K.A. Swami, J.
1. As this petition can be disposed of finally, rule is issued and it is heard for final disposal.
2. In this petition under Articles 226 and 227 of the Constitution of India, the petitioners have sought for the following reliefs:
i) declare that the circular dated 28-12-1987 bearing No. RD 159 LGT Annexure-A by the first respondent as ultra vires the Constitution of India and the provisions of the Karnataka Land Revenue Act, 1964;
ii) declare that Endorsements Annexure-B and C dated 2-5-1988 and 26-5-1988 respectively are illegal, unconstitutional and issued without jurisdiction;
iii) Issue an appropriate Writ, order or direction in the nature of Writ of mandamus for bearing the first respondent to give effect to Circular Annexure-A;
iv) issue a Writ in the nature of Writ of mandamus directing the first respondent to direct all its subordinate Officers not to act upon Circular Annexure-A;
v) Pass any other appropriate order in the circumstances of the case including an order towards costs.
3. Annexure-A is the Circular dated 28-12-1987 issued by the State Government directing its Officers not to evict the persons in unauthorised occupation of the Government land since prior to 1-7-1984. However, the authorities can proceed to take -action against persons who have been in unauthorised occupation subsequent to 1-7-1984.
Annexure-B is an endorsement dated 2-5-1988 issued by the Special Tahsildar for Land Reforms, Pavagada Taluk, Pavagada stating what the 4th respondent is in unauthorised occupation of an extent of 4 acres in S.No. 52 of Balasamudra village since prior to 1-7-1984; as such the action taken against him for eviction shall not be proceeded with having regard to the Circular dated 28-12-1987 Annexure-A issued by the State Government.
Annexure-C is a similar endorsement dated 26-5-1988 issued by the Special Tahsildar for Land Reforms, Pavagada relating to respondents 5 to 10 in respect of the lands bearing S.Nos. 52 and 53 of Balasamudra village.
4. The petitioners are residents of Balasamudra village. They have filed this Writ Petition for and on behalf of the residents of Balasamudra village. Thus the petition is a public in interest litigation. In addition to these petitioners, several other residents (44 persons) of the same village (Balasamudra village) have also filed an application I.A.No. 1 to implead them as petitioners. However, they have been permitted to come on record as respondents 11 to 56, by the order dated 19-9-1988. They support the petitioners.
5. The case of the petitioners is that the lands in question bearing S.No. 52 measuring 28-01 acres and S.No. 53 measuring 15-37 acres of Balasamudra village of Pavagada Taluk are gomal lands and they have been reserved as gomal; that there is a 'gokatte' in S.No. 52; that as per the provisions contained in the Karnataka Land Revenue Act, 1964 (hereinafter referred to as the 'Act'), gomal land cannot at all be granted to anyone and it has to kept for grazing of village cattle and if any person is in unauthorised occupation of the said land, he has to be summarily evicted. The further case of the petitioners is that the circular issued by the State Government is not only violative of the provisions of the Act governing the lands reserved for special purpose including gomal and is also violative of the provisions contained in Section 94 of the Act. Of course, it is also their contention that the circular is violative of Article 14 of the Constitution and that question will arise only if the circular is held to be well-within the powers of the State Government.
6. On the contrary, it is contended by Sri Udayashankar, learned Government Pleader that as far as the unauthorised encroachment by respondents 4 to 10 in the lands in question is concerned, their names have been deleted long back by the Tahsildar and that fact has been entered in the village records pertaining to the lands in question, an extract of which has also been produced as Annexure-G.2. Therefore, respondents 4 to 10 cannot now be permitted to claim that they have been in unauthorised occupation of the lands in question.
As far as the Circular Annexure-A is concerned, it is contended on behalf of the State that as the State Government intends to amend the Act, to enable it to regularise the unauthorised occupants of Government lands, since prior to 1-7-1984, it has become necessary to protect such of those persons who have been in unauthorised occupation since prior to 1-7-1984 of the Government lands, as some time is required to effect necessary amendment to the Act and the Rules. Hence the circular in question is issued in exercise of its executive power of the State.
Regarding the Endorsements Annexures-B and C, it is submitted that having regard to the circular issued by the State as per Annexure-A, the Special Tahsildar in law, cannot be held to have committed an error in issuing such endorsements.
7. The learned Counsel appearing for respondents 4 to 10 has adopted. The contentions of the learned Government Pleader and has placed reliance, on a decision of this Court in K.P. MANJUNATH AND ORS. v. STATE OF KARNATAKA AND ORS.
8. In the light of the aforesaid contentions, the following points arise for consideration:
1) Whether the Circular dated 28-12-1987 bearing No. RD 159 LGT 87 Annexure-A can be held to be within the power of the State Government?
2) Whether the Endorsements Annexures-B and C issued by the Special Tahsildar, Land Reforms, Pavagada are sustainable in law?
3) What order?
POINT NO. 1
9. The Circular Annexure-A relates to eviction of unauthorised occupants from Government lands. It states that the Government intends to amend the Act as to enable it to regularise such of those unauthorised occupants of Government lands who have been in occupation since prior to 1-7-1984 and until such amendment is effected, no eviction of those persons shall be effected. Therefore, the. Circular is issued directing the authorities not to proceed with eviction proceedings against those persons who have been in unauthorised occupation of Government lands since prior to 1-7-1984 but they are at liberty to proceed with the eviction of those persons who have been in unauthorised occupation of Government lands subsequent to 1-7-1984.
10. The executive power of the State Government under Article 162 of the Constitution, subject to the provisions of the Constitution and any other law for the time being in force extends to all the matters over which the State legislature is competent to legislate. Where the field is covered by a statute, the exercise of executive power is excluded. In such a case, the statute prevails over and anything which is covered by the statute has to be done only in accordance with the provisions contained in the statute. This is a settled legal position and it does not require any authority to be cited. However, for immediate reference a decision of the Supreme Court in P.V. SHETTY v. B.S. GIRIDHAR may be noticed.
11. I shall now consider whether the subject covered by the circular is covered by a statute.
12. It is relevant to notice that the Act provides for reservation of lands for specific purposes including gomal and preserving the land for certain purposes and for disposal of Government land in accordance with the Rules framed by the State Government under the Act and for eviction of unauthorised occupants of Government land. Section 71 of the Act specifically provides for assigning of lands for special purposes and when assigned, shall not be otherwise used without the sanction of the Deputy Commissioner. It is under Section 71, land is reserved for gomal and for other special purposes. Section 72 of the Act confers the right of grazing on free pasturage lands to the cattle of the village or villages to which such lands belong or have been assigned.
12.1. Section 71 of the Act apart from vesting the Deputy Commissioner with the power to set apart lands which are the properties of the State Government and not in the lawful occupation of any person or aggregate of persons in any village or portions of a village for free pasturage for the village cattle, for forest reserves or for any other public purpose, it also further imposes a condition that the lands assigned for the aforesaid purposes shall not be otherwise used without the sanction of the Deputy Commissioner. It also further provides that in the disposal of lands under Section 69 of the Act, due regard shall be had to all the special assignments for which the land is assigned.
13. As far as the lands reserved for gomal are concerned, they stand on a special footing in as much as they stand vested in the Mandal Panchayats. In this regard, it is necessary to notice that Section 46 of the Karnataka Village Panchayats and Local Boards Act, 1959 (hereinafter referred to as the 'Village Panchayats Act') conferred power on the State Government to issue a notification providing for transfer of management, maintenance of forests adjacent to the Panchayat Village and make over to the Panchayat the management to waste lands, pasture lands, or vacant lands belonging to the Government situated within the village and also for the management and cultivation of common lands including gomal lands etc. Section 49 of the Village Panchayats Act empowered the State Government to issue a Notification subject to such conditions and restrictions as it may think fit to impose, vesting open sites, vacant lands, public roads, streets, wells, river buds, tanks, and trees or any other property in the Village Panchayat. In exercise of the power under Section 46(1) and 49(1) of the Village Panchayats Act, the State Government issued a Notification bearing No. DRL 30 VAD 61 dated 27-12-1961 vesting open sites in the Goathana area common lands and other properties including gomal lands in the Village Panchayats. The relevant portion of the said Notification reads thus:
"...... .1. Open sites in the Goathana area:
The alienation of these lands for any purpose shall be made only with the permission of the competent revenue authority.
2) Common lands: Common lauds assigned for public purposes such as grating lands, including gomal, play-grounds, gundu-thope, burial grounds and village forests, subject to the condition that they are not alienated or used for any purpose without sanction of Government. In case grazing lands in a particular village are found to be in excess of the requirements of the village, such excess land shall be disbursed by competent revenue authority for cultivation purposes.
3) Public roads and streets in the Village Panchayat areas other, than those belonging to the Public Works, Department.
4) Wells serving a single. Panchayat.
5) Fishing rights in wells.
6) Trees standing in lands transferred to Panchayats.
7) Stone and lime quarries."
14. No doubt the Village Panchayats Act is repealed by the Karnataka Zilla Parishads, Taluk Panchayat Sami-this Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the 'Zilla Parishads Act') but the repeal has not affected the aforesaid Notification dated 21-12-1961 issued-by the State Government under Sections 46(1) and 49(1) of the Village Panchayats Act. Sections 57 and 59 of the 'Zilla Parishads Act' are similar to Sections 46 and 49 of the Village Panchayats Act. Clause (a) of the second proviso to Section 317 of the Zilla Parishads Act saves the Notifications issued by the State Government under the Village Panchayats Act, in view of the fact that the provisions similar to Sections 46(1) and 49(1) of the Village Panchayats Act are contained in Sections 57 and 59 of the Zilla Parishads Act, no different intention appears in the Zilla Parishads Act. Therefore, the aforesaid Notification issued under the Village Panchayats Act is saved and continued in as much as it is not shown that the said Notification has been withdrawn by the State Government. Thus the Mandal Panchayats established under the Zilla Parishads Act continue to have control and management of gomal lands in addition to other properties mentioned In the aforesaid Notification. Of course the power of the Deputy Commissioner under Section 94 of the Act is not taken away by reason of vesting the management and control of gomal lands in the Mandal Panchayats.
The Deputy Commissioner or any other Revenue Officer delegated with the power under Section 94 of the Act is entitled to and is duty-bound under law to initiate a proceeding for eviction of unauthorised occupants of Government land including the land reserved for gomal. Thus the use of the gomal land and management, and control and eviction of unauthorised occupants of gomal lands are covered by the Act and the Rules framed thereunder. Therefore, the State Government in the purported exercise of its executive power cannot by issuing a circular of the nature in question interfere with the exercise of power under the Act by the Authorities to evict the unauthorised occupants.
15. Section 97 of the Act provides for disposal of lands or other properties belonging to the State Government under Section 67 of the Act. Section 67 of the Act provides that public roads etc. and also which are not the property of others belong to the Government. It is in exercise of the power under Section 69 read with Section 197 of the Act, the Rules are framed for disposal of Government lands known as Karnataka Land Grant Rules, 1969 (hereinafter referred to as the 'Land Grant Rules'). The Land Grant Rules provide for grant of Government land to persons who satisfy the norms, laid down therein. Therefore, there is no scope for the State Government to exercise the executive power in the matter of disposal of Government lands as the same has to be done only in accordance with the provisions contained in the Act and the Land Grant Rules. Of course, there is a power vested in the State Government under Rule 27 of the Land Grant Rules to relax the conditions for grant of land. The circular in question does not relate to that aspect of the matter.
16. Over and above, there is a specific provision contained in Section 94 of the Act providing a procedure for eviction of unauthorised occupants. Sub-section (1) of Section 94 of the Act provides for imposing penalty on the unauthorised occupants. Sub-section (3) lays down a procedure and specifies the authority to evict the unauthorised occupants of Government land, it is necessary to reproduce Section 94 of the Act which reads thus;
"94. Penalties for unauthorised occupation of land - (1) Any person who shall, unauthorisedly enter upon the occupation of any land set apart for any special purpose or any unoccupied land which has not been alienated and any person who uses or occupies any such land to the use or occupation of which he is not entitled or has ceased to be entitled, shall pay twice such amount of assessment for every year of his unauthorised occupation, as would be leviable in the same village on the same extent of similar land used for the same purpose; and shall also be liable at the discretion of the Deputy Commissioner, for every year of his unauthorised occupation, to a fine not exceeding five hundred rupees per acre, if such occupation has been for the purposes of (SIC) and not exceeding one thousand (SIC), if such occupation has been for (SIC) cultural purpose.
The decision of the Deputy Commissioner under Sub-section (1) as to the amount of assessment and fine payable for the unauthorised occupation of the land shall be final and in determining this amount, occupation for a portion of a year shall be counted as for a whole year.
3) Notwithstanding anything contained in the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1961 (Karnataka Act 3 of 1902), the person unauthorisedly occupying any such land shall also be summarily evicted by the Deputy Commissioner and any crop including trees, raised in the land shall be liable to forfeiture and any holding or other construction erected thereon shall also, if not removed by him after such written notice as the Deputy Commissioner may deem reasonable, be liable to forfeiture or to summary removal.
A) Forfeiture under this Section shall be adjudged by, the Deputy Commissioner and any property so forfeited shall be disposed of as the Deputy Commissioner may direct and the cost of the removal of any encroachment under this Section shall be recoverable as an arrear of land revenue."
17. In the light of the aforesaid provision contained in Section 94 and the other provisions hither to referred to, it is not possible to sustain the contention of the learned Government Pleader and hold that the circular Annexure-A is within the power of the State Government. It may be that the Government have a very laudable object to achieve regularising the unauthorised occupants who have been in unauthorised occupation for several years of the Government lands. But that object has to be implemented only in accordance with the provisions of the Act and the Rules framed thereunder and not in the manner which the State Government have tried to do under the circular in question. Therefore, I am of the view that the impugned circular is opposed to the provisions of the Act to which a reference has already been made and as such it is liable to be quashed.
17A. There is a duty imposed upon the statutory authorities under the Act to evict unauthorised occupants whether it be gomal land or any other land belonging to Government and impose penalty for the period during which they were in unauthorised occupation of the said lands. The unauthorised occupants have ceased to have any right in the Government land or in the gomal land in their unauthorised occupation in view of deletion of Section 94-A of the Act which enabled them to claim protection. It is the occupation of such persons which the Government has tried to sustain or support or retain by issuing the impugned circular.
18. The decision in K.P. Manjunatha's case does not help respondents 4 to 10. It does not also lay down anything contrary to what has been stated above. It also does not hold that the State Government can nullify the provisions of the Act and the Rules by issuing a circular in the purported exercise of its executive power.
19. For the reasons stated above, point No. 1 is answered in the negative.
20. In the light of the finding recorded on point No. 1, point No.2 has to be answered in the negative in as much as the authorities are duty-bound to act in accordance with the provisions of the Act and the Rules and proceed to evict unauthorised occupants of Government lands or gomal lands or any other land reserved for specific purposes under- the provisions of the Act. Failure to take action in accordance with the provisions of the Act and the Rules to evict the unauthorised occupants would amount to failure to discharge their duties in accordance with law, thereby rendering themselves (SIC) for disciplinary proceeding. Accordingly (SIC) No. (SIC) answered in the negative.
21. For the reasons stated above, the Writ Petition is allowed. The circular bearing No. RD 159 LGT 87 dated 28-12-1987 produced, as Annexure-A issued by the State Government is hereby quashed. The endorsement bearing No.LND.RUC.CR.1/88-89 dated 2-5-1988 Annexure-B, and the endorsement bearing No. LND.RUR, LR.2/88-89 dated 26-5-1988 Annexure-C are hereby quashed. Respondent-2 is directed to proceed with the (SIC) respondents 4 to 10 in accordance with law.