Karnataka High Court
M Shivanandappa vs State Of Karnataka on 21 November, 2023
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WP No. 7542 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
WRIT PETITION NO. 7542 OF 2020 (KLR-RES)
BETWEEN:
M. SHIVANANDAPPA,
S/O. LATE RANGAPPA,
AGE ABOUT 64 YEARS,
OCC: AGRICULTURIST,
GYARAHALLI VILLAGE, B. DURGA HOBALI,
HOLELKERE TALUK, CHITRADURGA - 577 518.
...PETITIONER
(BY SRI. NANDA KISHORE, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF REVENUE,
M.S. BUILDING, DR. B.R. AMBEDKAR VEEDHI,
Digitally signed by
ARUN KUMAR M S BENGALURU - 560 001.
Location: High
Court of Karnataka
2. THE DEPUTY COMMISSIONER,
CHITRADURGA - 577 501.
3. THE TAHSILDAR,
HOLELKERE TALUK, HOLELKERE,
CHITRADURGA - 577 526.
4. THE TALUK PANCHAYATH,
HOLELKERE TALUK, HOLELKERE,
CHITRADURGA - 577 526.
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WP No. 7542 of 2020
5. M.E. THARACHANDRAPPA,
S/O. EASHWARAPPA,
AGED ABOUT 66 YEARS,
OCC: AGRICULTURIST,
GYARAHALLI VILLAGE, B. DURGA HOBALI,
HOLELKERE TALUK, CHITRADURGA - 577 518.
6. C. B. RANGANATH,
S/O. BASAPPA,
AGED ABOUT 60 YEARS,
OCC: AGRICULTURIST,
GYARAHALLI VILLAGE, B. DURGA HOBALI,
HOLELKERE TALUK, CHITRADURGA - 577 518.
7. G. S. UMAPATHI,
S/O. SIDDAPPA,
AGED ABOUT 58 YEARS,
OCC: AGRICULTURIST,
GYARAHALLI VILLAGE, B. DURGA HOBALI,
HOLELKERE TALUK, CHITRADURGA - 577 518.
8. G. S. NANJAPPA,
S/O. SHANKARAPPA,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURIST,
GYARAHALLI VILLAGE, B. DURGA HOBALI,
HOLELKERE TALUK, CHITRADURGA - 577 518.
...RESPONDENTS
(BY SRI. HARISHA A.S, AGA FOR R1 TO R3;
SRI. N. PRAVEEN KUMAR, ADVOCATE FOR R4;
R6 TO R8 ARE SERVED, BUT UNREPRESENTED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
OF THE HONBLE KARNATAKA APPELLATE TRIBUNAL IN
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WP No. 7542 of 2020
(REVENUE) APPEAL NO.143/2004 DATED 04.04.2019
(ANNEXURE-A) AS WELL AS THE ORDER PASSED BY THE R-2
DEPUTY COMMISSIONER DATED 20.06.1996 ANNEXURE-B AND
ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioner is assailing the order dated 04.04.2019 (Annexure-A) and the order dated 20.06.1996 (Annexure-B) passed by respondent No.2
2. The relevant facts for adjudication of this writ petition are that the petitioner and respondent Nos.5 to 8, claim to be the agriculturists of Gyarahalli Village, B.Durga Hobli, Holalkere Taluk, Chitradurga District.
3. It is stated in the writ petition that the Survey No.7 of Gyarahalli Village has been earmarked for free pasturage ('Gomal') to an extent of 15 Acres 39 Guntas. It is contended in the writ petition that respondent Nos.1 to 4 are illegally trying to divert the portions of the land -4- NC: 2023:KHC:41845 WP No. 7542 of 2020 earmarked for 'Gomal', as stated above and to reduce the extent of the land. It id further contended that, by the time the petitioner came to know that respondent No.2 has passed an order dated 20.06.1996(Annexure-B) earmarking 2 Acres 30 Guntas out of 15 Acres 39 Guntas and being aggrieved by the same, the petitioner has approached the Karnataka Appellate Tribunal in (Revenue) Appeal No.143/2004 (CH-2) (Annexure-A). The Karnataka Appellate Tribunal vide order dated 04.04.2019 dismissed the application on the ground of delay and laches as well as on merits. Feeling aggrieved by the same, the petitioner has presented this writ petition.
4. Heard Sri Nanda Kishore, learned counsel appearing for the petitioner, Sri.Harisha A.S., learned Additional Government Advocate appearing for respondent Nos.1 to 3 and Sri.N.Praveen Kumar, learned counsel appearing for respondent No.4.
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5. Sri Nanda Kishore, learned counsel for the petitioner invited the attention of the Court to Rule 97 of the Karnataka Land Revenue Rules, 1966 and the judgment of this Court in the case of K.P.Manjunath and others Vs State of Karnataka and others, reported in ILR 1976 Karnataka 946 and argued that by reducing the extent of land as well as, the land is a 'Gomal' which is earmarked for the raising pasturage of a particular village, it is the duty of the revenue authorities to hear the villagers or else bringing to the notice of the village people before passing an order of reduction of the land which is identified for the purpose of free pasturage. Accordingly, he sought for interference of this Court.
6. Per-contra, Sri Harisha A.S, learned Additional Government Advocate, sought to justify the impugned order on the ground that the petitioner has approached the Karnataka Appellate Tribunal at the belated stage and therefore, the Karnataka Appellate Tribunal rightly -6- NC: 2023:KHC:41845 WP No. 7542 of 2020 dismissed the appeal on the ground of delay as well as on the merits.
7. In the light of the submission made by the learned counsel appearing for the parties, in terms of the notification dated 20.06.1996 (Annexure-B), it is not disputed that respondent No.2 has identified to an extent of 2 Acres 30 Guntas out of 15 Acres 39 Guntas in land bearing Survey No.7 of Gyarahalli Village for the purpose of the distribution of sites under the Ashraya Scheme. In this regard, having taken note of the relevant rule provided under Rule 97 of the Karnataka Land Revenue Rules 1966, which reads as under:
"97.Providing free Pasturage.- (1) Government land shall be set apart for free pasturage for the cattle four goats, sheep's of each village at the rate of twelve hectares for every hundred heads of cattle.
Explanation.-In calculating the heads of cattle or 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 -7- NC: 2023:KHC:41845 WP No. 7542 of 2020 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 is much larger than what is really required, he may reduce it to the prescribed minimum. Where, he considers that the extent of free pasturage may be reduced below the prescribed limit, he should do so only after obtaining the prior permission of the Divisional Commissioner.
1[Provided that no such permission shall be necessary where the reduction below the prescribed limit is for the purpose of.- -8-
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(i) distribution of house sites to the siteless person; and
(ii) grant of land to persons belonging to Scheduled Castes and Scheduled Tribes, for agricultural purposes, who are ordinarily residents of such village.] 2[(iii) regularisation of unauthorised cultivation under Chapter XIIIA.] 3[(iii) Reservation of land for burial-ground for the residents of such village.] 4[iv) grant or reservation of land for various Government purposes i.e., Government Schools, Colleges, Residential Schools, Hostels, Hospitals, Veterinary hospitals, Anganawadi, substation of Karnataka Power Transmission Corporation Limited (KPTCL) and Bus depot of Karnataka State Road Transport Corporation (KSRTC)." 5[(4-A) The lands classified as gomala or free pasturage land and have totally lost characteristics of their nature as such and where alternative arrangements for feeding cattle have been made locally by the owners, on the date of commencement of the Karnataka Land Revenue (Third Amendment) Rules, 2017, in such -9- NC: 2023:KHC:41845 WP No. 7542 of 2020 circumstances after following the procedure prescribed in sub-rule (4) such lands can be considered for the purpose of regularization of unauthorized cultivation under Chapter XIII-A even if such land is either not available or insufficient for free pasturage after such regularization, as a onetime measure:"
8. On careful examination of the aforementioned Rule would indicate that it is the duty of the jurisdictional Deputy Commissioner to hear the villagers before making any order in respect of the reduction of the 'Gomal' land, which is earmarked for the purpose of free pasturage. In this regard, on consideration of the order passed by Division Bench of this Court in the case of K.P.Manjunath Supra, this Court at paragraphs 7 to 21 reads as under:
"7. Rule 97 of the Karnataka Land Revenue Rules, 1966 (hereinafter referred to as the Rules), deals with providing free pasturage. Sub-rule (4) of that, Rule reads:
"97 (4) The Deputy Commissioner shall determine the extent of land necessary to be set apart for free
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NC: 2023:KHC:41845 WP No. 7542 of 2020 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 Where, he considers that the extent of free pasturage may be reduced below the prescribed limit he should do so only after obtaining the prior permission of the Divisional Commissioner.
8. In Writ Petn. No. 224 of 1957, this Court while considering Section 40 of the Mysore Land Revenue Code, 1888, which is in pari meteria with Section 72 of the Revenue Act, observed thus: "Section 40 of the Land Revenue Code gives a right to the villagers to have,a free pasturae of their cattle on the lands of the village which have been assigned for that purpose. It is clear therefore that lands having been once assigned for the purpose of
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NC: 2023:KHC:41845 WP No. 7542 of 2020 pasturage, a right of grazing on the lands is created in favour of the villagers.
9.The villagers, therefore, have a say in the matter and it would be inappropriate to make any order without hearing the villagers."
10. Following the above observations, another Bench of this Court held in Writ Petn. No. 1961 of 1963 (Kant) (Chikka Hanumiah v. State of Mysore), that the villagers who have a right to graze their cattle on the Gomal lands of their village, have also a right to be heard in the matter before any order of disposal of such land is made depriving them of the right of the pasturage.
11. Following the aforesaid two decisions, another Bench of this Court held in Vankataramiah v. State of Mysore [(1967) 1 Mys LJ 301] that when a person applies for grant of land, the whole or part of which is reserved for public use or purpose, any proceeding taken for deciding whether a grant should or should not be made, will be of a quasi-judicial nature and
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NC: 2023:KHC:41845 WP No. 7542 of 2020 that such proceeding involves consideration of rights of individuals or groups of individuals subsisting in such land.
12. In Writ Petn. No. 3785 of 1968 (Kant), the material facts were these. On an application for grant of land in a Gomal, the Tahsildar had recommended sanction of such land. In his order granting that land, the Dy. Commissioner merely referred to the report of the Tahsildar and to the records showing the extent of Gomal land and observed that there was sufficient Gomal land reserved for the village cattle. Quashing the grant made by the Deputy Commissioner, this Court observed that the Deputy Commissioner had not determined the extent of land necessary to be set apart for free pasturage in the village, but appeared to have relied on the report of the Tahsildar and that what the Deputy Commissioner did could not amount to a determination regarding the surplus of Gomal land within the meaning of sub-rule (4) of Rule 97.
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13. In the present case, apart from the Mahazar drawn up by local Revenue Officials, no notice was given to the villagers of the application of respondent 4 or of the proposal of the Dy. Commissioner to grant a part of the Gomal lands to respondent 4, nor were the villagers heard in the matter before 20 acres of land in the Gomal was granted to respondent 4. The order of the Deputy Commissioner does not disclose that apart from his relying on the report of the Assistant Commissioner and saying that there was excess extent of Gomal land in the village, there was any determination as required by Rule 97 (4), of the extent of land necessary to be set apart for free pasturage having regard to numbers of different kinds of cattle and other live-stock in that village. There is also no mention in his order of the extent of Gomal land at the time he made that order.
14. The impugned order of the Government shows that the attention of the Government was drawn to the decision of this Court in Writ Petn. No. 3785 of
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NC: 2023:KHC:41845 WP No. 7542 of 2020 1968 (Kant). Instead of following that decision, the Government has tried to give its own interpretation to Rule 97 (4) different from the interpretation by the High Court. The Government has observed in the course of its order:
"Where the Gomal already exists and its extent exceeds the requirement of the local cattle in a real sense. Section 97(4) [it ought to be Rule 97 (4)] would not come into force at all. However the High Court judgment cited by the appellants' counsel has utilised the obverse aspect of Rule 97 (4). Where a decision is taken to grant land out of existing Gomal, it implies a determination of the Gomal requirement of the village cattle, and such determination is stated to attract Rule 97 (4). This is to invoke the obverse side of Rule 97 (4). However even under this interpretation what the Deputy Commissioner is expected to do is to carry out a determination of the gomal requirements. It cannot be said that this task of determination is completed merely by putting down a few numbers in an arithmetical calculation;
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NC: 2023:KHC:41845 WP No. 7542 of 2020 or conversely that it has not been carried out if no such figures are put down. That would be a rather literal application of the expression the Deputy Commissioner shall 'Determine'. What Rule 97 (4) requires is, particularly for its negative application, that the Deputy Commissioner should bear in mind the minimum requirement of Gomal of the village as determined by calculation."
15. In Writ Petn. No. 3785 of 1968 (Kant), this Court was dealing with a case in which there was a Gomal of an extent of 76 acres and 26 guntas and a portion of that Gomal was given for cultivation. This Court ruled that before granting any part of the Gomal land for cultivation, the Deputy Commissioner should, under Rule 97 (4), make a determination regarding the surplus of the Gomal. Yet the Government has observed:
"Where Gomal already exists and its extent exceeds the requirement of the local cattle, in a real sense Section 97(4) [Rule 97 (4)] would not come into force at all."
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16.The view taken by the Government is contrary to the ruling of this Court.
17. Nearly 15 years ago when the Mysore Sales Tax Appellate Tribunal did not follow the ruling of this Court on a question of law but took a different view on that question, this Court pointed out that every Tribunal and quasi-judicial authority in this State, is bound to follow the rulings of this Court unless such rulings are reversed or overruled by the Supreme Court and that it is not permissible for such Tribunals and authority not to follow such rulings and to take a different view on any such question of law. The Government, while it functions as a quasi-judicial authority, in hearing and deciding appeals or revision, is no exception in regard to such obligation to follow the rulings of this Court.
18. Hence, the impugned order of the Government which disregards the rulings of this Court, must be held to suffer from an error apparent on the face of the record and consequently is liable to be quashed.
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19. However, Mr. Kadidal Manjappa, learned counsel for respondent 4, submitted that when the Revenue authorities propose to grant a part of the Gomal land to any person or persons, it is not reasonably practicable for such authorities to give notice to all villagers who have the right of free pasturage in such Gomal land and to hear their objections and hence ascertainment of the views of the villagers in a Mahazar conducted by such authorities, should be regarded as sufficient.
20. We are unable to accept the above contention of Mr. Manjappa. 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 chavedi, 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
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NC: 2023:KHC:41845 WP No. 7542 of 2020 Gomal, need not necessarily be a personal or oral hearing.
21. A Mahazar cannot take the place of notice to persons in the village and consideration of their objections. In the absence of such notice, there is no certainty that all persons who desire to object to the proposed grant of land in the Gomal, will know that a Mahazar will be held and that they can express their objections at such Mahazar. In the absence of such notice, the possibility of stage managing a Mahazar so as to gather only such persons who support the applicant for grant of land in the Gomal and to keep away from such Mahazar persons who are likely to oppose the application for grant of land, cannot be ruled out."
9. In that view of the matter, taking into consideration of the declaration of law made by this Court in the aforementioned aspect, respondent No.2 herein ought to have at least draw a Mahazar before the villagers as well as, taking publication in the official gazette inter
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NC: 2023:KHC:41845 WP No. 7542 of 2020 alia, affixing the same in the conspicuous phrases in the village before passing the order at Annexure-B to the writ petition.
10. In that view of the matter, as the petitioner herein has addressed his grievance on behalf of the villages, the Karnataka Appellate Tribunal ought to have liberally construed the appeal by condoning the delay in filing the Appeal and considering the aforementioned judgment of this Court and the provisions contained under Rule 97 of the Karnataka Land Revenue Rules, 1966.
11. In that view of the matter, I find force in the submission made by the learned counsel appearing for the petitioner. Accordingly, the writ petition is allowed.
12. The order dated 20.06.1996 (Annexure-B) issued by respondent No.2 insofar, as the Gyarahalli Village and the order dated 04.04.2019 in (Revenue) Appeal No.143/2004 (CH-2) on the file of the Karnataka Appellate Tribunal at Bengaluru(Annexure-A) are hereby quashed
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NC: 2023:KHC:41845 WP No. 7542 of 2020 and the matter is remitted to respondent No.2 herein to re-do the exercise if so advised in the light of the observation made above.
13. Accordingly, the writ petition is allowed.
SD/-
JUDGE CH List No.: 1 Sl No.: 41 CT: BHK