IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT APPEAL No.5128 OF 2016 (KLR - RES) BETWEEN:
1. THE DEPUTY COMMISSIONER, MYSURU DISTRICT, DEPUTY COMMISSIONER BUILDINGS, MYSURU – 570 001.
2. THE ASSISTANT COMMISSIONER, MYSURU SUB – DIVISION, ROOM NO.10, DEPUTY COMMISSIONER BUILDINGS, MYSURU – 570 001.
... APPELLANTS (BY SRI KIRAN KUMAR, HIGH COURT GOVERNMENT PLEADER) AND:
1. DODDAKERE TANK BUND SITE OWNER’S WELFARE AND DEVELOPMENT ASSOCIATION, A SOCIETY REGISTERED UNDER THE PROVISIONS OF THE KARNATAKA SOCIETIES REGISTRATION ACT, HAVING ITS OFFICE AT HOTEL DASHARATH COMPLEX, OPPOSITE ZOO GARDEN, MYSURU – 570 010 REPRESENTED BY ITS HON/ SECRETARY.
2. THE MYSURU URBAN DEVELOPMENT AUTHORITY, J.L.B. ROAD, MYSURU – 570 024 REPRESENTED BY ITS COMMISSIONER.
... RESPONDENTS (BY SRI ABHINAV.R, ADVOCATE FOR CAVEATOR / RESPONDENT NO.1;
SRI P.S.MANJUNATH, ADVOCATE FOR RESPONDENT NO.2) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRITT PETITION NO.20243 – 245 OF 2009 DATED 10.03.2016.
THIS WRIT APPEAL COMING ON FOR HEARING, THIS DAY, M.NAGAPRASANNA J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 10.03.2016 passed in Writ Petition Nos.20243-20245 of 2009, by the learned Single Judge in allowing the writ petitions, the respondents-State Government have preferred the instant writ appeal.
2. The parties will be referred to as per their ranking in the writ petitions before the learned Single Judge.
3. Brief facts of the case are as follows:
Petitioner is a registered Society, who claims to have purchased sites in parts of property, popularly known by nomenclature ‘Doddakere Maidana’ from the Maharaja of Mysuru, measuring about 11 acres and 23 guntas from out of the entire extent of land measuring 145 acres and 13 guntas. This was a private property of the then Maharaja of Mysuru. After independence, various princely States acceded to the Government of India and became a part of the Union of India by separate treaties of accession. Likewise, a Treaty of accession was also entered into between the Government of India and Maharaja of Mysuru on 26.1.1950. The properties that belonged to the Maharaja of Mysuru were declared to be the private properties of Maharaja and thereby, its absolute owner.
4. In the accession agreement dated 26.1.1950, a note is entered into between the parties that ‘Doddakere Maidana’ would be donated by the Maharaja for public purposes, for which the Government of that day had to acquire title to the said extent of land in the manner known to law. Since the Government did not do so, the land remained as a private property of Maharaja of Mysuru. The Maharaja executed registered sale deeds in favour of various persons who had served him. This was later formed into a layout. The layout comprised of the sites were situated in southern portion of ‘Doddakere Maidana’.
5. These sale deeds were executed in the year 1972-73 and right, title and interest of these sale deeds were conveyed by Maharaja of Mysuru to various persons, who became the owners subsequent to the purchase. The entries in the relevant Record of Rights were made in favour of the owners by the Mysuru Municipal Authority and it is claimed that they have been paying taxes from 1972-73 till date. Out of 145 acres and 13 guntas of land, about 80 acres was being used as exhibition grounds for which a Committee was constituted by the State Government.
6. The sale deeds executed in favour of various persons by the Maharaja of Mysuru to an extent of 11 acres and 38 guntas of land had nothing to do with the land measuring about 80 acres used as exhibition ground, That, 11 acres 38 guntas was outside the scope of 80 acres that was utilized for the purpose of exhibition grounds.
7. After the purchase of lands, the Society gave a representation to the Mysuru Urban Development Authority (hereinafter referred to as ‘MUDA’) - the 3rd respondent, for sanction of the layout plan in furtherance of which the 3rd respondent advised several site owners to file consolidated application seeking for sanction of the layout plan. On the advise of MUDA, the members of the petitioner formed a Society and submitted an application seeking approval of layout plan. In terms of the application filed by the petitioner - Society, the 3rd respondent - MUDA exchanged various correspondences with the 1st respondent - State Government in relation to granting approval of the plan. The 1st respondent appears to have informed MUDA and that a portion of Doddakere Maidhana, where sites were situated, belonged to Maharaja of Mysuru. The first respondent Government after obtaining all clarifications from the Urban Development Department regarding 11 acres 38 guntas where the layout was formed, on being satisfied about the rights of the petitioner-Society, approved the plan by an order dated 12.2.2004.
8. After the grant of sanction of the plan, MUDA called upon the petitioner and sought certain clarifications regarding 11 acres 38 guntas, the area where the layout was formed and directed to remit a sum of Rs.9,38,000/- for the purpose of processing the application of the petitioner – Society. After receipt of the same, issued work order to enable the petitioner - Society to carry out all the developmental activities in the layout in accordance with the plan that was sanctioned.
9. On 5.8.2005, a letter was issued to the petitioner–Society, directing them to stop all developmental activities owing to certain objections raised by two individuals alleging that there was overlapping of the properties which found a part of ‘Doddakere Maidana’. In terms of the said letter, petitioner – Society, suspended all the developmental activities that were on the site. The Government directed a survey to be carried out with regard to objections of those two individuals and it was later on found that the petitioner – Society, was in justified occupation of their land and a joint letter of the petitioner and the complaining individuals were submitted to MUDA for withdrawal of the order of suspension of all the developmental activities. It is thereafter, the development in the layout continued.
10. Again, the 2nd respondent - Assistant Commissioner addressed a letter to MUDA that they could not have sanctioned the layout plan as a there is serious dispute with regard to ownership of the land in question by the Maharaja and it was the Assistant Commissioner who opined that the land belonged the Government. In terms of what was communicated by the Assistant Commissioner, on 2.8.2006 to MUDA, the plan that was sanctioned in favour of the petitioner – Society, was cancelled. Challenging the cancellation, the petitioner – Society, filed writ petition No.20243- 20245 of 2009.
11. The learned Single Judge, after hearing the parties at length, allowed the writ petitions and confirmed the plan that was sanctioned in favour of the petitioner – Society, on the ground that in terms of Treaty of Accession of the year 1950, the material on record would indicate that portion of the land which belonged to the petitioner – Society, was never gifted by the Maharaja of Mysuru in favour of the State Government. It is on that ground and on perusal of the documents, the learned Single Judge concluded that the Maharaja of Mysuru was the absolute owner of the property and the members of the petitioner–Society had purchased the parcels of the land under sale deed, Unless those sale deeds set at naught, the State Government cannot claim the property of the individual members of the society to be theirs.
12. The learned Single Judge, answering the challenge to the cancellation of the sanctioned plan, ordered that when the sale deeds were intact and the land did not vest with the State Government, there was no impediment for MUDA for having granted sanction to the layout plan, if everything else was in order. The learned Single Judge further held that if the State Government seeks to lay claim owner of the land, it was open for it to initiate appropriate proceedings in law to recover the same, not only from the petitioner – Society, but also from the private applicants, who were in occupation of a portion of the ‘Dodakere Maidana’. In the absence of state government not initiating any such proceeding, a direction to cancel the sanctioned plan was illegal. On this reasoning the order canceling the sanction of the layout plan was set aside and the sanction that was made in favour the petitioner was confirmed. Challenging this order, the State Government has preferred the instant appeal.
13. We have heard Sri Kiran Kumar, learned High Court Government Pleader for appellants, Sri Abhinav R., learned counsel for caveator - respondent No.1 and Sri P.S. Manjunath, learned counsel for respondent No.2.
14. Mysuru, was a princely state ruled by The Maharaja. After the independence, various princely States and rulers became a part of the Union of India by separate Treaties of accession, one such treaty of accession was entered into between the Government of India and Mahraharaja of Mysuru on 26.1.1950. The inventory to the said treaty declared that Maharaja of Mysuru to be the absolute owner of the properties. The list of immovable properties as on 26.1.1950 was produced as Annexure-A to the writ petitions. This agreement of accession referred to as ‘Doddakere Maidana’ was to be donated by the Maharaja of Mysuru for public purpose. But this donation did not come about and the Government did not acquire title of the said extent of the land in the manner known to law.
Doddakere Maidana measures about 145 acres 13 guntas. There is nothing on record to show the conveyance of the property to the Government or any of its agencies by the erst while Maharaja during his life time.
15. During the year 1972-73, the Maharaja of Mysuru executed sale deeds in favour of the members of the petitioner - Society who were all served the Maharaja. They became the absolute owners of the several parcels of the land which were purchased by them in terms of the sale deed executed. After becoming owners of the said property, the names of those purchasers were entered in the Record of Rights by the Mysuru Municipal Corporation and those purchasers have been paying taxes till date. On the southern side of ‘Doddakere Maidana’, which is outside the scope of 80 acres of land utilized for exhibition purposes, a layout was formed by the petitioner – Society. For the layout that was formed by the petitioner–Society, a representation was made to MUDA for sanction of the layout plan. On the receipt of the said application for sanction of the layout plan, MUDA appears to have advised individual owners of the layout to form an association and submit a consolidated application seeking sanction of the layout plan. It is then, the members of the petitioner–Society came together and formed a Society and thereafter, submitted a layout plan seeking approval. On the application filed by the petitioner-Society, exchange of correspondences took place between State Government and MUDA with regard to granting of approval of layout plan and after all clarification and satisfying themselves as to the ownership of the land to the extent of 11 acres 38 guntas, approved to plan by an order 12.2.2004.
16. In terms of the said sanction of the layout plan, MUDA called upon the petitioner–Society to remit a sum of Rs.9,38,000/- which was towards the processing fee of the application of the petitioner in order to enable the petitioner–Society to carry out developmental activities in the layout in terms of the sanctioned plan. It transpires that the petitioner–Society remitted the said amount and they were permitted to commence the developmental activities in the layout.
17. The petitioner-Society was directed to stop all developmental activities by MUDA through its letter dated 5.8.2005, alleging that there were certain objections filed by two individuals with regard to overlapping of their properties with the properties of the Society and the petitioner–Society suspended all the developmental activities. The State Government conducted survey and opined that the occupation of the land in which the developmental activities were taken up by the petitioner–Society was in order and ordered resumption of developmental activities.
18. Again, the 2nd respondent addressed a letter on 2.8.2006 stating that the layout plan sanctioned by MUDA was erroneous as the dispute with regard to ownership of the land of Maharaja was still subsisting and the Government was the owner of the said property and the sanctioned to the layout plan submitted by the petitioner-Society ought not to have been granted. In terms of the letter dated 2.8.2006 of the 2nd respondent to 3rd respondent - MUDA, the plan sanctioned to the petitioner-Society was cancelled.
19. The contention of the learned High Court Government Pleader for State Government is that the land measuring 145 acres and 13 guntas belongs to the State Government under the treaty of accession between the Maharaja of Mysuru and the Union of India and the entire extent of the said land was gifted by the Maharaja of Mysuru to the State Government for public purposes. On that ground, the State Government contended that the ownership claimed by the petitioner- Society, was unavailable in law as the revenue records of the land is treated as karab which indicates that it is the tank bed and therefore, would fall under section 21 (2) (b) of the Karnataka Land Revenue Rules 1966.
20. It is further contended by the learned High Court Government Pleader / Additional Government Advocate for State Government that 80 acres of land out of the 145 acres and 13 guntas was transferred to the erst while Mysuru Municipality for the purpose of construction of the stadium. The Municipality, in turn, opined that location was not ideal for construction of stadium and never utilized 80 acres for construction of stadium. The Mysuru Municipality leased out the land to Dasara Industrial and Cultural Society through PWD for conduct of exhibition during the Dasara festival and the lease is renewed from time to time. It is further contended that the land is required for establishing Nehru Loka and the said land cannot be allotted for formation of a residential lay out.
21. The petitioner-Society has clearly demonstrated the falsity of the State Government that it is a karab land and placed on record that the government has notified and acquired several parcels of the same land and have formed residential layout and certain portion of the land is also marked for construction of a 5 star hotel and therefore, the contention of the Government that it is declared to be karab land and cannot be claimed by any individual, is unacceptable.
22. MUDA has granted sanction to the layout plan under Section 32 of the Karnataka Urban Development Authorities Act, 1987 which lays down the guidelines to the competent authority in the State for consideration of application for sanction of the layout plan. Section 32 of the said Act reads thus:
Section 32 - Formation of new extension or lay-outs or making new private streets :
(1) Notwithstanding anything to the contrary in any law for the time being in force, no person shall form or attempt to form any extension or lay-out for the purpose of constructing building thereon without the express sanction in writing of the Authority and except in accordance with such conditions as the authority may specify :
Provided that where any such extension or layout lies within the local limits of a Local Authority, the authority shall not sanction the formation of such extension or lay out without the concurrence of the local authority :
Provided further that where the Local Authority and the authority do not agree on the formation of or the conditions relating to the extension or layout, the matter shall be referred to the Government, whose decision thereon shall be final.
(2) Any person intending to form an extension or layout, or to make a new private street shall send to the Commissioner a written application with plans and sections showing the following particulars :-
(a) the laying out of the sites of the area upon streets, lands or open spaces ;
(b) the intended level, direction and width of the street ;
(c) the street alignment and the building line and the proposed sites abutting the streets ;
(d) the arrangement to be made for levelling, paving, metalling, flagging, channelling, swearing, draining, conserving and lighting the streets and for adequate drinking water supply.
(3) The provisions of this Act and any rules or bye-laws made under it as to the level and width of streets and the height of buildings abutting thereon shall apply also in the case of streets referred to in sub-section (2) and all the particulars referred to in that sub- section shall be subject to the approval of the Authority.
(4) Within six months after the receipt of any application under sub-section (2), the authority shall either sanction the forming of the extension or layout to be in conformity with the guidelines to be issued by the Government or making of street on such conditions as it may think fit or disallow it or ask for further information with respect to it.
(5) The authority may require the applicant to deposit, before sanctioning the application, the sums necessary for meeting the expenditure for making roads, side drains, culverts, underground drainage and water supply and lighting and charges for such other purpose as such applicant may be called upon by the Authority, provided the applicant also agrees to transfer the ownership of the roads, drains, water supply mains, parks and open spaces, civic amenity areas laid out by him to the Authority, permanently without claiming any compensation therefor.
(6) Such sanction may be refused,-
(i) if the proposed street would conflict with any arrangements which have been made or which in the opinion of the authority is likely to be made for carrying out any general scheme of street improvement or other schemes or development or expansion by the Authority ;
(ii) if the proposed street does not conform to the provisions of the Act, rules and bye-laws referred to in sub-section (3) ; or (iii) if the proposed street is not designed so as to connect one end with a street which is already open ; or (iv) if the layout in the opinion of the Authority cannot be fitted with any existing or proposed expansion or development schemes of the authority.
(7) No person shall form a layout or make any new private street without the sanction of or otherwise than in conformity with the conditions imposed by the authority. If the Authority requires further information from the applicant no steps shall be taken by him to form the layout or make the street until orders have been passed by the Authority after the receipt of such information:
Provided that the passing of such orders shall not, in any case, be delayed for more than six moths after the Authority has received all the information which it considers necessary to enable it to deal finally with the said application.
(8) If the authority does not refuse sanction within six moths from the date of the application under sub-section (2) or from the date of receipt of all information asked for under sub-section (7), such sanction shall be deemed to have been granted and the applicant may proceed to form the extension or layout or to make the street, but not so as to contravene any or the provisions of this Act and the rules or bye-laws made under it.
(9) Any person who forms or attempts to form any extension or layout in contravention of the provisions of sub- section (1) or makes any street without or otherwise than in conformity with the orders of the Authority under this section, shall be liable on conviction, to a fine which may extend to ten thousand rupees.
23. It is only after following the said guidelines, the sanction to the layout plan was accorded by MUDA. We are unable to accede to the contention of the State Government that they are owners of the entire extent of land in the absence of any conveyance of the property to the extent of 11 acres 38 guntas by any means. The State Government even as on date has not initiated any proceedings in the manner known to law for cancellation of sale deed that were executed by the Maharaja of Mysuru in favour of private parties, who formed the petitioner–Society.
24. Though the item of the property was reserved under the Treaty of Accession of 1950, as Doddakere Maidana, it was not gifted by Maharaja of Mysuru in favour of the State Government. Therefore, it was open to the absolute owner of the property namely the Maharaja to execute sale deeds in favour of the purchasers of the parcels of land and those sale deeds even as on date are not set at naught in the manner known to law. Unless that is done, the State Government cannot claim the property of the individual members of the petitioner-Society. If the sale deeds executed in favour of the members of the petitioner Society are in order on the date of the impugned action, the act of MUDA granting sanction to the layout plan submitted by the petitioner-Society cannot be found fault with. If the action of MUDA sanctioning the layout plan submitted by the petitioner–Society is after thorough examination of necessary documents as contained under Section 32 of the Karnataka Urban Development Authority Act, 1987, there cannot be any justification for cancellation of the same at the behest of the State Government. If the State Government wanted to lay claim over the land, it was always open for it to initiate proceedings in the manner known to law to recover the same from the petitioner-Society as also from any other private applicants in the subject land, who are in possession of that portion of ‘Doddakere Maidana’. This having not been done, directing MUDA to cancel the plan sanctioned in favour of the petitioner Society was unsustainable.
25. The learned Single Judge after thorough scrutiny of all the documents and on analysis of the same, has rightly allowed the writ petitions confirming the plan sanctioned in favour of the petitioner- Society. We do not find any error in the order of the learned Single Judge warranting interference.
26. For the reasons, aforementioned, the appeal being devoid of merit, is dismissed. There shall be no order as to costs.
Sd/- JUDGE Sd/- JUDGE Cs/-