RAMACHANDRAPPA S/O SANNA KADURAPPA AND OTHERS Vs. STATE OF KARNATAKA REP. BY SECRETARY TO GOVT., URBAN DEPARTMENT AND OTHERS

JUDGEMENT

(1.) THIS appeal filed under Section 4 of the Karnataka High Court Act is directed against the order dated 01.04.2008 passed by the learned Single Judge of this Court in WP No. 17894/2007 dismissing the said Writ Petition. The appellants filed the said Writ Petition seeking a writ of certiorari quashing the preliminary notification dated 17.04.2003 (Annexure -A) issued under Section 4(1) of the Land Acquisition Act (for short, the 'Act') and the final notification dated 21.06.2007 (Annexure -G) issued under Section 6(1) of the Act in respect of 37 guntas in land bearing Sy. No. 8/2 of the Mallikapura Village in Sira Taluk, Tumkur District.

(2.) THE 1st appellant is the husband of the 2nd appellant and father of Appellants - 3 to 5. According to the appellants, the land in question is their joint family property. The Deputy Commissioner, Tumkur District, issued a notification dated 17.04.2003 under Section 4(1) of the Act proposing to acquire the land bearing Sy. No. 8/12 to an extent of 1 acre, as per Annexure -A. However, since in the said notification: (Annexure -A) the purpose for which the land was sought to be acquired had not been mentioned and since the name of the village had been wrongly shown as Kallukote, a Corrigendum dated 09.07.2003 was issued stating that the land in question was required for public purpose, viz., for the burial ground. The village name was also correctly mentioned as Mallikapura. To the said notification, the appellants filed their objections interalia contending that the 'and bearing Sy. No. 8/2 totally measuring 3 acres 4 guntas is the only land available to their family and they are solely dependent on the income derived from that land, therefore, if the land in question is acquired, they will be put to great hardship. They also contended that the proposed acquisition is not bona fide, but it is at the instance of persons who are inimically disposed towards them. They also contended that there are several Government lands nearby the land in question and that the land in question is wet land, therefore, in the light of the Government Circular dated 28.05.2002 (Annexure -N), the land in question cannot be acquired. Therefore, they sought for dropping the proceedings for acquisition. The Assistant Commissioner, who held enquiry under Section 5 -A of the Act submitted his report dated 22.01.2004 (Annexure -D) rejecting the objections of the appellants and recommended for acquisition of the land in question. Pursuant to the said report, the final notification dated 21.06.2007 (Annexure -G) came to be issued under Section 6(1) of the Act. Thereafter, the appellants questioned the validity of these notifications by filing the instant writ petition.

(3.) THE learned Single Judge rejected all the three contentions urged by the appellants holding that the land in question, is a dry land and not a wet land, therefore, there is no bar for acquiring the said land for burial ground in terms of the Government Circular (Annexure -N). The learned Single Judge also held that since the authorities on due application of mind have come to the conclusion that the land in question is suitable for being used as burial ground, the Court's interference is not warranted. Placing reliance on the judgement of the Apex Court in Subhashgir Khushalgir Gosavi and others Vs. Special Land Acquisition Officer and others, (1996) 4 AD SC 415 the learned Single Judge held that which place has to be used as burial ground falls within the province of the executive and that the Court's interference is not warranted in that regard. The learned Single Judge has also observed that if the Government lands are available in the adjoining villages, the same may not be feasible as contended by the learned Counsel for the respondents for being used as the burial ground by the people of Mallikapura Village, as the dead body of a resident of one village would not be permitted to be transported into the other village for the purpose of burial or cremation. In this view of the matter, the learned Single Judge dismissed the writ petition. Aggrieved by the order of the learned Single Judge the appellants have presented this appeal.