IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.8794/2019 (LB-BMP) Between:
1. Sri. Rafeeq Ahmed, Aged about 65 years, S/o. Late Abdul Rehman.
2. Smt. Shabana, Aged about 61 years, W/o. Rafeeq Ahmed.
Both are resident at No.7, Muniswamappa Layout, Lingarajapuram, Bengaluru – 560 084. ... Petitioners (By Sri. Gopala Gowda H.K., Advocate) And:
1. The State of Karnataka by Principal Secretary, Government of Karnataka, Vidhana Soudha, Bengaluru – 560 001.
2. Deputy Commissioner, Bengaluru, Bengaluru District – 560 001.
3. Assistant Commissioner, Bengaluru North Sub-Division, Bengaluru District – 560 001.
4. Tahsildar, Bengaluru North (Additional) Taluk, Yelahanka, Benglauru District – 560 001.
5. The Commissioner, B.B.M.P., Bengaluru – 560 001.
6. The Joint Commissioner, Yelahanka, B.B.M.P., Bengaluru – 560 001. ... Respondents (By Sri. M.A. Subramani, HCGP for R-1 to R-4; Sri. Amit Deshpande, Advocate for R-5 & R-6) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to direct the respondents to act upon the representation Annexure-M1 dated 14.02.2019, Annexure-M2 dated 18.09.2018, Annexure-M3 dated 04.10.2018, Annexure-N dated 18.09.218, of the petitioner to perform the phodi and survey of the schedule land property as they are required to perform according to the law as early as possible, preferably, within the time frame fixed by this Hon’ble Court and etc.
This Writ Petition coming on for Orders this day, the Court made the following:
ORDER The petitioners stating to be the owners of the land to an extent of 3 acres 19 guntas in Sy.No.28 of Bellahalli Village, Bengaluru North Taluk having purchased the same through the sale deed dated 14.09.1987 have filed the present writ petition seeking for issuance of a writ in the nature of mandamus to the respondents to consider their representations and to conduct survey and phodi proceedings in accordance with law. Appropriate direction has been sought for as against respondent Nos.5 and 6 to stop the construction of compound wall till phodi and survey proceedings are concluded.
2. It is stated that as regards the earlier phodi proceedings, the division of the property as Sy.No.28/1 and Sy.No.28/2 was challenged. The same having been set-aside and the matter was remanded for conducting of fresh phodi proceedings, the said order of remand has attained finality.
3. This Court in W.P.Nos.8819-8820/2019 has disposed of the writ petitions by order dated 08.03.2019 and has directed the Tahsildar, Bengaluru North Taluk to dispose of the phodi and survey proceedings pending in case No.LND/NA/CR/84/2017-18 in accordance with law within 90 days.
4. It is pointed out that the total extent of land in Sy.No.28 is 5.31 acres, out of which the petitioners had purchased an extent of 3.19 acres, while one Hussain.Bi W/o Syed Mustafa has claimed rights in respect to an extent of 1.20 acres and it is stated that the remaining land in the same survey number is being used by B.B.M.P. as a burial ground.
5. Reference to the existence of the burial ground is found in Column No.11 of the RTC. Copy of the RTC for the year 2018-2019 with respect to undivided Sy.No.28 is enclosed as Annexure-D.
6. In light of the directions passed in W.P.Nos.8819-8820/2019, wherein the dispute insofar as the phodi proceedings would reach the logical finality, the respondent-B.B.M.P. is at liberty to seek appropriate demarcation of the land as regards the land that is set apart for the burial ground in the same proceedings. Further, the B.B.M.P. is at liberty to place appropriate material before the Tahsildar, Bengaluru North Taluk with respect to the extent of land set apart of burial ground in Sy.No.28.
7. If such intervention is sought for, the Tahsildar, Bengaluru North Taluk to consider the material placed by the respondent – B.B.M.P. and to demarcate the land in Sy.No.28 that has been set apart for burial ground.
8. The said demarcation is to be made as a part of the phodi proceedings relating to Sy.No.28 as has been directed in W.P.Nos.8819-8820/2019.
9. The learned counsel for the petitioners as well as the respondents are to file photographs with respect to the nature of the properties as is found on date which would enable the enforcement of the order of status quo. The said photographs to be filed by the learned counsel for the petitioners and learned counsel representing respondent Nos.5 and 6 within a week from today.
10. It is made clear that the proceedings to be conducted as ordered in W.P.Nos.8819-8820/2019 as well as in light of the direction passed in the present order. The notice while conducting phodi and survey proceedings are to be issued to all the interested parties, whose names are found in the RTC after taking note of all available revenue records and documents of title. Contentions of all parties are kept open.
11. Needless to state that in light of the identity of properties being demarcated by the Tahsildar, Bengaluru North Taluk as per the directions issued in W.P.Nos.8819-8820/2019 and herein, both the parties are directed to maintain status quo as on date.
Accordingly, the petition is disposed of, subject to the above observations.
Sd/- JUDGE SJK