@JUDGMENTTAG-ORDER
K.L. Manjunath, J.@mdashPetitioners in these two petitions are claiming to be the owners of different extent of lands in Sy. No. 57/2, 57/1, 54/1
and 55 of Nagavara village, are challenging the legality and correctness of the action of the Government in extinguishing the existing cart-track
between Sy. No. 51 to 60 of Nagavara village by invoking its powers u/s 68(1) and (5) of the Karnataka Land Revenue Act (hereinafter referred
to as The Act'') and thereafter granting extinguished cart-track area to R-4.
2. According to the petition averments, they are the residents of Nagavara village. Aforesaid lands are agricultural lands and a cart road running
between Sy. Nos. 55 to 60 is the only access to their agricultural land and that the said cart road was being used from time immemorial and that
the same was never extinguished and that the Government behind the back of the petitioners and other villagers at the instance of R-4 has notified
for extinction of cart track as if the same is not in use and the same is dis-used and existence of such cart-track is of no use for the public and
without issuing any notice to the adjoining owners and more particularly to the petitioners has notified the same u/s 68(5) of the Act and thereafter
the same has been sold by the Government in favour of R-4 as per Annexure-H in W.P. 48588/04 for a total consideration of Rs. 24,63,973/-.
Present petition is filed to cancel the order granting land in favour of R-4 by quashing Annexure-H dated 4.12.2004 and also to quash the
notifications issued u/s 68(1) and (5) of the Act dated 5.10.2004 as per Annexure-E and as per Annexure-F dated 6.10.2004.
3. According to the Counsel for the petitioner, R-1 to 3 colluding with R-4 in connivance has extinguished the cart-track without hearing the
petitioners and thereby the ingress and egress to the lands of the petitioners has been closed once for all and that the land granted to R-4 is in
contravention of the Karnataka Land Revenue Act and Karnataka Land Grant Rules. It is further contended that no spot inspection or mahazar
was drawn by the respondents before notifying u/s 68(1) and (5) of the Act. It is also their case that since the land in question is situated within 8
kms. From the municipal corporation limits and also on the ground that the land falls within the CMC area of Byatarayanapura, land could not have
been granted to R-4 without concurrence of the aforesaid two local authorities.
4. It is also the case of the petitioners that the respondents without considering that on either side of the cart track several houses have come up
and they axe using the cart track to reach their houses and also ring road and other connecting roads. Therefore, petitioners request the court to
quash the grant of land to R-4.
5. During the course of the arguments, Counsel for the parties also submitted that Section 68(1) and (5) of the Act has no application to the facts
and circumstances of the case since the cart-track is the private property of the petitioners and when it is the private property of the petitioners,
question of invoking Section 68(1) and (5) of the Act or granting the same in favour of R-4 is without jurisdiction. According to him, out of the un-
reserved karab land fallen within the lands of the petitioners, a private cart track had been made and therefore it cannot be considered as a cart
road reserved for public purposes and requests the court to quash the proceedings.
6. R-4 has filed a detailed counter. According to R-4, R-4 is a neighbour of the petitioners and he has purchased the property situated in
Sy.No.5S and 54/1 and so also 53/1 since dis-used cart road was a public road reserved as a reserved karab and since the same was not used by
any agriculturists since the entire village had lost its agricultural character on account of its inclusion within BBMP and municipal council area. On
account of the development of the City and construction of the buildings and carving of sites in all agricultural lands, cart road was not used by any
one and that the same had become extinct. Since his lands are situated adjoining to the cart road and that the said road passes through his lands
bifurcating his land in Sy. No. 55, a request was made by him to extinguish the cart road by invoking Section 68 of the Act. According to him,
before notifying u/s 68(1) of the Act all formalities were observed by the authorities and having satisfied that the existence of such cart road was
not for public use and the same has been dis-used a notification u/s 68(1) of the Act was published in gazette on 23.4.2004 and the same was
gazetted inviting objections from the general public to file their objections if any to the proposed notification u/s 68(1) of the Act. Since objections
were not filed and after considering the case a notification u/s 68(5) of the Act was published on 6.10.2004 and that the petitioners who are aware
of the notification issued u/s 68(1) and (5) of the Act did not file their objections and at this stage same cannot be questioned by them on the
ground that they were not aware of such notification. According to him, when it is gazetted, presumption is that it is known to the whole world.
7. Thereafter, Deputy Commissioner calculated the market value of the dis-used land and assessed the same at Rs. 24,63,973/-. Accordingly,
Government exercised its power has granted the same for non-agricultural purpose by calculating the market value by imposing conditions as
required under Rule 9(3) of the Karnataka Land Grant Rules, 1969. Therefore, he requests the court to dismiss the petition.
8. Having heard the counsel for the parties, this court has to find out (1) whether the notification as required u/s 68(1) and (5) of the Act ware
Issued before extinguishing the cart track?
(2) Whether petitioners prove that the cart road which was running between Sy. No. 55 and 60 of Nagavara village was a private cart road or a
public road?
(3) Whether the land granted to R-4 has to be quashed?
9. Counsel for the petitioners does not dispute the issuance of gazette notification by the Government u/s 68(1) and (5) of the Act. But his main
contention is that petitioners being the neighbours were not served with any notice and they are not heard in the natter. In order to appreciate this
contention, this court has to examine the provisions of Section 68(1) and (5) of the Act to know whether any notice has to be issued to the
neighbouring owners personally and whether a gazette notification issued would be sufficient. Section 68(1) to (5) of the Act reads as hereunder:
68. Extinction of rights or public and individuals in or over any public road, street, lane ox path not repaired for use of public: (1) Whenever it
appears to the State Government that the whole or any part of any public road street, lane or path which is the property of the State Government,
is not required for the use of the public, the State Government may, by notification, make a declaration to such effect stating in such declaration that
it is proposed that the rights of the public as well as of all persons in or over any such road, street, lane or path, or part thereof, as the case may
be, shall be extinguished. On the publication of such notification, the Deputy Commissioner, shall, as soon as possible cause public notice of such
declaration to be given at convenient places on, or in the vicinity of such road, street, lane or path or part thereof, as the case may be. Such
declaration and notice shall specify, as far as practicable, the situation and limits of such road, street, lane or path or part thereof, and shall invite
objections to the aforesaid proposal.
(2) Any member of the public or any person having any interest or right, in addition to be right to public highway in or over such road street, lane
or path or part thereof, or having any other interest or right which is likely to be adversely affected toy the proposal may within ninety days after the
issue of the notification, under Sub-section (1), state to the Deputy Commissioner in writing Ma objections to the proposal, the nature of his
interest or right and the manner in which it is likely to be adversely affected, and the amount and particulars of his claim to condensation for snob
interest or right;
Provided that the Deputy Commissioner nay allow any person to make such statement after the period of ninety days after the issue of notification
under Sub-section (1), if he is satisfied that such person had sufficient cause for not making it within the said period
(3) The Deputy Commissioner shall give every person who has made a statement to him under Sub-section (2), an opportunity of being heard
either in person or by pleader and shall, after hearing all such persons in such manner and after making such further determine the amount of
compensation, if any, which should, in his opinion, be given in any case in respect of any substantial loss or damage likely to be caused by the
proposed extinction of the rights of the public as well as of persons as aforesaid. The provisions of Sections 9, 10 and 11 of the Land Acquisition
Act, 1894 (Central Act 1 of 1894) shall, so far as may be, apply to the proceedings held by the Deputy Commissioner under this sub-section.
(4) The Deputy Commissioner shall submit the State Government to record of the proceedings hold toy him with the report, containing his
recommendations on the objections, if any, received by him stating the amount of compensation, if any, which, in his opinion axe payable to any
persona.
(5) If the State Government is satisfied after considering the record of the proceedings and the report, if any, made tinder Sub-section (4) that the
public road, street, lane or path, or part thereof, specified in the notification under Sub-section (1) is not required for the use of the public, a
declaration shall be published in the official Gazette that all rights of the public as well an of all persons in or over such road, street, lane or path, or
part thereof, are extinguished; and all such rights shall thereupon be extinguished, and such road, street, lane or path or part thereof shall be at the
disposal of the State Government with effect from the date of such declaration.
From the above provisions of law, it is clear that whenever it appears to the State Government that whole or any part of public road, street, lane or
path which is the property of the State Government is not required for the use of the public, then by notification make declaration that it is
proposed that the rights of the public as well as of all persons in or over any such road, street, lane or path shall be extinguished inviting objections.
Section 68(1) of the Act does not contemplate the Government to issue any individual notice on the neighbours or on the general public. What is to
be notified in the notification to bring to the notice of the public of its intention to extinguish the particular lane, road, street or path and if any person
so interested is entitled to file his objections. Such notification has to be issued only to invite objections to the proposal of the Government. In the
instant case, Section 68(1) of the Act has been issued and the same is published in the Karnataka Gazette and no objections are received by the
Government. Thereafter action is initiated to publish a notification u/s 68(5) of the Act.
10. It is not in dispute that petitioners can object for issuance of notification u/s 68(1) & (5) of the Act provided such cart-road is a public road
and not a private road. In the writ petitions, petitioners have averred that the cart track as a public cart track and they also have admitted that the
existence of such cart road finds a place in the village map. But no material is placed before the court to show that the cart road in question is a
private cart road and it was formed by them or by their ancestors. There are no pleadings to that effect and no document is also produced before
the court. In the absence of such material, this court cannot hold that the cart road which is extinguished is a private cart road. Even otherwise, if
Government does not get a right to extinguish a private cart road u/s 68 of the Act and if such an attempt is made, it is for the petitioners to
adjudicate their rights elsewhere. Be that as it may, when the petitioners themselves have admitted the cart road as a public cart road contending
that the existence of cart road finds a place in the village map as a public path way and now they cannot contend it as private road by blowing hot
and cold.
10. When the Government by observing that the cart road in question is not used by the public on account of the development of the City and
inclusion of entire Nagavara village within the municipal area and having noticed that several houses and sites have come up, if a decision to
extinguish the cart track, this court cannot interfere with such act unless and until petitioners prove before the court by producing cogent evidence
that cart road in question is used and without cart road their lands cannot be cultivated. As a matter of fact, petitioners themselves have admitted
the existence of number of buildings and development of the area as a municipal area. When an agricultural lands are converted as lay-outs and
sites and buildings have come up, persons who have formed lay-out have to make necessary arrangements to leave the road and area for the
purpose of civic amenities. In the absence of such materials, points 1 & 2 are held against the petitioners.
11. So far as the last point is concerned, Counsel for the petitioners has made a strong reliance u/s 69 of the Act. According to him, Government
can dispose of the lands which are extinguished under Sections 67 & 68 of the Rules to be framed u/s 69 of the Act. But the petitioners Counsel
has not produced any Rules stated to have been framed by the Government to this aspect. Counsel for R-4 submits that no such Rules are framed
and the area is sold by the Government for a market value for non-agricultural purpose by imposing conditions as required under Sub-rule (3) of
Rule-9 of the Rules. This fact is not in dispute. If the land belonging to the Government is sold in favour of R-4 by collecting the market value and
when R-4 has paid consideration of Rs. 24,63,973/-, this court does not see any infirmity in granting the land in favour of R-4 by collecting the
market value since extinguished cart road was running in between his property since the land was bifurcated by this cart road and if such
extinguished property is granted to R-4 by collecting the market value, this court does not see any infirmity in such order.
12. Accordingly, this court does not see any merit in these two petitions and the same are hereby dismissed.
