(Prayer: This Writ Appeal is filed u/S 4 of the Karnataka High Court Act praying to set aside the order dated 20.12.2023 passed by the learned Single Judge in W.P. No.18295/2022 by allowing this appeal and etc.)

CAV Judgment

D.K. Singh, J.

1. The present intra Court appeal has been filed impugning the judgment and order dated 20.12.2023 passed by the learned Single Judge in W.P.No.18295/2022.

2. The parties are referred to as per their ranking before the writ Court, for the sake of convenience.

FACTS:

3. The dispute relates to the land bearing Survey No.20 of Chinnappanahali Village, K.R.Puram Hobli, Bengaluru East Taluk. As per the petitioner, the said land had fallen to the share of the grandfather of the petitioner viz., Sri H. Hanuma Reddy s/o Sri Chikkamuniswamy Reddy in the family partition that was effected between the children of late Sri Chikkamuniswamy Reddy. The partition was recorded in writing and registered in Partition Deed dated 30.09.1955.

4. The grandfather of the petitioner and others had made an application for conferring occupancy rights as the said land was classified as inam land. The Deputy Commissioner for Inams Abolition, Bengaluru, vide order dated 19.12.1966 in Case No.1 & 18/1959-60, had directed for registering the applicants as occupants in respect of the land measuring 4 acres 39 guntas and kharab land measuring 10 acres 20 guntas in Survey No.20 of Chinnappanahali Village, K.R.Puram Hobli, Bengaluru East Taluk, under Section 10 of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 (hereinafter referred to as the 'Inams Abolition Act').

5. The revenue records got mutated in the name of the petitioner's grandfather in view of the order dated 19.12.1966 passed by the Special Deputy Commissioner for Inams Abolition, Bengaluru District. The Special Deputy Commissioner initiated proceedings under Section 136(3) of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 'the Land Revenue Act') to examine the revenue records that stood in the name of the father of the petitioner viz., Sri H. Thippa Reddy in respect of the land in Survey No.20 of Chinnappanahali Village, K.R.Puram Hobli, Bengaluru East Taluk. The Special Deputy Commissioner, vide order dated 28.01.2008 passed in RRT(2) CR No.29/2006-2007, held that the entries made in favour of the father of the petitioner and others in the revenue records in respect of the land in Survey No.20 were not based on the Government grant orders. It was further held that the grant made in favour of the petitioner's grandfather was not proper. Consequently, the Special Deputy Commissioner directed the Tahsildar, Bengaluru East Taluk, to resume the land to the Government.

6. The order dated 28.01.2008 passed by the Special Deputy Commissioner in RRT(2) CR No.29/2006-2007 came to be challenged by the petitioner in W.P.No.3069/2008. The learned Single Judge dismissed the said writ petition vide judgment and order dated 20.08.2010.

7. The petitioner filed W.A.Nos.3266-3268/2010 against the order dated 20.08.2010 passed by the learned Single Judge in W.P.No.3069/2008. The Division Bench, after considering the case, had allowed the writ appeals and set aside the order passed by the Special Deputy Commissioner dated 28.01.2008 as well as the order passed by the learned Single Judge dated 20.08.2010, vide its judgment and order dated 27.01.2016 and remanded the matter back to the Special Deputy Commissioner for fresh consideration of the entire issue on hand and to verify the records and pass appropriate orders afresh.

8. On remand, the Special Deputy Commissioner, after examining the records and hearing all the parties, passed the order dated 31.08.2016, whereby the earlier proceedings initiated by the Special Deputy Commissioner in RRT(2) CR No.29/2006-2007 under Section 136(3) of the Karnataka Land Revenue Act were dropped and the grant made in favour of the petitioner's grandfather was confirmed as genuine and valid.

9. This order dated 31.08.2016 passed in RRT(2) CR No.29/2006-2007 by the Special Deputy Commissioner was challenged by one of the family members of the petitioner viz., Smt. H.G. Lakshmi in W.P.No.23931/2017. The learned Single Judge, vide judgment and order dated 26.08.2020, allowed the said writ petition and set aside the order dated 30.08.2016 passed by the Special Deputy Commissioner, North Sub- Division, Bengaluru District in RRT(2) CR No.29/2006-2007 insofar as the petitioner-Smt. H.G. Lakshmi was concerned. The matter was remanded back to the Special Deputy Commissioner and the parties were directed to appear before the Special Deputy Commissioner on 10.09.2020. It was further directed that the Special Deputy Commissioner should consider the case of the petitioner, Smt. H.G.Lakshmi, in accordance with law and in the process, should not re-open the question as to whether the land belonged to the Government or not, if it had already been decided.

10. The learned Single Judge had remanded the matter back to the Special Deputy Commissioner as the Special Deputy Commissioner, before passing the order dated 31.08.2016, did not issue notice to Smt. H.G.Lakshmi and no decision was taken as to whether any extent of property in Survey No.20 of Chinnappanahali Village, K.R.Puram Hobli, Bengaluru East Taluk needed to be mutated in the name of the said petitioner- Smt. H.G. Lakshmi.

11. Smt. H.G. Lakshmi filed contempt petitions in CCC No.132/2021 c/w CCC No.2/2021 alleging violation of the order of status quo contained in the judgment and order dated 26.08.2020 passed in W.P.No.23931/2017 inasmuch as during the pendency of the proceedings before the Special Deputy Commissioner, the accused No.3 therein had entered into a registered deed of family settlement on 02.12.2020 in respect of the land in question and the accused Nos.1 and 2 had passed the order dated 20.01.2021 directing mutation of entries in favour of H. Thippa Reddy and H. Satyanarayana Reddy. It was further alleged that on the basis of the said family settlement, the accused No.3 had entered into Joint Development Agreement (JDA) dated 02.12.2020.

12. The Division Bench, which heard the contempt petitions, took note of the order dated 31.08.2016 passed by the Special Deputy Commissioner, whereby a direction was issued to the Tahsildar East Taluk, Bengaluru to restore the khata in respect of the land bearing Survey No.20 by virtue of MR Nos.35/74- 75, 1/80-81, 2/83-84, 4/89-90, 7/2003-2004 etc. The Division Bench also took note of the fact that Smt. H.G. Lakshmi claimed share in respect of the land measuring 3 acres 5 guntas in Survey No.20. The entire extent of land in Survey No.20 is 21 acres 35 guntas. The aforesaid order dated 31.08.2016 was quashed by the learned Single Judge vide judgment and order dated 26.08.2020 insofar as it pertained to the complainant-Smt. H.G.Lakshmi was concerned as no notice was issued to her by the Special Deputy Commissioner before passing the order.

13. The Division Bench further opined that the order of status quo could not be read in abstract and was required to be read in the context of the prayer made in the writ petition. In the writ petition, the prayer was made for quashment of the order dated 31.08.2016, which was an order pertaining to the entries made in the revenue records. Thus, the order of status quo had to be read in the context of the revenue entries made in the proceedings under Section 136(3) of the Karnataka Land Revenue Act, 1964. In pursuance to the family settlement and the JDA, neither the revenue records were altered nor there was a change in the nature of the property, its character or the topography. The order of mutation dated 20.01.2021 was passed on the basis of the order passed by the Special Deputy Commissioner and not on the basis of the family settlement and therefore, there was no willful disobedience of the judgment and order passed by the learned Single Judge. Accordingly, vide order dated 06.09.2021, the contempt proceedings were dropped with liberty to Smt. H.G. Lakshmi to take action in accordance with law in respect of her grievance, if any.

14. Subsequently, the Special Deputy Commissioner passed another order dated 08.04.2021 stating that the proceedings under Section 136(3) of the Karnataka Land Revenue Act, 1964 were to be dropped and further ordered to continue the revenue entries in respect of the land in question in terms of the earlier order dated 31.08.2016.

15. In the meantime, certain residents of Chinnappanahalli Village submitted a representation dated 26.07.2021 to the authorities stating that the land in Survey No.20 be earmarked for use as a burial ground for the benefit of the villagers. As no decision was taken on their representation, a Public Interest Litigation (PIL) in W.P.No.8649/2022 came to be filed before this Court seeking a direction to the authorities concerned to consider the said representation. This Court, vide order dated 10.06.2022 passed in the said PIL, held that it was for the concerned authorities to decide as to whether there was any requirement of burial ground in the village concerned. However, without expressing any opinion on the merits of the case, the PIL came to be disposed of with the direction that the pending representation should be decided by the Tahsildar, Bengaluru East Taluk, K.R.Puram, Bengaluru or any other competent authority in accordance with law expeditiously.

SUBJECT OF CHALLENGE IN W.P.NO. 8649/2022:

16. The Assistant Director of Land Records (ADLR) had issued the notice dated 30.08.2022 for reserving the B-Kharab land in Survey No.20 measuring 3 acres 27 guntas of Chinnappanahalli Village of K.R.Puram Hobli, Bengaluru East Taluk as one Sri L.Mahesh had filed the PIL in W.P.No.8649/2022 and this Court, vide order dated 10.06.2022, had directed the authorities to take action on the representation dated 26.07.2021 as per law within a period of three months. It was further stated in the notice that spot inspection was carried out by the Deputy Tahsildar and Revenue Inspector jointly in respect of Survey No.20 for earmarking the land for graveyard, for which the survey measurement work was fixed on 06.09.2024. The petitioner and others were directed to remain present on the spot.

17. The said notice came to be challenged by the petitioner in the present W.P.No.18295/2022. The petitioner took the contention that no where in the revenue records, any extent of land was recorded as B-Kharab land. In fact, the entire extent of land in Survey No.20 was granted in favour of the grandfather of the petitioner. If the land was not earmarked as B-Kharab land, the Government cannot change the nature of the land from A-Kharab to B-Kharab.

FINDINGS OF THE WRIT COURT IN THE IMPUGNED JUDGMENT:

18. The learned Single Judge, vide impugned judgment and order, has held that it is undisputed that the land in Survey No.20 was granted in favour of the petitioner's grandfather under the provisions of the Inams Abolition Act. The validity of the grant has already been confirmed by the Special Deputy Commissioner after remand by the Division Bench. The records would clearly show that 4 acres 39 guntas of cultivable land along with 10 acres 20 guntas of kharab land attached thereto forms part of the grant and the petitioner's holding. The kharab land in question is situated within and attached to the cultivable land belonging to the petitioner. In such circumstances, the land ought to be treated as A-Kharab land which forms part of the holder's land. Once the grant has been confirmed and the land formed part of the petitioner's holding, the authorities cannot identify the same as B-Kharab land for burial ground purpose. If the land is required for burial ground, it would be open to the authorities to identify a suitable Government land in some other survey number and thus, allowed the writ petition and set aside the notice dated 30.08.2022 issued by the ADLR and directed the Deputy Commissioner and the Tahsildar to re-classify the land measuring 3 acres 27 guntas in Survey No.20 as A-Kharab land. Further, direction has been issued that the entire kharab land attached to the petitioner's cultivable land be re-classified as A-Kharab land.

SUBMISSIONS ON BEHALF OF THE APPELLANTS:

19. Mr. Mohammed Jaffar Shah, learned Additional Government Advocate appearing for the appellants, has submitted that in pursuance to the direction issued by the Division Bench of this Court in the PIL i.e., W.P.No.8649/2022 vide order dated 10.06.2022, the representation of Sri L.Mahesh dated 26.07.2021 for earmarking the land for burial ground was to be considered and therefore, the notice dated 30.08.2022 was issued by the ADLR. The petitioner has challenged the said notice without there being any final order and therefore, the writ petition itself was not maintainable.

20. Learned Additional Government Advocate has further submitted that both A-Kharab and B-Kharab lands are Government lands. A-Kharab land is attached to the cultivable land, but the ownership remains with the Government whereas, B-Kharab land is earmarked for public purposes. It is submitted that the land in question i.e., Survey No.20 of Chinnappanahali Village, K.R.Puram Hobli, Bengaluru East Taluk, was originally classified as "Sarkari Kharab" in the revenue records. Total extent of land in Survey No.20 is 19 acres 19 guntas. Out of this total land in Survey No.20, occupancy certificate was issued in favour of the petitioner's 4 acres 39 guntas  (cultivable) and 10 acres 20 guntas A-Kharab, total 15 acres 19 guntas. The balance land around 3 acres 27 guntas is 'Sarkari Kharab'. He, therefore, submits that the learned Single Judge ought not to have issued the direction for converting the entire land into A-Kharab land and this direction is wholly unjustified. The High Court cannot direct conversion of the nature of land from B-Kharab to A-Kharab. It is, therefore, submitted that the impugned judgment and order is liable to be set aside.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

21. On the other hand, the learned counsel for the respondent No.1 has submitted that there was no land in the revenue records which was recorded as a B-Kharab land. The petitioner's grandfather was issued occupancy certificate under the provisions of Inams Abolition Act in respect of the entire extent of land in Survey No.20, which would include the cultivable and A-Kharab land. When the land was not earmarked as B-Kharab in the revenue records, the Government has no authority to change the A-Kharab land to B-Kharab land for the purpose of providing the burial ground.

ANALYSIS AND CONCLUSION:

22. We have considered the submissions.

23. The Karnataka Land Revenue Rules, 1966 (hereinafter referred to as 'the 1966 Rules') have been framed in exercise of the powers conferred under Section 197 of the Land Revenue Act. Rule 21 provides for classification of the land for the purpose of assessment of land revenue with respect to their productive qualities. Sub-rule (2) of Rule 21 provides that during the process of classification, the land included as unarable should be treated as 'Pot Kharab land'. The Pot Kharab lands have been classified in two sub-categories:

          (a) that which is unfit for agriculture at the time of survey including the farm buildings or threshing floors of the holder, which is called A-Kharab land; and (b) that which is not assessed because (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) it is used as burial ground or cremation ground; (iv) it is assigned for village potteries.

24. Rule 21 of the 1966 Rules is extracted hereunder:

          "21. Classification.-(1) For the purposes of assessment, all lands shall be classed with respect to their productive qualities. The number of classes and their relative value reckoned in annas (16 annas, i.e., 100 per cent classification value) shall be fixed under the orders of the Commissioner for Survey, Settlement and Land Records with reference to the circumstances of the different tracts of the State to which the Survey extends and to the nature of the cultivation, and the classification results shall be recorded in the following books and forms.-

          (a) Prathi Book;

          (b) Bagayat Taktha;

          (c) Darwari;

          (d) Classer's Register;

          (e) Statement showing bifurcation of soil and water assessment;

          (f) Akarband.

          (2) During the process of classification land included as unarable shall be treated as "Pot Kharab". Pot Kharab lands may be classified as follows.-

          (a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing floors of the holder;

          (b) That which is not assessed because,

          (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; (iv) assigned for village potteries."

25. It is not in dispute that 15 acres 19 guntas of land (4 acres 39 guntas cultivable and 10 acres 20 guntas A-Kharab) in Survey No.20 of Chinnappanahalli Village, K.R.Puram Hobli, Bengaluru East Taluk, was granted to the petitioner in pursuance to the Occupancy Certificate dated 19.12.1966. No land in Survey No.20 had been earmarked as B-Kharab.

26. The occupancy certificate has been issued only for 15 acres 19 guntas of land in Survey No.20. Whether there is more land in Survey No.20 than 15 acres 19 guntas is yet to be determined by undertaking survey with due notice to the petitioner and any other affected person(s). Without conducting the survey to determine the total extent of land in Survey No.20, issuing impugned notice to declare 3 acres 27 guntas of land as B-Kharab to reserve it for burial/cremation ground is unsustainable in law.

27. It may also be noted that if the land has been used as burial ground or cremation ground, it is a B-Kharab land besides if it is reserved or assigned for public purpose or is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes. No land in Survey No.20 has been earmarked for the public purpose, and it has not been assigned for other purposes as mentioned in sub-rule (2)(b) of Rule 21 of the 1966 Rules.

28. We are, therefore, of the view that as none of the factors as mentioned in sub-rule (2)(b) of Rule 21 exist, the said land even otherwise cannot be now earmarked for cremation ground. As the land is not used for burial ground or cremation ground and there exists no tank or stream and it is not occupied by road or recognised footpath, the impugned notice dated 30.08.2022 is unsustainable in law and has been rightly set aside.

29. In view of the aforesaid discussion, we dispose of the writ appeal in the aforesaid terms.

In view of disposal of the writ appeal, pending IAs, if any, do not survive for consideration and accordingly, they stand disposed of.