Karnataka High Court
Sri. Raju N. G vs State Of Karnataka on 25 July, 2025
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY 2025
PRESENT
THE HON'BLE MR. JUSTICE S. G. PANDIT
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
WRIT APPEAL NO.6930/2017 (BDA)
C/W
WRIT APPEAL NO.6446/2017 (BDA)
W.A.NO.6930/2017
BETWEEN:
BENGALURU DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD
KUMARA PARK WEST
BENGALURU-560020
BY ITS COMMISSIONER.
...APPELLANT
(BY SRI. G.S. KANNUR. SR. COUNSEL FOR
SRI G LAKSHMEESH RAO, ADV.)
AND:
1. CHADURANGA KANTHARAJ URS
S/O LATE K.B. RAMACHANDRARAJ URS
AGED ABOUT 42 YEARS
R/O GAYATHRI VIHAR
BENGALURU PALACE GROUND
RAMANA MAHARSHI ROAD
BENGALURU-560080.
2
2. TRIPURASUNDARI DEVIAVARU
W/O SWAROOP ANAND
AGED ABOUT 50 YEARS
R/O GAYATHRI VIHAR
BENGALURU PALACE GROUND
RAMANA MAHARSHI ROAD
BENGALURU - 560080.
3. KIRTIMALINIDEVI AVARU
D/O LATE SARDAR K.B. RAMACHANDRARAJ URS
AGED ABOUT 45 YEARS
R/O GAYATHRI VIHAR
BENGALURU PALACE GROUND
RAMANA MAHARSHI ROAD
BENGALURU - 560080.
4. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIKAS SOUDHA
BENGALURU-560001
REP. BY ITS SECRETARY.
5. DEEPAMALINI DEVI AVARU
W/O JAIDEEP BHALE RAO
AGED ABOUT 47 YEARS
R/AT NO.304, BRIGADE PARKWAY
NO.2636, II MAIN ROAD
V.V. MOHALLA
MYSORE - 570002.
6. M/S. EMBASSY PROPERTY
DEVELOPERS PVT. LTD.,
(FORMERLY KNOWN AS
DYNASTY PROPERTIES PVT.LTD.,)
NO.150, 1ST FLOOR
EMBASSY POINT, INFANTRY ROAD
BENGALURU-560001
REP. BY ITS DIRECTOR
NARPAT SINGH CHORARIA.
3
7. RAJU N.C.
S/O LATE S NARASIMHARAJU
AGED ABOUT 46 YEARS
R/AT NO.133, 4TH CROSS
RMV II STAGE
BENGALURU-560094
(AMENDED V/C/O DT:13.11.2014)
...RESPONDENTS
(BY SRI G KRISHAMURTHY, SR. COUNSEL FOR
SRI K.S. NARANASWAMY, ADV. FOR R7
SRI SRINIVAS RAGHAVAN, SR. COUNSEL FOR
SRI KEMPEGOWDA AND SRI SANJAY NAIR, ADV. FOR R6
SMT. SARITHA KULKARNI, AGA FOR R4
SMT. GEETHADEVI M PAPANNA, ADV. FOR C/R1 AND R3
SRI S SIMHADUTTA ADV. FOR R2
SRI P.N. MANMOHAN, ADV. FOR
SRI VINAY N., ADV. FOR R5)
THIS APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER OF THE LEARNED SINGLE JUDGE, PASSED IN
W.P. NO.13599/2014 DATED 04.10.2017 AND THEREBY
DISMISS THE SAID WRIT PETITION.
W.A.NO.6446/2017
BETWEEN:
SRI RAJU N.G.
S/O LATE S NARASIMHARAJU
AGED ABOUT 47 YEARS
R/AT NO.133, 4TH CROSS
RMV II STAGE
BENGALURU-560094.
...APPELLANT
(BY SRI G KRISHAMURTHY, SR. COUNSEL FOR
SRI K.S. NARANASWAMY, ADV.)
4
AND:
1. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIKAS SOUDHA
BENGALURU-560001
REP. BY ITS SECRETARY.
2. BENGALURU DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD
KUMARA PARK WEST
BENGALURU-560020
BY ITS COMMISSIONER.
3. DEEPAMALINI DEVI AVARU
W/O JAIDEEP BHALE RAO
AGED ABOUT 44 YEARS
R/AT NO.304, BRIGADE PARKWAY
NO.2636, II MAIN ROAD
V.V. MOHALLA
MYSORE - 570002.
4. M/S. EMBASSY PROPERTY
DEVELOPMENTS PVT. LTD.,
(FORMERLY KNOWN AS DYNASTY
DEVELOPMENTS PVT.LTD.,)
NO.150, 1ST FLOOR
EMBASSY POINT, INFANTRY ROAD
BENGALURU-560001
REP. BY ITS DIRECTOR
NARPAT SINGH CHORARIA.
5. CHADURANGA KANTHARAJ URS
S/O LATE K.B. RAMACHANDRARAJ URS
AGED ABOUT 42 YEARS
R/O GAYATHRI VIHAR
BENGALURU PALACE GROUND
RAMANA MAHARSHI ROAD
BENGALURU-560080.
5
6. TRIPURASUNDARI DEVI AVARU
W/O SWAROOP ANAND
AGED ABOUT 50 YEARS
R/O GAYATHRI VIHAR
BENGALURU PALACE GROUND
RAMANA MAHARSHI ROAD
BENGALURU - 560080.
7. KIRTIMALINIDEVI AVARU
D/O LATE SARDAR K.B. RAMACHANDRARAJ URS
AGED ABOUT 45 YEARS
R/O GAYATHRI VIHAR
BENGALURU PALACE GROUND
RAMANA MAHARSHI ROAD
BENGALURU - 560080.
...RESPONDENTS
(BY SRI SRINIVAS RAGHAVAN, SR. COUNSEL FOR
SRI KEMPEGOWDA AND SRI SANJAY NAIR, ADV. FOR R4
SMT. SARITHA KULKARNI, AGA FOR R1
SRI. G.S. KANNUR, SR. COUNSEL FOR
SRI G LAKSHMEESH RAO, ADV. FOR R2
SMT. GEETHADEVI M PAPANNA, ADV. FOR C/R5 AND R7
SRI S SIMHADUTTA ADV. FOR R6
SRI P.N. MANMOHAN, ADV. FOR
SRI VINAY N., ADV. FOR R3)
THIS APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER DATED 04.10.2017 IN W.P. NO.13599/2014
(BDA) PASSED BY THE LEARNED SINGLE JUDGE OF THIS
COURT.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED ON 18.06.2025 COMING ON FOR
PRONOUNCEMENT THIS DAY, S.G.PANDIT J.,
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE T.M.NADAF
6
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT) This writ appeal filed under Section 4 of the Karnataka High Court Act, 1961 is directed against the learned Single Judge's order dated 04.10.2017 in W.P.No.13599/2014, whereunder, the learned Single Judge allowed the writ petition and held that designation of land in question in the master plan showing it as public and semi public use has stood lapsed by virtue of the deeming provision as the land has not been acquired within the period prescribed.
2. For the sake of convenience, the parties shall be referred to as per the rank they held before the learned Single Judge in W.P.No.13599/2014.
3. Brief facts of the case are that, the petitioners who are respondents No.1 to 3 in W.A.No.6930/2017 filed a writ petition with a 7 prayer to quash endorsement dated 27.01.2014 (Annexure-L) i.e., communication from BDA to the first respondent - Secretary to Government, Urban Development Department wherein, petitioners' request for change of land use of the land in question is submitted to the Government for decision. The petitioners also sought for a writ of mandamus directing the State to delete from the master plan delineating the land in question and also to declare that the property in question could not have been notified as public and semi public use in the comprehensive development plan.
4. The petitioners claim that the petitioners along with third respondent are joint owners of the property in question i.e., Municipal No.17, 16th Cross, Sadashivanagar, Ward No.99, Bengaluru which was granted to Rajakumari Leelavathi Devi Avaru on 8 28.05.1958 in terms of Annexure-A, grant order. It is their claim that the property devolved upon them and at present they are the owners in possession of the schedule property. It is also stated that the petitioners and the third respondent entered into an oral partition and a confirmation deed was also executed which was registered on 16.01.2000. It is their claim that there is a temple of Lord Narmadeshwara and also there is a Brindavan. With a view to promote the property, the petitioners submitted an application seeking change of land use from public and semi public use to residential use. It is stated that in the master plan published by respondent No.2 - Bangalore Development Authority (for short, 'BDA') in the year 1995, the land in question was designated for public and semi public use.
5. The application for change of land use of the petitioners were processed and as required under Section 14B of the Town and Country Planning Act, 9 1961 (for short, '1961 Act'), the application was processed and public notice on 04.07.2008 in 'Kannada Prabha' Kannada newspaper was published calling for objections from the general public. It is also stated that the petitioners obtained 'No Objection' from the authorities such as BESCOM, BSNL, BBMP etc., It is stated that under Annexure-L, endorsement dated 27.01.2014 i.e., letter addressed by BDA to the Secretary to Government, Urban Development Department, it was claimed that the land in question is the property of the BDA. The said letter was also marked to the fourth respondent - Developer, with whom the petitioners had entered into joint development agreement.
6. The second respondent - BDA filed its statement of objections stating that Annexure-A claiming to be the grant order would not confer any title over the land in question, but it confers only the 10 right of preservation and maintenance of Brindavan. Hence, it is stated that there is no grant of the property in question in favour of the petitioners or third respondent. It is claimed by BDA that the land in question was given free of cost to the City Improvement Trust Board (for short, 'CITB'), now vested with the BDA. Further, it is stated that the land was given free of cost to CITB at the time of sale of palace lands to the then CITB in the Upper and Lower Orchards of Rajmahal Vilas for formation of Rajmahal Vilas Extension.
7. The BDA claims title over the property under Annexures-R1 to R5. Based on Annexures-R1 to R5, BDA claim that 1 acre of land where Brindavan is situated had been given to the CITB free of cost for forming park around Brindavan and not for utilization of land in question for commercial purpose. The BDA also stated that the property in question cannot be 11 promoted and developed by the petitioners by entering into a joint development agreement, as the Brindavan has to be preserved and maintained as an ancient monument and the area around Brindavan has to be maintained as a park. It also stated that, under Article 226 of the Constitution of India, no adjudication could take place with regard to title over the property. Hence, prayed for dismissal of the writ petition.
8. Respondent No.5, Sri.Raju.N.C., also filed his statement of objections claiming title over the petition schedule property. Respondent No.5 claimed that his great grandfather one Narasimharaju purchased the land bearing Sy.No.31 measuring 2 acres 4 guntas under a document dated 15.05.1885 and in pursuance to the said document he was put in possession of the said property. It is stated that the said land merged with the lands of Bangalore Palace 12 and on the request of son of late Narasimharaju, namely Siddaraju, his Highness Maharaja Nalvadi Krishnaraja Wodeyaru gave the property under the document dated 13.01.1905 in place of the property which was included in the palace lands. Based on the said document Siddaraju was put in possession of the land in question. It was also stated that subsequently during 1925, on recognition of services of Sri.Siddaraju and Smt.Narasammanni, his Highness Maharaja of Mysuru delivered the possession of palace property in Bangalore Palace Orchards which is the subject matter of the writ petition as per the possession deed dated 10.01.1925 i.e., Annexure-R5.
9. It was also stated that the said property was converted to non-agricultural purposes under an order dated 09.01.1968. The statement of objections would also indicate that the petitioners have filed O.S.No.25580/2013 on the file of the Additional City 13 Civil Judge, Bengaluru against respondent No.5 for declaration that the gift deed dated 23.02.2012 and the agreement of sale dated 22.02.2013 are void and not binding on the petitioners and also have sought for permanent injunction, which is pending consideration. It is also stated that the respondent - BDA got itself impleaded in the said suit claiming title over the property in question.
10. Learned Single Judge vide the impugned order allowed the writ petition holding that the petitioners claimed title to the property not only on the basis of grant (Annexure-A) but also as legal heirs i.e., family members of Maharaja. Therefore, held that BDA cannot contend that the petitioners should go to the Civil Court to establish their rights. Learned Single Judge also held that the fifth respondent cannot be said to have any interest in the property and cannot be permitted to resist the relief sought by petitioners. 14 Further, learned Single Judge held that in the wake of the provisions of 69(2) of the Act, designation of land in question in the master plan showing it as public and semi public use has stood lapsed by virtue of the deeming provision as the land has not been acquired within the prescribed period. Hence, respondent No.2
- BDA and respondent No.5 Sri.Raju.N.C., have filed these writ appeals bearing W.A.No.6930/2017 and W.A.No.6446/2017 respectively.
11. Heard learned counsel Smt.Geethadevi M. Papanna for petitioners/respondent Nos.1 and 3 in W.A.No.6930/2017, learned senior counsel Sri.G.Krishnamurthy for learned counsel Sri.K.S.Narayanaswamy for respondent No.5/appellant in W.A.No.6446/2017, learned senior counsel Sri.Srinivas Raghavan for Sri.Kempe Gowda and Sri.Sanjay Nair, learned counsel for respondent No.4/respondent No.6 in W.A.No.6930/2017, learned 15 Additional Government Advocate Smt.Saritha Kulkarni for State, learned senior counsel Sri.G.S.Kannur for Sri.G.Lakshmeesh Rao for BDA and learned counsel Sri.P.N.Manmohan for respondent No.3/respondent No.5 in W.A.No.6930/2017. Perused the entire writ appeal papers.
12. Learned senior counsel Sri.G.S.Kannur for BDA would submit that Annexure-A claiming to be the grant order, would not confer any title to the petitioners over the petition schedule property. Moreover, learned senior counsel would submit that the land in question was given to the then CITB free of cost by the erstwhile Maharaja of Mysuru during May, 1958. He further submits that the said land was given to CITB at the time of sale of palace lands to the then CITB in Upper and Lower Orchids in Rajmahal Vilas for formation of Rajmahal Vilas Extension during the year 1958. Further, learned senior counsel would 16 submit that the area around the existing Brindavan is to be preserved and no development is permissible. He further submits that the land in question was handed over to the CITB for maintaining it as a park by inviting our attention to Annexures-R1 to R5. Learned senior counsel would also submit that, it is not open for either petitioners or for respondent No.5 to claim title and right over the petition schedule property.
13. It is the submission of the learned senior counsel that in the master plan published for Bangalore metropolitan area in the year 1995 the land in question was shown as public and semi public use. Learned senior counsel would further submit that the application of the petitioners for change of land use was mistakenly processed and paper publication was taken. As the Government also sought clarification from respondent - BDA, the BDA clarified under 17 Annexure-L asserting its right over the property in question. Therefore, he submitted that the petitioners cannot seek for change of land use as they have no right over the property and prayed for allowing the writ appeal.
14. Learned counsel Smt.Geethadevi M. Papanna appearing for petitioners vehemently opposes the appeals filed by respondent - BDA as well as respondent No.5. Supporting the order of the learned Single Judge, learned counsel would submit that in terms of Annexure-A, grant communication dated 28/30.05.1958, 1 acre of land on which Brindavan of late Maharajakumari Avaru rests, was put in possession of Rajakumari Leelavathi Avaru for preservation and maintenance. Further, learned counsel would also invite attention of this Court to Annexure-B, the partition and confirmation deed between the petitioners and respondent No.3 in 18 respect of the property in question. Learned counsel would specifically submit that BDA has no semblance of right and title over the property in question. It is submitted that the application submitted by the petitioners for change of land use through its developer could not have been kept pending stating that the property in question belongs to BDA. It is stated that the documents on which the BDA claims its right over the property in question would not indicate handing over of petition schedule property to respondent-BDA. It is specifically contended that the land in question consists of Brindavan of late Maharajakumari Avaru. As such the said land was given to Rajakumari Leelavathi Avaru for preservation and maintenance. As there is Brindavan, the same could not have been given to any other person or authority. Learned counsel would refer to Annexures produced along with writ petition to submit that the 19 petitioners are the owners in possession and they have a right to seek change of land use.
15. Learned counsel Sri.P.N.Manmohan appearing for respondent No.3 supports the petitioners and would submit that BDA has no manner of right, title and interest over the petition schedule property.
16. Learned senior counsel Sri.Srinivas Raghavan appearing for respondent No.4 - Developer also supports the petitioners and submits that the claim of respondent No.2 - BDA is baseless and there is no title deed in favour of respondent - BDA to claim title over the land in question. It is submitted that respondent No.4 has acquired substantial right, title and interest over the petition schedule property based on the transaction entered into with the petitioners and respondent No.3. Learned senior counsel would 20 submit that under Annexure-A, grant order, the petitioners and respondent No.3 acquired right over the land in question. Learned senior counsel would submit that BBMP has assessed the petition schedule property to tax after verifying all the records and collected the property tax from 1992 onwards. Learned senior counsel would also refer to Annexure-R4(11) i.e., endorsement issued by BDA stating that the said land is not part of any acquisition proceedings. Learned senior counsel would further submit that the application filed for change of land use could not have been kept pending by BDA claiming title over the property. Unless and until BDA establishes its title and right over the property in a competent Civil Court, BDA cannot declare itself as owner or title holder of the land in question.
17. Learned senior counsel Sri.G.Krishnamurthy for respondent No.5 would submit that the finding of 21 the learned Single Judge with regard to title and ownership of the land in question is erroneous and beyond the scope of the writ petition, that too, when the suit filed by the petitioners against respondent No.5 is pending consideration before the competent Civil Court. Learned senior counsel would submit that on 10.01.1925, Maharaja of Mysuru issued possession certificate and delivered possession in favour of Siddaraju in recognition of his services. After the death of Siddaraju, his son Narasimharaju inherited the property. On the death of Narasimharaju, his wife Revamma gifted the land in favour of her son N.G.Raju, respondent No.5 in the writ petition and appellant before this Court in W.A.No.6446/2017 under Gift deed dated 23.12.2012. It is submitted that on the basis of said gift deed, khatha was also changed in the name of respondent No.5 - appellant. Learned senior counsel would submit that the 22 petitioners i.e., respondent Nos.5 to 7 in W.A.No.6446/2017 have filed O.S.No.25580/2013 before the City Civil and Sessions Court, Bengaluru seeking declaration and injunction.
18. Learned counsel would contend that when the suit is filed prior to the filing of the writ petition by the petitioners, the learned Single Judge could not have gone into the issue of title and could not have held that the fifth respondent cannot be said to have any interest in the property. When the petitioners themselves have approached Civil Court for a declaration of gift deed which is in favour of the fifth respondent as void, the learned Single Judge committed an error in deciding the title over the property in favour of the petitioners. It is submitted that by virtue of the finding of the learned Single Judge in the impugned order, nothing would remain to be decided in the suit.
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19. It is his specific contention that under Article 226 of the Constitution of India, when the petitioners were before this Court seeking a mandamus, learned Single Judge fell into error in deciding other questions without deciding as to whether the petitioners would be entitled for a writ of mandamus as prayed. Learned senior counsel would also submit that respondent No.2 - BDA has no manner of right, title and interest over the property in question and he would also submit that Anexures-R1 to R5 produced by BDA along with its objection statement, would not confer any right on the BDA. Thus, learned senior counsel would pray for allowing the writ appeal and to dismiss the writ petition.
20. On hearing the learned counsel appearing for the parties and on perusal of the entire writ appeal 24 papers, the following points would arise for consideration:
a) Whether in the facts and circumstances, learned Single Judge was justified in coming to the conclusion that fifth respondent cannot be said to have any interest in the property and cannot be permitted to resist the relief sought by the petitioners?
b) Whether the learned Single Judge is right in coming to the conclusion that designation of land in question for public and semi public use in master plan stood lapsed?
Reg. Point No.1:
21. It is a settled position of law that, in a petition filed under Article 226 of the Constitution of India, it is not permissible for the High Court to decide an issue related to title of property and it also cannot 25 go into the disputed questions of fact. The High Court under Article 226 of the Constitution of India also cannot go into a question which requires recording of evidence. Writ petition under Article 226 of the Constitution of India is a public law remedy. A dispute between private parties cannot be subject matter of writ jurisdiction. Writ remedy is not available for resolving a property or title dispute.
22. The prayer of the petitioners in the writ petition was to quash letter dated 27.01.2014 (Annexure-L) addressed by BDA to the Principal Secretary to Government, Urban Development Department, wherein BDA claimed that property in question is the property of the BDA. The BDA claims title over the property on the basis of Annexures-R1 to R5 produced along with its statement of objections filed before the Writ Court. Whether Annexures-R1 to R5 confers any title or interest in favour of second 26 respondent-BDA is not decided by any competent Civil Court. It is for the BDA to establish its title by approaching the competent Civil Court. In an application filed by petitioners for change of land use which is a statutory application under Section 14B of the Act, the respondent No.2 - BDA could not have claimed title. As could be seen from Annexure-L i.e., communication between BDA and Government, there is no consideration of application filed by petitioners for change of land use except, BDA stating that site sought for change of land use is the property of the authority. The BDA itself cannot declare its title, having failed to assert its right or title over the land in question prior to Annexure-L, letter dated 27.01.2014.
23. Learned Single Judge vide the impugned order has recorded that the fifth respondent cannot be said to have any interest in the property and cannot be permitted to resist the relief sought for by the 27 petitioners. The said finding is erroneous and the learned Single Judge in the light of a pending suit between petitioners and respondent No.5, filed prior to filing of the writ petition, could not have recorded such a finding, which could adversely affect the pending suit. Learned Single Judge could have appreciated the documents produced by the parties only for the purpose of relief sought in the writ petition i.e., whether the petitioners were entitled to seek change of land use.
24. The finding of the learned Single Judge with regard to title over the property is beyond the scope of the writ petition. Learned Single Judge has given a finding that there is absolutely no legally acceptable material to show any semblance of right of fifth respondent over the property in question while rejecting the claim of the BDA that it has no right over the property in question. It is very relevant to note 28 here that prior to filing the writ petition seeking for declaration that the property in question could not have been notified as public and semi public in the comprehensive development plan, the petitioners had instituted a suit in O.S.No.25580/2013 before the City Civil Judge at Bengaluru against the mother of fifth respondent, fifth respondent and others praying for the following reliefs:
"a) Declare that the entries made in the revenue records in respect of the suit schedule property pursuant to the Gift Deed dated 23.02.2012 as fraudulent and null and void and not binding on the plaintiffs.
b) Declare that the Gift Deed dated 23.02.2012 and the agreement of sale dated 22.02.2013 are void and not binding on the plaintiffs.
c) Direction to the BBMP/Revenue Authorities to cancel/delete the entries made in the records of the property 29 pursuant to the Gift Deed dated 23.02.2012.
d) Permanent injunction restraining defendant No.1 and 2 from interfering with the plaintiffs possession or otherwise alienation/encumbering the suit schedule property in any manner.
e) Direction to the BBMP/Revenue authorities to delete the entries made in the encumbrance records pursuant to the agreement of sale dated 22.02.2013."
25. In the above suit, the second respondent- BDA also got itself impleaded as defendant No.5. Upon a perusal of the prayer made in the suit, it is seen that, apart from seeking declaration of gift deeds as void and not binding on the plaintiffs i.e., petitioners, the petitioners have also sought for a direction to BBMP and Revenue Authorities to cancel/delete the entries made in the record of the property pursuant to 30 gift deed dated 23.02.2012. It appears that the prayer for direction to cancel the entries made in the records of BBMP has arisen in view of the fact that name of the fifth respondent had been entered in the revenue records. Therefore, when the dispute with regard to title/ownership/or otherwise of the property was pending before the Civil Court and in that circumstance, giving a finding that fifth respondent has no right/interest in the property and the finding that there is no material to show any semblance of right of fifth respondent was wholly uncalled for in the present writ petition. In a petition under Article 226 of the Constitution of India, the Writ Court could not have gone into the extent of determining the right or title of the parties over the immovable property i.e., property in question.
26. Upon a perusal of Annexure-A, based on which, the petitioners claim right and title over the 31 property, it is seen that the possession of the Brindavan of late Maharajakumari Avaru was handed over to Rajakumari Leelavathi Avaru for preservation and maintenance. Whereas under Annexures-R1 and R2 to the statement of objections of BDA-second respondent, it is seen that the CITB is given an area around the Brindavan of late Maharajakumari Avaru, measuring about an acre of land. From Annexure-A to the writ petition and Annexures-R1 to R5 produced by BDA along with its statement of objections, it is clear that the Brindavan of late Maharajakumari Avaru exists in the land in question. Whether the land in question was put in possession of the petitioners for maintenance and preservation of Brindavan; whether the land in question was handed over to CITB for forming a park; or as claimed by fifth respondent, whether the land in question was given to his predecessors as alternative land by his highness 32 Maharaja of Mysuru under the document dated 13.01.1905 is to be decided. The BDA having failed to exercise its right could not have claimed title or ownership suddenly when the petitioners made an application for change of land use. It is open for the second respondent to establish its title before the appropriate forum in accordance with law and only then it can claim ownership or title over the land in question.
27. No doubt, Section 69 of the 1961 Act empowers the Planning Authority to acquire any land designated in the master plan for public purposes by following the procedure stated therein. Sub-Section (2) of section 69 of 1961 Act also makes it clear that if certain designated land for public purpose are not utilized or not acquired in the manner stated therein within a period of five years, the designation shall be deemed to have lapsed. Sub-Section (3) of Section 69 33 of 1961 Act further makes it clear that when the designated land use lapses under Sub-Section (2) of Section 69 of 1961 Act, the Authority may consider the new land use sought by the land owner of such land, based on the surrounding developments by following the procedure stated therein.
28. Admittedly, the land in question is neither utilized for the purpose for which it was designated nor has it been acquired. Therefore, the finding of the learned Single Judge insofar as lapsing of the land use as specified in the Master Plan in terms of the deeming provision is sustained. However, the further action on the application of the petitioners would depend on the outcome of O.S.No.25580/2013 pending on the file of the City Civil Judge at Bengaluru.
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29. For the reasons recorded above, writ appeals stand disposed of modifying the order of the learned Single Judge to the above extent and the observations made during the course of the order.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(T.M.NADAF) JUDGE NC CT: bms