Karnataka HC in Saiyad Gulam Vohiddin & Ors. vs. Deputy Commissioner, Koppal & Ors. [05.02.2019]

IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)

Writ Appeal Nos. 100133-134 of 2017 (GM-RES)

Decided On: 05.02.2019

Saiyad Gulam Vohiddin and Ors.

Versus

Deputy Commissioner, Koppal and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and A.S. Bellunke, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: C.R. Hiremath

For Respondents/Defendant: Veena Hegde, AGA

DECISION

B.V. Nagarathna, J.

1. The legality and correctness of order dated 07.07.2015 passed in Writ Petition Nos. 11697-111741 of 2014 and Writ Petition Nos. 111742-111744 of 2014 is assailed by some of the writ petitioners in these appeals.

2. Though these appeals are listed for preliminary hearing along with I.A. No. 1 of 2017 seeking condonation of long delay of 563 days in filing the appeal, we have nevertheless heard learned counsel for appellants on merits.

3. The appellants herein were the writ petitioners, who assailed Annexure-A, being Resolution dated 31.10.2014 passed by the sixth respondent-Chairman of the City Ashraya Committee, Koppal, and also Member of Legislative Assembly, Koppal and sought a direction to the first and second respondents to consider and pass an order of allotment as per the list of beneficiaries produced at Annexures-'E' and 'G' under the Integrated Housing and Slum Development Programme (IHSDP- hereinafter referred to as "Centrally Sponsored Scheme" for the sake of convenience). Learned single Judge, who considered the writ petitions, by the impugned order, has dismissed the same by holding that the petitioners have no vested right to seek allotment of the houses constructed under the Centrally Sponsored Scheme at Bahaddoorbandi Road. That the Government can allot any house either constructed under the Centrally Sponsored Scheme or under Ashraya Scheme for houseless poor persons. Therefore, the petitioners cannot contend that they must be allotted houses only at Bahaddoorbandi Road and not the houses constructed under Ashraya scheme. Learned single Judge has also held that Annexure-A is an order which is in the interest of social justice of all parties and that there is no infirmity in the said order.

4. We have heard learned counsel for the appellants on several dates. This matter was listed before this Court on 14th November, 2018. Thereafter, on 20th November, 23rd November, 12th December, 19th December, 21st December, 2018 and even subsequently on 8th January 2019, 23rd January, 25th January and today (05th February, 2019). Today, we have heard learned counsel for the appellants in the pre-lunch session as well in the post-lunch session, as also learned Additional Government Advocate for respondent No. 1.

5. Briefly stated the facts are that, land bearing Sy. No. 438 measuring five acres six guntas situate at Bahaddoorbandi Road, Koppal, was handed over to the Slum Development Board for construction of 238 houses under the Centrally Sponsored Scheme-IHSDP. The Slum Development Board constructed the said houses through Koppal District Nirmithi Kendra. Thereafter, by Communication dated 09.03.2011, 3rd respondent took possession of the constructed houses and settled the bill. The Deputy Commissioner, Koppal-first respondent herein issued a notification dated 01.03.2012 calling for applications from the eligible, poor and houseless persons for allotment of constructed houses under the said scheme. A paper advertisement dated 01.03.2012 was also issued. 145 applications were received. After scrutiny, 130 applicants were found eligible for allotment of houses and accordingly, a list of 130 beneficiaries was prepared and the appellants herein claim to be the beneficiaries amongst 130 persons in the said list. So far as the remaining houses are concerned, another paper advertisement dated 04.12.2012 was issued calling for applications from the eligible persons for allotment of houses. A large number of applications were received. In response to the same, Karnataka Slum Development Board prepared a list of 238 persons but no steps were taken for allotment to those persons who were found eligible for allotment of houses under the Scheme.

6. The persons who thought they were eligible, formed an association and requested the Deputy Commissioner for allotment of houses as per the list of beneficiaries prepared. Since the Deputy Commissioner did not take any step, petitioners preferred Writ Petition No. 84786 of 2013 and connected writ petitions before this Court seeking a direction to the Deputy Commissioner as well as the Slum Development Board to consider the representations of the petitioners for allotment of houses. This Court by order dated 06.12.2013 issued a direction to the Commissioner, Slum Development Board to consider the representation of the petitioners and take appropriate decision. But, according to the appellants herein, no decision was taken. It appears that, in the meanwhile, some persons have illegally occupied the houses constructed under the Scheme and are utilizing the said houses not only for residential purpose but also for commercial purpose. Since petitioners' representations were not considered, they filed Contempt Petitions in CCC No. 100386 of 2014 and CCC Nos. 100394-399 of 2014 for disobedience of the order of this Court. But, the contempt proceedings have been dropped as no direction was issued to the Deputy Commissioner to consider the representations of the petitioners and a direction was issued only to the Commissioner, Slum Clearance Board. Subsequently, an application was filed in the writ petitions and this Court on 07.07.2014 modified its earlier order dated 06.12.2013 and issued a direction to the Deputy Commissioner to consider petitioners' representations. In spite of the said order, there was no consideration.

7. Petitioners once again filed contempt petition in CCC No. 100918 of 2014 for non-consideration of the case of the petitioners for allotment of houses. According to the appellants herein, the sixth respondent in order to avoid contempt of Court proceedings, passed the impugned order dated 31.10.2014 Annexure-A without considering the case of the petitioners. Consequently, the contempt proceedings were dropped. Being aggrieved by order at Annexure-A, petitioners filed the writ petitions and sought for a direction to consider their case for allotment of houses as per the list of beneficiaries produced at Annexures 'E' and 'G'. Learned single Judge after hearing the respective parties, has dismissed the writ petitions. Being aggrieved, some of the writ petitioners have preferred these appeals.

8. We have heard learned counsel for the appellants and learned Additional Government Advocate for respondent No. 1 in detail and perused the material on record.

9. At the outset, it must be stated that land bearing Sy. No. 438 totally measuring 10 acres 17 guntas situate at Bahaddoorbandi town, Koppal, belonged to one Syed Zulla Khader who gifted five acres, six guntas of land in favour of the Commissioner, City Municipal Council, Koppal, as per consent letter dated 14.02.2006 and he subsequently executed a registered gift deed 07.06.2006 in favour of the Commissioner CMC, Koppal, on behalf of the Sate. The object and purpose of the gift was to provide houses for the poor and the needy who belong to minority and backward communities. The Deputy Commissioner by his order dated 07.04.2006 accepted the condition imposed by the owner while making the gift of the land. The said land was handed over to the Karnataka Slum Clearance Board for construction of houses. The Slum clearance Board in turn handed over the said extent of land to Koppal District Nirmithi Kendra, Koppal on 14.12.2007 for formation of a layout and for construction of houses.

10. In the meanwhile, the list of beneficiaries was prepared by the then Deputy Commissioner and the then Commissioner, City Municipal Council, Koppal, signed the list of beneficiaries even before construction of the houses. After the construction of the houses by the Nirmithi Kendra, a letter was addressed on 09.03.2011 requesting respondent No. 3 to take possession of the constructed houses and to settle the dues. As already noted, when the said developments were on, certain persons, whose names may not have been included in the list of beneficiaries, had illegally occupied the houses and had even got electricity and water connections. But, in response to the newspaper advertisement calling for applications from the eligible persons, the petitioners and others submitted their application. As already stated, 130 applications were received, 104 persons were found eligible for allotment of the houses and thereafter, again another advertisement was issued on 04.12.2012. Consequently, Karnataka Slum Development Board prepared a list of 238 persons as the beneficiaries. But, all the houses constructed under the Scheme had been illegally occupied by persons, even without any Hakkupatras or allotment letters being issued to them.

11. It appears that some of the unauthorised occupants/encroachers had filed Writ Petition Nos. 62862-866 of 2012 [GM-RES] before this Court challenging the advertisement issued by the Deputy Commissioner calling for applications and this Court had granted an interim order. On the other hand, the petitioners filed Writ Petition No. 84786 of 2013 seeking a writ of mandamus to allot the houses to them as beneficiaries. On account of non-impleadment of the direction of this Court, CCC No. 100918 of 2014 and connected cases were filed for disobedience of the order passed by this Court. In order to end the dead-lock, ultimately a meeting was called under the Chairmanship of City Ashraya Committee, Koppal Officers of City Municipal Council, Koppal and the President of Municipality, Koppal to discuss and sort out the matter. It was found that out of 249 occupants, 207 persons had filed applications pursuant to the notification issued by the Deputy Commissioner and 42 persons though had not filed application, being house-less poor persons and being eligible for allotment of houses, had occupied the houses. The District Administration though decided to take steps for eviction of the illegal occupants, there has been not much progress in the matter on account of the interim stay order granted by this Court in Writ Petition Nos. 62862-866 of 2012. Accordingly, as per Annexure 'A' order, it was decided that priority would be given to the petitioner and other beneficiaries for allotment of the houses not necessarily under the Centrally Sponsored Scheme. Being aggrieved by the decision in Annexure 'A, the writ petitions were filed.

12. As already noted, the learned single Judge has held that the petitioners cannot insist that they be given allotment under the Centrally Sponsored Scheme at Bahaddoorbandi Road. That Annexure 'A' order states that petitioners would be accommodated under any other Centrally sponsored scheme or State sponsored scheme of housing to the persons who are poor and needy. In the circumstances, learned single Judge has dismissed the writ petitions.

13. The contention of the learned counsel for the appellants is that under Annexure 'E', the names of the appellants are found along with other persons. Said Annexure 'E' is a communication which has been issued by the Assistant Executive Engineer, Karnataka Slum Development Board, Gadag sub-division, Gadag to the Deputy Commissioner, Koppal District. That the names of the appellants herein find a place in that list of 130 beneficiaries, which list is appended to Annexure 'E'. Thereafter, the Deputy Commissioner did not take steps for issuance of list of beneficiaries and thereafter, the distribution of Hakkupatras to the eligible beneficiaries and grant possession of houses built under the Centrally Sponsored Scheme to beneficiaries such as the appellants herein. It is contended that while on the one hand, the names of the appellants who are beneficiaries find a place in the list appended to Annexure 'E', no final list was issued for the purpose of handing-over of Hakkupatras and possession of the houses to them. In the meanwhile, there has been illegal occupation of the houses by certain persons whose names may not find a place in the list appended to Annexure 'E'. That their illegal occupation has not been terminated by the State Government and by the authorities concerned by taking adequate and effective steps. As a result, the petitioners/appellants herein have been deprived of a basic housing facility under the Centrally Sponsored Scheme, although their names are found in the list appended to Annexure 'E'. It is contended that the in-action on the part of the State Government has caused prejudice and deprivation of a housing facility to the petitioners while the State Government has remained silent and virtually acquiesced to illegal occupation of the houses constructed under the Central Sponsored Scheme by certain persons. Therefore, learned counsel for the appellants contended that a direction may be issued to the State Government to allot the houses under the Centrally Sponsored Scheme to the appellants herein by removing the illegal occupants or to allot any vacant houses constructed under the said Scheme to the appellants herein.

14. At the outset, we may observe that in the absence of illegal occupants being made parties to these proceedings, no direction could be issued to the State Government to evict them. Even if any person is in illegal occupation of a Government property and who would have to be evicted it would have to be in accordance with law. In the absence of such illegal occupants being heard in the matter by this Court, a general direction cannot be issued to the State Government to remove all illegal occupants of the houses built under the said scheme. This is not public interest litigation where justice is sought to be secured to the public at large. We must not lose sight of the fact that the petitioners/appellants herein are also aspirants for the very same houses which have been illegally occupied by certain persons. It is also noted by us that the concerned respondents have taken steps by issuance of eviction notices to the illegal occupants.

15. In the circumstances, the next question that would arise is as to what relief could be granted to the appellants herein.

16. Of course, learned single Judge has said that the appellants cannot insist for allotment of houses in Bahaddoorbandi Road and that their case would be considered on the basis of their eligibility and entitlement in any Centrally Sponsored Scheme or State Sponsored Housing Scheme in accordance with law. We cannot find fault with the said observation of the learned single Judge. After all, Annexure 'E' is not a final list which has been prepared from which it could be implied that the writ petitioners or the appellants herein would be entitled to issuance of Hakkupatras or allotment letters as well as possession of houses in the Centrally Sponsored Scheme. The said list at Annexure 'E' is appended to a communication issued by the Assistant Executive Engineer of the Slum Development Board to the Deputy Commissioner to take further steps in the matter. Unfortunately, even before the Deputy Commissioner could take any concrete steps in the matter so as to consider issuance of Hakku Patras or allotment letters to 130 eligible applicants, there had been illegal occupation of the houses constructed under the Centrally Sponsored Scheme. In view of the said deadlock, the question is as to what relief could be granted to the appellants.

17. Learned single Judge has observed that since the appellants cannot insist on being allotted houses only at Bahaddoorbandi Road, the houses constructed under the Ashraya Scheme could be allotted to the appellants or in any of the houses constructed under any other Centrally Sponsored Scheme. In the circumstances, we direct respondent No. 1 to consider Annexure 'E' communication issued by Assistant Executive Engineer of the Slum Development Board, Gadag sub-division, Gadag along with the list containing the names of 130 persons in which the appellants' names are found and to take steps to allot houses to the appellants in the Centrally Sponsored Scheme, if any such houses are available or in any other State Sponsored Scheme or under Ashraya Scheme or under any other scheme, so that the grievance ventilated by the appellants in these appeals are assuaged by giving a preference to them.

18. It is needless to observe that although there has been no formal list prepared by the Deputy Commissioner pursuant to Annexure 'E' communication dated 16.11.2012, but having regard to the earlier direction by this Court and the directions issued in these appeals, respondent No. 1 to consider the case of the appellants along with other original aspirants and allot houses to them in accordance with law. The said exercise shall be carried out within a period of two years from the date of receipt of copy of this judgment.

19. We would also like to refer to the decision of Hon'ble Supreme Court in the case of Jagpal Singh v. State of Punjab, reported in  (2011) 11 SCC 396 : (AIR 2011 SC 1123) relied upon by the learned counsel for the appellants. In the said case, the appellants therein were neither owners nor tenants of the land in dispute in the said case which was recorded as pond situated in village Rohar Jagir, Tehsil and District Patiala. The trespassers and unauthorised occupants of the land made constructions on the village pond and steps were taken by the Grama Panchayat, Rohar Jagir to evict the appellants therein who unauthorisedly occupied the aforesaid land which belonged to Grama Panchayat, Rohar Jagir. Since the appellants therein had illegally occupied the said land, a first information report was filed against them, but of no avail. Though illegal constructions on the said land were put up, instead of ordering for eviction of those unauthorised occupants, the Deputy Commissioner Patiala had held that it would not be in the public interest to dispossess them, hence, directed Grama Panchayat, Rohar to recover the cost of land as per the Collector's rate from the respondents/appellants therein. The Collector colluded in regularising the illegality on the ground that the appellants therein had spent huge sums of money by constructing houses in the said lands. It appears that some persons had appealed to the learned Commissioner against the order of the Collector and the appeal was allowed. The Commissioner had held that the officials of Grama Panchayat had colluded with the appellants therein and it had not even opposed the order passed by the Collector in which directions had been issued, nor filed any appeal against the Collector's order. The Commissioner was of the view that the regularising of such grant of illegal encroachment was not in the interest of the Grama Panchayat. Against the order of the Commissioner, a writ petition was filed before the learned single Judge of the Punjab and Haryana High Court which was dismissed, against which an appeal was filed before the Division Bench, which also affirmed the order of the learned single Judge.

20. The Hon'ble Supreme Court also dismissed the appeal. But, at the same time, opined that the appellants therein were trespassers, who illegally encroached upon the Grama Panchayat land in collision with the officials and even with the Grama Panchayat and that such kind of illegalities could not be regularized by citing M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, reported in (1999) 6 SCC 464 : (AIR 1999 SC 2468) and Friends Colony Development Committee v. State of Orissa, reported in (2004) 8 SCC 733 : (AIR 2005 SC 1). The Hon'ble Supreme Court observed that the State Government had permitted allotment of Grama Panchayat land to private persons and commercial enterprises on payment of money which was illegal and should not be ignored. A pond must not be allotted to anybody for construction of a house or any such allied purpose. Ultimately, the Hon'ble Supreme Court issued directions to all State Governments that they should prepare schemes for eviction of illegal/unauthorised occupants of Grama Sabha/Grama Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village and eviction of illegal occupants should be after giving them a show-cause notice and a brief hearing. That regularisation should be permitted only in exceptional cases where lease has been granted under some Government Notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there was already a school, dispensary or other public utility on the land.

21. Of course, the aforesaid directions were issued by the Hon'ble Supreme Court having regard to the mis-utilisation and illegal occupation of a pond in a village. But the essence of the directions issued by the Hon'ble Supreme Court would squarely apply in the instant case as the respondents and particularly, the State Government not being able to take steps to evict the illegal occupants have not been in a position to make allotments to the eligible persons as per the list appended to Annexure 'E'. It is in the face of such a deadlock that concrete directions cannot be issued to the State Government to allot the very same houses which are in illegal occupation to the eligible persons whose names are found in the list appended to Annexure 'E' to the appellants herein.

22. In the circumstances, by ignoring the delay of 523 days in filing these appeals, we dispose off these appeals in the aforesaid terms. In view of the disposal of the appeals, all other pending applications stand disposed.