Smt. G.R. Vijayalakshmi vs State of Karnataka

Ashok B. Hinchigeri, J.—The petitioners have called into question the intimation, dated 7-11-2014 (Annexure-A), insofar as it relates to demanding and accepting the market value of 7 guntas of ''A'' phot kharab land at Sy. Nos. 73 and 74 of Abbigere Village.

The facts of the case in brief are that the petitioners sought the conversion of the lands measuring 5 acres 27 guntas (including 5 guntas of '' A'' phot kharab land) at Sy. No. 73 and 20 guntas of land (including 2 guntas of ''A'' phot kharab land) standing at Sy. No. 74. The respondent 2 granted the NA conversion, inter alia, demanding the amount towards the market value of ''A'' phot kharab land measuring 7 guntas. The petitioners have indeed made the payment also.

On ascertaining the legal position, the petitioners realised that they are not liable to pay the market value of ''A'' phot kharab land, as it forms part of the mainland belonging to them. They submitted the representation dated 28-9-2015 (Annexure-B) praying for the refund of Rs. 15,75,000/-. On the respondent 2 showing inaction in the matter, these petitions are filed.

Sri M.S. Rajendra Prasad, the learned Senior Counsel appearing for Smt. B.M. Nagaveena for the petitioners submits that the issue is fairly covered in favour of the petitioners by the learned Single Judge''s order in the case of L.A. Krishnappa v. State of Karnataka Represented by its secretary by its Secretary, Revenue department and others reported in ILR 2009 KAR 938. and the Division Bench judgment dated 28-7-2010 (Annexure-P) in W.A. No. 3524 of 2009 (The Government of Karnataka v. Smt. G. Anuradha).

Sri T.L. Kiran Kumar, the learned Additional Government Advocate appearing for the respondents is at loss to justify the impugned demand. However, he sought to justify the impugned demand on the ground that it is done pursuant to the circular issued by the Government.

To adjudicate as to whether the petitioners are liable to pay the market value of ''A'' phot kharab land, it is necessary to refer to the classification of lands as per Rule 21(2) of the Karnataka Land Revenue Rules, 1966. The provisions contained therein are extracted herein below:

"Rule 21. (2) During the process of classification land included as unarable shall be treated as "Pot Kharab". Pot Kharab lands may be classified as follows:

(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing floors of the holder;

(b) That which is not assessed because: (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; (iv) assigned for village potteries."

The perusal of the afore extracted provisions reveals that ''A'' phot kharab land is that which is not under cultivation for the time being on account of the existence of the threshing floors, etc., but it continues to be a part of the mainland. It can be brought under cultivation anytime. On the contrary, ''B'' kharab land does not belong to any private individual. ''B'' phot kharab land is vested in the Government for being used as footpath, tank, burial ground, cremation ground, etc. Considering the said classification of ''A'' phot kharab and ''B'' phot kharab lands, this Court, in the cases of L.A. Krishnappa and Smt. G. Anuradha, has expressed the considered view that the applicant for conversion of the lands is not liable to pay the market value of the phot kharab ''A'' land to the Government.

Considering the provisions contained in Rule 21(2) of the Karnataka Land Revenue Rules, 1966 and the ratio laid down in the cases of L.A. Krishnappa and Smt. G. Anuradha I allow these petitions by quashing the impugned intimation insofar as it pertains to the demand for the payment of market value of Phot kharab ''A'' land. Consequently, the respondent 2 is directed to refund Rs. 15,75,000/- to the petitioners.

It is made clear that the other portions of the intimation are left undisturbed. The submission of the learned Senior Counsel that the petitioners are not pressing their challenge with regard to demanding Rs. 23,000/- as the fine for regularisation of the unauthorised construction, is placed on record.

Now I am left with the issue as to whether the interest is to be levied on the said amount. Admittedly, the petitioners have not made the payment under protest. There seems to have been some confusion as to whether such demand can be made. Thereafter, for the first time, the petitioners have submitted the representation dated 28-9-2015 for the refund of the amount with interest. Therefore, I am not granting the interest from the date of payment of the amount. I am granting the interest only from 28-9-2015 on which date the demand for the refund of the amount with interest is made for the first time by the petitioners'' side. The respondent 2 is directed to pay the interest from 28-9-2015 till the date of refund of Rs. 15,75,000/-.

The next question is at what rate of interest the respondent 2 has to pay the interest? The ends of justice would be met by my awarding the interest at 8% per annum. It is approximately at that rate that the deposits in any nationalised banks would be earning the interest.

The time for compliance of this order shall be two months from the date of the issuance of the certified copy of the today''s order.

These petitions are accordingly disposed of. No order as to costs.