Karnataka High Court
Vimala Chandrashekhar vs Bruhat Bengaluru Mahanagara Palike on 28 November, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 17197 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 17197 OF 2023 (LB-BMP)
BETWEEN:
1. VIMALA CHANDRASHEKHAR,
W/O SRI. B. CHANDRASHEKHAR,
AGED ABOUT 61 YEARS,
2. B. CHANDRASHEKHAR,
SON OF SRI. BALAKRISHNAN NAIR,
AGED ABOUT 70 YEARS,
BOTH RESIDING AT PLOT BEARING NO. 72/1,
RAINBOW DRIVE, OFF SARJAPURA MAIN ROAD,
BENGALURU SOUTH - 560 035.
3. V.S. PADMANABHAN,
S/O SRI. V.V. SRINIVASAN,
Digitally signed AGED ABOUT 69 YEARS,
by
NARAYANAPPA 4.
LAKSHMAMMA SMT. SUJATHA PADMANABHAN,
Location: HIGH W/O SRI. V. S. PADMANABHAN,
COURT OF AGED ABOUT 66 YEARS,
KARNATAKA BOTH RESIDING AT 72/2 AND 73,
RBD LAYOUT, SARJAPUR ROAD,
BENGALURU SOUTH - 560 035.
5. VISHAL SHARMA,
SON OF SRI. RAMAVTAR SHARMA,
AGED ABOUT 38 YEARS,
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6. DEVI KANDASAMY,
WIFE OF SRI. VISHAL SHARMA,
AGED ABOUT 38 YEARS,
BOTH RESIDING AT 74/1,
RBD LAYOUT, OFF SARJAPUR ROAD,
BENGALURU SOUTH - 560 035.
7. SMT. JONAKI GHOSH THOMAS,
W/O SRI. THOMAS JOB,
AGED ABOUT 54 YEARS,
8. THOMAS JOB,
SON OF SRI. MAZHUVANCHERIPARAMBATH
MATHEW JOB, AGED ABOUT 50 YEARS,
BOTH RESIDING AT PLOT BEARING NO 74/2,
RAINBOW DRIVE, OFF SARJAPUR MAIN ROAD,
BENGALURU SOUTH - 560 035.
9. SUSHILKUMAR TILOKCHAND NAHAR,
SON OF SRI TILOKCHAND NAHAR,
AGED ABOUT 58 YEARS,
10. SMT. RAINA SUSHILKUMAR,
WIFE OF SRI. SUSHILKUMAR
TILOKCHAND NAHAR,
AGED ABOUT 50 YEARS,
BOTH RESIDING AT PLOT BEARING NO. 75,
RAINBOW DRIVE, OFF SARJAPUR MAIN ROAD,
BENGALURU SOUTH - 560 035.
11. P. VASUDEVAN,
SON OF LATE SRI. PADMANABHAN,
AGED ABOUT 74 YEARS,
RESIDING AT PLOT BEARING NO. 76,
RAINBOW DRIVE, OFF SARJAPUR MAIN ROAD,
BENGALURU SOUTH - 560 035.
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12. ANAND NATARAJAN S,
SON OF SRI. SUBRAMANIAN J,
AGED ABOUT 51 YEARS,
13. RENUKA PS,
WIFE OF SRI. ANAND NATARAJAN,
AGED ABOUT 46 YEARS,
BOTH RESIDING AT PLOT BEARING NO. 76/1,
RAINBOW DRIVE, OFF SARJAPUR MAIN ROAD,
BENGALURU SOUTH - 560 035.
14. VIVEK PANICKER,
SON OF SRI. P.L. RAMADASAN,
AGED ABOUT 40 YEARS,
15. SMT. SANILA K,
WIFE OF SRI. VIVEK PANICKER,
AGED ABOUT 34 YEARS,
BOTH RESIDING AT 77/A,
RBD LAYOUT, SARJAPUR ROAD,
BENGALURU SOUTH - 560 035.
16. NITIN BANSAL,
SON OF SRI MANGAT RAM BANSAL,
AGED ABOUT 41 YEARS,
17. RITU GOYAL,
WIFE OF SRI. NITIN BANSAL,
AGED ABOUT 36 YEARS,
BOTH RESIDING AT PLOT BEARING NO. 79,
RAINBOW DRIVE, OFF SARJAPUR MAIN ROAD,
BENGALURU SOUTH - 560 035.
18. N. CHANDAR,
S/O LATE SRI. C. NATARAJAN,
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AGED ABOUT 65 YEARS,
RESIDING AT PLOT BEARING NO. 80,
RAINBOW DRIVE, OFF SARJAPUR MAIN ROAD,
BENGALURU SOUTH - 560 035.
...PETITIONERS
(BY SRI. S.P. KAMALACHARAN, ADVOCATE)
AND:
1. BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE, BENGALURU - 560 002,
REPRESENTED BY ITS COMMISSIONER.
2. THE EXECUTIVE ENGINEER,
BRUHAT BENGALURU MAHANAGARA PALIKE,
OFFICE OF THE EXECUTIVE ENGINEER,
DEPARTMENT OF STORM WATER DRAINS,
MAHADEVAPURA RANGE,
9TH FLOOR, JAYANAGAR SHOPPING COMPLEX,
IV BLOCK, JAYANAGAR,
BENGALURU - 560 011.
3. THE STATE OF KARNATAKA,
DEPARTMENT OF REVENUE,
M.S. BUILDING, DR. B. R. AMBEDKAR VEEDHI,
BENGALURU - 560 001,
REPRESENTED HEREIN BY ITS
PRINCIPAL SECRETARY.
4. THE TAHSILDAR,
DEPARTMENT OF REVENUE,
K.R. PURAM, BENGALURU EAST TALUK,
BENGALURU - 560 016.
5. THE ADDL. DIRECTOR OF LAND RECORDS
BENGALURU EAST TALUK,
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K.R. PURAM, BENGALURU - 560 036.
6. FERN BUILDERS AND DEVELOPERS,
A PARTNERSHIP FIRM HAVING ITS OFFICE AT
NO. 95, INTERMEDIATE RING ROAD,
OFF AIRPORT ROAD, AMARJYOTHI LAYOUT,
DOMLUR, BENGALURU - 560 071,
REPRESENTED HEREIN BY ITS PARTNERS
SRI AUSTIN ROACH AND SRI NAGARAJ REDDY
...RESPONDENTS
(BY SRI. JAGADEESWARA N.R, ADVOCATE FOR R1 AND R2;
SMT. B.P. RADHA, AGA FOR R3, R4 AND R5;
SRI. SAMMITH S, ADVOCATE FOR R6)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
COMMUNICATION DATED 05.08.2023 BEARING
NO.SWD/BBMP/MA.VA/P.R/163/2023-24(ANNX-A) ISSUED BY
THE R2 TO R5 AND ETC.,
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Petitioners are before this Court seeking for the following reliefs:
i. Issue a writ of certiorari or any other appropriate writ to quash the communication dated 05.08.2023 bearing No.SWD/BBMP/Ma.Va/P.R./163/2023/24( Annexure-A) issued by respondent No.2 to respondent No.5;-6-
NC: 2023:KHC:43376 WP No. 17197 of 2023 ii. Issue a writ of certiorari or any other appropriate writ to quash the survey reports dated 05.12.2022 (Annexure-B) and 20.07.2023(Annexure-C) prepared and submitted by respondent Nos.4 and 5;
iii. Grant cost of these proceedings and iv. Pass any other order that this Hon'ble Court deems fit in the facts and circumstances of the case and in the interest of justice and equity.
2. The Petitioner is claiming to be the owner of the residential sites bearing No.72/1, 72/2, 73, 74/1, 74/2, 75, 76, 76/1, 77/A, 79 and 80 in Survey No.s 16/3A and 16/3B, situated in Halanayakanahalli Village, Varthur Hobli, Bengaluru East Taluk.
3. The petitioners are before this Court aggrieved by the Order issued by respondent No.5 at Annexure - A, contending that the petitioners have encroached upon government land and which has been verified in terms of the survey carried out pursuant to the Order passed by this Court in WP No.22550/2022, as such calling upon the petitioner encroachment from Raja Kaluve. to remove the encroachment from Raja Kaluve.
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4. Sri.S.P.Kamalacharan, learned counsel for petitioner submits that there is no Raja Kaluve in survey Nos.16/3A and 16/3B. The survey sketch which has been produced is without taking into consideration the RTCs, which have been issued as also the Conversion Orders which have been passed in respect of aforesaid survey No.16/3A measuring 39 guntas, having 2 guntas "A Kharab" and survey No.16/3B measuring 35 guntas, having 2 guntas "A Kharab".
5. Both these properties were converted from agricultural to non agricultural residential use, vide conversion Order dated 10.09.1997, issued by the Deputy Commissioner, Bangalore. While doing so, in respect of 4 guntas Kharab situated in both the aforesaid properties as detailed above, a sum of Rs.1,00,733/- was received as conversion fee and Rs.40,000/- towards 4 guntas of "A Kharab" totally amounting to Rs.1,40,803/-. The said amounts -8- NC: 2023:KHC:43376 WP No. 17197 of 2023 having been paid by the developer, evidence by the receipt issued on 18.08.1997. His submission is that the Kharab survey Nos.16/3A and 16/3B have been regularized, even regularized kharab is "A kharab"
and not "B kharab". "A kharab" being only uncultivable area is not vested with the Government, nor does any member of the public have any right over the said "A kharab". It is only in the event of there being a "B kharab" situated in a particular survey number, could the government or any authority claim right over the same. Since it is in respect of the "B kharab" that the public right is vested.
6. His submission is that there being no "B kharab"
shown in the RTCs, the survey sketch which has been produced relying upon the Tippanis of the year 1958 would not enure to the benefit of the Tahasildar or the BBMP. The authority ought to have taken into consideration, the existing documents as -9- NC: 2023:KHC:43376 WP No. 17197 of 2023 on date, which would include the RTCs which have been issued by the State and the Conversion Order passed by Deputy Commissioner. There being no allegation that these documents are false or fabricated and/or that the documents have been issued in collusion, these documents would hold the field and as such be binding upon the State and its instrumentalities.
7. His alternative submission is that in the Revised Master Plan 2015, which came into force on 25.06.2017, in respect of the property of the petitioner, there has been no Raja Kaluve which has been shown and as such in this regard he relies upon the decision in SOBHA DEVELOPERS LIMITED v. BRUHAT BENGALURU MAHANAGARA PALIKE1, which has been passed by the Division Bench of this Court. 1 W.P.No.44277/2011 dated 10.02.2012
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8. Thus, he submits that when there is no Raja Kaluve which is situated in the property of the petitioners, neither in RTCs or in the Conversion Order or in the RMP. The question of ADLR now contending that such Raja Kaluve exists, by relying upon the Tippanis of the year 1958 would not arise and there being no "B kharab" or Raja Kaluve situated in the property of the petitioner, it could not have been contended that there is encroachment made by the petitioner, in respect of such non existing kharab. On these grounds he submits that petition is required to be allowed and the Order at Annexure-A is required to be quashed.
9. Respondent No.6 adopts the submission of learned counsel for petitioner.
10. Sri.N.R.Jagadeeswara, learned counsel for respondents No.1 and 2 submits that entire action initiated by respondents No.1 and 2 is on the basis of the ADLR survey report and in that background he
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NC: 2023:KHC:43376 WP No. 17197 of 2023 submits that respondents No.1 and 2 were required to act and have acted upon ADLR report.
11. Learned AGA appearing for respondents No.3, 4 and 5 would submit that the survey sketch has been prepared relying upon the Tippanis of the year 1958. On enquiry as to whether the RTCs which have been issued and the Conversion Orders passed by the Deputy Commissioner, have been looked into with reference to the RMP, his submission is that the ADLR survey sketch has been prepared on the basis of Tippanis, which have been produced along with the report submitted. Relying on the same and on the instructions ADLR, learned AGA submits that there exists a Raja Kaluve in terms of Tippanis of the year 1958, which is now encroached by the petitioner as such the action taken is proper and correct.
12. Heard Sri.S.B.Kamalacharan, learned counsel for petitioner, Sri.Jagadeeswara.N.R., learned counsel
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NC: 2023:KHC:43376 WP No. 17197 of 2023 for Respondents No.1 and 2, Smt.B.P.Radha, learned AGA for respondents No.3, 4 and 5 and Sri.Sammith.S. for respondent No.6 and perused the papers.
13. The short question that arises for consideration of this Court is if there is no Raja Kaluve, which has been shown in the Revised Master Plan or the Comprehensive Development Plan, could any authority of the State by relying upon the village map/Tippani contend that there is Raja Kaluve situated in that property.
14. The above matter is no longer res-integra in as much as SOBHA DEVELOPERS LIMITED v. BRUHAT BENGALURU MAHANAGARA PALIKE2 as held that the RMP would prevail over the village map and it is only if the RMP reflects existence of in Raja Kaluve, there could the State or its authorities seek to exercise any right thereon. The said decision as 2 W.P.No.44277/2011 dated 10.02.2012
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NC: 2023:KHC:43376 WP No. 17197 of 2023 contended by Sri.S.P.Kamalacharan, learned counsel for petitioner has been confirmed by the Division Bench of this Court, which would be binding on this Court, there being no appeal further filed in relation thereto to the Apex Court.
15. Apart from the said decision, in the present case, the contention of learned AGA is that the Raja Kaluve exists in term of Tippanis. A Raja Kaluve, where public would have a right, would necessarily have to be classified as "B kharab". The RTCs which have been issued do not reflect any "B kharab" in respect of survey No.16/3A and 16/3B. Once RTCs do not reflect the said "B kharab", question of reserving of land for public use or that the right over the land being vested with the government, would not at all arise.
16. The Deputy Commissioner has also issued a official memorandum, granting the sanction of conversion of land covered under survey No.16/3A and 16/3B
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NC: 2023:KHC:43376 WP No. 17197 of 2023 from agricultural land to non agricultural land and at that point of time, it is observed that there were 4 guntas of "A kharab", 2 guntas each situated in the aforesaid survey numbers, as regards which Rs.40,000 was collected for regularization. Once such regularization is made and 4 guntas stood vested with the petitioner, there is no kharab, either "A kharab" or "B kharab" situated in the aforesaid survey numbers.
17. When there is no "B Kharab", which is reflected in the RTCs, in the Conversion Order as also no streng water drain/Raja Kaluve reflected in the RMPS, the decision in WP No. 44277/2011 would enure to the benefit of the petitioner and the respondents could not have contended that there is any encroachment of the Raja Kaluve.
18. The survey sketch also leads to another anomaly, inasmuch as, even as per the survey sketch, the so called Raja Kaluve starts from 16/1 goes on 16/2,
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NC: 2023:KHC:43376 WP No. 17197 of 2023 16/3B and 16/3A of Halanayakanahalli and there after there is no Raja Kaluve reflected in survey No.12 situated in Junnasandra and again starts from survey No.18 goes on 19, 20, 21 and 23 of Halanayakanahalli. The Raja Kaluve could not just disappear in survey No.12, which has happened in the survey sketch produced by ADLR. Thus, this survey sketch can also not be accepted, inasmuch as, there cannot be a portions of Raja Kaluve in different properties. In that view of the matter, I am of the considered opinion that the petition is required to be allowed, as such I pass the following Orders:
ORDER i. Writ petition is allowed, a certiorari is issued. Communication/Order The dated 05.08.2023 bearing No.SWD/BBMP/Ma.Va/P.R./163.2023- 24 at Annexure-A, passed by respondents No.2 to 5 is hereby quashed.
ii. A certiorari is issued quashing the survey report dated 05.12.2023 at
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NC: 2023:KHC:43376 WP No. 17197 of 2023 Annexure-B and dated 20.07.2023 at Annexure-C prepared by respondents by respondents No.4 and 5.
iii. Liberty is however reserved for the corporation and/or the State to acquire the land of the petitioner for the purposes of formation of any drain, if it wishes to do so.
Sd/-
JUDGE NJ List No.: 1 Sl No.: 28 CT: BHK