Karnataka High Court
Smt Humayun Bano vs Bengalooru Development Authority ... on 4 July, 2013
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4th DAY OF JULY 2013
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.8570/2013 (BDA)
Between:
Smt. Humayun Bano
W/o late Poineer Abdul Hafeez Quareshi
Aged about 57 years
# G Auto Points
Kamanahalli Main Road
Ramaswamy Palya
Bengalooru-560 033 ...Petitioner
(By Sri M C Ramachandraiah, Adv.)
And :
Bengalooru Development Authority (BDA)
Rep. by its Commissioner
Kumara Park West Extension
T Chowdaiah Road
Bengalooru - 560 020 ... Respondent
(By Sri B S Sachin, Adv.)
This Writ Petition is filed under Articles 226 & 227 of the
Constitution of India, with a prayer to direct the respondent to
allotment of an alternative site bearing No.581 measuring East
to West 30 feet North to South 40 feet of Koramangala, 6 th
Block Bengalooru in lieu of site bearing 329 measuring East to
West 30 feet North to South 40 Feet of Hebbal Gangenahalli
Extension Bengalooru and etc.
This Writ Petition coming on for Preliminary hearing in
'B' group, this day, the Court made the following :
2
ORDER
The petitioner is before this Court seeking for issue of mandamus to the respondent to allot the alternate site bearing No.581, Koramangala, 6th block, Bengalooru, in lieu of site bearing No.329, Hebbal Gangenahalli Extension, Bengalooru, which has been allotted in favour of the petitioner.
2. Heard the learned counsel for the parties and perused the petition papers.
3. The fact that the petitioner had been allotted site bearing No.329 measuring 30ft x 40ft, Hebbal Gangenahalli Extension in the year 1976 is not in dispute. A lease-cum-sale agreement has also been executed in favour of the petitioner and the possession certificate was issued on 13.01.1977. Subsequent thereto, the sale deed was to be executed in respect of the said property. In that circumstance, the petitioner was before this Court in W.P.No.15214/2011 which was disposed of on 17.06.2011. In the said petition also, the prayer with regard to the 3 execution of sale deed in respect of alternate site was made. This Court on taking note of the fact that the lease- cum-sale agreement dated 04.11.1976 was executed and a possession certificate dated 13.01.1977 was issued, had also kept in view the contention put forth on behalf of the respondent. It had been contended that the petitioner is likely to have allowed the third party to take possession of the property and as such if there is any encroachment on the site, the petitioner should remain responsible for the same and seek possession of the site in accordance with law. This Court on taking note of these aspects of the matter was of the view that in any event, the petitioner would be entitled to the execution of the sale deed as the initial formalities had been completed by the respondent. In that circumstance, the respondents have executed the sale deed dated 03.11.2011. The very same site bearing No.329 has been conveyed under the said document.
4. Though this is the accepted position, the petitioner is before this Court in the instant petition calling for a direction to grant alternate site, in view of 4 the developments that has come to the knowledge of the petitioner on obtaining the documents under the Right to Information Act. In that view, it is contended that the site bearing No.329 is situate in Sy.No.37. It is pointed out that a large extent of land in the said survey number was de-notified by issue of notification dated 01.08.1964 as at Annexure-N. It is therefore contended that the site which has been allotted to the petitioner and conveyed under the said sale deed would not be available for enjoyment by the petitioner since the said site is situate in Sy.No.37, which has been de-notified. It is in that circumstance, the petitioner is presently seeking for the relief to grant her the alternate site.
5. The respondents have filed their objection statement. The case put forth by the petitioner is denied and it is contended that as per the report produced at Annexure-R1, Site No.329 and yet another site bearing No.328 are situate in Sy.No.32 and in that circumstance, the petitioner cannot claim that the layout wherein the site allotted to the petitioner is formed has been de- 5 notified. It is therefore contended that the petitioner cannot claim for the relief as sought in the instant petition and the petition is liable to be dismissed.
6. Having noticed these aspects of the matter, primarily it is seen that certain portions of both Sy. Nos.32 as well as 37 have been de-notified under the notification dated 01.08.1964 (Annexure-N). Though the respondent contends that site bearing Nos.328 and 329 were formed in Sy. No.32, since a portion of Sy. No.32 has also been de- notified, there is no clarity on the said issue. At the same time, the petitioner has also relied on a plan (as at Annexure-P) which was prepared by the competent authority wherein it is indicated that site Nos.328 and 329 are formed in Sy. No.37.
7. In the light of the above, what is also to be noticed is that the allottee of site No.328 had also sought for grant of alternate site and the respondents have considered the request of the owner of the site bearing No.328 by allotting an alternate site, as evident from the allotment letter dated 28.03.2003 as at Annexure-R to the petition. 6 If these aspects of the matter are kept in view, though the reason for allotment of an alternate site to the allottee of site No.328 is not indicated in the allotment letter dated 28.03.2003, the totality of the circumstance wherein the site allotted to the petitioner bearing site Nos. 329 and 328 are adjacent to one another and in that view, the plan at Annexure-P indicates that both the said sites are situate in survey No.37, the case put forth by the petitioner requires to be accepted, more particularly in a circumstance, when it is not the contention of the respondent that the petitioner in fact is enjoying the property bearing site No.329. Therefore, all that the petitioner would be entitled to is an alternate site of the same dimension in lieu of a site which had been allotted to the petitioner as far back as in the year 1974.
8. Hence, keeping all these aspects in view, I am of the opinion that a direction is necessary to be issued to the respondent to allot an alternate site. In this regard, what is also to be noticed is that the petitioner in the prayer has indicated that a particular site bearing No.581 7 measuring 30ft. x 40ft. situate at Koramangala, 6th Block, Bengalooru be allotted. At this juncture, it cannot be ascertained as to whether the site is available for allotment. Hence, the respondent at the first instance would verify as to whether the said site is vacant and unallotted so as to allot the same to the petitioner. If the same is not available at this juncture, the respondent shall thereafter locate a site of the similar dimension in any one of the layouts formed by the respondent, allot the same to the petitioner and execute the appropriate documents after cancelling documents which have already been executed in favour of the petitioner.
9. To enable expeditious consideration by the respondent, the petitioner shall now file a representation along with a copy of this order and the supporting documents with the respondent within four weeks from the date of receipt of a copy of this order. The respondent shall thereafter take steps to implement this order as expeditiously as possible, but not later than five months from the date on which the representation is made. 8
With the above direction, the petition stands disposed of.
Sd/-
JUDGE akc/bms