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Judgment
B. Veerappa, J.
The petitioner institution has filed the above petition to quash the order dated 7.5.2015 passed by the 2nd respondent in No. Bhoomi:Vahi-61:2013-14 and direct the respondents not to cause obstruction to existing school by name Sri Gubbi Nanjundeshwara Gramma Prouda Shala, Uppumsi-Somasagara, Hanagal Taluk, Haven District, constructed in Sy. No. 32 of Somasagara village, Hanagal Taluk, Haven District.
It is the case of the petitioner/Society that it was registered under the Karnataka Societies Registration Act, 1960, with an object of imparting education in the rural area of Hanagal Taluk, Haven District, and the petitioner has obtained permission to commence the Kannada Medium High School at Somasagara village, Hanagal Taluk, Haven District, from the academic year 1989-1990 from the erstwhile Zilla Parishad, Dharwad. The Society started constructing the building in the land bearing Sy. No. 32 of Somasagara village, which is a "Mafatgayarana" (Government Hullugavalu). The said land is totally measuring 87 acres 17 guntas which is a mafat gayarana land belonging to the 1st respondent, out of which an extent of 2 acres land is being utilised for the purpose of establishing school building after due permission of the respondents Grama Panchayat, Somasagara.
It is averred that in anticipation of order granting reduction of the mafat gayarana land in favour of the High School building, administered by the petitioner/society by respondents 1 and 2, the Management has taken up the construction of school building comprising of 3 rooms during the 1991-92 and also contended that the 2nd respondent/Deputy Commissioner entered into agreement through Executive Engineer, PRE Division, Hanagal, to construct the additional school building at the cost of Rs. 10,00,000/- by government aid on 18.06.2013 and the concerned Grama Panchayat has given no objection certificate to construct the school building It is submitted that there are 175 students studying in the said High School from 8th Class to 10th Class, and said institution is a rural institution established only to support the rural background students.
It is submitted that the petitioner has filed application on 15.10.2014 before the 2nd respondent for grant of 3 acres of land in R.S. No. 32 of Somasagara village, Hanagal Taluk, on which the present school building and playground are in existence and requested to grant the said land in favour of Sri. Gubbi Nanjundeshwara Rural High School, Uppunase-Somasagar. During the pendency of the said application, the respondent-2/Deputy Commissioner, has issued the impugned order dated 7.5.2015 holding that the petitioner-society is in unauthorised occupation of the Government land to an extent of 3 acres in R.S. No. 32 of Somasagara village and have constructed the present school building unauthorisedly on the said land and therefore, exercising his powers under Section 104 of the Karnataka Land Revenue Act, 1964, directed the Tahasildar, Hanagal, to take action to evict the petitioner-institution and forfeit the existing school building to the State Government. Therefore, the petitioner is before this Court.
I have heard the learned Counsel for the parties to the lis.
Sri. S.N. Banakar, learned Counsel for the petitioner, has contended that the impugned order passed by the 2nd respondent/Deputy Commissioner without holding any enquiry and without any notice, is in violation of principles of natural justice and therefore, he sought to set aside the impugned order.
Per contra Sri. Ravi V. Hosamani, learned AGA strenuously contended that the very construction of school building in the Government land itself is illegal and the petitioner has no locus standi to put up permanent structure on the Government land without permission from the State Government and the Zilla Panchayat has no power to grant permission to run the School on the Government land by passing a resolution, without seeking permission from the State Government. More over the land is a "Mofat Gayarana" (Government Land) and grant of said land in favour of petitioner/institution requires permission from the Deputy Commissioner under Section 71 of the Karnataka Land Revenue Act. In the absence of such grant, the claim made by the petitioner is illegal and therefore, he sought to justify the impugned order passed by the Deputy Commissioner and sought to dismiss the writ petition.
During the course of arguments, the learned Counsel for petitioner filed an affidavit of the petitioner to the effect that he has already applied for grant of 3 acres of land in R.S. No. 32 of Somasagar village in Hanagal Taluk, Haven District, on 15.10.2014 before the Deputy Commissioner as per Annexure-H, and permission has been granted by the Education Department to run the school as per Annexure-A, and also stated that since from 13.5.2015 till date all the 175 students from 8th standard to 10th standard of the school are sitting in the corridor of the school and learning and thereby facing acute trouble and problem due to rainy season since the respondents 2 to 4 have locked all the classrooms of petitioner-Society. Therefore, in the best interest of welfare of the students, he prays to grant two years time to enable him to appraise the Deputy Commissioner to allot the said land by considering their representation Annexure-H. If permission sought under the said application is granted, the institution will continue to run in the said premises and if not the petitioner will make alternative and suitable arrangement to shift the school. Therefore, he prays that the permission may be granted to run the school by removing the lock. The relevant paras of said affidavit reads as under:
"4. I state that, in the meantime the respondent Nos. 2 to 4 have locked all the classrooms of petitioner society thereby the students numbering about 175 in numbers from 8th Std. to 10th Std. are sitting on the corridor of the school who are facing very much difficulty and trouble in their studies.
I state that since from 13.5.2015 till date all the students stated supra are sitting in the corridor of the school and thereby facing acute trouble and problem on account of rainy season hence in the best interest and welfare of the students it is prayed to grant two years time enabling me to get granted the land from the concerned authorities as per the application moved by me on 15.10.2014 as per Annexure-H. If the permission sought under the said application is granted we will continue our institution in the said premises if not I will make alternative and suitable arrangement to shift our school. This undertaking is given in the best interest of the students added to it I have been running the petitioner institution since for the last 26 years. Hence it is prayed that two years time kindly be granted to run the school by removing the lock put to the classrooms further the concerned authorities kindly be directed to considered annexure H for grant of the said premises."
In pursuance of the oral direction issued by this Court to explore the possibility of accommodating the students, taking into consideration the paramount interest of about 175 students studying in the petitioner-school, the learned AGA has filed Memo dated 03.07.2015, on the instructions of the Deputy Commissioner, stating that subject to approval of the Government or in anticipation of such approval, the petitioner institution will be allowed to run for maximum period of one academic year i.e. upto April 2016, subject to the petitioners giving an undertaking that they will voluntarily vacate and handover school building without any objections. The Memo filed by the learned AGA reads as under:
"This Hon''ble Court on 29.06.2015 directed the respondent Deputy Commissioner, Haven, who had passed the impugned order to state whether during the pendency of the above writ petition 1) Take over the school by the Government, 2) Hand over the School to the B.E.O. Hanagal for running it, 3) in case the petitioner''s request to be put back in possession of the school for running it till they make alternative arrangement, what is the maximum period of time, the Government, would grant to the petitioners. In response to the same, the Deputy Commissioner, Haven, in his reply stated that, the Government is not willing to consider options 1) and 2), however subject to approval of the Government or in anticipation of such approval the School would be handed over to the petitioners to run the classes for maximum of one academic year i.e., upto April 2016 subject to the petitioners giving an undertaking before the Hon''ble Court that they will voluntarily vacate the School Building, and hand-over possession without any objections. Hence, this memo."
After considering the entire material on record and arguments advanced by both the learned Counsel, it is crystal clear that the petitioner/Society has constructed the school building in government land (Gayarana land) bearing R.S.. No. 32 of Somasagar village, Hanagal taluk, Haven District, without any grant or permission from the State Government/Deputy Commissioner. The said unauthorised construction/occupation has to be sanctioned by the Deputy Commissioner under Section 71 of the Karnataka Land Revenue Act before using the land for non-agricultural purpose. The petitioners have not complied with the said provision. Admittedly, petitioner/Society is imparting education to the rural students in an unauthorised construction but without prior permission either from the Government or from the concerned revenue authorities. Therefore, the order passed by the Deputy Commissioner cannot be declared as void. However, taking into consideration the paramount interest of 175 students and in view of the Memo filed by the Government, the respondents 1 to 4 are directed to permit the petitioner-Society to run the High School for the academic year 2015-16 i.e., upto the end of academic year 2015-16 (i.e. one year from today).
In the meanwhile, it is open for the petitioner-Society to approach the Government to pursue its application dated 15.10.2014 (Annexure-H), already filed for grant of 3 acres of land on which the present School building and the playground are existing. If the petitioner is unable to get the land granted in favour of the petitioner-Society, within a period of one year from today, the petitioner shall vacate the building voluntarily without forcing the respondents to initiate further eviction proceedings, in accordance with law.
In view of the undertaking filed by the petitioner and the Memo filed by the State Government before this Court today, the 2nd respondent- Deputy Commissioner, Haven, is directed to open the lock put to the classrooms of the school building forthwith and permit the petitioner to run the school in the terms stated above.
Accordingly, the writ petition is disposed of.
In view of disposal of main matter itself, I.A.1/2015 does not survive for consideration and it is disposed of accordingly.