Karnataka High Court
Smt Jyothi vs The Deputy Commissioner on 27 June, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 27th DAY OF JUNE, 2012
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W. P. NO.35753/2009 (KLR-RES)
BETWEEN
SMT JYOTHI
W/O RENUKA PRASAD
AGED ABOUT 37 YEARS
R/A AJJAVARA VILLAGE
SULLIA TALUK
D.K.DISTRICT
... PETITIONER
(BY SRI. B.S. SACHIN FOR DHARMASHREE ASSOCIATES)
AND
1. THE DEPUTY COMMISSIONER
MANGALORE
D.K.DISTRICT
2. THE ASSISTANT COMMISSIONER
PUTTUR SUB DIVISION
D.K.DISTRICT
3. THE TAHSILDAR
SULLIA TALUK
D.K.DISTRICT
... RESPONDENTS
(BY SRI. VIJAY KUMAR A. PATIL, HCGP FOR R1-3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED PROCEEDINGS INITIATED BY THE R3 AGAINST THE
PETITIONER HEREIN DTD 28.11.09 DIRECTING THE PETITIONER
TO REMOVE THE ALLEGED ENCROACHMENT OF THE LANDS
IN SY.NO.79/1A TO THE EXTENT OF 10.12 ACRES, SY.NO.80/3 TO
THE EXTENT OF 2.66 ACRES AND SY.NO.84/1 TO THE EXTENT
OF 7.22 ACRES, ALL SITUATED AT AJJAVARA VILLAGE, SULLIA
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TALUK AND FURTHER DIRECTING TO FORFEIT THE SAID
PROPERTIES IN QUESTION IN FAVOUR OF THE STATE
GOVERNMENT VIDE ANEX-A AND THE ORDER DTD 22.10.09
PASSED BY THE R1 DEPUTY COMISSIONER DIRECTING THE R2
TO REMOVE THE ENCROACHMENT OF THE SAID LANDS IN
QUESTION AND FORFEITURE OF THE SAID LANDS IN FAVOUR
OF THE GOVERNMENT VIDE ANNEX-B AND ALSO THE ORDER
OF THE R2 DTD NIL DIRECTING THE R3 TAHSILDAR TO TAKE
NECESSARY STEPS SO AS TO REMOVE THE ENCROACHED
LAND IN QUESTION AND FORFEITING THE SAID PROPERTIES
IN FAVOR OF THE GOVERNMENT VIDE ANNEX-C.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN B GROUP THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
Petitioner is seeking for quashing of the proceedings dated 28.11.2009 at Annexure-A initiated by third respondent and order dated 22.10.2009 passed by first respondent directing the second respondent to remove the encroachment of the said lands in question and forfeiture of the said lands in favour of Government at Annexure-B and order of 2nd respondent dt: NIL in No:LND.CR 365/08-09 directing 3rd respondent to take necessary steps to remove the encroached land bearing survey No.79/1A, 80/3 and 84/1 measuring 10.12 Acres, 2.66 Acres and 7.22 Acres respectively in -3- occupation of the petitioner by evicting the petitioner and reporting the same to the first respondent.
2. Heard Sri. B.S. Sachin, learned Counsel appearing on behalf of Sri. Dharmashree Associates for petitioner and learned High Court Government Pleader for respondents - State.
3. It is the case of the petitioner that she has purchased the immovable property in Ajjawara village under registered sale deed dated 23.1.2006 along with khane lands which are abutting warg lands which were in possession of petitioner's vendor since time immemorial and by virtue of the same, it has been continued in possession of petitioner. It is stated that said khane lands are located in survey Nos. 79/1A, 80/3 and 84/1 abutting and adjacent to the lands purchased by the petitioner and it is also contended that said lands are being enjoyed as one contiguous land. Petitioner claims in the said lands cashew plants were grown, even according to the petitioner much prior to the purchase made by her. It is contended by -4- petitioner that since cashew plants did not develop, petitioner got them removed without cutting any other trees and has now grown rubber plantations and after a lapse of about four years, proceedings have been initiated by the 3rd respondents alleging that said plantation has been made in the vacant Khane and Bane lands and it is impermissible. It is also contended that said proceedings were initiated on anonymous and frivolous complaints namely those persons who are having animosity against the petitioner and said complaint is at Annexure-D which has been given by the villagers of Ajjawara village. Based on said complaint a report has been submitted by Revenue Inspector as per Annexure-E after visiting the spot to the Tahsildar and it is opined therein that lands in question are included in Bane rights and it is in possession of the petitioner. It is also opined by the Revenue Inspector that earlier there was cashew plants in the said land and same has been removed and rubber plantations have been raised by the petitioner. He has also stated in said report that there is -5- construction activity going on in the said land and has concluded that no gomal land is in possession of the petitioner and the said lands are khane and bane lands and he states this fact is also cross verified from the registers maintained in the office. Based on the said report, third respondent issued a Show Cause Notice on 2.12.2008 at Annexure-F and same came to be replied by the petitioner on 23.12.2008 at Annexure-G. Said reports came to be forwarded by the first respondent Deputy Commissioner who directed the subordinate authorities to proceed in accordance with law on the ground that there is violation of khane/bane rights by the petitioner by communication dated 12.1.2009 at Annexure-H. Based on the said direction issued by the first respondent, 3rd respondent has passed an order on 28.11.2009 to resume khane land in occupation of petitioner vide Annexure-A and Deputy Commissioner first respondent herein after examining the report of the Assistant Commissioner has held that said land has been permitted to be used only for the purposes of collecting twigs, grazing of cattle and collecting leaves -6- for the purpose of manure and since petitioner has raised plantation in the said area, it is to be removed and said land is to be resumed on account of violation of conditions for use of said lands. It is these two orders which have been impugned in the present Writ Petition.
4. It is the contention of Mr. Sachin, learned Counsel appearing for the petitioner that inspection conducted by revenue authorities is without notice to the petitioner and khane/bane lands cannot be forfeited to the Government unless it is established that there is explicit violation of conditions. He would contend that on account of cashew plantation which were existing not growing in the said land, same was removed and in its place, rubber plantations have been raised in the vacant place without cutting any existing trees. It is also stated that building that has been constructed by the petitioner is for agricultural purposes i.e. to store manure. It is also contended that even if the privileges given to the petitioner are withdrawn necessary compensation should be paid to the petitioner since it -7- has been enjoyed by the petitioner as a right and not as a privilege. He would also contend that objection submitted by the petitioner to the Show Cause Notice has not been considered and petitioner has not been given an opportunity and impugned order has been passed mechanically. It is also contended that without hearing the petitioner, impugned orders have been passed and it is in utter violation of principles of natural justice.
5. Per contra, learned High Court Government Pleader Sri Vijaya kumar A. Patil, would support the impugned orders and directions issued thereunder and contends that on account of violation of the conditions of use of Bane/khane lands, impugned order has been passed which is based on factual aspect and he prays for dismissal of the Writ Petition.
6. Having heard the learned advocates appearing for parties and on perusal of the records, following facts would emerge.
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7. The respondent authorities do not dispute the fact that petitioner had purchased lands abutting Khane/bana lands (in question) under a registered sale deed dated 23.1.2006 from one Sri Vishweshwaraiah, whereunder the rights of the petitioner over khane land is also specified and admittedly, this khane lands are abutting the warg lands which was in possession of the petitioner's vendor and subsequent to the purchase of these lands under registered sale deed dated 23.1.2006 petitioner also continued in possession of these lands both khane and bane lands which are abutting to warg lands. Respondent authorities initiated proceedings against petitioner based on a complaint submitted by the villagers which is at Annexure-D. On the basis of said complaint made to the Tahsildar, a report was called for by the Tahsildar through the Revenue Inspector. The said Revenue Inspector who conducted spot inspection has found that lands in survey Nos. 79/1A, 84/1 and 80/3 are included in bana rights which lands are adjacent and abutting to the lands of the petitioner and it is being made use of by the -9- petitioner. He has also found that there was some construction activity going on in the said land. He concluded that there is no Gomal land situated in these survey numbers or in other words, he has stated that khane/bane lands which are in occupation of the petitioner is not a Gomal land. In so far as the rights and privileges of the Kumki land, bane land abutting the warg lands have been settled by the Hon'ble Apex Court in the case of State of Mysore and Others Vs. K. Chandrashekara Adiga & another reported in (1976) 2 SCC 495 whereunder it has been held as follows:
18. Sub-para (6) further makes it clear that within kumki limits, a kumkidar can temporarily cultivate dry crops on government waste land. If he so cultivates land within kumki limits, he is not liable to pay any hakkal.
23. Although styled as 'privileges', kumki rights are recognised by theses statutory rules and the standing orders aforesaid.
They are property rights notwithstanding the fact that their scope is restricted and their exercise is subject to these statutory rules. Therefore, these rights could be curtailed, abridged or taken away only by law and not by an executive flat.
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8. Following this judgment Division Bench of this court in Writ Appeal No.2192/1998 disposed of on 12.1.1999 has held that wargdar who is enjoying the kumki land pertaining to the warg land has the privilege of grazing his cattle cutting and collecting leaves timber and other forest produce for his agricultural and domestic purposes from the Kumki land. The said finding in the words of the Division Bench reads as under:
3. We have examined the appeal on merits as well. The Hon'ble Supreme Court of India in State of Mysore and others -V/S-
K. Chandrashekar Adiga and another reported in AIR 1976 SC 853 has held that Wargdar who is enjoying the Kumki land pertaining to the Wargland had the privilege of grazing his cattle, cutting and collecting leaves, timber and other forest produce for his agricultural and domestic purposes from the Kumki land.
4. The learned Single Judge has relied upon the Supreme Court judgement and has rightly held that for the enjoyment of the rights of the Kumki lands or the privileges attached to it, the Kumkidar is not liable to pay any fine. We are in agreement with the view taken by the single Judge. The appeal is dismissed on merits as well as on the ground of delay.
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9. Thus, keeping in mind the principles enunciated by the Hon'ble Apex Court and applying to the facts on hand are examine, it can be noticed from the report of the Revenue Inspector that, petitioner has put up construction over the khane/bane lands. Petitioner in fact has admitted of having put up sheds in the said land in her reply itself dated 23.12.2008 at Annexure-G. The affidavits filed by the petitioners on 25.6.2012 and 26.6.2012 would also establish this fact. However, an undertaking has been now given in addition to the one already given by the petitioner agreeing to remove the structures situated in khane lands. The affidavit filed today reads as under:
"4. I undertake before this Hon'ble Court that I will remove the building found in the lands bearing survey Nos.79/1A, 80/3 and 84/1 situated at Ajjawara village, Sullia Taluk, D.K. District.
5. I also further undertake that I will not put up any building in future in the said lands.
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10. This undertaking would clearly go to show that petitioner has undertakes to remove the construction of whatsoever nature existing in the said property.
11. In so far as plantation said to have been raised by the petitioner has been considered, in the report of the Revenue Inspector at Annexure-E which would go to show that petitioner has raised rubber plantations in survey No.84/1 that means there are no rubber plantations in so far as survey Nos.79/1A and survey No.80/3. The claim of the petitioner is that on account of cashew plantations not growing in the said land, same was removed and it was planted with rubber plantations. Even according to the report of the Tahsildar and the Assistant Commissioner, cashew plantations which have been removed by petitioner were existing from time immemorial and the said land was made use of by the petitioner has controverted. The right of the petitioner to use the said land which is abutting to his land by way of privilege conferred there cannot be any dispute in view of the dicta laid down by
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the apex court. The report of the Revenue Inspector is based on spot inspection. Petitioner has not been notified of the same as to what is the extent of rubber plantation that has been raised by the petitioner as to whether the petitioner himself has raised it or not are all questions of fact which was required to be adjudicated by respondents 2 & 3 after duly notifying the petitioner in this regard at the time of conducting inspection. Admittedly, no notice has been issued to the petitioner at the time of conducting spot inspection. The said report is now being used against the petitioner and in the absence of having her say to the said report it cannot be used against her. Hence, impugned order passed would be in violation of principles of natural justice.
12. In that view of the matter, impugned order cannot be sustained. However, it is also to be made clear that respondent authorities would be at liberty to proceed against the petitioner for violation of rights or privileges conferred on him to use the said land in the
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event of there being any violation and after conducting an enquiry in this regard.
13. In the result, I pass the following:
ORDER (1) Writ Petition is hereby allowed. (2) Orders impugned dated 28.11.2009 at Annexure-A and dated 22.10.2009 at Annexure-B and also the order passed by the second respondent dated. Nil in No. LND CR 365/2008-09 at Annexure-C are hereby quashed.
(3) Respondents are at liberty to issue notice to the petitioner as observed hereinabove and proceed to adjudicate afresh in accordance with law. (4) The affidavit of undertaking given by the petitioner has been placed on record. It shall be complied by the petitioner within ten days from today, failing which 3rd respondent authority is at liberty to remove the said structures located in khane/bana lands and recover the costs that may be incurred from the petitioner as arrears of land revenue. (5) No order as to costs.
(6) Ordered accordingly.
Sd/-
JUDGE PL