Allowed

Shivappa S/O. Prabhappa Mugalolli v. the General Manager

Karnataka HC7 Mar 2023WP/106515/2015

Case brief

AI extract

What is this about?

Lands acquired for the Upper Krishna Project included portions classified as phot kharab, for which compensation was refused on the ground that such land vested in the State. The High Court held that phot kharab land, whether under Rule 21(2)(a) or Rule 21(2)(b), remains the owner's land, quashed the endorsements and directed payment of compensation.

What did the court decide?

Impugned endorsements quashed; Land Acquisition Officer directed to determine and pay compensation for the phot kharab portion of the petitioners' survey numbers within three months.

Shivappa S/O. Prabhappa Mugalolli Vs the General Manager — Land Acquisition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 7^TH DAY OF MARCH 2023

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BEFORE

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THE HON'BLE MR JUSTICE N.S. SANJAY GOWDA

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WRIT PETITION NO. 106515/2015 (LA-RES)

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c/w.

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WRIT PETITION NO. 106514/2015 (LA-RES) WRIT PETITION NO. 106516/2015 (LA-RES)

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IN W.P.NO.106515/2015:

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BETWEEN

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SHIVAPPA S/O.PRABHAPPA MUGALOLLI, AGE-47 YEARS, OCC-AGRICULTURE, R/O.HONNIHAL, TAL-BILAGI, DIST.-DHARWAD.

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….. PETITIONER

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(BY SRI MAHANTESH PATIL, ADVOCATE)

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AND:

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ANNAPURNA CHINNAPPA DANDAGAL

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Digitally signed byANNAPURNACHINNAPPADANDAGALLocation: HIGHCOURTOF KARNATAKA-DHARWAD BENCHDate: 2023.04.0112:05:15 +0530

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THE GENERAL MANAGER, UPPER KRISHNA PROJECT, NAV-NAGAR, BAGALKOT, TAL. AND DIST.-BAGALKOT.

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THE SPECIAL DEPUTY COMMISSIONER, UPPER KRISHNA PROJECT, NAV-NAGAR, BAGALKOT, TALUK AND DISTRICT-BAGALKOT.

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1 - 1(a)

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THE SPECIAL LAND ACQUISITION OFFICER, UKP, BILAGI, TALUK-BILAGI, DISTRICT-BAGALKOT.

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……RESPONDENTS

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(BY SRI SHIVAPRABHU HIREMATH, AGA FOR RESPONDENTS)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR DIRECTION AND QUASH THE ORDER DATED 26.12.2014 PASSED BY THE RESPONDENT NO.3 IN WP.NO.83707/2013/286, PRODUCED AT ANNEXURE-D AND DIRECT THE RESPONDENTS TO PASS SUPPLEMENTARY AWARD ALONG WITH ALL STATUTORY BENEFITS TO THE PHUTKHARAB LAND MEASURING 16 GUNTAS OF THE LAND BEARING ITS SY.NO.50/3.

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IN W.P.NO.106514/2015 BETWEEN

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LINGANAGOUDA,

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S/O. NEELAPPAGOUDA KARIGOUDAR, AGE: 45 YEARS,OCC: AGRICULTURE, R/O. HONNIHAL, TQ: BILAGI, DIST: DHARWAD.

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...PETITIONER

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(BY SRI S.S. PATIL AND SRI MAHANTESH PATIL, ADVOCATES)

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AND

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THE GENERAL MANAGER, UPPER KRISHNA PROJECT, NAV NAGAR, BAGALKOT, TALUK AND DIST: BAGALKOT.

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THE SPECIAL DEPUTY COMMISSIONER, UPPER KRISHNA PROJECT, NAV NAGAR, BAGALKOT, TQ. AND DIST: BAGALKOT.

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THE SPECIAL LAND ACQUISITION OFFICER, UPPER KRISHNA PROJECT, TQ: BILAGI ANDDIST: BAGALKOT.

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…RESPONDENTS

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(BY SRI SHIVAPRABHU HIREMATH, AGA FOR RESPONDENTS)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THENATURE OF CERTIORARI OR ANY OTHER WRIT OR DIRECTION AND QUASH THE ORDER DATED 26.12.2014 PASSED BY THE RESPONDENT NO.3 IN WP.NO.83752/2013/287 PRODUCED AT ANNEXURE-D AND DIRECT THE RESPONDENTS TO PASS SUPPLEMENTARY AWARD ALONGWITH ALL STATUTORY BENEFITS TO THE PHUT-KHARAB LAND MEASURING 16 GUNTAS OF THE LAND BEARING ITS SY.NO.50/2.

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IN WP.NO.106516/2015 BETWEEN

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SHIVAPPA S/O. PRABHAPPA MUGALOLLI, AGE: 67 YEARS,OCC: AGRICULTURE R/O. HONNIHAL, TQ: BILAGI DIST: BAGALKOT,

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PRABHU S/O. SHIVAPPA MUGALOLLI, AGE: 47 YEARS, OCC: AGRICULTURE, R/O. HONNIHAL, TQ: BILAGI DIST: BAGALKOT.

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...PETITIONERS (BY SRI S.S. PATIL AND SRI MAHANTESH PATIL, ADVOCATES)

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AND

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THE GENERAL MANAGER, UPPER KRISHNA PROJECT, NAV NAGAR, BAGALKOT, DIST: BAGALKOT.

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THE SPECIAL DEPUTY COMMISSIONER, UPPER KRISHNA PROJECT, NAV NAGAR, BAGALKOT, TQ. ANDDIST: BAGALKOT.

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THE SPECIAL LAND ACQUISITION OFFICER, UPPER KRISHNA PROJECT, TQ: BILAGI ANDDIST: BAGALKOT.

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…RESPONDENTS

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(BY SRI SHIVAPRABHU HIREMATH, AGA FOR RESPONDENTS)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TOISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR DIRECTION AND QUASH THE ORDER DATED 26.12.2014 PASSED BY THE RESPONDENT NO.3 IN NO. WP NO:84080/2013/288 PRODUCED AT ANNEXURE-D AND DIRECT THE RESPONDENTS TO PASS SUPPLEMENTARY AWARD ALONGWITH ALL STATUTORY BENEFITS TO THE PHOT-KHARAB LAND MEASURING 16 GUNTAS OF THE LAND BEARING ITS SY.NO.50/1P.

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THESE WRIT PETITIONS, HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Since common questions of law and fact are involved

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in these writ petitions, they are clubbed together and are disposed off by this common order.

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In these writ petitions, the issue to be decided is whether the lands, which are classified as phot kharab lands, (also referred to as ‘Pot’/ ‘Phut’) are owned by

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the Hiduvalidararu or by the State.

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The facts are rather simple.

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In the year 1995-96, the lands belonging to the petitioners were to be submerged due to the execution of the Upper Krishna Project and were hence notified for acquisition. An award was also passed in respect of the lands determining the compensation, to which the petitioners were entitled. However, while determining the compensation payable, the Special Land Acquisition Officer (‘SLAO’ for short) did not award any compensation to that

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portion of the land, which had been classified as phot kharab .

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As the claim made by the petitioners remained unconsidered, writ petitions were filed. This Court issued a direction to the SLAO to consider the claim of the petitioners and thereupon the SLAO considered the claims and issued the impugned endorsements.

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The impugned endorsements state that the petitioners would not be entitled to compensation in respect of the lands classified as phot kharab since they had not been granted the lands which had been classified as ‘A’ kharab lands prior to the issuance of the preliminary notification issued under Section 4(1) of the Land Acquisition Act, 1894 (herein after referred to as ‘the Act’).

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Consequently, the petitioners are before this Court challenging the endorsements, contending that they are entitled to the award of compensation in respect of that portion of the lands which have been classified as Phot

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Kharab lands and there was no need for such lands to be granted to them by the competent authority.

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It is their fundamental contention that they are the owners of the entire lands and a mere classification of the lands made by the authorities for the purposes of collecting revenue cannot be the criteria for determination of the ownership of the lands and the consequential denial of compensation.

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The State, on the other hand, contends that since it has not collected the revenue for a portion of land as the land could not be cultivated, in law, it was the land belonging to the State and unless that portion which had been classified as ‘A’ Kharab had been granted by the competent authority before the issuance of the 4(1) Notification, no compensation was liable to be paid.

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It is also contended that the lands which were reserved for the use of persons of the community either collectively or individually and the owner of the lands was

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excluded from exercising his right over the said portion by classifying them as ‘B’ kharab lands, as they were Government lands and in respect of these ‘B’ Kharab lands, no compensation was required to be paid.

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It is essentially contended that the property classified

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as phot kharab belonged to the State and therefore, compensation was not required to be paid.

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The principal question, therefore, that will have to be

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considered is which of the lands vest in the State under the provisions of the Karnataka Land Revenue

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Act, 1964 and whether the lands classified as Phot Kharab would also vest in the State, especially those

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which were classified as ‘B’ Kharab land.

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The State seeks to rely upon the following decisions rendered to support its stand:

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a	*R.HANUMAIAH* *AND* *ANOTHER*	*Vs.*
	*SECRETARY* TO *GOVERNMENT*	OF
	*KARNATAKA, REVENUE DEPARTMENT*	*AND*
	*OTHERS, (2010) 5 SCC 203*

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b	*SIDRAMAPPA SHIVAPPA BIRAKABBI Vs.*
	*GOVERNMENT* OF *KARNATAKA,* W.A. Nos.50107 & 50128-154 of 2013
C	*SADASHIVAIAH AND OTHERS Vs. STATE* *OF KARNATAKA AND OTHERS,* ILR 2003 Karnataka 5088
d	*L.A* *KRISHNAPPA* *Vs.* *STATE* OF *KARNATAKA AND Ors.* *ILR 2009 KARNATAKA 938*
E	*YAMANAPPA* *RAMAPPA* *GOUDAR* *AND* *OTHERS Vs. STATE OF KARNATAKA AND* *OTHERS,2014 SCC ONLINE KAR 1271*
F	*G.R.* *VIJAYLAKSHMI* *AND* *Ors.* *Vs.* *STATE OF KARNATAKA AND Ors.* *2016 (5) Kar LJ 239*
G	*VISHWANATH AND OTHERS Vs. THE STATE* *OF KARNATAKA AND OTHERS,*
	W.P. 201287/2002 DD 22.06.2022 (which relies on the decision rendered in ILR 2003 Karnataka 5088)

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14. According to the State, these decisions support

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their contention that the lands which are classified as ‘B’ Kharab lands are Government Lands.

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15. There are also the following decisions, which have

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been rendered by this Court in the context of Kharab Land :

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a	*P.BHIMACHAR Vs. STATE OF MYSORE* *OTHERS.*	*AND*
	*1966 (2) Mys LJ 184*
B	*SAUDAGAR RASUL KHAN Vs.* *STATE OF MYSOREBY ITS CHIEF SECRET* *VIDHANA* *SOUDHA,* *BANGALORE,* *OTHERS.*	*ARY,* *AND*
	*ILR 1973 KAR 56*
C	*THE STATE OF KARNATAKA AND OTHER* *ISTAK* *AHMAD MOHAMMAD* *SAHEB*	*S Vs.* *AND*
	*OTHERS, ILR 2016 KAR 98*

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The Division Bench of this Court in Writ Appeal No.50107 of 2013 has approved the decision of Sadasivaiah (which has also been relied upon in the other decisions stated above). The Division Bench has stated as follows:

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“…..The words ‘phut’ Kharab and ‘pot’ kharab mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation. Every Pot kharab land does not belong to Government. For the purpose of assessment, the uncultivable portion of the land or phut kharab portion of the land is excluded from consideration on the ground that it is cultivable. If the land falls within the category of 21(2)(a) it is not a Government land, it belong to the ownership of the petitioners. If it falls under 21(2)(b) then it belongs to the Government and petitioners cannot have a claim over the said land.

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Therefore, the Land Acquisition Officer will have to hold enquiry as to whether the Kharab land falls within Rule 21(2)(b) or 21(2)(a) of the Rules. The Land Acquisition Officers cannot assume that all phut (kharab) lands fall within Rule 21(2)(b) of the Rules and therefore, the land losers have no claim over such lands and consequently, they are not entitled to any compensation.

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The aforementioned dictum is laid down in the following catena of judgments of this Court:

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SADASHIVAIAH AND OTHERS VS. STATE OF KARNATAKA AND OTHERS reported in LAWS(KAR)2003-8-76 ILR 2003 KAR 5088

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Ramanna Ryavanna Kallimani and others vs. Special Land Acquisition Officer and another (W.P. No.18451/2007 [LA-RES])

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Gurubai Gurusiddappa Balashetty and others vs. Special Land Acquisition Officer and another (W.P.No.20029/2005 [LA-RES])

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The judgment in SADASHIVAIAH’S case (cited supra ) is followed by this Court in catena of judgments subsequently.”

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17. The Division Bench and the other decisions, referred

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to above and relied upon by the State, no doubt, state the lands which are classified as ‘B’ Kharab lands under Rule 21(2)(b) of the Karnataka land Revenue Rules, 1966 (for short ‘the Rules’) belongs to the Government. But it will also be relevant to notice the other decisions, including the decision rendered by the Division Bench of this Court.

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In the decision rendered in the case of The State of Karnataka and others vs. Istak Ahmad Mohammadsaheb and others, ILR 2016 KAR 98, a

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Division Bench of this Court has stated that in respect of the lands classified under Rule 21(2)(a) of the Rules, the ownership of the lands would continue with the owner. In respect of lands classified under Rule 21(2)(b) of the Rules, it has stated that those lands would be utilised for a public purpose and no individual would have any claim over the same and it would be used for the purposes such as, road, footpath, a tank, stream or burial ground or cremation ground or for village potteries.

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It may be noticed here that the Division Bench in this decision, though has stated that no individual could lay a claim on these lands, it has however not stated that such lands would be Government lands.

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A Division Bench of this Court in the case of P. Bhimachar vs. State of Mysore reported in 1966 (2) Mys LJ 184 has stated as follows:

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“It is obvious that the Tahsildar did not correctly understand the expression ‘phut kharab’. A land is described as kharab land when it is unfit for cultivation. In Volume I of the

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Mysore Revenue Manual the word kharab is explained in that way. The expression ‘phut kharab’ is similar to the expression ‘pot kharab’. That is so, is clear from the Mysore Revenue Survey Manual where at page 68 the words ‘pot kharab’ land is defined thus:

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“(13). Pot-kharab means a piece or pieces of land classed as unarable and included in a survey number.”

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The description has no relevance to ownership and if Survey No.23 belonged to the petitioner as stated by the Tahsildar, that part of it which is described as phut kharab is also included in such ownership.”

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This decision, therefore, clearly states that if a Survey number belonged to a person, that part of the land which is classified as Phot Kharab would also be included in his ownership.

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A single judge of this Court in the case of Saudagar Rasul Khan vs. State of Mysore reported in ILR 1973 KAR 56 has stated as follows:

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“6. It was also suggested for the first time in this court that because the Revenue Rules permit the owner of the adjacent cultivable land to bring the kharab land belonging to the Government under cultivation, one should presume that when the cultivable land is sold,

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some sort of title in respect of the adjacent position. Kharab land is so called because it is not cultivable and is a classification made for purposes of revenue exemption. Kharab land is also capable of ownership, and cannot be regarded as an adjunct to cultivable land which gets transferred along with the cultivable land. Acquisition of title to the Kharab land is similar to the acquisition of title to the cultivable land.”

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Thus, even according to this decision Kharab land is capable of ownership and acquisition of title to Kharab land was similar to acquisition of title to cultivable land.

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In the light of these decisions regarding title or ownership of land, it would be necessary to refer to the following decisions of the Apex Court which explain the concept and extent of ownership that a person possesses over a land.

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The Apex Court in the case of R.Hanumaiah and another vs. Secretary to Government Of Karnataka, Revenue Department and others reported in (2010) 5 SCC 203, while dealing with the claim that the plaintiffs

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had title over a tank in a Survey number, stated as follows:

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“7. The appellants claimed title, and possession based on title. The revenue records, in particular Exts.D-4, D-7 to D-12, show the two survey numbers as “government tank” and “government barren land”. The names of the appellants are not entered as owners in the revenue records. Though several documents have been marked by the parties, the entire case of the appellants in regard to title depends upon the documents Exts.P-1, P-2, P-10, P-11, P-12 and P- 18. While the trial court held that these documents established the title of the appellants and consequently, they were entitled to possession, the High court on re-examination and re-appreciation of the evidence, in particular, the said documents held that the appellants did not make out any title nor possession in regard to the suit properties. Therefore, the only question that arises for our consideration is whether Exts. P-1, P-2, P-10, P-11, P-12 and P-18 establish the appellants’ title to suit properties and whether the High Court committed an error in law in rejecting the said documents. In view of it, we will briefly analyze each of these documents.

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Re.Ext.P-18

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Ext.P-18 is an extract of the register maintained by the Public Works Department, showing the details of tanks in Bangalore Division. The said extract is in respect of Serial No.279 from the said register relating to a tank described as Maistry Kere or Maistry Palyada Kere in Jakkasandra Village the extent of the water body being 11 acres. The name of the tank is followed by the word “private” in the register and gives particulars of the achkat area of the tank (that is area of land irrigated by the said tank) in the year 1906-1907. The appellants contend that the description of the tank as “private” in the tank register would demonstrate that the tank did not belong to the Government and that it was privately owned. The High court however held that the mere use of the word “private” after the description of the tank, will not establish the appellants’ title or possession in regard to Survey No.30.

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The appellants relied on paras 236(b) and 376 of the Mysore Revenue Manual in support of their contention that private tanks existed in the State of Mysore and that the State Government recognized the natural right of private individuals to construct and own tanks. The appellants contended that when the records maintained by

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the Government in the usual course of business, showed a particular tank as `private', it was a clear admission that the tank was not a government tank but was privately owned. We may refer to the provisions of the Mysore Revenue Manual relied on by the appellants. Section IV thereof related to "Private enterprise tanks". Para 236(b) stated that there were about 318 private enterprise tanks in the State. Para 376 of the Manual deals with construction of Saguvali Kattes (irrigation tanks) by the landholders, the relevant extract of which is extracted below:

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"376 (1). The right of land-holders to construct "Saguvali Kattes" on their own lands is not affected by :-

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(a) Section XX, Paragraph 13 of the Rules of 1890 under the Land Revenue code, which relates to the construction of private tanks on Government unoccupied land: or

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(b) Appendix F to the said Rules, which relates to the restoration by private individuals of Government tanks and wells long in disuse.

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(2) Private individuals have the natural right to construct tanks on their own lands (Kandayam or Inam), so long as they do not thereby materially diminish the water flowing in defined channels through their lands for the benefit of Government works and private proprietors lower down such channels.”

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A careful reading of para 376 of the Manual shows that a private tank can be constructed by a private individual, either in his own land or on Government unoccupied land. It also shows that private individuals may restore Government tanks. Therefore it follows that when a tank is described as private' in the tank register, that by itself will not establish that the land where the tank is situated is private land. To put it differently, when a tank enumerated in the Tank register maintained by the government, adds to the description of the tank, by the word private', it merely shows that the tank in question had been constructed by a private individual but it does not lead to the inference that the land on which the tank is constructed belonged to a private individual.

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Para 236 shows that a private land on being converted into a private tank would not get full exemption or remission from payment of land assessment, but was extended only a partial remission. In fact, if a tank was constructed on a private land, the land would be continued to be assessed to land revenue with appropriate partial remission. On the other hand, if it is a Government unoccupied land on which a private individual is permitted to construct the tank, it will continue to be shown as Government kharab

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land and will not be subjected to any land revenue.”

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As could be seen from this passage, even if a private land is converted into a private tank, the tank would not get a full exemption or remission from payment of assessment. This would thus indicate that even if a tank was constructed on a private land, it would still construed to be a private land and it would be subjected to assessment. In other words, even if a tank is constructed by the landowner in his private land, it would continue to be his private land and he would still be liable to pay revenue.

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It is stated that only if a Tank had been constructed on an unoccupied Government land, the land would be treated as a Government Kharab land and be exempted from payment of land revenue.

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Thus, there is a clear distinction drawn by the Apex Court about the ownership of a land even if a tank has been constructed on it. If the tank has been constructed

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on Government Land, even if by an individual, the land would continue to be Government land and if a tank had been constructed by an individual on his private land, it would be his private land and his liability to pay revenue would still continue albeit on a reduced assessment.

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In this regard, a Bench of four Judges of the Hon’ble Supreme Court in the case of The Anant Mills Co. Ltd. Vs. State of Gujarat and ors., (1975) 2 SCC 175 , while considering the question as to whether the State had the competence to levy tax on lands and buildings on only the surface of the lands and not on the underground strata, has explained the extent of ownership of a person over land, which would be relevant. The relevant portion reads as follows:

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“44. ….The word “land”, which is nomen generalissimum, includes not only the face of the earth, but has in its legal signification an indefinite extent upward and downward, giving rise to the maxim, “Cujusest solum ejus est usque and coelum” . Whatever is in a direct line between the surface and the centre of the

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earth by the common law belongs to the owner of the surface (not merely the surface, but all the land down to the centre of the earth and up to the heavens) and hence the word "land" which is nomen generalissimum, includes, not only the face of the earth, but everything under it or over it.”

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In view of this definition, an owner of the land owns not only the surface of the land but all the land down to the center of the earth.

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The Apex Court in the case of Thressiamma Jacob

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– (2013) 9 SCC 725 has also stated as follows:

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“14. Before we examine the correctness of the judgment under appeal, we deem it necessary to take note of the legal position regarding the rights over minerals as they obtain in England. Halsbury’s Laws of England states the legal position:

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“ 15. Meaning of ‘land’ and cognate terms.- Prima facie ‘land’ or ‘lands’ includes everything on or under the surface, although this meaning has in some cases been held to have been restricted by the context . ‘Soil’ is apt to denote the surface and everything above and below it, but similarly its meaning may be restricted by the context so as to exclude the mines. ‘Subsoil’ includes everything from the surface to the centre of the earth….

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Presumption arising from surface ownership.- Mines, quarries and minerals in their original position are part and parcel of the land. Consequently, the owner of surface land is entitled prima facie to everything beneath or within it, down to the centre of the earth. This principle applies even where title to the surface has been acquired by prescription, but it is subject to exceptions; thus, at common law, mines of gold and silver belong to the Crown, and by statue unworked coal which was, at the restructuring date, vested in the British Coal Corporation is vested in the Coal Authority. Any minerals removed from land under a compulsory rights order or open cast working of coal become the property of the person entitled to the rights conferred by the order. The property in petroleum existing in its natural condition in strata is also vested by statute in the Crown.”

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Thus, according to the decisions rendered by the Apex court, the owner of the land owns not only the entire surface area but also all the land right down to the centre of the earth. In the light of this declaration of law by a Four Judge decision of the Apex court and the two Division Benches of the Apex Court, it will have to be held that the owner of a land owns the entire surface area of the land and also all that lies beneath it, right up to the centre of the earth.

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As these three decisions of the Apex Court, lay down

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the proposition of law as regards the extent of ownership of lands by a person, these would have to be followed and applied. From this declaration of law, it is rather clear that classifying all lands, which are fit for cultivation or being unfit for cultivation do not determine the ownership of the land.

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The ownership of land would therefore have to be considered from this perspective and it would have to be examined whether the lands classified as Phut Kharab would vest in the individual, who owns the land or the State, which assesses the land to land revenue.

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For this, it would be useful to consider the provisions relating to Land and Land Revenue right from 1888 till the present enactment.

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The Mysore Land Revenue Code (hereinafter referred to as ‘the Code’) was enacted in 1888 to consolidate and

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amend the law relating to Revenue officers and to the assessment and recover of Land Revenue.

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Section 36¹ of the Code declared that all lands wherever situate, which are not the property of individuals, or of aggregates of individuals legally capable of holding property, and except insofar as any rights of such individuals which may be established in or over the same was the property of the Government and the Deputy Commissioner was empowered to dispose of the same, subject to the orders of the Government.

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Section 39 of the Code empowered the Deputy Commissioner to set apart the land, which was the property of the Government for any public purpose and the Deputy Commissioner while disposing of the land under Section 36 of the Code was required to take into

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1 “36. All public roads and all lands which are not the property of others belong to Government.— All public roads, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, bed of rivers, streams, nallas, lakes, and tanks, and all canals, and water-courses and all standing and flowing water and all lands wherever situated, which are not the property of individuals, or of aggregates of individuals legally capable of holding property, and except in so far as any rights of such individuals may be established in or over the same, and except as may be otherwise provided in any law for the time being in force, are and are hereby declared to be, with all rights in or over the same, or appertaining thereto, the property of Government; and it shall be authorized by government, subject always to the rights of way, and all other rights of the public or individuals legally subsisting.”

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consideration the assignment that had been made under Section 39.

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Thus, historically also, it was only that land which did not belong to an individual or a group of individuals, was declared to be the property of the Government.

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Sections 45 to 57 of the Code provide for provisions relating to Land Revenue. Section 45, 48 and 59 of the Code would be relevant for this case.

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Section 45² of the Code stated that all land, whether

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it is applied for agricultural or other purposes and no matter where it is situated would be liable for payment of land revenue according to the Rules framed. Lands which were exempted under a special contract or by any law would not however be liable for payment of land revenue.

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2 “45. All land liable to pay revenue unless specially exempted: All land, whether applied to agricultural or other purposes, and wherever situate, is liable to the payment of land revenue to Government according to the rules herein after enacted, except such as may be wholly exempted under the provisions of any special contract with the Government or any law for the time being in force.”

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42. Section 48³ of the Code stated that the land revenue

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leviable under the Act would be chargeable upon the land:

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a. which is appropriated for the purposes of agriculture.

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b. land from which a profit or advantage other than from agriculture is derived; and

¶176

c. upon land which has been appropriated for building sites.

¶177

It also stated that the assessment fixed could be

¶178

altered on the land if the land was used for any other purpose and it also stipulated that if any land was held

¶179

3 “48. Land revenue upon what descriptions of land chargeable: The land revenue leviable under the provisions of the Regulation shall be chargeable-

¶180

(a) upon land appropriated for purposes of agriculture.

¶181

(b) upon land from which any other profit or advantage than that ordinarily acquired by agriculture is derived.

¶182

¶183

Assessment subject to variation if purpose for which land is held is changed: And the assessment fixed under the provisions of this Regulation upon any land appropriated for any one of the above purposes shall be liable to be altered and fixed at a different rate, when such land is appropriated for any other purpose, notwithstanding that the tem, if any, for which such assessment was fixed may not have expired.

¶184

Land held rent-free for one purpose liable to assessment if used for another purpose: When any land which is situated in an unalienated village, or which, being situated in an alienated village, is excluded from the assets thereof, has been allowed by Government to be held free of assessment or on a reduced assessment on condition of its being appropriated to one purpose, it shall become liable to be charged with full assessment, if at any time it ceases to be appropriated for such purpose.

¶185

Appropriation of land to certain purposes may be prohibited: It shall also be lawful for the deputy commissioner or for a Survey officer, subject to rules or orders made in this behalf under Section 233, to prohibit the appropriation of any unalienated land liable to the payment of land revenue for certain purposes, and to summarily evict any holder who may appropriate, or attempt to appropriate, the same to such prohibited purposes.”

¶186

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¶187

rent-free or for a reduced assessment and was permitted to be used for one purpose but was used for another purpose, then, the land would be assessed for that purpose. In respect of un-alienated lands, it also empowered the Deputy Commissioner to prohibit the appropriation of land and also summarily evict any holder when such an attempt was made.

¶188

Thus, essentially, all lands were liable to assessment and for payment of land revenue as prescribed under the Rules framed, unless they were specifically exempted from payment of land revenue. These provisions basically indicate that the State had the power to subject all lands to assessment irrespective of the use that the land was put to.

¶189

Chapter VI of the Code dealt with the occupation of unalienated land and the rights of the occupants. Section 58 of the Code stated that any person who was desirous of taking up unoccupied land which had not been alienated

¶190

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¶191

should take the written permission of the Amildar as provided under the Rules made in that behalf.

¶192

Section 59 of the Code states that if any person had unauthorisedly occupied any land set apart for a special purpose or any unoccupied and unalienated land, he would be required to pay the assessment of the entire survey number even if he had occupied only a portion of the survey number. This would be apart from the liability of a fine and also a possible eviction from the unauthorisedly occupied land.

¶193

Thus, even in respect of unauthorised occupation, the holder was required to pay the assessment for the entire Survey number, and this essentially indicated that the primary objective of the Land Revenue Code was to ensure revenue to the State from the owner or occupant of the land for the use of his land. It is to be borne in mind that the Code was not enacted to appropriate the land of an individual and its primary objective was only to enable the State to regulate the collection of land revenue.

¶194

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¶195

48. Rule XVI of the Rules as originally framed under the Land revenue Code 1888 read as follows:

¶196

“ XVI. Phot Kharab: In the Survey Registers a deduction is made in some fields on account of barren land (Phot Kharab) and the assessment placed on the arable land alone. In the event of any portion of the land so deducted being brought under cultivation, no extra assessment need be levied on that account. This rule however does not confer permission to obstruct roads channels, and right of way generally.

¶197

Occupant may remove earth, stone, & c., from his own land: An occupant of land may remove from the land occupied by him for agriculture, earth, stone, kankar and muram, or any other material of the soil thereof for his own purposes, but not so as to render the land unfit for agriculture.”

¶198

As could be seen from the above Rule, a deduction

¶199

was required to be made in the fields on account of the barren land, also called as Phot Kharab, and the assessment was required to be made only on the arable land. This thus indicates that if a land was barren, the

¶200

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¶201

owner became entitled to a deduction in the Survey registers, obviously because he was unable to derive any income from it.

¶202

The Rule also stipulated that if that land which ensured a deduction was brought under cultivation, no extra assessment could be levied because it was brought under cultivation and an income could be derived from it.

¶203

The Rule also clarified that this would amount to a permission being conferred to enable the owner to obstruct roads, channels and right of way.

¶204

The Rules framed thereby indicated that the ownership of the lands, which could not be put to use because of its barren nature, would still nevertheless vest with the owner and he was only entitled to a deduction because of the barren nature of the land. The fact that no assessment was leviable even if he were to make the land cultivable only confirms the fact that ownership of the entire survey number always vested with the State.

¶205

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¶206

The Rules framed under the 1888 Code were also amended and even after the amendments, this position did not change in any material way.

¶207

After amendment, the relevant Rule 27 read as follows:

¶208

“27. Cultivation of phut kharab and cases in which such cultivation is prohibited:- Land included as unarable in a survey number assessed for purposes of agriculture only may, ordinarily, be brought under cultivation without extra charge by the occupant of such number, or by anyone claiming under him, but such cultivation is prohibited in the following cases, viz.,-

¶209

(a) when the land is occupied by a road, pathway or channel or by a tank used for irrigation or for drinking or domestic purposes.

¶210

(b) when the land is used as a burial ground; and

¶211

¶212

Provided that this prohibition shall not apply in the case of tank, when such tank is used for irrigation only and waters only the land which is in the sole occupation of the occupant, or when

¶213

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¶214

the privilege of cultivating the dry bed of the tank has been specially conceded to the occupant.”

¶215

As could be seen from this Rule, land included in a Survey number as an unarable land could still be brought under cultivation and even if it was so brought under cultivation, the State did not get a right to levy land revenue on it. The Rule only placed restriction to bring an unarable land under cultivation in three situations:

¶216

Firstly, if the land was occupied by a road, pathway or by a tank which was used for irrigation or for drinking purposes.

¶217

Secondly, if the land was being used as a burial ground; and

¶218

Thirdly, when the land was assigned for the use of village potters or any other public purpose.

¶219

In fact, in cases of a tank or cultivating the dry bed of the tank, if the tank was used only for irrigating land which was under the sole occupation of the occupant, the

¶220

restriction to bring it under cultivation was lifted.

¶221

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¶222

The common thread that can be discerned from this

¶223

Rule is that the right of the owner to cultivate his land was restricted because of the fact that a portion was used for either the benefit of the community or by a section of the community. The Rule merely imposed a prohibition on the right to cultivate and it did not either directly or indirectly appropriate the little of the land in favour of the State.

¶224

In the year 1964, The Land Revenue Code, 1888 was replaced by the Karnataka Land Revenue Act, 1964. This Act, despite the repeal of 1888 Code, contains provisions which are more or less similar to the provisions found in the 1888 Code in several aspects, including the aspects of Land and Land Revenue.

¶225

Chapter VII of the Act deals with Land and Land Revenue. Sections 67 to 79 deal with Land, while Sections 80 to 90 deal with Land Revenue.

¶226

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¶227

Section 67⁴ of the Act, which is similar to Section 36

¶228

of the Code. It basically declares that all lands which are not property of the individual or an aggregate of persons legally capable of holding property would be the properties of the State Government, wherever it is situate. In essence, the import of Section 67 of the Act is that every property which is not the property of any individual or a group of individuals would be the property of the Government. The provision also clarifies that the declaration would be subject to a situation wherein the

¶229

4 “ 67. Public roads, etc., and all lands which are not the property of other belong to the Government:- (1)All public roads, streets, lanes and paths, bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nallas, lakes and tanks and all canals and water-courses and all standing and flowing waters, and all lands wherever situated which are not the property of individuals or of aggregate of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force, are and are hereby declared to be with all rights in or over the same or appertaining thereto, the property of the State Government.

¶230

Explanation: - In this section, “high-water mark” means the highest point reached by ordinary spring tides at any season of the year.

¶231

(2) Where any property or any right in or over any property is claimed by or on behalf of the state Government or by any person as against the State Government, it shall be lawful for the Deputy commissioner or a Survey Officer not lower in rank than a Deputy commissioner, after formal inquiry to pass an order deciding the claim.

¶232

(3) Any person aggrieved by an order made under sub-section(2) or in appeal or revision therefrom may institute a civil suit contesting the order within a period of one year from the date of such order and the final decision in the civil suit shall be binding on the parties.”

¶233

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¶234

rights of certain persons could be established over the lands.

¶235

To put it simply, if a land is not owned by an individual or it is not established that a person has a right over the land, it would be the property of the State. This is on the principle that the Sovereign owns all the lands within its dominion except those lands which are owned by individuals. Conversely stated, if a land belongs to an individual, the State would not be the owner over that land even under its Sovereign powers.

¶236

Sections 68 to 79 of the Act deal with the rights of the Government over the property which belongs to it. Section 70, however, reserves the right of the State over the mines and mineral in a land. This provision would, however, be of no relevance to the issue involved in these cases.

¶237

Section 80 of the Act, which is similar to Section 48 of the Code, declares that all lands whether applied to

¶238

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¶239

agriculture or other purposes, and wherever situate, would

¶240

be liable to pay land revenue, unless payment is specifically exempted. Thus, fundamentally, an individual who owns land, irrespective of the purpose to which it is applied to or irrespective of where it is situate, is statutorily obliged to pay land revenue on his land. This is, of course, subject to any exemption granted to him either under the Act or under a special contract.

¶241

Since the statute contains a charging provision for the levy, it also naturally prescribes the manner of assessment of the land revenue payable and the person who would be liable to pay this land revenue and also the manner in which it is to be recovered.

¶242

For the purposes of assessment, the statute has made elaborate provisions in Chapter X of the Act. The provisions therein stipulate the manner in which the assessment has to be made.

¶243

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¶244

The intent that can be deduced from Chapter X of the

¶245

Act is that the State assesses the income that the landowner can possibly earn from the land and this singular factor is made the basis for the determination of the land revenue payable. The overarching objective of this assessment is to determine how effectively the landowner can utilize his land to generate revenue and as a consequence in what proportion the rate of levy could be determined.

¶246

In this process of determination of the land revenue payable, the provisions recognize that different lands would yield different revenue and that would be dependent on several facts. However, in certain cases by reason of the inability of the landowner to use the land for reasons beyond his control, the land is not subjected to an assessment. The principle being that if a person cannot earn any income from a portion of land, he should not be made to suffer the liability to pay land revenue on that portion of the land.

¶247

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¶248

It is to be noticed here that if the owner of the land is exempted from assessment of a portion of his land or he is exempted from payment of any land revenue, that would not imply that he has lost ownership over that portion. The ownership of that portion of the land would still nevertheless remain with the owner. Merely because the land is not assessed and the landowner is not required to pay any revenue, that would not amount to there being a divesting of ownership of the land infavour of the State. It is for this precise reason Section 67 of the Act declares and makes it abundantly clear that all lands which do not belong to an individual would be the property of the Government. It is to be borne in mind that Section 67 of the Act does not state or declare even indirectly that lands in respect of which revenue is not payable would stand vested with the State Government.

¶249

It is also to be noticed here that under Section 80 of the Act, land, whether applied for agricultural or other purposes and wherever they may situate, would be liable

¶250

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¶251

for payment of land revenue. The only exception would be those lands which may be wholly exempted under the provisions of any special contract or any provision of the Act. It is, thus, obvious that any land held by an individual would incur the liability to pay the land revenue.

¶252

Section 83 of the Act indicates the manner in which

¶253

the land is required to be assessed and states that the land revenue leviable shall be assessed with reference to the use of the land for the purpose of agriculture. It also states that if any land is used for any purpose other than agriculture, such land, even if it is exempted from assessment or is assessed with reference to any purpose other than agriculture, would be liable for payment of land revenue at such rates and subject to such rules as may be prescribed for land used for the purpose of agriculture. Thus, even if a land is used for a purpose other than agriculture, it would be subject to the payment of land revenue as if it is used for the purpose of agriculture.

¶254

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¶255

71. In respect of lands for which revenue was already

¶256

fixed before the commencement of the Act, the revenue payable is required to be the same unless the same is commuted as provided under Section 83 of the Act.

¶257

Section 84 of the Act indicates as to who is required to fix the assessment. It states that in respect of the land which has not been assessed as provided under Chapter X, the same would be determined by the Deputy Commissioner as per the prescribed rules.

¶258

Chapter X of the Act provides for provisions for the assessments and settlement of land revenue of agricultural land. The provisions of this Chapter prescribe the manner in which the assessment on lands is determined and for this purpose, the physical configuration, climate and rainfall, and yield of principal crops and their prices are to be taken into consideration. It would also be permissible for several other factors to be taken into consideration for the determination of the assessment.

¶259

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¶260

Thus, the substantive provisions of the Act primarily

¶261

provide for an elaborate mechanism to determine the assessments and payment of land revenue by persons who own lands.

¶262

To examine this issue further, the Rules framed

¶263

under the 1964 Act would also have to be examined.

¶264

On the coming into force of the 1964 Act, Rules were framed, and Chapter VI of the Karnataka Land Revenue Rules provided for revenue survey and settlement.

¶265

Rule 19 of the Rules states that every holding should be separately measured, classified, assessed and defined by boundary marks and entered in the land records as a survey number. If the holding of the land is less than the minimum fixed, it should be separately measured and assessed and entered in the land records, as a subdivision of that survey number. Rule 20 thereof stipulates that the measurements shall be recorded in the books and forms stated therein.

¶266

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¶267

Rule 21 of the Rules states that for the purposes of assessment of lands, they are to be classified with respect to their productive qualities. It states that the number of classes and their relative value should be reckoned in annas and should 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 cultivation. It goes on to state that the classification results are to be recorded in the books prescribed therein.

¶268

Sub-clause (2) of Rule 21 of the Rules mandates that during the process of classification of land, which is included as unarable should be treated as ‘ Pot Kharab’ land. This unarable land could be classified as those which are unfit for agriculture and those which are not assessed under the Rule.

¶269

Rule 21(2)(a) of the Rules contemplates classification of a land which is unfit for agriculture by virtue of the

¶270

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¶271

existence of farm buildings, threshing floors of the holder. The intent behind Rule 21(2)(a) of the Rules is that the law recognizes that a certain portion of the land of a survey number is rendered unfit for agriculture due to the existence of farm buildings or threshing floors of the holder, as a result of which, it is considered as unarable land and would thereby be entitled to be exempt from assessment.

¶272

Rule 21(2)(b) of the Rules states certain lands which are not assessed would also have to be classified as ‘ pot kharab ’. The four reasons for which a land could not be assessed are as follows:

¶273

“(i) it is reserved or assigned for public purpose.

¶274

(ii) it is occupied by a road or recognized footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes.

¶275

(iii) used as burial ground or cremation ground.

¶276

(iv) assigned for village potteries.”

¶277

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¶278

What is to be noticed in this classification contemplated under Rule 21(2) is that, a portion of the land held by the owner could be classified as unarable and thereby be exempted from assessment. The reason for the unarability of the land could be because of the use of the land by the holder for the purposes other than agriculture or could be for a reason which is beyond the control of the holder.

¶279

The purpose of classifying the land as phot kharab is essentially to save the owner from the liability of paying land revenue, because he is not able to use it for agricultural purposes and would therefore be deprived of earning an income. This exemption from assessment and payment of revenue cannot result in the owner losing his title or ownership of the land.

¶280

If the owner has been utilizing a certain portion of the land for his own beneficial use, which may be relatable to his agricultural operations, but that use of the land actually results in no agricultural activities being carried

¶281

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¶282

out in that portion of land, that would nevertheless entitle him for an exemption from paying land revenue over that portion of land.

¶283

There are certain other cases contemplated under the rule which also result in the owner not being able to cultivate a portion of his land. These could be because of the assignment for a public purpose or because a portion is occupied by a road or a footpath or a tank or a stream which is used by persons other than the holders.

¶284

The law recognizes that an agricultural land owned by a person could be reserved for being used for a distinct purpose and it also recognizes the fact that a land by virtue of its very nature could be used by persons other than the holder. In all such cases, the law recognizes that the net result would be that the holder would be unable to use the land for agriculture and since he is unable to use land for agricultural purposes, he ought not to be burdened with the liability to pay land revenue.

¶285

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¶286

It is to be stated that merely because a portion of the land escapes assessment and the consequential liability to pay land revenue, that would not result in divesting of the ownership of the holder, and it also would not result in the transfer of the ownership to the State. As already stated above, in order for a land to be considered as a land belonging to the State Government, it should primarily be land which is not owned by an individual.

¶287

In law, it is permissible for the lands of an individual to be used by other persons or be reserved for a specific purpose but that would not result in the individual losing his title over the lands.

¶288

To give a simple example, in a residential site, the Municipal byelaws normally mandate the leaving of setbacks all around the residential site. Though, the site is absolutely owned by an individual, by reason of the byelaws, the owner is restrained from putting a portion of his own land to the use that he desires. Merely because

¶289

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¶290

the law requires the owner to leave a particular space all around his site that would not mean that the ownership of that property would be transferred to the Municipal body.

¶291

The same parallel would be true for lands coming within the purview of the Land Revenue Act. In an agricultural land, it is quite probable that due to natural circumstances, a stream is created in and over the land and over a period of time a portion of the land is used as a footpath by the villagers or as a road. But, in all such cases, that would not amount to the owner of the land losing title over that portion even if he is unable to exercise his rights to use it exclusively.

¶292

If, in a land holding of an individual, a road or a footpath is formed either by long usage or for any other reason, that would only prevent the owner from enjoying the land exclusively. This would also result in persons who had no title over it to be able to use it collectively. It may

¶293

so happen that community members use a portion of the land or that they are permitted to use a portion by an

¶294

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¶295

assignment made by the competent authority. However, this mere usage by the community or assignment by the competent authority cannot and would not divest the owner of his title over the land.

¶296

It may also so happen that the land may also have several portions which are incapable of being cultivated. One such reason could be a rocky outgrowth, naturally formed ravines or nalas or any such natural factors which would prevent its cultivation. Merely because of natural factors, the owner of the land is unable to put it to a beneficial use that would not divest him of its ownership. The Law taking note of the fact that a portion of the land cannot be put to the beneficial use, merely exempts the owner from being subjected to a levy. This exemption from levy cannot confer title on the State over the land.

¶297

Paragraph 5.02 of the Karnataka Revenue Survey Manual reads as under:

¶298

“ 5.02 Kinds of Phut Kharab: There are two kinds of Phut Kharab. They are (1) Uncultivable

¶299

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¶300

and (2) Cultivable but withdrawn and reserved for some other purpose. The rule about the first kind is that unarable land included in a survey number assessed for purposes of agriculture when it is classed as unfit for cultivation such as (1) Deep pits, (2) Water as uncultivable and the holder may bring such land under cultivation without any liability to a change because it is assumed that such cultivation can only be effected by the expenditure of owner. The rule regarding the second kind is that unarable land included in a survey number assessed for purpose of agriculture when reserved or assigned for public purpose or occupied by a road or recognized foot path or by tank or stream used by public for irrigation or for drinking or for domestic purpose or used for a burial or funeral ground by the public etc. or assigned for village potteries cannot be cultivated. Thus, in respect of second kind of the Phut Kharab cultivation is prohibited even though the land may be cultivable unless the deputy Commissioner permits it and alters the assignment of the Phut Kharab when the purpose for which it is reserved is no longer operative, (e.g., the abandoned tank, abandoned nala etc.) but in the case of a road the rule to be observed is; once highway always a highway. Cart-road assigned as Phut

¶301

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¶302

Kharab when not needed for the purpose may be allowed to be cultivated by the holder of the field on his paying the usual assessment.

¶303

If such strip is in alienated land assessment should be levied when it is clear that exemption originally accorded was granted on the ground that the land was to be used as a road or for any other definite purpose. If this class of Phut Kharab is permitted to be cultivated, then it could be assessed even during currency of the Settlement at the same rate as the rest of the Survey number and the assessment is increased. When the cultivation of such kharab land is footpath kharab if its enclosure causes inconvenience to occupants of neighboring land.”

¶304

The above paragraph of the Karnataka Revenue Survey Manual states that land in which naturally occurring deep pits or water could nevertheless be made cultivable by the expenditure which is incurred by the owner himself to make it cultivable. In cases, where the owner makes the uncultivable land cultivable by spending

¶305

his own money, he would not be liable to pay the assessment. Thus, though an unarable land has been

¶306

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¶307

made arable, that transformed land would still not attract the payment of revenue, notwithstanding the fact that the holder of the land has been utilizing the land to earn an income for himself. This indicates that the law recognizes that even the Kharab portion of a land has always been considered as being owned by an individual and the individual who owns a survey number, in which a portion is classified as unarable, he would never lose title over that land.

¶308

Thus, as a result of this discussion, it is clear that every land which is measured and classified as a survey number, the title of the said survey number would always vest with the individual and no portion of it would be transferred in favour of the State merely because that portion has been classified as unarable. The mere fact that the portion of an individual’s land is reserved for a public purpose or that the public in general are utilizing the land will also not divest the individual of his title over that portion of the land.

¶309

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¶310

At best, by virtue of permitting the public to use a portion of an individual’s land, he may lose the right to have the exclusive use of that land. However, even in such cases that individual would not lose title infavour of the State. Thus, every land which is classified as a survey number would belong to an individual exclusively even if

¶311

he is not permitted to use it exclusively.

¶312

If such a land is acquired that person would have to be compensated as envisaged under Article 300(A) of the Constitution of India. The State cannot deny compensation to the petitioners on the premise that the land is not assessed to revenue or that certain members of the public or the general public are using a portion of the land. The mere usage of the land by the public will not result in the title of the land being vested in the State.

¶313

Thus, the proposition of law that emerges from this discussion is that even in respect of lands which are classified as phot kharab land in a survey number, the title

¶314

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¶315

to the phot kharab land would still remain with the holder

¶316

of the land irrespective of the fact as to whether it has been classified under Rule 21(2)(a) or under Rule 21(2)(b) of the Rules. In short, the State will have no title over that portion of the land which is classified as either “A” Kharab or “B” kharab in a Survey number and the entire land including the phot kharab portion would belong to the owner of the Survey number.

¶317

It is also to be stated here that so long as a person owns the land the classification of the land as phot kharab, may deny his right to exclusively enjoy his property in its entirety. However, when this very land is acquired, the right that had been reserved to the members of the public to use that portion of the land would also be extinguished and the land would vest with the State free from all encumbrances.

¶318

Thus, the restriction imposed on the exclusive use of the land on the owner would also stand extinguished by the acquisition and this extinguishment of the rights of the

¶319

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¶320

public could only yield a benefit to the owner and it cannot be amount to a deprivation of compensation to the owner of the land. The owner of the land by reason of the acquisition would lose the entire land including the portion that he was prohibited from using, but he would nevertheless be entitled to compensation over the entire land.

¶321

In the instant case, the Land Acquisition Officer has admittedly noticed that the lands in question were infact lands which had been classified under Rule 21(2)(a) of the Rules i.e., lands which are classified as unfit for agriculture at the time of survey for the reason of the owner having erected a farm building or threshing floor.

¶322

The reasoning of the Land Acquisition Officer that the petitioners had to obtain permission even in respect of such lands to entitle them for compensation cannot be accepted at all. As stated above, a portion of the land would have been rendered as unfit for agriculture since that land was being used for a purpose other than the

¶323

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¶324

agriculture. It may be pertinent to state here that the use of that portion of land was incidentally for purposes which were not only ancillary to the main use of agriculture but also inextricably linked to agriculture. In other words, the land, including the portion which had been rendered unfit for agriculture was also being utilized for a purpose which was linked to the main purpose for which the land was utilized i.e., Agriculture.

¶325

The reasoning that permission had to be obtained for using the land for purposes incidental to agriculture and as such a permission had not been obtained, compensation cannot be paid is wholly untenable. There is no provision or rule which prohibits an owner of the land to use the land for a purpose which is incidental, and which supplements his agricultural operations on the land. In fact, Section 95 of the Act permits such kind of a complementary activity. In the light of this provision, reliance placed on a Circular or a Government order would be of no consequence as the same would be in flagrant

¶326

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¶327

violation of the statutory provision. In this view of the matter, the impugned endorsement refusing to pay compensation cannot be sustained and same is quashed.

¶328

The Land Acquisition Officer is directed to determine the compensation payable for that portion of the survey number belonging to the petitioners which have been classified as phot kharab and pay the same to the petitioners within a period of three months from the date of receipt of a certified copy of this order.

¶329

Writ Petitions are accordingly allowed .

¶330

SD JUDGE

¶331

CKK/PKS

Shivappa S/O. Prabhappa Mugalolli v. the General Manager

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Shivappa S/O. Prabhappa Mugalolli v. the General Manager

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