Allowed

Mohd. Abdul Moiz S/O MD Abdul Rauf, Maniyar and Anr. v. the State of Karnataka and Ors.

Karnataka HC6 Jan 2020WP/102754/2013

Case brief

AI extract

What is this about?

The Court held that claims regarding ownership of demolished property are disputed questions of fact requiring an inquiry. It directed the petitioners to approach the Deputy Commissioner under Section 82 of the Karnataka Municipalities Act, 1964, to determine ownership and compensation.

What did the court decide?

Writ petition allowed directing the second respondent-Deputy Commissioner to take appropriate action and decide the claim of the petitioners within eight weeks.

Mohd. Abdul Moiz S/O MD Abdul Rauf, Maniyar and Anr. Vs… — Land Acquisition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 6^TH DAY OF JANUARY 2020

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.102754 OF 2013 (LB-RES)

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BETWEEN:

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MOHD. ABDUL MOIZ S/O MD. ABDUL RAUF MANIYAR AGED 29 YEARS OCC: BUSINESS R/O H.NO.01-08-54 MOHELLA SINGARBAGH BIDAR TALUK AND DISTRICT – 585 401.

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MOHD ABDUL RABBANI S/O MD ABDUL RAUF MANIYAR AGED 27 YEARS OCC: BUSINESS R/O H.NO.01-08-54 MOHELLA SINGARBAGH, BIDAR TALUK AND DISTRICT – 585 401.

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… PETITIONERS

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(BY SRI JAIRAJ K. BUKKA, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPT. M.S. BUILDING BANGALORE – 560 001.

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THE DEPUTY COMMISSIONER BIDAR BIDAR DISTRICT – 585 401.

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THE COMMISSIONER OF THE URBAN DEVELOPMENT AUTHORITY BIDAR – 585 401.

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THE CITY MUNICIPAL COMMISSIONER THROUGH ITS CHIEF OFFICER BIDAR – 585 401.

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THE JUNIOR ENGINEER CITY MUNICIPAL OFFICE BIDAR DISTRICT – 585 403.

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… RESPONDENTS

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(BY SRI K.M. GHATE, AGA FOR R1 & R2 SRI GOURISH S. KHASHAMPUR, ADVOCATE FOR R4 SRI P.S. MALIPATIL, ADVOCATE FOR R3 R5 – NOTICE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO PAY THE DAMAGES AND COMPENSATION FOR ILLEGAL DEMOLITION OF PETITIONER’S SHOP BEARING CMC.NO.06-07-63 (NEW) & CMC NO.06-07-64 (NEW) AS PER ANNEXURE-E DATED 12.11.2007 AND ETC.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The top noted writ petition is filed questioning the

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illegal demolition of the petitioners’ shop bearing CMC.No.06-07-63 (New) and CMC.No.06-07-64 (New) as per Annexure-E. The petitioners are seeking a writ of mandamus to direct the respondents to pay damages and compensation for having illegally demolished the property of the petitioners which is a private property.

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The case of the petitioners before this Court is that the petition premises was originally owned by the father of the petitioner namely, Mohammed Abdul Rauf. The father of the petitioners by way of gift deed dated 23.08.2007 transferred the petition premises in favour of his sons i.e., the present petitioners. The petitioners would contend that pursuant to the registered gift deed, the present petitioners acquired valid right and title over the petition premises and they were in actual possession and enjoyment over the petition premises. The case of the petitioners is that the respondents

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under the guise of road widening have without resorting to Land Acquisition Act have illegally and highhandedly demolished the shop. The petitioners having lost the property on account of highhandedness of the respondents, a representation was submitted to the second respondent – Deputy Commissioner as per Annexure-E on 12.11.2007. In the said representation, the petitioners brought to the notice of the Deputy Commissioner that on account of demolition, they have lost their livelihood and also they have become unemployed and hence, requested the second respondent to arrange for rehabilitation by allotting commercial site in Bidar City or in the alternative to pay compensation for having demolished the property. Since there was total inaction on the part of the respondents in considering the representation, the petitioners are before this Court seeking a writ in the nature of mandamus to direct the respondents to pay

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compensation for having demolished without acquiring the petition premises.

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Heard learned counsel for the petitioners

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and learned counsel for the respondents.

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Learned counsel for the petitioners while marshalling his arguments would rely on two judgments of this Court in W.P.No.101952/2013 and connected matters and W.P.No.21042/2011 and connected matters. The Division Bench of this Court, while dealing with demolition in respect of Bidar City, having examined the grievance of similarly placed owners whose property were demolished was of the view that the road widening, though it is for public purpose but, however, whenever the authorities proceed to utilize private properties for road widening, the authorities are required to follow due process of law. The Division Bench of this Court having accepted the contention of the petitioners was pleased to hold that the action of the

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respondents in demolishing the private properties is a disputed question of fact which cannot be examined under Article 226 of the Constitution of India. As such, the factual controversies cannot be resolved without holding an enquiry. The decision on claim of property by or against the Municipal Council can be obtained by raising a dispute before the Deputy Commissioner by invoking Section 82 of the Karnataka Municipalities Act, 1964. With these observations, the Division Bench of this Court directed the petitioners in the said case to approach the Deputy Commissioner and file their claims. The Deputy Commissioner was directed to examine the documentary evidence after affording reasonable opportunity of hearing to all the parties concerned and to pass appropriate orders after examining the ownership of the property and other allied questions.

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Since the present set of facts raised by the petitioners are similar and identical to the issue that

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was decided by the Division Bench of this Court, this Court is of the view that the petitioners have a remedy before the Deputy Commissioner. The petitioners are claiming possession over the property in question by specifically contending that this property was owned by their father and they have succeeded to the property in question. In that view of the matter, the petitioners are at liberty to approach the second respondent – Deputy Commissioner with all necessary documents and second respondent shall, after affording opportunity to the petitioners, pass appropriate orders as contemplated under Section 82(1) and (2) of the Karnataka Municipalities Act, 1964.

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It is needless to say that if the petitioners are

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aggrieved by any finding of the Deputy Commissioner, it is open for them to challenge the same before the Civil Court under sub-Section (2) of Section 82 of the said Act. This Court would also direct the second respondent to first ascertain whether the disputed

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property which was demolished for the purpose of road widening is a private property or the property owned by Municipality. If the second respondent - Deputy Commissioner were to arrive at a conclusion that the petition premises is owned by the petitioners, in that event, he shall determine the appropriate compensation payable to the petitioners.

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With these observations, writ petition is allowed directing the second respondent – Deputy Commissioner to take appropriate action and to decide the claim of the petitioners within eight weeks from the date of receipt of all necessary documents from the petitioners.

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Sd/JUDGE

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Mohd. Abdul Moiz S/O MD Abdul Rauf, Maniyar and Anr. v. the State of Karnataka and Ors.

Case brief

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Mohd. Abdul Moiz S/O MD Abdul Rauf, Maniyar and Anr. v. the State of Karnataka and Ors.

Case brief

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