Disposed

Mr.Mallappa S/O Siddappa Kadappanavar v. State of Karnataka

Karnataka HC9 Nov 2020WP/113879/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the petitioner's writ petition seeking a stay on government officials entering his land for preliminary survey. The court held that under the Land Acquisition Act, 2013, officers are authorized to conduct surveys under Section 12 after a preliminary notification under Section 11 is issued.

What did the court decide?

Respondents directed to comply with Section 12 of the Act; permission to proceed with lawful survey.

Mr.Mallappa S/O Siddappa Kadappanavar Vs State of Karnataka — Land Acquisition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 09^{T H} DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE ASHOK S. KINAGI

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W.P.NO.113879/2019 (LA-RES)

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BETWEEN :

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MR.MALLAPPA S/O SIDDAPPA KADAPPANAVAR, AGE : 59 YEARS, OCC: AGRICULTURIST, R/O UPPANAASI, TQ: HANGAL, DIST: HAVERI-581104.

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.. PETITIONER

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(BY SHRI R.H.ANGADI, ADV.)

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AND :

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STATE OF KARNATAKA, DEPARTMENT OF IRRIGATION, VIKASA SOUDHA, BANGALORE-1.

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THE DEPUTY COMMISSIONER, HAVERI.

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THE SPECIAL LAND ACQUISITION OFFICER, UPPER TUNGA PROJECT, RANEBENNUR-581115.

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KIRAN NAYAJK, AGE : MAJOR; sOCC: JUNIOR ENGINEER, KNNL UTP SUB DIVISION, HAVERI-581 104.

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S.H.PATEL.

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AGE : MAJOR; OCC: KNNL CATEGORY-I, CONTRACTOR, POST: BANAVALLI, TQ: HARIHAR, DIST: DAVANGERI.

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THE CHIEF ENGINEER, UPPER TUNGA YOJANE, KARNATAKA NIRAVARI NIGAM YOJANE, HAVERI.

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..RESPONDENTS

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(BY SHRI SHIVAPRABHU S.HIREMATH, AGA FOR R.1-R3 SHRI RAMESH N.MISALE, ADV. FOR R.4 & R.6. SHRI C.S.SHETTAR, ADV. FOR R.5)

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THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING THIS COURT TO DIRECT OR ISSUE AN ORDER OF MANDAMUS DIRECTING THE RESPONDENTS NOT TO START ANY WORK IN THE PROPERTY BELONGING TO PETITIONER BEARING ITS (A) SURVEY NO.167/2, MEASURING 1 ACRE 5 GUNTAS AND (B) SURVEY NO.167/4 MEASURING 00-02-00 GUNTAS, SITATED AT UPPANASI VILLAGE, TQ: HANGAL, DIST: HAVERI WITHOUT PASSING ANY AWARD.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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: ORDER :

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The petitioner has filed this writ petition seeking mandamus directing the respondents not to start any work in the property of the petitioner bearing Sy.No.167/2 measuring 1 acre 5 guntas and Sy.No.167/4 measuring 00-02.00 guntas situated Uppanaasi village, Hangal Taluk, Haveri District without passing any award.

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Brief facts of the case of the petitioner

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are as under.

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The petitioner claims to be the owner of the agriculture land bearing Sy.No.167/2 measuring 1 acre 5 guntas and Sy.No.167/4 measuring 00.02.00 situated at Uppanaasi village, Hangal Taluk, Haveri District. The Government has proposed to acquire the lands situated at Uppanaasi village, Hangal Taluk, Haveri District.

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The 3^rd has issued preliminary notification dated 13.11.2017 under Sub-Section (1) of Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“the Act of 2013” for short), which is produced at Annexure-B.

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The 3^rd respondent issued a notice to the petitioner under Sub-Section (1) of Section 11 and sub-Section (4) of Section 11 informing the petitioner not to make any transaction or

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cause any transaction of land specified in the preliminary notification or create any encumbrances on such a land from the date of publication of such a notification till such time as the acquisition proceedings are completed.

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The petitioner and his family members are depending on the income derived from the agriculture lands. The 3^rd respondent and the 5^th respondent are trying to trespass in the lands belong to the petitioner stating that they proceed with the work in the lands of the petitioner. The 3^rd respondent had not awarded compensation as per Section 23 of the Act of 2013. The respondents have no right to enter or trespass into the land of the petitioner.

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The petitioner has filed a writ petition seeking mandamus directing the respondents not to start any work in the aforesaid lands belong to the petitioner without passing any award under Section 23 of the Act of 2013.

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7. Heard learned counsel appearing for

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the petitioner and learned counsel appearing for the respondents.

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Larned counsel appearing for the petitioner submits that the respondent without passing award under Section 23 of the act of 2013, respondents have no right to carry any work in the afore said land. He further submits that on the above said ground, he prays to allow the writ petition.

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9 Per contra, learned counsel appearing for the respondents submits that, the respondent in order to comply Section 12 of the Act of 2013 are entered into the property of the petitioner, but they are not carry out any construction activities. Hence, he submits that, the respondents will not carry out any work in the land of the petitioner without process of law.

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This Court on 14.10.2020 passed an order clarifying the interim order passed by this

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Court earlier will not come in the way of Government officials for complying the requirement of Section 12 of the Act of 2013. With the said observation, interim order was extended. In order to consider the case of the petitioner, it is necessary to consider some of the provisions of the Act of 2013. Section 11 of the Act of 2011 is as under :

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11. Publication of preliminary notification and power of officers thereupon. - (1) Whenever, it appears to the appropriate Government that land in any area is required or likely to be required for any public purpose, a notification (hereinafter referred to as preliminary notification) to that effect along with details of the land to be acquired in rural and urban areas shall be published in the following manner, namely:-

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(a) in the Official Gazette;

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(b) in two daily newspapers circulating in the locality of such area of which one shall be in the regional language;

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(c) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case may be and in the offices of the

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District Collector the Sub-divisional Magistrate and the Tehsil;

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(d) uploaded on the website of the appropriate Government;

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(e) in the affected areas, in such manner as may be prescribed.

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(2) Immediately after issuance of the notification under sub-section (1), the concerned Gram Sabha or Sabhas at the village level, municipalities in case of municipal areas and the Autonomous Councils in case of the areas referred to in the Sixth Schedule to the Constitution, shall be informed of the contents of the notification issued under the said sub-section in all cases of land acquisition at a meeting called especially for this purpose.

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(3) The notification issued under subsection (1) shall also contain a statement on the nature of the public purpose involved, reasons necessitating the displacement of affected persons, summary of the Social lmpact Assessment Report and particulars of the Administrator appointed for the purposes of rehabilitation and resettlement under section 43.

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(4) No person shall make any transaction or cause any transaction of land specified in

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the preliminary notification or create any encumbrances on such land from the date of publication of such notification till such time as the proceedings under this Chapter are completed:

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Provided that the Collector may, on the application made by the owner of the land so notified, exempt in special circumstances to be recorded in writing, such owner from the operation of this sub-section:

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Provided further that any loss or injury suffered by any person due to his willful violation of this provision shall not be made up by the Collector.

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(5) After issuance of notice under subsection (1), the Collector shall, before the issue of a declaration under Section 19, undertake and complete the exercise of updating of land records as prescribed within a period of two months.”

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Sub-Section (1) of Section 11 of the

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Act of 2013 provides that whenever, it appears to the Government that land is required or likely to be required for any public purpose, a notification to that effect along with details of the land to be acquired in the rural or urban

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areas shall be published in the manner

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prescribed.

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Sub-Section (2) of Section 11 provides that issuance of notification, Gram Sabha or Sabas at the village level, municipalities in case of municipal areas etc., shall be informed of the contents of the notification issued under Sub-Section (1) of Section 11 of the Act of 2013 in case of land acquisition.

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Sub-Section (3) of Section 11 of the Act of 2013 provides that notification issued under Sub-Section (1) shall contain a statement on the nature of the public purpose involved.

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Sub-Section (4) of Section 11 provides that, once if a preliminary notification is issued, no person shall create encumbrances on such a land from the date of publication of such a notice. That once if a preliminary notification is issued under Sub-Section (1) of Section 11, the

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Government officials have to follow the

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procedure prescribed under Section 12 of the Act of 2013. Section 12 of the Act of 2013 reads as under:

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12. Preliminary survey of land and

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power of officers to carry out survey. - For the purposes of enabling the appropriate Government to determine the extent of land to be acquired, it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workmen,-

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(a) to enter upon and survey and take levels of any land in such locality;

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(b) to dig or bore into the sub-soil;

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(c) to do all other acts necessary to ascertain whether the land is adapted for such purpose;

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(d) to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; and

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(e) to mark such levels boundaries and line by placing marks and cutting trenches and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked. to cut down and clear away any part of any standing crop, fence or jungle:

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Provided that no act under clauses (a) to (e) in respect of land shall be conducted in the absence of the owner of the land or in the absence of any person authorised in writing by the owner:

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Provided further that the acts specified under the first proviso may be under taken in the absence of the owner, if the owner has been afforded a reasonable opportunity to be present during the survey, by giving a notice of at least sixty days prior to such survey:

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Provided also that no person shall enter into any building or upon any enclosed Court or garden attached to a dwelling-house (unless with the consent of the occupier thereof without previously giving such occupier at least seven days' notice in writing of his intention to do so."

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That Section 12 of the Act of 2013 deals with officers authorized by the

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Government to enter upon the land, to enter, survey and take levels of any land in such locality; to dig or bore into the sub-soil; to ascertain whether the land is adopted for such purpose and to set out the boundaries of the land proposed to be taken and to make such levels, boundaries and line by placing marks etc. The said act can be done in the absence of the owner or in the absence of any authorized person.

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That in the present case, the

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Government has issued preliminary notification under Sub-Section (1) of Section 11, the next course of action of the acquiring authority is to hold a preliminary survey of land as per Section 12 of the Act of 2013. Accordingly, the 3^rd respondent is holding a preliminary survey of lands proposed to be acquired under the

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notification dated 13.11.2017 as per AnnexureB.

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Respondents have already submitted that they have not carrying out any activities in the land of the petitioner except preliminary survey of land as prescribed under Section 12 of the Act of 2013.

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Hence in view of the above said discussion and also submission made by the learned counsel appearing for the parties, the writ petition is disposed of.

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The respondents shall comply the

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requirements of Section 12 of the Act of 2013 and may proceed to work in the land of the petitioner only in accordance with law.

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Sd/JUDGE

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EM/-

Mr.Mallappa S/O Siddappa Kadappanavar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr.Mallappa S/O Siddappa Kadappanavar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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