Siddappa S/O Gadeppa Madar And Anr vs The Commissioner And Ors
2022 Latest Caselaw 37 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 3RD DAY OF JANUARY 2022

                              PRESENT

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                                 AND

       THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA


          WRIT APPEAL NO.200096/2016 (LA-RES)

BETWEEN:

1.     Siddappa S/o Gadeppa Madar
       Aged about 71 years
       R/o Lotageri, Tq. Muddebihal
       Dist: Vijayapura

2.     Gangadhar S/o Laxman Madar
       Aged about 35 years
       R/o Nalatwad, Tq. Muddebihal
       Dist: Vijayapura
                                                 ... Appellants

(By Smt. Ratna N. Shivayogimath, Advocate)

AND:

1.     The Commissioner
       Rehabilitation and Land Acquisition
       Officer and Ex-Officio
       Secretary to Government
       Revenue Department
       Navnagar, Bagalkot-587101

2.     The General Manager
       Land Acquisition, Upper Krishna Project
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       Navnagar, Bagalkot-587101

3.     The Additional Special Land
       Acquisition Officer
       Upper Krishna Project
       Alamatti, Bagalkot-587101

4.     The Executive Engineer
       Upper Krishna Project
       Alamatti, Bagalkot-587101
                                                        ... Respondents

(By Sri Mallikarjun C. Basareddy, HCGP)

        This Writ Appeal is filed under Section 4 of the High Court Act,
praying to set aside the order dated 20.01.2016 passed by the learned
Single Judge in W.P.No.204713/2015 (LA-RES) and allow the writ
petition filed by the appellants as prayed for.

       This appeal coming on for final             hearing   this   day,
S.R.Krishna Kumar J., delivered the following:

                            JUDGMENT

This appeal by the petitioners in W.P.No.204713/2015

is directed against the impugned order dated 20.01.2016

passed by the learned Single Judge whereby the said petition

filed by the petitioners was rejected by this Court.

2. Heard the learned counsel for the appellants and the

learned High Court Government Pleader for the respondents

and perused the material on record.

3. The material on record indicates that the petitioners

claiming to be the owners of immovable property bearing VPC

No.141 of Lotageri village, Muddebihal taluk, Vijayapur, filed

the aforesaid petition challenging the notification dated

29.04.2004 issued by the respondents whereby the

preliminary notification dated 26.02.2004 issued under Section

4(1) of the Land Acquisition Act, 1894 was sought to be

withdrawn and further acquisition proceedings in pursuance of

the aforesaid preliminary notification were dropped/deleted

insofar as the subject property was concerned. After hearing

the learned counsel for the petitioners and the learned counsel

for the respondents, the learned Single Judge was pleased to

reject the said petition on the ground that the question with

regard to whether the subject property was submerged or not

so as to entitle the petitioners to compensation is a pure

question of fact which would have to be adjudicated only

before the trial court and not by this Court in exercise of its writ

jurisdiction under Article 226 of the Constitution of India.

4. In the present appeal, on 05.07.2021, this Court

directed the respondents to file a report as to whether the

subject property was submerged in the backwaters of Upper

Krishna Project. Pursuant to the same, the respondents have

filed a memo dated 15.07.2021 enclosing the endorsement

dated 09.07.2021 which would indicate that subject property

was in fact submerged in the backwaters of Narayanpura Dam

constructed for the purpose of Upper Krishna Project. In our

considered opinion, in view of the aforesaid memo dated

15.07.2021 and the report filed by the respondents, it is clear

that the subject land/property has been submerged in the

backwaters of Upper Krishna Project for the purpose of

construction of Narayanpura Dam. Consequently, in the light

of the decision of this Court in P.G. Belliappa vs.

Commissioner, BDA reported in 2020 (1) Kar.L.J. 504

wherein this Court has followed the decision of the Hon'ble

Apex Court in the case of Tukaram Kana Joshi & Ors. Vs.

M.I.D.C. & Ors. reported in (2013) 1 SCC 353 wherein it is

held that the respondents would be liable to pay compensation

in favour of a land-loser in respect of a property which the

respondents have taken over and utilized by dispossessing

the land-loser without recourse to acquisition proceedings, the

prayer/request of the appellants in the present appeal for

payment of compensation deserves to be granted and the

respondents are to be directed to initiate proceedings under

the provisions of Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 and pay compensation in favour of the

appellants.

5. In the result, we pass the following:

ORDER

(i) The Writ Appeal is hereby allowed.

(ii) The impugned order dated 20.01.2016 passed in W.P.No.204713/2015 is hereby set aside and the writ petition is partly allowed.

      (iii) The     respondents            are      directed     to    take
              necessary steps to acquire the subject
              property       bearing       VPC        No.141      of    the
              appellants,           by         initiating      acquisition

proceedings under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, within a period of six months from the date of receipt of a copy of this order and to pass an award and pay the compensation in favour of the appellants.

Sd/-

JUDGE

Sd/-

JUDGE

swk