Karnataka High Court
Smt. K N Vandana vs Bangalore Development Authority on 11 December, 2020
Bench: B.V.Nagarathna, Nataraj Rangaswamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
WRIT APPEAL NO.852 OF 2019 (BDA)
BETWEEN:
1. SMT. K.N. VANDANA
AGED ABOUT 40 YEARS,
W/O GIRI RAJU,
RESIDING AT 76/1/2, IV MAIN,
15TH CROSS, MALLESHWARAM,
BANGALORE-560055.
2. SMT. KANTAMMA
AGED ABOUT 65 YEARS,
RESIDING AT 76/1/2, IV MAIN,
15TH CROSS, MALLESHWARAM,
BANGALORE-560055.
... APPELLANTS
(BY SRI. SATISH K., ADVOCATE FOR SRI. M.S.BHAGWAT,
ADVOCATE)
AND:
1. BANGALORE DEVELOPMENT AUTHORITY
REPRESENTED BY IT'S COMMISSIONER,
SANKEY ROAD,
KUMARA PARK WEST,
BANGALORE-560020.
2. SMT. P.R.MARY JAYASHREE
AGED ABOUT 53 YEARS,
2
W/O LATE ANTHONY SWAMY @ PATRICK,
RESIDING AT NO.23, II CROSS,
515 COLONY, III PHASE,
HAL NEW THIPPASANDRA,
BANGALORE-560075.
... RESPONDENTS
(BY SRI. SACHIN B.S., ADVOCATE FOR RESPONDENT
NO.1;
SRI. ASHOK B. PATIL, ADVOCATE FOR RESPONDENT NO.2
AND ALSO FOR IMPLEADING APPLICANT AS RESPONDENT
NO.3 ON I.A.NO.1/2020)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF THE LEARNED
SINGLE JUDGE, HIGH COURT OF KARNATAKA,
BANGALORE PASSED IN WRIT PETITION NOS.35146-
35147/2016 ON 31.10.2018 DISMISSING THE WRIT
PETITION AND ALLOW THE WRIT PETITION AS PRAYED.
THIS APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, NAGARATHNA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
There is a delay of 102 days in filing the appeal. Nevertheless, we have heard learned counsel for the respective parties on the merits of the matter.
2. The appellants herein were the petitioners who filed WP Nos.35146-35147 of 2016 assailing the order of allotment dated 23.02.2016 (Annexure-P), by 3 which, the schedule site was allotted to respondent No.2 herein. Consequentially, a direction was sought to allot the very same site to the petitioners. By order dated 31.10.2016, learned Single Judge dismissed the writ petitions on the ground that it was hit by principles of res judicata as the vendor of the appellants had earlier filed WP No.4363/2006 which was dismissed by this Court on 06.04.2006. Further the petitioners had not shown any right against the statutory body namely the Bengaluru Development Authority ('BDA' for short) so as to seek allotment of the land in question. Being aggrieved, the petitioners have preferred this appeal.
3. Learned counsel for the appellants submitted that he was not aware of the earlier writ petition filed by the vendor. That the appellants have made an application seeking allotment of the very same site. Instead of considering the application of the appellants, the BDA allotted the site in question to the second respondent. He submitted that the site in 4 question is adjacent to the property of the appellants and therefore, they had sought for allotment of the said site to them. Therefore, the writ appeal may be entertained by condoning the delay of 102 days in filing the appeal and the order of the learned Single Judge may be set-aside.
4. Per contra, learned counsel for the BDA as well as the learned counsel for the second respondent supported the impugned order. They submitted that the learned Single Judge has rightly held that the writ petition filed by the appellants herein was hit by the principles of res judicata, in as much as the petitioners' vendor had earlier been unsuccessful in the writ petition filed by them.
5. Secondly, it was submitted by learned counsel for the BDA that the right to seek allotment of marginal land would enure to the benefit of a party who has been initially allotted the adjacent land or site by the BDA and not otherwise. In the instant case, 5 the appellants are not the allottees of BDA. In the circumstances, they have no right to seek allotment of the adjacent site ie., the site in question. Learned counsel for the BDA contended that there is no merit in the appeal and therefore, the same may be dismissed.
6. Learned counsel for the second respondent also submitted that in the writ petition, the petitioners / appellants had no interim order of stay. But this Court has been mislead to grant the interim order of stay in the appeal. He therefore, submitted that the appeal may be dismissed and the interim order of stay may be vacated.
7. Having heard learned counsel for the respective parties, at the out-set, we notice that WP No.4363/2006 was filed by M/s. Nikhil Construction Company Private Limited from whom appellants herein have purchased their respective site in question. In fact, the vendor of the appellants had 6 sought a writ in the nature of mandamus to consider their representation dated 30.12.2002 for the purpose of allotment of the site to them. This Court while considering the said writ petition, did not find any reason to grant any direction or writ of mandamus and the writ petition was dismissed. The relevant portion of the said order reads as under:
"3. Now by virtue of an application under Annexure-F he claims a right to get the marginal land of about 15 guntas in Sy.No.43 alleging to be the adjacent land of his property in Sy.No.1/1 and Sy.No.44. On one hand he claims though 3 acres 9 guntas land in the above said two survey numbers came to be de-notified, he was able to get back possession of only 2 acres 12 guntas in both the survey numbers. Therefore, the so-called marginal land is nothing but the land belonging to him over which he was not able to get any injunction. On the other hand as per Annexure-F he claims this marginal land in Sy.No.43 which was never purchased by him under the sale deeds mentioned above. Sy.No.43 is altogether a different land and it never belonged to him or his vendor. Even in 7 the original suit Sy.No.43 was not the subject matter. That apart it is not his case that he was an allottee of Sy.No.1/1 and Sy.No.44 from the respondents/authorities. It is a private party. Bulk Allotment Rules does not benefit a private party. He is asking for 15 guntas of land in Sy.No.43, which could be adjacent to his land. Mere situation of land next to the land of the petitioner will not get him any right, title or interest to claim the said land under any law. Therefore, the grievance of the petitioner is that inspite of several requests and demands made by him, the respondent has not considered to allot this land to him as marginal land seems to be without any basis. Unless the statute gives such right to the petitioner to claim the adjacent land, this court cannot assist him by giving direction to the respondents in one way or the other. On the other hand the very disclosure of facts from the petitioner and the documents would reveal the petitioner himself is not sure which is the land adjacent to his land, whether balance of land purchased by him from the Vendor-Sakamma of Sy.No.43. Viewed from any angle, I do not find any good ground to grant the relief sought for.8
4. Accordingly, this writ petition is dismissed."
8. Therefore, the learned Single Judge in the impugned order has rightly held that since the vendor of the appellants had also sought a similar relief, the petition was hit by principles of res judicata. However, in the writ petitions filed by the appellants herein, they assailed the order of allotment made by the BDA to the second respondent on 23.02.2016. We find that the appellants had no right to assail the said order of allotment, in as much as they had no right to seek allotment of said site to themselves. Therefore, the writ petitions filed by the appellants has been rightly dismissed by the leaned Single Judge.
9. In the circumstances, we find there is no merit in the appeal. The appeal is hence, dismissed.
10. The interim order granted by this Court in the appeal stands vacated.
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11. In view of dismissal of the appeal, all pending applications except I.A.No.1/2020 stand dismissed. I.A. No.1/2020 is ordered to be filed.
Sd/-
JUDGE Sd/-
JUDGE GH