574 199
(BENEFIR SENIOR CITIZEN IS NOT CLAIMED)
...APPELLANTS
(BY SRI.PUNDIKAI ISHWARA BHAT, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP . BY ITS SECRETARY
2
DEPARTMENT OF REVENUE,
M.S.BUILDING, BENGALURU-560 001.
2. THE DEPUTY COMMISSIONER
DAKSHINA KANNADA DISTRICT,
MANGALORE, D.K-575 001.
3. THE COMMITTEE FOR REGULARIZATION OF LAND
MANGALORE TALUK,
D.K-575 001
REP BY ITS CHAIRMAN
4. SRI.K. ABDULLA
AGED 63 YEARS
S/O HASANABBA
R/AT BARUVA HOUSE, BELMA VILLAGE
MANGALURU TALUK - 574 199
5. SRI. HAMMABBA
AGED ABOUT 81 YEARS
S/O B. MOHAMMAD
R/AT KANAKOOR HOUSE
BELMA VILLAGE
MANGALURU TALUK -574 199
6. SRI. SHEKAR SHETTY
AGED ABOUT 73 YEARS
S/O SHEELVTHI SHETTY
R/AT KANAKOOR HOUSE
BELMA VILLAGE
MANGALURU TALUK - 574 199
7. SMT. HALEEMAMMAA @ MOLU
AGED 84 YEARS
D/O HALEEMAMMA
R/AT BELMA VILLAGE
MANGALURU TALUK - 574 199
...RESPONDENTS
(BY SRI.S.S.MAHENDRA, AGA FOR R1 & R2;
3
NOTICE TO R3 IS SERVED & UNREPRESENTED)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO SET ASIDE THE ORDER DATED
06/02/2021 PASSED BY THE LEARNED SINGLE JUDGE IN WP NOS.
50200-50205/1992 IN SO FAR AS APPELLANTS ARE CONCERNED.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.11.2021, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, SACHIN SHANKAR MAGADUM J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The captioned appeal is filed assailing the correctness of the order dated 6.2.2021 passed by the learned Single Judge in W.P.Nos.50200-50205/2014.
2. The facts leading to the case are as under:
The appellants are claiming Kumki rights in agricultural lands bearing survey No.96/1A. The appellants claim that they are in possession and enjoyment of a certain portion of Survey No.96/1 as kumkidhars and accordingly, they have submitted an application before the competent authority seeking regularization of their kumki rights. The appellants' claim that their applications are pending for consideration. 4 This being the factual matrix, the Deputy Commissioner, Mangaluru, issued a notice on 13.1.2003 informing the appellants that kumki rights, if any, stand extinguished as it has resolved to form house sites in government lands to allot the same under Ashraya Scheme to the weaker sections of the society. The Deputy Commissioner under the said notice called upon the appellants to file their objections, if any. The appellants feeling aggrieved by the notice approached this Court by filing writ petition in W.P.8849-8858/2003, which was disposed directing respondent No.2-Deputy Commissioner to hold an enquiry after giving sufficient opportunity to the appellants herein.
3. The appellants grievance is that 2nd respondent- Deputy Commissioner contrary to the directions of this Court without holding proper enquiry passed the order and thereby extinguished the kumki privilege as enjoyed by the appellants. Against the said order, the appellants preferred an appeal before the Karnataka Appellate Tribunal(KAT). The KAT 5 dismissed the appeal and the same is confirmed by the learned Single Judge by the impugned order. Feeling aggrieved by the order of the learned Single Judge, the present writ appeal is filed.
4. Learned counsel appearing for the appellants reiterating the grounds urged in the appeal would vehemently argue and contend before this Court that respondent No.2- Deputy Commissioner has no jurisdiction to withdraw the kumki privilege and this aspect has not been examined by the Tribunal as well by the learned Single Judge of this Court. The learned counsel further placing reliance on the ratio laid down by the Apex Court in the case of State of Mysuru and others .vs. K. Chandrashekar Adiga and another1 would submit to this Court that though the facts in the judgment cited supra are different but however the ratio decidendi would squarely apply to the facts of the present case. He would further submit to this Court that the learned Single Judge 1 AIR 1976 SC 853 6 erroneously applied the ratio laid down in the case of K.Sham Bhat and others .vs. State of Karnataka, by Secretary, to Government Revenue Department, Bangalore and others2 and therefore, the finding arrived at by the learned Single Judge that kumki holders have no right over the kumki lands is erroneous and would warrant interference at the hands of this Court.
5. Repelling the contentions urged by counsel appearing for appellants, learned Additional Government Advocate would submit to this Court that Kumkidhar has no pre-existing right over the kumki lands and kumkidhar is only granted certain privileges including right to collect leaves, manure and firewood for domestic and residential requirements and therefore, he would submit to this Court that these privileges are subject to the control of the Deputy Commissioner and therefore, they cannot be equated with the right of the property. To counter the claim made by the 2 ILR 2003 KAR 3026 7 appellants, the learned Additional Government Advocate would place reliance in Shambhat's case(supra). Placing reliance on this judgment, he would submit that it is well within the authority of the Deputy Commissioner as contemplated under Section 79(2) of Karnataka Land Revenue Act, 1964 (for short "KLR Act") to extinguish kumki privilege. He would conclude his arguments by stating that individual right of appellant needs to be examined in the light of interest of public at large. If the waste land is resolved by the State to utilize the same to provide housing sites for weaker section of the Society, it is the public interest at large which would prevail over an individual right. On these set of defences, learned Additional Government Advocate would submit that the order passed by the KAT, which is affirmed by the learned Single Judge of this Court does not warrant any interference at the hands of this Court.
6. Heard the learned counsel for appellants and learned Additional Government Advocate and perused the 8 records. We have also given our anxious consideration to the findings recorded by the KAT and the learned Single Judge. We have also perused the standing orders of Board of Revenue and also the judgment relied on by the appellant rendered in the case of State of Mysuru and others vs. Chandrashekara(supra).
7. The short question that would arise for consideration before us is as to whether respondent No.2- Deputy Commissioner has power to withdraw the kumki privileges. The said issue is dealt with by this Court in K. Shambhat's case. In the said case, the Division Bench of this Court had an occasion to examine the scope and power of the Deputy Commissioner under Section 79(2) of the KLR Act. While interpreting the provision of the above said Section, this Court was of the view that it is not possible to take a view that sub-section(2) of Section 79 does not confer power on the State Government to extinguish the kumki rights. While the said provision specifically provides that kumki rights would 9 continue, the same provision provides that the continuance of kumki rights is subject to general or special orders that may be passed by the State Government from time to time. When the statute which provides for continuance of kumki rights also makes the continuance of such kumki rights subject to general or special orders of the State Government, such power must be understood as conferring power on the State Government to extinguish the continuance of kumki rights. The power of the State Government to pass appropriate orders under Section 79 sub-clause(2) has been delegated to the Deputy Commissioner. The Deputy Commissioner in his order has extinguished the kumki rights of the appellants, if any, in respect of the lands in question. The right to regulate the kumki rights has to be understood as the right to extinguish the kumki rights, depending upon the facts and circumstances of the case and the need of the State Government to make the land available to the State Government for disposal for public purpose. Therefore, the appellants on this point cannot detain 10 this Court for long as the issue is put to rest in the judgment cited supra and the issue is no more resintegra.
8. If the above said principle laid down by the Division Bench of this Court in the judgment cited supra is taken into consideration, then we are of the view that even if kumki rights are recognized as property rights, however, such rights are subject to statutory rules and they are exercised subject to Section 79(2) of KLR Act. On a reading of Section 79 of the KLR Act and the principles laid down by a Co-Ordinate Bench of this Court in K.Shambhat's case, the rights of the appellants if any are not absolute. We are also of the view that the kumki rights are not pre-existing rights and they can be curtailed, abridged or taken away by the competent authority in a given case having regard to the facts and circumstances of the case. Therefore, the judgment rendered by the Apex Court in the case of State of Mysuru and others .vs. K. Chandrashekar Adiga and another is not applicable to the present case on hand though we have no 11 cavil to the ratio laid down by the Apex Court in the aforesaid judgment. The appellants by seeking kumki rights are intending to enlarge their extent of land holding. Therefore, the said right is not absolute and the same is rightly declined in the present case on hand having regard to the public interest at large. The State with a noble cause has resolved to provide housing sites to weaker section of the society and when a public interest at large is pitted against an individual's cause, the public interest at large has to prevail. If the reasoning and the conclusions arrived at by the learned Single Judge is examined in the background of the above said facts, we are in total agreement with the findings recorded by the learned Single Judge. The grounds urged in the appeal memo would not displace the conclusions and findings arrived at by the learned Single Judge and therefore, would not warrant any interference at the hands of this Court.
9. Hence, we pass the following:
12
ORDER The appeal is devoid of merits and is accordingly dismissed.
No order as to costs.
The pending interlocutory applications, if any, stand disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE *alb/-