Karnataka High Court
Smt. Saraswathi D/O Vinayakrao Joshi vs The Deputy Commissioner And Another on 25 July, 2024
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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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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
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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:
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"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
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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
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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
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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
