- 1 - NC: 2025:KHC:2801 WP No. 6848 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 6848 OF 2022 (GM-RES) BETWEEN 1. GH NOOR JAN W/O LATE F MOHAMMED GHOUSE AGED ABOUT 71 YEARS R/AT NEAR BG PALYA CIRCLE, 6TH PH COLONY TUMKUR 57101 2. SHAHEENA BEGUM D/O LATE F MOHAMMED GHOUSE AGED ABOUT 53 YEARS 3. M.G. BHUTTO S/O LATE F MOHAMMED GHOUSE AGED ABOUT 48 YEARS BOTH ARE R/AT 1ST CROSS DEVARAJ URS ROAD, SARASVATHI PURAM TUMKUR 572105 ...PETITIONERS (BY SRI. SUNIL S. RAO., ADVOCATE) AND 1. SECRETARY DEPARTMENT OF URBAN DEVELOPMENT STATE OF KARNATAKA VIDHAN SOUDHA BANGALORE-560001. 2. THE CHAIRMAN TUMKUR URBAN DEVELOPMENT AUTHORITY BELAGUMBA ROAD, TUMKUR CITY 572113 ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC:2801 WP No. 6848 of 2022 3. THE COMMISSIONER TUMKUR URBAN DEVELOPMENT AUTHORITY BELAGUMBA ROAD, TUMKUR CITY 572113 …RESPONDENTS (BY SRI. MAHANTSH SHETTAR., AGA FOR R1; SRI. T.P. VIVEKANANDA., ADVOCATE FOR R2 & R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF MANDAMUS DIRECTING THE R-1, 2 AND 3 TO PAY THE APPROPRIATE COMPENSATION TO THE PETITIONERS WHO ARE LEGAL HEIRS OF THE F MOHAMMED GHOUSE, IN CONNECTION TO THE SCHEDULE PROPERTIES WHICH THE R-2 AND 3 HAVE ILLEGALLY ENCROACHED AND THE SAME FACT IS ESTABLISHED IN O.S.NO.189/2002 ORDER DTD 30.05.2005, PASSED BY THE 3RD ADDL. CITY CIVIL JUDGE (JD) AND JMFC AT TUMKUR, WHICH IS CONFIRMED IN R.A.NO.201/2008 ORDER DTD 12.09.2008, PASSED BY THE COURT OF PRESIDING OFFICER FAST TRACK NO.V AT TUMKUR AND THE SAME IS PRESENTED VIDE ANNX-F AND G RESPECTIVELY AND ETC. THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 20.12.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: ORDER 1. The Petitioners are before this Court seeking for the following reliefs: a. Issue a writ of Mandamus directing the respondent No.1, 2 and 3 to pay the appropriate compensation to the petitioners who are legal heirs of the F Mohammed Ghouse, in connection to the schedule properties which the respondents 2 and 3 have illegally encroached and the same fact is established in O.S.No.189/2002 order dated 30.05.2005, passed by the 3rd Addl. City Civil Judge (JD) and JMFC at - 3 - NC: 2025:KHC:2801 WP No. 6848 of 2022 Tumkur, which is confirmed in R.A.No.201/2008 order dated 12.09.2008, passed by the Court of Presiding officer fast tract No. V at Tumkur, and the same is presented as Annexure-F and G respectively and/or. b. Such other direction or orders as this Hon’ble Authority deem fit under the facts and circumstances of the case including award for costs be passed in the interest of justice. 2. The petitioners claim that one F.Mohammed Ghouse who is husband of petitioner No.1 and father of petitioners No.2 and 3 was the absolute owner of the property bearing Sy.No.41/1 measuring 2 acres and 32 guntas of land of Maralur Village, Tumkur Taluk, Tumkur. The said land was got converted for non- agriculture purposes on 19.06.1992 and in the year 1993 the Tumkur Urban Development Authority (TUDA) had granted sanction for the purpose of formation of a layout. It is alleged that the said TUDA had encroached on a 40 x 400 feet land totally measuring 16,000 square feet without any acquisition and without making payment of compensation. - 4 - NC: 2025:KHC:2801 WP No. 6848 of 2022 3. Subsequently, though a portion of the land measuring 35 x 200 feet totally 7,000 square feet was acquired for laying High-tension wire and pole, compensation has not been paid by TUDA. 4. The background facts are that the said F.Mohammed Ghouse had approached TUDA for permission of formation of layout on the property which came to be approved on 5.12.1994. Wherein 8,000 square feet of land was demarcated for High-tension electric wire and the said F.Mohammed Ghouse executed a relinquishment deed in favor of TUDA on 23.11.1994, relinquishing three portions of land the first portion measuring 10,370 square feet, second measuring 12,180 square feet and third measuring 7,667 square feet, and a modified sanction plan came to be issued on 13.08.1997. 5. It is alleged that, the TUDA has encroached on the land of the petitioner and formed roads therein and it is in that background that F.Mohammed Ghouse had got issued a legal notice on 11.01.2002, demanding - 5 - NC: 2025:KHC:2801 WP No. 6848 of 2022 compensation for such illegally encroached road. When no action was taken, the said F.Mohammed Ghouse filed a suit in OS No.189 of 2002, wherein a declaration was sought for that the land had been illegally acquired without paying any legal compensation. In the said suit, the trial Court vide its judgment dated 30.05.2006 partly decreed the suit, declaring that he was entitled for compensation for encroached area, granting liberty to him to agitate before the proper forum for the compensation by paying necessary and proper Court fee and the claim for permanent injunction restraining interference with the alleged possession was dismissed. 6. TUDA filed a Regular Appeal in RA No.201 of 2008, which came to be disposed vide its judgment dated 12.09.2008 dismissing the appeal. 7. Thereafter, F.Mohammed Ghouse sent various representations to the respondents to make payment of compensation. Since no action was taken, the - 6 - NC: 2025:KHC:2801 WP No. 6848 of 2022 petitioners are before this Court, seeking for the aforesaid reliefs. 8. Sri.Sunil S.Rao., learned counsel appearing for the petitioners would submit that; 8.1. On the land belonging to F.Mohammed Ghouse and now belonging to the petitioners, the TUDA has formed roads without making payment of any compensation which is completely illegal. A decree having been passed in OS No.189 of 2002 and the appeal filed thereto having been dismissed, it is proper for this Court to direct the TUDA to make payment of appropriate compensation as regards the illegally encroached land, since there is no formal order of acquisition which has been made. 8.2. His submission is that there is no authority on part of the TUDA to form such road in the property of F.Mohammed Ghouse and the formation of the road in the property of - 7 - NC: 2025:KHC:2801 WP No. 6848 of 2022 F. Mohammed Ghouse without acquisition is bad in law. 9. Sri.T.P.Vivekananda., learned counsel appearing for the TUDA-Respondents No.2 and 3 would submit that; 9.1. The petitioners are not entitled for any of the reliefs sought for in the petition. The said F. Mohammed Ghouse at the time of approval of the plan sanction had executed two relinquishment/gift deeds dated 18.11.1994 and 23.11.1994. 9.2. The deed dated 18.11.1994 was as regards the roads and deed dated 23.11.1994 is as regards civic amenity and buffer area for the high- tension wires. The entire land measuring 2.75 acres, 1.18 acres has been used for residential purposes, 0.05 acres has been used for commercial purposes, 0.69 acres has been relinquished for park and civic amenities, 0.85 acres has been relinquished for the purpose of - 8 - NC: 2025:KHC:2801 WP No. 6848 of 2022 road. Apart from aforesaid land, there is no other land. 9.3. The parks and civic amenity and road portion have been relinquished. Roads have been formed in the area relinquished for the purpose of a road. There is no encroachment by the TUDA over any portion of the land of the petitioner. Hence, the question of making payment of any compensation would not arise as regards the land which has been relinquished. 9.4. In this regard he relies upon and refers to the copies of the relinquishment deeds which have been produced and the plan sanction which has been granted. On that basis, he submits that the above petition is required to be dismissed by imposing exemplary and punitive cost since the petition is a completely malafide and an abuse of the process of Court. - 9 - NC: 2025:KHC:2801 WP No. 6848 of 2022 10. Heard Sri.Sunil S.Rao., learned counsel for the petitioners, Sri.T.P.Vivekananda., learned counsel for Respondents No.2 and 3 and Sri.Mahantesh Shettar., learned counsel appearing for Respondent No.1 and perused papers. 11. The short question that would arise in the present matter is; “Is any encroachment by the TUDA of any land belonging to the petitioners and consequently if any compensation is required to be paid”. 12. It is not in dispute that the total land measures 2.75 acres which came to be converted for non-agriculture purposes and F.Mohammed Ghouse has approached the TUDA for plan sanction which came to be sanctioned in his favour on 10.12.1993 in terms of Annexure-R1. There is a land use analysis which has been appended to the said plan sanction which is extracted herein below; LAND USE ANALYSIS USES AREA IN ACRE % - 10 - NC: 2025:KHC:2801 WP No. 6848 of 2022 Residential 01.18 A 42.90 Commercial 00.05 A 01.82 Open and CA 00.69 A 25.09 Roads 00.83 A 30.19 Total 02.75 A 100.00% 13. The open areas and civic amenities have been clearly demarcated in the said plan sanction which includes the buffer for the High-tension line which is required to be maintained as per the opposite law. It is not that the buffer is over and above the open areas and civic amenities. The said buffer is part of the open area and civic amenities. The buffer being required to be maintained insofar as the High-tension line is concerned. If at all the petitioners have any grievance as regards the high-tension line, the same is required to be taken up with the concerned authorities and not with TUDA. 14. A perusal of the above table would also indicate that 0.83 acres has been relinquished for the road portion, and that has also been clearly demarcated in the plan sanction. When F.Mohammed Ghouse has - 11 - NC: 2025:KHC:2801 WP No. 6848 of 2022 relinquished both the open areas and civic amenities and road portion i.e., 0.69 + 0.83 acres totally amounting to 1.52 acres. The question of F.Mohammed Ghouse claiming that there is any encroachment and consequently the petitioners claiming any encroachment by formation of the road would not arise. 15. An extent of 25.09% has been relinquished for open areas and civic amenities and an extent of 30.19% has been relinquished for the purpose of road and the petitioner has got the benefit of forming residential plots to an extent of 1.18 acres which is 42.90% of the total land. Without relinquishment of open areas and civic amenities as also roads, there would have been no plan which would have been granted/sanctioned. The roads being required to access the plots which have been formed in the said layout. 16. In that view of the matter, I am of the considered opinion that the claim made by Mohammad Ghouse - 12 - NC: 2025:KHC:2801 WP No. 6848 of 2022 and later on by the petitioners herein that their land has been unauthorizedly encroached without acquisition and a road is formed thereon is a completely malafide statement. 17. In that view of the matter, I am of the considered opinion that the above writ petition is an abuse of the process of Court and the petitioners have made use of the legal processes to file unnecessary and unwanted litigations by making false claims and this litigation has been going on from 2002. When the first suit in OS No.189 of 2002 had been filed and has been continued by the present petitioners which is filed in the year 2022. Thus, for the last nearly quarter of a century, the petitioners have made false claims against the TUDA, when no such claim could have been made. 18. In that view of the matter, I pass the following; ORDER i. The Writ petition is dismissed. - 13 - NC: 2025:KHC:2801 WP No. 6848 of 2022 ii. The petitioners are directed to make payment of cost of Rs.50,000/- to the Karnataka State Legal Service Authority (KSLSA) within a period of four weeks from today. If the same is not paid by 28.2.2025 the KSLSA would be entitled to recover the cost as arrears of land revenue. Sd/- (SURAJ GOVINDARAJ) JUDGE SR List No.: 19 Sl No.: 2