Karnataka High Court
Bank Officers Co-Operative Housing vs Bangalore Development Authority on 9 November, 2012
Author: D.V.Shylendra Kumar
Bench: D.V. Shylendra Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE D.V. SHYLENDRA KUMAR
WRIT PETITION No.31183 /2010 (KLR)
BETWEEN:
BANK OFFICERS' CO-OPERATIVE HOUSING
SOCIETY LIMITED, A CO-OPERATIVE SOCIETY
REGTD UNDER THE KARNATAKA, CO-OPERATIVE
SOCIETIES ACT, 1959, HAVING ITS REGTD
OFFICE AT GF-006 "ACHARYA SANKEERNA"
AICOBOO NAGAR, 9TH MAIN II CROSS, BTM
LAYOUT, II STAGE,
B"LORE - 560 076
REP BY ITS SECR ... PETITIONER
(BY SRI P.S. RAJAGOPAL, SR.COUNSEL FOR
SRI M N PRASANNA & K PUTTEGOWDA, ADV.)
AND:
1. BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD, KUMARA PARK WEST,
BANGALORE
REPRESENTED BY ITS COMMISSIONER
2. BRUHAT BANGALORE MAHANAGARA PALIKE
BANGALORE
REPRESENTED BY ITS COMMISSIONER
3. CHANNAPPA
S/O LATE CHANNAIAH, MAJOR
NO. 391/42, RAJAJINAGAR, I BLOCK,
19TH MAIN, BANGALORE
-2-
4. THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE DISTRICT
BANGALORE - 560 001.
5. THE STATE OF KARNATAKA
REP. BY THE PRINCIPAL
SECRETARY TO GOVERNMENT
DEPARTMENT OF URBAN DEVELOPMENT
M.S. BUILDING
DR.B.R. AMEDKAR VEEDHI,
BANGALORE - 560 001. ... RESPONDENTS
(BY SRI VISHNU D BHAT FOR R1
SRI.K.N. PUTTEGOWDA FOR R2
SRI NANDISH FOR R.B. SADASIVAPPA FOR R-3
SMT. AKKAMAHADEVI, HCGP FOR R4 & 5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS LEADING TO THE ORDER DTD 3.12.05 PASSED
BY THE BBMP, NO OBJECTION CERTIFICATE DTD 18.11.05 ISSUED
BY THE BDA. QUASH 'NO OBJECTION CERTIFICATE' DTD 18.11.05
(UNDER ANNEX-N TO THE W.P) ISSUED BY THE R1 AND
CONSEQUENT ORDER DTD 3.12.-5 (UNDER ANNEX-P TO THE W.P)
PASSED BY THE R2 AND GRANT ALL CONSEQUENTIAL BENEFITS.
THIS WRIT PETITION COMING ON FOR FURTHER ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING: -
ORDER
This writ petition is by a Housing Co-operative Society, which had been allotted about 30 acres of land by the Bangalore Development Authority (for short 'the BDA'), from out of the land notified for acquisition in favour of the -3- BDA by the State Government and forming part of acquisition proceedings initiated in the year 1977 for a public purpose, namely for formation of what is known as BTM layout scheme.
2. This writ petition is filed on the premise that out of an extent of 30 acres of land allotted in their favour, the society was required to yield or surrender an extent of 3 acres 20 guntas of land for being utilised for civic amenity purpose, particularly to be maintained as a park initially by the BDA and later by the Bruhat Bengaluru Mahanagara Palike (for short 'the BBMP') - Municipal Authority and this extent of 3 acres 20 guntas was required to be retained as a park for the benefit of residents in the area, but the BDA has failed to maintain it as a park and on the other hand, is allowing the land to be mis-utilized and therefore, a writ should be issued to direct them to ensure that it is maintained as a park. Writ petition has been pending for two years due to the stiff resistance -4- offered by the respondents and the stand taken by the respondents viz., 1st respondent - BDA, 2nd respondent -
the BBMP, 3rd respondent - a private person, who also claims some interest in respect of 39 guntas of land in Sy.No.14/13 of Tavarekere Village, which is part of BTM Layout and which was part of the layout sold by the BDA in favour of the 3rd respondent, Respondent No.4 - The Special Deputy Commissioner, Bangalore District, Bangalore, who had by exercise of his statutory powers under section 95 of the Karnataka Land Revenue Act, 1964, had permitted conversion of some part of the land in Sy.No.14/13 for non-agricultural use in favour of respondent No.3.
3. Specific focus in this writ petition is on the land comprised in *Sy.No.14/13 measuring 2 acres *31 guntas which according to the petitioner is identified and to be maintained as a park. Many affidavits, statements and additional statements have all been filed on behalf of * corrected vide court order dt: 18/01/2013 -5- respondents periodically. Even after many hearings, BDA has not been able to fulfill its statutory obligation of maintaining the subject land as a park and various hurdles are pleaded to be used as a defence for its non-
performance.
4. However, what is not disputed is that an extent of 2 acres 31 guntas of land in Sy.No.14/13 formed part of 30 acres of land, which had been conveyed by the BDA in favour of the writ petitioner as per the sale deed dated 28.5.1997. The society in turn is now seeking for issue of a writ of mandamus to compel the BDA and the BBMP to ensure that the subject land, which it has surrendered to the BDA to be retained and maintained as a park, which has not happened till date.
5. It is also the stand of the writ petitioner - Society that the remaining extent of land, which is maintained by way of a park has to be identified in erstwhile Sy.No.14/1 out of which an extent of *1 acre 19 guntas of land was required to be * corrected vide court order dt: 18/01/2013 -6- maintained as civic amenity area in Sy.No.*12/18 wherein *0 acre *7 guntas of land which was required to be maintained as civic amenity sites and in all 4 acres 29 guntas of land, which was required to be maintained as civic amenity area and 3 acres 20 guntas of land out of this 4 acres *17 guntas of land was required to be maintained as park and all such parcels of land form part of 30 acres of land conveyed in favour of the writ petitioner.
6. Though the matter is as simple as this, the BDA has raised various contentions and has pleaded that it is fighting litigation before various courts as the developing authority is figuring as a party therein and that is the impediment for implementation, though, the petitioner is ready and willing to give back 4 acres 29 guntas of land for civic amenity purpose and out of which an extent of 3 acres 20 guntas of land is only to be maintained exclusively as a park.
* corrected vide court order dt: 18/01/2013 -7-
7. BDA has projected third party interest in the name of 3rd respondent and this appears to be a collaborative act brought into existence by the collusive act of the officials -
1st respondent - BDA, officials of the 2nd respondent BBMP, and not lagging behind is the 4th respondent - The Special Deputy Commissioner, have all passed positively enabling orders in favour of 3rd respondent in exercise of their respective powers and the statutory functions to either recognize the 3rd respondent - owner of 39 guntas of land in Sy.No.14/13 of Tavarekere Village part of 2 acres 31 guntas of land and which 3rd respondent - claims to have purchased from the legal representatives of one Gare Munivenkatappa as per a sale deed dated 6.11.2003 long after the land was notified and acquired by the State Government and handed over to the BDA, BDA in turn having allotted 30 acres of land in favour of the petitioner -
Society, out of which an extent of 2 acres 31 guntas of land in Sy.No.14/13, for the development of park, was that out of the entire survey number an extent of 2 acres 31 guntas -8- in this survey number was sought to be taken out of the purview of acquisition as per the notification dated 7.1.1998 which was challenged long after the lands, which had vested in the State Government and in turn allocated to BDA and also sold to the petitioner putting the society into possession etc., and only this action for withdrawal/acquisition was challenged by this very writ petitioner by filing WP No.1200/1998, which came to be dismissed, but was set aside as per the order in W.A.No.409/2000 vide order dated 12.6.2003 and such of these developments are noticed in the order dated 10.2.2012 passed by this court reading as under :-
"ORDER In this petition, order as under had been passed on 6.1.2012, "DVSKJ:
6.1.2012 Subject matter of this writ petition is a land measuring an extent of 2 acres 31 guntas in Sy No 14/13 of Tavarakere village, which is now part of BTM Layout I -9- Stage, and part of the land where the petitioner-society had been made a bulk allotment of land and out of which this extent was handed over to the possession of first respondent-BDA for being maintained as civic amenity area i.e. for maintaining a public park for the benefit of the residents in the locality. As per the petitioner, this happened was in the year 2005 and commensurate relinquishment deed has been executed in favour of BDA for such purpose.
The phrase 'civic amenity' has a definite connotation in the context of the Bangalore Development Authority Act and therefore even assuming that a relinquishment deed is executed in favour of BDA, it is the duty and responsibility of BDA to retain and ensure it as such and it cannot be in any way diverted, parted with, palmed off, sold or parted even for any illegal consideration and it can never be otherwise parted with also, by the BDA, which is in the position of a trustee to maintain the property as a public park.
BDA being a statutory functionary, it is a public trust entrusted to the authority to take care of the interest of the residents of this city and apart from its statutory duties and responsibilities, maintenance of civic amenities is an added responsibility akin to being a trustee in respect of such civic amenities areas. BDA, whether actively parting with such land or by its inaction allowing others to encroach on the
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same for being used or misused, it amounts to only a breach of such trust and if it is the case of a deliberate, conscious or collusive action to part with the land in favour of a third party, it is a criminal breach of trust.
Unfortunately, such criminal acts go unnoticed or are overlooked even when they come before the court and by public authorities and functionaries pleading ignorance, innocence or trying to pass the buck on some other person and wriggle out of the situation by pointing an accusing finger at others saying that some one else had done it etc. Whoever might have done, whatever acts, either illegal, in the sense of violation of laws and procedure, or even a positive criminal breach of trust, and while that has to be visited with commensurate consequences as provided in law, the primary duty of the officials at the helm of affairs as at present, whether in BDA or in a public body like BBMP and even officials of the state government, is to ensure that corrective steps are taken to undo the violation and at any rate as in the present case, there is no dispute that the subject land had been handed over to BDA to be maintained as civic amenity area viz., a park, it is such duty to be performed on the part of the officials who are at the helm of affairs in these organizations who should ensure, it is done right way.
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In spite of a elaborate order dated 16- 12-2011, noticing such irregularities and possible misdeeds on the part of BDA, BBM and the state government on the last occasion and clear direction to the following effect:
No wonder, in this state of collusive murky conduct on the part of many officials of state government, BDA, BBMP and who others who might have been involved in this affair not known, BDA wants to wash off its hands by merely saying that its records do not disclose existence of original or a copy of Annexure-N and wants to shift the burden to the petitioner to prove the existence or otherwise of this document! In the circumstance, State Government, commissioner of BDA and commissioner of BBMP are all hereby directed to cause a proper enquiry into this foul-play, if any, firstly by the additional land acquisition officer, secondly by the revenue officials who are involved in change of khata and related mattes and in so far as the state government is concerned, into the conduct of the special Deputy Commissioner, who had permitted conversion of land user in favour of a private person, though the entire area had already been acquired in favour of state government and handed over to the
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petitioner-society and which, in turn, had relinquished the area in favour of BDA and as to how such a land could be in the ownership of private persons.
While carelessness, negligence and possible collusion is writ large on the face of the records, statements and explanations in this regard are to be placed before the court in two weeks by the respondents 1, 2 and 4.
when the matter is taken up today, while Sri Vishnu Bhat, learned counsel for the respondent-BDA only requests two more weeks' time, submitting that BDA has started some enquiry, submission of Sri K N Putte Gowda, learned counsel for the respondent-BBMP is that BBMP has a very limited role to play; that unless commensurate report originates from BDA, no action is warranted at the end of BBMP.
This submission is too simplistic and one of trying to avoid or evade responsibility on the part of the commissioner, BBMP, particularly trying either to cover up or shut his eyes to the possible earlier illegal actions or to shelter some erring persons in the BBMP, who have conveniently ensured that khatas are made in favour of persons who are not owners or properties in the ownership of BDA or the state government or a BBMP property are conveniently gifted away in favour of all and sundry through the device
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of creating khatas in the name of third parties.
In so far as the state government is concerned, submission of Sri Omkumar, learned Addl. Government Advocate is that conversion granted by the Deputy Commissioner is a bona fide order, notwithstanding that the property was not of the applicant and that conversion order was with a rider that a layout plan as sanctioned by BDA for the purpose of developing the land as a residential layout should be implemented within a period of two years and implementation thereof within such time not having not happened, permission for conversion is no more in vogue.
This submission of Sri R Om Kumar, learned AGA, is again one missing the point and the tenor of the order dated 16.12.2011 is that the Deputy Commissioner has used or misused the power for such purpose and it is only because of possible collusion amongst the officials of all the three organs viz., BDA, BBMP and state government. It appears to be a well organized network of covering up one another when such misdeeds come to the open.
Be that as it may, while persons who have indulged in criminal acts will have to face consequences before the appropriate forum and for such purpose, Sri Rajagopal, learned senior counsel appearing for the
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petitioner, is directed to point out the statutory provisions and place a statement before the court indicating the possible penal provisions which are attracted in the present situation for issuing commensurate directions, it is expected on the part of the state and its agencies viz., BDA and BBMP to ensure that the subject land is cleared of all kinds of encroachments and retained as a park for the benefit of the residents of the area and such action to be put in place within two weeks from today.
While the third respondent does claim some ownership in respect of some part of the land or may be otherwise also, in so far as subject land is concerned, when it is part of 2 acres 31 guntas of land, there is absolutely no occasion for any one to claim ownership in such property irrespective of the BDA or BBMP or some private person executing some sale deed and get it registered in the office of the sub-registrar on payment of commensurate registration fee etc. Such document, obviously, does not confer any title in respect of public properties and therefore there is no question of examination of any rights of third respondent in the subject property in this writ petition.
However, that does not absolve persons who are authors and parties to such documents and even if they are public authorities, they will have to be proceeded with in accordance with law for their misdeeds.
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List on 3-2-2012 for such purpose and statement of objections of the respondent-authorities and the state, if they are desirous of, may be placed by or before 03.02.2012."
and on 3.2.2012, learned counsel for the respondents had been given time to file their statement/additional statement.
2. Mr. Vishnu D Bhat, learned counsel for the respondent No.1 - Bangalore Development Authority [for short 'the BDA'] has drawn attention of the court to the additional statement to submit that the BDA is virtually helpless to perform its statutory duties of maintaining the civic amenity portions of layout formed by the petitioner - society from out of the land allotted by the BDA itself to them for the simple reason that the BDA is able to keep in its possession or lay its hands only in respect of small extent of 11 guntas of land which is part of Sy. No.14/13 and in respect of 3 guntas of land abetting 11 guntas the matter is in dispute before the civil court in a suit filed by the third respondent in OS No.3554/2007 and the BDA having suffered an order of temporary injunction in the pending suit cannot take any action.
3. Insofar as 20 guntas of land abetting 39 guntas is concerned, it is indicated that it was subject matter of yet another suit in OS No.16507/2005 at the instance of one Govindaraj and another suit for bare injunction where BDA amongst others has suffered a decree and therefore the hands of the BDA are
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tied in respect of these two parcels of land for producing any action statutory or otherwise. The affidavit supporting the statement is sworn to by the Land Acquisition Officer attached to the BDA.
4. Mr. Vishnu D Bhat, learned counsel for the first respondent - BDA submits that the petitioner
- society has nowhere indicated that they have handed over possession of these two parcels of land to BDA and therefore the BAD cannot be blamed for any developments such as not maintaining it as a park or as any other civic amenity/facility.
5. Mr. K N Puttegowda, learned counsel for second respondent - Bruhat Bangalore Mahanagara Palike [for short 'BBMP'] with reference to the statement of objections filed on behalf of the second respondent, submits that insofar as the BBMP is concerned, though it was conscious that subject land was part of the land acquired by the State Government for the benefit of the BDA and therefore also had made an enquiry before effecting transfer of khata in respect of 39 guntas of land in favour of the third respondent on the basis of a sale deed executed by a private party in the year 2003 and as the third respondent had also enclosed along with the documents, a notification issued by the State Government under section 48[1] of the Land Acquisition Act, 1894 [for short 'LA Act'] withdrawing from the very acquisition proceedings in respect of this land etc., and even after making an enquiry as the BDA had issued 'No objection certificate' in favour of the third respondent, khata was transferred; that there cannot be any blame attributed to the officials of
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the BBMP; that they have acted in a bonafide manner etc.
6. Sri. K N Puttegowda, learned counsel for the second respondent also submits that following the transfer of khata, plan had been sanctioned for construction of the building in the year 2006, but as no construction had been put up even after two years thereafter, the plan has lapsed and that is the factual position as of now.
7. Mr. Omkumar, learned AGA appearing for respondents 4 & 5 submits that insofar as State Government i.e., the Special Deputy Commissioner is concerned, it is only on the aspect of according conversion of the subject land for non agricultural use; that the sanction in the year 2004 for a period of two years has long since expired and permission for conversion has become non est and an affidavit to this effect will be placed before the court given a week's time etc.
8. However, Sri. P S Rajagopal, learned senior counsel appearing for the petitioner, points out that all three public bodies - State Government, BDA and BBMP are all acting in collusion; that even when the subject land was part of the land acquired by the State Government for the benefit of the BDA and under the Bangalore Development Act, 1976 [for short 'BDA Act'], private transactions in respect of such land which had vested in the State and in turn had been transferred to the BDA who had made a bulk allotment of 30 acres of land in favour of the petitioner - society is all an indication of the manner in which these public bodies have encouraged private persons at the cost of public
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interest and also of the society; that in respect of the land which is required to be maintained as civic amenity area, the subject land even otherwise statutorily vests in the BDA as per section 38A of the BDA Act; that there is no question of the society handing over physical possession of the land etc; that the society, in fact, had never prevented the BDA to perform its statutory duty and therefore the excuse put up by the BDA for not maintaining the subject land as civic amenity site, namely, as a park is totally a lame excuse which cannot be accepted.
9. Mr. P S Rajagopal, learned senior counsel appearing for the petitioner also points out that the manner in which the BDA has contested the suit also betrays its collusive act with the plaintiff in the suit; that in fact, though the BDA suffered a decree in OS No.16507/2005, it was the society which came up before this court in RFA No.1060/2011 and the manner in which the suit was decreed against the BDA, but dismissed against the society is only indicative that it was more a preemptive effort to preempt the society from carrying the matter by way of appeal, but the BDA though has suffered the decree has blissfully kept silent and though the stand of learned counsel for the BDA in the present writ petition is that as claimed by the writ petitioner, it is in possession of the land which stand was never made good before the civil court.
10. It is rather surprising even shocking that private transactions keep taking place in respect of lands which have been taken over by the State and public authorities also keep recognizing such transactions either by change of khata or by
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issue of 'No objection Certificates' or in some other manner.
11. It is obviously a situation where officials of public bodies are colluding with private persons for possible other considerations. The BDA pleading helplessness in such matters for obeying law and taking action in accordance with law and to perform its statutory duties is a very sorry and deplorable state of affairs.
12. It is also rather surprising that the BBMP cannot keep track of the developments such as acquisition of land in particular areas; that the State Government also does not put on notice public bodies of such developments as and when but try to take shelter under the excuse of want of information or such other reasons to sustain their illegal and untenable acts.
13. While Mr. Puttegowda, learned counsel for the second respondent - BBMP submits that change of khata in favour of the third respondent has taken place only after issue of notice to the writ petitioner, no wrong is committed by the BBMP Officials as the third respondent had produced the revenue khata extract in the name of his vendor right up to the year 2005-06 and therefore acted bona fide in transferring the khata to the name of the third respondent etc, it is too innocent a submission to accept that the officials of BBMP have acted in a bonafide manner!
14. There is something radically wrong in the functioning of public bodies, more so, the State Government, whose Special Deputy Commissioner issues a permission for conversion
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of acquired land in favour of a private person, a land acquired in favour of the State Government way back in the year 1978 being permitted for non agricultural use in the hands of a private person in terms of the order of the year 2004. There is something obviously not connecting here in either law or procedure.
15. An official of the BDA issues a 'No objection certificate' in favour of the third respondent addressed to the officials of the BBMP for transfer of khata in favour of third respondent in respect of a land which was acquired by the State Government, handed over to it way back in the year 1978 and who in turn had handed over to the society in January 1983. It is in respect of part of 30 acres of land allotted to the petitioner - society 'No objection certificate' is issued by the BDA in the year 2005 to transfer khata of 39 guntas of land in favour of the third respondent and further permission given by BBMP on such no objection certificate, to enable the third respondent to develop the land further etc.
16. Mr. Vishnu D Bhat, learned counsel for the first respondent feebly submits that such 'No Objection Certificates' are not normally issued by the BDA and no such 'No objection certificates' had been issued by the BDA hitherto.
17. The officials of the BBMP find it very convenient to act on such 'no objection certificate' to transfer khata in favour of the third respondent, blissfully, either feigning ignorance or not showing awareness about the land having already been acquired in the year 1978 in favour
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of the BDA by the State Government and being not a private property any further thereafter.
18. As though this is not sufficient, carelessness, negligence or positive collusion on behalf of officials of the public bodies on behalf of the third respondent - private person, the BDA keep suffering decrees through civil court without even any resistance, but finds it proper to contest the present writ petition on all grounds, technical or otherwise to cover up its misdeeds.
19. It is high time public bodies start acting in law conforming manner and erring officials are brought to book and procedure and manner of functioning is streamlined.
20. It is therefore a direction is hereby issued to the Principal Secretary in the Revenue Department, Government of Karnataka, to hold an enquiry with regard to the circumstances under which the Special Deputy Commissioner had issued permission for non agricultural use of the land in favour of private person which had vested in the State Government, way back in the year 1978, identify the irregularities and illegalities committed by persons who have acted contrary to law and procedure and submit a report to this court within six weeks.
21. Likewise, the Commissioner, Bangalore Development Authority to look into the circumstances in which the so called 'no objection certificate' has originated in the name of BDA to enable the third respondent to seek transfer of khata in respect of 39 guntas.
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22. The Commissioner, Bruhat Bangalore Mahanagara Palike is also directed to hold a proper inquiry and look into the circumstances in which change of khata is used as a device or a tool by unscrupulous third parties to lay claim on the properties either by producing certificates of change of khata or such other document which may not have sanctity in law.
23. List for further orders on 30.03.2012. Report to be submitted by the concerned officials as indicated above by the said date.
24. Copy of this order may be furnished to all counsel appearing for the parties and copy sent to the Principal Secretary, Revenue Department, Government of Karnataka, Commissioners of Bangalore Development Authority and Bruhat Bangalore Mahanagara Palike for necessary action at their end."
8. Even after lapse of more than 8 months from the date of passing of the order on 10.02.2012 and in spite of the matter having been listed before this Court on several subsequent occasions, the BDA has not fully performed its statutory duty to maintain an extent of 2 acres 31 guntas of land in Sy.No.14/13 as a park nor has handed over the subject land to the BBMP to be maintained as a park, is the complaint of Mr.K.N. Putte Gowda, learned standing
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counsel appearing for the BBMP. He further submits that the moment the subject land is handed over to the custody and possession of the BBMP the land would be maintained as a very good model park.
9. However, Sri Vishnu D. Bhat, learned counsel appearing for the 1st respondent is nevertheless submitting that there are many other impediments for the full implementation; that the BDA has taken possession of the extent of 27 guntas of land in Sy.No.14/13 and is also having possession of an extent of 16 guntas of land in Sy.No.14/1 adjacent to Sy.No.14/13 and an extent of 11 guntas. But in respect of remaining extent of land in Sy.No.14/13 in view of the pending litigation before the Civil Court, BDA has not taken any action, but as and when occasion arises, they will definitely take action for implementation.
10. Sri. Nandish, learned counsel appearing for the 3rd respondent submits that the 3rd respondent is a bona fide
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purchaser for a valuable consideration and is before the Civil Court to seek protection of title from the Civil Court.
11. However, Sri.P.S. Rajagopal, learned Senior Counsel appearing for the petitioner - Society submits that there is no bona fides on the part of the BDA in making efforts to maintain the subject land of 2 acres *31 guntas of land as public park; that while it is a ruse to help third party interest and avoid its statutory responsibility and even the BBMP has not acted bona fide; that even after the cancellation of a katha that had been made in favour of 3rd respondent in respect of land bearing Sy.No.14/13; that the sanctioned plan having not been cancelled for construction on the strength of a conversion order that had been granted by the 4th respondent - Special Deputy Commissioner; that it is necessary they cancel the plan also as a follow-up action. It is also submitted by Sri.Raja Gopal, learned Sr. Counsel that the Special Deputy Commissioner on his part * corrected vide court order dt: 18/01/2013
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is also required to cancel the permission for conversion of the land user from agricultural to non agricultural etc.
12. In the wake of this development, particularly, as it is now seen that the land belonging to BDA is acquired by the State Government and in turn conveyed to BDA, which has not been surrendered and therefore, claim interest in the land, more so, purchased in the year 2004 and alleged on his part cancelled the conversion order and is not also doing so and it also lacks bona fides.
13. In response, Mr. Putte Gowda, learned Standing Counsel for the fourth respondent - BBMP has submitted that any sanctioned plan is valid for a period of two years and if no construction is made within that time, it lapses automatically and there is nothing more required to be done on the part of the BBMP to take any individual action.
14. Smt. Akkamahadevi, learned HCGP appearing for the respondent Nos.4 and 5 submits that the 4th respondent -
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is a statutory functionary, while performing his duties under Section 95 of the Act has no freedom to refuse permission for conversion of land, in accordance with the master plan and therefore, cannot be found fault with etc.
15. The defence putforth by the BDA is neither bona fide nor tenable. If the BDA has sold its land to third parties, it cannot later put up a defence that civil litigation is pending against them in respect of such lands. It is the duty of the BDA - a public statutory authority to protect its properties and not to either fritter it away or surrender in favour of third parties when once it is clear that the land was conveyed and a part of this land is surrendered back to the BDA, there is no third party interest. It is the duty of the BDA to maintain the extent of 2 acres 31 guntas of land as a park in Sy.No.14/13. It is their bounden duty to get the disputes resolved before the Civil Court whether it is at the instance of any third party or at the instance of persons like the third respondent in this petition, who is claiming
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interest under a sale deed executed by a person claiming title under the original land owner, long after the subject land was notified for acquisition by state government for the benefit of BDA, to form a developmental scheme for the benefit of residents of Bangalore city and to ensure that the interest of the BDA is properly defended and the subject land maintained as a park. The act of not surrendering the subject land to the possession of BBMP only reflects on the inefficiency and the bona fides on the part of the BDA officials.
16. The BDA to take immediate action to implements its statutory duty and while putting into action their assurance before the Court to maintain the subject land as a park and make a beginning with the available land and in respect of the remaining land take further immediate action before the Civil Court for justification of their action and for implementation of this order.
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17. BDA on its part is required to hand over the existing available land immediately to BBMP and BBMP to receive the same and start maintaining it as a park. In respect of the remaining extent of land, an outer limit time of 6 months is granted from today to the 1st respondent and this direction to be strictly complied with, by the BBMP on its part. However, Sri. Putte Gowda, learned Standing counsel vehemently submits that a direction need not be issued for such purpose, as the land is yet to be handed over to the possession of BBMP and BBMP is always ready and willing to maintain it as a park, as and when handed over. Also submits that there is no need to direct the BBMP to cancel building plan, which had been sanctioned by BBMP in favour of the third respondent, as it was valid for a period of two years only from the date of issue and the two years period having already expired and no construction having been put up as per the plan, it automatically ceases to have validity and therefore a cancellation of the expired plan by BBMP will be an act of futility.
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18. The Special Deputy Commissioner on his part is directed to take steps for cancellation of the permission order, whether it is a must or otherwise. In a like manner.
The bona fides of the 4th respondent, who passed the order itself is doubtful as the defence putforth by the Special Deputy Commissioner coming under Section 95 of the Act does not have a freedom to refuse conversion, is not a defence worthy of acceptance as in the name of the statutory duty under Section 95 of the Act the Special Deputy Commissioner cannot grant permission to convert agricultural land to non-agricultural purpose not owned by the persons. The bona fides on the part of a statutory authority like the Special Deputy Commissioner coming under Section 95 of the Act, has not at all been made good and on the other hand, it is highly doubtful. The 4th respondent to give effect to this direction within four weeks from the date of receipt of a copy of this order. The 5th respondent to keep a check on the implementation of this
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order, not only by the 1st and 2nd respondents, but also the 4th respondent in a proper and effective manner. The 5th respondent also to initiate proper and necessary action against the officials of 1st, 2nd, and the 4th respondents, if it is found they were hand in glove for doing favours to the private parties and particularly, in favour of the 3rd respondent in this writ petition.
19. In the wake of the submission placed before this court by the learned counsel appearing for the BDA that the authority did not issue "No Objection Certificate" in favour of the 3rd respondent, no need to examine this aspect for issuing a writ of certiorari. Likewise the BBMP itself having cancelled Annexure-P reversing the entry in favour of the 3rd respondent as per Annexure P as per its order dated 13.6.2012, there is no need to issue directions or quash Annexure P.
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20. Therefore, the writ petition is allowed to the extent indicated and directions are issued as mentioned above to the statutory authorities and the State Government.
Sd/-
JUDGE NG*
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DVSKJ: Writ Petition No 31183 of 2010 18-1-2013 ORDER ON IA No 2/2012 This is an application under Section 152 CPC read with Article 226 of the Constitution of India, seeking for certain corrections to be made in respect of the arithmetical errors that have crept in the order dated 9-11-2012 passed by this court while disposing of the main writ petition in WP No 31183 of 2010.
It is averred in the application that survey numbers and the extents of the land in question which have been referred to in the body of the order being at several places wrongly described or a mistake has crept in to indicate an incorrect number. The corrections sought for are as under:
a) On page 4 at paragraph 3 in the second line after the words "comprised in" the words "Sy.No.13/20 measuring 2 acres"
may be ordered to be corrected as "Sy.No.14/13 measuring 2 acres 31 guntas".
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b) On page 5 at paragraph 5 of the order in the third and fourth lines after the word "erstwhile" the words "Sy.No.14/1 out of which an extent of 19 guntas" may be ordered to be corrected as "Sy.No.14/1 out of which an extent of 1 acre 19 guntas".
c) On page 6 at paragraph 5 in the first and second line after the words "area in", the words "Sy.No.12/8 wherein 1 acre 19 guntas" may be ordered to be corrected as "Sy.No.12/18 wherein 0 acre 7 guntas".
d) On page 6 in the same paragraph 5 in the sixth line after the word "acres" the figure "20" may be ordered to be corrected as "17".
e) On page 24 in paragraph 11 in the fourth line after the word "acres" the figure "13" may be ordered to corrected as "31".
Copies of the application had been served on the learned counsel for respondents in the main matter. On the last occasion, learned counsel for respondents had sought for some time to verify the correct or otherwise of the contents of the application, particularly pointing out the corrections which are required to be carried out in the order.
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I have heard Sri Prasanna, learned counsel for petitioner-applicant, Sri Vishnu D Bhat, learned counsel for first respondent-BDA, Sri Lohit, learned counsel for second respondent-BBMP on behalf of Sri K N Puttegowda, Sri Nandeesh, learned counsel for third respondent and Sri Vendamurthy, learned government pleader for respondents 4 and 5.
Learned counsel for all the respondents submit that the correction sought for is in the nature of typographical mistake, in the sense, it is a wrong description of survey numbers and extents and therefore the application may be ordered and the main order may be corrected to bring it in conformity with the prayer sought for in the application indicating the correct survey numbers and extents of land.
Application ordered accordingly. Registry to incorporate necessary corrections in the body of the order dated 9-11-2012 passed by this court WP No 31183 of
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2010 and issue certified copies of the corrected order, free of costs, to all parties to the writ petition.
Sd/-
JUDGE *pjk