Karnataka High Court
Bhoja Bhandary vs The Deputy Commissioner on 28 March, 2013
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28th DAY OF MARCH 2013
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.6204/2011 (LB-RES)
BETWEEN:
1. BHOJA BHANDARY
S/O GANGAIAH BHANDARY
AGED ABOUT 50 YEARS
TALIPADI HOUSE
P O KUNJASBAILU
MANGALORE-575 015
2. KRISHNA BHANDARY
S/O SESAMMA
AGED ABOUT 55 YEARS
TALIPADY HOUSE
P O KUNJASBAILU
MANGALORE-575015
3. SURESH SHETTY
S/O MANJAIAH SHETTY
AGED ABOUT 40 YEARS
UGRANI BETTU HOUSE
P O KUNJASBAILU
MANGALORE-575015
4. DAYANANDA SHETTY
S/O SANJEEVA SHETTY
AGED ABOUT 45 YEARS
TALIPPADY HOUSE P. O.,
KUNJATHBALLE
MANGALORE-575015 ... PETITIONERS
(BY SRI H P LAKSHMINARAYANA, ADV. FOR
M/S. P KARUNAKAR ASSOCIATES)
2
AND:
1. THE DEPUTY COMMISSIONER
MANGALORE, D.K. DISTRICT
2. THE COMMISSIONER
MANGALORE CITY CORPORATION
MANGALORE ... RESPONDENTS
(BY SMT. MANJULA R KAMADOLLI, HCGP FOR R1
SRI A K VASANTH, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO DIRECT THE
R2 NOT TO FORM ANY LAYOUT IN THE SCHEDULE PROPERTY
WITHOUT THERE BEING ANY PROPER NOTIFICATION OF
ACQUISITION.
THIS WRIT PETITION COMING ON FOR HEARING , THIS
DAY, THE COURT MADE THE FOLLOWING :
ORDER
The petitioners are before this Court seeking for issue of mandamus to direct respondent No.2 not to form any layout in the schedule property without there being any proper notification for acquisition.
2. The petitioners claim that they are the owners of the property bearing Sy.Nos.65/1, 65/2, 65/3, 65/4, 65/6 and Sy.No.71/A2 of Kunjathabailu village, Mangalore Taluk, D.K.District is kumki land attached to the said warg lands. The predecessors of the petitioners are stated to have acquired right to the said property in view 3 of the grant made by the Land Tribunal vide the order dated 15.06.1988 in LRT No.1146/77-78. Prior to the same, the predecessors were the tenants in respect of the property and thereafter have become the owners of the property. The form No.10 in that regard has been relied on. Adjacent to the said properties, the property over which the petitioners have kumki right is situate. At an earlier instance, when the Deputy Commissioner by the order dated 17.07.1989 sought to extinguish the kumki rights, the petitioner had assailed the same before the Karnataka Appellate Tribunal in Appeal No.186/1992. The appeal was allowed and the order impugned therein was set aside. Subsequent thereto, the petitioners contend that they have been enjoying the kumki privilege. Despite there being no extinguishment of such rights in accordance with law, the second respondent has now proposed to form residential layout in the said property and as such the petitioners have approached this Court seeking for a direction that the property over which the petitioners have kumki rights shall not be utilized for the said purpose.
4
3. The second respondent has filed the objection statement. It is contended that the property bearing RS No.71/A2 is a Government land classified as 'Anadeena' or waste land. The petitioners have not been granted occupancy right in respect of the said property. It is their case that the petitioners are only taking advantage of the fact of the location of the property which is adjacent to their property. The second respondent is making use of the Government land for the purpose of forming a layout known as Vajpayee Housing layout. In that context, it is contended that only the property bearing Sy.No.65/3 was the subject matter of proceedings before the Land Tribunal and as such the petitioners cannot claim any right over the property bearing Sy.No.71/A2 measuring 5 acres 50 cents. The earlier notice dated 17.07.1989 is referred to. The reference is also made to the nature of the kumki rights and would contend that the petitioners are not entitled to any relief.
4. In the light of the above, the fact as to whether the property in question viz., the land in Sy.No.71/2A of 5 Kunjathabailu village, Mangalore Taluk is a kumki land or not, need not be adverted to for the first time in this petition. In this regard, the earlier order had been assailed in Appeal No.186/1992 before the Karnataka Appellate Tribunal. A copy of the order passed therein is available at Annexure-E to the petition. A perusal of the same would indicate that the said land is a kumki land inasmuch as the Tribunal had accepted the right of the appellants therein with regard to the same. It is in that context the Tribunal had also set aside the order which had been impugned therein whereby the right of enjoyment of the property by way of kumki right was sought to be defeated. The said order has attained finality. In the said order, it was also indicated with regard to the manner in which the kumki right could be extinguished. If this aspect of the matter is kept in view, though the second respondent contends that the petitioners have no right to the said property, the same cannot be accepted at this juncture inasmuch as the said land is already held to be kumki land and the procedure stated for extinguishing such kumki rights has already attained finality. If at all the kumki right was to be 6 extinguished and the property was to be used for formation of layout, it could have been done only in accordance with law.
5. Even though the learned Government Advocate had submitted to this Court that subsequently an order dated 27.01.2011 has been passed and the same was recorded by this Court on 15.02.2011, the same is not yet brought on record. Even assuming that there is such order, the observation made by the Tribunal at the earlier instance would indicate that the kumki right cannot be extinguished by executive orders. Therefore, if at all the kumki right had been extinguished in accordance with law, such law which had been passed for extinguishing the kumki rights should have been brought on record in the petition. Hence, until the kumki rights being enjoyed by the petitioners, over the property bearing Sy.No.71/A2 is extinguished in accordance with law, certainly the same cannot be utilized for any other purpose by classifying the same as a Government land as contended by the second respondent.
7
6. Hence, a direction is issued to the respondents that the said land shall not be utilized for the formation of Vajapayee Housing layout without the kumki rights being extinguished in accordance with law.
The petition disposed of in the above terms.
Sd/-
JUDGE akc/bms