1 in the High Court of Karnataka at Bangalore

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 27 TH DAY OF MAY 2013 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY WRIT PETITION NO.1853 OF 2007 (KLR-RES) BETWEEN: 1. PARE KESHAVAYA, S/O.LATE PARE SHAMBHAYYA, AGED 65 YEARS RESIDING AT GEETHA VIHAR, DUGGALADKA POST, SULLIA KASBA VILLAGE, SULLIA TALUK, D.K.DISTRICT. 2. M.P.GOPALAKRISHNAYYA, S/O.LATE K.V.M.PARAMESHWARAYYA SINCE DECEASED BY LR a) SRI M.G.SATHYANARAYAN S/O LATE M.P.GOPALAKRISHNAYYA, HINDU, AGED 55 YEARS R/AT. MAIPADAKA HOUSE, AMARAMUDNOOR VILLAGE, P.O.KUKKAJADKA, SULLIA TALUK, D.K.DISTRICT. …PETITIONERS (BY SRI O.SHIVARAMA BHAT, ADV.) 2 AND: 1. THE STATE OF KARNATAKA REPRESENTED BY THE CHIEF SECRETARY, VIDHANA SOUDHA, BANGALORE-560 001. 2. THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT OF KARNATAKA, BANGALORE-560 001. …RESPONDENTS (BYSRI SHASHIDHAR.S.KARAMADI, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS NOT TO ENFORCE THE PROVISIONS OF CLAUSE (i) OF SUB-SECTION (1) OF SECTION 94B OF THE KARNATAKA LAND REVENUE ACT, 1964 OF THE EXTENT IT APPLIES TO THE KANA, BANE AND KUMKU IN DAKSHINA KANNADA DISTRICT AND UDUPI DISTRICT. THIS WRIT PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R The petitioners state, they hold some extent of land and using it for agricultural purpose which is classified as kana and Bane land and he has got privilege as a matter of right u/s 79(2) of the Karnataka Land Revenue Act for 3 which he referred judgment of the Supreme Court in AIR 1976 SC 853 (State of Mysore & others vs., K Chandrasekhara Adiga & another) wherein it has been held that kana and bane land owners have got right over the property. Despite the fact that the petitioners has got right over the property, the Deputy Commissioner, Mangalore has taken steps to allot the same to the beneficiaries as per Annexure-J who are 171 in Nos. The petitioners challenge the provisions of sub-clause (i) of sub-section (1) of Section 94-B of the Karnataka Land Revenue Act, 1964 since it runs counter to the rights accrued u/s 79(2) of the Act and therefore he prays declaration not to force the said provisions. 2. Sub-Section (i) of sub-section (1) of Section 94-B provides that a person in unauthorized occupation of any land including sub-section (2) of Section 79 is liable to be evicted. When sub-section (2) of Section 79 provides right of privilege, quite contrary to the said privilege, Section 94- 4 B provides for eviction of unauthorized occupant. These two provisions clash each other and right provided u/s 79(2) has been taken away by sub-clause (i) of sub-section (1) of Section 94-B. Hence the learned counsel for the petitioner seeks to allow the writ petition. 3. The learned government advocate submits the beneficiaries who are listed in Annexure-J are in possession since 2005 and if the prayer of the petitioners is considered, virtually beneficiaries would be affected and they are not made parties to the writ petition. 4. While challenging the constitutional validity of any provision, the person who approaches the court has to explain his locus. The prayer made in the writ petition must be relief oriented. From the facts which could be gathered from the writ petition, the petitioners are the villagers who have got privilege in respect of Kana & Bane lands and that privilege though it is referred as a right, the said right is not a general right. Since Kana & Bane land 5 has been allotted to persons in Annexure-J, right has been accrued on them since 2005 and therefore they should have been made parties in this writ petition. The relief behind the prayer made has not been explained to this Court by the petitioners. 5. The submission of the petitioners that right of privilege u/s 79(2) has been taken away by virtue of Section 94-B if it is thoroughly examined, it clarifies the position that privileges in respect of Kana & Bane land u/s 79(2) is not a right conferred on any person because it contemplates, notwithstanding anything contained in sub- section (1) or such general or special orders that may be issued by the State Government from time to time, the privileges that are being enjoyed by custom or under any order, such as privileges …….. the right of privilege, it is available to the villagers in respect of khane and bane lands and that privilege is only subject to general or special rules issued by the State Government. Sub-clause (i) of sub- 6 section (1) of Section 94 was brought by amendment with effect from 1.11.1998 which provides that any person unauthorisedly in occupation in respect of the land referred in Section 79(2) are liable to be evicted. This piece of legislation which enables the State Government to evict the unauthorized occupants including the petitioners or any person who claims his privilege of right under Section 79(2). 6. In view of the said legal position, submission of the learned counsel holds no water. Hence validity of sub- clause (i) of sub-section (1) of Section 94-B of the Karnataka Land Revenue Act cannot be tested at the instance of the petitioners. Petition is devoid of merits and it is accordingly dismissed. Sd/- JUDGE AKD .

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