Karnataka High Court: Sachin Shankar Magadum J., disposed off the petition granting compensation to the petitioners as the defaulting land fell under the provisions of Rule 21(2) (a) of the Karnataka Land Revenue Rules, 1996.
The facts of the case are such that the respondents issued a preliminary notification under Section 4(1) of the Land Acquisition Act and thereby acquired the lands of the petitioner for the purposes of submergence in the backwater of Upper Krishna Project without compensating for the ‘phot- kharab’ area as it was not notified. Aggrieved by the same, instant petition was filed seeking writ of mandamus against the respondents to pass a supplementary award along with statutory benefits in respect of ‘phot- kharab’ area being part of land.
Counsel for the petitioners submitted that after relying on the Aakar Bandh, it was evident that survey was carried out in the year 1965-66 and the ‘phot kharab’ area is classified as ‘A’ kharab and hence would squarely fall under the provisions of Rule 21(2) (a) of the Karnataka Land Revenue Rules, 1996. It was also submitted that other landowners has also been compensated for the same ‘phot kharab’ area and hence the petitioners are also liable to be compensated for the same.
Counsel for the respondents submitted that the petitioners have waived off their right to claim on the ‘phot- kharab’ area as it was not the subject matter of the consent award and herein the same consent award is being challenged and hence issue of compensation cannot be re-agitated and compensation thereby cannot be granted.
The Court relied on the judgment Sadashivaiah v. State of Karnataka, 2003 SCC OnLine Kar 539 wherein it was held that
“31. The words phut Kharab, therefore, mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation. After coming into the force of the Karnataka Land Revenue Act 1964 the word phut Kharab has been defined under Rule 21(2) as under:—
“during the process of classification, land included as unarable shall be treated as “Pot Kharab”. Pot Kharab land may be classified as follows.
(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing flours of the holder;
(b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; (iv) assigned for villager potteries.”
- Therefore, it becomes clear if the land falls within the category of 21(2)(a) it is not a government land, it belongs to the ownership of the petitioners. If it falls under 21(2)(b) then it belongs to the government and the petitioners cannot have a claim over the said land. However, when the petitioners claim that the said land falls within 21(2)(a) and therefore they are entitled to the compensation LAO proceeds on the assumption that it falls within Section 22(1)(b) and therefore they are not entitled to compensation as it belongs to the government and accordingly he has declined to pass any award. It is not in dispute that before arriving at such a conclusion the LAO has not given an opportunity to the petitioners in the enquiry under Section 11 of the Act to substantiate their contention. Without any such enquiry, without affording an opportunity to the petitioners he proceeds on the assumption that the said Kharab land falls within 22(1)(b) and therefore petitioners have no claim, as such he has declined to pass the award. On that ground also, the impugned orders passed by the LAO cannot be sustained and is liable to be set aside.”
The Court thus observed that if the land falls within the category of Rule 21(2) (a) of the Karnataka Land Revenue Rules, 1996, the said ‘phot kharab’ area is not a government ladn and the same would confirm the ownership on the land owners to which this ‘phot kharab’ area is attached and the same would be classified as phot kharab ‘A’ land.
In view of the above, writ petition was disposed off.[Sadappa v. General Manager, WP No. 201108 of 2018, decided on 22-01-2020]
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