Allowed

Kuber Themajappa Mirajkar S/O Themajappa v. the State of Karnataka and Ors.

Karnataka HC18 Nov 2014WA/50078/2013

Case brief

AI extract

What is this about?

The Division Bench disposed of a writ appeal and review petition regarding land acquisition. Confirming the Single Judge's order dismissing the former, the Court held it could not direct acquisition. The review petition was dismissed as there was no error apparent on the face of the record.

What did the court decide?

Review petition dismissed; Writ appeal disposed of confirming the Single Judge's order.

Kuber Themajappa Mirajkar S/O Themajappa Vs the State of… — Land Acquisition | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA GULBARGA BENCH

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DATED THIS THE 18^TH DAY OF NOVEMBER 2014

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PRESENT

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THE HON’BLE MR.JUSTICE ASHOK B. HINCHIGERI

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AND

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THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA

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WRIT APPEAL No.50078/2013 (LA-RES) C/W REVIEW PETITION NO.200053/2014

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IN WRIT APPEAL No.50078/2013

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BETWEEN:

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KUBER THEMAJAPPA MIRAJKAR, S/O: THEMAJAPPA, AGE: 50 YEARS, R/O: THANGADAGI ROAD, BEHIND LAKSHMI CINEMA, MUDDEBIHAL, DIST: BIJAPUR-586212.

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…Appellant

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(By Smt. Ratna N. Shivayogimath, Advocate)

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AND:

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THE STATE OF KARNATAKA REP. BY ITS SECRETARY, REVENUE DEPARTMENT, M.S.BUILDING, BANGALORE-01.

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THE DEPUTY COMMISSIONER, DIST: BIJAPUR-586101.

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THE ASSISTANT COMMISSIONER, BIJAPUR SUB-DIVISION, BIJAPUR-586101.

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THE CHIEF OFFICER, TOWN MUNICIPAL COUNCIL, MUDDEBIHAL, DIST: BIJAPUR-586124.

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... Respondents

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( By Sri Shivakumar R Tengli, AGA for R1 to R3 Sri Ashok S Kinagi, Advocate for R4)

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This Writ Appeal is filed u/s. 4 of the Karnataka High Court Act, praying to set aside the order dated 15.02.2013 by the Single Judge passed in W.P.No.100020/2013 (LARES) and direct the 4^th respondent to pay the compensation to the extent of appellant land ass per JMC report.

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IN REVIEW PETITION NO.200053/2014

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BETWEEN:

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THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, M.S.BUILDING, BANGALORE.

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THE DEPUTY COMMISSIONER, BIJAPUR, DIST: BIJAPUR.

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THE SECRETARY, FOREST DEPARTMENT, GOVT. OF KARNATAKA, BANGALORE.

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THE COMMISSIONER, SOCIAL WELFARE DEPARTMENT, M.G.ROAD, BANGALORE.

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THE DEPUTY DIRECTOR, PUBLIC EDUCATION DEPT. DIST: BIJAPUR.

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THE DIRECTOR, FISHERIES DEVELOPMENT BOARD, BANGALORE.

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THE CHIEF MEDICAL OFFICER, HEALTH DEPARTMENT, DIST: BIJAPUR.

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THE ZONAL FOREST OFFICER, BIJAPUR, DIST: BIJAPUR.

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THE DISTRICT SOCIAL WELFARE OFFICER, BIJAPUR, DIST: BIJAPUR.

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… Petitioners

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( By Sri Shivakumar R Tengli, AGA ) AND:

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KUBER THEMAJAPPA MIRAJKAR, S/O: THEMAJAPPA, AGE: 51 YEARS, R/O: THANGADAGI ROAD, BEHIND LAKSHMI CINEMA, MUDDEBIHAL, DIST: BIJAPUR-586212. …Respondent

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This review petition is filed under Section 47 Rule 1 of CPC praying to review the order, dated 22.11.2013 passed in W.A.No.50001/2013.

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This writ appeal and review petition, coming on for Admission this day, this day, ASHOK B HINCHIGERI J., delivered the following:

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JUDGMENT

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This writ appeal is directed against the learned Single Judge’s order dated 15.02.2013 passed in W.P.No.100020/2013 (LA-RES). The learned Single Judge has dismissed the writ petition mainly on the ground that the said petition is the third petition in a row. Necessary directions were indeed given by the learned Single Judge in the orders, dated 24.06.2014 and 16.06.2011 passed in W.P.No.24447/2004 and W.P.No.84344/2010 respectively.

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Smt. Ratna Shivayogimath, the learned counsel for the appellant submits that in the earlier writ petitions, the Town Municipal Council, Muddebihal was

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not made a party. She further submits that even while the Government and its functionaries showed compliance with the said two orders by initiating appropriate proceedings for acquiring the land, the 4^th respondent did not deposit the amounts towards the cost of acquisition. The two earlier orders could not be enforced as the Town Municipal Council was not a party to the said proceedings. Only to bind the 4^th respondent Town Municipal Council, the third petition had to be filed. She submits that the appellant is caught in the technicalities and is not in a position to safeguard her valuable rights in the immovable property. She submits that the property in question is acquired for the public purpose. She relies on the Apex Court judgment in the case of TUKARAM KANA JOSHI AND OTHERS V. MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION AND OTHERS reported in (2013) 1 SCC 353 to advance the submission that the land

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acquisition proceedings are to be completed and the requisite compensation has to be paid expeditiously.

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Sri Shivakumar Tengli, the learned AGA submits that the Government has constructed the buildings on the property surrendered by the father of the appellant.

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Sri Ashok S Kinagi, the learned counsel for respondent No.4 submits that the appellant has already entered into an agreement of sale in respect of different portions of the property in question and thereby there is no surviving interest in the lands as far as the appellant is concerned.

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The Government is seeking the review of the judgment dated 22.11.2013 passed by the Division Bench in W.A.No.50001/2013 (LA-RES). The said judgment is passed in W.A.No.50001/2013 filed by the Government against the Single Judge’s order dated 16.6.2011 in W.P.No.84344/2010. In the said writ

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petition some directions were given for the payment of damages, issuance of the acquisition notification, etc.

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Sri Shivakumar Tengli, the learned AGA submits that Government could not bring to the notice of the Division Bench that the properties in question are not the private properties at all. The buildings have come up on the lands belonging to the Government only.

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Smt. Ratna Shivayogimath, the learned counsel for the appellant submits that the appellant’s father had never surrendered the land to the Government. She asserts that the lands in question belong to the appellant’s father and thereafter to the appellant.

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The submissions of the learned counsel have

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received our thoughtful consideration.

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It is trite that the compulsory acquisition of lands falls in the eminent domain of the State. In exercise of

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the writ jurisdiction under Article 226 of the

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Constitution of India, this Court would not give any direction to the Government either to acquire or not to acquire the land. However, this does not mean that the Government can forcibly take the possession of the land required by it for a public purpose. The right to property may have ceased to be a fundamental right but it has become a legal and constitutional right; and now it is a human right too. Nobody can be deprived of the private property without following the due process of law. If any private property is required for public purpose, the Government has two options in the matter:-

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(a) It can acquire the land and pay the compensation in accordance with law.

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(b) For whatever reason if the Government does not resort to acquisition, then the only course left to the Government is to purchase the land from the owner of the property after holding negotiations with him or keep paying the occupation charges.

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Coming to the facts of the case on hand, it is not in dispute that the appellant has earlier instituted two writ petitions viz. W.P.No.24447/2004 and 34344/2010. The appellant has substantially succeeded in those petitions by obtaining the necessary directions. However, for the reasons best known to the appellant, he has not made the Town Municipal Council a party to the said proceedings. It is the case of the appellant that a portion of the property in question is in the possession of and is being utilized by the said Municipality.

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The two writ petitions are not withdrawn with the liberty to file a duly constituted writ petition after arraigning Town Municipal Council as respondent No.4. However, the third writ petition is filed only to bind the Municipality to the two earlier orders obtained by the

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appellant in the first two petitions. The prayer reads as follows:

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“Issue a writ or order or direction writ in the nature of mandamus, directing the 4^th respondent to initiate the acquisition proceedings on par with the other departments to the extent of land as per the JMC report produced at Annexure-F”.

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This prayer is also not grantable as the power of initiating the acquisition proceedings vests only with Government or the Deputy Commissioner. Even if we hold that the third petition in the row is maintainable, no relief can be given. The prayer as contained in the writ petition cannot be acceded too. The third petition ought to have been only for a direction to Municipality to deposit the tentative cost of the acquisition. Therefore, we confirm the learned Single Judge’s order for the said additional reason.

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As far as the review petition filed by the Government is concerned, it may be stated at the very outset that the scope for reviewing the order in exercise of the power conferred by Section 114 of the Code of Civil Procedure, is rather limited. Unless there is an error apparent on the face of the record, the review jurisdiction cannot be exercised. As held by the Apex Court in the case of SATYANARAYANA LAXMINARAYAN HEGDE AND OTHERS V. MALLIKARJUN BHAVANAPPA TIRUMALE, reported in AIR 1960 SC 137, an error which has to be established by long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.

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As held by the Apex Court in the case of HARIDAS DAS V. SMT. USHA RANI BANIK AND OTHERS reported in AIR 2006 SC 1634, neither Section 114 nor

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Order 47 of CPC postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited the binding precedents to the Court and thereby enjoyed a favourable verdict.

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In the case of HARINAGAR SUGAR MILLS

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LIMITED AND ANOTHER V. STATE OF BIHAR AND OTHERS reported in (2006) 1 SCC 509, the Apex Court has expressed considered view that the parties cannot reargue the points which had already been decided by the Court. The review could be granted only if there was a mistake apparent on the face of the record.

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15. In the case of S.BAGIRATHI AMMAL V. PALANI

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ROMAN CATHOLIC MISSION, reported in (2009) 10

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SCC 464, the Apex Court has held that an error contemplated under Rule 1 Rule 47, CPC for permissibility of review must be such which is apparent

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on the face of the record, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record.

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Not finding any error, much less an error apparent on the face of the record, we decline to review the judgment, dated 22.11.2013 passed in W.A.No.50001/2013. Before we part company with this case, we deem it appropriate and just to make certain observations. It is our anxiety that a party should not be rendered remediless if the Government or the Municipality has constructed the buildings on the properties belonging to the appellant/his father and which is not surrendered by or made over by the appellant/his father. However, if the Government or the Municipality are in possession of the property belonging to it/them or if the permissive possession was given by

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the appellant/his father, then the question of the respondents paying the damages would not arise.

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The appellant may exercise the liberty of filing civil suit for damages, if he has that liberty in law.

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In the result, we dismiss the review petition No.200053/2014 and dispose of W.A.No.50078/2013 confirming the order of the learned Single Judge, subject to the observations made in the two preceding paragraphs.

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Sd/JUDGE

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Sd/JUDGE

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msr

Kuber Themajappa Mirajkar S/O Themajappa v. the State of Karnataka and Ors.

Case brief

What is this about?

What did the court decide?

Kuber Themajappa Mirajkar S/O Themajappa v. the State of Karnataka and Ors.

Case brief

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What did the court decide?

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