Bangalore District Court
Smt. M.Chandra Bai vs The Commissioner on 31 March, 2016
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE (C.C.H.No.8)
Dated this the 31st day of March 2016.
PRESENT: SRI.S.V.Kulkarni, B.Com., LLB(Spl).
XI Addl.City Civil Judge, B'lore city.
O.S.No.4187 of 2012
Plaintiff/s: Smt. M.Chandra Bai,
aged about 75 years,
D/O Dhoothraj,
R/at No.24, D.S.Lane,
Chikpet Cross, Bengaluru.
(Rep by her GPA holder
Sri. Tarun Kumar,
S/O M.Ramesh Kumar,
aged about 28 years, R/at No.87,
First floor, Albas Centre, M.G.Road,
Bengaluru-560001
(By Smt. K.Rama Bhat , advocate)
Vs.
Defendant/s: 1. The Commissioner,
Bengaluru Development Authority,
T.Chowdaiah Road, Bengaluru-20
2. The Land Acquisition Officer,
Bengaluru Development Authority,
T.Chowdaiah Road, Bengaluru-20
3. The Engineer Officer-IV
Bengaluru Development Authority,
T.Chowdaiah Road, Bengaluru-20
2 O.S.No.4187/2012
4. The Commissioner, BBMP, Hudson
Circle, Bengaluru-560009
(Sri. K.A. advocate for D.1 to D.3
Sri. K.P.R advocate for D.4)
Date of the institution of suit: 14.6.2012
Nature of the suit: Damages/Compensation
Date of the commencement of 8.4.2013
recording of the evidence :
Date on which the judgment 31.3.2016
was pronounced :
Total duration: Year/s Month/s Day/s
03 09 17
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is the suit filed by the plaintiff against defendants through her GPA holder for claiming alleged damages suffered by the plaintiff by way of compensation for an amount of Rs.1,25,000/- for illegal demolition of house and for damaging the plaint schedule property and plaintiff 3 O.S.No.4187/2012 sought for direction by way of mandatory injunction to defendant No.4 to issue katha certificate and sanctioned plan as per building bye-laws and also prayed for grant of permanent injunction against defendant No.2, 3 and 4 not to interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintiff and for other reliefs as prayed in the suit.
The subject matter of the suit in respect of suit schedule property reads as follows:-
SCHEDULE All that piece and parcel of immovable property bearing site No.283, formed in Sy.No.38 and 39 situated at Giddadakonenahalli village, Yeswanthapura Hobli, Bengalure North Taluk within the limit of BBMP, measuring 45ft., X 30 ftr., and bounded on:-
East by: Site No.284
West by: Site No.282
North by: Road
South by: Site No.290
2. The case of the plaintiff briefly stated as follows:-
The plaintiff has alleged that the Government of India has issued circular to the State Governments and Union 4 O.S.No.4187/2012 Territories to implement a scheme known as Provision of House Sites to the Families of Landless workers in Rural Areas and in pursuant to the said direction, Government of Mysore by its order dated 13.5.1972 issued a gazette Notification to implement the said scheme directing the Deputy Commissioner of the respective districts to implement the said scheme for allotment of house sites under the said Scheme , the Revenue Department, Bengalure North Taluk identified Sy.No.38 and 39 of Giddadakonenahalli village , Yeswanthapura Hobli, Bengalure North Taluk measuring 40 acres 36 guntas of land and 7 acres and 18 guntas of land respectively (totally measuring 48 acres 14 ft) and formed a residential layout consisting of 910 sites and as per the Government direction, the Tahasildar, Bengalure North Taluk called for applications for allotment of house sites in Sy.No.38 an 39 of Giddadakonenahalli village and in the said context, the plaintiff made an application to the Tahasildar for grant of house site and considering the request of plaintiff, the Tahasildar, Bengalure North Taluk granted house site No. 283 in Sy.No.38 and 39 of Giddadakonenahalli village, Yeswanthapura Hobli, Bengalure North Taluk measuring 45ft X 30 ft., and issued Hakkupathra dated 30.7.1975 in commemoration of 25th year Independence Day celebration and delivered possession of the said site under Rural Housing Scheme.5 O.S.No.4187/2012
The Harohalli Grama Panchayath assessed the above said site and issued katha in the name of plaintiff and also collected tax in the name of plaintiff. Subsequently in the year 2007, the Herohalli Grama Panchayath was included to the limits ob BBMP and said property was assessed by BBMP and accordingly, plaintiff acquired right, title and interest over house site No.283 . The plaintiff is paying tax regularly to the BBMP as absolute owner thereof and he is having possession and enjoyment in respect of site No.283 and RTC entries shows that Revenue Department has formed layout in Sy.No.38 and 39 of Giddadakonenahalli village and distribution of free sites as per the Government notification mentioned above. In the mean while, the Government of Karnataka proposed to distribute house sites under Ashraya Scheme in Sy.No.38 and 39 of Giddadakonenahalli village overlooking the existing sites distributed in the year 1975 under Rural Housing Scheme. Thereafter, on noticing the earlier site allotment and developments made in Sy.No.38 and 39 by order dated 7.8.1993, the Tahasildar, Bengalure North Taluk cancelled the allotment of 795 house sites under Ashraya Scheme and the same has been entered in RTC . The owners of the house sites developed the area by constructing houses, schools, sheds and shops etc., . The village panchayath formed road and also supplied the drinking water facility 6 O.S.No.4187/2012 to the constructed sites by providing civil amenities like electricity, drainage also provided to the persons, who have constructed their houses on the sites and Central Government also allotted funds to State Government for development of house sites under Rural Scheme and amount has been collected by the Government of Karnataka for implementation of the scheme. When the matter stood thus the BDA proposed to form layout called Sri. M.Visveshwaraiah Further Extension and issued preliminary notification dated 8.4.2003 followed by final notification dated 9.9.2003 acquiring entire land comprised in Sy.No.38 and 39 of Giddadakonenahalli village to form the layout, the Deputy Commissioner has not transferred the possession of land to BDA as there are several sites already formed and distributed under the scheme and in this regard the Tahasildar, Bengalure North Taluk issued endorsement dated 5.3.2005 stating that the said properties have not been transferred to BDA and without obtaining the land as stipulated under the law, the BDA rushed to issue final notification and also prepared plan. But so far the BDA has not taken actual peaceful possession of the land nor formed any layout in Sy.No.38 and 39, Giddadakonenahalli village,. The plaintiff further alleged that the plaintiff and other owners of house sites in that survey number have challenged the acquisition of land 7 O.S.No.4187/2012 by BDA by filing W.P.No. 1023/2008, 1327/2008, 17026/2008 and 11384 to 11404 of 2009 before Hon'ble High Court of Karnataka and by judgment dated 17.10.2008 and in writ appeal No.997/2008, the Hon'ble High Court of Karnataka set aside the acquisition of the land by BDA in Sy.No.38 and 39 of Giddadakonenahalli village and observed that site owners are entitled for their revenue sites unless and until their possession is resumed by the Government in accordance with the procedure and in the manner known to law. And Hon'ble High Court also held that Government lost their right over the impugned lands as long back in the year 1972 after having granted the rights in favour of the landless people in rural area and they have never resumed the impugned lands in their favour and therefore, the question of the BDA notifying the lands for acquisition much less proposing to allot the lands to education institutions does not arise and also held that the consequential proceedings are also held to be illegal and the order passed by the Hon'ble High Court of Karnataka in W.A.No.997/2008 C/W W.A.No.1023/2008 was challenged before the Hon'ble Apex Court of India by filing SLP No.7408/2009 and the same came to be dismissed at the threshold. Hence, plaintiff claims right, title and interest on the basis of issuance of Hakkupathra in the year 1975 and there is a small house built up in the schedule property and the same was not 8 O.S.No.4187/2012 approved by the then village Panchayath and plaintiff prepared plan for construction of house in the schedule property and also applied for BBMP for grant of katha and also for sanction of building plan and though BBMP had collected tax in respect of schedule property, but it has never issued katha certificate nor sanctioned building plan on the premises that the property has been acquired by BDA and there are litigations pending in respect of sites comprised in Sy.No.38 and 39 of Giddadakonenahalli village.
The plaintiff constructed small house by spending Rs.1,25,000/- and in meanwhile, the BDA officers sitting in the office without conducting the spot mahazar and without following the rules and regulations has prepared a layout plan showing house sites in Sy.No.38 and 39 and tried to form layout and due to objections by the plaintiff and other site owners, the BDA was unable to form the layout as proposed. But BDA has issued layout plan only in papers and allotted certain sites to some 3rd parties and without there being x any authority, the BDA went one step forward and tried to interfere with the possession and enjoyment of site held by the plaintiff and BDA issued demolition order dated 18.3.2011 alleging that there are unauthorized constructions, wherein plaintiff and other site owners approached Hon'ble High Court on 3.6.2011 by filing W.P.No.19768-19790/2011 challenging the said demolition 9 O.S.No.4187/2012 order, wherein Hon'ble High Court had granted interim order on 14.6.2011 by staying the impugned order issued by BDA for demolition existing buildings and directed notice to the BDA authority and to the other respondents. Hence, inspite of knowledge of interim order issued by the Hon'ble High Court in the writ petition, BDA and its officials on 20.6.2011 by using its man and machine power and with the help of police officials, demolished the construction made in Sy.No.38 and 39 of Giddadakonenahalli village and plaintiff's building also included, which has been demolished and BDA officials have also demolished plaint schedule property and removed electricity poles and also disturbed the approach road and other civil amenities stating that entire land belongs to BDA. The plaintiff and other site owners have filed interim application before Hon'ble High Court for further direction to BDA and on 24.6.2011, the Hon'ble High Court of Karnataka in W.P.No.19768-19790/2011 was pleased to grant further interim order and thereby directed to BDA not to interfere with the house sites and buildings formed and developed the Sy.No.38 an 39 of Giddadakonenahalli village and to comply with the interim order and after filing objections and hearing the respective parties, Hon'ble High Court by order dated 17.11.2011 was pleased to allow writ petition filed in W.P.No.19768-19790/2011 respectively and thereby held that the demolition orders issued by BDA is 10 O.S.No.4187/2012 illegal and accordingly, quashed the said order. Hence, BDA authority demolished the building constructed by the plaintiff. The high handed act of the BDA is illegal and unjust and plaintiff invested more than Rs.1,25,000/- for construction of building, but now the same has been demolished by BDA and thereby BDA has caused loss to the plaintiff and hence, BDA is liable to pay compensation and damages to the plaintiff and for no fault on the part of the plaintiff, the BDA rushed to demolish the buildings and caused damages and mental agony to the plaintiff and plaintiff also alleged that he has made representations to the BBMP for sanctioned plan in order to issuance of katha certificate so far BDA has not issued katha certificate and sanctioned plan for proposed building and plaintiff made several representations and tried to convince the BBMP authority but of no use and at present, schedule property is in included within the limits of BBMP and plaintiff has paid the property tax to corporation authority. Hence, plaintiff is afraid of high handed activities of BDA and its officials, and his property is in danger and BDA has demolished the plaint schedule property illegally and caused monetary loss to the plaintiff. Hence, BDA is liable to pay compensation , wherein plaintiff is in enjoyment of schedule property as absolute owner by virtue of Hakkupathra issued by Tahasildar, Bengaluru. Hence, plaintiff alleging cause of action has filed 11 O.S.No.4187/2012 this suit against defendant No.1 to 4 and also filed interim applications filed under Sec. 64 of BDA Act 1976 and also filed I.A.No.2 under Sec. 482 (1)(a) of Karnataka Municipal Corporation Act 1976 claiming dispensation of prior suit notice to defendant No.3 and 4. Hence, the suit.
3. Defendant No.1 to 3 appeared and filed their written statement and though defendant No.4 appeared, but not filed any written statement in this suit. Defendant No.1 to 3 contended that the suit filed by the plaintiff seeking for damages/compensation against defendants in respect of plaint schedule property is not maintainable either in law or on facts and the same is liable to be dismissed and defendant further contended that suit is liable to be dismissed for non issuance of statutory notice as contemplated under Sec. 64 of BDA Act 1976 and suit is also liable to be dismissed for suppression of material facts before this court and defendant No.1 to 3 have not replied the averments made in para No.1and 2 of the pleadings filed by the plaintiff and in respect of para No.3 of the plaint allegations, the defendants have referred to the circular issued by Government of Karnataka to State Government and Union Territories to implement the provision of House sites to the families of landless workers in Rural areas and in pursuant to the direction, Government of Mysore by order 12 O.S.No.4187/2012 dated 13.5.1972 issued gazette notification to implement the scheme under the scheme, the Revenue Department, Bengalure North Taluk identified Sy.No.38 and 39 of Giddadakonenahalli village and formed residential layout and defendant No.1 to 3 have denied the knowledge about formation of residential layout in order to implement Central Government scheme of sites for rural people and called upon the plaintiff to prove the grant of land for implementation of Central Government scheme in Sy.No.38 and 39 of Giddadakonenahalli village and defendants in respect of para No.4 of the plaint averments admitted the pleadings stated by the plaintiff and further called upon the plaintiff to prove that he has been allotted house site No.283 by issuances of Hakkupathra in Sy.No.38 and 39 of Giddadakonenahalli village and defendants also denied the plaint allegations made in para No.5 to 12 denying their knowledge and further contended that the defendant No.1 to 3 are not parties in W.P.No.5511-5529/2011 and the said proceedings are matter of records. Hence, defendants have denied the further averments of plaint as pleaded in para No1.3 to 17 and also denied cause of action as stated by the plaintiff and plaintiff has not paid appropriate court fee and also under valued the suit, wherein plaintiff has to pay court fee on the market value of the property. And defendant No.1 to 3 pleaded true facts of the case in para No.15 13 O.S.No.4187/2012 contending that defendants for the purpose of formation of residential layout called further extension of Sir M.Visheweshwariah Layout had acquired certain lands in Harohalli, Mallathahalli and Giddadakonenahalli village respectively of Yeswanthapura Hobli, Bengalure North Taluk. Accordingly, preliminary notification dated 8.4.2003 have also been notified a proposed to be acquired several lands including Sy.No.38 and 39 of Giddadakonenahalli village and also notified for the acquisition of formation of said layout and thereafter, on 9.9.2003, the defendant BDA has issued final notification and acquired land Sy.No.38 and 39 including suit schedule property and final notification was issued in respect of villages notifies in the notification and possession was taken over and layout was formed as per layout plan and sites of various dimensions i.e., 20X30, 30X40, 40X60 and 50X80 have been allotted to 286 allottees in the said survey number and BDA has also prepared sketch map and defendant No.1 to 3 have relied upon preliminary notification, final notification and sketch map as document No.1 to 3 and defendants have issued final notification for total extent of 510 acres for formation of above said layout in Sy.No.38 and 39 to an extent of 50 years, which is also part and parcel of 510 acres of land acquired by BDA and Sy.No.38 and 39 are Government lands (gomala) and BDA formed layout after issuance of 14 O.S.No.4187/2012 preliminary/final notification and acquired the lands and during the said period, wherein in land Sy.No.38 and 39 the Little Flower Educational Institution and Buddha Education Society got sanction of land for the purpose of running educational institutions on the basis of lease and BDA has questioning the validity of grant of land to above said educational institution by filing writ petition in W.P.No. 7756/2006 C/W W.P.No.7261/2006 and W.P.No. 2381/2006, wherein these writ petitions came to be dismissed and being aggrieved by the dismissal of writ petitions, the petitioners have preferred W.A.No.10222/2008 and W.A.No.1023/2008, wherein these two writ appeals came to be allowed and plaintiff was not party to the said proceedings. Hence, BDA after acquiring the land formed the layout and allotted the sites and the allottees of the defendant BDA has challenged the order passed in writ appeal before Hon'ble Apex Court in C.C.No.1004-1006/2011 contending that the land in question i.e., Sy.No.38 and 39 were allotted as sites by BDA during the year 2004, but they were not impleaded as party and writ petitions and writ appeals filed by the beneficiaries under the said scheme and on that account, they did not got opportunity being heard and hence, they sought to set aside the orders passed in writ appeals and Hon'ble Apex Court was pleased to pass the order stating that it was proper to direct that the review 15 O.S.No.4187/2012 petition filed by the allottees shall be entertained by the High Court and decide the matter after giving opportunity of hearing to all the parties and now the revenue petition is pending before Hon'ble High Court in R.P.No.125/2011 and Deputy Commissioner wrote a letter to Tahasildar to verified with regard to the genuiness of beneficiaries with respect to the same, allotment made in respect of sites in Sy.No.38 and 39, wherein Tahasildar issued public notice on 14.6.2009, which was challenged by the allotted beneficiaries by filing writ petition in W.P.No.17207/2009 and in all the above said proceedings, the plaintiff is not a party and plaintiff has filed writ petition before Hon'ble High Court in W.P.No. 19768-19790/2011 challenging the order of demolition issued by the defendant. The plaintiff noting that there was no construction over the suit schedule property and gave up her other releifs sought and sought liberty to approach the appropriate forum. Hence, the attempts are being made by the plaintiff to knock off the valuable property without she being in possession over the schedule property and also there being no right, title and interest over the schedule property and defendants have denied the possession plaintiff over the schedule property and also at no point of time, she constructed any kind of structure or shed over the suit schedule property and plaintiff has not produced any documents to show that there was construction or shed 16 O.S.No.4187/2012 exists over the schedule property. Hence, the suit of the plaintiff is liable to be dismissed with exemplary costs. Hence, defendant No.1 to 3 on these defense contested the suit filed by the plaintiff and pray for dismissal of the suit.
4. On the basis of the pleadings, the P.O of CCH No.41 has framed the following Issues on 28.4.2014:-
1. Whether plaintiff proves that BDA has illegally demolished her(plaintiff's) building thereby caused loss of more than Rs.1,25,000/- as alleged?
2. Whether the plaintiff proves that she is in possession and enjoyment of the schedule property ?
3. Whether the plaintiff proves that act of BBMP Authorities declining to issue Khatha and Sanction plan for construction as per Byelaws is highly illegal and unjust?
4. Whether the plaintiff further proves alleged interference by the defendants?
5. Whether the plaintiff is entitled for the relief sought for?
6. What Order or Decree?
5. In order to prove the above issues, the GPA holder of plaintiff namely Sri. Tarun Kumar son of M.ramesh Kumar 17 O.S.No.4187/2012 has filed his affidavit evidence in lieu of examination-in-chief and plaintiff's GPA holder is further examined on 8.4.2013 and affirmed his affidavit evidence filed as examination-in- chief and thereafter, the chief examination of P.W.1 deferred at the request of counsel for plaintiff. Hence, documents produced by the plaintiff are not marked in the evidence of P.W.1 and subsequently P.W.1 not appeared to give evidence and this court posted the matter for cross-examination of P.W.1 and subsequently P.W.1 remained absent and this court by grant of sufficient opportunity constrained to close the evidence of P.W.1 with an observation that P.W.1 not tendered for cross-examination and accordingly, P.W.1 is discharged in this case and thereafter, this court taken as no further evidence of plaintiff on 9.11.2015 and posted the suit for defendants evidence and though defendants have been granted with sufficient time to lead rebuttal evidence, but defendants have not lead any rebuttal evidence in this case and ultimately this court closed the evidence of defendant as "Nil" on 22.2.2015 and posted the matter for arguments.
6. Though plaintiff was given sufficient opportunity to argue the matter, but there is no response on the side of plaintiff before the bench and consequently, it is taken as plaintiff's side arguments as heard and thereafter, I have heard the arguments of counsel for defendants and posted 18 O.S.No.4187/2012 the matter for judgment and learned counsel appearing for the defendant has relied upon the following decisions:-
1. (2013) 3 SCC 66 ( The Commissioner, BDA Vs. Brijesh Reddy)
2.ILR 2007 Karnataka 5121 (M.B.Bettaswamy Vs. BDA)
8. After hearing the arguments of plaintiff and on perusal of the pleadings of both parties and on appreciation of evidence of P.W.1. I answer the above issues are as follows:-
Issue No.1 to 4: In the negative
Issue No.5: Plaintiff is not entitled for the relief of
permanent injunction or relief of
mandatory injunction as against
defendants.
Issue No.6: The suit of the plaintiff deserves to be
dismissed for the following reasons:
REASONS
9.Issues No.1 to 4 : The plaintiff herein has filed
this suit for permanent injunction and for the relief of
claiming alleged damages/compensation suffered by the
plaintiff in respect of illegal act of demolition of plaint schedule property by defendant No.2, 3 and 4, wherein plaintiff also 19 O.S.No.4187/2012 prayed for direction to the defendants to issue katha certificate and sanctioned plan as per building bye-laws of Karnataka Municipal Corporation Act 1976 and for consequential relief of permanent injunction restraining the defendants not to cause any obstruction or interference over the possession plaintiff in respect of suit schedule property.
10. The defendant No.1 to 3 have filed their written statement, wherein they have denied the entire plaint allegations in toto and on the contrary, defendants No.1 to 3 have specifically contended that BDA has acquired property and formed layout and allotted sites and the allottees of BDA have challenged the orders passed in the writ appeal before Hon'ble Apex Court in C.C.No. 1004-1006 of 2011 contending that land in question i.e., Sy.No.38 and 39 were allotted as sites by BDA during the year 2004 and Hon'ble Apex Court was pleased to pass the order stating that it was proper to direct that review petition filed by the allottees shall be entertained by the Hon'ble High Court and decide the matter after giving opportunity of hearing to all the parties and defendant No.1 to 3 have stated that the review petition is pending before Hon'ble High Court in R.P.No.125/2011 and defendants also contended that the Deputy Commissioner wrote a letter to Tahasildar to verify with regard to genuiness of beneficiaries. With respect to same, the Tahasildar issued 20 O.S.No.4187/2012 public notice on 14.6.2009, which was challenged by the alleged beneficiaries in W.P.No.17207/2009 and in all the said proceedings, the present plaintiff is not party and defendants admits that plaintiff has filed writ petition before Hon'ble High Court in W.P.No.19768-19790/2011 challenging the order of demolition issued by the defendants and plaintiff knowing that there was no construction over the schedule property gave up her other reliefs sought and sought liberty to approach the appropriate form and as such, the attempts are being made by the plaintiff to knock of the valuable property without she being in possession of suit schedule property and also plaintiff has no right, title and interest over the schedule property. Hence, with these contentions, parties have filed their pleadings and in order to prove the case of the plaintiff, plaintiff herein has examined her GPA holder namely Sri. Tarun Kumar son of M.Ramesh Kumar, who has deposed in this suit by way of filing affidavit evidence filed under Order 18 Rule 4 of CPC and on perusal of the evidence of GPA holder P.W.1, wherein he deposed that there was a circular issued by the Central Government (Government of India) to all the states concerned and including Union territories to implement a scheme known as "provision of House Sites to the Families of Landless Workers in Rural Areas" and in pursuant to the said direction of Government of India, wherein Government of Mysore by its order dated 13.5.1972 issued a gazette 21 O.S.No.4187/2012 notification for implementation of sites to rural people and implementation of the scheme, wherein the State Government directed the Deputy Commissioner to implement this scheme of Central Government in respect of allotment of sites through Revenue Department and accordingly, Sy.No.38 and 39 of Giddadakonenahalli village, Yeswanthapura Hobli, Bengalure North Taluk measuring 40 acres 36 guntas and 7 acres 18 guntas respectively totally measuring 48 acres 14 guntas was acquired for formation of residential layout and accordingly, 910 sites have been formed comprising of these two survey number and accordingly, as per the direction of Government, the Tahasildar has called for applications for allotment of sites from aspirants of the sites, who are belongs to poor class people and residing in rural area and plaintiff is one of the aspirant, who applied for grant of sites under the Central Government scheme, wherein Tahasildar has issued site No.283 in Sy.No.38 and 39 of Giddadakonenahalli village, Yeswanthapura Hobli, Bengalure North Taluk measuring 45ft., X 35 ft., by issuance of Hakkupathra on 30.7.1975 in commemoration of 25 years of Independent day celebration and delivered possession of the said site under Rural Housing Scheme and plaintiff's GPA holder stated that on the basis of Hakkupathra, plaintiff got mutated her name in the records of Grama Panchayath, Harohalli and she is paying tax to the Grama Panchayath authority and subsequently in the year 22 O.S.No.4187/2012 2007, the Harohalli Grama Panchayath was included ( Amalgamated) in the limits of BBMP and said property was assessed to tax by BBMP and accordingly, plaintiff claims title and possession over site No.283 and plaintiff is paying regularly tax to BBMP as she is the owner of the schedule property, site No.283 and GPA holder of plaintiff deposed in his affidavit that BDA has formed sites and formed layout called as "Sir M.Visweswaraiah Further Extension" and issued preliminary notification on 8.4.2003 and final notification on 9.9.2003 acquiring the entire land comprising in Sy.No.38 and 39 of Giddadakonenahalli village and BDA requested to Revenue Department to transfer the possession of lands comprising in Sy.No.38 and 39 of Giddadakonenahalli village to form layout. But BDA has not yet taken possession of the other lands in accordance with land acquisition proceedings and in this regard, Tahasildar, Bengalure North Taluk written letter/endorsement dated 5.3.2005 stating that these two lands have not been transferred to BDA. Hence, BDA without obtaining possession of the lands, Sy.No.38 and 39, wherein BDA rushed to issue final notification and also prepared layout plan, but BDA has not taken actual peaceful possession of the land nor formed any layout in the above said two survey numbers. Hence, P.W.1 stated that the BDA officials without making legal inspection or without any conducting spot mahazar without following rules and regulations of BDA 23 O.S.No.4187/2012 Act and Karnataka Municipal Corporation Act 1976 has prepared plan showing house sites in these two survey numbers and tried to form layout and due to objections of plaintiff and other site owners, BDA was unable to form the layout as proposed and P.W.1 stated that BDA issued demolition order dated 18.3.2011 alleging that there are unauthorized constructions and P.W.1 stated that plaintiff and other site owners on 3.6.2011 approached Hon'ble High Court by filing writ petition challenging the demolition order and there was interim order passed on 14.6.2011 and stayed the demolition order and also directed the notice to BDA and other respondents. Hence, inspite of filing of writ petition and interim order granted in writ petition, the BDA officials on 20.6.2011 by using man and machine power and with the help of police, demolished the construction in Sy.No.38 and 39 of Giddadakonenahalli village , which includes the house of the plaintiff and house of the plaintiff was demolished by the BDA officials and damaged the plaint schedule property and also removed electrical poles and disturbed the approach road and other civic amenities in that entire land belongs to BDA and P.W.1 in his deposition stated that defendants have illegally demolished the existing house property and plaintiff has invested his hard of money of Rs.1,25,000/- for construction of building and in view of demolition by BDA officials, the plaintiff has suffered loss and as such, P.W.1 stated that due 24 O.S.No.4187/2012 to illegal demolition of existing structure, the BDA is liable to pay compensation and damages to the plaintiff for no fault of plaintiff and hence, P.W.1 deposed in his evidence alleging that BDA and other defendants have demolished the existing structure of the plaintiff existed in site No.283 in Sy.No.38 and
39. Though GPA holder of plaintiff has deposed by filing this affidavit evidence and also on 8.4.2013, P.W.1 entered the witness box and affirmed this affidavit evidence as examination-in-chief. But subsequently P.W.1 remained absent and not appeared and given evidence and also he did not get marked any documents in his evidence and on perusal of order sheet proceedings, wherein this suit is transferred from the court of CCH No.41, wherein on 8.4.2013, the evidence of P.W.1 is taken on record when this case was pending before CCH No.41 and on that day, P.W.1 partly examined and no documents are marked and matter was adjourned to 5.6.2013 for further examination of chief of P.W.1 and from that date, the matter was adjourned for further examination-in-chief and thereafter, defendant No.1 to 3 have filed written statement with leave of the court, written statement was accepted and thereafter, issues have been framed and thereafter, matter was again posted for plaintiff's evidence, wherein plaintiff has produced certain documents under I.A.No.5, for which, defendants have submitted no objections and I.A.No.5 came to be allowed on 24.7.2014 and 25 O.S.No.4187/2012 thereafter matter was posted for further examination of P.W.1 and in the mean time, this case is transferred from CCH No.41 to this court on 15.4.2015 and from 15.4.2015 till 9.11.2015. P.W.1 remained absent before this court and thereby this court on 9.11.2015 constrained to close the evidence of P.W.1 and also this court posted the matter for cross of P.W.1 and due to absence of witness, P.W.1 this court taken as P.W.1 not tendered for cross-examination and accordingly, discharged P.W.1 on 26.9.2015 and taken as further evidence of plaintiff "Nil" and posted the matter for defendants evidence. However, defendants also not adduced any evidence, wherein defendant No.4 appeared in this suit, but not filed written statement and this matter was posted for arguments and though plaintiff was given opportunity to argue the matter, but there is no representation on behalf of plaintiff before this court and thereby I have heard the arguments of counsel for defendants and plaintiff side arguments taken as "heard" , wherein though plaintiff has filed this suit for compensation and for damages alleging that defendant No.2, 3 and 4 have illegally demolished the structure of plaint schedule property constructed by the plaintiff on 20.6.2011. But plaintiff has not produced any iota of documentary evidence to show that her name has been duly mutated in the katha extract maintained by BBMP as schedule property is now vested within the jurisdiction of BBMP since the year 2007. On 26 O.S.No.4187/2012 the contrary, plaintiff claiming her alleged title on the basis of Hakkupathra issued on 30.5.1975 by the Tahasildar, Bengalure North Taluk and though plaintiff had examined her GPA holder i.e., P.W.1, but P.W.1 except filing his affidavit evidence, he has not got marked any documents in this suit and plaintiff is claiming title and interest in the alleged site formed in Sy.No.38 and 39 of Giddadakonenahalli village alleging that the Government had formed sites to implement the Central Government scheme of providing residential sites to landless and poor people, but no documents are placed on record except producing Hakkupathra and some Grama Panchayath records, wherein plaintiff has produced extract of demand register and proposed sanctioned plan, which is signed by the President, Harohalli Grama Panchayath, Yeswanthapura Hobli, Bengaluru and also construction of building permission letter, which is dated "Nil" issued by President, Grama Panchayath, Harohalli, wherein plaintiff has produced one photograph of plaint schedule property and also produced C.D, but none of these documents are marked through evidence of P.W.1 and hence, unless and until documents are marked as exhibits in civil proceedings, wherein court cannot rely upon unmarked documents for appreciation while disposing of the suit and on the contrary, it is the specific contention of defendants that BDA has acquired this property for the purpose of formation of layout called as 27 O.S.No.4187/2012 "Sir.M.Visweswaraiah Further Extension" and acquired Sy.No.38 and 39 by recourse to land acquisition proceedings in respect of grant of 40 acres of land comprising of these two survey numbers and allotment made to beneficiaries of sites and hence, defendants contesting the suit denying the existence of any house structure constructed by the plaintiff over the schedule site and also denied the alleged possession of plaintiff over schedule site No.283 as on the date of suit and defendants contended that BDA has acquired entire land comprising of Sy.No.38 and 39 for the purpose of formation of layout called as "Sir.M.Visweswaraiah Further Extension". On perusal of the xerox documents available on record, wherein there are several writ petitions filed before the Hon'ble High Court, wherein the Executive Engineer attached to BDA has issued Annexure-D ordering for demolition of unauthorized constructions in Sy.No.38 and 39 of Giddadakonenahalli village in Block No.7 and 8 of "Sir.M.Visweswaraiah Further Extension" layout relying upon Commissioner order dated 18.3.2011, wherein the site owners have preferred writ appeal in No.997/2008 C/W W.A.No.1022 and 1023 of 2008, praying for setting aside the order dated 30.5.2008 made in W.P.No. 7756/2006, wherein these writ appeals are disposed off by the Hon'ble High Court, wherein it is held by the High Court in the writ appeal order that petitioners in that writ petition are entitled for the respective sites unless and until their 28 O.S.No.4187/2012 possession is resumed by the Government in accordance with procedure and in the manner known to law. There are other writ petitions filed by allotted site owners in that survey number in W.P.No.17026-33 of 2008(Land Acquisition) and Hon'ble High Court disposed off these writ petitions on 17.8.2009 holding that the petitioner in this writ petitions are entitled for benefits as per order passed by the Division Bench in the writ appeals filed in W.A.No.997/2008 dated 17.10.2008 and further batch of writ petitions were filed in W.P.No.17207/2009 and C/w W.P.Nos.5511-5529/2011 (KLR- RES ) were filed before Hon'ble High Court and these writ petitions were disposed off on 26.7.2011, wherein these writ petitions are also disposed off, wherein writ petitions are allowed in part and communication No.LND(N) CR -42/03-04 dated 20.5.2009 at Annexure-E and paper publication dated 14.6.2009 issued by Respondent No. 2 and 3 produced at Annexure-G are quashed and there are writ petitions filed in No.19768 to 19790 by one C.R.Nagaraju and others , wherein the Hon'ble High Court passed order in this Misc. W.6546/2011 on 24.6.2011 ordering that respondents authorities are directed not to interfere with possession of the petitioners as per Hakkupathra in so far as land Sy.No.38 and 39 of Giddadakonenahalli village, Bengalure North Taluk is concerned. But in this Misc.W.No.6546/2011 in W.P.No.19768 to 19790/2011, plaintiff is not party in this batch of writ 29 O.S.No.4187/2012 petitions and subsequently some others have filed writ petition including plaintiff herein in W.P.No.19768 to 19790 of 2011 (BDA) and these writ petitions are disposed on 17.11.2011 before Hon'ble High Court, wherein writ petitions are accordingly, allowed, no order as to costs, wherein Hon'ble High Court reserved liberty to BDA to issue show cause notice in accordance with law and on considering the cause , if any shown by the petitioners, it may proceed further in the matter in accordance with law and liberty as sought by the petitioners for approaching the appropriate forum for getting the khatha is granted by the Hon'ble High Court and further High Court has observed that it is needless to observe that it is also open to the respondents or any other party to resist the petitioners claims for the issuance of the khatha with such defenses as are permissible in law and accordingly, interim order granted in Miscellaneous W.No.6752/2011 for vacating the stay, wherein Hon'ble High Court mentioned in the writ petition order. It is therefore, dismissed as having become unnecessary. Hence, from perusal of documents available before this court, wherein plaintiff or her GPA holder failed to produce any documents of title to prove her possession in respect of site No.283 as on the date of suit and on the contrary, it is admitted fact that there is notification issued by BDA dated 8.4.2003 and final notification dated 9.9.2003 in respect of acquisition of Sy.No.38 and 39 and there are several 30 O.S.No.4187/2012 writ petitions filed before Hon'ble High Court and defendants No.1 to 3 also not produced any documents to show that they have taken actual possession of Sy.No.38 and 39 as per Sec.16(2) of Land Acquisition Act. But the plaintiff has approached this court for seeking injunction relief, which is discretionary relief of injunction and also prayed for awarding compensation /damages of Rs.1,25,000/-. But the evidence of P.W.1 is not admissible as it is not complete evidence on record. Hence, evidence of P.W.1 is discarded and I hold that the plaintiff has failed to prove that defendants have illegally demolished the alleged existing house structure in site No.283 on 20.6.2011 and existed lands to the plaintiff and on the contrary, the counsel for the defendants relied upon two decisions, wherein he relied upon a decision reported in (2013) 3 SCC 66 in the case of Commissioner, BDA Vs. Brijesh Reddy and another contending that in view of Sec.9 of CPC and Sec.54 of Land Acquisition Act, suit for injunction is barred to take cognizance by the Civil court in view of the acquisition of the property involved in the suit and he also relied upon our own High Court in a decision reported in ILR 2007 Karnataka 5121 in the case of M.B.Bettaswamy Vs. BDA and in this decision, it is held in respect of settled position of schedule property and threat of dispossession by BDA, wherein in this decision, the subject matter of land is involved that land was acquired by recourse of land acquisition proceedings and 31 O.S.No.4187/2012 there were some unauthorized constructions were put up in the land and hence, the dictum laid down/ratio in this decision that a person, who is unauthorized occupant squatting on the public property has no right to remain in possession, But this decision is not applicable to the facts of the case, wherein plaintiff is claiming her title and possession on the basis of Hakkupathra issued on 30.5.1975. Hence, this decision is not applicable to the facts of the case, but there is dispute and ambiguity regarding taking of actual possession of Sy.No.38 and 39 of Giddadakonenahalli village by BDA authority and now Hon'ble High Court has directed BDA authority to issue Show Cause Notice to the alleged site holders and then proceed in accordance with law and plaintiff's name is not mutated in respect of site No.283 in BBMP records and hence, there are no documents produced by the plaintiff and even plaintiff has not filed any documents to show that her application for mutation is pending before BBMP. Hence, the evidence of plaintiff, which is not acceptable evidence on record and it is no evidence in the eyes of law. Hence, plaintiff failed to prove Issue No.1 to 3 as against defendants and also at the threshold that plaintiff had constructed a structure or building by spending an amount of Rs.1,25,000/-. Hence, absolutely, there is no iota of evidence to accept the case of the plaintiff and as such, plaintiff failed to prove Issue No.1 to 3 as against defendants and also plaintiff has failed to 32 O.S.No.4187/2012 establish alleged interference, wherein the land is acquired by BDA in pursuance of preliminary and final notifications issued dated 8.4.2003 and 9.9.2003. Hence, plaintiff also failed to prove alleged interference by the defendants. The plaintiff has not issued any legal notice prior to the filing of the suit claiming compensation for alleged damages from the defendants, but order sheet shows that plaintiff has filed I.A.No.1 under Sec. 64 of BDA Act claiming exemption or dispensation of mandatory notice to be issued to BDA authority and I.A.No.2 filed under Sec. 482(1)(A) of Karnataka Municipal Corporation Act praying for dispensation of issuance of mandatory notice to defendant No.4 and I.A.No.3 is filed for ad-interim injunction against defendant No.2 to 4 not to interfere in the alleged possession of the plaintiff. But this court issued emergent notice of I.A.No.3 and there is no interim order granted in this case in favour of plaintiff. Hence, I hold that plaintiff failed to prove alleged interference by the defendants and accordingly, I answer Issue No.1 to 4 in negative
11. Issue No.5:- In view of my findings on Issue No.1 to 4, wherein plaintiff not stepped into the witness box to depose personally in this suit, but whereas she has appointed her agent P.W.1 as GPA holder, but P.W.1 remained absent and not turned up to give complete evidence and no documents are marked. Hence, evidence of P.W.1, which is discarded by this 33 O.S.No.4187/2012 court and as such, no relief would be granted to plaintiff in this suit and as such, I hold that the plaintiff is not entitled for any relief of damages/compensation much less mandatory injunction relief as sought for. Accordingly, Issue No.5 is answered in negative.
12. Issue No.6: In view of my findings submitted on Issues No.1 to 5 and for the reasons recorded thereon, the suit filed by the plaintiff deserves to be dismissed. Hence, I proceed to pass the following.
ORDER The suit filed by the plaintiff is hereby dismissed. However, without any order as to costs.
Draw decree accordingly.
{Dictated to the Judgment-Writer transcribed by her, corrected and then pronounced by me in open court this the 31st day of March 2016.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
34 O.S.No.4187/2012ANNEXUERE List of witnesses examined for plaintiff:-
PW.1 Sri. Tarun Kumar List of documents exhibited for plaintiff:-
...Nil...
List of witnesses examined and documents exhibited for defendant/s:
..Nil..
XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 35 O.S.No.4187/2012