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Dhulappa and Others Vs. State of Karnataka Department of Revenue Vidhan Soudha and Others - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberW.P. Nos. 103387, 103485-89 of 2013 (LA-RES)
Judge
AppellantDhulappa and Others
RespondentState of Karnataka Department of Revenue Vidhan Soudha and Others
Excerpt:
.....land owned by petitioners were acquired by state government for the purpose of constructing a main canal - state government invoked urgency clause under section 17(4) of the act, 1894 petitioners challenged notifications - hence present petitions issue is - whether petitions filed under article 226 and 227 of constitution to quash notifications of respondent no.3 issued for acquisition of land is maintainable court held any delay in proceeding with acquisition proceedings for this stretch of land would have had serious repercussions on the farmers whose lands had already been dug up and where the canals had already been laid - it would also have serious consequences on the public interest because there was need to immediately bring water to drought hit area - hence contention of..........while issuing preliminary notification state government has invoked urgency clause u/sec.17(4) of land acquisition act. challenging these notifications preliminary and final, the present writ petitions have been filed. 5. main contention urged by the learned counsel appearing for petitioners sri.harshavardhan malipatil is that having regard to the purpose of acquisition for construction of irrigation canal there could not be any dire urgency so as to justify recourse to section 17 of the land acquisition act, therefore the entire acquisition proceeding is vitiated. in support his contention learned counsel appearing for petitioners has relied upon the following judgments: 1) anand singh and another v/s state of uttar pradesh and others (2010) 11 supreme court cases 242 2) rain dhari.....
Judgment:

(Prayer: These Petitions are filed under Articles 226 and 227 of the Constitution of India praying to issue a writ of certiorari, quashing the notifications of the respondent No.3 dated 24.03.2012 in file No:Laq/Bagalkot/Cr/111/11-12 vide Annexure-A and also final notification issued by the respondent No.3 dated 09.10.2012 in file No:Rd/Laq/9A/CR/87/12-13 vide Annexure-B.)

1. Petitioners are the owners of lands situated in Bolegaon and Hirerogi of Indi Taluka in Vijayapura District. The details of survey numbers and the extent of land owned by the petitioners which have been acquired by the State Government for the purpose of constructing a main canal for Indi Lift Irrigation from 124 Kmts till 130 have been stated in para No.1 of the writ petition.

2. The proposal for acquisition of the land was made by the Executive Engineer, Krishna Bhagya Jal Nigam Limited Rampur Division. It is not in dispute that construction of the main canal known as Indi Lift Irrigation main canal had been undertaken for a total length of 147 Kmts as is evident from para No.3 of the statement of objections filed by respondent Nos.3 and 4. The portion of the canal involved in this writ petition is only 124 to 130 for a stretch of 6 Kmts. This is stated to be tale end of the canal. Indeed earlier 4(1) notification dated: 08-10-2010 had been issued for the same purpose in which lands of the petitioners were not proposed for acquisition for the canal. Subsequently, as urged by the respondents, the technical, department after inspection of the spot found that there was high mound hillock coming in the alignment of the canal, hence it was decided to change the alignment of the canal by taking slight deviation of the canal in order to avoid deep cutting of the canal. As a result necessity of acquiring petitioners land was felt because they fell in the changed alignment after deviation.

3. This is evident from the proceedings of 164th meeting of the technical sub committee of Krishna Bhagya Jala Nigam Limited held on 4th June 2012 at Bangalore. The same has been produced before the Court along with an affidavit of fourth respondent Executive Engineer Krishna Bhagya Jala Nigam Limited IBC and0 and M Division Rampur (PA) Taluka Sindagi District Bijapur, Sri.B.N. Mallesha Babu.

4. The 4(1) notification was followed by issuing a declaration U/Sec.6(l) dated: 09-10-2012 published in the official gazette dated: 16-10-2012. This is produced at Annexure-B. While issuing preliminary notification State Government has invoked urgency clause U/Sec.17(4) of Land Acquisition Act. Challenging these notifications preliminary and final, the present writ petitions have been filed.

5. Main contention urged by the learned counsel appearing for petitioners Sri.Harshavardhan Malipatil is that having regard to the purpose of acquisition for construction of irrigation canal there could not be any dire urgency so as to justify recourse to section 17 of the Land Acquisition Act, therefore the entire acquisition proceeding is vitiated. In support his contention learned counsel appearing for petitioners has relied upon the following Judgments:

1) Anand Singh and another V/s State of Uttar Pradesh and others (2010) 11 Supreme Court Cases 242

2) Rain Dhari Jindal Memorial Trust V/s Union of India and others (2012) 11 Supreme Court Cases 370)

6. It is next contended by him that the canal as proposed to be laid for which notification was issued in the year 2010 did not pass through the land of the petitioners 'but for the reasons best known to the respondents the entire alignment was changed without any basis'; therefore the present notifications were illegal; that the lands proposed to be acquired being main source of livelihood for the petitioners and their family, the acquisition would result in serious hardship and loss to the petitioners It is also urged that petitioner s lands being irrigated lands the proposed laying of canal would result in bifurcating the land into pieces and even the remaining extent of land left unutilized would be rendered uncultivable and unproductive, hence the notifications were illegal.

7. The respondents have filed their statement of objections. It is contended by them that total length of the canal was 147 Kmts., where as the portion of canal involved in the present writ petition was between 129 to 130 Kmts. According to them though earlier notification was issued on 08-10-2010 under section 4(1) of the Land Acquisition Act proposing to acquire other lands and the lands of the petitioners were not proposed for being acquired, the technical department after inspecting the spot found that there was high mound hillock coming in the alignment of the canal. Therefore it was required to be changed so as to take the canal straight to avoid deep cutting. As a result the need for acquiring petitioners land was felt because they fell in the changed alignment. It is further contended that if the alignment was not changed the very purpose of laying the canal would be defeated. It is further stated that as per earlier alignment shown there was every chance of land sliding and deposition of mud thereby hindering easy flow of the water through the canal and hence change of the alignment was done. Along with the affidavit dated: 28-11-2013 filed by the Executive Engineer KBJNL, the proceedings of the 164th meeting of the technical sub committee are produced and the alignment map both previous and present are enclosed.

8. As could be seen from the said map previous alignment of the canal discloses that the canal ran in a crocked line whereas present alignment discloses that the alignment runs in a straight line. In paras 5 and 6 of the proceedings of 164th meeting of technical sub committee the recommendations have been incorporated. A perusal of the same discloses that the committee was of the clear opinion that the contour alignment as made earlier was not in order and the alignment had to be modified to avoid deep cut and deep valley with long embankments. Several other reasons have been assigned. Therefore it emerges that the need to change alignment was on account of recommendation made by the technical subcommittee and it cannot be said that the action initiated for changing the alignment and the consequent notification issued for acquisition of the land suffered from arbitrary or unfair exercise of power. Merely because the lands of the petitioners were found to fall within the new alignment resulting in the acquisition, it cannot be said that the petitioners have been prejudiced on account of indiscriminate or unfair action of the State and its instrumentalities. Sufficient reasons were available for the respondents which impelled them to change the alignment and go for acquisition of the lands of petitioners.

9. In so far as other important contention urged by the learned counsel appearing for petitioners regarding the urgency clause invoked, respondents have urged that the project namely Upper Krishna Project including the construction of canals was funded by world Bank and in connection with the Upper Krishna Project in order to expedite acquisition and complete the project, expeditiously, the Government had taken a decision to dispense with application of Section 5 (A) of the hand Acquisition Act. This decision was taken way back on 31-03-1990. Indeed a copy of the said communication containing the decision of the State Government is produced at annexure-R-1 along with additional statement of objections filed by respondent Nos.3 and 4 on 09-07-2015. In addition, it is urged by the learned counsel appearing for Krishna Bhagya Jala Nigam Limited respondent No.4 herein that the lands acquired for Indi main canal work extended to a total length of 147 Kmts. The work was at an advanced stage and most of the work was completed. But, only in respect of the lands belonging to the petitioners which were sought to he acquired after a decision was taken to change the alignment the canal work could not be undertaken to complete the project. As it was imperative to complete the project in a time frame and to ensure that the drought area in Indi Taluka of Bijapur District is brought under irrigation by initiating all possible expeditious measure, decision to dispense with the enquiry under section 5(A) of the Land Acquisition Act had been taken.

10. It is pointed out by him that any delay in completing the work would have had serious consequence on the public exchequer and also on the public interest more particularly on the interest of the farmers who had been waiting for long for completion of the canal work. Indeed couple of farmers have approached this Court by filing an impleading application wherein they have stated that as a result of the interim order granted by this Court staying further proceedings the authorities are not in a position to pass an award and grant benefit although the lands of the applicants and several others had been dug up and their lands had been utilized.

11. Therefore it is clear that the canal work has been completed in respect of entire stretch of 147 K.mts except the area covered from 128 K.mts. to 135 K.mts. The resultant position is that completion of the canal work has to take place only in a stretch of 6 Kmts. State Government has resorted to the urgency clause to complete the canal on a war footing. Hence it cannot be staid that the urgency clause was invoked without there being any exceptional circumstance. The facts and circumstances involved in the case would certainly disclose that any delay in proceeding with the acquisition proceedings for this stretch of land would have had serious repercussions on the farmers whose lands had already been dug up and where the canals had already been laid. It would also have serious consequences on the public interest because there was need to immediately bring waster to the drought hit area namely Indi Taluka of Vijayapura District and nearby places. Hence the contention urged by learned counsel appearing for petitioners that there was no urgency involved and section 17(4) of the land acquisition Act could not have been invoked has no substance.

12. The Judgment relied on by the learned counsel appearing for petitioners in the case of Anand Singh and another V/s State of Uttar Pradesh and others (2010) 11 Supreme Court Cases 242 has no application to the present case. In that case urgency clause in respect of acquisition for planned development of city or for development of residential area or housing was involved. In this connection the Hon ble Apex Court has held that urgency provision should not be invoked as a rule but by way of exception. Similarly in the case of Ram Dhari Jindal Memorial Trust V/s Union of India and others (2012) 11 Supreme Court Cases 370) invocation of urgency clause and dispensation of enquiry was done for public purpose like planned development of city. Therefore the Hon ble Apex Court has ruled that for development of residential schemes urgency clause cannot be invoked indiscriminately and that burden was on the Government to prove that use of urgency power was justified and dispensation of enquiry was necessary.

13. A Division Bench of this Court in case of Smt.Rekha D. Shetty W/o D.M. Shetty V/s State of Karnatka 2009 (3) Kar. L.J. 448 has held that any dispensation of enquiry under section 5-A of the Act must strictly satisfy the requirement contemplated under section 17 of the Act, because the Rule of Law and the principles of Natural Justice have their stamp in Section 5-A of the Act. In the facts of the said case the Division Bench found that as the Project was sponsored by the World Bank Scheme and time frame was there, the State was justified in invoking the urgency clause.

14. Similarly in the instant case in the very nature of things as the authorities had completed the entire work in the whole stretch of 147 Kmts. length canal except between 128 Kmts. to 135 Kmts. any delay in completion of the project expeditiously would have had serious consequence. Therefore, there was all the justification to the State Government to invoke the urgency clause. Hence the contention urged in this regard by referring to the Judgments of Hon ble Apex Court by the learned counsel appearing for petitioners cannot be accepted.

15. It is also necessary to notice here that if the alignment of the canal was taken in a straight alignment so as to avoid deep cutting to ensure that water flows easily which is based on technical consideration, this Court will not be justified in sitting in judgment over such a decision. In the event the land of the petitioners is fragmented due to the canal bisecting the lands thereby rendering a portion of it unusable or unproductive, petitioners would be entitled to seek compensation in accordance with law even for the remaining unutilized lands. Therefore the contention urged stating that petitioners have been deprived of usage of the land and consequently their livelihood cannot be accepted.

For all the foregoing reasons, the writ petitions being devoid of merits are dismissed.


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