IN THE HIGH CO’JRT OF KARNATAKA AT BANGALOE DA T FD THIS ThE 30TH DAY OF JUNE 1998 Befo a THE HON t PLE k4,JU3TICE HARI NATH TIL’:ARI WR IT PET! £10? Nc 31 1 997 Between: 1, Dhakalu Ninnanoa PatH, ma or, r’o,Yarnanarum Tq & Olat Belgaurn 2 S Char ruD )cluPt 4 l ma’r, r cYaranaou Ta, & Djst,Belaam, 3, Sri Monara Dhakalu PaUl, ma or, r/o,Yamanao ‘Iq,& Dj t Be gai m, 4, Sr,Gancaram Dnaklu Patil, maior, r/n,Yarnananur, Tq,& Djt:Bplqaun, S i Parashurri Dhakalu P t I m or, / Y era Tq Di-t,Bel; urn, 6, Sri,Hin:aooa Ahaulu Path rnzn- r/n,Yanaour, Ta & Di beqi’im TI’ 1t 1 )NRS r ur And: Tho DD’iq”ra’ Dorrissioror, Er 7dfln Division, Belcaurn ‘1 0 1 jau , Pho State of “arna ka, re, by jta Socretary to Urbar & Housinc D°n, MS mdq,, 133 ‘c a—I ,, 9ESPONDPVTS ‘s s a ke r C This Ant Petitir:n under Article 226 of Const 4 tut1n is filed oroyina to quash vide Any,A dt,3i7—92 and Anx,13 dt,23—5—194 by P] and 2, This Ut a iti r con g for H -r tar S ‘r t 5’ t’v” C rt a e f lo rg J+cw [cat3 iL&as.t’ 0 R 0 ER Heard the learned coinsel for tie pet ti ne Sri N0 a md 2. By thic oatinn under Article 26 ani 27 fth r eoeiioer has sought a writ of cart orary quashino the order ‘ite 235-i994 cassed by the DIvIsional Commiss lot er, elga it No, Z /ULC/ p 23 9293 diem ss*nq the ett1 re s’ a cal and,affrming the order nassed by the comoetent authority’: its order dated 317—1992,declarinq 2(11 30 sa mt of land t be exce ann, It has been contended by the learned counsel fnr the retitjnnrs that he error has hen *1 o mit tt ky i a orit A! oludinj toe Ian an w ich illa ng had existed ac vaca t land and thatA wronav been cnnctrued as vacant la d, He further o nten ed that ti re l. onda ntfia&ult th hod not,ieconstrund as excess land and no A oroDer enguiry bar been made, Learned co’rseI endd nat a sei ca s and they were entitled to seorate share the orooertv. r As regards the vacant land, section 2(q) defines it It reads as under: “Vacant land means land, not I and used for in an urk.an agglomeration, but does not include— (i) land on which construction of a building is riot permissible under the buildIng regulations in force in the area in wtich such land i.s situated; (ii) in an are.a where there are building regulations, the land occupied by any building which has been constructed sbeinconstructedg the appointed day with the approval of the an rooriate authority and the land apourtenant to such building;. (iii) in an area where there are no building regulations, the gccuiedn building which has been constructed befo 1 eor is heina constructed g the annointed day and the land aonurtenant to such building: Provided that Where any person ordinarily beers his cattle, oth.er ti . tkLsvai q than for the urncse )F dairy farming or for the ouroose of rreaiing nf livastok, on a’y I ‘1 a ed ir a ‘1 age w’t i an an a gb ati (d rite as a village in the revenue records’ then, so nuch extent of the land as has b° n o dinarily used for tie kee irg f s h cat Is irpmcdiatelj_before the anointrid day shall not be deemed to be vaant ‘and for th rp s f hiolase” A reading of this definition clause terse revea’s that e exnrcss!on “vacant land” i to near ard 1 de ny laid aich is mainly used Sor th agriciltiral nurooses, It t ncans if a oaron takes the tIes that tt an s a cr’ tu al 1 an anr be clu ad i he acan flnr he to r alleoe and establish tht onthe anoninted day the ‘and as been mainly sea f r agriul a! moe a a cie or and trove it, In the grit oetitior, I/find nv ‘ 1 etnr th’t h been so made tnat r a oit ha ar as irl used or anricultural oumonses A I nd a& c’LO ‘S mainly used for agricultural puroses may not be included The Legislature has used an expression which has Qot sic4nigicance i.e, expression emainly used” which is very important In the present case, I do not find any averment that t has been so asserted nor it has been so pz•oved, at is stated is that the land has• been reserved for agricultural purposes is not material, The person who is the owner of the land has to allege and prove that the land has been mainly used for agricultural nurnoses and unless this allegation is made and the fact Is established, the land will have to be considered as one and may be taken to be vacant lands Section further clarifies that land does not inc.lude an area where building reg’ulations are not in operation £f the land is occupied by a building and the building is one which has been constructed before or is beino constructed on the appointed day, then in that case, land covered by the building and the one aoourtunent thereto, J4WL t - ‘I that land may not be considered as vacant land, That where building Regulation are and have been in operation in the area then land or area is occupied by a building constructed before or on which building is being constructEd on the appointed day then$ with approval of appropriate authori. ty/such land a.s is occupied by building and land appurtinent thereto shall not taken to be as well as will be not be taken to/included within the framework of Expression ‘Vacant Land’ used in the Urban Land Ceiling Reoulation Act 1976. Again such a nIce had to be taken but has not been taken that any building existed or was being made on the land and land was covered by the building, the person claiming to be the owner ha•••s to allege and to prove that the building had been... constructed either before or was in the process of being constructed on the appointed day and in cases where the building regulations are in operation, it has to be further alleged and proved that wL 4w 74.t : construction was with approval of competent —7— iuthority. These facts have to be alleged and estcblashed to net exempti n and et the la excludrd from declaration as vacant land, The anoointed day in the section has been defined in Section 2(a) as under: “( ii Appointed day means’— (i) in relation to any State to which this ct applies in the first instance, the date of introthotion f the Urban Land (Ceiling I Regulation) Ø Bill, 1976, in Parliament; and ii) in dat o to a1 tcte which adopts tis Act under clause Cl) of Article 252 of t e onst fttion te ote of s cc adoption’ This ActAdefinSoLL”appointed daj” did apply to the 11 States namely the State of Andhra Pradeso, Gujarat, Hry5na, Himachal Pradesri, KarnataT-a, ja Na) cZjai Maha chtra 0 ices, 2 injab F ip a Jttar Pradeco, eat Benq I nd a I the Union t r it rice a d th— nate s the Bill s c ittrodiced sac n I n r 8 1976 $ 44 ‘-‘ ‘ ‘‘‘ e,t blc-ied h h b 1dnq en ered tie 1 nd or exicted on th” land han been e net voted bef re or was i the or ccc of nctr etion at t nctri t was qoing n B——l 7o, I a r rc na t a ieaed and nned th c fa t ten i that ca toat a d cv n f t it’ ce ed b, the I iild nq may be r lii ad a t in the f amezork o’ the exrecc n “i ant and it f the buld no a icted on the app inted -i € on 28—b- 976 sac eng o natrieted r in the p ore” f conctri ton h appointed aj then odoittelan coca he uldanj ail otne rd hn hefaesrk of x rae apnL ed y In Ta t on, it as ot beer ade t ‘ttcj& ii, a e K a gacnthas cc a ace f a the Ap llate A thorit lea ned nuncel onte d at tiara sac n pr p eng ir 9 9— I sin not arle to accept it. Enauiry are be dUt &i re uired to/made when r;rJ material facts have been asserted and point requires determination but no such fats were asserted and had been aointed out by the petitioner, the question dId not arise to be enquired and d termired Ttere is no such tYing tIe petition that such pleas with the necessary averment of facts was taken, Tf at futt r contention that has been raised that the Sons were all major, this contention has be i. considerea by the authority. The Arpellate nuthority observes that the declaration of the first applicant shows that his sons were all minor on the appointed day. Whet his sons were -ntnors tie apnoirted clay aI ‘(A. as per own declaratioi,were not majors. In this view of factual posittor, tiis last submission of oetitoners unsel falls. flus cn iae d, n my opinion thi petition is devcia of forcR, It is hereby dismissed. Sd/s JUDGE bss/— bnv/