- 1 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS 27TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE K NATARAJAN AND THE HON’BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT APPEAL NO. 200152 OF 2024 C/W WRIT APPEAL NO. 200312 OF 2024 IN W.A.NO.200152/2024: BETWEEN: GULAM DASTAGIR S/O SHABUDDIN AGE: 75 YEARS, OCC: BUSINESS, R/O H.NO.1-892/3, JEWARGI COLONY, KALABURAGI, DIST: KALABURAGI. …APPELLANT (BY SRI. DEEPAK V. BARAD, ADVOCATE) AND: 1. STATE OF KARNATAKA, URBAN DEVELOPMENT DEPARTMENT, VIDHANA SOUDHA, BENGALURU – 560001. REPRESENTED BY IT’S SECRETARY. 2. THE COMMISSIONER, KALABURAGI URBAN DEVELOPMENT AUTHORITY, KALABURAGI – 585102. 3. THE COMMISSIONER, KALABURAGI MAHANAGARA PALIKE, KALABURAGI – 585102. Digitally signed by RAMESH MATHAPATI Location: HIGH COURT OF KARNATAKA - 2 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 4. MD. ABDULLA ZAFAR-UL-HASSAN S/O MD. SAYED-UL-HASSAN, AGE: 58 YEARS, OCC: BUSINESS, R/O H.NO.1-892/2B, OLD JEWARGI ROAD, BEHIND JEEVAN PRAKASH SCHOOL, KALABURAGI – 585102. …RESPONDENTS (BY SRI. MALLIKARJUN BASAREDDY, GA FOR R1; SRI. ANANTH JAHAGIRDAR, ADV. FOR R2; SRI. KRUPA SAGAR PATIL, ADV. FOR R3 & SRI. B. NOOR ILIYAS, ADV. FOR R4) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURTS ACT, 1861, PRAYING TO SET ASIDE THE ORDER DATED 29.05.2024 IN W.P.NO.200581/2024 PASSED BY THE LEARNED SINGLE JUDGE, AND CONSEQUENTLY ALLOW THE WRIT PETITION FILED BY THE APPELLANT. IN W.A.NO.200312/2024: BETWEEN: GULAM DASTAGIR S/O SHABUDDIN AGE: 75 YEARS, OCC: BUSINESS, R/O H.NO.1-892/3, JEWARGI COLONY, KALABURAGI, DIST: KALABURAGI. …APPELLANT (BY SRI. DEEPAK V. BARAD, ADVOCATE) AND: 1. STATE OF KARNATAKA, URBAN DEVELOPMENT DEPARTMENT, VIDHANA SOUDHA, BENGALURU – 560001. REPRESENTED BY IT’S SECRETARY. - 3 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 2. THE COMMISSIONER, KALABURAGI URBAN DEVELOPMENT AUTHORITY, KALABURAGI – 585102. 3. THE COMMISSIONER, KALABURAGI MAHANAGARA PALIKE, KALABURAGI – 585102. 4. MD. ABDULLA ZAFAR-UL-HASSAN S/O MD. SAYED-UL-HASSAN, AGE: 58 YEARS, OCC: BUSINESS, R/O H.NO.1-892/2B, OLD JEWARGI ROAD, BEHIND JEEVAN PRAKASH SCHOOL, KALABURAGI – 585102. …RESPONDENTS (BY SRI. MALLIKARJUN BASAREDDY, GA FOR R1; SRI. ANANTH JAHAGIRDAR, ADV. FOR R2; SRI. KRUPA SAGAR PATIL, ADV. FOR R3 & SRI. B. NOOR ILIYAS, ADV. FOR R4) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURTS ACT, 1861, PRAYING TO SET ASIDE THE ORDER DATED 04.09.2024 IN W.P.NO.201847/2024 PASSED BY THE LEARNED SINGLE JUDGE, AND CONSEQUENTLY ALLOW THE WRIT PETITION FILED BY THE APPELLANT. THESE WRIT APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 24.03.2025, COMING ON FOR “PRONOUNCEMENT OF JUDGMENT” THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON’BLE MR. JUSTICE VIJAYKUMAR A. PATIL - 4 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 CAV JUDGMENT (PER: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL) These intra Court appeals are filed challenging the orders of the learned Single Judge dated 29.05.2024 passed in W.P.No.200581/2024 (LB-RES) and the order dated 04.09.2024 passed in W.P.No.201847/2024 (LB- RES). 2. Brief facts leading to the filing of these appeals are that, the appellant is the owner of the 3 different plots situated at Old Jewargi Road, Kalaburagi. The appellant sought amalgamation of the said sites and the 2nd respondent ordered the amalgamation on 16.05.2022. Later, it was kept under suspension and withdrawn, which was assailed in W.P.No.200581/2024. The learned Single Judge permitted the appellant to produce the documents before the 2nd respondent and the 2nd respondent was directed to reconsider the same. The 2nd respondent on 09.07.2024 cancelled the amalgamation which was challenged in W.P.No.201847/2024. The learned Single - 5 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 Judge disposed of the writ petition vide order dated 04.09.2024. The petitioner assailed both the orders in these appeals. 3. Sri. Deepak V. Barad, learned counsel for the appellant submits that the 2nd respondent has committed a grave error in passing the impugned orders by canceling the amalgamation order dated 16.05.2022. It is submitted that the 2nd respondent would become functus officio once order is passed. Hence, the order keeping the amalgamation order under suspension for sometime and after remand by the learned Single Judge, canceling the amalgamation order is illegal and without any authority of law. It is further submitted that the 4th respondent objected before the 2nd respondent and requested the cancellation of the amalgamation order, which is impermissible. Section 17(6) of the Karnataka Town and Country Planning Act, 1961 provides appeal remedy and the 2nd respondent ought to have relegated the 4th respondent to the Appellate Authority. It is also submitted - 6 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 that the 4th respondent without any basis has raised the objection with regard to the title of the appellant before the 2nd respondent. It is further contended that the suits filed by the 4th respondent are pending adjudication before the Civil Court and the suit is for the cancellation of sale deed of the year 1976 which in itself is not maintainable and without considering any of the aspects, the learned Single Judge has remanded the matter back to the 2nd respondent and the 2nd respondent based on the objection of the 4th respondent has withdrawn the amalgamation order dated 16.05.2022 by the impugned order at Annexure-S dated 09.07.2024. Hence, he seeks to allow both the appeals. 4. Per contra, Sri. Ananth Jahagirdar, learned counsel appearing for respondent No.2 supports the orders of the learned Single Judge in both the appeals, also the impugned orders passed by the 2nd respondent and submits that clause-3 of the amalgamation order dated 16.05.2022 confers the power on the authority to cancel - 7 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 the amalgamation, if there is a dispute with regard to the title of the property. It is submitted that there are two suits filed by the 4th respondent which are pending in relation to the subject sites. Hence, the authority taking note of the civil disputes pending between the parties has withdrawn the amalgamation order. It is further submitted that the appellant has partially put up the construction over the property in question, due to which the property of the 4th respondent has been landlocked. Hence, till the disposal of the said suits, the 2nd respondent has withdrawn the amalgamation order which does not call for any interference in these appeals. 5. Sri. Krupa Sagar Patil, learned counsel appearing for respondent No.3 - Corporation submits that the 3rd respondent has sent a communication at Annexure-N dated 31.10.2023 requesting the appellant not to continue with the construction in view of the initial suspension of the amalgamation order and the subsequent - 8 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 cancellation of the amalgamation order. Hence, he seeks to dismiss the appeals. 6. Sri. B.Noor Iliyas, learned counsel appearing for 4th respondent supports the orders of the learned Single Judge and the orders of the official respondents challenged in the writ proceedings. It is submitted that the 4th respondent has raised specific objections that the appellant’s title is not clear over the property in question as his vendor did not have any right to sell the property in favour of the appellant as he was only an agreement holder, which has been properly considered by the 2nd respondent and the order of amalgamation dated 16.05.2022 has been recalled. It is submitted that the 4th respondent’s site is behind the property in question and there is no ingress and egress to his property. Hence, he has objected before the 2nd respondent - authority and requested for recall of the amalgamation order to enable the appellant to provide ingress and egress to the property - 9 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 of the 4th respondent. Hence, he seeks to dismiss the appeals. 7. We have heard the submissions of the learned counsel for the appellant, learned counsels for respondent No.2, 3 and 4 and meticulously perused the materials available on record. We have given our anxious consideration to the submissions advanced and the material available on record. 8. The records indicate that one Gulam Rasool Saheb’s sons were the owners and possessors of the plot measuring 120x50 feet, and the same was purchased from J.J.Almeida. Later, the said property was divided among the sons of Gulab Rasool Saheb into five portions. It is averred that one portion measuring 24x34.5 feet has fallen to the share of Md.Siraj Ul Hasan and another portion measuring 24x34.5 feet to Md.Latif Ul Hasan and other portions were partitioned among other siblings. It is further averred that the appellant and his brother Gulam - 10 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 Nabi purchased house No.1-892/3 measuring 50x48 feet from Md.Siraj Ul Hasan and Md.Latif Ul Hasan vide registered sale deed dated 23.03.1976. It is also averred that the petitioner filed a partition suit against his family members. The said suit is registered as O.S.No.346/1979 which came to be compromised. In the said compromise, the petitioner was allotted house No.1-892/3 measuring 50x48 feet. It is contended that the petitioner purchased two open sites measuring 24x50 feet and 24x50 feet which are adjacent to the petitioner’s property vide two registered sale deeds dated 08.08.2018. The appellant applied for the amalgamation of the 3 sites. The 2nd respondent – Planning Authority vide order dated 16.05.2022 ordered the amalgamation. The appellant approached the 3rd respondent - Corporation for issuance of permission for construction and building license which was accorded on 18.11.2022. The appellant entered into a joint development agreement with a third party and started construction. The respondent No.4 filed objections before the 2nd respondent for granting amalgamation of - 11 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 sites. The 2nd respondent vide order dated 25.07.2023 temporarily revoked the order dated 16.05.2022. 9. Thereafter, the petitioner filed an affidavit before the 2nd respondent pointing out that he has already put up substantial construction with permission and sought for withdrawal of the order dated 25.07.2023. The 2nd respondent vide order dated 04.09.2023 has withdrawn the order dated 25.07.2023. In other words, the amalgamation order was revived. 10. The material on record indicates that the 4th respondent and his family members filed O.S.No.394/2023 seeking prayer for partition and declaration that the sale deed dated 23.03.1976 is null and void and not binding on the plaintiffs. The 4th respondent once again approached the 2nd respondent by way of representation dated 12.09.2023 contending that there is a serious title dispute with regard to the property and till that dispute is resolved, the amalgamation order has to be withdrawn. - 12 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 The 2nd respondent entertained the representation dated 12.09.2023 submitted by the 4th respondent and without providing any opportunity to the appellant, proceeded to withdraw the amalgamation order vide order dated 27.10.2023. The 3rd respondent also passed an order dated 31.10.2023 temporarily withholding the construction permission dated 18.11.2022 granted to the appellant, till the 2nd respondent passes an order. The 2nd respondent also issued notice dated 21.11.2023 directing the appellant not to put up any further construction. The orders of the 2nd and 3rd respondents were challenged by the appellant in W.P.No.200581/2024. The learned Single Judge considering the rival submissions passed the order dated 29.05.2024. The operative portion of the order reads as under: “10. In that view of the matter, there is no error committed by respondent No.2 in passing the impugned order and consequently, respondent No.3 was also justified in passing the order, withdrawing the license granted to the petitioner - 13 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 to put up the construction. Thus, this petition lacks merits and is dismissed. 11. However, if the petitioner appears before respondent No.2, within a week from today and produces the documents in support of the order of the amalgamation, respondent No.2 is directed to consider the same as expeditiously as possible, at any rate within a period of one month from the date of production of documents. Respondent No.3 shall thereafter pass an appropriate order within a period of 15 days there from.” 11. The records further indicate that the appellant has submitted a detailed representation dated 26.06.2024 along with the documents, requesting to uphold the amalgamation order dated 16.05.2022 by permitting the appellant to complete the construction. The respondent No.2 after considering the remanded matter has passed an order dated 09.07.2024 and come to a conclusion that the portion of the property was purchased by the appellant from one Azmath Begum by registered sale deed dated 08.08.2018. However, the said Azmath Begum’s vendor was only the agreement holder and she did not have any - 14 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 title to the property and has proceeded to cancel the amalgamation order dated 16.05.2022 which was impugned by the appellant in W.P.No.201847/2024. The learned Single Judge vide order dated 04.09.2024 passed the following order “3. This issue has already been considered by a coordinate bench of this court in W.P.No.200581/2024, vide its order dated 29.05.2024, wherein at paragraph NO.9, at internal page 11 of the said order, it is categorically held that: “The respondent No.2 though was the sanctioning authority, who had sanctioned the amalgamation of plots, but he had retained the power to re-visit the order of amalgamation if the information furnished by the petitioner was incorrect or false.” 4. Therefore, respondent No.2 was entitled to reconsider the order of amalgamation by excising power under Section 27 of the Karnataka General Clauses Act, 1899 and therefore, this court cannot find any error in the excise of jurisdiction by respondent No.3. Since there is a categorical finding in this regard by a co-ordinate bench, and the said order is under challenge in WA FR.No.200125/2024. - 15 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 5. The finding of the coordinate bench of this Court being a part of the appeal, it would not be proper for this Court to deal with the submission now made by the counsel for the petitioner and it would be for the appellate Court to deal with the finding of the coordinate bench of this court. Liberty is reserved to the petitioner to agitate all the issues.” 12. Being aggrieved, the original petitioner in both the writ petitions has filed these appeals. The record also indicates that the respondent No.4 has filed O.S.No.453/2023 against the appellant and another seeking prayer to declare that the suit A-B way shown in the plaint sketch and described in the plaint schedule attached to the open plot of the plaintiff’s property No.3041/5 situated at Old Jewargi Road, Kalaburagi is the easmentary right of way of necessity for the plaintiff and family members and permanently restrain the defendants from making any sort of construction in the suit property. 13. The records indicate that both the suits filed by defendant No.4 referred supra are after the order of - 16 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 amalgamation dated 16.05.2022. Admittedly, in both the suits there is no interim order operating against the appellant, or over the suit schedule property. In our considered view, the 2nd respondent without any justifiable reason has recorded the finding at Annexure-S dated 09.07.2024 that the vendor of the appellant did not have any proper title. The finding recorded by the 2nd respondent in the impugned order at Annexure-S is purely based on the objections filed by the 4th respondent. Admittedly, no adjudication with regard to the title of the appellant has taken place in any of the proceedings as alleged by the 4th respondent. In our considered view the 2nd respondent has exceeded his jurisdiction in recording the finding that the vendor of the appellant did not have a title over the portion of the property covered under the amalgamation order dated 16.05.2022. 14. Insofar as jurisdiction or the authority of the 2nd respondent with regard to recalling or cancellation of the amalgamation order is concerned, the learned Single - 17 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 Judge has recorded the finding that under Section 27 of the Karnataka General Clauses Act, the 2nd respondent has the power to recall, rescind the order passed by him. In our considered view, the finding of the learned Single Judge with regard to the power to recall is required to be upheld. However, the learned Single Judge has referred to an incorrect section of the Karnataka General Clauses Act, 1899. The correct section is Section 21 which reads as under: “21. Power to make to include power to add, to amend, vary or rescind notifications, orders, rules or bye-laws. – Where, by any enactment, a power to [issue] [notifications], orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add, to amend, vary or rescind any [notifications], orders, rules or bye- laws so [issued]. 15. The aforesaid section empowers the 2nd respondent to recall or rescind the orders. However, the order of recall or rescind of amalgamation order passed by the 2nd respondent should be strictly in consonance with law on the subject. In the case on hand, the 2nd - 18 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 respondent has contended that the appellant has violated condition No.3 of the amalgamation order dated 16.05.2022. Hence, the order of amalgamation was cancelled. Condition No.3 of the amalgamation order dated 16.05.2022 reads as under: “3) The sanction to the Amalgamation accorded by the authority shall be deemed to be invalid if an information furnished by the applicant are found to be incorrect and false.” 16. The aforesaid condition indicates that the amalgamation order shall be deemed to be invalid, if an information furnished by the applicants are found to be ‘incorrect’ or ‘false’. It is not the case of the 2nd respondent that the applicant has furnished any incorrect or false information while obtaining the order of amalgamation. The impugned order at Annexure-S dated 09.07.2024 indicates that the 4th respondent has filed the objections contending that the vendor of the appellant did not have a valid title and based on such an objection, the 2nd respondent has withdrawn the amalgamation order - 19 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 dated 16.05.2022. In our considered view, the action of the 2nd respondent is arbitrary, illegal and without application of mind. The issue with regard to the alleged cloud over the title of the appellant is admittedly pending before the competent Civil Court and no adjudication has taken place till date and also there is no interim order operating against the appellant or over the suit schedule property. Hence, passing of the impugned order dated 09.07.2024 by the 2nd respondent is illegal and required to be set aside. Having come to the conclusion that the order passed by the 2nd respondent dated 09.07.2024 at Annexure-S is illegal and passed contrary to law. The impugned orders dated 27.10.2023 at Annexure-M, 31.10.2023 at Annexure-N and order dated 21.11.2023 at Annexure-P passed by the 2nd and 3rd respondents are required to be set aside. 17. Insofar as the contention of the 2nd respondent that there is a violation of clause-3 of the amalgamation order dated 16.05.2022 is concerned, the same has no - 20 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 merit. Clause-3 of the amalgamation order clearly states that the amalgamation order is deemed to be invalid, if the information furnished by the appellant is incorrect and false. In the case on hand, the 2nd respondent in its order dated 09.07.2024 at Annexure-S do not state that the information furnished by the appellant is incorrect or false. The impugned order only indicates that the appellant’s vendor did not have a title over the property. Hence, there is a dispute with regard to the title. The finding of the 2nd respondent with regard to the title based only on the objection of the 4th respondent is beyond his jurisdiction, specifically during the pendency of two suits filed by the 4th respondent. 18. The contention of the 4th respondent with regard to the dispute over the title of the appellant over those properties and right of the 4th respondent with regard to ingress and aggress, is pending adjudication before the competent Civil Courts in the two suits referred supra. Hence, giving any finding with regard to the title of - 21 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 the appellant and right of ingress and egress of the 4th respondent by the 2nd and 3rd respondents - authority or by this Court would be pre-judging the issue pending before the competent Civil Court. Hence, there is no merit in the contentions urged by the contesting respondents and accordingly, they are rejected. 19. It is made clear that the observations made by this Court supra are only with regard to the adjudication of the lis involved in these proceedings and it has no bearing whatsoever on the pending proceedings before the Civil Court. 20. For the aforementioned reasons, we proceed to pass the following: ORDER i) W.A.No.200152/2024 and W.A.No.200312/2024 are allowed. ii) Order of the learned Single Judge dated 29.05.2024 passed in W.P.No.200581/2024 is - 22 - WA NO.200152 OF 2024 C/W WA NO.200312 OF 2024 modified to the aforesaid extent and order dated 04.09.2024 passed in W.P.No.201847/2024 is set aside. iii) Impugned orders dated 09.07.2024 at Annexure-S, 27.10.2023 at Annexure-M, 31.10.2023 at Annexure-N and 21.11.2023 at Annexure-P passed by the 2nd and 3rd respondents are quashed. iv) No orders to cost. Sd/- (K NATARAJAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE MCR CT: PS