K. Dattu Rao vs The Municipal Council

Anand Byrareddy, J.—The Counsel for the petitioner remains absent though the matter was taken up for hearing on more than one occasion. The Petition is considered on merits.

It is the case of the petitioner that the petitioner is residing along with his family members in a house bearing No. 453, Ward No. 21, Hospet since 1948 and that he is the absolute owner in possession of the same. It is claimed by the petitioner that since 1947, the petitioner was residing in the said property and later, representations were given to the office of the Tahsildar seeking allotment of the very sites. Even prior to the allotment of the property, there were structures existing and the petitioner did make an application to the Government for grant of assignment in respect of a site, which he was already occupying. Pursuant to which, the Government is stated to have granted a plot bearing No. 12 comprised in land in Survey No. 159/B of 12th ward. The said grant was made on 19.6.1968, by virtue of which, the petitioner claims to be in possession. Similarly, another grant is said to have been made in favour of the plaintiff''s father Dhodhibha Kathare on 19.9.1968 in respect of Plot No. 11. The said plot No. 11 is said to have been gifted in favour of the petitioner under a registered gift deed dated 2.5.1981. The said two plots referred to above are adjoining each other and is now presently assigned No. 453. The plots have merged into a single unit and a building has been constructed after obtaining license as on 21.3.1990.

In the year 1988, the Office of the Municipal Council is said to have interfered with the possession of the petitioner''s property and therefore, a suit in O.S. No. 40/1988 was filed against the City Municipal Council, Hospet, for permanent injunction. The said suit was decreed by a judgment and decree dated 28.11.1989. It was the respondents'' case that there was encroachment of the road margin by the petitioner. There was a finding that the respondents had failed to prove the allegation of encroachment. Since the house was in a dilapidated condition, the petitioner seeking to undertake reconstruction, had sought for grant of license, which was issued. Thereafter, the respondent No. 1 is said to have issued a notice calling upon the petitioner to produce documents of title pertaining to the property. Though the petitioner had submitted the records pertaining to the property, the license granted to construct was cancelled, which was subject matter of challenge in a writ petition before this court in WP 3306/1991. The said petition was allowed and the impugned order was set aside. After which, a similar notice was issued by the respondents calling upon the petitioner to produce relevant title deeds and the license was cancelled by an order dated 2.4.1991. The petitioner had filed yet another writ petition in WP 8779/1991, which was dismissed on the ground that the notice, which was issued earlier, had already been quashed. Against which, a writ appeal was filed in WA 1156/1991, which was allowed.

The respondents having accepted the orders of this court and the original suit filed in O.S. No. 40/1988 having been decreed, the same had attained finality. The respondent No. 2 had thereafter got issued a notice dated 17.8.2005, again holding that the petitioner had encroached a public road to an extent of 8'' x 5". The petitioner was called upon to remove such encroachment compelling the parties to proceed to demolish the construction. The said notice not being preceded by an enquiry or opportunity of hearing, the present petition is filed.

The respondents have entered appearance and have filed statement of objections to contend that pursuant to the directions issued by this court, the respondents have obtained a sketch and a report of the Assistant Engineer dated 5.8.2005 and a copy of which has also been furnished to the petitioner, which indicates the encroachment of a public road. Having regard to the claim of the petitioner that the sketch was prepared in his absence, the respondent, by a further notice dated 15.4.2006, called upon the petitioner to be present at the spot and the measurement was sought to be taken in his presence. But however, since it could not be carried out, a further date was fixed, namely, 24.4.2006. The respondent along with the trust members of the Dattatreya Temple was present. The petitioner and his men are said to have openly abused the respondent and the trust members and claimed that the respondent was in collusion with the trust members and refused to participate in the measurement. Therefore, the measurements were carried out in the face of such non-cooperation by the petitioner and a mahazar was drawn up in the presence of the public and the panchas. It is hence urged that it is the petitioner who had failed to cooperate in carrying out the measurements to disclose the encroachment.

By way of rejoinder, the petitioner has denied that there was any encroachment.

The Counsel for the petitioner and the counsel for the respondents remaining absent, even though the matter has been listed before court on more than one occasion and having regard to the nature of the controversy and the respondents, as public authorities, would assert that there is encroachment of the public road, the respondents may proceed with the matter in accordance with law. And if the petitioner is aggrieved by any such action of the respondents and there being no such encroachment in the first place and any portion of the property of the petitioner is damaged, the remedy of seeking recovery of damages being available to the petitioner, no injustice or hardship would be caused to the petitioner.

Accordingly, the petition stands dismissed.