Allowed

Sri. G.Nagappa v. State of Karnataka

Karnataka HC15 Nov 2022WP/27534/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed writ petitions seeking direction to execute sale deeds for allottees of sites in Davanagere. The court found the authority's proposal to re-auction existing allotments arbitrary and tainted with malafides, directing execution of deeds and imposing a penalty on officials.

What did the court decide?

Directed respondent to demarcate sites, e-auction balance land, execute absolute sale deeds for petitioners within three months, and deduct Rs.50,000 from officials' salaries.

Sri. G.Nagappa Vs State of Karnataka — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE R.NATARAJ

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WRIT PETITION NO.9665 OF 2012 (LB-RES) C/W WRIT PETITION NO.27534 OF 2015 (LB-RES)

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IN W.P.NO.9665/2012:

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BETWEEN:

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SRI. J. MANJUNATH S/O LATE JAMMANNA AGED ABOUT 48 YEARS, R/AT: 'ANANTHE', I FLOOR, BEHIND BEERESWARA VYAYAMA SHALE, 'A' BLOCK, SRI. D.DEVARAJA URS LAYOUT, DAVANAGERE.

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...PETITIONER

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(BY DR. SRUTI CHAGANTI, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY TO THE DEPARTMENT OF URBAN DEVELOPMENT, VIKASA SOUDHA, BANGALORE-560001

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THE COMMISSIONER

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DAVANAGERE-HARIHAR URBAN DEVELOPMENT AUTHORITY, DAVANAGERE-500776

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(EARLIER CALLED CITY IMPROVEMENT BOARD)

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…RESPONDENTS

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(BY SMT. PRATHIMA HONNAPURA, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.1;

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SMT. NALINI VENKATESH, ADVOCATE FOR RESPONDENT NO.2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT DATED 29.11.2011 BEARING NO.DHUDA/S3/DUL/A/324/1984-85/1905 VIDE ANNEXURE-E ISSUED BY RESPONDENT NO.2 AND ETC.

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IN W.P.NO.27534/2015:

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BETWEEN:

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SRI. G. NAGAPPA AGED ABOUT 74 YEARS, SON FO G. BHARAMAPA RESIDING AT DOOR NO.355, 1^ST FLOOR, B BLOCK, 11^TH CROSS, DEVARAJ URS LAYOUT, DAVANAGERE-577006

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SINCE DEAD REP. BY HIS LEGAL HEIRS

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1(a) SMT. RACHAMMA WIFE OF LATE G. NAGAPPA AGED ABOUT 74 YEARS, GOULI ONI, B. CHITTANHALLI, BETHUR, DAVANGERE KARNATAKA - 577002.

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1(b) SMT. KARIBSAMMA DAUGHTER OF LATE G. NAGAPPA AGED ABOUT 51 YEARS, MAGANAHALLI ROAD, ELEBETHURU, B. CHITTANHALLI, DAVANGERE-577002.

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1(c) SRI. G.N.KARIBASAPPA SON OF LATE G. NAGAPPA AGED ABOUT 50 YEARS, BASAVESHWARA TEMPLE ROAD, B. CHITTANHALLI, BETHUR, DAVANGERE-577002.

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1(d) SRI. G.N.HALESH SON OF LATE G. NAGAPPA AGED ABOUT 48 YEARS, NEAR KARIBASAJJA TEMPLE, B. CHITTANHALLI, BETHUR, DAVANGERE-577002.

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1(e) SRI. G.N.HUCHAPPA SON OF LATE G. NAGAPPA AGED ABOUT 46 YEARS, MAILARA LINGESHWARA PRASANNA MAGANHALLI ROAD, ELEBETHURU, B. CHITTANHALLI, DAVANGERE-577002.

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1(f) SMT. BHAGYA DAUGHTER OF LATE G. NAGAPPA AGED ABOUT 44 YEARS, BASAVESHWARA BEEDHI, GADIKOPPA, SHIMOGA-577201.

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...PETITIONERS

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(BY SRI. B.N.PUTTALINGAIAH, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY THE DEPARTMENT OF URBAN DEVELOPMENT, VIKASA SOUDHA, BANGALORE-560001

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DAVANAGERE-HARIHAR URBAN DEVELOPMENT AUTHORITY, THE COMMISSIONER DAVANAGERE-500776 (EARLIER CALLED CITY IMPROVEMENT BOARD)

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…RESPONDENTS (BY SMT. PRATHIMA HONNAPURA, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.1;

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SMT. NALINI VENKATESH, ADVOCATE FOR RESPONDENT NO.2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE 2^ND RESPONDENT TO EXECUTE ABSOLUTE SALE TO THE PETITIONER WITH RESPECT TO THE SITE NO.324 OF SRI. DEVARAJ URS LAYOUT, 'A' BLOCK, DAVANAGERE IN TERMS OF THE ALLOTMENT AND LEASE CUM SALE DEED DATED 27.04.1988 AS PER ANNEXURE-A AND ETC.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDER ON 22.07.2022 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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W.P.No.9665/2012 is filed seeking for a writ in the nature of certiorari to quash the endorsement dated 29.11.2011 issued by the respondent No.2 and consequently, to direct the respondent No.2 to execute the deed of absolute sale in favour of the petitioner concerning the site No.322 in 'A' block, Sri. D. Devaraj Urs Layout, Davanagere.

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W.P.No.27534/2015 is filed seeking for a writ

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in the nature of mandamus to the respondent No.2 to execute a deed of absolute sale in favour of the petitioners concerning site No.324, Sri. D. Devaraj Urs Layout, 'A'

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Block, Davanagere, pursuant to the lease-cum-sale deed dated 27.04.1988.

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The petitioner in W.P.No.9965/2012 contends that he was allotted a site bearing No.322 in 'A' block, Sri. D. Devaraj Urs Layout, Davanagere, following which, a lease-cum-sale agreement was executed on 18.04.1988. After the possession of the allotted site was handed over, the petitioner paid the property tax to the Local authority. The petitioner alleged that the respondent No.2 unduly postponed the conclusion of the allotment, which compelled the petitioner to file representations requesting the respondent No.2 to execute the sale deed. Since the volte-face of the respondent No.2 continued, the petitioner filed W.P.No.9789/2011 for a direction to respondent No.2 to consider the representation and to execute a deed of agreement of sale. During the pendency of the said writ petition, the respondent No.2 issued an endorsement dated 29.11.2011 informing the petitioner that it is not possible to execute a deed of sale and instead offered to

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consider allotment of an alternate site at Sri. J.H. Patel Extension at the prevailing allotment price. Being aggrieved by the said endorsement, this writ petition is filed.

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The petitioner contends that in the impugned endorsement, it was stated that the allotment of sites made to the petitioner and others was cancelled by the State Government in terms of the endorsement dated 17.08.1990 and a corrigendum dated 21.05.1991, which was challenged by the petitioner and others in W.P.Nos.19494-97/1991, which were rejected on 17.09.1998. It was further stated that in order to cancel the allotment of the site to the petitioner and others, a joint survey was conducted in the presence of the Public Works Department, whereat it was found that there was a short-fall of 5628 sq.ft. It was stated therein that on 25.05.2007, a meeting was called for, for settlement of the dispute and that the petitioner had refused to accept a site with a lesser dimension. It further disclosed that abutting

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the sites that were allotted to the petitioner and others, a Court Complex was constructed and that an Advocate had filed O.S.No.325/2006, which was yet to be decided. It is further stated therein that the District Court had encroached 5628 sq.ft. of the sital area and since the suit in O.S.No.325/2006 was pending consideration, the request of the petitioner for execution of a deed of absolute sale cannot be considered.

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The petitioner claims that the site bearing No.322 allotted to the petitioner is intact, as it lay away from the District Court Complex and that the same is found in the layout plan issued by the respondent No.2.

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The petitioner contends that the respondent No.2 had contested the suit in O.S.No.325/2006. The petitioner contends that pursuant to the meeting dated 29.05.2007 conducted by the respondent No.2 to resolve the allotment of site Nos.322, 324 and 325. On the said day, the respondent No.2 considered the request of the petitioner and others for formation of 3 sites in the sital area

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available and postponed the same in view of the pendency of O.S.No.325/2006 and ordered the measurement of the Court Complex and to place the same before it at the next meeting. Consequently, a survey was conducted and it was found that the total sital area that was available for formation of site Nos.322 to 327 was 7481.43 sq.ft. It was also found that the District Court was in possession of 5628 sq.ft. in excess of what was granted to it in Sy.No.310/3. Following this, the respondent No.2 held a meeting on 16.02.2008, whereat it was resolved to offer to the petitioner a site of lesser dimension since the sital area available was only 109 ft x 60 ft. The petitioner refused to the said offer and also refused to accept an alternate site as the site allotted to him was situate far way from the District Court Complex. The petitioner contends that though the site allotted to him exists, the respondent No.2 had unnecessarily delayed the execution of the sale deed on one or the other pretext and has therefore, filed this writ petition seeking for the reliefs mentioned above.

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The petitioner since deceased represented by

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his legal representatives in W.P.No.27534/2015 claimed to be allotted a site bearing No.324 in 'A' Block of Sri. D. Devaraj Urs Layout, in Ward No.1, Davanagere, which was followed by a lease-cum-sale agreement dated 27.04.1988. After the possession of the allotted site was handed over, the petitioner paid the property tax to the local authority. The petitioner claimed that the respondent No.2 went on postponing the execution of the sale deed on one or the other pretext, which compelled the petitioner to submit representations and thereafter issue a notice dated 10.10.2011. The petitioner claimed that the respondent No.2 had passed a resolution deferring the execution of the sale deed in favour of the petitioner till the disposal of O.S.No.325/2006. He submitted that the suit in O.S.No.325/2006 related to the District Court Complex, while the sites allotted to the petitioner and another lay away from the Court Complex. He also contended that the suit in O.S.No.325/2006 was dismissed on 08.04.2014. Following this, the petitioner approached the respondent

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No.2 for execution of a deed of absolute sale, followed by a notice dated 03.01.2015. The petitioner claimed that various persons who were allotted sites in Sri. D. Devaraj Urs Layout had sought for allotment of an alternate site in any other layout and therefore, there was no impediment for the respondent No.2 to allot a site bearing No.324 to the petitioner. He also contended that a survey was conducted after the dismissal of O.S.No.325/2006 to ascertain the extent of land available for formation of sites and for execution of sale deed in favour of the petitioner. He contended that Technical Committee, which examined the survey report prepared by the respondent No.2 opined that an area measuring 107 ft. + 130/2 x 59 ft. was available and that it was possible to form two sites in the said vacant area. The petitioner contends that based on a complaint lodged before this Court, the respondent No.2 had surveyed the Court Complex and found that it had encroached into 5628 sq.ft. of the land belonging to the respondent No.2. The petitioner claimed that since there was no impediment to form a site in the available sital

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area which could be conveyed to him, the respondent No.2 be directed to conclude the process of allotment.

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The respondent No.2 contested the petitions and claimed that the allotment of sites bearing Nos.322 to 327 in the layout formed by it was cancelled by the State Government on 17.08.1990, which was further corrected by an order dated 02.05.1991. The respondent No.2 claimed that the petitioner and others filed W.P.Nos.19494-497/1991 challenging the cancellation. This Court in terms of the order dated 17.09.1998 dismissed the writ petitions and directed that if the petitioners therein have made or make any applications for allotment of site afresh, the same would be considered in accordance with law. Following this, a survey was conducted by the respondent No.2 to measure the property granted to the District Court and found that the District Court had utilized 5628 sq.ft. of sital area belonging to the respondent No.2. The respondent No.2 thereafter held a meeting on 17.03.2007, where it

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resolved to offer the allottees of site Nos.322, 324, 325 and 326 about the shortage of sital area and that it would form four sites of equal dimension and allot to them. However, the petitioner and others refused to accept sites lesser than 60 ft x 40 ft. Thereafter, a meeting of the respondent No.2 was held on 16.02.2008, where it resolved to form three sites and allot to the petitioner and other two persons, as the allottee of site No.325 had opted to take a site at J.H. Patel Layout. It therefore, contended that it is not in a position to allot a site to the petitioner.

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During the pendency of these writ petitions, additional documents were placed on record by the petitioners, which indicate that the sites allotted to the petitioners were still available. The petitioner in W.P.No.9665/2012 placed voluminous additional documents in the form of information obtained through the Right to Information Act, 2005 (henceforth referred to as 'RTI Act' for short), which indicated that the site bearing

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No.322 was available, which could be conveyed to the petitioner.

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This Court in terms of the order dated 01.09.2021, directed the competent officer of the respondent No.2 to file an affidavit whether site No.322 was vacant and also to indicate what are the vacant sites available for alternate allotment to the petitioner. In response to this order, the respondent No.2 filed an affidavit dated 15.09.2021 stating that "at present there is no land available admeasuring 40 ft x 60 ft each for formation of 4 sites to be allotted to the petitioner and 3 others. I state that at present, no vacant sites are available for alternate allotment to the petitioner."

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In reply to this affidavit, the learned counsel

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for the petitioner brought to the notice of the Court the report of the Technical Committee of respondent No.2 dated 10.11.2014 which indicated that two sites were vacant. She also brought to the notice of the Court the information given under the RTI Act, which indicated that

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site No.323 was vacant and not allotted to anyone, while the allottees to site Nos.325 and 326 had taken alternate sites. She also submitted that the information furnished under the RTI Act on 23.04.2012 indicated that the sites encroached by the District Court Complex were bearing Nos.324, 325 and 326 and therefore, stated that the affidavit filed by the respondent No.2 was totally misleading. Consequent to this, this Court in terms of the order dated 10.06.2022 directed the respondent No.2 to furnish the number of sites formed in Sri. D. Devaraj Urs Layout and also furnish a list of allottees. This Court further directed the respondent No.2 to indicate whether the site No.322 was vacant or not. Following this direction, the respondent No.2 placed on record the list of allottees of sites in Sri. D. Devaraj Urs Layout. This Court considered the same and directed the respondent No.2 to specifically ascertain whether the site Nos.322, 323 and 324 are available for allotment or whether there is any embargo against allotment of these sites. In response to this, a memo is filed by the respondent No.2 stating that

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site Nos.322 and 324 are situate in 'A' Block, Sri. D. Devaraj Urs Layout, admeasuring 130 + 109/2 x 58.62/2 (measuring 7170 sq.ft.) However, it is stated that site No.323 is not available and that these two sites cannot be allotted to the petitioners, as they have to be reauctioned.

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The controversy in the present writ petitions revolves around the allotment of site Nos.322 and 324 to the petitioners. It is not in dispute that abutting the District Court Complex in Davanagere, the respondent No.2 had formed site Nos.322, 323, 324, 325, 326 and 327. It is not in dispute that the District Court had encroached into 5628 sq.ft. of land being part of the aforesaid six sites. It is not in dispute that site Nos.322 and 324 which are the subject matter of these two writ petitions were situate away from the District Court Complex. It is also not in dispute that the allottee of site No.327 had not paid the allotment price and the same was cancelled. While the allottees of site Nos.325 and 326 had

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taken alternate sites at J.H. Patel Layout, Davanagere. It is also not in dispute that presently an area measuring 130 + 109/2 x 58.62/2 which is equal to 7170 sq.ft. is available for allotment. The site bearing Nos.322 and 324 were allotted to the petitioners who have paid the allotment price consequent to which lease-cum-sale deeds are executed. The cancellation of allotment of these sites were though unsuccessfully challenged by the petitioners before this Court in W.P.Nos.19491-494/1991, yet the respondent No.2 had held further meetings whereat it proposed to form four sites in the available sital area and allot sites of lesser dimension to petitioners and two others. Since the allottees of site Nos.325 and 326 had already availed alternate allotment, the petitioners refused to accept sites of lesser dimension. The matter as it stands today is 7170 sq.ft. of sital area is still available at the very same place where site Nos.322, 323 and 324 were located as per the plan of the respondent No.2. The respondent No.2 instead of allotting the sites to the petitioners, has now proposed to e-auction the sites, which

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is nothing but at attempt at enrichment by an agency of the State at the cost of the interest of citizens. The act of the respondent No.2 is not only arbitrary but also colourable and is tainted with malafides.

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In that view of the matter, these writ petitions are allowed. The respondent No.2 is directed to demarcate two sites measuring 40 ft x 60 ft each in 7170 sq.ft. of land available and e-auction the balance 2370 sq.ft. of sital area and execute a deed of absolute sale in favour of the petitioners in respect of site Nos.322 and 324 within a period of three months from the date of receipt of a certified copy of this order.

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Since the respondent No.2 has acted arbitrarily

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and without any sense of accountability to the petitioners, the respondent No.1 and 2 are directed to deduct a sum of Rs.50,000/- from the salary of the officials concerned for unnecessarily delaying the conclusion of the allotment in favour of the petitioners. Upon such deduction, the same

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shall be credited to the accounts of the petitioners at the rate of Rs.25,000/- each.

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In order to ensure the e-auction of 2370 sq.ft. of the

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excess land, list on 02.01.2023.

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Sd/JUDGE

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PMR

Sri. G.Nagappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri. G.Nagappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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