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2013 DIGILAW 419 (KAR)

Spl Lao v. Hucchaih

2013-04-01

K.L.MANJUNATH, RAVI MALIMATH

body2013
JUDGMENT 1. The legality and correctness of the order passed by the Learned Single Judge in W.P. Nos.31857-887/2011, dated 05.09.2011, is called in question in these appeals. 2. The facts leading to these appeals are as hereunder: The writ petitioners are residents of Bheemanahalli Village of Halekote Hobli, Holenarasipur Taluk, Hassan. They are agriculturist. On account of construction of Hemavathi Reservoir Project, Hemavathi Left Bank Main Canal of 25 cusecs of water capacity is passing through the village Bheemanahalli village. The said main Left Bank Canal is at a distance of 250 metres from the village. The said left bank canal is the main distributory of the Hemavathi Reservoir Project, in addition to 25 cusecs of water left bank canal, a feeding canal is also running in the middle of the village of the Bheemanahalli Village and that the water is being supplied for the irrigation purpose from the year 1994 and during rainy season and more particularly, when the water is released through the Left Bank Canal, all the houses of Bheemanahalli village are damaged on account of seepage. 3. In the circumstance, a committee was constituted by the Government under the Chairmanship of Additional Commissioner, Deputy Commissioner, Chief Engineer and other officers to inspect all the affected villages in the taluk of Channarayapatna, Holenarasipura, K.R. Pet in Hassan, Mandya and Madikeri Districts. They gave a detailed report about the villages affected on account of seepage and they categorized all the villages into three categories. According to the report, some of the villages are to be shifted on account of seepage and some of the villages were partly affected and only those affected houses are to be rehabilitated and some of the villages were not required to be shifted and curative measures were suggested by the committee. Accordingly, the report was accepted by the Government on 25.05.1993. 4. Several years later, a notification was issued to acquire the existing houses of Bheemanahalli village under Section -4(1) of the Land Acquisition Act, as per Annexure-A of the writ petition and final notification was issued after holding an enquiry as required under Section-5(a) of the Act. On 18.06.2001, notice under Section-9 was also issued to all the villagers and without passing an award as required under the Land Acquisition Act based on the subsequent report of the committee constituted later, an award was not passed. On 18.06.2001, notice under Section-9 was also issued to all the villagers and without passing an award as required under the Land Acquisition Act based on the subsequent report of the committee constituted later, an award was not passed. Therefore, representations were given by the villagers to pass an award and pay compensation to them. Since they are unable to reside in their houses on account of seepage and by that time several houses were already collapsed. 5. It was contended by the appellants herein before the Learned Single Judge that the land acquisition proceedings are lapsed due non-passing of an award within the Statutory period and that no writ can be issued by this Court and the appellants cannot be compelled to pay the compensation to the writ petitioners. It was also contended that a new High Power Committee was constituted by the Government to inspect the seepage affected villages and based on the report of the High Power Committee, it was decided by the Government not to pass any award in respect of the Bheemanahalli Village since curative measures were suggested by the Committee. In the circumstance, the appellants requested the Learned Single Judge to dismiss the petition. 6. The Learned Single Judge after hearing the parties relying upon Articles-21 and 300A of the Constitution of India held that a right is guaranteed to the villagers for rehabilitation and settlement and the right vested in them cannot be taken away by the subsequent conduct of the appellants. In the circumstances, the Learned Single Judge has directed the appellants to consider the representation of the appellants and settle the compensation payable to them in accordance with Law. This order is called in question by the appellants in these appeals. 7. Mr. A.Keshava Reddy, learned Government Advocate fairly concedes that if really the houses of the writ petitioners are affected on account of seepage, the writ petitioners are entitled for compensation. According to him a new High Power Committee constituted by the Government inspected all the villages and has given a detailed report. As per the report, there is no necessity for the Government to shift the houses of the Bheemanahalli Village and by providing curative measures the damage caused to the houses can be prevented and that there is no necessity to shift the village. As per the report, there is no necessity for the Government to shift the houses of the Bheemanahalli Village and by providing curative measures the damage caused to the houses can be prevented and that there is no necessity to shift the village. Relying upon the second report of the new High Power Committee dated 27.07.2011 and 28.01.2012, requests the Court to allow the appeals by setting aside the order of the Learned Single Judge. 8. Per contra, Mr. Mahantesh S. Hosmath, learned counsel for the respondents submits that even the second High Power Committee report also it is states that Bheemanahalli Village is an affected village and there are about 30-35 houses and most of the houses were constructed out of mud and foundation was of ordinary country stones. The second report further reads that many houses on account of seepage have already fallen down and villagers have shifted their houses by constructing new buildings at their costs in their agricultural land and taking us through the report; he submits that the people in Bheemanahalli Village have been affected with several epidemic diseases and even the cattle of the village are also affected on account of the seepage. 9. He further contends that the High Power Committee has inspected the village in the fag-end of November 2010. During which time the water will not be supplied through Hemavathi Bank Canal to assess the seepage affected houses. According to him, the water would be released from the reservoir between June to September of every year. From September onwards there will be no water and particularly in the month of October onwards the area is nothing but dry area and if a committee has inspected the village in hot summer, it would not be possible for the committee to assess the seepage. According to him the report further shows how the entire village has been affected on account of release of water through 25 cusecs canal and has also been effected on account of the canal passing in the middle of the village. He further submits that most of the houses constructed out of mud have already collapsed. The Government at this stage cannot contend that the villagers need not be rehabilitated. He further submits that most of the houses constructed out of mud have already collapsed. The Government at this stage cannot contend that the villagers need not be rehabilitated. He further contends that when the villagers have lost their houses and they are forced to shift their houses to their agricultural lands and they are made to spend lakhs of rupees for new construction. The Government coercing the farmers to shift their houses from the villages to the agricultural lands, leaving their old houses cannot take a stand that the village need not be shifted because now the entire villagers have shifted their houses to a different place. Only to avoid compensation payable to the villagers, the Government has innovated appointing of a second High Power Committee to inspect the village in hot summer and to give a report stating that there is no necessity to shift the villagers. In the circumstances, he requests the Court to dismiss the appeal. 10. Having heard the counsel for the parties, what is to be considered by us in this appeal is whether any error is committed by the Learned Single Judge in order to interfere with the order. 11. The facts in these appeals which are not in disputed are to the following extent: The writ petitioners are the residents of Bheemanahalli Village and that Hemavathi Left Bank Canal passes at a distance of 250 meters from the village and it is also not in dispute that a feeder canal is passing through the middle of the village. The village has about 35 houses, more than 25 houses were constructed out of ordinary mud. On an earlier occasion Government had constituted High Power Committee under the Chairmanship of Regional Commissioner and other members were Deputy Commissioners of two Districts Chief Engineers and Superintendent Engineers and so also the District Health Officers. The said committee has inspected several villages in three districts of Hassan, Mandya and Madikeri and has given a detailed report categorizing all the villages into three categories. As per the report, some of the villages are completely affected on account of seepage and one such village is Bheemanahalli Village which is the subject matter of these appeals. According to the said committee some of the villages need not be shifted since they are highly elevated place from the canal. As per the report, some of the villages are completely affected on account of seepage and one such village is Bheemanahalli Village which is the subject matter of these appeals. According to the said committee some of the villages need not be shifted since they are highly elevated place from the canal. The third category was to shift some of the houses, which report has been accepted by the Government in toto. 12. From the year 1984, water is being released to canals, and many houses of Bheemanahalli Village have been collapsed. This fact is also admitted in the report of newly appointed high power committee. The newly appointed high power committee has inspected the villages in the month of November 2010, during which time there will not be any water, either in the left bank canal or in feeder canal. Since it is not disputed by the Government Advocate that water would be released from June end till the beginning of September and that no water will be released from September-November, if the committee has inspected the villages in the month of November, the officials of newly appointed committee cannot assess the actual sufferings of these villagers during seepage. 13. This Court could have accepted the arguments of Mr. Keshava Reddy, learned Government Advocate provided the committee has inspected the villages when the water was released through these two canals. On a perusal of the second report, we have noticed that the new committee has also accepted that several mud houses have already collapsed. There is nothing for this Court to interfere with the order of Learned Single Judge, because the houses have been collapsed on account of seepage. 14. Therefore, the earlier report of High Power Committee in recommending for shifting this village, was rightly accepted by the Government and having accepted such a report, there was no necessity for the Government to appoint a fresh new High Power Committee to go into the details of the same village. Even the New High Power Committee has accepted that the villagers are suffering from several epidemic deceased on account of water logging and seepage, the cattle in the village have been affected and houses have been collapsed. Even the New High Power Committee has accepted that the villagers are suffering from several epidemic deceased on account of water logging and seepage, the cattle in the village have been affected and houses have been collapsed. The people have already left the village and constructed new houses in their farm land and at this stage if the Government takes a stand that the land acquisition proceedings have been lapsed on account of not passing an award within the statutory period of two years under the Land Acquisition Act. No court can accept this contention of the Government Advocate. 15. On the contrary, considering the rights of these farmers and villagers and they have been suffering from the year 1984, this Court can even direct the Government to issue a fresh notification as required under the Land Acquisition Act and pass an award and suitably compensate these rustic farmers who have lost their houses where their forefathers have lived. 16. Under Article-21 of the Constitution of India guarantees protection of life and personal liberty to every individual and no one can deprived of the right and liberty of life and property. Article-300A guarantees that a property of an individual cannot be deprived of. Though it is not a fundamental right but still it is a constitutional right. In the instant case the Government having formed Hemavathi Left Bank Canal at a distance of 250 meters, with 25 cusecs of water capacity and forming a canal in the middle of the village compelled the farmers to leave their houses on account of seepage and water logging and making them to construct houses at different places at their cost cannot be deprived of the value of the residential house. Therefore, the constitutional right of the writ petitioners have been taken away in an indirect method by appointing New High Power Committee after several houses in the village were collapsed. In the circumstance, we do not find any merit in these appeals. 17. Accordingly, these appeals are dismissed. We issue a direction to the appellants to pass an award in accordance with Law and settle the compensation payable to the persons who lost their houses at Bheemanahalli village of Halekote Hobli, Holenarasipur Taluk, Hassan, within a period of six months from today.