Karnataka High Court
Sri K S Raju vs The Deputy Commissioner on 10 November, 2021
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.42725/2013 (LB - RES)
BETWEEN
SRI.K.S.RAJU,
SINCE DEAD
REPRESENTED BY HIS LRS.
SMT.NAGARATHNA A.H.,
W/O LATE K.S.RAJU,
AGE 33 YEARS,
R/O K.R.ROAD,
SUBHASHNAGAR,
MANDYA CITY,
MANDYA - 571 401.
... PETITIONER
[BY SRI.M.R.RAJAGOPAL, ADVOCATE
(VIDEO CONFERENCING)]
AND
1. THE DEPUTY COMMISSIONER,
MANDYA DISTRICT,
MANDYA - 571 401.
2. THE COMMISSIONER,
CITY MUNICIPAL COUNCIL,
MANDYA CITY,
MANDYA - 571 401.
2
3. THE COMMISSIONER,
MANDYA URBAN DEVELOPMENT AUTHORITY,
MANDYA - 571 401.
4. THE EXECUTIVE ENGINEER,
KARNATAKA URBAN WATER SUPPLY
& SEWERAGE BOARD,
MANDYA - 571 401.
... RESPONDENTS
[BY SMT.PRATHIMA HONNAPURA, AGA FOR R1
(PHYSICAL HEARING);
SRI.T.P.VIVEKANANDA, ADVOCATE FOR R3
(PHYSICAL HEARING);
SRI.G.M.ANANDA, ADVOCATE FOR R2
(PHYSICAL HEARING);
SRI.H.C.SHIVARAMU, ADVOCATE FOR R4]
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER OF THE 1ST RESPONDENT DATED
30.07.2013 PASSED VIDE ANNEXURE - P AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petition calls in question an order passed by respondent No.1 - Deputy Commissioner turning down the claim of the petitioner over a property measuring 120 x 70 in the layout formed by father of the present petitioner.
3
2. Heard Sri. M. R. Rajagopal, learned counsel appearing for the petitioner, Smt. Prathima Honnapura, learned AGA appearing for respondent No.1, Sri. G. M. Ananda, learned counsel appearing for respondent No.2, Sri. T. P. Vivekananda, learned counsel appearing for respondent No.3, Sri. H. C. Shivaramu, learned counsel appearing for respondent No.4.
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
Pursuant to a partition in the family of the original petitioner, 20 guntas of land came to the share of the original petitioner, one K.S. Raju. On 12.03.1981 an order of conversion was granted in favour of K.S. Raju converting the land from agricultural to non-
agricultural purposes. On 09.06.1985, the entire extent of 2 acres and 11 guntas in Sy.No.255/1, pursuant to its conversion, about 30 sites were formed by the original petitioner of different dimensions and on such 4 formation of sites, submitted a layout plan for approval at the hands of the City Municipal Council, Mandya.
This was approved in terms of an endorsement dated 09.06.1985.
4. In the year 1987, it transpires that the original petitioner and his brother submitted an application before the Planning Authority i.e., the then City Improvement Trust Board, Mandya seeking permission for formation of a private layout in the aforesaid land. The City Improvement Trust Board, Mandya accorded approval on 08.02.1988 for formation of a private layout subject to the petitioner obtaining modified conversion order for residential purposes. The petitioner then submitted a representation to the Mandya Urban Development Authority seeking approval of a layout plan with a further request not to set apart area for park and road and permitting formation of more number of sites. After which, the original petitioner 5 undertook that he would handover certain area for the purpose of formation of road and park.
5. On 24.06.1994, the petitioner was informed by the Mandya Urban Development Authority that his request for approval of the layout plan had been turned down and no commencement certificate would be issued to the purchasers of the sites in the layout.
6. It is after that the petitioner submitted a representation that he was willing to handover 3 sites totally measuring 120 x 70 for the purpose of the park and also requested that the commencement certificate to be issued to the purchasers of the sites on this condition.
7. Later, the modified layout plan was approved showing the area of 120 x 70 to be a park. This document bears the signature of the original petitioner. The City Municipal Council, on the strength of the 6 aforesaid document, which would mean that the petitioner has relinquished the area measuring 120 x 70 in the layout, has constructed a overhead tank, which is in existence even as on date.
8. The petitioner, after about 9 years, stakes a claim that he has not relinquished the subject property measuring 120 x 70 in a manner known to law and still owns the said property and seeks that the area we given back to him. This lead to certain proceedings and a writ petition being preferred before this Court initially in the year 2007 in Writ Petition No.10202/2007. This writ petition came to be disposed on 12.02.2008 without going into the merit of the matter but with a direction to consider the case of the petitioner for retransfer of the khata of 120 x 70 area after taking into account all the relevant material, including the appropriate legal opinion. It is after the order passed by this Court, again proceedings were taken up and the claim of the 7 petitioner was turned down. This lead to the petitioner filing another writ petition in Writ Petition No.19533/2009. This came to be disposed on 04.10.2010. This Court while disposing the said writ petition, observed as follows:
"7. First respondent in the impugned order suspended the resolution passed by the second respondent on 30.6.2004. The resolution of second respondent on 30.6.2004 is only to seek the legal opinion from their advocate with regard to the claim of the petitioner. Further the Advocate of second respondent has already given his opinion as per Annexure - K. Further this court in its order dated 12.2.2008 in W.P.No.10202/2007 directed to consider the legal opinion given by the second respondent's Advocate. In the circumstances, there is no justification for the first respondent to suspend the resolution of second respondent dated 30.6.2004. The impugned order passed by the first respondent is contrary to the direction issued by this court in W.P.No.10202/2007.8
8. Now it is brought to my notice that the third respondent has completed the construction of overhead tank in a portion of the disputed land. If for any reason, it is found that the disputed land is not reserved for park area, then the respondents have to acquire the land and to pay compensation to the petitioner to the area where the overhead tank is constructed and to leave the remaining land to the petitioner. In the event of first respondent holding that the disputed land bearing site no.28, 29 and 30 is reserved for park area, then the petitioner is not entitled for any compensation.
For the reasons stated above, the following order:
i) Writ petition is hereby allowed.
ii) The impugned order at Annexure - Q dated 26.5.2009 passed by the first respondent is hereby quashed.
iii) The matter is remanded to the first respondent for fresh disposal in accordance with law keeping in mind the observations made above.
iv) Till the Deputy Commissioner passes an appropriate order both the parties are 9 hereby directed to maintain status-quo with regard to the disputed land that is site Nos.28, 29 and 30/park area, except utilising the overhead tank for public purpose.
Ordered accordingly."
(emphasis supplied)
9. Based on the aforesaid observations, the order that is passed by this Court was remitting the matter back to hands of respondent No.1 - the Deputy Commissioner for fresh disposal in accordance with law. This Court made it clear that, if the area was not reserved for a park, then the respondents have to acquire the land and pay compensation.
10. Respondent No.1 - the Deputy Commissioner undertook proceedings in terms of the order passed by this Court and after noticing the respective submissions holds that there are no records with regard to the relinquishment of the area but on the strength of the 10 contemporaneous documents that were available holds that the area 120 x 70 was infact given up by the petitioner as could be seen in the sketch. It is this order of respondent No.1 - the Deputy Commissioner that is called in question in the subject writ petition.
11. Learned counsel appearing for the petitioner, Sri. M.R. Rajagopal would contend that the order passed by respondent No.1 - the Deputy Commissioner is cryptic and bald as he does not consider any of the contentions advanced by the petitioner in the written arguments placed before it, wherein the original petitioner had clearly brought out his right to reclaim the property of 120 x 70 and would submit that the order is defended on the strength of several documents produced by the learned counsel appearing for the Planning Authority which did not form a part of the order of respondent No.1 - the Deputy Commissioner and submit that the matter requires reconsideration at 11 the hands of respondent No.1 - the Deputy Commissioner.
12. On the other hand, learned counsel, Sri. T.P. Vivekananda appearing for the Planning Authority taking this Court through the elaborate objections filed would submit that the petitioner himself has relinquished the property of 120 x 70 for public purposes, which was in tune with law. If the layout had to be approved, the relinquishment was necessary for the petitioner to have done. Therefore, the mere fact that the relinquishment deed is not executed by the petitioner, it will not take away the act of the original petitioner consciously and in accordance with law relinquishing the said area of 120 x 70.
13. Learned counsel, Sri.G.M. Ananda, appearing for the City Municipal Council would toe the 12 lines of Sri. T.P. Vivekananda, learned counsel appearing for the Planning Authority.
14. I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.
15. The afore-narrated facts being not in dispute need not be reiterated. The genesis of the issue is when the petitioner applied for sanction of a layout plan formed by him in the area owned by him. The petitioner submits a letter of undertaking on 04.03.1989 that he would relinquish such necessary area for the purpose of roads and park. The undertaking reads as follows:
"ªÀÄÄZÀѽPÉ ¥ÀvÀæ ªÀÄAqÀå ¹n, ¸ÀĨsÁµÀ£ÀUÀgÀ PÉ.Dgï.gÀ¸ÛÉAiÀÄ°è ªÁ¸ÀªÁVgÀĪÀ PÉ.¹zÉÝÃUËqÀgÀ ªÀÄUÀ£ÁzÀ PÉ.J¸ï.gÁdÄ §gÉzÀÄPÉÆlÖ ªÀÄÄZÀѽPÉ ¥Àvæ.À K£ÉAzÀgÉ, QgÀUÀAzÀÆgÀÄ UÁæªÄÀ zÀ ¸ÀªÉð £ÀA.225:1 gÀ°è 2 JPÀgÉ 11 UÀÄAmÉ ¸ÀzÀj d«ÄãÀߣÀÄß C®Ä¯ÉõÀ£ï ªÀiÁr¹PÉÆAqÀÄ gÀƪÉgÉÃeï (¯ÉÃOmï)£ÀÄß vÀAiÀiÁj¹ C£ÀĪÉÆ¢¹PÉÆqÀ®Ä ªÀÄAqÀå £ÀUÀgÁ©üªÀÈ¢Ý ¥Áæ¢üPÁgÀPÉÌ CfðAiÀÄ£ÀÄß ¸À°è¹zÀÄÝ, vÁªÀÅ ¸ÀzÀj d«Ää£À 13 ¯ÉÃOmï£ÀÄß vÀAiÀiÁj¹ PÉÆnÖgÄÀ wÛÃj. ¸ÀzÀj ¯ÉÃOmï£À C©üªÀÈ¢Ý ±ÀÄ®ÌzÀ ¨Á§ÄÛ ªÀåvÁå¸ÀzÀ ºÀt gÀÆ.14362/- UÀ¼À£ÀÄß ¥Áæ¢üPÁgÀPÉÌ ¥ÁªÀw ªÀiÁqÀ®Ä w½¹ gÀ¸ÛÉ ªÀÄvÀÄÛ GzÁå£ÀªÀ£ÀUÀ¼À ¸À®ÄªÁV vÉÆÃjzÀ ¨sÀÆ«ÄAiÀÄ£ÀÄß ¥Áæ¢üPÁgÀPÌÉ ºÀ¸ÁÛAvÀgÀ ªÀiÁqÀ®Ä w½¹gÀÄ«j. FUÀ F PÁgÀtUÀ½AzÀ ²æà ªÀÄAdÄ£ÁxÀ JA§ÄªÀjUÉ F ¯ÉÃOmï£À°è ªÀÄ£ÉPÀlÖ®Ä DgÀA¨sÀ zÀÈrüÃPÀgÀt ¥ÀvæÀ PÉÆqÀzÉ vÀqÉ»r¢gÀĪÀÅzÀÄ ¸ÀjAiÀĵÉ×.
£Á£ÀÄ vÁªÀÅ w½¹zÀÝPÉÌ C©üªÀÈ¢Þ ±ÀÄ®ÌzÀ ªÀåvÁå¸ÀzÀ ºÀt gÀÆ.14362/-00 UÀ¼À£ÀÄß PÀlÖ®Ä ¹zÀݤzÉÝãÉ. DzÀgÉ £À£ÀUÉ DyðPÀ vÉÆAzÀgÉUÀ½AzÀ CzÀ£ÄÀ ß E°èAiÀĪÀgÉUÉ ¥ÁªÀw ªÀiÁqÀ®Ä DUÀ°®è. PÁgÀt zÀAiÀÄ«lÄÖ vÁªÀÅ £À£ÀUÉ ¸ÀzÀj gÀÆ.14362/-00 UÀ¼À£ÀÄß ¥ÁªÀw ªÀiÁqÀ®Ä ªÀÄÆgÀÄ wAUÀ¼ÄÀ UÀ¼À CªÀ¢üAiÀÄ£ÀÄß PÉÆqÀ¨ÉÃPÁV «£ÀAw. £Á£ÀÄ ¥Àæw wAUÀ¼ÄÀ gÀÆ.4788/-00 UÀ¼ÀAvÉ ªÀÄÆgÀÄ PÀAvÀÄUÀ¼À°è ¤ÃªÀÅ «¢ü¹zÀ C©üªÀÈ¢Þ ±ÀÄ®Ì gÀÆ.14362/-00 UÀ¼À£ÀÄß vÀ¥ÀàzÉ ¥Áæ¢üPÁgÀzÀ°è ¥ÁªÀw ªÀiÁqÀĪÉ.
JgÀqÀ£ÉAiÀÄzÁV ¸ÀzÀj ¯ÉÃOmï£À°è vÉÆÃj¹zÀ gÀ¸ÛÉUÀ¼ÄÀ ªÀÄvÀÄÛ GzÁå£ÀªÀ£ÀUÀ¼À d«ÄãÀߣÀÄß E£ÀÄß ºÀ¢£ÉÊzÀÄ ¢ªÀ¸ÀUÀ¼ÉƼÀUÁV ¥Áæ¢üPÁgÀPÉÌ ºÀ¸ÁÛAvÀgÀ ªÀiÁrPÉÆqÀÄvÉÛãÉ.
²æà ªÀÄAdÄ£ÁxÀ JA§ÄªÀjUÉ PÀlÖqÀªÀ£ÄÀ ß PÀlÖ®Ä ¨ÁåAQ¤AzÀ ºÀtªÀ£ÀÄß ¸Á®zÀ gÀÆ ¥ÀqÉAiÀÄ®Ä CªÀ¢ü ªÀÄÄVAiÀÄÄvÁÛ §A¢zÀÄÝ CªÀ¢üAiÀÄ£ÀÄß «¸ÀÛj¹PÉƼÀî®Ä ¸ÁzsåÀ «®èzÀAvÁVzÉ. »ÃUÁV CªÀgÀÄ §½ vÉÆAzÀgÉVÃqÁVzÁÝgÉ. DzÀÄzÀjAzÀ £Á£ÀÄ §gÉzÀÄ PÉÆlÖ 14 ZÁ¥ÁPÁUÀzÀzÀ ªÀÄÄZÀѽPÉAiÀÄ DzsÁgÀzÀ ªÉÄÃgÉUÉ zÀAiÀÄ«lÄÖ ²æà ªÀÄAdÄ£ÁxÀ EªÀjUÉ PÀÆqÀ¯Éà DzsÁAiÀÄ zÀÈrüÃPÀgÀt ¥Àvæª À À£ÄÀ ß ¥Áæ¢üPÁgÀ¢AzÀ ¤ÃqÀ¨ÉÃPÉAzÀÄ vÀªÄÀ ä°è «£ÀAw¹PÉƼÀÄîvÛÉãÉ.
ªÉÄÃ¯É w½¹gÀĪÀ £À£Àß ªÀÄÄZÀѽPÉAiÀÄÄ ¤dªÁVzÀÄÝ, MAzÀÄ ªÉÃ¼É ¤UÀ¢üvÀ PÁ¯ÁªÀ¢üAiÀÄ M¼ÀUÁV £Á£ÀÄ ºÀt PÀlÖ®Ä vÀ¦àzÝÀ °è MAzÉà ªÉÆvÀÛzÀ°è ¥ÀÆvÁð ºÀtªÀ£ÄÀ ß vÁªÀÅ ºÉýzÀ ¢£ÁAPÀzÀAzÉà ¥ÁªÀw ªÀiÁqÀÄvÉÛãÉAzÀÄ ºÁUÀÆ gÀ¸ÛÉ ªÀÄvÀÄÛ GzÁå£ÀªÀ£ÀUÀ¼À d«ÄãÀߣÀÄß E£ÀÄß ºÀ¢£ÉÊzÀÄ ¢£ÀUÀ¼Æ É ¼ÀUÁV ¥Áæ¢üPÁgÀPÌÉ ºÀ¸ÁÛAvÀgÀ ªÀiÁqÀ®Ä vÀ¦àzÀÝ°è vÁªÀÅ ¥Áæ¢üPÁgÀzÀ ¤AiÀiÁªÀĪÀ½UÀ¼À ¥ÀæPÁgÀ ¸ÀÆPÀÛ PÀæªÄÀ vÉUÉzÀÄPÉƼÀÀÄzÁVzÉ."
16. After which, the petitioner again represents to the Planning Authority on 28.07.1995. This representation comes about in the wake of the Planning Authority declining to grant commencement certificate to the purchasers of the site in the layout formed by the original petitioner. The representation reads as follows:
"EAzÀ, PÉ.J¸ï.gÁdÄ ªÀiÁf £ÀUÀgÀ ¸À¨sÁ ¸ÀzÀ¸åÀ gÄÀ ªÀÄAqÀå.
UÉ, DAiÀÄÄPÀÛgÀÄ, 15 ªÀÄAqÀå £ÀUÀgÁ©üªÀÈ¢Ý ¥Áæ¢üPÁgÀ, ªÀÄAqÀå.
ªÀiÁ£ÀågÉ, ªÀÄAqÀå ¹n, ¸ÀĨsÁµÀ£ÀUÀgÀ PÉ.Dgï. gÀ¸ÛÉAiÀÄ°è ªÁ¸ÀªÁVgÀĪÀ PÉ.¹zÉÝÃUËqÀgÀ ªÀÄUÀ£ÁzÀ PÉ.J¸ï.gÁdÄ §gÉzÄÀ PÉÆAqÀ Cfð.
K£ÉAzÀgÉ, QgÀAUÀAzÀÆgÀÄ UÁæªÀÄzÀ ¸ÀªÉð £ÀA.225:1 gÀ°è 2 JPÀgÉ 11 UÀÄAmÉ d«ÄäzÀÄÝ 81gÀ°è C£ÁåPÁæAvÀ ªÀÄAdÆgÁV 82gÀ°è £ÀUÀgÀ¸À¨sÉUÉ C©üªÀÈ¢Þ ±ÀÄ®Ì ¸ÀĪÀiÁgÀÄ 40 ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÄÀ ß PÀnÖ £ÀªÀÄä £ÀªÀÄä ºÉ¸ÀjUÉ SÁvÉAiÀÄÄ PÀÆqÀ DVgÀÄvÉÛ. ªÀÄvÀÄÛ ªÀÄAqÀå £ÀUÀgÁ©üªÀÈ¢Þ ¥Áæ¢üPÁgÀPÌÉ 27800 gÀÆ GvÀÛªÄÀ ±ÀÄ®Ì ªÀÄvÀÄÛ ¥Àj²Ã®£É ±ÀĮ̪À£ÀÄß PÀÆqÀ PÀnÖgÄÀ vÉÛ »ÃVgÀĪÀ°è ¸ÁªÀðd¤PÀjUÉ ¸ÀܼÀªÀ£ÀÄß PÁ¢j¹gÀĪÀÅ¢®è JAzÀÄ DgÀA¨sÀzÈÀ rüÃPÀgÀt ¥ÀvæÀ ¤ÃrgÀĪÀÅ¢®è »ÃVgÀĪÀ°è £ÀUÁgÁ©ªÀÈ¢Þ ¥Áæ¢üPÁgÀzÀ DAiÀÄÄPÀÛgÀÄ f¯Áè¢üPÁjUÀ¼ÀÄ ºÁUÀÆ £ÀUÀgÀAiÉÆÃd£À¥Áæ¢üPÁgÀzÀ C¹¸ÉÖAmï qÉÊgÉPÀÖgï ªÀÄvÀÄÛ CA¢£À ªÀiÁf £ÀUÀgÀ¸À¨Ás CzsÀåPëÀgÄÀ £ÀUÀgÀ AiÉÆÃd£É ¥Áæ¢üPÁgÀzÀ ¸ÀzÀ¸ÀågÁzÀ JA.PÉ.gÁªÀÄ°AUÉÃUËqÀgÄÀ r.¹.AiÀĪÀgÀ ºÀwÛgÀ ZÀZÉð £Àqɹ ¥ÀƪÀðPÉÌ ªÉÄîÌAqÀªÀgÀ ¸À®ºÉAiÀÄAvÉ 60 40 3 ¸ÉÊlÄUÀ¼À£ÀÄß ¥À©èPï ¥À¥ìÀðUÉ ©lÄÖ PÉÆqÀĪÀAvÉ ¸ÀÆa¹gÀÄvÁÛgÉ CzÀgÀAvÉ 3 ¸ÉÊlÄUÀ¼À£ÄÀ ß ¸ÁªÀðd¤PÀ G¥ÀAiÉÆÃUÀPÌÉ ©nÖgÀÄvÉÛãÉ. DzÀÄzÀjAzÀ ¥ÀævÉåÃPÀªÁV £ÀUÀgÀ¸À¨sÉAiÀÄ°è SÁvÉAiÀiÁVgÀĪÀ J¯Áè ¥ÀæPÀgÀtUÀ½UÀÆ DgÀA¨sÀzÀÈrüÃPÀgÀt ¥ÀvÀæ PÉÆr¹ PÉÆqÀ¨ÉÃPÉAzÀÄ PÉýPÉƼÀÄîvÉÛãÉ."
17. The petitioner in the aforesaid representation again undertakes that 3 sites measuring 60 x 40 would be given away for the public purpose and sought that the commencement certificate be issued to the purchasers of the property. This was the last 16 communication from the hands of the petitioner to the Mandya Urban Development Authority.
18. Pursuant to the aforesaid communication, the City Municipal Council took over the property measuring 120 x 70 to its fold on 29.09.1995 as could be seen from Annexure-R13. After this the City Municipal Council has constructed a overhead tank for public purpose. After about 9 years, the petitioner stakes a claim that he has not relinquished the said property and reclaims the same by seeking restoration of khata at the hands of the City Municipal Council. That having not been considered, has driven the petitioner to this Court as stated hereinabove.
19. The subsequent writ petition rendered a clear finding that, if the area is not reserved for park, then the authorities would be obliged to acquire the property in a manner known to law. Respondent No.1 - 17 the Deputy Commissioner renders a finding that it was infact rendered for a park on the relinquishment of the petitioner though not on the strength of a deed of relinquishment, but on the aforesaid documents which in unequivocal terms divulge that the petitioner did relinquish the property for the purpose of civic amenities, roads or park as the case would be. The mere fact that the deed of relinquishment is not executed by the original petitioner in favour of the Planning Authority or the City Municipal Council would not render the order passed by the Deputy Commissioner illegal or enure to the benefit of the petitioner to reclaim the said property that he had with eyes wide open relinquished, which ought to have been legally done as well.
20. It is apposite to refer to the judgment of the Co-ordinate Bench of this Court in the case of M/S. BHAVANI HOUSING CO-OPERATIVE SOCIETY 18 LIMITED V. BANGALORE DEVELOPMENT AUTHORITY AND ANOTHER1, has held as follows:
"21. From the above discussion, it is clear that the petitioner's society is bound to hand over the 'CAS' in question in favour of the 1st respondent-authority by way of relinquishment, as agreed by it while getting the sale deed executed in its favour from the BDA. Added to it, that is the requirement of law also, as contemplated U/S. 32(5) of the Act. Thus it is necessary that the petitioner be directed to comply with the said contractual and statutory obligations. However, in the case on hand, no such relinquishment deed is executed by the petitioner in favour of the BDA. But the B.D.A., suo-moto took possession of the 'CAS' in question under mahazar dated 3-12-2001 and leased the same in favour of the 2nd respondent Trust for construction of school building. As the 'CAS' in question is not relinquished by the petitioner in favour of 1st respondent authority, it cannot and consequently should not have leased the same in favour of the 2nd 1 ILR 2006 KAR 1352 19 respondent-Trust. It is also not in dispute that in pursuance of the lease deed executed by the BDA and after taking possession, the 2nd respondent-Trust has already started construction of school building by investing huge amounts. In view of my finding that the 'CAS' in question was leased by the 1st respondent in favour of the 2nd respondent for a period of 30 years on receipt of adequate amount of consideration and after due publicity as required by law, I deem it proper to safeguard the interests of the BDA as well as the 2nd respondent-Trust which is constructing the school building, by said process, the loss of public property will be prevented. In view of the same, the following order is made.
(a) The decision taken by the BDA dated 3-10-2002 to execute the lease deed in respect of Civic Amenity Site situated in Bhavani House Building Co-operative Society, Banashankari-III Stage, Bangalore in favour of the 2nd respondent is quashed.
20
(b) The petitioner is directed to relinquish the Civic Amenity Site situated in Bhavani House Building Co-operative Society Layout, Banashankari-III Stage, Bangalore as per the terms of the sale deed dated 24-10-1998 (Vide Annexure-C) within two months from today in favour of BDA.
(c) The 1st respondent BDA shall thereafter lease the said schedule 'CAS' in favour of the 2nd respondent-Trust by executing fresh lease deed without any delay, on the same terms and conditions as contained in the lease deed dated 27-2-2003 vide Annexure-K."
This Court in the case of Bhavani Housing Co- operative Society Ltd. (supra) had while observing that the BDA had suo-moto taken possession of the property without deed of relinquishment directs that the deed of relinquishment be executed by the Society therein on the ground that relinquishment of the area for civic 21 amenity is in tune with law when a private layout is formed.
21. It is not in dispute that the petitioner did form a layout and did relinquish the said area of 120 x
70. The plan that respondent No.1 - the Deputy Commissioner refers to is the one that is produced by the Planning Authority as Annexure-R17, which bears the signature of the petitioner and also bears the area of 120 x 70 being reserved for a park. It is this plan, on the strength of which, the petitioner has formed a layout and sold the sites in the layout.
22. After having sold the sites in the layout in terms of the modified plan, it would not be open to the petitioner to contend that he has not relinquished the said area in the layout and stake a reclaim to the said property. Though the order of respondent No.1 - the Deputy Commissioner does not bear complete consideration of the facts, but the documents that are 22 placed to demonstrate the conduct of the petitioner after having relinquished and wanting to wriggle out of such relinquishment, the matter need not be referred back to respondent No.1 - the Deputy Commissioner to afford an opportunity to the petitioner, as on the sheer conduct of the petitioner, who has given up his right and wants to reclaim it on the plea that the statute prescribes that a deed of relinquishment has to be executed for relinquishing the said property and that having not been done, he still continues to be the owner of the property.
23. The afore-narrated facts would in unequivocal terms indicate that the petitioner after having relinquished is now wanting to reclaim the said property. The judgment in the case of Bhavani Housing Co-operative Society Ltd. (supra) covers the issue in the case at hand on all its fours.
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For the aforesaid reasons, the writ petition lacks merit and is dismissed.
Sd/-
JUDGE SJK