Karnataka High Court
Sri.Mukesh H Patadia S/O Harjivandas ... vs The State Of Karnataka on 12 April, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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WP No. 113355 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 113355 OF 2015 (LB-RES)
BETWEEN:
SRI.MUKESH H PATADIA
S/O HARJIVANDAS PATADIA
AGE:50 YEARS
OCC:BUSINESS, R/O:ADARSH NAGAR
HUBBALLI
...PETITIONER
(BY SRI. BRIJESH PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
M S BUILDING, BENGALURU
2. HUBBALLI DHARWAD URBAN DEVELOPMENT AUTHORITY
Digitally REP BY ITS COMMISSIONER
signed by NAVANAGAR, HUBBALLI
VINAYAKA
BV 3. HUBBALLI DHARWAD MUNICIPAL CORPORATION
VINAYAKA Location:
BV REP BY ITS COMMISSIONER
DHARWAD
Date: HUBBALLI
2023.05.08
13:43:08 - 4. THE ASSISTANT DIRECTOR OF LAND RECORDS
0700 OFFICE OF THE CITY SURVEY
HUBBALLI
5. THE ASSISTANT COMMISSIONER,
OFFICE OF ZONE SIX,
HUBBALLI DHARWAD MUNICIPAL CORPORATION,
HUBBALLI.
...RESPONDENTS
(BY SRI.M.H. PATIL, AGA FOR R-1 & R-4
SRI. R.H. ANGADI, ADVOCATE FOR R-2
SRI. BHUSHAN.B. KULKARNI, ADVOCATE FOR R-3)
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WP No. 113355 of 2015
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ENDORSEMENT DATED:28.10.2015 ISSUED BY THE OFFICE OF THE 5th
RESPONDENT (ANNEXURE-AQ) AND CONSEQUENTIALLY SET ASIDE
THE ENTIRES DATED:26.01.2010 MADE IN THE NAME OF THE 3rd
RESPONDENT CORPORTION IN THE CTS RECORDS (ANNEXURE-AM) IN
RESPECT OF PROPERTY NO.660/1B, 660/2A, 660/2B, 660/3, 660/4, 660/5,
660/6, 660/7, 660/8 OF KESHAWAPURA VILLAGE OF HUBBALLI TALUKU.
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
In this petition, petitioner has sought for the following reliefs;-
(i) ISSUE appropriate writ order or direction in the nature of Certiorari quashing the impugned endorsement bearing No.HDMC:VA KA 06:30:15-16 dated 28.10.2015 issued by the office of the 5th Respondent (ANNEXURE- AQ) and consequentially set aside the entries dated 26.12010 made in the name of the 3rd Respondent Corporation in the CTS records (Annexure-AM) in respect of property no.660/1B, 660/2A, 660/2B, 660/3, 660/4, 660/5, 660/6, 660/7, 660/8 of Keshawapura village of Hubballi Taluku.
(ii) ISSUE, appropriate writ or direction in the nature of Certiorari quashing the impugned endorsement bearing no.Hu Dha Na Pra: Yho Vi/keshawapura/2009- 10/81 dated 8.4.2010 issued by the 2nd Respondent as per Annexure-(AL).
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(iii) ISSUE, appropriate writ order or direction or declaration that the change of land use from the "Residential to open apace/garden" in respect of CTS no.660/1B, 660/2A, 660/2B, 660/3, 660/4, 660/5, 660/6, 660/7, 660/8 of Keshawapura village of Hubballi Taluku, illegal and consequentially permit the Petitioner to use the land for the residential purpose.
Or Alternatively
(i) ISSUE, appropriate writ order or direction in the nature of mandamus to 2nd and 3rd Respondent to acquire the land of the Petitioner under the provisions of the Karnataka Town and Country Planning Act, 1961 and pay the compensation to the Petitioner.
(ii) GRANT such other reliefs this Hon'ble Court deems fit in the facts and circumstances of the case including an order as to costs.
2. Heard learned counsel for the petitioner, learned AGA for the respondent No.1-State as well as learned counsel for the other respondents and perused the material on record. It is relevant to state that respondent No.2 is the Hubli-Dharwad Urban Development Authority (HDUDA), while respondent Nos.3 and 4 are the Hubli-Dharwad Municipal Corporation (HDMC) and the Assistant Director of Land Records (ADLR) respectively. -4- WP No. 113355 of 2015 Respondent No.5 is the jurisdictional Assistant Commissioner, HDMC.
3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that having regard to the undisputed facts and circumstances and documents on record, which indicate that the petitioner and his predecessor-in-title were the owners of the subject immovable property bearing CTS No.660 of Keshawapur in revisional survey number (RS) No.21A/B, 21A/A3A1, 21/A3A2 and 21/A3A3 measuring about 39 guntas and that the same was permitted and approved to be used for residential purposes, coupled with the directions issued by this Court in W.P.No.60894/2010 dated 10.03.2010, the impugned Endorsements at Annexure-AL dated 08.04.2010 and Annexure- AQ dated 28.10.2015 as well as the impugned entries at Annexure- AM dated 26.01.2010 are illegal, arbitrary, vitiated and the same deserve to be set aside and necessary directions to be passed in the present petition.
4. Per contra, learned AGA for the State as well as learned counsel for the other respondents, in addition to reiterating -5- WP No. 113355 of 2015 the various contentions urged in the Statement of Objections submit that there is no merit in the petition and the same is liable to be dismissed.
5. I have given my anxious consideration to the rival submissions and perused the material on record.
6. The material on record discloses that the subject property was purchased by Smt. Indira W/o Chandrashekargowda Patil from its erstwhile owners on 27.12.1967 and the khata and revenue records were entered into her name. Pursuant thereto, she applied for conversion of the subject property for residential purposes by submitting a representation dated 03.06.1968 to the HDMC, in pursuance of which, the HDMC addressed a communication to the HDUDA recommending that the request of the said Smt. Indirabai C. Patil for conversion of the subject property into residential plots may be approved. On 07.12.1968, the HDUDA accepted and approved conversion of the subject property for residential purpose by addressing a communication in this regard dated 07.12.1968 to the HDMC and the said approval was communicated by the HDMC to Smt. Indirabai C. Patil vide communication dated 24.12.1968 addressed to her calling upon -6- WP No. 113355 of 2015 Smt. Indirabai C. Patil to pay the requisite fees and submit blue prints of the approved layout plan. In pursuance of the same, the HDMC addressed a communication dated 26.12.1968 intimating Smt. Indirabai C. Patil that approval is granted for usage of the subject property for residential purpose and also that the layout plan submitted by her had been approved by enclosing a copy of the approved layout plan.
7. Subsequently, the said Smt. Indirabai C. Patil received a communication dated 20.01.1969 from the State Government informing her that the approval for conversion of the subject land to residential plot/purpose had been stayed. However, subsequently Smt. Indirabai C. Patil received one more communication dated 24.02.1970 intimating her that the said order of stay of the approval granted in her favour had been vacated. Further, the Outline Development Plan (ODP) prepared under the provisions of the Karnataka Town and Country Planning Act, 1961 showing and indicating the subject property as earmarked/used for residential purposes, which was approved by the State Government vide Order dated 25.08.1975, pursuant to which, the HDUDA addressed a letter dated 06.03.1976 informing Smt. Indirabai C. Patil that the -7- WP No. 113355 of 2015 subject property had been earmarked for residential use in the approved ODP of Hubli. It is therefore clear that the conversion of the subject land for residential purposes and approval granted for using the subject land for residential purposes as well as approval of the layout plan showing a layout comprising of residential sites attained finality and became conclusive and binding upon the respondents. In this context, it is relevant to state that at no point in time did the respondents dispute the title or possession of Smt. Indirabai C. Patil over the subject property. So also, Smt. Indirabai C. Patil sold a portion of the subject property in favour of others and subdivision of the plots was permitted by the HDMC vide orders dated 09.12.1977 and 17.08.1977 specifically stating that the subdivided plots are to be used for residential purpose only, thereby confirming that the subject property was permitted and approved to be used for residential purpose.
8. In the meanwhile, Charles Francis D'Souza and D.A. Kirby instituted a suit in O.S.No.148/1970 against Smt. Indirabai C. Patil for declaration, permanent injunction and other reliefs inter alia contending that the subject property was an open space (garden) and that they were entitled to use the same. The said suit -8- WP No. 113355 of 2015 having been contested by Smt. Indirabai C. Patil, the Trial Court dismissed the suit vide judgment and decree dated 04.12.1972, which was confirmed by the First Appellate Court vide judgment and decree dated 04.04.1977 and further upheld and confirmed by this Court in RSA No.12/1978 dated 23.10.1979, thereby confirming that the subject property was permitted to be used for residential purpose. So also, D.S. Pinto and others submitted representations dated 01.10.1979 and 28.04.1980 to the HDMC complaining that the subject property was reserved for garden and meant for public use. The said representations/complaints were rejected by the HDMC vide communication/order dated 03.05.1980 issued to the aforesaid D.S. Pinto and others after referring to the previous records and facts and circumstances referred to supra by specifically stating that the subject land had not been reserved as garden in the approved ODP and also that layout comprising of residential plots had already been approved and building permission to construct houses on the plots had been granted by the HDMC. It is necessary to state that the said complainants - D.S. Pinto and others did not proceed further after the aforesaid communication/order.
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9. Subsequently, the HDMC issued a letter dated 04.06.1981 Smt. Indirabai C. Patil informing her that the recommendation of the Corporation for approving a layout of residential sites was wrong and that the HDUDA had been approached to reconsider the same and till a decision is taken, she was requested not to proceed with construction or disposal of the plots. Pursuant thereto, HDUDA passed a resolution dated 20.06.1981 resolving to request the State Government to change the land use of the subject property from residential to parks and open spaces and a communication dated 13.07.1981 in this regard was addressed to the State Government. Immediately upon coming to know about the aforesaid resolution, the petitioner approached this Court in W.P.No.16552/1981 and challenged both the aforesaid communication dated 04.06.1981 issued by the HDMC as well as the aforesaid resolution dated 20.06.1981 passed by the HDUDA. By final order dated 29.05.1990, this Court came to the conclusion that both the impugned communication and resolution were illegal and arbitrary and quashed the same and reserved liberty in favour of the State Government to acquire the subject land, if they so desire after following due procedure by holding as under:-
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" 3. Few facts which are necessary for the disposal of this petition are:
That the revenue Sy Nos. 21/A, 1B, 21A/A, 21/A-3- A1, 21/A-A1, 21-A, 21/3 known as Walvekar plots originally belong to one Jahangirbaba, Khanabhahadur Abul Rehaman Sait, Belagaum, He divided this area into 68 plots and he got the same approved by the then consulting Surveyor to the Bombay Government. The petitioner further states that a layout was formed in this area, which was approved by a resolution of the standing committee of the Hubli- Dharwar. Municipality. Further, the Collector of Dharwar approved the layout and permitted this land for use of non- agricultural purpose subject to certain condition.
4. The petitioner herein purchased open space in that layout, which was reserved for the use as a garden, in 1967 and thereafter, she filed an application seeking conversion of the land into residential sites. The Corporation- Respondent No.1 herein recommended to Respondent No.2 The Director of Town Planning for giving such permission to use the area for the residential purposes, as can be seen from Annexure-A. Further, the petitioner requested respondents 1 and 2 to permit her to convert the land reserved as open space for garden purpose into residential plots. This request of the petitioner was favorably considered by respondents 1 and 2, as can be seen from Annexure A1 and A-2, as can be seen from Annexure A1 and A2, as can be seen from Annexure A1 and A2, as early as on 30.11.1968 and 26.12.1968, respectively. Thereafter some adjoining
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owners of the open space approached the State Government for cancellation of the order Annexure-A3, by which final approval was given to the petitioner for use of this area for the residential purposes. The State Government on such representation of the adjoining owners had granted interim order of stay 20.01.1969. After hearing both the parities, the State Government vacated the interim order of stay and finally dismissed the petition filed by the adjoining owners. The State Government finally accorded the approval to the Outline Development Plan by Annexure-C bearing Order No. HMA 42 TTP 75 BANGALORE dated: 25.08.1975. Clause ( viii) of this order shows the open space marked in Sy No. 21A of the Keswapur shall be changed to residential use.
5. Ultimately this area was shown as for residential purpose in the O.D.F., the petitioner sold a portion of the land which was numbered as CTS 660/1 to on G.J. Naik. Thereafter, C.T.S., No. 660/1, was sub- divided with the permission of the Deputy Commissioner, as can be seen from Annexure-E.
6. Having lost before the State Government, some of the adjoining owners started civil litigations. One charles Fracis D' Souza and another, who were the purchasers a suit in O.S. No. 118/1970, in the Court of the Munsiff at Hubli, against the petitioner and original owner for declaration that they have right to use and enjoy the suit property, that is, CTS No. 660, an open space unobstructed and unhampered by any constructions thereon. The said suit cams to be dismissed by the trial
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Court. The 1st Appellant Court confirmed the decree of the trial Court. The matter was taken up in second appeal and this Court in R.S.A.No. 12/1978 dismissed the appeal confirming the Judgment and decree passed by the Courts below, as can be seen from Annexure-H order dated: 23.10.1979. It did not end there. Again one Domingo Santan Pinto filed another suit in O.S.No. 575/1979, in the Court of the Munisiff at Hubli for declaration that the entire transaction starting with sale deed dated: 27.12.1967, standing in the name of the this petitioner and ending with the approval of layout in the suit property by the Town planning Authority and Hubli- Dharwar Municipal Corporation is null and void and not binding upon the plaintiffs and residents of the Walvekar Plots. In the said suit, the said Pinto sought for perpetual injunction restraining this petitioner from obstructing their enjoyment of the land in question. The application filed by the plaintiff in that suit for grant of exparte injunction came to be dismissed and the miscellaneous appeal filed by the plaintiff was also dismissed. Thereafter, the plaintiff in the said suit filed C.R.P. No. 2175 of 1981. The Court dismissed this Civil Revision Petition also.
7. It is necessary to refer to Annexure-J dated: 3.5.1980. It appears D.S. Pinto and others in O.S.No. 575/1979, represented to the Commissioner, Hubli- Dharwar Municipal Corporation that this land in question should be reserved as open space for the purpose of park. It is useful to extract Annexure-J, which reads thus.
" With reference to your above representation, it is to inform you that the land in question is not reserved as ' Garden' in out line development plan of the Hubli City. which is approved by the
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Governmnet of Karnataka, Bangalore. The area is already developed by the Corporation and the layout is also approved for the CTS No. 660 Keshwapur Extension for residential plots. The CTS records have also been prepared for individual plots and also the building permission to construction the Houses ont eh plots have been granted by the H.D.M.C. under the provisions of Karnataka Municipal Corporation Act, 1976. The matter has also been decided by the High Court of Bangalore in R.S.A. 12/79 wherein the request of the residents (petitioners) is dismissed.
Hence. your request to acquire this land at this stage cannot be considered and no further correspondence will be entertained int his respect in future, please note."
As can be seen from Annexure-J, even the request of said Pinto to acquire the land was not considered. It is thereafter as late as on 4.6.1981, the Commissioner, Hubli- Dharwar Municipal Corporation addressed a letter to the petitioner and directed not to proceed either with the construction or disposal of plots, on the land in question. It appears, thereafter, Hubli- Dharwar Town planning Authority passed a resolution on 20.6.1981, in sub no 19 to recommend to the Government to reconsider the earlier decision, so as to reserve this area for garden purpose.
8. The petitioner is aggrieved by Annexure-K and L. Sri. R.H. Chandangoudr, the learned Counsel for the petitioner strongly contended that the order passed by the Commissioner, Hubli- Dharwar Municipal Corporation Annexure-K is totally illegal and unsustainable, in view of the fact that the layout was finally approved and the land in question is for residential purpose in the Outline Development Plan. So also the Town planning Authority, Hubli-Dharwar corporation had no authority in law to make such a recommendation. It at all a change of the land
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WP No. 113355 of 2015used is to be made or modified in the O.D.F. it is for the Government to do so after following the due procedures. When these very questions were decided between the parties in the civil proceedings referred to above, the authorities were not right and justified in passing the order under Annexure-K or passing the resolution under Annexure-L.
9. Sri. L.K. Srinivasa Murthy, the learned High Courts Government pleader submits that the Town planning Authority has power to acquire the land as per Section 69(1) of the Karnataka Country and Town planning Act, 1961, There is absolutely no difficulty about it, even otherwise, the Government has power to acquire any land according to law and after following the due procedure. In case, the competent authorities feel that the land in question is required for any public purposes it is for them to decide and acquire. Under the circumstances annexure-K & L cannot be sustained.
10. Consequently, the Writ Petition in allowed. Annexure-K and L are quashed.
No. costs."
10. The said order passed in W.P.No.16552/1981 was confirmed by the Hon'ble Division Bench in W.A.No.374/1991, which was dismissed vide order dated 14.04.1992. It is relevant to state that the respondents herein were parties to the aforesaid proceedings before this Court and the said orders attained finality
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WP No. 113355 of 2015and became conclusive and binding upon the respondents. It is also significant to note that this Court has come to the categorical conclusion that the subject land and the layout had been approved for residential purposes by the respondents and is shown as being used for residential purposes even in the ODP and as such, the communications, Endorsements etc., purporting to show/use the subject land as reserved for garden purpose were illegal and the same were accordingly quashed by this Court.
11. In the meanwhile, one Sri. Ingo Santan Pinto filed a suit in O.S.No.575/1979 against Smt. Indirabai as well as the respondents herein for a declaration that the sale deed dated 27.12.1967 in her favour was null and void and all subsequent transactions including the approval of a residential layout in the subject property was null and void and not binding upon the residents and for other reliefs. The said suit having been contested by the defendants including Smt. Indirabai C. Patil, the Trial Court proceeded to dismiss the suit vide judgment and decree dated 12.01.1993 and the same has also attained finality and become conclusive and binding upon the respondents herein. So also, pursuant to the order passed in W.P.No.16552/1981 referred to
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WP No. 113355 of 2015supra, the HDUDA issued an Endorsement dated 21.08.1990 to Smt. Indirabai C. Patil intimating her that the subject property had been reserved for residential purpose and the HDMC permitted construction of a compound wall on the schedule property vide permission dated 01.10.1996.
12. The material on record also discloses that after the demise of Smt. Indirabai C. Patil, petitioner purchased the subject property from her legal heirs vide registered sale deeds in the year 2005, pursuant to which, the revenue records came to be transferred into his name and he started paying taxes. In the meanwhile, at the request made by Chandrashekaragowda Patil, husband of Smt. Indirabai C. Patil, the HDUDA intimated him vide Endorsement dated 23.02.2005 that the subject land was used as open space (garden). The said Endorsement was challenged before this Court in W.P.No.20193/2005, which was disposed of vide final order dated 02.12.2008 holding that the said Endorsement dated 23.02.2005 cannot be construed or treated as granting permission for change of land use from residential to garden nor can the said Endorsement be construed or treated as an order under Section 14 of the Karnataka Town and Country
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WP No. 113355 of 2015Planning Act. Subsequently, the HDMC addressed a communication dated 19.01.2010 to the Tahsildar calling upon him to insert the name of HDMC in the revenue records in relation to the subject property by placing reliance upon the aforesaid order passed by this Court in W.P.No.20193/2005. The said communication having been forwarded to the ADLR - 4th respondent, the ADLR inserted the impugned entries at Annexure- AM dated 26.01.2010 recording the name of the HDMC in the revenue records, which is assailed in the present petition.
13. In the meanwhile, the petitioner got issued a Legal Notice dated 11.01.2010 to the HDUDA intimating them that the subject property was shown as open space (garden) in the CDP and in the light of the facts, circumstances, events, documents etc., referred to supra, the subject land was approved and permitted to be used for residential purpose / layout and the said entry in the CDP showing the subject property as open space (garden) deserves to be deleted and the same shown as residential purpose. Since the respondents, HDUDA and HDMC did not comply with the request made by the petitioner, he preferred W.P.No.60894/2010 before this Court, which disposed of the
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WP No. 113355 of 2015petition vide final order dated 10.03.2010 directing the respondents to consider the said representation of the petitioner and pass appropriate orders, bearing in mind the observations made in the order which are as under:-
"3. Petitioner claims to be the owner of property bearing CTS No.660/6, 660/3, 660/5, 661/1A, 660/7 and 660/8 in Revenue Survey No.21A/1B, 21A/A3A1, 21/A3A2 and 2/A3A3 of Hubli. It is the case of the petitioner that these areas were shown as reserved for park under the Comprehensive Development Park. In view of the same, the petitioner though is the owner of the property is prevented from making use of these properties for any other purposes.
4. In this regard, the petitioner has given representation to the Development Authority and also the Corporation for deleting the public purpose shown in the CDP in respect of these lands.
5. According to the petitioner, these lands are the private properties. However, when a CDP was prepared, the lands of the petitioner were shown as reserved for public purpose.
6. Showing the private lands in CDP for public purpose, would deprive the owner from making use of such land for any other purpose. The authority in such case, either should acquire such lands in accordance with law and pay the compensation, so that the purpose for which the lands can be used for the purpose for which they were reserved. In
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the event the authority is unable to develop the same by acquiring, it cannot permanently deny the rights of the owners of the lands. Such an action would be violative of Article 300A of the Constitution of India.
7. Learned counsel for the petitioner submitted that, for more than five years, nothing has been done. He has also produced the endorsement to show that after the preparation of CDP, more than 5 years have elapsed and no development has taken place, and submitted that, if the CDP is not implemented within five years of its preparation, it would lapse.
8. Learned counsel appearing for the Development Authority submitted that action would be taken in pursuance to the representation. If the land is required for public park, the same would be acquired. In the light of the submission made by the learned counsel, I pass the following order:
The writ petition is allowed. A direction is issued to respondent No.1-Development Authority to consider the representation of the petitioner and pass appropriate order in accordance with law and in the light of the above observation.
9. Smt. Sharmila Patil, learned counsel is permitted to file vakalath within four weeks.
10. Sri. Mallikarjun B. Hiremath, learned counsel is permitted to file vakalath within four weeks."
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14. In pursuance of the same, the HDUDA issued the impugned Endorsement at Annexure-AL dated 08.04.2010 rejecting the claim of the petitioner and the said Endorsement is also challenged in the present petition.
15. Subsequently, the petitioner submitted a representation dated 20.10.2015 to the HDMC calling upon them to remove the names of HDMC from the revenue records and to restore the name of the petitioner. However, the said request was rejected by the HDMC by issuing the impugned Endorsement at Annexure-AQ dated 28.10.2015, which is also assailed in the present petition.
16. A perusal of the impugned Endorsement at Annexure - AL dated 08.04.2010 issued by the HDUDA will indicate that the claim of the petitioner has been rejected on the ground that the subject property belongs to HDMC and was shown as vacant land (garden) in the ODP. Apart from the fact that the said reason assigned by the HDUDA is contrary to the material on record, the aforesaid facts and circumstances referred to herein before comprising of documents, Endorsements, approvals, approved layout plan etc., are sufficient to show that the subject property was
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WP No. 113355 of 2015owned and possessed by the petitioner and his predecessor-in- title who had obtained approval for use / utilization for residential purpose by forming a residential layout. The various litigations to which the HDUDA was a party have resulted in favour of the petitioner and his predecessor-in-title and the material on record consistently establish and lead to the unmistakable conclusion that the petitioner was the owner of the subject land and that the same was approved / used / utilized / reserved for residential purposes and consequently, in the absence of any material whatsoever to establish that the HDMC had any manner of right, title, interest or possession over the subject land, the impugned Endorsement is not only contrary to the material on record, but also violative and runs counter to orders passed by this Court upholding the claim of the petitioner and his predecessor-in-title.
17. In this context, it is relevant to state that the earlier orders passed in various litigations upholding the claim of the petitioner have attained finality and become conclusive and binding upon the respondents who are estopped from contending otherwise, which is impermissible in law. Under these
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WP No. 113355 of 2015circumstances, the impugned Endorsement at Annexure-AL dated 08.04.2010 issued by the HDUDA deserves to be quashed.
18. A perusal of the impugned Endorsement at Annexure- AQ dated 28.10.2015 will indicate that the HDMC has rejected the claim of the petitioner not only on the ground that the report of the Tahsildar indicates that the subject property stands in the name of the HDMC but also this Court is purported to have rejected the claim of the petitioner in W.P.No.20193/2005. In this context, a perusal of the said order passed by this Court will indicate that rather than rejecting the claim of the petitioner, this Court has in fact upheld the contention of the petitioner that the subject land was reserved / approved / used for residential purpose and that the intimation dated 23.02.2005 by the HDUDA was not an order directing change of land use from residential purpose to a vacant land (garden) and that no order granting permission for change of land use was issued on 23.02.2005.
19. Under these circumstances also, as stated supra, apart from the fact that the material on record clearly establishes that the subject land was owned and possessed by the petitioner and his predecessor-in-title and has been approved / reserved / used for
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WP No. 113355 of 2015residential purpose from 1968 onwards, the said order passed by this Court in W.P.No.20193/2005 can neither be relied upon nor be made the basis to reject the claim of the petitioner and consequently, the impugned Endorsement at Annexure-AQ dated 28.10.2015 deserves to be quashed.
20. Insofar as the impugned entries at Annexure-AM dated 26.01.2010 showing the name of the HDMC in the records of the 4th respondent - ADLR are concerned, a perusal of the said entries will indicate that the name of HDMC are purported to have been inserted pursuant to the aforesaid order dated 02.12.2008 passed by this Court in W.P.No.20193/2005. As stated supra, a perusal of the said order will clearly indicate that the same neither rejects the right, title, interest and possession of the petitioner over the subject land nor does it have the effect of upholding the alleged right of HDMC over the subject property and in the absence of any material whatsoever to show that HDMC had / has any right over the subject property, the impugned Entries at Annexure-AM deserves to be quashed.
21. Insofar as the various contentions urged by the respondents are concerned, a perusal of the same will indicate that
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WP No. 113355 of 2015the same are misconceived and untenable and in the light of the material on record referred to supra and the undisputed facts and circumstances obtaining in the instant case, I am of the considered opinion that the claim of the respondents is clearly barred by the principles of estoppel, acquiescence, abandonment and waiver and none of the contentions urged by the respondents can be accepted. To reiterate the right, title, interest and possession of the petitioner and his predecessor-in-title as well as the fact that the subject property has been reserved / approved / used / utilized for residential purposes / layout has been recognised, affirmed and confirmed not only by the respondents themselves but also by this Court and in the face of such undisputable documents and facts, the impugned Endorsements, Entries etc., deserve to be quashed and necessary directions are to be issued to the respondents.
22. In the result, I pass the following:-
ORDER
(i) Petition is hereby allowed.
(ii) The impugned Entries dated 26.01.2010 at Annexure-AM showing the name of the 3rd respondent - HDMC in the CTS Records of 4th respondent - ADLR are hereby quashed.
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(iii) The impugned Endorsement dated 08.04.2010 at Annexure-AL issued by the 2nd respondent - HDUDA is hereby quashed.
(iv) The impugned Endorsement dated 28.10.2015 at Annexure-AQ issued by the 5th respondent - Assistant Commissioner, HDMC, is also hereby quashed.
(v) The respondents are directed to declare the subject land / property as "residential purpose" and to be used for "residential purpose" and make such appropriate, suitable and necessary corrections in the Outline Development Plan (ODP), CTS records, revenue records, official records etc., within a period of six weeks from the date of receipt of a copy of this order.
Sd/-
JUDGE Srl/Bmc.