IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR.JUSTICE RAM MOHAN REDDY WRIT PETITION NOS OF 2011 (LB-RES)

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 6 TH DAY OF SEPTEMBER 2012 BEFORE THE HON BLE MR.JUSTICE RAM MOHAN REDDY WRIT PETITION NOS OF 2011 (LB-RES) BETWEEN 1. D. RAVI S/O. V DORAI AGED ABOUT 43 YEARS, NO. 106, 4TH MAIN, N BLOCK, 2. S ESHWARI W/O S M SUNDERRAJAN AGED ABOUT 45 YEARS NO. 36, 12TH CROSS, NAVEELU ROAD, 3. ANASUYA W/O. KEMPEGOWDA AGED ABOUT 43 YEARS D NO. 9, RAMAKRISHNA NAGAR, MYSORE 4. K R VENKATESH S/O RAMSWAMY AYYAINGAR AGED ABOUT 48 YEARS NO. EWS 38, 2ND STAGE, 5. SRINIVAS S/O. TIMMAYYA AGED ABOUT 35 YEARS NO. 33, 1ST STAGE, IST MAIN ROAD, GANGOTRI LAYOUT, MYSORE 6. LEELA DEEPAK W/O. DEEPAK HEGDE AGED ABOUT 49 YEARS NO. 428, 5TH CROSS, M BLOCK,

2 2 2ND STAGE, 7. B M CHARAMANNA S/O B G MONNAYYA AGED ABOUT 40 YEARS NO. 402/D, NIMISHAMBHA NAGAR, OPP: K H B COLONY 8. RAJANAYAKA S/O. DODDANINGANAYAKA AGED ABOUT 38 YEARS NO. E W S 542, C I T B 2ND STAGE, 9. SHIVAMALLA S/O. BOREGOWDA AGED ABOUT 52 YEARS NO. 2578/IB, KALIDAS ROAD, 2ND CROSS, V V MOHALLA, MYSORE 10. SHANKAR S/O. S NAGRAJ AGED ABOUT 32 YEARS NO. 1203, 4/11TH MAIN, E & F BLOCK, 2ND STAGE, RAMKRISHNAGAR, MYSORE 11. DEVARAJU S/O. KARIYAYYA AGED ABOUT 39 YEARS NO. 16, 10TH CROSS, JAYANAGAR, 5TH MAIN, CHINNAGIRI KOPPAL, MYSORE 12. MAHADEVAMMA W/O. NAYARANA AGED ABOUT 45 YEARS NO. 32, 3RD CROSS, G BLOCK, RAMKRISHNAGAR, MYSORE 13. N REKHA, D/O. NANJUNDARAJE URS, AGED ABOUT 38 YEARS NO. E W S 59, 2ND STAGE, 14. WAHEEDA BEGUM LATE: D/O. ABDUL BASHEER AGED ABOUT 35 YEARS NO. E W S 12, IST CROSS, MADEGOWDA CIRCLE, RAJEEV NAGAR,

3 3 MYSORE 15. SYED USMAN S/O LATE: SYED HUSSAIN AGED ABOUT 64 YEARS NO. E W S 766, 2ND STAGE, KUVEMPU NAGAR, MYSORE 16. SHOBHA W/O LATE: DASAYYA AGED ABOUT 37 YEARS NO. L I G 3, 3RD STAGE, BANNIMANTAPA, MYSORE 17. K C ASHWATH S/O M S CHANDER RAO AGED ABOUT 39 YEARS NO. 2207, 4TH CROSS, KUVEMPU NAGAR, MYSORE 18. AJEYA AGED ABOUT 45 YEARS NO. BHAVARLAL NO. 323, 7TH CROSS, MAHADESHWARA LAYOUT, MYSORE 19. KALPANA W/O LATE: GURURAJACHAR AGED ABOUT 40 YEARS NO. 215, 2ND FLOOR, 12TH MAIN, SARASWATHIPURAM, MYSORE 20. VINOD S/O KUNNEGOWDA AGED ABOUT 38 YEARS BASAVANNA HOUSE, 10TH CROSS, CHINNAGIRIKOPPALU, MYSORE 21. NIRMALA W/O. R CHENNAPPA AGED ABOUT 35 YEARS NO. 111, T K LAYOUT, MYSORE 22. B S RAJESH S/O B R SATYANARAYANA AGED ABOUT 37 YEARS NO. 49, DIWANS ROAD, BEHIND L R U HOSPITAL, CHAMARAJA MOHALLA MYSORE

4 4 23. NALINI W/O. APPAJI, AGED ABOUT 41 YEARS NO. L I J 223, 4TH STAGE, 24. SWAMY S/O LATE: NINGE GOWDA AGED ABOUT 48 YEARS NO. 99, 2ND CROSS, NEAR SURYA BAKERY HEBBAL IST STAGE, 25. LATA W/O. NAGARAJU S AGED ABOUT 42 YEARS NO. E W S 109, 2ND STAGE, 26. J DEEPAK AGED ABOUT 30 YEARS NO. 8/4, N BLOCK, 27. MANJULA W/O. RANGANATH AGED ABOUT 42 YEARS NO. E W S 136, 2ND STAGE 28. RADHAMMA K R W/O LATE: M RANGANATHAPPA AGED ABOUT 40 YEARS NO. 39, LIG-2, 6TH B MAIN, K BLOCK, RAMKRISHNANAGAR, MYSORE 29. LAKSHMIDEVI S AGED ABOUT 65 YEARS NO. E W S 181, K H B COLONY, 2ND STAGE, 30. PADMAVATHI A S W/O LATE PRAHALAD RAO AGED ABOUT 40 YEARS NO. L I G 96, 2ND STAGE, 31. A S RAMESH S/O LATE SHANKARNARAYANA AGED ABOUT 38 YEARS NO. E W S 741, 2ND STAGE,

5 5 32. JAVARAMMA W/O HUCCHEGOWDA AGED ABOUT 42 YEARS NO. E W S 358, 2ND STAGE 33. JAYAMMA W/O TIMMANNA AGED ABOUT 39 YEARS NO. 834, KAMATAGERI IST MAIN ROAD, MANDI MOHALLA, MYSORE 34. MADHUSUDHAN M S S/O S SIDDAYYA AGED ABOUT 36 YEARS NO. 1563/6, 4TH CROSS, ASHOKAPURAM MYSORE 35. NAGALATHA K R W/O RADHAKRISHNA SHETTY AGED ABOUT 38 YEARS NO. 402/D, K H B COLONY, NIMISHAMBHA, KUVEMPUNAGAR MYSORE 36. M S LEELA W/O M S SOMSHEKAR AGED ABOUT 33 YEARS NO. E W S 190, 2ND STAGE, KUVEMPUNAGAR MYSORE 37. K CHANDRASHEKAR AGED ABOUT 46 YEARS NO. 28, 3RD CROSS, KALIDAS ROAD, V V MOHALLA MYSORE 38. SUBBALAKSHMI J W/O JAYARAM SHETTY AGED ABOUT 45 YEARS D NO. 1696, KOLLAPURADAMMA ROAD, K R MOHALLA MYSORE 39. PARVATHI W/O K NARAYANA AGED ABOUT 42 YEARS # 2101, 12TH CROSS, MARUTHI TENT ROAD, JANATA NAGAR MYSORE 40. B B ANITHA W/O MUTTAPPA AGED ABOUT 52 YEARS

6 6 # 402, NIMISHAMBHA LAYOUT, OPP: K H B COLONY KUVEMPU NAGAR MYSORE.... PETITIONERS (By Sri. A S PONNANNA FOR A K SUBBAIAH, ADVOCATES) AND 1. THE DEPUTY COMMISSIONER MYSORE DISTRICT, MYSORE 2. THE MYSORE MAHANAGARA PALIKE MYSORE, BY ITS COMMISSIONER.... RESPONDENTS (By SRI. R B SATYANARAYANA SINGH, AGA FOR R1 SMT. M P GEETHADEVI, ADVOCATE FOR R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE IMPUGNED ACTION OF THE RESPONDENT-1 IN ILLEGALLY DISPOSSESSING THE PETITIONERS IN THIS W.P. FROM THEIR HOUSES SITUATED AT SY.NO.181, SRIRAMPURA, MYSORE IN UNLAWFUL AND ILLEGAL, THEREFORE ALSO DECLARE THAT THE 1ST RESPONDENT HEREIN IS LIABLE TO RESTORE POSSESSION OF THE PETITIONERS OF THEIR HOUSES IN ITS ORIGINAL CONDITION; AND ETC. THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R Petitioners amongst 274 persons claiming to be grantees of houses, being houseless, under the scheme of Ashraya pursuant to the Government order No.HUD 535 KHB 91, formed in Sy.No.181 of Sriramapura

7 7 falling within the territorial jurisdiction of the 2 nd respondent-mysore Mahanagara Palike, assert that the 2 nd respondent constructed houses on the house sites granted to the petitioners as well as others on payment of equated monthly installment of Rs.290/- for a period of 15 years towards cost of construction following which petitioners except petitioner No.34 were issued with Hakku Patras Annexures-A1 to A39. According to the petitioners though Annexures-A1 to A39 are in respect of house sites, nevertheless are in relation to the fully constructed houses which petitioners took possession during the year 2002, registered in their names and have been paying assessment regularly, as also the equated monthly installments of Rs.290/- p.m. 2. It is the allegation of the petitioners that allotment though under the Ashraya Scheme, nevertheless civic amenities such as electricity, roads, when not provided, the houses were not fit for

8 8 habitation, and as the petitioners being labourers on daily wages having had to go in search of work, as work was not available in the vicinity, were not permanently occupied by them. However, petitioners claim to have occupied the houses, kept their belongings therein under lock and key and when no work was available would return to reside there in as frequently as possible though not on regular basis while week ends and holidays would see them in the houses. It is the claim of the petitioners that not being financially sound had to rope in certain organisations to espouse their cause over securing civic amenities. One Nagarika Hitarakshana Vedike is said to have obtained information on Annexure-B from the 2 nd respondent-mysore City Corporation relating to grant of 274 houses under the Ashraya Scheme in Sriramapura area. It is further stated that 2 nd respondent-mcc issued notice to the grantees of houses under the Ashraya scheme, a copy of which is at Annexure-C

9 9 informing them about not residing in the houses and calling for information as to why the houses were not occupied, was responded by letter Annexure-D from Chamaraja Hitarakshana Vedike, to which the 2 nd respondent by endorsement dt Annexure-E furnished information. According to the petitioners Annexure-F tender dt to Nirmiti Kendra Authority discloses that 2 nd respondent-mcc accorded sanction of Rs lacs for electrical supply; 8.74 lakhs for water supply. 3. It is the further allegation of the petitioners that on st respondent-deputy Commissioner without information and prior notice to the petitioners picked the locks affixed to the houses, trespassed therein, removed the belongings and threw them out onto the street and affixed their lock and key with a seal preventing the petitioners from entering the houses, which act being highhanded, arbitrary, without

10 10 authority of law was made known to the public through media reports, in Andolana news daily dt Annexure-G. In addition, it is alleged that the Deputy Commissioner inducted strangers into the houses belonging to the petitioners and thus acted at the dictates of some external forces involved in land grabbing activities, while clearing unauthorised occupants of a slum area at Ramabai Nagar, presumably belonging to some influential politician. That action when complained, the displaced persons were put in possession of houses belonging to the petitioners who were forcibly vacated on so as to console those persons from the slum, though some of the houses are still under lock and key and seal. The action of the Deputy Commissioner at Ramabai Nagar, it is said, was also published in Mysore Mitra daily on Annexure-H.

11 11 4. Yet another allegation of the petitioners is that the 1 st respondent engaged bulldozers, J.C.Bs, etc. to form roads in the area, measures to provide water, electricity supply, underground drainage system, etc. at a supersonic speed indicating vested interest involved to contend that the said action of the respondents are violative of the rule of law, and hence these petitions invoking the extraordinary writ jurisdiction under Article 226 of the Constitution of India for the following reliefs: Call for records. (i) Issue appropriate writ or order or direction in the nature of mandamus declaring that the impugned action of the 1 st respondent in illegally dispossessing the petitioners in this writ petition from their houses bearing Nos.30, 176, 185, 77, 129, 134, 121, 60, 04, 104, 79, 111, 195, 137, 83, 55, 259, 87, 264, 110, 49, 156, 228, 97, 252, 241, 181, 95, 160, 66, 98, 257, 89, 274, 79, 269, 8, 84, 69 and 183 situated at Sy.No.181, Srirampura, Mysore, in unlawful and illegal, therefore also declare that the 1st respondent herein is liable to restore possession of the petitioners of their houses in its original condition.

12 12 (ii) (iii) Issue appropriate writ or order or direction in the nature of mandamus Directing the respondent to restore the possession of the houses belonging to the petitioners bearing Nos.30, 176, 185, 77, 129, 134, 121, 60, 04, 104, 79, 111, 195, 137, 83, 55, 259, 87, 264, 110, 49, 156, 228, 97, 252, 241, 181, 95, 160, 66, 98, 257, 89, 274, 79, 269, 8, 84, 69 and 183 situated at Sy.No.181, Srirampura, Mysore in its original condition along with their belongings forthwith. Issue such writ or order that this Hon ble Court may deem fit under the facts and circumstances of the case including the cost of the writ petition. 5. Petitions are opposed by filing statement of objections of the 1 st respondent interalia contending that the writ petitions are not maintainable and that during the year , on terms stipulated by the Rajiv Gandhi Rural Housing Corporation, for short RGRHC, 274 eligible applicants when identified Hakku Patras were issued and the 2 nd respondent constructed houses thereon. In paragraph

13 13 4, it is stated that RGRHC having issued a letter dt Annexure R1 sanctioning Rs.8.74 lakhs to Srirampura Layout for providing water facility, was followed by a Work Order to the Director, Nirmiti Kendra on , which is said to have completed the work of water supply as reported in the letter dt Annexure R2. 6. At paragraph No.4, it is said that RGRHC sanctioned lakhs for electrification of the Srirampura layout when entrusted to the very same Nirmiti Kendra on reported to have completed the work on by letter - Annexure- R3. At paragraph 5, it is stated that RGRHC by letter dt informed that allottees not residing in the houses and had rented them to third parties did not achieve the objective behind the allotment, in other words that there was no need for the allottees to hold those properties. In addition, it requested the

14 14 concerned City Corporations, to secure permission of the Deputy Commissioner, and cancel the allotments, forfeit the amount in deposit and re-allot the sites to eligible applicants. It is further stated that the 2 nd respondent on an inspection held on observed that 3 allottees were residing ; 3 allottees had sold the houses; 258 allottees were not residing and kept the houses vacant and 10 allottees rented the houses, as disclosed in the report dt Annexure-R4, following which notice dt Annexure-R5 was issued to all the allottees calling upon them to reside in the houses allotted. There afterwards a further inspection when held on and videographed, as recorded in the report dt Annexure-R6 observed that 15 allottees were residing; 6 allottees sold the houses; 218 houses were vacant; 28 allottees rented out the houses and one house was under lock and key, while 6 houses were occupied unauthorisedly.

15 15 7. At paragraph 8, it is asserted that the 1 st respondent issued directions on whence on a further inspection of the Srirampura Layout by 2 nd respondent, also videographed as set out in the report dt Annexure-R-8 disclosed that 10 allottees were residing in the houses; 4 allottees sold the houses; 39 rented out the premises; 24 houses were occupied by unauthorised occupants and 197 houses were found vacant. In view of the violation of the allotment conditions stipulated by RGRHC order dt Annexure-R7 of the Deputy Commissioner was issued cancelling the allotments of 197 allottees and accordingly locked were put and seal affixed. 8. At paragraph 9, it is stated that the Tahsildar, Mysore Taluk evicted the unauthorised occupants residing in Sy.No.181 and 236 and identified 102 eligible applicants below poverty line and forwarded a recommendation to allot the said houses. At paragraph

16 16 10, it is stated that regard being had to the condition imposed by RGRHC as disclosed in the letter dt Annexure-R9 that if the allottees keep the houses vacant, the Deputy Commissioner is empowered to cancel the allotments and allot the houses to eligible families, hence the order Annexure-R10 allotting the houses to 102 eligible families. It is further stated that since the petitioners admittedly were not permanent residents of houses, the purpose of allotment when not achieved, the order cancelling the allotments is just and proper. Lastly it is stated that the reliefs sought in the petitions are of a civil nature and that petitioners will have to establish their rights before a Civil Court over alleged dispossession. 9. Respondent No.2 has not resisted these petitions by filing statement of objections.

17 Heard the learned for the parties who reiterate the averments in the petition and statement of objections, while Smt.M.P.Geetha Devi, learned standing counsel for R-2 Mysore City Corporation, adopts the submissions of the learned Govt. Advocate for 1 st respondent. It is said that writ jurisdiction is seldom exercised in the matter of determination of disputed questions of fact requiring an adjudication and a trial before a competent civil court. In HERITAGE PAPER MILLS LIMITED V- STATE OF KARNATAKA AND ANOTHER 1, R.V.RAVEENDRAN, J., as he then was, observed that in such circumstances the jurisdiction under Article 226 should not normally be exercised. 11. Although Learned Counsel for the petitioners submits that there is no dispute over the allotment of houses to the petitioners, in view of the denial by the 1 st respondent over the alleged claim, coupled with the fact that Hakku Patras are not evidence of title much less 1 ILR 1998 KAR 1003

18 18 that of possession of houses, since Annexure A1 to A39 relate to alleged sites, and in the absence of relevant particulars relating to payment of equated monthly installments etc., there is considerable dispute as to facts. 12. It is apparent from the relative positions taken by the parties that there is considerable dispute in regard to the material facts and that the dispute is of the nature which cannot conveniently be adjudicated in these petitions. It is a dispute which, it seems to me is more appropriate for adjudication before a Civil Court of competent jurisdiction and therefore, I decline to interfere. In that view of the matter, these petitions are accordingly rejected. ln Sd/- JUDGE