Ammayamma and Others vs The State of Karnataka and Others

Anand Byrareddy, J.—1. Heard the learned counsel for the petitioners, the learned counsel for Respondent No. 5 as well as the Government Pleader.

The petitioners claim that land bearing Sy. No. 338/A, now bearing Sy. No. 338/1A measuring 2 acres 18 guntas at Marasuru Village, Anekal Taluk, Bangalore Urban District, more fully described in the schedule to the petitions was said to have been occupied and cultivated by the petitioners since a few decades. The land was a Government land. With the coming into force of Section 94-B of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as ''the KLR Act'', for brevity), the first petitioner is said to have applied in Form No. 53 under the KLR Act for regularization of unauthorized occupation of the said land. That application having been filed in the year 1998, the competent Committee for regularization of unauthorized occupation, had not considered the same on merits for several years. It is stated that a spot inspection was held during the year 2002 and the claim of the petitioners were considered as being eligible for such grant.

It is stated that the file pertaining to the case was misplaced and could not be traced. Therefore, the claim of the petitioners was kept pending. After waiting for quite a period, the petitioners were constrained to file a writ petition in W.P. No. 8923/2007 seeking a writ of mandamus directing the Committee to process the application of the petitioners and to take further steps. That petition was allowed by order dated 13.09.2007 and a direction was issued to place the application of the petitioners before the Committee and the same was to be considered in accordance with law.

Thereafter, the first petitioner is said to have made a representation to the fourth respondent bringing to the attention the order passed by this Court and seeking that action be taken. The Committee thereafter had taken up several applications seeking regularization along with that of the petitioners and on a perusal of the records, had allowed the application of the petitioners and had ordered regularization of the unauthorized occupation by proceedings dated 8.6.2010.

The fourth respondent, instead of issuing a ''saguvali chit'', had prepared a list of about 694 cases pertaining to Form 50 and 53 seeking suitable directions regarding issue of a saguvali chit as per correspondence dated 8.10.2012. The Deputy Commissioner, by his letter dated 30.11.2012 is said to have placed the same before the Chief Secretary to Government, Revenue Department. The second respondent had thereafter issued a notification dated 14.06.2007 to sell the suit schedule property and various other properties by public auction under Rule 12(2) of the Karnataka Land Grant Rules, 1969. While proceeding to auction, it appears that the fourth respondent had submitted a report to the effect that there was no claim or proceeding pending in respect of the suit schedule property.

This was a blatant falsehood, in view of the earlier proceedings referred to hereinabove. Subsequently, the auction was held pursuant to the notification on 26.06.2007 and the fifth respondent appears to have been the highest bidder for the petition schedule property, apart from other properties. The schedule property has been purchased by the fifth respondent for a total sum of Rs. 4,16,00,000/- and it appears that the fifth respondent had deposited 25% of the bid amount and according to the petitioners, fifth respondent has not deposited the entire bid amount even as on date. The petitioners claim that the auction was conducted by overlooking the proceedings that had culminated in favour of the petitioners and in suppression of the same. The Tahsildar and the concerned Revenue Inspector in submitting the report, had falsely indicated that there were no applications in Form 50 or 53 pending in respect of the land. In this regard, the Deputy Commissioner in retrospect, has issued a notice to the Tahsildar dated 21.03.2009 seeking an explanation. In the meanwhile, the fifth respondent has filed a writ petition in W.P. No. 32559/2013 seeking a direction to the Deputy Commissioner and the Tahsildar to consider their representation to complete the auction sale by receiving the balance of the bid amount. The said writ petition is said to have been disposed of on 14.08.2013. The writ petition was allowed and certain directions have been issued for closing the matter regarding the application filed by the petitioner. The petitioners seek to question that order passed in the writ petition, as they were never parties to the said writ petition and there could not have been any directions prejudicial to their interest in that writ petition and have also a right reserved in their favour to challenge the same by way of an appeal. It is stated that an appeal has indeed been preferred by the petitioners in writ appeal.

When matter stood thus, the fourth respondent is said to have issued an endorsement to the petitioner stating that there is no occasion to grant the land to the petitioner, as the land falls within 18 kms. from the BBMP limits even if they were unauthorized occupants of the land in question. The petitioners claim that the endorsement issued is illegal and without any authority of law, in the face of the circumstance that the concerned Committee had already accepted the application of the petitioners and had resolved to regularize the same in favour of the petitioners. Insofar as the issuance of a saguvali chit is concerned, the matter was listed before the Government as stated above and therefore, the Tahsildar had no authority to issue the endorsement as he was functus officio after the application of the petitioners was recommended for regularization of their unauthorized occupation. It is further pointed out that insofar as claim that the property in question is within 18 kms. from the limits of the BBMP, is only with effect from the year 2007. If the limits of the erstwhile BMP is taken into consideration, it would certainly be outside the 18 km. distance and therefore, the petitioners being denied the benefit of regularization to favour the fifth respondent, is in gross suppression of the proceedings that had resulted in their favour. The auction sale that has been conducted would also indicate that the property has been sold at a throw away price to the detriment of the petitioners who were eking out their livelihood by cultivating the land in question. It is in this background that the present petitions are filed.

The Respondent No. 5 has entered appearance and has filed statement of objections to contend that the petitioners are not entitled to claim any relief in the present petitions, as there is no vested right in them. The claim that their application had been allowed under Section 94A and B of the KLR Act, is factually incorrect and is on a misinterpretation of the annexures filed along with the petition, at Annexures "D", "E" and "F"

Annexure-"D" is pointed out as a copy of the proceedings dated 8.6.2010 of the Committee and Paragraph 5 therein would indicate that a decision has been taken by the Committee to dismiss the applications in Form 53 in respect of the lands within 18 kms. of the BMP limits.

Annexure-"E" is a communication dated 8.10.2012 issued by the Tahsildar to the Deputy Commissioner giving the status of various applications made for regularization in Form No. 50 and 53 and seeking further orders in the matter.

A perusal of the said communication would indicate that the Tahsildar has intimated to the Deputy Commissioner the status of several applications for regularization by way of a table showing the particulars of 109 applications and it is stated that there is a direction from the High Court or from other authorities to issue saguvali chit to the applicants.

Apart from the above particulars, the Tahsildar has furnished the status of other applications under various heads. The petitioner''s application in the said communication is shown at Sl. No. 38. However, as stated above, in the explanatory portion of the letter, the Tahsildar has stated that in respect of 109 cases, there are directions from the High Court and other authorities to issue saguvali chit. The said communication is relied upon by the petitioners to assert that a resolution has been passed in respect of her application in Form No. 53 to the effect that the schedule property is being regularized in favour of the petitioners and only the issuance of saguvali chit was due for the petitioners to have their occupation regularized.

This according to the fifth respondent, in incorrect and no such resolution has been passed.

In the writ petition filed by the petitioners, in W.P. 8923/2007, there was only a direction to consider the petitioner''s case and to dispose of the same in accordance with law. There was no direction to issue a saguvali chit in favour of the petitioner, as contended. Therefore, no right had accrued to the petitioners, which they can pursue in this writ petition.

The Committee also had decided that applications in respect of lands within 18 kms. of BMP limits would have to be rejected, even if the petitioners'' case had been favourably considered as stated.

It is pointed out that the prohibition of such recovery of lands within 18 kms. is provided under the KLR Act and the distance prescribed is within the 18 km. from the boundary of BMP limits and not the BBMP limits. The contention of the petitioner that it is only from the year 2007 the village in question has come within the distance of 18 km. from the BBMP limits, is incorrect.

It is pointed out by the fifth respondent that Annexure-"R1" produced along with the Statement of objections is a diagram indicating villages falling within 18 kms. from the BMP boundary and Annexure-"R2" is another diagram and list of villages indicating that falling within 18 kms. from the BBMP limits. In both cases, the concerned village is found within 18 km. from the boundary of the city limits, whether it is BMP or BBMP. Therefore, the contention that it is only from the year 2007 that it falls within 18 km. is a misleading statement. It is in this vein that the fifth respondent seeks to contest the petition.

The State Government in turn has filed its statement of objections to assert that though the petitioners had filed an application seeking regularization of unauthorized occupation, the same had not been decided in favour of the petitioners as contended. Pursuant to a direction issued by this Court at the instance of the petitioners, when the matter was placed before the Committee for regularization of unauthorized occupation, the Committee was made known of the fact that the land in question was within 18 kms. from the limits of the BBMP and the Committee had not taken any decision in that background. There were as many as 694 applications with regard to issuance of saguvali chits. Hence, necessary clarification had been sought for from the Deputy Commissioner as to whether the rules prevalent in 1998 should be followed in disposing of the applications or whether the present existing rules should be applied.

In any event, such regularization and grant of land is a discretionary matter under Rule 108L of the Karnataka Land Revenue Rules, 1966 as well as under Rule 26 of the Karnataka Land Grant Rules, 1969. It is claimed that the land in question is within 18 kms. from the limits of the BBMP as per the decision reported in the case of State of Karnataka and others vs. B.R. Krishnaiah and others 2003 (3) KLJ 169A, wherein the Division Bench has held that no such land can be regularized if it lies within the prohibited limits from the city area.

It is also pointed out that there is a further notification which has increased the prohibitory limits of 18 kms. to 25 kms. from the BBMP limits as per endorsement dated 1.8.2013.

The learned Government Pleader would further contend that according to his instructions, the Karnataka Public Land Corporation which is a Government of Karnataka Undertaking vested with safeguarding the state property, has carried out a survey of all villages within 18 kms. of Bangalore and the present village where the subject lands are situate is one of them. Therefore, the question of regularizing the occupation of the petitioners did not arise at all. It is stated that the land having been sold at an auction, there is a dispute pending between the State and the fifth respondent, which would be resolved in due course if at all. Though the sale has been confirmed, there is some issue pending between the fifth respondent and the State Government. However, it is asserted that the petitioners in any case do not have any vested right in claiming regularization of their unauthorized occupation.

The learned counsel for the petitioners by way of reply, would assert that the documents produced by the fifth respondent to contend that the land in question falls within 18 kms. from the BBMP limits or the BMP limits, are not authenticated documents and that his best efforts to secure the relevant documents has been futile and if given further time, he would be in a position to supplement the same and he would point out that the State Government has not even chosen to produce any such documents to claim that the village is within 18 kms. from the BBMP limits. Therefore, there cannot be a finality to the assertion that the village is indeed within 18 kms. from the BBMP limits or the BMP limits in order to deny the right of the petitioners to have their occupation regularized and he would insist that he may not be foreclosed from filing an appeal, which right he may possess insofar as the earlier direction in a petition filed by the fifth respondent, without the petitioners being made parties therein. Therefore, there cannot be any finality to the question whether the land in issue is within 18 kms. from the BBMP limits.

Given the above rival contentions, from the record made available, it is not evident that any right had vested in the petitioners. The claim of the petitioners that there was a resolution to regularize their occupation, is not wholly correct.

Though the Committee had considered the application, there was a rider that the land if it is within 18 kms. from the BBMP limits or the BMP limits, it could not be considered for such regularization. In any event, the land having been sold at an auction and the sale having been confirmed, would indicate a circumstance where third party rights has intervened. In that view of the matter, whether the petitioners could be conferred with any benefit insofar as the land is concerned, is a question which cannot be answered in their favour. However, the fact that they were occupying Government land for several decades and were seeking regularization, shall be taken note of by the concerned authority. In order to meet equities, if the State Government should sympathetically consider their case to grant some other alternative land if not of the same dimension, but sufficient to eke out their livelihood, it would be in the interest of justice.

However, at the instance of the petitioners, the sale in favour of the fifth respondent cannot be set aside nor can they be put back in possession of the land in question, if they were earlier in occupation of the land. It is the discretion of the State Government even to regularize the unauthorized occupation. Therefore, there cannot be any compulsion and this court cannot proceed on a presumption that vested right was inherent in the petitioners in considering their case for regularization of unauthorized occupation. They are always at the mercy of the State in so far as the exercise of discretion is concerned and hence, it cannot be assailed as a matter of right that their occupation should be regularized.

Consequently, the petitions lack merit and are dismissed.