Karnataka High Court
Late Dr. H Basanna By His Lrs The ... vs The Ballari Nagar Palike on 3 November, 2023
Bench: M.I.Arun
-1-
NC: 2023:KHC-D:12884
WP No. 102472 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO. 102472 OF 2022 (LA-RES)
BETWEEN:
LATE DR. H. BASANNA
BY HIS LRS THE PETITIONRS 1 TO 3:
1. SMT. H.B. SHAMBHAVI W/O. DR. PRADEEP JYOTHI,
AGED ABOUT 58 YEARS,
OCC: ASSOCIATE PROFESSOR,
ASM COLLEGE (W),
R/AT: "JYOTI", 4TH CROSS, I MAIN,
BASAVESHWAR NAGAR, BALLARI-583101.
2. DR. H.B. NAGARAJ S/O. LATE DR H. BASANNA,
AGED ABOUT 57 YEARS,
OCC: PROFESSOR/HOD, BMSCE COLLEGE,
R/AT. 147, RLF RESIDENCY, 6TH PHASE,
J.P. NAGAR, BENGALURU-560 076.
3. SHRI H.B. NATARAJ S/O. LATE DR H. BASANNA,
ROHAN AGED ABOUT 54 YEARS,
HADIMANI
T OCC: CHEMICAL ENGINEER AT KUWAIT,
C/O. PROFESSOR DR H.B. NAGARAJ,
Digitally
signed by NO. 147, RLF RESIDENCY, 6TH PHASE,
ROHAN
HADIMANI T J.P. NAGAR, BENGALURU-560 076.
...PETITIONERS
(BY SRI ASHOK R. KALYANASHETTY, ADVOCATE)
AND:
1. THE BALLARI NAGAR PALIKE,
(BALALRI CITY CORPORATION),
BY IT'S COMMISSIONER,
AT: BALLARI -583101.
2. THE DEPUTY COMMISSIONER,
BALLARI DISTRICT,
-2-
NC: 2023:KHC-D:12884
WP No. 102472 of 2022
BALLARI-583101.
3. THE TAHSILDAR,
BALLARI TALUK,
AT BALLARI-583101.
4. THE STATE OF KARNATAKA,
BY IT'S COMMISSIONER AND SECRETARY
DEPARTMENT OF MUNICIPAL ADMINISTRATION,
M.S. BUILDING, BENGALURU-560 001.
...RESPONDENTS
(BY SRI C.V. ANGADI, ADVOCATE FOR R1; SRI ASHOK KATTEMANI,
AGA FOR R2 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA TO ISSUE A WRIT OF MANDAMUS
OR ORDER OR DIRECTION IN THE NATURE OF A WRIT DIRECTING
THE RESPONDENTS 1,2 AND 4 TO DETERMINE PREVAILING MARKET
VALUE OF THE PLOT NO.355 B 3 MEASURING EW 40' X NS 110' OF
SHASTRINAGAR, BALLARI CITY UTILIZED BY THE 1ST RESPONDENT
FOR CONSTRUCTION OF PUBLIC ROAD AND PAY THE
COMPENSATION WITH ALL STATUTORY BENEFITS AS APPLICABLE BY
INITIATING PROCEEDINGS FOR ACQUISITION IN ACCORDANCE
WITH PROVISIONS OF THE RIGHT TO FAIR COMPENSATION AND
TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND
RESETTLEMENT ACT 2013 AND EVEN OTHER WISE AND PAY THE
SAME WITHIN SHORT TIME TO BE FIXED BY THIS HON'BLE COURT
IN THE INTEREST OF JUSTICE AND EQUITY AND SUCH OTHER
RELIEFS.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
-3-
NC: 2023:KHC-D:12884
WP No. 102472 of 2022
ORDER
The case of the petitioners is that they are the
owners of the land measuring 40 ft. X 110 ft. in Shastri
Nagar, Bellary. The first respondent has illegally
encroached upon the same and formed the road, for
which, no compensation is paid to the petitioners. The writ
petition is filed with a prayer to award compensation to
the petitioners to the extent of encroaching upon 40 ft. X
110 ft. Further, the case of the petitioners is that the late
father of the petitioners was the owner of the said land
and he filed O.S.No.5/1994 against respondent No.1
herein in respect of the land concerned and a specific issue
was framed by the trial Court as to whether the
petitioners herein are the absolute owners of the property
or not and also whether the first respondent herein has
illegally formed the metallic road on the property
concerned and that both the issues have been answered in
the affirmative in favour of the petitioners herein and that
the suit was decreed against respondent No.1 holding that
the petitioners herein are the absolute owners of the
NC: 2023:KHC-D:12884
WP No. 102472 of 2022
property concerned and the petitioners are entitled for the
vacant possession of the said property from respondent
No.1 herein. In spite of it, respondent No.1 has not
delivered vacant possession of the property in favour of
the petitioners nor granted compensation. In the light of
the same, in the course of the arguments, the advocate
for the petitioners submitted that the petitioners are
interested only in the compensation amount therein and
not for possession of the property and the writ petition
may be allowed accordingly.
2. Per contra, the advocate for respondent No.1
submits that though the father of the petitioners
succeeded in O.S.No.5/1994 and the same has been
decreed as prayed by him, to enforce the said decree, the
father of the petitioners filed execution petition and in the
said proceedings, he was not able to identify his property
because of which, he abandoned the execution petition
and the same was dismissed for default. It is submitted
that 12 years has elapsed since passing of the judgment
NC: 2023:KHC-D:12884
WP No. 102472 of 2022
and decree in O.S.No.5/1994 and the petitioners are not
entitled to enforce their rights, if any, in respect of the
property concerned. It is further submitted that the
property as claimed by the petitioners is not in existence
at all and no road has been formed on the property of the
petitioners and for that reason, it is prayed that the writ
petition be dismissed.
3. It is further submitted that the petitioners have
sought to rely upon certain correspondences between the
officers of respondent No.1 and the said correspondences
are not legally valid and do not have any validity in law
and it does not give any right in favour of the petitioners.
4. Admittedly, the father of the petitioners filed
the O.S.No.5/1994 on the file of the Prl.Civil Judge
(Sr.Dn.) CJM., Bellary in respect of land measuring 40 ft. X
110 ft. contending that the same has been encroached
upon by respondent No.1 herein and the road has been
formed on the said property. Respondent No.1 herein has
NC: 2023:KHC-D:12884
WP No. 102472 of 2022
contested the said suit. The trial Court based on the
pleadings of the parties has framed the following issues:
"1) Whether the plaintiff proves that he is the absolute
owner of the plaint schedule property as alleged?
2) Whether the plaintiff proves that the defendant has
illegally formed metallic road on the schedule property
belonged to the plaintiff as alleged in para 4 of the
plaint?
3) Whether the plaintiff is entitled for the possession of
the property wherein the defendant tried to form the
metallic road?
4) Whether the plaintiff is entitled to the reliefs sought
for?
5) What decree or order?"
5. Based on the pleadings and the evidence let in,
the trial Court has answered the said issues in the
following manner:
"Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Affirmative.
Issue No.4 : In the Affirmative.
Issue No.5 : As per final Order."
6. Further, the trial Court has passed the following
order:
NC: 2023:KHC-D:12884
WP No. 102472 of 2022
"The suit is hereby decreed against the defendant holding
that the plaintiff is the absolute owner of the suit schedule
property and he is entitled for vacant possession of the
suit schedule property from the defendant.
There is no order as to costs."
7. Respondent No.1 has not filed any appeal
against the said judgment and decree and the same has
attained finality.
8. Thus, based on the decision in O.S.No.5/1994,
it has to be concluded that the father of the petitioners
was the owner of the land measuring 40 ft. X 110 ft. and
that the same was encroached upon by respondent No.1
and has formed a road. Not pursuing the execution
petition or failing to execute the decree obtained will only
prevent the decree holder from executing the decree after
the period of limitation. It does not mean that he did not
have a right over the property as decided in the original
suit. Respondent No.1 in accepting the judgment and
decree passed in O.S.No.5/1994, has accepted the father
of the petitioners was the owner of the property
measuring 40 ft. X 110 ft. and that the said property was
NC: 2023:KHC-D:12884
WP No. 102472 of 2022
encroached upon and a road was formed on the same. Any
amount of contentions to the contrary cannot be accepted
now. Limitation having been expired to execute the decree
passed in O.S.No.5/1994, the petitioners cannot ask for
vacant possession of the property in their favour.
However, it does not prevent them from claiming the
compensation for the land encroached upon by respondent
No.1, as that was not part of the decree. Respondent No.1
being the State is expected to act in a very fair manner
and it should not deprive of the citizens of their rights.
However, it is seen from the records the case of the
petitioners is that the land was encroached upon way back
in the year 1994 and the petitioners have also not pursued
the enforcement of their rights in great earnest and the
writ petition is filed as late as in the year 2022. Under the
peculiar given facts and circumstances of the case, taking
into consideration that O.S.No.5/1994 was decided on
02.12.2002, it would be just and appropriate to direct
respondent No.1 to compensate the petitioners taking into
NC: 2023:KHC-D:12884
WP No. 102472 of 2022
consideration the land value that existed in the year 2002.
Hence, the following:
ORDER
(i) The writ petition is allowed in part.
(ii) Respondent No.1 is directed to award compensation
to the petitioners for forming a road on the
property measuring 40 ft. X 110 ft. in Shastri
Nagar, Ballari by taking into consideration the land
value that existed in the year 2002.
Sd/-
JUDGE
RH
