Sri Hanumantharayappa Vs the State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ENDORSEMENT DTD 10.10.2017 ISSUED BY THE R-2 VIDE ANNX-A AND THE ORDERS PASSED BY THE R-3 DTD 23.08.2017 AT ANNX-R AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL ORDER

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In the captioned writ petition, the petitioner is aggrieved by the order dated 23.08.2017 passed by respondent No.3-The Executive Officer, Taluk Panchayath,

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HC-KAR

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Siddlaghatta Taluk, Chikkaballapura District, wherein the

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post enquiry, respondent No.3 has resolved to maintain a 8 feet road on the southern side of the property bearing House list Nos.40, 41 and 42, which is evidenced at Annexure-R.

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The petitioner, who is the owner of the house list Nos.43, 44 and 57/D2 is before this Court alleges that 12 feet road existed between the properties Nos.41 to 43 on the one hand on the northern side and property Nos.44 and 45 on the southern side is now altered and reduced to

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8 feet. Therefore, the captioned writ petition is filed.

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Facts leadings to the case are as under;

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The petitioner claims ownership of the properties

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bearing House List Nos.43, 44, and 57/D2. In support of this claim, the petitioner relies on the Katha documents, which indicate the existence of a 12 feet road located to the south of House List No.43. Similarly, with respect to House List No.44 situated to the south of the said road,

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the northern boundary is described as abutting a 12 feet road. The petitioner further refers to the sale deed of the father of respondent Nos. 5 to 7, namely Krishnappa, who is owner of House List Nos.40, 41, and 42. The title document pertaining to House List No.41, produced at Annexure-H, specifically describes a 12 feet road abutting the southern boundary of the said property. Based on these title documents and Khatas, the petitioner contends that the private respondents are attempting to unlawfully reduce the width of the road from 12 feet to 8 feet. It is alleged that respondent No.3, acting at the behest of the private respondents and without properly verifying the relevant title documents, has passed a resolution to retain the road at a reduced width of 8 feet.

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Heard learned Senior Counsel appearing for the petitioner, learned counsel appearing for respondent Nos.5

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to 7, learned AGA appearing for respondent No.1 and learned standing counsel appearing for respondent Nos.2 to 4.

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HC-KAR

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This Court has meticulously examined the

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documents appended to the writ petition. The impugned order, passed by respondent No.3, contains a categorical finding that to the south of House List Nos.40, 41, and 42, 8 feet wide road exists. However, this factual finding recorded by respondent No.3 is demonstrably incorrect and stands in stark contradiction to the title documents forming part of the record, particularly the sale deed executed in favour of the father of private respondent Nos.5 to 7. A plain reading of these documents indicates that to the south of House List No.41, there is a 12 feet wide road. This material discrepancy suggests that the Authority, while arriving at its conclusion, has not adverted to or considered the relevant title deeds. The impugned order is silent on any reference to these vital title documents and khatas , thereby rendering the factual conclusion untenable in law.

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Additionally, the petitioner has placed reliance on Annexure-H as well as the khatha certificates issued by

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the jurisdictional Grama Panchayath pertaining to House List Nos.40 to 45. These khatha documents, issued in respect of the properties owned by the concerned parties, uniformly record the existence of a 12 feet wide road abutting these house sites. Despite the consistent reference to a 12 feet road in the khatha entries, respondent No.3 has failed to examine or even refer to these crucial pieces of documentary evidence in the impugned order. This omission further vitiates the credibility of the finding recorded regarding the road’s width.

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It is trite that roads abutting private properties, particularly those maintained by the Panchayath, are part of public property and must be protected and maintained in accordance with law. Any decision by the Panchayath to reduce or alter the width of such roads must be undertaken only after complying with the procedure prescribed under law. If the Panchayath intends to widen the road, it must do so by initiating appropriate

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proceedings under the Land Acquisition Act or other applicable statutes. Conversely, if the width of the road is sought to be reduced from 12 feet to 8 feet, even such reduction must follow due process. In the instant case, the finding recorded by respondent No.3, which limits the width of the road to 8 feet, is contrary to the sale deeds and Panchayath records and is, therefore, palpably erroneous. The sketch produced by the petitioner, though its authenticity is disputed by the private respondents, depicts the layout of the area and the location of House List Nos.41 to 45. The petitioner has also placed on record khatha certificates relating to all these sites, and in each

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of these, the existence of a 12 feet road is unequivocally reflected. The unilateral conclusion drawn by respondent No.3, without due consideration of these documents, cannot be sustained.

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In light of the foregoing, this Court is of the

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opinion that the matter warrants reconsideration by respondent No.3. Accordingly, respondent No.3 is directed

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to conduct a fresh and detailed enquiry after issuing notices to the owners of the properties bearing House List Nos.41, 42, 43, 44, 45, and 57/D2. The enquiry shall be preceded by a proper spot inspection and survey of the area in question. While undertaking this exercise, respondent No.3 shall specifically examine the width of the road in light of the sale deeds and khatha certificates issued by the Grama Panchayath, with particular reference to the properties bearing House List Nos.41 to 45. After conducting the enquiry and affording all concerned parties a reasonable opportunity of hearing, respondent No.3 shall pass appropriate orders in accordance with law.

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It is further directed that if respondent No.3 is of the opinion that the Panchayath records pertaining to the disputed road are necessary for proper adjudication, steps shall be taken to secure and examine such records during the course of the enquiry.

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ORDER

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(i) The writ petition is allowed.

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(ii) The endorsement dated 10.10.2017 issued by respondent No.2, as per Annexure-A, and the order dated 23.08.2017 passed by respondent No.3, as per Annexure-F, are hereby quashed.

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(iii) The matter is remitted to respondent No.3 for fresh enquiry.

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(iv) Respondent No.3 is directed to undertake the enquiry afresh, strictly in accordance with the observations made by this Court hereinabove and in compliance with due process of law.

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SD/(SACHIN SHANKAR MAGADUM) JUDGE

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NBM

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List No.: 1 Sl No.: 36

Sri Hanumantharayappa v. the State of Karnataka

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Sri Hanumantharayappa v. the State of Karnataka

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