Karnataka High Court
M L Shamanna vs Bruhat Bangalore Mahanagara Palike on 29 August, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:35212
WP No. 21433 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 21433 OF 2013 (LB-BMP)
BETWEEN:
M.L. SHAMANNA
SINCE DEAD BY LR's
1(a) SMT. ASHA P.H.
W/O LATE SRI M.L. SHAMANNA
AGED ABOUT 65 YEARS,
R/AT NO.79, 21ST MAIN,
2ND CROSS, NEAR GOOD BREAD,
MARENAHALLI, J.P.NAGAR 2ND PHASE,
BANGALORE-560078.
1(b) SMT. SAMYUKTHA M.S.
D/O LATE SRI. M.L. SHAMANNA,
AGED ABOUT 35 YEARS,
R/AT FLAT NO.3B,
HOUSE NO.24, AMMANNI DHAMA,
LAKSHMAIAH REDDY ROAD, ULSOOR,
BENGALURU-560068.
Digitally
signed by 1(c) AJAY NAGADEEP M.S.
PRAKASH N
S/O LATE SRI M.L. SHAMANNA,
Location: AGED ABOUT 29 YEARS,
HIGH R/AT NO. 79, 21ST MAIN,
COURT OF
2ND CROSS, NEAR GOOD BREAD,
KARNATAKA
MARENAHALLI, J.P. NAGAR, 2ND PHASE,
BANGALORE-560078.
...PETITIONERS
(BY SMT. RAKSHITHA V.N., ADVOCATE FOR
SRI. K. RAGHAVENDRA RAO, ADVOCATE FOR A-C;
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NC: 2024:KHC:35212
WP No. 21433 of 2013
AND:
1. BRUHAT BANGALORE MAHANAGARA PALIKE
REP: BY ITS COMMISSIONER,
OFFICE OF BBMP,
N.R.SQUARE,
BANGALORE-560002.
2. THE ADDITIONAL COMMISSIONER (SOUTH)
BRUHAT BANGALORE MAHANAGARA PALIKE,
II BLOCK, JAYANAGAR,
BANGALORE-560001.
3. THE CHIEF ENGINEER (SOUTH)
BRUHAT BANGALORE MAHANAGARA PALIKE,
II BLOCK, JAYANAGAR,
BANGALORE-560001.
4. THE EXECUTIVE ENGINEER
BRUTHAT BANGALORE MAHANAGARA PALIKE,
18THMAIN, 39THCROSS,
IV "T" BLOCK JAYANAGAR,
BANGALORE-560041
5. THE ASSISTANT EXECUTIVE ENGINEER
BRUHAT BANGALORE MAHANAGARA PALIE,
II PHASE, J.P.NAGAR,
BANGALORE-11
6. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK (WEST)
BANGALORE-23.
7. SR B V BHARADWAJ
S/O.V.VENKATAPPATHY,
AGED ABOUT 73 YEARS,
R/O NO. 165, 7TH D MAIN,
IV STAGE III BLOCK,
BASAVESHWARANAGAR,
BANGALORE-560079
8. SRI B L VIJAYAKUMAR
S/O B.S.LAKSHMANA RAO,
AGED ABOUT 48 YEARS,
R/O.NO.178,
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NC: 2024:KHC:35212
WP No. 21433 of 2013
NARAYANA PILLAI STREET,
SHIVAJINAGAR,
BANGALORE-560001
9 . SMT RADHA
D/O.PETKAR,
AGED ABOUT 63 YEARS,
R/O.NO.178,
NARAYANA PILLAI STREET,
SHIVAJINAGAR,
BANGALORE-560001
10 . SMT LAKSHMAMMA
D/O.KAMMAPPA,
AGED ABOUT 59 YEARS,
R/O.NO.12E, 6THCROSS,
2NDMAIN ROAD,
KENGERI SATELLITE TOWN,
BANGALORE.
11 . SRI B BETTAIAH
SON OF BETTE GOWDA,
AGED ABOUT 63 YEARS,
R/O NO.56,
8THF MAIN ROAD,
III BLOCK, JAYANAGAR,
BANGALORE-560011.
... RESPONDENTS
(BY SRI. H. DEVENDRAPPA., ADVOCATE FOR R1 TO R5; SRI. MANJUNATH K., ADVOCATE FOR R6; SRI. K. LOKESH., ADVOCATE FOR R7 & R8; SRI. SHEKARAPPA., ADVOCATE FOR R9 TO R11) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.PC., PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION QUASHING THE IMPUGNED NOTICES FOUND AT ANNEXURE-A1 DATED 2.5.2013 IN NO.SA.KA.NIA (J.P.NAGARA)/P.R/30/13-14 AND ALSO ANNEXURE-A2 DATED 2.5.2013 IN NO. SA.KA.NIA (J.P.NAGARA)/P.R/31/13-14 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, J.P.NAGAR SUB- DIVISION, BBMP AND FURTHER ISSUE A WRIT OF MANDAMUS DIRECTING RESPONDENTS 1 TO 6 TO PAY COMPENSATION TO THE PETITIONER FOR THE ILLEGAL DEMOLITIONS MADE BY THE RESPONDENTS ON THE PROPERTIES OWNED AND POSSESSED BY THE PETITIONER AND ALLOW THIS WRIT PETITION WITH COST AND -4- NC: 2024:KHC:35212 WP No. 21433 of 2013 GRANT SUCH OTHER RELIEFS AS THIS HON'BLE COURT DEEM FIT TO GRANT IN THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 19.06.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ CAV ORDER
1. The Petitioners are before this Court seeking for the following reliefs:
"Wherefore, it is most respectfully prayed that this Hon'ble Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing the impugned notices found at Annexure-A1 dated 2.5.2013 in No.Sa.Ka.Nia(J.P.Nagara)/P.R/30/13-14 and also Annexure-A2 dated 2.5.2013 in No.Sa.Ka.Nia(J.P.Nagara)/P.R/31/13-14 issued by the Assistant Executive Engineer, J.P.Nagar Sub- Division, BBMP and further issue a writ of mandamus directing Respondents 1 to 6 to pay compensation to the Petitioner for the illegal demolitions made by the Respondents on the properties owned and possessed by the Petitioner and allow this Writ Petition with cost and grant such other reliefs as this Hon'ble Court deem fit to grant in the interest of justice and equity."
2. The Petitioner claims to be the owner in possession of Sites bearing No.3A, 4A and 5A, measuring 30 x 40 feet each of Manjunatha Colony formed by the -5- NC: 2024:KHC:35212 WP No. 21433 of 2013 SarakkiGroup Panchayat. The Petitioner claims that Sy.No.32 of Marenahalli Village, Bangalore South Taluk, totally measures 8 acres and 23 guntas, out of which, 4 acres were acquired for the formation of village extension of Marenahalli. The extension is now known as 'Manjunatha Colony'.
3. Marenahalli Village comes within the jurisdiction of Sarakki Group Panchayat, and the said Panchayat has allotted sites in Manjunatha Colony to the Petitioner, who is a resident of Marenahalli. Endorsements were issued on 30.03.1972, Possession Certificate was handed over on 27.03.1972 and the Katha of the property stands in the name of the Petitioner. On the BBMP, assuming jurisdiction over the subject lands, the BBMP has also issued katha in respect of Site No.4A. The Petitioner claims to have put up construction, obtained electricity connection from BESCOM and is making payment of taxes. Insofar as Site No.3A is -6- NC: 2024:KHC:35212 WP No. 21433 of 2013 concerned, it is stated that the Petitioner purchased the same under a registered sale dated 28.02.2011 from the allottee H.Raju. There is a clerical error in the site number and hence, the Petitioner is taking necessary steps to carry out rectification where the Petitioner has produced the possession certificate, katha extract and tax paid receipt in respect of said Site No.3A. The Petitioner claims to have purchased Site No.5A from Smt.R.V.Leela under sale deed dated 21.12.2005. Possession certificate, katha certificate, tax paid receipts in relation thereto have been produced. Thus, on that basis, the contention of the Petitioner is that the Petitioner is the owner of Site Nos.3A, 4A and 5A.
4. Out of the original Sy.No.32 measuring 8 acres 23 guntas, 4 acres have been used for the formation of the Manjunatha Layout. 4 acres 15 guntas had been made available to Doddabylakhana Scheduled Caste (Harijana) House Building Cooperative Society -7- NC: 2024:KHC:35212 WP No. 21433 of 2013 Limited and the remaining 8 guntas have been utilized for laying a road connecting Ramakrishna Harijana Colony to Manjunatha Colony. In this regard, a Survey Sketch prepared by the Assistant Director of Land Records is relied upon to establish the boundaries of the properties.
5. There arose some disputes between the allottees of the house sites in Manjunatha Colony and the allottees of the house sites in Doddabylakhana Scheduled Caste (Harijana) House Building Cooperative Society. When the Petitioner gave a representation, along with certain others, to the Bangalore Development Authority (BDA) to resolve the disputes, the BDA did not clarify the extent of the land. Hence, the Petitioner and others were constrained to file a Writ Petition in WP No.29651/1998, which was disposed of with a direction to the Respondent-BDA to consider their representation.
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6. At this stage, the Society sought to form a road which would encroach on the Site of the Petitioner bearing 4A. In that background, the Petitioner filed a suit in O.S.No.185/1992, which came to be decreed after contest by judgment and decree dated 31.08.2009, restraining the Defendant therein from interfering with the peaceful possession and enjoyment of the schedule site by the Plaintiff.
7. Other owners of the sites in Manjunatha Colony had also filed suits which were decreed in similar terms in O.S.Nos.5435/1997, 5397/1997, 5398/1997, 1079/1992 and 1078/1992.
8. The Society vide its communication dated 25.06.1999 had informed the Petitioner that the Society has no objection for putting up construction on Site Nos.1B, 1C, 2A, 3A, 4A, 5A, 6A, 7A and 8A. At that stage, certain persons had approached this Court by filing WP Nos.8114-8118/2011 against -9- NC: 2024:KHC:35212 WP No. 21433 of 2013 BBMP and BDA, seeking for demolition and removal of alleged illegal and unauthorized construction in Survey No.32 ofMarenahalli village, wherein the Petitioner and others were not made a party. The officials of BBMP and BDA did not file any objection. Hence, the said Writ Petitions came to be disposed vide order dated 25.03.2013, directing an enquiry to be conducted by the Assistant Executive Engineer, BBMP as regards the existence of the road as per the plan approved in favour of the Society and the same having been made over to BDA and then to the BBMP and thereafter if such a road is found to be present, to take action against any person, who has encroached upon the road.
9. Pursuant thereto, show cause notices were issued to the Petitioner, which were replied to by the Petitioner. Despite the reply, without considering the documents produced, it is alleged that the Respondents have demolished the property of the
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NC: 2024:KHC:35212 WP No. 21433 of 2013 Petitioner, which is contended to be illegal and it is in that background that the Petitioner is before this Court seeking for the aforesaid reliefs.
10. Sri.K.Raghavendra Rao, learned Counsel appearing for the Petitioner, would submit that:
10.1. Notices are illegal. He further submits that the direction of this Court by its order dated 25.03.2013 in W.P.Nos.8114-8118/2011 to the Assistant Executive Engineer was to ascertain with reference to the records relating to the layout, whether any encroachments were made in respect to areas which were earmarked as roads. Without carrying out any such assessment or ascertaining the facts, the Assistant Executive Engineer has blindly and baldly come to a conclusion that there is an encroachment and issued the show cause notices, which, though have been replied to by
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NC: 2024:KHC:35212 WP No. 21433 of 2013 the Petitioner, the reply has been completely ignored by the Assistant Executive Engineer. 10.2. His submission is that the Assistant Executive Engineer ought to have verified from the records the existence of the road, encroachment if any, nature of encroachment, extent of encroachment; thereafter submitted a report to the higher authorities, obtained permission from them and thereafter issued the show cause notices. All these have not been done, hence the action on the part of the Assistant Executive Engineer is without any basis and illegal. The Assistant Executive Engineer ought to have taken into consideration the decree passed in the various suits asaforesaid.
10.3. The said decrees not having been challenged by the Society, the Society having issued no objection to the Petitioner and other persons to put up construction, the Society not having any
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NC: 2024:KHC:35212 WP No. 21433 of 2013 claim on the properties/sites of the Petitioner and others, the Assistant Executive Engineer could not have contended that there are no sites or that the sites have encroached upon a public road.
10.4. The authorities had not brought to the notice of this Court about an earlier Writ Petition having been filed in WP No.29651/1998 with regard to the same issue and has thereby permitted orders to be passed in WP Nos.8114-8118/2011 by virtually suppressing the orders passed in WP No.29651/1998.
10.5. His submission is that in pursuance of the order dated 30.03.2023 of this Court, Respondents No.5 and 6 have filed their affidavits and produced certain documents. Annexure-R1A produced by Respondent No.5 has been produced by Respondent No.6 also and by relying on the same, his submission is that the Society had formed a layout only as regards 4
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NC: 2024:KHC:35212 WP No. 21433 of 2013 acres 15 guntas out of the remaining 4 acres 23 guntas, no layout had been formed as regards the remaining 8 guntas. These 8 guntas had been used for the formation of a road which demarcated both layouts. Thus, any contention to the contrary, more so to contend that the sites formed in Manjunath Nagar are part of the layout formed in 4 acres 15 guntas by the Society,is completely misconceived. 10.6. The Society has, from time to time, made attempts to interfere with the peaceful possession and enjoyment of the Petitioner.
The Petitioner had filed a suit in O.S.No.185/1992, which was decreed in favour of the Petitioner. The Society, having, in the said suit, disputed the existence of Site No.4A, the trial Court has come to a categorical finding that Site No.4A exists and has been allotted to the Petitioner, which is in the possession of the Petitioner. Similar findings have been rendered
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NC: 2024:KHC:35212 WP No. 21433 of 2013 in respect of Site Nos.1B, 1C, 2A, 3A, 4A, 5A, 6A, 7A and 8A in other suits.
10.7. The Society has been falsely denying the existence of the sites only to usurp the property of the Petitioner.
10.8. The Trial Court having decided on the issue, the Society being a party thereto, the said judgment has attained finality and the subsequent claims made are a complete hogwash. There being specific findings given by a competent Civil Court to establish the existence of Site Nos.1A to 8A in Manjunatha Colony and they being allotted by Sarakki Group Panchayat, these 8 Sites do not form a part of the 4 acres 15 guntas given to the Society but instead form part of the 4 acres in which Manjunatha Colony is formed. 10.9. The judgments of the Trial Court having been challenged in RFA No.994/2006 and RFA No.996/2006, the said appeals were dismissed
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NC: 2024:KHC:35212 WP No. 21433 of 2013 as withdrawn on 23.11.2018. Therefore, the judgment of the Trial Court has attained finality. Even though there was a challenge made, the challenge having been withdrawn, the Society has acquiesced to the judgment passed by the Trial Court.
10.10. The judgment and decree of the Trial Court, having been passed against the Society, had been challenged in Regular First Appeal had withdrawn. The Society, through its members, had filed Writ Petitions in WP Nos.8114- 8118/2011. Shockingly, neither the Society nor the Petitioner was made a party. Though an allegation was made that certain unauthorized persons had encroached upon the land, the alleged unauthorized persons were also not made parties to the said Writ Petitions. Thus, it is behind the back of the Petitioner that the said orders were obtained after the judgement and decree was passed by the Civil Court.
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NC: 2024:KHC:35212 WP No. 21433 of 2013 10.11. His submission is also that subsequent to the orders being passed in WP Nos.8114- 8118/2011, the RFA's filed by the Society were withdrawn on 23.11.2018, which would clearly and categorically indicate that after achieving the purpose of demolition by usurping the property of the Petitioner, the Regular First Appeals were withdrawn. The date being of importance in that Writ Petition was disposed of on 25.03.2013, the demolition was carried out immediately thereafter, resulting in the Petitioner filing the present Writ Petition and subsequently, on 23.11.2018, Regular First Appeals were withdrawn.
10.12. By relying on the same, he submits that the Society and the officers of the BBMP and the BDA have acted in collusion with each other, thereby depriving the Petitioner of his property, which requires to be deprecated by this Court.
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NC: 2024:KHC:35212 WP No. 21433 of 2013 10.13. This he supports by further contending that there is no Statement of Objections filed by the BBMP or BDA in WP Nos.8114-8118/2011, let alone indicating the earlier Writ Petition filed as also the decree passed by the Trial Court. In respect to all these aspects, he submits that the judgment of the Trial Court will hold the field. A decree having been passed, the appeal filed relating thereto having been withdrawn, the decree has attained finality and the actions on part of the authorities are completely bereft of merits. He relies on a survey sketch prepared by the BDA in 1998, which was produced by the Petitionerat Annexure-R. Relying on the same, he submits that it is only 4 acres 15 guntas over which the Society had formed a layout, and as such, the Society cannot claim for any land beyond the said 4 acres 15 guntas.
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NC: 2024:KHC:35212 WP No. 21433 of 2013 10.14. By relying on the Survey Sketch filed by the Assistant Director of Land Records in pursuance of the order dated 13.06.2022, he submits that the Society has formed a layout in 4 acres 23 guntas as against their entitlement of 4 acres 15 guntas, thereby, it has encroached upon the balance 8 guntas which were reserved for the road and the Society having so encroached on the land, now the Society is seeking to contend that the sites formed in Manjunath Colony are on the road when in fact they are not. As a corollary, he submits that the sites formed in the Society are encroaching upon the 8 guntas road and not otherwise.
10.15. By relying on the Survey Sketch produced by the ADLR on 9.11.2023 in pursuance of the order dated 22.08.2023, he submits that the report has been mechanically prepared without application of mind wherein it is clearly stated that the Society has acquired 4 acres 23 guntas
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NC: 2024:KHC:35212 WP No. 21433 of 2013 and has formed a layout on the said 4 acres 23 guntas including 5 guntas of Kanada Karab land. This document would clearly evidence that the Society has formed a layout in excess of the land it was entitled to develop. The layout plan having been sanctioned only for 4 acres 15 guntas, the Society has encroached upon the remaining 8 guntas.
10.16. It is in this background that he submits that the demolition that has been carried out is not proper and infact illegal. The construction has to be restored. There is complete misfeasance, malfeasance and nonfeasance on part of the statutory authorities, which is required to be suitably dealt with by this Court.
11. Sri.K.Lokesh, the learned Counsel appearing for Respondents No.7 and 8 in the present petition, who were Petitioner No.1 and Petitioner No.2 in WP Nos.8114-8118/2011, submits as under:
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NC: 2024:KHC:35212 WP No. 21433 of 2013 11.1. The Petitioner has not approached the Court with clean hands. The facts have been distorted with a malafide intention and oblique motive. The Petitioner is no longer the owner of Site No.4A.He has sold the same vide sale deed dated 1.02.2011 to one Shri.Abbas Ali Bohra, under a registered sale deed. Therefore, the Petitioner cannot claim to be an owner of Site No.4A. The other site owners whose construction has allegedly been demolished illegally have not been made parties to the present petition nor have they filed any separate petition of their own. Thus, only the Petitioner claims to be the owner of Site Nos.3A, 4A and 5A who is before this Court. 11.2. Site No.4A has already been sold to a third party, and the third party has not filed any proceedings. There is a discrepancy regarding the identity and measurement of Site Nos.3A
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NC: 2024:KHC:35212 WP No. 21433 of 2013 and 5A. Therefore, the Writ Petition is required to be dismissed.
11.3. His further submission is that the Sarakki Group Panchayat had formed a layout on 4 acres in Sy.No.32 of Marenahalli. On the southern side of the layout, a 30-feet public road was made available for ingress and egress. There were 90 sites numbered in Seriatim, and there was no sub-numbering of Site Nos.1A to 8A. In this regard, he relies upon the layout plan of the Sarakki Group Panchayat. By referring to the report of the Block Development Officer and the Assistant Commissioner at Annexure R3, his submission is that there were only 90 sites which were formed. If the submission of the Petitioner is taken into account, it would amount to the formation of 98 sites, which is not the case. There being no sites bearing Nos.1A to 8A carved out of this layout, no sites having been formed, the question of the
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NC: 2024:KHC:35212 WP No. 21433 of 2013 Petitioner being the owner in occupation of the alleged non-existent sites would not arise. 11.4. The BDA had acquired 4 acres 23 guntas in Sy.No.32 of Marenahalli Village and made a bulk allotment to the Society under Resolution dated 23.07.1984. A registered sale deed came to be executed on 30.10.1984, conveying 4 acres 23 guntas to the Society. The Society had formed various sites and allotted the same to its members. By relying on the layout plan sanctioned, he submits that there is a 30-foot- wide public road on the northern side, which bifurcates both layouts. His submission is that even the 8 guntas form a part of the layout formed by the Society. The road is beyond the 4 acres 23 guntas. No road has been formed in the land allotted to the Society on the northern side. The road already existed. Various sites have been formed, Respondents No.7 to 11 have purchased a few of those sites. A layout
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NC: 2024:KHC:35212 WP No. 21433 of 2013 has been formed after approval from BDA and now been transferred to BBMP for maintenance. 11.5. The Petitioner and certain others having put up illegal sheds in an unauthorized manner, encroaching upon the 30 feet wide public road, which obstructed free flow of traffic as also the ingress and egress of the residents. Representation was submitted to the BBMP to remove the unauthorized and illegal construction. Despite repeated follow-up, no action was taken, and in that background, WP Nos.8114-8118/2011 was filed by them and after hearing the parties, necessary orders were passed.
11.6. The Assistant Executive Engineer, in pursuance of the said order, visited the spot, ascertained the existence of the 30 feet public road, came to a definite conclusion that the Petitioner and others had occupied the 30 feet public road and
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NC: 2024:KHC:35212 WP No. 21433 of 2013 thereafter took up action to demolish the unauthorized construction.
11.7. The action on part of the Assistant Executive Engineer is in terms of the orders passed by this Court in WP Nos.8114-8118/2011. There cannot be any fault found therewith. Respondents Nos.7 and 8 have not suppressed any facts. The Petitioner is an encroacher of the said public road. The authorities have discharged their statutory functions. If the claim of the Petitioner is accepted by this Court, Respondents No.7 and 8 and other members of the general public would be adversely affected. There are no sites bearing No.3A, 4A, or 5A, which have been carved out. They are fictitious. The judgment and decree has been passed only against the Society without making the site owners a party, therefore, the same is not binding on them. The No Objection issued by the Society is a bogus and manipulated
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NC: 2024:KHC:35212 WP No. 21433 of 2013 document. The BDA has not committed any error by not mentioning the earlier Writ Petition in WP No.26951/1998 and the orders passed therein. The Assistant Executive Engineer, having come to the conclusion that there is an encroachment of a public road, has initiated appropriate and proper action.
11.8. There are no Site Nos.1A to 8A which have been assigned since no such sites have been formed. Only Site No.1 to 90 have been formed and assigned and in this regard, he relies upon Annexure-R2 produced by Respondent No.7. He again reiterates that the entire land in the 4 acres 23 guntas has been transferred to the Society, a Layout plan for 65 sites was approved by the BDA on 18.01.1985 and on the northern side of the layout, there is a 30 feet road, after which is the layout.
11.9. Respondent Nos.7 to 11, being the owners of the sites formed by the Society, they have an
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NC: 2024:KHC:35212 WP No. 21433 of 2013 interest in the matter to see to it that the said 30 feet road is maintained properly and the same is not encroached.
11.10. He relies on the judgment passed in O.S.No.7168/1993 filed by Smt.Kalavati who claims to be an owner of Site No.8A, the Trial Court, after a full-fledged trial vide judgment and decree dated 12.09.2017 has come to a categorical conclusion that there is no Site No.8A this judgement has attained finality since there is no challenge. This judgment would run counter to the judgment and decree passed in O.S.No.185/1992 sought to be relied upon by the Petitioner.
11.11. The suit in O.S.No.185/1992 was filed only for a relief of a permanent injunction. There is no comprehensive suit for declaration that has been filed by the Petitioner claiming title over the property, and there is no judgment passed by any Court declaring title of the Petitioner.
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NC: 2024:KHC:35212 WP No. 21433 of 2013 11.12. On enquiry as to why the Petitioner was not made a party to WP Nos.8114-8118/2011 when Respondents No.7 and 8 were fully aware of the earlier suits and the disputes, he submits that they came to know about the said suit subsequently and not when WP Nos.8114- 8118/2011 was filed. Based on the above submissions, he submits that the Writ Petition is required to be dismissed.
12. Sri.Pawan Kumar, learned Counsel for the BBMP -
Respondents 1 to 5 submits that:
12.1. The Sarakki Group Panchayat had not formed any site bearing Site No.4A in the 4 acres of land that was acquired by the Sarakki Group Panchayat whereas 90 sites were formed and numbered 1 to 90 and site number 1A to 8A were not formed.
12.2. The documents relied upon by the Petitioner are concocted documents created with the
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NC: 2024:KHC:35212 WP No. 21433 of 2013 connivance of the President and Secretary of the Sarakki Group Panchayat. Out of the 8 acres 33 guntas in Sy.No.32 of Marenahalli Village, 4 acres 23 guntas were given to the Society by way of land allotment by the BDA to the Societyis in possession of the entire extent of 4 acres 23 guntas, he submits that it was not required for the Petitioner to be made party to the proceeding in W.P.Nos.8114-8118/2011.
He goes on to say that there was no suppression of material facts and/or malafides in not making the Petitioner a party to the said Writ Petition.
12.3. Insofar as the BBMP is concerned, his submission is that all the relevant facts were brought to the notice of the Court seized of W.P. Nos.8114-8118/2011. Notice has been issued in pursuance of the order passed in W.P. Nos.8114-8118/2011. The reply thereto has been considered by Respondent No.5, and only
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NC: 2024:KHC:35212 WP No. 21433 of 2013 thereafter action has been initiated. Respondent No.5 has come to a categorical conclusion that the Petitioner has encroached upon the road portion formed in the Society's land, and in view of the direction issued by this Court, the said encroachments were removed. Before carrying out the demolition, the Assistant Executive Engineer obtained the necessary permission and sanction from his higher officers. It is a matter of internal management of the Corporation. On this basis, he submits that the above petition is to be dismissed.
13. Respondent Nos. 9 to 11, who are Petitioners No.3 to 5 in WP No.8114-8118/2011, adopt the submissions made by Sri. K.Lokesh, learned Counsel for Respondents No.7 and 8.
14. By order dated 30.08.2017, this Court, considering that the Petitioner was not party to W.P.No.8114- 8118/2011, had permitted him to file his
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NC: 2024:KHC:35212 WP No. 21433 of 2013 objections/representation and directed the Corporation to pass a necessary speaking and reasoned order after giving an opportunity to both sides of being heard. In pursuance thereof, objections were filed and thereafter, an order dated 19.03.2018 was passed.
15. Objections have been filed to the said order contending that the order dated 30.08.2017 has not been complied with, the Petitioner having submitted all the documents, those documents have not been considered by Respondent No.5. Respondent No.5 has not considered the matter with an independent open mind but has sought to label the Petitioner as a land grabber and as such, it is contended that the Petitioner was not heard and the order was not complied with.
16. This Court vide order dated 13.06.2022 being of the opinion that the Assistant Director of Land Records could be tasked with identifying the road taking into
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NC: 2024:KHC:35212 WP No. 21433 of 2013 consideration that none had objections and had appointed him to inspect the properties on 25.06.2022 and submit a report.
17. A report came to be submitted on 14.09.2022 enclosing a sketch. A perusal of the said sketch indicates that the portion marked in blue situated on the northern side measures 4 acres and the portion marked in yellow on the southern side measures 4 acres 23 guntasand the road marked in hatched red portion bearing alphabets QFGPQ is 30 feet wide and is situated in the yellow portion that is the portion belonging to the Society.
18. The Petitionerfiled objections to the said report contending that the Memo of Instructions given by the Petitionerhas not been complied with. The Petitioner gave a representation on 22.07.2022, which isthe date fixed for inspection. This representation has also not been considered. On
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NC: 2024:KHC:35212 WP No. 21433 of 2013 22.07.2022 the inspection was not conducted but another notice came to be issued on 16.08.2022 fixing 23.08.2022 for inspection. The Petitioner could not attend the inspection on that day. The representation has not been considered. No reply has been received, and as such, it was contended that the report submitted by the ADLR was not proper and correct.
19. By order dated 30.03.2023, this Court had directed the Corporation and BDA to file affidavits and directed the BDA to place on record the plan sanctioned by BDA. An affidavit of the Assistant Executive Engineer, Bangalore South Division, BDA was filed on 17.04.2023. In the affidavit, it is stated that the Government of Karnataka had sanctioned theimprovement scheme for the formation of Sarakki Layout. In the preliminary notification and inthe finalnotification, an extent of 4 acres, 23 guntas of land in Sy.No.32 in Marenahalli Village was also
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NC: 2024:KHC:35212 WP No. 21433 of 2013 notified for the formation of Sarakki Layout. The award has been passed on 16.05.1979 and possession was taken on 23.01.1981. The BDA had conveyed an extent of 4 acres 23 guntas in the said survey number to the Society. Thereafter, approved a plan on 18.01.1985, in terms of which 65 sites had been approved by the BDA of different dimensions, namely 30 x 40 (24 sites), 40 x 60(10 sites)and 31 odd sites. It is stated in the said affidavit that there is no existence of sites bearing numbers 3A,4A, and 5A in the sanctioned plan. Thereafter, the layout has been handed over to the BBMP for upkeep. Along with the said affidavit, a copy of the layout plan submitted by the Society and approved by the BDA hasbeen produced.
20. On the northern side of the said plan sanction, the existence of a 30-footwide road can be seen abutting Site Nos.43, 44, 45, 46, 47 and 48.On the north- eastern side, reference to Site Nos.9 and 10 could be found. The 30 feetwide road ends in front of Site
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NC: 2024:KHC:35212 WP No. 21433 of 2013 No.10. An affidavit of the Assistant Executive Engineer, BBMP was also filed on 17.04.2023, wherein it is again indicated that the BDA had approved the layout, which was handed over by the BDA to the BBMP on 25.09.2001. It is stated that there are six roads in the layout out of which one road is in dispute. Along with the affidavit, a copy of the layout plan sanctioned by the BDA has been produced, which is the same as that produced by the BDA.
21. Objections were filed by the Petitioner to the affidavit filed by Respondent No.6, contending that only the plan sanctioned in favour of the Society has been produced. The plan sanctioned in respect of Manjunatha colony has not been produced. It is contended that it is only 4 acres 15 guntas which was handed over and not 4 acres 23 guntas and in this regard, the documents produced along with the affidavit, where the total extent has been mentioned
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NC: 2024:KHC:35212 WP No. 21433 of 2013 to be 4 acres 15 guntas is relied upon. It is on that basis contended that the land which has been handed over to the Society is only 4 acres 15 guntas, as such the 8 guntas was not part of the layout formed by the Society. Similar objections have been filed to the affidavit filed by Respondent No.5.
22. Taking note of the said objections, this Court vide its order dated 25.05.2023 has directed the Assistant Executive Engineer to verify whether Sarakki Group Panchayat had obtained a sanctioned layout plan and if any additional plan or modified plan for carving out additional Sites Nos.1A to 8A had been submitted. The Petitioner was also permitted to produce such documents as may be in his possession to establish the formation of the additional sites.
23. On 08.08.2023 further affidavit of the Assistant Executive Engineer, BDA was filed stating that on examination of files pertaining to Survey No.32 of
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NC: 2024:KHC:35212 WP No. 21433 of 2013 Marenahalli village, it was found that there are only 65 sites which have been formed and there is no existence of Site nos.3A, 4A, 5A in the said plan. He has gone on to categorically state that the Sarakki Group Panchayat has not submitted any plan for carving out sites and for formation of additional sites 1A to 8A in Sy No.32.
24. A memo was filed by the ADLR enclosing the mahazarand survey sketch. The same was taken on record. However, a perusal of the same did not indicate the methodology adopted by the ADLR to carry out the survey and demarcate the boundaries. Hence, the ADLR was firstly directed to demarcate the boundaries of Sy.No.32 with reference to the revenue documents and the village map by using the total station methodology for marking the boundaries, etc. The survey report was finally filed on 09.11.2023 in compliance with the earlier directions.
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NC: 2024:KHC:35212 WP No. 21433 of 2013
25. Sketch No.1 indicates the extent of 4 acres 23 guntas said to be allotted to the Society marked in yellow and 4 acres of land in Sy No.32 used by the Gram Panchayat has been marked in green. The site plans have been superimposed to indicate Site Nos.1 to 90 in green in Sketch No.2 and Site Nos.1 to 65 in yellow in Sketch No.3 and in Sketch No.4, the location of the road has been identified.
26. A perusal of the said survey sketch would indicate that abutting Site Nos.43, 44, 45, 46, 47 and 48, there is a 30 feet wide road which ends at Site No.10 formed by the Society and to the north of it are Site Nos.1 to 8. In Sketch No.2 and Sketch No.3, there are no Site Nos.1A to 8A. In Sketch No.4 in the location indicated by a road in Sketch No.2 and Sketch No.3, Site Nos.3A to 8A have been indicated and in the location where Site Nos.9 and 10 of the
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NC: 2024:KHC:35212 WP No. 21433 of 2013 layout formed by Society, Site No.1A and 2A have been indicated.
27. Objections have been filed to the said survey report by the Petitioner contending that the survey sketch has been prepared without application of mind and the relevant records have not been taken into consideration. Again it is reiterated that the Society had only 4 acres 15 guntas and not 4 acres 23 guntas and therefore, considering that the Society has 4 acres 23 guntas in the sketch prepared by the ADLR is not proper, the sanctioned plan granted to the Society by the BDA is incorrect and therefore, could not be relied upon.
28. An affidavit of a lawyer has been filed stating that on 31.08.2023 total station methodology was not used and survey was not conducted on that day. Survey was conducted on 02.09.2023 using the instrument which was brought by the ADLR. The
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NC: 2024:KHC:35212 WP No. 21433 of 2013 layout formed by the Society was measured relying upon the BDA sanctioned plan. The area of the layout formed by Sarakki Group Panchayat was not measured.
29. It is in that background that the above matter was taken up for hearing and the matter was heard. Being of the opinion that the records in O.S.No.185/1992 and O.S.No.1078/1992 were required to be secured. They were also secured, and they have been perused. Written submissions have been filed by the Petitioner, Respondents No.7 and 8 have been taken on record. Respondent Nos.1 to 5 and 6 have indicated that they do not wish to file any written submission. Respondent Nos.9 to 11 have adopted the arguments of Respondent Nos.7 and 8.
30. Based on all the above, the points that would arise for being considered by this Court are:
1) Whether the land allotted to the Society measures 4 acres 23 guntas or 4 acres 15 guntas?
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NC: 2024:KHC:35212 WP No. 21433 of 2013
2) Whether on the basis of the documents that have been produced, namely the plan sanction issued by the BDA, Sites No.1A to 8A have been formed?
3) Whether the road claimed by Respondents No.7 to 11 is within the land allotted to the Society or outside?
4) Whether the sites namely Sites No.1A to 8A and those claimed to be owned by the Petitioner to be 3A, 4A and 5A are within the layout formed by the Panchayat i.e., within 4 acres or beyond it?
5) Whether the actions taken by Respondent No.5 - Assistant Executive Manager in demolishing the construction is proper or not?
6) What order?
31. I answer the above points as under:-
32. Answer to Point No.1: Whether the land allotted to the Society measures 4 acres 23 guntas or 4 acres 15 guntas?
32.1. The basic contention of learned Counsel for the Petitioner is that the land which has been used for the formation of the layout by the Society is 4 acres 15 guntas and not 4 acres 23 guntas.
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NC: 2024:KHC:35212 WP No. 21433 of 2013 However, the affidavit which has been filed by the BDA would indicate that the preliminary notification and the final notification was issued for an extent of 4 acres 23 guntas of land in Survey No.32 in Marenahalli village. The award was passed for 4 acres 23 guntas, possession of 4 acres 23 guntas was taken on 23.01.1981 and it is these 4 acres 23 guntas which has been conveyed to the Society. Furthermore, in terms of the plan approved on 18.01.1985, 65 sites have been approved by the BDA of different dimensions in this 4 acres 23 guntas. Thus, it is clear that 4 acres 23 guntas have been conveyed to the Society and as such, the Society was the owner of the said 4 acres 23 guntas. The Counsel for the Petitioner, by referring to a statement made that 4 acres 15 guntas is what the area of the layout formed by the Society has sought to contend that the balance 8 guntas have been used for formation
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NC: 2024:KHC:35212 WP No. 21433 of 2013 of the road. It does not lie for the Petitioner to make any such contention since the Panchayat did not have any right over the said 8 guntas. The Panchayat cannot claim any rights apart from the 4 acres which has been transferred to it. The Society having been conveyed with 4 acres 23 guntas, the entire right as regards that extent of land could vest with the Society. These aspects are also clear from the survey sketches which have been produced clearly demarcating the layouts which have been formed by the superimposition of the sanctioned plan thereon. The said sketches clearly indicate that it is 4 acres 23 guntas over which the Society has formed a layout. Thus, all the documents point to only one direction that the land allotted to the Society measures 4 acres 23 guntas and not 4 acres 15 guntas as claimed by the Petitioner.
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NC: 2024:KHC:35212 WP No. 21433 of 2013 32.2. Hence, I answer Point No.1 by holding that the land allotted to the Society measures 4 acres 23 guntas.
33. Answer to Point No.2: Whether on the basis of the documents that have been produced, namely the plan sanction issued by the BDA, Sites No.1A to 8A have been formed? 33.1. Much has been contended by the learned Counsel for the Petitioner that Sites No.1A to 8A have been formed by the Panchayath. It is for this reason that this Court had got the property measured not once but thrice and the entire layout was also directed to be superimposed in the survey sketch prepared. The plan sanction in respect of the Panchayat would indicate that 65 sites have been formed from No.1 to 65 and that there are no sites with the number 1A to 8A let alone 3A, 4A or 5A that the Petitioner claims. In the sketch produced, it is seen that abutting Sites Number 43, 44, 45, 46, 47 and 48 of the layout formed
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NC: 2024:KHC:35212 WP No. 21433 of 2013 by the Society, there is a 30 feet wide road which ends at Site No.10 and to the North of it, sites bearing No.1 to 8 of the layout formed by the Panchayat. There is no mention of Site No.1A to 8A in Sketch No.1, 2 or 3 filed on 9.11.2023. In Sketch No.4, in the location indicated by a road in Sketch No.2 and Sketch No.3, Sites No.3A to 8A have been indicated which overlap the road that is to say that these alleged Sites No.3A to 8A are stated to be situated where a road has been formed in the layout formed by the Society. It is therefore clear from the survey which has been conducted that there are no Sites No.1A to 8A which have been formed nor has any sanction been granted for such formation of Sites No.1A to 8A.
33.2. The very contention of formation of Sites No.1A to 8A is also completely misconceived inasmuch as sites are normally numbered in seriatim
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NC: 2024:KHC:35212 WP No. 21433 of 2013 commencing from '1' and normally there are no site numbers given with reference to alphabets. In the present case, the only site numbers which are alleged to have the alphabet A are Sites No.1A to 8A, the rest of the site numbers are in seriatim.
33.3. The plan sanction given to the Panchayat only indicates Sites No.1 to 65 and not Sites No.1A to 8A. The contention of the Petitioner in this regard is that the Panchayat had sold these sites to certain persons, one of the sites to the Petitioner and subsequently the Petitioner purchased two sites from the original allottees. There apparently is fraud played whether with the active connivance of the Petitioner or not cannot be said at the moment. Sites No.1A to 8A not having been sanctioned could not have been formed nor could they be sold by the Panchayat. If at all the Petitioner has any grievance, it is against the Panchayat and not
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NC: 2024:KHC:35212 WP No. 21433 of 2013 against the BDA or the Corporation since no such sites bearing No.1A to 8A have either been sanctioned or formed.
33.4. Hence, I answer Point No.2 by holding that on the basis of the documents which have been produced as also on the basis of the survey which has been carried out, the survey sketches produced being superimposition of the plan sanctioned, it is clear and categorical that Sites No.1A to 8A have not been formed.
34. Answer to Point No.3: Whether the road claimed by Respondents No.7 to 11 is within the land allotted to the Society or outside? 34.1. The contention of the Petitioner is that the road claimed by Respondents No.7 to 11 can only be within the area of the Society, more particularly within 4 acres 15 guntas. Since the layout of the Society is stated to be formed in 4 acres 15 guntas. This aspect has been dealt with by me in answer to Point No.1 and I have come to a
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NC: 2024:KHC:35212 WP No. 21433 of 2013 categorical conclusion that the layout has been formed to an extent of 4 acres 23 guntas. It is this difference of 4 acres 23 guntas and 4 acres 15 guntas amounting to 8 guntas which the Petitioner claims is a road formed by the Society and that the sites belonging to the Petitioner are situated thereafter. The survey sketch which has been produced would categorically indicate that the road is situated within the layout formed by the Society and as indicated above, the said road abuts Sites No.43, 44, 45, 46, 47 and 48 which is situated horizontally and ends at Site No.10 which is situated vertically. Thus, the road ends at Site No.10 which is a site formed in the layout formed by the Society. Thus, it is categorically established that the road measuring 30 feet width is within the layout formed by the Society as contended by respondents No.7 to 11.
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NC: 2024:KHC:35212 WP No. 21433 of 2013 34.2. Hence, I answer Point No.3 by holding that the road claimed by respondents No.7 to 11 is within the land allotted to the Society and not outside and further that the plots claimed by the Petitioner are situated on this road as per the survey sketches which have been produced.
35. Answer to Point No.4: Whether the sites namely Sites No.1A to 8A and those claimed to be owned by the Petitioner to be 3A, 4A and 5A are within the layout formed by the Panchayat i.e., within 4 acres or beyond it?
35.1. As indicated above in the layout formed by the Panchayat, there are 65 sites that are stated to be formed, and Sites No.1A to 8A are not sanctioned or formed. As indicated above, there is a road measuring 30 feet wide that is situated in the layout formed by the Society, abutting the layout formed by the Panchayat. There being no sanction of Sites No.1A to 8A in favour of the Panchayat, these sites as per the superimposed survey sketch which has been
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NC: 2024:KHC:35212 WP No. 21433 of 2013 produced are now stated to be situated on the 30 feet road in the layout formed by the Society. These aspects have been clearly borne out.
35.2. Sites No.1A to 8A claimed by the Petitioner to be formed are situated on the road in the 4 acres 23 guntas of land allotted to the Society. Sites No.1A to 8A are not situated within the 4 acres of land allotted to the Panchayat. 35.3. This aspect is also clear from the assertion made by the Petitioner himself that the sites of the Petitioner are situated in the 8 guntas of land or abutting the 8 guntas of land which has been used as a road. The entire case of the Petitioner can only be accepted if the Society has formed a layout only on 4 acres 15 guntas and not 4 acres 23 guntas. As I have come to a categorical conclusion that the Society has formed a layout on 4 acres 23 guntas, there are no 8 guntas of land which is available for
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NC: 2024:KHC:35212 WP No. 21433 of 2013 formation of the road as claimed by the Petitioner and as such, the sites claimed by the Petitioner is not within 4 acres of the land belonging to the Panchayat but has spilled over to the 4 acres 23 guntas in which the Society has formed a layout. Be that as it may, the 8 guntas of land was never owned by the Panchayat nor could sites be formed by the panchayat in that land.
35.4. Thus, I answer Point No.4 by holding that Sites No.1A to 8A are not situated within the 4 acres of the layout formed by the Panchayat but the said sites now claimed are situated on the road formed in the Society in the land belonging to it measuring 4 acres and 23 guntas.
36. Answer to Point No.5: Whether the actions taken by Respondent No.5 - Assistant Executive Manager in demolishing the construction is proper or not?
36.1. In view of my answers to Points No.1 to 4, the Assistant Executive Engineer having
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NC: 2024:KHC:35212 WP No. 21433 of 2013 categorically come to a conclusion that the sites claimed by the Petitioner are encroaching upon a public road, the said Assistant Executive Engineer had issued a notice to the Petitioner to which a reply was made by the Petitioner. This reply was also considered, and the orders passed. Subsequent to filing of the petition, the Petitioner was again permitted by this Court to submit a representation. The said representation was also considered by the Assistant Executive Engineer and the contention of the Petitioner rejected. Thus, I am of the considered opinion that the principles of natural justice have been complied with. The Petitioner has not been able to establish the validly formed layout consisting of Sites No.1A to 8A. The construction being on a public road, the Assistant Executive Engineer has exercised his powers to remove such encroachment on a public road which is inconveniencing the people resident therein from accessing the public road and their properties.
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NC: 2024:KHC:35212 WP No. 21433 of 2013 36.2. Thus, I answer Point No.5 by holding that the action of Respondent No.5 - Assistant Executive Engineer in demolishing the construction is proper and correct and in accordance with law.
37. Answer to Point No.6: What order?
37.1. For all the reasons aforesaid, no grounds having been made out in the petition, the Writ Petition stands dismissed.
37.2. This Court refrains from imposing any cost on the Petitioner since the Petitioner himself apparently has been defrauded. Liberty is reserved to the Petitioner to initiate such proceedings against the Panchayat and its officers as may be available in law in regard to the above fraud if any committed on him.
Sd/-
(SURAJ GOVINDARAJ) JUDGE List No.: 19 Sl No.: 6