Karnataka High Court
The State Of Karnataka Rep By Its Revenue ... vs Narasimha Avadhani on 7 July, 2023
Author: S.G. Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 07th DAY OF JULY, 2023
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT APPEAL NO. 100188 OF 2022 (LA-RES)
BETWEEN
1. THE STATE OF KARNATKA,
REPRESENTED BY ITS REVENUE SECRETARY,
DEPARTMENT OF REVENUE,
M.S. BUILDING, AMBEDKAR VEEDHI,
BENGALURU-560001.
SHIVAKUMAR
HIREMATH
2. THE DEPUTY COMMISSIONER,
Digitally signed by
DHARWAD DISTRICT,
SHIVAKUMAR
HIREMATH
Location: High Court
DHARWAD-580008.
of Karnataka,
Dharwad
Date: 2023.07.11
15:29:49 +0530
3. THE ASSISTANT COMMISSIONER,
AND SPECIAL LAND ACQUISITION OFFICER,
DHARWAD 580008.
4. THE TAHASILDAR,
DHARWAD TALUK,
DHARWAD-580008.
... APPELLANTS
(BY SMT. VIDYAVATHI M.K. AAG A/W;
SRI. V.S. KALASURMATH HCGP)
2
AND
1. NARASIMHA S/O. GURUCHARYA AVADHANI,
AGE: 69 YEARS, OCC. EX-SERVICEMEN,
TEJSASWININAGAR, DHARWAD-580002.
2. SHAMSHADBEGAUM W/O. ABDUL KAREEM MORAB,
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O: RASOOLPUR ONI, DHARWAD-580001.
3. ZAMAT S/O. ABDUL KAREEM MORAB,
AGE: 42 YEARS, R/O: RASOOLPUR ONI,
DHARWAD-580001.
4. THE REGISTRAR,
UNIVERSITY OF AGRICULTURAL SCIENCES,
DHARWAD-580005.
... RESPONDENTS
(BY SRI. SOURABH SONDUR ADVOCATE FOR RESPONDENT NO.1;
SRI. K.L. PATIL ADVOCATE FOR R4)
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE
IMPUGNED THE ORDER DATED 1301.2021 PASSED BY THE LEARNED
SINGLE JUDGE IN W.P.NO.61563/2011(LA-RES), GRANT SUCH OTHER
RELIEFS AS THIS HON'BLE COURT DEEMS FIT IN THE FACTS AND
CIRCUMSTANCE OF THE CASE, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.06.2023 AND COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY VIJAYKUMAR A. PATIL, J., DELIVERED
THE FOLLOWING:
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JUDGMENT
This intra-Court appeal is filed by the State Government challenging the order dated 13.01.2021 passed in W.P.No.61563/2011 (LA-RES) by the learned Single Judge, whereby, petition filed by the respondent No.1 was allowed.
2. Brief facts giving rise to the filing of this appeal are that, the respondent No.1 invoked the jurisdiction of writ court under Article 226 of the Constitution of India, seeking prayer to issue writ in the nature of mandamus directing the revenue authorities to restore the possession of the land or pay compensation. It is averred that, the respondent No.1 is the owner, in lawful possession of agricultural land in block No.33 measuring 5 acre 24 guntas in Saidapur village of Dharwad taluk. He was working in Indian Air force, hence, he could not cultivate the land in question. At the request of respondent No.1, the State 4 Government took over the possession of the land for the management under Section 65 of the Bombay Tenancy and Agricultural Land Act, 1948 by passing an order dated 24.02.1960.
3. The land in question was allotted to one Sri.A.A.Morab by the revenue authorities for cultivation of land for a period of ten years and after expiry of the period the original owner i.e. the respondent No.1 requested the Assistant Commissioner, Dharwad to restore the land in question. Pursuant to the said request the Assistant Commissioner vide order dated 21.06.1971 ordered for restoration of land in favour of respondent No.1. The allottee of the land Sri. Morab assailed the order dated 21.06.1971 before the appellate authority. The appeal came to be dismissed. After dismissal of the appeal the allottee filed O.S.No.19/1973 before the Munsiff Court, Dharwad, challenging the order of the Assistant Commissioner dated 21.06.1971. The suit came to be dismissed. Being 5 aggrieved by the dismissal the allottee filed R.A.No.15/1975 on the file of Additional Civil Judge, Dharwad. The said appeal was also dismissed on 30.09.1978.
4. The allottee had filed an application in Form No.7 under Section 48A(i) of the Karnataka Land Reforms Act for grant of occupancy right as a tenant. The Land Tribunal allowed the application on 05.04.1978. The respondent No.1 challenged the order of the Land Tribunal in Writ Petition No.5266/1978. This Court allowed the writ petition and the matter was remanded back to the Land Tribunal for fresh consideration. The Land Tribunal once again passed an order dated 28.11.1988 without notice to the respondent No.1 granted occupancy right in favour of Sri. A.A.Morab. The order of the Land Tribunal was again assailed by the respondent No.1 in W.P.No.40120/1993. This Court vide order dated 01.07.2006 set aside the order of the Land Tribunal and directed the Land Tribunal to settle the dispute, keeping in mind the ratio laid down in 6 Hanumantha Durga Naik Vs. State of Karnataka, reported in 1988 (3) KLJ 294.
5. It is averred that, meantime the allottee had developed the land by forming residential layout and sold to third parties. The Deputy Commissioner confiscated the land in question and deleted the name of Sri. A.A.Morab from Kabjedar column of revenue records on 22.10.1998.
6. After remand the Land Tribunal, Dharwad, vide order dated 31.05.2010 held that, Sri. A.A.Morab cannot claim as a tenant and rejected the form No.7.
7. It is further averred that, the respondent No.1 approached the Tahasildar for restoration of land. The revenue authorities have informed the respondent No.1 vide letter dated 23.07.2010 that the subject land has already been acquired, for the benefit of University of Agricultural Science, Dharwad, on 01.04.1999. It was also informed that, the allottee Sri. A.A.Morab had filed an 7 application under Section 18(1) of the Land Acquisition Act, 1894 seeking reference. The reference Court in LAC No.366/1989 has fixed the market value of the land in question at Rs.50,000/- per acre and the petitioner was advised to withdraw the compensation amount kept in Revenue Deposit pursuant to the award passed by the SLAO/Assistant Commissioner.
8. It is also averred that, the respondent No.1 has submitted representation dated 31.07.2010 to the Assistant Commissioner, Dharwad, requesting him to take steps not to release the compensation amount in favour of Sri.A.A.Morab or his legal heirs. Similar letter was addressed on 12.09.2010, however, meanwhile the respondent Nos.2 and 3 withdrawn the compensation amount from the reference Court. It is further averred that, the beneficiary University of Agricultural Science, Dharwad, has assailed the order of the reference Court in M.A.No.68/2009 and the said appeal was allowed-in-part by 8 observing that the claimants are entitled to receive the compensation subject to the result of W.P.No.61563/2011. With this factual background the respondent No.1 has filed the writ petition with prayer to restore the land or pay compensation for the acquired land.
9. The appellant-State Government has not filed objections to the writ petition. It has orally opposed the writ petition contending that, the writ petition is not maintainable, the respondent No.1 has to approach the Civil Court for establishing his right over the property or in alternate he has to proceed against Sri.A.A.Morab for recovery of amount. The State Government sought for the dismissal of the writ petition. The respondent Nos.2 and 3 have remained absent and placed ex-parte before the learned single Judge.
10. The learned Single Judge after considering the rival contentions, allowed the writ petition of the 9 respondent No.1 by directing the appellants to pay compensation within six months as per the award of the reference Court and recover the same from the respondent Nos.5 and 6 therein. In the aforesaid factual matrix the respondent/State is in appeal.
11. Smt. Vidyavathi, learned AAG for the appellant/State submits that, the impugned order of the learned Single Judge dated 13.01.2011 is not sustainable in law and is contrary to the facts and documents on record. It is submitted that, the learned Single Judge has failed to appreciate the document at Annexure-E, wherein, the land in question was restored in the name of the respondent No.1 vide order dated 21.06.1971, however, he failed to keep possession of the land with him. Subsequently, Sri. A.A.Morab has initiated civil proceedings seeking declaration and injunction against the restoration order. It is further submitted that, after restoration of land in favour of respondent No.1 the acquisition proceedings are initiated 10 and award came to be passed. The respondent No.1 has not taken any steps to seek reference or challenge the acquisition proceedings. The respondent No.1 was litigating before the Land Tribunal, wherein, Sri. A.A.Morab claiming to be tenant had filed application for grant of tenancy rights. It is also submitted that, the respondent No.1 has filed an impleading application in M.A.No.68/2009, however, he has failed to challenge the order passed in M.A.No.68/2009 before the Higher Court nor he has challenged the reference Court Judgment and award. Hence, he cannot maintain the writ petition. She submits that, after passing of the award by the Assistant Commissioner the amount is kept in revenue deposit and it was open for the respondent No.1 to withdraw the said amount, without doing so, he has filed writ petition which is not maintainable.
12. It is also submitted that, the prayer for seeking compensation ought not to have been entertained by the 11 learned Single Judge as the respondent No.1 has failed to file a reference and failed to challenge the reference Court order before the higher forum. In the absence of any challenge to the Reference Court order, the learned Single Judge is not justified in entertaining the writ petition and ought to have dismissed the same.
13. Learned counsel Sri Sourabh Sondur appearing for the respondent No.1 submits that, the respondent No.1 was working in the Indian Air Force hence he handed over the management of the subject land owned by him as per Section 65 of Bombay Tenants and Agricultural Land Act to the State authorities. It is submitted that the State authorities have leased the land in question in favour of Sri.A.A.Morab the predecessor of respondent Nos.5 and 6 and after completion of the assigned tenure the land was taken back from the allottee and restored to the petitioner vide order dated 21.06.1971. When things stood thus, the allottee Sri.A.A.Morab has filed O.S.No.19/1973 before the 12 Principal Munsiff Dharwad seeking declaration and permanent injunction against the official respondents and against the family members of one Honnavara that the termination of tenancy is bad. The said suit came to be dismissed, then he filed R.A.No.15/1975 assailing the judgment and decree in O.S.No.19/1973. The said appeal came to be dismissed.
14. It is submitted that, the said Sri.A.A.Morab has filed Form No.7 before the land tribunal Dharwad seeking occupancy rights in respect of the same subject land. The land Tribunal has allowed the said application initially, however, after remand on two occasions, the Land Tribunal vide order dated 31.05.2010, has rejected the claim of Sri.A.A.Morab. In the meanwhile, the Deputy Commissioner vide order dated 03.09.1998 confiscated the land in question from Sri.A.A.Morab and his name was deleted from the revenue entries.
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15. It is further submitted that the respondent No.1 on 23.07.2010 submitted the representation to the appellants to restore back the possession of land in his favour, the jurisdictional Tahasildar has sent communication stating that the land in question has been acquired for the purpose of university of agricultural sciences Dharwad and also informed that Sri.A.A.Morab has filed LAC No.366/1989. It is further submitted that immediately thereafter the respondent No.1 approached the assistant commissioner seeking not to disburse the compensation amount in favour of legal heirs of the deceased Sri.A.A.Morab. The respondent beneficiary of acquisition has preferred M.A.No.68/2009 assailing the reference court judgment and award. In the said proceedings, respondent No.1 sought impleadment, however, the appeal filed by the beneficiary came to be allowed in-part vide judgment dated 12.07.2013 and the appellate court has held that the claimants are entitled to receive compensation subject to 14 the result of writ petition No.61563/2011, the learned Single Judge has considered the material available on record and ordered for payment of compensation.
16. We have heard the learned counsels for the parties, perused the writ appeal papers and the records. The points arise for consideration in this appeal are :
(i) Whether the learned single Judge is justified in issuing direction to the appellants to pay compensation as per the reference Court award and recover the same from the legal heirs of Sri. A.A.Morab?
(ii) What orders?
17. The answer to the above points are in affirmative for the following reason:
(a) There is no dispute that the subject matter of land i.e. agricultural land in Block No.33 measuring 5 acre 25 guntas in Saidapur village of Dharwad, was owned by the respondent No.1 herein and he has requested the State authorities to take the land for the management under the 15 provisions of Bombay Tenancy and Agricultural Land Act, 1984, as he was working in the Indian Army. The State authorities vide order dated 24.02.1960 have taken over the land for the purpose of management and the same was allotted to Sri. A.A.Morab for cultivation for a period of ten years.
(b) On completion of ten years duration the Assistant Commissioner, Dharwad vide order dated 21.06.1971 passed order for restoration of subject land in favour of respondent No.1.
(c) The allottee Sri.A.A.Morab filed O.S.No.19/1973 before the Munisiff Court, Dharwad, seeking declaration and injunction that the order of the Assistant Commissioner dated 21.06.1971 for restoration is contrary to law. The said suit came to be dismissed. Thereafter, he has preferred an appeal in R.A.No.15/1975, which was dismissed on 30.09.1978. Thereafter, Sri.A.A.Morab filed an application 16 in Form No.7 for grant of occupancy rights under Section 48A(i) of the Karnataka Land Reforms Act. Finally, the Land Tribunal rejected the application of the Sri.A.A.Morab on 31.05.2010 after remand by this Court on three occasions in the writ proceedings.
(d) Meantime the subject land was acquired by the State Authorities for the benefit of University of Agricultural Sciences, Dharwad. Sri.A.A.Morab, being not satisfied with the market value determined by the Land Acquisition Officer, has filed an application under Section 18(1) of Land Acquisition Act, 1894 seeking for enhancement of compensation. The reference Court, allowed the reference. The beneficiary of acquisition has assailed the reference Court Judgment in M.A.68/2009. Meanwhile, the respondent No.1 has entered correspondence with the State authorities requesting not to disburse compensation in favour of Sri.A.A.Morab and also sought impleadment in M.A.No.68/2009.
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(e) There is no dispute with regard to the fact that respondent No.1 was the owner of land in question. It is also not in dispute that Sri.A.A.Morab has never acquired any title over the subject land. The right of Sri.A.A.Morab was only to enjoy the property as per allotment for a particular duration. It is also not in dispute that the subject land has been acquired by the appellants for the purpose of University of Agricultural Sciences, Dharwad.
(f) Sri.A.A.Morab has failed to establish any right over the subject land in civil suit or proceedings before the Land Tribunal, when things stood thus, it is the duty of the State authorities to protect the right of respondent No.1, who is the real owner of the property in question, either by restoring the land back to him or by paying the compensation, if it is acquired.
(g) The contention of the State that the writ Court would not grant the reliefs sought by the respondent No.1 18 for payment of compensation, is required to be rejected at the threshold for the reason that there is no dispute with regard to ownership and title over the property of the respondent No.1. The appellant-State Government does not dispute that they have taken over the immovable property of respondent No.1 by compulsory acquisition by exercising their power of eminent domain. When things stood thus, it is the duty of the appellant-State Government to pay just and fair market value of the acquired land to the owner. The appellant-state authorities cannot act arbitrary by depriving the respondent No.1 who is the owner of property in question from paying just and fair market value of the acquired land. The action of the appellant is in violation of Article 300A of Constitution of India. The Hon'ble Supreme Court in the case of Kalyani (Dead) Through LRS and other vs. The Sulthan Bathery Municipality and others reported in (2022) SC 2073 has held in paragraph Nos. 10, 11, 20, 21 as under :
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10. The appellants are farmers and the land utilized is agricultural land. It was part of their livelihood.
Depriving them of their part of their livelihood and also of their property without authority of law would be violative of Article 21 and Article 300A of the Constitution.
11. Article 300A though not a fundamental right but nevertheless it has status of being a constitutional or a statutory right. It provides that no citizen would be deprived of his property save without authority of law. Depriving somebody of his property, where it is land, can be made by number of modes e.g. by acquisition, surrender or by transfer and other facets also. In the present case, it being utilized for the road to be owned by the Panchayat/Municipality, it could either have been voluntarily surrendered, transferred by way of title deeds or by way of acquisition as may be provided under the statute.
20. Article 300A clearly mandates that no person shall be deprived of his property save by authority of law. In the present case, we do not find, under which authority of law, the land of the appellants was taken and they were deprived of the same. If the Panchayat and the PWD failed to produce any evidence that appellants have surrendered their lands voluntarily, depriving the appellants of the property would be in violation of Article 300-A of the Constitution. 20
21. A Constitution Bench of this Court in the case of K.T. Plantation Private Limited and another vs. State of Karnataka1 apart from others, dealt with an issue relating to payment of compensation where a person is deprived of his property after deletion of Article 31(2). It laid down that there are two requirements to be fulfilled while depriving a person of his property. Requirement of public purpose is a pre- condition and right to claim compensation is also inbuilt in Article 300-A. 1 (2011)9 SCC 1 While answering the reference in paragraph 221(e) it provided as follows:
"221. We, therefore, answer the reference as follows:
Xxx xxx xxx
(e) Public purpose is a precondition for deprivation of a person from his property under Article 300-A and the right to claim compensation is also inbuilt in that article and when a person is deprived of his property the State has to be justify both the grounds which may depend on scheme of the statute, legislative policy, object and purpose of the legislature and other related factors." Construction/widening of road no doubt would be a public purpose but there being no justification for not paying compensation the action of the respondents would be arbitrary, unreasonable and clearly violative of Article 300-A of the Constitution.21
(h) Keeping in mind the ratio laid down by the Hon'ble Supreme Court referred supra, it is an obligation of the appellant-State Government to pay compensation for the property compulsorily acquired by them. The obligation to pay compensation arise from the natural right of the individual who has been deprived of by such acquisition of his immovable property by the state authorities while exercising their power of eminent domain. The appellant-
state authorities are estopped from raising the plea that respondent No.1 ought to have participated in the reference proceedings or would have challenged the reference Court's judgment and award in a higher forum. The Land Acquisition Officer/Assistant Commissioner has not issued any notice to respondent No.1 with regard to acquisition proceedings or during the award proceedings. Due to the lapse on the part of appellant-State Government, the respondent No.1 cannot be to deprived of getting just and fair compensation to his acquired land.
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(i) The contention of the appellant-State that the learned Single Judge ought not to have entertained the writ petition under Article 226 of Constitution of India when there is a prayer for restoration of possession. The said contention of the State is required to be rejected for the simple reason that respondent No.1, who has invoked the extraordinary jurisdiction of this Court under Article 226 of Constitution of India, has sought an alternate prayer for payment of compensation for the acquired land. The learned Single Judge considering the material available on record has given a categorical finding that the appellant- State has failed to pay any compensation to respondent No.1, who has lost his land in acquisition proceedings. The said finding of learned Single Judge is in consonance with the material available on record and settled position of law which does not call for any interference in this appeal. Moreover, the learned Single Judge has not granted the prayer for restoration of possession.
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18. The Hon'ble Supreme Court in the case of Radhe Shyam vs. State of Uttar Pradesh (2011) 5 SCC 545 paragraph ink page 44 has held as under :
"....while examining the land owner's challenge to the acquisition of land in a petition filed under Article 226 of the Constitution, the High Court should not adopt a pedantic approach, but decide the matter keeping in view the constitutional goals of social and economic justice and the fact even though the right to property is no longer a fundamental right, the same continues to be an important constitutional right and in terms of Article 300-A, no person can be deprived of his property except by authority of law...."
19. The constitutional Courts cannot deny justice merely on the ground that respondent No.1 has not challenged the award before the reference Court or the judgment of reference Court before the High Court. This Court cannot ignore the fact that the appellant-State has failed to discharge its duty in protecting the interest of the title holder of the property.
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20. The appellant-State Government have not issued any notice of acquisition proceedings to the respondent No.1. The land acquisition Officer has passed an award dated 23.09.1986, wherein, it is clearly stated that, the name of the Government management appears in the occupants column and the name of Sri. A.A.Morab as a lease holder besides, but the names of Basavanneppa and Ningappa and Narsimh Guracharya Avadhani - respondent No.1 herein and others names are referred as having reversionary rights in the property. It is also observed that, "an erratum notification to Section 6 to be proposed to the Government for sanction. Hence, the amount of compensation should be deposited to R.D. for making payment as per the report of the Spl. Tahasildar, Land Reforms and also after getting the report, as to how the Government management has appeared in the Kabzedar column and after getting clearance under the provisions of ULC Act, 1976, the disbursement shall be made." These 25 observations in the award clearly goes to show that, there was a dispute with regard to disbursement of the compensation. It is also not in dispute that, in the preliminary as well in the final notification issued for acquisition of land in question, the name of Narasimha Gurudev Avadhani has not been reflected and no notice was issued to him. Knowing fully well about the observations in the award, the appellants have allowed the allottee i.e., Sri. A.A.Morab to take away the compensation from reference Court. The Land Acquisition Officer/Assistant Commissioner who was a party before the reference Court, ought to have objected for the disbursement of compensation by the reference Court in favour of Sri.A.A.Morab. Instead of that the Assistant Commissioner/SLAO has stated that they have no objection for disbursement of compensation to Sri.A.A.Morab, despite knowing that the respondent No.1 is the real owner of the land in question and when Sri. A.A.Morab has failed to 26 establish right over the property in question. The act of the appellant-State Government is arbitrary and illegal in denying the compensation to the real owner. Hence, now the appellant-State cannot be allowed to take technical plea with an intention to deprive the legitimate right of respondent No.1 to receive just and fair compensation, to over come their lapses.
21. For the aforesaid reasons, we do not find any merit in this appeal. The same fails and is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE SVH