Karnataka High Court
M Shivanandappa vs State Of Karnataka on 21 November, 2023
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WP No. 7542 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
WRIT PETITION NO. 7542 OF 2020 (KLR-RES)
BETWEEN:
M. SHIVANANDAPPA,
S/O. LATE RANGAPPA,
AGE ABOUT 64 YEARS,
OCC: AGRICULTURIST,
GYARAHALLI VILLAGE, B. DURGA HOBALI,
HOLELKERE TALUK, CHITRADURGA - 577 518.
...PETITIONER
(BY SRI. NANDA KISHORE, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF REVENUE,
M.S. BUILDING, DR. B.R. AMBEDKAR VEEDHI,
Digitally signed by
ARUN KUMAR M S BENGALURU - 560 001.
Location: High
Court of Karnataka
2. THE DEPUTY COMMISSIONER,
CHITRADURGA - 577 501.
3. THE TAHSILDAR,
HOLELKERE TALUK, HOLELKERE,
CHITRADURGA - 577 526.
4. THE TALUK PANCHAYATH,
HOLELKERE TALUK, HOLELKERE,
CHITRADURGA - 577 526.
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WP No. 7542 of 2020
5. M.E. THARACHANDRAPPA,
S/O. EASHWARAPPA,
AGED ABOUT 66 YEARS,
OCC: AGRICULTURIST,
GYARAHALLI VILLAGE, B. DURGA HOBALI,
HOLELKERE TALUK, CHITRADURGA - 577 518.
6. C. B. RANGANATH,
S/O. BASAPPA,
AGED ABOUT 60 YEARS,
OCC: AGRICULTURIST,
GYARAHALLI VILLAGE, B. DURGA HOBALI,
HOLELKERE TALUK, CHITRADURGA - 577 518.
7. G. S. UMAPATHI,
S/O. SIDDAPPA,
AGED ABOUT 58 YEARS,
OCC: AGRICULTURIST,
GYARAHALLI VILLAGE, B. DURGA HOBALI,
HOLELKERE TALUK, CHITRADURGA - 577 518.
8. G. S. NANJAPPA,
S/O. SHANKARAPPA,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURIST,
GYARAHALLI VILLAGE, B. DURGA HOBALI,
HOLELKERE TALUK, CHITRADURGA - 577 518.
...RESPONDENTS
(BY SRI. HARISHA A.S, AGA FOR R1 TO R3;
SRI. N. PRAVEEN KUMAR, ADVOCATE FOR R4;
R6 TO R8 ARE SERVED, BUT UNREPRESENTED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
OF THE HONBLE KARNATAKA APPELLATE TRIBUNAL IN
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WP No. 7542 of 2020
(REVENUE) APPEAL NO.143/2004 DATED 04.04.2019
(ANNEXURE-A) AS WELL AS THE ORDER PASSED BY THE R-2
DEPUTY COMMISSIONER DATED 20.06.1996 ANNEXURE-B AND
ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioner is assailing the
order dated 04.04.2019 (Annexure-A) and the order dated
20.06.1996 (Annexure-B) passed by respondent No.2
2. The relevant facts for adjudication of this writ
petition are that the petitioner and respondent Nos.5 to 8,
claim to be the agriculturists of Gyarahalli Village, B.Durga
Hobli, Holalkere Taluk, Chitradurga District.
3. It is stated in the writ petition that the Survey
No.7 of Gyarahalli Village has been earmarked for free
pasturage ('Gomal') to an extent of 15 Acres 39 Guntas. It
is contended in the writ petition that respondent Nos.1 to
4 are illegally trying to divert the portions of the land
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earmarked for 'Gomal', as stated above and to reduce the
extent of the land. It id further contended that, by the
time the petitioner came to know that respondent No.2
has passed an order dated 20.06.1996(Annexure-B)
earmarking 2 Acres 30 Guntas out of 15 Acres 39 Guntas
and being aggrieved by the same, the petitioner has
approached the Karnataka Appellate Tribunal in (Revenue)
Appeal No.143/2004 (CH-2) (Annexure-A). The Karnataka
Appellate Tribunal vide order dated 04.04.2019 dismissed
the application on the ground of delay and laches as well
as on merits. Feeling aggrieved by the same, the
petitioner has presented this writ petition.
4. Heard Sri Nanda Kishore, learned counsel
appearing for the petitioner, Sri.Harisha A.S., learned
Additional Government Advocate appearing for respondent
Nos.1 to 3 and Sri.N.Praveen Kumar, learned counsel
appearing for respondent No.4.
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5. Sri Nanda Kishore, learned counsel for the
petitioner invited the attention of the Court to Rule 97 of
the Karnataka Land Revenue Rules, 1966 and the
judgment of this Court in the case of K.P.Manjunath and
others Vs State of Karnataka and others, reported in
ILR 1976 Karnataka 946 and argued that by reducing
the extent of land as well as, the land is a 'Gomal' which is
earmarked for the raising pasturage of a particular village,
it is the duty of the revenue authorities to hear the
villagers or else bringing to the notice of the village people
before passing an order of reduction of the land which is
identified for the purpose of free pasturage. Accordingly,
he sought for interference of this Court.
6. Per-contra, Sri Harisha A.S, learned Additional
Government Advocate, sought to justify the impugned
order on the ground that the petitioner has approached
the Karnataka Appellate Tribunal at the belated stage and
therefore, the Karnataka Appellate Tribunal rightly
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dismissed the appeal on the ground of delay as well as on
the merits.
7. In the light of the submission made by the learned
counsel appearing for the parties, in terms of the
notification dated 20.06.1996 (Annexure-B), it is not
disputed that respondent No.2 has identified to an extent
of 2 Acres 30 Guntas out of 15 Acres 39 Guntas in land
bearing Survey No.7 of Gyarahalli Village for the purpose
of the distribution of sites under the Ashraya Scheme. In
this regard, having taken note of the relevant rule
provided under Rule 97 of the Karnataka Land Revenue
Rules 1966, which reads as under:
"97.Providing free Pasturage.- (1) Government
land shall be set apart for free pasturage for the
cattle four goats, sheep's of each village at the
rate of twelve hectares for every hundred heads of
cattle.
Explanation.-In calculating the heads of cattle or
calves or cow or buffalo shall be taken as
equivalent to one head of cattle. (2) If there is
sufficient forest area in the village concerned or in
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the adjoining village to enable the village cattle to
graze, the area to be set apart as free pasturage
may be reduced correspondingly.
(3) If there is no grazing land available in a
village, or the land available falls short of the
extent prescribed under sub-rule (1) the deficit
may be made up by setting apart Government
land available in the adjacent village.
(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 is 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.
1[Provided that no such permission shall be
necessary where the reduction below the
prescribed limit is for the purpose of.-
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(i) distribution of house sites to the siteless
person; and
(ii) grant of land to persons belonging to
Scheduled Castes and Scheduled Tribes, for
agricultural purposes,
who are ordinarily residents of such village.]
2[(iii) regularisation of unauthorised cultivation
under Chapter XIIIA.]
3[(iii) Reservation of land for burial-ground for the
residents of such village.]
4[iv) grant or reservation of land for various
Government purposes i.e., Government Schools,
Colleges, Residential Schools, Hostels, Hospitals,
Veterinary hospitals, Anganawadi, substation of
Karnataka Power Transmission Corporation
Limited (KPTCL) and Bus depot of Karnataka State
Road Transport Corporation (KSRTC)."
5[(4-A) The lands classified as gomala or free
pasturage land and have totally lost
characteristics of their nature as such and where
alternative arrangements for feeding cattle have
been made locally by the owners, on the date of
commencement of the Karnataka Land Revenue
(Third Amendment) Rules, 2017, in such
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circumstances after following the procedure
prescribed in sub-rule (4) such lands can be
considered for the purpose of regularization of
unauthorized cultivation under Chapter XIII-A
even if such land is either not available or
insufficient for free pasturage after such
regularization, as a onetime measure:"
8. On careful examination of the aforementioned Rule
would indicate that it is the duty of the jurisdictional
Deputy Commissioner to hear the villagers before making
any order in respect of the reduction of the 'Gomal' land,
which is earmarked for the purpose of free pasturage. In
this regard, on consideration of the order passed by
Division Bench of this Court in the case of K.P.Manjunath
Supra, this Court at paragraphs 7 to 21 reads as under:
"7. 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
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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.
8. In Writ Petn. No. 224 of 1957, this Court while
considering Section 40 of the Mysore Land Revenue
Code, 1888, which is in pari meteria 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 pasturae 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
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pasturage, a right of grazing on the lands is created
in favour of the villagers.
9.The villagers, therefore, have a say in the matter
and it would be inappropriate to make 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 [(1967) 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
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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.
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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
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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;
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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."
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16.The view taken by the Government is contrary to
the ruling of this Court.
17. 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.
18. 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.
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19. 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.
20. 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
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Gomal, need not necessarily be a personal or oral
hearing.
21. 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."
9. In that view of the matter, taking into
consideration of the declaration of law made by this Court
in the aforementioned aspect, respondent No.2 herein
ought to have at least draw a Mahazar before the villagers
as well as, taking publication in the official gazette inter
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alia, affixing the same in the conspicuous phrases in the
village before passing the order at Annexure-B to the writ
petition.
10. In that view of the matter, as the petitioner
herein has addressed his grievance on behalf of the
villages, the Karnataka Appellate Tribunal ought to have
liberally construed the appeal by condoning the delay in
filing the Appeal and considering the aforementioned
judgment of this Court and the provisions contained under
Rule 97 of the Karnataka Land Revenue Rules, 1966.
11. In that view of the matter, I find force in the
submission made by the learned counsel appearing for the
petitioner. Accordingly, the writ petition is allowed.
12. The order dated 20.06.1996 (Annexure-B) issued
by respondent No.2 insofar, as the Gyarahalli Village and
the order dated 04.04.2019 in (Revenue) Appeal
No.143/2004 (CH-2) on the file of the Karnataka Appellate
Tribunal at Bengaluru(Annexure-A) are hereby quashed
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and the matter is remitted to respondent No.2 herein to
re-do the exercise if so advised in the light of the
observation made above.
13. Accordingly, the writ petition is allowed.
SD/-
JUDGE
CH
CT: BHK
