Karnataka High Court
Sri. Rachegowda vs Sri. Byrappa @ Byregowda on 26 July, 2024
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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
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
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
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.
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
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
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.
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
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
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
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
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
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.
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*
