Krishna Rao Venkata Rao Unamdar (Since Deceased) by Lrs. vs State of Karnataka and Others

Ramakrishna, J.-The Karnataka Appellate Tribunal, respondent-2 herein, by its order dated 9-9-1981 made in Appeal No. 304 of 1973, partly allowed the appeal and rejected the same in so far as it pertains to Sy. No. 62/15 measuring 4 acres, one gunta of Degganahalli village, K.R. Nagar Taluk, Mysore District. Aggrieved by that part of the order by which it rejected the appeal, the petitioners have filed this writ petition.

The Special Deputy Commissioner, respondent-3 herein, whose order came to be affirmed by respondent-2 in so far as Sy. No. 62/15 is concerned, by his order dated 12-12-1972 made in case No. A2. Or. 1189/60-61, held as follows:

"The learned Counsel referred to the decision of the Mysore Revenue Appellate Tribunal reported in K.L.J. December, 1961 pages 379-386 S.M. Ramaswamy v State of Mysore-Regarding the provision of Sections 3 and 9 of the Act-Uncultivated and waste land-Distinction-Determination-Enquiry scope and urged to register Sy. Nos. 62/1, 62/15, 62/26 and 62/27 in the name of the claimant as they are waste lands. The language of para-11 of the order cited clearly reads that the lands once cultivated and left fallow can only be registered in the name of the inamdar if he adduces evidence for non-cultivation of the land on the date of vesting.

The relevant sentence reads as- "A land which is under cultivation all along, may have remained uncultivated in the year of vesting or for an year or two before vesting. The land found to be an uncultivated land. The pertinent question would be, is it a cultivable land but not cultivated at all at any time? If the answers to these questions are in the affirmative, it would not be wrong to conclude that the land in question is a waste land..."

It is so clear that uncultivated land is a land which was once under cultivation and left fallow on the date of vesting and history of the land to be examined as they are very important factors to determine the claim. In respect of these Sy. Nos. it can be said that these sub-numbers were not under cultivation at any time. However, that Sy. No. 62/1 measuring 1-15 guntas which is assessed at Rs. 1.25 is a cultivable land. This requires consideration for registration in favour of the claimant. It is also reported by the Tahsildar, K.R. Nagar Taluk based on the enquiry by the Revenue Inspector and the Taluk Surveyor that Sy. No. 62/15 measuring 4 acres and 1 gunta of land is being used as burial ground of the village community after the portion of the village came under K.R.S. submersion. Therefore, it can be said that the other 3 sub-numbers were not under cultivation at any time and bear no assessment. The inamdar has also not been able to say these were under cultivation at any time. I, therefore, consider this as a waste land and as vested in Government under Sec. 3(1) read with Sec. 9(1)(i) of the Act. The Inamdar''s claim for Sy. No. 62/11-15 guntas is allowed and registered under Section 9 of the I.A. Act, 1954. His claim for the other 3 sub-numbers in this survey number is rejected."

What is a ''waste land'' occurring in Bombay Taluqdari Tenure Abolition Act, came to be defined by the Supreme Court in State of Gujarat v Gujarat Revenue Tribunal, AIR 1980 S.C. 91., as under:

"Now, the expression ''waste lands'' has a well-defined legal connotation. It means lands which are desolate, abandoned and not fit ordinarily for use for building purposes".

"In the sequence in which the expression ''waste lands'' appears in the two relevant sections viz., Sections 6 and 5(1)(b) of the Bombay Taluqdari Tenure Abolition Act and Sections 7 and 5(2)-(b) of the Bombay Personal Inams Abolition Act, it cannot but have its ordinary etymological meaning as given in the Shorter Oxford Dictionary i.e., land lying desolate or useless, without trees or grass or vegetation, not capable of any use.."

Therefore, in view of the definition defining what is ''waste land'' found in the above decision of the Supreme Court, I am clearly of the opinion that the conclusion reached by the Deputy Commissioner in the instant case is incorrect, inasmuch as he failed to give the correct meaning to the definition of the word ''waste land''. His approach in reaching the conclusion is not in the interests of obtaining concept sought to be understood in the enactment inasmuch as the pattern of inams abolition found basically in the Bombay Act is one and the same. Therefore, he ought to have considered that the ''waste land'' in Sy. No. 62 is also a cultivable land in the light of the ruling of the Supreme Court. That one ground is enough to set aside the order of the Deputy Commissioner in rejecting the prayer in so far as Sy. No. 62/15 is concerned.

Unfortunately, this view of the Deputy Commissioner came to be affirmed by the Karnataka Appellate Tribunal, respondent-2 herein in Appeal No. 304 of 1973 disposed of on 9-9-1981. Therefore, both the orders in so far as Sy. no. 61/15 is concerned deserve to be set aside.

Sri Kantaraj, learned High Court Government Pleader, brought to my notice, part of land in Sy. No. 62/15 was being used as burial ground by the community people there and that therefore this was a matter which required reconsideration by the Deputy Commissioner though the petitioners had a legitimate right for grant of occupancy rights. However, since there is an observation made by the Deputy Commissioner that part of the land in the said survey number is being used as burial ground, in the fitness of things, a direction in this behalf is necessary to the Deputy Commissioner.

For the reasons stated above, I make the following:

ORDER

This writ petition is allowed. The orders impugned at Annexures-A and B are hereby quashed so far as they relate to Sy. No. 62/15 of Degganahalli village, K.R. Nagar Taluk, Mysore District and the matter to that extent stands remitted to the Deputy Commissioner, Mysore District, Mysore, with a direction to reconsider the case afresh in the light of the observations made above and to pass appropriate orders, after affording an opportunity of being heard to the petitioners and others interested, within three months from the date of receipt of this order.

A copy of this order may be sent to the Special Deputy Commissioner, Mysore, forthwith.

Writ Petition allowed.