IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 20TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL Nos.4294-95 OF 2015 (LA-RES) BETWEEN:
1. BAIRA KOTTARY A TRUST FORMED BY DEED DATED:19/03/1965 (REGISTERED DOCUMENT NO.379/1965) MELINAMOGARU, ATTAVAR, MANGALURU-575 002 REPRESENTED BY TRUSTEE ULLAS KUMAR MELINAMOGARU SON OF LATE SHANTHAPPA M.
2. ULLAS KUMAR MELINAMOGARU SON OF LATE SHANTHAPPA M, AGED ABOUT 60 YEARS, RESIDING AT BAIRA KOTTARY COMPOUND MELINAMOGARU, ATTAVAR, MANGALURU-575 002.
...APPELLANTS (BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO REVENUE DEPARTMENT M S BUILDING, DR. B R AMBEDKAR ROAD, BENGALURU-560 001.
2. DEPUTY COMMISSIONER, MANGALURU DISTRICT: D.K-575 001.
3. SPECIAL LAND ACQUISITION OFFICER MANGALORE MUNICIPAL CORPORATION, MANGALURU, DISTRICT: D.K.-575 003.
4. KARNATAKA URBAN DEVELOPMENT AND COASTAL ENVIRONMENT MANAGEMENT PROJECT M.C.C. COMPLEX, NEAR CANARA CLUB KADRI, MANGALURU DISTRICT: D.K-575 003 REPRESENTED BY ITS EXECUTIVE ENGINEER ….RESPONDENTS (BY SRI. T L KIRAN KUMAR, AGA FOR R-1 AND R-2 SRI. S VISHWAJITH SHETTY, ADVOCATE FOR R-3 R-4 IS SERVED AND UNREPRESENTED) THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 55703-55705 OF 2014 DATED 09.09.2015.
THESE WRIT APPEALS COMING ON FOR HEARING THIS DAY, ASHOK S KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order of rejection of Writ Petition Nos.55703-55705 of 2014 dated 09.09.2015, passed by the learned Single Judge, petitioners have filed these writ appeals.
2. Parties are referred to as per their ranking before the learned Single Judge.
3. Brief facts of the case are as under:
One Bhaira Kothari was the owner of land bearing Sy.No.681/C1A (RS 807/C1) measuring 75 cents situated at Attavar Village, Taluka Mangalore, District D. K. He is stated to have executed a registered settlement deed dated 19.03.1965 for constituting a Trust called ‘Bhaira Kothari Trust’. The said Trust was created to perform poojas to the deities of the family of Bhaira Kothari and since the second petitioner was the only male issue in the family, he was conducting all the poojas, viniyogas, kolas, etc., of the family deities, as a trustee and thus the ‘Trust’ was in actual possession and enjoyment of the property in question.
After the death of Bhaira Kothari, record of rights has been duly mutated in favour of the ‘Trust’, showing the name of second petitioner as the owner for the said land from 16.08.2001 to 07.08.2012.
However, in the year 2011, as some of the officials of Mangaluru Municipal Corporation alleged to have attempted to dig trenches in the property in question, petitioners issued legal notice to the Commissioner, Mangaluru Municipal Corporation requesting them not to interfere with the possession and management of the petitioners. Thereafter petitioners filed a suit seeking permanent injunction in O.S.No.68/2011 on the file of III Additional Civil Judge (Senior Divison), Mangaluru restraining the Karnataka Urban Development and coastal Environment Management Project-respondent No.4, from interfering with the possession and enjoyment of the property in question. On issuance of notice, respondent No.4 filed written statement stating that the land will be acquired if the owners objects for laying pipeline and if the owners give their consent in writing for laying the pipeline permanently, such property will not be acquired. Accordingly, petitioners gave their consent for laying down underground drainage pipe in their land in an area of 10 cents. Hence, the suit was dismissed as settled.
In the meanwhile, preliminary notification dated 12.12.2011 (Annexure-A) was issued by respondent No.2 seeking to acquire 10 cents of land in Sy.No.681/C1A for underground drainage works. According to the petitioners, without notice to petitioners and without any opportunity of hearing, final notification dated 04.10.2012 (Annexure-B) was also issued, followed by the award dated 04.12.2013 (Annexure-C).
Aggrieved by the said notifications and the award, petitioners preferred Writ Petition Nos.55703-705 of 2014 seeking to quash the above notifications and the award.
After hearing both sides, learned Single Judge rejected the petitions on the ground that the petitioners claim to be Trustees of the Trust in which the property in question is dedicated to ‘Bhoothas’ and hence, petitioners may represent ‘Bhoothas’ as Trustees under the Trust and not in their individual capacity. Learned Single Judge also noticed with regard to the written statement filed by respondent No.4 that the same does not indicate the petitioners to furnish an undertaking to permit the construction of the underground drainage in the property belonging to the Trust on the condition that the said property would not be acquired, and rejected the writ petitions.
Aggrieved by the order of learned Single Judge, petitioners are in appeal before this court.
4. Heard arguments of the learned counsels and perused the records.
5. Government proposed to acquire the lands situated at Attavar and Kankanadi village for the purpose of formation of underground drainage and therefore issued notification under sub-section (1) of Section 4 of Land Acquisition Act 1894. (central). As per the said notification, property in question is acquired. Respondent No.3 after complying all the formalities, passed final award as per Annexure-C. The lands covered by the award was to an extent of 0.14.000 acres at Attavara Village and assessed compensation and passed general award at Rs.23,69,117/-. For the said award, additional 12% amount is being added for 95 days commencing from 01.09.2013 to 04.12.2013. Thus, the acquisition initiation for public purpose i.e., formation of underground drainage, cannot be challenged. The petitioners have no locus standi to challenge the acquisition proceedings.
6. Learned Single Judge after considering the entire material on record has rightly dismissed the writ petition. We do not find any grounds to interfere with the impugned order. Hence, we proceed to pass the following:
Order The writ appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE RD