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2025 Supreme(Online)(KAR) 1781
HIGH COURT OF KARNATAKA
MR JUSTICE R DEVDAS, J
sri mohan poojary @ mohan kotian – Appellant
Versus
the deputy commissioner – Respondent
WP 4708 of 2023
A petitioner claiming kumki privileges cannot seek regularization of unauthorized occupation over the same land, emphasizing the need for clear rights before legal remedies.
Headnote:(A) Karnataka Land Revenue Act, 1964 - Section 79(2) - Writ petition concerning occupancy rights and regularization of unauthorized occupation - Petitioner claims kumki privileges over land; Deputy Commissioner granted 2.00 Acres to Taluk Panchayath - Court directed consideration of rights and privileges, emphasizing due process in extinguishing rights. (Paras 1, 2, 9)
(B) Regularization of unauthorized occupation - The court held that the petitioner cannot seek regularization while claiming kumki privileges over the same land, reinforcing the principle that rights must be clearly defined before seeking legal remedies. (Paras 8, 9)
Facts of the case:
The petitioner and family were granted occupancy rights over 6.76 Acres, claiming additional kumki rights over 5.70 Acres. They sought regularization for 3.20 Acres but faced dispossession due to land granted to Taluk Panchayath.
Findings of Court:
The Deputy Commissioner's order was upheld, restricting the grant to 2.00 Acres while allowing the petitioner to retain kumki rights over the remaining land.
Issues: The main issues were the validity of the Deputy Commissioner's order regarding kumki rights and the petitioner's claim for regularization of unauthorized occupation.
Ratio Decidendi: The court ruled that the Deputy Commissioner must consider the rights of the petitioner before extinguishing kumki privileges, and the petitioner cannot seek regularization while claiming those rights.
Result: Writ petition disposed of.
ORAL ORDER
The petitioner and his family members were conferred occupancy rights to an extent of 6.76 Acres in Sy.Nos.71/2G, 79/1A2, 79/2, 4, 6, 7, 8 and 4. However, it is also the contention of the petitioner that an extent of 5.70 Acres of kumki lands are attached to the main land or warg land and the petitioner along with the family members are enjoying the kumki privileges attached to the warg land. The petitioner had also filed an application in terms of Annexure-B, seeking regularisation of unauthorised occupation of 3.20 Acres of land in Sy.No.223, which forms part of the kumki lands. The petitioner is aggrieved of the fact that 2.00 Acres of lands in the said Sy.No.223 have been granted by the Deputy Commissioner for the benefit of newly formed Taluk Panchayath of Moodabidri Taluk. The prayer in the writ petition is to direct the Tahsildar, Moodabidri to consider the application filed by the petitioner at Annexure-B for regularisation of unauthorised occupation and to direct the respondents not to dispossess the petitioner from the schedule property without due process of law.
2. During the course of these proceedings, since it was contended at the hands of the learned Counsel for petitioner that without extinguishing the rights of the petitioner and his family members insofar as the kumki privileges are concerned, the Deputy Commissioner could not have proceeded to allot 2.00 Acres of land in favour of the Taluk Panchayath therefore, this Court had directed the Deputy Commissioner to consider the grievance of the petitioner insofar as the rights and kumki privileges of the petitioner and his family members, and pass orders in terms of Section 79(2) of the Karnataka Land Revenue Act , in the matter of grant and extinguishment of the kumki rights and privileges. The orders passed by the Deputy Commissioner, were found fault with, since no opportunity of hearing was given to the petitioner. Therefore, the matter was once again remanded back to the Deputy Commissioner and finally, the Deputy Commissioner has passed an order on 03.08.2024, which has been filed by the learned HCGP along with the memo dated 05.08.2024.
3. Learned Counsel for the petitioner submits that although the Deputy Commissioner has passed the order having regard to Section 79(2) of the Act, nevertheless, it could be seen that the grant made in favour of the Taluka Panchayath is only 2.00 Acres and therefore, the order passed by the Deputy Commissioner is required to be restricted to the said extent of 2.00 Acres and the petitioner should be permitted to enjoy the kumki rights in respect of the remaining 1.20 Acres of land.
4. Per contra, learned High Court Government Pleader submits that the prayer made in the writ petition is to direct the Tahsildar to consider the application filed by the petitioner under Rule 108 of the Karnataka Land Revenue Rules, 1966, for regularisation of unauthorised occupation of 3.20 Acres of land and therefore, the Deputy Commissioner, in the order dated 03.08.2024 has rightly held that the land in dispute is situated within the heart of the Taluk Panchayath of Moodabidri and is a valuable property and therefore, the same cannot be regularised in favour of petitioner.
5. Moreover, it was pointed out that at the initial stages of these proceedings learned Senior Counsel Sri. I. Tharanath Poojary, appearing for the Taluk Panchayath had placed on record certain information along with the statement of objections that the application filed by the petitioner at Annexure-B was rejected on 26.12.2003 in terms of Annexure-R1. It is pointed out from Annexure-R4 that an endorsement dated 27.02.2023 was issued by the Tahsildar in favour of the petitioner clearly stating that his application at Annexure-B has been rejected by order dated 26.12.2003.
6. The learned High Court Government Pleader would therefore submit that having regard to the prayer made in the writ petition, and having regard to the fact that the application
