Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 610 (KAR)

RANGAIAH v. STATE OF KARNATAKA

2013-05-31

D.V.SHYLENDRA KUMAR

body2013
ORDER D.V. SHYLENDRA KUMAR, J.-Writ petitioners claim to be in unauthorized occupation and cultivation of an extent of 2 acres of land in Sy. No. 65 of Kammasandra Village, Lakshmipura Post, Dasanupura Hobli, Bangalore North Taluk, which is a gomal land measuring a total extent of 59 acres. It is the claim of the petitioners that they themselves or their predecessors are in enjoyment by unauthorized cultivation since the year 1972 and that they had also made application seeking for regularization of their unauthorized occupation by filing application in form No. 50. It is also claimed that two of the present writ petitioners viz., the 1st and 2nd writ petitioners had approached this Court earlier by filing W.P. Nos. 27268-270/1997 seeking for issue of a writ of mandamus to consider their applications and the writ petitions had been disposed of, with the observation for the competent committee to consider their applications under Section 94A of the Karnataka Land Revenue Act, 1964, (for short 'the Act') and to pass orders if the petitioners were otherwise found eligible. 2. It is averred that likewise petitioners 3 and 4 in the present writ petitions figured as petitioners 3 and 2 in the earlier round of litigation in W.P. No. 18177/2005 for similar relief and this Court as per order dated 28.10.2006 directed the Tahsildar, Bangalore North Taluk, Bangalore to take steps for disposal of the applications filed by the petitioners for regularization within a period of 6 months thereafter etc. Petitioner No. 5 admittedly was not before this Court at any time earlier. It is the version of the petitioners that even without disposing of the applications filed by the petitioners and even without compliance of the mandamus issued by this Court in the earlier writ petitions, the petitioners are slapped with not only eviction notice but also show-cause notice in terms of provisions of Section 94 r/w Section 39 of the Act and prosecution under Section 192A of the Act as per notices dated 27.1.2011 issued to each of the petitioners (copy at Annexures A, B C D and E) which are issued by the Tahsildar, Bangalore North Taluk, Bangalore. It is aggrieved by these notices, the present writ petitions seeking for the following prayer: "(a) Issue a writ of mandamus directing the respondents to consider the applications filed by the petitioners for regularization of unauthorized occupation/grant in survey No. 65, measuring to an extent of 2 acres each as per earlier order of this Hon'ble Court as per Annexure T to V; (b) Issue a writ of mandamus directing the respondents not to interfere, dispossess (sic) with the peaceful and continuous possession and enjoyment of the lands by the petitioners till the disposal of the application for regularization." 3. This Court has issued notices to the respondents and while directing notices has granted an interim order staying the eviction of the petitioners from the land in question, if they are in possession. 4. Matter has come up after issue of notice to the respondents. Respondent Nos. 1 to 3 are represented by Mr. R. Om Kumar, learned AGA. 5. Mr. R. Om Kumar, learned AGA has pointed out several impediments for issue of mandamus. Firstly that repeated writ of mandamus will not be issued. Secondly, the application filed by the petitioners are stale, the applications said to have been filed seeking for regularization are time barred in terms of sub-section (4) of Section 94 A of the Act reading as under: "94A. Firstly that repeated writ of mandamus will not be issued. Secondly, the application filed by the petitioners are stale, the applications said to have been filed seeking for regularization are time barred in terms of sub-section (4) of Section 94 A of the Act reading as under: "94A. Regularisation of certain cases of unauthorised occupation by constituting committee etc.- (4) Nothing in Section 94 shall prevent the committee constituted under sub-section (1), or additional committee constituted under sub-section (2A), but subject to such rules as may be prescribed, if any, to grant to the person liable to be evicted under that section, the land which he had unauthorisedly occupied prior to the fourteenth day of April, 1990 (hereinafter referred to as the said date) or any portion thereof, if he satisfies the prescribed conditions (including the extent of the land held and unauthorisedly occupied by him) and makes within a period of six months from the date of commencement of the Karnataka Land Revenue (Amendment) Act; 1990 (hereinafter referred to as the Amendment Act), an application for such grant in such form along with such fees as may be prescribed and on payment of the amount payable under sub-section (5):Provided that the land so granted together with the land already held by such person, shall not exceed two hectares of 'D' class of land or its equivalent thereto: Provided further that no land shall be granted in the areas lying within the limits of Cities and City Municipalities specified in column (2) of the Table below and within the distance from such limits specified in the corresponding entries in column (3) thereof: Sl. No. Places Distances (1) (2) (3) 1. Bangalore City under the Karnataka Municipal Corporations Act, 1976. 18Kms. 2. The Cities of Belgaum, Gulbarga, Hubli-Dharwad, Mangalore and Mysore respectively under the provisions of Karnataka Municipal Corporations Act, 1976 10 Kms. 3. All City Municipalities having more than fifty thousand population and constituted under the Karnataka Municipalities Act, 1964. 5 Kms. Provided also that a person who has unauthorisedly occupied the land, falling within the distance of five kilometres from the limits of the city municipality having less than fifty thousand population, prior to the 14th day of April, 1990, shall make an application for such grant, within three months from the date of commencement of the Karnataka Land Revenue (Amendment) Act, 1994. Provided that nothing in this Section shall apply to forest lands, Plantation lands or lands referred to in sub-section (2) of Section 79. Explanation.-For the purpose of this Section 'D' class of land means 'D' class of land or an extent equivalent thereto consisting of one or more classes of land, as specified and determined in accordance with the formula in Schedule I to the Karnataka Land Reforms Act, 1961." That even the lands are now located within 18 kms from the city limits of Bangalore City Corporation and therefore, the 2nd proviso of sub-section (4) of Section 94A of the Act comes in the way to consider the application even if it was in time and also submits that subject land has already been utilized for allotting sites to house less persons under the Ashraya Scheme, which is a government school which is functioning and that the present writ petitions are filed after several years, etc. 6. On the other hand, Mr. B. Sharath Kumar, learned counsel appearing for the petitioners submits that the petitioners have not been issued with any endorsement of the outcome of the applications in terms of the mandamus issued by this Court; that they should have been apprised of the same; that even without they being made aware of their position they cannot be said to be affected on the premise that they are in unauthorized occupation and also prosecuted for the same. 7. While as submitted by the learned AGA repeated writs of mandamus will not be issued by this Court, even earlier writ of mandamus was issued not based on any rights, but only on the claim of the petitioners without examining their claim. 8. Be that as it may, a writ of mandamus at this point of time cannot be issued as there are statutory bars, particularly, the land being gomal land and within 18 kms from the Bangalore City Municipal Corporation. However, it is only fair and proper that the petitioners are apprised of this position and it is for the respondent to apprise them of this position and if they are earlier dispossessed or evicted or action taken in accordance with law, that also can be made known to them and proceed further in accordance with law. Implementation of the proposed notices to be kept on hold for a period of three months. Implementation of the proposed notices to be kept on hold for a period of three months. In the meanwhile it is also open to the petitioners to work out their rights and remedies elsewhere in accordance with law. 9. Writ petitions are accordingly disposed of.