Karnataka High Court
Huchappa S/O Papaiah vs Bangalore Mahanagara Palike on 26 February, 2014
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
WP 16460/05
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE RAM MOHAN REDDY
WRIT PETITION No.16460/2005 (LB-BMP)
BETWEEN:
HUCHAPPA
AGE 60 YEARS
S/O. PAPAIAH
NEAR MANJUNATHASWAMY TEMPLE
SEETHA CIRCLE, SBM COLONY
NEAR M/S. JHS COLONY
BANGALORE.
PETITIONER
(BY SRI S.SHIVANANDA, ADV. FOR
LAW A/S, ADVOCATES)
AND:
1 BANGALORE MAHANAGARA PALIKE
BANGALORE CITY CORPORATION,
BANGALORE, BY ITS COMMISSIONER.
2 SBM COLONY RESIDENTS
WELFARE ASSOCIATION
No.68, 4TH CROSS, SBM COLONY
BSK 1ST STAGE, BANGALORE - 560 050
BY ITS SECRETARY.
3 ENGINEER OFFICER
BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD, KUMARA PARK WEST
BANGALORE - 560 020.
2
WP 16460/05
4 THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD, KUMARA PARK WEST
BANGALORE - 560 020.
5 STATE BANK OF MYSORE EMPLOYEES'
HOUSING CO-OPERATIVE SOCIETY
AVENUE ROAD, REP.BY ITS SECRETARY
BANGALORE - 560 009.
RESPONDENTS
(BY SRI. B V MURALIDHAR, ADVOCATE FOR R1
H R ANANTHA KRISHNA MURTHY,
ADVOCATE FOR R2
B V SHANKARA NARAYANA RAO,
ADVOCATE FOR R3 & 4
K KRISHNA, ADVOCATE FOR R3 & R4
V S NAIK & SMT. MANJULA N KULKARNI,
ADVOCATES FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ANN-A, THE NOTICE DATED
16.5.2005 & 21.5.2006 IN SO FAR AS THE PETITIONER
IS CONCERNED AND DIRECT THE R1 NOT TO
ILLEGALLY DISPOSSESS THE PETITIONER FROM THE
SUIT SCHEDULE PROPERTY IN SO FAR AS THE
PETITIONER IS CONCERNED; ETC.
THIS WRIT PETITION COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
3
WP 16460/05
ORDER
Petitioner in possession and enjoyment of the immovable property described as civic amenity site in SBM Colony, Banashankari 1st Stage, Bangalore, measuring 8930.12 sq. mtrs, bounded on the East by road and private property, West by road and Manjunathaswamy temple; North by Jyothi Educational Society (JHS School) and; South by road, (for short 'said property') aggrieved by the notice dated 16.05.2005, Annexure-A issued by the Horticulture Superintendent, Bangalore Mahanagara Palike/ first respondent ('BMP' for short), has presented this petition to quash the notice and for directions to the first respondent not to illegally dispossess the petitioner and change the nature of the said property.
2. In the petition it is asserted that in the locality where the said property is situated, there are three parks and no play grounds except the said property and that petitioner's father and his family members have 4 WP 16460/05 been residing in a shed in the said property for more than three decades, taking care of the play ground. The 2nd respondent i.e., SBM Colony Residents Welfare Association is also said to possess a small shed in the said property. It is alleged that the 2nd respondent claiming to be an association of owners of lands in bank colony, its office bearers have an intention to convert the play ground into commercial centre, though the said property is a civic amenity site exclusively reserved for play ground from a long time and having realized that the petitioner would not give up possession of the property, instigated the 1st respondent to illegally dispossess the petitioner from the said property. It is the allegation of the petitioner that after the notice Annexure - A, the 1st and 2nd respondents colluded in issuing notice dated 24.05.2005, Annexure-B, under the signature of the 2nd respondent. It is also stated that the Bangalore Development Authority ('BDA' for short) delivered possession of the said property to M/s JHS School, SBM Colony, Banashankari I Stage, Bangalore 5 WP 16460/05 under letter dated 13.07.2000, Annexure-C. The alleged illegal act of respondent Nos.1 and 2 to evict the petitioner from the shed in the said property, has resulted in this petition, having no other alternative remedy.
3. Petition is opposed by filing statement of objections of the 1st respondent, inter-alia contending that the said property is a civic amenity site earmarked for a play ground in the revised comprehensive development plan of 1995 and measures approximately 2 acres which was transferred to the BMP, by the BDA for maintenance. It is said that the permission granted by the BDA to JHS School to maintain the property under letter, Annexure-C was for three years and on its expiry during the year 2003 is in possession and maintenance of the BMP. According to the 1st respondent, the site is used as a park and play ground in accordance with the revised comprehensive development plan following which the BMP formed a park in a portion of the said property and play ground 6 WP 16460/05 in the remaining portion enclosed by a chain linked fence, for protection from further encroachment, even before the interim order, excluding the portion occupied by three sheds, which are in the illegal and unauthorized occupation of the petitioner. According to the 1st respondent, public are using the said park and play ground.
4. First respondent further asserts that petitioner is not in possession of the said property but is in illegal occupation of a small portion of the site measuring 295.20 sq. mtrs., located at the north east corner of the said property as disclosed in the sketch, Annexure-R2. It is alleged that petitioner does not have any right to continue in possession of the said property, hence the first respondent issued the notice, Annexure-A calling upon him to vacate and deliver vacant possession of the portion of the said property in his occupation. The action to take possession of the small shed in the occupation of the 2nd respondent, it is said, is initiated by the BMP. It is further stated that the 1st respondent 7 WP 16460/05 would take possession of the property in the unauthorized possession of the petitioner, in accordance with law.
5. Petition is opposed by filing counter statement of the 2nd respondent, inter-alia, denying petitioner's assertion, as also the factum of existence of shed in which the petitioner is in possession. The 2nd respondent alleged to be an association of owners' of land, situated in the bank colony, is said to be false and that the office bearers have no intention of developing or converting the play ground into a commercial centre. It is emphatically denied that the 2nd respondent instigated the 1st respondent to illegally dispossess the petitioner from the shed in the said property. The 2nd respondent has further denied the fact that the said property is put to use as a play ground for the children in the locality. The assertion of the petitioner that his fore-fathers were residing in the premises and have taking care of the said property, is denied. According to the 2nd respondent, the association was formed and 8 WP 16460/05 registered during the year 1995, to held engage the residents of SBM Colony in social and cultural activities. In order to provide sites to its members, the society (5th respondent) is said to have acquired lands bearing Sy.Nos.12,13,15,21 and 22 of Gerehally in which a layout was formed on securing an approval of the erstwhile City Improvement Trust Board ('CITB' for short), whereafterwards, the society allotted sites to its members, popularly known as 'State Bank Colony'. After the purchase of the lands, it is stated, that on an application the lands were converted from agriculture to non agricultural purpose by the Special Deputy Commissioner. The application to the CITB led to approval of the lay out by resolution dated 08.08.1967. The sanction accorded by the BDA was subject to the condition that roads, civic amenity sites, parks and all connections such as under ground drainage and water supply lines etc., stand vested in the CITB or the Corporation of the City of Bangalore. In the layout, it is said, civic amenity sites are located in Sy.Nos.21/4, 9 WP 16460/05 12/1 and 15 of Gerehalli. The copy of the layout map Annexure-R1 demarcating the said property is marked in green, as identified by the BDA. According to the 2nd respondent, letters are addressed to the BMP and other authorities for the upkeep of the park, since it is not maintained. The BMP when reported to have addressed a letter dated 03.12.2004 to JHS School intimating the school to maintain the said property as a park, nevertheless, the 1st respondent entrusted the work to 'Kamadhenu Landscapers' after accepting its tender for formation of a park. The 2nd respondent makes reference to certain communications between the BMP and the Kamadhenu Landscapers. It is further stated that since the said property is in the park zone as per comprehensive development plan, petitioner has no right, title or interest over the same.
6. The Engineering Officer, BDA and the Commissioner BDA, respondents 3 and 4 respectively, have filed statement of objections, inter-alia, stating 10 WP 16460/05 that in the light of the averments in paragraph 10 of the memorandum of petition, admitting that the petitioner does not have any right whatsoever though his forefathers have been residing in the shed in the said property and taking care of said property, is not entitled to any relief. According to the BDA 'records' the said property is earmarked for park zone as per the comprehensive development plan, in force, Annexure- R1, and that the said property was vested in BDA by order dated 19-10-1967, Annexure R2, hence is the absolute owner of the said property. Permission was granted to JHS school for maintenance and development of the public property as a 'public park' in terms of the agreement dated 04-07-2000 and after its expiry the said property stood vested in BDA. It is further stated that the Engineer Officer-I upon a spot inspection recommended the said property to be developed as a park by the BMP, though a portion of the site is abutting JHS school and Sri Manjunathswamy temple and is fully developed into a park. The southern 11 WP 16460/05 part of the site is well protected by chain-linked fence. Engineers of the BDA are said to have periodically inspected the site and are in touch with BMP officials to protect the southern portion from encroachment. It is averred that BMP authorities would be requested to develop the southern portion of the said property into a "beautiful park". In that view of the matter it is stated, an order dated 5-11-2005 is passed directing the BMP to develop the park in the remaining portion of the land, followed by a letter dated 8-11-2005. The Commissioner, BMP requested necessary documents from the BDA in its letter dated 16-3-2006 in support of handing over civic amenity site to the corporation, in the light of the order dated 23-6-2006 of this court directing BDA not to effect transfer of the said property to the BMP if not already done and BDA to maintain status-quo as on that day BDA seeks to justify the action of the first respondent in issuing the notice Annexure - A to the petitioner to vacate and hand over 12 WP 16460/05 vacant possession of the property in unauthorized occupation.
7. BDA filed affidavit dated 4-7-2006 of B.M.Venkatesh, AEE enclosing 3 files in compliance with the order dated 20th June, 2006 and the affidavit dated 1-12-2006 of the Deputy Director of Town Planning, BDA enclosing a copy of an unsigned layout plan in blue print, Annexure-A. In the affidavit it is stated that despite a search in the town planning section of the BDA, the original plan with the signature of the authorities and approval during 1972, in respect of the lay out sanctioned in favour of SBM Employees Housing Co-operative Society, Hanumanthnagara, Bangalore, the 5th respondent, vide Resolution No.892, dated 15-11-72 of the City Improvement Trust Board, Bangalore in Sy.No.12/1, 15, 21(2B), 21/13, 21/4, 21/5, 21/6 and 22/2 of Gerehalli, is not available and what is available is an unsigned tracing sheet. Yet another affidavit dated 18.8.2008 of the town planning 13 WP 16460/05 member states that the tracing sheet available in the file is enclosed to the affidavit.
8. The 5th respondent SBM Housing Co-operative Society having its office at Avenue Road, Bangalore, filed statement of objections dated 11-2-2006 advancing the plea that the writ petition is not maintainable and the petitioner has to work out his remedy before the appropriate forum. According to the 5th respondent it is a society registered under the Karnataka Co-operative Societies Act, 1959 with the aims and objects of procuring land and forming layouts for distribution of sites to members who are employees of the State Bank of Mysore. The society is governed by bye-laws duly approved by the Registrar of co-operative societies. That society is said to have purchased a total of 22.37 acres of land comprised in different survey numbers of Gerehalli, Kasaba Hobli, Bangalore North Taluk and obtained orders of the Deputy Commissioner, Bangalore District, on 21-2-66 for conversion from agricultural to non-agricultural purposes. Enclosed to the statement is 14 WP 16460/05 an extract dated 30.11.2006 issued by the Asst. Director of Land Records, Annexure R5(A) with remarks that the property purchased by the Society is converted to non-agricultural purposes and is mortgaged to State Bank of Mysore. The CITB in its resolutions dated 30- 6-67 and 21-1-1970 is said to have approved the layout subject to providing civil amenity site constituting 15% of the total area of the layout. According to the respondent the said civic amenity sites consisted of several trees, hence called horticultural land as evident from the sale deed dated 1.5.1966 executed by the land owner K.Chandrashekar in favour of the society. The said property is said to be one of the four civic amenity sites abutting which is JHS school, having approached the BDA for maintenance of the park, an agreement was drawn up between BDA and the said school to maintain the same as a public park, though, the claim for renewal for 30 years was rejected. It is asserted that more than 100 saplings with individual tree guard, jogging track for youth and footpath for aged and a mini 15 WP 16460/05 park for children are formed in the said property. It is stated that the society did not in writing execute a relinquishment deed releasing and relinquishing the four civic amenity sites in favour of the BDA since no such demand was made by the BDA. In addition it is stated that the Civic Amenity Sites though not owned by the society, nevertheless, require to be converted into civic amenities for use by general public, and to be maintained, either, by BDA or BMP. It is further stated that CITB in its resolution dated 8-8-1967 according sanction of the private layout, imposed a condition that, post development, the property would vest in BDA and hence, the said property is put to use as a public park. The averments in the memorandum of writ petition to the contrary are denied. By a memo dated 9-1-2012 the 5th respondent filed xerox copies of two sale deeds dated 11-10-65 and 11.5.66 to which petitioner filed objections dated 17-2-2012 stating that the documents furnished by the 5th respondent are not in conformity with the layout plan, hence impermissible while plan 16 WP 16460/05 forming part of the instrument, are not forthcoming and the schedules of the properties conveyed under the sale deeds do not form a part of the schedule of the layout in question. It is further stated that the 5th respondent having claimed a right over the said property has to approach the civil court.
9. The first respondent - 'BMP' filed two affidavits, one of M.Anjanappa, its Horticulture Superintendent and another Rizwan Farooq, Asst. Engineer, Horticulture, of even date, stating that prior to the interim order of status-quo the BMP formed a park and a playground in the said property, and that it was decided to construct a "Riviera Dandelion" fountain in the park portion. Having invited tenders, the bidder whose tender was accepted commenced work of excavation for laying the foundation on 17-11-2006 and on 18-11-2006, on advise, the work was stopped. The deponent undertakes not to precipitate matters until final decision in the case. The contents of both the affidavits are verbatim repetition. BMP filed yet another 17 WP 16460/05 affidavit dated 29-1-2007 of one Rizwan stating that warning is issued to the contractor not to start the work of fountain and the pit excavated was closed and land restored to its original status. The officers tendered unconditional apology for violation of the interim order dated 21-4-2006.
10. Heard the Learned Counsel for the parties, perused the pleadings, the records placed before court by the B.D.A. and examined the notices impugned. The questions for decision making are :
i) whether the petitioner has made out a case for interference in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India?
ii) whether the 'said property' was earmarked for park/playground/open space, in the layout plan approved and sanctioned as asserted by the BMP and BDA?
iii) whether the BDA and 5th respondent -
society have primafacie title to said property and if so whether BMP and Association have been put in possession of the said property, legally, so as to 18 WP 16460/05 exercise the right to evict the petitioner for the 'Shed' and to develop the said property into 'Park' and 'Play Ground'?
11. Facts not in dispute are :
i) that petitioner is in possession and enjoyment of the building being a shed constructed in the petition schedule property;
ii) that portions of the petition schedule property are put to use as a playground and park;
iii) that the BMP has fixed a chain fence surrounding the park area;
iv) that Horticultural Superintendent, BMP issued the notice dated 16-05-2005 Annexure-A, alleging that petitioner put up a construction unauthorisedly and is residing therein, though the petition schedule property is a park belonging to the BMP, which the commissioner has directed its development and that in a spot inspection held on 07-05-2005 having noticed the aforesaid fact, called upon the petitioner to vacate and hand over vacant possession of the property within 15 days.19 WP 16460/05
12. Facts in dispute are :
i) that petitioner and his forefathers have been living in the petition schedule property since more than 3 decades in the past without any interference from any person or authority and taking care of the play ground;
ii) that neither BMP nor BDA or the 5th Respondent Society are owners of the said property;
iii) that the 2nd respondent Association too has a shed (building) in the petition schedule property used for gathering of unwanted persons;
iv) that the 2nd respondent is not a lessor of the petitioner nor is the petitioner a lessee under the 2nd respondent in respect of the shed put up by the petitioner;
v) that the contents of notice dated 24-05-
2005, Annexure-B of the 2nd respondent alleging petitioner to be a tenant of the said premises and is required to vacate and hand over possession of the shed;
20WP 16460/05
vi) that the said property has been and is put to use as a play ground since there are three other parks in the locality, known as SBM colony.
vii) that there are no records to establish the said property to belong to or was a part of the layout approved by the BDA/CITB nor handing over of the same by BDA to BMP for maintenance as a park;
viii) that the alleged sanction of layout plan does not earmark the said property to be put to use as public park.
13. Regard being had to the admission of the fact that petitioner is in possession of and is residing in the shed in the said property, the respondent BMP and the BDA being 'State' under Article 12 of the Constitution of India, were required to place before Court, prima-facie, material to establish a right to exercise jurisdictions either under the Karnataka Municipal Corporation Act 1976 (for short 'KMC Act') or the Bangalore Development Authority Act, 1976 (for short 'BDA Act') or the Karnataka Town and country 21 WP 16460/05 planning Act 1961 in the matter of either, eviction of the petitioner or development of the said property as a play ground and portion of it as a park.
14. The pleadings and contents of the three files of the BDA enclosed to the Affidavit dated 04-07-2006 in compliance with the order dated 20-06-2006, as well as the unsigned copy of a blue print enclosed to the Affidavit dated 01-12-2006 of the Dy. Director Town Planning BDA, as well as the unsigned layout plan in the form of a tracing sheet, are not in the directions of establishing either sanction or permission not earmarking the said property as park, while forming a layout by the 5th respondent society/colonizer. The provisions of the Karnataka Town and Country Planning Act, 1961 (for short 'KTCP Act') make it mandatory for the colonizer to obtain prior approval and sanction of the layout plan to form a layout of residential sites, including earmarking sites meant for Civic Amenities, Parks, Playgrounds, etc. The copies of plans without authentication and in the absence of records of the 22 WP 16460/05 BDA/CITB in the matter of resolution permitting the formation of layout, the earmarking of the said property as a civic amenity site or for park/play ground, coupled with the fact that admittedly the BDA is not put in possession of the said property either by the 5th respondent colonizer, in terms of the K.T.C.P. Act, the pleas put forth by the BDA over ownership of the said property are unavailable. The KTCP Act also provides for the State to acquire the said property earmarked for park and playground in the comprehensive Development plan1985 and subsequent plans, including the Master Plan 2005, within five years of such declaration and failure to do so at the request of the owner the declaration lapses. This too is not done by the State. In short prima-facie there is no material to establish that BDA has any right, title or interest in or upon the said property or that it is earmarked in the layout plan for park, play ground or as civil amenity.
15. The 5th Respondent Society/colonizer, too failed to place material to establish either title to the 23 WP 16460/05 said property, since the two Xerox copies of sale deeds enclosed to the memo dated 09-01-2012, are incomplete document, since not accompanied by the map said to be annexed thereto to identify the 'said property' to fall with the schedules mentioned in the two sale deeds. So also in the absence of the order of the CITB/BDA according approval/sanction of the layout plan, which the 5th respondent is said to have obtained, it is needless to state that the 5th respondent is unable to establish prima-facie either title to the said property or that the said property is a part of the Civic amenity/park/playground, falling within the boundaries in the schedules to the two sale deeds supra. Sequentially the 2nd Respondent Association said to be an offshoot of the 5th Respondent Society, on the forming of the layout has not made out a primafacie, tenable plea over either ownership or possession of the said property. Yet again what is intriguing is that the 2nd and 5th Respondent Claim that the 'said property' is Civic Amenity Site and if that is so how did the 2nd 24 WP 16460/05 Respondent put up construction of a building on the said site put to alleged use for recreation, also without sanction or permission. Thus the claims of the 2nd and 5th respondent over the 'said property' are questionable in the absence of proof of tenancy of the said property by the 2nd respondent in favour of the petitioner, hence, the notice Annexure-'B' is illegal.
16. It is an admitted fact that BMP was not put in possession of the said property by the BDA in the manner known to law either by a notification under the KMC Act or BDA Act. In fact the letter dated 16-03- 2006 of the BMP addressed to BDA calling for records of title to the said property and its handing over, in the light of the order dated 23-06-2006, of this court, remains unanswered. In the circumstances, it is reasonable to infer that BMP has neither right, title or interest in the said property, so as to expend public funds in the matter of fixing a fence, making a park, playground and initiating proceeding to erect a fountain known as "Riviera Dandelion" or making a "Beautiful 25 WP 16460/05 Park' as submitted by BDA. Somebody is answerable for this blatant misuse of public funds.
17. Sequentially the 1st respondent through its Horticultural Superintendent, has no competence to issue the notice Annexure-A calling upon the petitioner to vacate the said property. So also the said property not shown to be a public premises and since, admittedly, no action is initiated under the Karnataka (Eviction of unauthorized occupants) Act 1984, over eviction of the petitioner from the said property, the notice Annexure-A cannot but be characterized as illegal and without authority of law.
18. In the circumstances the observations of the Apex Court in Gujarat Steel Tubes Ltd., V/s Gujarat Steel Tubes Mazdoor, Sabha and others1, are apposite.
"While the remedy under Art. 226 is extraordinary and is of Anglosaxon vintage, it is not a carbon copy of English processes. Article 226 is a sparing surgery but the 1 AIR 1980 SC 1896 26 WP 16460/05 lancet operates where injustice suppurates. While traditional restraints like availability of alternative remedy hold back the Court, and judicial power should not ordinarily rush in where the other two branches fear to tread. judicial daring is not daunted where glaring injustice demands even affirmative action. The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the Court's province and the remedy is appropriate to the judicial process. There is a native hue about article 226, without being anglophilic or anglophobic in attitude. Viewed from this jurisprudential perspective the Court should be cautious both in not over stepping as if Article 226 were as large as an appeal and not failing to intervene where a grave error has crept in. And an appellate power interferes not when the order appealed is not right but only when it is dearly wrong. The difference is real, though fine."27 WP 16460/05
19. So also the observations of the Apex Court in State of H.P. V/s Gujarat Ambuja Cements Ltd., and another2, are apposite : -
"In the instant case the writ petitioners had indicated the reasons as to why they thought that the alternative remedy would not be efficacious. Though the High Court did not go into that plea relating to bias in detail, yet it felt that alternative remedy would not be a bar to entertain the writ petition. Since the High Court has elaborately dealt with the question as to why the statutory remedy available was not efficacious, it would not be proper for Supreme Court in appeal to consider the question again. When the High Court had entertained a writ petition notwithstanding existence of an alternative remedy Supreme Court while dealing with the matter in an appeal should not permit the question to be raised unless the High Court's reasoning for entertaining the writ petition is found to be palpably unsound and irrational. Judgment is not vulnerable on the ground that alternative remedy was not 2 2005 AIR SCW 3727 28 WP 16460/05 availed. There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. Where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the 29 WP 16460/05 jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute."
20. In Kishore Singh Ravinder Dev, etc., V/s State of Rajasthan3 the Apex Court observed these :-
" Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly".
21. In ABL International Ltd. and Another V/s Export Credit Guarantee Corporation of India Ltd., and others4, the Apex Court observed thus:
"19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate 3 AIR 1981 SC 625 4 (2004)3 SCC 553 30 WP 16460/05 the parties to a suit. In the above case of Smt.Gunwant Kaur (supra), this Court even went to the extent of holding that in a writ petition, if facts required, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and or involves some disputed questions of fact.
27. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition :-
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.31 WP 16460/05
(c) A writ petition involving a consequential relief of monetary claim is also maintainable."
22. Applying the very same principles to the facts of this case, it is needless to observe that the dispute is over the 'said property' being a part of the scheme for formation of the layout known as 'SBM Colony' and in the layout plan allegedly sanctioned did earmark the said property as a civil amenity/park/play ground and stood vested in the CITB/BDA where after was legally transferred to BMP.
23. In order to answer the questions formulated supra the respondents though called upon to place on record all relevant documents, in their possession, since the claims are based on records, nothing worth the while is forthcoming. Exfacie, neither BDA, nor the 5th respondent Society is shown to be the owner of the said property, sequentially the BMP and the 2nd respondent Association too have not shown to be put in lawful possession of the said property, to exercise a 32 WP 16460/05 jurisdiction or a right in law to seek eviction of the petitioner from the shed in the said property, much less, to deal with the said property to develop it into a park.
24. It is settled law that the said property, if a part of the scheme for development as a layout, and earmarked for a particular purpose, cannot be put to use for any other purpose. Therefore, to contend that the master plan has earmarked the said property for use as a park, without indicating the purpose for which it was reserved in the sanctioned layout plan, if any, is unacceptable.
25. As between the parties, admittedly petitioner is in possession of the shed in the 'said property', which in the circumstances requires to be protected and status quo over the use of the said property to be maintained as an open space and playground for the children residing in the locality, moreso since learned counsel for BMP submits that no such playground is available in the vicinity except at quite a distance.
33WP 16460/05
26. If the respondents, BMP and BDA claim right, title and interest in the said property, may do so, if advised, by resorting to remedies in law including institution of civil proceeding and on obtaining necessary declaration thereafter to seek eviction of the petitioner from the shed in question, in accordance with law, if it is established to be a 'public premises', as a playground/open space.
27. The questions formulated supra are answered accordingly.
28. In the result this petition is allowed, the notices Annexures - 'A' and 'B' are quashed and a direction is issued to the respondents not to change the nature of the use of the said property for purposes, other than as a 'play ground and open space', while the park said to be formed without authority does not call for further development into a 'fountain area'.
29. At the request of learned counsel for BDA, the registry is directed to return the three files, the 34 WP 16460/05 unsigned tracing sheet and blue print, enclosed to the memo and affidavits noticed supra, to the BDA.
Sd/-
JUDGE kcm/ssy