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PETITIONER: STATE OF KARNATAKA & ORS.

       Vs.

RESPONDENT: KRISHNOJI RAO AND ANR.

DATE OF JUDGMENT:       25/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (4)   133        1996 SCALE  (3)391

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      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  Kulkarniki  Watan (Abolition) Act,  1950 (for  short,  the  ’Act’).  The  land bearing Survey No.87 of Fevadihal village was unassessed and uncultivable waste  land as  per the  Mutation Entry  No.313 dated August 50, 1960 The Assistant Commissioner, Dharwad in his order  dated June  17, 1964  assigned an  extent of  109 acres 34  guntas of  land in  the  said  Survey  for  public purpose, namely, grazing purposes for the village cattle. On 6.4.1964, it was decided that an extent of 100 acres of land in the  said Survey  be transferred to the Forest Department for afforestation.  The Government in its order dated August 1, 1964 granted actual possession of 100 acres of land to be handed over  to the Forest Department. It was entered in the Revenue 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  matter for fresh enquiry.  On  March  4,  1968,  the  Assistant  Commissioner regarded on  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 cattles and  he also  reserved  100  acres  for  the  Forest Department for afforestation. The Deputy Commissioner by suo motu order dated January 24, 1977 has cancelled the order of the Assistant Commissioner dated march 4, 1968.      Feeling aggrieved,  the respondent  filed Writ Petition No.2236/77 in  the High  Court. The  learned single Judge of the High  Court by  order dated  December 4, 1985 has partly allowed the writ petition and directed to grant an extent of 201 acres  34 guntas  to the  respondent. When the appellant filed appeal,  the Division  Bench dismissed the same, Thus,

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this appeal by special leave.      Whereas  the   first  respondent   has   been   served, whereabouts of  the 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  order granting  100 acres  for  afforestation  and 109.34 guntas  for grazing  purposes having become final and not  challenged   earlier  by   the  Watandar,  they  cannot challenge the  same due  to reversal of the earlier order by Deputy Commissioner  in exercise  of suo  motu power. In the writ petition,  they could  not have  challenged the  order. They could  have challenged  only with regard to the residue of the  land which  should have  been considered. The reason beings that  the right  of the  Watan  under  Section  4  is subject to the rights created in Section 4-A of the Act. The Division Bench and the learned single Judge, therefore, have not  property   considered  the   controversy.   Since   the respondents are  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.      The appeal is accordingly allowed. No costs.