NOORALAM S/O MAHEBOOBSAB BAGALKOT v. STATE OF KARNATAKA & ANR REP. BY ITS SECRETARY REVENUE DEPARTMENT
2016-11-22
A.N.VENUGOPALA GOWDA
body2016
DigiLaw.ai
ORDER : Pursuant to a Notification issued under S.4(1) of Land Acquisition Act, 1894 (for short, ‘the Act’) and final declaration published under S.6(1), 15 acres and 5 guntas of land in Sy. No.114/1, Kavadimatti Village, Taluk Muddebihal and Dist. Vijayapura was acquired for public purpose. Spl. Land Acquisition Officer, UKP, Alamatti respondent No.2, passed an Award, on 28.02.2016, U/s. 11 of the Act. Finding that the Award does not include the cost of a well and standing lemon trees, the petitioner submitted a representation on 21.04.2016 vide Annexure-D, to pay compensation for the well and standing trees in Sy. No.114/1, as per the estimate valuation dated 10.03.2014 and sought modification of the Award dated 28.02.2016, as at Annexure-G. Finding no response, this petition was filed for directing respondent No.2 to modify the Award. 2. Smt. Ratna N.Shivayogimath, learned advocate contended that by not granting compensation in respect of the well and standing lemon trees found in the petitioner’s land, there is violation of Article 300-A of the Constitution. She submitted that respondent No.2 being a Public Officer should protect the interests of the petitioner, who is an agriculturist. She submitted that there being inaction in the matter of consideration of the representation submitted vide Annexure-D, respondent No.2 be directed to consider the representation and modify the Award so as to include the value of the well and 40 lemon trees found in the acquired property. 3. Smt. Archana P. Tiwari, learned AGA, on the other hand contended that this petition is nothing but bypassing the statutory remedy under S.18 of the Act. She submitted that there being alternate remedy statutorily provided and as factual adjudication is required, petitioner be not allowed to invoke the extra-ordinary writ remedy. 4. Considered the rival contentions and perused writ record. Respondent No.2 has passed the Award on 28.02.2016. Representation was submitted on 21.04.2016 to pay the compensation in respect of a well and 40 lemon trees by modifying the Award. Point for consideration is, in the light of the provisions made in the Act and in the absence of provision conferring power of jurisdiction on respondent No.2 to pass a second Award / supplementary Award, whether a writ in the nature of mandamus can be issued? 5.
Point for consideration is, in the light of the provisions made in the Act and in the absence of provision conferring power of jurisdiction on respondent No.2 to pass a second Award / supplementary Award, whether a writ in the nature of mandamus can be issued? 5. S.18 of the Act enables any person interested, who has not accepted the Award, to submit a written application requiring the Collector to refer for determination of the Court with regard to the objection to the measurement of the land, the amount of compensation etc. 6. Remedy provided in writ jurisdiction is not intended to supercede the modes of obtaining relief by an action in a Civil Court. Where, hierarchy of forums is provided by a statute for obtaining of remedy, the party must exhaust statutory remedy before resorting to writ jurisdiction. 7. In RAJASHREE CEMENT Vs. KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD AND OTHERS, ILR 2000 KAR 4600, it has been held that once an Award is passed and if the person interested does not accept the same, then, the only remedy which remains with him is to question the same by seeking reference under S.18 of the Act. 8. In MOHINDER SINGH Vs. STATE OF PUNJAB, AIR 2006 P. & H. 186, it has been held, that the Land Acquisition Officer after making the Award under the Land Acquisition Act becomes functus officio, and will have no jurisdiction or power to modify the Award except as regards correction of any clerical or arithmetical mistake, as per the statutory provision provided. 9. In U.P. STATE BRIDGE CORPORATION LTD. AND OTHERS Vs. U.P. RAJYA SETU NIGAM S. KARAMCHARI SANGH, (2004) 4 SCC 268 , Apex Court has held that when the dispute relates to enforcement of a right or obligation under a statute and specific remedy is, therefore, provided under the statute, High Court should not deviate from the general view and interfere under Article 226, in as much as, the person who insists upon such remedy can avail of the process as provided under the statute. 10. In NIVEDITA SHARMA Vs.
10. In NIVEDITA SHARMA Vs. CELLULAR OPERATORS ASSOCIATION OF INDIA & ORS, (2011) 14 SCC 337, Apex Court, noticing the previous decisions, wherein, it was adverted to the rule of self-restraint, that writ petition will not be entertained if an effective remedy is available to the aggrieved person, has held, that when a statutory remedy is created by law for redressal of grievance, a writ petition should not be entertained ignoring the statutory dispensation. 11. As the Act does not provide for passing of a supplementary Award, respondent No.2 cannot be conferred with such a power by a judicial order i.e. to pass the supplemental Award by taking into consideration the representation of the petitioner with regard to the alleged omission of taking note of an existing well and lemon trees in the acquired land. Mandamus can be issued to an authority who has been conferred with the power but has failed to exercise the power despite person having the right made the demand. 12. In view of the availability of statutory remedy of reference to Civil Court under S.18, and provision for an appeal under S.54 of the Act, ignoring the said statutory dispensation, these petitions cannot be entertained. Having regard to the statutory remedy provided under the Act, there is no justification to permit the invoking of writ jurisdiction. The petition being not entertainable, as the petitioner has to establish the existence of a well and lemon trees in his acquired land, regarding which evidence has to be adduced, petition is disposed of, reserving liberty to avail the statutory remedy.