IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NOS.1648 AND 1649 OF 2015 (BDA) BETWEEN:
1. Smt. A.R. Rajeshwari W/o N.K. Manjunath, Aged about 32 years, R/at No.160, 10th B Main, 1st Block, Jayanagar, Bengaluru-11.
2. N.K. Manjunath S/o Late Karigowda, Aged about 35 years, R/at No.160, 10th B Main, 1st Block, Jayanagar, Bengaluru-11.
Represented by GPA Holder, Petitioner No.1.
(By Sri. G.B. Nandish Gowda, Advocate for Sri. R.B. Sadasivappa, Advocate) AND:
1. The State of Karnataka By its Chief Secretary, Revenue Department, M.S. Building, Bengaluru-560 001.
…PETITIONERS 2. Bengaluru Development Authority, By its Commissioner, Kumarapark West, T. Chowdaiah Road, Bengaluru-20.
(By Smt. R. Anitha, AGA for R-1;
Sri. K. Krishna, Advocate for R-2) ... RESPONDENTS These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 03.11.2014 passed by the Assistant Executive Engineer, South Sub-Division, BDA, Bengaluru vide Anenxure-H.
These Writ Petitions coming on for ‘Preliminary Hearing in B Group’, this day, the court made the following:
O R D E R The petitioners who are wife and husband, are before this Court for a writ of Certiorari to quash the impugned order dated 03.11.2014 passed by the Assistant Executive Engineer, South Sub-Division, Bengaluru Development Authority (BDA) vide Annexure-H.
2. According to the petitioners, the property bearing Site No.314 formed in Sy.Nos.9, 10 and 11 of Vaddarapalya Village, Banashankari 5th Stage, measuring East to West 30 feet and North to South 40 feet was allotted in favour of one Indira and possession certificate was also issued on 24.04.2002. Consequently, a sale deed was executed in favour of said Indira on 04.03.2002 and she was in possession and enjoyment of the suit schedule property. Subsequently, said Indira sold the site No.314 in favour of both the petitioners under a registered sale deed dated 07.05.2014. In pursuance of said sale, the petitioners have been put in enjoyment of the suit schedule property. On the basis of registered sale deed, khatha was changed in the name of petitioners and they are in peaceful possession and enjoyment of the suit schedule property. Thereafter, the petitioners have obtained a loan of Rs.74,70,000/- from Bank of India for construction of house by depositing title deeds and also executed registered mortgage deed in favour of the Bank on 07.05.2014.
3. It is the further case of the petitioners that the owner of adjoining site No.315 namely V.V. Muralidhar, without having any right, title and interest over the suit schedule property had obstructed the plaintiffs from digging foundation in the suit schedule property. On the basis of the complaint made by said V.V. Muralidhar, BDA has issued a show cause notice dated 25.08.2014 vide Annexure-F, directing petitioner No.2 to stop construction temporarily till production of all documents to respondent No.2 and has alleged that petitioner No.2 has encroached 9 feet in Site No.315. The petitioner No.2 has filed objections on 27.08.2014 stating that he has purchased the property in question through registered sale deed and is in possession of the same and he has not encroached any property as alleged by said V.V. Muralidhar. The Assistant Executive Engineer, without holding any enquiry passed the impugned order directing the petitioner No.2 to stop temporary construction. Hence, the present writ petitions are filed.
4. I have heard the learned counsel for both the parties to lis.
5. Sri. G.B. Nandish Gowda, learned counsel for Sri. R.B. Sadashivappa, learned counsel appearing for petitioners vehemently contended that the impugned order passed by BDA vide Annexure-A is in utter violation of principles of natural justice and the same is liable to be quashed. The learned counsel further contended that it is purely a civil dispute between V.V. Muralidhar and petitioners in respect of immovable property. The Assistant Executive Engineer of respondent No.2 has no jurisdiction to direct to stop construction by the petitioners, when admittedly they are the owners of Site No.314, which was purchased under registered sale deed. If there is any dispute regarding encroachment, it is for the aggrieved person to approach the Civil Court. The learned counsel further contended that the present petitioners have already filed O.S.No.8463/2014 for the relief of permanent injunction against Sri. V.V. Muralidhar and the trial court has already granted interim order of status-quo and the same is operating. Therefore, the impugned order cannot sustain and hence, sought to allow the writ petitions.
6. Per contra, Sri. K. Krishna, learned counsel for respondent No.2 submits that when there is a civil dispute between V.V. Muralidhar and the petitioners in O.S.NO.8364/2014, it is for the petitioners to establish their rights before the Civil Court. Therefore, he sought for dismissal of the writ petitions.
7. Having heard the learned counsel for both the parties, it is not in dispute that the petitioners and one V.V. Muralidhar are the owners of adjoining sites. The petitioners are owners of site No.314 and said V.V.
Muralidhar is the owner of site No.315. On the basis of complaint lodged, the office of respondent No.2 had issued a show cause notice to the petitioner No.2 alleging the encroachment in site No.315 and the same was replied by the petitioners stating that they have not encroached any of the property belonging to Sri. V.V. Muralidhar. When the dispute between the parties is in respect of encroachment, aggrieved party has to approach the Civil Court and admittedly, Sri. V.V. Muralidhar has filed O.S.No.8463/2014 and the trial court has granted interim order directing both the parties to maintain status-quo on 22.11.2014. The Assistant Executive Engineer has no authority to pass impugned order directing petitioner No.2 to stop construction in site No.314, which is nothing but granting injunction without holding enquiry, and the same is not sustainable under law. In view of the reasons stated supra, the impugned order passed by the Assistant Executive Engineer dated 03.11.2014 is erroneous and contrary to law.
8. In view of the aforesaid reasons, the writ petitions are allowed. The impugned order dated 03.11.2014 passed by the Assistant Executive Engineer, South Sub-Division, Bengaluru Development Authority, Bengaluru vide Annexure-A is hereby quashed.
It is needless to observe that any decree to be passed in O.S.No.8463/2014, pending between the said V.V. Muralidhar and petitioners would be binding on both the parties as well as on Bengaluru Development Authority.
Sd/- JUDGE ‘BMC