Karnataka High Court
The State Of Karnataka vs Sri J Nanda Kishore on 2 March, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 2nd DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.NO. 308 OF 2021 C/W R.F.A.No. 449 OF 2020 (RES)
IN R.F.A.No. 308/2021
BETWEEN:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
REVENUE DEPARTMENT
M.S.BUILDING, BENGALURU - 560 001.
2. THE TAHSILDAR
BENGALURU SOUTH TALUK
KANDAYA BHAVAN, K.G.ROAD
BENGALURU - 560 009.
...APPELLANTS
(BY SMT. H.R. ANITHA, AGA)
AND:
1. SRI.J. NANDA KISHORE
S/O LATE. A.N. JANARDHANA REDDY
AGED 33 YEARS.
2. SMT. K. SUDHAMMA
W/O LATE. A.N. JANARDHAN REDDY
AGED 62 YEARS.
BOTH ARE R/O AGARA VILLAGE &
POST, BEGUR HOBLI
BENGALURU - 560 034.
3. BENGALURU DEVELOPMENT AUTHORITY
KUMARA PARK WEST, BENGALURU - 560 020.
REPRESENTED BY ITS COMMISSIONER.
2
4. THE SPECIAL LAND ACQUISITION OFFICER
BENGALURU DEVELOPMENTN AUTHORITY
KUMARA PARK WEST
BENGALURU - 560 020.
...RESPONDENTS
(BY SRI. B.V. MALLA REDDY, ADVOCATE FOR R-1 & R-2
SRI. JAGADESHWARA N.R., ADVOCATE FOR R-3 & R-4)
THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:
15.10.2019 PASSED IN OS.NO. 1308/2013 ON THE FILE OF THE XXIX
ADDITIONAL CITY CIVIL JUDGE, BENGALURU, DECREEING THE
SUIT FOR DECLARATION AND DAMAGES.
IN R.F.A.No. 449/2020
BETWEEN:
1. THE COMMISSIONER
BENGALURU DEVELOPMENT AUTHORITY
BY ITS COMMISSIONER
KUMARA PARK WEST
BENGALURU - 560 020.
2. THE SPECIAL LAND ACQUISITION OFFICER
BENGALURU DEVELOPMENT AUTHORITY
KUMARA PARK WEST
BENGALURU - 560 020.
... APPELLANTS
( BY SRI. JAGADEESWARA N.R., ADVOCATE)
AND:
1. SRI. J. NANDA KISHORE
S/O LATE. A.N. JANARDHANA REDDY
AGED 31 YEARS.
2. SMT. K. SUDHAMMA
W/O LATE A.N. JANARDHANA REDDY
AGED 60 YEARS
3
BOTH ARE R/O AGARA VILLAGE & POST
BEGUR HOBLI
BENGALURU - 560 034.
3. THE STATE OF KARNATAKA
REPRESENTED BY ITS
SECRETARY, REVENUE DEPARTMENT
M.S.BUILDING, BENGALURU - 560 001.
4. THE TAHSILDAR
BENGALURU SOUTH TALUK
KANDAYA BHAVAN, K.G.ROAD
BENGALURU - 560 009.
...REPONDENTS
( BY SMT. H.R. ANITHA, AGA FOR R-3 & R-4
SRI. B.M. SREERAMA REDDY, ADVOCATE FOR R-1 & R-2)
THIS R.F.A FILED UNDER SECTION 96 R/W ORDER XLI RULE
1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:
15.10.2019 PASSED IN O.S.NO. 1308/2013 ON THE FILE OF THE XXIX
ADDITIONAL CITY CIVIL JUDGE, BENGALURU, DECREEING THE
SUIT FOR DECLARATION AND DAMAGES.
THESE APPEALS ARE BEING HEARD AND RESERVED ON
27.09.2022 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Both these appeals arise out of the impugned judgment and decree dated 15.10.2019 passed in O.S.No.138/2013 by the XXIX Addl.City Civil and Sessions Judge, Bangalore city.
The said suit was filed by the respondents - plaintiffs for 4 declaration and other reliefs. In the said suit, the State of Karnataka and the jurisdictional Tahsildar were arrayed as defendants 1 and 2, while the BDA and SLAO, BDA were arrayed as defendants 3 and 4. By the impugned judgment and decree, the trial court decreed the suit in favour of the plaintiffs against the defendants. RFA No.308/2021 is preferred by the State, while RFA No.449/2020 is preferred by the BDA.
2. For the sake of convenience, parties are referred to as the plaintiffs, State and BDA.
3. The plaintiffs filed the instant suit for declaration that they are entitled to compensation in respect of the suit schedule property bearing Sy.No.56/1A of Haralukunte village, Begur Hobli, Bangalore South Taluk, measuring 1 acre 31 guntas and for a direction to the defendants to pay the compensation amount to the plaintiffs together with interest and also for a declaration that the plaintiffs are entitled to 2 sites under the incentive site scheme and for a consequential 5 direction to the defendants to allot and convey the said sites in favour of the plaintiffs and for other reliefs.
4. It was contended that the plaintiffs were the heirs of late A.N.Janardhan Reddy, who owned and possessed total extent of 1 acre 35 guntas of land in Sy.No.56/1A, out of which, he sold 4 guntas in favour of one Obedulla under a registered sale deed dated 27.11.1978, pursuant to which, he retained title and possession over the remaining 1 acre 31 guntas and upon his demise on 13.04.1990, the plaintiffs became entitled to the suit schedule property. Meanwhile, the defendants having acquired the schedule property by issuing preliminary notification dated 15.12.1984, corrigendum dated 22.07.1986, final notification dated 15.12.1984, an award dated 17.06.1987 was passed by them. However, the plaintiffs did not receive the compensation amount from the defendants and several requests and representations were made by them including applications dated 13.08.2006, 11.02.2007 and 26.02.2009, under which, the plaintiffs sought for compensation together with interest and also 2 sites under the 6 incentive scheme of the defendants. The plaintiffs filed W.P.No.2170/2010 before this Court which was disposed of on 10.11.2010 reserving liberty in favour of the plaintiffs to take steps to ventilate their grievances for compensation and allotment of sites under the incentive scheme. Subsequently, the plaintiffs filed one more petition in W.P.No.8594/2013 which was dispose of by this Court on 10.03.2014 reiterating the earlier liberty and directions granted in favour of the plaintiffs and by directing them to seek further remedies in the pending suit.
5. The plaintiffs contended that the suit schedule property is classified as 'A' kharab land, which is owned and possessed by the plaintiffs, who are entitled to compensation together with interest as well as to two sites under the incentive scheme from the defendants and since the defendants did not comply with the repeated requests and demands of the plaintiffs, they filed the instant suit seeking appropriate reliefs.
76. The defendants 1 and 2 - State did not file their written statement nor contest the suit. The defendants 3 and 4 - BDA filed the written statement after the matter was posted for judgment and consequently, the same was not received on record.
7. On behalf of the plaintiffs, 1st plaintiff examined himself as PW-1 and Exs.P1 to P43 were marked. The defendants neither cross-examined PW-1 nor adduced any oral or documentary evidence on their behalf.
8. Based on the above pleadings, the trial court framed the following points for consideration:-
(i) Whether the plaintiffs prove that their father, A.N.Janardhana Reddy is the title holder and was in possession of the suit schedule property during acquisition proceedings?
(ii) Whether the plaintiffs are entitled to award amount in respect of the suit schedule property?
(iii) Whether the plaintiffs are entitled for sites under the incentive scheme?
(iv) What order or decree?8
9. The trial court took into account the unimpeached, uncontroverted and unchallenged pleadings and evidence of the plaintiffs and answered all the aforesaid points in the 'affirmative' in their favour and proceeded to decree the suit by holding as hereunder:-
" 8. Point No's.1 & 2:- The plaintiff herein is seeking mainly relief of compensation amount granted to the suit schedule property and subsequently sought sites under incentive scheme.
The plaintiff claims, his father is the title holder and is in possession of the suit schedule property. During the acquisition proceedings, he is minor and plaintiff No's.2 & 3 have not worldly knowledge, they have not participated in the acquisition proceedings. So, they have not received the award amount. W.P.No.8594/2013 has given liberty to seek appropriate relief before the Civil Court. Hence, he contends there is no effect of limitation.
9. To corroborate the case, the plaintiff himself deposed as P.W.1 and produced the documents, wherein he examined further- chief and produced documents. So, totally 43 9 documents are produced. Ex.P.1 is the certified-copy of the order in W.P.No.2170/2010 & W.P.No's.4621- 4622/2010, dated 10.11.2011, wherein plaintiffs are the petitioners and this writ petition filed against the respondents i.e., BDA and Special Land Acquisition Officer & A. Krishna Reddy. It has passed the order that, "the Hon'ble Court directs the 1st respondent i.e., BDA to consider the petitioners' representation dated 26.02.2009, in respect of allotment of sites under the incentive scheme, for which the petitioners have to produce the relevant documents. The 1st respondent shall consider the same after giving them an opportunity of hearing and to take a decision in the matter as expeditiously as possible, within 4 months from the date of issuance of the certified copy of the order", and in the last para, it is also noted that, "Liberty is expressly reserved to the petitioners to resort to the course, open to them in law for the release/recovery of the compensation amount." Whereas, it is pertinent to note that, initially BDA is not made as party in this suit. The initial defendants are The State of Karnataka and Tahsildar only. Certainly BDA has no binding 10 in the initial stage. But, it is also pertinent to note that, the District Government Pleader for defendant No's.1 & 2 files vakalath, but has not filed any written-statement and not even participated in the proceedings. When plaintiff files I.A., under Order I, Rule 10 of CPC, Sri NRJ, Advocate files vakalath for defendant No's.3 & 4. In the meantime, the file was transferred to this court from CCH -27, and thereafter no representation from defendant No's.3 & 4. So, without representation of defendant No's.3 & 4, the order was passed and defendant No's.3 & 4 are impleaded. So, there is no written-statement from defendant No's.3 & 4 also. Whereas, when the case is posted for judgment, the advocate for defendant No's.3 & 4 strongly contends against the plaint pleading and sought permission for filing written-statement. After rejecting the application, this court has received their notes of argument and also appreciated the notes in respect of legal aspects of the defence.
10. Although BDA is impleaded much after filing of this suit, they were not issued notice under Section 64 of BDA Act. In a suit for declaration and mandatory injunction, the statutory notice is must. In support of the 11 same, I appreciate the same as BDA is also a statutory body impleaded here in the year 2016. Whereas, since it is the statutory body before moving the application under Order I, Rule 10 of CPC, it has to issue statutory notice to be impleaded and after completion of the statutory period, only it could have moved the application. Whereas, herein the plaintiff has not complied the statutory condition by directly filing impleading application. I refer the order passed by the Hon'ble High Court of Karnataka in W.P.No.8594/2013/Ex.P.18, dated
10.03.2014. It has issued notices/Exs.P.2 & P.5 on 11.07.2012 only against the defendant No's.1 & 2, respectively. They were duly served upon the defendants, respectively, under Exs.P.3 & P.6/postal acknowledgement cards.
11. Ex.P.8 is the genealogy tree issued by the Village Accountant, Begur Hobli, Bengaluru South Taluk. Since there is no rival contention, it can be appreciated that, the 1st plaintiff is the only son of A.N. Janardhana Reddy and plaintiff No's.2 & 3 are wives of deceased A.N. Janardhana Reddy. Ex.P.9 is the copy of RTC, it shows 4 guntas of land out of 1 acre 35 guntas sold to one Ubedulla 12 in the period of 1983-1984. The name of plaintiff's grandfather - Krishnappa Reddy shows, in the earlier RTC i.e., 1974-1975, Ex.P.10 is the RTC, it shows in the year 1978-1979, A.N. Janardhana Reddy as cultivator. Ex.P.11 is the settlement register showing the plaintiff's ancestors name in respect of Sy.No.56/1A, measuring 1 acre 1 gunta of land. Ex.P.12 is the encumbrance certificate corroborates the alienation of property to Ubedulla on 27.11.1978. Ex.P.13 is the representation of plaintiffs to the Commissioner, BDA, it is dated 13.08.2007. Ex.P.14 is the acknowledgement issued by BDA, wherein the endorsement given as, they need to file entire documents connected to Sy.No.56/1A. Thereafter, they enquired the matter. Again they issued request application on 11.12.2007. Ex.P.16 is the acknowledgement issued by BDA. It is pertinent to note herein that, the endorsement dated 24.10.2008 clearly specified that, the land owner - Munireddy already received the compensation amount and they cannot consider his request. In the background, I perused Ex.P.11, which shows in respect of schedule survey number, the name of possessor, hiduvalidar -
13
Krishnappa. Even earlier RTC refers the
name of Krishnappa Reddy and A.N.
Janardhana Reddy as cultivators. The
plaintiff has not marked this endorsement dated 24.10.2008. Ex.P.17 is another acknowledgement dated 26.07.2009. Ex.P.18 is the copy of W.P.No.8594/2013, dated 10.03.2014. It was also filed by plaintiff No's.1 to 3/petitioners. This writ petition is filed seeking quashing the endorsement dated 24.05.2012 issued by respondent No's.2 & 3 i.e., BDA and Special Land Acquisition Officer. The endorsement referred herein is also produced by the plaintiff, it is marked as Ex.P.22. On perusal of the same shows, they heard the requisition submitted by the plaintiffs referred above, and after enquiring the said matter, it is ordered that, according to the documents in Sy.No.56/1A, the entire 1 acre 35 guntas of land is a kharab land, except 4 guntas of land, which is sold to Ubedulla, wherein in respect of 3 guntas of land is grassland. Remaining 1 acre 28 guntas of land are kharab land and the property is delivered to the Engineering Section. Thus, they rejected the request of the plaintiffs. In view of this remark, plaintiff prefers W.P.No.8594/2013 14 before the Hon'ble High Court of Karnataka. As per the liberty given in the orders of W.P.No.8594/2013, plaintiff files this civil suit. Thereafter, the plaintiff files impleading application and impleaded defendant No's.3 & 4.
12. In respect of (neighbouring owner) Munireddy's claim, Munireddy has filed civil suit. Ex.P.19/certified-copy of judgment in O.S.No.956/2003. On perusal of this judgment shows, here also the defendants are The State of Karnataka and The Tahsildar, where they appeared through the District Government Pleader who contended that, Sy.No.56/1B, measuring 1 acre 6 guntas of land are kharab land. So, on perusal of order shows, it was decreed that, the plaintiff is entitled for compensation amount. But, the suit schedule property of this suit is Sy.No.56/1A of same village.
Ex.P.20/partition deed shows, Sy.No.56/1A, measuring 1 acre 35 guntas of land is kushki land came to the share of plaintiff's father. Ex.P.24 is the award copy in respect of HSR Layout scheme. Ex.P.26 is the settlement akarbandh. Ex.P.27 is the RTC for the period of 2010-2011, it shows the property stands in the name of BDA. Ex.P.28 is the revenue 15 sketch also shows, it contains 1 acre 15 guntas of land are kushki land. Ex.P.29 shows the name of Munireddy is the owner of the land and also specified the measurement of kharab land. Ex.P.31 is the list of the allotment of sites to the land owners, where it also includes the condition that, the land owner should prove the undisputed title and it should be handed over to BDA voluntarily. Ex.P.32 is the sale deed. Whereas, the crucial document herein is Ex.P.33, it specifically mentioned that the Sy.No.56/1A is totally measuring 2 acre 15 guntas of land completely vacant land. On perusal of Exs.P.32 to P.35, it was recorded after spot inspection with sketch, which clearly concludes 2 acre 15 guntas of land is a kharab land/Government land. The plaintiffs were not challenged these orders. The award/Ex.P.37 was also produced. Ex.P.40 shows, notice issued to Ubedulla and Krishnappa Reddy by BDA on 05.02.1987, and in the same layout scheme, Munireddy also not received the notice. Ex.P.42 is the Gazette Notification for the land acquisition. So, appreciating all the above documents, it shows the 1st plaintiff soon after he attains majority, he communicated with the BDA in 16 respect of acquisition of 1 acre 55 guntas of land seeking compensation i.e., it commences from the period of August 2007. Finally, when BDA passes order that, since it is a kharab land, the award amount transferred to the Government, and rejected the request letter of the plaintiffs dated 24.05.2012. Thereafter, he refers writ petition/Ex.P.1, where he was given liberty to resort to the course open to them in law for the release/recovery of the compensation amount and also directed the 1st respondent to take step expeditiously on 10.11.2011. Thereafter, he issued statutory notice to the Government of Karnataka and Tahsildar, and thereafter he prefers this suit. Whereas, during the pendency of the suit, he was also filed writ petition/Ex.P.1, seeking alternative sites released from BDA, for which also the Hon'ble High Court of Karnataka has directed him to implead the BDA in the original suit and also seek the relief. Whereas, while passing the order in page-16, it also specified that, "it is always open for the petitioners to implead the BDA as a party to the pending suit subject to such compliance of issuance of a statutory notice etc."
Whereas, herein before impleading
17
application, there is no averment or
document for filing statutory notice to BDA. The plaintiff cannot seek the relief of alternative site of this suit.
13. Since the defendants were not contested the suit, the evidence of P.W.1 and documents are remain undisputed and unchallenged. The genealogy tree/Ex.P.8 clearly shows the relationship of plaintiffs and it also appreciated the reasons for not participating in the acquisition proceedings. Further, the Hon'ble High Court of Karnataka in their respective orders also observed the same fact and appreciated that the limitation cannot be questioned or raised because of circumstances raised in the suit. So, now the burden of the plaintiff is to prove that the acquired land bearing Sy.No.56/1A measuring 1 acre 35 guntas comes under the phut kharab 'A' land.
14. In corroboration of this contention, the plaintiff has produced the copy of judgment in O.S.No.956/2003 marked as Ex.P.19 preferred by one of the khatedars of Sy.No.56/1B. Munireddy preferred the suit claim kharab land and he is entitled for the compensation of Sy.No's.56/1B & 56/1C. Said suit in O.S.No.956/2003 was decreed in 18 favour of Munireddy. So, I consider it is proper to refer the judgment. It clearly shows that, Sy.No's.56/1B & 56/1C are neighbouring lands of the suit schedule property.
15. The plaintiff refers the citation ILR 2003 Kar. 5088, in the case of Sadashivaiah & others Vs. State of Karnataka & others, wherein it reads thus:
"(G) KARNATAKA LAND REVENUE ACT, 1964 - KARNATAKA LAND REVENUE RULES 21(2)(A) AND 21(2)(B) - MYSORE REVENUE MANUAL - VOL. I "PHUT KHARAB", "POT KHARAB" - BOMBAY LAND REVENUE CODE - "Pot Kharab" -
meaning of and Right flowing from such land - HELD - Kharab land is so called because it is not cultivable and is a classification made for purposes of revenue exemption. Kharab land is also capable of ownership and cannot be regarded as an adjunct to cultivable land which gets transferred along with the cultivable land. Acquisition of title to the Kharab land is similar to the acquisition of title to the cultivable land. The words 'phut' kharab and 'pot' kharab mean and have reference to a land which is included in and assessed survey number but which is unfit for 19 cultivation. Every Pot kharab land does not belong to government. For the purpose of assessment, the uncultivable portion of the land or phut kharab portion of the land is excluded from consideration on the ground that it is cultivable. If the land falls within the category of 21(2)(a) it is not a Government land, it belongs to the ownership of the petitioners. If it falls under 21(2)(b) then it belongs to the Government and petitioners cannot have a claim over the said land. Without holding an enquiry, without affording an opportunity to the petitioners, LAO proceeds on the assumption that the said kharab land falls within 22(1)(b) and therefore petitioners have no claim, as such declines to pass the award. The impugned Orders passed by the LAO on such grounds cannot be sustained and are liable to be quashed. Writ petitions allowed."
So, as per the ratio of the above citation, the plaintiff is entitled for compensation if he proves Sy.No.56/1A, measuring 1 acre 35 guntas of land comes under the category of phut kharab 'A' land.
2016. While arguing the case, the plaintiff stresses on Ex.P.26/akarband utharu, where it mentions 1 acre 28 guntas are phut kharab 'A' land and remaining 3 guntas are phut kharab 'B' land. Admittedly, the plaintiff's father - A.N. Janardhana Reddy sold 3 guntas of land in Sy.No.56/1A to one Ubedulla and Ubedulla received the compensation amount for 4 guntas of land. Ex.P.9 is the RTC of Ubedulla shows, 4 guntas comes under the category of phut kharab 'A' & 'B' lands and Ex.P.10/RTC shows, 1 acre 31 guntas comes under the category of phut kharab 'B' land and khathedar is Krishnappa Reddy. However, it is in respect of 4 guntas of land prior to the alienation to Ubedulla. Ex.P.11 is the settlement register, wherein in column No.5 phut kharab, it mentions 1 acre 31 guntas and cultivable land is only 4 guntas. Ex.P.20 is the palupatti/partition deed, which shows the portion given to the share of plaintiff's father in his family partition, where it mentions property bearing Sy.No.56/1A as kushki land measuring 1 acre 35 guntas. The plaintiff specifically relied upon Ex.P.26/Karnataka Revision Settlement Akarband (Utharu), where 21 it shows in column of total measurement 1 acre 35 guntas and in column of kharab land, 'A' section mentions 1 acre 28 guntas and 'B' section mentions 3 guntas and total kharab land is 1 acre 31 guntas. So, the total measurement in their ownership is 1 acre 31 guntas. Out of which only 3 guntas is phut kharab 'B' land and 1 acre 28 guntas comes under phut kharab 'A' land and he is entitled for the compensation in respect of the same. The subsequent RTC extracts/Ex.P.27 shows, possessor is BDA. Ex.P.28 is the revenue sketch, where it shows in Sy.No.56/1A, column of kharab is referred as 3 guntas. Ex.P.29 has total 3 pages revenue sketch refers phut kharab 'B' land and another sketch it has given measurement as halla and road. But, in the same document, it says "DPÁgï §A¢£ÀAvÉ ¥ÀÇgÁ RĶëè¬ÄzÀÄÝ FUÀ®s SÁAiÀÄA" and in another sketch, it clearly says that only 3 guntas are "zÁj, ºÀ¼Àî ªÀÄvÀÄÛ PÀ®Äè§AqÉ." There is no property.
So, remaining are does not comes under the reserved 'B' category and it has specified it is 1 acre 28 guntas. So, herein it specifies that, in Sy.No.56/1A, measuring 1 acre 28 guntas are phut kharab 'A' land and 22 remaining 3 guntas are reserved for road. It is also pertinent to note that, in the sale deed executed in favour of Ubedulla, the boundary of suit schedule property shows 1 acre 31 guntas is surrounded by private cultivable land i.e., East : Madappa's land, West :
Government gomala, North : Abbaiah Reddy's land, and South : S.P. Venkatesha's land. In between 4 guntas of land sold to Ubedulla. So, the remaining portion of the land also sold. Ex.P.33 shows, it is the document of Land Acquisition Officer, BDA. Whereas, he has not made any enquiry as, whether it is reserved category of kharab 'B' land. Ex.P.34 shows, the Land Acquisition Officer, BDA, concludes that, during his spot inspection, the owner was not present, it was dated 10.07.1987, and further it says, "d«Ää£À°è AiÀiÁªÀ ªÀiÁ°Ì ªÀUÉÊgÉUÀ¼ÀÄ EgÀĪÀÅ¢®è Whereas, their own document shows, Krishnappa Reddy is the khatedar of 1 acre 31 guntas of land. The plaint para shows, A.N. Janardhana Reddy was ailing from chronic illness and he died on 13.04.1990. Ex.P.35/Land Acquisition Officer's repot shows, Sy.No.56/1A, measuring 2 acres 15 guntas of land is completely covered by 23 "PÀ®Äè§AqÉ." The crucial point herein is, Ex.P.37 is the Award passed by the Spl. Addl. Land Acquisition Officer, BDA, Bengaluru, in respect of Sy.No.56/1A, measuring 1 acre 35 guntas, wherein at page-3, he says that, "no structures were found in the land" and in the next para, it narrates "1 acre 35 guntas, 1 acre 28 guntas, reserved kharab 3 guntas". So, truly, it corroborates the plaintiff's contention only 3 guntas are phut kharab 'B' land. Whereas, his own discussion shows only 3 guntas of phut kharab 'B' land. How he concluded it's reserved 1 acre 28 guntas is not specified in the entire discussion. In the same order it says, Krishnappa Reddy and Munireddy are khathedars and anubhavadars. The order has made discussion together in respect of Sy.No.56/1A, measuring 2 acres 15 guntas and 1 acre 35 guntas. In page-3 it has only discussed that, "I have taken 1 acre 35 guntas, 1 acre 28 guntas, reserved kharab 3 guntas." So, there is no clarity how he concluded in the conclusion portion kharab reserved for 1 acre 28 guntas. Ex.P.38 is the letter for depositing the compensation amount under Reserved Kharab. Ex.P.39 24 are the RTC extracts of the same survey number. Here also it says, it is for the period of 1986, where it says the kharab land is measuring 1 acre 31 guntas. Ex.P.40 shows the authority has issued notice to Krishnappa Reddy in the month of February 1987, in respect of same survey number. So, it concludes that, the plaintiff has proved 1 acre 28 guntas of land comes under the category of phut kharab 'A' land. So, it clearly shows, the plaintiff proves the contention. I perused the citation 2009 (4) KCCR 2741, in the case of M/s. Sri Lakshminarayana Industries, Gangavathi, Koppal District Vs. Karnataka State Financial Corporation, Bengaluru & others. The above said citation is aptly applies to the case in hand and it mentions further that, "without holding an enquiry, without affording an opportunity to the petitioners, LAO proceeds on the assumption that the said Kharab land falls within 22(1)(b) and therefore petitioners have no claim, as such declines to pass the award and it is an impugned order." So, herein also taking advantage of absence of Krishnappa Reddy, it was concluded as kharab 'B' land.
2517. Although defendant No's.3 & 4 filed written-
statement that, Section 64 of the BDA Act, the plaintiff seeks declaratory relief and for declaratory relief, statutory notice is must. But, in the referred judgment, on the basis of which the plaintiff impleads the defendant No's.3 & 4 is Ex.P.18/writ petition, wherein the Hon'ble High Court of Karnataka has mentioned it is essentially an ancillary relief and not a separate cause of action. So, I consider, statutory notice is not mandatory, as it is a ancillary relief.
18. The plaintiff's father is the title holder of the schedule land and by the time he is ailing and plaintiff is minor. Because of the acquisition proceedings in process, the question of mutation of khatha does not arises. So, the question of seeking the name of A.N. Janardhana Reddy cannot be raised. The plaintiff herein through the document clearly proved the schedule property measuring 1 acre 28 guntas comes under the kharab 'A' category. Although it is argued that the schedule property comes under kharab 'B' land, it was not specified or for what purpose it was reserved. The revenue document 26 shows only 3 guntas of land are reserved for road.
19. The defendants refer the citations as under:
(1) AIR 2009 SC 2966 (2) AIR 1995 Orissa 270 (3) (2008) 4 SCC 594 (4) AIR 1972 SC 2685 (5) ILR 2010 Kar. 2996 Herein, the plaintiff proves his case and he has not shifted the burden on the defendants.
So, all the above said ratios does not applies to the case in hand. Accordingly, I hold Point No's.1 & 2 in the 'Affirmative'.
20. Point No.3:- Herein it is pertinent to note that, although defendant is impleaded on the direction of the Hon'ble High Court of Karnataka in Ex.P.18, it also says the statutory notice. Herein, on issuance of notice, the defendant's counsel appeared but has not filed any objection. Even after passing of the order, he was not present before the court. So, it shows the defendants were aware of the proceedings. Moreover, it was contested in the earlier writ petition/Ex.P.1 as well as writ petition/Ex.P.18. The plaintiff herein seeks 27 declaration relief only from defendant No's.1 & 2, and I conclude that plaintiff proves the right as it is a kharab 'A' land and also the ancillary relief. Plaintiff is struggling for justice since from 2007. Hence, I consider plaintiff is also entitled for the relief of incentive scheme sites as prayed in the plaint. Accordingly, I hold Point No.3 in the 'Affirmative'.
21. Point No.4:- In view of the reasons stated supra, I proceed to pass the following:
ORDER Suit is decreed.
No order as to costs.
It is hereby declared that, the plaintiffs are entitled for compensation amount of Rs.54,060/- in respect of Sy.No.56/1A measuring 1 acre 28 guntas along with interest at 18% p.a., i.e., Rs.2,39,215/- to the plaintiffs and the plaintiffs are also entitled for future interest at 18% p.a., till the date of realization and the plaintiffs are also entitled for sites under the incentive scheme from defendant No's.3 & 4.
Draw the decree accordingly."28
10. As stated supra, the State which was arrayed as defendants 1 and 2 has preferred RFA No. 308/2021, while the BDA - defendants 3 and 4 have preferred RFA No. 449/2020.
11. In RFA No. 308/2021, the appellants - State has also filed an application I.A.2/2022 under Order 41 Rule 27 CPC for permission to produce additional documents. The respondents - plaintiffs have filed their objections to the said application.
12. Heard learned AGA for the State, learned counsel for the BDA as well as learned counsel for the beneficiaries and perused the material on record.
13. After having heard the learned counsel for parties, the following points arise for consideration in the present appeals:-
(i) Whether the application I.A.2/2022 filed by the appellants - defendants 1 and 2 in RFA No.308/2021 deserves to be allowed?29
(ii) Whether the impugned judgment and decree passed by the trial court deserves to be set aside?
Re-Point No.1:-
14. A perusal of the impugned judgment and decree will indicate that the trial court has considered and appreciated the material on record and has recorded a categorical finding of fact that the suit schedule property is 'A' kharab land and that Rule 21(2)(A) of the Karnataka Land Revenue Rules, 1966, was applicable and that consequently, in view of the judgments of this Court, the trial court has come to the conclusion that the plaintiffs were entitled to compensation in respect of the suit schedule property. In order to arrive at the said conclusion, the trial court has placed reliance upon the unimpeached, uncontroverted and unchallenged oral evidence of PW-1 as well as the documentary evidence at Exs.P1 to P43, in particular, Ex.P9 to Ex.P11, Ex.P26 to Ex.P29, Ex.P33 to Ex.P39 in order to come to the conclusion that the suit schedule property was a 'A' kharab and not a 'B' kharab as contended by the defendants.30
14.1 By way of I.A.2/2022, the State seek permission to produce additional documents for the purpose of contending that the suit schedule property is 'B' kharab land and not 'A' kharab land and that the plaintiffs are not entitled to compensation. However, a perusal of the said documents produced along with I.A.2/2022 will indicate that the contents of the same are not sufficient to establish that the suit schedule property was a 'B' kharab land. On the other hand, the said documents themselves go to show that the suit schedule property was a 'A' kharab land. The cumulative effect of the pleadings and evidence of the plaintiffs and the documents produced along with I.A.2/2022 lead to the unmistakable conclusion that the suit schedule property was a 'A' kharab land and not 'B' kharab land as contended by the plaintiffs. It is also relevant to state that the application I.A.2/2022 does not make out valid or sufficient ground for the purpose of enabling production of additional documents for the first time in the present appeal, particularly when the appellants-State in RFA No. 308/2021 who have filed 31 I.A.2/2022 have not filed their written statement in the suit.
Under these circumstances, apart from the fact that the appellants - State are not entitled to any indulgence by permitting them to produce additional evidence, the documents sought to be produced along with I.A.2/022 are neither necessary nor relevant for the purpose of either adjudication of the issues in controversy or to pronounce the judgment by this Court in the present appeals, especially when no due diligence has been established by the appellants
- State to show as to why the said documents were not produced by them before the trial court. Further, the said documents will not take the case of the appellants-State any further and receipt of the said documents would be an exercise in futility in the facts and circumstances of the instant case. Accordingly, I do not find any merit in I.A.2/2022 and the same is hereby dismissed.
Point No.1 is answered against the appellants-State.
32Re-Point No.2:-
15. As stated earlier, while RFA No.308/2021 is preferred by the State - defendants 1 and 2, RFA No.449/2020 is preferred by the BDA - defendants 3 and 4.
Both the appellants did not contest the suit but the only difference being that the BDA filed its written statement after the trial court reserved the matter for pronouncement of judgment.
15.1 A perusal of the grounds urged by both the appellants will indicate that it is their specific contention that the suit schedule property was a kharab land and that consequently, the plaintiffs are not entitled to compensation.
While, dealing with Point no.1 supra, I have already come to the conclusion that the trial court was fully justified in holding that the suit schedule property was 'A' kharab land and not 'B' kharab land. It is trite law that compensation is payable in respect of 'A' kharab land as held in various judgments of this Court.
3315.2 In the case of Sadashivaiah & others vs. State of Karnataka & others - ILR 2003 KAR 5088, it was held as under:-
" 30. The Land Acquisition Officer has declined to pass the award on yet another ground that the land involved in W.P. Nos. 7540 & 9155-9204/2001 is a kharab land and therefore it does not belong to the petitioners. In this regard it is necessary to know what a kharab land is and what are the rights which flow. Kharab land is so called because it is not cultivable and is classification made for purposes of revenue exemption. Kharab land is also capable of ownership and cannot be regarded as an adjunct to cultivable land which gets transferred along with the cultivable land. Acquisition of title to the kharab land is similar to acquisition of title to the cultivable land. The word "Phut Kharab" and 'pot' kharab mean and have reference to a land which is included in an assessed survey number but which is unflit for cultivation. Every pot kharab land does not belong to government. For the purpose of assessment, the uncultivable portion of the land or phut kharab portion of the land is excluded from consideration on the ground that it is cultivable. But it does not cease to belong to the owner of the survey number. In volume I of the Mysore Revenue Manual, the word kharab is explained in this way. The 34 expression 'phut kharab' is similar to the expression 'pot kharab'. That is so, is clear from the Mysore Revenue Survey Manual where at page 68 the words 'pot kharab' land is defined thus:
"(13). Pot kharab means a piece of pieces of land classed as unarable and included in a survey number".
The description has no relevance to ownership. The expression put kharab is explained in Gupte's book on the Bombay Land Revenue Code in the following words at page 278"-
"By the term 'pot kharab' is meant 'barren or uncultivable land included in an assessed survey number' and includes 'any land comprised in a survey number. Which from any reason is held not to be likely to be brought under cultivation..........."
31. The words phut Kharab, therefore, mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation. After coming into the force of the Karnataka Land Revenue Act 1964 the word phut Kharab has been defined under Rule 21(2) as under:--
"during the process of classification, land included as unarable shall be treated as "Pot Kharab". Pot Kharab land may be classified as follows.
(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing flours of the holder;35
(b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes;
(iii) used as burial ground or cremation ground; (iv) assigned for villager potteries."
32. Therefore, it becomes clear if the land falls within the category of 21(2)(a) it is not a government land, it belongs to the ownership of the petitioners. If it falls under 21(2)(b) then it belongs to the government and the petitioners cannot have a claim over the said land. However, when the petitioners claim that the said land falls within 21(2)(a) and therefore they are entitled to the compensation LAO proceeds on the assumption that it falls within Section 22(1)(b) and therefore they are not entitled to compensation as it belongs to the government and accordingly he has declined to pass any award. It is not in dispute that before arriving at such a conclusion the LAO has not given an opportunity to the petitioners in the enquiry under Section 11 of the Act to substantiate their contention. Without any such enquiry, without affording an opportunity to the petitioners he proceeds on the assumption that the said Kharab land falls within 22(1)(b) and therefore petitioners have no claim, as such he has declined to pass the award. On 36 that ground also, the impugned orders passed by the LAO cannot be sustained and is liable to be set aside. Hence, I pass the following order:--
33. Writ Petitions are allowed. The impugned order dated 2.11.2000 in W.P. Nos. 7440 and 9155- 9204/2001, Annexure-J; 2.11.2000 in W.P. Nos. 26275-26277/2001, Annexure-G; 22.12.200,1 in W.P. Nos. 5998-6000/2002, Annexure-J; 21.10.2001 in W.P. No. 18488/2002, Annexure-J; 4.12.2001 in W.P. No. 18427/2002, Annexure-F and 26.3.2002 in W.P. No. 18231/2002, Annexure-T are hereby quashed. The Land Acquisition Officer is directed to hold an enquiry under Section 11 of the Act and to pass award setting out the true extent of the land acquired, the compensation payable for the said land and then if he is of the opinion the claimants are not the owners of the said land the said land belongs to the government to apportion the compensation accordingly. If any request is made by the petitioners for reference under Section 18(1) of the Act within the time prescribed under law then to make a reference under Section 18(1) of the Act to the Civil Court for adjudication.
Parties to bear their own costs."
3715.3 Similarly, in the case of L.A.Krishnappa vs. The State of Karnataka represented by its Secretary, Revenue Department and others - ILR 2009 KAR 938, it was held as under:-
4. The counsel for the petitioner would submit that the relevant provisions under the Land Revenue Rules, 1966 and the provisions of the Land Revenue Act, 1964 would be Rule 21, which provides for classification of lands. Sub-Rule (2) of Rule 21 reads as follows:--
"Rule 21. Classification:--
(1) .................................................... (2) During the process of classification land included as.
unarable shall be treated as "Pot Kharab" Pot Kharab lands may be classified as follows:--
(a) That which is classified as unfit for agriculture at the time of survey including the farm building or threshing floors of the holder.
(b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognized footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes
(iii) used as burial ground or cremation ground; (iv) assigned for village potteries."38
It is stated that at the time of survey and settlement of land records, the Pot Kharab portion of the land in the survey number was so classified as unarable under Rule 21(2)(a) and this is how it has been referred to in the RTC extracts, which is at Annexure-" A" to the petition The counsel would then draw attention of this Court to Rule 107 of the Rules, which is extracted herein for ready reference:--
"Rule 107. Levy of fine for conversion of agricultural and for non-agricultural use:-- The amount of fine which may be levied under sub- Section (7) of Section 95 shall be at the rates specified in the table below, namely:--
S Place Area Rate of fine
l. In rupees
N per Sq.
o metre
. Residential
1 Bangalore Municipal 13-45
. (Urban District) Corporation Limits
and all lands within
a distance of 18
kilometres from the
Corporation limits
and other places)
The counsel would contend that it is therefore clear that the conversion and fine prescribed do not make any distinction between an arable portion of land and un anarable portion of land. The petitioner as an occupant of the land is entitled to all the benefits that arises out of the land. Section 2(14) of 39 the Karnataka Land Revenue Act defines the word "Land" as including the benefits that arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth and also shares in, or charges on, the Revenue or rent of villages or other defined areas." This inclusive definition makes it clear that the petitioner is entitled to rights in the total extent of land without any reservation of any part being made in favour of the Government. The Kharab Portion as classified under Rule 21(2)(a) of the Karnataka Land Revenue Act is therefore a benefit arising out of the land in the occupation of the petitioner. Rule 107 relating to levy of fine of conversion of agricultural land does not make any distinction between arable and unarable portions of the land. In any event, it does not prescribe any amount of fine based on the market value of any portion of the land. Therefore, the demand by the second respondent for payment of the amount calculated on the kharab (a) portion of land is illegal and without authority of law. The counsel would raw the attention of the Court to the Circular clarifying this position as understood by the Government, as early as 8-12-1971, which is at Annexure-"C" and which is extracted herein for ready reference:--
"Pot Kharab lands defined under Rule 21(2)(a) are those classified as unfit for agricultural at the time of 40 survey, including the Farm buildings or threshing floors of the holder. As clarified by the Law Department, all Pot Kharab lands which form part of a holding and which have not been reserved for Government or assigned for any public purpose or for any other purposes mentioned in Rule 21(2)(b) of the Mysore Land Revenue Rules, belong to the owner of the survey number and not Government. The question of any further disposal of such Pot Kharab lands does not therefore arise."
Further, the counsel would point out that in so far as a later Circular dated 16-9-1994, which is at Annexure
-- "D" to the petition is concerned, the tenor of the Circular has expressed an apprehension that there has been loss to the Government Revenue for not charging conversion fine in respect of Kharab (a) portion of the land and based on such apprehension, directions were issued to the Revenue Officers to impose land value on the Kharab Portion and also collect the conversion fine for the balance of the land. The demand for payment of the market value is traceable to this misinterpretation of the rule and the law in making illegal demand of the market value of the Pot Kharab portion of the land in the petitioner's occupation.' It is in this background that the present petition is sought to be filled.
The counsel would place reliance on the judments of this Court P. Bhimachar v. State of Mysore and 41 Others [1966 (2) Mys. LJ 184] wherein a Division Bench of this Court has held that Pot Kharab portion of the land is included in the ownership of the occupant. A similar view is taken in Saudagar Rasoor Khan v. State of Mysore [AIR 1973 Karnataka 56] wherein it is held that Kharab land is so called because it is not cultivable and is a classification made for the purposes of revenue exemption. Rule 21(2)(a) is thus a provision relating to the exemption from the payment of Land Revenue and has no relevance for assuming that the Pot Kharab portion is land not included in the occupancy, and that it belongs to the Government. From this point of view also the demand made for the payment of the market value on the Pot Kharab is unauthorised.
5. While the Government Pleader on the other hand, would seek to justify the action of the State Government on the basis of the Circulars namely Circular No. RD 136 LGS 93, dated 16-9-1994 as well as the Circular No. RD 137 LQW 2001, dated 17-6- 2003 whereunder an opinion of the Law Department is expressed to the effect that kharab lands are Government lands and therefore, the question of acquiring those lands does not arise and hence, there is no scope for making any payments to the landlords in respect of Kharab land. Reliance is also placed on a Circular dated 12-5-2004 wherein it is clarified that if "A" Kharab land if granted by the competent authority, 42 it would only then become part and parcel of Hiduvali land of the landlord. It is contended by the Government pleader that the ownership of "A" Kharab land always vests with the Government unless it is granted to the landowner by the competent authority. and therefore, would submit that the demand made is in order.
6. It is not in dispute that in the present circumstances, the demand made is in respect of Pot Kharab (a) land. As rightly pointed out by the learned counsel for the petitioner, there is no distinction made between an arable portion of land and an un anarable portion of land under Rule 107-for purposes of levy of fine for conversion of land for non-agricultural use. The reliance sought to be placed by the state on the circulars which are mere clarifications based on the opinions expressed by its Law Department would not override the express provisions of the law, which have been referred to herein above. There is no indication that there is a distinction between an arable portion of land and unarable portion of land. The provisions of Section 95 relating to conversion of agricultural land for other purposes does not also make any such distinction. Hence, the State Government seeking to interpret the provisions in order to obtain higher revenue would not be tenable. It is only in respect of Pot Kharab (b) lands, it could be said that the State Government can claim the same as Government 43 lands. In so far as Pot Kharab (a) lands are concerned, the Division Bench decisions referred to above is categorical on this aspect and that has attained finality. There is no other manner in which the provisions could be interpreted.
7. Hence, the demand is clearly illegal and cannot be sustained. In these circumstances, the demand for payment of Rs. 85,50,000/- as market price for 2 acres 10 guntas of Kharab (a) land in Survey No. 59, Lakshmipura Village, Yeshwanthpur Hobli, Bangalore North Taluk towards grant of permission for conversion is illegal and is accordingly, quashed.
8. Annexure-"D" directing the Revenue Authorities to impose market value on the Kharab (a) portion of the land are recover the same from the applicants is also illegal and is accordingly, quashed.
9. The respondents are directed to grant conversion for the entire 4 acres 16 guntas of land including 2 acres 10 guntas of Kharab (a) portion in survey No. 59 of the above land on payment of conversion fine as prescribed under Rule 107 of the Karnataka Land Revenue Rules and no separate demand shall be raised for payment of market value on 2 acres 10 guntas of Kharab (a) land.
The petition stands disposed of accordingly."
4415.4 A similar view has been taken in subsequent judgments of this Court also. Under these circumstances, I am of the view that the trial court was fully justified in coming to the conclusion that the suit schedule property being a 'A' kharab land, the plaintiffs were entitled to compensation in respect of the same. I do not find any illegality or infirmity in the said findings recorded by the trial court warranting interference by this Court in the present appeal.
Point No.2 is also answered accordingly.
16. Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I am of the view that the impugned judgment and decree passed by the trial court does not suffer from any illegality or infirmity nor can the same be said to be perverse or capricious warranting interference by this Court in the present appeals. In this context, it is relevant to state that in the absence of any material produced by either the appellants - State or the appellants - BDA to establish that the plaintiffs are not entitled to compensation and two sites under the incentive scheme, 45 merely because an opportunity is sought for by the appellants to contest the suit on merits, in the peculiar / special facts and circumstances of the instant case, a mechanical / soft remand of the matter by setting aside the impugned judgment and decree would be an exercise in futility and would serve no purpose and is also not warranted and as such, even this request made on behalf of the appellants cannot be accepted.
17. Accordingly, I do not find any merit in the appeals and the same are hereby dismissed.
Sd/-
JUDGE Srl.