Shivanna and Others vs Town Municipal Council and Others

B. Veerappa, J.—1. In all these petitions, the petitioners have sought for quashing of the order passed by the Deputy Commissioner dated 6.6.2014 as per Annexure-J.

It is the case of the petitioners that they belong to Bandiwaddar Community of Guledagudda village belonging to socially economically weaker section and they have no houses and therefore, they had requested the Deputy Commissioner to acquire the lands and allot the house sites to them. Accordingly, the State Government initiated acquisition proceedings and acquired 4 acres and 32.5 1/2 guntas in Sy. No. 1A/1A/1 of Hardolli village (Guledgudd) for the purpose of forming sites and distributing the same to the Bandiwaddar community. After acquisition, the Town Municipal Council, Guledgudd formed 113 plots in the said land and however, allotted 32 plots to the members of the Bandiwaddar community. The 1st respondent ought to have allotted 113 plots in favour of the Bandiwaddar community, but taking advantage of the transfer of the land in its favour, started alienating the plots to the rich and influential businessmen. The Bandiwaddar community people after coming to know about the same, made representation to the Tahsildar requesting to take necessary action against the 1st respondent and recover the said sites and allot the same to Bandiwaddar community people.

The Tahsildar, Badami conducted an enquiry and passed an order on 31.3.1982. The petitioners submit that some of the Bandiwaddar community people filed suit in O.S. No. 111/1985 for declaration that the sites allotted to defendants therein as null and void and also for perpetual injunction and not to transfer the plots without permission of the State Government. After contest, the suit came to be decreed holding that the sale deeds executed in favour of defendant Nos. 2 to 18 therein are null and void by directing the Town Municipal Council to distribute the said sites to the members of the Bandiwaddar community, against which judgment and decree, the defendants therein had filed Regular Appeal No. 78/2001 which came to be dismissed on 7.3.2002 and the same has become final and conclusive.

The petitioners formed a society in the name and style of ''Bandiwaddar Kshemabhivruddhi Hagu Shaikshanika Samsthe'' on 7.1.2008 and thereafter, a letter was written to the 1st respondent herein requesting to take back the possession of the sites as per the Court order and to allot the same in favour of the Bandiwaddar community people. The Town Municipal Council, Guledagudda passed a resolution allotting 27 sites to different persons of the Bandiwaddar community including the petitioners herein and after allotment, the petitioners and others have put up the residential building in which they are residing.

It is the further case of the petitioners that after a lapse of 5 years of allotment of sites, one Bhimappa and others gave a representation to the Chief Officer to take back the sites which have been illegally allotted to the persons other than the Bandiwaddar community and allot the same to them. The Assistant Commissioner instead of taking action as per the Court order has passed an order dated 26.3.2013 suspending all the allotment of sites made in favour of the Bandiwaddar community including the present petitioners which was affirmed by the District Commissioner as per Annexure-J. Hence, the petitioners are before this Court challenging the order passed by the Deputy Commissioner.

After hearing the parties at length, this Court on 19.1.2016 passed an order which reads as under:

"In view of the allegations made in the writ petitions and counter allegations made in the statement of objections and the allegations made by the impleading applicants before the Court, it is appropriate to direct the Chief Officer, Town Municipal Council (for short TMC), Guledgudd, Bagalkot, Badami Taluk, and Deputy Commissioner, Bagalkot District, to clarify the following queries of the Court:--

Whether the petitioners are eligible for allotment of plots, if not why?

What is the action taken by the Chief Officer and the Deputy Commissioner, Bijapur (Now Bagalkot), who were defendant Nos. 1 and 19 respectively, in terms of the decree dated 5.6.1998 made in O.S. No. 124/1994, when there was a specific direction to them in the decree to get the suit plots (38) from defendant Nos. 2A to 2F?

What is the action taken by the Chief Officer as well as the Deputy Commissioner against the then Administrative Officer of TMC, Guledgudd for the illegal allotment made by him as per the order dated 13.2.2008 allotting sites to the dead persons and minor daughters of Hanumantappa Chandappa Bandiwaddar, who was 2nd plaintiff in the O.S. No. 124/1994.

What is the action taken by the Chief Officer and the Deputy Commissioner to allot 113 plots carved out in Survey No. 1A and 1A/1A/1 measuring 4 acres 32.5 1/2 guntas of Haradohalli Village acquired by the State Government only for the specific purpose to allot the plots to Bandiwaddar Community?

Whether the Assistant Commissioner has issued any notice to the petitioners before suspending the plots allotted to them confirming the order made by the Deputy Commissioner and what is the fraud played by these petitioners?

Who are the eligible persons/list of Bandiwaddar community in Guledgudd Village, Badami Taluk, Bagalkot District?

The Chief Officer as well as the Deputy Commissioner shall submit the report to the Court regarding the above queries within two weeks from today.

A copy of this order may be communicated to the learned AGA as well as to Sri. Hebballi, learned Counsel to take necessary action in this regard."

In response to the said queries made by this Court, the Town Municipal Council - 1st respondent filed its reply to the Court order, which reads as under:

"1) It is submitted that Petitioner No. 1, Petitioner No. 2, Petitioner No. 3, Petitioner No. 4 and Petitioner No. 5 are respectively son-in-law, daughter, daughter, wife and daughter of Hanamantappa Bandiwaddar, belong to one family. However now some of them having attained majority, if they apply and on merits their applications would be considered by the TMC Guledgudd.

2) Action as per the decree passed in O.S. No. 124/1994 is taken by passing the resolution dated 8.2.2008 (copy enclosed) and 38 plots have been taken possession from earlier allottees and the name of TMC Guledgudd is entered in CTS extracts of respective properties.

3) At the time of earlier allotment dated 13.2.208 TMC was being managed by the then Administrative Officer who was in the Rank of the Assistant Commissioner. This Respondent being in lower rank of the said Administrative Officer, it is for the higher authorities to take action.

4) After the Decree passed by the Civil Court the impugned resolution came to be passed by TMC Guledgudd by allotting the persons belonging to Bandiwaddar community only and remaining plots would be allotted to the said community people.

5) As per the records, it is noticed that Assistant Commissioner has not issued any notice before suspending the resolution which is confirmed by the Deputy Commissioner. The Petitioners are the beneficiaries of the fraud played by one Hanamantappa Bandiwaddar who is the father-in-law of 1st Petitioner, the father of Petitioner Nos. 2, 3 and 5 and husband of Petitioner No. 4.

6) All eligible persons belonging to Bandiwaddar community who apply to the TMC will be considered and pass resolution as per the merit of the applicants to Bandiwaddar Community only."

I have heard the learned Counsel for the parties to the lis.

Sri V.P. Kulkarni, learned Counsel for the petitioners contended that the impugned order passed by the Deputy Commissioner confirming the order passed by the Assistant Commission suspending the sites allotted in favour of the petitioners is without notice and without giving an opportunity of hearing and the same has been made after a lapse of 8 years. Therefore, the same is not sustainable in law. He also contended that the land in dispute was acquired by the Government for the purpose of allotment of sites only in favour of the Bandiwaddar community people and admittedly, the petitioners belong to Bandiwaddar community and hence, they are entitled to the allotment. After considering the entire material on record, the concerned officers of the Town Municipal Council by passing the resolution have allotted sites about 8 years back in which the petitioners have already put up constructions and are residing therein. Subsequently, on the basis of the report of the Town Municipal Council, the Assistant Commissioner suspended the resolution passed by the Town Municipal Council allotting sites made in favour of the petitioners and others, which was confirmed by the Deputy Commissioner without notice and hearing. Therefore, he sought to allow the writ petitions.

Per contra, Sri Hebballi, learned Counsel for the contesting respondent No. 1 has filed a detailed objections contending that one Sri Hanamantappa Bandiwaddar claiming to be the President of the Association of Bandiwaddar community gave a list to the 1st respondent and got allotment of sites in favour of own family members. Therefore, the impugned action by the Assistant Commissioner and the confirmation of the Deputy Commissioner is in accordance with law. The petitioners are not entitled to any relief under Articles 226 and 227 of the Constitution of India and accordingly, prayed for dismissal of the writ petitions.

The learned HCGP Sri K.L. Patil submits that it is a fact that the property in question has been acquired to allot sites only in favour of Bandiwaddar community people and in terms of the recommendation made by the Town Municipal Council, the action will be taken in accordance with law.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

It is not in dispute that Sy. Nos. 1A/1A/1 measuring 4 acres 32.5 1/2 guntas are acquired by the State Government for the specific purpose of allotting plots to the Bandiwaddar community only. It is also not in dispute that on the basis of the resolution passed by the Town Municipal Council, the petitioners have been allotted sites and some of them have put up constructions and are residing therein. The only grievance of the petitioners in the present cases is that the suspension of resolution passed by the Town Municipal Council by the Assistant Commissioner and confirmed by the District Commissioner is without notice and hearing of the petitioners. The 1st respondent filed a memo dated 2.2.2016 and replied to the Court queries, at para 5 of the memo, the 1st respondent has admitted the fact that the Assistant Commissioner has not issued any notice and hearing before suspending the resolution on the basis of which the sites were allotted in favour of the petitioners and the same is confirmed by the Deputy Commissioner. The only contention urged by the 1st respondent is that the petitioners are the beneficiaries of the fraud played by one Hanamantappa Bandiwaddar, who is the father-in-law of the 1st petitioner, the father of petitioner Nos. 2, 3 and 5 and husband of petitioner No. 4. Whether Hanamantappa Bandiwaddar has played fraud and obtained sites in favour of these petitioners has to be considered by the Town Municipal Council, Assistant Commissioner and the Deputy Commissioner, who are the competent authorities under the provisions of the Karnataka Municipalities Act. Admittedly, in the present case before suspension of the resolution made by the Town Municipal Council, the Assistant Commissioner has not issued any notice and hearing to the petitioners. The same is in utter violation of the principles of natural justice. Unfortunately, the Deputy Commissioner has also without verifying the same, has proceeded to confirm the order passed by the Assistant Commissioner which is illegal and contrary to the provisions of the Karnataka Municipalities Act. Therefore, it requires reconsideration by the respondents.

In view of the aforesaid reasons, the impugned order passed by the Deputy Commissioner confirming the suspension made by the Assistant Commissioner requires to be quashed. Accordingly, it is quashed. The matter is remanded to respondent Nos. 1, 3 and 4 for afresh consideration and to pass orders in accordance with law.

However, it is made clear that any allotment to be made by the Town Municipal Council and to be confirmed by the Deputy Commissioner should be in accordance with law and in consonance with the acquisition made by the Government to protect Bandiwaddar community people alone and it is for the Deputy Commissioner to take action in accordance with law with regard to any allotment to be made by the Town Municipal Council.

In view of quashing of the impugned order dated 6.6.2014 Annexure-J passed by the Deputy Commissioner on the ground that the Assistant Commissioner suspended the resolution of the allotment made by the Town Municipal Council in favour of the petitioners without notice and hearing, the present notice issued by the Municipality also requires to be quashed. Accordingly, the notices - Annexures-D, E, F, G and H are quashed with liberty to the respondent Nos. 1, 3 and 4 to pass appropriate orders after considering the entire material on record afresh.

Accordingly, writ petitions are disposed of.