Karnataka High Court
Golf Links Software Park Pvt Ltd vs Bruhat Bangalore Mahanagara Palike on 28 October, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.52618 OF 2014 (LB - BMP)
BETWEEN:
GOLF LINKS SOFTWARE PARK PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT:
NO.16, ST. MARK'S ROAD
BENGALURU - 560 001
HEREIN REPRESENTED BY ITS
AUTHORISED SIGNATORY
MR. RAJAN G. VISWANATHAN.
... PETITIONER
(BY SRI SRINIVASAN RAGHAVAN V., SR.ADVOCATE A/W
SMT.MANEESHA KONGOVI, ADVOCATE)
AND:
1. BRUHAT BANGALORE MAHANAGARA PALIKE
HUDSON CIRCLE
N.R.SQUARE
BENGALURU - 560 002
REPRESENTED BY ITS
COMMISSIONER.
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2. JOINT COMMISSIONER (EAST ZONE)
BRUHAT BANGALORE MAHANAGARA PALIKE
HAVING ITS OFFICE AT:
MAYOHALL
BENGALURU - 560 001.
3. DEPUTY COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
MAHADEVAPURA
WHITEFIELD MAIN ROAD
BENGALURU - 560 048.
4. REVENUE OFFICER
BRUHAT BANGALORE MAHANAGARA PALIKE
MAHADEVAPURA
WHITEFIELD MAIN ROAD
BENGALURU - 560 048.
5. EXECUTIVE ENGINEER
BBMP
MAHADEVAPURA DIVISION
WHITEFIELD MAIN ROAD
BENGALURU - 560 048.
6. COL. "Q" HQ KARNATAKA AND
KERALA SUB-AREA
CUBBON ROAD
BENGALURU - 560 001.
7. MR.S.S.TINAIKAR BRIGADIER
AGED ABOUT 52 YEARS
ESTATE OFFICER
OFFICE OF THE ESTATE OFFICER
ARMY STATION HQ KARNATAKA AND KERALA
CUBBON ROAD
BENGALURU - 560 001.
3
8. COMMANDANT
ASC CENTRE AND COLLEGE
OLD AIRPORT ROAD
BENGALURU - 560 017.
9. COL. ADMINISTRATION
ARMY SERVICE CORPS
ASC CENTRE AND COLLEGE
OLD AIRPORT ROAD
BENGALURU- 560 017.
... RESPONDENTS
(BY SRI H.DEVENDRAPPA, ADVOCATE FOR R-1 TO R-5;
SRI K.ARVIND KAMATH, ADDL.SOLICITOR GENERAL A/W
SRI H.SHANTHI BHUSHAN, DSGI, FOR R-6 TO R-9)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
R-1 TO 5 TO COMPLETE THE FORMATION OF THE ROAD IN SURVEY
NO. 282 MEASURING 1151 METERS [3776 FEET] IN LENGTH BY 40
FEET WIDE AS SHOWN IN THE SURVEY SKETCH AT ANN-FFF AND
ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT MADE THE FOLLOWING:-
4
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/Golf Links Software Park Private Limited is
knocking at the doors of this Court calling in question a notice dated
13-10-2014 issued by respondent No.7 under Section 4 of the
Public Premises (Eviction of Unauthorised Occupation) Act, 1971 by
which the petitioner is directed to vacate a particular portion of
property and has sought certain consequential directions.
2. Heard Sri V. Srinivasan Raghavan, learned senior counsel
appearing for the petitioner; Sri H. Devendrappa, learned counsel
appearing for respondents 1 to 5 and Sri K. Arvind Kamath, learned
Additional Solicitor General along with Sri H Shanthi Bhushan,
learned Deputy Solicitor General of India appearing for respondents
6 to 9.
3. Facts, in brief, germane are as follows:-
5
On 02-04-1997 lands in Sy.No.2/2 measuring 2 acres and 17
guntas; Sy.No.2/1 measuring 1 acre and 12 guntas and Sy.No. 2/4
measuring 1 acre and 11 guntas situated in Challaghatta Village,
Varthur Hobli, Bengaluru East Taluk gets converted from agriculture
to residential purposes. Likewise, land in Sy.No.2/4 measuring 1
acre 10 guntas and in Sy.No.2/1 measuring 16 guntas got
converted from agriculture to residential purpose vide orders dated
30-06-1998 and 19-06-2001. On purchase of the said property by
the petitioner on 02-08-1998 the petitioner gets change of land use
under the statute - usage of land from residential to commercial
purpose for the purpose of establishment of software technology
park. The petitioner then applies for sanction of a building plan. On
the building plan getting sanctioned, all other approvals are taken
by the petitioner. The building gets constructed and on production
of documents an occupancy certificate comes to be issued by the
City Municipal Council, Mahadevapura. The petitioner, on
06-06-2006, applies for modification of the plan from ground plus
three floors to ground plus five floors to the statutory authorities
which also gets sanctioned. After completion of the construction in
6
its entirety, the Bangalore Development Authority ('BDA' for short)
issues occupancy certificate.
4. After the construction, the problem begins. The petitioner
is also said to have purchased some extent of lands in Sy.Nos.7/1,
7/2, 7/3 and 7/4 and in Sy.Nos.8/2A, 8/2B, 8/3, 8/4 and also in
Sy.No.9 on different dates. On 25-09-2006 the Board of Officers in
the Defence Estate draw up certain proceedings, confirmed the
extent and details of defence land involved in Sy.No.8/4, that the
survey sketch drawn had been correctly verified in consultation with
the Defence Estate Office. On 07-12-2006 the Board of Officers
again confirmed that they have inspected the land which is to be
handed over to CMC, Mahadevapura for construction of approach
road in Challaghatta Village. After all these, the occupancy
certificate is granted to the petitioner in respect of certain lands.
When things stood thus, on 13-10-2014 a notice comes to be
issued by respondents 6 to 9, the officers of the Defence Estate
Office invoking the provisions of the Public Premises (Eviction of
Unauthorised Occupation) Act, 1971 claiming that the petitioner
had encroached certain lands belonging to the Army Services Corps
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('ASC') Centre. It is the averment in the petition that copy of the
notice was not served upon the petitioner, but appeared
everywhere in the newspaper that the petitioner had encroached
upon the property belonging to the defence. It is then, the
petitioner seeks a copy and challenges the said notice so issued to
the petitioner seeking eviction under the Public Premises (Eviction
of Unauthorised Occupation) Act, 1971.
5. The learned counsel appearing for the petitioner would
vehemently contend that it is not in the year 2014 but in the year
2006 itself, the Officers of the Defence Estate Office of the ASC
Centre had confirmed that the land in which software park was
coming up had nothing to do with the defence land or lands
belonging to ASC Centre including the access to the road. These
proceedings were drawn on 25-09-2006 and 07-12-2006. He would
submit that notwithstanding these proceedings, the notice of
eviction comes to be issued which is without jurisdiction. He would
also submit that this Court in terms of its proceedings had directed
a survey to be conducted. The survey that was conducted was in
the presence of the Defence Estate Officer which clearly holds that
8
there was no encroachment by the petitioner of any land belonging
to the defence. He would, therefore, submit that this is an open and
shut case where the notice is issued without any jurisdiction.
6. Per contra, the learned Additional Solicitor General Sri K.
Arvind Kamath representing the respondents 6 to 9 would seek to
dispute the survey conducted in the presence of Defence Estate
Officer contending that the Officer had no authority to participate in
the proceedings and, therefore, the survey should not be taken
note of and respondents 6 to 9 should be permitted to take the
notice dated 13-10-2014 to its logical conclusion. He would submit
that what is challenged is a notice and what is sought for is
assistance for survey of the road that has become the bone of
contention. It is his submission that the Defence will re-conduct
survey and pass necessary orders in accordance with law. It is
submitted that the petition preferred is premature as no order is
passed in furtherance of the notice so issued on 13-10-2014.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and perused the material
on record.
9
8. The afore-narrated facts though not in dispute would
require a little elaboration. The story would commence from the
petitioner purchasing the lands which were already converted from
agriculture to non-agricultural purposes/residential purposes and
land use was changed from residential to commercial purpose in
Sy.Nos. 2/1, 2/2, 2/3, 2/4, 4 and 5/1 totally measuring 10 acres
and 12 guntas pursuant to a sale deed dated 31-05-2004. The
building plan was obtained and later occupancy certificate was also
obtained on 01-02-2006. Copies of occupancy certificates are
appended to the petition and noticing them would not be necessary.
The software park that the petitioner had constructed abuts the
land of ASC Centre of the Defence. Therefore, the Defence Estate
Officers prior to issuance of occupancy certificate drew certain
proceedings. The proceedings are as follows:
"In Lieu of IAFS-931
Proceedings of a : Station Board of Officers,
Assembled at : Military Farm Bangalore-92
on the day of : 25 Sep 2006 and subsequent dates
By order of : HQ K & K Sub-Area letter
No.16600/gen/11/Q3L dated 03 Aug. 2006.
For the purposes of: To earmark minimum essential area
along with periphery of Defence land
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in Sy.No.282 of Bangalore Kasaba,
Bangalore towards Challagatta Village
construction of 40 (forty) feet wide
road by the State Government of
Karnataka under the supervision of
CMC Mahadevapura, Bangalore North.
Presiding Officer: V-462 M Lt. Col. DS Duhan, VO MF,
Bangalore.
Member: 1. WS-00159L Maj Urmila Nair
ASC Centre & College, Bangalore.
2. Sri Ramesh Kumar Gadroo, SDO-II,
Rep. DEO, Bangalore.
3. Shri V.Kattamani, AE(Civ) AGE R/R-I,
Rep. GE (Central) Bangalore.
4. Sri MA Baig, Commissioner,
CMC, Mahadevapura, Bangalore.
1. The Board having assembled pursuant to earmark
minimum essential area along with the periphery of defence
land in Sy.No.282 at Bangalore Kasaba, Bangalore towards
Challagatta Village for construction of 40 (forty) feet wide road
by the State Government of Karnataka under the supervision of
CMC Mahadevapura, Bangalore North.
2. The Board having gone through the following
aspects as mentioned in the HQ K & K Sub-Area
convening order No.16600/gen/11/Q3L dated 3 Aug.
2006:-
(a) The extent and details of defence land involved
within the Sy.No. have been correctly verified and
recorded in consultation with the DEO, Bangalore.
(b) Legal formalities and documentation required have
been carried out and completed.
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(c) The Board has worked out the terms and conditions
with the DEO, Bangalore and HQ K&K Sub-Area,
Bangalore.
(d) A Draft Memorandum of understanding (MoU) has
been prepared in consultation with the DEO
Bangalore and enclosed as Annexure-C together
with revenue report prepared by CMC
Mahadevapura, Bangalore North as Annexure-B and
Sketch of proposed roads Annexure-A.
(e) The defence land will continue to be on the chare of
Army, Only road will be constructed by the State
Government.
Presiding Officer: V-462 M Lt.Col.DS Duhan, VO MF,
Bangalore.
Member: sd/-
1. WS-001591 Maj Urmila Nair ASC Centre & College,
Bangalore.
2. Shri Ramesh Kumar Gadroo, SDO-II, DEO,
Bangalore.
3. Shri V.Kattamani, AE(Civ)AGE B/R-I, GE (Central)
Bangalore.
4. Shri MA Baigh, Commissioner, CMC, Mahadevapura,
Bangalore. "
(Emphasis added)
A perusal at the proceedings would indicate participation of all the
officers of Defence Estate/ASC. The reason for the proceedings was
to earmark minimum essential area along with periphery of defence
land in Sy.No.282 which abuts the aforesaid land of the petitioner.
Later comes about a memorandum of understanding between the
12
Commissioner, CMC, Mahadevapura and the Defence Estate Office.
The memorandum of understanding is as follows:
"MEMORANDUM OF UNDERSTANDING
Memorandum of Understanding made this 7th day of
December Two Thousand Six (07-12-2006) of Bangalore
between the Col. 'Q' HQ K & K Sub-Area, Bangalore 560 001,
hereinafter called the party of the FIRST PART (which term will
include his successors in the office) AND the Commissioner,
CMC, Mahadevapura, Bangalore-560 048 hereinafter called the
Party of the SECOND PART (which term include his successors)
2. Whereas the party of the Second Part is desirous of
constructing a road on a periphery of defence land comprising
Sy.No.282 (Part), situated at Challagatta Village, Kasaba Hobli,
Bangalore for shorter access to ring road and whereas the party
of the First Part is willing to acceded to the request of the
villagers by Challagatta to permit them to use the Defence land
for the said purpose on the terms and conditions herein
contained as per Govt. of India, Ministry of Defence sanction
No.13020/2004/D (Lands) dated 16-04-2004 and even No.
dated 22-09-2006.
3. Now therefore it is hereby mutually agreed:
(a) permission is granted to CMC, Mahadevapura,
Bangalore 560048, Government of Karnataka for the
purpose of formation of road through Defence land at
village Challagatta for shorter access to ring road only.
(b) The land will be used by the Villagers of
Challagatta.
(c) No other construction on the land will be
allowed. CMC, Mahadevarpura is permitted to use the said
land and for shorter access to ring road subject to the
fulfilment of the following conditions:-
13
(i) The land shall continue to vest with the Army
and its management will also remain with Army.
(ii) The cost of the road work will be borne by the
State Government/villagers themselves (the road work to
be undertaken with the supervision of the CMC,
Mahadevapura, Bangalore North.)
(iii) Construction of road will be land in a manner
not disturbing pipeline/electric wires/cable wires etc.
These lines will be relocated by the CMC, Mahadevapura
at their expenses as desired by the party of the First Part.
(iv) Trees standing on the land if any will be
disposed off by the office of the Defence Estate Officer,
Karnataka & Goa Circle under rules. Receipt so obtained
will be credited in to Account of Military Farm Bangalore.
(v) The entire work of digging, laying pipe and
relaying of road to its functional condition will be
completed by the second party within a period of 6
months.
(vi) Exercise the license hereby granted in such
manner as to do as little damage as possible to the lands
and tenements of the Licensor.
(vii) Forthwith from time to time repair and make
compensation for all the damages that may be caused by
the exercise of this work and in particular at all times
forthwith to make good any damages done to the
adjoining military land.
(viii) Keep the Licensor identified against all claims
by any person/persons in respect of damage, done by the
said work or by reason of escape water.
(ix) At any time, at the request of the First Party to
take up the whole or any part of the said road for security
reasons.
PROVIDED ALWAYS and it is hereby further agreed
by and between parties hereto:-
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(a) That the right hereby granted under the license
does not amount of an easement or inters in the land.
(b) That the land must not be used for any purpose
other than that mentioned above.
(c) The Second Party i.e., CMC, Mahadevapura shall
and will not have any rights on this road and it will
remain the property of the Government of India, Ministry
of Defence.
(d) The land in question should be kept open and
not enclosed in any way except construction of Pucca
boundary all by (8 feet high with 2 feet high wire fence
on top totally 10 feet high) 2nd Party.
(e) The road laid down will remain the property of the
Government of India in the Ministry of Defence and continue to
be on the charge of Army. However, only road will be
constructed by the CMC, Mahadevapura at their expenses.
(f) The local Military Authorities shall have the power to
restrict the traffic temporarily or permanently and to close the
road temporarily as and when they deem necessary without
assigning any reasons.
(g) Pucca boundary wall of total length 1151.0 Mtrs 8 feet
in height with barber wire security fencing of 2' height will be
constructed by the CMC, Mahadevapura before the
commencement of approach road.
4. All disputes or differences arising between the parties
hereto touching the subject matter of their respective rights and
duties under these present, except those decision specially
provided for, shall be referred for the sole arbitration of
Commander, HQ K & K Sub-Area, Bangalore or by any officer so
detailed for this purpose by the said Sub-Area Commander
whose decision thereon shall be final and binding on both the
parties."
(Emphasis added)
15
After this, construction of 40 feet road comes about. The
memorandum of understanding for the said purpose reads as
follows:
"ADDENDUM TO THE MEMORANDUM OF UNDERSTANDING
(MOU)
This addendum to Memorandum of Understanding (MOU)
being made on 26th August Two Thousand and Eight to the
Memorandum of Understanding (MOU) concluded between
Colonel 'Q' Headquarter Karnataka and Kerala Sub-Area and the
Commissioner, BBMP, Mahadevapura, Bangalore regarding
construction of 1151.0 mtrs. Long pucca road on the periphery
of defence land comprising Survey Number 282 (Part) situated
at Challagatta Village, KasabaHobli, Bangalore and was signed
by both parties on 07 December 2006 which has been
registered in Headquarters Sub-Registrar, Jayanagar, Bangalore
in Serial No.78685/07 under R No.1260008 dated 13 Mar.2007,
certified copy attached to this addendum to MOU. In that the
Colonel 'Q', under powers rested to him by the Commander of
Karnataka and Kerala Sub-Area, has authorized the Colonel
Administration of Army Service Corps Centre & College to insert
the said addendum in the Memorandum of Understanding
(MOU) between the said parties.
2. In continuation to the above conditions of
Memorandum of Understanding this condition is also agreed to
between both the parties hereinafter will be called Colonel
Administration ASC Centre and College as First Party and
Commissioner, BBMP Mahadevapura, Bangalore as Second Party
that -
(a) The width of the road to be constructed on the periphery
of defence land in Survey number 282 (part) at Village
Challagatta, KasabaHobli, Bangalore will be 40 feet
inclusive the boundary wall.
(b) While dumping the excavated earth it will be ensured that
natural drainage of the area is not disturbed. The soil will
16
be dumped to fill up the adjacent low lying area in own
premises.
3. All disputes or differences arising between the parties,
hereto touching the subject matter of their respective rights and
duties under these present, except those decision specially
provided for shall be referred for the sole arbitration of
Commander, Headquarters Karnataka & Kerala Sub-Area,
Bangalore or by any officer so detailed for this purpose by the
said Sub-Area Commander whose decision thereon shall be final
and binding on both the parties."
When things stood thus, the Bruhat Bengaluru Mahanagara Palike
issues a notice to proceed with the work by fixing the cost at
certain amount for construction of the road. The road gets
constructed. On 13-10-2014 comes the impugned notice issued by
respondents 6 to 9, Officers of Defence Estate. The notice of
eviction reads as follows:
"FORM -A
Form of notice under sub-section (1) and clause (b)(ii) of
sub-section (2) of Section 4 of the Public Premises (Eviction of
Unauthorised Occupation) Act, 1971.
To
M/s EGL (Embassy Golf Links)
(Waswani Golf Vista ORCHID)
Mr. Muni Krishna (Chalghatta Village)-560 037.
Whereas, I, the undersigned, being satisfied of the
opinion, on the grounds specified below, that you are in
unauthorized occupation of the public premises mentioned in the
Schedule below and that you should be evicted from the said
premises.
17
GROUNDS
The land in your occupation belongs to the Defence
Department. The defence department is the absolute
owner in possession of the land which is in your
occupation. You have illegally occupied part of the
defence land without an iota of right, title or interest.
Now, therefore, in pursuance of sub-section (1) of Section
4 of the Act, I hereby call upon you to show cause on or before
the 27 Oct 2014 why such an order of eviction should not be
made.
And in pursuance of clause (b)(ii) of sub-section (2) of
Section 4, I also call upon you to appear before me in person or
through a duly authorized representative capable of answering
all material questions connected with the matter along with the
evidence which you intend to produce in support of the cause
shown, on 17 Nov 14 at Station Headquarters Cell, Karnataka
and Kerala Sub-Area, Cubbon Road, Bangalore-560 001 for
personal hearing. In case you fail to appear on the said date and
time, the case will be decided ex-parte.
SCHEDULE-I
That part of encroached defence land measuring 92
sq.mtr. under Revenue Survey No.282 of Domlur Village,
belonging to Defence Department in Bangalore North
Taluk bounded by:-
East Road
West Defence Land
North EGL(Embassy Golf Links)
South Defence land.
SCHEDULE-II
That part of encroached defence land measuring 274.869
sq.mtr. under Revenue Survey No.282 of Domlur Village,
belonging to Defence Department in Bangalore North
Taluk bounded by:-
East Road
18
West Defence Land
North EGL(Embassy Golf Links)
South Defence land.
SCHEDULE-III
That part of encroached defence land measuring
2079.796sq.mtr. under Revenue Survey No.282 of
Domlur Village, belonging to Defence Department in
Bangalore North Taluk bounded by:-
East Road
West Defence Land
North EGL(Embassy Golf Links)
South Defence land.
Date: 13 Oct 2014 Sd/- (S.S.Tinaikar)
Signature and seal of
The Estate Officer."
A copy of the aforesaid notice is said to have been served upon the
petitioner on 10-11-2014. The notice directs that the land in
occupation of the petitioner belongs to the Defence Department and
the petitioner has illegally occupied a part of the defence land.
Therefore, eviction is sought. This notice leads the petitioner to the
doors of this Court.
9. This Court, from time to time, passed certain orders and
noticing them would become necessary. The order dated
20-11-2014 reads as follows:
19
"RMRJ :
20-11-2014
ORDER
What is challenged in this petition is the notice issued under Section 4 of the Public Premises (Eviction of Unauthorised Occupation) Act, 1971 stating as a ground that the property in occupation of the petitioner is a public premises belonging to the 7th respondent.
The question posed to the Assistant Solicitor General is very simple and uncomplicated, i.e., before issuing notice under Section 4, what was the material before the Estate Officer to say that petitioner is in possession of public premises? Learned Assistant Solicitor General submits that writ petition runs into several volumes and therefore, he will have to read the entire case, secure instructions and thereafter, file statement and therefore, he needs a week's time. Learned Assistant Solicitor General is unable to answer the question of the Court because he submits that even an answer to that question requires instructions from the Estate Officer/7th respondent.
Respondents 1 to 5 to file an affidavit as to whether road has already been laid in terms of the agreement entered into with the defence authorities or if not laid, reasons as to why it is not laid and when the road would be laid, since the persons in occupation of immovable property in Chalagatta are paying taxes to the BBMP while laying of road is the duty of civic authority and if not done, are disentitled to collect taxes from those residents.
List on 27.11.2014."
(Emphasis supplied) 20 This Court directed the respondents to file an affidavit as to whether the road has already been laid in terms of the agreement entered into with the defence authorities and if not laid, reasons as to why it is not laid since taxes are paid to the BBMP. Further orders passed on 27-11-2014, 28-11-2014 and 5-12-2014 read as follows:
"RMRJ 27-11-2014 ORDER This matter was heard on the last occasion. It was at the instance of learned ASG it is listed today, whence there is submission by the proxy counsel that there is bereavement in the family of ASG.
There is non-compliance with the order dated 20.11.2014 by respondents 1 to 5. Issue Court notice to Respondents 1 to 5 calling upon them to submit their explanation for non- compliance with the order dated 20.11.2014 since it borders around contempt.
Re-list on 28.11.2014."
"RMRJ 28-11-2014 ORDER The affidavit of one M.Venkateshappa said to be the Executive Engineer states that on account of collecting necessary information and records, there was a delay in complying with the order dated 20.11.2014 and that the 21 reasons for the delay are bonafide. Taking on record the affidavit, further proceeding pursuant to the order dated 27.11.2014 dropped.
Sri B.V.Shankara Narayana Rao, learned Counsel files another affidavit dated 28.11.2014 of the Executive Engineer interalia pointing out the reasons for non compliance with the terms of MOU. In order to extend an opportunity to the defence personnel who are respondents herein to put in their say over the terms of MOU, list on 05.12.2014."
"RMRJ 05-12-2014 Heard the learned Senior Counsel for the petitioner, learned Assistant Solicitor General for the Estate Officer and the learned Counsel for the Central Government.
2. Pleadings indicate a dispute of civil nature touching upon the civil rights of the petitioner to own, possess and enjoy its immovable properties while the respondents allege that petitioner is in unauthorized occupation of public premises belonging to the defence over which the Estate Officer is authorized to initiate proceeding under the Public Premises (Eviction of Unauthorised Occupation) Act, 1971, for short 'Act' to evict the petitioner.
3. According to the petitioner, under various sale deed executed between the years 2004 to 2006, for valuable consideration immovable properties in Sy.Nos.2/2, 2/1, 2/3, 2/4, 7/1, 7/2, 7/3, 7/4, 8/1, 8/2A, /2B, 9 and 8/3 of Challaghata Village were acquired, over which buildings are constructed and hence in peaceful possession and enjoyment. The Estate Officer in the notice dated 10.11.2014 - Annexure-A issued under the 'Act' has described in the three schedules the encroached portions of the public premises, all located in Sy. No. 282 of Domlur Village, the first of which mentions the extent as 92 Sq.Mtrs. of land with boundaries, while 22 the second mentions an extent of 274.869 Sq.Mtr with identical boundaries and the third as 2079.769 Sq. Mtrs, also with the very same boundaries as are found in schedules 1 and 2. Nowhere in the notice Annexure-A there is mention of either petitioner having been put in authorized possession of public premises, which on termination is rendered unauthorized. So also there is no mention about the date of alleged possession by the petitioner of the said properties. The only ground set out in Annexure A reads thus:-
"The land in your occupation belongs to the Defence dept. The defence dept. is the absolute owner in possession of the land which is, in your occupation. You have illegally occupied part of the defence land without an iota of right, title or interest."
4. It is based upon the aforesaid ground that the notice Annexure-A calls upon the petitioner to put forth its explanation as to why it should not be evicted from the said public premises.
5. The question before Court as can be ascertained from the pleadings and the submissions of the learned Assistant Solicitor General as well as the learned Central Government counsel, requires an adjudication of the civil rights of the petitioner vis-à-vis the right of the respondents to evict the petitioner from the immovable properties described in the three schedules, as public premises.
6. Prima facie, the notice Annexure-A is in violation of the principles of natural justice, in not providing petitioner with all relevant material particulars in support of the allegation, so as to enable petitioner to either admit or deny facts. Moreover there is not an iota of material to substantiate the fact as to whether a notification is issued under the Act notifying the extent of land and its boundaries as a public premises.
7. In the circumstances, petitioner has made out a prima facie case of possession of properties for more than 9 years, and in the absence of specifies, for interim relief as prayed for.
23Respondents are reserved liberty to file their statement of objections to the writ petition. In the result there shall be an interim order as prayed for.
8. Issue rule.
Learned Central Government Counsel submits that no road can be formed until and unless the dispute between the petitioner and the defence is decided. It is not in dispute that under the memorandum of understanding Annexure-JJJ and the addendum Annexure-KKK the respondent defence establishment and the BBMP (erstwhile City Municipal Council) entered into an agreement whereunder the BBMP was to form a street on the perifery of property in Sy No.282 of Domlur village, to provide access to the residents of Challghatta subject to BBMP constructing a compound wall. In other words a condition precedent to construct the wall or thereafterwards to put up the street outside the wall. The road was meant to serve the public and not the defence as is obvious from the agreements. Therefore respondent defence establishment, cannot but concede to the formation of the road for a public purpose. If the public are not there, the defence does not exist hence proprietary demands that defence establishment must accede to its commitment. The contention that unless the dispute between the petitioner and defence establishment is finally decided, in an adjudication, no road should be formed for the public, cannot be accepted.
9. In the circumstances the respondent - BBMP and Defence Department are directed to forthwith comply with their respective obligations under the Memorandum of Understanding and Addendum vide Annexures JJJ and KKK and ensure the construction of a compound wall and the formation of the road to enable the public to make use of road as ingress and egress to and from Challaghata Village, which property falls within the territorial jurisdiction of BBMP and as the residents therein pay the taxes under the Karnataka Municipal Corporation Act, 1976 without demur. If regard is had to the provisions of the said 'Act', formation of a road and its maintenance is a statutory duty for a public purpose. Maintenance of roads and drainages, are the statutory obligations of the respondent-BBMP.
2410. Sri.B.V. Shankara Narayana Rao, learned counsel for BBMP submits that given 45 days time steps would be taken to advertise a public notice/tender notice, inviting bids for the construction of the wall and the road in terms of the agreements Annexures -'JJJ' and -'KKK'.
11. In that view of the matter, the respondent- Defence establishment to comply with its obligations under the aforesaid two agreements and ensure the construction of the public road. It is made clear that if at a later date, on an adjudication of the respective rights of the parties, petitioner is found to have encroached upon property belonging to the defence establishment, i.e., public premises, then that property would have to be redelivered to the said establishment. Hence not an impediment for the BBMP in laying the public street, for the benefit of tax payers of Challaghatta."
(Emphasis supplied) Rule was issued and the matter was admitted after grant of an interim order on 5-12-2014. The matter is now fast forwarded by 7 years. On 11-07-2022 a coordinate Bench passed the following order.
"RNJ:
11-07-2022 (VIDEO CONFERENCING/PHYSICAL HEARING) ORDER The learned Assistant Solicitor General after addressing arguments, submits that in the light of Section 146 of the Karnataka Land Revenue Act, 1964, (for short 'the Act of 1964'), steps would be taken by the Defence Estate Officer for identification of the limits of Sy. No.282 of Domlur village based on the boundary marks prescribed under the Survey of India Maps and 25 thereafter, the Deputy Commissioner would be approached for taking further steps as prescribed under sub-section (2) of Section 142 of the Act of 1964, if it is found that the petitioner is in unauthorized possession of any part of Sy. No.282 of Domlur village. He further submitted that this writ petition may be kept pending and that the respondents would revert back to this Court after the outcome of the proceedings before the Deputy Commissioner.
In view of the above and since the petitioner is protected against forcible dispossession in Writ Appeal Nos.81-84/2015, it is appropriate to permit the Defence Estate Officer to pursue the remedy available to it under Section 146 of the Act of 1964, pending disposal of this petition.
List this writ petition for Preliminary Hearing in 'B' group on 30.09.2022."
(Emphasis supplied) The Assistant Solicitor General representing the Defence submitted before the Court that steps would be taken by the Defence Estate Officer for identification of the limits in Sy.No.282 based upon the boundary marks prescribed under the survey of India map and file a report before this Court. On 17-11-2022 the following order is passed by this Court:
"MGSKJ 17-11-2022 (VIDEO CONFERENCING/PHYSICAL HEARING) 26 ORDER Learned Additional Solicitor General submits that ADLR has sought for time in compliance with the order dated 11.07.2022 as issued by this court.
2. Learned Additional Solicitor General has produced a letter dated 05.11.2022 issued by the Commandant, ASC Centre, North, which reads as; that the survey would be conducted after intimation to all the stakeholder in a week's time.
3. Submission is taken on record.
4. List this matter on 06.12.2022 for submitting survey report."
On 13-02-2023 the following order is passed:
"SGPJ 13-02-2023 (VIDEO CONFERENCING/PHYSICAL HEARING) ORDER Learned Deputy Solicitor General prays for further time to submit survey report.
Learned Deputy Solicitor General is directed to furnish details with regard to survey to be conducted to the learned High Court Government Pleader Sri.M.B.Santosh Kumar within two days.
On receipt of details, Sri.M.B.Santosh Kumar, learned High Court Government Pleader is directed to get in touch with the concerned ADLR and to see that survey is conducted expeditiously.
List after 10 days."
(Emphasis supplied) 27 On 23-02-2023 the following order is passed:
"SGPJ 23-02-2023 (VIDEO CONFERENCING/PHYSICAL HEARING) ORDER Learned counsel appearing for the parties submit that ADLR has forwarded the Joint Survey Report by RPAD which is yet to be received by the parties. Therefore, they pray for a short accommodation.
List week after next."
On 12-04-2023 the following order is passed:
"SGPJ 12-04-2023 (VIDEO CONFERENCING/PHYSICAL HEARING) ORDER Learned counsel for the petitioner is directed to hand over a copy of the memo dated 05.04.2023 along with survey report in respect of the land in Sy.No.282.
Learned Additional Government Advocate to get instructions with regard to survey in question and also to get original file relating to the survey and submit as to whether the notice of survey was issued to the concerned persons including the Defense Authorities. Learned Additional Government Advocate shall also produce Mahazar drawn on the day of survey.
List on 20.04.2023.28
Registry is directed to show the name of learned Additional Government Advocate in the cause list."
(Emphasis supplied) On 20-04-2023 the following order is passed:
"SGPJ 20-04-2023 (VIDEO CONFERENCING/PHYSICAL HEARING) ORDER This Court by order dated 12.04.2023 directed the learned Additional Government Advocate to get instructions with regard to survey as ordered by this Court and to submit as to whether the notice of survey was issued to the concerned persons including the Defense Authorities.
Learned Additional Government Advocate files memo dated 20.04.2023 enclosing four documents. Learned Additional Government Advocate would point out from the letter dated 30.12.2022 of the ASC Centre (North)-1ATC that joint survey was conducted in the presence of representatives of DEO, ASC Centre (North).
Said memo is taken on record.
Post this petition for 'Hearing' during first week of June- 2023."
(Emphasis supplied) 29 On 04-08-2023 the following order is passed:
"SSDYJ 04-08-2023 (VIDEO CONFERENCING/PHYSICAL HEARING) ORDER It is noticed that the learned Additional Government Advocate has produced the memo dated 20.04.2023 alongwith the Survey Report and letter dated 05.01.2023.
Sri Srinivas Raghavan, learned Senior Counsel appearing on behalf of the petitioner submits that the said Survey Report does not point out to any encroachment by the petitioner.
Sri H.Shanthi Bhushan, learned Deputy Solicitor General appearing on behalf of the Central Government submits that the said Survey Report was conducted without notice to them.
Without prejudice to the legal contentions advanced, it is necessary to get the stand of respondent- State by way of an Affidavit of a responsible Officer as to the procedure followed for conducting the Survey Report, a copy of which is produced alongwith the letter dated 05.01.2023. The Affidavit would also advert as to whether notice was issued to the interested parties, procedure followed while conducting the survey and the findings as could be deduced from the report, which statement must be made after getting the inputs from the Officers who conducted the survey.
List the matter on 23.08.2023 in the same stage."
(Emphasis supplied) In terms of the aforesaid orders, the survey is conducted and a memo is filed on 20-04-2023 with regard to the report of the 30 survey, along with an affidavit of responsible officer enclosing the mahazar drawn at the time of survey. The memo that is filed by the State, on conduct of joint survey, after communication to the Defence Estate Officer is as follows:
"MEMO In compliance of the order dated 12-04-2023, the undersigned producing the following documents before this Hon'ble Court:
1. The letter dated 18-04-2023.
2. Copy of notice dated 10-11-2023 with proof of service.
3. The letter dated 05-01-2023 with survey report.
4. The letter dated 30-12-2022 The same may be taken on record in the interest of justice and equity."
(Emphasis added) Annexures dated 18-04-2023, 10-11-2022 and 05-01-2023 enclosed to the aforesaid memo read as follows:
"ನಂ: ಭೂ.ಸ. / ೕ /ಇತ ೆ/479/2020-21 ಾಂಕ: 18-04-2023 ೌರ ಾ ತ ೆ .ಆ . ೌ ೆಚು ವ ಸ"ಾ# ವ$ೕಲರು ಅಡ "ೇ( ಜನರ* ರವರ ಕ+ೇ ಉಚ ಾ-.ಾಲಯದ ಕಟ2ಡ 3ೆಂಗಳ6ರು-560001.
7ಾನ- ೇ.31
8ಷಯ:- 7ಾನ- ಘನ ಉಚ - ಾ-.ಾಲಯದ ಪ<ಕರಣ ಸಂ>ೆ-: WP No: 52618/2014 ಕ?@ ಾ-.ಾಲಯದ ಆAೇಶದಂCೆ ಕ<ಮವEಸುವ ಬ ೆG. ಉHೆ@ೕಖ:- 1. ೌರ ಾ ತ ೆ .ಆ . ೌ , ೆಚು ವ ಸ"ಾ# ವ$ೕಲರವರ ಇ-Jೕ* ಸಂAೇಶ ಾಂಕ:13-04-2023.
2. ಭೂAಾಖHೆಗಳ ಸಹಯಕ Aೇ#ಶಕರು, ನಗರ7ಾಪನ ತಂಡ-2. 3ೆಂಗಳ6ರು ರವರ ಕ+ೇ ಪತ<ದ ಸಂ>ೆ-: ಭೂ.ಸ. .ನ7ಾ(2)Cಾಂ.48/ 22-23 ಾಂಕ:20- 10-2022.
3. Sri Rajesh VP. Col. So (Land & Wks) for Centre Comdt ರವರ ಪತ< ಸಂ>ೆ- : 440/CC/EGL/Q6 ಾಂಕ:30-12-2022.
4. ಈ ಕ+ೇ ಯ ಪತ< ಸಮಸಂ>ೆ- ಾಂಕ:5-01-2023.
**** JೕಲNಂಡ 8ಷಯ"ೆN ಸಂಬಂOPದಂCೆ 3ೆಂಗಳ6ರು ಉತQರ Cಾಲೂ@ಕು, ು ಕಸ3ಾ ಾ<ಮದ ಸ.ನಂ ನಂ.282 ನಂ 7ಾನ- ಘನ ಉಚ ಾ-.ಾಲಯದ ಪ<ಕರಣ ಸಂ>ೆ-:
ಸಂ>ೆ- WP No: 52618/2014 ರ ಪ<ಕರಣ"ೆN ಸಂಬಂOPದಂCೆ (3) ರ ಪತ<zÀ°è "Joint Survey by ADLR alongwith the presence of representatives of DEO, ASC Centre (North) and affected property holders was carried out on 22 Nov 22 from boundary piller No 40 to 47 B and on 28 Nov 2022 from boundary piller No 47B to 48. Final report of the joint survey is yet to be submitted by your office" JAzÀÄ 8ವ PರುವಂCೆ ಾಂಕ:22-11-2022 ಾಂಕ ಾಗೂ 28-11-2022 ರಂದು ರRSಾ ಇHಾ>ೆರವರ ಸಮRಮ ಜಂT ಆಳCೆ "ಾಯ# ವ#EP ತ.ಾ PದU ನVೆಯನುW ಉHೆ@ೕಖ(4) ಖ ರಂCೆ ರRSಾ ಇHಾ>ೆ ರವರ ಕ+ೇ ೆ ಸ?@ಸHಾXರುತQAೆ ಎಂಬ ಅಂಶವನುW ೌರವಪZವ#ಕ ಾX ತಮ[ ಅವ ಾಹ ೆ ೆ ಸ?@ಸುCಾQ, ಪ<ಕರಣ"ೆN ಸಂಬಂOPದ \ಳ]ವ^"ೆ ಪತ<.
ಪತ< \ಳ]ವ^"ೆ ಪತ< _ಾ 7ಾ ರುವ`ದ"ೆN Acknowdgement, ನVೆ ಾಗೂ ಉHೆ@ೕಖ(2),
ಖ (3)
ಮತುQ (4) ರ ಪತ<ಗಳನುW ೌರವಪZವ#ಕ ಾX ತಮ[?@ ಸ?@PAೆ.
Aೆ ತಮ[ 8 ಾ P ¸À»/-
ಭೂAಾಖHೆಗಳ ಸ ಾಯಕ Aೇ#ಶಕರು 3ೆಂಗಳ6ರು ಉತQರ Cಾಲೂ@ಕು 3ೆಂಗಳ6ರು ನಗರ aHೆ@."
(Emphasis added) 32 .... .... ....
"ನಂ: ಭೂ.ಸ. / ೕ /ಇತ ೆ/479/2020-21 ಾಂಕ: 10-11-2022 \ಳ]ವ^"ೆ ಪತ< 8ಷಯ:- 3ೆಂಗಳ6ರು ಉತQರ Cಾಲೂ@ಕು, ಕಸ3ಾ ಾ<ಮದ ಸ.ನಂ.282 ರRSಾ ಇHಾ>ೆ ೆ dೇ ದ ಜeೕ ನ ಜಂT ಅಳCೆ ಕು ತು.
ಉHೆ@ೕಖ:-1. ಘನ ಉಚ ಾ-.ಾಲಯದ ಪ<ಕರಣ ಸಂ>ೆ-:WP NO.52618/2014.
2. Sir Rajesh V.P, Col, So (Land & Wks) ASC Centre (North)- IATC ರವರ ಪತ<ದ ಸಂ>ೆ-: 4404/CC/EGL/Q6, :28-09-2022 (P ೕಕೃ\ ಾಂಕ:20-10-2022)
3. ಭೂAಾಖHೆಗಳ ಸ ಾಯಕ Aೇ#ಶಕರು, ನಗರ7ಾಪನ ತಂಡ-2. 3ೆಂಗಳ6ರು ರವರ ಪತ<ದ ಸಂ>ೆ-ಭೂ.ಸ. .ನ7ಾ(2)Cಾಂ.48/22-23. ಾಂಕ:20-10- 2022.
**** JೕಲNಂಡ 8ಷಯ ಮತುQ ಉHೆ@ೕಖಗ^ ೆ ಸಂಬಂOPದಂCೆ, ಕಸ3ಾ ೋಬ^ 3ೆಂಗಳ6ರು ಾ<ಮದ ಸ.ನಂ.282 ರRSಾ ಇHಾ>ೆ ೆ dೇ ದ ಜeೕ ನ ಜಂT ಅಳCೆ ಕು ತು ಭೂAಾಖHೆಗಳ ಸ ಾಯಕ Aೇ#ಶಕರು, ನಗರ7ಾಪನ ತಂಡ-2 ರ ಕ+ೇ ೆ 8hಾPP ಬ ೆ ರುವ ಪತ<ದ ಪ<\ಯು ಉHೆ@ೕಖ(2) ರಂCೆ ಈ ಕ+ೇ ಯ?@ P ೕಕೃತ ಾXರುತQAೆ.
ಇAೇ ಪ<ಕರಣದ ಕು ತು ಉHೆ@ೕಖ(3) ರ ಪತ<ವ` P ೕಕೃತ ಾXದುU, ಸದ ಪ<ಕರಣವ` ಉHೆ@ೕಖ(1) ರಂCೆ ಘನ ಉಚi ಾ-.ಾಲಯದ ಪ<ಕರಣ ಾXದುU ಸ.ನಂ.282 ರ ಜeೕನು ಚಳjಘಟ2 ಾ<ಮದ ಗ ಯ?@ ಬರು\Qರುವ ಬ ೆG ಉHೆ@ೕkP ಪತ<ವನುW ಬ ೆಯHಾXರುತQAೆ.
ಸದ ಪ<ಕರಣವ` ಘನ ಉಚ ಾ-.ಾಲಯದ ಪ<ಕರಣ ಾXದುU ಅ\ೕ ಜರೂ ಾX ಅಳCೆ "ೆಲಸ ವ#EP ಾ-.ಾಲಯ"ೆN ವರ ಸ?@ಸ3ೇ"ಾXರುವ`ದ ಂದ ಜಂT ಅಳCೆ "ಾಯ#"ಾNX ಾಂಕ:22- 11-2022 ರಂದು ಪZ ಾ#ಹW 11:00 ಗಂlೆ ೆ ತಮ[?@ರುವ AಾಖHಾ\ಗhೆ6 ಂ ೆ ಸmಳದ?@ ಾಜ ರಲು "ೋ Aೆ.
ಸE/-
ಭೂAಾಖHೆಗಳ ಸ ಾಯಕ Aೇ#ಶಕರು 3ೆಂಗಳ6ರು ಉತQರ Cಾಲೂ@ಕು 3ೆಂಗಳ6ರು ನಗರ aHೆ@."33
.... .... ....
"Government of Karnataka Assistant Director of Land Records Office, Bangalore North, Bangalore.
ADLR/MISC/479/2020-23 Date: 05-01-2023 Defence Estate Officer Karnataka & Goa Circle, K.Kamaraj Road, Bangalore-560 042.
Rajesh V.P. (COL) So (Land & Works) For Center Command.
Respected Sir, Subject: Joint Survey of S.N. 282 Bangalore Village (Between Pillar No.40 to 48).
Reference: 1) ASC Center and College north letter No. 4404/CC/EGL/Q6 dated 28-09-2022.
2) ASC Center and College North letter No.
4404/CC/EGL/Q6 dated 30-12-2022
(Received date 5-01-2023).
--
With reference (1) above subject as per the High Court W.P.No.52618/2014 Joint Survey carried on 22 Nov 2022 by ADLR North Taluk Supervisor, Surveyor and ADLR East Taluk surveyor along with the presence of representative of DEO ASC Center North and affected property holders GOH Link Software Park Pvt. Ltd.
Another affected property holder Sriram Spandhana Association absence for joint survey also submitted objection by stating that they are not party under above High Curt W.P.No.52618 of 2014.
(1) From pillar No.40 to 48 joint survey conducted same shown the sketch.
(2) As per the sketch submitted from Pillar No.40 to 42A there is no encroachment found.34
(3) As per the sketch submitted from Pillar No.40 to 48 the part shows the land of (2-25) A-G Area which belongs to Bangalore East Taluk Challaghatta village S.No.1 presently as per revenue record this land belongs to Sri Guru Reddy S/o Ramiah Reddy, R Raghav Reddy S/o Ramiah Reddy but the same is in the enjoyment of Defence.
(4) As per the sketch submitted from pillar No.43 to 48 no encroachment from adjacent owners.
The above information is for your kind perusal and further action."
(Emphasis added) The affidavit of responsible officer i.e., Assistant Director of Land Records dated 29-08-2023 reads as follows:
"AFFIDAVIT I, Narasimha Murthy S/o Pooji Ayya, Aged about 56 years, working as ADLR, Bangalore North, Revenue Department, Bengaluru, now at Bangalore do hereby solemnly affirm and state on oath as follows:
2. I submit that I am working as Assistant Director of Land Records and I am well aware of the facts and circumstances of the above case. Hence, I am swearing to this affidavit based on records available at our office.
3. That upon the notice that the Hon'ble Court in the above writ petition I was directed to conduct the survey of the property situated at Bengaluru Village, Sy.No.282 and I have deputed my Officers Shivarudraiah, Supervisor and Surveyor Basavaraju and Rajkumar Surveyor deputy by Assistant Director of Land Records, K.R. Puram, Bangalore East.35
4. I submit that as per procedure the surveyors had issued notice to the concerned persons as per the rules and accordingly, the notice dated 10-11-2022 was issued to the Defence Estate Officer, the petitioner and the neighboring property owners i.e., Shriram Properties Private Limited, Sriram Spandana Association and MSC Arcade for the Joint survey to be conducted on 22-11-
2022.
5. That as per the notice dated 10-11-2022, and on the date fixed i.e., 22-11-2022 Sri Shivarudraiah, Supervisor Surveyors Basavaraju and Rajkumar Surveyor K.R.Puram, Bangalore East Taluk have visited the spot and the petitioner represented by the it is authorized representative Shri Manoj Punjab and Sri Arun Wadik and Defence Estate Officer represented by Sri Parag and Colonel Rajesh V.P. were present and the Joint survey was conducted and remaining part of survey was conducted on 28-11-2022. After the joint survey the necessary survey report and survey sketch was prepared.
6. That as per Rules the Joint survey was completed as per the defence office letter No.4404/CC/EGI/Q6 dated 28-09-2022. Further, the defence authorities i.e., ASC Centre (North) - 1ATC (Rajesh V.P) Col. SO (Land and Wks.,) for Centre Comdt., has confirmed the conducting of Joint Survey by his letter dated 30-12-2022 and the same copy is also marked as CC to Sri H.Shantibushan, High Court Advocate, Mr. Megharaj G.M., Advocate for further information.
Sd/- Deponent."
(Emphasis added) The survey report is otherwise that the defence is in encroachment of private property. It would also indicate that the petitioner has not encroached upon any defence land. As observed hereinabove, a joint survey was conducted in the presence of Estate Officer. The 36 Estate Officer indicates to the ADLR/JDLR who was a party to the joint survey to submit the survey report at the earliest to be placed before this Court. The communication reads as follows:
"ASC Centre (North)-1ATC PIN-900493 c/o 56 APO.
4404/CC/EGL/Q6 30 Dec.2022
The ADLR/JDLR
Bangalore North Taluk,
DEO, Bangalore.
JT SVY of 282 (BDY PILLAR 40 TO 48) BY ADLR & DEO
1. Ref our letter No.4404/CC/EGL/Q6 dated 01 Dec 2022.
2. It is intimated that Joint Survey by ADLR along with the presence of representatives of DEO, ASC Centre (North) and affected property holders was carried out on 22 Nov 22 from boundary pillar No.40 to 47B and on 28 Nov 2022 from boundary pillar No.47B to 48. Final report of the joint survey is yet to be submitted by your office.
The next hearing date of Hon'ble Court is on 02 Jan 2023.
3. In view of the above, you are requested to fwd the joint survey report at the earliest.
Sd/- (Rajesh VP) Col. So (Land &Wks) For Centre Comdt."
(Emphasis added) What is discernible from the aforesaid communication is that the joint survey by the ADLR was conducted in the presence of 37 representatives of the Defence Estate Office, ASC Centre (North) and the boundaries from pillar to pillar was taken note of and a report of the joint survey to be submitted. Therefore, it is a case where joint survey pursuant to the orders passed by this Court takes place with the participation of respondents 6 to 9 of the Defence Estate Office. The report was that there was no encroachment but encroachment by the defence.
10. The learned senior counsel for the petitioner submits that the petitioner would not insist any other encroachment by the defence on the private property but would restrict the report to the observation that the petitioner has not encroached upon any defence land. The survey report is objected to by the DSGI by filing a counter affidavit producing certain surveys earlier done. The same is taken note of, but would not tilt the relief in favour of the defence, as the survey has taken place not in the absence of Defence Estate Officers but in their presence and pursuant to the orders passed by this Court. If survey conducted pursuant to the orders passed by this Court in compliance with law and in the presence of the defence is permitted to be objected to by the 38 respondents, it would be respondents arguing against their own orders or the joint survey report doubting their own officers.
11. The Additional Solicitor General or the Deputy Solicitor General of India are not doubting the officers who were present, but seek to submit that the officer who was present or who has communicated as afore-quoted on 30-12-2022 was not the competent officer. This is again unacceptable, as what the communication notice is that the competent officer of the Defence Estate Office has participated in the joint survey. Merely because the joint survey shows that the defence has encroached upon the private property, the report of the survey cannot be doubted. A repeat survey is sought, which this Court declined to accept as survey cannot be conducted any number of times, till a report in favour of respondents 6 to 9 would come about. Regarding the submission of the learned senior counsel for the petitioner that the report of survey is restricted to the observation that the petitioner has not encroached any property of the defence is recorded.
3912. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Notice dated 13-10-2014 as communicated to the petitioner on 10-11-2014 stands quashed.
(iii) The observations made in the course of the order regarding survey are noted to have become final.
Consequently, pending applications stand disposed.
Sd/-
(M. NAGAPRASANNA) JUDGE bkp CT:MJ