The State cannot exercise absolute discretion to develop land for public utility based on a presumption of vesting if there are pending claims for occupancy or title by other parties.

Digitally signed by

VISHAL NINGAPPA PATTIHAL

Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING THIS HON’BLE COURT TO, SET ASIDE THE ORDER PASSED BY THIS HON’BLE COURT IN WRIT PETITION NO.108625 OF 2019 DATED 05/12/2023 AND ALLOW THE WRIT PETITION BY ALLOWING THE PRESENT WRIT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY; AND ETC.

THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)

The appellants, invoking the writ Court's jurisdiction under Article 226 of the Constitution of India in Writ Petition No.108625/2019, have called in question a plausible decision for development of a tank in the lands in Survey Nos.68 and 281 of Vadatti Village, Ballari Taluka [the subject properties]. The writ Court, by the impugned order dated 05.12.2023, has opined that the subject properties vest with the State Government and that it has absolute discretion to deal with the land for the purposes and use of the public. The writ Court’s order in this regard reads as under.

14. The material on record clearly demonstrates that petition land is vested with the State and the State has handed over the petition land to the Gram Panchayath and it is in this background, the office of the Executive Officer, Taluk Panchayath i.e., respondent No.5 has addressed a letter to respondent No.6 as per Annexure-H that the petition land including other lands are intended to be utilized for formation of fresh water reservoir and therefore, a communication is sent to secure coolies to implement the said project under MANREGA scheme. The material on record clearly demonstrates that petition land has stood vested with the Government and therefore, the petition land is at the disposal of the State Government and has absolute discretion to deal with surplus land in the interest of public at large. Therefore, the grounds urged in the writ petition cannot be entertained.

Mr. Mrutyunjaya Hallikeri, the learned counsel for the appellants, submits that the writ Court's opinion is based on the order dated 25.08.1994 in the proceedings No.34/91-92. In elaboration, the learned counsel submits that the Land Tribunal, by its order dated 25.08.1994, has recorded that the appellants’ predecessors’-in-interest have stated that they have no documents to show their claim for the grant of occupancy rights under the Karnataka Certain Inams Abolition Act, 1977 [for short the ‘Inams Abolition Act’]. The learned counsel emphasizes the following.

[a] The appellants’ claim for a grant of occupancy rights is being tossed between the Land Tribunal and the authority under the Inams Abolition Act.

[b] The Land Tribunal, on 25.08.1994, has recorded that the lands are personal inam lands and it has no jurisdiction, and therefore transferred the matter to the Authority under the Inams Abolition Act.

[c] This Authority [the Tahsildar], without verification of records and incorrectly recording, has sent back the records for decision on a purported claim for tenancy.

[d] The appellants have produced copies of the applications filed under Form 1A of the Karnataka Certain Inams Abolition Rules, 1979 [for short the ‘Rules] that are still pending consideration.

The learned counsel canvasses that no action can be taken for the development of a tank or any other public utility until the appellants’ application in Form 1A under the Inams Abolition Act / Rules is decided.

As against these submissions, Sri Keshav Reddy, learned Additional Advocate General, invites this Court's attention to the application filed by certain third parties asserting asserting that these applicants have been granted the subject property under Section 77 of the Karnataka Land Reforms Act, 196