Karnataka High Court
Basobi W/O. Shabunayak Nayakar, vs The Deputy Commissioner, on 16 August, 2012
Bench: N.Kumar, H.S.Kempanna
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 16 T H DAY OF AUGUST 2012
PRESENT
THE HON'BLE MR. JUSTICE N. KUMAR
AND
THE HON'BLE MR. JUSTICE H. S. KEMPANNA
WRIT APPEAL Nos.30825-30878/2012 (KLR-RES)
BETWEEN:
1. Basobi w/o Shabunayak Nayakar
Age: 55 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
2. Naseema Begum W/o Goususab Raikar
Age: 45 years, Occ: Coolie,
R/o: Devang peth, Hubli.
3. Devendreppa S/o Basappa Halyal
Age: 50 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
4. Jaibunabi W/o Gudusab Lakshmeshwar
Age: 50 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
5. Allasab S/o Abdul Dodamani
Age: 55 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
6. Babaunayak S/o Shyabunayak Nayakar
Age: 35 years, Occ: Coolie,
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R/o: Devang peth, Hubli.
7. Shiddappa S/o Kariyappa menasinkai
Age: 50 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
8. Basavaraj S/o Devendrappa Halyal
Age: 40 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
9. Rudravva W/o Kareppa Menasinkai
Age: 60 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
10. Basavanneapa S/o Basappa Halyal
Age: 62 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
11. Pathenayak S/o Shabunayak Nayakar
Age: 56 years, Occ: Coolie,
R/o: Devang peth, Hubli.
12. Fatima W/o Kashimsab Lakshameshwar
Age: 49 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
13. Jafarnayak S/o Shabunayak Nayakar
Age: 45 years, Occ: Coolie,
R/o: Devang peth, Hubli.
14. Shivappa S/o Basappa Halyal
Age: 50 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
15. Masabi W/o Makatumsab Kumbar
Age: 52 years, Occ: Coolie,
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R/o: Gopanakoppa, Hubli.
16. Maktumnayak S/o Shabunayak Nayakar
Age: 45 years, Occ: Coolie,
R/o: Devang peth, Hubli.
17. Mannabi Basappa Pujari
Age: 55 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
18. Husen nayak S/o Shabunayak Nayakar
Age: 52 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
19. Kallappa S/o Gadigeppa Tattimani
Age: 35 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
20. Jameer S/o Goususab Nayakar
Age: 40 years, Occ: Coolie,
R/o: Devang peth, Hubli.
21. Faridabegum maktumnayak Naikar
Age: 56 years, Occ: Coolie,
R/o: Gopanakoppa, Hubli.
22. Deepa Prakash Hosmani
Age: 40 years, Occ: Nil,
Navanagar, Hubli.
23. Manjula W/o Siddappa Menasinakai
Age: 50 years, Occ: Household work,
R/o: Gopanakoppa, Hubli.
24. Yallawwa W/o Devendrappa Halyal
Age: 60 years, Occ: Nil,
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R/o: Gopanakoppa, Hubli.
25. Mamudabegam Phatenayak Nayakar
Age: major, Occ: Nil,
R/o: Devang peth, Hubli.
26. Kamalavva Basavennappa Halyal
Age: major, Occ: Daily wage work,
R/o: Gopanakoppa, Hubli.
27. Shantavva Shivappa Halayal
Age: major, Occ: Daily wage work,
R/o: Gopanakoppa, Hubli.
28. Jaibunabi W/o Husiem Naik Naikar
Age: major,
R/o: Gopanakoppa, Hubli.
29. Siddappa S/o Veerappa Pattar
Age: major, Occ: Coolie,
R/o: Gandhi nagar, Hubli.
30. Neelakantappa S/o P.Pattar
Age: major, Occ: Nil,
R/o: Gopanakoppa, Hubli.
31. Abdulaziz s/o Chandasab Hanchanal
Age: major, Age: 58 years
Occ: Daily wage work,
R/o: Devangpeth, Hubli.
32. Masabi W/o Imamsab Navalgund
Age: major, Occ: Daily wage work,
Age: 56 years, R/o: Gopanakoppa, Hubli.
33. Abdulmunaf Chansab Hanchanal
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Since by his Lr
Imtaz ahmed S/o Abdulmunaf Hanchanal
Age: 35 years, Occ: House hold work,
Devangapeth, Hubli.
34. Dyamavva W/o Yallappa Harugeri
Age: 62 years, Occ: coolie,
R/o: Gopanakoppa, Hubli.
35. Chansab Anwarsab Hanchanal
Age: 43 years, Occ: coolie,
R/o: Devang peth, Hubli.
36. Gangamma W/o Dyamanna Jannur
Age: 58 years, Occ: Coolie,
R/o Gopanakoppa, Hubli.
37. Ashok S/o Dyamanna Jannur
Age: 38 years, Occ: Coolie,
R/o Gopanakoppa, Hubli.
38. Abdulrahiman S/o Chansab Hanchnal
Age: 43 years, Occ: Coolie,
R/o Devang peth, Hubli.
39. Vishwanath S/o Nijagunappa Patil
Age: major, Occ: Coolie,
Devang peth, Hubli.
40. Savvakka W/o Ghoolappa Mattihalli
Since deceased by her LR
Gangamma D/o Ghoolappa Mattihalli,
Age: 48 years, Occ: Coolie,
R/o Gopanakoppa, Hubli.
41. Khadarsab S/o Chansab Hanchanal
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Age: 53 years, Occ: Coolie,
R/o Devang peth, Hubli.
42. Basavva W/o Mallappa Yarguppa
Age: 48 years, Occ: Coolie,
R/o Gopanakoppa, Hubli.
43. Jarinabegam Allabaksha Hanchanal
Age: 45 years, Occ: Coolie,
R/o Shidram nagar, Hubli.
44. Gouravva W/o Shankrappa Mattihalli
Age: 48 years, Occ: Coolie,
R/o Gopanakoppa, Hubli.
45. Sumitrabai W/o Sivputrappa Hosmani
Age: 70 years, Occ: Nil,
R/o Navanagar, Hubli.
46. Madevi W/o Shivappa Harogeri
Age: 48 years, Occ: Coolie,
R/o Gopanakoppa, Hubli.
47. Nurahammad S/o Mabusab Hanchanal
Age: 53 years, Occ: Coolie,
R/o Devang peth, Hubli.
48. Yallavva Iranna Harugeri
Age: 65 years, Occ: Coolie,
R/o Vijayanagar, Hubli.
49. Rajshekar Veerappa Ujjammanavar
Age: 50 years, Occ: Coolie,
R/o Madhav nagar, Hubli.
50. Suresh S/o Nijaguniappa Chollin
Age: 39 years, Occ: Police constable,
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R/o Devang peth, Hubli.
51. Shobha W/o Suresh Cholin
Age: 36 years, Occ: Household work,
Devang peth, Hubli.
52. Raju Nijagunappa Cholin
Age: 37 years, Occ: Police constable,
Devang peth, Hubli.
53. Gangadar Basappa Kuballi
Age: 48 years, Occ: Coolie,
R/o Devang peth, Hubli
54. Rohini Gangadhar Kubballi
Age: 48 years, Occ: Coolie,
R/o Devang peth, Hubli.
55. Nijagunappa Siddaveerappa Cholin
Since deceased by his LR
Sumitra D/o Jeevanna Byadagi @
Sumitra W/o Raju Cholin,
Age: 38 years, Occ: Household,
R/o Devang peth, Hubli.
56. Gangavva Nijagunappa Chollin
Age: 76 years, Occ: Household,
R/o Devang peth, Hubli.
57. Shantavva Vishwanath Cholin
Since deceased by her LR
Krishna Vishwanath Chollin
Age: 24 years, Occ: Coolie,
R/o Devang peth, Hubli. .. APPELLANTS
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(By Sri. V.M.Sheelavant, Advocate)
AND
1. The Deputy Commissioner,
Dharwad.
2. The Thasildar
Hubli Mini Vidhanasouda, Hubli.
3. Hubli Dharwad Urban Development
Authority Navanagar, Hubli,
By its Commissioner.
4. State of Karnataka
Rep. by its Secretary
Housing & Urban Development Authority
Government of Karnataka
Vidhanasoudha, Bangalore.
5. State of Karnataka
By its Secretary Revenue Department
M.S.Building, Bangalore.
...Respondents
(By Sri. Mahesh Wodeyar - Addl. Government Advocate
for caveator respondents 1, 2, 4 and 5)
THESE WRIT APPEALS ARE FILED U/S.4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO, ALLOW THE
APPEAL AND SET ASIDE THE ORDER DATED:19/06/2012
PASSED BY THE LEARNED SINGLE JUDGE IN
W.P.NO.67951-68007/2011 (KLR-RES)
These appeals coming on for orders this
day, N.Kumar J., delivered the following:
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J U D G M E N T
These appeals are preferred by the persons who are claiming to be the allottees under the Ashraya Scheme challenging the order passed by the learned Single Judge who has dismissed the writ petitions.
2. It is the case of the appellants/petitioners that they were allotted sites measuring 20 ft x 30 ft. carved out of S.Nos.172, 173, 174 of Gopanakoppa Village Hubli Taluka on 2.10.1994 under Ashraya scheme. Allotment letters are produced at Annexure-D series. The Government has formed a task force committee consisting of 11 members. They surveyed the suitable lands for providing houses to the homeless persons and identified 24 acres 14 guntas in S.Nos.172, 173, 174 of Gopanakoppa Village, Hubli Taluk for
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formation of layout and passed a resolution and recommended the said lands for the purpose of house sites. Further, the said committee has also identified 1036 beneficiaries under Ashraya Yojana and recommended the same under Resolution No.2 of the Task Force committee. These averments are taken from para 4 of the appeal memo.
They submit that the Deputy Commissioner of the district is the competent authority to issue hakku patra at the district Level and the Tahsildar is competent to grant sites after clearance by Assembly Constituency level Task Force Committee and sign the hakku patra. The layout was formed in the said land and sites measuring 20' x 30 were formed by investing huge amount.
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The task force committee recommended the names of the appellants/ petitioners and others for allotment of sites under Ashraya Yojana. After following the due process of law, they were issued hakkupatras. The Government provided amenities like electricity and water supply to some portion of the said layout. Some portion is not provided with the said amenities. Wherever these amenities were provided, the allottees have constructed houses and some houses are yet to be constructed. Site numbers were given to all the sites formed in the said boundaries.
Thereafter, revenue officials had come to the said layout and informed them that their allotments are cancelled and that they should vacate the property. They were threatened with forcible eviction. Therefore, some of the allottees had approached the civil Court for
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declaration and injunction against the Deputy Commissioner, Dharwad and the Tahasildar, Hubli in O.S.NO.256/2002 before the I Addl. Civil Judge (Jr.Dn.) Hubli and the said suit was decreed on 4.10.2004. The appeal preferred by the respondents herein in R.A.NO.178/2004 before the II Addl. Civil Judge (Sr.Dn.), Hubli was dismissed on 10.1.2007. The Tahsildar second respondent came to the said land on 16.11.2011 and threatened that the said land is allotted to the revenue department and the appellants should vacate the sites and houses, otherwise all the houses would be demolished and would be taken possession. The Tahsildar has uprooted all the fruit bearing trees in 1 acre of land belonging to one Yallappa. On the next day JCB's were brought and work for putting up compound wall was started. Left with no other
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alternative they went to the office of the Deputy Commissioner and made enquiries. The first respondent asked them to vacate the land immediately as it is allotted to the Revenue Department. They have obtained the order alleged to have been passed by the first respondent and obtained the copy under the RTI Act. The appellants were shocked to notice that the land allotted to them were granted to the Revenue Department by the first respondent. The first respondent has passed an order granting 4 acres out of R.S.No.173/1 out of the total extent of 13 acres 34 guntas for construction of pyramid. Lateron a corrigendum was issued restricting the area to 2 acres instead of 4 acres vide order dated 26.8.2011. The first respondent has also passed an order dated 21.10.2011 granting land bearing RS
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No.172,173 and 174 measuring 25 acres 14 guntas for revenue department for quarters. The appellants have challenged the order of the first respondent before the learned Single Judge in W.P.NO.67951-68007/2011. When the matter was heard, the learned Govt. Advocate made a submission that no houses are constructed in the said sites. As such the DDLR was appointed to inspect the properties and submit a report. The DDLR without issuing notice to the appellants or anybody, stating that he has inspected the spot submitted the report on 19.6.2012. Matter was heard on the same date. The learned Single Judge passed an order on 19.6.2012 dismissing the writ petition. Aggrieved by the said order, the appellants have preferred these appeals.
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3. The learned counsel for the appellants assailing the impugned order contends as early as on 2.10.1994 these appellants were allotted sites with specific boundaries as well as numbers. Thereafter, these appellants have constructed building and they are living with their families. The alleged order of cancellation dated 22.10.1984 is not served on any of these appellants. In fact, they were aware of same when the allotment was made by the Government. The Deputy Commissioner had no jurisdiction to cancel such allotments. Therefore, the said order of allotment, if any is void ab initio. The DDLR has submitted the sketch. A careful perusal of the sketch shows there are constructions. Therefore, his report that there are no construction is ex facie incorrect, which fact has not been properly
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appreciated by the learned Single Judge. He further submitted the contention of the respondents that the sites were allotted when the Code of Conduct for the assembly elections was in force and therefore, it has no legal effect has been not accepted by the Govt. in an enquiry conducted against the Tahsildar. Therefore, that ground is not available to them. He submits persons who are similarly placed as that of the petitioners have filed suit. After contest the suit is decreed. The appeal is dismissed. For the aforesaid reasons, he submits the learned Single Judge was not justified in dismissing their writ petitions. As such, when the lands which were given to them were given to various Governmental departments, the said allotments were required to be set aside.
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4. Per contra, the learned Govt. Advocate submitted the election to the Karnataka State Assembly was announced on 27.9.1994. The allotment of sites is on 2.10.1994. On coming to know of such illegal allotments, the Deputy commissioner by his order dated 22.10.1994 as per Ex.R4 cancelled those allotments. The persons who are similarly placed as that of the appellants have filed two appeals before the Karnataka Appellate Tribunal challenging the order of cancellation in Appeal Nos.21/2002 and 347/1994. After hearing both the appeals, they came to be dismissed on 24.11.2009 and 25.3.1999 respectively. In fact the very cancellation was challenged by some of the allottees by preferring W.P.No.32201-05/1994 which came to be dismissed as withdrawn. The suit O.S.No.451/1994 which was filed was also
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dismissed on 11.10.2007. When the appellants have not challenged the order of cancellation dated 22.10.1994, they have no right in the property and therefore, they cannot question the Government orders granting these lands to several departments. They have no locus standi. In fact, the DDLR was appointed to inspect and to submit a report, which he has done. The said report discloses that there are no constructions. It is on the basis of the aforesaid material the learned Single Judge rightly rejected the writ petitions. There is no merit in these appeals and he prays that the appeal be dismissed.
5. In the light of the aforesaid facts and the rival contentions, the point that arises for our consideration is :-
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'Whether any case for interference in the order of the learned Single Judge is made out?'
6. As set out above, the allegations in para 4 of the appeal memorandum makes it clear the task force consisting of 11 members committee surveyed the suitable land for providing houses to the homeless persons and identified 24 acres 14 guntas in S.Nos.172, 173 and 174 of Gopanakoppa village, Hubli Taluk for formation of layout and passed a resolution and recommended the said lands for the purpose of house sites. Further, the said committee has also identified 1036 beneficiaries under Ashraya Yojana and recommended the same under resolution No.2 of the proceedings of the Task Force Committee. The resolution of the said committee is produced as Anne xure-B. The
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committee under Ashraya Yojana scheme is constituted for Hubli Rural Assembly Constituency. By an order dated 20.9.1994 block development officer, Hubli was appointed as Secretary to the said committee. It is thereafter the committee met on 26.9.1994. Under Resolution 2 it is stated that the lands bearing R.S NO.172, 173 and 174 situated at Gopankoppa village are Government lands in which the layout for suitable house sites prepared earlier being handed over to the Commissioner, HDMC and the same is now produced before the Committee. Further, it states the layout consists of 1036 house sites. They were approved and accepted after due discussion. In respect of the same, the Commissioner HDMC sent the list of 1036 beneficiaries and submitted earlier to that they
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have got enquired in detail by the revenue inspector. Based on the said enquiries, the Tahsildar affirming the enquiry, produced the list of 1036 eligible beneficiaries before the Committee. The Committee passed a resolution to distribute respective house sites to the beneficiaries listed as 1 to 1036 and accordingly decided that patta be issued by the Tahsildar at the earliest. They also resolved that appropriate development of the said layout be carried out and steps be taken by the block development officer, Hubli. They gave permission to the block development officer to build residential houses after getting due permission from the Deputy Commissioner. This is the resolution on which reliance is placed.
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7. If the averments in para 4 of the appeal memorandum is to be believed, it is the committee which surveyed the suitable land and identified the same. If the contents of the resolution is to be believed, Government handed over the land to the HDMC who in turn prepared the layout of 1036 sites. They have prepared the list of 1036 beneficiaries which they made available to the committee. The committee forwarded the same to the Tahsildar got enquiries made and found all of them being eligible. Thereafter, allotments were made and patta issued. But, it is the block development officer who is entrusted with the responsibility to build residential houses over the said layout consisting of 1036 house sites after obtaining permission from the Deputy Commissioner.
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8. In this background it is not in dispute the next date i.e. 27.9.1994, election to Karnataka State assembly was announced. The allotments are said to be made on 2.10.1994. Then on 22.10.1994, the Deputy Commissioner cancelled the allotment. A copy of the said cancellation order is at Annexure-R4, which discloses on coming to know of such cancellation, there were protests from various sections of the society. Then steps were taken by holding enquiries. On such enquiries, it reveals that no layout has been formed, there is no formation of sties, no rules have been followed and therefore, in such circumstances, action has been taken to cancel such allotments on 22.10.1994. The said cancellation was challenged in W.P.No.32201-05/1994. However, it was withdrawn. Therefore, the writ petitions
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were dismissed as withdrawn. The n some of the allottees filed appeal No.21/02 before the Karnataka Appellate Tribunal which came to be dismissed on merits on 24.11.2009 and the said order has become final. One more Appeal No.347/94 is filed before the KAT challenging the very same cancellation order. On merits the said appeal also came to be dismissed on 25.3.1999. It appears one more suit 451/94 also came to be dismissed on 11.10.2007. However, one set of suit filed came to be decreed and the appeal came to be dismissed. Therefore, these undisputed material by way of court records clearly establish an order of cancellation of these allotments came to be made on 22.10.1994. Admittedly none of the appellants before this Court made any attempt to challenge the said order. The explanation is, they were
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not duly served. In fact, Annexure-R6 is the paper notification issued cancelling the allotments. When the appellants are relying on the suit filed by persons who are similarly placed wherein decree has been passed dismissing the appeal, their case that they were not aware of the order is hard to believe. Annexures A, H, J and K shows that when these lands were allotted to Governmental departments and the revenue authorities went near the land, the appellants have chosen to file these writ petitions challenging those allotments, but still no challenge is made on the order of cancellation.
9. According to the petitioners each one of them own sites measuring 20' x 30'. They have no locus standi to challenge the allotment made in favour of the Governmental departments
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when they have not chosen to challenge the order cancelling the allotment. The ir contention is as the order of cancellation is passed by the Deputy Commissioner who has no jurisdiction it is nonest in the eye of law. From the material on record it is not the Government which has made the allotment. Allotment is made by the Tahsildar. Against any action of the Tahsildar, appeal lies to the Deputy Commissioner and from the records produced it is seen that admittedly, allotments are made without the prior permission of the Deputy Commissioner. In fact, this Court had an occasion to consider the legality of the Ashraya Scheme in Dr.B.R.Ambedkar Dalitha and Hindulida Alpa Sankhyatara Grambhivruddhi Sangha (Regd.) and Another - vs - State of Karnataka and others reported in ILR 2000 KAR 250, where
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the question which was considered was, under what powers the State Government has framed the Ashraya Scheme for allotment of Government lands amongst the deprived and poor sections of the society through agencies created under the said scheme. The Government made the stand clear by saying that the said scheme is framed by virtue of the executive powers under Article 162 of the Constitution of India and not by any legislative delegation.
Then dealing with the said question this Court after referring to Article 162, List II (State List) of Seventh Schedule of the Constitution, Entries 18 and 45 of the said list and Section 69 of the Karnataka Land Revenue Act as well as Sections 197 and 198 of the Act and also taking note of the Karnataka Land Grant Rules of 1969 at para 22 held as under :-
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"The above statutory provisions clearly establishes that the legislative f ield relating to transf er and alienation of Government lands is entirely covered by the provisions of the Act and the Rules f ramed thereunder. The question is whether still State Government in purported exercise of executive powers can draw scheme to allotment of building sites carved out of the Government lands in derogation of statutory provisions."
After referring to various judgments of the Apex Court it was held, "in view of the law declared by the Supreme Court which very much binds the State Government as well, it is held that Ashraya Scheme framed by the State Government under its purported exercise of executive powers under Article 162 of the Constitution was beyond its competence and therefore, it is quashed and declared to be
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unenforceable. It is further declared that the Government lands can be transferred, alienated or granted only in accordance with the rules including the Land Grant Rules framed under the Karnataka Land Revenue Act and in no other manner.
Rule 18A of the said Rules provide for grant of land for house sites scheme etc. which reads as under :-
18-A. Grant of land for House Site Scheme etc. - Notwithstanding anything contained in these rules -
i) the Deputy Commissioner may make available the land belonging to the State Government for the purpose of grant of house sites to siteless persons under any scheme as may be framed by the Government from time to time;
ii) committee, if any, constituted under such scheme shall subject to the general or special orders of the Government in the
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concerned Department select the beneficiaries under the relevant scheme and send the list of selected beneficiaries to the Tahsildar; and
iii) the Tahsildar or any other officer specified by the Government shall on receipt of such list of selected beneficiaries grant house sites to the beneficiaries and also issue grant certificate in such manner and subject to such restrictions and conditions as may be specified by the concerned Department of the Government from time to time.
10. From the aforesaid facts it is clear that what the Committee has done is contrary to the statutory provisions. When the illegality was brought to the notice of the Deputy Commissioner, who is the competent authority under the Rules, promptly he has acted and cancelled the allotments. The said order of cancellation was the subject matter of challenge
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and it was negatived. Since then 18 years have lapsed. Under the guise of seeking quashing of the order of allotment of land to various Governmental agencies made under the Rules, what is sought to be done is to challenge the very cancellation of allotment which is done 18 years back. It is in this context the learned Single Judge got a Commissioner appointed, who went to the spot and submitted a report saying that there are no constructions. That apart, as is clear from Resolution 2 allottees are not permitted to put up construction. It is the Secretary of the Committee who was expected to put up construction. It is nobody's case that he has put up construction. It is the case the petitioners have put up constructions. Absolutely, no material is placed on record to show construction of houses on these sites. It is in that context, the Commissioner gave a report that
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the entire land is vacant and there are no constructions. The learned Single Judge has acted on the said report. Firstly, the appellants/ petitioners have no locus standi to challenge the impugned orders granting land to various governmental agencies. Secondly, they have not challenged the cancellation order dt.22.10.1994. The writ petitions are filed 18 years thereafter on 07.12.2011. Even now, in the writ petitions, the petitioners having not challenged the cancellation order, it is not maintainable. In that view of the matter, we do not see any merit in the appeals and accordingly, we pass the following :
ORDER The Writ Appeals are dismissed.
SD/-
JUDGE SD/-
JUDGE rs