Karnataka High Court
G. Nijagunaraju @ H.G. Siddaraju vs State Of Karnataka on 17 November, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2023:KHC:41220
WP No. 12688 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
R
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 12688 OF 2020 (LB-RES)
BETWEEN:
G. NIJAGUNARAJU @ H.G. SIDDARAJU
S/O LATE H M GURUMALLAPPA,
AGED ABOUT 52 YEARS,
R/AT 2096, COURT ROAD,
OPPOSITE TO SUB JAIL,
CHAMARAJANAGAR 571313
...PETITIONER
(BY Ms. LATHASHREE B.L. ADVOCATE FOR
SRI. DEEPAK D C.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP BY ITS SECRETARY,
DEPARTMENT OF MUNICIPAL ADMINISTRATION,
VIDHANA SOUDHA,
Digitally signed AMBEDKARVEDHI,
by BANGALORE 560001
NARAYANAPPA
LAKSHMAMMA
Location: HIGH 2. THE COMMISSIONER
COURT OF
KARNATAKA CITY MUNICIPAL COUNCIL,
CHAMARAJANAGAR TOWN,
CHAMARAJANAGAR 571313
(AMENDED AS PER ORDER DATED 11.11.2020)
3. THE MUNICIPAL SECRETARIAT
CHAMARAJANAGAR TOWN,
CHAMARAJANAGAR 571313
...RESPONDENTS
(BY SMT. B.P. RADHA., AGA FOR R1;
SRI. J.N. NAVEEN .,,ADVOCATE FOR
SRI. A. NAGARAJAPPA., ADVOCATE FOR R2 & R3)
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NC: 2023:KHC:41220
WP No. 12688 of 2020
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF MANDAMUS
DIRECTING THE R-1 TO CONSIDER THE REPRESENTATION OF THE
PETITIONER PRODUCED AT ANNEXURE-C AND ETC.
THIS WRIT PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
i) Issue a writ of mandamus directing the 1st Respondent to consider the representation of the petitioner produced at Annexure-C
ii) Issue a writ in the nature of Certiorari by quashing the notice dated 7/10/2020 bearing No. Na.Sa.Cha/C-2/P R/443/2020-
21 and dated 28.09.2020 Na.Sa.Cha/C-2/P R/443/2020-21 issued by respondent No.3 at Annexure-A and B.
iii) Grant such other relief or reliefs as this Hon'ble Court deems fit to grant in the circumstances of the case and award cost of the proceedings, to meet the ends of justice.
2. The petitioner claims to be the absolute owner in possession of property bearing Sy.No.440 measuring 2 Acres 15 guntas situated at Chamrajanagara kasaba village, Chamrajanagara District. The petitioner, wanting to set up a resort on the said -3- NC: 2023:KHC:41220 WP No. 12688 of 2020 land, had obtained conversion of the land from agricultural to non-agricultural purposes on 26.11.2007 as also a plan for construction of a building in the said land. The project being a resort, the petitioner had approached Department of Tourism for necessary approval, which came to be granted on 22.11.2010.
3. In the year 2017, respondent No.3 informed the petitioner that one and a half meters of land would be required for widening the road situated in front of the property abutting Karinanjapura Road. In pursuance of this, discussions were held between petitioner and respondent No.3 for fixing the compensation liable to be paid for the said land. However, without fixing the compensation respondent No.3 issued Annexure- B notice dated 28.09.2020 indicating that the land which has been earmarked for widening of the Karinanjapura Road measuring 306 Sq.mts. would have to be deducted -4- NC: 2023:KHC:41220 WP No. 12688 of 2020 from the Khata which has been issued to the petitioner to the extent of 9611 Sq.mts., following up with a second notice at Annexure A dated 07.10.2020 calling upon the petitioner to come forward and relinquish that extent of 306 Sq.mts. and Khata could be issued for the balance of 9305 Sq.mts. only. The petitioner being aggrieved by the same is before this Court seeking for the aforesaid reliefs.
4. Miss.Lathashree.D.L., learned counsel for the petitioner submits that 4.1 The land might have been earmarked for widening of the existing road in the CDP, procedure under Section 69 of Karnataka Town and Country Planning Act 1961 has not been resorted to and without acquiring the same in terms of sub-section (1) of Section 69 under the Right to Fair Compensation and Transparency in Land Acquisition Act, 2013, there cannot be a demand made by respondent -5- NC: 2023:KHC:41220 WP No. 12688 of 2020 No.3 for relinquishment of the area earmarked for widening of the road free of cost. 4.2 The petitioner continues to be the owner of the said land, as such the Khata which has been issued to the entire extent of land measuring 9611 Sq.mts. being proper and correct, cannot now be reduced on the basis of proposed widening of the road, which infact has not occurred till date.
4.3 Thus, on these grounds she submits that the prayer sought for is required to be granted.
5. Sri.A.Nagarajappa, learned counsel for respondent No.3 submits that 5.1 Though initially there was a negotiation held between the petitioner and respondent No.3 for arriving at the compensation payable, respondent No.3 subsequently came to know about the plan sanction which has been issued, which clearly denoted 306 Sq.mts. for road expansion.
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NC: 2023:KHC:41220 WP No. 12688 of 2020 5.2 The planning authority not having granted a plan sanction in respect of 306 Sq.mts. the petitioner cannot claim a Khata in respect of 9611 Sq.mts. and ought to have restricted it to 9305 Sq.mts and it is in that background that the notice dated 28.09.2020 at Annexure-B and 07.10.2020 at Annexure -A have been issued. 5.3 His submission is that the plan sanction having been granted only in respect of 9305 Sq.mts., the petitioner would be entitled for a Khata only to the extent of 9305 Sq.mts. As the petitioner not having the plan sanctioned in respect of 306 Sq.mts., no Khata can be claimed by the petitioner.
5.4 This plan sanctioned had been suppressed by the petitioner at the time when Khata was issued and as such, respondent No.3 coming to know of such suppression has issued the aforesaid notice. In that background he -7- NC: 2023:KHC:41220 WP No. 12688 of 2020 submits that above petition is required to be dismissed.
6. Smt.Lathashree.D.L., learned counsel for petitioner and Sri.A.Nagarajappa, learned counsel for respondent No.3 and perused the papers.
7. The short question that has arisen for consideration in the present matter is whether "Merely on account of the planning authority earmarking an extent of land for widening of an existing road or in this case specifically stated as road expansion, can the Municipal Corporation contend that the area denoted or reserved for widening of the road is not the property of the land owner and thereby reduce the extent of land mentioned in the Khata already issued?"
8. It is not in dispute that the petitioner is the owner of the land bearing Sy.No.440 measuring 2 Acres 15 guntas situated at Chamrajanagara kasaba village, Chamrajanagara District, which had been converted for non agricultural purposes. The said 2 Acres 15 guntas translates to 9611 Sq.mts. which is also not in dispute. The petitioner having obtained a plan -8- NC: 2023:KHC:41220 WP No. 12688 of 2020 sanction for construction of the resort is also not in dispute.
9. The only contention urged by Sri.A.Nagarajappa is that the area shown for road expansion of 306 Sq.mts. would not fall in the entitlement of Khata in respect of the petitioner. A perusal of the plan produced by respondent No.3 indicates land utilization as under.
9.1) 7805 Sq.mts. for Commercial, 9.2) 1000 Sq.mts. for Park, 9.3) 500 Sq.mts. for Parking 9.4) 306 Sq.mts. for road expansion, total 9611 Sq.mts.
10. Thus, the plan itself would indicate that the utilization is in respect of 9611 Sq.mts. and not in respect of 9305 Sq.mts. The plan does not distinguish the land of the petitioner in terms of ownership or otherwise, but only sanctions plan in respect of usage thereof as shown therein. In the present case, exisiting 18 mts. wide Karinanjapura -9- NC: 2023:KHC:41220 WP No. 12688 of 2020 road is proposed to be widened in the CDP. Since the same is demarcated as such in terms of Section 13 of Karnataka Town and Country Planning act 1961 (KTCP Act 1961).
11. Whenever there is a demarcation made of private land for a particular purpose under section 13 of KTCP Act 1961, it is only the procedure prescribed under section 69 of KTCP Act 1961 which would have to be resorted to in terms thereof. It is required that the acquisition of such land belonging to a private person made to use the land for a particular purpose denoted in the CDP, be made under the Right to Fair Compensation and Transparency in the Land Acquisition Act 2013.
12. The KTCP Act 1961 does not prescribe or make known any other mode to the Municipal Corporation of the planning authority to exercise ownership over the land of the private person without such acquisition.
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13. Thus, merely because a portion of land of the petitioner has been shown for proposed road expansion would not disentitle the petitioner of the title of the said property, let alone confer title to the City Municipal Corporation as regards the said land, without acquiring the same under the Right To Fair Compensation And Transparency In The Land Acquisition, Rehabilitation and Resettlement Act 2013.
14. Thus, I answer the point raised above by holding that there is no suppression made by the petitioner, insofar as ownership of the land is concerned as regards which the petitioner is entitled for the Khata. Respondent No.3 cannot claim ownership or deny ownership to the petitioner on the ground that a portion of the area is earmarked for widening of the road in CDP.
15. In that view of the matter I pass the following Order:
ORDER i. Petition is allowed.
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WP No. 12688 of 2020
ii. A certiorari is issued, impugned
notices dated 07.12.2023 at
Annexure-A and 28.09.2020 at
Annexure-B, being without jurisdiction are hereby quashed.
iii. Liberty is however reserved to respondent No.3 to acquire the land if it so desires in terms of sub-section (1) of Section 69 of the KTCP Act 1961.
iv. Needless to say if any construction is made by the petitioner on the said 306 Sq.mts. of land demarcated for road expansion, the petitioner would not be entitled for any compensation as regards such construction upon acquisition by respondent No.2 and 3.
v. Further needless to say that respondent No.2 and 3 shall not take any action against the said construction until acquisition is complete.
Sd/-
JUDGE NJ List No.: 1 Sl No.: 41