Sri P.G.C Chengappa-AGA, Advocate for Appellants.
Sri Nagarajappa, Advocate for Respondents.
Sri P.G.C Chengappa-AGA for R1-3
COMMON JUDGMENT/ORDER
Gopalagowda, J.:—
The Appellants in W.A No. 3813/2005 and Petitioner in W.P No. 21221/2005 claim that they are unauthorisedly cultivating land in Sy. No. 32 of Chikkashakuna Village, Soraba Taluk in Shimoga District. They filed applications in Form No. 50 under Section. 94-A of the Karnataka Land Revenue Act 1964, r/w Rule 108-C of the Karnataka Land Revenue Rules 1966, (hereinafter called as ‘KLR Act’ and ‘Rules’ in short) seeking regularisation of their unauthorised occupation of the land, but the Tahsildar issued Notices dated 21-6-2004 calling upon them not to cultivate the land until their applications for regularisation are disposed of. Being aggrieved by the same, they have filed the writ petitions seeking to quash the notices and for a Writ of Mandamus to the authorities to regularise their unauthorised cultivation of the land in question. The writ petition of Appellants in W.A No. 3813/2005 was dismissed by the learned Single Judge on 22-9-2005. The learned Single Judge held that direction cannot be issued to the authorities to regularise the unauthorised cultivation of Gomal land and the authorities were directed to retain the gomal land. The learned Single Judge also directed the Registrar General of this Court to forward a copy of the order to all the Deputy Commissioners in the State. The Secretary to Revenue Department and the Chief Secretary to Government of Karnataka with a direction to ensure follow-up action pursuant to the notices issued. Being aggrieved by the same, the State, the Land Grant Committee and the Tahsildar filed W.A No. 1353/2006 while the unauthorised occupants filed W.A No. 3813/2005 questioning the correctness of the order of the learned Single Judge. Since W.P No. 21221/2005 was not disposed of the same is clubbed along with the two writ appeals.
2. We have heard the learned Counsel for the parties and perused the order of the learned Single Judge. The learned Single Judge extracted the relevant provisions of KLR Act and Rules and declined to grant the reliefs to the writ petitioners.
3. The main grievance of the unauthorised occupants is that the statutory right guaranteed to them to seek regularisation of unauthorised cultivation of the Government Land is deprived of thereby the provisions empowering regularisation of unauthorised occupation have been made redundant or otiose. The learned Addl. Government Advocate Mr. P.G.C Chengappahas submitted that by virtue of the impugned order and the directions issued, the object and purpose of certain provisions of the Act and the Rules have been made nugatory. In the light of these grievances, we now proceed to examine the correctness of the order under challenge in the Writ Appeals and legality of the impugned notices in the Writ Petition.
4. It is no doubt true that certain lands are reserved under Section 71 of the KLR Act for pasturage for village cattle, for forest reserves or any other public purpose. The lands reserved for cattle pasturage are called “Gomal Lands”. The land involved in these cases is a Gomal land. As per Rule 97 of the Rules, the reservation of Gomal land shall be 12 hectares for every 100 cattle, which shall include cow, buffaloes, goats, sheep and calves. This is clear from the Explanation to the said Rule. As per sub-rule (4) of Rule 97, the Deputy Commissioner can either increase or decrease the extent of reservation for this purpose.
5. Under Section 69 of the Act, the lands belonging to the Government can be disposed of for the purposes of agriculture, industry or any public utility. Section 94-A of the Act empowers the Committees constituted thereunder to regularise the unauthorised occupation of lands. Section 94-B of the KLR Act commences with non-abstante clause “notwithstanding anything contained in this Act” and states that if the Deputy Commissioner or other officer atuthorised by the State Government is satisfied, can make recommendations to the Committee for the regularisation of unauthorised occupation of forest lands. Section 94A(4) of the Act gives right to an unauthorised occupant to make an application for regularising his occupation of the Government Land reserved for any of the purposes under Section. 71 of the KLR Act r/w Rule 97 of the Rules.
6. Section 71 of the KLR Act though provides for reservation of lands for pasturage, forestry and other public purposes, enables the Deputy Commissioner to permit use of such land for other purposes also in exercise of his power. A Full Bench of this Court in the decision reported in D.C Ramesh v. State of Karnataka . ILR 2003 KAR 3789. has held that the Deputy Commissioner has got power both to reserve and de-reserve any Government Land.
7. The Constitutional Bench of Apex Court in the case reported in Olga Tellis v. Bombay Municipal Corporation . 1985 3 SCC 545 at paragraph 32 as held as under:
“32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Art. 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right of life includes the right to livelihood. We see only one answer to the question, namely, that it does. The sweep of the right to life conferred by ART. 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaning fullness but it would made life impossible to live. And yet, such deprivation would not have to be in by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what make life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey, (1954) 347 M.D 442 that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. “Life “, as observed by Field, J. in Munn v. Illinois. (1877) 94 US 113 means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of UP., (1964) 1 SCR 332 : (AIR 1963 SC 1295)”.
8. The unauthorised occupants of Government lands are depending upon such lands for themselves and their family members' livelihood, if the same is deprived of, it amounts to infringement of their fundamental right guaranteed under Articles 19(1)(e), (g) and 21 of the Constitution of India. Any action of the State and its officers depriving the livelihood of citizens would be contrary to the law laid down in Olga Tellis case.
9. The order of learned Single Judge is one such which deprives the right of seeking regularisation of unauthorised cultivation and the livelihood of the unauthorised occupants and their family members.
10. Rule 108-C of the Rules provides for filing application for regularisation of unauthorised occupation of land by the unauthorised occupants and it reads as under:
“108 C. Application for Grant of Land:— (1) Any person who is in unauthorised occupation of any land may make an application in writing to the Tahsildar of the Taluk in Form 50 along with a fee of Rupees Two payable by affixing a Court Fee Stamp.
Sub-Rule (2) reads as under:—
(2) Immediately on receipt of application under sub-rule (1), the Tahsildar shall cause the particulars of the application to be entered in a register which shall be in Form 51 kept in his office. He shall, thereafter, place the application before the Committee (or the Additional Committee) after such scrutiny as may be necessary”.
Thereafter, Rule 108-CC prescribes the procedure to be followed by the Tahsildar.
11. Rule 108-D stipulates the procedure to be followed by the Committee constituted under Section 94-A of the Act for the purpose of grant of land by way of regularisation of the unauthorised occupants of Government Land.
12. Rule 108-F prescribes the eligibility. Rule 108-I is very peculiar and in order to understand it better, the same is extracted hereunder:—
“108-I. Certain lands not to be granted:— Notwithstanding anything contained in this chapter, lands assigned for special purposes under Section 71 of the Act, and lands described in revenue records, as Devarakadu, urduve. Gunduthop Tankbed, Phut Karab Kharab halla, datereserve, burial grounds and such lands, which in the opinion of the Government is required for public purpose, shall not be granted:
(Provided that the provisions of this rule shall not apply to lands set-apart for free pasturage under Section 71 of Karnataka Land Revenue Act which will be governed by Rule 97)”.
(Emphasis supplied)
From a plain reading of this rule it is clear that the underlined portion in the Rule categorically states that the lands assigned for special purposes under Section 71 of the Act shall not be granted. Very strangely, the proviso states that “the provisions of this rule shall not apply to lands set-apart for free pasturage under Section 71 of the Act”. Both are conflict with each other. However, the bar created under the Rule pertains to “grant” of land it will not apply to land and it will not apply to regularisation of unauthorised occupation of the land
13. Keeping in view the aforementioned provisions of the KLR Act and Rules, we now proceed to deal with the merits of these cases. The land involved in this case is admittedly Gomal land. The extent required for pasturage of cattle depends upon the population of the cattle in that locality. It is no doubt true that the land in question was reserved for pasturage long back. Due to passage of time and the use of tractors and tillers on account of application of latest technology and mechanism in the agricultural sector farmers gave-up using oxen, buffaloes, goat and sheep rearing to a considerable extent. Peasants experienced the brunt of high expenditure feeding and maintenance of cattle. What was the cattle population when the land in question was reserved for Gomal, is not the same as of now. In place of cattle population, human population occupied to a large extent as its growth has been steadily increased from the time and requirement of land for the purpose of grazing land is considerably reduced.
14. The best person to arrive at a conclusion as to the actual requirement of gomal land depending upon the statistics of present cattle population is the Deputy Commissioner of each District. He has to take a decision whether to retain the entire extent of the land as Gomal or to reduce its extent or even to divert it in case there is no requirement for pasturage. In our view, the learned single Judge has failed to consider these aspects of the matter while passing the order under appeals.
15. We have to say that the learned Addl. Government Advocate has rightly submitted that by issuing the directions in the impugned order, the learned Single Judge has defeated the object and purpose of the provisions relating to regularisation of unauthorised occupation and made those provisions redundant and nugatory. A right given under a statute in favour of unauthorised occupants can neither be taken away nor the provisions made nugatory unless the provisions of Section 94-A, 94-B and 94-C of the Act and Rules referred to supra are declared untra vires or unconstitutional.
16. There is nothing wrong in diverting either a gomal land or any other reserved land for other purposes when there is no sufficient cattle population in that area when there is no requirement of land for free pasturage and the purpose for which the reservation does not exist. As in the past, farmers are not depending upon Government land for feeding their cattle. They are using their own lands or making their own arrangements to feed their cattle. On account of the Government Policy in enacting the provisions of Sections. 94-A, 94-B and 94-C of the KLR Act, increase of population in the State, lack of even distribution of land and other avocation for the residents of villages people out of dire need and necessity for their survival have occupied the reserved lands and have been cultivating to eke out livelihood for them and their family members. The occupation of lands by unauthorised occupants has become inevitable which reality and factual situation has been taken note by the Government, therefore the statutory rights given to the unauthorised occupants cannot be deprived of. They have acquired fundamental right guaranteed under Article 19(1)(e), and (g) of the Constitution. The regularisation of unauthorised occupation of Government lands relates to their livelihood which is again guaranteed under Article 21 of the Constitution of India.
17. Keeping in view the above relevant aspects and on the basis of data collected from the executives of the Department the State Legislature in exercise of its legislative power has enacted the above provisions to discharge its Constitutional obligation. The policy of the State Legislature cannot be interfered with by this Court in exercise of its judicial power. The Constitutional Bench of the Apex Court at paragraphs 255 and 258 in the case of Narmada Bacho Andolan's case . 2000 10 SCC 664 reported in it has held as hereunder:
“255. It is now well-settled that the Courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy making process and the Courts are ill equipped to adjudicate on a policy decision so undertaken. The Court, no doubt has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project is undertaken. Any delay in the execution of the project means over run in costs and the decision to undertake a project, if challenged after it's execution has commenced should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the Court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them”.
“258. While protecting the rights of the utmost care has to be taken that the Court does not transgress its jurisdiction. There is in our Constitutional frame-work a fairly clear demarcation of powers. The Court has come sought to impinge upon the Court's jurisdiction”.
18. As already noticed, the requirement of gomal land is practically vanished. The situation from the stage of reservation for the purpose of pasturage has considerably changed. People started cultivating gomal lands unauthorisedly for themselves and their family members livelihood. Therefore Government must have thought it fit to regularise such unauthorised occupation of such person. For that purpose Section 94-A, 94-B and 94-C in the Act was inserted and Rule 97(4) was framed to the Rules subsequently omitted but again inserted. Consequently, Rules 97(4) and 108-B to EE of the Rules were inserted. These provisions have to be given practical effect to achieve the object and intendment of the KLR Act and Rules. If the order of the learned Single Judge is allowed to continue the provisions will remain only on the statute without practical implementation rendering the provisions redundant and nugatory.
19. The order of the learned Single Judge not only makes the aforementioned provisions of the KLR Act and Rules dilatory but also takes away the statutory rights conferred upon the unauthorised occupants to seek regularisation of their occupation of the government lands. The order impugned in these Appeals also defeats the aim, purpose, object and intendment of the Government to regularise the unauthorised occupation of the occupants in respect of Government lands. Therefore, the order of the learned Single Judge is wholly unsustainable and liable to be set aside.
20. For the reasons stated above, the writ appeals and the writ petition are disposed as under:
i) The Writ Appeals and Writ Petition are allowed;
(ii) The order of the learned Single Judge is set aside;
(iii) The notices impugned in the writ petitions are quashed;
iv) The Deputy Commissioners in the State are directed to identify all the Gomal and other reserved lands, consider whether their extent have to be retained or reduced or totally diverted to other purposes based upon the cattle population and the requirement which the reservation made still exists in the concerned areas;
v) If any gomal land or other reserved lands is not required on the changed circumstances on account of subsequent events, de-reserve the same for consideration of regularisation under Section 94-A, 94-B and 94-C of the Act keeping in view the eligibility of unauthorised occupants for regularisation if their occupation in the respective areas of the State;
vi) Thereafter, the pending applications of unauthorised occupants including the appellants/petitioners in these Appeals shall be considered for regularisation by the respective committee/s. If the Committees and Additional Committees are not constituted, the State Government shall take steps to constitute the same as expeditiously as possible;
vii) It is open for the writ petitioners/appellants to approach the committees to put-forth their claim or grievances, if any, pertaining to regularisation of their unauthorised occupation of the Government lands;
21. The impleading applications are rejected as they are not necessary parties in these proceedings. However, they can approach the committees.