Skip to content


K.P. Nanjunath and ors. Vs. State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Appeal No. 830 of 1974
Judge
Reported inAIR1976Kant158
ActsKarnataka Land Revenue Act, 1964 - Sections 71 and 72; Karnataka Land Revenue Rules, 1966 - Rule 97(4); Constitution of India - Articles 21 and 226
AppellantK.P. Nanjunath and ors.
RespondentState of Karnataka and ors.
Appellant AdvocateN.E. Datar, Adv. for ;B.M. Krishna Bhat, Adv.
Respondent AdvocateH.N. Narayan, H.C.G.P. and ;Kadilal Manjappa, Adv.
Excerpt:
.....be contrary to act . registration of amended bye-laws is not proper. - 6. section 71 of the revenue act provides, inter alia, that lands assigned for special purposes like free pasturage for the village cattle, shall not be used otherwise without the sanction of the deputy commissioner and that in disposing of lands belonging to the state government due regard shall be had to all such special assignments. on an application for grant of land in a gomal, the tahsildar had recommended sanction of such land......the contentions of mr. datar, it is necessary to set out the relevant provisions of the karnataka land revenue act, 1964, (hereinafter referred to as the revenue act) and the rules hereunder and to refer to some relevant decisions of this court.6. section 71 of the revenue act provides, inter alia, that lands assigned for special purposes like free pasturage for the village cattle, shall not be used otherwise without the sanction of the deputy commissioner and that in disposing of lands belonging to the state government due regard shall be had to all such special assignments.7. section 72 of the revenue act, which corresponds to section 40 of the mysore land revenue code, 1899, provides, inter alia, that the right of grazing on free pasturage lands, shall extend only to the cattle of.....
Judgment:

Chandrashekhar, J.

1. This is an appeal from the order of Venkataramiah, J., in Writ Petition No. 5812 of 1974. The appellants and the defendants herein were the petitioners and the respondents respectively in the writ petition. For the sake of convenience, the appellants will hereinafter be referred to as the petitioners.

2. The facts of the case are briefly these: The land bearing Survey No.23 of Baggasagodu village in Chickmagalur District, is a Gomal land. The first petitioner had applied in about the year 1960 for grant of 10 acres of land in this Survey number. The villagers opposed the grant of land to him. The Revenue authorities rejected his application for grant of land about 10 years later, respondent 4 made an application for grant of 20 acres of land in this survey number for coffee cultivation in the Mahzar prepared by the Revenue official some villagers including two of the appellants stated that they had no objection to grant of the land applied for by respondent 4 for coffee cultivation. The Deputy Cominissioner, Chickmagalur District (respondent 3), by his order dated 28-1-1971 (Exhibit A), granted 20 acres of land to respondent 4 at an upset price of Rs. 500 per acre, subject to certain conditions including the condition that there should be brought under coffee cultivation within 3 years from the date of taking possession of the land. Against the order of the Deputy Commissioner, the petitioners preferred an appeal to the Divisional Commissioner Mysore Division, (respondent 2) who dismissed the appeal the further appeal by the petitioners was dismissed by the Government (respondent 1) by its order dated 14-9-1974. In the writ petition, the petitioners assailed the orders of the Deputy Commissioner, the Divisional Commissioner and the Government.

3. The learned single judge dismissed the writ petition holding that the petitioners had not placed any materials to show that the extent of Gomal was insufficient and -that the Deputy Commissioner had specifically stated that the extent of Gomal was in excess of the requirement of the village. The learned single Judge also observed that some of the petitioners who were themselves applicants for grant of this land, had filed the writ petition because they were not able to secure the grant in their favour.

4. In this appeal, Mr. JJ. B. Datar, learned counsel for the appellants, contended that the Revenue authorities and the learned single Judge had overlooked that the villagers had a right to be heard before any part of the Gomal land was granted to any person and that there was no determination by the Deputy Commisioner, after holding an enquiry, that the extent of Gomal land was in excess of the requirement of the villagers.

5. In order to appreciate the contentions of Mr. Datar, it is necessary to set out the relevant provisions of the Karnataka Land Revenue Act, 1964, (hereinafter referred to as the Revenue Act) and the Rules hereunder and to refer to some relevant decisions of this Court.

6. Section 71 of the Revenue Act provides, inter alia, that lands assigned for special purposes like free pasturage for the village cattle, shall not be used otherwise without the sanction of the Deputy commissioner and that in disposing of lands belonging to the State Government due regard shall be had to all such special assignments.

7. Section 72 of the Revenue Act, which corresponds to Section 40 of the Mysore Land Revenue Code, 1899, provides, inter alia, that the right of grazing on free pasturage lands, shall extend only to the cattle of the village or villages to which such Lands belong or have been assigned.

8. Rule 97 of the Karnataka Land Revenue Rules, 1966 (hereinafter referred to as the Rules), deals with providing free pasturage. Sub-rule (4) of that, Rule reads:

'97 (4) The Deputy Commissioner shall determine the extent of land necessary to be set apart for free pasturage in any village. If in the opinion of the Deputy Commissioner the extent of pasturage should exceed the minimum prescribed in sub-rule (1) he may so set apart such larger extent as may be necessary. If on the contrary he considers that the area already so set Apart lies much larger than what is really required he may reduce it to the prescribed minimum Where, he considers that the extent of free pasturage may be reduced below the prescribed limit he should do so only after obtaining the prior permission of the Divisional Commissioner.

9. In Writ Petn. No. 224 of 1957, this Court while considering Section 40 of the Mysore Land Revenue Code, 1999, which is in pari material with Section 72 of the Revenue Act, observed thus:

'Section 40 of the Land Revenue Code gives a right to the villagers to have ,a free pasturage of their cattle on the lands of the village which have been assigned for that purpose. It is clear therefore that lands having been once assigned for the purpose of pasturage, a right of grazing on the lands is created in favour of the villagers.

The villagers, therefore, have a say in the matter and it would be inappropriate to intake any order without hearing the villagers.'

10. Following the above observations, another Bench of this Court held in Writ Petn. No. 1961 of 1963 (Kant) (Chikka Hanumiah v. State of Mysore), that the villagers who have a right to graze their cattle on the Gomal lands of their village, have also a right to be heard in the matter before any order of disposal of such land is made depriving them of the right of the pasturage.

11. Following the aforesaid two decisions, another Bench of this Court held in Vankataramiah v. State of Mysore [(19167) 1 Mys LJ 301] that when a person applies for grant of land, the whole or part of which is reserved for public use or purpose, any proceeding taken for deciding whether a grant should or should not be made, will be of a quasi-judicial nature and that such proceeding involves consideration of rights of individuals or groups of individuals subsisting in such land.

12. In Writ Petn. No. 3785 of 1968 (Kant), the material facts were these. On an application for grant of land in a Gomal, the Tahsildar had recommended sanction of such land. In his order granting that land, the Dy. Commissioner merely referred to the report of the Tahsildar and to the records showing the extent of Gomal land and observed that there was sufficient Gomal land reserved for the village cattle. Quashing the grant made by the Deputy Commissioner, this Court observed that the Deputy Commissioner had not determined the extent of land necessary to be set apart for free pasturage in the village, but appeared to have relied on the report of the Tahsildar and that what the Deputy Commissioner did could not amount to a determination regarding the surplus of Gomal land within the meaning of sub-rule (4) of Rule 97.

13. In the present case, apart from the Mahazar drawn up by local Revenue Officials, no notice was given to the villagers of the application of respondent 4 or of the proposal of the Dy. Commissioner to grant a part of the Gomal lands to respondent 4, nor were the villagers heard in the matter before 20 acres of land in the Gomal was granted to respondent 4. The order of the Deputy Commissioner does not disclose that apart from his relying on the report of the Assistant Commissioner and saying that there was excess extent of Gomal land in the village, there was any determination as required by Rule 97 (4), of the extent of land necessary to be set apart for free pasturage having regard to numbers of different kinds of cattle and other live-stock in that village. There is also no mention in his order of the extent of Gomal land at the time he made that order.

14. The impugned order of the Government shows that the attention of the Government was drawn to the decision of this Court in Writ Petn. No. 3785 of 1968 (Kant). Instead of following that decision, the Government has tried to give its own interpretation to Rule 97 (4) different from the interpretation by the High Court. The Government has observed in the course of its order:

'Where the Gomal already exists and its extent exceeds the requirement of the local cattle in a real sense. Section 97(4) [it ought to be Rule 97 (4)] would not come into force at all. However the High Court judgment cited by the appellants' counsel has utilised the obverse aspect of Rule 97 (4). Where a decision is taken to grant land out of existing Gomal, it implies a determination of the Gomal requirement of the village cattle, and such determination is stated to attract Rule 97 (4). This is to invoke the obverse side of Rule 97 (4). However even under this interpretation what the Deputy Commissioner is expected to do is to carry out a determination of the gomal requirements. It cannot be said that this task of determination is completed merely by putting down a few numbers in an arithmetical calculation; or conversely that it has not been carried out if no such figures are put down. That would be a rather literal application of the expression the Deputy Commissioner shall 'Determine'. What Rule 97 (4) requires is, particularly for its negative application, that the Deputy Commissioner should bear in mind the minimum requirement of Gomal of the village as determined by calculation.'

15. In Writ Petn. No. 3785 of 1968 (Kant), this Court was dealing with a case in which there was a Gomal of an extent of 76 acres and 26 guntas and a portion of that Gomal was given for cultivation. This Court ruled that before granting any part of the Gomal land for cultivation, the Deputy Commissioner should, under Rule 97 (4), make a determination regarding the surplus of the Gomal. Yet the Government has observed:

'Where Gomal already exists and its extent exceeds the requirement of the local cattle, in a real sense Section 97(4) [Rule 97 (4)] would not come into force at all.'

The view taken by the Government is contrary to the ruling of this Court.

16. Nearly 15 years ago when the Mysore Sales Tax Appellate Tribunal did not follow the ruling of this Court on a question of law but took a different view on that question, this Court pointed out that every Tribunal and quasi-judicial authority in this State, is bound to follow the rulings of this Court unless such rulings are reversed or overruled by the Supreme Court and that it is not permissible for such Tribunals and authority not to follow such rulings and to take a different view on any such question of law. The Government, while it functions as a quasi-judicial authority, in hearing and deciding appeals or revision, is no exception in regard to such obligation to follow the rulings of this Court.

17. Hence, the impugned order of the Government which disregards the rulings of this Court, must be held to suffer from an error apparent on the face of the record and consequently is liable to be quashed.

18. However, Mr. Kadidal Manjappa, learned counsel for respondent 4, submitted that when the Revenue authorities propose to grant a part of the Gomal land to any person or persons, it is not reasonably practicable for such authorities to give notice to all villagers who have the right of free pasturage in such Gomal land and to hear their objections and hence ascertainment of the views of the villagers in a Mahazar conducted by such authorities, should be regarded as sufficient.

19. We are unable to accept the above contention of Mr. Manjappa. Though it may not be Practicable to give individual notices to all the villagers having the right of free pasturage in Gomal lands, the Revenue authorities can give public notice to the villagers by affixing a copy of such notice in the village chavedi, or by beat of tom tom or by publication in a newspaper having circulation in the village or in any other reasonable manner. Hearing of objections of such persons, to the proposed grant of land in the Gomal, need not necessarily be a personal or oral hearing.

20. A Mahazar cannot take the place of notice to persons in the village and consideration of their objections. In the absence of such notice, there is no certainty that all persons who desire to object to the proposed grant of land in the Gomal, will know that a Mahazar will be held and that they can express their objections at such Mahazar. In the absence of such notice, the possibility of stage managing a Mahazar so as to gather only such persons who support the applicant for grant of land in the Gomal and to keep away from such Mahazar persons who are likely to oppose the application for grant of land, cannot be ruled out.

21. Mr. Manjappa next contended that the first petitioner had himself applied for grant of land in this very Gomal, that two other petitioners had signed the Mahazar in which it was stated that they had no objection to grant 20 acres of land for coffee cultivation and that these petitioners had, by their own conduct, disentitled themselves from invoking the discretionary jurisdiction of this Court under Art. 226 of the Constitution.

22. There is some force in the above contention of Mr. Manjappa. But there are two other petitioners who were neither applicants for land in the Gomal nor consenting parties for the impugned grant of land. There is no reason to deny them the reliefs claimed in the writ petition.

23. Lastly, Mr. Manjappa submitted that respondent 4 had, after taking possession of the land, cleared the jungle and had planted coffee seedlings and reared them incurring heavy expenditure and that if the grant of land to him be set aside at this distance of time, he would be put to heavy loss.

24. Though we are not unmindful of the loss and the hardship to which respondent 4 may be put to if the grant of I land in his favour should be set aside, we cannot, on that ground alone, deny relive, to the petitioners who challenged the grant in his favour without undue delay. Individual hardship, if any, cannot stand in the way of maintenance of the rule of law. We can only make an observation that if the Deputy Commissioner determines, after enquiry, that there is surplus extent of land in the Gomal and decides to grant any portion of such excess extent of land he may take into account the claim of respondent 4 that he has incurred expenditure for cultivation of coffee plants in 20 acres of land granted to him.

25. Mr. Manjappa next submitted that if we quash the grant of land, respondent 4 should be permitted to enter upon that land and to carry out only those agricultural operations that are absolutely necessary to protect the young coffee plants, till the Revenue authorities determine whether there is excess extent of land in the Gomal and in case there is such excess decide afresh whether any portion of such excess land should be granted to him. This is a matter entirely for the Revenue authorities to decide. If respondent 4 makes such a request to them, we hope that it will receive their sympathetic consideration.

26. With these observations, we allow this appeal and in reversal of the order of the learned single Judge we quash the impugned orders of the Deputy Commissioner, the Divisional Commissioner and the Government. However, we make it clear that it will be open to the Deputy Commissioner to make a determination in accordance with law, whether there is any surplus extent of land in the Gomal of the village and to consider in ,accordance with law the application of respondent 4 for grant of land in the Gomal.

27. The petitioners-appellants shall get their costs from respondent 1 (the State of Karnataka) both in the appeal and in the writ petition. Advocate's fee Rs. 100 in each of the proceedings, the writ petition and the appeal.

28. Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //