D.V. Shylendra Kumar, J.@mdashThis is a very ambitious appeal preferred u/s 4 of the Karnataka High Court (sic Act) by the very writ Petitioners in W.P. No. 10388/2007, who are not satisfied with the chance success they found with the order of the learned Single Judge dated 12th November 2007 passed in the writ petition in their favour and, ill fact, got much more than what they had bargained in the writ petition, the writ Petitioners, nevertheless, being not satisfied have come up with this appeal praying for setting aside the order dated 12. 11.2007 and to allow the writ petition granting the prayer as prayed in the writ petition.
2. The brief facts which constitute the background to this appeal and the writ petition are:
The writ Petitioners claim to be the legal heirs of one Syed Hameed Sab, who it was pleaded was the owner of the agricultural lands to an extent of 8 acres in Sy. No. 548 of Chikka Jantakal village of Gangavathi Taluk in Koppal District.
It is the version of the Appellant-writ Petitioners that the subject land, while was in the possession and ownership of their father Mr. Syed Hameed Sab till the year 1960-61, thereafter, it had been used for the purpose of establishing Harijan Colony and was taken over by the Government for rehabilitating the landless persons belonging to the Harijan community and under the Ashraya Scheme for providing house sites to the landless and deprived class of persons.
It is the further version that the revenue entries in the revenue records from the year 1963 indicated that the land was in the possession and ownership of Syed Hameed Sab, S/o Ameensab and it bad been acquired by the Government for being used as Harijan Colony and was being used for such purpose; that in terms of the order dated 28.02.2006 passed by the Assistant Commissioner, Koppal Sub-Division, Koppal, in exercise of his appellate jurisdiction u/s 136(2) of the Karnataka Land Revenue Act, it had been ordered that the names of the Appellant therein--the present writ Petitioners claiming to be legal heirs of Syed Hameed Sab are to be entered in column No. 9 of the RTC, and further in terms of a resolution of the Grama Panchayat, Chikka Jantakal and based on the affidavits given by the Secretary of this Gram Panchayat and the Chief Executive Officer of the Taluka Panchayat, Gangavathi, that if no compensation had been paid in respect of the subject land for the same having been acquired by the Government, having regard to the pathetic condition in which the Appellants were placed, it was proper to provide them suitable compensation which was the opinion of the general public in the village and it was reflected in the affidavits of the Secretary of the Grama Panchayat and the Chief Executive Officer of the Taluka Panchayat, Gangavathi. On the basis of the admissions made by these Officers and in view of the order, the writ petition was presented claiming compensation for acquisition of the subject land with the following prayer.
IV. Prayer:
Wherefore, the Petitioners pray that this Hon''ble Court be pleased to:
(i) Direct the Respondents to initiate the acquisition proceedings in respect of land bearing Sy. No. 548 measuring 8 acres situated at Chikka Jantakal Village of Gangavathi Taluk. Koppal District;
(ii) Direct'' the Respondent to determine and pay the compensation in respect of the land bearing Sy. No. 548 measuring 8 acres situated at Chikka Jantakal Village of Gangavathi Taluk, Koppal District;
(iii) Grant such other relief/s as deems fit in the circumstance of the case and allow the writ petition with cost, in the interest of justice and equity,
V. Interim Prayer:
Wherefore, the Petitioner prays that this Hon''ble Court be pleased to direct the Respondents to pay an Interim compensation of Rs. 25,00,000/- to the Petitioners forth with, pending disposal of the above writ petition on merits, in the interest of justice and equity.
The learned Single Judge, who had occasion to examine this writ petition and the learned Government Advocate having been directed to take notice at the stage of the preliminary hearing of the writ petition, disposed of the writ petition observing inter alia that if the lands of the Petitioners had, in fact, been acquired and utilised by the State Government for the formation of Vinobha Nagar layout, which was very obvious in terms of the order dated 28.02.2006 passed by the Assistant Commissioner in Section 136(2) proceedings, copy of which has been produced as Annexure -H to the writ petition, and moreover, the order indicating that the Petitioners while are entitled to compensation had not been paid any compensation and the factum as to whether the land were so acquired and as to whether the owner had been paid compensation or not all being questions of fact and to be determined by the jurisdictional authority of the State Government, issued directions to Respondents 3 to 5 holding that the Petitioners are entitled to get the compensation on the premise that their lands having been taken possession of by the State Government in the year 1964 and they are so entitled to get the compensation at the market value prevailing at that time with statutory benefits, passed the following orders and issued directions:
Respondents 3 to 5 are directed to consider the prayer of the Petitioners for grant of compensation for the land bearing Survey No. 548, which is utilised by the State Government for formation of residential layout for weaker sections of the society as early as possible, but not later than the outer limit of six months from the date of receipt of this order.
3. The writ Petitioners being not satisfied with the order passed by the learned Single Judge have come up in this appeal.
4. At the stage of admission, this Court noticed that the Appellants-writ Petitioners had no entitlement in law for claiming compensation payable in terms of the Land Acquisition Act as neither it was clear that the Petitioners were the owners of the land entered in the revenue records on which they had heavily relied upon and the observations of the Assistant Commissioner, in the course of the order passed by him, and further we being of the view that no interference with the order of the learned Single Judge, at the instance of the Appellants for any improvement of the relief obtained by the learned Single Judge in the writ petition, and on the other hand, reservation was expressed about the justification for issue of writ of mandamus, the following order was passed on 11.11.2008 indicating as to under what circumstances the Assistant Commissioner had passed the order-Annexure-H:
ORDER
Appeal is admitted to examine the circumstances under which the Assistant Commissioner acting u/s 136(2) of the Karnataka Land Revenue Act can embark upon not only making observations in the context of other enactment such as Land Acquisition Act, but making further observation that be has collected the opinion of the local residents to enable the present Appellants to get suitable compensation from the concerned department on the premise that, that department had admitted that the land to an extent of 8 acres in SyNo. 548 at Chikka Jantakal Village in Gangavathi Taluk bad been acquired for the purpose of forming a layout under the Ashraya Scheme and therefore, it is appropriate for the said department to pay compensation to the Appellants.
2. Mr. C.S. Patil, learned Government Advocate is directed to take notice in this appeal and is directed to ensure the affidavit of the said official is filed to clarify the factual position in respect of not only, the writ petition but also the order at Annexures- ''E'', ''F'' and ''H'' passed by the authorities and with their explanations.
List the matter for such purpose after four weeks.
Issue interim stay of the order of the learned Single Judge until further orders in this appeal.
Thereafter, the appeal had come up for orders regarding non-compliance with our directions issued on 11.11.2008 on several occasions and an affidavit of the Assistant Commissioner dated 31.01.2009 was placed before the Court, and this Court passed further orders on 03.02.2009 with certain observation indicating that if it was the question of paying compensation for the lands acquired by the State Government, a decision of the appropriate authority of the Government was required to be taken, and therefore, the Secretary, Department of Revenue, Government of Karnataka was directed to examine the representation and the report.
5. Subsequently, the Court being invited to peruse the affidavit filed by the 3rd Respondent-Assistant Commissioner, Koppal Sub-division, Koppal, and the contents being not very convincing, this Court directed the very Assistant Commissioner, who had passed the order under Annexure-H, to be present before the Court as per the order dated 27.05.2009. When the matter had come up for further orders on 10.06.2009, on examination of the submissions and affidavit placed before the Court, the following order came to be passed:
ORDERS
While Shilpa S. Angolkar, Advocate submits that the earlier advocate who had filed vakalat for the Appellants namely M/s. S.N. Hatti, and Smt. Shilpa S. Angolkar have issued no objection to the Appellants to engage any other Counsel and therefore their appearance for the Appellants henceforth may be discontinued.
Sri R.M. Kulkarni, advocate, has appeared for the Appellants and submits that he has already filed power for the Appellants.
We have heard Sri R. M. Kulkarni on the merits of the matter and we are of the view that no interference is needed in the order passed by the learned Single Judge at the instance of the Appellant for any improvement over the relief obtained before the learned Single Judge in the W. P. On the ether hand we are not satisfied about the justification for issuing a writ of mandamus on the basis of any legal right or statutory right in favour of the Petitioner and therefore we direct Sri R.M. Kulkarni, learned Counsel for the Appellant and Sri Dinesh Rao, learned Additional Government Advocate to examine the legal position and submit as to whether in an appeal filed by the writ Petitioner for the improvement of the order passed by the learned Single Judge, the Division Bench exercising appellate jurisdiction can set aside the order of the learned Single Judge and dismiss the writ petition itself, as we find in the circumstances of the case that it is the most proper to do so.
Sri R.M. Kulkarni seeks a week''s time to examine the legal position and make his submission.
Pursuant to the direction dated 27/05/2009, Mr. Nagaraj, Assistant Commissioner, Koppal Sub-Division, who caused the order at Annexure "H" and who is now working as Special Land Acquisition Officer, in Karnataka Housing Board, Bangalore, is present before the Court. As the matter is still not decided and we are not still satisfied with the explanation offered about uncalled observations that have been made in the order passed by the Assistant Commissioner, who has given false hopes and virtually invited the present Appellants to embark on writ litigation, we direct Special Land Acquisition Officer, Karnataka Housing Board, Bangalore to be present before the Court on 17/ 06/2009 as in the event of imposing cost is to be awarded for the Appellants for the inconvenience that the Appellants have undergone, that has to be made good not by the State but by the Officer, who has made the unwarranted observations and has created all this mess.
List on 17.06.2009 as requested by Sri R.M. Kulkarni, advocate now appearing for the Appellants.
Registry is directed to show the name of the Counsel based on the present basis.
A copy of this order to be furnished to the Additional Government Advocate.
Thereafter, the matter is listed today.
6. We have heard Shri R.M. Kulkarni, learned Counsel appearing for the Appellants at great length and Shri K.B. Adhyapak, learned Additional Government Advocate.
7. The learned Additional Government Advocate submits that the directions issued by the learned Single Judge is not justified; that in the first instance, that the Assistant Commissioner, exercising his statutory appellate jurisdiction u/s 136(2) of the Karnataka Land Revenue Act, has no competence or authority to make any observations or even to pass order with regard to the aspect of granting compensation for the lands acquired under the Land Acquisition Act; that the appeal has absolutely no merit; that even the directions issued by the learned Single Judge is not sustainable, and therefore, submits that the writ petition itself may be dismissed though State has not preferred any appeal against the order but the appeal is only by the writ Petitioners.
8. Shri.KB. Adhyapak, learned Additional Government Advocate submits that the claim of the Petitioners-Appellant is a frivolous one; that the Government had noticed such false, frivolous and stale claims coming up before the Government and seeking for compensation in respect of the lands which had been surrendered for public purpose by philanthropic minded, patriotic citizens before the independence and even after the independence, but in respect of such acts, which took place more than 50 to 60 years earlier, claims for compensation are cropping and mushrooming in recent times and the revenue authorities also getting active to prepare records for either paying compensation or not, now the Government was constrained to issue a circular dated 15.11.2001 and directed the acquiring authorities, the Department of Revenue and Public Works Department not to initiate or entertain proceedings for acquiring such lands already in use of the Government or public purpose and submits that the present writ petition is only one such petition of a stale claim being put forth by the so-called legal heirs of the deceased person, who in his life time, had given the land for public use under the ''Bhoodan'' movement and had not agitated for returning his land during his lifetime, but several years after the demise of such person, his legal heirs have come up with the writ petition for monetary benefits on the premise that the land belonged to their father and, therefore, they are entitled to claim compensation.
9. Shri.R.M. Kulkarni, learned Counsel for the Appellant vehemently urged that when the revenue records themselves establish that the land in question was in the ownership of Syed Hameed Sab and it has also been acquired for public purpose viz., for forming Harijan Colony, recently renamed as Vinobha Nagar, it is only just and proper that the Government pays proper and adequate compensation for the use of private land by the Government for the public purpose; that while the learned Single Judge was right in issuing directions to consider the prayer of the writ Petitioners for grant of compensation, to the extent that the learned Single Judge observed that the Petitioners are entitled to get compensation at the market value on the date of such acquisition is not correct; that the Appellants are entitled to get the compensation on the premise that the land are acquired as of now as no acquisition proceedings were passed earlier and if the acquisition proceedings were to be initiated now, the claimants would have been permitted to claim compensation as on the date of issue of relevant notification.
10. We have bestowed our attention to the submissions made at the Bar. In the first instance, we are not at all impressed by the claim put forth by the writ Petitioners. Writ jurisdiction is to protect the rights and interest of the citizens when they are, in any way, trampled upon, infringed or denied by public authorities. When a right which otherwise is denied to a citizen, such citizen can approach this Court seeking for issuance of mandamus to the authorities to do such act as could enable the citizen to exercise his right, and if an illegal, erring order has been passed by the authority affecting the rights of the citizen, such an order can be quashed by issuing a writ of certiorari.
11. An existing right, whether statutory or constitutional, on being infringed, a citizen can approach the Court seeking for issue of a writ to protect the right, but writ jurisdiction cannot be utilised or availed to create rights or demonstrate existing rights and, based on such demonstration, seek for issue of writ, of mandamus or certiorari. Though Shri R.M. Kulkarni, learned Counsel for the Appellant submits that Article 300A of the Constitution of India provides a right in favour of the owners of properties when such properties are taken over by the State Government, only payment of proper compensation. We are not impressed with the argument for the simple reason that it is not made clear as to what kind of property was owned by the father of the Appellants and what other manner of the property is taken over by the State Government, so that such a person can claim compensation from the State.
12. The case of the writ Petitioners in itself is inconsistent. While in one breath they seek to contend that the lands have already been acquired and they had not been compensated, at the same time, directions are sought for initiating acquisition proceedings, at this point of time, under the Land Acquisition Act and to compensate the writ Petitioners in accordance with the provisions of the Land Acquisition Act.
13. Either lands of the writ Petitioners are acquired or not. If the lands had already been acquired, it is not known as to whether it has been compensated earlier. In fact, the lands never belonged to the Petitioners. The Petitioners were only making efforts to get their names entered in the revenue records in respect of the lands said to have been owned by their father. If such acquisition proceedings had taken place or if the lands had been taken over by the State Government or was used for Harijan colony way back in the year 1962 and no action had been taken during the lifetime of the father of the writ Petitioners till 1976. when he died and for about 14 to 15 years and much later, the present writ petitions being filed in the year 2007 i.e.. 31 years after the death of their father claiming compensation, such a writ petition can only be described as an ambitious one.
14. In writ jurisdiction, there is no question of the present Appellant-writ Petitioners establishing their rights in respect of the land measuring 8 acres in Sy. No. 548 of Chikka Jantakal village of Gangavathi Taluk in Koppal District, for claiming compensation payable under the Land Acquisition Act, 1894, in a writ petition filed in the year 2007 and based on one revenue entry that it showed the name of their father earlier and the proceedings to get their names entered was initiated in the year 2006 and in the continuation proceedings, in an appeal before the Assistant Commissioner u/s 136(2) of the Karnataka Land Revenue Act, the Assistant Commissioner makes observation that the lands had been acquired and having regard to the condition in which the present Petitioners are placed it is only proper that they are to be compensated that too based on the opinion gathered from the local persons and affidavit filed by the Secretary, Gram Panchayat and the Chief Executive Office, Taluka Panchayat.
15. It is because of such observation, the writ petition came to be filed before this Court. It is only in this context, we expressed our surprise as to how the Assistant Commissioner can embark upon making such observation which virtually leads the Petitioners to enable them to claim compensation on the premise that lands had been acquired.
16. Apart from mere assertions on the part of the Petitioners and based on the observation of the Assistant Commissioner, we find that if compensation has to be paid under the provisions of the Land Acquisition Act, then proceedings should have necessarily taken place under the Act and not otherwise. The writ petition is virtually in the nature of a petition for claiming damages in respect of the land which was owned by their father and admittedly was in his possession only till the year 1961-62, and if so, the petition in the form of damages, presented in the year 2007 before the High Court under Articles 226 & 227 of the Constitution of India, is a stale petition, and, at any rate, a petition for damages is not one to be examined in writ jurisdiction, particularly, if it is coming after 45 to 46 years after the cause of action.
17. It is not even known as to whether the father of the Petitioners himself had voluntarily donated the land under the ''Bhoodan'' movement as claimed by the Respondents, and if so the Petitioners cannot lay any claim for compensation, at this point of time, and particularly, by claiming to be the legal heirs of that person. Whether the land was donated in ''Bhoodan'' movement or otherwise, what is significant is, the owner of the land did not take any action during his life time i.e., for over 14 to 15 years either for claiming any compensation or for restoration of the land. In this state of affairs, the present claim of writ Petitioners as the legal heirs, for seeking compensation at the market value as in the year 2007 and this appeal for such purpose is definitely not tenable and is meritless.
18. Viewed from any angle, we find that the claim put forth by the Appellant-writ Petitioners is a fantastic claim not supported either on facts or in law. At any rate, we find that the writ petition is not one which deserves examination or consideration, at this point of time, on the basis of ifs and buts and moreso on the mere observation made by the Assistant, Commissioner.
19. We find that the observations of the Assistant Commissioner is irrelevant, unwarranted and may be even motivated. It is the observations of the Assistant Commissioner which has given cause for the writ Petitioners and who came up with the petition.
20. Though we are of the definite view that the petition deserves to be dismissed as no writ could have been issued by the learned Single Judge in the writ petition, who has observed that the Petitioners are entitled to get compensation at the market value prevailing then, still we do not propose to resort to this course of action otherwise permissible in law for dismissing the writ petition as we find that the learned Single Judge has issued direction only for considering the representation and prayer of the Petitioners both on factual basis and legal basis and as to whether they are entitled to claim compensation and, if so, to further consider the prayer for compensating them in respect of the land bearing Sy. No. 548 on the basis of the acquisition in the year 1964.
21. Be that as it may, as the authorities are required to examine this aspect and we would not like to pre-empt them from doing so and expressing our confidence that they will act in accordance with law and based on concrete facts and not embark to pass orders on the basis of presumptions and surmises, we do not want to disturb the order of the learned Single Judge.
22. However, we express our utmost displeasure at the observations made by the Assistant Commissioner while exercising his jurisdiction u/s 136(2) of the Karnataka Land Revenue Act. 1964; that it is uncalled for and unwarranted and the order and the observation is one which virtually has instigated the present writ Petitioners.
23. Ultimately, if the Petitioners were only chasing mirage for all this time it is only because the Assistant Commissioner had put them in such a make-believe world and created hopes without any basis.
While we find absolutely no merit in the writ appeal and it is dismissed, we extend the time limit for considering the prayer of the writ Petitioners in terms of the directions issued by the learned Single Judge by another six months from today.
