Karnataka High Court
K T Nagesh S/O Late Patel Thimmaiah vs The State Of Karnataka on 11 January, 2013
Author: D.V.Shylendra Kumar
Bench: D V Shylendra Kumar
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
Dated this the 11th day of January, 2013
BEFORE:
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
Writ Petition No. 37568 of 2009 (KLR-LG)
BETWEEN:
K T NAGESH
S/O LATE PATEL THIMMAIAH
AGED ABOUT 50 YEARS
R/O KRISHNAPURA,
BELLUR HOBLI,
NAGAMANGALA TALUK
MANDYA DISTRICT ... PETITIONER
[By Sri Mahantesh S Hosmath, Adv.]
AND:
1. THE STATE OF KARNATAKA
SECRETARY REVENUE DEPARTMENT
M S BUILDING,
BANGALORE - 560 001
2. DEPUTY COMMISSIONER
MANDYA DISTRICT
MANDYA
3. ASSISTANT COMMISSIONER
PANDAVAPURA,
MANDYA DISTRICT
4. TAHSILDAR
NAGAMANGALA,
MANDYA DISTRICT
2
5. MOLLEGOWDA
S/O BOREGOWDA
DEAD BY LRS
5(a) K M NARASIMHEGOWDA
S/O MOLLEGOWDA,
MAJOR,
R/O KRISHNAPURA VILLAGE,
BELLUR HOBLI,
NAGAMANGALA TALUK
MANDYA DISTRICT
5(b) SMT NINGAMMA
W/O BORALINGEGOWDA
AGED ABOUT 60 YEARS
HAMPAPURA VILLAGE,
BELLUR HOBLI,
NAGAMANGALA TALUK
MANDYA DISTRICT
5(c) SMT AMMAYAMMA
W/O RAMACHANDRAIAH
AGED ABOUT 51 YEARS
R/O KRISHNAPURA VILLAGE,
BELLUR HOBLI,
NAGAMANGALA TALUK
MANDYA DISTRICT
5(d) SMT PARVATAMMA
W/O THIMMEGOWDA
AGACHAHALLI,
BELLUR HOBLI,
NAGAMANGALA TALUK
MANDYA DISTRICT ... RESPONDENTS
[By Sri R Omkumar, AGA for R1 to R4;
R5(a) to R5(d) are served]
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER OF TAHSILDAR NAGAMANGALA DATED
23.06.1998 AND VIDE ANNEXURE-L AND ORDER OF ASSISTANT
COMMISSIONER, PANDAVAPURA PASSED IN R.A.NO. 29/1999-2000
DATED 28.05.2001 AT ANNEXURE-M AND ORDER OF DEPUTY
3
COMMISSIONER, MANDYA PASSED IN R.A.NO. 57/2001 DATED
25.4.2005, AT ANNEXURE-N AND ORDER OF KARNATAKA
APPELLATE TRIBUNAL BANGALORE PASSED IN REVISION
PETITIONER NO. 525/2005 DATED 7.9.2009 AT VIDE ANNEXURE-P
AND FURTHER GIVE DIRECTION TO TAHSILDAR NAGAMANGALA TO
CONSIDER THE PETITIONER'S APPLICATION FOR GRANT OF
REMAINING LAND AS PER HIS APPLICATION FOR REGULARIZATION
AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING, 'B'
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is by a person who had aspired for seeking regularization of unauthorized occupation and cultivation of a land to an extent of 3 acres 20 guntas in Sy No 85 of Chikkajataka village, Bellur hobli, Nagamangala taluk in Mandya district, but whose application for regularization was found favour by the committee for regularization of unauthorized occupation in government lands only to an extent of 1 acre 10 guntas and the request for regularization of balance 2 acres 10 guntas was rejected as per the endorsement issued by the tahdildar dated 23-6- 1998 and the appeal of the writ petitioner to the assistant commissioner in the first instance in RA No 29/1999-2000, 4 a further second appeal to the deputy commissioner in RA No 57/2002 and a further revision petition in Revision No 525 of 2005 to the Karnataka appellate tribunal, have all come to be dismissed as per orders dated 28-5-2001, 25-4- 2005 and 7-9-2009 respectively and therefore the present writ petition.
2. What is urged in the writ petition is that when the petitioner was in unauthorized cultivation of the extent of land sought for regularization and the authorities, particularly the tahsildar, assistant commissioner and the deputy commissioner had the power to grant land up to 2 acres, 5 acres and 10 acres of revenue land respectively, rejection of the request of the petitioner is not proper.
3. Sri Mahantesh S Hosmath, learned counsel for petitioner, submits that grant of land admittedly in the possession and unauthorized cultivation of the petitioner in favour of fifth respondent and to the extent it was not granted in favour of the petitioner is not permitted in law, 5 more so, when the fifth respondent was not in possession and cultivation of the land and the matter being before civil court between the petitioner and the fifth respondent in OS No 124 of 1994, on the file of additional munsiff court, Nagamangala and a further appeal against the judgment and decree passed in this suit, in RA No 108 of 1996 having been dismissed by the appellate court and the decision being in favour of the writ petitioner, his possession cannot be disturbed in an indirect manner by way of grant made by the committee even when fifth respondent was not in possession of the land. It is also submitted that the fifth respondent is a sufficient holder, holding land to an extent of 15 acres etc.
4. On the other hand, Sri R Om Kumar, learned AGA, submits that in so far as regularization of unauthorized cultivation is concerned, in terms of proviso to sub-section (4) of Section 94A of the Karnataka Land Revenue Act, 1964 [for short, the Act], reading as under: 6
94-A. Regularisation of certain cases of unauthorised occupation by constituting committee etc.--
(4) Nothing in section 94 shall prevent the committee constituted under sub-section (1), or additional committee constituted under sub-section (2A), but subject to such rules as may be prescribed, if any, to grant to the person liable to be evicted under that section, the land which he had unauthorisedly occupied prior to the fourteenth day of April, 1990 (hereinafter referred to as the said date) or any portion thereof, if he satisfies the prescribed conditions (including the extent of the land held and unauthorisedly occupied by him) and makes within a period of six months from the date of commencement of the Karnataka Land Revenue (Amendment) Act; 1990 (hereinafter referred to as the Amendment Act), an application for such grant in such form along with such fees as may be prescribed and on payment of the amount payable under sub-section (5):
xxx Provided that the land so granted together with the land already held by such person, shall not exceed two hectares of 'D' class of land or its equivalent thereto: Provided that nothing in this section shall apply to forest lands, Plantation lands or lands referred to in sub-section (2) of section 79.7
xxx Explanation.--For the purpose of this section 'D' class of land means 'D' class of land or an extent equivalent thereto consisting of one or more classes of land, as specified and determined in accordance with the formula in Schedule I to the Karnataka Land Reforms Act, 1961.
and submits that with the grant of 1 acre 10 guntas of land in favour of petitioner, his holding reaches 4 acres 22 guntas and therefore there is no illegality in rejecting his claim in respect of excess extent of land, even assuming that he is in possession thereof and therefore while grant of land to the extent of 1 acre 19 guntas cannot be fault with, in so far as the grant of land in favour of fifth respondent, is concerned, the grant cannot be at variance or in contravention of the civil court decision, if any, in favour of the petitioner; that if the land is already in unauthorized occupation of the petitioner, that land cannot be granted in favour of any other person on the premise that it is in the unauthorized occupation of the other person. 8
5. Orders passed by the revenue authorities are always subject to the decision of civil courts and civil court's determination prevails over the orders passed by revenue authorities. In this view of the matter, while the grant of an extent of 1 acre 10 guntas made in favour of petitioner is not disturbed, in so far as the rejection is concerned, if there is an order already passed by a civil court in favour of the writ petitioner, it is hereby clarified that the order passed by the civil court prevails and can be put into operation by the petitioner.
6. Subject to this clarification, this writ petition is disposed of as one not warranting interference with the concurrent findings of the authorities below.
Sd/-
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