Karnataka High Court
Vijayashreepura Kshemabivrudhi vs State Of Karnataka on 3 September, 2018
Equivalent citations: AIRONLINE 2018 KAR 520, 2018 (4) AKR 623
Bench: Chief Justice, R Devdas
1
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2018
PRESENT
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
AND
HON'BLE MR.JUSTICE R.DEVDAS
W.A.NO.4863/2016 AND
W.A.NOS.4864-4915/2016 (GM-RES)
IN W.A.NO.4863/2016
BETWEEN:
VIJAYASHREEPURA KSHEMABIVRUDHI
SANGHA (OKKOOTA) REGD.
NO.286, TEMPLE ROAD
VIJAYASHREEPURA
MANASAGANGOTHRI
MYSORE-570006
REPRESENTED BY ITS PRESIDENT
... APPELLANT
(BY SRI X M JOSEPH AND SRI JOSEPH JAJY, ADVOCATES)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
VIDHANA VEEDHI
BANGALORE-560001.
2
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
2. DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT SECRETARIAT
VIKASA SOUDHA
VIDHANA VEEDHI
BANGALORE-560001
REPRESENTED BY ITS PRINCIPAL SECRETARY.
3. SMT. LEELA TRIPURA SUNDARAMANNI
DAUGHTER OF LATE K B RAMACHANDRA RAJE URS
AGED ABOUT 52 YEARS
RESIDENT OF HOUSE NO.22/1
"LEELA VIHAR" VINOBHA ROAD
JAYALAKSHIMI ROAD
MYSORE-570012.
4. SMT.DEPA MALINI
DAUGHTER OF LATE K B RAMACHANDRA RAJE URS
AGED ABOUT 49 YEARS
RESIDENT OF HOUSE NO.954/5
"KALPANA" DIWAN'S ROAD
LAKSHMIPURAM
MYSORE-570004.
5. SMT KEERTHI MALINI
DAUGHTER OF LATE K B RAMACHANDRA RAJE URS
AGED ABOUT 46 YEARS
RESIDENT OF "GAYATHRI VIHAR"
BELLARY ROAD
BANGALORE-560080.
6. SRI CHADURANGA KANTHA RAJE URS
SON OF LATE K B RAMACHADNRA RAJE URS
AGED ABOUT 43 YEARS
RESIDENT OF HOUSE NO.22/1/
"LEELA VIHAR" VINOBHA ROAD
JAYALAKSHIMI ROAD
MYSORE-570012.
7. MYSORE URBAN DEVELOPMENT AUTHORITY
J L B ROAD
3
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
MYSORE-570005.
REPRESENTED BY ITS COMMISSIONER.
... RESPONDENTS
(BY SRI S.S.MAHENDRA, AGA FOR R1 AND R2
SMT.GEETHADEVI M.PAPANNA, ADVOCATE FOR R3, R5, & R6
SRI SAMPATH ANAND SHETTY, ADVOCATE FOR R4
SRI T.P.VIVEKANANDA ADVOCATE FOR
SRI P.S.MANJUNATH, ADVOCATE FOR R7)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED
IN THE WRIT PETITION 13020/16 C/W WP 29755-806/16 DATED
06.12.2016.
IN W.A. NOS.4864-4915/2016
BETWEEN:
1. SUDHAKAR RAI S.
S/O LATE S.NARAYANA RAI
AGED 63 YEARS
NO.38, VIJAYSHREEPURA
MYSORE-570 006.
2. VAJRA VELU A
S/O AYYAVOO CHITTIER S.
AGED ABOUT 58 YEARS
NO.36, VIJAYASHREEPURA
MYSORE-570 006.
3. KOMALA P.
W/O LATE B.NAGAMAIAH
AGED ABOUT 60 YEARS
NO.141, 13TH CROSS
TEMPLE ROAD
VISHVESHWARAIAH LAYOUT
MYSORE-570008.
4
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
4. M.C.CHIDANANDA
S/O LATE CHIKKAGANGAPPA
AGED ABOUT 52 YEARS
NO.21D/80, VIJAYASHREEPURA
MYSORE-570 006.
5. BASAVARAJU K.C.
S/O LATE CHIKKAIAH K.
AGED ABOUT 42 YEARS
NO.17A-80, VIJAYASHREEPURA
MYSORE-570 006.
6. GIRIJA BAI
AGED ABOUT 54 YEARS
D/O SRI AMBAJI
NO.94, VIJAYASHRIPURA
MYSORE-570 006.
7. LOGANATHA T.R.
S/O T.N.RAMASWAMY IYER
AGED ABOUT 73 YEARS
NO.21A/AT, VIJAYASHREEPURA
MYSORE-570 006.
8. SHOBHA J.NAYAK
W/O LATE S.J.NAYAK
AGED ABOUT 59 YEARS
NO.65, VIJAYASHREEPURA
MYSORE- 570006.
9. MANJULA B.V.
W/O B.P. VENKATA SWAMY
AGED ABOUT 65 YEARS
NO.28/80, VIJAYASHREEPURA
MYSORE-570006.
10. NAGARAJU K.S.
S/O SOMAPPA
AGED ABOUT 52 YEARS
NO.21C/80, VIJAYASHREEPURA
MYSORE-570006.
5
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
11. RAMEGOWDA H.J.
S/O JOGIGOWDA
AGED ABOUT 65 YEARS
NO.6/80, VIJAYASHREEPURA
MYSORE-570006.
12. BOLALINGAIAH L
S/O LATE LINGEGOWDA
AGED ABOUT 66 YEARS
NO.32/80, VIJAYASHREEPURA
MYSORE-570006.
13. NAGARAJA. R.V.
S/O VENKATAKRISHNAPPA
AGED ABOUT 72 YEARS
NO.32/80, VIJAYASHREEPURA
MYSORE-570006.
14. SHOBA.H
W/O B.S. JAVARAPPA
AGED ABOUT 52 YEARS
NO.23/80, VIJAYASHREEPURA
MYSORE-570006.
15. DASHARATH RAO T.L.
SON OF NARAYANA RAO
AGED ABOUT 62 YEARS
NO.80/84, VIJAYASHREEPURA
MYSORE-570006.
16. ASHWIN
SON OF NAGAMADAIAH B.
AGED ABOUT 30 YEARS,
NO.141, VIJAYASHREEPURA
MYSORE-570006.
17. MURTHY K.H.L.N.
S/O LATE K.M.HIRIYANNA
AGED ABOUT 57 YEARS
NO.19/A, VIJAYASHREEPURA
6
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
MYSORE-570006.
18. MANJEGOWDA H.N.
S/O NANJEGOWDA B.
AGED ABOUT 56 YEARS
NO.520, VIJAYASHREEPURA
MYSORE-570006.
19. GOWRAMMA M.K.
W/O BHEEMAIAH P.S.
AGED ABOUT 67 YEARS
NO.39/34, VIJAYASHREEPURA
MYSORE-570006.
20. UMA
W/O H.N. KESHAVA MURTHY
AGED ABOUT 60 YEARS,
NO.182, VIJAYASHREEPURA
MYSORE-570006.
21. VITTAL RAO K.G.
S/O K.GOPAL RAO
AGED ABOUT 53 YEARS
NO.19C/80, VIJAYASHREEPURA
MYSORE-570006.
22. ANUSUYA DHARMAKUMAR
W/O DHARMAKUMAR
AGED ABOUT 60 YEARS
NO.149, VIJAYASHREEPURA
MYSORE-570006.
23. SUMATHI
D/O SADASHIVA
AGED ABOUT 40 YEARS
NO.23, VIJAYASHREEPURA
MYSORE-570006.
24. ANANTHASWAMY H
S/O HANUMANTHUSA
AGED ABOUT 54 YEARS
7
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
NO.7/80 (429), VIJAYASHREEPURA
MYSORE-570006.
25. BHIMAIAH P.S
S/O LATE SUBBAIAH P.N
AGED ABOUT 70 YEARS
NO.34, VIJAYASHREEPURA
MYSORE-570006.
26. DAKSHAYINAMMA
W/O LATE SHIVALINGAPPA
AGED ABOUT 68 YEARS
NO.16, VIJAYASHREEPURA
MYSORE-570006.
27. THULASI BHAGIRATHI
W/O NAGARAJA RAO
AGED ABOUT 69 YEARS
NO.32B/80, VIJAYASHREEPURA
MYSORE-570006.
28. GAYATHRI SHIVARAM
W/O SHIVARAM M
AGED ABOUT 51 YEARS
NO.90/80, VIJAYASHREEPURA
MYSORE-570006.
29. RAJALAKSHMI DIXIT
W/O LAKKSHMINARAYANA K.H
AGED ABOUT 56 YEARS
NO.91, VIJAYASHREEPURA
MYSORE-570006.
30. NANJUNDAPPA
S/O LATE NINGARAJAPPA
AGED ABOUT 59 YEARS
NO.14A/80, VIJAYASHREEPURA
MYSORE-570006.
31. BHARATH R
S/O RAJEGOWDA
8
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
AGED ABOUT 48 YEARS
NO.20, VIJAYASHREEPURA
MYSORE-570006.
32. NARESH BABU H.
S/O HARIBABU
AGED ABOUT 38 YEARS
NO.26/80, VIJAYASHREEPURA
MYSORE-570006.
33. MANJUNATH BABU.H.
S/O HARIBABU
AGED ABOUT 36 YEARS
NO.26/80, VIJAYASHREEPURA
MYSORE-570006.
34. PRASAD.S
S/O SEETHARAMAIAH B
AGED ABOUT 59 YEARS
NO.20B, VIJAYASHREEPURA
MYSORE-570006.
35. RAMEGOWDA M.
S/O LATE MARILNGEGOWDA
AGED ABOUT 57 YEARS
NO.42, VIJAYASHREEPURA
MYSORE-570006.
36. LEELA H.S.
W/O T.RATNAKAR
AGED ABOUT 49 YEARS
NO.4 & 5, VIJAYASHREEPURA
MYSORE-570006.
37. BRINDADEVI NAIDU S
W/O B.SEETHARAM NAIDU
AGED ABOUT 60 YEARS
NO.70/80, VIJAYASHREEPURA
MYSORE-570006.
9
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
38. VIJAYALAKSHMI RAO K.
S/O LATE A. JAYANTH KUMAR
AGED ABOUT 62 YEARS
NO.19/80, VIJAYASHREEPURA
MYSORE-570006.
39. SHIVASHANKAR G.
S/O LATE V.D. GOVINDARAJU
AGED ABOUT 60 YEARS
NO.529, VIJAYASHREEPURA
MYSORE-570006.
40. JAYARAM P.
AGED ABOUT 58 YEARS
NO.34, VIJAYASHREEPURA
MYSORE-570006.
41. VENKATARAJU P.
S/O NARASARAJU
AGED ABOUT 67 YEARS
NO.22, VIJAYASHREEPURA
MYSORE-570006.
42. SURESH RAJU P.
S/O P. VENKATARAJU
AGED ABOUT 55 YEARS
NO.28, VIJAYASHREEPURA
MYSORE-570006.
43. GEETHA S.N.
W/O NARASIMHARAJU
AGED ABOUT 55 YEARS
NO.63, VIJAYASHREEPURA
MYSORE-570006.
44. CHINNABBARAJU
S/O LATE NARAYANA RAJU
AGED ABOUT 65 YEARS
NO.51, VIJAYASHREEPURA
MYSORE-570006.
10
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
45. MANJULA K.N.
W/O S. GOPALARAJU
AGED ABOUT 55 YEARS
NO.38, VIJAYASHREEPURA
MYSORE-570006.
46. LAKSHMI N.G.
W/O K.L.PRAKASH
AGED ABOUT 45 YEARS
NO.19, VIJAYASHREEPURA
MYSORE-570006.
47. SHANKAR B.
S/O C.BASAVANNA
AGED ABOUT 55 YEARS
NO.9/80, VIJAYASHREEPURA
MYSORE-570006.
48. SUNANDA M.
W/O MAHADEVAMURTHY
AGED ABOUT 63 YEARS
NO.04, VIJAYASHREEPURA
MYSORE-570006.
49. INDIRA M.
W/O MUDDANAGU
AGED ABOUT 49 YEARS
NO.01, VIJAYASHREEPURA
MYSORE-570006.
50. ASHOKA KUMAR V.A.
S/O LATE M.V. ASHWATHAIAH SETTY
AGED ABOUT 61 YEARS
NO.48, VIJAYASHREEPURA
MYSORE-570006.
51. SADANANDA RAO S.N.
S/O LATE S.B. NARAYANA RAO
AGED ABOUT 53 YEARS
NO.7A/80, VIJAYASHREEPURA
MYSORE-570006.
11
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
52. NAGARATHNA
W/O K. SUBBARAO
AGED ABOUT 50 YEARS
NO.26/A, VIJAYASHREEPURA
MYSORE-570006.
SENIOR CITIZEN BENEFIT IS NOT CLAIMED
REGARDING APPELLANTS NO.1, 3, 7, 9, 11,
12, 13, 15, 19, 20, 25, 26, 27, 37, 38, 39, 41,
44, 48 & 50.
...APPELLANTS
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS CHIEF SECRETARY
VIDHANASOUDHA, VIDHANA VEEDHI
BENGALURU- 560001.
2. DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT
VIKASA SOUDHA
BENGALURU- 560001.
REPRESENTED BY ITS PRINCIPAL SECRETARY.
3. MYSORE URBAN DEVELOPMENT AUTHORITY
J.L.B. ROAD
MYSORE-570005.
REPRESENTED BY ITS COMMISSIONER.
4. SMT. LEELA TRIPURA SUNDARAMANNI
DAUGHTER OF LATE K.B.RAMACHANDRA RAJE URS
AGED ABOUT 52 YEARS
RESIDENT OF HOUSE NO.22/1/
"LEELA VIHAR" VINOBHA ROAD
JAYALAKSHIMI ROAD
MYSORE-570012.
5. SMT. DEPA MALINI
DAUGHTER OF LATE K.B.RAMACHANDRA RAJE URS
12
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
AGED ABOUT 49 YEARS
RESIDENT OF HOUSE NO.954/5
"KALPANA" DIWAN'S ROAD
LAKSHMIPURAM
MYSORE-570004.
6. SMT.KEERTHI MALINI
DAUGHTER OF LATE K.B. RAMACHANDRA RAJE URS
AGED ABOUT 46 YEARS
RESIDENT OF "GAYATHRI VIHAR"
BELLARY ROAD
BENGALURU - 560080.
7. SRI CHADURANGA KANTHA RAJE URS
S/O LATE K.B.RAMACHANDRA RAJE URS
AGED ABOUT 43 YEARS
RESIDENT OF HOUSE NO.22/1/
"LEELA VIHAR" VINOBHA ROAD
JAYALAKSHIMI ROAD
MYSORE-570012.
....RESPONDENTS
(BY SRI S.S.MAHENDRA, AGA FOR R1 AND R2
SMT.GEETHADEVI M.PAPANNA, ADVOCATE FOR R4, R6 & R7
SRI SAMPATH ANAND SHETTY, ADVOCATE FOR R5
SRI T.P.VIVEKANANDA ADVOCATE FOR
SRI P.S.MANJUNATH, ADVOCATE FOR R3)
THESE WRIT APPEALS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED
IN THE WRIT PETITION 13020/16 C/W WP 29755-806/16 DATED
06.12.2016.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR ORDERS, THIS DAY R.DEVDAS J., DELIVERED THE
FOLLOWING:
13
W.A.No.4863/2016 and
W.A.Nos.4864-4915/2016
JUDGMENT
The appellant-Association is in appeal assailing the order of learned Single Judge in a batch of writ petitions, namely W.P.No.13020/2016 and W.P.Nos.29755-29806/2016.
2. The case on hand has a checkered history. The members of the appellant-Association claim to be occupants of plots/houses in a portion of Sy.No.1 of Vijayashreepura in Mysore. The Government of Karnataka acquired about 94 acres and 28 guntas of land by preliminary Notification dated 21.6.1985, under Section 16(1) of erstwhile City of Mysore Improvement Act, 1903 (hereinafter referred to as '1903, Act'). The City Improvement Trust Board (hereinafter referred to as 'CITB') was later succeeded by the Mysore Urban Development Authority (hereinafter referred to as 'MUDA'). From out of the acquired land, 55 acres was allotted on 26.09.1988 to JSS Mahavidyapeeta (hereinafter referred to as 'JSS'). The allotment made in favour of JSS was challenged in W.P.No.14726/1994. Whereas, about 23 persons claiming as tenants had filed applications under the provisions of the Karnataka Land Reforms (Amendment) Act, 1973, to the extent of 96 acres in Sy.No.1 of Vijayashreepura village. The Land Tribunal conferred occupancy rights on the applicants and those orders were assailed in W.P.No.17533/1981. 14
W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 The writ petitions were allowed and the orders of the Land Tribunal were set-aside, however the matters were remanded to the Tribunal for fresh consideration. In the meanwhile, Sri. K.B.Ramachandre Raje Urs, who claimed to be the landlord, filed W.P.No.14726/1994 challenging the acquisition Notifications and sought for a declaration that the 'scheme' for the land which was acquired had lapsed.
3. The petitioners contend that since several unauthorized constructions were found in Sy.No.1, the MUDA issued a Notification dated 09.01.1989 inviting applications for regularization of the dwelling houses. Since the applications for regularization remained unconsidered, some of the occupants filed writ petitions in W.P.Nos.3486-3487/1991 and W.P.Nos.24210-24230/1990. Those petitions were disposed of on 02.02.1993 directing the authorities to consider the applications on merits by protecting the occupations till consideration.
4. In the meanwhile, the Land Tribunal rejected the applications on the ground that the land in question was Government kharab land and not tenanted. Order of the Tribunal dated 14.05.1999 was challenged in W.P.No.17918/1999, by the applicants, while Sri. K.B.Ramachandra Raje Urs filed W.P.No.22254/1999 assailing the findings of the Tribunal which had held that the land is 15 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 Government kharab land. By order dated 03.01.2007, W.P.No.22254/1999 filed by the landlord Sri.K.B.Ramachandra Raje Urs came to be allowed. The learned counsel appearing for the legal representative of Sri. K.B.Ramachandra Raje Urs submits that the order dated 03.01.2007 has attained finality. On the other hand, the appeal filed by the tenants in W.A.No.1654/2008 came to be dismissed by this Court on 17.03.2016.
5. The appellants contend that while the proceedings were pending before this Court, the process for regularization of unauthorized constructions and occupations were undertaken by collecting fee and municipal taxes. This forms the basis for the appellants contention that they should not be treated as encroachers on the land. It is pertinent to note that a public interest litigation in W.P.No.23429/1998 was also filed seeking a direction to the State Government to protect the land since it is Government kharab land. The ultimate effort of the appellants is to prove that Sy.No.1 of Vijayashreepura, Mysore is a Government land and the appellants as well as others who are similarly situated, being occupants of the said land are entitled to continue as the process of regularization had been undertaken couple of decades ago. It is the specific allegation of the appellants that the policy decisions taken by the State Government to 16 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 regularize the unauthorized occupation and constructions was never under challenge before any Court of law. In reply to the demand notices issued by MUDA, many of the occupants have paid the demanded development levy and regularization fee.
6. In the meanwhile, the judgment and order in Writ Appeals No.4001-4002, 6137-56, 6910-39/2001 and 3525/2002, regarding regularization of unauthorized constructions was taken up before the Hon'ble Supreme Court. The private respondent herein who was the appellant before the Hon'ble Supreme Court contended that the entire process of acquisition is contrary to the provisions of the City of Mysore Improvement Act, 1903 since the preliminary Notification was issued even prior to the publication of a scheme which is a condition precedent to the issuance of Notification under Section 16(1) of the 1903, Act. The original records containing the scheme as framed and the communications and correspondence was called for by the Hon'ble Supreme Court. The affidavit of the Chief Secretary to the State of Karnataka admitted to the fact that the record was destroyed during the pendency of the case. The Hon'ble Supreme Court has taken note of the findings of the learned Single Judge and coupled with the absence of any positive material to show that a scheme as framed had existed at the relevant point of time, categorically 17 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 concluded that there was clear infringement of the mandatory requirement under Section 18 of the 1903, Act. Their Lordships noticed that even before the Notification under Section 16(1) of the 1903, Act was published in the gazette, the Board had passed a resolution allotting 55 acres of land to JSS, out of 94 acres 28 guntas. Their Lordships though held that the mandatory provisions of 1903, Act had been breached in the process of acquisition, exercised their discretion to balance the equity and moulded the relief. It was eventually directed that the land vacant as on the day of the judgment of the Hon'ble Supreme Court and all such lands under encroachments, after being made free therefrom, may be retained by MUDA for developmental work inconsonance with the object of 1903, Act and the owner thereof shall be entitled to compensation in terms of the directions that followed.
7. The Hon'ble Supreme Court took note of the fact that the claim regarding grant of occupancy rights made by the tenants in respect of the entire land of 94 acres 28 guntas, though rejected by the Land Tribunal, the matter was pending before this Court in W.A.No.1654/2008. The JSS was directed to surrender to MUDA a compact area of a minimum of 15 acres. It was further directed that MUDA, after taking possession of the 15 acres should return the said 18 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 land to person/persons entitled to receive such possession depending upon the outcome of W.A.No.1654/2008. With respect to 40 acres of land which was allowed to be retained by JSS, it was directed that compensation to the person/persons entitled to receive such compensation under the Land Acquisition Act, will follow the outcome of W.A.No.1654/2008.
8. The appellants herein, after the disposal of the above matter, filed I.A.Nos.58-115/2016 before the Hon'ble Supreme Court in Civil Appeal Nos.7372-7428/2004. Those applications came to be dismissed by order dated 16.08.2016. However, it was observed that the dismissal of I.As will not affect the merits of the writ petitions and such other proceedings as may have been initiated by the applicants.
9. Heard Sri. X.M.Joseph, learned counsel for the appellants, Sri. S. S. Mahendra, learned Additional Government Advocate for the State of Karnataka, Sri. T.P.Vivekananda, learned counsel for MUDA and Smt. Geethadevi M Papanna, learned counsel for respondents No.3, 5 and 6, landlords.
10. Since the respondents have raised the question of locus standi of the appellants, res judicata, maintainability, etc., we deem it appropriate to consider the submissions of the respondents on the preliminary issues.
19
W.A.No.4863/2016 and W.A.Nos.4864-4915/2016
11. Smt.Geethadevi.M.Papanna, learned counsel for respondents No.3, 5 and 6 has raised preliminary objections with regard to maintainability of the petition and appeal filed by the appellants, locus standi, identity of the Association, delay laches and issue estoppel.
12. On the question of maintainability, the learned counsel has argued that the prayers made in writ petitions from which these appeals arise make it clear that the petitioners/appellants are seeking a roving enquiry regarding title of the land in question. It is, therefore, the submission of learned counsel that the writ petitions were not maintainable. In writ proceedings, disputed question of facts cannot be gone into. The learned counsel would submit that a petition for writ lies only when there is infringement of legal right already existing in the petitioner. The factual matrix clearly demonstrates that there is no existing legal right in favour of the appellants herein.
13. One of the prayer in the petition is to consider formulating an exclusive scheme to regularize the unauthorized constructions on the land in question. The learned counsel has contended that this prayer sufficiently demonstrates the factual and legal position of the appellants that they are unauthorized occupants and their occupations or constructions put up on the land were never regularized. On the 20 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 one hand, the appellants claim that by collecting the fee, the concerned authorities have regularized their occupations and on the other hand, the appellants are seeking directions to the official respondents to regularize or formulate an exclusive scheme to regularize their occupations.
14. On the question of locus standi, the learned counsel has submitted that the petitioners/appellants never stated as to how they came in possession of the land in question. Since petitions were filed by many of the unauthorized occupants, in each of the case, the petitioners have made contradictory statements as regards the manner of acquisition or occupation. Some of them claim to have acquired title through the successors of the Maharaja of Mysore, who acquired the lands way back in the year 1899. Some others claim to have been put in possession by the landlords and few others claim through the 23 tenants under the landlords. Learned counsel would submit that the petitioners/appellants had been fence-sitters and now, that the claim of the 23 tenants stands dismissed vide order dated 17.03.2016, passed by this Court in W.A.No.1654/2008, all persons claiming as tenants or under those tenants have no legs to stand. The learned counsel has pointed out that in the I.A. filed before the Hon'ble Supreme Court, the petitioners/appellants claim that they had 21 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 purchased properties from the landlord. If that be the position, according to the learned counsel, the petitioners/appellants cannot seek regularization.
15. As regards identity of the appellant-Association, the learned counsel has contended that petitions have been filed before this Court in various names such as - Vijayashreepura Kshemabivrudhi Okkoota, Vijayashreepura Kshemabivrudhi Federation, Vijayashreepura Kshemabivrudhi Sangha (Okkoota), Vijayashreepura Residential Welfare Association, etc. Contradictory and self serving statements with regard to number of unauthorized occupants, unauthorized constructions are made in all these petitions. Same persons have pursued litigation claiming to be members of more than one Association. Learned counsel would submit that the petitioners/appellants have taken this Court for a ride and this litigation is gross abuse of the process of this Court.
16. The learned counsel has further submitted that the instant petition is hit by the principles of issue res judicata. Having suffered once in a particular writ petition, the same persons have disguised themselves hiding behind a so-called 'different Association'. However, since all the petitioners stand on the same footing, the decision rendered by this Court in one case is applicable to all other persons 22 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 similarly placed. The petitioners/appellants should not be allowed to misuse the process of this Court. The learned counsel has pointed out that the learned Single Judge has taken note of the judgments of the Hon'ble Supreme Court in the case of Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and another reported in (1999) 5 SCC 590 and Dr.Subramanian Swamy Vs. State of Tamil Nadu and others reported in (2014) 5 SCC 75.
17. Learned counsel Sri. T. P. Vivekananda, appearing for MUDA, has also raised similar objections. The learned counsel has submitted that the appellant-Association was the petitioner in W.P.No.6879/1994. He has further pointed out that one Narayan P. Nayak is the signatory to the affidavit in W.P.No.6879/1994 and W.P.No.4831/2000. The appellants have not disclosed that they had filed W.P.No.6879/1994 and W.P.No.4831/2000. The learned counsel would submit that the appellants are guilty of suppression of material facts and, therefore, the petition filed by the appellants herein deserves to be dismissed on the ground of suppression of material facts and on the principles of res judicata. The learned counsel has contended that in the name of different Associations, the persons, whose names were never furnished to this Court, the appellant and its members have misused the process of this Court. 23
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18. Learned counsel Sri.X.M.Joseph, appearing for the petitioners/appellants, on the question of maintainability, has not disputed that the appellant-Association is also the petitioner in W.P.No.6879/1994. However, according to the learned counsel, the petitioner-Association in the other petitions are not the same as the petitioner-Association in this matter. The learned counsel is unable to substantiate on facts that the members comprising the appellant- Association are different from the other Associations.
19. On the question of res judicata and issue estoppel, Sri.X.M.Joseph would submit that the title to the land in question is not finally determined by any Court of law, till date. He would submit that neither regularization was an issue raised nor finally decided in any earlier proceedings; and that the decision in W.P.No.6879/1994 does not operate as res judicata since the decision applies only to the second petitioner therein, i.e. Sri. Narayan P.Nayak.
20. The learned counsel seeks to justify his submissions on the ground that the said Narayan P. Nayak was the only person who lost out on his site in the process of shifting/relocating displaced occupants and he had joined the other members in those writ petitions. It is submitted that the said Narayan P. Nayak withdrew from the membership of the appellant-Associations. It is pointed out 24 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 that a memo is filed in W.P.No.13020/2016 to confine the final order only in respect of persons named in Annexure-N.
21. On the question of locus standi, the learned counsel has argued that the appellants were never parties to any of the proceedings touching the issue of regularization. According to the learned counsel, material facts were suppressed before this Court and the Hon'ble Supreme Court, which misled the Hon'ble Supreme Court to conclude that the occupants were encroachers and were consequently directed to be removed. It was further submitted that the subject land is a State property-Government land; and the respondent State is duty bound to protect State property under Article 51-A(i) and prevent loss to the exchequer. It is his submission that the appellants have a right to regularization of their dwelling houses built on Government land and any denial of such benefit would infringe Article 14 of the Constitution of India. The learned counsel has further submitted that the orders/directions issued by the Hon'ble Supreme Court in Civil Appeal Nos.7372-7428/2004 is the cause for the present writ proceedings. Since the appellants are aggrieved persons, they have locus standi to maintain the present writ petition. 25
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22. On a comprehension of the writ petitions filed by the occupants, either individually or in the name of different Associations, in relation to the land in question, we find that :
(a) In W.P.No.6879/1994, by order dated 09.01.1998, the petition was dismissed holding that assurance given in the aforesaid orders appears to be only to the owners of the 'revenue sites' and not to unauthorized occupants. It was also observed that dismissal of the writ petition will not come in the way of owners of the sites in pursuing their remedies individually.
(b) In W.P.No.35558-572/1993, disposed of on 30.06.1998, the prayer for regularization of unauthorized occupation was not acceded to and the petitioners were directed to approach the civil Court for declaration of title or possession.
(c) In W.P.No.15209-15269/2000, where again regularization was sought, while dismissing the petition on 28.05.2001, observation was made that since this Court in W.P.No.31449/1994 has quashed the public notice issued by MUDA and had held that regularization defeats the purpose for which the land was acquired, the prayer for regularization was rejected.
(d) In W.P.No.9203-9224/2000, by order dated 28.05.2001, the prayer for regularization was rejected on the ground that section 4(viii) of 1991, Act precludes regularization of unauthorized constructions. W.P.No.4831/ 2000, where direction was sought to MUDA for allotment of alternate land of 11 acres 32 guntas, stood dismissed for non-prosecution, by order dated 04.09.2002.
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(e) Although, in W.A.No.4001/2001 and connected matters (arising out of W.P.No.15209-269/2000 and W.P.No.9203-224/2000) disposed of on 08.04.2004, liberty was granted to the petitioners to make appropriate representations to the concerned authority for regularization and the authority was directed to dispose of such applications in accordance with law, it is submitted that in view of the judgment of the Hon'ble Supreme Court in Civil appeals No.7372-7428/2004, regularization at this point of time cannot be done.
23. We have also heard arguments on merits of the matter. The crux of the arguments on behalf of the appellants has been that the land in question is a Government land and that the State Government and MUDA have initiated the process of regularization of the house-sites and constructions way back in the year 1986, followed by subsequent Government order dated 27.09.1990. Although, a faint effort is made by the appellants to substantiate their contentions that by collecting the requisite fee, the State Government and its authorities have regularized the constructions and/or house- sites, they have betrayed this position by the very fact that the appellants and the occupants who were the petitioners in the writ petitions have consistently sought for mandamus and directions for regularization. There is no doubt that the unauthorized occupation 27 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 of land and the constructions thereon remain without being regularized, as on date.
24. The primary contention that the land in question is Government land and not belonging to the private respondents herein, was a question that was left open by the Hon'ble Supreme Court, in view of the pendency of W.A.No.1654/2008. The entitlement of compensation was, accordingly, left open to be dependent upon the outcome of the said writ appeal. Now that W.A.No.1654/2008 stands decided in favour of the land owners, the claim of the appellants that the land in question is State property stands answered against the appellants.
25. The contention of the learned counsel for the appellants is that the land in question is a Government property and therefore, it is the bounden duty of the State Government to protect the land in question, and this forms the basis for the claim of the appellants herein for seeking regularization. As noted earlier, the Hon'ble Supreme Court, had left this question open to be decided in W.A.No.1654/2008. The said W.A.No.1654/2008 and connected matters were decided on 17.03.2016. Those appeals were filed by 23 tenants or their legal representatives who claimed that 96 acres in Sy.No.1 of Vijayashreepura, in bits and pieces, were tenanted 28 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 agricultural lands through their ancestors. Separate applications in Form No.7 were filed before the Land Tribunal, Mysore, for grant of occupancy rights. The land Tribunal had initially granted occupancy rights, but on remand, held that the lands belonged to the State Government since they were kharab lands and the landlords (K.B.Ramachandra Raje Urs and his legal representatives) are not the owners of the property, but rejected the claim for grant of occupancy rights on the ground that the tenants failed to prove that they were cultivating the lands as tenants as on 01.03.1974. Both the landlords and tenants challenged the order dated 14.05.1999 passed by the Land Tribunal. While W.P.No.17918/1999 was filed by the tenants, W.P.No.22254/1999 was preferred by the landlords. By a common judgment dated 03.01.2007, the learned Single Judge upheld the rejection of applications for grant of occupancy rights, while holding that the Tribunal was in error in concluding that the land belongs to State Government and the same is a kharab land. Assailing the order of the learned Single Judge, 23 tenants filed W.A.No.1654/2008 and W.A.Nos.2180-2201/2008.
26. The question that fell for consideration before the co- ordinate Division Bench was whether the land in question is a kharab land belonging to the State Government and whether the persons 29 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 claiming as tenants were cultivating the lands as tenants prior to 01.03.1974. The Division Bench has elaborately considered the contentions and documents, starting from the notifications published in Mysore Gazette dated 23.11.1899 and 12.07.1900 for acquisition of land to the extent of 816 acres 15 guntas for the purposes of 'Mysore Palace'. It is noticed that under the gazette notification dated 29.08.1921, the entire extent of 816 acres 15 guntas of land was treated as a separate block and new unit of 'Mysore Palace' called 'Vijayashreepura' was formed. The entire land was acquired for being used and utilized for bungalows, quarters, palace, chow- sheds and for other non-agricultural purposes. The flow of title to the present landlords has been narrated in the judgment. After elaborate consideration of the material on record, it was concluded that the land in question does not belong to the State Government. The land in question lost its character as agricultural land since 1899. The land in question was never assessed to land revenue after its acquisition in the year 1899-1900. This Court also held that the applicants failed to produce any evidence to substantiate their contention that they were tenants under the landlords at any point of time and much less before 01.03.1974. It was held that the record of rights produced by the tenants did not reflect the names of the 30 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 tenants. It was also held that as on 1899-1900, Maharaja of Mysore was ruling the Princely State of Mysore and he was head of the State and consequently, the name of the State/Mysore Palace appear in the records.
27. In view of the above, it is crystal clear that the land in question was never kharab land or Government land from the time of its acquisition in the year 1899-1900. Hence, the entire foundation for regularization, is knocked to the ground. It is also clear that as on the date the occupation of bits and pieces of land by the occupants is unauthorized. Section 4 of the Karnataka Regularization of Unauthorized Constructions in Urban Areas Act, 1991, (hereinafter referred to as 'Act, 1991') enlists unauthorized constructions which shall not be regularized. Section 4(v) provides that unauthorized constructions made by any persons on the land belonging to another person over which the former has no title, shall not be regularized. Similarly, Section 4(viii) provides that unauthorized constructions made on land belonging to or vested in any authority or a local authority shall not be regularized.
28. The decision in W.A.No.1654/2008 and connected matters is held in favour of the respondent landlords. Therefore, Section 4(v) of the Act, 1991 precludes regularization of unauthorized 31 W.A.No.4863/2016 and W.A.Nos.4864-4915/2016 constructions in favour of the appellants herein since the land belongs to the other person (i.e. landlord herein) while Section 4(viii) also precludes regularization since the land is vested in MUDA as on 29.04.1988 when the final notification was issued by the State Government under Section 18(1) of the City of Mysore Improvement Act, 1903. On both these counts, the unauthorized constructions put up by the appellants cannot be regularized.
29. Before concluding, we deem it necessary to observe that the unauthorized occupants have invoked the extraordinary jurisdiction of this Court in the name of various 'Associations'. Though the prayer for regularization has been rejected in more than one batch of writ petitions, it is evident that several other petitions are again filed, seeking the same relief. The unauthorized occupants of the land in question cannot be allowed to run riot in this manner. There is no gainsaying that there has to be finality to every litigation. Hence, the decision taken herein shall apply to all the persons and Associations representing such persons, who claim to be in possession of any portion of the land in question.
30. Since no contentious questions of law arise for decision making in these petitions, it does not appear necessary to elaborate upon any of the decisions cited by either of the parties. 32
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31. For the reasons stated above, these appeals deserve to be, and are, dismissed. All interlocutory applications do not remain for consideration and are therefore disposed of. No costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE DL/JT