Karnataka High Court
Smt Mangala W/O Irappa Naik vs The State Of Karnataka on 17 October, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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WP No. 60682 of 2009
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO. 60682 OF 2009 (LA-RES)
BETWEEN:
1. SMT MANGALA W/O IRAPPA NAIK,
SINCE DECEASED BY HER LR'S.
1A. SMT.ANJANA @ SONALI W/O.MOHAN ADARKAR,
AGE- 52 YEARS, R/O.KHB COLONY,
KARWAR, TALUKA AND DISTRICT-KARWAR.
1B. SMT. SHAMALA W/O.ASHOK NAYAK,
AGE-50 YEARS, OCC-JAIL POLICE STATION,
MANGALOURU, TALUKA AND DISTRICT-MANGALURU.
1C. RAVINDRA S/O.IRAPPA NAYAK,
AGE-45 YEARS,
R/O.ASHRAM ROAD, KARWAR,
TALUKA AND DISTRICT-KARWAR.
1D. SUDHIR S/O.IRAPPA NAYAK,
AGE-41 YEARS,
R/O.ASHRAM ROAD, KARWAR,
TALUKA AND DISTRICT-KARWAR.
2. SMT KALPANA W/O SRIKANTH NAIK
AGE- 64 YEARS, OCC -HOUSEHOLD WORK,
3. GOVIND S/O. LADU NAIK
AGE- 66 YEARS, OCC -HOUSEHOLD WORK,
4. SUNITHA W/O MAHADEV NAIK
AGE- 66 YEARS, OCC -HOUSEHOLD WORK,
5. GANAPATHI S/O ANANTH NAIK
AGE- 63 YEARS, OCC -AGRICULTURE,
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WP No. 60682 of 2009
6. MANOHAR S/O ANANTH NAIK
AGE- 59 YEARS, OCC -RETIRED,
7. SATISH S/O ANANTH NAIK
AGE- 54 YEARS, OCC -SERVICE,
8. SMT VANITHA W/O KESHAV NAIK
AGE- 63 YEARS, OCC -HOUSEHOLD WORK,
9. SMT SARITHA W/O SHANTHARAM NAIK
AGE-48 YEARS, OCC -SERVICE,
10. MADAN S/O BHIKRAO NAIK
AGE- 48 YEARS, OCC -PRIVATE SERVICE,
11. MOHAN S/O BHIKARO NAIK
AGE- 48 YEARS, OCC -SERVICE,
ALL ARE R/O.ASHRAM ROAD,
KARWAR, TQ AND DIST KARWAR.
...PETITIONERS
(BY SRI P.G.MOGALI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO
THE DEPT. OF REVENUE,
MULTI STOREYED BUILDINGS,
BANGALORE 1.
2. THE CITY MUNCIPAL COUNCIL
KARWAR TQ. AND DIST.- KARWAR
BY ITS COMMISSIONER.
3. THE DEPUTY COMMISSIONER,
KARWAR TQ. AND DIST.- KARWAR.
...RESPONDENTS
(BY SRI SHIVAPRABHU HIREMATH, AGA FOR RESPONDENT
NOS.1 & 3)
(BY SRI S.V.YAJI, ADVOCATE FOR RESPONDENT NO.2)
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WP No. 60682 of 2009
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF CERTIORARI QUASHING THE ORDER PASSED BY THE
RESPONDENT NO.2 IN NO.NSK:KAVI-NIVESHANA:CR/2008-09,
DATED 17.07.2008 VIDE ANNEXURE-H AND ISSUE A WRIT OF
MANDAMUS DIRECTING THE 2ND RESPONDENT TO ACQUIRE
THE LAND OF THE PETITIONERS ON WHICH THE ROAD IS
FORMED AND PAY THE COMPENSATION ALONG WITH ALL THE
STATUTORY BENEFITS AND ISSUE ANY OTHER WRIT, ORDER
OR DIRECTION THAT ARE DEEMED PROPER AND NECESSARY
IN THE CIRCUMSTANCES OF THE CASE BY THIS COURT
INCLUDING COST IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioners herein are challenging an order dated 17.07.2008 passed by the 2nd respondent. The petitioners also seeking for mandamus to direct respondent no.2 to acquire the land of the petitioners on which the road has been formed and to pay them compensation along with statutory benefits.
2. It is the case of petitioners that in their land bearing Sy.No.231/A, the Municipality has formed a road without acquiring the same in accordance with law and hence, they are entitled to compensation. -4- WP No. 60682 of 2009
3. Petitioners contend that as a matter of fact on 15.03.1987 they had entered into an agreement with one Sri Vithob Venkataraman Revankar, a Contractor whereby, they had agreed to sell a portion of their land of a width of 6 feet and 7 inches from their existing boundary in order to facilitate the owners of the plots, which had been formed in Sy.No.242 to have access. The agreement was to the effect that if the aforementioned Contractor had formed the road the petitioners would be satisfied with the sum of Rs.30,000/- that had been paid under the agreement, but however, if Municipality or Government acquired the land for formation of the road, the purchaser i.e., the Contractor to recover the compensation of Rs.30,000/- paid to them and if the amount of compensation exceeds Rs.30,000/-, the petitioners would be entitled to the amount in excess of Rs.30,000/-.
4. In otherwords, by the execution of agreement dated 15.03.1987, the petitioners had agreed to give up a portion of their land for formation of road by Sri Vithob -5- WP No. 60682 of 2009 Venkataraman Revankar to provide access to the purchasers of plots in Sy.No.242.
5. The agreement of sale entered into by the petitioners reads as follows :
"AGREEMENT OF SALE ARTICLES OF AGREEMENT made this the 15th day of March, 1987 BETWEEN (1) Irappa Pursappa Naik, Age about 54 years, Govt. Service, (2) Mahadev, Age about 52 years, Govt. Service, (3) Ganapati, Age about 41 years, Service, (4) Manohar, Age about 36 years, Govt. Service, and (5) Satish, Age about 33 years, Service, sons of Anant Naik, (6) Keshav, (7) Shantaram, (8) Madan and (9) Mohan sons of Bhikaro Naik, all (Majors), All R/o.Karwar, and (10) Govind Ladu Naik, Age about 44 years, Service, R/o.Karwar, (herein after called the Vendors of the one part), and Sri Vithob Venkatraman Revankar, Age about 62 years, Businessman and Forest Contractor, R/o.Kajubag, Karwar, (herein after called the purchaser of the other part), whereby it has been agreed and declared by and between the parties here to as follows :-
1. The expressions 'VENDORS' and 'PURCHASER' shall include their respective heirs, executors, administrators, representatives and assigns.-6- WP No. 60682 of 2009
2. WHEREAS, the Vendor No.1, Irappa Naik is the owner in possession of Sy.No.231A/1A1A, measuring 5 guntas and 4 annas, the Vendors No.2 to 5, are the owners in possession of the land, bearing Sy.No.231A/1A1K, area 15 gunthas and 4 annas, the Vendors No.6 to 9 are the owners in possession of the land, bearing Sy.No.231A/1A1D, measuring 15 guntas and 4 annas, the Vendor No.10, is the owner in possession of the land, bearing Sy.No.231A/1A/1B, measuring 15 guntas and 4 annas, (N.A. land to the extent of 5 guntas), out of the above area, all these lands are situated in the Baad-I village survey number. The Purchaser described above has got the land, bearing Sy.No.242(N.A.), measuring 1 acre and 23 guntas of Baad-I Village, and the said land is situated just towards East and adjacent to the land of the Vendors of the above described survey number. There was and there is a small strip of path way existing in the land of the Vendors described above to the extent of 4-5 feet width all along Eastern side of Vendor No.1's land and all along the Western and Northern side of the lands of remaining Vendors.
3. WHEREAS, the purchaser has sold his entire N.A. land to different persons after making several plots therein and for their benefit and use the purchaser intends to expand the existing path way shown in the hand-sketch produced along with this -7- WP No. 60682 of 2009 agreement. Therefore, the purchaser has approached the Vendors to sell away their portions of the lands to extend the existing small strip of path way for the better enjoyment and use of the respective purchasers of the plots prepared in the land, bearing Sy.No.242 of Baad-1 Village, by the present purchaser. The purchaser has made all arrangements by approaching necessary officers to expand the present existing small strip of path way. The Vendors have agreed to give the portion of their lands as shown in the hand-sketch of 6 feet and 7 inches in width from the existing boundary in their respective land throughout.
4. The proper description of the path is shown in the said hand-sketch. The purchaser has paid Rs.30,000/- (Rs. Thirty thousand), only, by way of Demand Draft, bearing No.784638/202, dated 24.02.1987 in the name of Vendor at Sl.No.4, above, Manohar A.Naik, on behalf of the remaining Vendors, as agreed upon by all of them.
5. The Vendors today only handed over the possession of the portions of their lands shown in the red pencil mark in the hand-sketch with the description of the width etc., after accepting the said consideration price of Rs.30,000/- Vendors or their heirs, executors, administrators, or assigns shall have no right, title, interest nor possession in respect of the portions sold as described in the hand-sketch.-8- WP No. 60682 of 2009
6. The Purchaser is at liberty to construct a road in the area shown in the hand-sketch as per his wish and desire by approaching the concerned authorities, if necessary.
7. The Vendors have already signed on the stamp paper consenting their desire of construction of the road by them, if necessary.
8. If the land sold to the purchaser is going to be acquired by the Govt. or Municipality or any authority for the purpose of said road, the purchaser is at liberty to recover the compensation amount to the extent of Rs.30,000/- (Rs. Thirty thousand), only, and if the amount of compensation is more than Rs.30,000/- (Rs. Thirty thousand), for which the Vendors are entitled and the Vendors are hereby agreed to give their power of attorney to recover the compensation amount from the concerned authorities, in the event of acquisition by the public authorities and the purchaser shall take necessary steps for the enhancement of compensation amount by approaching the competent Court of law, and in the event of passing of the award by the Court, for more than Rs.30,000/- (Rs. Thirty thousand), the said excess amount of more than Rs.30,000/- be paid to the Vendors. The purchaser on all count in the event of acquisition is entitled for only Rs.30,000/- and not more than the said amount.-9- WP No. 60682 of 2009
9. As the portions of the lands shown in the hand-sketch is already handed over to the purchaser on the strength of this agreement for the construction of the road, both the parties to the agreement agree not to execute any sale deeds, in future towards the transaction referred to above, and this will be construed as the document of title for handing over the possession of the land for the road, as shown in the hand-sketch.
In witness whereof the parties hereto have set and subscribed their respective hands and Seal, this the 15th day of March, 1987, at Karwar, before the witnesses."
6. A reading of clause No.2 would indicate that the Contractor had purchased land bearing Sy.No.242 measuring 01 acre 22 guntas and the said land was situated towards the eastern side and adjacent to the land of vendors. The agreement also indicates that there was a small strip of pathway existing in the land of petitioners measuring above to the extent of 4-5 feet width, all along eastern side of their land.
7. The agreement also admits of the fact that the purchaser i.e., Sri Vithob Venkataraman Revankar
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WP No. 60682 of 2009 (Contractor) had sold the entire land that he had purchased after forming several plots thereon and he was essentially purchasing the land for the benefit of these purchasers of the land by expanding the existing pathway.
8. Infact the agreement of sale indicates that there existed a pathway width of 4 to 5 feet. The agreement also records the fact that the purchaser had made all arrangements by approaching the necessary officers to expand the existing small strip of pathway, for which, the petitioners had agreed to give a portion of their land of a width of 6 feet 7 inches from their existing boundary. Thus, it is clear that the petitioners essentially admitted the existence of pathway of 4 to 5 feet width and had offered to sell the adjacent portion of a width of land of 6 feet 7 inches for the purposes of expanding the existing pathway. In essence, under the agreement, the petitioners had agreed for formation of a road measuring 4 to 5 feet (existing) + 6 feet 7 inches (land being sold) for the formation of a road of about 12 feet width.
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WP No. 60682 of 2009
9. It is also to be stated here that the Clause 8 of the agreement stipulates that if the land that the petitioners were selling, was to be acquired by the Government or Municipality, the purchaser-Sri Vithob Venkataraman Revankar was at liberty to recover the sum of Rs.30,000/- which he had paid to the petitioners and if the amount of compensation offered by the Municipality was more than Rs.30,000/-, the petitioners would become entitled to recover the compensation, which was in excess of Rs.30,000/-. Thus, the petitioners by receiving a sum of Rs.30,000/- from Sri Vithob Venkataraman Revankar basically gave permission for formation of a road of 4-5 feet + 6 feet 7 inches. The only right reserved to the petitioners was that in the event the Municipality or the Government acquired the very same land and paid compensation in excess of Rs.30,000/-, they would be entitled to stake a claim for the amount in excess of Rs.30,000/-.
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WP No. 60682 of 2009
10. In my view, since petitioners had unequivocally agreed to give up land of width 6 feet 7 inches for formation of a road in addition to the existing pathway of 4 to 5 feet, they would not be entitled to any claim of compensation since they had already received a sum of Rs.30,000/- from Sri Vithob Venkataraman Revankar.
11. It is also to be noticed that the agreement of sale is of the year 1997 and the first writ petition was filed seeking for mandamus only in the year 2005 i.e., nearly after lapse of 20 years. If the Municipality had illegally formed a road in the land of petitioners, the petitioners would not have acceded to the formation of the said road without approaching a Court of law. The fact that the petitioners kept quite for nearly 20 years after the road was formed, by itself indicates that they had consented unconditionally for the formation of the road.
12. The argument of learned counsel Sri P.G.Mogali that the petitioners secured a legal right to claim for compensation when the Corporation formed the road
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WP No. 60682 of 2009 cannot be accepted. The agreement, that is admitted by the petitioners, indicates that the petitioners voluntarily give up a land of width of 6 feet 7 inches in order to expand the existing pathway of 4 to 5 feet. Infact the said agreement records the fact that the purchaser had approached the Officers for expanding the existing pathway which by itself indicates that the petitioners were aware that the road was to be formed by the Corporation.
13. It is obvious that the purchasers had paid a sum of Rs.30,000/- to the petitioners only to remove any impediment for the formation of road by the Municipality. The petitioners by accepting the said amount of Rs.30,000/- and allowing the road cannot be permitted to now contend that they would be entitled to compensation for the road formed in their land.
14. In my view, since the petitioners have clearly admitted that they had voluntarily given up their land for expanding the existing pathway under the agreement dated 15.03.1987, they cannot stake a clam for
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WP No. 60682 of 2009 compensation. The Municipality was thus justified in rejecting the claim of the petitioners for payment of compensation. I find no reason to entertain this writ petition. Accordingly, it is dismissed.
15. Learned counsel for petitioner contends that there would be no question of delay since it was a continuing cause of action as far as petitioner is concerned. He also placed reliance on the Judgment passed by the Hon'ble Supreme Court in the case of Vidya Devi vs. The State of Himachal Pradesh and Others, reported in AIR 2020 SC 4709.
16. It is to be stated here that decision rendered by the Hon'ble Supreme Court was in respect of a land which was taken over by the State without taking recourse of acquisition proceedings. However, the essentially difference between that case and this case is that the petitioners voluntarily gave up their land after receiving compensation from a third party. If the petitioners had relinquished their land after receiving a consideration for
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WP No. 60682 of 2009 the expansion of the existing road, they cannot contend that their land was acquired without taking recourse to acquisition proceedings. The said decision is therefore of no avail.
SD JUDGE CKK