Dismissed

Basappa S/O. Siddlingappa Hulyal v. the Municipal Commissioner

Karnataka HC2 Apr 2024WP/69840/2012

Case brief

AI extract

What is this about?

Writ petitions filed by landowners and purchasers seeking to quash orders requiring them to restore specific sites designated as civic amenities to the municipal authority. The court held statutory provisions mandate such sites remain for public use unless strong reasons exist for divestment, and upheld the impugned orders while allowing parties to sue the responsible officers personally.

What did the court decide?

Petitioners directed to proceed against the Deputy Commissioner and Secretary personally to claim compensation for any loss suffered.

Basappa S/O. Siddlingappa Hulyal Vs the Municipal… — Landlord and Tenant | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:6029 WP No. 69840 of 2012 C/W WP No. 63745 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MRS. JUSTICE M.G.UMA

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WRIT PETITION NO.69840/2012(LB-RES) C/W

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WRIT PETITION NO.63745/2012

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IN WP.NO.69840/2012:

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BETWEEN:

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BASAPPA S/O. SIDDLINGAPPA HULYAL, SINCE DECEASED BY HIS LR’S.

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1A. SMT. SUMANGALA W/O. BASAPPA @ BASAVARAJ HULYAL, AGED ABOUT 55 YEARS, OCC: HOUSEHOLD WORK, R/O: HULYAL LAYOUT, VINAYAK NAGAR, BAGALKOT, DIST: BAGALKOT – 587 101.

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CHANDRASHEKAR LAXMAN KATTIMANI

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Date: 2024.04.10 15:20:48 +0530

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SHIVAPPA S/O. SIDDLINGAPPA HULYAL, AGE: 35 YEARS, OCC: BUSINESS, R/O: BAGALKOT, TALUK AND DIST: BAGALKOT, BY HIS POWER OF ATTORNEY HOLDER, BASAPPA S/O. SIDDLINGAPPA HULYAL.

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PARAPPA S/O. SANGAPPA KERUR, AGE: 38 YEARS, OCC: AGRICULTURE, R/O: BAGALKOT, TALUK AND DIST: BAGALKOT, BY HIS POWER OF ATTORNEY HOLDER, BASAPPA S/O. SIDDLINGAPPA HULYAL.

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…PETITIONERS

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(BY SRI S.B.HEBBALLI, ADVOCATE)

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AND:

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THE MUNICIPAL COMMISSIONER, CITY MUNICIPAL COUNCIL, NAVANAGAR, BAGALKOT – 587 103.

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BAGALKOT TOWN PLANNING AUTHORITY, REPRESENTED BY ITS MEMBER – SECRETARY, VIDYAGIRI, BAGALKOT.

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STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, BANGALORE.

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THE DEPUTY COMMISSIONER, BAGALKOT DISTRICT, BAGALKOT.

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…RESPONDENTS

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(BY SRI G.K.HIREGOUDAR, ADVOCATE FOR R1; SRI S.S.BETURMATH, ADVOCATE FOR SRI K.L.PATIL, ADVOCATE FOR R2; SRI P.N.HATTI, HCGP FOR R3 AND R4)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED PASSED BY THE RESPONDENT NO.1 AND 2 IN NO. 7, 8, 21, 23 TO 36/2011/258 DATED 21.05.2012 VIDE ANNEXURE-Q AND ETC.,

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IN WP.NO.63745/2012:

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BETWEEN:

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SIDDAPPA S/O. VIRUPAXAPPA BALAGANUR, AGE: 31 YEARS, OCC: BUSINESS, R/O: WARD NO. 21, HULYAL LAYOUT,

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3 - NC: 2024:KHC-D:6029 WP No. 69840 of 2012 C/W WP No. 63745 of 2012

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BAGALKOT,

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DIST: BAGALKOT – 587 101.

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…PETITIONER

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(BY SRI V. M. SHEELVANT, ADVOCATE)

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AND:

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CITY MUNICIPAL COUNCIL, BY ITS MUNICIPAL COMMISSIONER, NAVANGAR,

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BAGALKOT – 587 103.

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TOWN PLANNING AUTHORITY, BY ITS MEMBER SECRETARY, VIDYAGIRI, BAGALKOT.

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THE DEPUTY COMMISSIONER, BAGALKOT, DISTRICT BAGALKOT – 587 103.

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STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, BANGALORE.

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…RESPONDENTS

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(BY SRI G.K.HIREGOUDAR, ADVOCATE FOR R1; SRI S.S.BETURMATH, ADVOCATE FOR SRI K.L.PATIL, ADVOCATE FOR R2; SRI P.N.HATTI, HCGP FOR R3 AND R4)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI, QUASHING THE ORDER PASSED BY THE RESPONDENT NOS.1 AND 2 IN CASE NO.14, 16, 18, 20/2011/264 DATED 21/05/2012, WHICH IS AT ANNEXURE-Q TO THIS WRIT PETITION AND ETC.,

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

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COMMON ORDER

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The petitioners have approached this Court seeking to grant writ in the nature of certiorari to quash the order dated 21.05.2012 passed by respondent Nos.1 and 2 as per Annexure-Q.

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Heard Sri S.B. Hebballi and Sri V.M. Sheelvant, learned counsel for the petitioners and Sri G.K. Hiregoudar, learned counsel for respondent No.1, Sri S.S. Beturmath for Sri K.L. Patil, learned counsel for respondent No.2 and Sri P.N. Hatti, learned HCGP for respondent Nos.3 and 4 in both the petitions. Perused the materials on record.

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Learned counsel for the petitioners submits that the petitioners in W.P.No.69840/2012 are the owners of the land in which the layout is formed and the petitioners in W.P.No.63745/2012 are the purchasers of three sites from the petitioners in the other petition. They are impugning the order dated 21.05.2012 passed by respondent Nos.1 and 2 produced as per Annexure-Q.

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Learned counsel for the petitioners in both the

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petitions submitted in unison that the owners of the agricultural

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land totally measuring 8.18 acres in Bagalkot comprised in Sy.Nos.79/1A, 79/1B and 79/1C, got it converted and formed a residential layout with the approval of respondent No.2. As per the said order of approval produced as per Annexure-D, certain terms and conditions were imposed and it was directed that plot Nos.1, 62, 63, 83, 93 and 94 are to be preserved for public purpose i.e., for providing civic amenities. Subsequently, the Deputy Commissioner, Bijapur passed an order as per Annexure-E dated 25.04.1995 relaxing the condition to reserve the sites for civic amenities and permitting the owners to form and make use the residential sites in the same. However, the Secretary, Urban Development Department, Government of Karnataka subsequently cancelled the order passed by the Deputy Commissioner as per his order dated 08.02.2001 produced as per Annexure-T. Subsequently, the order cancelling the earlier order of the Deputy Commissioner passed on 08.02.2001 was cancelled as per Annexure-F dated 05.03.2004. Thereby, upholding the order Annexure-E passed by the Deputy Commissioner. Inspite of confirmation of the order of the Deputy Commissioner, the Town Municipality and the Urban Development Authority, Bagalkote started

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interpreting the orders to their advantage. Therefore, the petitioners and others have filed different writ petitions viz., W.P.Nos.65256/2009, 843/2008, 31355/2008 and 10004/2006.

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In the meantime, the owners of the sites sold the particular sites which were identified as civic amenities sites, in favour of third parties and they were also the petitioners in the writ petitions stated above.

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Learned counsel further submitted that, The Co-ordinate Bench of this Court considered the contentions taken by the petitioners therein and passed the order as per Annexure-L, holding that the Development Authority which is a party to the sanctioned plan and the Municipal Council in which these properties have been now vested are required to pass the orders after issuing notice to the concerned owners as well as the persons alleged to have purchased the sites. Pursuant to the same, the Commissioner of the Town Municipality, Bagalkote and the Member Secretary of the Urban Development Authority, Bagalkote passed the impugned order as per Annexure-Q, rejecting the request made by the owners of the property and directing them to restore the sites

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NC: 2024:KHC-D:6029 WP No. 69840 of 2012 C/W WP No. 63745 of 2012

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concerned to the possession of the Town Municipality. Being aggrieved by the same, the petitioners are before this Court.

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Learned counsel for the petitioners submitted that when the Deputy Commissioner has passed the order as per Annexure-E, the Secretary of the Urban Development Authority had no authority to pass the order as per Annexure-T. When subsequently the Government has withdrawn the order passed as per Annexure-T and confirmed the order of the Deputy Commissioner as per Annexure-E, the Municipal Commissioner and the Member Secretary of the Urban Development Authority could not have passed the order directing the owners to restore possession of the sites to the Town Municipality.

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Learned counsel also submitted that while disposing the batch of the writ petitions by the Co-ordinate Bench of this Court as per Annexure-L, it is directed that the Municipal Council and the Urban Development Authority have to pass an order after issuing notice to the concerned owners. But the Commissioner of Town Municipality and the Member Secretary of the Urban Development Authority have passed the impugned order as per Annexure-Q and therefore, there is noncompliance of the directions issued by this Court.

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8 - NC: 2024:KHC-D:6029 WP No. 69840 of 2012 C/W WP No. 63745 of 2012

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Learned counsel submitted that the petitioners in W.P.No.69840/2012 purchased three sites under the sale deeds dated 24.03.2001 and 27.03.2001 produced as per Annexures-

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A and A1. They are the bona-fide purchasers for value. For the fault of the Government Officials, the rights of the petitioners cannot be infringed. Hence, prays for allowing the petitions, in the interest of justice.

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Per contra learned counsel for the respondents opposing the petitions submitted that when under the provisions of the Karnataka Urban Development Authorities Act, 1987, the civic amenity sites are to be reserved for public purposes, the Deputy Commissioner had no authority to pass the order to relax the condition. The order converting the land into non-agricultural one and approving the layout was subject to the condition that the sites in question are to be reserved for civic amenities. The same cannot be circumvented under any circumstances by permitting the owners to treat it as residential sites and to alienate the same in favour of the third parties. Therefore, they pray for dismissal of the petitions as devoid of merits.

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9 - NC: 2024:KHC-D:6029 WP No. 69840 of 2012 C/W WP No. 63745 of 2012

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The facts and circumstances of the case are not in dispute. The owners of 8.18 acres of agricultural land got converted the same into non-agricultural one, as per the order passed by the Deputy Commissioner produced as per Annexure-A in W.P.No.69840/2012. Later, the layout was formed and the same was approved by the Urban Development Authority, subject to the condition that plot Nos.1, 62, 63, 82, 93 and 94 are to be reserved for civic amenities i.e., for formation of park, community/marriage help or etc. The said order passed approving the layout and reserving the sites for civic amenities was in accordance with the provisions of the Karnataka Urban Development Authorities Act, 1987.

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Strangely, the Deputy Commissioner, Bagalkote passed the order dated 25.04.1995 produced as per AnnexureE, relaxing the condition for reserving the sites for civic amenities and permitted the owners to make use of the sites for residential purposes. Later, the said order of the Deputy Commissioner passed as per Annexure-E was set aside by the Secretary of Urban Development Authority by passing the order dated 08.02.2001 produced as per Annexure-T. It is thereafter the petitioners in W.P.No.63745/2012 purchased three sites on

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24.03.2001 and 27.03.2001 under Annexures-A and A1, produced in the said writ petition. Meaning thereby, these sale deeds were executed by the erstwhile owners in favour of the purchases after passing of the order at Annexure-T dated 08.02.2001, cancelling the order passed by the Deputy Commissioner as per Annexure-E. Under such circumstances, it cannot be contended that the petitioners in WP 63745/2012 are the bona-fide purchasers of the sites in question.

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Strangely, even the Government withdrawn Annexure-E by passing the order dated 05.03.2004 produced as per Annexure-F. Unfortunately either in the order passed by the Deputy Commissioner or in the order passed by the Government withdrawing the order Annexure-E, no valid reasons are assigned and it is not stated under what authority or provision of law, they are passing such orders to bypass the specific provisions of the statute providing for earmarking the sites for civic amenities. It is pertinent to note that AnnexureT, the order dated 8.02.2001 specifically states that the order of the Deputy Commissioner is in clear violation of the specific provisions of law under the Urban Development Authorities Act requiring to earmark the sites for civic amenities.

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NC: 2024:KHC-D:6029 WP No. 69840 of 2012 C/W WP No. 63745 of 2012

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The Karnataka Town and Country Planning Act, 1961 was enacted and the Rules were formulated with an intention to provide for regulation of planned growth of land use and development and for making and execution of town planning schemes in the State of Karnataka. The Karnataka Municipalities Act, 1964 was enacted to consolidate and to amend the law relating to the management of municipal affairs in the towns and cities in the State of Karnataka. Similarly, the Karnataka Urban Development Authorities Act, 1987 with Rules came into effect to provide for the establishment of Urban Development Authorities for the planned development of major and important urban areas in the State and the areas adjacent thereto with connected matters.

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Section 2(h) of the Karnataka Urban Development Authorities Act, 1987 defines the word ‘civic amenity’, which means a market, post office, bank, bus stand or bus depot, fair price shop, milk booth, school, dispensary, maternity home, child care centre, library, gymnasium, recreation centre run by the Government or local authority, centre for educational, religious, social or cultural activities or philanthropic service run by a co-operative society or by a trust created wholly for

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charitable, educational or religious purposes, a police station, an area office or a service station of the local authority. Therefore, the definition of the word ‘civic amenities’ is exhaustive, which cater to provide the needs of every citizen in the locality. Once the civil amenity sites are earmarked in the layout formed by the authority or in the private layout approved by the authority, the same will vest with the local administration free of cost. Once those sites vest with the local authority, there must be strong reasons for divesting for the benefit of the owner.

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Learned counsels for the petitioners are at loss to draw the attention of the Court to any of the provisions in any of the statutes to bypass earmarking the sites for civic amenities for providing public necessities and to permit the owners to make use of the same for their individual benefit.

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It is relevant to refer to the reasons assigned in Annexures-E and F, according to which, since there are schools, hospitals, play grounds, temples in the surrounding area, the condition for earmarking the sites for civic amenities is relaxed. Fortunately, it is not a ground for relaxing the condition under the provisions of the Urban Development Authorities Act or

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under the Karnataka Municipalities Act. It is only the discretion used by the bureaucrats to relax the conditions for the reasons best known to them, without there being any authority in that regard provided under any of the statues. Therefore, I am of the opinion that it is not a fit case to grant any reliefs in favour of the petitioners.

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The orders passed by the Deputy Commissioner and the other bureaucrats as per annexures E and F are in blatant misuse of the power and by flouting the authority under the enactments, for the reasons best known to them. I am of the opinion that the order passed as per Annexure-Q is in accordance with the provisions of both the Karnataka Urban Development Authorities Act and the Karnataka Municipalities Act and there is no violation of any of these statues. Therefore, I do not have any hesitation to uphold the said order, passed in the interest of justice.

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If the prayer made by the petitioners are to be considered and the petitions are to be allowed, it will send a wrong signal to the society and it will be a very bad precedent to be set by this Court. The Court cannot affix its seal for such irregularities simply because several years have lapsed after

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passing such orders by the Deputy Commissioner. Therefore, I am of the opinion that the petitioners are not entitled for the relief claimed.

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At this stage, learned counsel for the petitioners in W.P.No.63745/2012 submitted that the loss suffered by the petitioners by purchasing the properties based on the order passed by the Deputy Commissioner could be made good by reserving liberty to the petitioners to proceed against the Government. But the order passed as per Annexure-E or the order as per Annexure-F were not passed under the colour of duty and it was in fact exceeding their limits. Therefore, I am of the opinion that the officers who have passed the said orders may be made personally liable to make good the loss, if any, suffered by the petitioners. The tax payer money cannot be made use of such purposes.

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In view of the above, I proceed to pass the following;

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ORDER

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Both the petitions are dismissed.

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NC: 2024:KHC-D:6029 WP No. 69840 of 2012 C/W WP No. 63745 of 2012

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The petitioners are at liberty to proceed against the Deputy Commissioner who passed Annexure-E and/or the Secretary, Urban Development Authority who passed Annexure-F, personally to make good the loss, if any, suffered by them, in accordance with law.

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In view of disposal of the main petitions, pending IA’s if any, stands disposed of.

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Sd/JUDGE

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PN CT-ASC List No.: 1 Sl No.: 39

Basappa S/O. Siddlingappa Hulyal v. the Municipal Commissioner

Case brief

What is this about?

What did the court decide?

Basappa S/O. Siddlingappa Hulyal v. the Municipal Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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