IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JUNE 2017 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI WRIT PETITION No.62016 OF 2016(GM-RES) BETWEEN :
Sri G.S.Basavanna, S/o.Late M.G.Subappa, Aged about 80 years, Res/at Somavarepate Village, Chamarajnagar Dist – 571 313. ... Petitioner (By Sri D.C.Deepak, Advocate) AND:
1. State of Karnataka, Rep. by its Secretary, Department of Revenue, Vidhana Soudha, Dr.Ambedkar Veedhi, Bangalore – 560 001.
2. The Commissioner, Chamarajnagar Urban Development Authority, Chamarajnagar Town & Dist. Pin Code – 571 313.
3. The Deputy Commissioner, Chamarajnagar Town & Dist.
Pin Code – 571 313. …Respondents (By Sri T.L.Kiran Kumar, AGA for R1 & R3: Sri A.V.Gangadharappa, Advocate for R2:
This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to restrain respondent Nos. 2 and 3 from forming any road in the schedule property without acquiring the land and without following due process of law and etc.
This writ petition, coming on for orders, this day, the Court made the following:
O R D E R Although the matter is listed for hearing on I.A.s, I have taken it up for final disposal with the consent of the learned advocates appearing for the parties.
2. The petitioner is seeking a direction for restraining the respondent Nos. 2 and 3 from forming any road in the schedule property without acquiring it and without following the due process of law.
3. Sri D.C.Deepak, learned counsel for the petitioner submits that the schedule property belongs to the petitioner. Without resorting to land-acquisition and without paying the compensation thereof, the respondents are forming the roads. He submits that the petitioner has not handed over the possession of the lands to the respondents. He has not executed any relinquishment deed in favour of the respondents. He submits that the proposed road-formation is only to suit the convenience of the owners of the lands adjacent to the schedule property. He submits that the said owners have even filed the suits seeking mandatory injunction for the formation of the road, but without any rate of success.
4. Sri A.V.Gangadharappa, learned counsel for the respondent No.2 submits that the petitioner’s land totally measures 2 acres 2 guntas. It was permitted to be used for the residential purpose way back in 1963. He was permitted to use 26 guntas out of the said land for commercial purpose vide Official Memorandum, dated 15.05.2004 (Annexure-R1). He submits that one of the conditions while granting the permission for the use of 26 guntas for commercial purpose is as follows:
“«£Áå¸ÀzÀ°è vÉÆÃj¸À¯ÁVgÀĪÀ 18.00 «Äà gÀ¸ÛÉAiÀÄ£ÀÄß CfðzÁgÀgÉà C©üªÀÈ¢Þ ¥Àr¸À¨ÉÃPÀÄ ªÀÄvÀÄÛ gÀ¸ÉÛ ªÀiÁfð£ïUÉ PÁ¢j¹gÀĪÀ gÀ¸ÛÉAiÀÄ «¸ÛÀgÀuÉUÉ ©qÀvÀPÀÌzÀÄÝ.”
5. He submits that the entire road from Galihalli to Sathyamangala to Chamarajanagara is formed excluding the stretch on which the road formation is being resisted by the petitioner. He submits with reference to the Google map that the land in question is earmarked for the road in the master-plan also. He submits that the second respondent is forming the road in the course of implementing the master-plan. He submits that the petitioner had put up the fence after obtaining the interim order of stay in these proceedings. He submits that the petitioner himself has made a statement that he had surrendered the land, in his letter, dated 27.10.2016 (Annexure- R3) addressed to the then Hon’ble Minister for Co-operation and Sugar. He submits that as the petitioner has voluntarily surrendered the land in compliance with the conditions imposed at the time of granting permission to the petitioner for using the land for commercial purpose, the respondent No.2 is not liable to pay any compensation to the petitioner. He asserts that by the operation of the provisions contained in Section 32(5) of Karnataka Urban Development Authorities Act, 1987, the respondent No.2 is entitled to form the road on the land in question.
6. Sri T.L.Kiran Kumar, learned Additional Government Advocate appearing for the respondent Nos. 1 and 3 submits that the petitioner is obliged to give up the part of the land in question as per the condition imposed and accepted by the petitioner.
7. The submissions of the learned counsel have received my thoughtful consideration. The right to property may have ceased to be fundamental right, but it has continued to be a legal right and a constitutional right. It has now become a human right too. If a person’s immovable property is required for a public purpose, it has to be acquired in a manner known to law. Nobody can be deprived of the property without following the due process of law.
8. That a property is earmarked for a particular purpose in the master-plan does not mean that it can be occupied and utilized by the Urban Development Authority or by the Government without acquiring it. The condition No.1 in the Official Memorandum does not empower the second respondent to form the road utilizing any portion of the schedule property. The perusal of the first part of the condition shows that the petitioner has to develop 18 meters of road in the lay-out map. The second part is that the portion abutting the road has to be left for the widening of the roads. But this clause does not provide for road-formation by the respondent No.2 on any part of schedule property. It is all the more so when no mahazar is produced to show that the respondent No.2 has taken the possession of the land from the petitioner. It is also not shown that the petitioner has executed the relinquishment in respect of the schedule property or any part thereof.
9. For all the aforesaid reasons, I allow this petition. Based only on condition No.1 of the Official Memorandum, dated 15.05.2004 (Annexure-R1), it is not permissible for the respondent No.2 to occupy and utilize the petitioner’s land for road-formation. The respondents have to either resort to compulsory acquisition of land or to negotiate with the petitioner for the purchase of the land, etc. and then form the road. I reiterate that nobody can be deprived of his property without following the due process of law.
Sd/- JUDGE Cm/-