Karnataka High Court
Sri Sheena Poojary @ Shrinivas vs Commissioner on 27 October, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE Mr. JUSTICE M.G.S. KAMAL
WRIT PETITION No.14645 OF 2022 (LB-RES)
BETWEEN:
SRI SHEENA POOJARY @ SHRINIVAS
AGED ABOUT 68 YEARS
S/O LATE DAMU POOJARY
R/A SP-7, SARASWATHI NAGAR
ALAPE VILLAGE
MANGALURU-575 007.
...PETITIONER
(BY SRI. NATARAJA BALLAL A., ADVOCATE)
AND:
1. COMMISSIONER
MANGALURU CITY CORPORATION
LALBAGH
MANGALURU-575 007.
2. TAHSILDAR
MANGALURU TALUK
MANGALURU-575 007.
... RESPONDENTS
(BY SRI. AJAY J.N., ADVOCATE FOR R1;
SMT. M.C. NAGASHREE, AGA FOR R2)
2
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED:16.07.2022 BEARING
NO.H4/CR420/2020-21 PASSED BY THE R-1 VIDE ANNX-A.
DIRECT THE R-2 TO CONSIDER THE ACKNOWLEDGEMENT
DATED:07.08.2018 FOR REGULARIZATION VIDE ANNX-C.
DIRECT THE RESPONDENTS NOT TO DISPOSSESS THE
PETITIONER FORM THE SCHEDULE PROPERTY WITHOUT
DUE PROCESS OF LAW.
THIS PETITION COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Present petition is filed by the petitioner seeking following reliefs;
"a) Issue a writ a certiorari to quash the order dated:16.07.2022 bearing No.H4/CR420 /2020-21 passed by the Respondent No.1 (Annexure -A).
b) Issue a writ of Mandamus directing the
Respondent No.2 to consider the
acknowledgement dated:07.08.2018 for regularization (Annexure -C).
c) Issue a writ of Mandamus directing the Respondents not to dispossess the petitioner from the Schedule property without due process of law.
d) Pass such other order or orders as this Hon'ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity".3
2. The case of the petitioner is that he has been in possession and enjoyment of the immovable property to an extent of 7.13 cents with a residential building thereon as described in the schedule to the petition since 1980. It is further case of the petitioner that Hakku patra in respect of the portion of the schedule property has been issued by the Government under Ashraya scheme covering the residential building in terms of the order dated 31.10.1995. That ever since the grant, the petitioner has been in possession of the schedule property as a grantee. That he has also made an application dated 07.08.2018 seeking regularisation of certain portion of the schedule property, which is pending consideration before the respondent No.2 herein.
3. That there is a 20 feet wide public road called Kulashekhara -Kannagudde road running on the southern side of the schedule property and respondent No.1 has metalled about 12 feet portion of it and remaining mud portion on the either side is presently being used as a road 4 margin. That there is a rain drain of about 2 feet width on the northern edge of the said road. That the respondent commenced work of widening said Kulashekhara- Kannagudde road during the last quarter of the year 2021 and in the process, the respondent is taking over the property in occupation of the petitioner. The petitioner being in possession of suit property had approached the Civil Court in O.S.No.216/2021 seeking permanent injunction and there was an interim order injuncting the respondents from interfering his peaceful possession. There were also proceedings before Sub-Divisional Magistrate under Section 133 Cr.PC,. Since the petitioner filed present petition the aforesaid suit and proceedings before Sub-Divisional Magistrate were withdrawn. That the respondents do not require any portion of the schedule property for the purpose of widening of the road, however, the respondents are acting at the behest of certain persons to deprive the right of the petitioner over the schedule property. Hence, the petition.
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4. Statement of objections have been filed by the respondents denying the petition averments and contending that the petitioner has been in unauthorised occupation of the schedule property and the Hakku Patra was only in respect of 600 square feet. In addition the petitioner has sought for regularisation of another 600 square feet of land. It is also stated in paragraph no.9 of the statement of objections about the requirement of the land for the purpose of widening of the road. The widening of the road shall be take place as per the requirement by the respondent. Therefore, the claim of the petitioner being in possession of 7.13 cents of land or 3100 square feet of land is fallacious. That the request of the petitioner to regularise his unauthorised occupation has been rejected in terms of the order at Annexure-R5 on 18.11.2020, wherein at Sl.No.12 application filed by the petitioner seeking regularisation of land has been rejected. Thus, it is submitted that the petitioner in the first place not having any right whatsoever over the land, more particularly, his request having been declined has no locus 6 standi to maintain the petition. The present petition is causing impediment in the process of respondents widening the road and further causing hardship to the road users and general public. Hence, he seeks for dismissal of the writ petition.
5. Head the learned counsel for the parties and perused the records.
6. Though, the petitioner claims to be in possession of 7.13 cents of land admittedly, he has been given hakku patra only to the extent of 600 square feet of land. It is also not in dispute that the petitioner has sought for regularisation of another extent of 600 square feet of land which application has been rejected by the respondent as per the order at Annexure-R5 referred to hereinabove. Learned counsel for the petitioner referring to Section 287(2) of the Karnataka Municipal Corporation Act, 1976 submits that notwithstanding the fact that petitioner is in unauthorised occupation of the land his rights for adequate compensation cannot be denied. He 7 further submits that rejection of the requisition of the petitioner seeking regularization is subject to challenge and his right to that extent is reserved. He further submits that the said order has not been served on him. Submission is taken on record.
7. In view of the admitted facts that the petitioner having been issued hakku patra to an extent of 600 square feet of land and also in view of the admitted fact that petitioner having sought for regularisation of additional 600 square feet of land, the claim of the petitioner to an extent of 7.13 cents of land prima facie does not appear to be acceptable. However, reserving liberty to the petitioner to seek remedies which is otherwise entitled under law, it is directed that the petitioner shall not cause any obstructions in respondents widening the road as shown in photographs filed along with a memo dated 27.10.2022 to align with the widening of the road which is already done on either side of the property shown thereunder.
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Subject to the above observation, the petition is disposed of.
Sd/-
JUDGE RU