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STATE OF KARNATAKA AND ORS ..

KRISHNOJI REO AND ANR.

MARCH 25, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] " ' ~

Land Laws

Bombay Paragana and Kulka1miki Watan (Abolition) Act, 1950: c Ss.4, 4A-Unassessed and uncultivated waste land-Assistant Commis- • sioner assigned 109 acres 34 guntas of land of one survey number for grazing purpose for village cattle and JOO acres for afforestation-Deputy Commissioner by suo motu order cancelled the orde1-fiigh Court directing to grant 201 acres 34 guntas land to respondent-field, 1ight of watan under s.4 is D subject to right created in s.4A-Order granting 100 acres of land for afforestalion and 109 acres and 34 guntas for grazing purpose having become final and not challenged by ivatandar, cannot be challenged due to reversal of the order by Deputy Comnzissioner in exercise of suo niotu powe~Watandar could have challenged only with regard to residue of land which should have

E been considered-Matter remitted to High Court for disposal of writ petition

in accordance with law.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5345 of 1996.

F From the Judgment and Order dated 11.6.90 of the Karnataka High Court in W.A No. 1941of1986.

)- M. Veerappa for the Arpellants.

The following Order of the Court was delivered : G 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 H Kulkarrniki Watan (Abolition) Act, 1950 (for short, the 'Act'). The land 874

STATEv. KRISHNOJI REO 875

bearing Survey No. 87 of Revadihal village was unassessed and uncultivable A waste land _as per the _Mutation Entry 313 dated August 20, 1960. The Assistant Commissioner, Dharwad in his order dated June 17, 1964 asj " ) ., .. signed an extent of 109 acres 34 guntas of land in the said Survey for public . purpose, namely, grazing purposes for the village cattle. Ori 6.4.1964, it was decided that an extent of 100 acres of land in the said Survey be transfe_rr.e~ to the Forest Department for afforestation. The Government in it~. order .. B dated August i, 1964 granted actual possession of 100' acres of land to be handed over to the Forest Department. It was entered in the Reei.me

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 m'atter for fresh C enquiry. On March 4, 1968, the Assistant Commissioner regranted an 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 catties and he alsii reserved 100 acres for the Forest ' Department . f()r afforestation. The Deputy Commissioner by suo _motu D order d:jted January 24, 1977 has cancelled the order of the Assistant Commissioner dated March 4, 1968.

Feelig aggieved, the respodent filed Writ pe\ition No. 2236/77 in the High Court. The larned sitigkJudge of the High Court by order dated December 4, 1985 has partly allowed. the "1rit petition and directed to grant E an extent of 201 acres 34. gtintas to the respondent. When the appellant filed appeal, the Division Bench dismissed the same. Thus, this appeal by special leave.

Whereas the first respondent has been served, whereabouts of the F 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 orde_r granting 100 , acres for affo_restation and 109.34 guntas for grazing purposes having become filial andnot challenged earlier by the Watandar, they cannot chalienge .the same .du~ to re~rsal of the earlier order by Deputy Collll)lissioner in exrcise of suo m'atu power. In G the writ petition, they could not have challenge the orde!. They could have challenged only with regard to the residue of the land which should have been considered. The reason being that the right of the Watan under

Section 4 is subject to the rights created in Section4-A _of the Act. The Division Bench and the learned single Judge, therefore, have not properly H

SUPREME COURT REPORTS

(1996] 3 S.C.R.

A considered the controversy. Since the respondents arc 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.

B The appeal is accordingly allowed. No costs.

R.P.

Appeals allowed.