Smt. Shashikala M. Nippankiar Vs the State of Karnataka

THE PRESIDENT KARNATAKA SUGAR INSTITUTION BELAGAVI DISTRICT BELAGAVI AND THE SECRETARY DEPARTMENT OF COMMERCE AND INDUSTRIES GOVERNMENT OF KARNATAKA - 590 001

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…RESPONDENTS (SMT. NILOUFER AKBAR, AGA FOR R-1 & R-2 SRI VINAY KUTTAPPA, ADVOCATE FOR R-3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH RULE 14(1) OF THE HIGH COURT OF KARNATAKA (PRACTICE AND PROCEDURE FOR PUBLIC INTEREST LITIGATION) RULES, 2018 PRAYING TO ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI QUASHING ANNEXURE-A I.E, THE ORDER DATED 14-01-2004 BEARING No. RB:LDP:CR73:01-02 PASSED BY THE SECOND RESPONDENT AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE and HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL ORDER

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(PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE)

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The petitioners have filed the present petition as a public

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interest litigation, inter alia, praying as under:

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"A) A writ, order or direction in the nature of Certiorari Quashing Annexure-A i.e. the order dated 14-01-2004

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bearing No.RB:LDP:CR-73:01-02 passed by the second respondent,

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B) A writ, order or direction in the nature of Mandamus directing the first and second respondent, to restore the nature of R.S No.149 measuring 13 Acres 24 Guntas, situated at Benkanhalli Tal and Dist. Belagavi as 'Gomal land';

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The petitioners state that they are farmers and public-spirited persons and have filed the present petition to ensure the welfare of villagers who are engaged in milk production. The petitioners essentially pray that the land measuring 13 acres 24 guntas located in Benkanhalli Taluk, Belgavi District which was allotted to respondent No.3 by virtue of the order dated 14.01.2004, be restored as gomal land.

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The petitioners contend that they have filed the present petition to safeguard the gomal land in public interest. It is averred in the petition that the subject land has been used for grazing the milch animals of the nearby villages for the last 70 years, and the strength of cattle in the said villages exceeds 5,000. It is contended that the said land is required for the survival and sustenance of the milch animals in the villages in the vicinity of the subject land.

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The subject land was allotted to respondent No.3 for establishment of a sugar institute. It is stated that respondent No.3 has already set up an institute near Saraswati Nagar, Belagavi, and therefore does not require the said land for the purpose for which it was allotted. It is further stated that respondent No.3 has fenced the land and therefore, respondent No.3 should be restrained for doing the same.

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We note that a similar writ petition was filed as a public interest litigation [W.P No.19854-19857/2010 (KLR-RES-PIL)] by four petitioners, two of whom are also petitioners in the present petition (petitioner Nos.2 and 6). The earlier petition was dismissed by this court in view of the affidavit filed by the respondents, clearly stating that the land in question was not suitable for the grazing of cattle. The said order is set out below:

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"The factual position depicted in the statement of objections, insofar as the challenge raised to the grant/ use of gomal lands is concerned, reference deserves to be made to paragraph 3 of the statement of objections (jointly filed on behalf of the respondents). Paragraph 3 is, accordingly, being extracted hereunder:

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"3. In reply to para-2.1 of the writ petitions, it is submitted that the lands in question are gairana lands and these lands are covered with Jangli trees and as such, the lands are not suitable for grazing of cattles. Moreover, these lands are just 8

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kms away from the centre place of Belgaum. After considering these aspects and the fact that the third respondent Institution is a Government Agency and it is established for public purpose i.e., for the benefit of sugarcane growers of Belgaum district, the lands in question are granted."

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A perusal of the averments made in paragraph 3 reveal, that the gomal lands, under reference, which are subject matter of challenge at the hands of the petitioners, are located 8 kms away from the centre of Belgaum.

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Insofar as the legality of the issue raised at the hands of the petitioners is concerned, our attention has been invited, very fairly by the learned counsel for the petitioners, to a decision rendered by a Division Bench of this Court in Sri P.Ramakrishna and another vs. The State of Karnataka and others (Writ Petition No.44771/2001, decided on 21.10.2010) wherein, this Court, inter alia, held as under:

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"13. Having given our consideration to the above facts involved and the contentions thereto, we are of the view that even though the lands in question were initially classified as gomal lands at a time when it was in the village limits, it had thereafter lost its characteristics of gomal land due to the growth of Bangalore City and its location being within 18 kms. This is evidenced by the fact that the lands in Kasavanahalli came to be included in the residential zone in the Comprehensive Development Plan approved on 05.01.1995. Such zoning of land use and regulations made for the Bangalore Local Planning Area under the provisions of the KT & CP Act, would be governed by the provisions of that Act, since it would have overriding effect as provided under Section 76-M. Hence, in the instant case, the grant made subsequently on 12.01.2001 and 01.10.2001 is not governed by the provisions contained in the KLR Act as it 4 would stand ousted. As such, the contention of the Petitioners that there is violation

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of Sections 71 and 72 of the KLR Act for noncompliance of Rule 97(4) of the KLR Rules does not commend to us.

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In view of the decision rendered by this Court, as has been extracted hereinabove, we are of the view, that the challenge raised by the petitioners was misconceived, on account of the fact, that the lands which were earlier gomal lands have, in terms of the order passed by the Division Bench, lost their characteristics of gomal lands.

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For the reasons recorded hereinabove, the instant writ petitions, being devoid of any merits, are hereby dismissed."

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6. Notwithstanding that the earlier public interest litigation was

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dismissed, the petitioners have once again sought similar relief.

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The learned counsel appearing for the petitioners now submits that the cause of action in the present petition is different inasmuch as the petitioners now urge that respondent No.3 has not complied with the conditions of allotment of the subject land. The learned counsel also points out that the land had been allotted subject to certain conditions, including that the grantee (respondent No.3) should obtain possession of the land within a period of two

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years and utilise the same for the purpose for which it is granted. The learned counsel submits that since the land has not been

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utilised within the period of two years, the allotment ought to be cancelled.

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It is material to note that the said contentions, which are sought to be advanced today, were also available to the petitioners in the earlier petition. It is impermissible for the petitioners to seek similar reliefs as sought earlier on grounds that were available but not urged earlier.

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We note that the prayer sought by the petitioners is not limited to the cancellation of the allotment in favour of respondent No.3. They now seek restoration of the land as gomal land. The averments made in the petition are also to the effect that the land is used for grazing milch cattle. This is contrary to the findings and reasoning in the order dated 21.02.2011 which has attained finality.

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In view of the above, we find that the present petition is an unjustified imposition of judicial time and accordingly, the petition is dismissed with costs quantified at `25,000/-. The costs shall be deposited with the Karnataka State Legal Services Authority within a period of four weeks from the date.

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We clarify that this order will not preclude the concerned authorities from taking steps as may be warranted if the conditions of the allotment have not been complied with by respondent No.3.

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Sd/(VIBHU BAKHRU) CHIEF JUSTICE

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Sd/(K.S. HEMALEKHA) JUDGE

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AHB List No.: 1 Sl No.: 22

Smt. Shashikala M. Nippankiar v. the State of Karnataka

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Smt. Shashikala M. Nippankiar v. the State of Karnataka

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