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Pinaki Chandra Ghose, J.

Leave granted.

This appeal is directed against the judgment and order dated 29th October, 2007 passed by the High Court of Karnataka at Bangalore in Writ Appeal No.850 of 2004, whereby the High Court allowed the appeal filed by Respondent No.3 herein. The High Court by the impugned judgment held that the orders passed by the Assistant Commissioner (Respondent No.2 herein) and confirmed by Deputy Commissioner, Belgaum (Respondent No.1 herein), are not legal and valid and set aside the order passed by the learned Single Judge affirming the orders passed by the said respondents. The facts of the case are as follows: The appellant Vidya Prasarak Samithi, Ramdurg, a Trust registered under the Bombay Public Trusts Act and Basaveshwar Vidya Vardhak Sangha (“BVVS” for short), respondent No.3 herein, are running educational institutions at Ramdurg. The dispute between them is in respect of the Government land, being CTS No.1674/1, in respect of which there are rival claims by Vidya Prasarak Samithi and BVVS for use as playground for students of their respective institutions. As there was no playground in the college run by the appellant, it appears from the facts that on an application made by the appellant, the Assistant Commissioner, Belgaum, by his order dated 18th February, 1970, granted the land in question in favour of the appellant. This order was challenged by Respondent No.3 by filing an appeal before the Deputy Commissioner, Belgaum. The Deputy Commissioner confirmed the order of the Assistant Commissioner granting land. The order of the Deputy Commissioner was further confirmed by the Divisional Commissioner.

Pursuant to and in terms of the order of the High Court, the Assistant Commissioner conducted an inquiry into the matter and after giving opportunities to the parties of being heard, made the following findings:

BVVS acquired 4 acres of land in Ramdurg town under the Land Acquisition Act and its possession was handed over to the BVVS on 19th December, 1979. The BVVS constructed a school building meant for Girls Junior College on this land. The remaining area (120 Mtr. x 40 Mtr.) is available for playground. It has been leveled and developed as playground. The playground developed by BVVS at its newly acquired land is sufficient for its purpose. The plea taken by BVVS that it cannot be used by the students of Girls Junior College and Boys Junior College, cannot be accepted, while both the colleges were run in the same building before acquisition of the said land. BVVS Ramdurg is not having any land for its playground and in fact the college itself is being run in a rented building.

(b) BVVS has not made any application for grant of land before the Revenue Authorities and in the absence of any such application for grant, BVVS has no right to challenge the order of grant.

(c) The said point was not considered by the Tribunal.

Furthermore, the learned Single Judge of the High Court held that the Government at the instance of respondent No.3 has acquired 4 acres of land for the purpose of playground. Therefore, it was the duty of Respondent No.3 to reserve sufficient extent of land for use as playground and rest of the land would have been utilized for construction of the school. On the other hand, the appellant has no land of its own for use as playground and BVVS did not ever question the said plea of the appellant. In these circumstances, the learned Single Judge of the Karnataka High Court allowed the writ petition and quashed the order passed by the Karnataka Appellate Tribunal. It appears that the Division Bench of the High Court without considering such facts and without taking into consideration the land grant rules, quashed the order of grant of land.

Being aggrieved, BVVS filed an appeal before the Division Bench of the High Court. The Division Bench noted that by a Government Order dated 23rd July, 1966, the management of the Government School was transferred in favour of BVVS with certain conditions. One of the important conditions enumerated therein was that the ownership of the immovable property in question will vest with the Government. Subsequent thereto the Government passed another order dated 26.1.1967, wherein it was stated that consequent on the transfer of administration of the State High School, Ramdurg to the control and management of BVVS, vide Government order dated 23.7.1966, on a permanent basis, the Government has carefully considered the question of transfer of its properties after proper valuation and directed that the properties including buildings and playground, should be transferred to the management of the School at the prevailing market rate to be fixed by the competent valuer of the Public Works Department. Accordingly, the Public Works Department fixed the market value of the property in question at Rs.51,600/- vide valuation letter, which was duly paid by BVVS in favour of the Public Works Department by challan vide document produced at Annexure R- 3 in the office of Bagalkot Treasury on 8.11.1982 which was brought to the notice of the Public Works Department. Thereafter, a trust deed was registered by BVVS (Respondent No.3) wherefrom it would be evident that the property in question though belonged to the Education Department, since the administration and management of the High School run by the Education Department was transferred to BVVS, its property, namely, playground was also transferred in favour of BVVS for its market value. The Division Bench of the High Court further held that there is clinching documentary evidence in favour of BVVS to justify its claim of ownership in respect of the property in question and, therefore, the land in question was not available for grant as was observed by the learned Single Judge. It was further held that the land could have been granted if the land was available in the list of available lands for the purpose of grant in favour of either the appellant or any eligible person for educational purposes. The High Court further held that the land was not available at the time of granting the same in favour of the appellant Vidya Prasarak Samithi. The Division Bench also held that the undisputed fact was that the said playground was being used by the Government High School and the said property was one of its properties, and the same had been transferred to BVVS after fixing the market value by the Public Works Department and that therefore, Respondent Nos.1 and 2 have committed illegality in law in granting the land in question in favour of Vidya Prasarak Samithi, the appellant herein.