THIMMAVVA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) PETITIONER a land owner aggrieved by the preliminary notification Annexure 'E ' issued under Section 4(1) of the Land Acquisition Act, 1894 (for short LA Act) in so far as it relates to proposal to acquire 5 guntas out of 37 guntas in Sy.No.84/1 of Amanikere village of Tumkur Taluk, and the final notification dated 5.4.2010 Annexure 'H ' issued under Section 6(1) of the LA Act, as also the non-consideration of his representation dated 31.5.2010 Annexure 'J ' by the 5th respondent, has presented this petition.

(2.) FACTS as set out in the memorandum of writ petition are:- On the construction of Hemavathi channel, land owners in its vicinity put to use the service road on the channel for ingress and egress to and from their lands. The Tumkur Urban Development Authority -5th respondent within whose jurisdiction the petitioner 's property, amongst others, is situate, prepared a Master Plan Annexure 'A ' declaring roads in between Sy.Nos.134 and 135 and Sy. Nos. 86 and 89. According to the petitioner, the service road located adjacent to Sy.Nos.137, 138, 139, 140, 141 connects both B.H road and the railway service road, catering to the needs of the owners of land adjacent to the railway service road, while a link road to the south of Sy.No.85 connecting the railway service road provides for ingress and egress to and from Sy. No. 85 as indicated in Annexure 'B ' sketch, in addition to the existing 15 ft. cart road between Sy.Nos.136 and 135 from the B.H. road up to Sy.No.131 and a sub-road formed in Sy. Nos. 136 and 140. It is the allegation of the petitioner that, during the year 2001 the owners of the land bearing Sy. Nos. 134, 135 and 136 with the help of political support closed the existing road and the road formed in their land resulting in the use of the Hemavathi channel service road. It is the further allegation of the petitioner that the owners of lands in Sy.Nos. 134, 135 and 136 being chelas of M.P and M.L.A of Tumkur made a demand to form a road in the petitioner 's land. Petitioner asserts that some persons supported by the owners of lands in Sy.Nos. 134, 135, 136 as well as the elected representatives instituted O.S.No.152/2002 on the file of Second Additional City Civil Judge (Jr.Dn.), Tumkur claiming easementary right over the petitioner 's property, which was dismissed for non-prosecution, while O.S.No.363/2002 filed for identical reliefs was dismissed on 30.7.2008, on merits, and O.S.No.899/2002 instituted by the petitioner was decreed in part. The 4th respondent, it is said, addressed a letter dated 13.12.2001, Annexure 'C ' to the 3rd respondent-Assistant Commissioner, calling upon the 3rd respondent to secure records as also a report from the surveyor and submit a comprehensive report enclosing records. One S Shivanna (said to be the MLA) addressed a letter dated 7.2.2002, Annexure 'D ' calling upon the 3rd respondent to acquire the petitioner 's land for graveyard or for road or for any other purpose, which the petitioner alleges is the cause for issue of the preliminary notification on 21.11.2008, Annexure 'E ' proposing to acquire portion of the petitioner 's land for formation of a road. Petitioner claims to have opposed the notification by filing written objections dated 1.6.2009, Annexure 'G ', which when not considered by the authority, a final notification dated 13.4.2010 Annexure 'H ' was published. Petitioner asserts that the 5th respondent having recommended the formation of road in between Sy.Nos.134 and 135 as set out in the Annexure 'A ' with an oblique motive has sought to acquire the land of the petitioner for formation of another road without a scheme for improvement or development.

(3.) THE respondents have filed additional statement of objection dated 8.10.2012 interalia alleging that petitioner has fixed a fence to close the existing unofficial public path in his property to the south of B.H. road leading to the railway track. It is stated that the public path is diverted to the east between Sy.No.131/1A and 85/4 up to Sy.No.131/1C and 132/3. According to the Deputy Commissioner, the village map does not disclose the existence of road from B.H. road to the railway track and hence, the Commissioner of the City Municipal Council, Tumkur, made a representation to acquire 1 acres 05 1/2 guntas spread over in Sy.Nos.85/1, 85/2, 85/3, 85/4, 86/1, 86/2, 86/3, 86/4, 86/5, 86/6, 86/7, 130/1, 130/6, 131/1A, 131/1B, 131/1C, 132/1, 131/2, 132/3, 132/4 and 87 as also the petitioner 's property, for formation of a public road to connect B.H. road and railway road. At paragraph 4 of the statement it is stated that, at the time of 5A enquiry other land owners except the petitioner agreed for the acquisition of their lands to form the road for a public purpose and since the road is useful to reach the railway road as also for agricultural activities of the owners of the other survey numbers, hence, the objections were rejected. According to the Deputy Commissioner, the proposed road in the (CDP) Master Plan in between Sy.Nos.86 and 89 is useful only to owners of Sy.No.88 while the proposed road in between Sy.Nos.134 and 135 is useful to owners of lands in Sy.No.132.