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2023 DIGILAW 13 (KAR)

Mary Juje D Souza v. State of Karnataka

2023-01-02

KRISHNA S.DIXIT

body2023
JUDGMENT 1. All these three petitions are by the same person, who in substance seeks a direction for the regularization of the alleged unauthorized occupation of the land in question, after setting aside certain endorsement that arguably comes in the way of her retaining the said land. 2. THE GIST OF THREE WRIT PETITIONS IS AS UNDER: i) The first case i.e., W.P.No.9739/2022 is filed on 17/5/2022. The prayer is for the quashment of a Show Cause Notice dtd. 22/2/2022 whereby the Petitioner has been asked to quit the Government land admeasuring about 35 guntas in Sy.No.1, Kargal Village in Sagara Taluka. He has also sought for consideration of his claim for regularization and further, a prohibition against demolition of his dwelling house in and eviction from the land. ii) The second case i.e., W.P.No.24507/2022 is filed on 6/12/2022. The prayer is for the quashment of proceedings in Case No.LND 131/2022 filed by the 4th respondent-Joga Management Authority against the Petitioner and officials. iii) The third case i.e., W.P.No.25120/2022 is filed on 12/12/2022. The prayer is for the quashment of Grant Order dtd. 17/11/2015 passed by the 2nd RespondentDeputy Commissioner whereby the Government land admeasuring 3A-24G has been earmarked for the respondent-Joga Management Authority, for the purpose of vehicle parking. 3. The official Respondents are represented by the learned AGA. The private Respondent-contractor having got himself impleaded in W.P.No.9739/2022, is represented by his private counsel. Both they resist the Writ Petition contending that the land being situate within the specified radius, does not admit regularization of unauthorized occupation, as the law now stands; Petitioner is in the unauthorized occupation of only about 34 guntas of the land in question; her claim in respect of larger extent is factually untrue & legally untenable; even otherwise, the earmarking of land for the Joga Management Authority is in public interest and therefore, Petitioner's private interest, if any, has to yield to the same. The entries in the Revenue Records apart from being unauthorized, do not support Petitioner's claim and that they do not enjoy presumptive validity. Regularization of unauthorized occupancy of the Government land cannot be sought for as a matter of right, the promulgation of Rules in that regard, notwithstanding. So contending, they seek dismissal of the Writ Petitions. 4. The entries in the Revenue Records apart from being unauthorized, do not support Petitioner's claim and that they do not enjoy presumptive validity. Regularization of unauthorized occupancy of the Government land cannot be sought for as a matter of right, the promulgation of Rules in that regard, notwithstanding. So contending, they seek dismissal of the Writ Petitions. 4. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court grants a limited indulgence in the matter as under and for the following reasons: (a) Admittedly, the land belongs to the Government and the Petitioner claims to be in the unauthorized cultivation of the same. Legally speaking, regularization of unauthorized occupancy cannot be sought for, as a matter of right to the prejudice of larger public interest. The impugned notice dtd. 22/2/2022 asks the Petitioner to quit the subject land i.e., about 34 Guntas failing which she is threatened with legal action. When the application for regularization is pending consideration on the file of the Respondent-Statutory Committee, the notice of the kind could not have been issued and therefore, the same is liable to be voided, as rightly argued by learned counsel for the Petitioner. (b) The vehement submission of learned counsel for the Petitioner that earlier, his client was in the occupation of 34 Guntas and later, it enhanced to 2 Acres and further to 4 Acres as her family bulged, cannot be countenanced inasmuch as the decision to widen the family is taken in the autonomy of the individual concerned. In matters like this, the State does not owe any duty to proportionately award a bigger larges on that ground. The fortuitous enlargement of the family cannot be the basis for according a larger larges of the State. An argument to the contrary amounts to placing premium on the violation of long standing State Policy of Family Planning such as 'chikka kutumba, chokka kutumba', its being recommendatory, notwithstanding. (c) The vehement submission of the Petitioner that she has been in the unauthorized cultivation of the land to the extent of 4 Acres, is not substantiated by the material placed on record. Firstly, the Record of Rights produced by herself mentions only 2 Acres as against her name, and not 4 Acres as asserted here. Secondly, on what basis, Petitioner's name gained entry to the Revenue Records, is not forthcoming. Firstly, the Record of Rights produced by herself mentions only 2 Acres as against her name, and not 4 Acres as asserted here. Secondly, on what basis, Petitioner's name gained entry to the Revenue Records, is not forthcoming. The entries in the Revenue Records enjoy presumptive value u/s 133 of the Karnataka Land Revenue Act, 1964, only when they are made in accordance with law i.e., on the basis of some conveyance, inheritance or the like. An unauthorized occupant of the land being more or less like a robber of the public property, cannot have his name entered to the official records, to say the least. Despite turning page after page, Petitioner's counsel was not in a position to demonstrate the 'title fact' on the basis of which entries of the kind can be made. (d) Petitioner has produced a copy of the 'Note' dtd. 23/8/2015 issued by the then Education Minister (District In-charge Minister) namely Mr.Kimmane Rathnakar, which reads as under: The very contents of the letter probabalizes case of the Respondents that the Petitioner is no longer in the occupation of the subject land, at least over and above 34 Guntas mentioned in the impugned Show Cause Notice. This Court is bewildered to see Minister's note of the kind. It is high time that issuing of letters, notes & recommendations of the kind be deprecated, to say the least, since they have propensity to misdirect the statutory functionaries, in matters like this. Much is not necessary to specify and less is insufficient to leave what needs to be stated. (e) Learned counsel for the Petitioner argues that her client's application for regularization of unauthorized cultivation of the Government land has to be considered as per the law that obtained when the application was made. In support of this, he draws attention of the Court to a Single Judge decision in SMT.MALLAVVA vs. STATE, ILR 1997 KAR 3415. A perusal of this decision makes it clear that no such ratio is laid down therein. It appears to be 'fact-specific'. No ratio decidendi can be discerned from the said decision by applying any popular theories of precedent. A perusal of this decision makes it clear that no such ratio is laid down therein. It appears to be 'fact-specific'. No ratio decidendi can be discerned from the said decision by applying any popular theories of precedent. Added, it has not adverted to a decision of the Apex Court in STATE OF TAMIL NADU vs. HIND STONE, (1981) 2 SCC 205 which holds that the application of the kind should be treated on the basis of the law that obtains when it is taken up for consideration. This aspect is being discussed in the paragraph infra. (f) Learned counsel for the Petitioner further argues that, rights of his client cannot be prejudiced by the long pendency of the application at the hands of the authorities, if the law changes in the meanwhile. In other words, he tells the Court that the application has to be considered in terms of law that obtained when it was made, disregarding the change. However, this is difficult to agree with. Firstly, the law prohibiting regularization of unauthorized occupation of the lands that are situate within the prescribed limits of the local bodies, has been there since decades. Even otherwise, in matters like this, there is no vested right to seek regularization of unauthorized occupation of public property. Petitioner's reliance on STATE OF KARNATAKA vs. HOLEYAPPA ILR 2007 KAR 259 (DB) does not much come to his aid, since no such ratio emanates from it too. Even otherwise, it cannot be pressed into service in derogation of the law declared by the Apex Court of the country in HIND STONE, supra. (g) In HIND STONE, supra, a similar contention as to the change of law should be ignored, while considering application for regularization, is already rejected. What is observed at para 13 as under, should instruct this Court: "...The submission was that it was not open to the Government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable tune clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. None has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application."� Thus, the learned AGA is more than justified in contending that the application for regularization has to be treated on the basis of law that obtains as on the date the same is taken up for consideration and not the date on which the application was made. (h) Land is a scarce commodity and this scarcity escalates because of perennial population growth. Government land is a public property and its unauthorized occupants have only a limited and conditional privilege to seek regularization, as per the extant law consistent with the observations in HIND STONE, supra. The Government needs its property for being granted for industrial development so that public employment is generated, to the ex-servicemen and war widows, to the members of depressed classes (SCs/STs), to the disabled persons and the like. Added, the land needs to be set apart for several public purposes including the one at the hands i.e., Joga Management Authority. Therefore, the request for regularization of unauthorized cultivation of Government land cannot be mindlessly conceded. An argument to the contrary would cause enormous prejudice to the public interest. Viewed from this perspective, the claim of Petitioner for regularization of land beyond 34 Guntas, cannot be favoured, 3 Acres having already been earmarked for the Joga Management Authority vide Grant Order dtd. 17/11/2015. Now the challenge is laid to the said order in W.P.No.25120/2022, filed on 12/12/2022. Viewed from this perspective, the claim of Petitioner for regularization of land beyond 34 Guntas, cannot be favoured, 3 Acres having already been earmarked for the Joga Management Authority vide Grant Order dtd. 17/11/2015. Now the challenge is laid to the said order in W.P.No.25120/2022, filed on 12/12/2022. There is no plausible explanation for the delay of about seven years brooked in approaching the Court. The very delay itself comes in the way of according relief to the Petitioner by invalidating this Grant Order. Even otherwise, the grant is for the larger public interest which overrides the arguable private interest of the citizen namely the Petitioner. This apart, in the Grant Order, the authorities have specifically mentioned about their spot visit/inspection on 7/9/2015 and the subject land being unoccupied by anyone. (i) The vehement submission of learned counsel for the Petitioner that the subject land being a green pasturage, could not have been diverted for alien purpose, is bit difficult to countenance. Sec. 71 of the 1964 Act provides for setting apart such a land in public interest, the guidelines having been formulated in the Government Order dtd. 20/5/1971 in this regard. The impugned Grant Order dtd. 17/11/2015 specifically mentions about the cattle heads i.e., 221 in the village and about the availability of 31 Acres of gairana, 1041 Acres of forest land and 171A-39G of Khaanu kharab. The authorities have formed a considered opinion as to the pasturage land now available being sufficient for the cattle heads. A Writ Court on the insistence of the Petitioner, cannot run a race of opinions in that regard, there being absolutely no reason to doubt the version of official Respondents, which enjoys presumptive value. No villager has come forward to complain against the diversion of subject land. It is only the Petitioner who is raising the complaint of the kind only in his self-interest. (j) Learned Sr. Advocate appearing for the respondent-contractor who has been executing the work of Joga Management Authority and learned AGA appearing for the official Respondents, oppose the Petitions pointing out that the land in question has been situate within the prohibited radius from the Kargal Town Panchayat and therefore, the claim for regularization cannot be considered at all, the legal bar in that regard being absolute. If any part of the land in respect of which the claim for regularization is made, is situate within the statutorily prescribed distance, the question of considering the claim would not arise. However, this is for the Regularization Committee to examine with the evidentiary material to be made available by the authorities. Therefore, no opinion in this regard is expressed by the Court. (k) The submission of learned counsel for the petitioner that the appeal proceedings in Case No.LND 131/2022, now pending on the file of respondent-Deputy Commissioner, are incompetent, need not be examined by this Court, since it involves certain factual aspects and such an examination can be undertaken by the Appellate Authority, if urged by the petitioner. Even otherwise, this Court is not sure that the invalidation of such an appeal would enure to the benefit of the Petitioner, in the light of the observations hereinabove made and therefore, this Court declines indulgence in the accompanying W.P.No.24507/2022. (l) Petitioner argues that she and her family do not have any other means of livelihood than the land in question and therefore, diverting the same to the public interest purpose, virtually amounts to taking away the said means and therefore, violates Article 21 of the Constitution of India. In support of this, her counsel presses into service a DB decision in HOLEYAPPA, supra, wherein certain observations tending to favour such a contention are made. However, all that would not come to the aid of Petitioner. Reasons for this are not far to seek: firstly, Petitioner has not given the full particulars of her family, such as number of members, their educational background, their occupational aspects, their income and the like. No evidentiary material such as Income Certificate, Ration Card, Electoral Identity Card, is produced for substantiating the foundational facts for the invocation of the ratio. It is also pertinent to mention that the Apex Court decision in HIND STONE, supra, has escaped attention of the Bench and this weakens its precedential force. It can be safely assumed that, the said binding decision had been noticed, the DB would have made such observations. Therefore, much milk cannot be drawn from the said decision to advance the case of petitioner. 5. In the above circumstances, I make the following: ORDER [i] The case in W.P.No.9739/2022 is favoured; Writ of Certiorari issues quashing impugned Show Cause Notice dtd. Therefore, much milk cannot be drawn from the said decision to advance the case of petitioner. 5. In the above circumstances, I make the following: ORDER [i] The case in W.P.No.9739/2022 is favoured; Writ of Certiorari issues quashing impugned Show Cause Notice dtd. 22/2/2022; the Respondents are restrained from taking any coercive action against the Petitioner in respect of the subject 34 Guntas of land till after the Committee for Regularization of Unauthorized Cultivation takes a call on her pending application for regularization. [ii] A Writ of Mandamus issues directing the Committee for Regularization of Unauthorized Cultivation to hear & dispose off the Petitioner's subject application to the extent it relates to 34 Guntas of the said land, in accordance with law and on a war footing, since long pendency in the fitness of the facts abhors justice. All contentions in this regard are kept open. [iii] The cases in W.P.No.24507/2022 & W.P.No.25120/2022, being devoid of merits, are liable to be dismissed and accordingly, they are. However, all contentions including the one as to the maintainability of the appeal in No. LND 131/2022 are kept open. Costs made easy.