IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6th DAY OF DECEMBER, 2016 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION No.13020/2016 C/W WRIT PETITION Nos.29755-29806/2016 WP No.13020/2016: BETWEEN:
Vijayashreepura Kshemabivrudhi Sangha (Okkoota) Regd., No.286, Temple Road, Vijayashreepura, Manasagangothri, Mysore – 570 006, Represented by its President.
(By Sri.X.M.Joseph, Adv.) AND:
1. State of Karnataka Represented by its Chief Secretary Vidhana Soudha, Vidhana Veedhi, Bangalore – 560 001.
.... PETITIONER 2. Department of Housing and Urban Development Secretariat Vikasa Soudha, Vidhana Veedhi, Bangalore – 560 001 Represented by its Principal Secretary 3. Smt. Leela Tripura Sundaramanni D/o Late K.B. Ramachandra Raje Urs, Aged about 52 years Resident of House Ho.22/1 “Leela Vihar” Vinobha Road, Jayalakshimi Road, Mysore – 570 012.
4. Smt Depa Malini D/o Late K.B. Ramachandra Raje Urs, Aged about 49 years, R/o House No.954/5 “Kalpana” Diwan’s Road, Lakshmipuram, Mysore – 570 004.
5. Smt. Keerthi Malini D/o. Late K.B. Ramachandra Raje Urs, Aged about 46 years Resident of “Gayathri Vihar” Bellary Road, Bangalore – 560 080.
6. Sri Chaduranga Katha Raje Urs S/o Late K.B. Ramachandra Raje Urs, Aged about 43 years, R/o House No.22/1 “Leela Vihar” Vinobha Road, Jayalakshmi Road, Mysore – 570 012.
7. Mysore Urban Development Authority J L B Road, Mysore - 570 005, Represented by its Commissioner.
.... RESPONDENTS (By Sri.A.G.Shivanna, AAG for R1 & R2, Sri.T.P.Vivekananda & Sri.P.S.Manjunath, Advs. For R7, Smt.Geethadevi M.P., Adv. for R3, 5 & 6 Sri.Sampath Anand Shetty, Adv. for R4) . . . .
This Writ Petition is filed under Article 226 of the Constitution of India, praying to a call upon the R-1 & 2 to place before this Hon’ble Court the original records of (I) Memorandum of Agreement dated 5.10.1949 signed between Government of Mysore and his Highness Jayachamaraj Wadeyar, the late Maharaja of Mysore and (ii) list of immovable properties held by his highness the Maharaja of Mysore as private property as on 26.1.1950 (Annexure-C) it does not show Sy.No.1 of Vijayashreepura, Mysore-570 005) for this Hon’ble High Court’s scrutiny and verification as to whether the Land in Sy.No.1 of Vijayashreepura, Mysore acquired vide Annexure-A dated 14.11.1899 and Annexure-A1 dated 12.7.1900 acquired for Government work is state property.
In W.P. Nos.29755-806/2016: BETWEEN:
1. Sudhakar Rai S S/o Late S. Narayana Rai Aged 63 years, No.38, Vijayshreepura, Mysore – 570 006.
2. Vajra Velu A S/o Ayyavoo Chittier S. Aged about 58 years, No.36, Vijayashreepura, Mysore – 570 006.
3. Komala P.
W/o Late B. Nagamaiah Aged about 60 years, No.141, 13th Cross, Temple Road, Vishveshwaraiah Layout, Mysore – 570 008.
4. M.C. Chidananda S/o Late Chikkagangappa Aged about 52 years, No.21D/80, Vijayashreepura, Mysore – 570 006.
5. Basavaraju K.C.
S/o Late Chikkaiah K. Aged about 42 years, No.17A-80, Vijayashreepura, Mysore – 570 006.
6. Girija Bai D/o Sri Ambaji Aged about 54 years, No.94, Vijayashreepura, Mysore – 570 006.
7. Loganatha T.R.
S/o T.N. Ramaswamy lyer Aged about 73 years, No. 21A/AT, Vijayashreepura, Mysore – 570 006.
8. Shobha J. Nayak W/o Late S.J. Nayak, Aged about 59 years, No. 65, Vijayashreepura, Mysore – 570 006.
9. Manjula B.V.
W/o B.P. Venkata Swamy, Aged about 65 years, No. 28/80, Vijayashreepura, Mysore – 570 006.
10. Nagaraju K.S. S/o Somappa Aged about 52 years, No. 21C/80, Vijayashreepura, Mysore – 570 006.
11. Ramegowda H.J. S/o Jogigowda, Aged about 65 years, No. 6/80, Vijayashreepura, Mysore – 570 006.
12. Bolalingaiah L S/o Late Lingegowda, Aged about 66 years, No. 80, Vijayashreepura, Mysore – 570 006.
13. Nagaraja R.V.
S/o Venkatakrishnappa, Aged about 72 years, No. 38/80, Vijayashreepura, Mysore – 570 006.
14. Shobha H W/o B.S. Javarappa, Aged about 52 years, No. 23/80, Vijayashreepura, Mysore – 570 006.
15. *Narayana Rao S/o Dasharath Rao T.L.
Aged about 62 years, No. 80/84, Vijayashreepura, Mysore – 570 006.
16. Ashwin S/o Nagamadaiah B. Aged about 30 years, No. 141, Vijayashreepura, Mysore – 570 006.
17. Murthy K.H.L.N.
S/o Late K.M. Hiriyanna Aged about 57 years, No. 19/A, Vijayashreepura, Mysore – 570 006.
18. Manjegowda H.N. S/o Nanjegowda B. Aged about 56 years, No. 520, Vijayashreepura, Mysore – 570 006.
19. Gowramma M.K. W/o Bheemaiah P.S. Aged about 67 years, No.390/34, Vijayashreepura, Mysore – 570 006.
20. Uma W/o H.N. Keshava Murthy Aged about 60 years, * Corrected vide Court order dt.30.01.2017 No. 182, Vijayashreepura, Mysore – 570 006.
21. Vittal Rao K.G. S/o K. Gopal Rao, Aged about 53 years, No. 19C/80, Vijayashreepura, Mysore – 570 006.
22. Anusuya Dharmakumar W/o Dharmakumar Aged about 60 years, No. 149, Vijayashreepura, Mysore – 570 006.
23. Sumathi D/o Sadashiva Aged about 40 years, No. 23, Vijayashreepura, Mysore – 570 006.
24. Ananthaswamy H. S/o Hanumanthusa Aged about 54 years, No. 7/80 (429), Vijayashreepura, Mysore – 570 006.
25. Bhimaiah P.S.
S/o Late Subbaiah P.N. Aged about 70 years, No. 34, Vijayashreepura, Mysore – 570 006.
26. Dakshayinamma W/o Late Shivalingappa Aged about 68 years, No. 16, Vijayashreepura, Mysore – 570 006.
27. Thulasi Bhagirathi W/o Nagaraja Rao, Aged about 69 years, No. 32B/80, Vijayashreepura, Mysore – 570 006.
28. Gayathri Shivaram W/o Shivaram M. Aged about 51 years, No. 90/80, Vijayashreepura, Mysore – 570 006.
29. Rajalakshmi Dixit W/o Lakshminarayana K.H., Aged about 56 years, No. 91, Vijayashreepura, Mysore – 570 006.
30. Nanjundappa S/o Late Ningarajappa, Aged about 59 years, No. 14A/80, Vijayashreepura, Mysore – 570 006.
31. Bharath R, S/o Rajegowda Aged about 48 years, No. 20, Vijayashreepura, Mysore – 570 006.
32. Naresh Babu H. S/o Haribabu, Aged about 38 years, No. 26/80, Vijayashreepura, Mysore – 570 006.
33. Manjunath Babu H. S/o Haribabu Aged about 36 years, No. 26/80, Vijayashreepura, Mysore – 570 006.
34. Prasad S.
S/o Seetharamaiah B., Aged about 59 years, No. 20B, Vijayashreepura, Mysore – 570 006.
35. Ramegowda M.
S/o Late Marilngegowda Aged about 57 years, No. 42, Vijayashreepura, Mysore – 570 006.
36. Leela H.S.
W/o T. Ratnakar, Aged about 49 years, No. 4 & 5, Vijayashreepura, Mysore – 570 006.
37. Brindadevi Naidu S.
W/o B. Seetharam Naidu Aged about 60 years, No. 70/80, Vijayashreepura, Mysore – 570 006.
38. Vijayalakshmi Rao K S/o Late A. Jayanth kumar, Aged about 62 years, No. 19/80, Vijayashreepura, Mysore – 570 006.
39. Shivashankar G.
S/o Late V.D. Govindaraju Aged about 60 years, No. 529, Vijayashreepura, Mysore – 570 006.
40. Jayaram P.
Aged about 58 years, No. 34, Vijayashreepura, Mysore – 570 006.
41. Venkataraju P. S/o Narasaraju, Aged about 67 years, No. 22, Vijayashreepura, Mysore – 570 006.
42. Suresh Raju P.
S/o P. Venkataraju, Aged about 55 years, No. 28, Vijayashreepura, Mysore – 570 006.
43. Geetha S.N.
W/o Narashimharaju, Aged about 55 years, No. 63, Vijayashreepura, Mysore – 570 006.
44. Chinnabbaraju S/o Late Narayana Raju, Aged about 65 years, No. 51, Vijayashreepura, Mysore – 570 006.
45. Manjula K.N.
W/o S. Gopalaraju Aged about 55 years, No. 38, Vijayashreepura, Mysore – 570 006.
46. Lakshmi N.G. W/o K.L. Prakash Aged about 45 years, No. 19, Vijayashreepura, Mysore – 570 006.
47. Shankar B. S/o C. Basavanna Aged about 55 years, No. 9/80, Vijayashreepura, Mysore – 570 006.
48. Sunanda M.
W/o Mahadevamurthy Aged about 63 years, No. 04, Vijayashreepura, Mysore – 570 006.
49. Indira M. W/o Muddanagu Aged about 49 years, No. 01, Vijayashreepura, Mysore – 570 006.
50. Ashok Kumar V.A S/o Late M.V. Ashwathaiah Setty Aged about 61 years, No. 48, Vijayashreepura, Mysore – 570 006.
51. Sadananda Rao S.N.
S/o Late S.B. Narayana Rao, Aged about 53 years, No. 7A/80, Vijayashreepura, Mysore – 570 006.
52. Nagarathna W/o K. Subbarao, Aged about 50 years, No. 26/A, Vijayashreepura, Mysore – 570 006.
.... PETITIONERS (By Sri.X.M.Joseph, Adv.) AND:
1. State of Karnataka Represented by its Chief Secretary Vidhana Soudha, Vidhana Veedhi, Bangalore – 560 001.
2. The Principal Secretary Department of Housing and Urban Development, Vikasa Soudha, Bangalore – 560 001.
3. Mysore Urban Development Authority J L B Road, Mysore – 570 005, Represented by its Commissioner.
4. Smt. Leela Tripura Sundaramanni D/o Late K.B. Ramachandra Raje Urs Aged about 52 years Resident of House Ho.22/1 “Leela Vihar” Vinobha Road, Jayalakshimi Road, Mysore – 570 012.
5. Smt Depa Malini D/o Late K.B. Ramachandra Raje Urs, Aged about 49 years, R/o House No.954/5 “Kalpana” Diwan’s Road, Lakshmipuram, Mysore – 570 004.
6. Smt. Keerthi Malini D/o Late K.B. Ramachandra Raje Urs, Aged about 46 years Resident of “Gayathri Vihar”
Bellary Road, Bangalore – 5600080.
7. Sri Chadrakantha Raje Urs S/o Late K.B. Ramachandra Raje Urs, Aged about 43 yers, R/o House No.22/1 “Leela Vihar” Jayalakshmi Road, Mysore – 570 012.
.... RESPONDENTS (By Sri.A.G.Shivanna, AAG for R1 & R2, Sri.T.P.Vivekananda & Sri.P.S.Manjunath, Advs. For R3, Smt.M.P.Geethadevi Adv. for R4 to R7) . . . .
These Writ Petitions are filed under Article 226 of the Constitution of India, praying to direct R-1 and R-2 not to treat the petitioners as “Encroachers on land in Sy No.1 of Vijayashreepura, Mysore” whose dwelling houses have been regularised 20 years ago vide Annexure-F to Annexure-F-51 (Annexure-F to Annexure-F-51 is described in schedule), such regularisation being pursuant to Annexure-D, the notification dated 09.01.1989 issued by respondent No.3 and also pursuant to Annexure-E. the order dated 02.02.1993 of this Hon’ble High Court in W.P. Nos.3486-87/1991 C/W WP No.24210-24230/1990.
These writ petitions having been heard and reserved for orders this day, Bopanna J., made the following:
O R D E R The petitioner in W.P. No.13020/2016 claims to be a ‘Sangha’ representing the interest of the residents who are in occupation of a portion of the land in Sy. No.1 of Vijayashreepura in Mysore.
The petitioners in W.P. Nos. 29755-806/2016 claim to be the individual occupants of the plots/houses as indicated in the cause-title to the petition situate in Sy. No.1 of Vijayashreepura in Mysore. Since the contentions in these petitions are common and they relate to the same subject matter, they are considered together.
2. The petitioner in W.P. No.13020/2016 is seeking that the memorandum of agreement dated 05.10.1949 signed between the Government of Mysore and his Highness the Maharaja of Mysore be summoned and verify the list of immovable properties held by the Maharaja as private property as on 26.01.1950 and to scrutinize whether the land in Sy. No.1 of Vijayashreepura, Mysore acquired under the notification is State property. It is also prayed that the respondent – State be directed to recover the compensation wrongly paid to Sardar Ramachandra Raje Urs, the father of respondents 3 to 5 towards acquisition of the land mentioned in the notification. Insofar as the continuance of the members of the petitioner in the land in question the petitioner is seeking direction to the respondents to consider formulating an exclusive scheme to regularize the unauthorised constructions in Sy. No.1 of Vijayashreepura, independent of the provisions of Section 3(i) of Karnataka Regularization of Unauthorized Constructions in Urban Areas Act, 1991, since the amount has been collected by the Competent Authorities towards such regularization.
3. The petitioners in W.P. Nos.29755-806/2016 are seeking that direction be issued to respondents 1 and 2 not to treat the petitioners as encroachers on land in Sy. No.1 of Vijayashreepura, Mysore, since according to them the dwelling houses have been regularized about 20 years ago through the documents at Annexures `F’ series pursuant to the notification dated 09.01.1989 issued by respondent No.3.
4. Though the prayers of different nature are made in these petitions the gist of the contention based on which the petitioners seek relief in the instant petitions is that the petitioners, as well as the members of the ‘Sangha’ are residents of the dwelling houses constructed on Sy.No.1 of Vijayashreepura, Mysore. According to the petitioners, during the period of the Maharaja of Mysore heading the Government of Mysore a notification dated 14.11.1899 and 12.07.1900 were issued under Section 6 of the Land Acquisition Act, 1894 (‘LA Act’ for short) whereunder the land situated in Hinkal, Paduvaralli, Kukkanahalli and Bhogadi, in all measuring 815 acres 15 guntas was acquired for the benefit of the Government. Among the said lands through the order dated 29.08.1921 a portion of the land was ordered to be treated as a separate block as Sy. No.1 of Vijayashreepura, Mysore. The petitioners in that regard have referred to the transition whereby the Constitution was adopted and on abolition of the Privy Purse the land continued as belonging to the Government.
5. From out of the said lands the City Improvement Trust Board and Mysore Urban Development Authority (MUDA) acquired 30 acres 20 guntas in Paduvaralli and Madhavagiri from the total extent in Vijayashreepura. Again on 01.02.1973 the Land Acquisition Officer issued a notification to acquire 9 acres 29 guntas in Sy. No.1 of Vijayashreepura, Mysore for the University of Mysore. In respect of certain other lands, it is stated that on coming into force of the Karnataka Land Reforms (Amendment) Act, 1973, the lands in possession of the tenants vested with effect from 01.03.1974 whereunder the tenants were entitled to grant of occupancy rights, due to which about 24 persons claiming to be the tenants in portions of the land in Sy. No.1 of Vijayashreepura, Mysore sought grant of occupancy right in their favour. The Land Tribunal through the order dated 26.09.1990 conferred the occupancy right which was assailed in W.P.No.17533/1991. This Court by the order dated 22.01.1995 set-aside and remanded for fresh consideration. When that was the position another notification dated 29.04.1988 for acquisition of the land was issued showing the names of the persons who had claimed the tenancy rights. The extent sought to be acquired was 94 acres 28 guntas.
6. The petitioners further aver that since several unauthorised dwelling houses existed in portions of the land in Sy. No.1 of Vijayashreepura, Mysore, the MUDA issued a notification dated 09.01.1989 inviting application for regularisation of the dwelling houses. Since at that stage the consideration had not been made by assuming that certain constructions were within the area of 55 acres in Sy. No.1 of Vijayashreepura, Mysore which had been allotted to the JSS Institution, the occupants who were aggrieved had approached this Court in W.P. Nos. 3486-3487/1991 and W.P. Nos. 24210-24230/1990. This Court by the order dated 02.02.1993 had directed consideration of the application on its merits by protecting the occupation till consideration. Insofar as the reconsideration by the Land Tribunal it was thereafter held that the said land was Government Kharab land and was not tenanted. The order to that effect was passed on 14.05.1999 which was assailed before this Court in W.P.
No.17918/1999. To the extent the Land Tribunal holding the land as Government Kharab, Sardar Ramachandra Raje Urs assailed it in W.P. No.22254/1999.
7. It is at a stage when all these proceedings were taking place, the petitioners claim that the process for regularization of the unauthorized constructions and occupation was also undertaken and the regularization fee as also the Municipal Taxes were collected. It is in that view the petitioners claim right to continue in the said land and by also referring to the several other litigations relating to the land including the Public Interest Petition in W.P. No.23429/1998 filed seeking to protect the land, the petitioners have sought for the relief that they should not be treated as encroachers on the land. The Sangha has also made a similar averment in the petition and the ultimate prayer is to the same effect though the prayers with reference to the agreement is made. The ultimate effort of the petitioners is to contend that the land in Sy. No.1 of Vijayashreepura, Mysore is a Government land and the petitioners as well as the other members of the Sangha being occupants of such land are entitled to continue as the process of regularization had been undertaken couple of decades earlier.
8. The respondents No.1 and 2 - State in their objection statement have sought dismissal of the petition as the prayer made is in conflict with the direction issued by the Hon’ble Supreme Court. Reference is made to the directions issued by the Hon’ble Supreme Court in the Civil Appeal in C.A. Nos.7372-7428/2004 in detail and the action that is directed to be taken to evict the encroachers. It is contended that in terms of the direction the JSS Institution has already returned 15 acres of land. The implementation of the order of the Hon’ble Supreme Court and in that regard the formation of the layout including the built up area as per the plan is stated and the possibility of working out a scheme to consider allotment to the persons who would be evicted is also stated. However, it is clarified that all of which will be considered only after the implementation of the order of the Hon’ble Supreme Court. The entire emphasis by the State is on the earlier order of the Hon’ble Supreme Court and implementation of the same and therefore the prayer is these petitions cannot be considered.
9. The respondent Nos.3, 5 and 6 namely the persons who claim to be the owners of the property (private respondents) have filed their objection statement among others raising a contention with regard to the maintainability of the petition, as the ‘Sangha’ cannot claim any relief. Insofar as the reference made in the petition to the various litigations relating to the property in Sy. No.1 of Vijayashreepura, Mysore, the same being the matter of record they have not commented upon the same. Insofar as the title to the property it is contented by them that when the petitioners admittedly claim to be encroachers/unauthorised occupants of different bits of land in Sy. No.1 of Vijayashreepura, Mysore seeking regularisation they do not have the locus standi to question the right, title and interest of the private respondents. It is contended that an association known as Vijayashreepura Residents Welfare Association, Vijayashreepura Nivasigala Kshemabhivrudhi Sangha had filed W.P. Nos.15029 and 15269/2000 C/w. W.P. No. 9203-9224/2000 seeking a similar relief for regularisation of unauthorised construction which was rejected through the order dated 28.05.2001 and as such it is contended that the present petition is barred by res judicata. Though writ appeals were filed and the competent authority was directed to consider the respective representations, no orders to regularize the unauthorized constructions have been passed till date. The answering respondents had challenged the order of the Division Bench to that effect in the connected matters before the Hon’ble Supreme Court in Civil Appeal Nos. 7372-7428/2004 wherein while allowing the appeal the order of the Division Bench has been set- aside. It is pointed out that the Vijayashreepura Residents Welfare Association which had filed the appeal in W.A. No.4002/2001 was also a party to the proceedings before the Hon’ble Supreme Court in C.A. Nos.7372-7428/2004 and connected appeals. Even with regard to the demolition of unauthorized construction the issue had arisen in C.A.No.453/2007 and the interest was adequately represented and all these aspects had arisen for consideration before the Hon’ble Supreme Court in the above stated appeals.
10. It is further contended by the private respondents that in the objection filed to W.P.No.14726/1992, MUDA had indicated that the unauthorized construction was only on an extent measuring 3 acres 10 guntas of land and not to the extent as claimed by the petitioners. Even in respect of the claim made by certain persons as tenants under the Land Reforms Act, the issue has concluded through the order passed in W.A. No.1654/2008 connected with W.A.Nos.2180-2201/2008 holding that the land is not a tenanted land. In view of all the earlier proceedings where the interest of the alleged encroachers/ unauthorized occupants has been considered, these respondents contend that the petitioners are estopped from making any claims once over again. In view of the decision of the Hon’ble Supreme Court in the Civil Appeals referred to above, they seek that the petitions be dismissed.
11. The respondent No.7 – MUDA have filed their objection statement. Insofar as the prayer with regard to the formulation of a separate scheme for regularization of unauthorized constructions it is contended that it is beyond their purview. In any event, it is their case that no direction could be issued to enact a statute at the instance of a citizen as it is within the wisdom of the State Legislature. With regard to the contention put forth by the petitioners that the money has been collected on promising to regularize unauthorized construction, it is stated that in view of the subsequent developments the exercise done by the State Government has become redundant. The State Government having noticed that large number of unauthorized constructions had come up on plots within the Municipal/City Corporation had taken such steps to study the measures for regularization by constituting a Committee. The details of the Committee is indicated and one of the points to be considered was regularization of unauthorized construction both on the land converted under Land Revenue Act or private agricultural land. However, no details relating to the administrative work of the Committee was indicated.
12. It is contended that subsequently, a Government Order dated 27.09.1990 was passed wherein it was stated that it will not apply to areas already developed and also to area declared as slum under the Slum Clearance Act as on 31.03.1990. Insofar as the unauthorized construction the Committee on 28.05.1998 passed a resolution directing MUDA to issue notice to the owners of unauthorized construction giving three months time to pay the amount specified. The notice as issued was not on account of MUDA but as being a member of the Committee. However, before any further steps could be taken, the Karnataka Regularization of Unauthorized Constructions in Urban area Act 1991 came into force. Under Section 4(viii) there is prohibition to regularize unauthorized constructions made on the land belonging to or vested in any authority or local authority and such other restrictions are also indicated with regard to the green belt in the CDP or ODP. In such circumstance since the acquisition proceedings had already been initiated the consideration could not be made. This respondent has also referred to the various litigations relating to the land in question and the decision of the Hon’ble Supreme Court and in that view it is contended that the claim as put forth by the petitioner cannot be accepted. For all the said reasons they seek that the writ petition be dismissed.
13. Since the array of the respondents is different in these petitions and the petitioners are also differently described, for the purpose of convenience and clarity the petitioners would be collectively referred in that manner, while the respondents will be referred to as the “State”, “MUDA” and “the private respondents”
respectively as and when the context requires their reference.
14. Heard Sri.X.M.Joseph, learned counsel for the petitioners, Sri.A.G.Shivanna, the learned Addl. Advocate General for the State, Sri.P.S.Manjunath, learned counsel for MUDA and Smt.M.P.Geetha Devi, learned counsel for the private respondents and perused the petition papers.
15. At the outset it is necessary to take note that the petitioners in addition to the contentions urged and the documents relied on along with the petition have also filed the application referring to the additional contentions and filed the compilation of the documents which are also kept in view while considering the rival contentions though no separate orders are passed on such applications. In that regard it is to be noticed that the petitioners have put forth varied nature of contentions which in fact contradict each other. The petitioners at the outset along with the petition have relied on the documents at Annexure `E’ and `F’ series to claim that pursuant to the order in W.P. Nos.3486- 3487/1991 the notices were issued in the year 1996 calling upon the petitioner to pay the amount so as to consider the regularization of the occupation of the extents indicated therein.
16. Whether such notices issued would create any right in favour of the petitioners and in that light whether the reference made to the list contained at Annexure `G’ and restricting such claim in respect of the persons indicated in the memo and whether in that light any relief is available is one aspect of the matter. However what is difficult to understand is that when such right is being claimed by the petitioners based on such consideration for regularization, the petitioners have subsequently sought to contend regarding title by adverse possession which in fact runs contrary to the very principle based on which adverse possession can be claimed. In that view of the matter though the learned counsel for the petitioner has in that light sought to contend title by adverse possession and has sought to refer to the decision in the case of State of West Bengal Vs. The Dal Housie Institute Society (1970(3) SCC 802); in the case of Collector of Bombay Vs. Municipal Corporation of the City (AIR 1951 SC 469) and in the case of State of Orissa Vs. Ramachandra Dev (AIR 1964 SC 685) the same need not be adverted to in detail inasmuch as the consideration therein being totally on a different circumstance which would not be of assistance in the instant case where the petitioners themselves have been contending that a law is to be framed and the regularization is to be made in that circumstance and in another breath have been contending that due to collection of the amount and taxes the regularization has already taken place.
17. That apart except for the contention being raised by the petitioners that the land belongs to the Government and therefore the unauthorized construction is to be regularized there is no conclusive material in that regard and the petitioners in that context have made a prayer to direct the respondents to produce the memorandum of agreement dated 08.10.1949 so as to contend that the property was not held by the Maharaja of Mysore and the private respondents herein therefore cannot claim ownership right in respect of the property. Hence at this stage the petitioners are not sure of the ownership and are still in the process of seeking to establish the same. Therefore even to claim adverse possession the appropriate ownership is to be admitted and the nature of possession as required for that purpose is also to be established. But, in the instant case from the beginning there has been several lititgations pending relating to the property where under the private respondents have been asserting their right to the property and there was also the challenge made to the attempt to regularize the unauthorized construction by certain persons by filing public interest litigation to which reference is contained above. In that circumstance when there are multifarious disputed issues, the contention of the petitioners in that regard cannot be decided in a writ petition under Article 226 of the Constitution of India. Hence the decisions cited above would not be of assistance when there are serious disputes with regard to the question of title as claimed by the petitioners. Above all, what cannot be lost sight in the instant case is also the order dated 16.12.2015 passed by the Hon’ble Supreme Court in C.A. Nos. 7372-7428/2004 wherein the right as claimed by the private respondents has been taken note of and the manner in which the rights are to be regulated has been indicated therein to which a detailed reference will be made hereunder.
18. Further the learned counsel for the petitioner has exhaustively referred to the additional documents produced in the compilation. In that regard in order to contend that the construction existed even at the stage of the acquisition proceedings and this is indicated in the award dated 27.10.1988, the same is referred and in that view it is contended that MUDA issued the notices dated 09.01.1989 in view of the same and in that regard the receipt for having paid the amount on 17.02.1989 being one of the instances with regard to the process of regularization which had been initiated is also contended. The consideration which was required to be made in view of the order passed in W.A. No.4001/2001 and connected petition is also referred. It is on that basis the contention has been urged by the learned counsel for the petitioner with regard to estoppel, equity and legitimate expectations of the petitioners to continue on the said lands. In that regard the decisions in the case of Union of India and others Vs. Indo Afghan Agencies Ltd., (AIR 1968 SC 718); in the case of Dr.Ashok Kumar Maheshwari Vs. State of U.P. and another ([1998]2 SCC 502); in the case of Manuel Sons Hotels Pvt. Ltd., Vs. State of Kerala and others ([2016]6 SCC 766) and in the case of Sayeed Ratan Bhai Vs. Shirdi Nagar Panchayath ([2016]4 SCC 631) are relied upon. In this regard also, having perused the said decisions and having referred to the facts involved in the instant case I am of the view that the cited decisions cannot be taken note in abstract though there can be no quarrel with regard to the legal position as enunciated in the said decisions. I am of the said view for the reason that from the very narration of the facts as indicated above, as per the contentions put forth both by the petitioners as well as the respondents, the inter se disputes or rather the same issues connected with regard to the very same property has already been the subject matter before the Hon'ble Supreme Court, which will have to be kept in view and a decision will have to be taken in these petitions and not dehors the same.
19. In that regard what is to be taken note is the strong reliance placed by all the respondents to the decision of the Hon'ble Supreme Court dated 16.12.2015 passed in Civil Appeal Nos.7372-7428/2004 connected with Civil Appeal No.453/2007. The said order has also been produced by the learned counsel for the appellant in the compilation of the documents to contend that was a consideration made with regard to the acquisition proceedings and the ownership issue is left open and that it can be considered by this Court. A perusal of the said order would disclose that the Hon’ble Supreme Court was in that case considering the validity of orders passed in W.P. No.14726/1994 wherein the acquisition through the notification dated 21.06.1985 was in issue relating to the entire extent of 94 acres 28 guntas of land located in Vijayashreepura village, Mysore but it was not just that alone. The final notification dated 29.04.1988 as well as the Government Approval dated 28.05.1998 for allotment of 55 acres of the said land to JSS Mahavidyapeetha was also being considered. In addition the issue which arose from the writ petition filed in W.P. No.31449/1994 relating to the public notice dated 27.06.1994 inviting applications for regularization of unauthorized constructions made in several villages including Vijayashreepura village, Mysore was in issue. The question relating to the occupancy right being claimed under the Karnataka Land Reforms Act in respect of a portion of the property therein was also an aspect which was kept in perspective and regulated.
20. To the above said process of consideration, though it is contended by the individual petitioners in W.P. Nos.29755-806/2016 herein as not being parties to the said proceedings, from the cause-title to the petition filed in the said proceeding it is seen that several other persons who are residents of the area and were parties in Writ Appeal Nos.4001 & 6910- 6939/2001 were also parties. That apart the Vijayashreepura Residents’ Welfare Association, Vijayashreepura Nivasigala Kshemabhivruddhi Sangha who were the respondents in W.A. Nos. 4002/2001, 6137-6156/2001 & W.A.No.3525/2002 were arrayed as parties. It is in that light a consideration of the entire conspectus relating to the varied rights claimed in respect of the very same land in Sy. No.1 of Vijayashreepura village, Mysore to which the petitioners herein also claim a right had been considered. If that be the position the same issue will not arise for determination every time a different person raises it for consideration.
21. In that background the consideration as made by the Hon’ble Supreme Court if perused, will indicate that while taking note of a similar contention that is urged by the petitioners herein was adverted and a question was raised with regard to the very ownership of the private respondents herein, it was also considered. The contention raised to deny the title of the private respondents herein was not accepted as it had not been raised by any person at any earlier point in time and was being raised at the fag end of the proceedings. In any event with regard to the property in question the Government has not claimed any right though the petitioners are contending that the Government is the owner. The irony is that the Government is relying on the order of the Hon’ble Supreme Court to resist the claim of the petitioners. Therefore, when such consideration has been made by the Hon’ble Supreme Court in relation to similar contentions relating to the very same land bearing Sy. No.1, Vijayashreepura, Mysore, examining the issue once over again at the instance of the petitioners in these petitions would not arise as this Court cannot take any other view than what has been taken by the Hon’ble Supreme Court in respect of the very same property.
22. The other aspect of the matter is that even though the Hon’ble Supreme Court had held the acquisition under the provisions of the 1903 Act by MUDA was invalid in law, yet the Hon’ble Supreme Court has regulated the same as hereunder after also referring to the ownership. The relevant portions are as hereunder:
“22. There is one incidental but important issue that needs to be dealt with at this stage. Shri. P.Vishwanatha Shetty, learned Senior Counsel appearing for the MUDA has vehemently and repeatedly urged that the appellant – writ petitioner is not the owner of the properties and the same are State properties inasmuch as the appellant – writ petitioner who claims to be a decendant of the Maharaja of Mysore cannot have the benefit of suit property as the same was not included as the private property of the Maharaja in the instrument of accession executed at the time of merger of the princely State of Mysore with the Union. Shri Shetty has offered to lay before the Court the relevant documents in this regard which, according to him, would clearly disclose the absence of ownership of the appellant – writ petitioner in the property in question. Shri Shetty has further submitted that the above determination should be made by this Court in the exercise of its jurisdiction under Article 136 of the Constitution of India inasmuch as substantial questions of public interest arise therefrom as a person who is not the owner is claiming properties that belong to the State. We are afraid we cannot go into the said question as not only the same was not an issue before the High Court; it had not also been raised by any person, body or authority in any forum at any point of time. It is an issue raised at the fag end of the lengthy oral discourse made on behalf of the contesting parties. Further more, the above stand taken before this Court on the one hand and resort to the process of acquisition on the other is also self-contradictory. Except what is stated above, we do not wish to dilate on the said point and leave the matter for a just determination by the appropriate forum as and when the same is raised by a person aggrieved, if at all so raised.
We are told that the Respondents No.4 to 27 had raised a claim to be occupancy tenants in respect of the entire land of 94 acres 28 guntas. The said claim had been rejected by the learned Revenue Tribunal. The matter is presently pending in a writ appeal before the Division Bench of the High Court of Karnataka i.e., Writ Appeal No.1654 of 2008. As the said matter is pending, we do not consider it necessary to go into the above issue except to state the obvious, namely, that the judgment of the High Court in the said writ appeal as and when passed will naturally take its own effect in accordance with law. In this regard, we may also take note of the fact that it is admitted by Shri Shetty, learned Senior Counsel appearing for the MUDA that out of remaining 40 acres of land approximately, about 16 acres and 30 gunthas is presently lying vacant and there are encroachers on the remaining land. Insofar as the encroachments are concerned, we need hardly to emphasize that all such encroachments need to be dealt with in accordance with law so that full effect of this order and the consequential directions contained herein can be given effect to.
23. xxxxxx 24. xxxxxx 25. Adverting to the facts of the present case, we find that out of the 94 acres and 28 guntas of land that was acquired way back in 1985-88, 55 acres have been allotted to the respondent No.28. The layout proposed by MUDA was in respect of the balance land i.e., about 40 acres. Of the said approximately 40 acres of land, according to the MUDA, about 16 acres and 30 guntas is presently vacant whereas there are encroachments on the remaining land. Though even on the land not allotted to respondent No.28, no developmental work, in consonance with the object of the 1903 Act has been undertaken we are not certain if the same is on account of the smallness of the area available or for any other good and acceptable reasons. However, keeping in mind that even if we are to set-aside the acquisition, re-acquisition can be resorted to in which event the land would continue to vest in the MUDA and the land owner would be entitled to compensation, though at an enhanced rate, we are of the view that it would be just, fair and equitable to direct that the land vacant as on today and all such lands under encroachments, after being made free therefrom, may be retained by the MUDA for developmental works in consonance with the object(s) of the 1903 Act and the owner thereof be entitled to compensation in terms of the directions that follow. All proceedings connected to such encroachments will be completed within six months from today by all such forums before which the same may be pending. In the event MUDA does not consider it feasible to utilize the land for the purpose of the Act the same be handed over to the person entitled to receive such possession depending upon the outcome of Writ Appeal No.1654 of 2008.”
(Emphasis supplied) 23. A perusal of the extracted portion of the order would clearly indicate that apart from directing the manner in which the remaining portion of the property is to be dealt with after permitting the JSS Institutions to retain an extent of 55 acres, all other occupants have been considered as encroachers and a direction in fact has been issued by the Hon’ble Supreme Court to clear the encroachment within the time frame as indicated therein. It is no doubt true that the petitioners herein claiming to be aggrieved by such directions issued by the Hon’ble Supreme Court had filed an application for clarification of the order dated 16.12.2015 in C.A. Nos.
7372-7428/2004 and direct the MUDA not to dispossess the applicants and not to demolish the respective houses of the other residents by referring to the Survey conducted by MUDA. The application filed on 30.07.2016 has however been dismissed by the Hon’ble Supreme Court through the order dated 16.08.2016. While doing so the Hon’ble Supreme Court no doubt has indicated that the order will not affect the merits of the writ petition and such other proceedings as may have been initiated by the applicants.
24. In that light the learned counsel for the petitioners seek a consideration of these petitions on its merits. However, on having noticed the consideration made by the Hon'ble Supreme Court and the directions issued therein, in my opinion, any other consideration independent of the same would not be possible in these petitions since as already indicated above the main consideration by the Hon’ble Supreme Court in C.A.Nos.7372-7428/2004 relates to the very same issue relating to status of the property in view of the competing claims in respect of the very property while keeping in view the entire extent measuring 94 acres 28 guntas, though the petitioners presently are referring to an extent of 23 acres 28 guntas of the same land and the learned counsel for the private respondents points out that at an earlier point the encroached area was only to the extent of 3 acres 10 guntas as per the statement filed by MUDA in W.P. No.14726/1994. Be that as it may, irrespective of the extent involved, when the consideration made by the Hon’ble Supreme Court relates to the very same issue in respect of the entire extent of the same land it would not be appropriate for this Court to interfere at this stage. That apart it is also brought to the notice of this Court that the application filed by MUDA seeking extension of time to comply with the order dated 16.12.2015 has also been rejected by the Hon’ble Supreme Court through the order dated 07.11.2016.
25. One other aspect of the matter is also that in the order dated 16.12.2015 passed by the Hon’ble Supreme Court, the property in question is ordered to vest with MUDA though the acquisition was held to be invalid. While stating so the Hon’ble Supreme Court has also taken into consideration about the pendency of the issue relating to the tenancy claimed under the Karnataka Land Reforms Act in respect of a portion of the property. In that regard it was ordered that based on the outcome of Writ Appeal No.1654/2008 pending before this Court the land to that extent would be returned to the person/persons entitled to receive such possession in terms of the outcome. In respect of the remaining portion, the compensation is ordered to be paid.
26. From the material available on record it is seen that the Writ Appeal Nos.1654/2008 and 2180- 2201/2008 has been disposed of on 17.03.2016, subsequent to the order passed by the Hon’ble Supreme Court. Through the said order, the order passed by the Land Tribunal and the learned Single Judge in holding that the tenants have not proved that they were cultivating the property as tenants as on 01.03.1974 or immediately prior thereto has been upheld and the claim of occupancy right has been rejected. If that be the position, in view of the order passed by the Hon’ble Supreme Court even that extent of the land which was the subject matter of occupancy proceedings would also remain with the MUDA and will have to be regulated in the manner as directed by the Hon’ble Supreme Court. If that aspect is also taken note and when the entire extent of the property except the extent allowed to the JSS Institutions has vested with the local authority namely the MUDA, the consideration for regularization will also not arise keeping in view the prohibition under Section 4(viii) of the Karnataka Regularization of Unauthorized Constructions in Urban Areas Act, 1991. Direction to formulate any other scheme for regularisation as prayed by the petitioners is also out of bounds of this Court to be directed as that can only be prayed before the Hon'ble Supreme Court in view of its earlier consideration or it should be in the manner as articulated in the objection statement filed by the State only if it is done in the manner without violating the directions issued by the Hon’ble Supreme Court.
27. The learned counsel for the petitioner no doubt would seek to contend that the petitioners cannot be considered as encroachers since their case had arisen for regularization and they being occupants of Government land are entitled to continue after deciding the ownership of the land. In fact the learned counsel for the petitioner has also relied on the very order dated 16.12.2015 passed in C.A. No.7372-7428/2004 by the Hon’ble Supreme Court to contend that the Hon’ble Supreme Court has not gone into the question of ownership and has left it open to be decided by the appropriate forum and while rejecting the application filed by the petitioners it has been done without prejudice to the merits in the instant petitions. Having given my thoughtful consideration to such contention as well, I am of the opinion that such contention is far- fetched to be accepted in the instant proceedings for more than one reason.
28. Firstly, the petitioners have not relied on any documents whatsoever to set up title in themselves and claim to be the owners of the property though they claim about the right by regularization. Secondly, even though reference is made so as to set up an earlier proceeding where notice was issued and certain amount is said to have been collected from the petitioners, the same has not fructified into an order of regularization creating ownership so as to claim right under the same. The very fact the petitioners in these petitions are also seeking a consideration of their regularization of occupation by enacting a law or forming a scheme will indicate that the right has not yet crystallized in their favour. Thirdly, even though the Hon’ble Supreme Court in C.A. Nos.7372-7428/2004 has referred to the contention urged on behalf of MUDA about the ownership of the property it was an inter se contention between the private owners who claim to be the owners of the property and the MUDA who sought to dispute it belatedly. Even in that circumstance though an observation was made that the ownership could be decided only in an appropriate forum, the Hon’ble Supreme Court has proceeded further to observe that if it was Government land there would have been no need for acquisition and in that light found the contention self-contradictory. Hence the contention that it is Government land has been ruled out. Fourthly, even if the observation of the Hon’ble Supreme Court relating to the ownership being kept open is taken into consideration and any determination was required in any other proceedings it would arise only if a lis is raised inter se between the Government and the private respondents. As noticed, the Government has not made this into an issue at all.
29. The petitioners having through out contended to be in unauthorized occupation, at this belated stage cannot seek adjudication of the right of ownership with regard to the property without there being any material in the possession of the petitioners. In any event it cannot be considered at their instance when the very prayer made by them is to secure the agreement dated 26.01.1950 and scrutinize whether it is State property which prayer itself is in the nature of fishing for evidence by seeking for a roving enquiry to be conducted in a writ petition. Above all, the very fact the Hon’ble Supreme Court has accepted the challenge made to the acquisition by the private respondents herein and granted them the relief in the manner indicated, is a pointer to the fact that the Hon’ble Supreme Court has also accepted them to be the owners of the land. Further, the equitable relief that was moulded by the Hon’ble Supreme Court to enable the private respondents to receive the compensation will also indicate that if any other view is taken by this Court relating to the ownership of the property it would be in violation of the order of the Hon’ble Supreme Court.
30. If the above aspects are kept in view the contentions urged by the learned counsel for the petitioner with regard to the vested right of the petitioners and claiming right under the regularization with reference to the decisions of the Hon’ble Supreme Court in the case of D.Bhopalan and others Vs. Madras Metropolitan Water Supply and Severage Board and others ([2007]12 SCC 569); in the case of Southern Petrochemical Industries Co. Ltd., Vs. Electricity Inspector and ETIO and others ([2007]5 SCC 447); in the case of Commissioner of Income Tax, U.P. Vs. M/s. Shah Sadiq and Sons ([1987]3 SCC 516); in the case of Milk Producers Association, Orissa and others Vs. State of Orissa and others ([2006]3 SCC 229); in the case of Nature Lovers Movement Vs. State of Kerala and others ([2009]5 SCC 373); in the case of Amarendra Kumar Mahopatra and others Vs. State of Orissa and others ([2014]4 SCC 583) and in the case of Krishna Devi Mulchand Kamatia and others Vs. Bombay Environmental Action Group and others ([2011]3 SCC 363) would not be of assistance to the present facts. On the other hand when the detailed discussion made above indicates that the very issue relating to the same property has been considered by the Hon’ble Supreme Court and persons similarly placed as that of the petitioners and a Welfare Association representing similarly placed persons claiming the very same right were also before the Hon’ble Supreme Court, such decision will bind the other similarly placed persons who were not before the Court. Hence, the decision in the case of Hope Plantations Ltd., Vs. Taluk Land Board, Peermade and another ([1999]5 SCC 590) and in the case of Dr. Subramanium Swamy Vs. State of Tamil Nadu and others ([2014] 5 SCC 75) relied upon by the learned counsel for the private respondents would be more appropriate to be taken note as imposing a restraint for the decision on the same subject matter to be taken once over again by this Court when the highest Court has already decided the issue and settled the right of the parties.
31. Hence, for all the aforestated reasons, I do not find merit in the prayers sought herein. The petitions are accordingly dismissed with no order as to costs.
Sd/- JUDGE SPS