Karnataka High Court
Vinayaka Educational Trust vs Bruhat Bengaluru Mahanagara Palike on 23 November, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.10047 OF 2019 (BDA)
BETWEEN:
VINAYAKA EDUCATIONAL TRUST,
A REGISTERED PUBLIC CHARITABLE TRUST,
HAVING ITS REGISTERED OFFICE AT
NO.1, 1ST MAIN ROAD, THOMAS BUILDING,
J.C.NAGARA, BENGALURU - 560 086.
REPRESENTED HEREIN BY ITS
GENERAL SECRETARY AND
DULY AUTHORIZED
REPRESENTATIVE MR. B.SURESH.
...PETITIONER
(BY SRI. I.S.DEVAIAH, ADVOCATE)
AND
1. BRUHAT BENGALURU MAHANAGARA PALIKE,
BBMP HEAD OFFICE PREMISES,
N.R.SQUARE, BENGALURU - 560 002.
REPRESENTED BY ITS COMMISSIONER.
2. THE ASSISTANT EXECUTIVE ENGINEER,
BRUHAT BENGALURU MAHANAGARA PALIKE,
WARD NO.13, GAYATRINAGARA RANGE,
SHANKARA MUTT, WEST OF CHORD ROAD,
II STAGE, MAHALAKSHMIPURAM,
BENGALURU - 560 064.
3. BENGALURU DEVELOPMENT AUTHORITY,
KUMARA PARK WEST, T.CHOWDAIAH ROAD,
BENGALURU - 560 020.
REPRESENTED BY ITS COMMISSIONER.
2
4. SRI. SATHYANARAYANA HOUSE BUILDING
CO-OPERATIVE SOCIETY LIMITED.,
NO.20, SATHYANARAYANA LAYOUT,
4TH BLOCK, 3RD STAGE,
BASAWESHWARANAGARA,
BENGALURU - 560 079.
REPRESENTED BY ITS PRESIDENT.
...RESPONDENTS
(BY SRI.VIKRAM A HUILGOL, SENIOR COUNSEL FOR
SMT.SARITHA KULKARNI, ADVOCATE FOR R1 AND R2;
SRI.G.LAKSHMEESH RAO, ADVOCATE FOR R3;
SRI.MANJUNATH HEGDE, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-3
TO PRODUCED BEFORE THIS HON'BLE COURT THE LAYOUT PLAN
OF THE SRI SATHYANARAYANA HOUSE BUILDING COOPERATIVE
SOCIETY LAYOUT DEVELOPED IN SY.NO.169/1 AND 171 OF
LAGGERE VILLAGE, YESHWANTHPURA HOBLI, BENGALURU
NORTH TALUK, BY THE R-4, AND APPROVED BY THE R-3 VIDE
LETTER OF SANCTION DATED 15.04.1989 AND ETC.,
THIS WRIT PETITION COMING ON FOR ORDER, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
In this petition, petitioner has sought for the following reliefs:-
" a) Issue a Writ/Order/direction the 3rd Respondent to produce before this Hon'ble Court the layout plan of the Sri. Sathyanarayana House Building Co-operative Society layout developed in Sy.No.169/1 and 171 of Laggere Village, Yeshwanthapura Hobli, Benglauru North Taluk, by 3 the 4th Respondent, and approved by the 3rd Respondent vide letter of Sanction No.BDA/TPM/167/89-90 dated: 15.04.1989;
b) Declare all actions of the 4th Respondent Society and anyone claiming under it, deviating from the approved layout plan sanctioned by the 3rd respondent vide letter of sanction No. BDA/TPM/167/89-90 dated: 15.04.1989, insofar as they alter the nature of the parks, civic amenity sites and other open spaces specified in the plan, as illegal, void and inoperative;
c) Issue a writ/order/direction in the nature of a writ of Mandamus or such other appropriate writ, directing the 1st to the 3rd Respondents to forthwith take all necessary steps to recover possession of, and preserve, protect and maintain the parks, civic amenity sites and other open spaces formed in the Sri. Sathyanarayan House Building Co-operative Society layout developed in Sy.No. 169/1 and 171 of Laggere Village, Yeshwanthapura Hobli, Benglauru North Taluk, by the 4th Respondent, and approved by the 3rd Respondent vide letter of Sanction No.BDA/TPM/167/89-90 dated: 15.04.1989;
d) Issue a writ/order/direction in the nature of a writ of Mandamus or such other appropriate writ, to the Respondent Nos.1 to 3 to handover the Schedule Property/CA Site to the Petitioner in terms 4 of the C.A. Sites Lease Agreement dated:
12.12.2001 (Annexure-A) and Possession Certificate dated: 19.12.2001 (Annexure-B); and
e) Issue a writ/order/direction in the nature of a writ of Mandamus or such other appropriate writ, directing the Respondent No.3 to waive off the annual rentals and any penalties/ interest payable by the Petitioner till date towards the lease of the C.A.Site, in view of the litigation and the failure on the part of the Respondents in handing over possession of the C.A. Site to the Petitioner; or
f) In the alternative, issue a writ/order/direction in the nature of a writ of Certiorari or such other appropriate writ, setting aside the Lease agreement dated: 12.12.2001 (Annexure-A) as null and void as the 3rd Respondent did not have the right to transfer the Schedule Property, and direct the 3rd Respondent to refund all amounts, including but not limited to, the annual rent collected by it from the Petitioner till date; and
g) Issue a writ/order/direction in the nature of a writ of Mandamus of such other appropriate writ, directing the 3rd Respondent to allot a alternate similar and available civic amenity site to the Petitioner in any surrounding localities/ areas, in accordance with law and on the same terms as the earlier allotment;5
h) Grant such other relief/s as this Hon'ble Court deem fit to grant in the facts and circumstances of the case in the interest of justice."
2. The material on record discloses that the petitioner is a registered Public Charitable and Educational Trust, in whose favour, the subject civic amenity site (CA site) was allotted on lease by the 3rd respondent - BDA on 25.04.2001 for a period of 30 years, pursuant to which, the BDA executed a CA site lease agreement dated 12.12.2001 and issued possession certificate on 19.12.2001 in favour of the petitioner. The respondents 1 and 2 - BBMP also issued a khata certificate dated 05.05.2004 in favour of the petitioner in respect of the subject site. Subsequently, the petitioner applied for sanctioned plan and licence, which was approved by respondents 1 and 2 - BBMP on 18.10.2004.
2.1 It is contended by the petitioner that during the year 2004-05, some members of the 4th respondent - Society attempted to encroach upon the portion of the subject site, on account of which, petitioner submitted a representation to the 6 1st respondent - BBMP on 21.06.2005 and since, no action was taken by the BBMP, petitioner instituted a suit in O.S.No.4876/2005 before the City civil court, Bangalore, for permanent injunction and other reliefs in respect of the subject site. In the said suit, while the 4th respondent - Society and its two persons were arrayed as defendants 1 to 3, the respondents 1 and 2 - BBMP were arrayed as defendants 4 and 5 and the BDA as defendant No.6. In this context, it is pointed out that in its written statement, the various plaint averments viz., the allotment of the subject CA site in favour of the plaintiff, issuance of khata certificate by BBMP etc., have been admitted by the BBMP. So also, the allotment in favour of the petitioner, execution of CA site lease agreement, issuance of possession certificate etc., has been admitted by the BDA also. It is contended that the said suit in O.S.No.4876/2005 is pending adjudication before the City Civil Court.
2.2 The petitioner contends that the subject matter of the aforesaid suit in O.S.No.4876/2005 is only a portion of the 7 subject CA site situated on its western side. To the East of the said portion, the respondents 1 and 2 - BBMP has encroached upon the remaining portion of the subject CA site and has illegally and highhandedly formed a Playground / Park and illegally constructed an Anganwadi centre, despite the BBMP not having any manner of right, title, interest or possession over the said portion of the subject CA site. Under these circumstances, the petitioner is before this Court by way of the present petition seeking the aforesaid reliefs.
3. The respondents 1 and 2 - BBMP has filed its statement of objections admitting the petition averments i.e., allotment of the subject site, execution of CA lease agreement etc., in favour of the petitioner. It is however contended that since the petitioner did not comply with the terms and conditions of the CA lease agreement, petitioner does not have locus standi to prefer the present petition or seek any relief before this Court. It is contended that for the benefit of the residents of the locality and for public purpose, to establish an Anganwadi Centre, the BBMP has developed a portion of 8 the subject CA site as a Playground and Anganwadi building, which is used to provide nutritional food, medical check up, immunization etc., for children upto 6 years and expecting mothers. It is also contended that there are discrepancies and inconsistencies in the CA lease agreement and in view of the dispute regarding the measurements of the subject CA site coupled with the fact that the suit in O.S.No.4876/2005 has already been instituted by the petitioner, the present petition is not maintainable and is liable to be dismissed.
4. The 3rd respondent - BDA has filed separate statement of objections admitting the averments of the petitioner regarding allotment, execution of CA site lease agreement, possession certificate etc., in respect of the subject CA site in favour of the petitioner. Along with the statement of objections, the BDA has produced the relinquishment deed, layout plan, correct dimension report and sketch in order to point out that the portion of the subject site has been encroached upon and used by the BBMP to form a Playground and construct an Anganwadi centre. It is however 9 admitted that the BDA has not handed over any portion/ piece of the subject CA site to the BBMP either to form a Park or a Playground. It is also contended that the petitioner is not entitled to any reliefs in the present petition and that the same is liable to be dismissed.
5. The petitioner has filed its rejoinder to the statement of objections filed by the BDA and has put forth several contentions and produced documents including the photographs etc., in order to contend that the petitioner is entitled to the reliefs sought for in the petition.
6. Heard Sri.I.S.Devaiah, learned counsel for the petitioner and Sri.Vikram Huilgol, learned Senior counsel for Smt.Saritha Kulkarni, learned counsel for BBMP and Sri.G.Lakshmeesh Rao, learned counsel for the BDA as well as Sri.Manjunath Hegde, learned counsel for the 4th respondent - Society and perused the material on record.
7. A perusal of the material on record will indicate that allotment of the subject CA site, execution of lease 10 agreement, issuance of possession certificate, khata, sanctioned plan and licence etc., in favour of the petitioner is not in dispute. It is also an undisputed fact that a portion of the subject CA site situated on the western side is the subject matter of O.S.No.4876/2005 filed by the petitioner against the respondents herein and the same is pending adjudication.
8. The short question that arises for consideration is, whether the respondents 1 and 2 - BBMP has any manner of right, title, interest or possession over any portion of the subject site, which has been utilised by them for the purpose of playground and Anganwadi centre.
9. In this context, it is relevant to state that in the pleadings in O.S.No.4876/2005 as well as in the present petition, both the BBMP and BDA have categorically admitted that the subject CA site was allotted in favour of the petitioner and lease agreement, possession certificate, khata certificate etc., have been executed / issued in favour of the petitioner. Further, except for stating that in the public interest, the BBMP 11 has formed a playground and Anganwadi Centre in a portion of the subject CA site, there is absolutely no material pleaded or produced by the BBMP to establish its right, if any, over the said portion of the subject CA site allotted in favour of the petitioner. It is also significant to note that in the Sketch at Annexure-R3 produced by the BDA along with its statement of objections, the BDA has clearly delineated and demarcated not only the entire subject CA site but also the portion described as Site Nos.146 and 147, which is the subject matter of O.S.No.4876/2005 as well as the portion of the subject CA site, which has been illegally and highhandedly utilised by the respondents 1 and 2 - BBMP for the purpose of formation of a Playground and construction of Anganwadi Centre. Under these circumstances, I am of the considered opinion that in the absence of any material to establish the right of BBMP over the portion of the subject CA site, it is necessary to issue suitable directions to the BBMP to restore and hand over the said portion of the subject CA site in favour of the petitioner within a stipulated time frame. 12
10. Insofar as the contention of the respondents as regards discrepancies and inconsistencies in the measurements of the subject CA site is concerned, a perusal of the petition averments and documents and also statement of objections filed by the BDA and the documents produced along with the same as well as the statement of objections and documents produced by the BBMP including sketch, layout plan etc., will clearly indicate that the portion of the subject CA site, in which, the BBMP has formed a Playground and constructed an Anganwadi Centre has been clearly located, identified and demarcated, particularly in view of the sketch at Annexure-R3 produced by the BDA. Under these circumstances, the said contention of the respondents, in the facts of the instant case cannot be accepted.
11. Insofar as the contention of the respondents as regards maintainability of the petition and reliefs sought for by the petitioner is concerned, though the petitioner has sought for various reliefs, in view of my findings above that the 13 subject CA site was allotted in favour of the petitioner that a portion of the subject CA site, which has been utilised by the BBMP for the purpose of Playground and Anganwadi centre has been clearly demarcated and identified, that the BBMP does not have any manner of right, title, interest or possession over the said portion of the subject CA site, I am of the considered opinion that in the peculiar / special facts and circumstances of the instant case, no disputed or complicated questions of fact or law warranting relegating the petitioner to the Civil court, arise for consideration and consequently, even this contention urged by the respondents cannot be accepted.
12. In the result, I pass the following:-
ORDER
(i) Petition is hereby partly allowed.
(ii) Respondent Nos.1 and 2-BBMP are hereby directed to restore and handover the portion of the subject CA site identified, delineated and demarcated as Playground and Anganawadi centre in the sketch at Annexure-R3 produced by 14 the 3rd respondent-BDA to the petitioner, within a period of three months from the date of receipt of a copy of this order.
(iii) The 3rd respondent - BDA is also directed to render all necessary co-operation and assistance to the respondents 1 and 2 - BBMP to comply with the directions issued above.
(iv) It is made clear that all rival contentions between the petitioner, respondents and other parties in relation to the subject matter of O.S.No.4876/2005, which is pending adjudication before the City Civil Court, Bengaluru and demarcated, delineated and identified as portion of the subject CA site bearing Nos.146 and 147 in Annexure-R3 referred to supra are kept open and no opinion is expressed on the same.
Sd/-
JUDGE NR/Srl.