Karnataka High Court

Vishwanath And Ors vs The State Of Karnataka And Ors on 22 June, 2022

Bench: S.Vishwajith Shetty

                         1         W.P.No.201287/2022


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 22ND DAY OF JUNE, 2022

                      BEFORE

  THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY

   WRIT PETITION No.201287/2022 (LA-RES)

BETWEEN

1 . VISHWANATH S/O ANATHRAM.
AGE. 77 YEARS, OCC.AGRICULTURE,
R/O KONCHAVARA, TQ. CHINCHOLI,
DIST. KALABURAGI

2 . NAGENDRA S/O VISHWANTH
AGE. 49 YEARS, OCC.AGRICULTURE,
R/O. KONCHAVARA, TQ. CHINCHOLI,
DIST. KALABURAGI

3 . AMBAJI S/O VISHWANTH
AGE. 44 YEARS, OCC.AGRICULTURE,
R/O KONCHAVARA, TQ. CHINCHOLI
DIST. KALABURAGI

4 . SMT.SUNITABAI W/O NAGENDRA
AGE. 42 YEARS, OCC.AGRICULTURE,
R/O KONCHAVARA, TQ. CHINCHOLI
DIST. KALABURAGI

5 . SMT. GAYATRI W/O AMBAJI
AGE. 39 YEARS, OCC. AGRICULTURE,
R/O KONCHAVARA,
TQ. CHINCHOLI, DIST KALABURAGI
                                       ...PETITIONERS
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
                           2        W.P.No.201287/2022


AND

1 . THE STATE OF KARNATAKA
REP. BY ITS PRINCIPLE SECREATARY
IRRIGATION DEPARTMENT,
M.S BUILDING, BANGALORE 560001

2 . THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,
VIKAS SOUDHA, BANGALORE 560001

3 . THE DEPUTY COMMISSIONER
KALABURAGI DISTRICT,
KALABURAGI 585101

4 . THE SPL. LAND ACQUISITION OFFICER
SMALL AND MEDIUM IRRIGATION PROJECT
VIKASH BHAVAN, KALABURAGI

5 . THE CHIEF EXECUTIVE ENGINEER
SMALL AND MEDIUM IRRIGATION PROJECT
AIWAN-E-SHAHI ROAD,
KALABURAGI 585105
                                         ...RESPONDENTS

(BY SRI SHARANABASAPPA M. PATIL, HCGP)


    THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT, DIRECTION OR ORDER IN THE NATURE OF
CERTIORARI QUASHING THE ANNEXURE H AWARD BEARING
NO.KOM.BHUSWA-V/1/09/09-10 DATED 23.04.2011 PASSED
BY THE RESPONDENT NO.4, IN RESPECT OF LAND BEARING
SY.NO.204 (204/2) MEASURING 3 ACRES SITUATED AT
JILVERSA VILLAGE TQ. CHINCHOLI, DIST. KALABURAGI ETC.
                                  3       W.P.No.201287/2022


     THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

The petitioners, who claim to be the absolute

owners of the land bearing Survey No.204 (204/2)

measuring 3 acres situated at Jilversa village, Chincholi

taluka, Kalaburagi district have preferred the instant writ

petition seeking for the following reliefs:

"(a) Issue a writ, direction or order in the nature of Certiorari quashing the Annexure-H award bearing NO.KOM.BhUSWA-V-1/09/09-10 dated 23.04.20211 passed by the respondent No.4 in respect of land bearing Sy.No.204 (204/2) measuring 3 acres siuated at Jilversa village, Tq. Chincholi, Dist: Kalaburagi.

(b) Issue a writ, direction or order in the nature of Certiorari, quashing Annexure-J endorsement bearing

No.KOM.BhUSWA/1/9/2009-10/476 dated 16.09.2014 issued by the respondent No.4.

(c) Issue writ, direction or order in the mandamus directing the respondents to pay compensation to the petitioners as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in respect of the land Sy.No.204 measuring 3 acres situated at Jilversa village, Tq.Chincholi, Dist: Kalaburagi."

2. Heard the learned counsel for the petitioners

as well as the learned High Court Government Pleader

appearing for the respondents.

3. It is the case of the petitioners that they are

the absolute owners in possession of the aforesaid land

bearing Survey No.204 (204/2) measuring 3 acres and

as per the request made by the petitioners and

considering the nature of cultivation of the said land, the

same was granted to them in the year 2005 and

accordingly, Saguvali Chits were also issued to the

petitioners. Thereafterwards, the name of the

petitioners were mutated in the revenue records of the

land in question. When the matter stood thus, the land

in question was acquired by the fourth respondent for

the purpose of construction of percolation tank at

Chindnur and Jilversa villages. Though in the

preliminary notification, the petitioners name were

shown, in the award, no compensation was awarded to

the petitioners. The petitioners had therefore made a

representation to the fourth respondent for awarding

compensation to them and the same has been rejected

vide Annexure-J dated 16.09.2014, wherein, the

petitioners have been informed by the fourth respondent

that the land in question is a phot kharab land and

therefore, it belongs to the Government and no

compensation can be awarded to the petitioners. Being

aggrieved by the same, the petitioners are before this

Court.

4. The learned counsel for the petitioners

submits that the fourth respondent has not properly

appreciated the case of the petitioners and has erred in

issuing an endorsement to the effect that the land in

question is a phot kharab land. He submits that before

the fourth respondent, the petitioners have produced

certain documents to show that the land in question has

been granted to them and the said documents have not

been appreciated by the fourth respondent. He also

submits that considering the entries in the revenue

records of the land in question, initially petitioners name

was shown in the preliminary notification but

thereafterwards while passing the award, no

compensation has been awarded to the petitioners on

the ground that the land in question is a phot kharab

land though absolutely there is no material to come to

the conclusion that the land in question is a phot kharab

land. He also relied upon the judgment of this Court

reported in ILR 2003 KAR 5088 in the case of

Sadashivaiah and Others vs. State of Karnataka

and Others in support of his case.

5. Per contra, the learned High Court

Government Pleader appearing for the respondents

submits that the petitioners are required to avail the

remedy under the Land Acquisition Act and they are

required to establish their title before the competent

forum since there are disputed facts, which can be

adjudicated before the appropriate forum and no relief

can be granted in the writ proceedings.

6. I have carefully considered the arguments

advanced by the leaned counsel for the parties and also

perused the material on record.

7. It is not in dispute that the petitioners clam

to be the absolute owners of the land in question

bearing Survey No.204 (204/2) measuring 3 acres

situated at Jilversa village, Chincholi taluka, Kalaburagi

district. They have produced material before this Court

to show that the said land was granted to them and the

copy of the Saguvali Chits issued to them is also

produced. In addition to the same, the material on

record would go to show that the revenue records of the

land in question stood in the name of the petitioners and

initially even in the preliminary notification, petitioners

name has been shown as the owners in possession of

the land in question. Thereafterwards, the fourth

respondent while passing the award has not granted any

compensation to the petitioners on the ground that the

land in question was a phot kharab land.

8. This Court in the case of Sadashivaiah

(Supra) in paragraph Nos.30 and 31 has observed as

follows:

"30. The Land Acquisition Officer has declined to pass the award on yet another ground that the land involved in W.P. Nos. 7540 & 9155-9204/2001 is a kharab land and therefore it does not belong to the petitioners. In this regard it is necessary to know what a kharab land is and what are the rights which flow. Kharab land is so called because it is not cultivable and is classification made for purposes of revenue exemption, Kharab land is also capable of ownership and cannot be regarded as an adjunct to cultivable land which gets transferred along with the cultivable land. Acquisition of title to the kharab land is similar to acquisition of title to the cultivable land. The word "Phut Kharab"

and 'pot' kharab mean and have reference to a land which is included in an assessed

survey number but which is unflit for cultivation. Every pot kharab land does not belong to government. For the purpose of assessment, the uncultivable portion of the land or phut kharab portion of the land is excluded from consideration on the ground that it is cultivable. But it does not cease to belong to the owner of the survey number. In volume I of the Mysore Revenue Manual, the word kharab is explained in this way. The expression 'phut kharab' is similar to the expression 'pot kharab'. That is so, is clear from the Mysore Revenue Survey Manual where at page 68 the words 'pot kharab' land is defined thus:

"(13). Pot kharab means a piece of pieces of land classed as unarable and included in a survey number".

The description has no relevance to ownership. The expression put kharab is explained in Gupte's book on the Bombay

Land Revenue Code in the following words at page 278"-

"By the term 'pot kharab' is meant 'barren or uncultivable land included in an assessed survey number' and includes 'any land comprised in a survey number. Which from any reason is held not to be likely to be brought under cultivation..........."

31. The words phut Kharab, therefore, mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation. After coming into the force of the Karnataka Land Revenue Act 1964 the word phut Kharab has been defined under Rule 21(2) as under:-

"during the process of classification, land included as unarable shall be treated as "Pot Kharab". Pot Kharab land 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 flours 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 villager potteries."

9. The said judgment was followed by a

coordinate Bench of this Court in W.P.No.201203/2017

and similar endorsement issued was quashed and the

matter was remitted to the Land Acquisition Officer with

a direction to hold an enquiry. The material on record

even in this case would go to show that before issuing

the impugned endorsement, rejecting the petitioners'

claim for awarding compensation, the petitioners were

not heard in the matter so as to substantiate their

contention. Under the circumstances, the impugned

endorsement vide Annexure-J is not sustainable.

Accordingly, following: