Full Judgment Text
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PETITIONER:
STATE OF KARNATAKA & ORS.
Vs.
RESPONDENT:
KRISHNOJI RAO AND ANR.
DATE OF JUDGMENT: 25/03/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (4) 133 1996 SCALE (3)391
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
This appeal by special leave arises from the order of
the Division Bench of the Karnataka High Court made on June
11, 1990 in Writ Appeal No, 283/1986. The controversy is
regulated by the Bombay Paragana and Kulkarniki Watan
(Abolition) Act, 1950 (for short, the ’Act’). The land
bearing Survey No.87 of Fevadihal village was unassessed and
uncultivable waste land as per the Mutation Entry No.313
dated August 50, 1960 The Assistant Commissioner, Dharwad in
his order dated June 17, 1964 assigned an extent of 109
acres 34 guntas of land in the said Survey for public
purpose, namely, grazing purposes for the village cattle. On
6.4.1964, it was decided that an extent of 100 acres of land
in the said Survey be transferred to the Forest Department
for afforestation. The Government in its order dated August
1, 1964 granted actual possession of 100 acres of land to be
handed over to the Forest Department. It was entered in the
Revenue records by Mutation Entry No.413 dated August 1,
1966. The Divisional Commissioner in his order dated
November 27, 1964 granted 92 acres out of 100 acres to 23
persons for cultivation and remanded the matter for fresh
enquiry. On March 4, 1968, the Assistant Commissioner
regarded on extent of 201 acres 34 guntas of land in the
same Survey number to the respondents setting apart an area
of 109 acres 34 guntas for grazing purposes of the village
cattles and he also reserved 100 acres for the Forest
Department for afforestation. The Deputy Commissioner by suo
motu order dated January 24, 1977 has cancelled the order of
the Assistant Commissioner dated march 4, 1968.
Feeling aggrieved, the respondent filed Writ Petition
No.2236/77 in the High Court. The learned single Judge of
the High Court by order dated December 4, 1985 has partly
allowed the writ petition and directed to grant an extent of
201 acres 34 guntas to the respondent. When the appellant
filed appeal, the Division Bench dismissed the same, Thus,
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this appeal by special leave.
Whereas the first respondent has been served,
whereabouts of the second respondent are not known. So he
must be deemed to have been served. They are not appearing
either in person or through counsel. In view of the fact
that the order granting 100 acres for afforestation and
109.34 guntas for grazing purposes having become final and
not challenged earlier by the Watandar, they cannot
challenge the same due to reversal of the earlier order by
Deputy Commissioner in exercise of suo motu power. In the
writ petition, they could not have challenged the order.
They could have challenged only with regard to the residue
of the land which should have been considered. The reason
beings that the right of the Watan under Section 4 is
subject to the rights created in Section 4-A of the Act. The
Division Bench and the learned single Judge, therefore, have
not property considered the controversy. Since the
respondents are not appearing, the orders of the High Court
are set aside and the matter is remitted to the High Court
with a request to dispose of the writ petition on merits in
accordance with law. The part of the order of the learned
single Judge in favour of the State which became final
stands confirmed.
The appeal is accordingly allowed. No costs.