IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON' BLE MR. JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.32145/2017 (KLR-RES) BETWEEN:
1. SRI M R MALIGACHAR AGED ABOUT 58 YEARS, S/O LATE M N RAMACHAR RA/T MARASANDRA HESARAGHATTA HOBLI BENGALURU NORTH TALUK-560090 2. SRI R HARISH AGED ABOUT 38 YEARS S/O LATE M N RAMACHAR RA/T MARASANDRA HESARAGHATTA HOBLI BENGALURU NORTH TALUK-560090. ...PETITIONERS (BY SRI R.NATARAJ, ADVOCATE) AND 1. STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY DEPARTMENT OF REVENUE M S BUILDING DR.B.R.AMBEDKAR ROAD BANGALORE-560 001 2. THE JOINT DIRECTOR OF LAND RECORDS OFFICE OF THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT-560027 3. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT-560 027 4. THE TAHSILDAR BANGALORE NORTH ADDITIONAL TALUK YELAHANKA BANGALORE-560064 ... RESPONDENTS (BY SRI T.S.MAHANTESH, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 8.3.2017 ISSUED BY 2ND RESPONDENT ENCLOSED ALONG WITH THE W.P. AS ANNEXURE-N AND DIRECT THE RESPONDENTS NOT TO DISTURB THE POSSESSION OF THE PETITIONERS IN THE SCHEDULE LAND WITHOUT THE DUE PROCESS OF LAW.
THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY THE COURT MADE THE FOLLOWING:-
ORDER The petitioners herein are impugning the order of 2nd respondent dated 8.3.2017 in proceedings bearing No.Bhu.Jam.Ni/Tiddupadi:519/2016-17, wherein the kharab available to land bearing Sy.No.39/1 and 39/2 of Amani Marasandra village, Hesaragatta Hobli, Bengaluru North (Additional) Taluk, is re-classified and Akarband is prepared accordingly.
2. Admittedly, the petitioners herein are the owners of land bearing Sy.No.39/1 measuring to an extent of 5 acres 14 guntas which the 1st petitioner has purchased from one Maganna s/o Panchanana Maligappa under registered sale deed dated 24.9.1927 and got the said land mutated to his name. According to petitioners, the RTC would indicate that out of total extent of 5 acres 33 guntas in said survey number, only 5 guntas was kharab and remaining extent was ain land. However, subsequently by the order impugned the 2nd respondent has increased the same from 5 guntas to 3 acres 5 guntas and consequently, held only 2 acres 28 guntas as ain land in the said survey number, which is sought to be challenged in this proceedings. During the pendency of this proceedings, an application is also filed in IA.I/2018 seeking permission to put up construction of a farmhouse in said Sy.No.39/1. In the meanwhile, there is one more application in IA.3/2018 seeking certain amendment to the writ petition.
3. In this proceedings, the original records are secured and looked into, wherein it would disclose that in Amani Marasandra village, a tank is situated in Sy.No.45 and Sy.No.39 is situated adjacent to that on the western side of the tank. Admittedly, Sy.No.39 is phoded into 39/1 and 39/2. According to the documents available on record, Sy.No.39/1 is situated on the western side of tank and to the west of Sy.No.39/1 is Sy.No.39/2. The documents would also indicate that a halla (drain) is passing through these two sub-survey numbers. In fact, this Court by order dated 3.4.2019 called upon the ADLR to clarify whether this is regular path for flow of water or whether the same is caused due to breach of tank as contended by the petitioners. In this background, the original Prathi Book, Second Revision Classification Babthu and other documents were produced before this Court to demonstrate that the drain is kodihalla through which the excess water from the tank would flow. Thereafter, this matter is taken up for consideration.
4. The learned counsel for the State would submit that kodihalla otherwise referred to as drain in this petition, is required to be maintained at all times. Though it is only to an extent of 5 guntas as it was stated earlier, in the light of the modified guidelines issued by the Apex Court in modifying the earlier order of the National Green Tribunal, the buffer zone on either side of said drain should be minimum of 30 meters otherwise to an extent of 100 feet. He would also state that the order impugned is appealable one and it is open for the petitioners to challenge the same before the appropriate forum.
5. In response to the submission of learned counsel for the State, the learned counsel for the petitioners would submit that he may be permitted to challenge the order impugned before the appellate authority. In the meanwhile, by allowing IA.I/2013 the petitioners may be permitted to put up construction of farmhouse on their land. He would also state that the petitioners would reserve an open space of 100 feet on either side of kodihall/drain and thereafter, would put up construction of farmhouse on their land. However, it is made clear that such construction of farmhouse shall be after taking due permission from the competent authority and as and when an application in that regard is filed, the jurisdictional Tahsildar shall ensure that the same is granted subject to the condition that the same shall be put up beyond 100 feet from the edge of kodihall/drain in keeping that space open on either side of said drain.
6. With aforesaid observations, this writ petition is disposed of reserving liberty to the petitioners to challenge the order impugned before the competent authority. In the meanwhile, they are permitted to put up construction of farmhouse on their land by taking necessary permission from the authorities concerned.
7. In the light of writ petition being disposed of in the aforesaid manner, the application in IA.I/2018 is disposed of and IA.3/2018 filed seeking amendment to the writ petition does not survive for consideration.
Sd/- JUDGE Sac/nd*