Karnataka High Court
Sri. Rachegowda vs Sri. Byrappa @ Byregowda on 26 July, 2024
1
WA NO. 4041/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
WRIT APPEAL NO. 4041 OF 2019(LB-RES)
BETWEEN:
SRI RACHEGOWDA,
S/O LATE JAVAREGOWDA,
AGED ABOUT 62 YEARS,
R/AT NO.289, JANATHA STREET,
HOOTAGALLI,
BELAWADI POST,
MYSORE-570 001.
...APPELLANT
(BY SRI SHARATH S GOWDA, ADVOCATE)
AND:
1. SRI BYRAPPA @ BYREGOWDA,
S/O JOGAIAHNA SIDDEGOWDA,
SINCE DEAD REP. BY HIS LRS.
1(a) HONAMMA,
W/O LATE BYRAPPA,
AGED ABOUT 65 YEARS.
1(b) PADMA,
D/O LATE BYRAPPA,
AGED ABOUT 49 YEARS.
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WA NO. 4041/2019
1(c) KUMARA,
S/O LATE BYRAPPA,
AGED ABOUT 47 YEARS.
R1(a) TO R1(c) ARE R/AT:
MAURYA NILAYA,
NEAR HALANJI KATTE,
HOOTAGALLI INDUSTRIAL ROAD,
HOOTAGALLI VILLAGE, BELAVADI POST
MYSORE TALUK, MYSORE - 570 018.
1(d) SHOBA,
D/O LATE BYRAPPA,
W/O JAGADISH,
AGED ABOUT 40 YEARS,
R/O BGS LAYOUT,
NEAR KUMBAMMA TEMPLE,
HOOTAGALLI VILLAGE,
BELAVADI POST, MYSORE TALUK,
MYSORE - 570018.
1(e) MANJULA,
D/O LATE BYRAPPA,
W/O JAYARAMU,
AGED ABOUT 39 YEARS,
R/AT NO.371, 4TH CROSS,
WATER TANK ROAD,
HOOTAGALLI VILLAGE,
POST:BELAVADI, MYSORE TALUK,
MYSORE - 570 018.
1(f) SIDDARAJU,
S/O LATE BYRAPPA,
AGED ABOUT 38 YEARS,
R/AT NO.98, 100, KHB COLONY,
HOOTAGALLI VILLAGE,
POST:BELAVADI, MYSORE TALUK,
MYSORE - 570 018.
2. SPECIAL LAND ACQUISITION OFFICER,
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WA NO. 4041/2019
KARNATAKA HOUSING BOARD,
KAVERI BHAVAN,
BENGALURU-560 009.
3. THE COMMISSIONER,
KARNATAKA HOUSING BOARD,
KAVERI BHAVAN,
BENGALURU-560 009.
4. THE ASSISTANT EXECUTIVE ENGINEER,
KARNATAKA HOUSING BOARD,
KAVERI BHAVAN,
BENGALURU-560 009.
5. THE MANAGING DIRECTOR,
KARNATAKA HOUSING BOARD,
KAVERI BHAVAN,
BENGALURU-560 009.
...RESPONDENTS
(BY SRI SANGAMESH R.B, ADVOCATE FOR R-1 (a to f);
SRI RAGHAVENDRA A KULKARNI, ADVOCATE FOR R-2 TO 5)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO a)SET ASIDE THE JUDGEMENT
AND ORDER DATED 13/11/2019 PASSED IN WP NO.31057/2014
(LB-RES) BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE
COURT, CONSEQUENTLY DISMISS THE WRIT PETITION.
b)GRANT SUCH OTHER RELIEFS BY ALLOWING THIS APPEAL.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED
ON 02.07.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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WA NO. 4041/2019
CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
CAV JUDGMENT
(PER : HON'BLE MR JUSTICE C M JOSHI) Aggrieved by the order dated 13-11-2019 passed by the learned Single Judge, the appellant/respondent No.1 in W.P.No.31057/2014, is before this Court in appeal.
2. For the sake of convenience, the parties would be referred as per their rank in the writ petition.
3. The case of the writ petitioner (now represented by his LRs.) is that, he was the absolute owner of the land measuring 04 acres 36 guntas in Sy.No.70/1 of Hootgalli Village, Mysore, having purchased the same under the registered sale deed dated 12-11-1956 from his vendor Ningegowda. Out of the said extent of 04 acres 36 guntas, an area measuring 04 acres 27 guntas was acquired by Karnataka Housing Board in the year 1989 for the purpose of formation of a Layout. The remaining extent of 09 guntas 5 WA NO. 4041/2019 remained with the writ petitioner. It was contended by the petitioner that claiming that 06 guntas of the land in the said survey number was in possession of respondent No.1/appellant herein, he filed a suit for declaration and possession in OS No.76/1996 and the said suit came to be decreed. Respondent No.1/appellant filed an appeal in RA No.51/2010 before the District Judge, and the said appeal also came to be dismissed. Against the said judgment, RSA No.1417/2011 was filed before this Court. It was contended that without disclosing the aforesaid suit and the appeals, respondent No.1/appellant herein had filed a Writ Petition in No.11831/2013 contending that he was in unauthorized occupation of 07 guntas in Sy.No.70/1 of Hootgalli Village he obtained a mandamus whereby the Karnataka Housing Board was directed to consider his representation for regularization of the land which was in his possession. Acting on the said representation, the Housing Board had issued an allotment order dated 13-3-2014 without considering the representation which was submitted by the 6 WA NO. 4041/2019 petitioner much prior to the representation of the appellant. Therefore, the writ petitioner contended that the allotment of the site measuring 1.86 guntas in site No.82/A was incorrect and before allotting the said site, the representation of the writ petitioner should have been considered by the Karnataka Housing Board. Based on the said contentions, the following reliefs were sought by the writ petitioner:
"a. Issue a writ in the nature of Certiorari, thereby quash the order of allotment bearing No............. date 13.03.2014 passed by the 3rd respondent, produced as Annexure-K. b. Issue such other writ or direction as this Hon'ble court may deem fit in the circumstances of the case."
4. On appearance, respondent No.1/appellant herein contended that the allotment of site No.82/A by the Karnataka Housing Board is in pursuance to his representation that he was in unauthorized occupation of the portion of the Sy.No.70/1 which was acquired by the Housing Board and it had nothing to do with the land 7 WA NO. 4041/2019 claimed by the writ petitioner in original suit in OS No.76/1996. Therefore, the writ petitioner had no locus standi to question the allotment of the site to the appellant, which was falling within the area acquired by the Karnataka Housing Board. It was contended that site No.82/A has nothing to do with 09 guntas of the land which was the subject matter of the suit and therefore, the claim of the petitioner is not sustainable in law. After receiving the compensation, the writ petitioner could not have objected for the allotment of the site No.82/A in favour of respondent No.1.
5. After hearing both the sides, the learned Single Judge, allowed the writ petition directing the Karnataka Housing Board to consider the representation of the writ petitioner along with the claim made by respondent No.1/appellant herein.
6. Being aggrieved by the same, respondent No.1 Rachegowda is before this Court in this intra court appeal. 8 WA NO. 4041/2019 During the pendency of the appeal, respondent No.1 herein died and his LRs were brought on record.
7. We have heard the learned counsel Sri Sharath S. Gowda appearing for the appellant, the learned counsel Sri Sangamesh appearing for respondent No.1(a) to (f) and the learned counsel appearing for respondent Nos. 2 to 5.
8. It is undisputed fact that the writ petitioner/respondent No. 1 herein had filed original suit in OS No.76/1996 claiming possession and declaration, and it came to be decreed and the first appeal also came to be dismissed and the second appeal is pending before this Court. The said suit is in respect of 06 guntas of land which is allegedly in the possession and enjoyment of the appellant herein. It is also an undisputed fact that out 04 acres 36 guntas, an area measuring 04 acres 27 guntas was acquired by Karnataka Housing Board and the remaining 09 guntas of land remained with the writ petitioner, out of which 6 guntas is the subject matter of 9 WA NO. 4041/2019 the original suit between the parties. In the meanwhile, respondent No.1/appellant herein filed W.P.No. 11831/2013 seeking to regularize 07 guntas which was acquired, as he was in unauthorized occupation of the same. Pursuant to the order in W.P.No.11831/2018, site No.82/A measuring 1.86 guntas was allotted to respondent No.1. Accordingly, respondent No.1 has deposited the sale consideration amount in respect of the said land with the Karnataka Housing Board. The writ petitioner states that on 24-07- 2012, he had made an application to allot the marginal land adjoining the 09 guntas of land in Sy.No.70/1 which was not the subject matter of the acquisition proceedings but left out of such acquisition proceedings. This application was not considered while allotting site No.82/A to appellant/respondent No.1, which in fact, is alleged to be adjoining the 09 guntas of land which is the subject matter of the original proceedings. The learned Single Judge sets aside the allotment of site No.82/A and directs to reconsider 10 WA NO. 4041/2019 the same in the light of the claim made by writ petitioner on 24-07-2012.
9. The learned counsel appearing for the appellant/ respondent No.1 contends that the writ petitioner had no locus to question the allotment made by the Karnataka Housing Board in favour of respondent No.1 and it was purely on the basis of the contentions of respondent No.1 that he is in possession and enjoyment of about 07 guntas of land which he was in unauthorized possession. Therefore, the allotment of site No.82/A had nothing to do with the 09 guntas of land which was claimed by the writ petitioner. In this regard, he has drawn the attention of this court to the report submitted by the Karnataka Housing Board, after the measurement and survey of the land dated 24-03-2003. It is contended that the allotment of site No.82/A was made keeping in view the unauthorized possession of the appellant, which was in the portion acquired by the Karnataka Housing Board and therefore, the cancellation of the allotment is illegal and erroneous.
11WA NO. 4041/2019
10. Per contra, learned counsel appearing for writ petitioner/respondent No.1 contend that both the parties are claiming the said piece of land for allotment on the ground that they have got certain right in the same. It is submitted that 04 acres 27 guntas of land was acquired by the Karnataka Housing Board and the remaining 09 guntas was in possession and enjoyment of the writ petitioner, which is the subject matter of the original suit. All along, the writ petitioner has succeeded in seeking possession and declaration in respect of the said land. He being physically handicapped person, has made a representation to the Karnataka Housing Board seeking allotment of the land which he is in possession by way of constructing the house so that, he can enjoy the same effectively. It is his contention that certain lands which are not utilized by the Housing Board may be allotted to him. Therefore, the allotment of the site No.82/A being part of such adjoining land of 09 guntas, he is having right to claim the allotment of the same. Therefore, he contends that the writ petitioner 12 WA NO. 4041/2019 has better rights and advantages in seeking allotment of the same and without considering his claim, site No.82/A has been allotted to appellant/respondent No.1. Therefore, he defends the impugned order.
11. It is evident from the available records that an area measuring 04 acres 27 guntas was acquired by the Karnataka Housing Board through the Land Acquisition Officer for the purpose of forming a residential Layout. An area measuring 09 guntas was not the subject matter of the acquisition as it was left out, having been occupied and having constructed the houses by various people. Out of 09 guntas which was left out from the acquisition proceedings, 06 guntas is in dispute in original suit in OS No.76/1996. Later, the said dispute between the writ petitioner and respondent No.1 is pending in Regular Second Appeal. Obviously, the allotment of site No.82/A to respondent No.1 is based on his representation and the mandamus issued by this Court in W.P.No.11831/2013 wherein, the pendency of original suit proceedings was not 13 WA NO. 4041/2019 disclosed. If the appellant/respondent No.1 succeeds in regular second appeal, then he can again seek land/site adjoining unauthorized occupied land or the 06 guntas which was the subject matter of the said suit. The declaration of ownership of 06 guntas out of 09 guntas by the writ petitioner would be obviously advantageous to him since he claims to have constructed a house in it.
12. The report of the Karnataka Housing Board dated 24-3-2003, which is produced at Annexure-R1 would show that the land which was acquired was surveyed comprehensively and it was found that survey No.70/1 was occupied by Rachegowda, who is the appellant herein, to the extent of 16 guntas. Out of the said survey No.70/1, an area measuring 04 acres 27 guntas was acquired. In other words, 07 guntas of land, falling in the portion which was acquired by the Housing Board was still in unauthorized occupation of appellant/ respondent No.1. This would indicate that there is an encroachment of 07 guntas by the appellant herein in the portion of the land acquired by the 14 WA NO. 4041/2019 Karnataka Housing Board. It is this land, which he sought for regularization in W.P.No.11831/2013 and considering his claim, site No.82/A measuring 1.86 guntas was allotted to him.
13. Now the question would be, whether this site No.82/A allotted to the appellant herein would be the adjoining property of 09 guntas which was left out of the acquisition proceedings, belonging to the writ petitioner?
14. Evidently, this Court does not have any details as to where the site allotted to the appellant in site No.82/A is situated. Whether it is falling within 07 guntas which is in unauthroised occupation of the appellant in the property acquired by the Karnataka Housing Board or whether it is adjoining the 09 guntas which is claimed by the writ petitioner is to be considered by the Housing Board. Clearly, if the 09 guntas of land was left out from the acquisition proceedings on the ground that it is occupied by several people; and that the writ petitioner who is pursuing 15 WA NO. 4041/2019 the dispute in original proceedings succeeded, the claim of the writ petitioner could be considered, if at all the said land falls within unutilized portion of the acquired land. Respondent No.1/appellant being an unauthorized occupant in the land acquired, (which is adjacent to the 09 guntas left out from the acquisition, belonging to the writ petitioner) will be entitled to seek the allotment. There is nothing on record that the site No.82/A is in 07 (which the appellant is in unauthorised occupation) guntas which is acquired as per the report dated 24-3-2003. If site No.82/A allotted is in the marginal land as claimed by the writ petitioner in his representation to the Housing Board, his rights to claim over it vis-à-vis, the right of the unauthroised occupant i.e., respondent No.1/ appellant need to the considered by the Housing Board while allotting site or regularizing the unauthorized occupation. Therefore, the rival claims should have been considered by the Karnataka Housing Board by making the allotment of site No.82/A. There is no material on record to show as to 16 WA NO. 4041/2019 whether site No.82/A situate adjoining 09 guntas of land of the writ petitioner, thereby, it would be advantageous for him and it was the subject matter of the representation given by him is the matter to be ascertained by the Karnataka Housing Board. Therefore, the opinion of the learned Single Judge that the Karnataka Housing Board i.e., respondent Nos.2 and 3 herein must consider the said claim in the light of the representation submitted by the writ petitioner which was much prior to the mandamus issued by this Court in W.P.No.11831/2013 cannot be interfered with. Any how, the claim over the adjoining land of 09 guntas which is owned by the writ petitioner; and in the unauthorized occupation of appellant herein pertaining to 07 guntas in the acquired portion of the land are to be considered vis-a-vis the advantages of the parties and the rights they may have in the same. This aspect, regarding the situation of site No.82/A allotted to the appellant was not considered in the allotment letter dated 13-3-2014. 17 WA NO. 4041/2019
15. In that view of the matter, we are unable to accept the contentions of learned counsel for the appellant that respondent No.1/writ petitioner had no locus-standi to question the allotment of the site No.82/A to the appellant.
16. Therefore, the appeal is bereft of any merits and as such, the same is hereby dismissed.
Interim application No.1/2019 stands disposed off.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(C M JOSHI) JUDGE tsn*