Dismissed

Sri.Mohammed Aslam Herekar v. the Deputy Commissioner

Karnataka HC22 Apr 2024WP/102819/2018

Case brief

AI extract

What is this about?

High Court disposed of two writ petitions filed by co-owners regarding disputed property measurements and alleged illegal road construction. Court found disputes over survey and title unresolved, remitting parties to Civil Court for settlement before considering relief.

What did the court decide?

Petitioners relegated to approach Civil Court for settlement of dispute regarding measurement and title of the property.

Sri.Mohammed Aslam Herekar Vs the Deputy Commissioner — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:6664 WP No. 102819 of 2018 C/W WP No. 108606 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V.HOSMANI

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WRIT PETITION NO. 102819 OF 2018 (LB-RES)

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C/W

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WRIT PETITION NO. 108606 OF 2017

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IN W.P.NO.102819/2018

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BETWEEN:

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SRI MOHAMMED ASLAM ABDULLA HEREKAR, AGED 57 YEARS, OCC: BUSINESS, R/O. NANDGAD, TALUK: KHANAPUR, DISTRICT: BELAGAVI.

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SRI ZAKRIYA MOHAMMED HANIF HEREKAR, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, MOHAMMED SIRAJ MOHAMMED HANIF HEREKAR, AGED 59 YEARS, OCC:BUSINESS, R/O. NANDGAD, TALUK:KHANAPUR, DISTRICT:BELAGAVI.

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…PETITIONERS

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(BY SRI AMIRKHAN A. PATHAN & SRI H.M. SUNAGAR, ADVOCATES)

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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AND:

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THE DEPUTY COMMISSIONER, BELAGAVI, DISTRICT: BELAGAVI.

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THE ASSISTANT COMMISSIONER, BELAGAVI DIVISION, BELAGAVI, DISTRICT: BELAGAVI.

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THE TAHASILDER, KHANAPUR TALUK, KHANAPUR, DIST:BELAGAVI.

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THE EXECUTIVE OFFICER, TALUK PANCHAYAT, KHANAPUR, TALUK: KAHNAPUR, DIST: BELAGAVI.

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NC: 2024:KHC-D:6664 WP No. 102819 of 2018 C/W WP No. 108606 of 2017

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THE PANCHAYATH DEVELOPMENT OFFICER, NANDAGAD GRAM PANCHYAT, TALUK KHANAPUR DISTRICT: BELAGAVI.

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…RESPONDENTS

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(BY SRI MADANMOHAN M. KHANNUR, AGA FOR R1-R3; SRI SHIVARAJ HIREMATH, ADV. FOR R4 & R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF MANDAMUS DIRECT THE 5^TH RESPONDENT TO CONSIDER THE OBJECTION DATED:24.03.2018 FILED BY THE PETITIONERS VIDE ANNEXURE-"J" AND TO STOP ROAD CONSTRUCTION WORK STARTED ON PROPERTY NO.145/1 AND 145/2) MEASURING 103.5 FEET X 106.5 FEET, SITUATED AT BARDESHKAR GALLI NANDAGAD VILLAGE, TALUK:KHANAPUR, DISTRICT: BELAGAVI AND ALSO DIRECT THE 5^TH RESPONDENT TO PROVIDE NECESSARY INFORMATION TO THE PETITIONERS REGARDING PROPOSED ROAD CONSTRUCTION WORK.

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IN W.P.NO.108606/2017

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BETWEEN:

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SRI MUSHTAQAHMED ABDULLA HEREKAR, AGED 57 YEARS, OCC: BUSINESS, R/O. NANDGAD, TALUK: KHANAPUR, DISTRICT: BELAGAVI.

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SRI ZAKRIYA MOHAMMED HANIF HEREKAR, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, MOHAMMED SIRAJ MOHAMMED HANIF HEREKAR, AGED 59 YEARS, OCC: BUSINESS, R/O. NANDGAD, TALUK:KHANAPUR, DISTRICT:BELAGAVI.

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…PETITIONERS

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(BY SRI AMIRKHAN A. PATHAN & SRI H.M. SUNAGAR, ADVOCATES)

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AND:

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THE TAHASILDER, KHANAPUR TALUK, KHANAPUR, DISTRICT:BELAGAVI.

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THE EXECUTIVE OFFICER, TALUK PANCHAYAT, KHANAPUR, TALUK: KAHNAPUR, DIST: BELAGAVI.

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3 - NC: 2024:KHC-D:6664 WP No. 102819 of 2018 C/W WP No. 108606 of 2017

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THE PANCHAYATH DEVELOPMENT OFFICER, NANDAGAD GRAM PANCHAYAT, TALUK KHANAPUR DISTRICT: BELAGAVI.

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THE PRESIDENT JAMIYA MASJID NINGAPUR MOHALLA, NANDAGAD, TALUK: KAHNAPUR, DIST: BELAGAVI.

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…RESPONDENTS

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(BY SRI MADANMOHAN M. KHANNUR, AGA FOR R1; SRI V. SHIVARAJ HIREMATH, ADV. FOR R2; SRI RAVI HEGDE, ADV. FOR R3 SRI DINESH M. KULKARNI, ADV. FOR R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED RESOLUTION DATED:19.11.2016 PASSED BY THE 3^RD RESPONDENT IN RESOLUTION NUMBER 5 VIDE ANNEXURE-K AND ENDORSEMENT DATED:23.12.2016 ISSUED BY THE 3^RD RESPONDENT UNDER NO.GRAM.PUM/NUM/THA.A/04/2016-17/21 VIDE ANNEXURE-L; A WRIT IN THE NATURE OF MANDAMUS DIRECT THE RESPONDENTS TO SURVEY THE PROPERTY AND FIX THE BOUNDARY AND ENTERS CORRECT MEASUREMENT OF THE PROPERTY IN THE PROPERTY EXTRACT AS PER SALE DEED DATED:22.03.1938 VIDE ANNEXURE-A AND ETC.

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THESE PETITIONS, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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4 - NC: 2024:KHC-D:6664 WP No. 102819 of 2018 C/W WP No. 108606 of 2017

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ORDER

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In W.P.NO.102819/2018

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This petitions filed seeking following relief:

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“A writ in the nature of mandamus direct the 5^th respondent to consider the objection dated:24.03.2018 filed by the petitioners vide ANNEXURE-"J" and to stop Road construction work started on Property no.145/1 and 145/2) measuring 103.5 feet x 106.5 feet, situated at Bardeshkar Galli Nandagad Village, Taluk:Khanapur, District: Belagavi and also direct the 5^th respondent to provide necessary information to the petitioners regarding proposed road construction work.”

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In W.P.NO.108606/2017

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This petitions filed seeking following reliefs:

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A. A writ in the nature of certiorari to quash the impugned resolution dated:19.11.2016 passed by the 3rd respondent in resolution number 5 vide ANNEXURE-K and endorsement dated:23.12.2016 issued by the 3rd respondent under NO.GRAM.PUM/NUM/THA.A/04/2016-17/21 vide ANNEXURE-L.

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B. A writ in the nature of mandamus direct the respondents to survey the property and fix the boundary and enters correct measurement of the property in the property extract as per sale deed dated:22.03.1938 vide ANNEXURE-A.

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2. Sri Amirkhan A.Pathan, learned counsel appearing for

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petitioners submits that petitioners were co-owners of property bearing no.1504007041001084 (old panchayath no.145/1 and 145/2) measuring 103.5 X 106.5 feet situated at Bardeshkar Galli, Nandagad village, Khanapur Taluk, Dist.Belagavi (herein after

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5 - NC: 2024:KHC-D:6664 WP No. 102819 of 2018 C/W WP No. 108606 of 2017

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referred as ‘schedule property’ ). It was submitted, said property was purchased under sale deed dated 23.03.1938 by grandfather of petitioners and that it was ancestral joint family property, inherited by petitioners after death of their father. Thereafter they approached respondent no.5-Panchayat Development Officer, Gram Panchayat, Nandgad, ( ‘PDO’ for short) for mutation of their names jointly in khata. But, during mutation, measurement of schedule property was inadvertently entered as 64ft. x 94ft. instead of measurements mentioned in schedule.

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For rectification of said error, petitioner’s brother Mustaq Ahmed Herekar submitted representations at Annexures-B and C to respondents no.3 and 5 respectively. Even respondent no.4 directed PDO to consider petitioner’s case and mutate same as per property extract at Annexure-D. Thereafter, PDO has issued notice to adjacent owner i.e president of Jamiya Masjid Ningapur. In reply to notice it objected for measuring property.

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It was submitted, considering objections, Gram Panchayat

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passed resolution on 19.11.2016 and issued endorsement dated 23.12.2016 relegating petitioners to Civil Court. Same are

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6 - NC: 2024:KHC-D:6664 WP No. 102819 of 2018 C/W WP No. 108606 of 2017

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challenged in W.P no.108606/2017, while W.P.no.102819/2018 was filed seeking for direction to consider representation against illegal construction by PDO and to take appropriate action. It was submitted PDO had started construction in schedule property without acquiring or paying any compensation in violation of due process of law. And despite objections, PDO failed to consider same, due to inaction of PDO, petitioner approached this Court.

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On other hand, Sri Shivaraj Hiremath, learned counsel for respondents no.4 and 5 sought to oppose writ petition. It was submitted insofar as contention of petitioner about incorrect entry of measurement in mutation entries; this Court by an order dated 26.03.2024 had directed PDO to file affidavit about extent of existing measurement of petitioners property. And in affidavit filed, PDO reiterated that measurement of suit property was correctly mentioned in khata and taking note of dispute regarding measurement, endorsement to approach Civil Court was issued. It was therefore submitted writ petition did not merit consideration and was liable for dismissal.

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Heard learned counsel and perused writ petition record.

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7 - NC: 2024:KHC-D:6664 WP No. 102819 of 2018 C/W WP No. 108606 of 2017

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From above, it is seen in W.P.no.108606/2017, petitioner is challenging resolution dated 19.11.2016 at Annexure-K and endorsement dated 23.12.2016 issued by PDO at Annexure-L and also seeking for survey of property, fixation of boundaries and for entering correct measurement of property as per sale deed dated 22.03.1938. In W.P.no.102819/2018, petitioner is seeking for direction to PDO to consider representation dated 24.03.2018 at Annexure-J and to stop road construction work on property no.145/1 and 145/2 measuring 103.5 ft. x 106.50 ft. at Bardeshkargalli, Nandgad village etc.

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From above, it is seen that petitioner is claiming measurement of property purchased under sale deed dated 22.03.1938 different from measurement shown in khata and therefore measurements in khata were erroneous. Perusal of sale deed at Annexure-A reveals measurement of property demised therein is 69 hands East-West and 71 hands South-North. Though petitioner claims it as 103.5 ft. x 106.5 ft., there is apparently no proper basis for it. Further, illegal construction by Jamiya Masjid Ningapur Mohalla, Nandgad over portion of said property would

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8 - NC: 2024:KHC-D:6664 WP No. 102819 of 2018 C/W WP No. 108606 of 2017

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indicate existence of rival claims or dispute with regard to measurements of property. Taking note of same, PDO has rightly relegated parties to approach Civil Court for resolution of dispute regarding measurements etc.

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Consequently, until dispute regarding measurement and title is settled before competent Court, petitioners’ allegation against Jamiya Masjid Ningapur Mohalla, Nandgad would remain unsubstantiated.

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In view of above, it would be appropriate to relegate petitioner to Civil Court for settlement of dispute regarding measurement and holding formation of road subject to outcome of suit, in case appropriate civil suit is filed.

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With above observations, writ petitions are disposed of by

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keeping open all contentions.

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Sd/JUDGE

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CLK

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List No.: 1 Sl No.: 37

Sri.Mohammed Aslam Herekar v. the Deputy Commissioner

Case brief

What is this about?

What did the court decide?

Sri.Mohammed Aslam Herekar v. the Deputy Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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