Allowed

Dr Babasaheb Ambedkar Seva Samiti (R) v. the State of Karnataka

Karnataka HC7 Nov 2024WP/106369/2024

Case brief

AI extract

What is this about?

Petitioner sought writs to quash orders quashing its valid allotment of a community Bhavan and for direction to restore possession. Court held respondents violated natural justice by refusing hearing and disobeyed interim order. Petition allowed, orders quashed, possession directed to be restored immediately.

What did the court decide?

Impugned orders quashed. Mandamus to restore possession of Dr. B.R. Ambedkar Bhavan to petitioner by end of day on 07.11.2024.

Dr Babasaheb Ambedkar Seva Samiti (R) Vs the State of… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC-D:16290 WP No. 106369 of 2024

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 07^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO. 106369 OF 2024 (LB-RES)

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BETWEEN:

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DR. BABASAHEB AMBEDKAR SEVA SAMITI (R), ILKAL, REPRESENTED BY ITS SECRETARY OF DR. BABASAHEB AMBEDKAR SEVA SAMITI (R), SMT. SHOBHA W/O. SIDDANNA AMADIHAL, AGE: 55 YEARS, OCC: SECRETORY, R/O. WARD NO.1, AMBEDAKAR COLONY, NEAR CENTER SCHOOL, ILKAL, DIST: BAGALKOTE, PIN CODE-587125.

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…PETITIONER

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(BY SRI B. SHARANABASAWA, ADVOCATE,)

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AND:

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MALLIKARJUN RUDRAYYA KALMATH

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Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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THE STATE OF KARNATAKA, URBAN DEVELOPMENT DEPARTMENT, VIKASA SOUDHA, BENGALURU-560001, REPRESENTED BY ITS SECRETARY.

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THE DIRECTOR OF MUNICIPAL ADMINISTRATION, NO.9, VISHWESHWARAYYA TOWER, AMBEDKAR VEEDHI, BENGALURU NO.1.

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THE REGIONAL COMMISSIONER, BELAGAVI DIVISION, BELAGAVI, TQ: AND DIST: BELAGAVI-590001.

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THE DEPUTY COMMISSIONER, BAGALKOTE DISTRICT, BAGALKOTE, TQ: AND DIST: BAGALKOTE-587125.

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NC: 2024:KHC-D:16290 WP No. 106369 of 2024

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THE COMMISSIONER, CITY MUNICIPAL COUNCIL, ILKAL, TQ: ILKAL, DIST: BAGALKOTE-587125.

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…RESPONDENTS

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(BY SRI GANGADHAR J.M., ADDITIONAL ADVOCATE GENERAL AND SRI ASHOK T. KATTIMANI, ADDITIONAL GOVERNMENT ADVOCATE FOR R1-R4;

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SRI SHARANABASAVARAJ C.S., ADVOCATE FOR R.5.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227

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OF THE CONSTITUTION OF INDIA, PRAYING TO:

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a) ISSUE A WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED ORDERS DATED 03/07-09/2024, BEARING NO.�� /127/2023-24, PASSED BY THE RESPONDENT NO.4 VIDE ANNEXURE-K.

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b) ISSUE A WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED ORDER DATED 24/09/2024, BEARING NO. � � � � � � �� 2024-25, PASSED BY THE RESPONDENT NO.3 VIDE ANNEXURE-L.

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c) ISSUE A WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE LETTER/NOTICE DATED 25/10/2024 BEARING NO. � �� �� �� 2024-25 ISSUED BY THE RESPONDENT NO.5, VIDE ANNEXURE-M.

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d) ISSUE A WRIT IN THE NATURE OF MANDAMUS TO CONTINUE THE POSSESSION OF THE PETITIONER, IN RESPECT OF THE PROPERTY BEARING CTS NO.1 I.E., DR. B.R. AMBEDKAR BHAVAN, OF ILKAL TOWN, WHICH WAS ALLOTTED TO THE PETITIONER FOR MAINTENANCE AND SUPERVISION, BY PASSING A RESOLUTION DATED 26/08/2015, IN SUBJECT NO.5 AND DECISION NO.162, BY THE COUNCIL OF 5^TH RESPONDENT VIDE ANNEXURE-B AND BY PASSING THE OFFICE ORDER DATED 07/09/2015, BEARING NO. NA, SA, E/1588/2015-16, BY THE RESPONDENT NO.5 VIDE ANNEXURE-C.

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e) ISSUE SUCH ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR)

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Heard the arguments of learned counsel for the petitioner, learned counsel for respondent No.5 along with learned Additional Advocate General and Additional Government Advocate for respondents No.1 to 4.

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2. Petitioner is seeking to quash the impugned order at Annexure-K, Annexure-L and Annexure-M issued by respondents No.4, 3 and 5, respectively and consequently for the relief of mandamus to continue in possession of the petition schedule property in question.

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3. Petitioner is an association registered under the Societies Registration Act. It is formed for the betterment of the public, benefit of social welfare and social justice with an intention to provide and facilitate the people of the community, more particularly scheduled castes and scheduled tribes and help them to get benefits from the Central and the State Governments effectively. In pursuance

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to reaching their objectives, the petitioner made an application to allot newly constructed Dr.Baba Saheb Ambedkar Bhavan in property bearing CTS No.1 for maintenance and supervision of the same by the petitioner society.

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4. The 5^th respondent municipality by identifying and appreciating the functions of the petitioner society, allotted the said Bhavan to the petitioner society for maintenance and supervision and the committee of the Municipal Council of the 5^th respondent passed a resolution on 26.08.2015 in subject No.5 and decision No.162 of its General Body Meeting to allot the Bhavan bearing CTS No.1 to the petitioner society for its purpose by imposing certain conditions. In pursuance to this, the 5^th Respondent passed an official order to allot the Bhavan to the petitioner for the said purpose by its resolution dated 26.08.2015 and official order dated 07.09.2015. Thereafter, the name of the petitioner society is entered in the property khata register of the 5^th Respondent showing the ownership of the property as City Municipal Council and the person in possession to be the

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petitioner society. Petitioner has also obtained electricity connection from the HESCOM Department and he has been regularly paying the electricity bills.

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5. It is the contention of the learned counsel for the petitioner that pursuant to the allotment of the Bhavan, the petitioner has been utilizing this Bhavan for various functions and activities including the Government functions and the 5^th respondent has also utilized the said Bhavan for various functions and activities at a nominal cost only collected for the purpose of cleaning, providing electricity and miscellaneous expenses. It is further contended that during the period 2015 there were no complaints against the petitioner society and the use of the Bhavan. This being the state of affairs, respondent No.3 passed a general order on 28.06.2023, stating that the respective municipalities of the district to conduct auction proceedings in respect of various Samudhaya Bhavan situated within municipality limits as per section 72 of the Karnataka Municipalities Act. Due to the apprehension of cancellation of allotment or continuation of his possession over the Bhavan, the petitioner preferred a

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Writ Petition No.104093/2023 challenging said order, seeking such other reliefs from this Court. The said writ petition came to be disposed of holding that the petition was premature and liberty was reserved to the petitioner to approach the authorities by making such representations which should be considered in accordance with law and by giving a fair opportunity of hearing.

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6. This being the state of affairs, the 5^th respondent issued a notice to the petitioner dated 27.10.2023 fixing the date of appearance of the petitioner on 03.11.2023 at 11.00 a.m. directing the petitioner to produce relevant documents in support of their claim. Thereafter, the petitioner appeared before the 5^th respondent on 03.11.2023 and submitted its reply along with documents of their claim. Pursuant to the reply given by the petitioner, no orders came to be passed and all of a sudden without any further notice, respondent No.4 has illegally and arbitrarily exercised powers under the provisions of section 309 of the Karnataka Municipalities Act, 1964, passed an order on 03/07-09/2024 by suspending the resolution passed by the council of the 5^th respondent dated

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26.08.2015. Pursuant to passing of this order, the proceedings were submitted to the office of the 3^rd respondent for approval of the same and the 3^rd respondent by order dated 24.09.2024 passed an order approving the order of the 4^th respondent. The 3^rd respondent, 4^th respondent and the 5^th respondent, without providing any opportunity to the petitioner came to the premises, that is the Ambedkar Bhavan where the petitioner was in possession and maintaining it and supervising it from 2015, along with the police officials, Tahasildar and other municipality staff forcibly took possession, threatened the office bearers and some leaders of the community and locked the said premises. The entire community was shocked with the forcible action of 5^th respondent, police officials fearing criminal actions, they were helpless and hence the petitioner is before this Court against the illegal actions of the respondents.

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7. It is the contention of learned counsel for the

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petitioner that the action of the respondents is illegal, arbitrary, violative of the principles of natural justice. No

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opportunity of hearing, no notice has been provided before initiating any action or taking forcible possession. It is also contended by learned counsel for the petitioner that pursuant to the petitioner approaching this Court, this Court passed an interim order on 30.10.2024 wherein the stay of execution and operation of further proceedings of the impugned order was passed and in consequence the premises having been locked, it was ordered against the 4^th respondent to restore the possession in favour of the petitioner on or before 05.11.2024 and to report the same to this Court by filing necessary memo or document.

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8. Learned counsel for the petitioner further contends that this order was not complied and is blatant violation. The respondents have acted illegally against the order of this Court deliberately disobeying the orders passed by this Court and till date the possession has not been handed over pursuant to the interim order passed by this Court. On these grounds he seeks to allow the petition and quash the impugned orders passed by the respondents No.3, 4 and 5.

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9. Per contra, learned counsel for respondent No.5 has filed detailed statement of objections contending that the petition itself is not maintainable; on the other hand has taken up the plea for vacating interim order stating that the petition itself is not maintainable on the ground that the petitioner is not the owner of the Bhavan, which is the subject matter of this petition. The said Bhavan belongs to the Municipality/Government, the municipality having constructed at the cost of the Government and the petitioner was only given permission to supervise the building by its resolution No.162 dated 26.08.2015 and no further right was given to the petitioner with regard to the Bhavan. It is also contended by learned counsel for respondent No.5 that the petitioner has not been given any lease, any legal right to occupy the premises except to supervise and maintain the said building. Therefore, he contends that the action of the respondents in giving a notice and thereafter initiating process for recovery and taking possession of the property is in accordance with Section 72 of the Karnataka Municipalities Act is justified. Therefore there is no illegality or violation

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committed by the respondents in issuing notice and taking possession of the property.

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10. Learned counsel further contends that the question of issuing any further notice or conducting enquiry would not arise for the reason that the petitioner is not having any leasehold rights or for that matter any possessory right over the property given by respondent No.5. Therefore, when he has no vested legal right, the question of issuing notice and hearing the petitioner would not arise. It is also contended by learned counsel for respondent No.5 that pursuant to the orders passed by this Court in Writ Petition No.104093/2023, notice came to be issued and accordingly they have acted in legal manner without violating any of the rules of the statute. It is also contended by the learned counsel that along with the statement of objections, he has filed an application seeking to vacate the interim order granted by this Court.

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11. In support of his case, learned counsel for respondent No.5 has relied upon a judgment of a Co-ordinate Bench of this Court in W.P.No.112012/2019 (LB-

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UC) connected with other matters, more specifically relying upon paragraph No.25 of the said judgment in support of his case, which reads as under.

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“25. Before parting with this petition, this Court deems it necessary to remind our citizens that public property should be respected and should not be allowed to be misused or wasted. Time and again the Hon’ble Supreme Court has held that the natural resources, which also include lands, along with the public properties are held by the State as a trustee. This doctrine of trust and the trusteeship vested in the State needs to be respected. It is high time that the citizens of the State understood the value of public property, that public property belongs to each one of us and the citizens should ensure that public properties are put to best use and they would fetch the best price which would ultimately go into the coffers of the State. Public property shall not become the fiefdom of a few.”

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12. Learned Additional Advocate General appearing

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on behalf of the State contends that there is no inherent right vested with the petitioner to approach this Court for seeking any relief, much less questioning the impugned orders for the reason that from 2015 till the date of locking of the premises and taking possession by respondent No.5, the petitioner has not paid a single penny towards the

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premises and he has not been given any leasehold rights or for that matter any right to occupy the premises except for the resolution passed by the respondent No.5 as provided at Annexure-B resolution and the official order passed at Annexure-C.

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13. When it is seen from the application filed by respondent No.5 for vacating the interim order stated at paragraph No.7 that the interim order of this Court was communicated to respondent No.5 on 04.11.2024. However, he has also stated that respondent No.5 has highest regards for the orders of this Court and to obey the orders passed by this Court, but admittedly the orders of this Court are not obeyed on the ground that he has moved this application for vacating the interim order and also by filing the statement of objection on the ground that the petitioner does not have any legal right. Some of the admitted facts are that there is no dispute with regard to the petitioner being given the Bhavan by respondent No.5 by virtue of Annexure-B and C to maintain and supervise the Bhavan in the year 2015 by way of a resolution passed on subject No.5 and decision No.162

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of its General Body Meeting with regard to CTS No.1. It is also not in dispute that the petitioner has been carrying on activities of maintenance and supervision of the Bhavan from August 2015 till the date of forceful possession being taken by respondent No.5. It is also not in dispute that all the respondents have utilized the premises for conducting some activities or the other and till the date of taking possession, the Bhavan was in possession of the petitioner. The question that boils down for consideration before this Court is whether the respondent State and the Municipality, agency of the State are vested with any powers and legal right to evict and occupy the premises without following the due process of law even if it be for that matter the petitioner or any occupant of the premises is in possession or occupation without any legal right or authority.

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14. In the present case it cannot be disputed by respondent No.5 that possession of the premises has been given by virtue of a resolution passed at Annexure-B and the order at Annexure-C way back in August 2015 and from then the petitioner has been supervising and managing the affairs

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of the Bhavan by conducting several activities. Since the eviction orders with regard to unauthorized occupation of all the Bhavans was ordered, the petitioner had approached this Court by filing a writ petition being apprehensive of the petitioner being evicted, an order came to be passed by this Court disposing of the petition being premature, however, provided liberty to the petitioner to produce all documents of allotment in his favour to the respondent, which the respondents shall consider the same and pass suitable order after giving an opportunity of hearing, pursuant to which the notices which are questioned here and the action initiated by the respondents or initiated by respondent No.5, it is seen that a notice has been issued by respondent No.5 on 27.10.2023 by fixing the date of hearing as 03.11.2023 directing the petitioner to produce documents. The petitioner appeared before the 5^th respondent on 03.11.2023, submitted his reply in support of his claim, but thereafter no inquiry was conducted and subsequently on 03.07/09.2024 an order came to be passed under section 309 of the Act of 1964 by suspending the resolution passed by the council of

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the 5^th respondent dated 26.08.2015 by which the petitioner had taken possession of the Bhavan by way of a resolution. Therefore, it appears that pursuant to the notice, and no action being taken, straight away all of a sudden and by surprise, respondent No.4 has exercised the powers under the provisions of section 309 of the Act of 1964.

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15. Respondent No.3 being the Regional Commissioner for approval of the order who passes the order under section 309 of the Act, the Regional Commissioner’s order which is at Annexure-L is in pursuance to order under section 306 issued by respondent No.4 exercising the powers under section 309 of the Act and forwarded to respondent No.3, who has passed an order on 24.09.2024 on the basis of the order passed by respondent No.4 at Annexure L, which is in the guise of the powers under section 309 of the Act. It is also relevant to notice that in pursuance to issuance of these orders, respondents No.4 and 5 along with the police officials and other staff of the municipality have taken forceful physical possession of the Bhavan, which was in possession of the petitioner. The photographs of the same

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have been produced, which again is not in dispute as the possession is now not with the petitioner and the same is with respondent No.5.

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16. From the actions of the respondents it is clearly apparent and evident that pursuant to issuance of the notices and the orders passed under the provisions of section 306 and in the guise of 309 of the Act, the physical possession of the Bhavan/premises has been taken over by respondent No.5 and despite an order passed by this Court on 28.10.2024 to restore the possession of the locked premises taken by respondent No.4 in favour of the petitioner on or before 05.11.2024, the same is not adhered and obeyed by respondent No.5. Under the circumstances, it is apparently clear that the respondents No.4 and 5 have absolutely no respect for the orders passed by this Court in complying with the said order, which was communicated admittedly on 04.11.2024 and the respondents have moved an application for vacating the interim order on 06.11.2024 by filing the statement of objections and today when the matter is taken up on 07.11.2024, it is submitted by the

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petitioner on enquiry that possession of the premises is not handed over to the petitioner. The same is taken note of.

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17. Now coming to the judgment relied by the learned counsel for the respondent No.5 in W.P.No.112012/2019, the ratio laid down by the Co-ordinate Bench of this Court is not disputed or questioned by the learned counsel for the petitioner. Such an order passed is laudable in the interest of general public and the citizens with regard to Government properties and properties belonging to the State.

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18. Be that as it may, merely because a property belongs to the Government and the State agencies, it does not mean that they are above the law and they could initiate process and procedure in violation of the principles of natural justice and the procedures laid down in law and the statutes. Even in the judgment relied by respondent No.5, the factual matrix clearly shows that the process for initiation of eviction was initiated before the appropriate forum under the provisions of the relevant Act under the facts and circumstances of the said case.

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19. Coming back to the present case on hand, after issuance of notice, no proper procedure is followed or adopted by respondent No.5 by giving a fair opportunity of hearing and conducting enquiry with regard to the possession and taking possession of the property from the petitioner in accordance with law. Respondent No.5 has assumed himself to be having the powers beyond what is prescribed in the statute and has forcefully taken possession without adverting to legal procedures available in law and as provided in the statute.

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20. Under the circumstances, this Court is of the opinion that the process and procedure adopted by respondent No.5 is deplorable and such actions of the respondent acting in the guise of the authorities of the State cannot be sustained. More so, when an interim order is passed by this Court, which is not obeyed, calls for strict action against the respondent. Under the circumstances, I pass the following:

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ORDER

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i) The petition is allowed.

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ii) The impugned order at Annexure-K dated 03.07/09.2024 passed by respondent No.4, the order dated 24.09.2024 passed by respondent No.3 at Annexure-L and the communication/ letter/notice dated 25.10.2024 passed by respondent No.5, vide Annexure-M, are hereby quashed.

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iii) A writ of mandamus is hereby issued directing respondent No.5 to restore and handover the possession of Dr.B.R.Ambedkar Bhavan, situated at property bearing CTS No.1 of Ilkal town forthwith to the petitioner by the end of the day before 05.00 p.m. today on 07.11.2024 and the same shall be reported to this Court by way of filing an affidavit in the Registry.

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iv) Ordered accordingly.

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v) Later at 04.45 p.m. learned counsel for respondent No.5 reports handing over the possession of the Bhavan to the petitioner, which is acknowledged by the learned counsel for the

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petitioner.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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MRK CT-MCK List No.: 1 Sl No.: 18

Dr Babasaheb Ambedkar Seva Samiti (R) v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Dr Babasaheb Ambedkar Seva Samiti (R) v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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