Allowed

Dattatreya S/O. Narayan Adhyapak v. the Commissioner

Karnataka HC8 Dec 2022WP/102044/2014

Case brief

AI extract

What is this about?

Petitioners sought to enforce a 1994 promise by the City Corporation to allot an alternative site after surrendering their land for road widening. The High Court held that despite a recent Government order doubting title, the Corporation's previous admission estopped them from denying ownership, allowing the alternative site allotment instead of compensation.

What did the court decide?

Writ allowed; Government order quashed; Corporation directed to allot an alternative site to petitioners within three months.

Dattatreya S/O. Narayan Adhyapak Vs the Commissioner — Property and Title | Karnataka HC (2022)

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WP No. 102044 of 2014

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA WRIT PETITION NO. 102044 OF 2014 (LB-RES)

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BETWEEN:

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DATTATREYA S/O. NARAYAN ADHYAPAK SINCE DECEASED BY HIS LRS

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SMT.MANDAKINI W/O. DATTATRYA ADHYAPAK, AGE: 87 YEARS, OCC: HOUSEHOLD WORK

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SMT. SUSHMA W/O. SHASHIKANT NADIGER, AGE: 66 YEARS, OCC:HOUSEHOLD WORK,

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SMT.ANURADHA W/O. ARUN KULKARNI, AGE: 64 YEARS, OCC: HOUSEHOLD WORK,

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SMT.MADHURI W/O. RAMCHANDRA CHITNIS AGE: 62 YEARS, OCC: HOUSEHOLD WORK,

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ALL ARE R/O. SHAKHAMBARI APARTMENTS, SOMAWARPET, TILAKWADI, BELGAUM,

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REP./BY HIS GPA HOLDERSHRI SHASHIKANT S/O. MADHAV NADIGER, AGE: 73 YEARS, OCC: RETIRED, R/O. PLOT NO. 19, CTS NO. 571/57, VAIDH APARTMENT, HINDU NAGAR, TILAKWADI, BELGAUM.

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…PETITIONERS

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(BY SRI S.S.PATIL AND SRI MAHANTESH R. PATIL, ADVOCATES)

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AND:

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THE COMMISSIONER, CITY CORPORATION BELGAUM, DIST: BELGAUM.

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THE STATE OF KARNATAKA REP. BY IT’S SECRETARY VIDHAN SOUDHA, BENGALURU, TAL. AND DIST-BENGALURU-01.

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…RESPONDENTS

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(BY SRI A.D.KULKARNI, ADVOCATE FOR RESPONDENT NO.1) (BY SRI VINAYAK S.KULKARNI, AGA FOR RESPONDENT NO.2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226

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AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI AND QUASH THE ORDER DATED 04.07.2013, PASSED BY THE RESPONDENT PRODUCED AT ANNEXURE-G AND ISSUE A WRIT IN THE NATURE OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT AND DIRECT THE RESPONDENT TO EXECUTE THE SALE DEED IN RESPECT OF SITE MEASURING 1425 SQ.FT. IN R.S.NO.105 SITUATED AT MANDOLLI ROAD, BLEGAUM, WITHIN THE LIMITS OF CORPORATION OF BELGAUM OR GRANT ANY OTHER ALTERNATE SITE TO THE PETITIONERS WITHIN THE LIMITS OF CITY CORPORATION BELGAUM.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The prayer in this writ petition is to quash

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Annexure-G.

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The petitioners herein had filed Writ Petition No.63019/2010 (LA-RES) before this Court seeking for direction to the respondent-Corporation to execute a sale deed in respect of site measuring 1425 square feet in R.S.No.105 situated at Mandolli road, Belagavi. This Court on a consideration of the petition and the documents filed in support of the said claim, directed the petitioners to make a representation and also place all relevant materials including the writ petition and its annexures to the respondent-Corporation and the respondent was directed to consider the same sympathetically and in accordance with law and pass a speaking order.

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Pursuant to the said order, the respondentCorporation has passed the impugned order (Annexure-G). In the said order, it is stated that it would not be possible

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to execute a sale deed in respect of the plot measuring 1425 square feet in R.S.No.105 since the surveyor had stated that it was the part of a park.

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It is also stated that in respect of the land which the petitioners’ father had surrendered, it would be permissible for the petitioners to seek for appropriate compensation and accordingly rejected the claim.

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The claim of the petitioners’ stems from AnnexureA which is an order dated 19.12.1994. In Annexure-A, it is stated that the Corporation of the City of Belagavi had proposed road widening starting from the 3^rd railway gate leading to the Military Mahadev Temple and in order to implement that decision, the council was of the view that there would be a need to rehabilitate the owners/occupiers of the structures and accommodate them in the property belonging to the Corporation in lieu of compensation. The Corporation invoked Section 267 of the KMC Act and the Corporation also took note of the fact that for the successful implementation of the master plan owners had

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voluntarily surrendered their premises for successful implementation for passing of the order.

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The said order also states that property bearing CTS.No.278/C measuring 760 square feet and 2056 square feet was coming within the purview of road widening and was owned by the petitioners’ father-Sri Dattatreya S/o.Narayan Adhyapak as per the CTS records. It is also stated therein that the owner of the property had surrendered the property for the implementation of the master plan and the Civil Engineer had inspected the site and had also recommended for allotment of a residential site as compensation.

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Ultimately, it is stated that a residential site No.14 measuring 30 X 45 + 50 / 1425 at Maratha Colony, Tilakawadi of Belagavi Town was being leased to the father of the petitioners for a period of five years.

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It is the case of the petitioners that thereafter on 30.11.1998, the lease was extended by a period of five

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years and on 09.06.2004, the Corporation passed an order on the basis of the Resolution bearing No.313 dated 21.02.2004 and allotted a site measuring 1425 square feet in R.S.No.105 to the father of the petitioners on a lease basis for a period of five years, which was renewable on payment of ground rent.

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It is the case of the petitioners that the Corporation in similarly situated cases conveyed the properties which had been leased for similarly situated persons who had surrendered their properties for the widening of the road and one such sale deed is also produced at Annexure-D. The petitioners are therefore claiming parity and for conveyance of the property.

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As noticed above, the site that had been allotted to the petitioners’ father was stated to be incapable of being conveyed, by virtue of it being a part of a park. The act of the Corporation in allotting a portion of the park by itself requires to be deprecated. However, the fact remains a site was allotted to the father of the petitioners.

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The Corporation has filed a memo on 20.12.2021 enclosing three documents. The first document is an order dated 09.11.2021, by which the Corporation has passed an order to seek for approval of the Government for allotment of an alternative site in favour of the petitioners herein.

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Thus, right up to the year 2021, the entitlement of the petitioners for grant of a property in lieu of compensation was never in dispute by the Corporation. The Corporation in fact, took steps to seek for approval of the Government to allot an alternative site.

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Thereafter, during the pendency of this petition, on 19.10.2022, it was stated before this Court that the request of the Corporation was pending consideration with the Government and therefore action could not be taken for allotment of an alternative site.

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Ultimately, this Court passed an order on 21.01.2021 permitting the petitioners to make an

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application for allotment of an alternative site in a different area and directed the first respondent to consider the same and pass appropriate orders.

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The State thereafter took time to comply with the orders and the matter was adjourned from time to time and ultimately by an order dated 12.10.2022, a week’s time was granted for compliance of the orders and it was made clear that if there was no compliance, the Secretary would have to be present before this Court.

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The State Government thereafter has filed a memo dated 19.10.2022 stating that it was not clear as to whether the property in fact belonged to the father of the petitioners and therefore, it was necessary to once again confirm whether the father of the petitioners was the owner of the land and thereafter the Corporation was to proceed to pay compensation for the land given up by the father of the petitioners, in accordance with the law.

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Thus, after a period of 28 years a decision was taken that the petitioners would be entitled for only compensation, if it was established that the father of the petitioners’ owned the land which had been surrendered.

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In view of this memo, an order was passed directing the Commissioner to file an affidavit in this regard and it was made clear that the Commissioner was required to state the reason to pass the Resolution bearing No.107 dated 28.07.1984 and also produce the same. A direction was also issued to the Commissioner to state the number of plots that were allotted to similarly situated persons and also state the number of sale deeds by the Corporation in respect of those persons.

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Today, an affidavit is filed by the Commissioner. In the affidavit, the Commissioner has not stated the reason for which the Resolution bearing No.107 had been passed on 28.07.1984. He has also not stated the number of plots that were allotted to the similarly placed persons and whether sale deeds were executed in respect of those

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persons. The Commissioner has however proceeded to set up the plea that the land that had been surrendered by the petitioners’ father actually belonged to the Corporation itself. Thus, the Deputy Commissioner is essentially trying to disown the statement made by the Corporation in the year 1994 that the father of the petitioners owned property bearing CTS No.278/C and the Commissioner by not making any statement on the resolution passed by the Council bearing No.107 dated 28.07.1984 has basically skirted the entire issue relating to the resolution. The learned counsel however submitted that the Resolution bearing No.107 was unavailable, though no such averment was made in the affidavit by the Commissioner.

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It is to be kept in mind that the Corporation

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renewed the lease in favour of the father of petitioners’ in the year 1998 and in favour of the petitioners in the year 2004. In the light of these two undisputable facts, it cannot be contended by the Corporation that the petitioners were not the owner of site No.278/C which had

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been surrendered. The fact that in Annexure-A, the Corporation clearly stated that the property bearing CTS No.278/C was owned by the father of the petitioners’ and the ownership was as per the CTS records, disentitles the Corporation from putting forth the plea that property bearing CTS No.278/C was actually the property of the Corporation.

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In the light of the fact that the Corporation had sought for approval of the Government to allot an alternative site in lieu of the land in which the father of the petitioners had surrendered, the Corporation has conceded not only the title of the father of the petitioners over CTS No. 278/C but also to the entitlement of the petitioners to secure an alternative plot.

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The Government without considering these crucial facts has merely stated that there was a doubt regarding the title of the petitioners. Having regard to the fact that the Corporation had clearly admitted, way back in the year 1994, about the ownership of father of the

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petitioners, no reliance can be placed on the affidavit that is now filed by the Commissioner. The affidavit filed by the Commissioner is fundamentally an attempt to get over the commitment given by the Corporation to allot the site in the year 1994 which prompted the father of the petitioners to surrender the land, which was in their possession. It is therefore clear that the Corporation had basically misled the father of the petitioners in surrendering his land with the promise that he would be allotted an alternative site. This conduct of the Corporation cannot therefore be accepted.

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Since, a clear commitment was given by the Corporation way back in the year 1994 to allot an alternative site to the father of the petitioners, it would be necessary to direct the Government to grant approval to the recommendation of the Corporation to allot an alternative site. The Government order that has now been issued shall accordingly stand quashed and the Government shall proceeded to accept the

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recommendation and permit the Corporation to allot an alternative site as requested by it. The Corporation shall also abide by its recommendation and allot an alternative site to the petitioners. This entire exercise shall be concluded out within a period of three months from the date of receipt of a copy of this order.

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Writ Petition is accordingly allowed.

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SD JUDGE

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ckk

Dattatreya S/O. Narayan Adhyapak v. the Commissioner

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Dattatreya S/O. Narayan Adhyapak v. the Commissioner

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