IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 20TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR.JUSTICE RAVI MALIMATH WRIT PETITION Nos. 65343-344 OF 2016 (BDA) BETWEEN:
1. KAILASH BDA APARTMENT OWNERS WELFARE ASSOCIATION (REGD) VALEGERAHALLI, MYSORE ROAD, KENGERI, BENGALURU – 560 059 REP. BY ITS PRESIDENT, SRI. GANAPATHY HEGDE, S/O SRI. THIMMANNA HEGDE, AGED ABOUT 40 YEARS, NO. B7-503, KAILASH BDA APARTMENTS, VALEGERAHALLI, MYSORE ROAD, KENGERI, BENGALURU – 560 059.
2. SRI. K. SIDDAIAH, S/O LATE KADAIAH, AGED ABOUT 65 YEARS, B2-501, 3 BHK, KAILASH BDA APARTMENTS, VALEGERAHALLI, MYSORE ROAD, KENGERI, BENGALURU – 560 059. ... PETITIONERS (BY SRI. RAHUL RAI, ADVOCATE) AND:
1. BANGALORE DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU – 560 020, REP. BY ITS COMMISSIONER.
2. THE ASSISTANT EXECUTIVE ENGINEER, HOUSING PROJECT SUB-DIVISION, BENGALURU DEVELOPMENT AUTHORITY, BENGALURU – 560 020.
3. THE DEPUTY SECRETARY, BENGALURU DEVELOPMENT AUTHORITY, BENGALURU – 560 020. ... RESPONDENTS (BY SRI. K. KRISHNA, ADVOCATE) ******* THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PUBLIC AUCTION OF THE VEHICLES PARKING AREA DATED 18.11.2016 ISSUED BY R-1 THEREBY FIXING THE DATE OF TENDER/PUBLIC AUCTION ON 22.12.2016 WHICH WAS PUBLISHED IN VIJAYA KARNATAKA KANNADA DAILY ON 28.11.2016 AND ALL FURTHER PROCEEDINGS PURSUANT THERETO VIDE ANNEX-A AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: -
ORDER The plea of the 1st petitioner is that it is a registered Association under the Karnataka Apartments Ownership Act, 1972, (Hereinafter referred to as ‘the Act’ for short). The 2nd petitioner is one of its members.
2. The 1st respondent – Bengaluru Development Authority (Hereinafter referred to as ‘the BDA’ for short) having constructed the flats executed sale deeds in favour of various persons including the petitioners. Thereafter, the car park area is sought to be auctioned by the BDA in terms of the auction Notification. The petitioners are seeking to quash the auction Notification, which is printed in Vijaya Karnataka News Paper dated 29.11.2016 and produced vide Annexure-A.
3. The learned counsel for the petitioners contend that the second prayer is to consider the representation dated 24.11.2016 made by the 1st petitioner – Association vide Annexure-F. That in terms of the Act the car park area is deemed to be a common area and therefore, the same cannot be auctioned by the 1st respondent – BDA.
4. On the other hand, Sri Krishna, learned counsel appearing for the BDA by relying on the auction notification, disputes the same. He contends that the sale deeds executed by the BDA does not include the car park area. Furthermore that the representation dated 24.11.2016 vide Annexure-F is already considered in terms of Annexure - R4.
5. On hearing the learned counsel, I’am of the view, there is no merit in these writ petitions.
6. The sale deed executed on behalf of the 2nd petitioner is produced as Annexure-C. It is contended that identical sale deeds have been issued to all the other apartment/flat owners. Schedule to the property owned by the flat owners has been mentioned in Schedule B and C to the sale deeds. It does not include the car park area. It is in this regard that the 1st respondent - BDA has sought to auction the car park area. The reference to the sale deeds would not include the car park area referable to the individual owners of the flats. Therefore, when the sale deeds do not contemplate the car park area indicating that the member, who is the owner of the flat, is the owner of the car park area, the auction by the BDA cannot be assailed on that ground. Even otherwise, what the 1st petitioner calls in question is an interpretation of the contract between the 1st petitioner and the 1st respondent - BDA. Such interpretation is not open, so far as a writ Court is concerned.
7. Hence, for all these grounds, I find no merit in the petitions. The writ petitions are rejected.
8. In view of rejection of the petitions itself, I.A.1/2017 filed for vacating interim order does not survive for consideration. The application stands rejected.
SD/- JUDGE NG* CT: pgg