Karnataka High Court
Shree Shiv Mandir Devasthan Trust vs The State Of Karnataka on 14 February, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC-D:3516
WP No. 107278 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 107278 OF 2023 (GM-RES)
BETWEEN:
SHREE SHIV MANDIR DEVASTHAN TRUST,
SHAHU NAGAR, BELAGAVI-590010,
REPRESENTED BY ITS PRESIDENT
SHRIKANT S. KADAM,
AGE: 62 YEARS, OCC: BUSINESS,
R/O. PLOT NO.75, 3RD CROSS,
SHAHU NAGAR, BELAGAVI-590010.
...PETITIONER
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY TO THE
DEPARTMENT URBAN DEVELOPMENT AUTHORITY,
AMBEDKAR VEEDHI, BENGALURU-560001.
GIRIJA A 2. THE SECRETARY,
BYAHATTI
THE DEPARTMENT REVENUE,
Digitally
signed by
AMBEDKAR VEEDHI, BENGALURU-560001.
GIRIJA A
BYAHATTI
3. THE DEPUTY COMMISSIONER BELAGAVI,
DC COMPOUND, BELAGAVI-590001.
4. THE DEPUTY DIRECTOR OF LAND RECORD,
BELAGAVI, DC COMPOUND,
BELAGAVI-590001.
5. THE ASSISTANT DIECTOR OF LAND RECORD,
BELAGAVI, AND CITY SURVEY, BELAGAVI,
DC COMPOUND, BELAGAVI-590001.
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WP No. 107278 of 2023
6. THE BELAGAVI URBAN DEVELOPMENT AUTHORITY,
BELAGAVI, REPRESENTED BY ITS COMMISSIONER,
ASHOK NAGAR, BELAGAVI-590001.
7. DEEPAK B. BHATI,
AGE: NOT KNOWN, OCC. NOT KNOWN,
R/O. #32, HIGH STREET, CAMP,
BELAGAVI-590001.
...RESPONDENTS
(BY SRI. PRAVEEN UPPAR, AGA FOR R1 TO R5;
SRI. M.A. HULYAL, ADV. FOR R6;
SRI. SADIQ N. GOODWALA, ADV. FOR R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT IN THE NATURE OF THE DECLARATION DECLARING
THAT THE PROCEEDING DATED. 10-11-2014 AT 3,00 IN
GENERAL MEETING CONDUCTED BY THE RESPONDENT NO. 6
IN RESPECT OF SUBJECT NO. 2 OF KANGRALI B K VILLAGE RS
NO. 47/4 VIDE ANNEXURE-B IS CONTRARY TO THE SECTIONS
10.13 AND 11, 14A OF SECTIONS 10, 13, 13-D, 14A OF THE
KARNATAKA TOWN AND COUNTRY PLANNING ACT 1961 AND IS
ILLEGAL ARBITRARY AND VOID AB INITIO.2. CONSEQUENTLY,
ISSUED WRIT IN THE NATURE OF MANDAMUS OR DIRECTION
DIRECTING THE RESPONDENTS TO MAINTAIN CITY SURVEY
RECORD PERTAINING RS. NO. 47/4 KANGRALI B K VILLAGE OF
BELAGAVI TALUKA AS PER MASTER PLAN 2021 (REVISION-II)
OF BELAGAVI APPROVED GOVERNMENT OF KARNATAKA VIDE
ORDER NO. UDD/83/BEMAPRA/2013 DATED. 15-02-2014 IS
PRODUCED AT ANNEXURE-A.
THIS PETITION, COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 107278 of 2023
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
1. Issue a writ in the nature of the declaration declaring that the proceeding dated. 10-11-2014 at 3,00 in General Meeting conducted by the respondent No. 6 in respect of Subject No. 2 of Kangrali B K village RS No. 47/4 vide Annexure "B"
is contrary to the Sections 10.13 and 11, 14A of Sections 10, 13, 13-D, 14A of the Karnataka Town and Country Planning Act 1961 and is illegal arbitrary and void ab initio.
2. Consequently, issued writ in the nature of Mandamus or direction directing the respondents to maintain city survey record pertaining RS. No. 47/4 Kangrali B K village of Belagavi taluka as per Master Plan 2021 (Revision-Ii) of Belagavi approved Government of Karnataka vide order No. UDD/83/BEMAPRA/2013 dated 15-02-2014 is produced at Annexure "A".
3. Any other writ or directions as this Hon'ble Court deem fits, in the interest of justice and equity.
2. The petitioner claims to be a registered temple Trust under the Bombay Public Trust Act, 1950. Originally, the owner of the land covered under R.S.No.47/4 measuring two acres got the same converted from agricultural to non-agricultural purposes on 28.11.1998 and got approved a layout plan on -4- NC: 2024:KHC-D:3516 WP No. 107278 of 2023 22.06.1999 from the respondent No.6 - Belagavi Urban Development Authority, which was subsequently modified on 15.02.2014.
3. The grievance of the petitioner is that, respondent No.6 on 10.11.2014 in the General Meeting, cancelled the modified plan dated 15.02.2014 and reinstated the plan sanctioned on 22.06.1999, which is contended, is not permissible under the applicable law. It is further contended that the petitioner is in possession of CTS Nos.825 and 826 (corresponding plot Nos.20, 21, 22, 30 and 31, measuring approximately 13,680 Square feet) and by virtue of the said modification and/or reinstatement of the plan of the year 1999, the respondent authorities are proposing to take action against the petitioner and dispossess the petitioner.
4. Sri M. A. Hulyal, learned counsel for respondent No.6 would submit that the petitioner has no right over the property. There is no title document which has -5- NC: 2024:KHC-D:3516 WP No. 107278 of 2023 been produced and furthermore there is no locus on part of the petitioner to file the present writ petition. The modification and/or the reinstatement of the plan has been got done by the owners, which the respondent authorities have the power to do so and as such, the writ petition not being maintainable, is required to be dismissed.
5. Sri. Sadiq N. Goodwala, learned counsel appearing for respondent No.7 - owner of the land in question, submits that, it is respondent No.7, who had sought for modification of the 1999 plan, which was so modified in the year 2014 and had made an application for reinstatement of the plan of the year 1999, which has been done in the Resolution dated 10.11.2014. The applicable procedure being followed, the resolution being in accordance with law, should not be disturbed. He submits that the petitioner is seeking to abuse the process of this Court. Having failed in a suit filed by the petitioner, -6- NC: 2024:KHC-D:3516 WP No. 107278 of 2023 the present writ petition has been filed only to arm twist respondent No.7.
6. Heard Sri. Vitthal S. Teli, learned counsel for the petitioner, Sri. M. A. Hulyal, learned counsel for respondent No.6 and Sri. Sadiq N. Goodwala, learned counsel for respondent No.7. Perused the papers.
7. The first issue that arises in the present matter is whether respondent No.6 could have canceled the plan of the year 2014 and reinstated the plan of the year 2003 on an application being made by the landowner. In the present case, the reinstatement of the plan of the year 2003 has been made vide a Resolution passed by respondent No.6 Authority, on the basis of an application filed by respondent No.7. Though 2003 plan had earlier been sanctioned, the Authority ought to have verified if modified plan of the year 2014 has been given effect to and any third party interests have been created or not before considering and allowing an application filed by the -7- NC: 2024:KHC-D:3516 WP No. 107278 of 2023 landowner/respondent No.7. Since once a plan is sanctioned and third party interests are created in respect thereto, the plan would not be amenable for modification even at the request of the landowner. The finality of the plan is to be given due effect to and the owner of the property cannot be permitted to change the plan at his whims and fancies, which could affect third party interest.
8. The second aspect that arises for consideration in the matter is as regards the locus of the petitioner and the right of the petitioner. It being contended that the petitioner is in occupation of the property detailed above and the respondents contending that the property has been reserved for a park and open space in the plan which has been sanctioned, it would but be required for the authorities concerned to take such action as is necessary, if the park and open space is encroached upon by the petitioner, since admittedly the petitioner does not have any -8- NC: 2024:KHC-D:3516 WP No. 107278 of 2023 sale deed or any title document relating to the said property.
9. The contention of the learned counsel for the petitioner is that, respondent No.7 has apparently admitted in his cross-examination that, in an earlier proceedings in RFA No.3067/2011, that the petitioner is in possession of the property and respondent No.7 will not interfere with the possession of the petitioner. Such an admission on the part of respondent No.7 is sought to be claimed benefit of by the petitioner, which in my considered opinion, cannot be so done, since the property has been reserved for park and open spaces, which is for the benefit of the general public and the inter-se arrangement between respondent No.7 and petitioner cannot deprive the persons residing in the layout and the general public of the park and open spaces mandated to be maintained under the Town and Country Planning Act 1966 by respondent No.6. -9-
NC: 2024:KHC-D:3516 WP No. 107278 of 2023 Thus, once an area is demarcated as a park and open space, there is an obligation on the part of respondent No.6 to see to it that it is maintained as a park and open space and there is no encroachment thereon.
10. Hence, necessary action would have to be taken in terms of the applicable law as regards the petitioner occupying an area demarcated as park and open space or the successor in interest of respondent No.6, namely the Belagavi City Corporation. In that view of the matter, I pass the following:
ORDER i. The writ petition is partly allowed.
ii. Certiorari is issued, the Resolution dated 10.11.2014 passed by respondent No.6 at Annexure-B is hereby quashed.
iii. Respondent No.6 and its successor, Belagavi City Corporation are directed to
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NC: 2024:KHC-D:3516 WP No. 107278 of 2023 maintain the area reserved for park and open space in terms of the layout plan as park and open space, without any encroachment and consequently take necessary action against any encroachers, including the petitioner, in accordance with law, which shall be done within a period of 60 days from date of receipt of a copy of this order.
Sd/-
JUDGE gab Ct-mck List No.: 1 Sl No.: 110