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2009 DIGILAW 56 (KAR)

L. A. Krishnappa v. State Of Karnataka

2009-01-23

ANAND BYRAREDDY

body2009
Judgment : Heard the learned Counsel for the petitioner and the respondents. 1. 2. The petition coming on for preliminary hearing is considered for final disposal having regard to the facts and circumstances. 2. 3. Thefacts of the case are as follows. The petitioner is the owner of 4 acres 39 guntas in Survey No. 59 of Lakshmipura Village, Yeshwanthpura Hobli, Bangalore North Taluk. The land has been classified as consisting of pot kharab(a) land to the extent of 2 acres 10 guntas and the remaining land is 2 acres 29 guntas. The petitioner has been cultivating the entire land as owner thereof. The pot kharab(a) land is a part of survey number and is in his possession and is not reserved for any public purpose and had not been occupied by a road, footpath, tank or stream and neither used for a burial ground nor assigned for potteries. It is only classified as being unfit for agriculture. Nevertheless the petitioner is occupying the entire land classified as pot kharab(a) for the purpose of threshing floor and other uses for the better cultivation of the remaining land. The petitioner also claims to be the owner of the land in Survey No. 50 measuring 30 guntas of agricultural and 10 guntas of pot kharab, which is classified as pot kharab(b) land. The petitioner has not been using pot kharab(b) portion of the land for any purpose of agriculture. The petitioner seeking to divert the land in the entire survey numbers above mentioned for the purpose of residential use had applied to the second respondent, for permission seeking conversion of land for residential purpose. By his notice dated 25-7-2008, the second respondent has demanded a conversion fine of Rs. 54,450/- per acre and in respect of 2 acres 10 guntas of kharab (a) land, payment of market value of land at Rs. 38 lakh per acre. The petitioner contends that according to the notice, the conversion fine demanded at the prescribed rate is limited only to the arable agricultural land and insofar as the unarable portion of 2 acres 10 guntas is concerned, the demand is for payment to the Government of the market value of the land as notified. The petitioner being aggrieved by this excessive demand has preferred this petition. 4. The petitioner being aggrieved by this excessive demand has preferred this petition. 4. TheCounsel for the petitioner would submit that the relevant provisions under the Karnataka Land Revenue Rules, 1966 and the provisions of Karnataka Land Revenue Act, 1964 would be Rule 21, which provides for classification of lands. Sub-rule (2) of Rule 21 reads as follows. "Rule 21. Classification .(2) During the process of classification land included as unarable shall be treated as “pot kharab". Pot kharab lands may be classified as follows. .(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing floors of the holder; .(b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; .(iv) assigned for village potteries”. It is stated that at the time of survey and settlement of land records, the pot kharab portion of the land in the survey number was so classified as unarable under Rule 21(2)(a) and this is how it has been referred to in the RTC extracts, which is at Annexure-A to the petition. The Counsel would then draw attention of this Court to Rule 107 of the Rules, which is extracted herein for ready reference. "Rule 107. Levy of fine for conversion of agricultural land for non-agricultural use.—The amount of fine which may be levied under sub-section (7) of Section 95 shall be at the rates specified in the table below, namely. TABLE The Counsel would contend that it is therefore clear that the conversion and fine prescribed do not make any distinction between an arable portion of land and an unarable portion of land. The petitioner as an occupant of the land is entitled to all the benefits that arise out of the land. Section 2 (14) of the Karnataka Land Revenue Act defines the word "land" as including the benefits that arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth and also shares in, or charges on, the revenue or rent of villages or other defined areas. Section 2 (14) of the Karnataka Land Revenue Act defines the word "land" as including the benefits that arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth and also shares in, or charges on, the revenue or rent of villages or other defined areas. This inclusive definition makes it clear that the petitioner is entitled to rights in the total extent of land without any reservation of any part being made in favour of the Government. The kharab portion as classified under Rule 21(2)(a) of the Karnataka Land Revenue Rules is therefore a benefit arising out of the land in the occupation of the petitioner. Rule 107 relating to levy of fine of conversion of agricultural land does not make any distinction between arable and unarable portions of the land. In any event, it does not prescribe any amount of fine based on the market value of any portion of the land. Therefore, the demand by the second respondent for payment of the amount calculated on the kharab(a) portion of land is illegal and without authority of law. The Counsel would draw the attention of the Court to the circular clarifying this position as understood by the Government, as early as 8-12-1971, which is at Annexure-C and which is extracted herein for ready reference. “Pot kharab lands defined under Rule 21(2)(a) are those classified as unfit for agricultural at the time of survey, including the farm buildings or threshing floors of the holder. As clarified by the law department, all pot kharab lands which form part of a holding and which have not been reserved for Government or assigned for any public purpose or for any other purposes mentioned in Rule 21(2) (b) of the Karnataka Land Revenue Rules, belong to the owner of the survey number and not Government. The question of any further disposal of such pot kharab lands does not therefore arise”. The question of any further disposal of such pot kharab lands does not therefore arise”. Further, the Counsel would point out that insofar as a later circular dated 16-9-1994, which is at Annexure-D to the petition is concerned, the tenor of the circular has expressed an apprehension that there has been loss to the Government revenue for not charging conversion fine in respect of kharab(a) portion of the land and based on such apprehension, directions were issued to the Revenue Officers to impose land value on the kharab portion and also collect the conversion fine for the balance of the land. The demand for payment of the market value is traceable to this misinterpretation of the rule and the law in making illegal demand of the market value of the pot kharab portion of the land in the petitioner's occupation. It is in this background that the present petition is sought to be filed. The Counsel would place reliance on the judgments of this Court in P. Bhimachar v State of Mysore and Others 1966(2) Mys. L.J. 184 (DB), wherein a Division Bench of this Court has held that pot kharab portion of the land is included in the ownership of the occupant. A similar view of taken in Saudagar Rasul Khan v. State of Mysore and Others ILR 1973 Kar. 56, wherein it is held that kharab land is so-called because it is not cultivable and is a classification made for the purposes of revenue exemption. Rule 21(2)(a) is thus a provision relating to the exemption from the payment of land revenue and has no relevance for assuming that the pot kharab portion is land not included in the occupancy, and that it belongs to the Government. From this point of view also the demand made for the payment of the market value on the pot kharab is unauthorised. 1. 5. From this point of view also the demand made for the payment of the market value on the pot kharab is unauthorised. 1. 5. While the Government Pleader on the other hand, would seek to justify the action of the State Government on the basis of the circulars namely Circular No. RD 136 LGS 93, dated 16-9-1994 as well as the Circular No. RD 137 LQW 2001, dated 17-6-2003 whereunder an opinion of the law department is expressed to the effect that kharab lands are Government lands and therefore, the question of acquiring those lands does not arise and hence, there is no scope for making any payments to the landlords in respect of kharab land. Reliance is also placed on a circular dated 12-5-2004, wherein it is clarified that if `A' kharab land if granted by the Competent Authority, it would only then become part and parcel of Hiduvali land of the landlord. It is contended by the Government Pleader that the ownership of "A" kharab land always vests with the Government unless it is granted to the landowner by the Competent Authority. And therefore, would submit that the demand made is in order. 2. 6. It is not in dispute that in the present circumstances, the demand made is in respect of pot kharab (a) land. As rightly pointed out by the learned Counsel for the petitioner, there is no distinction made between an arable portion of land and an unarable portion of land under Rule 107 for purposes of levy of fine for conversion of land for non-agricultural use. The reliance sought to be placed by the State on the circulars which are mere clarifications based on the opinions expressed by its law department would not override the express provisions of law, which have been referred to herein above. There is no indication that there is a distinction between an arable portion of land and unarable portion of land. The provisions of Section 95 relating to conversion of agricultural land for other purposes does not also make any such distinction. Hence, the State Government seeking to interpret the provisions in order to obtain higher revenue would not be tenable. It is only in respect of pot kharab(b) lands, it could be said that the State Government can claim the same as Government lands. Hence, the State Government seeking to interpret the provisions in order to obtain higher revenue would not be tenable. It is only in respect of pot kharab(b) lands, it could be said that the State Government can claim the same as Government lands. Insofar as pot kharab(a) lands are concerned, the Division Bench decision referred to above is categorical on this aspect and that has attained finality. There is no other manner in which the provisions could be interpreted. 1. 7. Hence, the demand is clearly illegal and cannot be sustained. In these circumstances, the demand for payment of Rs. 85,50,000/-as market price for 2 acres 10 guntas of kharab(a) land in Survey No. 59, Lakshmipura Village, Yeshwanthpur Hobli, Bangalore North Taluk towards grant of permission for conversion is illegal and is accordingly, quashed. 2. 8. Annexure-D directing the Revenue Authorities to impose market value on the kharab (a) portion of the land and recover the same from the applicants is also illegal and is accordingly, quashed. 3. 9. The respondents are directed to grant conversion for the entire 4 acres 16 guntas of land including 2 acres 10 guntas of kharab(a) portion in Survey No. 59 of the above land on payment of conversion fine as prescribed under Rule 107 of the Karnataka Land Revenue Rules and no separate demand shall be raised for payment of market value on 2 acres 10 guntas of kharab(a) land. The petition stands disposed of accordingly.