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2019 DIGILAW 1104 (KAR)

Roopashree v. State Of Karnataka

2019-06-04

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. The unfortunate petitioners who have filed the applications for allotment of 20 x 30 feet sites for each beneficiary under 'Ashraya Urban Scheme' for free house sites to the site-less and house less persons for Economically Weaker Section in urban areas are before this Court, for a writ of certiorari to quash the resolution dated 07.03.2017 vide Annexure-M passed by the 5th respondent Committee, insofar as it relates to Sl.No.10 is held illegal and against law and for a writ of mandamus directing the respondent Authorities to consider the representations dated 11.12.2014, 15.06.2016 and 06.07.2016 vide Annexures F, G and H respectively and to implement the 'Ashraya Urban Scheme' by allotting the sites and issuing Hakku Patras in favour of the petitioners in Sy.No.64 measuring 4 acres situated in Doddabidarakallu Village, Yelahanka Hobli, Bangalore North Taluk. 2. It is the case of the petitioners that the 1st respondent State Government by the order dated 03.09.2014 reserved the land in Sy.No.64 measuring 4 acres situated in Doddabidarakallu Village, Yelahanka Hobli, Bangalore North Taluk to Ashraya Urban Scheme. The possession of the said land was handed over to the 5th respondent - allotting authority for implementation of the scheme on 28.11.2014. On 11.12.2014 the petitioners' Association has made representation to the 5th respondent Committee for allotment of sites. On 06.04.2015 a meeting was held in the presence of Founder President of the petitioners' Association, where a decision was taken to implement the 'Ashraya Urban Scheme'. 3. Since the petitioners' representations were not considered, they were constrained to approach this Court by filing Writ Petition No. 52915/2016 and Writ Petition Nos.53296-53475/2016 seeking for a writ of mandamus directing the authorities to consider the representations for implementation of 'Ashraya Urban Scheme' by allotting sites in Sy.No.64 measuring 4 acres situated at Doddabidarakallu Village, Yelahanka Hobli, Bangalore North Taluk. This Court, after hearing both the parties by the order dated 06.10.2016 disposed off the writ petitions and directed the Tahsildar to collect materials and place before the 5th respondent Committee, thereafter the 5th respondent Committee shall take a decision and convey the decision to the 1st respondent State Government as expeditiously as possible, but not later than six months. After the remand, the 4th respondent Tahsildar by a recommendation letter dated 02.02.2017 addressed to the 5th respondent - Committee, recommended for allotment of sites. After the remand, the 4th respondent Tahsildar by a recommendation letter dated 02.02.2017 addressed to the 5th respondent - Committee, recommended for allotment of sites. The 5th respondent by the impugned resolution dated 07.03.2017 rejected the claim of the petitioners which is mentioned at paragraph 10 of the resolution, mainly on the ground that they are not residents of urban area. Hence the present writ petitions are filed. 4. The respondents have not filed any objections to the main writ petitions. 5. I have heard the learned counsel for the parties to the lis. 6. Sri. Virupakshaiah, P.H., learned counsel for the petitioners contended that the impugned resolution passed by the 5th respondent rejecting the claim of the petitioners for allotment of sites measuring 20 x 30 feet under the 'Ashraya Urban Scheme' sponsored by the State Government insofar as it relates to Sl.No.10 in the order holding that the petitioners are not residents of urban area is illegal, erroneous and contrary to the material on record. He would further contend that, after remand the present writ petitioners produced the beneficiary list along with documents on 22.11.2016. The Committee without referring to the said list proceeded to pass erroneous order rejecting the claim made by the petitioners. He would further contend that the petitioners though produced the documents before the 5th respondent in terms of the scheme formulated by the Rajiv Gandhi Rural Housing Corporation Limited that they are residents of urban area and find a place in the said list but the said documents though produced before the 5th respondent, the same has not been considered by the Mandal Panchayath/Taluk Panchayath/the Tahsildar. The impugned resolution passed by the 5th respondent rejecting the claim of the petitioners only on the ground that they are not residents of that area is erroneous and hence cannot be sustained. 7. He further contended that at paragraph 10 of the impugned resolution, the Committee refers to the notice issued only to one person on behalf of 154 persons. There was no individual notice to all the petitioners and after issuance of the said notice, a report was submitted by the Tahsildar and no particulars were sought for by the petitioners to trace the residence of that particular area, wherein they have sought the sites. There was no individual notice to all the petitioners and after issuance of the said notice, a report was submitted by the Tahsildar and no particulars were sought for by the petitioners to trace the residence of that particular area, wherein they have sought the sites. The impugned resolution passed by the Committee is in utter violation of principles of natural justice and in violation of Articles 14 and 21 of Constitution of India. He would contend that 27 persons have been allotted sites, the present petitioners who are residents along with 27 persons have not been allotted sites. Therefore, the impugned resolution cannot be sustained and liable to be quashed. 8. Per contra, Sri.Anand R.B., learned counsel for the 5th respondent Committee, who passed the impugned resolution sought to justify the resolution and contended on behalf of 153 persons, one Ramakrishna has received the notice. The Tahsildar after inspecting the spot has held that the present petitioners are not residents of the place where they have sought allotment. He also produced the records before the Court showing the report of the Tahsildar, which is a cyclostyled copy and there is no proper shara. The cyclostyled report said to have been submitted by the Tahsildar was not given to the authorities. The cyclostyled copies of the beneficiary list produced by the counsel for the 5th respondent before this Court at page Nos.281 to 240 does not depict any seal or signature of the Tahsildar. The printed report produced does not bear the seal and signature of the concerned authorities. Therefore, the same cannot be relied upon by this Court. Therefore, he sought to dismiss the writ petitions. 9. He further contended that the cyclostyled report prepared by the Village Accountant and signed by the Tahisldar, except the printed form, the Tahsildar has not recorded any finding as to "Whether he has inspected the spot after issuing notice to all the applicants, and as to whether he has verified that they are not residing in the said place except saying serial Nos.1 to 180 there is no other mention." He has not stated anything that the other petitioners are not residents of that area. The cyclostyled report relied upon and produced by the 5th respondent cannot be accepted. The learned Government Advocate has also sought to justify the resolution. 10. The cyclostyled report relied upon and produced by the 5th respondent cannot be accepted. The learned Government Advocate has also sought to justify the resolution. 10. Having heard the learned counsel for the parties, it is an undisputed fact that the State Government has formed "Ashraya Urban Housing" scheme to provide free sites to site less / houseless persons who would be the beneficiaries in urban area. The learned counsel for the 5th respondent brought to the notice of the Court the eligibility conditions as per the Government Order dated 31.10.2013 to consider the beneficiaries at Serial No.7 which reads as under :- xxxxxxxxxxxxx 11. It is also not in dispute that all the petitioners applied for allotment of sites measuring 20 x 30 feet in Sy.No.64 measuring 4 acres Doddabidarakallu Village, Yeshwanthapura Hobli, Bangalore North Taluk and have made several representations, which were not fructified into action. The petitioners filed WP No.52915/2016 & W.P Nos. 53296-475/2016 vide Annexure-J, this Court after hearing both the parties by the order dated 6.10.2016 disposed off the writ petitions and at para 5 held as under:- "5. Accordingly, petitioner No.1 as the representative of the Samithi on behalf of the remaining petitioners shall now file fresh representation along with the copies of the representations already submitted and the supporting documents based on which the petitioners are laying their claim in respect of the said property. Such representation shall be filed with respondent No.4 Tahsildar, who shall take note of these aspects collate materials in this regard and thereafter place it before respondent No.5 for consideration in that regard. The process of collating the materials and placing it before respondent No.5 shall be completed by respondent No.4 within a period of six weeks from the date on which the representation and a copy of this order is submitted by the petitioners herein. The respondent No.5 shall thereupon take note of the same and take a decision and convey the decision to the first petitioner as expeditiously as possible, but not later than three months from the date on which the materials are placed before it by respondent No.4. Needless to mention, if the consideration by respondent No.5 is in favour of the petitioners, further process in that regard shall also be completed in an expeditious manner." 12. Needless to mention, if the consideration by respondent No.5 is in favour of the petitioners, further process in that regard shall also be completed in an expeditious manner." 12. It is also not in dispute that the Tahsildar submitted the beneficiary list indicating about 180 persons as per Annexure-K. Annexure-L dated 02.01.2017 is the communication of the Tahsildar, wherein it is stated in the letter that he has produced the beneficiary list along with documents and requested the Committee to verify the beneficiary list and documents and pass appropriate orders. Annexures K and L have reached finality. The 5th respondent Committee while passing the impugned resolution dated 07.03.2017 proceeded to hold at paragraph No.10 that about 154 beneficiaries / petitioners are not in the place "sthaladalli iruvudilla" but only 27 beneficiaries are in the spot and proceeded to close /reject their applications as not eligible. 13. It is also not in dispute that the Tahsildar before submitting the report has not issued any individual notice. The order clearly depicts only one person received notice on behalf of all the applicants and after submission of the report, it is the duty of the Committee to intimate the report submitted by the Tahsildar to the petitioners, directing to produce records to indicate that they are eligible for allotment of sites under the "Ashraya Urban Scheme". When the rights of the parties are involved and all those persons who belongs to weaker section of the Society filed applications for allotment, the Committee consisting of highly responsible persons/MLA and other dignitaries ought to have applied their mind to the entire records produced by the beneficiaries to show that they are local residents and they are eligible for allotment of sites. The same has not been considered in the resolution except relying upon the report of the Tahsildar and no notice was served on the individual applicants. 14. When the resolution was passed, rejecting the claim of the petitioners, it involves civil consequence, and an opportunity was required to be provided to the applicants to prove their claim, that has not been done by the Committee. The Committee cannot defeat the purpose of the scheme formulated by the State Government for the benefit of particular sections of the Society. The Committee cannot defeat the purpose of the scheme formulated by the State Government for the benefit of particular sections of the Society. It is the duty of the Committee to implement the scheme in its true spirit and should not be biased to chose the applicants whom the Committee likes and reject the claim of the other applicants, without verifying the records and the eligibility criteria. 15. It is also not in dispute that out 180 beneficiaries only 27 beneficiaries have been allowed and there is no clarity in the resolution except the cyclostyled report produced by using the word "Sthaliyaralla" (not local residents). Out of 181 beneficiaries only against 27 beneficiaries it depicts "Sthaliyaru Agiruthaare" (local residents) and the cyclostyled printed form is not signed by the Tahsildar on each page, of the report submitted by the village accountant. When the rights of the petitioners are involved the Tahsildar being a responsible officer and also one of the Member of the Committee has to apply his mind and pass a speaking order and based on such report, the Committee ought to have decided after giving an opportunity based on the records. Therefore, the impugned resolution passed by the 5th respondent is in utter violation of Articles 14 and 21 of the Constitution of India, and as such the same cannot be sustained. 16. The learned counsel for the petitioners submits that the petitioners produced the documents such as the Aadhar Card and Voter Identity Card, which are the documents to certify that the petitioners are residing within the BBMP area and are eligible in terms of the scheme formulated by the State Government. The State Government has not filed any objections to the said documents. 17. In view of the above, the impugned resolution dated 07.03.2017 passed by the 5th respondent cannot be sustained and the matter requires reconsideration by the Committee and pass appropriate orders after providing an opportunity to the petitioners in accordance with law. 18. For the reasons stated above, writ petitions are allowed. The impugned resolution/order dated 07.03.2017 vide Annexure-M passed by the 5th respondent insofar as rejecting the claim of the petitioners under the scheme is hereby quashed. 18. For the reasons stated above, writ petitions are allowed. The impugned resolution/order dated 07.03.2017 vide Annexure-M passed by the 5th respondent insofar as rejecting the claim of the petitioners under the scheme is hereby quashed. The matter is remanded to the 5th respondent for reconsideration afresh in the light of the documents produced before this Court and in the light of the report submitted by the Tahsildar after giving notice to all the petitioners and after providing opportunity of being heard and produce the documents before the Committee and pass appropriate orders in accordance with law. The petitioners are hereby directed to produce the documents produced before the 5th respondent within a period of two weeks from the date of receipt of a copy of this order and on such production of the documents the Committee shall look into the scheme, the guidelines issued by the Government and pass appropriate orders as expeditiously as possible and strictly in accordance with law and should not drag the petitioners unnecessarily before this Court. Ordered accordingly.