Writ Petition No. 27957 of 2015 · The High Court
Case Details
- 1 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH WRIT PETITION NO. 27957 OF 2015 (KLR-RES) BETWEEN: SMT. SHASHIKALA D/O LATE SANJEEVA GOWDA AGED ABOUT 37 YEARS COLLEGE ROAD UJIRE VILLAGE BELTHANGADY TALUK DAKSHINA KANNADA -575001. (BY SRI. S. RAJENDRA, ADVOCATE) AND: …PETITIONER Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA 1. 2. THE ASSISTANT COMMISSIONER PUTTUR SUB-DIVISION PUTTUR DAKSHINA KANNADA - 574214. THE ASSISTANT EXECUTIVE ENGINEER PWD SUB-DIVISION BELTHANGADY DAKSHINA KANNADA - 574214. 3. SRI. KESHAVA BHAT K. S/O SRI. RAMAKRISHNA BHAT AGED ABOUT 45 YEARS UJIRE, ATTAJE HOUSE BELTHANGADY TALUK - 574240. - 2 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR 4. SRI. PRASAD KUMAR S/O SRI KUMARAYYA ARIGA AGED ABOUT 42 YEARS DONGRE COMPOUND BELTHANGADY TALUK DAKSHINA KANNADA - 574 214. 5. SRI. SHAMARAYA ACHARYA S/O DEVAPPA ACHARYA AGED ABOUT 45 YEARS MAIN ROAD, UJIRE BELTHANGADY TALUK DAKSHINA KANNADA - 574 240. 6. SRI. PRABHAT KUMAR S/O MANJUNATH AGED ABOUT 46 YEARS ARUNAJYOTHI
Legal Reasoning
7. SRI. VENUGOPAL S/O PURUSHOTHAM AGED ABOUT 33 YEARS 8. SRI. ASHOK BHAT AGED : MAJOR RESPONDENTS NO.6 TO R8 ARE R/AT UJIRE BELTHANGADY TALUK DAKSHINA KANNADA - 574240. (BY SRI. MANJUNATH K., HCGP FOR R1 & R2; SRI. A. KESHAV BHAT, ADVOCATE FOR R3 TO R8) …RESPONDENTS - 3 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
Decision
ORDER IN LND(3)/CR/11/2003-04 DATED 28.04.2004 PRODUCED AS ANNEXURE-E ON THE FILE OF THE RESPONDNET NO.1 AND QUASH THE ORDER PASSED IN APPEAL NO.574/2004 ON THE FILE OF THE KARNATAKA APPELLATE TRIBUNAL (REVENUE) DATED 11.06.2015 PRODUCED AS ANNEXURE-F, BENGALURU. THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDERS, COMING FOR PRONOUNCEMENT THIS DAY, E.S. INDIRESH J., MADE THE FOLLOWING: CAV ORDER In this writ petition, the petitioner is assailing the order dated 28.04.2004 (Annexure-E) passed by the respondent No.1 in LND(3)/CR/11/2003-04 and order dated 11.06.2015 (Annexure-F) in Appeal No.574 of 2004 on the file of Karnataka Appellate Tribunal. 2. The relevant facts for the adjudication of this writ petition are that, the petitioner claims to be a resident of Ujire Village, Belthangady Taluk. She had made an application seeking allotment of a house site, - 4 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR pursuant to which, the Thasildar, Belthangadi Taluk, allotted 05 cents of land in Sy. No.214/2A11, Ujire Village. A Hakku Patra was issued in her favour on 02.10.1996. Subsequently, the said allotment was challenged by one Smt. U.M. Savitha before the Respondent No.1 in proceedings bearing S.R. No.25/1997-98, on the ground that the petitioner was a minor at the time of allotment. The said proceedings ended with rejection by respondent No.1 vide order dated 25.05.1998 (Annexure-A). It is also stated that, a Public Interest Litigation in WP No. 25198 of 1998 was filed before this, court challenging the allotment made under the said scheme and the said writ petition came to be disposed of by this court on 24.10.2002 (Annexure-B), in which, this Court directed the respondent-authorities to conduct an enquiry to discern any illegality in allotment of sites. Thereafter, the respondent No.1 issued show-cause notice as per - 5 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR Annexure-C, and pursuant to the same, the petitioner has filed objections as per Annexure-D. The respondent No.1, after considering the material on record, by its order dated 28.04.2004 (Annexure-E), held that, the allotment of site made in favour of petitioner situate is within 40 metres from the edge of the road and accordingly, cancelled the allotment. The said order was challenged by the petitioner before the Karnataka Appellate Tribunal in Appeal No.574 of 2004 and the Karnataka Appellate Tribunal vide order dated 11.06.2015 (Annexure-F), dismissed the appeal preferred by the petitioner and being aggrieved by the same, the petitioner has presented this writ petition. 3. I have heard Sri. S. Rajendra, learned counsel for the petitioner; Sri. Manjunath K., learned High Court Government Pleader appearing for respondent-State and Sri. A. Keshav Bhat, learned counsel for the respondent Nos. 3 to 8. - 6 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR 4. Sri. S. Rajendra, learned counsel for the petitioner contended that, the respondent No.1 and Karnataka Appellate Tribunal has committed an error in interfering with the allotment of subject site in favour of the petitioner on the sole ground that, the petitioner was minor at the time of allotment of the site. He further contended that, the petitioner was born on 12.06.1978 and made an application seeking allotment of site on 15.07.1996, having attained majority and thereafter, the respondent-authorities have allotted 05 cents of land on 02.10.1996 and the said aspect of the matter was concluded by this court in W.P.No.17389-90 of 2001 dated 26.06.2001, which came to be confirmed by the Division Bench in W.A.No.4239 & 4240 of 2001 dated 29.10.2002 as well as in RP No.15 & 16 of 2003 in W.A.No.4239 & 4240 of 2001 and therefore, the said aspect of the matter having reached finality and same could not to have been interfered with by the - 7 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR respondent No.1 and Karnataka Appellate Tribunal in the impugned orders and therefore, sought for interference of this court. 5. Learned counsel for the petitioner further contended that, the respondent No.1 has not considered the circular with regard to fixing the road margin in a village limit which is six metres from the edge of the road. He further contended that, the plot allotted to the petitioner is in the gram panchayat limit and therefore, the finding recorded in the impugned orders require to be set aside in this writ petition. 6. Per contra, Sri. A. Keshav Bhat, learned counsel for the private respondents sought to justify the impugned order passed by the respondent- authorities and further invited the attention of the court to the finding recorded by this court in W.P.No.25198 of - 8 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR 1998 dated 24.10.2002 and by referring to paragraphs 5 to 8 in the said order, Sri A. Keshva Bhat, submitted that, the petitioner was respondent No.1 in the said writ petition and has suppressed the fact about the proceedings in W.P.No.17389-90 of 2001 dated 26.06.2001, which came to be confirmed by the Division Bench in W.A.No.4239 & 4240 of 2001 dated 29.10.2002 and therefore, submitted that the petitioner has suppressed the true facts before this Court despite the school register clearly demonstrates that, the date of birth of the petitioner as 12.06.1980 and she had studied up to 6th standard and in that view of the matter, this court has arrived at a conclusion that, the petitioner has fraudulently got the allotment of site and therefore, sought for dismissal of the petition. 7. Sri. Manjunath K., learned High Court Government Pleader appearing for the respondent- Stated produced the original records relating to the - 9 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR allotment of site in favour of petitioner for perusal of this Court. 8. In the light of the submission made by the learned counsel appearing for the parties, as it is forthcoming from the writ papers that, the respondent- authorities have allotted 05 cents of site in land bearing Sy No.214/2A11 in Ujire Village, Belthagady Taluk and Hakku Patra was issued on 02.10.1996. It is forthcoming from Annexure-A that, the grant made in favour of the petitioner was challenged on the ground that the petitioner was minor at the time of allotment and the said proceedings came to be rejected by order dated 25.05.1998 (Annexure-A). It is also to be noted that, the private respondents herein have filed W.P.No.25198 of 1998, challenging the grant made in favour of petitioner and the Division Bench of this Court, allowed the petition on 24.10.2002 (Annexure- B) and directed the Assistant Commissioner to conduct - 10 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR enquiry, so also, with regard to any deficiency in granting site in favour of petitioner herein. In the said writ petition, discussion was made relating to the capacity of the petitioner as to the allotment of site and this court prima-facie felt that the petitioner was minor at the relevant point of time. Be that as it may, the legality of the order passed by the, Deputy Commissioner Mangalore dated 23.01.2001 was challenged before this Court by one Smt. Kamalamma and Smt. U.M.Savitha in W.P.No.17389-90 of 2001, and this Court, vide order dated 26.06.2001, dismissed the writ petition, however, arrived at a conclusion that, petitioner herein has attained majority as on the date of grant of the site. The said judgment of the learned Single Judge was confirmed by Division Bench of this Court in W.A.No.4239 & 4240 of 2001 dated 29.10.2002. Review petition No. 15 & 16 of 2003 (in WA No.4239-4240 of 2009) was filed, which came to be - 11 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR dismissed on 23.01.2003. Taking into consideration the aforementioned aspect, I have carefully considered the finding recorded by the respondent No.1, at Annexure- E. The proceedings under Annexure-E, was initiated in terms of the order dated 24.10.2002, passed in W.P.No.25198 of 1998 (Annexure-B). Respondent No.1, based on the admission made by the petitioner herein, held that, the petitioner has put up construction in the land which is nearly 11 meters from the edge of the road as per order dated 28.04.2004 (Annexure-E). The said order was questioned before the Karnataka Appellate Tribunal in Appeal No.574 of 2004. I have carefully considered the finding recorded by the Karnataka Appellate Tribunal wherein the both the respondent No.1 and Karnataka Appellate Tribunal, failed to consider the orders passed by this Court in W.P.No.17389-90 of 2001 dated 26.06.2001, order dated 29.10.2002 in WA.No.4239-40 of 2001 and RP - 12 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR No.15 and 16 of 2003 disposed of on 23.01.2003. In the backdrop of these aspects and the conclusion arrived at by this court in the aforementioned proceedings, the petitioner has attained the majority and has produced the order passed by the Civil Court Belthangady in Misc. No.120 of 1996 dated 29.01.1997 wherein the date of the birth of the petitioner has been declared as 12.06.1978. In that view of the matter, I am of the view that, the respondent No.1 and Karnataka Appellate Tribunal have failed to consider the points for consideration to be made in the impugned orders by ignoring the orders passed by this Court in the writ petition and writ appeal referred to above and entire discussion was made solely on the order of this Court in the Public Interest litigation in W.P.No.25198 of 1998. It is also to be noted that, the question relating to minority has reached finality or not is to be ascertained in view of the declaration of law made by - 13 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR this court in the aforementioned writ petition has to be answered by the respondent No.1. That apart, the veracity of grant made in favour of the petitioner is concerned, the construction of the building in the schedule land is to be made only after due enquiry to discern the distance from the edge of the road. The respondent No.1 in the impugned order dated 28.04.2004 at Annexure-E, has not considered the case of the parties on merits by conducting spot inspection by issuing notice and enquiry-Surveying the land in question in order to ascertain the distance between the edge of the road and construction made in the schedule land. The respondent No.1, without conducting the enquiry, has passed the impugned order dated 28.04.2004 at Annexure-E, mechanically which has been confirmed by the Karnataka Appellate Tribunal at Annexure-F erroneously without appreciating the true facts. In that view of the matter, I - 14 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR am of the view that, a detailed enquiry has to be made through surveying the land in question with regard to the observation made by this Court in W.P.No.25198 of 1998 dated 24.10.2002 (Annexure-B). Hence, I find it appropriate to remand the matter to the respondent No.1 for fresh consideration after affording an opportunity to all the parties concerned and take decision in the matter in accordance with law. Needless to say that, parties are permitted to file any additional documents, if any, to enable the respondent No.1 to take decision in the matter in accordance with law. In the result, I pas the following: ORDER i) Writ Petition is allowed; ii) The order dated 28.04.2004 (Annexure-E) in LND(3)/CR/11/2003-04 passed by Respondent No.1 and the order dated - 15 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR 11.06.2015 (Annexure-F) passed by the Karnataka Appellate Tribunal in Appeal No.574/2004 are hereby quashed. iii) The matter is remitted to Respondent No.1 – Assistant Commissioner, Belthangady for re-consideration and to pass appropriate orders, afresh in terms of the observation made above. iv) The entire exercise shall be completed within six months from the date of receipt of the certified copy of this order, after affording an opportunity to all the parties concerned in terms of the observation made above; v) Since the parties represented through their learned counsel, they are directed to appear before the Assistant Commissioner, Belthangady, on 28.07.2025 at 3 pm, - 16 - NC: 2025:KHC:23988 WP No. 27957 of 2015 HC-KAR without waiting for further notice in this regard. SD/- (E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 74