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2013 DIGILAW 248 (KAR)

Mohd. Abdul Quayyum v. State of Karnataka

2013-02-27

N.KUMAR

body2013
ORDER N. Kumar, J.—As common question of law is involved in all these four writ petitions, they are taken up for consideration together and disposed of by this common order. For the purpose of clarity, I have set out the facts in one case i.e., W.P. No. 100099 of 2013. The case of the petitioner is, he is the owner of property bearing H. No. 1-866/1/1A/15-A bearing CTS No. 148 situated at MSK Mill Road, near Main Bus Stand, Gulbarga. The said property was purchased by his father and his brothers jointly on 4-4-1985. Copy of the sale deed is produced at Annexure-A. The width of MSK Mill Road, according to the records maintained by the Corporation and Town Planning Authorities is 80 feet. Petitioner's property is 40 feet away from the center of the road. It is capable of being demonstrated at any point of time that the petitioner has not encroached public property or road. To allege that the petitioner has committed an act of encroachment, which is required to be demolished for the said violation, is not correct. In fact a suit was filed for partition and separate possession of the properties including the present schedule property, among the family members of the petitioner and the property, which is the subject-matter of this writ petition, has been allotted in favour of the petitioner's family. The petitioner has obtained the plan duly sanctioned by the authorities and has put up the construction according to the sanctioned plan and he is paying the tax regularly. 2. The modus adopted by the respondents is to measure the property from the center of the road on a notional widening width of the road and put a marking on the building on either side of the road, one in Red and another in Blue without any notice to the owner of the property and propose to demolish the building upto the marked portion by giving one day's threat to the owner. If they do not voluntarily demolish the building structure upto the marked portion, they would demolish the structure by using earthmovers and they would also demonstrate to the public that if the demolition is effected by the respondent, there would be larger damage to the structures and it would not be fit for human habitation. If they do not voluntarily demolish the building structure upto the marked portion, they would demolish the structure by using earthmovers and they would also demonstrate to the public that if the demolition is effected by the respondent, there would be larger damage to the structures and it would not be fit for human habitation. The same modus was adopted in other cities, thus the State Administration have grabbed the properties of the law abiding citizens at gunpoint under the police cover. This act of demolition drive is opposed to all cannons of law. Therefore, the petitioners have sought for a direction restraining the respondents-Authorities from demolishing the structures. 3. Some neighbouring owners had approached this Court in W.P. No. 40238 of 2008 and other connected matters. The authorities issued Section 4(1) notification dated 22-3-2010 for acquiring the property of only those persons, who have earlier approached this Court. The petitioners' properties are also adjacent to that of other persons, wherein the respondents initiated acquisition proceedings, even some of them have already taken the award amount. The respondents are once again adopting the same modes and asking the petitioners to vacate the premises within three days. Any steps to be taken to demolish the property would be violative of the petitioners' fundamental rights under Articles 19(1)(g) and 21 of the Constitution of India as it would deprive the right to carry on the business and livelihood of the petitioners. The properties of the law abiding citizens are being demolished without following the procedure prescribed under Section 270 of the Karnataka Municipal Corporations Act, 1976, Karnataka Town and Country Planning Act, 1961 and Karnataka Urban Development Authorities Act, 1987 and the Karnataka Highways Act, 1964. There is no scheme propounded by the Corporation or any authorities to the knowledge of the petitioners to widen the existing road from 80 feet to 100 feet or more than that. The State Government intends to demolish the existing structures, which are within their limits, where the public road is encroached with a reference to the notional widening of the road or by any other means in respect of the properties falling within the alleged widened road. The property will not vest in the Corporation without acquiring the same by following the procedure known to law. The property will not vest in the Corporation without acquiring the same by following the procedure known to law. This devise of notional widening of road and demolishing property by holding that the owners have encroached the property is all fraud on power and nothing short of grabbing the properties of the law abiding citizens. Therefore, they have preferred these writ petitions. 4. The respondents have filed a common counter. They contend that the petitioners have not produced any records to show that they have constructed the shops within their boundaries by producing layout plan, copy of the CTS records and the copy of the approved plan for the construction of shops. In the absence of these documents, the petitioners cannot contend that they have not encroached upon the Government land. During the joint measurement survey conducted by the Survey Department and Corporation in the presence of the petitioners, it was found that the petitioners have encroached upon the Government land. Therefore, the petitioners cannot contend that they have not encroached the Government land. After the JMC, the respondents have marked the petitioners' properties to the extent of the encroachment made on the Government land so as to remove encroachment voluntarily. As the petitioners are encroachers, they are not entitled for any protection in this writ petition. Hence, this writ petition is liable to be dismissed. 5. I have heard the learned Counsel appearing for the parties. 6. From the aforesaid facts, it is clear that the Government and the Corporation conducted a Joint Measurement Survey in the presence of the petitioners and they have marked the encroachments on the Government land. Widening of a road is basic necessity. It is in public interest. What is the extent the road to be widened, is left to the authorities. Petitioners have no say in the matter. For the purpose of widening the road, if petitioners' properties are required, then the respondents are under an obligation to initiate acquisition proceedings for acquiring the land and pay them compensation. If the area marked belongs to the Government and if the petitioners have encroached upon the Government property and have put up construction and are in enjoyment of the same, petitioners have no locus standi to call upon the respondents to initiate acquisition proceedings. If that encroached portion belongs to the Government, the question of acquisition would not arise. If the area marked belongs to the Government and if the petitioners have encroached upon the Government property and have put up construction and are in enjoyment of the same, petitioners have no locus standi to call upon the respondents to initiate acquisition proceedings. If that encroached portion belongs to the Government, the question of acquisition would not arise. What they are expected to do is to remove the encroachment of the land for widening of the road. If the encroached area is in possession of the petitioners, then the constructions, if any, made have to be demolished and then the said land could be used for widening of the road. Whether the land, which is now marked for demolition, is it a land belonging to the petitioners or is it a land belonging to the respondents is a question of fact. It is a disputed question of fact in the light of the pleadings which, the parties have placed before this Court. The disputed question of fact cannot be gone into under Article 226 of the Constitution of India. Therefore, the petitioners have to work out their remedies in appropriate forum. Suffice it to say the respondents shall not demolish or take possession of the properties which are in the possession of the petitioners, if, they are the properties which are exclusively under the petitioners' ownership. If the petitioners have encroached the property of the Government or they are in possession of either vacant land or have put up construction even after obtaining sanctioned plan, there is no obligation on the respondents to initiate any acquisition proceedings. In that view of the matter, I do not see any merit in these writ petitions. Accordingly, writ petitions are dismissed.