IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA WRIT PETITION No.55584/2013 (ULC-RES) AND W.P.No.1621/2014 BETWEEN:
SRI Y.A. NAGARAJ S/O. SRI Y.V. ANJANAPPA, AGED ABOUT 49 YEARS, R/AT NO.1275, 1ST FLOOR, 1ST MAIN, GANDHINAGAR, YELAHANKA, BANGALORE – 560 064. ... PETITIONER (BY SRI: GANAPATHI BHAT, ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, VIKASA SOUDHA, BANGALORE – 560 001.
2. THE SPECIAL DEPUTY COMMISSIONER (URBAN LAND CEILING), BEING REPRESENTED BY THE DEPUTY COMMISSIONER, BANGALORE DISTRICT (URBAN), D.C. COMPOUND, BANGALORE – 560 009.
3. KARNATAKA SLUM (AREAS) (IMPROVEMENT & CLEARANCE) BOARD, RESAIDAR ROAD, SESHADRIPURAM, BANGALORE – 560 020.
REP. BY ITS COMMISSIONER. ... RESPONDENTS (BY SRI: A.G. SHIVANNA, ADDL. ADVOCATE GENERAL A/W SRI J.M. UMESHA MURTHY, HCGP FOR R-1 & R-2;
SRI B. RAMASWAMY IYENGAR, ADVOCATE FOR R-3) ****** THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DT.07.11.1984 AT ANN-D AND QUASH THE GOVT. ORDER DT.31.05.1995 AT ANN-N AND ETC., THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, COURT MADE THE FOLLOWING:
O R D E R These writ petitions are listed for preliminary hearing in ‘B’ group. With the consent of learned counsel on both sides, they are heard finally.
2. Petitioner who is stated to be the son of late Y.V.Anjanappa, has filed these writ petitions assailing Notification under Section 10(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the ULC Act, 1976”) (Annexure-D) and Government Order bearing No.VNG 108 MES 1995, dated 31/05/1995 (Annexure-N), on the basis of which the scheduled property has been granted to respondent No.3/Karnataka Slum (Areas) (Improvement & Clearance) Board (“Slum Clearance Board” for the sake of convenience). A direction is sought to the respondents to consider his representation dated 10/01/2013 (Annexure-P) and also to cancel the revenue entries made in the RTCs in respect of the schedule property. The schedule property is land measuring 4 acres 6 guntas (16806.28 sq.mtrs.) in Sy.No.17, situated at Chikkabommasandra Village, Yelahanka Hobli, Bangalore North Taluk, Bangalore, the details of which are given in the writ petitions as under:
“SCHEDULE PROPERTY All that piece and parcel of the land bearing Sy.No.17, measuring 4 acres 6 guntas (16806.28 sq.mtrs.), situated at Chikkabommasandra, Yelahanka Hobli, Bangalore North Taluk, Bangalore, and bounded on:
EAST BY : Karnataka Housing Board Layout; WEST BY : Private Property;
NORTH BY : Chikkabettahalli Main Road; SOUTH BY : KHB Property.”
3. I have heard learned counsel for the petitioner, learned Addl. Advocate General (AAG) for respondent Nos.1 and 2, learned counsel for respondent No.3 and perused the material on record as well as the original records.
4. During the course of submissions, learned AAG and learned counsel for the respondent No.3, at the outset, have drawn my attention to a parallel litigations pending in respect of the schedule property. Learned AAG submits that the petitioner herein has filed a civil suit bearing O.S.No.598/2009 before the XVI Addl. City Civil Judge, Bangalore City. The said suit has been filed by the petitioner seeking the relief of declaration of title and a further declaration that physical possession of the plaint schedule property (20 guntas in Sy.No.17) has not been taken over by the respondent/State Government and that the petitioner (plaintiff therein) is entitled to relief under the Urban Land (Ceiling & Regulation) Repeal Act, 1999 (hereinafter referred to as “the Repealing Act, 1999” for short). He further draws my attention to the fact that in the said suit, the petitioner was unsuccessful in seeking an order of temporary injunction and thereafter, he preferred MFA.No.8942/2009 before this Court. That this Court by judgment dated 15/09/2010, disposed of the said appeal by confirming the order of the trial Court. According to learned AAG, thereafter, the petitioner has filed these writ petitions. He would submit that the contentions raised in these writ petitions and the contentions raised in the suit are identical and the petitioner cannot be permitted to take recourse to parallel proceedings in respect of the subject land and the petitioner may be relegated to establish his rights in the civil suit filed by him in the year 2009 which is pending adjudication before the trial Court.
5. Learned counsel for respondent No.3/Slum Clearance Board, endorsing the submission made by learned AAG also brought to my notice the fact that petitioner’s father had agreed to sell 3 acres 36 guntas in the schedule property to Malleshwaram Tailoring Co- operative Society Limited. That the said society obtained possession of 3 acres 36 guntas in the schedule property and they formed a private layout and allotted sites to its members. That the members had filed W.P.Nos.5807- 5833/1996 before this Court, against the Slum Clearance Board, the Tahsildar, Bangalore North Taluk and the Special Deputy Commissioner, ULC, Bangalore. The said writ petitions were disposed of by relegating the petitioners therein to file a civil suit, if so advised. He further submitted that the said petitioners, thereafter, filed O.S.No.7107/1996 and other similar civil suits i.e., O.S.Nos.7090-7188/1996 and O.S.Nos.7340-7349/1996.
Those civil suits were filed by the agreement holders seeking the relief of decree of permanent injunction against the Slum Clearance Board. The said suits were decreed by the XVI Addl. City Civil and Sessions Judge, Bangalore, by judgment and decree dated 12/10/2012. Learned counsel submits that against those decrees, RFA.No.638/2013 and connected regular first appeals were filed by the Karnataka Slum Clearance Board before this Court. By judgment dated 31/07/2015, this Court has reserved liberty to the Slum Clearance Board to take action against the plaintiffs in those suits under the provisions of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974.
6. Learned counsel further submits that proceedings have been initiated under the aforesaid Act against the agreement holders and the said proceedings are pending adjudication. Learned counsel submits that in view of pendency of the proceedings before various authorities, it was not proper for the petitioner to file these writ petitions in the year 2013 assailing Notification dated 07/11/1984 and order dated 31/05/1996. He also submitted that having regard to the fact that the suit filed by the petitioner herein is pending adjudication and the proceedings initiated by the Slum Clearance Board against the agreement holders from the petitioner’s father is also under adjudication, this Court may relegate petitioner to the civil Court.
7. In response, learned counsel for the petitioner fairly submits that, indeed, O.S.No.598/2009 has been filed by the petitioner, but in respect of only 20 guntas of land in the schedule property, but these writ petitions are concerned with the total extent of 4 acres 6 guntas in the schedule property, which is the subject matter of proceedings under the ULC Act, 1976. He would submit that the entire controversy in these writ petitions is, as to whether the petitioner is entitled to the benefit of the Repealing Act, 1999 on the premise that possession of the schedule property has not been taken in accordance with law and therefore, the said proceedings have abated. In the circumstances, learned counsel for the petitioner submitted that this Court may give a finding on the question as to, whether the proceedings under the Repealing Act, 1999 has abated or not and that these writ petitions may be considered on merits.
8. Having heard learned counsel for the respective parties and on perusal of the material on record, it is noted that the petitioner herein has sought for a declaration of abatement of proceedings under the ULC Act, 1976 having regard to Section 3 of the Repealing Act, 1999 in respect of the schedule property, measuring 4 acres 6 guntas by assailing Notification and orders passed under the ULC Act, 1976, on the premise that the proceedings have abated under the Repealing Act as possession of the schedule property has not been taken by the State Government in accordance with Section 10(5) of the ULC Act, 1976. It is noted that, while the schedule property in these writ petitions is 4 acres 6 guntas in Sy.No.17, the petitioner himself has filed O.S.No.598/2009 before the City Civil Court seeking the following reliefs in respect of the following suit schedule property:
“a) Declaring that the plaintiff is entitled to continue as absolute owner in possession of the plaint schedule pursuant to plaintiff’s continuous uninterrupted peaceful possession of the plaint schedule notwithstanding the alienation done to the 2nd and 3rd defendant;
b) Further declare that, at no point of time the defendants took constructive or physical possession of the plaint schedule property, as such plaintiff’s property is protected from the alleged notification earlier issued under original Urban Land (Ceiling and Regulation) Act, 1976 being repealed subsequently;
c) Issue mandatory injunction against the 3rd defendant to execute necessary documents relating to the exchange of properties; and d) Possession was never handed over and it indicates that the compensation was not paid as per the provisions of the Urban Land Ceiling Act;
e) Pass such other relief or reliefs as this Hon’ble Court deems fit to grant under the facts and circumstances of the case including cost, in the interest of justice and equity.
SCHEDULE All that piece and parcel of the property bearing Survey No.17, situated at Chikka Bommasandra Village, Yelahanka Hobli, Bangalore North Taluk, measuring to an extent of 20 guntas and bounded on:
East by : 19th ‘B’ Cross, KHB House No.2111, 2112 & 2113 West by : Road formed in Survey No.17 North by : Bettahalli Main Road;
South by : KHB Houses”
9. It is stated at the Bar that issues have not yet been framed in the said suit. Be that as it may. It is noted that one of the reliefs claimed in the said suit is for a declaration that the petitioner herein (plaintiff in the said suit) is entitled to protection under the provisions of the Repealing Act, 1999. In that view of the matter, it would not be proper for this Court to give a finding as to whether the proceedings under the ULC Act, 1976 have abated on the basis of the Repealing Act, 1999 as the very question is involved in the civil suit pending adjudication before the trial Court. That apart, it is also noted that the allottees of various sites by Malleshwaram Tailoring Co-operative Society Limited, which is stated to be the agreement holder from petitioner’s father to an extent of 3 acres 36 guntas is also part of the schedule property in these writ petitions. That apart, in the regular appeal of Slum Clearance Board before this Court, assailing the judgment and decree passed in the civil suits filed by the allottees of sites, this Court, by judgment dated 31/07/2015, passed in RFA.No.638/2013 and connected appeals, permitted the Slum Clearance Board to invoke the provisions of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 against those allottees. As already stated, the Slum Clearance Board has initiated proceedings under the aforesaid Act, against the allottees of the Malleshwaram Tailoring Co-operative Society Limited. Therefore, those proceedings are also pending adjudication and as already noted, the subject matter of those proceedings are also part of the schedule property in these writ petitions. When the petitioner herein has filed a comprehensive suit against the respondents herein in O.S.No.598/2009 seeking the very relief, which is sought in these writ petitions, I find that it would not be proper to give a declaration in these proceedings or to adjudicate upon any question of fact as the civil Court is seized of the matter. In the circumstances, these writ petitions are disposed by reserving liberty to the petitioner herein to prosecute O.S.No.598/2009 in accordance with law.
10. It is needless to observe that the respondents herein who are the defendants in the suit are at liberty to defend the said suit on all the prayers or reliefs sought for by the petitioner herein. In that regard, the question as to whether the petitioner is entitled to any relief under the provisions of the Repealing Act, 1999 would be a question of fact, which would have to be adjudicated by the trial Court. Therefore, without opining on any aspect of the case or contentions raised by the respective parties before this Court and keeping all contentions open on both sides to be adjudicated in the suit, these writ petitions stand disposed.
11. Since the suit is of the year 2009, all parties thereto are directed to co-operate with the trial Court for expeditious disposal of the suit.
12. In view of the disposal of the writ petitions, I.A.Nos.2/14 and 1/16 would not survive for consideration and they are ordered to be filed.
Sd/- JUDGE S*