Heerappa Cholappa Laxmani and Others vs Hanappa Hanumanthappa and Another

K.V. Narayana Raju, M.-This appeal under Section 49 of the Karnataka Land Revenue Act is from the order dated 5-10-1979 passed by the learned Special Deputy Commissioner, Dharwar in LGL(U)SR. 345 granting 5 acres of land out of survey No. 39 of Nukapura village Ranebennur Taluk to the first respondent Hanumanthappa Hanmappa Malyanahalli. The appellants are 14 in number including the Chairman of the Co-operative Society and Chairman of the Village Panchayath, Nukapur. There is an application for condonation of delay and in the affidavit enclosed first appellant Erappa has said that the land in question was Gairana for the cattle of the village, that without the knowledge of any person in the village the grant had been obtained, that none was aware of such order till 30-5-80 when respondent 1 started cultivating the land, that an application was filed and copy obtained on the same day, that some time was lost in prosecuting the appeal before the Divisional Commissioner and therefore the delay in filing the appeal (filed on 31-7-1980) may be condoned. No cause is shown against this application and we are satisfied that there was sufficient cause for the delay. The appeal is therefore entertained.

The facts seen from the records are these:

Survey No. 39, 23 acres 18 guntas is shown as mufat ghairana, i.e., free pasture is the record of rights. Respondent 1 had applied for 10 acres under the Karnataka Land Revenue (Regularisation of unauthorised occupation) Rules, 1970. The request of respondent 1 was rejected on 26-12-1973 on the ground that he was not cultivating the land prior to 1-10-1968. His appeal before the Deputy Commissioner was allowed on 31-10-74 and the matter was remanded to the Assistant Commissioner for fresh disposal Section 94A of the Karnataka Land Revenue Act was deleted by Ordinance 30 of 1975 and therefore the application for regularisation of unauthorised occupation abated.

Thereafter the Tahsildar and the Assistant Commissioner recommended that since the respondent 1 had incurred expenditure on digging a well, the Government may be moved to release 7 acres 27 guntas from ghairan (Vide Assistant Commissioner''s letter dated 9-10-1977 addressed to the Special Deputy Commissioner). There was some correspondence between the Officers and there was no order secured releasing the land from the ghairan.

After the issue of Government order dated 1-9-1977 and 18-11-1978 directing grant of land to landless and insufficient holders the Tahsildar by letter dated 1-8-1979 reported to the Special Deputy Commissioner that only 10 acres may be granted to the respondent in accordance with the Government Order dated 18-11-1978. It is clear that the Tahsildar assumed that those Government Orders authorised grant of even reserved lands to the wrongful occupants.

The learned Deputy Commissioner proceeded to pass the order now impugned granting only 5 acres out of survey No. 39. It was said that respondent 1 was landless since he had gifted the land owned by him on 12-4-1977 in favour of his son-in-law.

The appellants have contended that the learned Deputy Commissioner ought not to have granted the land without examining the nature of the land, and ignoring the fact that it was ghairan for the benefit of the cattle of the village; that the persons likely to be affected have not been consulted at all, etc.

The counsel for the appellant, respondent 1, and the learned Assistant State Representative have been heard. The only question for consideration is whether the learned Deputy Commissioner was right in granting 5 acres out of ghairan to first respondent. There is no denying that survey No. 39 has been assigned for the specific purpose of providing grazing grounds for the village cattle. Under Section 71 of the Karnataka Land Revenue Act such lands could not have been appropriated for any other purpose without a special order of the Deputy Commissioner. The Karnataka Land Revenue Rules directed that even the Deputy Commissioner cannot by such appropriation reduce the extent of ghairan or gomal below the prescribed limit without the special order of the Divisional Commissioner. It is now well settled that an order appropriating lands within gomal could not be passed without hearing the villagers who are likely to be affected.

There is evidence before us that the appropriation of land would reduce the gomal below the prescribed limit. There was once a recommendation for appropriation of land but nothing was done. As said before the Tahsildar and consequently the Deputy Commissioner appears to have thought that purporting to act under the Government Order dated 1-9-1977, 18-11-1978 etc., land could be granted even violating the mandatory provisions of Section 71 of the Karnataka Land Revenue Act.

Even the 1970 Rules which authorised the grant of land to unauthorised occupants prohibited the grant of lands which were specially assigned, or were required for public purposes. There is nothing in any of the Government Order dated 1-9-77 and subsequent orders which has the effect of lifting the ban imposed by Section 71 of the Karnataka Land Revenue Act. No one can succeed in obtaining grant of land which is required for purpose of the community or the cattle of a village. In the present case the learned Deputy Commissioner has proceeded to make grant without applying his mind to the dangerous consequences that may follow such appropriation of ghairan lands without following the prescribed procedure.

For the foregoing reasons we have no option but to set aside the order passed by the Deputy Commissioner granting the land to the respondent 1. Appeal is allowed and the order dated 5-10-1979 passed by the Deputy Commissioner is set aside.