Karnataka High Court
Gh Noor Jan vs Secretary on 22 January, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 6848 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 6848 OF 2022 (GM-RES)
BETWEEN
1. GH NOOR JAN
W/O LATE F MOHAMMED GHOUSE
AGED ABOUT 71 YEARS
R/AT NEAR BG PALYA CIRCLE,
6TH PH COLONY
TUMKUR 57101
2. SHAHEENA BEGUM
D/O LATE F MOHAMMED GHOUSE
AGED ABOUT 53 YEARS
3. M.G. BHUTTO
S/O LATE F MOHAMMED GHOUSE
AGED ABOUT 48 YEARS
BOTH ARE R/AT 1ST CROSS
DEVARAJ URS ROAD,
ASHPAK
KASHIMSA
SARASVATHI PURAM
MALAGALADINNI
TUMKUR 572105
Location: HIGH
COURT OF
...PETITIONERS
KARNATAKA
DHARWAD
(BY SRI. SUNIL S. RAO., ADVOCATE)
BENCH
AND
1. SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
STATE OF KARNATAKA
VIDHAN SOUDHA
BANGALORE-560001.
2. THE CHAIRMAN
TUMKUR URBAN DEVELOPMENT AUTHORITY
BELAGUMBA ROAD,
TUMKUR CITY 572113
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WP No. 6848 of 2022
3. THE COMMISSIONER
TUMKUR URBAN DEVELOPMENT AUTHORITY
BELAGUMBA ROAD,
TUMKUR CITY 572113
...RESPONDENTS
(BY SRI. MAHANTSH SHETTAR., AGA FOR R1;
SRI. T.P. VIVEKANANDA., ADVOCATE FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
MANDAMUS DIRECTING THE R-1, 2 AND 3 TO PAY THE APPROPRIATE
COMPENSATION TO THE PETITIONERS WHO ARE LEGAL HEIRS OF
THE F MOHAMMED GHOUSE, IN CONNECTION TO THE SCHEDULE
PROPERTIES WHICH THE R-2 AND 3 HAVE ILLEGALLY ENCROACHED
AND THE SAME FACT IS ESTABLISHED IN O.S.NO.189/2002 ORDER
DTD 30.05.2005, PASSED BY THE 3RD ADDL. CITY CIVIL JUDGE (JD)
AND JMFC AT TUMKUR, WHICH IS CONFIRMED IN R.A.NO.201/2008
ORDER DTD 12.09.2008, PASSED BY THE COURT OF PRESIDING
OFFICER FAST TRACK NO.V AT TUMKUR AND THE SAME IS
PRESENTED VIDE ANNX-F AND G RESPECTIVELY AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 20.12.2024, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
1. The Petitioners are before this Court seeking for the
following reliefs:
a. Issue a writ of Mandamus directing the respondent
No.1, 2 and 3 to pay the appropriate compensation
to the petitioners who are legal heirs of the F
Mohammed Ghouse, in connection to the schedule
properties which the respondents 2 and 3 have
illegally encroached and the same fact is established
in O.S.No.189/2002 order dated 30.05.2005, passed
by the 3rd Addl. City Civil Judge (JD) and JMFC at
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Tumkur, which is confirmed in R.A.No.201/2008
order dated 12.09.2008, passed by the Court of
Presiding officer fast tract No. V at Tumkur, and the
same is presented as Annexure-F and G respectively
and/or.
b. Such other direction or orders as this Hon'ble
Authority deem fit under the facts and circumstances
of the case including award for costs be passed in
the interest of justice.
2. The petitioners claim that one F.Mohammed Ghouse
who is husband of petitioner No.1 and father of
petitioners No.2 and 3 was the absolute owner of the
property bearing Sy.No.41/1 measuring 2 acres and
32 guntas of land of Maralur Village, Tumkur Taluk,
Tumkur. The said land was got converted for non-
agriculture purposes on 19.06.1992 and in the year
1993 the Tumkur Urban Development Authority
(TUDA) had granted sanction for the purpose of
formation of a layout. It is alleged that the said
TUDA had encroached on a 40 x 400 feet land totally
measuring 16,000 square feet without any
acquisition and without making payment of
compensation.
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3. Subsequently, though a portion of the land
measuring 35 x 200 feet totally 7,000 square feet
was acquired for laying High-tension wire and pole,
compensation has not been paid by TUDA.
4. The background facts are that the said F.Mohammed
Ghouse had approached TUDA for permission of
formation of layout on the property which came to be
approved on 5.12.1994. Wherein 8,000 square feet
of land was demarcated for High-tension electric wire
and the said F.Mohammed Ghouse executed a
relinquishment deed in favor of TUDA on 23.11.1994,
relinquishing three portions of land the first portion
measuring 10,370 square feet, second measuring
12,180 square feet and third measuring 7,667
square feet, and a modified sanction plan came to be
issued on 13.08.1997.
5. It is alleged that, the TUDA has encroached on the
land of the petitioner and formed roads therein and it
is in that background that F.Mohammed Ghouse had
got issued a legal notice on 11.01.2002, demanding
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compensation for such illegally encroached road.
When no action was taken, the said F.Mohammed
Ghouse filed a suit in OS No.189 of 2002, wherein a
declaration was sought for that the land had been
illegally acquired without paying any legal
compensation. In the said suit, the trial Court vide
its judgment dated 30.05.2006 partly decreed the
suit, declaring that he was entitled for compensation
for encroached area, granting liberty to him to
agitate before the proper forum for the compensation
by paying necessary and proper Court fee and the
claim for permanent injunction restraining
interference with the alleged possession was
dismissed.
6. TUDA filed a Regular Appeal in RA No.201 of 2008,
which came to be disposed vide its judgment dated
12.09.2008 dismissing the appeal.
7. Thereafter, F.Mohammed Ghouse sent various
representations to the respondents to make payment
of compensation. Since no action was taken, the
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petitioners are before this Court, seeking for the
aforesaid reliefs.
8. Sri.Sunil S.Rao., learned counsel appearing for the
petitioners would submit that;
8.1. On the land belonging to F.Mohammed Ghouse
and now belonging to the petitioners, the TUDA
has formed roads without making payment of
any compensation which is completely illegal.
A decree having been passed in OS No.189 of
2002 and the appeal filed thereto having been
dismissed, it is proper for this Court to direct
the TUDA to make payment of appropriate
compensation as regards the illegally
encroached land, since there is no formal order
of acquisition which has been made.
8.2. His submission is that there is no authority on
part of the TUDA to form such road in the
property of F.Mohammed Ghouse and the
formation of the road in the property of
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F. Mohammed Ghouse without acquisition is
bad in law.
9. Sri.T.P.Vivekananda., learned counsel appearing for
the TUDA-Respondents No.2 and 3 would submit
that;
9.1. The petitioners are not entitled for any of the
reliefs sought for in the petition. The said
F. Mohammed Ghouse at the time of approval
of the plan sanction had executed two
relinquishment/gift deeds dated 18.11.1994
and 23.11.1994.
9.2. The deed dated 18.11.1994 was as regards the
roads and deed dated 23.11.1994 is as regards
civic amenity and buffer area for the high-
tension wires. The entire land measuring 2.75
acres, 1.18 acres has been used for residential
purposes, 0.05 acres has been used for
commercial purposes, 0.69 acres has been
relinquished for park and civic amenities, 0.85
acres has been relinquished for the purpose of
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road. Apart from aforesaid land, there is no
other land.
9.3. The parks and civic amenity and road portion
have been relinquished. Roads have been
formed in the area relinquished for the purpose
of a road. There is no encroachment by the
TUDA over any portion of the land of the
petitioner. Hence, the question of making
payment of any compensation would not arise
as regards the land which has been
relinquished.
9.4. In this regard he relies upon and refers to the
copies of the relinquishment deeds which have
been produced and the plan sanction which has
been granted. On that basis, he submits that
the above petition is required to be dismissed
by imposing exemplary and punitive cost since
the petition is a completely malafide and an
abuse of the process of Court.
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10. Heard Sri.Sunil S.Rao., learned counsel for the
petitioners, Sri.T.P.Vivekananda., learned counsel for
Respondents No.2 and 3 and Sri.Mahantesh Shettar.,
learned counsel appearing for Respondent No.1 and
perused papers.
11. The short question that would arise in the present
matter is;
"Is any encroachment by the TUDA of any
land belonging to the petitioners and
consequently if any compensation is
required to be paid".
12. It is not in dispute that the total land measures 2.75
acres which came to be converted for non-agriculture
purposes and F.Mohammed Ghouse has approached
the TUDA for plan sanction which came to be
sanctioned in his favour on 10.12.1993 in terms of
Annexure-R1. There is a land use analysis which has
been appended to the said plan sanction which is
extracted herein below;
LAND USE ANALYSIS
USES AREA IN ACRE %
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Residential 01.18 A 42.90
Commercial 00.05 A 01.82
Open and CA 00.69 A 25.09
Roads 00.83 A 30.19
Total 02.75 A 100.00%
13. The open areas and civic amenities have been clearly
demarcated in the said plan sanction which includes
the buffer for the High-tension line which is required
to be maintained as per the opposite law. It is not
that the buffer is over and above the open areas and
civic amenities. The said buffer is part of the open
area and civic amenities. The buffer being required to
be maintained insofar as the High-tension line is
concerned. If at all the petitioners have any
grievance as regards the high-tension line, the same
is required to be taken up with the concerned
authorities and not with TUDA.
14. A perusal of the above table would also indicate that
0.83 acres has been relinquished for the road
portion, and that has also been clearly demarcated in
the plan sanction. When F.Mohammed Ghouse has
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relinquished both the open areas and civic amenities
and road portion i.e., 0.69 + 0.83 acres totally
amounting to 1.52 acres. The question of
F.Mohammed Ghouse claiming that there is any
encroachment and consequently the petitioners
claiming any encroachment by formation of the road
would not arise.
15. An extent of 25.09% has been relinquished for open
areas and civic amenities and an extent of 30.19%
has been relinquished for the purpose of road and
the petitioner has got the benefit of forming
residential plots to an extent of 1.18 acres which is
42.90% of the total land. Without relinquishment of
open areas and civic amenities as also roads, there
would have been no plan which would have been
granted/sanctioned. The roads being required to
access the plots which have been formed in the said
layout.
16. In that view of the matter, I am of the considered
opinion that the claim made by Mohammad Ghouse
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and later on by the petitioners herein that their land
has been unauthorizedly encroached without
acquisition and a road is formed thereon is a
completely malafide statement.
17. In that view of the matter, I am of the considered
opinion that the above writ petition is an abuse of
the process of Court and the petitioners have made
use of the legal processes to file unnecessary and
unwanted litigations by making false claims and this
litigation has been going on from 2002. When the
first suit in OS No.189 of 2002 had been filed and
has been continued by the present petitioners which
is filed in the year 2022. Thus, for the last nearly
quarter of a century, the petitioners have made false
claims against the TUDA, when no such claim could
have been made.
18. In that view of the matter, I pass the following;
ORDER
i. The Writ petition is dismissed.
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ii. The petitioners are directed to make payment of
cost of Rs.50,000/- to the Karnataka State Legal
Service Authority (KSLSA) within a period of
four weeks from today. If the same is not paid
by 28.2.2025 the KSLSA would be entitled to
recover the cost as arrears of land revenue.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
SR
