IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.1392 OF 2017(LA-BDA) BETWEEN:
M/S KAVERI PROPERTIES PVT. LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956, OFFICE AT MULTITECH CENTRE OPP. TO JOHN FOLWER, BOMMASANDRA INDUSTRIAL AREA BENGALURU – 560 099 REP. BY ITS AUTHORIZED SIGNATORY MR.PRADEEP KUMAR GATTANI AGE: 49 YEARS.
… PETITIONER (BY MR.ADITYA SONDHI SR.ADV. FOR MR.ANAND MUTTALLI, ADV.) AND:
1. SRI.BANASHANKARI TEMPLE A NOTIFIED MUZRAI INSTITUTION S.KARIYAPPA ROAD, BANASHANKARI II STAGE BENGALURU – 560 070 REP. BY ITS EXECUTIVE OFFICER.
2. THE DISTRICT COMMISSIONER BENGALURU CITY KANDAYA BHAVAN, K.G.ROAD BENGALURU – 560 001.
3. BENGALURU DEVELOPMENT AUTHORITY KUMARAPARK WEST, T.CHOWDAIAH ROAD BENGALURU – 560 020 REP. BY ITS COMMISSIONER.
… RESPONDENTS (BY MR.S.P.SHANKAR SR.ADV.
FOR MR.HARIPRASAD N. ADV. FOR R1 MR.E.S.INDIRESH AGA FOR R2 MR.VIKRAM ADITYA HUILGAL ADV. FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R3 BDA TO ISSUE A CONFIRMATION THAT THE SCHEDULE PROPERTY WAS CARVED OUT OF SY.NO.75/2, WHICH WAS ACQUIREDK BY CITB IN THE YEAR 1948 VIDE NOTIFICATION DATED 01.09.1948 (ANNEXURE-A).
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Aditya Sondhi, learned Senior counsel for Mr.Anand Muttalli, learned counsel for the petitioner.
Mr.S.P.Shankar, learned Senior counsel for Mr.Hariprasad N., learned counsel for respondent No.1.
Mr.E.S.Indiresh, learned Additional Government Advocate for respondent No.2.
Mr.Vikram Aditya Huilgal, learned counsel for respondent No.3.
2. The writ petition is admitted for hearing.
With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Articles 226 & 227 of the Constitution of India, the petitioner inter alia seeks a direction to respondent No.3 to issue a confirmation that the schedule property was carved out of Sy.No.75/2, which was acquired by City Development Trust Board (hereinafter referred to as ‘the Board’ for short) in the year 1948 vide notification dated 01.09.1948. The petitioner also seeks a writ of prohibition against respondent No.1 not to interfere with the petitioners peaceful possession and enjoyment over the schedule property and a writ of mandamus to remove the Board which is illegally put up on the schedule property on 31.12.2016. In order to appreciate the petitioners grievance, few facts need mention, which are stated infra:
4. The petitioner claims to be the owner of property bearing site No.719/B measuring 8628 Sq.ft. situated in Block No.VIII, Jayanagar extension, Bengaluru. It is the case of the petitioner that the dimension of the schedule property originally as 80x120 feet. However, in the year 1970, Bangalore Water Supply and Sewage Board acquired 972 Sq.ft. of the schedule property, due to which the size of the property was reduced to 8628 sq.ft. It is also averred that one Ira Rangappa was the owner of the land measuring 2 acres and 34 guntas in Sy.No.75/2 in Sarakki Village on the strength of the sale deeds dated 28.06.1910. It is also pleaded that one Doddarangappa purchased the aforesaid land from Rangappa and his son Basappa on 09.12.1920. It is also pleaded that in 1948, the erstwhile City Development Trust Board, Bengaluru acquired certain lands including the land comprised in Sy.No.75/2 for formation of Kanakanapalya extension, B Block and an award to the tune of Rs.3,598/- was passed. A final notification was issued on 01.09.1948. Subsequently, the possession of the land was taken over on 30.10.1948.
5. One A.C.Madegowda submitted an application to the Board in the year 1962 seeking allotment of the schedule property. The schedule property was allotted to aforesaid A.C.Madegowda vide order of allotment dated 20.03.1962 and the Board issued a possession certificate in favour of A.C.Madegowda on 29.08.1962. However, on account of over sight again a preliminary notification dated 30.11.1967 and final notification dated 25.05.1970 was issued and the schedule land was sought to be acquired. However, subsequently the acquisition proceedings were dropped as the schedule land in question was already acquired in the year 1948.
6. In the year 1976, the Board converted into Bangalore Development Authority. On 04.09.1980 the aforesaid A.C.Madegowda made an application to the Chairman, Bangalore Development Authority seeking permission to execute a sale deed in respect of the schedule land. The Bangalore Development Authority thereupon executed a sale deed on 08.06.1981 in favour of Sub Registrar, Jayanagar. Thereafter, the aforesaid A.C.Madegowda sold the schedule property in favour of the petitioner vide registered sale deed dated 10.07.1981. Thereafter, Khatha of the schedule property was transferred in the name of the petitioner on 01.12.1981. It is pleaded that since the date of execution of sale deed, the petitioner has been in peaceful possession of the property in question and has been paying taxes in respect of the property. The petitioner decided to raise a construction and got dug a bore well on the schedule property on 17.12.2016. It is averred that on 20.12.2016 when the petitioner was putting up fence around the schedule property, certain persons representing respondent No.1 came to the property and restrained the petitioner from doing so and asserted that the schedule property belonged to respondent No.1 and respondent No.1 had no right to put up any construction on the schedule property. The petitioner on 28.12.2016, stopped the work of putting up the fence, however, it resumed the same on 29.12.2016 and completed the fencing. It is also averred in the writ petition that on 30.12.2016, the representatives of respondent No.1 broke down the fence put up by the petitioner and put up a board on the schedule property stating that they are owners of schedule property in pursuance of judgment decree dated 07.07.2012 passed in O.S.No.751/2003. It is also pleaded that the representatives of respondent No.1 demolished the serpent quarter constructed by the petitioner.
7. From perusal of the aforesaid judgment and decree, petitioner learnt that one Rangappa claiming to be the original owner of the land had filed a writ petition. before this Court viz., W.P.No.5455/2000, in which notifications issued in the year 1987 and 1995 acquiring certain lands including Sy.No.75/2 was challenged. The aforesaid writ petition was dismissed vide order dated 12.11.2002. It has also been stated that the order passed by bench of this court in W.P.No.5455/2000 and judgment and decree passed in O.S.No.751/2003 as well as the acquisition proceeding have attained finality. In the aforesaid factual background, the petitioner has approached this Court seeking the reliefs as stated supra.
8. Learned Senior Counsel for the petitioner submitted that the petitioner is the absolute owner of the property and respondent Nos.1 and 2 have illegally trespassed on the schedule property and have illegally put up the board stating that they are the owners of the property in question. It is further stated that the title deed as well as revenue records clearly show that the petitioner is the absolute owner of the schedule property and respondents have no authority to trespass on the schedule property. It is also urged that respondent No.3 viz., Bangalore Development Authority has already conducted a survey on 14.06.2017 and a survey map has been prepared and the first relief claimed in the petition has already been granted certifying that schedule property is carved out of Sy.No.75/2 which as acquired by the Board in 1948. It is also urged that since, the Deputy Commissioner is involved in the affairs of respondent No.1, therefore, respondent Nos.1 and 2 be restrained from interfering with the peaceful possession of the petitioner in respect of the schedule property and to remove the board. In support of his submissions, Learned Senior Counsel for the petitioner has placed reliance on a decision in ‘CENTURY SPINNING AND MANUFACTURING COMPANY LTD. AND ANOTHER VS. THE ULHASNAGAR MUNICIPAL COUNCIL AND ANOTHER’, 1970 (1) SCC 582.
9. On the other hand, Learned Senior Counsel for respondent No.1 submitted that land measuring 2 acres and 34 guntas bearing Sy.No.75/5 is held by the deity Sri.Banshankari Temple. It is also submitted that the aforesaid temple is a Muzrai temple and managed by executed officer and is controlled by Muzrai department. It is further submitted that the land measuring 2 acres 34 guntas continues to be in possession of the temple. It is also argued that acquisition under the notification dated 01.09.1948 was for formation of Kanakanapalya and the lands belonging to the temple is at Sarakki as per records. It is also submitted that in the application dated 04.08.1962, for allotment of the site an over writing was done to make it as allotment of site No.719/B. It is also pointed out that even though the application for allotment was made on 04.08.1962, yet the allotment was made on 30.03.1962 and the possession certificate was issued with regard to the site No.719/B measuring 120x80 ft. on 31.08.2016. It is also argued that the Bangalore Development Authority however, has executed a sale deed in respect of site No.719/B in Block VIII of Jayanagar Extension. It is also submitted that the petitioner has filed a suit for declaration and injunction against Rangappa and since, the matter is pending adjudication before the Civil Court therefore, no case for interference is made out.
10. It is also urged that the relief claimed in this writ petition is not based on infraction of any fundamental right or violation of BDA Act and the Rules framed thereunder and the identity of the property is in grave doubt. Therefore, no relief under Article 226 of the Constitution of India can be granted. In support of aforesaid submissions, learned Senior Counsel for respondent No.1 has placed reliance on decisions in ‘MENAKURU DASARATHARAMI REDDI AND ANOTHER VS. DUDDUKUDRU SUBBU RAO AND OTHERS’, AIR 1957 SC 797, ‘THE SPECIAL LAND ACQUISITION OFFICER, BOMBAY AND OTHERS VS. M/S GODREJ AND BOYCE’, AIR 1987 SC 2421, ‘SHARMA AGRO INDUSTRIES VS. STATE OF HARYANA AND OTHERS’, (2015) 3 SCC 341, MAGNUM PROMOTERS PRIVATE LIMITD VS. UNION OF INDIA AND OTHERS’, (2015) 3 SCC 327, ‘SHAKUNTALA YADAV AND ORS. VS. STATE OF HARYANA AND ORS.’, AIR 2016 SC 1612, ‘PRAHLAD SINGH AND OTHERS VS. UNION OF INDIA AND OTHERS’, (2011) 5 SCC 386, ‘DELHI DEVELOPMENT AUTHORITY VS. REENA SURI AND OTHERS’, (2016) 12 SCC 649, ‘DWARKA PRASAD AGARWAL (D) BY LRS AND ANOTHER VS. B.D.AGARWL AND OTHERS’, AIR 2003 SC 2686, and ‘SHALINI SHYAM SHETTY AND ANOTHER VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329.
11. On the other hand, learned counsel for the respondent No.2 has supported the submissions made by learned Senior counsel for respondent No.1 and has submitted that the reliefs as prayed for by the petitioner cannot be granted in this writ petition since, the dispute with regard to title is involved. In support of aforesaid submission, reliance has been placed on decision in ‘ANATHULA SUDHALKAR VS. P.BUCHI REDDY (DEAD) BY LRS. AND OTHERS’, 2008 (3) KCCR 1769.
12. Learned counsel for the respondent No.3 has submitted that the petitioner has sought enforcement of a statutory duty which was cast upon the Bangalore Development Authority. Thereafter a survey was conducted on 14.06.2017 and survey map was prepared. It is further submitted that the Bangalore Development Authority has consistently taken a stand that the plot in question was allotted and land bearing Sy.No.75/2 has been acquired in the year 1948. Therefore, a confirmation was issued to the petitioner that schedule property falls under Sy.No.75/2, which was acquired by the erstwhile City Development Trust Boa vide notification dated 01.09.1948.
13. I have considered the submissions made by learned counsel on both the sides and have perused the record. It is trite law that a question of title cannot be gone into in writ petition [SEE: ‘G.SRINIVAS VS.
GOVT. OF A.P. AND OTHERS’, AIR 2005 SC 4455 in ‘NATIONAL THERMAL POWER CORPORATION LIMITED VS. MAHESH DUTTA AND OTHERS’, (2009) 8 SCC 339, it was held that there is no law that the High Court is denied or debarred from entering into a disputed question of fact. The issue will have to be determined keeping in view the fact situation obtaining in each case. If a disputed question can be determined on the basis of the documents and/or affidavit, the High Court may not ordinarily refuse to do so. In a given case, it may also examine witnesses. In ‘SHANKARA COOPERATIVE HOUSING SOCIETY LIMITED V.S M.PRABHAKAR AND OTHERS’, (2011) 5 SCC 607 it has been held that where an enquiry into complicated questions of fact is necessary before the right of aggrieved party to obtain relief claimed may be determined, the Court may, in appropriate cases, decline to enter upon that enquiry, but the question is always one of discretion and not of jurisdiction of the Court which may, in a proper case, enter upon a decision on questions of fact raised by the petitioner.. It is equally well settled legal proposition that ..writ petition. is maintainable for enforcement of legal right as well. [SEE:’THE STATE OF ORISSA VS. MADAN GOPAL RUNTA’, AIR 1952 SC 12, ‘AIR INDIA STATUTORY CORPORATION AND OTHERS VS. UNITED LABOUR UNION AND OTHERS’, AIR 1997 SC 645 and ‘STATE OF WEST BENGAL AND OTHERS VS. COMMITTEE FOR PROTECTIONOF DEMOCRATIC RIGHTS WEST BENGAL AND OTHERS’, AIR 2010 SC 1476].
14. In the backdrop of aforesaid well settled legal principles, the facts on hand may be examined. In the instant case, this court is neither required to decide the question of title nor disputed question of fact. Admittedly, a sale deed was executed in favour of Bangalore Development Authority in favour of predecessor in title of the petitioner on 08.06.1981. The predecessor in title of the petitioner viz., A.C.Madegowda has sold the property to the petitioner by registered sale deed dated 10.07.1981. The validity of the sale deed is not under challenge either at the instance of respondent No.1 or respondent No.2. the petitioner claims title in respect of the property on the basis of the aforesaid sale deed. It is also pertinent to note that one Rangappa had filed the civil suit against Bangalore Development Authority and the Temple viz., respondent No.1, in which 27th Additional City Civil Judge vide judgment dated 07.07.2012 in para 98 while dealing with issue No.7 has recorded a finding that Sy.No.75/1 has been acquired. The aforesaid finding is binding on respondent No.1 as no challenge has been made to the aforesaid judgment and decree by respondent No.1. It is also pertinent to mention that aforesaid Rangappa had filed a writ petition seeking to quash the preliminary notification as well as the final notification, by which several lands including the land bearing Sy.No.75/2 in Sarakki Village, were sought to be acquired. The aforesaid writ petition was disposed of with the liberty to the petitioner to agitate his grievance in civil suit as the writ petition involved disputed question of fact. It is pertinent to mention here that in the instant writ petition, this court is not required either to deal with question of title or possession of the petitioner over the schedule property. The title of the petitioner is no where under challenge at the instance of respondent Nos.1 and 2. It is pertinent to mention here that respondent No.3 has supported the petitioner’s case and has stated that land bearing Sy.No.75/2 at Sarakki Village was acquired by City Development Trust Boa and a survey was conducted and a survey sketch was prepared on 14.06.2017. It has further been stated on behalf of Bangalore Development Authority that as per the survey sketch, the schedule property falls within Sy.No.75/2 of Sarakki Village, which was acquired by the erstwhile City Development Trust Board vide Notification dated 01.09.1948. The right to hold the property is a constitutional right guaranteed under Article 300-A of the Constitution of India. The respondent No.1 is a Muzrai Temple and respondent No.2 is the executive officer and the same is controlled by Muzrai Department of State of Karnataka, therefore, the representatives of respondent No.1 or respondent No.2 cannot be permitted to invade the right of the petitioner to enjoy the property. The State of Karnataka and its officers cannot be permitted to violate the constitutional right guaranteed to the petitioner under Article 300-A of the Constitution of India. It is also pertinent to note that merely because petitioner has filed a civil suit against a private individual against whom admittedly a writ petition would not lie. The same cannot be a ground to contend that the petition filed by the petitioner should not be entertained.
15. In view of preceding analysis, the respondent Nos.1 and 2 are directed not to interfere in any manner with regard to possession of the petitioner in respect of the schedule property except in accordance with law and to remove the board put by them on the schedule property within three weeks from today. Needless to state that respondent Nos.1 and 2 if so advised will be at liberty to take recourse to such remedy as may be available to them under the law.
With the aforesaid directions, the petition is disposed of.
In view of the disposal of the writ petition, the pending application do not survive for consideration and the same are hereby disposed of.
Sd/- JUDGE SS