IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 5TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL Nos.6262-6265 OF 2017 (LB-RES) BETWEEN:
1. SHRI.T.R.HARISH AGED ABOUT 36 YEARS SON OF SHRI.T.L.RAMAMURTHY THIPPENAHALLI VILLAGE DODDABIDARAKALLU YESHWANTHAPURA HOBLI BENGALURU NORTH TALUK BENGALURU DISTRICT-560 022.
2. SHRI.T.G.SHIVANNA AGED ABOUT 54 YEARS SON OF LATE SRI GANGNARASAIAH THIPPENAHALLI VILLAGE DODDABIDARAKALLU YESHWANTHAPURA HOBLI BENGALURU NORTH TALUK BENGALURU DISTRICT-560 022 3. SHRI. G.MANJUNATH AGED ABOUT 35 YEARS SON OF LATE SRI GANGARASAIAH THIPPENAHALLI VILLAGE DODDABIDARAKALLU YESHWANTHAPURA HOBLI BENGALURU NORTH TALUK BENGALURU DISTRICT-560 022.
4. SRI. K.KUMAR AGED ABOUT 37 YEARS SON OF SHRI. A.H.KEMPEGOWDA RESIDENT OF MADAPPANAKOPPALU DODDANKANAHALLI HEBBARALU POST ATAGUR HOBLI, MADDUR TALUK MANDYA DISTRICT-571 428 ...APPELLANTS (BY SRI C.M.NAGABHUSHANA, ADVOCATE) AND 1. THE STATE OF KARNATAKA BY THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT BENGALURU -560 009.
2. THE THASHILDAR BENGALURU NORTH TALUK KANDAYA BHAVAN BENGALURU -560 009.
3. M/S. BRUHAT BENGALURU MAHANAGARA PALIKE HUDSON CIRCLE BENGALURU -560 001. REPRESENTED BY THE COMMISSIONER, BBMP 4. M/S. KARNATAKA URBAN INFRASTRUCTURE AND DEVELOPMENT FINANCE CORPORATION SILVER JUBILEE BLOCK SECOND FLOOR UNITY BUILDING ANNEXE 3RD CROSS, MISSION ROAD BENGALURU – 560 027.
REPRESENTED BY ITS CHAIRMAN 5. KARNATAKA RURAL INFRASTRUCTURE DEVELOPMENT LIMITED GRAMEENABHIVRUDDHI BHAVAN 4TH AND 5TH FLOOR ANAND RAO CIRCLE BENGALURU – 560 009.
REPRESENTED BY ITS CHAIRMAN ...RESPONDENTS (BY SRI. S.S.MAHENDRA, AGA FOR RESPONDENT Nos.1 AND 2 RESPONDENT Nos.3 TO 5-NOTICE NOT ORDERED) THESE APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 30.08.2017, PASSED IN DISMISSING THE WRIT PETITION Nos.55090-093/2014 (LB-RES) BY THE LEARNED SINGLE JUDGE OF THIS COURT AND THEREBY QUASH ANNEXURE-K JAMEENU HASTHANTARA PATRA COUPLED DATED 21.09.2005 AND ALL FURTHER PROCEEDINGS IN PURSUANCE OF ANNEXURE-K ISSUED BY THE 1ST RESPONDENT IN WRIT PETITION Nos.55090-093/2014 [LB-RES).
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 30.08.20017 passed by the learned Single Judge in W.P.Nos.55090 – 55093 of 2015, by which the petitions were dismissed as not maintainable, the writ petitioners are in appeal.
2. The petitioners filed writ petitions under Articles 226 and 227 of the Constitution of India praying for the following reliefs:
(i) Issue an appropriate writ or order or direction quashing the impugned document called “Jameenu Hasthantarana Patra” coupled with a sketch issued by the Respondent No.2 dated 21.09.2005, which reads to the effect that in terms of a Government Letter dated 23.03.2005 bearing No.RD.204/LGO 05, the Official Memorandum of the Deputy Commissioner, Bengaluru bearing No.LND CR 146/02-03 dated 21.07.2005 and the Official Memorandum of Tahsildar, Bengaluru North Taluk bearing No.LND CR 01/05-06 dated 06.08.2005, an extent of 25 acres of land in Sy.No.75 oral and documentary evidence Doddabidarakallu Village was handed over to the Commissioner, CMC, Dasarahalli on 21.09.2005 by the Tahsildar, Bengaluru North Taluk under an express sketch issued by the Respondent No.(which is produced at Annexure-K and L to the writ petition) in the style of Jameenu Hasthantaharana Patra and annexed to the same.
(ii) Issue a writ in the nature of declaration declaring that the Respondents 1 and 2 have right to grant any extent of land in favour of the BBMP or others by suppressing the lawful rights of the Petitioners in respect of the Petition Schedule Properties.
(iii) Direct the Respondents 3 to 5 to withdraw from any activities including construction or putting up infrastructure or facilities over the Petition Schedule Properties for any purpose.
(iv) Issue an appropriate writ in the nature of Mandamus or any other writ or order or direction directing the Respondent No.1 Tahsildar to the effectuate mutation causing change of revenue entries in the names of the Petitioners pursuant to their applications in respect of the Petition Schedule Properties.
(v) Pass such other orders or directions deems fit to be passed in favour of the Petitioner under the circumstances of the case, in the interest of justice and equity.
(vi) To quash the order dated 23.03.2005 bearing No.ALND(S)CR 146/02-03 at Annexure-Y to this writ petition, in the interest of justice and equity.
(vii) To quash the order dated 21.07.2005 at Annexure-Y1 to this writ petition, in the interest of justice and equity.
3. The petitioners claim that they are the absolute owners of land to an extent of 4 acres in Sy.No.75 (resurvey No.184) in respect of petitioners No.1 and 2 and 4 acres in Sy.No.75 (resurvey No.183) in respect of petitioners No.3 and 4 in Sy.No.75 of Doddabidarakallu village, Yeshwanthapura Hobli. The petitioners acquired the lands under sale deeds dated 21.02.2007 and 21.02.2007 respectively. The petitioners have purchased the lands for the purpose of agricultural activities. The predecessors in title of the petitioners were granted lands under Inams Abolition Act. There was proceedings initiated by the State under Section 136(3) of the Karnataka Land Revenue Act, 1964 against the petitioners’ predecessors in title and subsequently the same were dropped by the Special Deputy Commissioner by order dated 18.02.2003. Some persons made representation dated 22.06.2007 against the petitioners and predecessors of the petitioners making allegation of siphoning of the Government lands due to which, mutation and change of revenue entries were not effected. Subsequently, after enquiry it is stated that the Deputy Commissioner by his order dated 20.10.2012 recognized the rights of the petitioners’ predecessors. It is stated that the Government has granted lands in Sy.No.75 to a large extent and a small extent remains in the said survey number. It is stated that the second respondent handed over land measuring 25 acres in Sy.No.75 to erstwhile City Municipal Council of Dasarahalli for Garbage/Waste Management. Subsequently, on establishment of Bruhut Bengaluru Mahanagara Palike (‘BBMP’ for short), the same vests with the BBMP. It is also stated that in terms of Government letter 23.03.2005 an extent of 25 acres of land in Sy.No.75 was handed over to the Commissioner, CMC, Dasarahalli on 21.09.2005 under Jameenu Hastantara Patra. The petitioners state that the Deputy Commissioner and Tahsildar have no right to include and hand over petitioners’ land in Sy.No.75 to CMC, which they had purchased in the year 2007. Subsequently it is stated that the petitioners filed O.S.No.1158 of 2014 and O.S.No.1160 of 2014 against the respondents. The said suits are said to have been pending for adjudication. In the meanwhile, the present writ petitions are filed with the above mentioned prayers. The learned Single Judge noticing that the civil suits are pending in respect of the dispute, declined to entertain the writ petitions. Hence, the present appeals.
4. Heard the learned counsel for the appellants and learned Additional Government Advocate. Perused the appeal papers.
5. The learned counsel for the appellants submits that the learned Single Judge committed an error in dismissing the writ petitions. Further he submits that the learned Single Judge failed to appreciate the fact that the issue involved in the suits and the issue involved in the writ petitions are entirely different. The petitioners’ right is infringed and as such, the writ petitions would be maintainable. The question of fact is incidental and that itself would not disentitle the petitioners from seeking relief under Article 226 of the Constitution of India. Thus he prays for allowing the appeals.
6. Per contra, learned Additional Government Advocate would submit that the learned Single Judge has rightly rejected the writ petitions in view of the fact that the civil suits are pending. Hence prays for dismissal of the appeals.
7. Having heard the learned counsels and on perusal of the writ papers, we are of the view that the writ petitions involve question of fact which cannot be gone into in the petition filed under Article 226 of the Constitution of India. It is an admitted fact that 25 acres of land in Sy.No.75 has been handed over to the City Municipal Council for setting up Solid Waste Management Center under Jameenu Hastantara Patra on 21.09.2005 in pursuance of the Government letter dated 23.03.2005 and Official Memorandum of the Deputy Commissioner dated 21.07.2005. The documents produced by the petitioners would also indicate the same. As on the date of issuance of impugned Jameenu Hastantara patra dated 21.09.2005, the petitioners had not purchased the lands in question. The petitioners purchased the schedule lands subsequently under two sale deeds both dated 21.07.2007. Whether the lands in Sy.No.75 were granted to the predecessors in title of the petitioners and whether the lands handed over for establishment of Solid Waste Management Center are one and same are questions of fact. The disputed questions of fact cannot be gone into in a petition filed under Article 226 of the Constitution of India. As noted by the learned Single Judge, the petitioners have filed two suits in O.S.No.1158 of 2014 and O.S.No.1160 of 2014 before the Competent Civil Court. Subject matter of both original suit as well as the writ petition are one and the same which relates to land in Sy.No.75 of Doddabidarakallu. It is for the petitioners to establish their right and title over the lands in question. The order of the learned Single Judge neither suffers from any perversity or erroneousness warranting interference by this Court. No good ground is made out to interfere with the order passed by the learned Single Judge. Accordingly, the writ appeals are dismissed.
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JUDGE JUDGE mpk/-* CT:bms