Karnataka High Court
Gram Panchayat, Ugargol Village, ... vs State Of Karnataka And Others on 27 October, 1998
Equivalent citations: 2000(1)KARLJ120, 1999 A I H C 1025, (2000) 1 KANT LJ 120
Author: P.Vishwanatha Shetty
Bench: P.Vishwanatha Shetty
ORDER
The petitioner, in this petition, is a Village Panchayat.
2. In this petition, the petitioner has called in question the correctness of the orders dated 11th of July, 1997 and 6th of September, 1997, copies of which have been produced as Annexures-E and F issued by the first respondent-State and the third respondent-Deputy Commissioner respectively.
3. It is the case of the petitioner that the petitioner-Panchayat consists of Ugargol, Harlapur and Yellammana Tanda villages. It is claimed that it is the duty of the Gram Panchayat to look after general welfare of the inhabitants of the village and also to promote breeding of cattle, poultry and other livestock and it is one of the functions of the Panchayat to maintain grazing lands and to prevent its unauthorised alienation and use. As can be seen from the averments made in the petition, there was a gomal land measuring 329 acres 25 guntas in Block No. 992; 654 acres 29 guntas in Block No. 993; 615 acres in Block No. 953; and 286 acres 22 guntas in Block No. 956, and in all measuring 1,940 acres 35 guntas, situated at Ugargol village. According to the petitioner, out of the said lands, land measuring about 52 acres were granted to certain landless persons; in an area of about 10 acres, a grave yard has been formed; and the Forest Department is in occupation of about 300 acres thus leaving only 1,578 acres 35 guntas of gomal land in Ugargol Village.
4. In this petition, as observed by me earlier, the petitioner has called in question the correctness of the orders Annexures-E and F, whereby respondents 1 and 3 have, in the purported exercise of the power conferred on them under Rule 97(4) of the Karnataka Land Revenue Rules, 1966 (hereinafter, referred to as "the Rules"), dereserved the gomal land measuring 1,097 acres situated at Ugargol village and reserved the same for the purpose of the 5th respondent-Institution in exercise of the power conferred under Section 71 of the Karnataka Land Revenue Act, 1964 (hereinafter, referred to as "the Act"). According to the petitioner, the impugned orders seriously affect the rights of the villagers; and if the impugned orders are given effect to, the villagers will be deprived of their right to graze their cattle on the gomal land, which is absolutely required by the villages. It is also asserted in the petition that the lands situated at Ugargol and Harlapur villages are all dry lands and the villagers had to depend upon the rain for cultivating their lands and that being the position, the villagers have taken up Dairy Farming and Poultry Farming as their main profession and in that regard, they foster cattle and breed them. It is also stated in the petition that as per the 1990 Census, there were 7,723 cattle in Ugargol and Harlapur villages and 820 catties in Yellammana Tanda village; and since 1990, the cattle strength has increased considerably. According to the petitioner, the cattle of the village require more than an area of 3,000 acres as gomal land according to the norms fixed under Rule 97 of the Rules having regard to the cattle strength in the villages; and if the impugned orders are given effect to, the villagers will have hardly about 500 acres. The petitioners have also stated that the Village Panchayat has passed a Resolution dated 8th August, 1997 requesting the respondents to withdraw the impugned orders. It is their further case that similar resolution has been passed by the Co-operative Society requesting the respondents to withdraw the impugned orders. It is also stated that since the Authorities have not withdrawn the impugned orders, there was wide-spread protest by the villagers and a 'bundh' was also observed by the villagers on 20th of October, 1997. It is also the case of the petitioner that the land in question has been dereserved from gomal and has been reserved for the purpose of the 5th respondent just to oblige Sri G.M. Mamoni, Deputy Speaker of Vidhana Sabha, as he happens to be the Chairman of the 5th respondent-Institution.
5. Respondents 1 to 4 have filed their objections and disputed the claim of the petitioner that on account of the impugned orders, the villagers are put to any difficulty or hardship. It is the case of respondents 1 to 4 that the land in question are barren rocky land, which is totally unfit for grazing any cattle and, therefore, on account of the impugned orders, the villagers are not put to any hardship. It is the further stand of respondents 1 to 4 that the land in question being the Government land, the first respondent being the State and owner of the said land, has passed the impugned order at Annexure-E dereserving the said land from gomal and reserving the same for the purpose of the 5th respondent-Institution as the land is required for public purpose. It is the case of the respondents that the 5th respondent is an Institution incorporated under the provisions of the Renuka Yellamma Devasthana Act and it functions through the Committee nominated by the first respondent of which the Deputy Commissioner of the District is the Chairman. In the additional statement filed on behalf of respondents 1 to 4, the details of the cattle strength as per the 1990 Census and also Gomal land available in Ugargol and other neighbouring villagers, which is a part of the petitioner-Panchayat, are given. It is useful to refer to paragraph 5 of the additional Statement of Objections, which reads as hereunder:
"The total cattle in the Ugargol Village is 5,117 as per the 1990 cattle census. The total Gomal lands available in Ugargol village and the adjoining villages as per Record of Rights annexed herewith are as follows:
UGARGOL VILLAGE:
Sy.No. Acres Guntas
1. 992 379 06
2. 993 654 28
Out of these two Sy. Nos. 1034 Acres were granted.
3. 963 615
-
4. 956 280 22
5. 126 52 11 Total 1981 26 Out of these lands granted to the RYT Trust is 1,034 Acres and 13 Guntas. Remaining area in the said village as Gomal is 943 Acres 13 Guntas.
HARLAPUR VILLAGE:
Gomal lands available is 114 Acres and 22 Guntas.
KURUVINAKOPPA VILLAGE:
Gomal lands available is 317 Acres and 20 guntas (it is a Shirasanghi Trust Property) - being used for grazing cattle.
BETTASUR VILLAGE:
Gomal land available is 536 Acres 33 Guntas.
YEDRAVI VILLAGE:
Gomal land available is 312 Acres 35 Guntas.
Total acres of Gomal lands available in the above adjoining villages of Ugargol Village which is used by the cattle of Ugargol and the adjoining villages for grazing is 1,280 acres.
As per the catties in the Ugargol Village (5,117) the total land required as Gomal is 1,523 Acres.
Available is 947 Acres 13 Guntas. Short by 578 Acres.
If the lands available in the adjoining villages is taken into account a further extent of 1,280 Acres are available for grazing.
In view of 1,055 Acres of irrigated lands being available in Ugargol Village, wherein two crops are grown, enough fodder is available to the cattle in Ugargol Village.
The lands granted to Sri Renuka Yallamma Temple Trust is rocky land on which nothing grows".
The stand taken by the 5th respondent is almost identical to the stand taken by respondents 1 to 4. All the respondents have categorically denied the assertion of the petitioner that the land in question has been dereserved from gomal and the same was reserved for the purpose of the 5th respondent-Institution at the behest of Sri G.M. Mamoni, Deputy Speaker of Vidhana Sabha; and he is the Chairman of the 5th respondent-Institution.
6. Sri S.M. Byadgi, learned Counsel appearing along with Sri C.S. Patil for the petitioner, challenged the impugned orders mainly on five grounds. Firstly, he submitted that since the provisions have been made under Rule 97 of the Rules providing for reservation of the Government land for pasturage; and sub-rule (4) of Rule 97 of the Rules confers power on the Deputy Commissioner to dereserve the land taking into consideration the relevant circumstances, the first respondent had no power under the provisions of the Act and the Rules framed thereunder to pass the order at Annexure-E dereserving the land from gomal purpose and to reserve the same for the purpose of the 5th respondent-Institution. Secondly, he submitted that since admittedly the order at Annexure-F has been passed by the third respondent pursuant to the order at Annexure-E passed by the first respondent, the order at Annexure-F is liable to be quashed on the ground that the said order has been passed on account of the dictation of the first respondent and in total disregard of the provisions contained in sub-rule (4) of Rule 97 of the Rules. According to him, since power has been conferred on the Deputy Commissioner under sub-rule (4) of Rule 97 of the Rules to reduce the extent of the land reserved for gomal purpose, the said power is required to be exercised by the Deputy Commissioner alone and not by anybody else. In support of this submission that the order at Annexure-F has been passed on account of the dictation of the first respondent is liable to be quashed, he relied upon a decision of the Supreme Court in the cases of Commissioner of Police, Bombay v Gordhandas Bhanji and Bangalore Medical Trust v B.S. Muddappa and Others. Thirdly, he submitted that since the land in question is admittedly a gomal land and has been reserved for the purpose of grazing village cattle, the impugned order at Annexure-F is liable to be quashed on the ground that the Deputy Commissioner has failed to pass an order recording his reasons that he is of the opinion that the extent of free pasturage is required to he reduced below the prescribed limit. Elaborating this submission, he pointed out that unless the Deputy Commissioner makes an order recording reasons after taking into consideration all relevant circumstances that he is of the opinion that the extent of the free pasturage is required to be reduced below the prescribed limit, it is not permissible for him to reduce the extent of land already reserved as gomal. He also submitted that since the order impugned does not state any reasons for the conclusion of the Deputy Commissioner for reduction of the gomal land and it is solely based on the direction given by the first respondent-State in the order at Annexure-E, it is not permissible for the respondents to support the order at Annexure-F by giving reasons in the Statement of Objections filed by the respondents. In support of this submission, he relied upon the decision of the Supreme Court in the case of Mohinder Singh Gill and Another v Chief Election Commissioner, New Delhi and Others. Fourthly, he submitted that since the land in question has been reserved for the purpose of free pasturage of the cattle of the village as gomal land in terms of Section 71 of the Act and if the Deputy Commissioner intended to dereserve the land from gomal for any other purpose, he should have notified the proposal to the members of the general public and called for their objections; and on consideration of such objections and other relevant matters alone, he could have proceeded to make an order in terms of Rule 97(4) of the Rules. In support of this submission that the villagers have a right of hearing in a matter like this, he relied upon the decisions of this Court in the cases of Manjunatha K.P. and Others v State of Karnataka and Others and B. Veeranna and Others v State of Karnataka and Others. Finally, he submitted that having regard to the total cattle strength in the villages in question, the extent of gomal lands available in the villages in question being highly disproportionate to the total extent of the land required to be reserved for the purpose of free pasturage in terms of Section 71 read with sub-rule (1) of Rule 97 of the Rules, the impugned orders are liable to be quashed on the ground that they have been passed without taking into consideration the interest of the village cattle, the interest of the rural agriculturists and in an arbitrary manner. According to the learned Counsel, if the impugned orders are allowed to stand, it would seriously affect the interest of the village cattle and it would seriously affect the village community and right to livelihood guaranteed to the rural agriculturists. Elaborating this submission, he pointed out that keeping in mind that large number of villagers depend upon their livelihood on the cattle strength, provisions have been made under the Act and also the Rules framed thereunder to reserve the Government land for the purpose of free pasturage for the cattle of each village at the rate of 12 hectares for every hundred heads of cattle. Therefore, the learned Counsel would point out that unless there is sufficient material on record to show that there is equally alternative mode of pasturage is available in the village, it is not permissible to reduce in a mechanical manner the land which is already reserved for pasturage. It is his submission that village cattle are as important as human beings, especially when the villagers in the village mainly depend upon the agriculture and Dairy Farming for their livelihood. He submitted that all these matters have been given a total go-by while passing the impugned orders and the impugned orders came to be passed in a mechanical manner and without application of mind and totally on account of extraneous and irrelevant considerations. It is also his submission that the 5th respondent-Institution does not require 1,034 acres of land and the reservation of such a vast extent of land is totally disproportionate to the need of the public, who visit Yellamma Temple a few days in a year. He also pointed out that the claim made in the impugned orders that 15 lakhs of devotees visit the temple, is totally baseless and the figure given in the impugned orders that 15 lakh devotees visit the temple itself clearly demonstrates that the impugned orders came to be passed without application of mind and in a mechanical manner. According to him, the devotees who visited the temple from the year 1993-94 to 1996-97, at no point of time, exceeded 11 lakhs per year. In this connection, he drew my attention to the Certificate dated 4th of November, 1997, a copy of which has been produced as Annexure-V, issued by the Chief Officer of the 5th respondent-Institution, which discloses that 7,13,373 was the minimum number of devotees who visited the temple during the year 1993-94 and 10,84,999 was the maximum number of devotees who visited the temple during the year 1995-96.
7. However, Sri Kotian, learned Government Advocate, and Sri Ananth Mandagi, learned Counsel appearing for the 5th respondent, strongly supported the impugned orders. They pointed out that the impugned orders have been passed taking into account the availability of alternative land and also keeping in mind the irrigation facilities available in the area; and the land in question is required for a public purpose and it would not affect the interest of the village cattle or villagers in any manner. According to them, since large number of devotees are visiting the temple, with a view to provide facilities to the devotees, it has necessitated the passing of the impugned orders. It is their submission that the land in question though shown as gomal land, was never used for the purpose of pasturage of the village cattle as the said land was totally unsuitable for the said purpose as the said land is a barren, rocky land without any grass growing on the said land. It is their further say that the devotees used to assemble on the land in question and use the said land; and since there has not been any facilities provided, with a view to provide facilities to the devotees and develop the land in question, the impugned orders came to be passed. They also submitted that since the land in question belongs to the State Government, the first respondent-State Government was competent to pass the order at Annexure-E. In this connection, they drew my attention to Section 71 of the Act wherein power is conferred on the Deputy Commissioner to set apart the property of the State Government for free pasturage of village cattle, subject to general orders of the State Government. They would submit that the power conferred on the State Government to issue general orders must be understood as the power conferring on the State Government to make special orders, like, the one made as per Annexure-E notwithstanding that the rules framed under Rule 97 of the Rules provide for reservation of the land for free pasturage by the Deputy Commissioner and dereservation of the same in terms of sub-rule (4) of Rule 97 of the Rules by him. In other words, it is their submission that even if the lands are reserved for free pasturage of the village cattle and the power of dereservation is conferred in terms of sub-rule (4) of Rule 97 of the Rules on the Deputy Commissioner, the State Government is entitled to pass an order dereserving the lands from gomal and reserve the same for any other purpose in exercise of the power conferred on it under Section 71 of the Act. They also alternatively submitted that in the instant case, the Deputy Commissioner has exercised the power de hors the orders at Annexure-E passed by the State Government in exercise of the power conferred on him under sub-rule (4) of Rule 97 of the Rules and, therefore, the order at Annexure-F is not liable to be quashed even if the order at Annexure-E is quashed. Further, Sri Mandagi also submitted that huge money has been sanctioned by the Government of India for the purpose of development of the land in question and a Project has also been drawn for the said purpose. In this connection, it is useful to refer to the statement made in paragraph 3 in the application filed by the 5th respondent seeking vacation of the interim order, which reads as hereunder:
"The Central Government has also sanctioned Rs. 1.9 crores from the Central Road Fund for forming the main and connecting Roads in accordance with the Master Plan. For the above said work, out of 1.9 crores, the Central Government has sanctioned Rs. 1 crore and Rs. 90 lakhs is borne by the State Government. The Temple trust has also already made payment of Rs. 50 lakhs to the National Highways Division, Belgaum, to start the roadworks immediately. The National Highways Division, Belgaum, has already called for tenders for forming the Roads. The tender has been accepted and the work of forming the road has already commenced. The temple authorities have undertaken the costs of shopping complex at an estimated cost of Rs. 307.12 lakhs. The administration and technical sanction have been obtained by the competent authorities and this work is under progress. The Temple Trust has also taken up the construction of commercial shop at an estimated costs of Rs. 42.54 lakhs. This work has been entrusted to Public Works Department Division, Belgaum and the same has been already started by the Public Works Department Division, Belgaum. For convenience and free movement of large number of devotees visiting the Devasthana, the Temple Trust has taken up construction of 80 feet approach Road to main Temple at an estimated cost of Rs. 30 lakhs. 50% of this work has already been completed. And also the Temple Trust has decided to construct more number of dormitories, choultries, open shelters, semi-open shelters, lavatories and staff quarters in accordance with the Master Plan.....".
8. Before proceeding to consider the rival contentions advanced by the learned Counsel appearing for the parties, it is desirable to refer to Sections 69, 71 and 72 of the Act and Rule 97 of the Rules, which read as hereunder:
"69. Disposal of lands or other property belonging to State Government under Section 67.--Subject to such rules as may be made in this behalf, the State Government, the Divisional Commissioner, the Deputy Commissioner, the Assistant Commissioner in-charge of a Taluk or Taluks and the Tahsildar, may dispose of land or other property belonging to the State Government under Section 67 or otherwise, for purposes of agriculture, industry or any public utility and subject to the provisions of Chapter XII for the construction of buildings.
71. Lands may be assigned for special purposes and when assigned, shall not be otherwise used without sanction of the Deputy Commissioner.--Subject to the general orders of the State Government, Survey Officers, whilst survey operations are proceeding under this Act, and at any other time, the Deputy Commissioner, may set apart lands, which are the property of the State Government and not in the lawful occupation of any person or aggregate of persons in any village or portions of a village, for free pasturage for the village cattle, for forest reserves or for any other public purpose; and lands assigned specially for any such purpose shall not be otherwise used without the sanction of the Deputy Commissioner; and in the disposal of lands under Section 69 due regard shall be had to all such special assignments.
72. Regulation of use of pasturage.--The right of grazing on free pasturage lands shall extend only to the cattle of the village or villages to which such lands belong or have been assigned, and shall be regulated by rules or orders made generally or in any particular instance, by the State Government. The decision of the Deputy Commissioner in any case of dispute as to the said right of grazing shall be final.
97. Providing free pasturage.--(1) Government land shall be set apart for free pasturage for the cattle of each village at the rate of twelve hectares for every hundred heads of cattle.
Explanation.--In calculating the heads of cattle, calves or cow or buffalo shall be taken as equivalent to one head of cattle.
(2) If there is sufficient forest area in the village concerned or in the adjoining village to enable the village cattle to graze, the area to be set apart as free pasturage may be reduced correspondingly.
(3) If there is no grazing land available in a village or the land available falls short of the extent prescribed under sub- rule (1) the deficit may be made up by setting apart Government land available in the adjacent village.
(4) The Deputy Commissioner shall determine the extent of land necessary to be set apart for free pasturage in any village. If in the opinion of the Deputy Commissioner the extent of pasturage should exceed the minimum prescribed in sub-rule (1) he may so set apart such larger extent as may be necessary. If on the contrary he considers that the area already so set apart lies much larger than what is really required he may reduce it to the prescribed minimum. Whether after having taken all relevant circumstances into consideration, he is of the opinion that the extent of free pasturage may be reduced below the prescribed limit, he may after recording reasons therefor so reduce the extent:
Provided.....".
9. Now, let me examine each of the contentions urged by the learned Counsel appearing for the petitioner.
10. Now, the important question that would arise for consideration in this petition is, whether the Government, notwithstanding the provision made under Rule 97 of the Rules, could pass an order dereserving the land, which has been reserved as gomal, and again reserve it for any other public purpose? My answer on this question would be, to a large extent, an answer to many of the submissions made by the learned Counsel appearing for the parties.
11. Section 69 of the Act confers power on the State Government, the Divisional Commissioner, the Deputy Commissioner, the Assistant Commissioner in-charge of a Taluk or Taluks and the Tahsildar, subject to such rules that may be made to dispose of lands or other properties belonging to the State Government for the purpose of agriculture, industry or any public utility etc. Section 71 of the Act enables the Deputy Commissioner subject to the general orders of the State Government, to set apart lands which are the property of the State Government and not in lawful occupation of any person or aggregate of persons in any village or portions of a village for free pasturage for village cattle or for a forest reserve or for any other public purpose. The said section further provides that the lands assigned specifically for any purposes, shall not otherwise be used without the consent of the Deputy Commissioner; and in the disposal of lands under Section 69 of the Act, due regard shall be had to all such special assignments. Section 72 of the Act provides that right of grazing on free pasturage lands shall extend only to the cattle of the village or villages to which such lands belong or have been assigned, and shall be regulated by rules or orders made generally or in any particular instance, by the State Government; and the decision of the Deputy Commissioner in case of dispute with regard to the right of grazing shall be final. Sub-rule (I) of Rule 97 of the Rules makes it obligatory to set apart land for free pasturage for the cattle of each village, at the rate of 12 hectares for every hundred heads of cattle. Sub-rule (2) of Rule 97 further provides that if there is sufficient forest area in the village concerned or in the adjoining village to enable the village cattle to graze, the area to be set apart as free pasturage may be reduced correspondingly. Sub-rule (3) of Rule 97 provides that if there is no grazing land available in the village and the land available falls short of the extent prescribed under sub-rule (1), the deficit may be made up by setting apart Government land available in the adjacent village. Sub-rule (4) of Rule 97 confers power on the Deputy Commissioner to determine the extent of land necessary to set apart for free pasturage in a village. The said provision further confers discretion on the Deputy Commissioner to reserve land for free pasturage in excess of the limit prescribed under sub-rule (1) of Rule 97 of the Rules; and if the reservation already made for free pasturage is larger than what is really required, he could also reduce it to the prescribed minimum. Sub-rule (4) of Rule 97 further confers power on the Deputy Commissioner that if he is of the opinion after taking into consideration all relevant circumstances, that the extent of free pasturage may be reduced below the prescribed minimum, he may, after recording reasons, reduce the extent. While Section 71 of the Act, subject to the general orders of the State Government, confers power on the Deputy Commissioner to set apart any Government land for the purpose of free pasturage for the village cattle, Rule 97 of the Rules, as noticed by me earlier, provides for the extent of the land to be reserved for free pasturage taking into account the number of catties in each village and also to reduce it.
12. Now, the question is whether the language employed in Section 71 which states "subject to the general orders of the State Government" overrides the power conferred on the Deputy Commissioner under sub-rule (4) of Rule 97 of the Rules, which empowers him to reduce the land which has been reserved for free pasturage below the prescribed minimum?
13. While Sri Byadgi would want me to understand the words "subject to the general orders of the State Government" referred to in Section 71 of the Act as meaning that it is in the nature of a general guidance to be given to the Deputy Commissioner, Sri Kotian and Sri Mandagi would vehemently submit that the said provision must be understood as reserving power on the State Government itself to make appropriate orders depending upon the circumstances of each case notwithstanding the provision made under Rule 97 of the Rules either for reservation of the land for pasturage and dereservation of the same by the Deputy Commissioner. However, having elaborately heard the learned Counsel for the parties on this aspect of the matter, I am of the view that the argument advanced by Sri Byadgi appears to me to be sound and is required to be accepted. The words "subject to the general orders of the State Government" occurring in Section 71 of the Act, must be understood as conferring power on the State Government to issue appropriate orders to set apart Government land for the purpose of pasturage of village cattle, only in the absence of the Rules framed providing for reservation of land for free pasturage of village cattle or dereservation of the same as provided under Rule 97 of the Rules. In the absence of Rule 97 of the Rules framed by the State Government, the power of the Deputy Commissioner to set apart any Government land for the purpose of free pasturage of village cattle and for other purposes referred to in Section 71 of the Act, is subject to the general orders of the State Government. In such a situation, even if the Deputy Commissioner has set apart a land for free pasturage of village cattle, it may be open to the State Government to pass an order dereserving the said land from free pasturage and to reserve it for any other purpose. This is also clear from reading the later portion of Section 71 of the Act wherein it is provided "and lands assigned specially for any purpose shall not be otherwise used without the sanction of the Deputy Commissioner". Section 71 of the Act enables the Deputy Commissioner to reserve the land for the purpose of free pasturage of the village cattle. The same section provides that the land so set apart shall not be used for any other purpose without the sanction of the Deputy Commissioner. Sub-rules (1), (2) and (3) of Rule 97 of the Rules provide for the extent of reservation of Government land for the purpose of free pasturage of the cattle. Sub-rule (4) of Rule 97 confers power on the Deputy Commissioner to determine the extent of the land necessary to be set apart for free pasturage in any village. Sub-rule (4) further empowers the Deputy Commissioner, if he is of the opinion after taking all relevant circumstances into consideration that the extent of free pasturage may be reduced below the prescribed limit, after recording the reasons, to reduce the extent. The provision made under sub-rule (4) of Rule 97 requires the Deputy Commissioner to satisfy himself after taking into consideration all the relevant circumstances that such reduction could be made. The same provision requires him to record reasons for so reducing the extent. Therefore, it is clear that the satisfaction of the Deputy Commissioner for reduction in the extent of the land reserved below the prescribed limit, must be based on the objective test and he is required to keep in mind the interest of the village cattle while so reducing the extent. The power to be exercised by him while reducing the extent of land reserved for free pasturage, must be exercised in a reasonable and fair manner and keeping in mind the interest of the village cattle. It should not be arbitrary, perverse or unreasonable. Under these circumstances, it is not possible to accede to the submission of Sri Kotian and Sri Mandagi that notwithstanding what is provided under Rule 97 of the Rules, under Section 71 of the Act, the State Government has got absolute power to dereserve the land, which has been reserved for the purpose of free pasturage of the village cattle, i.e., as gomal land. When the rules have been framed conferring power on the Deputy Commissioner as to how he should exercise that power, it is not possible to nullify the power conferred on the Deputy Commissioner by reading into the words "subject to general orders of the State Government" provided in Section 71 of the Act absolute power on the State Government to dereserve the land, which has been reserved for free pasturage in terms of Section 71 of the Act read with Rule 97 of the Rules by the Deputy Commissioner. The powers of the State Government as well as the Deputy Commissioner by virtue of the provisions contained in Section 71 of the Act and Rule 97 of the Rules, are regulated by the statutory provisions. Therefore, though the State Government is the highest Authority of the State, since the power of reserving the land for free pasturage for the cattle of the village and deserving the land below the prescribed limit, has been conferred on the Deputy Commissioner, the said power is required to be exercised only by the Deputy Commissioner and none else, howsoever the Authority, who passes the order, is higher in rank than that of the Deputy Commissioner. The provision contained in Section 72 of the Act does not make any difference. The said provision only deals with the right of grazing on free pasturage lands by the cattle of the village or villages to which such lands belong and the said provision provides that it should he regulated by Rules or orders made generally or in any particular instance by the State Government. Therefore, the orders made generally or in a particular instance, by the State Government, must be understood as meaning in the absence of any rule made in that behalf. Whenever there is a Rule framed, the order, if any, made by the State Government either generally or in a particular instance, will not supersede the provisions contained in the Rule.
14. In the light of the above conclusion, it is clear that the order Annexure-E passed by the State Government is one without the authority of law and the same is liable to be quashed.
15. Now, the question is whether the order Annexure-F has been passed by the Deputy Commissioner in exercise of the power conferred on him under sub-rule (4) of Rule 97 of the Rules or the same has been passed pursuant to the direction given by the State Government in the order Annexure-E? In other words, is it an order passed on the basis of the dictation of the first respondent-State Government as contended by the learned Counsel for the petitioner or is an order made by the Deputy Commissioner independently and without being influenced by the contents of the order Annexure-E.
16. No doubt, in the order Annexure-F, the Deputy Commissioner has referred to the report of the Tahsildar, the Assistant Commissioner and the Divisional Commissioner. Further, the Deputy Commissioner also has referred to the order Annexure-E passed by the State Government. The relevant portion of the said order reads as hereunder:
In order Annexure-E, the State Government has, in the purported exercise of the power conferred on it under sub-rule (4) of Rule 97 of the Rules, dereserved the said land from gomal; and reserved it for the purpose of the 5th respondent-Institution in the purported exercise of the power conferred on it under Section 71 of the Act. Further, in the said order, the State Government has directed the Deputy Commissioner to take immediate action. This is clear from the observation made in the order Annexure-E wherein it is stated as follows:
Further, in the Statement of Objections filed on behalf of respondents 1 to 4, at paragraph 4, it has been stated as follows:
"...Under the provisions of KLR Rules, 1966, Rule 97(4), Government under their Order No. RD 26 LGL 97, dated 11-7-1997 reduced from grazing and reserved under Section 71 of the KLR Act, 1964 in the name of Shri Renuka Yellamma Temple for the purpose of providing necessary amenities to the pilgrims. Annually nearly 15 lakhs of devotees from all over Karnataka and neighbouring States visit this temple to offer their poojas, etc".
Again, at paragraph 7 of the Statement of Objections, it is stated as follows:
"It is further submitted that the land in question is rocky hill area and Government under their Order No. RD 26 LGL 97, dated 11-7-1997 have reduced the gomal land and reserved in the name of Sri Renuka Yellamma temple. This process is in accordance with law and as per Government order. Accordingly, the Deputy Commissioner, Belgaum, has taken action in reserving the above land. The action of the Deputy Commissioner, Belgaum is in order".
Therefore, even from the stand taken by respondents 1 to 4 in the statement of objections, it is clear that the order Annexure-F came to be passed by the Deputy Commissioner pursuant to the order Annexure-E passed hy the State Government and in the light of the direction given in the said order. As observed by me earlier, under sub-rule (4) of Rule 97 of the Rules, it is only the Deputy Commissioner who is conferred with the power for reasons to be recorded in writing on consideration of all the relevant circumstances, who could reduce the extent of the gomal land below the prescribed minimum. Admittedly, the land in question is a gomal land. It is not in dispute that the impugned order reduces the extent of the land reserved as gomal, below the prescribed minimum. In the records of the Deputy Commissioner made available to me by the learned Government Advocate on my direction, I did not find anything to show that the Deputy Commissioner had independently applied his mind with regard to the total extent of the land available in the villages in question and the number of cattle heads and other alternative lands available for the purpose of fodder, etc., of the village cattle; and that he was satisfied that the extent of the land reserved for gomal, can be reduced. Therefore, I have no hesitation to come to the conclusion that the order Annexure-F came to be passed only pursuant to the order Annexure-E passed by the State Government. Hence, it is clear that the Deputy Commissioner, who is required to exercise the powers conferred on him under sub-rule (4) of Rule 97 of the Rules, had abdicated his functions and has passed the order Annexure-F on account of the dictation of the State Government made as per the order Annexure-E. The power conferred on the Deputy Commissioner is required to be exercised by him only on consideration of relevant circumstances. Since, while passing the impugned order Annexure-F, he has abdicated the powers conferred on him under sub-rule (4) of Rule 97 of the Rules, the order is liable to be quashed. In my view, I am supported by the decision of the Supreme Court, in the case of Commissioner of Police, supra. The Supreme Court, in the said case, while considering the power conferred on the Commissioner of Police, Bombay, in the context of the cancellation of licence granted to run a cinema theatre, has observed that when a power is conferred on an Authority, that Authority alone must exercise the power so conferred; and if the power or discretion so conferred on the Authority is exercised on the direction given by the higher Authority, such exercise of power is bad in law. It is useful to refer to the observations made by the Supreme Court at paragraphs 9, 10 and 17 of the said decision, which read as hereunder:
"An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority, cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Turning now to the language used we are clear that by no stretch of imagination can this be construed to be an order which in effect says--"I, so and so, by virtue of the authority vested in me, do hereby order and direct this and that". If the Commissioner of Police had the power to cancel the license already granted and was the proper authority to make the order, it was incumbent on him to say so in express and direct terms. Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.
It is clear to us from a perusal of these rules that the only person vested with authority to grant or refuse a license for the erection of a building to be used for purposes of public amusement is the Commissioner of Police. It is also clear that under Rule 250 he has been vested with the absolute discretion at any time to cancel or suspend any license which has been granted under the rules. But the power to do so is vested in him and not in the State Government and can only be exercised by him at his discretion. No other person or authority can do it".
The principle laid down in the said decision in all force applies to the facts of the present case.
17. One other contention of the learned Counsel appearing for the petitioner which may be required to be referred to, is whether the impugned order Annexure-F came to be passed without giving an opportunity to the villagers to file their objections and without hearing them; and whether they are entitled to be heard in the matter?
18. Since the land in question has been reserved in terms of Section 71 of the Act read with Rule 97 of the Rules for the purpose of free pasturage of the village cattle and sub-rule (4) of Rule 97 of the Rules confers power on the Deputy Commissioner to reduce the extent of the land reserved for the purpose of free pasturage of the village cattle below the prescribed minimum, I am of the view that the right accrued to the villagers on account of the reservation of the land in question made for the purpose of free pasturage of the village cattle can be taken away only after considering the objections, if any, of the villagers in the matter of dereservation of the land in question from gomal to any other purpose. This is clear from the language employed in sub-rule (4) of Rule 97 of the Rules which makes it obligatory on the part of the Deputy Commissioner to consider all relevant circumstances before he is satisfied that the extent of the gomal land has to be reduced and also from the fact that the said provision makes it obligatory on the part of the Deputy Commissioner to assign reasons in support of his conclusion. That means, though the power conferred on the Deputy Commissioner is administrative in nature, he is required to come to the conclusion on objective assessment of relevant circumstances. That can be done only by giving an opportunity to the parties who are likely to affected on account of such a decision being taken by the Deputy Commissioner. Therefore, in my view, before a decision is taken reducing the extent of the land from gomal, the Deputy Commissioner must notify the same to the villagers, call for their objections and consider the same before taking a decision in the matter. Though the rule does not provide for calling for objections, in my view, since the decision of the Deputy Commissioner affects the villagers and the interest of their cattle, it has to be read into the rule that before taking decision, the Deputy Commissioner is required to consider the objections of the villagers. The view I have taken above requiring the Deputy Commissioner to call for objections, should not be understood as making it obligatory on the part of the Deputy Commissioner to hear every villager in the matter. The requirement of law would be satisfied if the objections are called for and considered by the Deputy Commissioner before he takes a decision in the matter. He need not give personal hearing to the villagers or the members of the general public. The objections may be called for either by issuing paper publication or notifying it in the Village Chavadi or in the Panchayat Office or by beat of tom tom in the village. Under similar circumstances, this Court, in the case of Manjunatha K.P., supra, has taken the view that the villagers are required to be notified. The Division Bench speaking through Justice D.M. Chandrashekhar (as he then was), has observed as follows:
".....Though it may not be practicable to give individual notices to all the villagers having the right of free pasturage in Gomal lands, the Revenue authorities can give public notice to the villagers by affixing a copy of such notice in the village chavadi, or by beat of tom tom or by publication in a newspaper having circulation in the village or in any other reasonable manner. Hearing of objections of such persons, to the proposed grant of land in the Gomal, need not necessarily be a personal or oral hearing".
19. Admittedly, neither the first respondent nor the third respondent have called for objections from the villagers and considered the same. Therefore, on this ground also, the impugned orders are liable to be quashed.
20. It is also necessary to refer to the submission made by the learned Counsel for the respondents that in view of the No Objection Certificate issued by the Secretary of the Panchayat conceding for dere-servation of the land in question from gomal and reservation of the same for the purpose of the 5th respondent-Institution, the petitioner is not entitled to maintain this petition. In my view, that Certificate given by the Secretary of the Panchayat, cannot be made use of to non-suit the petitioners to challenge the impugned orders. It is necessary to point out that the Secretary of the Panchayat is only an official of the Panchayat who is subordinate to the Government. He will not be in a position to refuse to give the Certificate of the one which he has given, when he is asked to give such a Certificate by his superior officers. Therefore, I do not find any merit in this submission.
21. In the light of my above conclusion, I find it unnecessary to examine the last contention of Sri Byadgi and also the details of the land and the cattle strength in the village.
22. Accordingly, the order Annexure-E, dated 11th of July, 1997 passed by the first respondent-State and also the order Annexure-F, dated 6th of September, 1997 passed by the third respondent-Deputy Commissioner are hereby quashed. However, it is needless to observe that the Deputy Commissioner is entitled to take fresh decision in the matter, if he so desires, in the light of the observations made in this order and in strict compliance of sub-rule (4) of Rule 97 of the Rules and in accordance with law.
23. In the facts and circumstances of the case, no order is made as to costs.
24. In terms stated above, this petition is allowed and disposed of. Rule issued is made absolute.
25. Sri B.E. Kotian, learned Government Advocate, is permitted to file his memo of appearance within four weeks from today.