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2023. KHC:45326 WP No.13483 of 2022 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE12H DAY OF DECEMBER, 2023 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION No.13483 OF2022(LB-RES) BETWEEN: THE AGRICULTURAL PRODUCE MARKET COMMITTEE GUBBI TALUK, GUBBI, TUMKUR DISTRICT57221. (LOCAL AUTHORITY ESTABLISHED UNDER KARNATAKA AGRICULTURAL MARKETING (R & D) ACT1966 REPRESENTED BY ITS SECRETARY. …PETITIONER (BY SRI. SWAROOP T.,ADVOCATE) AND:
1. EXECUTIVE OFFICER TALUK PANCHAYATH, GUBBI TALUK, TUMKUR DISTRICT57221.
2. PANCHAYATH DEVELOPMENT OFFICER CHELLUR GRAM PANCHAYATH, CHELLUR VILLAGE, GUBBI TALUK, TUMKUR DISTRICT57211.
3. DEPUTY COMMISSIONER OFFICE OF THE DEPUTY COMMISSIONER, MINI VIDHANA SOUDHA, NEAR POST OFFICE, TUMKUR, TUMKUR DISTRICT57210.
4. THASHILDAR TALUK OFFICE, GUBBI TALUK, - 2 - NC:
2023. KHC:45326 WP No.13483 of 2022 GUBBI, TUMKUR DISTRICT57221.
5. PUBLIC GRIEVANCE REDRESSAL AUTHORITY BANGALORE DIVISION, JILLA PANCHAYATH, TUMKUR57210. (DELETED AS PER ORDER
DATED121.2023) 6. K.B. RANGASWAMAIAH S/O BETTAIAH, AGED ABOUT65YEARS OCC: AGRICULTURIST, R/A KODIYALA, CHELURU HOBLI, GUBBI TALUK, TUMKUR DIST-5772216 (IMPLEDED VIDE COURT ORDER
DATED2609.2022) …RESPONDENTS (BY SMT. SHUBHA S.,ADVOCATE FOR R1; SRI. J.N. NAVEEN., ADVOCATE FOR R2; SRI. A.V. GANGADHARAPPA., ADVOCATE FOR R6 SRI. NAVEEN CHANDRASHEKAR., AGA FOR R3 & R4; V/O DATED121.2023 R5-DELETED) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER ORDER
DATED2206.2022 BEARING NO.THA.PAN.GU/GRA.PAN/CHELLUR A.P.M.C. DARITERAVU/VI.VA/ 6/2022-23/452 ISSUED BY THE1T RESPONDENT PRODUCED AS ANNEXURE-A AND ETC. THIS WRIT PETITION, COMING ON FOR ORDER
S, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
1 The petitioner is before this Court seeking for the following reliefs: a. Issue a writ of certiorari or any other order the order dated:22.06.2022 bearing No.Tha.Pan.Gu/Gra.Pan/Chellur A.P.M.C. Dariteravu/ Vi.Va/6/2022-23/452 issued by the 1st Respondent produced as Annexure-A; - 3 - NC:
2023. KHC:45326 WP No.13483 of 2022 b. Issue a writ of Mandamus or direction or any other writ, to the 1st respondent not to reinstate the ‘‘kaludari’’ (trial/path-way) which is passing through the acquired lands of the petitioner in Sy.No.60 & 61/2 situated in Chellur village & Hobli, Gubbi Taluk, as no public purpose would be served by it; c. Issue any other writ, order or direction as this Hon’ble Court deems fit and proper under the facts and circumstances of this case, in the interest of justice and equity.
2. The petitioner-The Agricultural Produce Market Committee, Gubbi is constituted under the provision of the APMC Act certain lands in Chellur Village and Hobli, Gubbi Taluk in Sy.No.60, 62, 63/1, 63/2, 63/3 and 63/4 were acquired under the erstwhile Land Acquisition Act, 1894 for the purpose of establishing the sub-market yard at Chellur village in the year 1999 and award was passed in the year 2000. Subsequent thereto, the petitioner has put up a compound wall formed a layout for the sub-market allotted the plots to various persons who have also constructed buildings to conduct their businesses.-. 4 - NC:
2023. KHC:45326 WP No.13483 of 2022 3. At this stage, the notice came to be received by the petitioner of Thashildar dated 5.2.2019 stating that the petitioner had compounded the entire property and closed a footpath/’kaludari’ which was situated in Sy.No.60 and 62/1. The same was replied to by the petitioner by contending that the entire land has been acquired and allotted to the petitioner and as such entire property belonging to the petitioner, there cannot be a ‘kaludari’ situate therein after acquisition of the same. It is in that background that the petitioner is before this Court seeking for the aforesaid reliefs.
4. Sri.T.Swaroop., learned counsel for the petitioner would submit that; 4.1. once the entire land in a survey number has been acquired, the public rights situate in any ‘B Kharab’ part of such survey number would stand extinguished and conveyed in favour of the beneficiary of the acquisition which is the APMC in the present matter.-. 5 - NC:
2023. KHC:45326 WP No.13483 of 2022 4.2. It is in that background that on the possession being handed over to it the APMC has planned the sub-market yard and implemented it. 4.3. If at all, the State had at the time of handover directed the petitioner to set apart the land covered under the footpath/’kaludari’, the petitioner-APMC would have planned the layout in such a manner as not to impinge upon the ‘kaludari’/footpath. The same not having been done and no particular document being made available to the petitioner imposing any restrictions or providing any knowledge of the existence of the ‘kaludari’, it cannot now be contended by the Thashildhar that there is a ‘kaludari’ situated in the property and claim that public have to access to the said ‘kaludari’. 4.4. On that basis he submits that the petition is required to be allowed.
5. Sri.Naveen Chandrashekar., learned AGA upon instructions and by referring to the documents which - 6 - NC:
2023. KHC:45326 WP No.13483 of 2022 have been produced along with memo dated 1.12.2023 submits that what has been acquired is only an extent of 10 acers 15 guntas, the land classified as ‘B Kharab’ was not acquired since it always belonged to the State. The State has not transferred the ‘B Kharab’ to APMC, the ‘B Kharab’ continues to be vested with the State for use of by the general public. The right of the general public in the said ‘B Kharab’ has not been extinguished in terms of Section 68 of the Karnataka Land Revenue Act and therefore all villagers in and around the place and/or members of public would be entitled to use the ‘kaludari’ which has not been extinguished. His submission is that the petitioner ought to have set apart this land and not made use of it for the purposes of market yard.
6. Sri.A.V.Gangadarappa., learned counsel appearing for respondent No.6 would submit that the general public has been making use of the said ‘kaludari’ for time immemorial. The said ‘kaludari’ connects the - 7 - NC:
2023. KHC:45326 WP No.13483 of 2022 Chellur road to a village and it is the villagers who make use of the ‘kaludrai’ to access the main road which is now sought to be blocked by APMC and the Thashildhar has rightly indicated that such right cannot be extinguished by the petitioner’s by putting up a compound wall. It is in that background he submits that the petition is required to be dismissed.
7. Heard Sri.Swaroop.T., learned counsel for the petitioner, Ms.Shubha.S., learned counsel for respondent No.1, Sri.J.N.Naveen., learned counsel for respondent No.2, Sri.A.V.Gangadharappa., learned counsel for respondent No.6 and Sri.Naveen Chandrashekar., learned AGA for respondents No.3 and 4. Perused papers.
8. The points that would arise for consideration are:
1. Whether merely on acquisition of land under any Prevalent Acquisition Act right of the public in the ‘‘B Kharab’ land subject matter of acquisition would stand automatically extinguished?. - 8 - NC:
2023. KHC:45326 WP No.13483 of 2022 2. Can a beneficiary of an acquisition claim that once a land acquired has been handed over to the beneficiary the ‘B Kharab’ flowing along with the said land would also vest with the beneficiary, with the right of the general public being automatically extinguished?.
3. Can the reliefs sought for in the writ petition be granted?.
4. What order?.
9. I answer the above points as under; 10. Answer to point No.1: Whether merely on acquisition of land under any Prevalent Acquisition Act right of the public in the ‘‘B Kharab’ land subject matter of acquisition would stand automatically extinguished?. And Answer to point No.2: Can a beneficiary of an acquisition claim that once a land acquired has been handed over to the beneficiary the ‘B Kharab’ flowing along with the said land would also vest with the beneficiary, with the right of the general public being automatically extinguished?. 8.1 Both the questions being related to each other are taken up together for consideration.-. 9 - NC:
2023. KHC:45326 WP No.13483 of 2022 8.2 Section 67 of the Karnataka Land Revenue Act, 1964 is reproduced hereunder for easy reference:
67. Public roads, etc., and all lands which are not the property of others belong to the Government.— (1) All public roads, streets, lanes and paths, bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nallas, lakes and tanks and all canals and water-courses and all standing and flowing waters, and all lands wherever situated which are not the property of individuals or of aggregate of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force, are and are hereby declared to be with all rights in or over the same or appertaining thereto, the property of the State Government. Explanation.—In this section, “high-water mark” means the highest point reached by ordinary spring tides at any season of the year. (2) Where any property or any right in or over any property is claimed by or on behalf of the State Government or by any person as against the State Government, it shall be lawful for the Deputy Commissioner or a Survey Officer not lower in rank than a Deputy Commissioner, after formal inquiry to pass an order deciding the claim. (3) Any person aggrieved by an order made under sub-section (2) or in appeal or revision therefrom may institute a civil suit contesting the order within a period of one year from the - 10 - NC:
2023. KHC:45326 WP No.13483 of 2022 date of such order and the final decision in the civil suit shall be binding on the parties 8.3 A perusal of the said provision would indicate that all public roads, streets, lanes, paths, bridges, ditches, dikes and fences would stand vested with and belong to the Government. A ‘kaludari’ which is a footpath or a Bandi Jadu which is a cart-track are roads of the past which were used by the persons residing in and around the area for access to the different areas. 8.4 Thus, the concept of public roads, streets lanes and parks, in my considered opinion would also include a ‘kaludari’ and/or a Bandi Jadu which is in the nature of a road. This ‘kaludari’ and/or Bandi Jadu is demarcated in the village map and in concerned Revenue documents and is classified as ‘B Kharab’ lands as regards with the landowner is not required make payment of any land revenue.-. 11 - NC:
2023. KHC:45326 WP No.13483 of 2022 8.5 This being so for the reason that the said land is not exclusively enjoyed by the landowner but is reserved for usage by the general public in terms of Section 67 of the Karnataka Land Revenue Act, 1964. These lands, though belonging to the Government, the right of the general public is also vested in the said land and cannot be divested without following the procedure prescribed under Section 68 of the Karnataka Land Revenue Act, 1964. Section 68 is reproduced hereunder for easy reference; 68. Extinction of rights of public and individuals in or over any public road, street, lane or path not required for use of public.— (1) Whenever it appears to the State Government that the whole or any part of any public road, street, lane, or path which is the property of the State Government, is not required for the use of the public, the State Government may, by notification, make a declaration to such effect, stating in such declaration that it is proposed that the rights of the public as well as of all persons in or over any such road, street, lane or path, or part thereof, as the case may be, shall be extinguished. On the publication of such notification, the Deputy Commissioner, shall, as soon as possible cause public notice of such declaration to be given at convenient places on, or in the vicinity of, such - 12 - NC:
2023. KHC:45326 WP No.13483 of 2022 road, street, lane or path, or part thereof, as the case may be. Such declaration and notice shall specify, as far as practicable, the situation and limits of such road, street, lane or path or part thereof, and shall invite objections to the aforesaid proposal. (2) Any member of the public or any person having any interest or right, in addition to the right of public high-way, in or over such road, street, lane or path or part thereof, or having any other interest or right which is likely to be adversely affected by the proposal may, within one month after the issue of the notification, under sub-section (1), state to the Deputy Commissioner in writing his objections to the proposal, the nature of his interest or right and the manner in which it is likely to be adversely affected and the amount and particulars of his claim to compensation for such interest or right: Provided that the Deputy Commissioner may allow any person to make such statement after the period of one month after the issue of the notification under subsection (1), if he is satisfied that such person had sufficient cause for not making it within the said period. (3) The Deputy Commissioner shall give every person who has made a statement to him under sub-section (2), an opportunity of being heard either in person or by pleader and shall, after hearing all such persons in such manner and after making such further enquiry, if any, as he thinks necessary, determine the amount of compensation, if any, which should, in his opinion, be given in any case in respect of any substantial loss or damage likely to be caused by the proposed extinction of the rights of the public as well as of persons as aforesaid. The provisions of sections 9, 10 and 11 of the Land Acquisition Act, 1894 (Central Act I of 1894) shall, so far as may be, apply to the proceedings held by the Deputy Commissioner under this sub-section.-. 13 - NC:
2023. KHC:45326 WP No.13483 of 2022 (4) The Deputy Commissioner shall submit to the State Government the record of the proceedings held by him with the report, containing his recommendations on the objections, if any, received by him stating the amount of compensation, if any, which, in his opinion, are payable to any person. (5) If the State Government is satisfied after considering the record of the proceedings and the report, if any, made under sub-section (4) that the public road, street, lane or path, or part thereof, specified in the notification under sub- section (1) is not required for the use of the public, a declaration shall be published in the official Gazette that all rights of the public as well as of all persons in or over such road, street, lane, or path, or part thereof, are extinguished; and all such rights shall thereupon be extinguished, and such road, street, lane or path, or part thereof, shall be at the disposal of the State Government with effect from the date of such declaration. (6) The decision of the Deputy Commissioner, subject to such appeals or revision as are allowed under Chapter V, regarding the amount of compensation and the person to whom such compensation, if any, is payable, shall be final; and payment shall be made by the Deputy Commissioner to such persons accordingly. 8.6 For the purposes of extinction of the rights of the public and individuals in a ‘kaludari’ or a Bandi Jadu the procedure under Section 68 would have to be followed with the declaration that the rights of the public as well as all persons over such roads are extinguished.-. 14 - NC:
2023. KHC:45326 WP No.13483 of 2022 8.7 The notification envisaged under Section 68 of the Karnataka Land Revenue Act, 1964 is different from an acquisition notification under the land Acquisition Act, 1894 or any other Act providing for acquisition of land. The acquisition of land under the Land Acquisition Act 1894 is only relating to the land belonging to a private individual or an entity and it is the ownership rights in respect of that land which would get vested with the State on the acquisition being completed. 8.8 In so far as the land reserved for a park, road, etc., like a ‘kaludari’ or Bandi Jadu the said land always vested with a State but with a right of public and individuals being recognized therein. In that background, I am unable to agree with contention of Sri.T.Swaroop learned counsel for the petitioner that upon the acquisition of land the right of the public to use a pathway or a - 15 - NC:
2023. KHC:45326 WP No.13483 of 2022 ‘kaludari’ would stand extinguished and that the APMC was entitled to make use of the entire land. 8.9 In the present case there is only an acquisition notification which has been issued and the procedure under Section 68 has not been followed by the State. In fact, the contention of the State is that the said demarcation or reservation of the land for public use has not been disturbed and the public would continue to have a right to use the said Kharab land. 8.10 That being the case the procedure under Section 68 of the Karnataka Land Revenue Act, 1964 not having been followed the right of the general public and/or the individuals to make use of the ‘kaludari’ would continue in the said land and as such the beneficiary of the acquisition cannot now contend that the right of the public use has been extinguished.-. 16 - NC:
2023. KHC:45326 WP No.13483 of 2022 8.11 Hence, I answer point No.1 by holding that merely on acquisition of land under any Prevalent land Acquisition Act right of the public in the ‘‘B Kharab’ land subject matter of acquisition would not stand automatically extinguished, but the procedure under Section 68 of the Karnataka Land Revenue Act would have to be followed for such extinguishment. 8.12 Hence, I answer point No.2 by holding that a beneficiary of an acquisition cannot claim that once a land acquired has been handed over to the beneficiary the ‘B Kharab’ flowing along with the said land would also vest with the beneficiary, with the right of the general public being automatically extinguished.
11. Answer to point No.3: Can the reliefs sought for in the writ petition be granted?. 11.1. In view of my answers to points No.1 and 2 the notice issued by the Thashildar calling upon the - 17 - NC:
2023. KHC:45326 WP No.13483 of 2022 petitioner to keep the ‘B Kharab’ land designated for ‘kaludari’ free of any obstruction cannot be found fault with. Consequently, the order passed by the Executive Officer on that basis reserving the land and directing the petitioner-APMC to remove the compound wall obstructing the ‘kaludari’ cannot also be found fault. 11.2. The petitioner cannot encroach or enclose any land reserved for public use in terms of Section 67 without following the procedure under Section 68 of the Karnataka Land Revenue Act, 1964. Hence, I am of the considered opinion that the petitioner is not entitled to the reliefs which are sought for. 11.3. At this stage Sri.T.Swaroop., learned counsel for the petitioner seeks liberty to approach the jurisdictional authorities under Section 68 of the Karnataka Land Revenue Act or for shifting of the location of the existing ‘kaludari’.-. 18 - NC:
2023. KHC:45326 WP No.13483 of 2022 Liberty is always available to the petitioner to approach said authorities and as such no further liberty is required to be granted by this Court.
12. Answer to point No.4: what order?. With the above observations, the petition stands dismissed. Sd/- JUDGE SR List No.:
1. Sl No.:
2.