- (1.) SINCE common questions of fact and that of law arise for decision making, with the consent of the learned Counsel for the parties, the petitions are clubbed, finally heard and are disposed of by this common order.
(2.) THE parties to the petitions and the facts, except the reliefs, are common. A) In Writ Petition No. 18272 of 2005 the petitioners seek a direction to: a) implement the orders dated 31. 8. 1995 Annexure-G and 18. 12. 2005 Annexure-H; b) produce the file pertaining to the legal opinion over the unauthorised occupation of the petition schedule premises by the 3rd respondent; c) act on the petitioners' representations dated 4. 1. 1999 and 3. 7. 2001 Annexures-K and L and issue a, Government order; d) direct the 1st respondent to register the katha of the petition schedule premises in the name of the petitioners; and e) All such other reliefs. B) In Writ Petition No. 24104 of 2005 the petitioners seek a writ of mandamus to the 2nd respondent - Bangalore mahanagara Palike to demolish the unauthorised construction and to hand over vacant possession of the land.
(3.) FACTS in brief: (a) The petitioners claim to be the widow and children, respectively, of H. Bhavarlal since deceased on 12. 6. 1987, constituting a joint hindu undivided family, and having inherited the immovable property bearing no. 18, Annipura Village, bearing CTS No. 1076, for short, the petition schedule premises, acquired by the deceased during his lifetime, under 10 separate deeds of conveyance, executed by the title holders during the period 1946 - 63, filed Writ Petition No. 1689 of 1988, which was allowed by order dated 31. 10. 1990 Annexure-A directing the Corporation of the city of Bangalore to consider the petitioners' representations for transfer of katha of the petition schedule premises. (b) The Karnataka Slum Clearance Board acting under Section 17 of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973, for short 'slum Clearance Act', issued a Notification dated 9. 12. 1977 declaring the petition schedule premises as a slum area, which when called in question in Writ Petition No. 6455 of 1980 by late H. Bhavarlal was disposed of holding that the petitioner had reason to be aggrieved and permitted him to file objections to the notification (as disclosed in Annexure-D ). The authorities under the Slum Clearance Act rejected the objections issued the Notification dated 22 /24th June, 1985 to acquire the petition schedule premises, which when called in question in Writ Petition No. 11329 of 1985, this Court by an interim order dated 24. 7. 1985 Annexure-B restrained the Karnataka Slum Clearance Board from disturbing the petitioners peaceful possession of the petition schedule premises. On the death of H. Bhavarlal the petitioners came on record in Writ Petition 11329 of 1985 and filed a memo seeking leave of the Court to withdraw the writ petition which was ordered accordingly and simultaneously on 5. 9. 1991 preferred an appeal before the State of Karnataka, Department of Housing-2nd respondent, invoking Section 59 of the Slum Clearance Act calling in question the Notification dated 22/24. 6. 1985, which when allowed by order dated 9. 10. 1994 Annexure-D, the Notification was cancelled. The hopcoms-Respondent No. 3 a party to the appeal proceedings, on being heard, the Appellate Authority recorded a finding that the petitioners' claim was genuine and that the action of HOPCOM in occupying the petition schedule premises was condemnable. Pursuant thereto the State issued a notification dated 15. 10. 1992 Annexure-E cancelling the Notifications dated 12. 7. 1977 and 22/24/06. 1985, declaring the slum area and the acquisition, respectively. (c) Dargah Hazarath Attaulla Shah, the respondent No. 6, staked a claim to the ownership of the petition schedule property by filing an appeal before the Commissioner for Religious and Charitable Endowments in karnataka which when dismissed by Order dated 5. 12. 1977 annexure-E1, the 2nd appeal under Section 38 (2) of the Mysore Religious and charitable Institutions Regulations, to the Mysore Revenue Appellate tribunal, Bangalore, was also dismissed by Order dated 16. 9. 1960 annexure-E2. It is the assertion of the petitioners that the final Quit Rent register Annexure-E3 recorded that Old No. 24, New No. 18 was private land belonging to Garudachar, the Inamdar, the petitioner's vendor in title. (d) It is the further assertion of the petitioner that the 3rd respondent- HOPCOM, having dumped fruits and vegetables in the petition schedule premises was the cause for instituting O. S. No. 945 of 1986 by late H. Bhavarlal, for bare injunction, whence the Civil Court by Order dated 7. 3. 1986 granted an ex-parte temporary injunction, which when sought to be vacated on an LA. filed by HOPCOM, was rejected. That suit, it is stated, was dismissed for non-prosecution on 28. 11. 1992 though H. Bhavarlal died on 12. 6. 1987 and his legal heirs-the petitioners herein, did not come on record. (e) The 3rd respondent - HOPCOM's representation dated 8. 2. 1993 to the 2nd respondent-State, represented by Department of Housing, for an order of grant of the petition schedule premises, in its unauthorised occupation, was rejected by Order dated 31. 8. 1995 Annexure-G, with a direction to HOPCOMs to handover possession of the petition schedule premises to the petitioners as it was private property and not Government land. The 3rd respondent acquiesced in the Order Annexure-G, but addressed a letter to the 2nd respondent stating that there was a serious dispute over the title to the petition schedule premises and hence the representations of the petitioners and the Wakf Board should not be considered. The 2nd respondent while rejecting the representation by order dated 18. 12. 1985 Annexure-H, reiterated that the land being under private ownership cannot be granted to the 3rd respondent. (f) At the instance of the 3rd respondent-HOPCOM disputing the ownership and identity of the petition schedule premise as claimed by the petitioners, lead to a survey of the petition schedule premises by the assistant Director of Land Records followed by a report, Annexure-J stating that on verification, both from" the records and a physical measurement, revealed that the 3rd respondent was in occupation of the petition schedule premises in Sy. No. 18 of Annipura Village bearing CTS No. 1076 belonging to the petitioners. The Special Deputy Commissioner of Bangalore District by endorsement dated 11. 8. 2003 Annexure-J1 while concurring with the views of the Assistant Director of Land Records, in great elaboration, making reference to the revenue records traced the title of the petition schedule premises to Garudachar, the Inamdar. The Enquiry Officer of the City Survey Bangalore, conducted an independent survey and by Order dated 30. 9. 2003 Annexure-K held, that the land in occupation of the 3rd respondent was in Sy. No. 18 of Annipura Village, bearing GTS No. 1076. (g) The petitioners' by representation dated 24. 11. 1999 to the 2nd respondent seeking intervention in the matter since the 3rd respondent being a creature of the State Government, a Co-operative Society, financially administered, dominated by and under the control of the department of Horticulture, State of Karnataka, being pervasive and discharging public functions, sought compliance of the orders annexures-G and H. According to the petitioners, that representation on reference to the Law Department, opined that the petitioners were the lawful owners of the petition schedule premises of which the 3rd respondent was in unauthorised occupation, without authority of law and nevertheless took no action. (h) The Enquiry Officer of the City Survey Department, after an enquiry issued a Chalta No. for the petition schedule premises, entered the names of the petitioners in the Enquiry Register Annexure-M, during the year 1994, which when challenged by the 3rd respondent in a Revision petition before the Assistant Director of Land Records, Bangalore Division, was dismissed by order Annexure-N. The 3rd respondent carried the said order in Appeal No. 266 of 2004 before the Karnataka Appellate Tribunal, bangalore and obtained an interim order of status-quo. (i) The petitioners representation dated 3. 7. 2001 Annexure-Q when received no response by the State Government impelled the petitioners to file Writ Petition No. 18272 of 2005. ;