The R.B.I. Staff And Others Co ... vs The State Of Karnataka
2021 Latest Caselaw 2852 Kant

                         -: 1 :-

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 19th DAY OF JULY, 2021

                         PRESENT

        THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

                           AND

    THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

           WRIT APPEAL No.3983/2019 (BDA)

BETWEEN:

The R.B.I. Staff and others Co-operative
Housing Society Ltd.,
Represented by its Secretary,
No.540/A, RBI Layout, J.P.Nagar,
7th Phase, Bangalore- 560 078.
                                             ... APPELLANT

(By Sri.Jayakumar S.Patil, Senior Counsel
 for Sri.Basavarajaiah N., Advocate)

AND:

1. The State of Karnataka,
   Represented by its Secretary,
   Revenue Department,
   Vidhana Soudha,
   Bangalore - 560 001.

2. The Commissioner,
   Bangalore Development Authority,
   Kumara Park West,
   T.Chowdaiah Road,
   Bangalore - 560 020.

3. The Town Planning Member, BDA,
   Kumara Park West, Bangalore - 560 020.

4. Sri.B.S.Hemanthkumar,
   S/o late B.H.Sreenivasa Murthy,
   Aged about 57 years,
   R/o No.5/6, Kanakapura Main Road,
                            -: 2 :-

  Yelachenahalli, J.P.Nagar,
  7th Phase, Bangalore - 560 078.
                                              ... RESPONDENTS

(By Sri.C.N.Mahadeshwaran, AGA for R.1,
 Sri.K.Krishna, Advocate for R.2 and R.3,
 Notice to R.4 is dispensed with)

      This writ appeal is filed under Section 4 of the
Karnataka High Court Act, praying to; (a) set aside the
order dated 21/10/2019, only to the extent, in view of the
interim order of status quo relating to the property in
question, ordered in WA No.2690/2015, being in operation,
the second relief cannot be considered at this stage and
accordingly stands rejected and etc.

      This appeal coming on for preliminary hearing this
day, NAGARATHNA J., delivered the following:

                      JUDGMENT

Though this appeal is listed for preliminary hearing,

with the consent of learned Senior Counsel and other

counsel on both sides, it is heard finally.

2. This intra court appeal is filed by the petitioner

in Writ Petition No.52010/2017, assailing that portion of

the order of the learned Single Judge dated 21.10.2019,

declining to grant prayer-(b) sought in the writ petition on

account of the pendency of Writ Appeal No.2690/2015,

before this Court.

3. Briefly stated the facts are that the

petitioner/appellant herein had filed the aforesaid writ

petition seeking, inter alia, the following reliefs:

"PRAYER

Wherefore, the Petitioner humbly prays that this Hon'ble Court;

(a) To issue a writ of certiorari to quash the resolution No.120/17 dated 31.08.2017 passed by the Bangalore Development Authority, respondent No.2, which is produced as Annexure-G.

(b) To issue a writ of Mandamus directing the Respondent No.2, Bangalore Development Authority to issue the Khatha Certificate to Site Nos.209, 872, 540/A (OHT and UGR), 178 and the Commercial Complex site (466/A), for which the Petitioner is the owner. As per the representations submitted by the petitioner which are produced as Annexures-K, L and M dated 09.08.2007, 07.07.2011 and 11.07.2013 respectively.

(c) To award costs and grant such other relief/s as this Hon'ble Court deems fit in the circumstances of the case and in the interest of justice and equity.

INTERIM PRAYER

The petitioner further prays that pending disposal of this writ petition this Hon'ble Court be pleased to stay the operation and execution of the Resolution No.120/17 passed by the 2nd respondent which is produced herewith as Annexure-G, in the interest of justice and equity."

4. The said reliefs were sought on the basis of the

fact that certain extent of land was acquired under the

provisions of the Land Acquisition Act, 1894 (hereinafter

referred to as the 'Act' for the sake of brevity), by the

State for the benefit of the appellant/Society, so as to form

a residential layout. On acquisition of the extent of the land

for the benefit of the Society and when the matters stood

thus, a resolution was passed by the Bangalore

Development Authority ('BDA' for short) in Resolution

No.120/17, dated 31.08.2017 (Annexure-G). The same

was questioned by the appellant in the writ petition, and

the learned Single Judge quashed the said resolution,

which was prayer-(a) in the writ petition. There is no

further controversy on that aspect of the matter.

5. As far as the other prayer sought by the

appellant herein is concerned, the learned Single Judge

declined to issue a writ of mandamus, since Writ Appeal

No.2690/2015 filed by respondent No.4 in the writ petition,

was pending in the said writ petition.

6. Learned Single Judge opined that since Writ

Appeal No.2690/2015 was pending and the same having

been filed by the 4th respondent in the writ petition and in

view of the interim order of status-quo granted in the said

appeal, the second relief could not be granted. Being

aggrieved, this appeal has been filed.

7. We have heard learned Senior Counsel for the

appellant/Society and learned Additional Government

Advocate for respondent No.1 and learned counsel for

respondent Nos.2 and 3. We have perused the material on

record.

8. Learned Senior Counsel appearing for the

appellant submitted that, a memo has been filed enclosing

a copy of the judgment dated 20.11.2019, passed in Writ

Appeal No.2690/2015. In view of the said judgment, there

is no impediment for this Court to grant the other relief

sought by the appellant herein in the writ petition, which

was prayer-(b).

9. Learned Senior Counsel drew our attention to

the fact that even though liberty was reserved to 4th

respondent in the writ petition (Sri.B.S.Hemanthkumar) to

file a suit and seek his remedy before the Civil Court, no

such suit has been filed, inasmuch as no notice from the

Civil Court has been received by the appellant herein. It

was further submitted that, in the event the 4 th respondent

in the writ petition i.e. B.S.Hemanthkumar is to file a suit

and to succeed in the matter and any portion of the layout

formed by the appellant/Society has to be excluded from

the plan approved by the third respondent herein then, at

that point of time, arrangements would be made in

accordance with the judgment and decree of the Civil

Court. It was submitted that, as of now there is no

impediment for granting the second relief sought for by the

appellant/Society in the writ petition, since Writ Appeal

No.2690/2015 has been disposed of by a Co-ordinate

Bench of this Court.

10. Per contra, learned counsel for the BDA as well

as learned Additional Government Advocate submitted in

unison that, in the event B.S.Hemanthkumar is to succeed

in the civil suit, then the complication would be that,

65 x 65 yards, which has been reserved as a park area in

the plan sanctioned of the BDA, in favour of the

appellant/Society, the said extent would have to be made

over to B.S.Hemanthkumar. As a result, there would be

no area available as a park in the layout formed by the

Society. Therefore, it is necessary that, the prayer sought

in prayer-(b) may not granted, so that those sites which

are mentioned in prayer-(b) may be kept vacant and the

same may be converted into a park, in the event

Sri.B.S.Hemanthkumar succeeds in the suit.

11. By way of reply, learned Senior Counsel

submitted that despite liberty being granted by this Court,

no suit has been filed by B.S.Hemanthkumar, inasmuch as

no intimation or notice has been served on the Society.

That the area comprised in the sites mentioned in prayer-

(b) cannot be left unutilized, as it was meant for future

development and presently there is need for development

of the said sites for the purpose of providing amenities and

facilities in the layout. It is only in the event that

B.S.Hemanthkumar succeeding in the suit, if and when

filed, the question that would arise is, whether, any area

which is now reserved for the park, would have to be made

available to B.S.Hemanthkumar, in which event the

alternative arrangements would have to be made for

providing a park in the layout formed by the appellant-

Society.

12. Learned Senior Counsel submitted that at this

point of time, the possibilities and developments cannot be

forecasted, as it would all depend upon the suit being filed

by B.S.Hemanthkumar in the first place and further, on the

result of the said suit. That, learned Single Judge did not

grant the second prayer sought by the appellant/Society

only on account of the pendency of the writ appeal. Now

that the writ appeal has been disposed of, there is no

impediment for granting the prayer sought by the

appellant/Society.

13. Learned Senior counsel also submitted that, in

the event B.S.Hemanthkumar is to succeed in the suit to

be filed by him and any portion of the area acquired by the

State for the benefit of the Society, is to be made available

to the said party, then the Society would ensure that a

park or open space would be made available and provided

in the layout formed by the appellant/Society. Hence, at

this stage, no purpose would be served in procrastinating

development of the area, as sought in prayer-(b) of the

writ petition.

14. The detailed narration of facts and contentions

would not call for reiteration. Learned Single Judge did not

grant prayer-(b) in the writ petition only because of the

pendency of Writ Appeal No.2690/2015. The said appeal

has been, in fact been dismissed by a Co-ordinate Bench of

this Court. It is necessary to note that the said appeal was

filed by Sri.B.S.Hemanthkumar, who was the 4th

respondent in the writ petition, out of which, this appeal

arises. A Co-ordinate Bench has not granted any relief to

B.S.Hemanthkumar, the appellant in Writ Appeal

No.2690/2015, except reserving liberty to him to file a civil

suit, so as to establish his title in certain extent of land

acquired by the State for the benefit of the Society, insofar

as the extent which he has claimed. Recording the same,

the appeal filed by B.S.Hemanthkumar has been

dismissed.

15. In the circumstances, we allow this appeal and

disposed of the same by directing the respondent-BDA to

issue the Khatha Certificate to site Nos.209, 872, 540/A

(OHT and UGR), 178 and the Commercial Complex site

(466/A), within a period of two months from the date of

receipt of the certified copy of this judgment.

16. It is further clarified that, in the event

B.S.Hemanthkumar is to file a civil suit and is to succeed in

the said suit and the extent of land that he claims, falls

within the layout plan prepared by the appellant/Society

which has been sanctioned by the BDA, and the said extent

is to be made over to B.S.Hemanthkumar, then alternative

arrangement would be made to the appellant/Society for

providing a park area or open space in the layout.

The appeal is disposed of in the aforesaid terms.

No costs.

In view of the disposal of the appeal, IA No.1/2019

stands disposed.

Sd/-

JUDGE

Sd/-

JUDGE AP*