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2015 DIGILAW 1258 (KAR)

Ramaiah v. Bengaluru Development Authority

2015-11-19

RAM MOHAN REDDY

body2015
ORDER : Ram Mohan Reddy, J. 1. The 2nd Petitioner instituted O.S. No. 6056/1988 arraigning respondent-Bangalore Development Authority as defendant for permanent injunction restraining the defendant from evicting 2nd petitioner from the building constructed on one gunta of land from out of 15 guntas in Sy. No. 27/2 of Marenahalli village. That suit though opposed by the defendant, nevertheless the XIV Addl. City Civil Judge, Bangalore after a trial, answered in the affirmative issues, more appropriately whether lawful juridical possession of the property was proved and whether plaintiff was entitled to perpetual injunction, noticing that out of 15 guntas of land the Bangalore Development Authority acquired and took possession of 14 guntas of land while the owner did not hand over possession of one gunta of land consisting of a mangalore tiled house, though received the compensation for 14 guntas of land, except one gunta, by judgment and decree dated 30.11.1992 Annexure 'B' in so far as one gunta of land is concerned. 2. Petitioners jointly filed W.P. Nos. 11532 and 11533/1994 for direction to the respondent-Bangalore Development Authority not to demolish the structures put up by them on certain land since their claim for regularization is pending consideration by the screening committee constituted under the Karnataka Regularization of Unauthorized Construction in the Urban Area Act, 1991. By a common order dated 19.7.1994 Annexure 'A', said petitions were disposed of holding that it would not be appropriate for respondent to demolish the construction put up by the petitioners, though petitioners would not be entitled to put up further constructions thereof. There afterwards, petitioners claim to have subjected the land for purposes of land tax to the Notified Area Committee, presently the Bruhat Bangalore Mahanagara Palike and paid all the municipal taxes. 3. When the officers of the respondent allegedly put certain marks on the property in question, apprehending that the authorities intend to demolish the building without recourse to law, have presented these petitions invoking the extraordinary writ jurisdiction for a writ of mandamus directing respondent not to demolish any portion of the building existing on the schedule property, said to be two houses on Sy. No. 27/2 of Marenahalli village in terms of the schedule mentioned in the petition. 4. Although Sri. No. 27/2 of Marenahalli village in terms of the schedule mentioned in the petition. 4. Although Sri. Subramanya Jois, learned senior counsel for the petitioners points to the aforesaid two documents to submit that petitioners are entitled to the benefit of the judgments and the respondent-Bangalore Development Authority has no manner of right, title or interest over two guntas of land hence, have no right to dispossess petitioners from the said extent of land without due process of law, while the screening committee has not decided over the applications filed by them for regularization of construction, there is a need to remedy the grievance in exercise of writ jurisdiction, nevertheless in the facts and circumstances, is unavailable. 5. Initially, the second petitioner instituted O.S. No. 6056/1988, whence the trial Court accepted his plea that he was the owner of 15 guntas of land in Sy. No. 27/2 of Marenahalli village and that he had delivered possession of 14 guntas thereof while held on to one gunta of land in which was a Mangalore tiled roof house and also received the compensation for 14 guntas of land, recorded findings in his favour and decreed the suit against the Bangalore Development Authority directing perpetual injunction in respect of that one gunta of land with the Mangalore tiled roof in Sy. No. 27/2 of Marenahalli village. That judgment and decree though pronounced on 30.11.1992 nevertheless the second petitioner decree holder jointly along with the first petitioner filed W.P. Nos. 11532 and 11533/1994 for directions not to demolish the house property situated in the schedule property therein. The order dated 19.7.1994 does disclose the particulars of the house property or the description of the house property, hence, it is not known as to whether it is the very same one gunta of land in Sy. No. 27/2 or two guntas of land elsewhere or is it any property other than the suit schedule property. The order also does not disclose whether the second petitioner had placed before Court, the judgment and decree in O.S. No. 6056/1988. In the absence of such material, it is not possible for this Court to straightaway accept the plea that the decision in W.P. Nos. 11532 and 11533/1994 in so far as it relates to Petitioner's application for regularization of unauthorized construction pending before the screening committee is in the very same property subject matter of the suit. 6. In the absence of such material, it is not possible for this Court to straightaway accept the plea that the decision in W.P. Nos. 11532 and 11533/1994 in so far as it relates to Petitioner's application for regularization of unauthorized construction pending before the screening committee is in the very same property subject matter of the suit. 6. Logically speaking, the second petitioner, being a decree holder injuncting the respondent BDA by way of perpetual injunction, it is not known as to why a writ petition was filed instead of executing the decree. Therefore, it appears that the property subject matter of W.P. Nos. 11532 and 11533/1994 may not be the very same property subject matter of judgment and decree. Yet again, when the Civil Court recorded specific finding of fact that 14 guntas from out of 15 guntas of land in Sy. No. 27/2 of Marenahalli village 14 guntas was in the possession of Bangalore Development Authority and in respect of which, compensation was paid to the decree holder-second petitioner, while one gunta of land over which Mangalore tiled roof building was in possession of the plaintiff the suit was decreed for perpetual injunction it is doubtful whether the apprehension of the second petitioner merits consideration. 7. In the aforesaid circumstances, it is also doubtful as to whether first petitioner is in possession and enjoyment of another gunta of land in Sy. No. 27/2 of Marenahalli village. These are questions of fact which cannot be conveniently adjudicated in a writ proceeding by asking parties to file affidavits. 8. In the circumstances, it is appropriate to direct petitioners to have their grievance remedied before a Civil Court of competent jurisdiction. Petitions rejected. It is needless to state that in the event parties approach the Civil Court, if so advised, the Civil Court need not be influenced by any of the findings recorded supra.