Karnataka High Court
Smt. Saraswathi D/O Vinayakrao Joshi vs The Deputy Commissioner And Another on 25 July, 2024
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NC: 2024:KHC-K:5332
WP No. 203391 of 2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.203391 OF 2015 (KLR-RES)
BETWEEN:
SMT. SARASWATHI
D/O VINAYAKRAO JOSHI,
AGE: 75 YEARS, OCC: NIL
R/O BEHIND POLYTECHNIC COLLEGE
BIDAR-585401.
REPRESENTED BY GPA HOLDER
SRI.SHASHIKANT DIKSHIT
S/O SRIKANT DIKSHIT
AGE :45 YEARS
OCC : PRIVATE SERVICE,
R/O : NO.8-6-38/3,
ASREYA COLONY,
NOW RESIDING AT
H.NO.4-2-149 (OLD)
Digitally signed NEAR CHOUBARA
by RENUKA BIDAR-585401.
Location: High ...PETITIONERS
Court Of (BY SRI. GANESH S. KALBURGI, ADVOCATE)
Karnataka
AND:
1. THE DEPUTY COMMISSIONER
BIDAR-585401.
2. THE COMMISSIONER
CITY MUNICIPAL COUNCIL,
BIDAR-585401.
...RESPONDENTS
(BY SRI SHIVAKUMAR R. TENGLI, AGA FOR R1;
SRI. GOURISH S. KHASHAMPUR, ADVOCATE FOR R2)
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WP No. 203391 of 2015
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF MANDAMUS AND GRANT ANY OTHER
APPROPRIATE WRIT IN THE FOLLOWING TERMS-QUASH THE
ORDER DATED 30.04.2015 PASSED IN APPEAL NO.659/2006
BY THE HON'BLE KARNATAKA REVENUE APPELLATE TRIBUNAL
AT BANGALORE, THE CERTIFIED COPY OF WHICH IS AT
ANNEXURE-G, CONFIRMING THE ORDER DATED 19.01.2006
PASSED BY THE RESPONDENT NO.1 IN FILE
NO.REV/ASH/CR/44/2005-06, THE COPY OF WHICH IS AT
ANNEXURE-F.
THIS PETITION, COMING ON FOR HEARING THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE R.NATARAJ
ORAL ORDER
(PER: HON'BLE MR. JUSTICE R.NATARAJ) The petitioner has challenged the order dated 19.01.2006 passed by respondent No.1 in file No.Rev/Ash/CR/44/2005-06 by which the site granted to the petitioner was cancelled. The petitioner is aggrieved by the order passed by the Karnataka Appellate Tribunal, Bangalore dated 30.04.2015 in Appeal No.659/2006 by which the order passed by respondent No.1 was confirmed.
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NC: 2024:KHC-K:5332 WP No. 203391 of 2015
2. The petitioner contends that she was allotted a house site under Ashraya Scheme in the year 1992. She raised a loan and constructed a house thereon and was residing therein with her family. She contends that in a correspondence by the respondent No.2 to respondent No.1 dated 02/03.09.1983, it was mentioned that the property in Sy.No.3 of Guller Haveli was not a Government land, but was a Municipal land acquired by the Municipality by paying compensation to the erstwhile owner and balance compensation was deposited with respondent No.1. The petitioner claims that, she was shocked to receive a notice dated 13.01.2006, whereby she was asked to vacate the premises. Aggrieved by the same, she filed a suit in OS No.149/2005 before the Civil Judge (Jn.Dn), Bidar for perpetual injunction. The suit was withdrawn with liberty to file a fresh suit. In the meanwhile, a notice issued by respondent No.1 dated 02.01.2006 was replied by the petitioner on 05.01.2006. Respondent No.1 passed an order dated 19.01.2006 directing the petitioner to vacate from the property. The -4- NC: 2024:KHC-K:5332 WP No. 203391 of 2015 petitioner contends that in the order dated 19.01.2006, respondent No.1 had claimed that the allotment of 74 sites in the land in question cancelled and same were upheld by this Court. The petitioner therefore, having no other option filed an appeal before the Appellate Tribunal in Appeal No.695/2006, which was also dismissed on 30.04.2015. The petitioner contends that similarly placed allottees filed a suit in OS No.142/2005 before the Addl. Civil Judge (Jr.Dn), Bidar, which was decreed on 02.03.2010 and a judgment of perpetual injunction was granted against respondents herein. The petitioner is therefore before this Court, challenging the order passed by respondent No.1 as well as the order passed by the Tribunal.
3. This petition was listed before this Court on 25.06.2024 and this Court directed the petitioner to file an affidavit declaring whether the petitioner had any property in her name, agricultural or residential, prior to allotment of the site in question. Following this an affidavit was filed on 11.07.2024, which reads as follows: -5-
NC: 2024:KHC-K:5332 WP No. 203391 of 2015 "I, Shashikant Dikshit s/o Srikanth Dikshit, aged about 54 years, Occ: private service, r/o no. 8- 6-38/3, ashreya colony, now residing behind polytechnic college, Bidar, today at Kalaburagi, do hereby solemnly affirm and state on oath as under:
1. I am the GPA Holder of the petitioner herein and I know the facts of the case. Hence I state as follows.
2. I state that on 25.06.2024 this Hon'ble Court has directed to file an affidavit declaring that the petitioner has no property either agriculture or residential in name of petitioner.
3. I state that, in 1992 the petitioner was having a open plot bearing no. 17 measuring 40ft x 30ft situated at near SBH colony Bidar, which was pledged with Karnataka State Financial Corporation branch Bidar for obtaining loan to M/s Guru Printing Press and therefore the petitioner has filed application under Ashraya Yojana."
4. Therefore, the petitioner has admitted that she was in possession of a site even before the site in question was allotted to her. Hence, she was not eligible for allotted site under Ashraya Scheme.
5. Be that as it may, this Court noticed that the State Government had utilized the construction built by the petitioner over the site in question as a guest house of the office of Tahasildar. Therefore, this Court directed learned High Court Government Pleader to secure -6- NC: 2024:KHC-K:5332 WP No. 203391 of 2015 instructions from respondent No.1, whether the building value could be paid to the petitioner.
6. In response to the above learned Additional Government Advocate has not secured any information.
On the contrary, he submits that despite several communications, no information is furnished to him and therefore, he is not in a position to make any commitment. He however submits that the petitioner was not entitled for grant of a site under Ashraya Scheme and moreover the land where the sites were allotted did not belong to the State Government, but was vested with respondent No.2 and hence, the allotment of sites to the petitioner itself was illegal and without authority. Respondent No.1 had taken necessary action to remove the petitioner from the property and to hand over the same to respondent No.2.
7. Learned counsel for respondent No.2 reiterated the aforesaid contentions and claimed that the land where the petitioner was allotted a site, belonged to respondent No.2. Therefore, steps were taken to evict the petitioner -7- NC: 2024:KHC-K:5332 WP No. 203391 of 2015 and similarly situated persons from the land, which was upheld by this Court in W.P.No.41234/1993 and 41235/1993.
8. If the land in question did not belong to the State Government, it is not known as to how the State Government allotted the site in question to the petitioner. If the petitioner had raised a loan and constructed a house thereon, which is now termed illegal, the respondent No.1 is bound to recompense the petitioner. Therefore, respondent No.1 cannot deny the benefit of the value of the construction put up over the site in question, more so, when the subordinates of respondent No.1 are using it as a guest house. Respondent No.1 did not dispute the fact that the construction put up over the site in question was used as a guest house for the office of Tahasildar. If that be so, having regard to the fact that the petitioner has fairly submitted that she owned a site prior to allotment of site in question and therefore, she was not eligible for allotment under Ashraya Scheme, interest of justice would be met by directing respondent No.1 to get the building -8- NC: 2024:KHC-K:5332 WP No. 203391 of 2015 constructed over the site in question duly valued through a private valuer or from the PWD and pay the value of the building as of today to the petitioner.
9. This order shall be complied by respondent No.1 within a period of 6 months from the date of receipt of a certified copy of this order.
Sd/-
JUDGE NJ Ct:si List No.: 1 Sl No.: 30