Karnataka High Court
Balakrishna Gurunath Bhathkhande vs State Of Karnataka on 7 December, 2021
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE DAY OF 7TH DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WP NO 18325 OF 2005 (LR)
BETWEEN
1 . BALAKRISHNA GURUNATH BHATHKHANDE
76 YRS, HINDWADI, TILAKWADI, BELGAUM,
2 . PUNDALIK GURUNATH BHATHKHANDE
78 YRS,R/AT SOMWARPETHTILAKWADI,BELGAUM,
3 . DATHA PUNDALIKA BHATKHANDE
50 YRS,R/AT SOMWARPETHTILAKWADI,BELGAUM,
4 . PRATAP GURUNATH BHATHKHANDE
64 YRS, R/AT HINDUANGARKHANAPUR ROAD,
TILAKWADI,BELGAUM,
5 (1) . SHARISH ZUNZAR BHATHKHANDE
36 YRS, OCC;AGRIL,
5(2). GIRISH ZUNZAR BHATHKHANDE,
AGE: 38 YEARS,
5(3) MAYUR ZUNZAR BHATHKHANDE,
AGE: 36 YEARS
5(4) MRS. RATHANAMAL
W/O ZUNZAR BHATHAKHANDKLE,
AGE: 35 YEARS.
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ALL ARE R/AT KALI AMBRAYA,
BEHIND REX STORES,BELGAUM,
...PETITIONERS
(BY SRI.SUNIL DESAI, ADV.,)
AND
1 . STATE OF KARNATAKA
DEPT. OF REVENUE,
M S BUILDING,BANGALORE.
2 . DEPUTY COMMISSIONER
BELGUAM DIST.,BELGAUM,
3 . BELGAUM CITY CORPORATION
REPT. BY ITS COMMISSIONER,
RISALDALGALLIBELGAUM,
4 . POONA CATHOLIC EDUCATIONA SSOCIATION
PRIVATE LTD., 2004 BY ITS
DIRECTOR GENERALST. VINCENT STREETPOONA 411 001
5 . ASSISTANT COMMISSIONER
BELGUAM DIVISION,BELGAUM,
...RESPONDENTS
(BY SMT.GIRIJA S HIREMATH, HCGP FOR R1,2 AND 5;
SRI. ARAVIND D KULKARNI, ADV., FOR R3;
SRI.G.BALAKRISHNA SHASTRY, ADV., FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO DECLARE THE
COMMUNICATIONS/ ORDER BY THE STATE GOVERNMENT AS
PER ANX. S DT. 23.3.2005 IN SO FAR AS IT RELATES TO THE
PROPERTY BELONGING TO THE PETITIONERS AT ITEM NO.20 OF
THE STATEMENT ENCLOSED TO THE SAID COMMUNICATION AS
ILLEGAL AND VOID AND IN VIOLATION OF SECTION 77 OF
KARNATAKA LAND REFORMS ACT, 1961 AND TO SET-ASIDE THE
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ORDER OF RESPONDENT-2 THE DEPUTY COMMISSIONER,
BELGAUM DT. 3.8.1998 (PUBLISHED IN GAZETTE ON
13/8/1998) AS PER ANX. D AS ILLEGAL AND VOID.
THIS WRIT PETITION COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners claim that they were tenants of lands bearing Sy.Nos.107 measuring 16 acres 32 guntas, Sy.No.43/2 measuring 6 acres 36 guntas, Sy.No.44/2 measuring 6 acres and Sy.No.103 measuring 12 acres 35 guntas, Sy.No.105 measuring 14 acres 6 guntas all situated at Waghvade village, Belagavi taluka.
2. In pursuance of an agreement of sale dated 22/1/1972, petitioners were put in possession of the lands in question. Thereafter the petitioners filed Form No.7 for grant of occupancy rights in respect of the lands in question. The 4th respondent disputed the claim of the petitioners stating that the petitioners are 4 in possession by virtue of the agreement of sale executed in their favour. The tribunal rejected the Form No.7 filed by the petitioners on 5/11/1979 stating that the Petitioners are in possession under the agreement of sale and not in the capacity as tenants.
3. The 4th respondent which is an educational institution filed declaration in Form No.13 under Section 63 of the Karnataka Land Reforms Act, 1961 (for short the Act). Thereafter, the Deputy Commissioner issued notification dated 3/8/1998 declaring that the lands in question among the other lands to an extent of 448 acres 11 guntas 11 anas of land as excess land, by exercising power under Section 79-B(3) of the Act. Hence, this writ petition.
4. Learned counsel for petitioners would submit that the 2nd respondent has passed the impugned 5 order without holding an inquiry as contemplated under Section 79-B (3) of the Act. He would further submit that the 2nd respondent has not taken into account the transfer of land in question by 2nd respondent in favour of the petitioners in terms of explanation to Section 63 (10) of the Act. He further submits that by the Karnataka Land Reforms (Amendment) Act, 2020, Sections 79A, 79B and 79C of the Parent Act, were omitted with effect from 01.03.1974 and having regard to provisions contained in the amendment act, all pending proceedings for violation of Sections 79A, 79B and 79C stand abated.
5. On the other hand, learned HCGP appearing for the respondent State would submit that the 2nd respondent after holding an inquiry has rightly held that the 4th respondent was holding excess land and accordingly vested the excess land including the land in 6 question with the Government. Hence, she submits that the impugned notification issued by the 2nd respondent is in accordance with the provisions contained in the Karnataka Land Reforms Act, 1961.
6. I have considered the submissions made by the learned counsel for parties.
7. It is not in dispute that the petitioners had filed declaration in Form No.7 for grant of occupancy rights. However, the said application came to be rejected on the ground that the petitioners were put in possession of the land in question by virtue of the agreement of sale executed by the respondent No.4.
8. The 2nd respondent in pursuance of the declaration filed by the 4th respondent in Form No.13 as specified under Section 63 of the Act, has issued the impugned notification holding that the 4th respondent 7 is holding excess vacant land including the lands in question and vested the lands with the 2nd respondent by exercising the power under Section 79-B (3) of the Act.
9. Perusal of the notification discloses that there is no reference with regard to the conducting of an inquiry as contemplated under Section 79-B(3) of the Act and also the Deputy Commissioner has not taken into account the agreement of sale executed in favour of the petitioners for determining the ceiling limit of the respondent No.4. Hence, the impugned notification issued by the 2nd respondent is contrary to explanation in Section 63(10) as well as Section 79-B (3) of the Act.
10. Be that as it may, during the pendency of this writ petition, the State Government amended the 8 Act by the Amendment Act, 2020 whereby the Sections 79A, 79B and 79C of the parent Act were omitted with effect from 01.03.1974 and as such, all pending proceedings relating to violation of Sections 79-A, B & C stand abated.
11. In view of the preceding analysis, I am of the view that the impugned notification issued by the 2nd respondent as well as the order dated 23/3/2005 passed by the Government allotting the lands in question in terms of Section 77 of the Act are not sustainable in law. Accordingly, I pass the following:
ORDER
i) The writ petition is allowed.
ii) The impugned notification dated 3/8/1998 published in the official Gazette dated 13/8/1998 issued by the 2nd respondent 9 at Annexure D and the order dated 23/3/2005 passed by the 1st respondent at Annexure-S are hereby quashed insofar as it relates to land bearing Sy.No.107 measuring 16 acres 32 guntas, Sy.No.43/2 measuring 6 acres 36 guntas, Sy.No.44/2 measuring 6 acres and Sy.No.103 measuring 12 acres 35 guntas, Sy.No.105 measuring 14 acres 6 guntas all situated at Waghvade village, Belagavi taluka.
Sd/-
JUDGE Vb/-