Karnataka High Court
Basava Colony Abhivrudhi Samiti vs The State Of Karnataka on 5 March, 2020
Author: Abhay S. Oka
Bench: Abhay S. Oka
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH 2020
PRESENT
THE HON'BLE MR. ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.58652 OF 2015 (GM-RES) PIL
BETWEEN:
BASAVA COLONY ABHIVRUDHI SAMITI
BAUXITE ROAD,
BELAGAVI
REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE
Y.R.PATIL, IPS(R), AGED ABOUT 69 YEARS
INSPECTOR GENERAL OF POLICE, KARNATAKA,
R/O 2ND MAIN, 1ST CROSS, BASAVA COLONY,
NEHRU NAGAR,
BELAGAVI - 590001. ...PETITIONER
(BY SRI. KSHAMA NARGUND BANAVATHY, ADVOCATE FOR
SRI. SONA VAKKUND, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY TO GOVT. OF
HOUSING AND URBAN DEVELOPMENT DEPT.
M.S.BUILDING,
BENGALURU - 560 001.
2. THE DY.COMMISSIONER
BELGAUM DISTRICT,
BELAGAVI - 590 002.
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3. THE CITY CORPORATION OF BELGAUM BY ITS
COMMISSIONER,
BELAGAVI - 590 002.
4. THE BELGAUM URBAN DEVELOPMENT AUTHORITY
BELGAUM BY ITS COMMISSIONER,
BELAGAVI - 590 002.
5. THE UNION OF INDIA REPRESENTED BY ITS
MINISTRY OF DEFENCE,
NEW DELHI - 110 001.
6. THE STATION COMMANDER
MARATA LIGHT INFANTRY
REGIMENT CENTRE,
BELAGAVI - 590 001. ....RESPONDENTS
(BY SRI. VIJAYKUMAR A PATIL, AGA FOR R-1 AND R-2
SRI. SUMANA BALIGA M, ADVOCATE FOR R-3
SRI. NIRANJAN KUMAR, ADVOCATE FOR R-4
SRI. L V APARNA, ADVOCATE FOR R-5 AND R-6
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT
THE RESPONDENTS TO PROVIDE CONNECTING ROAD
BETWEEN OLD NH TO KLE HOSPITAL BELAGAVI VIDE
ABBEXURE-L DATED 15.02.2014.
THIS WRIT PETITION COMING ON FOR FINAL HEARING
THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER
Heard learned counsel appearing for the petitioner, the learned AGA for respondent No.1 & 2 and the learned counsels appearing for the third, fourth, fifth and sixth respondents. -3-
2. The only prayer in this writ petition under Article 226 of the Constitution of India is in terms of the prayer to clause (1) which reads thus :
"1. Issue a writ, order or direction directing the respondents to provide connecting road between old NH to KLE hospital, Belgaum, produced as Annexure- L dated 15.2.2014"
3. The case of the petitioner is that, it is a Welfare Organisation of Basava Colony and it is taking active steps to provide basic amenities to the residents of the colony. It is submitted that the Comprehensive Development Plan (CDP) of 1996 provided for connecting the road between National Highway and KLE hospital which was passing through land in R.S. No.1350 of Belgaum. Reliance is placed on the extract of the CDP of 1996. It is pointed out that the petitioner had filed a writ petition No.21666 of 1999 seeking a writ of mandamus against the present fifth and sixth respondents directing them to hand over the road passing from National Highway No.4 to Basava Colony as shown in the CDP. The said writ petition -4- was allowed by order dated 2nd July 999 by a Division Bench of this Court.
4. The Division Bench observed that the roads are to be maintained by the third respondent - Municipal Corporation and therefore, a direction was given to the petitioner to make a representation to the third respondent with a further direction to the third respondent to take appropriate action to maintain the said road as other roads are being maintained by it. A Review Petition was filed by the fifth respondent. By judgment and order dated 8th October 2001 the Review petition was allowed and the writ petition filed by the petitioner was dismissed.
5. In paragraph 4 of the said order, the Division Bench observed that no such road was in existence and that the land referred in the Writ Petition was a defence land belonging to the fifth respondent - Union of India.
6. The case of the petitioner is that thereafter it was making repeated representations to the State Government as well as to the fifth respondent to make a provision for a connecting road. Reference is made to the correspondence -5- between the Authorities. It is further stated that in the CDP of the year 2014-15, the connecting road between National Highway to KLE colony is shown. It is contended that notwithstanding the orders passed by the State Government, fifth and sixth respondents are not responding. It is, however, contended that the land in R.S.No.1350 is not at all belonging to the sixth respondent and therefore, the aforesaid prayer is made which we have quoted above. The petitioner also relied upon an order of the State Government dated 23rd November 2012 which withdraws the Government Order dated 21st May 2000 and directs taking over possession of the area of 722 acres 22 guntas and 13 annas of Turkamatti land which according to the petitioner also includes the land in R.S.No.1350.
7. Statement of objections as well as Additional Statement of objections have been filed by the fifth and sixth respondents in which it is disclosed that virtually for the same relief, the petitioner had filed original suit No.835/2008 which has been dismissed by judgment and decree dated 24th July 2012. It is pointed out that the petitioner has not approached -6- this Court with clean hands as the fact of filing of the suit has been suppressed.
7. The learned counsel appearing for the petitioner has taken us through various documents. According to her on the plan at Annexure-L which is the Master Plan-2021 (Revision II) final for Belgavi Local Planning Area, a road between old National Highway and KLE hospital has been shown. She submitted that after the Review Petition filed by the fifth respondent was allowed, several developments have taken place on which reliance is placed in the petition. She invited our attention to the meeting convened on 29th October 2007 in the office of the Deputy Commissioner of the District in which one Colonel Dannial representing the Defence Department stated that if an extent of 1 acre and 33 guntas of alternate land is given to the Defence Department adjacent to the existing defence lands, the said Department has no objection for formation of the proposed road. She also invited our attention to letter dated 28th February 2012 addressed by the Deputy Commissioner to the Assistant Commissioner, Belagavi directing him to carry out survey and spot inspection. She also -7- invited our attention to the letter dated 17th January, 2012 addressed by the Senior Assistant Commissioner of Belagavi Sub Division to the Deputy Commissioner, Belagavi in which he prayed that direction may be issued to the Military Authorities which will enable construction of road in R.S.No.1350.
8. The learned counsel for the petitioner lastly invited our attention to the Government Order dated 22nd November 2012. She submitted that the said order of the Government is in respect of Turkamatti land which includes the land in R.S.No.1350. She stated that under two notifications, Turkamatti lands were granted to the Army and the period of grant was extended by 20 years by Government Order dated 24th May 2000. She pointed that by order dated 23rd November 2012, the State Government decided to withdraw the order dated 24th May, 2000 and take over Turkamatti land. She further submitted that in view of the subsequent order, the Defence Department has no title over the land in R.S.No.1350. She submitted that the petition is based on events which have occurred even after the dismissal of O.S.No.835/2008. -8-
9. The learned counsel for fifth and sixth respondents opposed the petition. Learned AGA stated that the issue regarding title to the land in R.S.No.1350 may be kept open as the RTC shows that it is a State Government land.
10. We have carefully considered the submissions.
11. Perusal of the order dated 2nd July 1999 passed in the earlier W.P.No.21666/1999 shows that the said writ petition filed by the petitioner was in respect of the very same link road which proceeded on the footing that a road was very much in existence which was not maintained by the third respondent. Therefore, as stated above, a direction was issued to the third respondent to maintain the said road as if it was another road within the City. By order dated 8th October 2001, the Review Petition filed by the Union of India was allowed and the aforesaid writ petition was rejected. Paragraph 4 of the said order in the Review Petition is extracted below :
"4. We have gone through the impugned order. The order proceeds on the basis that a Kachcha road belonging to the corporation is in -9- existence and it is being ill-maintained by the corporation. It is in that view of the matter that the writ petition was allowed and a direction was given to the corporation to form a pucca road. It has now come to light that there is no such road in existence at all and that the land referred to in the writ petition is in fact a defence land belonging to the petitioners and the corporation has got nothing to do with it. In the absence of such a road, there was no basis for this court to allow the writ petition and issue the impugned direction. As allowing the writ petition and the issuance of the impugned direction are based on facts which have now been shown to have never existed, the review petition deserves to be allowed."
(underline supplied)
12. Neither the State Government nor the present petitioner challenged the order passed in the Review Petition. As can be seen in paragraph 2 of the order in the Review Petition, the same related to alleged road passing through the land in R.S.No.1340.
13. Another important aspect which must be noted is that the petitioner had filed the suit bearing O.S.No.835/2008 in the
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Court of the Civil Judge at Belgavi in respect of the same road in which perpetual injunction was claimed against Union of India (fifth respondent) from causing any obstruction to the construction of road in R.S.No.1350. A mandatory injunction was claimed against the Municipal Corporation (third respondent herein) to construct the road as shown in the CDP and maintain the same. Thus, virtually the same relief is claimed in the present writ petition as prayed for in the suit. The application for interim relief of injunction in the said suit was rejected. The appeal against the said order was dismissed and ultimately by the judgment and order dated 24th July 2012, the suit was dismissed in the light of the finding recorded in the Review petition filed by the fifth and sixth respondents that the subject matter was a defence land. In our view, the act of filing of the suit and its dismissal by judgment and order dated 24th July 2012 ought to have been disclosed in this writ petition filed in the year 2015 and it amounts to suppression of material facts. Moreover, in the earlier W.P.No.21666 of 1999, it was claimed that the road was in existence but it was not converted into a permanent road.
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Even the said contention was specifically rejected in the Review Petition filed by fifth and sixth respondents. Thus, initially the petitioner claimed that a road was in existence which was not accepted by this Court. The present petition is on the footing that the road is yet to be constructed. Even this conduct of the petitioner will have to be kept in mind.
14. We have perused Annexure-L which is a coloured copy of the Master Plan 20121 final. In the said copy it is recorded that existing roads are shown by two parallel lines of red colour and proposed roads are shown by two parallel lines red colour dotted lines. Perusal of the plan shows that there is no road shown as either 'existing road' or 'proposed road' connecting 36 meters old NH No.4 to KLE hospital and therefore, even in the said master plan, there is no provision for construction of the said road.
15. The finding recorded in the Review petition is that the land on which it was claimed that a road exists is belonging to the petitioner in the Review Petition viz. Union of India. In fact, the State Government was also a party to the Review Petition
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and the State Government has not chosen to challenge the same. Reliance is placed on a statement made by an Army Officer in a meeting summoned by the Deputy Commissioner that if an alternate land is given, fifth and sixth respondents are ready to surrender the land for the formation of road is of no consequence as it is not shown that the said Officer was authorized to make any such statement on behalf of the fifth respondent.
16. Reliance placed on the Government order dated 23rd November 2012 will not help the petitioner in the light of the binding findings recorded by the Division Bench that the land in R.S.No.1350, over which the road is claimed, is a defence land vesting in the fifth respondent. Unless there is a proper document executed by Union of India to surrender the land in R.S.No.1350, the State Government cannot claim right in respect of it.
17. Therefore, on all the aforesaid grounds, the relief prayed in the petition cannot be granted.
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18. We must also note the argument made by the petitioner that there is no Firing Range in the land in question and therefore, there cannot be cannot be any security issue.
19. When it comes to a land vesting in the Defence Department, there are various types of security constraints which arise out of different reasons. Hence, the said argument is also not helpful to the petitioner.
20. For the reasons which we have recorded above, no relief as prayed for can be granted and the petition is accordingly rejected.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE rs