VIJAYASHREEPURA KSHEMABIVRUDHI vs. STATE OF KARNATAKA

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 6th DAY OF DECEMBER, 2016

BEFORE

THE HON’BLE MR. JUSTICE A.S. BOPANNA

WRIT PETITION No.13020/2016 C/W WRIT PETITION Nos.29755-29806/2016

WP No.13020/2016:

BETWEEN:

Vijayashreepura Kshemabivrudhi Sangha (Okkoota) Regd., No.286, Temple Road, Vijayashreepura, Manasagangothri, Mysore – 570 006, Represented by its President.

.... PETITIONER

(By Sri.X.M.Joseph, Adv.)

AND:

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.... RESPONDENTS

(By Sri.A.G.Shivanna, AAG for R1 & R2, Sri.T.P.Vivekananda & Sri.P.S.Manjunath, Advs. For R7, Smt.Geethadevi M.P., Adv. for R3, 5 & 6 Sri.Sampath Anand Shetty, Adv. for R4) . . . .

This Writ Petition is filed under Article 226 of the Constitution of India, praying to a call upon the R-1 & 2 to place before this Hon’ble Court the original records of (I) Memorandum of Agreement dated 5.10.1949 signed between Government of Mysore and his Highness Jayachamaraj Wadeyar, the late Maharaja of Mysore and (ii) list of immovable properties held by his highness the Maharaja of Mysore as private property as on 26.1.1950 (Annexure-C) it does not show Sy.No.1 of Vijayashreepura, Mysore-570 005) for this Hon’ble High Court’s scrutiny and verification as to whether the Land in Sy.No.1 of Vijayashreepura, Mysore acquired vide Annexure-A dated 14.11.1899 and Annexure-A1 dated 12.7.1900 acquired for Government work is state property.

In W.P. Nos.29755-806/2016:

BETWEEN:

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No. 182, Vijayashreepura, Mysore – 570 006.

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No. 16, Vijayashreepura, Mysore – 570 006.

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Aged about 55 years, No. 38, Vijayashreepura, Mysore – 570 006.

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.... PETITIONERS

(By Sri.X.M.Joseph, Adv.)

AND:

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Aged about 49 years, R/o House No.954/5 “Kalpana” Diwan’s Road, Lakshmipuram, Mysore – 570 004.

.... RESPONDENTS

(By Sri.A.G.Shivanna, AAG for R1 & R2, Sri.T.P.Vivekananda & Sri.P.S.Manjunath, Advs. For R3, Smt.M.P.Geethadevi Adv. for R4 to R7) . . . .

These Writ Petitions are filed under Article 226 of the Constitution of India, praying to direct R-1 and R-2 not to treat the petitioners as “Encroachers on land in Sy No.1 of Vijayashreepura, Mysore” whose dwelling houses have been regularised 20 years ago vide Annexure-F to Annexure-F-51 (Annexure-F to Annexure-F-51 is described in schedule), such regularisation being pursuant to Annexure-D, the notification dated 09.01.1989 issued by respondent No.3 and also pursuant to Annexure-E. the order dated 02.02.1993 of this Hon’ble High Court in W.P. Nos.3486-87/1991 C/W WP No.24210-24230/1990.

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These writ petitions having been heard and reserved for orders this day, Bopanna J., made the following:

O R D E R

The petitioner in W.P. No.13020/2016 claims to be a ‘Sangha’ representing the interest of the residents who are in occupation of a portion of the land in Sy. No.1 of Vijayashreepura in Mysore. The petitioners in W.P. Nos. 29755-806/2016 claim to be the individual occupants of the plots/houses as indicated in the cause-title to the petition situate in Sy. No.1 of Vijayashreepura in Mysore. Since the contentions in these petitions are common and they relate to the same subject matter, they are considered together.

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and verify the list of immovable properties held by the Maharaja as private property as on 26.01.1950 and to scrutinize whether the land in Sy. No.1 of Vijayashreepura, Mysore acquired under the notification is State property. It is also prayed that the respondent – State be directed to recover the compensation wrongly paid to Sardar Ramachandra Raje Urs, the father of respondents 3 to 5 towards acquisition of the land mentioned in the notification.

Insofar as the continuance of the members of the petitioner in the land in question the petitioner is seeking direction to the respondents to consider formulating an exclusive scheme to regularize the unauthorised constructions in Sy. No.1 of Vijayashreepura, independent of the provisions of Section 3(i) of Karnataka Regularization of Unauthorized Constructions in Urban Areas Act, 1991, since the amount has been collected by the Competent Authorities towards such regularization.

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1894 (‘LA Act’ for short) whereunder the land situated in Hinkal, Paduvaralli, Kukkanahalli and Bhogadi, in all measuring 815 acres 15 guntas was acquired for the benefit of the Government. Among the said lands through the order dated 29.08.1921 a portion of the land was ordered to be treated as a separate block as Sy. No.1 of Vijayashreepura, Mysore. The petitioners in that regard have referred to the transition whereby the Constitution was adopted and on abolition of the Privy Purse the land continued as belonging to the Government.

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Mysore for the University of Mysore. In respect of certain other lands, it is stated that on coming into force of the Karnataka Land Reforms (Amendment) Act, 1973, the lands in possession of the tenants vested with effect from 01.03.1974 whereunder the tenants were entitled to grant of occupancy rights, due to which about 24 persons claiming to be the tenants in portions of the land in Sy. No.1 of Vijayashreepura, Mysore sought grant of occupancy right in their favour. The Land Tribunal through the order dated 26.09.1990 conferred the occupancy right which was assailed in W.P.No.17533/1991. This Court by the order dated 22.01.1995 set-aside and remanded for fresh consideration. When that was the position another notification dated 29.04.1988 for acquisition of the land was issued showing the names of the persons who had claimed the tenancy rights. The extent sought to be acquired was 94 acres 28 guntas.

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No.17918/1999. To the extent the Land Tribunal holding the land as Government Kharab, Sardar Ramachandra Raje Urs assailed it in W.P. No.22254/1999.

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agreement is made. The ultimate effort of the petitioners is to contend that the land in Sy. No.1 of Vijayashreepura, Mysore is a Government land and the petitioners as well as the other members of the Sangha being occupants of such land are entitled to continue as the process of regularization had been undertaken couple of decades earlier.

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Court and in that regard the formation of the layout including the built up area as per the plan is stated and the possibility of working out a scheme to consider allotment to the persons who would be evicted is also stated. However, it is clarified that all of which will be considered only after the implementation of the order of the Hon’ble Supreme Court. The entire emphasis by the State is on the earlier order of the Hon’ble Supreme Court and implementation of the same and therefore the prayer is these petitions cannot be considered.

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Mysore, the same being the matter of record they have not commented upon the same. Insofar as the title to the property it is contented by them that when the petitioners admittedly claim to be encroachers/unauthorised occupants of different bits of land in Sy. No.1 of Vijayashreepura, Mysore seeking regularisation they do not have the locus standi to question the right, title and interest of the private respondents. It is contended that an association known as Vijayashreepura Residents Welfare Association, Vijayashreepura Nivasigala Kshemabhivrudhi Sangha had filed W.P. Nos.15029 and 15269/2000 C/w. W.P. No. 9203-9224/2000 seeking a similar relief for regularisation of unauthorised construction which was rejected through the order dated 28.05.2001 and as such it is contended that the present petition is barred by res judicata. Though writ appeals were filed and the competent authority was directed to consider the respective representations, no orders to regularize the

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unauthorized constructions have been passed till date. The answering respondents had challenged the order of the Division Bench to that effect in the connected matters before the Hon’ble Supreme Court in Civil Appeal Nos. 7372-7428/2004 wherein while allowing the appeal the order of the Division Bench has been set- aside. It is pointed out that the Vijayashreepura Residents Welfare Association which had filed the appeal in W.A. No.4002/2001 was also a party to the proceedings before the Hon’ble Supreme Court in C.A. Nos.7372-7428/2004 and connected appeals. Even with regard to the demolition of unauthorized construction the issue had arisen in C.A.No.453/2007 and the interest was adequately represented and all these aspects had arisen for consideration before the Hon’ble Supreme Court in the above stated appeals.

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W.P.No.14726/1992, MUDA had indicated that the unauthorized construction was only on an extent measuring 3 acres 10 guntas of land and not to the extent as claimed by the petitioners. Even in respect of the claim made by certain persons as tenants under the Land Reforms Act, the issue has concluded through the order passed in W.A. No.1654/2008 connected with W.A.Nos.2180-2201/2008 holding that the land is not a tenanted land. In view of all the earlier proceedings where the interest of the alleged encroachers/ unauthorized occupants has been considered, these respondents contend that the petitioners are estopped from making any claims once over again. In view of the decision of the Hon’ble Supreme Court in the Civil Appeals referred to above, they seek that the petitions be dismissed.

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to the formulation of a separate scheme for regularization of unauthorized constructions it is contended that it is beyond their purview. In any event, it is their case that no direction could be issued to enact a statute at the instance of a citizen as it is within the wisdom of the State Legislature. With regard to the contention put forth by the petitioners that the money has been collected on promising to regularize unauthorized construction, it is stated that in view of the subsequent developments the exercise done by the State Government has become redundant. The State Government having noticed that large number of unauthorized constructions had come up on plots within the Municipal/City Corporation had taken such steps to study the measures for regularization by constituting a Committee. The details of the Committee is indicated and one of the points to be considered was regularization of unauthorized construction both on the land converted under Land Revenue Act or private

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agricultural land. However, no details relating to the administrative work of the Committee was indicated.

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in any authority or local authority and such other restrictions are also indicated with regard to the green belt in the CDP or ODP. In such circumstance since the acquisition proceedings had already been initiated the consideration could not be made. This respondent has also referred to the various litigations relating to the land in question and the decision of the Hon’ble Supreme Court and in that view it is contended that the claim as put forth by the petitioner cannot be accepted. For all the said reasons they seek that the writ petition be dismissed.

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respectively as and when the context requires their reference.

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petitioners at the outset along with the petition have relied on the documents at Annexure `E’ and `F’ series to claim that pursuant to the order in W.P. Nos.3486- 3487/1991 the notices were issued in the year 1996 calling upon the petitioner to pay the amount so as to consider the regularization of the occupation of the extents indicated therein.

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very principle based on which adverse possession can be claimed. In that view of the matter though the learned counsel for the petitioner has in that light sought to contend title by adverse possession and has sought to refer to the decision in the case of State of West Bengal Vs. The Dal Housie Institute Society (1970(3) SCC 802); in the case of Collector of Bombay Vs. Municipal Corporation of the City (AIR 1951 SC 469) and in the case of State of Orissa Vs. Ramachandra Dev (AIR 1964 SC 685) the same need not be adverted to in detail inasmuch as the consideration therein being totally on a different circumstance which would not be of assistance in the instant case where the petitioners themselves have been contending that a law is to be framed and the regularization is to be made in that circumstance and in another breath have been contending that due to collection of the amount and taxes the regularization has already taken place.

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the property where under the private respondents have been asserting their right to the property and there was also the challenge made to the attempt to regularize the unauthorized construction by certain persons by filing public interest litigation to which reference is contained above. In that circumstance when there are multifarious disputed issues, the contention of the petitioners in that regard cannot be decided in a writ petition under Article 226 of the Constitution of India. Hence the decisions cited above would not be of assistance when there are serious disputes with regard to the question of title as claimed by the petitioners. Above all, what cannot be lost sight in the instant case is also the order dated 16.12.2015 passed by the Hon’ble Supreme Court in C.A. Nos. 7372-7428/2004 wherein the right as claimed by the private respondents has been taken note of and the manner in which the rights are to be regulated has been indicated therein to which a detailed reference will be made hereunder.

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in the case of Union of India and others Vs. Indo Afghan Agencies Ltd., (AIR 1968 SC 718); in the case of Dr.Ashok Kumar Maheshwari Vs. State of U.P. and another ([1998]2 SCC 502); in the case of Manuel Sons Hotels Pvt. Ltd., Vs. State of Kerala and others ([2016]6 SCC 766) and in the case of Sayeed Ratan Bhai Vs. Shirdi Nagar Panchayath ([2016]4 SCC 631) are relied upon. In this regard also, having perused the said decisions and having referred to the facts involved in the instant case I am of the view that the cited decisions cannot be taken note in abstract though there can be no quarrel with regard to the legal position as enunciated in the said decisions. I am of the said view for the reason that from the very narration of the facts as indicated above, as per the contentions put forth both by the petitioners as well as the respondents, the inter se disputes or rather the same issues connected with regard to the very same property has already been the subject matter before the Hon'ble

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Supreme Court, which will have to be kept in view and a decision will have to be taken in these petitions and not dehors the same.

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guntas of land located in Vijayashreepura village, Mysore but it was not just that alone. The final notification dated 29.04.1988 as well as the Government Approval dated 28.05.1998 for allotment of 55 acres of the said land to JSS Mahavidyapeetha was also being considered. In addition the issue which arose from the writ petition filed in W.P. No.31449/1994 relating to the public notice dated 27.06.1994 inviting applications for regularization of unauthorized constructions made in several villages including Vijayashreepura village, Mysore was in issue. The question relating to the occupancy right being claimed under the Karnataka Land Reforms Act in respect of a portion of the property therein was also an aspect which was kept in perspective and regulated.

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to the said proceedings, from the cause-title to the petition filed in the said proceeding it is seen that several other persons who are residents of the area and were parties in Writ Appeal Nos.4001 & 6910- 6939/2001 were also parties. That apart the Vijayashreepura Residents’ Welfare Association, Vijayashreepura Nivasigala Kshemabhivruddhi Sangha who were the respondents in W.A. Nos. 4002/2001, 6137-6156/2001 & W.A.No.3525/2002 were arrayed as parties. It is in that light a consideration of the entire conspectus relating to the varied rights claimed in respect of the very same land in Sy. No.1 of Vijayashreepura village, Mysore to which the petitioners herein also claim a right had been considered. If that be the position the same issue will not arise for determination every time a different person raises it for consideration.

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Mysore, examining the issue once over again at the instance of the petitioners in these petitions would not arise as this Court cannot take any other view than what has been taken by the Hon’ble Supreme Court in respect of the very same property.

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petitioner who claims to be a decendant of the Maharaja of Mysore cannot have the benefit of suit property as the same was not included as the private property of the Maharaja in the instrument of accession executed at the time of merger of the princely State of Mysore with the Union. Shri Shetty has offered to lay before the Court the relevant documents in this regard which, according to him, would clearly disclose the absence of ownership of the appellant – writ petitioner in the property in question. Shri Shetty has further submitted that the above determination should be made by this Court in the exercise of its jurisdiction under Article 136 of the Constitution of India inasmuch as substantial questions of public interest arise therefrom as a person who is not the owner is claiming properties that belong to the State. We are afraid we cannot go into the said question as not only the same was not an issue before the High Court; it had not also been raised by any person, body or authority in any forum at any point of time. It is an issue raised at the fag end of the

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lengthy oral discourse made on behalf of the contesting parties. Further more, the above stand taken before this Court on the one hand and resort to the process of acquisition on the other is also self-contradictory. Except what is stated above, we do not wish to dilate on the said point and leave the matter for a just determination by the appropriate forum as and when the same is raised by a person aggrieved, if at all so raised.

We are told that the Respondents No.4 to 27 had raised a claim to be occupancy tenants in respect of the entire land of 94 acres 28 guntas. The said claim had been rejected by the learned Revenue Tribunal. The matter is presently pending in a writ appeal before the Division Bench of the High Court of Karnataka i.e., Writ Appeal No.1654 of 2008. As the said matter is pending, we do not consider it necessary to go into the above issue except to state the obvious, namely, that the judgment of the High Court in the said writ appeal as and when passed will naturally take its own effect in

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accordance with law. In this regard, we may also take note of the fact that it is admitted by Shri Shetty, learned Senior Counsel appearing for the MUDA that out of remaining 40 acres of land approximately, about 16 acres and 30 gunthas is presently lying vacant and there are encroachers on the remaining land. Insofar as the encroachments are concerned, we need hardly to emphasize that all such encroachments need to be dealt with in accordance with law so that full effect of this order and the consequential directions contained herein can be given effect to. 23. xxxxxx 24. xxxxxx 25. Adverting to the facts of the present case, we find that out of the 94 acres and 28 guntas of land that was acquired way back in 1985-88, 55 acres have been allotted to the respondent No.28. The layout proposed by MUDA was in respect of the balance land i.e., about 40 acres.

Of the said approximately 40 acres of land, according to the MUDA, about 16 acres and 30 guntas is

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presently vacant whereas there are encroachments on the remaining land. Though even on the land not allotted to respondent No.28, no developmental work, in consonance with the object of the 1903 Act has been undertaken we are not certain if the same is on account of the smallness of the area available or for any other good and acceptable reasons. However, keeping in mind that even if we are to set-aside the acquisition, re-acquisition can be resorted to in which event the land would continue to vest in the MUDA and the land owner would be entitled to compensation, though at an enhanced rate, we are of the view that it would be just, fair and equitable to direct that the land vacant as on today and all such lands under encroachments, after being made free therefrom, may be retained by the MUDA for developmental works in consonance with the object(s) of the 1903 Act and the owner thereof be entitled to compensation in terms of the directions that follow. All proceedings connected to such encroachments will be completed within six

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months from today by all such forums before which the same may be pending. In the event MUDA does not consider it feasible to utilize the land for the purpose of the Act the same be handed over to the person entitled to receive such possession depending upon the outcome of Writ Appeal No.1654 of 2008.” (Emphasis supplied)

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7372-7428/2004 and direct the MUDA not to dispossess the applicants and not to demolish the respective houses of the other residents by referring to the Survey conducted by MUDA. The application filed on 30.07.2016 has however been dismissed by the Hon’ble Supreme Court through the order dated 16.08.2016. While doing so the Hon’ble Supreme Court no doubt has indicated that the order will not affect the merits of the writ petition and such other proceedings as may have been initiated by the applicants.

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C.A.Nos.7372-7428/2004 relates to the very same issue relating to status of the property in view of the competing claims in respect of the very property while keeping in view the entire extent measuring 94 acres 28 guntas, though the petitioners presently are referring to an extent of 23 acres 28 guntas of the same land and the learned counsel for the private respondents points out that at an earlier point the encroached area was only to the extent of 3 acres 10 guntas as per the statement filed by MUDA in W.P. No.14726/1994. Be that as it may, irrespective of the extent involved, when the consideration made by the Hon’ble Supreme Court relates to the very same issue in respect of the entire extent of the same land it would not be appropriate for this Court to interfere at this stage. That apart it is also brought to the notice of this Court that the application filed by MUDA seeking extension of time to comply with the order dated 16.12.2015 has also been rejected by

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the Hon’ble Supreme Court through the order dated 07.11.2016.

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will also not arise keeping in view the prohibition under Section 4(viii) of the Karnataka Regularization of Unauthorized Constructions in Urban Areas Act, 1991. Direction to formulate any other scheme for regularisation as prayed by the petitioners is also out of bounds of this Court to be directed as that can only be prayed before the Hon'ble Supreme Court in view of its earlier consideration or it should be in the manner as articulated in the objection statement filed by the State only if it is done in the manner without violating the directions issued by the Hon’ble Supreme Court.

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16.12.2015 passed in C.A. No.7372-7428/2004 by the Hon’ble Supreme Court to contend that the Hon’ble Supreme Court has not gone into the question of ownership and has left it open to be decided by the appropriate forum and while rejecting the application filed by the petitioners it has been done without prejudice to the merits in the instant petitions. Having given my thoughtful consideration to such contention as well, I am of the opinion that such contention is far- fetched to be accepted in the instant proceedings for more than one reason.

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same has not fructified into an order of regularization creating ownership so as to claim right under the same. The very fact the petitioners in these petitions are also seeking a consideration of their regularization of occupation by enacting a law or forming a scheme will indicate that the right has not yet crystallized in their favour. Thirdly, even though the Hon’ble Supreme Court in C.A. Nos.7372-7428/2004 has referred to the contention urged on behalf of MUDA about the ownership of the property it was an inter se contention between the private owners who claim to be the owners of the property and the MUDA who sought to dispute it belatedly. Even in that circumstance though an observation was made that the ownership could be decided only in an appropriate forum, the Hon’ble Supreme Court has proceeded further to observe that if it was Government land there would have been no need for acquisition and in that light found the contention self-contradictory. Hence the contention that it is

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Government land has been ruled out. Fourthly, even if the observation of the Hon’ble Supreme Court relating to the ownership being kept open is taken into consideration and any determination was required in any other proceedings it would arise only if a lis is raised inter se between the Government and the private respondents. As noticed, the Government has not made this into an issue at all.

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conducted in a writ petition. Above all, the very fact the Hon’ble Supreme Court has accepted the challenge made to the acquisition by the private respondents herein and granted them the relief in the manner indicated, is a pointer to the fact that the Hon’ble Supreme Court has also accepted them to be the owners of the land. Further, the equitable relief that was moulded by the Hon’ble Supreme Court to enable the private respondents to receive the compensation will also indicate that if any other view is taken by this Court relating to the ownership of the property it would be in violation of the order of the Hon’ble Supreme Court.

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Court in the case of D.Bhopalan and others Vs. Madras Metropolitan Water Supply and Severage Board and others ([2007]12 SCC 569); in the case of Southern Petrochemical Industries Co. Ltd., Vs. Electricity Inspector and ETIO and others ([2007]5 SCC 447); in the case of Commissioner of Income Tax, U.P. Vs. M/s. Shah Sadiq and Sons ([1987]3 SCC 516); in the case of Milk Producers Association, Orissa and others Vs. State of Orissa and others ([2006]3 SCC 229); in the case of Nature Lovers Movement Vs. State of Kerala and others ([2009]5 SCC 373); in the case of Amarendra Kumar Mahopatra and others Vs. State of Orissa and others ([2014]4 SCC 583) and in the case of Krishna Devi Mulchand Kamatia and others Vs. Bombay Environmental Action Group and others ([2011]3 SCC 363) would not be of assistance to the present facts. On the other hand when the detailed discussion made above indicates that the very issue

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relating to the same property has been considered by the Hon’ble Supreme Court and persons similarly placed as that of the petitioners and a Welfare Association representing similarly placed persons claiming the very same right were also before the Hon’ble Supreme Court, such decision will bind the other similarly placed persons who were not before the Court. Hence, the decision in the case of Hope Plantations Ltd., Vs. Taluk Land Board, Peermade and another ([1999]5 SCC 590) and in the case of Dr. Subramanium Swamy Vs. State of Tamil Nadu and others ([2014] 5 SCC 75) relied upon by the learned counsel for the private respondents would be more appropriate to be taken note as imposing a restraint for the decision on the same subject matter to be taken once over again by this Court when the highest Court has already decided the issue and settled the right of the parties.

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Sd/- JUDGE

SPS