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KHARAB LAND AND CONVERSION CLARIFIED BY JUSTICE ANAND BYRAREDDY

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.

PRESUMPTION IN PTCL CASES

In a decision of High court of Karnataka in case of S. Venkata Reddy Vs. Mulabagalappa and Others Reported in 2009 (3) KarLJ 294 Decided by Justice Arali Nagaraj, J. Date of Judgement: 28/01/2009 Regular Second Appeal No. 929 of 2002, It is observed that "It is not in dispute that the said land was granted to Mulabagalappa for the reason that he happened to be a member of scheduled caste. Therefore, the mortgage of the said land by the defendant-grantee in favour of the plaintiff authorising the plaintiff to enjoy usufructs was clearly in violation of the provisions of Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.

It is held by this Court in the case of R.H. Ramakrishnaiah v The Deputy Commissioner, Shimoga District and Others, 2000(2) Kar. L.J. Sh. N. 21, that usufructuary mortgage of the granted land amounts to transfer and if such transfer is without the previous permission of the State Government, it is null and void and mortgagee is liable to be evicted and the land has to be resumed by the Government for restoration to the grantee.

Therefore, following this decision, since the plaintiff transferee acquired the said land and mango trees by way of the said transfer made in his favour by the defendant without the permission of the Government, the said transfer shall have to be held 'null and void' conveying no right, title or interest in such land by the defendant in favour of the plaintiff. ……………………. Further, Section 5(3) provides that where any granted land is in the possession of a person other than the original grantee or his legal heir it shall be presumed, until contrary is proved, that such person has acquired the land by transfer which is 'null and void' under the provisions of Section 4(1) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. This being so, the burden is heavy on the plaintiff to prove that the said mortgage was not obtained by him in contravention of the provisions of Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978."

If for any reason, the taluk office do not have the record relating to the grant of land in question then the respondents have to rebuild the records and find out the date of grant, nature of grant and to whom the land was granted. - JUSTICE NAGAMOHANDAS


Chinnappa Vs. The Special Deputy Commissioner and Ors. Hon’ble Justice: H.N. Nagamohan Das, J. Date of Judgement: 18/12/2009 Citation: 2010 (1) KarLJ 671, Writ Petition No. 15427 of 2009, SOURCE: KARNATAKA HIGH COURT “The Assistant Commissioner vide order dated 12-6-2003 as per Annexure-K rejected the claim of petitioner mainly on the ground that the original grant darkast records are not available in the Taluk Office. In appeal, the Deputy Commissioner confirmed the order of Assistant Commissioner under the impugned order dated 4-4-2007 - Annexure-L. Hence, this writ petition. ….. The PTCL Act is a social welfare legislation. The object of PTCL Act is to see that the land granted to Scheduled Caste and Scheduled Tribe persons are retained in their hands. If for any reason, the taluk office do not have the record relating to the grant of land in question then the respondents have to rebuild the records and find out the date of grant, nature of grant and to whom the land was granted. Further, the respondents have to secure the original grant/darkast register, saguvali chit register, kimath register etc., and verify the same. In the instant case the respondents without undertaking such an exercise committed an illegality in dismissing the claim of petitioner only on the ground that the grant darkast records are not available. On this ground the impugned orders are liable to be quashed.”

ALWAYS THE LAW & RULES PREVAIL AND NOT THE EXECUTIVE ACTS, WHEN THERE IS A CONFLICT

Smt. Jayamma W/o Siddegowda Vs. The Assistant Commissioner, Date of Judgement: 13/01/2010 Mandya Hon’ble Justice: Manjula Chellur and A.N. Venugopala Gowda, JJ. Writ Appeal No. 2860/2009 SOURCE: KARNATAKA HIGH COURT WEBSITE “From the record it is clear that, the grant was made in favour of the father of 4th respondent, who was a member of the Scheduled Caste. The grant was free of consideration. Rule 43(8) of the Land Grant Rules stipulate that the grant made free of consideration was net alienable for a period of 20 years from the date of grant i.e., in respect of the grants made between 04 08.1953 to 05.07.1955. The grant in favour of the 4th respondent has been made on 25.05.1955 and hence the non-alienation period in terms of the Rules is 20 years. Always the law/rules prevail and not the executive acts, when there is a conflict.”

CASE LAW ON LAND LAWS

KARNATAKA LAND LAWS