Karnataka High Court
Gulam Dastagir vs State Of Karnataka And Ors on 29 May, 2024
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NC: 2024:KHC-K:3372
WP No. 200581 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO. 200581 OF 2024 (LB-RES)
BETWEEN:
GULAM DASTAGIR,
S/O SHABUDDIN
AGE: 75 YEARS, OCC: BUSINESS,
R/O H.NO.1-892/3,
JEWARGI COLONY, KALABURAGI
DISTRICT: KALABURAGI-585102.
...PETITIONER
(BY SRI. DEEPAK V. BARAD, ADVOCATE)
AND:
1. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
Digitally VIDHANA SOUDHA, BENGLAURU-560001
signed by REPRESENTED BY ITS SECRETARY.
RENUKA
Location: 2. THE COMMISSIONER,
High Court KALABURAGI URBAN DEVELOPMENT AUTHORITY,
Of Karnataka
KALABURAGI-585102.
3. THE COMMISSIONER,
KALABURAGI MAHANAGARA PALIKE,
KALABURAGI-585102.
4. MD. ABDULLA ZAFAR-UL-HASSAN,
S/O MD. SAYED UL HASSAN
AGE: 58 YEARS OCC: BUSINESS,
R/O H.NO.1-892/2B, OLD JEWARGI ROAD,
BEHIND JEEVAN PRAKASH SCHOOL,
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NC: 2024:KHC-K:3372
WP No. 200581 of 2024
KALABURAGI-585102.
...RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL, HCGP FOR R1;
SRI KRUPA SAGAR PATIL, ADVOCATE FOR R2 AND R3;
SRI B. NOOR ILYAS, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI WHEREBY
QUASHING THE IMPUGNED ORDER NO.
KUDA/TPM/TP/AML/90/2020-21/1944/5 DATED 27.10.2023 AS
AT ANNEXURE-M, PASSED BY THE 2ND RESPONDENT, TO THIS
WRIT PETITION IN THE INTEREST OF JUSTICE AND EQUITY. II)
ISSUE A WRIT IN THE NATURE OF CERTIORARI WHEREBY
QUASHING THE IMPUGNED ORDER NO. ªÀÄ£À¥Á/ªÀPÀ-1/PÀlÖq/À 2023-2024
DATED 31.10.2023 AS AT ANNEXURE-N, PASSED BY THE 3RD
RESPONDENT, TO THIS WRIT PETITION IN THE INTEREST OF
JUSTICE AND EQUITY. III) ISSUE A WRIT IN THE NATURE OF
CERTIORARI WHEREBY QUASHING THE IMPUGNED NOTICE
NO. £À¥ÁæP/À £ÀAiÉÆøÀ/¤eÉÆÃ-90/2020-21/2165 DATED 21.11.2023 AS AT
ANNEXURE-P PASSED BY THE 2ND RESPONDENT, TO THIS WRIT
PETITION IN THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION IS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has called in question an order dated 27.10.2023 passed by second respondent in case No.KUDA/TPM/Aml/90/2020-21/1944/5, by which he temporarily withdrew the order of amalgamation dated 16.05.2022, amalgamating the properties of the petitioner. The petitioner has also challenged the -3- NC: 2024:KHC-K:3372 WP No. 200581 of 2024 consequent order dated 31.10.2023 passed by the third respondent withdrawing the license dated 18.11.2022 authorizing the petitioner to put up construction on the amalgamated plot.
2. The petitioner contends that Mr. Gulam Rasool Saheb and his sons owned an open plot measuring 120'x50', which they divided into five portions. The portion that fell to the share of Md.Siraj Ul Hasan was an area measuring 24'x34.5' and the portion that fell to the share of Md.Latif Ul Hasan was 24'x34.5'. The petitioner claims that he and his brother purchased a house bearing No.1-892/3 measuring 50'x48' from Md.Siraj Ul Hasan and Md.Latif Ul Hasan in terms of a sale deed dated 23.03.1976. Later, a suit was filed by the petitioner and his brother in OS No.346/1979 against their father and other family members for partition and separate possession of the properties in the hands of their father. In the said suit, a compromise was reported in terms of which the petitioner was allotted house bearing No.1- 892/3 measuring 50'x48' . The other son of Gulam Rasool -4- NC: 2024:KHC-K:3372 WP No. 200581 of 2024 Saheb in whose favour the other portion was allotted, sold an extent of 50'x48' to Azmath Begum, daughter of Shaikh Hussain. The petitioner claims to have purchased the said extent of 50'x48' from Azmath Begum, in terms of two different sale deeds dated 08.08.2018. The petitioner therefore claimed that he owned three different portions namely 50'x48', 24'x50' and 24'x50' measuring 4800 sq.ft. He claims that in order to develop the land he filed an application with respondent No.2 for amalgamation of the plots, which were purchased by him. Respondent No.2 after considering the application approved the amalgamation vide order dated 16.05.2022 and sanctioned an amalgamated plan. Thereafter, he filed an application before respondent No.3 for grant of license to construct a commercial/residential complex over the land, which was granted on 18.11.2022. The petitioner claims that he entered into a joint development agreement with the S.R. Constructions to develop the aforesaid plot on mutually profitable basis. When things stood thus, owner of the adjacent property filed objections before respondent -5- NC: 2024:KHC-K:3372 WP No. 200581 of 2024 No.2 claiming that there was no approach road to his plot and that the amalgamation of the four sites had affected his access. The petitioner contends that respondent No.2 without conducting any enquiry passed the order dated 25.07.2023, temporarily suspending the order of amalgamation dated 16.05.2022. The petitioner claims that in order to broker peace, he filed an affidavit stating that he had left a margin of 10.6 ft. on the northern side running from west to east and respondent No.4 may permanently use that space to access his property. The petitioner claims that respondent No.2 after considering the affidavit withdrew the earlier order dated 25.07.2023. Later, respondent No.4 through his family members filed a suit in OS No.394/2023 for partition and separate possession, where the petitioner was arrayed as defendant No.2. The petitioner contends that respondent No.4 again approached respondent No.2 by representation dated 12.09.2023 contending that there was a dispute over the development of the amalgamated property and that till the same is resolved, the order of amalgamation has to be -6- NC: 2024:KHC-K:3372 WP No. 200581 of 2024 withdrawn. Respondent No.2 after considering the representation, once again passed an order dated 27.10.2023, temporarily withdrawing the order of amalgamation dated 16.05.2022. Consequent to the same, respondent No.3 withdrew the license granted to the petitioner on 18.11.2022.
3. The petitioner contends that respondent No.2 has no power under the Karnataka Town and Country Planning Act, 1961, to adjudicate the civil rights of the parties. He contends that if respondent No.4 has any right of easement to passover the land of the petitioner, respondent No.4 is bound to establish the same before the Court and respondent No.2 cannot take cognizance of the alleged right of respondent No.4. He further contends that proceedings initiated by respondent No.2 are without jurisdiction and hence, the proceedings needs to be terminated. He therefore challenged the impugned order dated 27.10.2023 passed by respondent Nos.2 and the consequent order dated 31.10.2023 passed by respondent No.3 on the aforesaid grounds.
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NC: 2024:KHC-K:3372 WP No. 200581 of 2024
4. Respondent No.4 on the other hand contested the writ petition and claimed that the order impugned in this petition is only an interim order suspending the order of amalgamation dated 16.05.2022 and that the right of the parties is yet to be adjudicated. He submits that a perusal of the impugned order passed by respondent No.2 shows that the petitioner despite being called to produce documents in support of his claim to sustain the order of amalgamation failed to do so and therefore, respondent No.2 had no other alternative way but to withdraw the order of amalgamation, consequent to which respondent No.3 withdrew the license granted authorizing the petitioner to put up the construction. He therefore submits that since the issue is yet to be adjudicated by respondent No.2, the petitioner cannot challenge the same before this Court.
5. I have considered the submissions of the learned counsel for the petitioner and leaned counsel for respondents.
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NC: 2024:KHC-K:3372 WP No. 200581 of 2024
6. The learned counsel for the petitioner has raised a contention regarding the jurisdiction of respondent No.2 to entertain the objection of respondent No.4, on the ground that an appeal is provided under Section 17(6) of the Karnataka Town and Country Planning Act, 1961(herein after referred to as the Act), and therefore, respondent No.2 could not have entertained the representation of respondent No.4. In order to appreciate this contention, Section 17(6) of the Act is extracted below:
"Any person aggrieved by the decision of the Planning Authority under sub-section(2) or sub- section(4) may, within thirty days from the date of such decision, appeal to such authority as may be prescribed."
A perusal of Section 17 of the Act shows that it deals with sanction of a plot and bifurcation of plot, but, it does not deal with the amalgamation of a plot. Therefore, the order of amalgamation cannot be traced to Section 17 of the Act as is done by respondent No.2 in his order dated 16.05.2022. It is opposite at this stage to notice the regulations provided by the State Government governing -9- NC: 2024:KHC-K:3372 WP No. 200581 of 2024 the amalgamation and bifurcation of building sites in exercise of its power under Section 13-E of the Act. These regulations does not provide for any appeal remedy against an order of amalgamation of building sites. There is neither any remedy prescribed under the Act of 1961 as against an order of amalgamation. Therefore, the contention of the petitioner that respondent No.4 was bound to assail the order of amalgamation before the appellate authority prescribed under Rule 36(A) of Karnataka Planning Authority Rules, 1965, is not sustainable and the same is rejected.
7. A perusal of the order of amalgamation dated 16.05.2022 specifically provided as follows:
"The Sanction to the amalgamation accorded by the authority shall be deemed to be invalid if an information furnished by the applicant are found to be incorrect and false."
8. Therefore, the exercise of the power by respondent No.2 at the instance of respondent No.4 can be traced to Section 27 of the Karnataka General Clauses Act, 1899. The respondent No.2, who had issued a
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NC: 2024:KHC-K:3372 WP No. 200581 of 2024 conditional order of amalgamation of the plots, is entitled to verify whether the conditions mentioned in the order dated 16.05.2022, is attracted or not. The contention of learned counsel for the petitioner that respondent No.2 was not entitled to adjudicate upon the civil rights of the parties is too premature to be considered now, as respondent No.2 has not decided the issue relating to the civil rights of the parties and hence, this contention of the petitioner is also liable to be rejected.
9. Insofar as the other contention that respondent No.4 has already filed a civil suit and therefore, respondent No.4 had to be relegated to the civil suit and not allow him to approach respondent No.2 is also without any basis, as respondent No.2 is bound to look into the question, whether the amalgamation obtained by the petitioner was based of any information that was incorrect or false. A perusal of the impugned order passed by respondent No.2 shows that despite grant of opportunity to the petitioner to produce the documents in support of his claim that the amalgamation order is just and proper,
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NC: 2024:KHC-K:3372 WP No. 200581 of 2024 the petitioner failed to comply with the same. However, he was going on with the construction of the building over the property in question. Therefore, respondent No.2 was perforced to temporarily suspend the order of amalgamation. The respondent No.2 though was the sanctioning authority, who had sanctioned the amalgamation of the plots, but he had retained the power to re-visit the order of amalgamation if the information furnished by the petitioner was incorrect or false. Therefore, respondent No.2 was entitled to reconsider the order of amalgamation by exercising power under Section 27 of Karnataka General Clauses Act, 1899, and therefore, this Court cannot find any error in the exercise of jurisdiction by respondent No.2. Since, the petitioner had failed to produce the documents that were expected of him, respondent No.2 had no other way but to suspend the order of amalgamation, pending the adjudication of dispute before it.
10. In that view of the matter, there is no error committed by respondent No.2 in passing the impugned
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NC: 2024:KHC-K:3372 WP No. 200581 of 2024 order and consequently, respondent No.3 was also justified in passing the order, withdrawing the license granted to the petitioner to put up the construction. Thus, this petition lacks merits and is dismissed.
11. However, if the petitioner appears before respondent No.2, within a week from today and produces the documents in support of the order of amalgamation, respondent No.2 is directed to consider the same as expeditiously as possible, at any rate within a period of one month from the date of production of documents. Respondent No.3 shall thereafter pass an appropriate order within a period of 15 days there from.
Sd/-
JUDGE NJ CT:SI List No.: 1 Sl No.: 23