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V.G. Nischay v/s State of Karnataka & Others

    Writ Petition No. 1688 of 2018 (KLR-LG)

    Decided On, 09 March 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MRS. JUSTICE B.V. NAGARATHNA

    For the Petitioner: V.G. Nischay, Party-In-Person. For the Respondents: R.B. Sathyanarayana Singh, AGA.



Judgment Text

(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to set aside the order dated 6.1.2018 passed by respondent No.2 at Annexure-G on the file of I.N.A.C.R.53-17/2018 and direct respondent No.1 for the grant of sarkarigomal land measuring 2 acres and 28 guntas in Sy.No.80 of Nellurahalli Village, K.R. Puram Hobli, Bengaluru East Taluk.)

1. Heard petitioner as party-in-person.

2. Petitioner has assailed order dated 06.01.2018 passed by respondent No.1- The Special Deputy Commissioner, Bengaluru Urban District (Annexure-G) in case No.I.N.A.C.R.53/17-18. By that order, petition filed by the petitioner herein has been dismissed.

3. Briefly stated the facts are that petitioner herein had filed a petition under Rule 28 A(5)(ii) of the Karnataka Land Grant Rules, 1969 (hereinafter referred to as the ‘Rules’ for the sake of brevity) seeking grant of 1 acre 21 guntas of land in Sy.No.140/1A2 situated at Pattandur Agrahara Village, K.R. Pura

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m Hobli, Bengaluru East Taluk. Petitioner had also sought for grant of the available land in Sy.No.42 of the said village. He had also approached for grant of 132 acres of land or equivalent land in the said village or elsewhere and for a direction to the jurisdictional Tahsildar to hand over physical possession of the land. Te application filed by the petitioner was initially numbered as No.LND/CR/E/41/16/17 and later on numbered as I.N.A.C.R.53/17-18.

4. I have heard the petitioner who has appeared as party-in-person and learned Additional Government Advocate who has appeared on advance notice for respondent Nos.1 to 3.

5. Petitioner has submitted that one of his forefathers, Sri. K. Ramachandra was an erstwhile Inamdar of Pattandur Agrahara Village and Nellurahalli Village and an extent of 530 acres 24 guntas of land was in his possession. The said extent of land was auctioned in the year 1958-59 on account of non-payment of land revenue amount of Rs.248/-. Later, grand-father of petitioner filed an application in case No.INA PR 191/1962-63 before the Special Deputy Commissioner for Inams for grant of compensation or grant of equivalent land in Pattandur Agrahara Village or elsewhere and also for grant of occupancy rights as an erstwhile Inamdar. That late K.V. Seetharam, cousin of Sri. K. Nagaraj, who was the grand-father of petitioner had filed LND(A)1/1998-99 before the Special Deputy Commissioner to set aside the auction sale dated 06.06.1958 and the Special Deputy Commissioner had rejected the claim on 30.06.2008. As against that, Writ Petition No.12628/2008 was filed before this Court. This Court directed the Special deputy Commissioner to determine the value of the land measuring 530 acres 34 guntas as on 06.06.1958 and pay compensation of the aforesaid land with 6% interest after adjusting the land revenue arrears of Rs.248/-. Liberty was also reserved to the legal representatives of the original owners to file an application for balance revenue sale price. The said order was challenged by late K.V. Seetharam in W.A. No.2076-78/2010 before the Division Bench of this Court, which dismissed the appeal.

6. Petitioner further submits that having regard to the aforesaid facts, petitioner is entitled to grant of land under Section 28 A of the Rules, 1969. He submits that K. Nagaraj was his grant-father and that he is entitled to grant of land under Section 28 A of the Rules and that the Special Deputy Commissioner was not right in dismissing or rejecting the application.

7. Per contra, learned Additional Government Advocate appearing for respondent Nos. 1 to 3 on advance notice submits that petitioner has erroneously invoked Section 28 A of the Rules and that the said Rule would apply only when there is relinquishment made to the State. In the instant case, there is no such relinquishment and that the grievance of the petitioner is with regard to the sale of the land said to be belonging to his ancestors, for the purpose of recovery of arrears of land revenue and the balance amount not being returned to the ancestors of the petitioner, pursuant to the said sale. That the said grievance cannot have nexus to seek grant of land under Section 28(A) of the Rules and that the impugned order passed by the Special Deputy Commissioner does not call for any interference.

8. Having heard petitioner who is appearing as party-in-person and learned AGA who has appeared on advance notice for respondent Nos.1 to 4 and on perusal of the material available on record, it is noted that petitioner has made an application under Section 28A of the Rules. Section 28A of the Rules reads as under:

28-A. Grant of land in exchange for land relinquished – (1) Notwithstanding anything contained in these rules, land may be granted to any person in exchange for the land relinquished by such person to the State Government in the following cases, namely,-

(i) whereby changing course, a river, water-way or cart-track runs through a private land:

Provided that the land to be granted in exchange shall be the land registered in the revenue records as river, water-way or cart-track;

(ii) Where a channel or pathway divides the private land of a person into two and it can be diverted along the boundary of such land without inconvenience to the public;

(iii) where the private land is required for straightening the course of channel or pathway.

(iv) Where private land is situated on the bed of an irrigation tank or river and the State Government desires to take over such land;

(v) Where private lands not exceeding five hectares in extent in each case, are required for public purposes such as construction of chavadies, cattle pounds, wells, schools or for minor improvements to any irrigation work or the setting apart such land for free pasturage for the cattle;

(vi) whereby any action of Government, a private land or any portion thereof is rendered valueless or has diminished in value;

(vii) where private land is required for extension of village sites.

(2) Any person desiring grant of land in exchange for the land to be relinquished by him shall make an application in writing to the Deputy Commissioner in Form VIII giving the following particulars,-

(i) name, age and address of the applicant;

(ii) the extent and particulars of the land proposed to be relinquished;

(iii) the extent and particulars of the land asked for, namely, survey number, village, taluk, sub-division in which the land is situated.

(3) In all cases where the value of the land to be granted exceeds rupees one hundred, the application shall be accompanied by an encumbrance certificate in respect of the land to be relinquished.

Provided that in other cases, the applicant shall produce such encumbrance certificate if called upon to do so.

(4) The Deputy Commissioner shall on receipt of such application, make such enquiry as he thinks fit and if satisfied that the applicant is eligible under this rule for the grant of land in exchange for the land relinquished, determine the market value of the land to be relinquished and also of the land to be granted. Thereafter he may pass an order granting the land, if the value of such land is not more than one thousand rupees. If the vale exceeds rupees one thousand, he shall submit the application together with his report in the matter to the Divisional Commissioner. The Divisional Commissioner may pass an order granting the land if the value of such land does not exceed rupees ten thousand. If the value exceeds ten thousand rupees the records shall be submitted to the State Government which may pass orders granting such land.

(5) The grant of land under this rule shall be subject to the following conditions, namely,-

(i) the grant shall be subject to the provisions of Rule 9 and 13;

(ii) the applicant should have absolute title to the land to be relinquished;

(iii) the value of land to be granted shall as far as possible be not more than the value of the land relinquished and the difference if any in value shall be paid by the applicant.

9. The said rule commences with a non-obstante clause and the said clause states, notwithstanding anything contained in the rules, land may be granted to any person in exchange for land relinquished by such person to the State Government in certain cases. That any person desiring of grant of land in exchange for the land to be relinquished by him shall make an application in writing to the Deputy Commissioner in Form VIII giving certain particulars and to the Deputy Commissioner, who on receipt of such application make such enquiry as he thinks fit and if he is satisfied, that the applicant is eligible under this rule for the grant of land in exchange for the land relinquished, determine the market value of the land to be relinquished and also of the land to be granted. Thereafter, he may pass an order granting the land, if the value of such land is not more than one thousand rupees. IF the value exceeds rupees one thousand, he shall submit the application together with his report in the matter to the Divisional Commissioner. The Divisional Commissioner may pass an order granting the land if the value of such land does not exceed rupees ten thousand. If the value exceeds ten thousand rupees the records shall be submitted to the State Government which may pass orders granting such land.

10. On reading of the aforesaid rule what clearly emerges is the fact that the grant may be made under the said Rule by way of an exchange only when there is relinquishment of land made by the land owner and not otherwise. In the instant case, there is no relinquishment of land said to have been made by the petitioner. On the other hand, the petitioner is aggrieved by the non-compliance of Section 117 of the Karnataka Land Revenue Act, 1964. In that view of the matter, the invocation of Section 28 A of the Rules by the petitioner is mis-conceived. The Special Deputy Commissioner has rightly rejected petitioner’s application. There is no merit in the writ petition.

11. Hence, the writ petition is dismissed.

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