Bangalore District Court
Smt. Irene Edwin vs ) The Commissioner on 16 December, 2021
1
OS No.2276-2019
C.R.P.67
Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE II ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AT BANGALORE
(C.C.H. No.17)
DATED THIS THE 16th DAY OF DECEMBER 2021
PRESENT:-
Smt. Sheila B.M., M.Com., LL.M,
II Addl. City Civil & Sessions Judge, Bengaluru
O.S.No. 2276/2019
Plaintiff: Smt. Irene Edwin
W/o Sri. Edwin
Aged about 54 years
R/at No. 332-333
Muneshwara Layout
CII-I.A Road, Byadarahalli
Vishwaneedam post
Bengaluru -560 091.
(By Sri NG, Advocate)
Vs.
Defendants:- 1) The Commissioner
BDA
Kumarapark West
Bengaluru -560 002.
2) The Additional LAO
B.D.A.
Kumarapark West
Bengaluru
2
OS No.2276-2019
3) The Asst. Exeutive Engineer
Div.3, Vijayanagara Sub Division
West
Vijayanagara
Bengaluru
4) Sri. Edwin Selvan
S/o Terrance Selvan
Aged about 57 years
R/at No.332/333
Sunrise Cottage
CII Road, BEL 2nd phase
Byadarahalli
Bengaluru -560 091.
(Sri. MN, Advocate for D-1 to 3)
(Sri. M.G. Advocate for D-4)
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Date of Institution of the suit : 21.03.2019
Nature of the suit (suit on : For M.I.
pronote, suit for declaration
and possession, suit for
injunction etc,)
Date of the commencement : -
of recording of the evidence
Date on which the Judgment : 16.12.2021
was pronounced
Year/s Month/s Day/s
Total duration : 01 08 25
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(Sheila B.M.)
II Addl. City Civil and Sessions Judge,
& Special Judge, Bangalore.
3
OS No.2276-2019
JUDGMENT
The plaintiff has filed this suit for Mandatory Injunction to direct the defendants 1 to 3 to hand over the vacant possession of the suit schedule property to him by revoking the acquisition proceedings and to confirm the possession, to direct the defendants 1 to 3 to compensate the plaintiff for having demolished the residential premises to the tune of Rs.10,00,000/- and for permanent injunction restraining the defendants or their legal heirs or representatives or administrators, labours or any body claiming under them from allotting the suit schedule property to any third parties or to develop the suit schedule property with any construction or altering the nature of the suit schedule property till pending disposal of the above suit and for cost.
.2. The brief facts of the case is that the plaintiff is the absolute owner, in possession and enjoyment of the suit schedule property bearing site No.31, 32, 33 formed out of Sy.No. 52 of Muddenapalya, Gidadakonenahalli Dhakle, Yeshwanthpura Hobli, Bengaluru North Taluka. The property was originally belonged to one Rangadasappa and his family. 4
OS No.2276-2019 They have executed sale agreement, General Power of Attorney along with supportive affidavit in-favour of defendant No.4 on 10.02.2000. It is stated that the defendant No.4 dug the borewell by incurring an expenditure of more than Rs.60,000/- and have constructed a residential premises. The defendant No.4 executed absolute registered sale deed in the name of plaintiff on 22.01.2003. Thereafter she has paid tax.
.3. It is stated that the defendant No.2 has issued notification in the Gazette notifying that the property bearing Sy.No. 52 of Gidadakonenahalli Dhakle has been acquired and Gazette notification is dated 08.04.2003 and the notice has been issued to her on 06.06.2003 calling upon her to file objections statement on 13.06.2003 at about 10.30 a.m., near Janatha Colony Circle, Government Primary School, Gidadakonenahalli. It is stated that the defendants 1 and 2 or their officials never came near the suit schedule property for instruction or to verify the suit schedule property whether it is developed or not and failed to ascertain the status of the suit schedule property. She and other site owners have approached the Hon'ble High Court of Karnataka questioning 5 OS No.2276-2019 the Gazette notification against the defendants 1 to 3 under W.P. No.2100/2004. On 18.12.2005 the Hon'ble High Court disposed of the said writ petition, directing the defendants 1 to 3 to consider the plaintiff's application as per the case already determined in (Junjamma Vs. B.D.A. reported in ILR 2005 KAR 508). Thereafter the plaintiff submitted all the documents and also filed objections stating that house was constructed and residing therein on 30.01.2004. It is submitted that number of applications have been submitted by the plaintiff on different dates. In addition to that one more Writ petition was came to be filed by the plaintiff along with other owners under W.P. No.45523-45548 of 2013 which came to be disposed on 08.10.2013 in which direction has been issued to the defendants 1 to 3 to consider the application.
.4. It is stated that instead of confirming the title held by the plaintiff the defendants 1 to 3 officials approached near suit schedule property and demolished fully furnished house on 11.02.2019 without hearing her request and at the same time, the plaintiff demanded the defendants 1 to 3 officials on which basis the demolition work has been taken 6 OS No.2276-2019 up and also raised objections. The defendants 1 to 3 officials had thrown out the order sheet with respect to one file opened in the defendant No1 office, in which there is no specific order has been passed by the defendant No.1 to demolish the residential premises constructed in the suit schedule property. Hence, the suit.
.5. The defendants 1 to 3 have filed detail written statement stating that suit is not maintainable. It is stated that the plaintiff has no legal or vested right to prosecute the suit which is subject matter of acquisition and the relief sought in the suit are vexatious, mischievous, frivolous, opposed to principles of equity and without any legal sanctity. The LA Act is complete code in itself and is meant to serve public purpose. By necessary implication, the power of civil Court to take cognizance of the case under Section 9 of CPC stands excluded and a civil Court has no jurisdiction to go into the question of validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings. It is stated that following the decision of the earlier judgments of the Hon'ble Supreme Court in the case of Laxmichand and others Vs. Gram Panchayath Karariya and 7 OS No.2276-2019 others AIR 1996 SC 253 and the State of Bihar Vs. Dheerendra Kumar and others, AIR (1995) 4 SCC 229 held that the suit is not maintainable.
.6. The averments with regard to the damage of the property have been denied. It is stated that the land in question is subject matter of the acquisition under due process of law as per preliminary notification, final notification followed by passing of award and taking over of possession and the said lands were acquired free from all encumbrances and the B.D.A. has become the owner of the property so as to enable it to allot the sites to the beneficiaries. In order to protect its property the B.D.A. and its officials are duty bound to prevent or evict any unauthorized persons / trespassers from the property. It is stated that based on the orders of defendant No.1 Commissioner and subsequent directions of the Engineering officer IV to evict unauthorized persons / constructions, the officials have acted upon such orders and secured the acquired property. If any persons having any claim or interest over the acquired property against the notified khatedhars or his successors they have to workout the same in 8 OS No.2276-2019 apportionment of compensation. It is stated that the plaintiff is no way concerned to the suit schedule property. Hence, prayed for dismissal.
.7. On the basis of the pleadings, this Court in all framed 12 issues.
.8. Issue No.7 is treated as preliminary issue.
"Whether the defendants 1 to 3 prove that the suit of the plaintiff is not maintainable and this Court has no jurisdiction to try the suit?"
.9. My answer to the above issue No.7 is in the affirmative, for the following:
REASONS .10. Point No.1: It is the specific case of the plaintiff that she is the absolute owner of the suit schedule property. She has constructed the house and residing in the said property. The defendant No.3 has acquired the said property. Being aggrieved by the said acquisition, she and others have filed W.P. No.2100/2004, which is disposed of with a direction to the defendants 1 to 3 to consider the application of the plaintiff as per the case decided in ILR 2005 Kar. 508. From the judgment in W.P. No.2100/2004, it is seen that the 9 OS No.2276-2019 petitioners and others had represented before this Court that they would be satisfied if the case would be considered as per the case determined in Junjamma Vs. BDA reported in 2005 KAR 508.
.11. In the decision reported in ILR 2005 KAR 508 (Junjamma Vs. BDA and others), the Hon'ble High Court has dealt with Sections 15(1)(a), 16, 17(1), 19(1), 36, 1414, 17(1), 19(1), 10 of B.D.A. Act, Section 63, 310, 315, 503A, 503B of the Karnataka Panchayath Raj Act, Sections 155, 156, 170, 171 and 302 of the Karnataka Municipality Act 1964 and other aspects.
.12. The Court had also given guide-lines for allotment of sites. The plaintiff has stated that number of applications have been submitted by her on different dates to consider the factum of her possession. She also filed W.P. No.45523- 45548/2013, which was disposed of with a direction to the defendants 1 to 3 to consider the applications.
.13. From the judgment, it is seen that the plaintiff has been directed to file one more representation along with the supporting documents, enclosing a copy of this order within 4 weeks from the date of receipt of copy of this order. The result 10 OS No.2276-2019 of the consideration one way or the other shall be intimated to the petitioners as expeditiously as possible, but not later than three months thereafter. The plaintiff has produced the note of the Law Officer of B.D.A., from which, it is seen that " the petitioner had filed CCC No.104/2015 and 263-65.2015 complaining that the respondent had not complied with the orders. The said contempt proceedings were dropped since the B.D.A. had considered the representations and issued endorsement dated 25.03.2015. Therefore, giving liberty to the complainant to assail to the correctness of endorsement to file fresh writ petitions. It appears that these petitioners have not filed any fresh writ petitions. Therefore, the concerned parties may take up further steps in accordance with law for evicting the encroacher".
.14. The plaintiff has stated that the defendants 1 to 3 officials approached near suit schedule property and demolished fully furnished house on 11.02.2019 without hearing the request of plaintiff, on what basis demolition work has been taken up. It is the contention of the plaintiff that she is entitled for Mandatory Injunction to direct the defendants 1 to 3 to hand over the vacant possession of the 11 OS No.2276-2019 suit schedule property to her by revoking the acquisition proceedings.
.15. The defendants have specifically contended that the land in question is subject matter of acquisition under due process of law as per preliminary notification and final notification followed by passing of the award and taking over of possession. It is stated that the lands were acquired free from all encumbrances and the B.D.A. has become the owner of the property. To corroborate their contention, the defendants have produced attested copy of preliminary notification and final notification, attested copy of award dated 03.12.2003 approved on 20.12.2003, attested copy of mahazar dated 09.01.2004 for taking possession of the acquired property with sketch, attesting copy of notification issued under Section 16(2) of L.A. Act, 1894 about taking possession of the acquired property and attested copy of the order dated 04.02.2019, which is proceeding of the Engineering Officer under Section 321(3) of the KMC Act and 33(2) of BDA Act, Bengaluru. The Engineering Officer IV , B.D.A. being satisfied that this is a fit case for ordering demolition of the unauthorized construction. He passed the 12 OS No.2276-2019 order for removal of unauthorized constructions as per the Commissioner's order dated 04.02.2019 in-respect of the above said unauthorized constructions.
.16. The defendants' counsel has relied upon the decision reported in (1995) 4 SCC 229 (State of Bihar Vs. Dhirendra Kumar and others), wherein, the Hon'ble High Court has held that:
"Civil Court has no jurisdiction to go into the question of validity or legality of notification under Section 4(1) or declaration under Section 6 - Act is a complete code in itself and is meat to serve public purpose."
.17. The said decision applies to the case on hand in the present case. The plaintiff is seeking for revoking acquisition proceedings. This Court has no jurisdiction to revoke the acquisition proceedings. Remedy for the plaintiff is elsewhere. Hence, point for consideration is answered in the affirmative and I proceed to pass the following:
OR D E R Suit of the plaintiff is dismissed as not maintainable.13
OS No.2276-2019 Draw Decree Accordingly.
(Dictated to the Judgment Writer, transcribed by her, revised by me and after corrections, pronounced in open Court on this the 16th day of December, 2021.) (Sheila B.M.) II Addl. City Civil and Sessions Judge, & Spl. Judge, Bangalore.