Sanjay S/O Vitthal Sangedar vs The State Of Karnataka And Ors
2022 Latest Caselaw 4085 Kant

                            1




           IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

        DATED THIS THE 10TH DAY OF MARCH, 2022
                         BEFORE
  THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
              W.P.No.201888/2021 (LB-RES)
BETWEEN:
SRI. SANJAY S/O VITTHAL SANGEDAR
AGE: 49 YEARS
R/O: KALAGI TQ: KALAGI
DIST: KALABURAGI.                        .... PETITIONER
(BY SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE)
AND:
01.    THE STATE OF KARNATAKA
       REP. BY ITS SECRETARY
       URBAN DEVELOPMENT DEPARTMENT
       M.S. BUILDING
       BENGALURU-01.

02.    THE ASSISTANT DIRECTOR
       TOWN AND COUNTRY PLANNING
       KALABURAGI
       DIST: KALABURAGI-585 102.

03.    THE CHIEF OFFICER,
       PATTANA PANCHAYATI,
       KALAGI,
       TQ: KALAGI DIST: KALABURAGI-585 102.

04.    THE PANCHAYAT DEVELOPMENT OFFICER
       KALAGI
       TQ: KALAGI DIST: KALABURAGI-585 102.

05.    ANNEPPA @ ARUNKUMAR S/O SHANKER SANGSHETTY
       AGE: 39 YEARS OCC: AGRICULTURE
       R/O: VILLAGE KALAGI
       TQ: KALAGI DIST: KALABURAGI.
                              2




06.   PRAKASH S/O BALU RATHOD
      AGE: 49 YEARS OCC: AGRICULTURE
      R/O: LACHU NAIK THANDA VILLAGE KALAGI
      TQ: KALAGI DIST: KALABURAGI.

07.   MANOHAR S/O PREMSINGH RATHOD
      AGE: 33 YEARS OCC: BUSINESS
      R/O: LACHU NAIK THANDA VILLAGE KALAGI
      TQ: KALAGI DIST: KALAGI.
                                      ... RESPONDENTS

(BY SRI.VEERANAGOUDA M. BIRADAR, AGA FOR R1 & R2
R3 & R4 ARE SERVED
SRI. VINAYAK APTE, ADVOCATE FOR R5 TO R7)


      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A)
ISSUE A WRIT OR DIRECTION ORDER WRIT IN THE NATURE OF
CERTIORARI,   QUASHING     THE   IMPUGNED    LETTER/ORDER
DATED 29.05.2021 IN NO. NAGRAYOSANIKA / VINYASA /
MAHITHI / 2021 - 22 / 301 - 02, ISSUED BY RESPONDENT
NO.2, VIDE ANNEXURE-E, B) ISSUE A WIT OR DIRECTION OR
ORDER WRIT IN THE NATURE OF MANDAMUS, DIRECTING THE
RESPONDENT    NO.2   TO   APPROVE   THE   LAYOUT   PLAN   OF
SY.NO.263/1 MEASURING 12 ACRES 17 GUNTA SITUATED AT
KALAGI VILLAGE, KALAGI HOBLI DIST: KALABURAGI FOR
RESIDENTIAL PURPOSES, BY COLLECTING THE CHARGES AS
UNDER SECTION 32 (5) OF THE ACT, 1987 AND ETC.,


      THIS PETITION COMING ON FOR ORDERS, THIS DAY,

THE COURT MADE THE FOLLOWING:-
                               3




                           ORDER

This writ petition is filed seeking writ of certiorari to

quash the order dated 29.05.2021 marked at Annexure-E,

passed by the respondent No.2, rejecting the application

filed by the petitioner wherein the petitioner sought

approval of Layout in Sy.No.263/1 measuring 12 acres 17

guntas in Kalagi village Dist: Kalaburagi.

02. The respondent No.2 noticing the fact that

R.A.No.33/2013 is pending before the IV Additional District

and Sessions Judge, Kalaburagi has deferred the

consideration on application of the petitioner on the ground

that the respondent No.2 cannot approve the Layout plan

before the disposal of the regular appeal referred above.

03. Challenging the said order, this writ petition is

filed seeking writ of mandamus as against the respondent

No.2 to approve the Layout plan in the aforementioned

property measuring 12 acres 17 guntas. However, it is also

noticed that at Annexure-E the extent of Sy.No.263/1 is

shown as 10 acres 07 guntas.

04. In this petition an application is filed under

I.A.No.3/2021 by the applicants proposing to come on

record as respondents No.5 to 7. These respondents No.5

to 7 are said to be parties to the proceedings in

R.A.No.33/2013 which is arising out the judgment and

decree passed on 28.01.2013 in O.S.No.17/2011 by the

Senior Civil Judge and JMFC, at Chittapur.

05. In the said suit the plaintiff who is the

petitioner in this case, is declared as owner of the suit

schedule property and injunction is granted against the

defendants of the said suit restraining the defendants

from interfering the plaintiff in the peaceful possession and

enjoyment of the suit schedule property.

06. The learned counsel for the petitioner opposing

I.A.No.3/2021 on the ground that the presence of the

proposed respondents is not necessary for adjudication of

the case. It is the contention of the learned counsel for the

petitioner that the proposed respondents have no right,

title or interest over the property and same has been

declared in terms of judgment in O.S.No.17/2011 as

referred above. That being the position, an application

seeking approval of layout pursuant to the conversion

order, is only a matter between the land owner and the

concerned authority. Accordingly, prayed to dismiss the

application.

07. It is also submitted by the learned counsel for

the petitioner that though the appeal in R.A.No.33/2013 is

pending since last 08 years, the applicants/proposed

respondents are not proceeding with the matter.

08. There is no dispute that in the pending regular

appeal proposed respondents No.5 to 7 are parties. Hence,

this Court deems it appropriate to implead them as parties.

The application in I.A.No.3/2021 seeking impalement is

allowed. The applicants are impleaded as respondents No.5

to 7.

09. The learned counsel for the respondents No.5

to 7 would also submit that layout cannot be approved as

the appeal is pending hearing. The learned counsel for the

petitioner would submit that the respondents No.5 to 7

have a raised a dispute over a small portion of land out of

the total extent of 12 acres and 17 guntas. Thus, there no

justification to stall the approval of entire layout if it is

otherwise lawful.

10. It is also noticed that in terms of Annexure-A

which is judgment passed by the Senior Civil Judge and

JMFC at, Chittapur, petitioner is declared as the owner of

property. The contention of the respondents relating to

their ownership over the property is negativated.

11. Under the circumstances, though the said

judgment has not attained finality and pending for final

adjudication in R.A.No.33/2013 on the file of IV Additional

District and Sessions Judge, Kalaburagi, this Court is of the

opinion that the direction needs to be issued to the

concerned authority i.e., respondent No.2, to approve the

layout plan only if it is in accordance with the law

governing the layout.

12. It is also made clear this order shall not be

used as evidence to claim the title of the petitioner over

the property in dispute before the Civil Court.

13. The rights of the parties over the property shall

be decided by the IV Additional District and Sessions

Judge, Kalaburagi in accordance with law without being

any influenced any observation made in the present writ

petition as the right of the petitioner and respondents No.5

to 7 is not decided in this petition..

14. In case the layout is approved, till the disposal

of the aforementioned R.A.No.33/2013, the petitioner shall

not alienate the property over which the respondents No.5

to 7 have made a claim. The petitioner is at liberty to deal

with other property for which there is no dispute.

15. This Court deemed it appropriate that the

pending R.A.No.33/2013 on the file of IV Additional District

and Sessions Judge, Kalaburagi shall be decided as

expeditiously as possible. Both the petitioner and

respondent before the IV Additional District and Sessions

Judge, Kalaburagi shall cooperate for early disposal of the

aforementioned regular appeal. This Court expects that the

said Court shall decide the case within ensuring the

summer vacation.

With above observations, Annexure-E is quashed.

Accordingly, the writ petition is allowed in part.

Sd/-

JUDGE

KJJ