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2023 DIGILAW 1140 (KAR)

Whitefield Rising Trust v. State of Karnataka

2023-09-27

M.G.S.KAMAL, PRASANNA B.VARALE

body2023
ORDER : 1. This Public Interest Litigation is filed seeking following reliefs: “(a) To issue a writ, orders, directions or writs in the nature of mandamus or any other writ directing the respondent nos.1 to 3 to remove all the illegal encroachments on the land in Survey no. 7, measuring 0.22 guntas, in Siddapura village, which is known as “Siddapura Lotus Pond” and to fence the said land and take all steps required to protect it from any further encroachment and destruction. (b) To direct the respondent nos. 1 to 4 to take necessary steps to restore the Siddapura Lotus Pond in survey no. 7, measuring 0.22 guntas, in Siddapura village to its original state and to revive the same as a water body within a fixed time frame. (c) To set aside order dated 03.05.2012 bearing No. L and D (West)/CR, 140/10-11, issued by respondent no. 4, produced herein as Annexure-H, granting 0.04 guntas in Survey no. 7 as alternative land under Rule 28(A) of the Karnataka Land Grant Rules 1969 read with Rule 97(4) of the Karnataka Land Revenue Rules, 1966 to land losers. (d) To direct the respondent nos.1 to 4, to stop and remove all construction being carried out by respondent nos.6 and 7 of the commercial multi-storeyed complex in 0.04 guntas in Sy. no. 7, Siddapura, which is part of the Siddapura Lotus Pond, without any sanctioned plan or approval and to bring back the land to its original position, so that the Siddapura lotus pond may be revived. (e) To set aside order dated 03.08.2022, bearing No. L and D (West)/CR-147/2017-18, issued by Respondent No. 4, marked as Annexure-Z, earmarking 0.02 guntas land in Survey No. 7 being the Siddapura Pond, as easement. (g) To order an enquiry into the illegal grant and transfer of land in Sy. No. 7, Siddapura village being the “Siddapura Lotus pond” by an appropriate authority.” 2. It is the case of the petitioner that the subject land where the “Siddapura Lotus Pond” was earlier located was an important water body, portion of which has been illegally granted as alternate land under order dated 03.05.2012 issued by respondent No. 4, granting 0.04 guntas under Rule 28(A) of the Karnataka Land Grant Rules, 1969 read with Rule 97(4) of the Karnataka Land Revenue Rules, 1966 to the land losers. The grantees of the said land have sold the same which is now acquired by respondent Nos. 6 and 7 in terms of deed of sale dated 16.08.2021. That the respondents 6 and 7 have been illegally putting up construction on the said land which is a part of said “Siddapura Lotus Pond.” 3. Smt. Jayna Kothari, learned Senior counsel appearing for the counsel for petitioner taking through the documents produced along with the writ petition submitted that: (a) the google images produced for the period from 2003 till 2010 disclose the existence of the said pond. (b) That in the revenue records namely RTC extract produced by the respondent at Annexure-R-2 for the year 1992-93, Col. No. 12 indicates that the 22 guntas of land in Sy. No. 7 is referred to as “Mufat Kaval Sarkari Kunte.” (c) She also referred to copy of Akarband register extract produced Annexure-F to the writ petition wherein the said 22 guntas of land is shown as ‘B’ Kharab land. (d) She also relied upon Rule 21(2) of the Karnataka Land Revenue Rules, 1966 to submit that ‘B’ kharab land is an un-arable land reserved for public purpose and that the aforesaid revenue documents clearly reveal that the subject land is a tank, falling within the classification of ‘B’ kharab land reserved for public purpose. Thus, she submits that under the provisions of Karnataka Land Revenue Act and Rules ‘B’ kharab land which is reserved for public purpose cannot be made a subject matter of a grant. (e) Referring to a communication dated 21.05.2011 produced as Annexure-G wherein the Tahsildar has submitted the report and proposal before the Deputy Commissioner, Bangalore Urban District proposing to grant 0.04 guntas of land in Sy. No. 7 to the land losers as alternate land under Rule 28(A) of the Karnataka Land Grant Rules, 1969 as their lands were utilised for formation of road, she submitted that Rule 28(A) of the Karnataka Land Grant Rules does not allow for grant of alternate land for the purpose as stated in Annexure-G namely ‘losing land for road’ widening purposes. (f) Thus, she submits that grant of 0.04 guntas out of 22 guntas, which was classified as ‘B’ kharab earmarked for public purposes, was illegal. (f) Thus, she submits that grant of 0.04 guntas out of 22 guntas, which was classified as ‘B’ kharab earmarked for public purposes, was illegal. (g) That the construction of multistoried commercial complex being carried on by respondents 6 and 7 on the aforesaid 0.04 guntas of land is over the said Siddapura Lotus Pond and is without any sanctioned plan or building licence being issued by the competent authority. (h) Hence, she submits that the petitioners have raised a serious issue of environmental concern which would destroy the important water body in the city causing significant damage to the health and welfare of the residents violating their fundamental right. (i) She relied upon following Judgments in support of her contentions: 1. Sarvepalli Ramaiah and Others vs. District Collector Chittoor and Others, (2019) 4 SCC 500 2. Intellectuals Forum Tirupathi vs. State of A.P. and Others, (2006) 3 SCC 549 3. Jagpal Singh and Others vs. State of Punjab and Others, (2011) 11 SCC 396 4. Hinch Lal Tiwari vs. Kamala Devi and Others, (2001) 6 SCC 496 5. Jitendra Singh vs. Ministry of Environment and Others, (2020) 20 SCC 581 6. Mallikarjuna Swamy vs. State of Karnataka and Others, W.P. No. 46900/2011 7. P. Prathap and Others vs. State of Karnataka, W.P. No. 13683-13691/2012 8. St. Annes Education Society and Another vs. State of Karnataka and Others, ILR 2002 Kar. 4096 4. Sri. S.S. Mahendra, learned Principal Government Advocate, Smt. Niloufer Akbar, learned Additional Government Advocate, submitted: (a) that 22 guntas of land in Sy. No. 7 is classified as “Mufat Kaval land” as per revenue records and was never classified as a water body either in the village map or in the revenue records. (b) Out of said 22 guntas of land 0.04 guntas i.e., one gunta each has been granted in favour of one Sri. Thammaiah, Sri. Venkatesh, Sri. Beeranna, Sri. Kiran Kumar, as they had lost their sites in different survey numbers for formation of drainage in Ashraya Colony situated at Gunjuru Palya, Varthur Hobli. (c) The Government by order dated 26.04.2012 accorded sanction for grant as above in exercise of power under Rule 28(A) of the Karnataka Land Grant Rules, 1969 and consequent order dated 03.05.2012 impugned in the writ petition has been issued by respondent No. 3. (c) The Government by order dated 26.04.2012 accorded sanction for grant as above in exercise of power under Rule 28(A) of the Karnataka Land Grant Rules, 1969 and consequent order dated 03.05.2012 impugned in the writ petition has been issued by respondent No. 3. (d) It is submitted that since the land is classified as Mufat Kaval land in the revenue records it falls within the scope and ambit of Rule 97 of Karnataka Land Revenue Rules, 1966 which enables the Deputy Commissioner to reduce the extent of land in a Mufat Kaval land after obtaining permission from the Divisional Commissioner. (e) Thus, they submitted that the grant of one gunta land each in the names of aforesaid persons was in accordance with Rule 97 of the Karnataka Land Revenue Rules, 1966 and Rule 28(A) of the Karnataka Land Grant Rules, 1969. (f) That the land grant as above was in the year 2012 and the present petition is filed after lapse of 11 years when there are series of subsequent transactions in respect of the said land. Hence they seek for dismissal of the writ petition. 5. Sri. K.N. Phanindra, learned Senior counsel appearing for learned counsel for respondents 6 and 7 reiterating the submission made on behalf of respondent-State as above, further submitted that: (a) respondents 6 and 7 purchased the sites in terms of deeds of sale dated 16.08.2021 from erstwhile owners of the property. That BBMP had issued khatha in their names. That they have raised loan on the said property by creating mortgage. Thus, the respondents 6 and 7 are bona-fide purchasers of the land having invested their life time savings are in the process of developing the same. (b) Learned Senior counsel submitted that the only reliance being placed by the petitioners is on the RTC extract of the years 1991-92 to 1994-95 wherein there is a stray entry of Mufat Kaval Sarkari Kunte and no such entry is found in any other revenue records. (c) Drawing attention of this Court to the village map produced before this Court, learned Senior counsel pointed out that pond being referred to by the petitioner is shown in the land bearing Sy. No. 8 and there is no reference of pond in the land bearing Sy. No. 7 measuring 22 guntas. (c) Drawing attention of this Court to the village map produced before this Court, learned Senior counsel pointed out that pond being referred to by the petitioner is shown in the land bearing Sy. No. 8 and there is no reference of pond in the land bearing Sy. No. 7 measuring 22 guntas. (d) Referring to Annexure-T a letter dated 04.11.2017 issued by the petitioner-Trust, learned Senior counsel submits that the petitioner was aware of the fact that only 18 guntas of land had been fenced by the BBMP and not the entire 22 guntas of land as contended in the petition. He further contended the petitioner despite having knowledge of this factual aspect of the matter as early in the year 2017 has now filed the present petition contending that entire 22 guntas of land in Sy. No. 7 is fenced. Thus, he submitted the petitioner has deliberately attempted to suppress the facts and mislead this court. Hence, he seeks for dismissal of the writ petition. 6. Sri. N.K. Ramesh, learned counsel for the BBMP submits that: (a) the land in Sy. No. 7 do not contain any pond. The fencing of the land was done to prevent any dumping of garbage. (b) He further submits that respondents 6 and 7 are legally bound to put up construction only after obtaining sanction plan and in compliance of the building bye-laws and other applicable statutory provisions. He also submits that BBMP would ensure construction if any by the respondents 6 and 7 will have to be in compliance with the provisions of law. 7. Heard and perused the records. 8. The thrust of the submission of the learned Senior counsel appearing for the petitioner is that Siddapura Lotus Pond is situated within 22 guntas of land in Sy. No. 7. That in the Akarband register produced at Annexure-F the said land has been classified as B kharab land and the same is found mentioned in the RTC extract produced by respondent-State at page No. 16 for the years 1991-92 to 1996-97 wherein there is a mention in column No. 12 with regard to “Mufat Kaval Sarkari Kunte.” That in terms of Rule 21(2) of the Karnataka Land Revenue Rules, 1966, since the said land was a water tank it was classified as B kharab unfit for agriculture and is reserved for public purpose. Since land reserved for public purpose cannot be granted even under Rule 28(A) of the Karnataka Land Grant Rules, 1969 the respondent authorities could not have resorted to Rule 97(A) of the Karnataka Land Revenue Rules, 1966 to grant 0.04 guntas of land in favour of private persons. Learned Senior Counsel also relied upon relevant provisions of law and certain decisions on the issue. 9. There cannot be any dispute with regard to the fact that natural water bodies require protection, preservation and restoration in larger environmental and public interest. However, it needs to be seen in the instant case if the said 22 guntas of land Sy. No. 7 is/or was a water tank area as contended by the petitioner. As noted above, except copy of Akarband and copy of RTC extract for the years 1991-91 to 1996-97 there are no other revenue records furnished by the petitioner to justify its claim of the subject land being water tank. Reliance placed on the picture purportedly taken from google earth images cannot be relied upon. 10. This Court had directed the respondent authorities to furnish the records pertaining to the subject land accordingly on 07.08.2023 had placed on record the original RTC extracts pertaining to subject land. A close scrutiny of RTC extracts produced for the years 1970-71 to 1974-75 onwards in respect of Sy. No. 7 of Siddapura Village, Varthur Hobli, Bangalore South Taluk reveal that consistently in Col.No. 9 there is reference of land being “Mufat Kaval” and the same being cultivated by one Hanumanthappa. It is only in the RTC extract for the years 1991-92 to 1994-95 there is a mention of “Sarkari Kunte” along with reference to “Mufat Kaval.” There are no other records indicating mention of Sarkari Kunte except this copy of RTC extract. 11. Further on perusal of the village map it is seen that kunte/water tank is shown to be existing in the land in Sy. No. 8 which is adjoining the land in Sy. No. 7. Learned counsel for the petitioner sought to contend that village map has no evidentiary value and no presumption can be drawn regarding contents of the same. Further on perusal of the village map it is seen that kunte/water tank is shown to be existing in the land in Sy. No. 8 which is adjoining the land in Sy. No. 7. Learned counsel for the petitioner sought to contend that village map has no evidentiary value and no presumption can be drawn regarding contents of the same. Therefore, she submitted that in the light of existence of entries in Akarband and in the RTC extracts of the years 1991-92 wherein there is a reference to “Sarkari Kunte” the presumption of its existence has to be drawn in favour of the petitioner. 12. In response Sri. K.N. Phanindra, learned Senior Counsel referred to chapter 11 of the Karnataka Land Revenue Rules wherein Rule 73 and Rule 82 refers to village map. As rightly contended by learned Senior counsel village map is the basis on which the entries in the revenue records are made. Therefore, the contention of learned counsel for the petitioner that the village map has no evidentiary value cannot be accepted. That apart as already noted in the RTC extracts from the year 1970-71 onwards there is consistent reference to land in Sy. No. 7 measuring 22 guntas as “Mufat Kaval” which means land for free pasturage. 13. When it is clear from the records produced by the parties and respondent authorities that the Kunte/tank is situated within land in Sy. No. 8, the question of validity or otherwise of the grant of 0.04 guntas of land from and out of 22 guntas of land in Sy. No. 7 in favour of private parties by the authorities becomes insignificant for the purpose of adjudication of present lis, inasmuch as the primary contention of the petitioner is that “Siddapura Lotus Pond” is situated in the canal in Sy. No. 7, which they failed to establish. 14. No. 7 in favour of private parties by the authorities becomes insignificant for the purpose of adjudication of present lis, inasmuch as the primary contention of the petitioner is that “Siddapura Lotus Pond” is situated in the canal in Sy. No. 7, which they failed to establish. 14. Though learned Senior counsel for the petitioner sought to contend that even if the land is classified as “Mufat Kaval/Pasturage” same cannot be granted even under Rule 28(A) of the Karnataka Land Grant Rules read with Rule 97 of the Karnataka Land Revenue Rules in as much as according to learned Senior counsel only if grantees’ land is utilized for the purposes enumerated under Rule 97(4) can the authorities grant the land as an alternate and in the instant case there is no such grounds made out by the respondents justifying the grant. This submission cannot be countenanced for, firstly the contention of the petitioner that the pond is situated in 22 guntas of land in Sy. No. 7 has been negated in view of the records evidencing said land to be “Mufat Kaval” and that the pond was in Sy. No. 8. Secondly, Rule 97 of Karnataka Land Revenue Rules, 1966 makes a provision for reduction of land reserved for pasturage and distribution of portion of it for house sites to the site less persons. Rule 28A of the Karnataka Land Grant Rules, 1969 also provides for grant of land in exchange for the land relinquished. In that relinquishment of land for the purpose of pathway is one of the purposes enumerated thereunder. In the instant case 0.04 guntas of land has been granted in lieu of utilization of the land of the grantees for the purpose of widening of road and formation of drainage. In any event since we have already opined that the pond is not existing in 22 guntas of land in Sy. No. 7, further probe into the matter of grant would be a futile exercise. 15. On 07.08.2023 on a query by this Court as to whether a sanctioned plan has been issued by the BBMP for construction of building by respondents 6 and 7, it was submitted by the counsel for respondents 6 and 7 and respondent-BBMP that there is no sanctioned plan. 15. On 07.08.2023 on a query by this Court as to whether a sanctioned plan has been issued by the BBMP for construction of building by respondents 6 and 7, it was submitted by the counsel for respondents 6 and 7 and respondent-BBMP that there is no sanctioned plan. Further learned Senior counsel for the respondents 6 and 7 on instruction submitted that respondent Nos.6 and 7 will not carryout any construction on the subject property until further orders of this Court and that they would approach respondent No. 2 for sanction of building plan. Counsel for respondent -BBMP had submitted that if such an application is filed BBMP would consider the same in accordance with law. In view of these submissions, notwithstanding the findings regarding non-existence of tank within 22 guntas of land in Sy. No. 7, it is made clear that while considering the application for issuance of sanction plan concerned authorities of BBMP shall ensure due compliance with regard to all applicable laws including buffer zone relating to water tank/pond if any. 16. With the above observations, writ petition stands dismissed.