Saraswathi K., Pushparaj and Manmohan vs State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the petitioners and the learned counsel for the respondent. The petitioners in the present petitions, claim as owners of the lands bearing Sy. No. 221/7P2 and Sy. No. 221/7P1. The petitioner No. 1 is the wife of one Venkat and petitioners 2 and 3 are the sons of Venkat. One Thomu, the mother of Venkat, was the owner of Sy. No. 221/7P2 measuring 21 cents and Sy. No. 221/7P1 measuring 4 cents of Padavu Village of Mangalore Taluk, Dakshina Kannada District. On her demise, Venkat succeeded to the property and it transpires that even Venkat passed away and the petitioners have succeeded to his estate and are in enjoyment of the same. The said land was subject-matter of a preliminary notification u/s 4(1) of the Land Acquisition Act, 1894 dated 29/7/2011 published in the gazette on 11/8/2011 issued by the first respondent, namely the State of Karnataka, and followed by a final notification dated 24/2/2012 published in the Karnataka Gazette on 8/3/2012. It is stated that the lands in question consists of an ancestral home and a well, and is within the limits of the Mangalore City Corporation. It is stated that on the western side of the property, there is a road measuring eight feet wide providing access to houses of five families and there is also a pathway to reach the existing road leading to Kotimara and the Karnataka Milk Federation (KMF) dairy. The pathway is over a hilly area and is capable of being traversed only by foot and not otherwise. However there is a separate road leading from the Karkala main road going towards Kotimara which provides access to the KMF dairy. It is however stated, the first respondent has issued the above notifications in respect of an area of 1.25 cents in Sy. No. 221/-7P purportedly for the purpose of widening the road from Kotimara to Vinayaguri so as to reach the dairy. The petitioner No. 2, though did not receive any personal notice in respect of the proposed acquisition, filed objections to the notifications, on the footing that the petitioners have not been notified at all, though they are the present owners of the property and it was also pointed out that the proposed acquisition and the proposed widening of the road by acquiring the petitioners'' property, did not achieve any object of providing access or easier access to the road leading to the KMF dairy and that no purpose would be served by widening the extent of road, when the declared object was to provide better access to the KMF dairy. It was also pointed out that the existing road to KMF dairy was a better alternative for vehicular traffic. As, without acquiring the other adjacent properties namely 221/8, 221/9, 221/10 and 221/3, 221/4, 221/5 and providing a wider road leading from south to north, the present intention of widening the footpath, to the south of the petitioners'' property, did not achieve the purpose of providing a better access to the KMF dairy at all and that it was illogical to merely widen the footpath on the southern side of the petitioners'' property to achieve the declared object. It was on this note that the objections had been filed.

However insofar as the contention that the petitioners'' names were not notified though they were the owners of the property concerned, that the petitioners'' names have been subsequently included in the final declaration u/s 6 and therefore the objections that they were not heard or not considered as interested persons, was overruled. Further it was held that, having regard to the fact that the purpose being a public purpose, even if it was the case of the petitioners that without acquiring the other lands of the neighboring owners, a better access to the KMF dairy could not be provided, was not the concern of the petitioners and it was for the State to take appropriate measures to acquire other lands, if it was so needed and the objections having been overruled, the acquisition proceedings had proceeded further. It is at that stage that the present petitions had been filed.

This court had, at the initial stage, granted an interim order and the petitions coming on for hearing now, the learned counsel for the petitioners has filed a memo indicating the present status of the properties as per a rough sketch, which is not disputed by the respondents. As seen from the sketch, the ground reality appears to be that there is an existing motorable road leading from Kotimara main road to KMF dairy and the proposed acquisition is to widen the footpath on the southern side of the petitioners'' property, which does not provide any motorable access to the KMF dairy, except widening the footpath to an extent of the length of the petitioners'' property. The other alternative of widening the footpath leading from south to north on the western side of the petitioners'' property to vinayaguri, would possibly provide a motorable access to the road leading to KMF, provided other properties adjacent to and in the vicinity of the petitioners'' property, are also acquired. It is not in dispute that there is no proposal at present to acquire any property other than that of the petitioners, and to this effect there is an endorsement issued by the respondents at the instance of the petitioners. This is not in dispute. Therefore it would appear illogical for the acquisition to be taken forward only by acquiring the petitioners'' property, as no useful purpose would be served to achieve the declared object of providing a motorable access to the KMF dairy. Since there is already an existing motorable road, it would be unfair and unjust to acquire the petitioners'' land to achieve the declared object, even though it is certainly a public purpose. Therefore, if and when the State chooses to form a road leading from the southern side of the petitioners'' property to the road to KMF by acquiring the other properties, which alone would enable the State to form any such road, the acquisition of the petitioners'' property alone, would result in an arbitrary exercise of power and therefore it cannot be sustained. Consequently the petitions are allowed. The acquisition proceedings are quashed, subject however to the State, at its discretion and privilege, choosing to acquire other lands which may possibly enable it to form a motorable road, as is the declared object in the present proceedings With that observation, the petitions stand disposed of.