Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 983 (KAR)

Mahadev v. Union of India

2010-09-08

MOHAN M.SHANTANAGOUDAR

body2010
Judgment : 1. The petitioners are the villagers of Halabhavi and Bammanatti villages of Belgaum taluk, Belgaum district. They are owning agricultural lands and cattle. They are questioning the order annexure – E and F dated 15.12.2009 and 04.01.2010 passed by the Government of Karnataka and Deputy Commissioner, Belgaum, respectively. By the order Annexure-E, the State Government has permitted to grant 250 acres of Gayarana (Gomaal) land for the purpose of establishing of Indo Tibetan Border Police Force (for short (ITBP) by reducing the said extent of the land from the head of Gayarana (Gomaal) under Rule 97 (4) of the Karnataka Land Revenue Rules (for short ‘the Rules’). By the order Annexure – F, the Deputy Commissioner has directed on similar lines as ordered in Annexure – E. 2. Sri. F.V. Patil, learned counsel for the petitioners submitted that the impugned orders are in violation of Rule 97 of the Rules inasmuch as it is the Deputy Commissioner who has to pass order under Rule 97 (4) of the Rules at the first instance by reducing the extent of the land form the heading of Gayarana (Gomal) below the prescribed limit; it is only thereafter the State Government has jurisdiction to pass orders thereon; that the authorities have not issued notice to the villagers at large; by relying upon the document at Annexure- G, he contends that the cattle population of 9 villages surrounding the land in question exceeds about 4000 and therefore the land in question is absolutely necessary for the purpose of grazing. Relying upon Section 71 and 72 of the Karnataka Land Revenue Act, it is submitted that the land in question which is specially assigned for the purpose of grazing should not be divested for any other purpose. He further submitted that the order of Deputy Commissioner is not a speaking order inasmuch as he has not applied his mind to the facts of the case before coming to the conclusion; and that apart from the lacune as mentioned above, if the land is allotted to ITBP, these petitioners and other villagers of Halabhavi and Bammannatti villagers would be put to great hardship inasmuch as there will be no adequate space for their cattle to graze. 3. The writ petition is opposed by the learned Government Advocate as well as by Standing Counsel for respondents 1 and 2 by filing the statement of objections. 3. The writ petition is opposed by the learned Government Advocate as well as by Standing Counsel for respondents 1 and 2 by filing the statement of objections. Learned Government Advocate has produced the records maintained by the State Government for perusal of this court. 4. The records maintained by the State Government clearly reveal the correspondence relating to grant of land in favour of ITBP has started since the year 2008. Ultimately, on 19.08.2009, the Deputy Commissioner has decided to reduce the extent by deleting 250 acres of land out of the total gomaal land measuring about 349.15 acres for the purpose of granting the same in favour of ITBP. After deciding so, the Deputy Commissioner has placed the records before the Divisional Commissioner, Belgaum for his opinion and approval. The Divisional Commissioner, Belgaum, approved the order/recommendation of the Deputy Commissioner on 03.09.2009 and consequently sent the records to the State Government for further action. Thereafter, the state Government has passed the order as per Annexure – E dated 15.12.2009 permitting the Deputy Commissioner and the Divisional Commissioner to proceed further. The Deputy Commissioner thereafter passed the order Annexure – F dated 04.01.2010 under rule 97 (4) of the Rules on par with the order passed by the State Government vide Annexure – E. 5. It is alleged that there is procedural irregularity on the part of the Deputy Commissioner in passing the order under Rule 97 (4) of the Rules. The same is negligible in the facts and circumstances of the case. As aforementioned, the Deputy Commissioner by his order dated 19.08.2009 had decided to reduce an extent of 250 extent from the head of Gayaran (Gomal) under Rule 97 (4) of the Rules for the purpose of granting the said 250 acres in favour of ITBP. Thus, it is clear that practically the Deputy Commissioner has decided and passed the order under Rule 97 (4) of the Rules on 19.08.2009 itself and thereafter the State Government has passed the order as per Annexure – E dated 15.12.2009. Thus, the irregularity as alleged, if any, committed by the Deputy Commissioner stands cured in view of his earlier order dated 19.08.2009. Even assuming that it is an irregularity, the same is only a procedural irregularity and is not an illegality which is incurable. Thus, the irregularity as alleged, if any, committed by the Deputy Commissioner stands cured in view of his earlier order dated 19.08.2009. Even assuming that it is an irregularity, the same is only a procedural irregularity and is not an illegality which is incurable. The State Government has exercised jurisdiction under Rule 97 of the Rules not only suo motto but also on the recommendation of the Deputy Commissioner and Divisional Commissioner. Hence, in view of the same, the first contention of the petitioners fails. 6. It is no doubt true that under Rule 97 (4) of the Rules, the Deputy Commissioner shall determine the extent of the land necessary to be set apart for free pastuarage. In the very provision, it is further made clear that, in case, if, he considers that the extent of land for free pasturage may be reduced below the prescribed limit, the same also can be done by the deputy Commissioner after obtaining prior permission of the Divisional Commissioner. From the above it is clear that the Deputy Commissioner has jurisdiction to reduce the area of Gomal land to the prescribed limit wherever it is necessary. If the Deputy Commissioner considers that extent of free pasturage may still be reduce below the prescribed limit, that also can be done after obtaining prior permission to the Divisional Commissioner. In this matter as aforementioned, the Deputy Commissioner has passed the order after taking due permission of the Divisional Commissioner, However, I hasten to add here itself that in the matter on hand, the land relating to free pasturage is not reduced below the prescribed limit. 7. Learned counsel for the petitioners relies upon the document at Annexure – G to contend that the villagers of eight villagers are depending on the land in question for the purpose of grazing their cattle and that the total number of cattle in eight villages is more than 4000. The said submission cannot be accepted. As could be seen from the impugned order, it is clear that the revenue authorities have given report that the Halabhavi village has got about 120 cattle and that therefore about 43 acres may be sufficient for grazing purposes. Whereas Annexure-G relied upon by the petitioner is a certificate issued by Veterinary Doctor of Kakati village. The Veterinary Doctor has strangely given statistics relating to dogs and hen also in his certificate. Whereas Annexure-G relied upon by the petitioner is a certificate issued by Veterinary Doctor of Kakati village. The Veterinary Doctor has strangely given statistics relating to dogs and hen also in his certificate. On the other hand, the competent Revenue Officers such as the Assistant Commissioner has stated that the Halabhavi village has got 120 cattle. The petitioners are from Halabhavi as well as Bommanatti villages. Actual cattle population of Bommanatti village is not available on record. However, according to the Government Advocate, the population of cattle of two villages does not exceed 200. Be that as it may, as per the available report of the Assistant Commissioner, it is clear hat the population of cattle in Halabhavi village is 120. The cattle population of Bommanatti village also may be almost similar. Even assuming that cattle population is more, the Deputy Commissioner can reduce the extent of Gayaran land less than the prescribed limit after taking the permission of the Divisional Commissioner (now Regional Commissioner). In the matter on hand, the records reveal that the Deputy Commissioner has taken permission of the Regional Commissioner also. Thus, all the legal formalities are duly complied with. 8. By relying upon the judgment of the Division Bench of this Court in the case of MANJUNATH K.P. AND OTHERS VS. STATE OF KARNATAKA AND OTHERS (1976 (1) KLJ 380), it is argued on behalf of the petitioners that the revenue authorities may give public notice by affixing the copy of such notice in the village chavadi or by beat of tom tom or by publication in a newspaper or in any other reasonable manner to the villagers who are having right of free pasturage in gomal lands before reducing the extent of the gomal land. The records maintained by the State Government do not reveal that such notice is issued by the authorities. 9. Even if the notice is not issued to the villagers and even if the villagers are put to some extent of hardship, the question still remains as to ‘Whether the grant made in favour of ITBP needs to be interfered with’ ?. The answer certainly is in the negative. 10. The Home Department, the Director General of ITBP and the State Government have taken policy decision to establish Indo Tibetan Border Force in the area in question. The answer certainly is in the negative. 10. The Home Department, the Director General of ITBP and the State Government have taken policy decision to establish Indo Tibetan Border Force in the area in question. The same is in the interest of Nation as well as the State Government. The area in question is abutting Sambra village wherein military base and training camp of Army already exists. As could be seen from the impugned orders, the said land is very much suitable for establishing the training camp for various reasons which, obviously, need to be kept confidential by the Home Department. It must have taken decision to establish the Center for ITBP Force over the land in question taking into consideration various factors, including safety. It is for the authorities concerned to decide the appropriate place for establishing the training camp. The Courts do not and will not act as appellate authorities to examine the correctness, suitability or appropriateness of the decision which is based on technical advice. The courts will not interfere on the ground that the fairer and wiser alternative is available. The suitability of the land and choice of the land for establishing such camps should be to the satisfaction of the concerned Governments. (See judgment reported in the case of ZAKIRUNNISSA AND OTHERS VS. STATE OF KARNATAKA REP. BY ITS SECRETARY, COMMERCE AND INDUSTRIES DEPARTMENT AND OTHERS (ILR 2009 KAR 3391). Since the matter involves policy determination and technical issues, this court will not interfere with the views of Expert Committee particularly when the discretion of the Government to determine the policy regarding establishment of military camps is not inconsistent with the constitution and the Laws. In the matters relating to policy and technical expertise, the Court will exercise its discretion with circumspection and will not interfere unless the decision of the expert body/government is found to be inconsistent with the Constitution. There cannot be any dispute that the object of the respondents to establish ITBP Battalion is in the interest of Nation. The Border Security Force will have to be trained on everyday basis. The center in question is to be established to train the ITBP force which is guarding Indo Tibetan Border. The public interest demands that such camps should be established in safer places and the Courts should not interfere in such matters. The Border Security Force will have to be trained on everyday basis. The center in question is to be established to train the ITBP force which is guarding Indo Tibetan Border. The public interest demands that such camps should be established in safer places and the Courts should not interfere in such matters. Keeping the interest of the Nation in mind, the impugned orders are passed. Looking from this angle, even when the defect is found in not issuing notice to the public as observed by the Division Bench in the judgment mentioned supra, the Court will exercise its discretionary power under Article 226 with great caution and will exercise the same in the furtherance of public interest and not merely on making out of a legal point. The Courts should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Courts should interfere. (See 2005 (6) SCC 138 in the case of MASTER MARINE SERVICES (P) LTD, VS. METCALFE AND HODKINSON (P) LTD AND ANOTHER). 11. As aforementioned, the court will not interfere in the policy or action of the government unless the same is inconsistent with the Constitution or Laws or is arbitrary or irrational (See 2003 (4) SCC 289 in the case of FEDERATION OF RAILWAY OFFICERS ASSOCIATION AND OTHERS VS. UNION OF INDIA.). Recently in the case of VILLIANUR IYARKKAI PADUKAPPU MAIYAM VS. UNION OF INDIA AND OTHERS ( 2009 (7) SCC 561 ), the Apex Court has observed thus: “169. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review. In matters relating to economic issues the Government has, while taking a decision, right to “trial and error” as long as both trial and error are bonafide and within the limits of the authority. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review. In matters relating to economic issues the Government has, while taking a decision, right to “trial and error” as long as both trial and error are bonafide and within the limits of the authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts. 170. Normally, there is always a presumption that the government action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the court by proper and adequate material. The court cannot lightly assume that the action taken by the Government is unreasonable or against public interest because there are large number of considerations, which necessarily weigh with the Government in taking an action.” 12. In the case of MEERUTDEVELOPMENT AUTHORITY VS. ASSOCIATION OF MANAGEMENT STUDIES AND ANOTHER ( 2009 (6) SCC 171 ), the Apex Court has observed that public interest floats in vast, deep ocean of ideas and imagined experiences. It would be wise for the Courts not to venture into this unchartered minefield and courts cannot impose its own values on the Society and Judges will not impose their own views on the Society. Any such effort would men to make value judgments. The Apex Court in the said judgment continued to observe as under also: “68. The impugned judgment illustrates “the danger of judges wrongly though unconsciously substituting their own view for the view of the decision-maker who alone is charged and authorized by law to exercise discretion”. With respect, we find that the High Court virtually converted the judicial review proceedings into an inquisitorial one.” 13. From the aforementioned judgments, it is clear that this Court and the Supreme Court have consistently taken the stand that the Courts will not interfere in the policy matters unless such a policy is irrational or unconstitutional and opposed to public interest. The Court also will not sit as an Appellate Authority in such matters so as to impose its own views. The Court also will not sit as an Appellate Authority in such matters so as to impose its own views. Even if there are certain procedural lapses, the same will have to be ignored in the interest of public at large more so when the interest of safety and security of the Nation is involved. The petitioners being the villagers should co-operate in such matters. 14. During the arguments, it is brought to the notice of the court by learned counsel appearing on behalf of the respondents that the possession of the land in question is already handed over for establishing of ITBP Camp and the Camp is already functional inasmuch as the training is being imparted to the Border Police Force. 15. Moreover, no prejudice is caused to the petitioners inasmuch as still about 60 acres of land is available for grazing purposes. In view of the above, no interference is called for. Petition fails and the same is dismissed. However, the State Government is directed to retain the remaining extent of land which is about 60 acres of Halabhavi village for the purpose of free pasturage.