L. A. Krishnappa Vs. State of Karnataka and Others 2009 (2) KarLJ 697 Date of Judgement: 23/01/2009 Honourable Judges: Anand Byrareddy, J. The Counsel would place reliance on the judgments of this Court in P. Bhimachar v State of Mysore and Others, 1966(2) Mys. L.J. 184 (DB), wherein a Division Bench of this Court has held that pot kharab portion of the land is included in the ownership of the occupant. A similar view is taken in Saudagar Rasul Khan v State of Mysore and Others, ILR 1973 Kar. 56, wherein it is held that kharab land is so-called because it is not cultivable and is a classification made for the purposes of revenue exemption. Rule 21(2)(a) is thus a provision relating to the exemption from the payment of land revenue and has no relevance for assuming that the pot kharab portion is land not included in the occupancy, and that it belongs to the Government. From this point of view also the demand made for the payment of the market value on the pot kharab is unauthorised.

While the Government Pleader on the other hand, would seek to justify the action of the State Government on the basis of the circulars namely Circular No. RD 136 LGS 93, dated 16-9-1994 as well as the Circular No. RD 137 LQW 2001, dated 17-6-2003 whereunder an opinion of the law department is expressed to the effect that kharab lands are Government lands and therefore, the question of acquiring those lands does not arise and hence, there is no scope for making any payments to the landlords in respect of kharab land. Reliance is also placed on a circular dated 12-5-2004, wherein it is clarified that if 'A' kharab land if granted by the Competent Authority, it would only then become part and parcel of Hiduvali land of the landlord. It is contended by the Government Pleader that the ownership of "A" kharab land always vests with the Government unless it is granted to the landowner by the Competent Authority. And therefore, would submit that the demand made is in order.

It is not in dispute that in the present circumstances, the demand made is in respect of pot kharab(a) land. As rightly pointed out by the learned Counsel for the petitioner, there is no distinction made between an arable portion of land and an unarable portion of land under Rule 107 for purposes of levy of fine for conversion of land for non-agricultural use. The reliance sought to be placed by the State on the circulars which are mere clarifications based on the opinions expressed by its law department would not override the express provisions of law, which have been referred to herein above. There is no indication that there is a distinction between an arable portion of land and unarable portion of land. The provisions of Section 95 relating to conversion of agricultural land for other purposes does not also make any such distinction. Hence, the State Government seeking to interpret the provisions in order to obtain higher revenue would not be tenable. It is only in respect of pot kharab(b) lands, it could be said that the State Government can claim the same as Government lands. Insofar as pot kharab(a) lands are concerned, the Division Bench decision referred to above is categorical on this aspect and that has attained finality. There is no other manner in which the provisions could be interpreted.