Allowed

Abdul Rasheed v. the Commissioner

Karnataka HC4 Dec 2024WP/30540/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition challenging a notice withholding construction and a resolution for a smaller alternative site. Relying on a revenue report confirming the petitioner's valid possession, the Court directed the respondents to allot an alternative site matching the petitioner's full 833 sq. feet entitlement within three months.

What did the court decide?

Directed the first and second respondents to allot an alternative site measuring 833 sq. feet to the petitioner within three months.

Abdul Rasheed Vs the Commissioner — Municipal and Town Planning | Karnataka HC (2024)

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NC: 2024:KHC:49928 WP No. 30540 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD

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WRIT PETITION NO. 30540 OF 2018 (LB-RES)

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BETWEEN:

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ABDUL RASHEED TEACHER, S/O.LATE ABDUL SABJAN SAB, HOUSE NO.314, MALLIKARJUNA BADAVANE, AMARAVATHI, HARIHARA, DAVANAGERE DISTRICT-577601.

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…PETITIONER

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(BY SRI. SATYANAND B S.,ADVOCATE)

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AND:

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Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA

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THE COMMISSIONER THE OFFICE OF CITY MUNICIPAL COUNCIL, HARIHARA, DAVANGERE DISTRICT-577601.

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THE CHAIRMAN THE OFFICE OF CITY MUNICIPAL COUNCIL, HARIHARA, DAVANAGERE DISTRICT-577601.

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THE DEPUTY COMMISSIONER THE OFFICE OF THE DEPUTY COMMISSIONER, KARURU INDUSTRIAL AREA,

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NC: 2024:KHC:49928 WP No. 30540 of 2018

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DAVANAGERE HARIHARA ROAD, DAVANAGERE DISTRICT-577006.

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…RESPONDENTS

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(BY SMT. CHANDINI, HCGP FOR R3; SRI. M.R. PATIL, ADVOCATE FOR R1 AND R2)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUITON OF INDIA PRAYING TO QUASH THE NOTICE DATED 05.05.2010 ISSUED BY THE R-1 [ANNEXURE-E] AND FURTHER DIRECT HIM TO IS ISSUE/RESTORE THE LICENSE/PERMISSION TO THE PETITIONER TO PUT UP CONSTRUCTION OVER THE SCHEDULE PROPERTY AS PER ANNEXURE-D; QUASH OR SETTING ASIDE THE RESOLUTION NO.9 DATED 1.7.2015 PASSED BY THE R-2 TO THE EXTENT OF MESUREMENTS OF AN ALTERNATIVE SITE [ANNEXURE-K]; DIRECT TO THE RESPONDENTS TO ALLOT AN ALTERNATIVE SITE OF THE SAME MEASUREMENTS AS THAT OF THE SCHEDULE PROPERTY IN LIEU OF THE SCHEDULE PROPERTY [ANNEXURE-K]; DIRECT THE R-1 AND 2 TO PAY COMPENSTION OF RS.5,00,000/- TO THE PETITIONER FOR CAUSING DAMAGE TO THE SCHEDULE PROPERTY AND FOR CAUSING HARASSMENT AND UNEXPLAINED MENTAL AGONY; RESTRAIN THE RESPONDENTS FROM EITHER INTERFERING WITH THE PEACEFUL POSSESSION AND ENJOYMENT OF THE SCHEDULE PROPERTY AND ALSO FROM ALTERING NATURE OF THE LAND EITHER BY LAYING THE SANITARY PIPES OR FORMING AN ROAD OVER THE SCHEDULE PROPERTY.

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3 - NC: 2024:KHC:49928 WP No. 30540 of 2018

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD

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ORAL ORDER

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The petitioner, calling in question the second respondent's Notice dated 05.05.2010 [Annexure-E] and the Resolution dated 01.07.2015 [Annexure-K], has sought for directions to the respondents to allot an alternative site. The petitioner has also sought for certain other reliefs, but these are essentially in aid of the request for directions to the respondents to allot an alternative site. The impugned Notice dated 05.05.2010 is issued informing the petitioner that the Building Plan issued in his favour is withheld and he must stop the construction. In the impugned Resolution dated 01.07.2015, the second respondent has resolved to allot to the petitioner an area measuring 7 ft x 30 ft as against the petitioner's property measuring 833 sq. feet.

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4 - NC: 2024:KHC:49928 WP No. 30540 of 2018

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This Court must observe that it remains

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undisputed that the petitioner, asserting transfer under the Sale Deed dated 11.01.2010 and transfer of Katha for the property measuring [9+25] x 49/2 feet [833 sq. feet] and a Building Licence dated 27.04.2010 for this measurement, has begun construction and that when this construction is under way [as seen in the photograph at AnnexureN], he is called upon to stop the construction. The petitioner has filed a suit in O.S. No.87/2010 against the neighbors and this suit is decreed on 25.01.2012.

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The second respondent, after having stopped the construction and considering the petitioner's representation expressing willingness to give up his property as against allotment of an alternative site, has decided to allot 7 ft x 30 ft. The petitioner has given up his property with the second respondent accepting the same and constructing a Road. The second respondent's justification to allot

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NC: 2024:KHC:49928 WP No. 30540 of 2018

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7 ft x 30 ft is that though the petitioner's Sale Deed and the subsequent document refer to an extent measuring 9 + 25/ 2 X 49 Feet, he was in possession of only 7 ft x 30 ft. The second respondent’s stand shows that if it is indeed shown that the petitioner was in possession of the aforesaid extent, the first and second respondents would allot an alternative site that will be commensurate with the measurement of the petitioner's property.

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In the light of the afore, this Court has called upon the third respondent [the jurisdictional Deputy Commissioner] to appoint a Surveyor to visit the petitioner's property in terms of the Sale Deed and file a Report. The third respondent has ensured that the Director of Land Records, Harihara has inspected the petitioner's property, and this Officer has filed a Report with this Court. This Report confirms that the petitioner had the advantage of the revenue entries for the property measuring 9 + 25/ 2

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6 - NC: 2024:KHC:49928 WP No. 30540 of 2018

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X 49 Feet, that when the subject property is measured with reference to such revenue entries and the revenue entries for the adjacent properties, it shows that the petitioner's property is used for formation of a Road . This Report remains unopposed and clinches the issue for the petitioner. If the petitioner has given up this property in consideration of the first and second respondents allotting an alternative site, the petitioner must be allotted such an alternative site. Hence the following:

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ORDER

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[a] The petition is allowed.

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[b] The first and second respondents are directed to allot an alternative site measuring 833 sq. feet to the petitioner within a period of three [3] months from the date of receipt of a representation along with a certified copy of this Order.

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NC: 2024:KHC:49928 WP No. 30540 of 2018

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c] The petitioner is reserved with liberty to file such representation and a certified copy of this order within four [4] weeks from the date of receipt of a certified copy.

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Sd/(B M SHYAM PRASAD) JUDGE

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AN/-

Abdul Rasheed v. the Commissioner

Case brief

What is this about?

What did the court decide?

Abdul Rasheed v. the Commissioner

Case brief

What is this about?

What did the court decide?

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