K.N. Ayodya Rama Shetty vs The Chief Officer, Municipality, Kunigal and Others

A.S. Bopanna, J.—The petitioner is before this Court seeking that a mandamus be issued to the respondents not to interfere with the possession of the schedule property.

The petitioner claims to be the owner of the property referred to in the schedule to the petition. The case of the petitioner is that the respondents without initiating action in accordance with law for acquiring the property and paying compensation to the petitioner, have made attempt to illegally demolish the constructions put up on the property on contending that the land is required for the purpose of widening the National Highway 48.

Insofar as the contention that has been urged in the petition, the details of the same need not be adverted to since this Court in several petitions has taken note of such contentions and has arrived at the conclusion that if the property which is being utilized by the respondents for the purpose of road widening belongs to private owners, such owners cannot be divested of the property without due process of law since such right is protected under Article 300A of the Constitution. Further, this Court in W.P. No. 27955/2009 and connected petitions has laid down the guidelines with regard to the manner in which such consideration is to be made for the purpose of determining the rights and thereafter to pay compensation if need be. The direction as issued in the said case reads as hereunder:

"The ends of justice would be met by passing the following order:

i) The Deputy Commissioner of Tumkur District shall hold the enquiry and take a decision as to whether the properties in question belong to the petitioners or are vested in the Municipal Council.

ii) The petitioners shall appear before the Deputy Commissioner on 7.12.2011 without waiting for any notice from him. On the said day (7.12.2011) the petitioners shall produce the documents in support of their claims regarding the extent and ownership of their properties.

iii) The City Municipal Council shall also appear on the said day and furnish the documents in support of its claims that the properties in question are vested in it. Further, if any of the petitioner''s title deeds, etc., are with the City Municipal Council, the same shall also be produced by it before the Deputy Commissioner. It is also open to the petitioners to apply for the copies of any documents under the Right to Information Act, 2005 and obtain them and produce the same before the Deputy Commissioner.

iv) It is made clear that it is open to the Deputy Commissioner to take the assistance of the Tumkur Urban Development Authority.

v) On holding the enquiry, the Deputy Commissioner shall pass the order in the matter of rival claims being advanced by the City Municipal Council and the petitioners.

vi) If, on holding the enquiry the Deputy Commissioner is satisfied that the properties in question belong to the petitioners, they cannot be utilised for the road-widening purpose unless (a) they are compulsorily acquired, or (b) they are purchased after holding private negotiations with the petitioners or (c) on taking them on lease basis, etc.

vii) If the Deputy Commissioner on holding the enquiry finds that the properties in question belong to the City Municipal Council and that the petitioners have encroached them, the competent authorities are bound to evict them, but in a manner known to law.

viii) The Deputy Commissioner shall pass the appropriate orders within six weeks'' from today. All the parties shall co-operate with the Deputy Commissioner in the speedy disposal of the disputes raised or to be raised.

ix) If the petitioners are not satisfied with the order, which may eventually be passed by the Deputy Commissioner, it is always open to them to approach the Civil Court. The Deputy Commissioner and/or the competent authorities shall not enforce the order for a period of one week from the date of the issuance of the order to the petitioners."

If the above guidelines as laid down by this Court are kept in view, a similar procedure is required to be followed in the instant case as well. On determining, if it is found that the building to be demolished is located on the property actually belonging to the petitioner or the vacant land to be utilised belongs to the petitioner, the respondents would have to thereafter take steps for compensating the petitioner to the extent of the property that has been utilized for the purpose of road widening. In any event, on such determination in respect of the land belonging to the petitioner, he would have to be adequately compensated in accordance with law. However, in the said proceedings, if it is found that the petitioner had encroached upon the property belonging to the Government or the Municipal Council, the procedure as indicated in the order extracted above shall be followed.

The Town Municipal Council, Kunigal would however contend that insofar as they are concerned, the issue of widening the road does not arise. But, in view of the improvement of the drainage facility work undertaken by them wherever the land owners have voluntarily allowed them to form the drainage, they have utilized such land but have not taken any forcible action. Even in respect of the construction of drainage if any private land is required or if any encroachment of the municipal/Government land is to be made, the same procedure as has been enumerated above would have to be followed in that regard.

In terms of the above, the petition stands disposed of.