Sri K S Raju vs The Deputy Commissioner
2021 Latest Caselaw 3814 Kant

                          1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                       BEFORE

     THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

        WRIT PETITION No.42725/2013 (LB - RES)

BETWEEN

SRI.K.S.RAJU,
SINCE DEAD
REPRESENTED BY HIS LRS.

SMT.NAGARATHNA A.H.,
W/O LATE K.S.RAJU,
AGE 33 YEARS,
R/O K.R.ROAD,
SUBHASHNAGAR,
MANDYA CITY,
MANDYA - 571 401.
                                       ... PETITIONER

[BY SRI.M.R.RAJAGOPAL, ADVOCATE
   (VIDEO CONFERENCING)]

AND

1.     THE DEPUTY COMMISSIONER,
       MANDYA DISTRICT,
       MANDYA - 571 401.

2.     THE COMMISSIONER,
       CITY MUNICIPAL COUNCIL,
       MANDYA CITY,
       MANDYA - 571 401.
                           2



3.    THE COMMISSIONER,
      MANDYA URBAN DEVELOPMENT AUTHORITY,
      MANDYA - 571 401.

4.    THE EXECUTIVE ENGINEER,
      KARNATAKA URBAN WATER SUPPLY
      & SEWERAGE BOARD,
      MANDYA - 571 401.
                                 ... RESPONDENTS

[BY SMT.PRATHIMA HONNAPURA, AGA FOR R1
    (PHYSICAL HEARING);
    SRI.T.P.VIVEKANANDA, ADVOCATE FOR R3
    (PHYSICAL HEARING);
    SRI.G.M.ANANDA, ADVOCATE FOR R2
   (PHYSICAL HEARING);
   SRI.H.C.SHIVARAMU, ADVOCATE FOR R4]


      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER OF THE 1ST RESPONDENT DATED
30.07.2013 PASSED VIDE ANNEXURE - P AND ETC.

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
                      ORDER

The petition calls in question an order passed by

respondent No.1 - Deputy Commissioner turning down

the claim of the petitioner over a property measuring

120 x 70 in the layout formed by father of the present

petitioner.

2. Heard Sri. M. R. Rajagopal, learned counsel

appearing for the petitioner, Smt. Prathima Honnapura,

learned AGA appearing for respondent No.1, Sri. G. M.

Ananda, learned counsel appearing for respondent No.2,

Sri. T. P. Vivekananda, learned counsel appearing for

respondent No.3, Sri. H. C. Shivaramu, learned counsel

appearing for respondent No.4.

3. Brief facts leading to the filing of the present

petition, as borne out from the pleadings, are as follows:

Pursuant to a partition in the family of the original

petitioner, 20 guntas of land came to the share of the

original petitioner, one K.S. Raju. On 12.03.1981 an

order of conversion was granted in favour of K.S. Raju

converting the land from agricultural to non-

agricultural purposes. On 09.06.1985, the entire extent

of 2 acres and 11 guntas in Sy.No.255/1, pursuant to

its conversion, about 30 sites were formed by the

original petitioner of different dimensions and on such

formation of sites, submitted a layout plan for approval

at the hands of the City Municipal Council, Mandya.

This was approved in terms of an endorsement dated

09.06.1985.

4. In the year 1987, it transpires that the

original petitioner and his brother submitted an

application before the Planning Authority i.e., the then

City Improvement Trust Board, Mandya seeking

permission for formation of a private layout in the

aforesaid land. The City Improvement Trust Board,

Mandya accorded approval on 08.02.1988 for formation

of a private layout subject to the petitioner obtaining

modified conversion order for residential purposes. The

petitioner then submitted a representation to the

Mandya Urban Development Authority seeking approval

of a layout plan with a further request not to set apart

area for park and road and permitting formation of more

number of sites. After which, the original petitioner

undertook that he would handover certain area for the

purpose of formation of road and park.

5. On 24.06.1994, the petitioner was informed

by the Mandya Urban Development Authority that his

request for approval of the layout plan had been turned

down and no commencement certificate would be issued

to the purchasers of the sites in the layout.

6. It is after that the petitioner submitted a

representation that he was willing to handover 3 sites

totally measuring 120 x 70 for the purpose of the park

and also requested that the commencement certificate

to be issued to the purchasers of the sites on this

condition.

7. Later, the modified layout plan was approved

showing the area of 120 x 70 to be a park. This

document bears the signature of the original petitioner.

The City Municipal Council, on the strength of the

aforesaid document, which would mean that the

petitioner has relinquished the area measuring 120 x 70

in the layout, has constructed a overhead tank, which is

in existence even as on date.

8. The petitioner, after about 9 years, stakes a

claim that he has not relinquished the subject property

measuring 120 x 70 in a manner known to law and still

owns the said property and seeks that the area we given

back to him. This lead to certain proceedings and a writ

petition being preferred before this Court initially in the

year 2007 in Writ Petition No.10202/2007. This writ

petition came to be disposed on 12.02.2008 without

going into the merit of the matter but with a direction to

consider the case of the petitioner for retransfer of the

khata of 120 x 70 area after taking into account all the

relevant material, including the appropriate legal

opinion. It is after the order passed by this Court, again

proceedings were taken up and the claim of the

petitioner was turned down. This lead to the petitioner

filing another writ petition in Writ Petition

No.19533/2009. This came to be disposed on

04.10.2010. This Court while disposing the said writ

petition, observed as follows:

"7. First respondent in the impugned order suspended the resolution passed by the second respondent on 30.6.2004. The resolution of second respondent on 30.6.2004 is only to seek the legal opinion from their advocate with regard to the claim of the petitioner. Further the Advocate of second respondent has already given his opinion as per Annexure - K. Further this court in its order dated 12.2.2008 in W.P.No.10202/2007 directed to consider the legal opinion given by the second respondent's Advocate. In the circumstances, there is no justification for the first respondent to suspend the resolution of second respondent dated 30.6.2004. The impugned order passed by the first respondent is contrary to the direction issued by this court in W.P.No.10202/2007.

8. Now it is brought to my notice that the third respondent has completed the construction of overhead tank in a portion of the disputed land. If for any reason, it is found that the disputed land is not reserved for park area, then the respondents have to acquire the land and to pay compensation to the petitioner to the area where the overhead tank is constructed and to leave the remaining land to the petitioner. In the event of first respondent holding that the disputed land bearing site no.28, 29 and 30 is reserved for park area, then the petitioner is not entitled for any compensation.

For the reasons stated above, the following order:

i) Writ petition is hereby allowed.

ii) The impugned order at Annexure - Q dated 26.5.2009 passed by the first respondent is hereby quashed.

  iii) The   matter    is    remanded     to   the first
       respondent      for     fresh      disposal    in

accordance with law keeping in mind the observations made above.

iv) Till the Deputy Commissioner passes an appropriate order both the parties are

hereby directed to maintain status-quo with regard to the disputed land that is site Nos.28, 29 and 30/park area, except utilising the overhead tank for public purpose.

Ordered accordingly."

(emphasis supplied)

9. Based on the aforesaid observations, the

order that is passed by this Court was remitting the

matter back to hands of respondent No.1 - the Deputy

Commissioner for fresh disposal in accordance with law.

This Court made it clear that, if the area was not

reserved for a park, then the respondents have to

acquire the land and pay compensation.

10. Respondent No.1 - the Deputy Commissioner

undertook proceedings in terms of the order passed by

this Court and after noticing the respective submissions

holds that there are no records with regard to the

relinquishment of the area but on the strength of the

contemporaneous documents that were available holds

that the area 120 x 70 was infact given up by the

petitioner as could be seen in the sketch. It is this order

of respondent No.1 - the Deputy Commissioner that is

called in question in the subject writ petition.

11. Learned counsel appearing for the petitioner,

Sri. M.R. Rajagopal would contend that the order

passed by respondent No.1 - the Deputy Commissioner

is cryptic and bald as he does not consider any of the

contentions advanced by the petitioner in the written

arguments placed before it, wherein the original

petitioner had clearly brought out his right to reclaim

the property of 120 x 70 and would submit that the

order is defended on the strength of several documents

produced by the learned counsel appearing for the

Planning Authority which did not form a part of the

order of respondent No.1 - the Deputy Commissioner

and submit that the matter requires reconsideration at

the hands of respondent No.1 - the Deputy

Commissioner.

12. On the other hand, learned counsel,

Sri. T.P. Vivekananda appearing for the Planning

Authority taking this Court through the elaborate

objections filed would submit that the petitioner himself

has relinquished the property of 120 x 70 for public

purposes, which was in tune with law. If the layout had

to be approved, the relinquishment was necessary for

the petitioner to have done. Therefore, the mere fact

that the relinquishment deed is not executed by the

petitioner, it will not take away the act of the original

petitioner consciously and in accordance with law

relinquishing the said area of 120 x 70.

13. Learned counsel, Sri.G.M. Ananda,

appearing for the City Municipal Council would toe the

lines of Sri. T.P. Vivekananda, learned counsel

appearing for the Planning Authority.

14. I have given my anxious consideration to the

contentions of respective learned counsel and have

perused the material on record.

15. The afore-narrated facts being not in dispute

need not be reiterated. The genesis of the issue is when

the petitioner applied for sanction of a layout plan

formed by him in the area owned by him. The petitioner

submits a letter of undertaking on 04.03.1989 that he

would relinquish such necessary area for the purpose of

roads and park. The undertaking reads as follows:

"ªÀÄÄZÀѽPÉ ¥ÀvÀæ ªÀÄAqÀå ¹n, ¸ÀĨsÁµÀ£ÀUÀgÀ PÉ.Dgï.gÀ¸ÛÉAiÀÄ°è ªÁ¸ÀªÁVgÀĪÀ PÉ.¹zÉÝÃUËqÀgÀ ªÀÄUÀ£ÁzÀ PÉ.J¸ï.gÁdÄ §gÉzÀÄPÉÆlÖ ªÀÄÄZÀѽPÉ ¥Àvæ.À K£ÉAzÀgÉ, QgÀUÀAzÀÆgÀÄ UÁæªÄÀ zÀ ¸ÀªÉð £ÀA.225:1 gÀ°è 2 JPÀgÉ 11 UÀÄAmÉ ¸ÀzÀj d«ÄãÀߣÀÄß C®Ä¯ÉõÀ£ï ªÀiÁr¹PÉÆAqÀÄ gÀƪÉgÉÃeï (¯ÉÃOmï)£ÀÄß vÀAiÀiÁj¹ C£ÀĪÉÆ¢¹PÉÆqÀ®Ä ªÀÄAqÀå £ÀUÀgÁ©üªÀÈ¢Ý ¥Áæ¢üPÁgÀPÉÌ CfðAiÀÄ£ÀÄß ¸À°è¹zÀÄÝ, vÁªÀÅ ¸ÀzÀj d«Ää£À

¯ÉÃOmï£ÀÄß vÀAiÀiÁj¹ PÉÆnÖgÄÀ wÛÃj. ¸ÀzÀj ¯ÉÃOmï£À C©üªÀÈ¢Ý ±ÀÄ®ÌzÀ ¨Á§ÄÛ ªÀåvÁå¸ÀzÀ ºÀt gÀÆ.14362/- UÀ¼À£ÀÄß ¥Áæ¢üPÁgÀPÉÌ ¥ÁªÀw ªÀiÁqÀ®Ä w½¹ gÀ¸ÛÉ ªÀÄvÀÄÛ GzÁå£ÀªÀ£ÀUÀ¼À ¸À®ÄªÁV vÉÆÃjzÀ ¨sÀÆ«ÄAiÀÄ£ÀÄß ¥Áæ¢üPÁgÀPÌÉ ºÀ¸ÁÛAvÀgÀ ªÀiÁqÀ®Ä w½¹gÀÄ«j.

FUÀ F PÁgÀtUÀ½AzÀ ²æà ªÀÄAdÄ£ÁxÀ JA§ÄªÀjUÉ F ¯ÉÃOmï£À°è ªÀÄ£ÉPÀlÖ®Ä DgÀA¨sÀ zÀÈrüÃPÀgÀt ¥ÀvæÀ PÉÆqÀzÉ vÀqÉ»r¢gÀĪÀÅzÀÄ ¸ÀjAiÀĵÉ×.

£Á£ÀÄ vÁªÀÅ w½¹zÀÝPÉÌ C©üªÀÈ¢Þ ±ÀÄ®ÌzÀ ªÀåvÁå¸ÀzÀ ºÀt gÀÆ.14362/-00 UÀ¼À£ÀÄß PÀlÖ®Ä ¹zÀݤzÉÝãÉ. DzÀgÉ £À£ÀUÉ DyðPÀ vÉÆAzÀgÉUÀ½AzÀ CzÀ£ÄÀ ß E°èAiÀĪÀgÉUÉ ¥ÁªÀw ªÀiÁqÀ®Ä DUÀ°®è. PÁgÀt zÀAiÀÄ«lÄÖ vÁªÀÅ £À£ÀUÉ ¸ÀzÀj gÀÆ.14362/-00 UÀ¼À£ÀÄß ¥ÁªÀw ªÀiÁqÀ®Ä ªÀÄÆgÀÄ wAUÀ¼ÄÀ UÀ¼À CªÀ¢üAiÀÄ£ÀÄß PÉÆqÀ¨ÉÃPÁV «£ÀAw. £Á£ÀÄ ¥Àæw wAUÀ¼ÄÀ gÀÆ.4788/-00 UÀ¼ÀAvÉ ªÀÄÆgÀÄ PÀAvÀÄUÀ¼À°è ¤ÃªÀÅ «¢ü¹zÀ C©üªÀÈ¢Þ ±ÀÄ®Ì gÀÆ.14362/-00 UÀ¼À£ÀÄß vÀ¥ÀàzÉ ¥Áæ¢üPÁgÀzÀ°è ¥ÁªÀw ªÀiÁqÀĪÉ.

JgÀqÀ£ÉAiÀÄzÁV ¸ÀzÀj ¯ÉÃOmï£À°è vÉÆÃj¹zÀ gÀ¸ÛÉUÀ¼ÄÀ ªÀÄvÀÄÛ GzÁå£ÀªÀ£ÀUÀ¼À d«ÄãÀߣÀÄß E£ÀÄß ºÀ¢£ÉÊzÀÄ ¢ªÀ¸ÀUÀ¼ÉƼÀUÁV ¥Áæ¢üPÁgÀPÉÌ ºÀ¸ÁÛAvÀgÀ ªÀiÁrPÉÆqÀÄvÉÛãÉ.

²æà ªÀÄAdÄ£ÁxÀ JA§ÄªÀjUÉ PÀlÖqÀªÀ£ÄÀ ß PÀlÖ®Ä ¨ÁåAQ¤AzÀ ºÀtªÀ£ÀÄß ¸Á®zÀ gÀÆ ¥ÀqÉAiÀÄ®Ä CªÀ¢ü ªÀÄÄVAiÀÄÄvÁÛ §A¢zÀÄÝ CªÀ¢üAiÀÄ£ÀÄß «¸ÀÛj¹PÉƼÀî®Ä ¸ÁzsåÀ «®èzÀAvÁVzÉ. »ÃUÁV CªÀgÀÄ §½ vÉÆAzÀgÉVÃqÁVzÁÝgÉ. DzÀÄzÀjAzÀ £Á£ÀÄ §gÉzÀÄ PÉÆlÖ

ZÁ¥ÁPÁUÀzÀzÀ ªÀÄÄZÀѽPÉAiÀÄ DzsÁgÀzÀ ªÉÄÃgÉUÉ zÀAiÀÄ«lÄÖ ²æà ªÀÄAdÄ£ÁxÀ EªÀjUÉ PÀÆqÀ¯Éà DzsÁAiÀÄ zÀÈrüÃPÀgÀt ¥Àvæª À À£ÄÀ ß ¥Áæ¢üPÁgÀ¢AzÀ ¤ÃqÀ¨ÉÃPÉAzÀÄ vÀªÄÀ ä°è «£ÀAw¹PÉƼÀÄîvÛÉãÉ.

ªÉÄÃ¯É w½¹gÀĪÀ £À£Àß ªÀÄÄZÀѽPÉAiÀÄÄ ¤dªÁVzÀÄÝ, MAzÀÄ ªÉÃ¼É ¤UÀ¢üvÀ PÁ¯ÁªÀ¢üAiÀÄ M¼ÀUÁV £Á£ÀÄ ºÀt PÀlÖ®Ä vÀ¦àzÝÀ °è MAzÉà ªÉÆvÀÛzÀ°è ¥ÀÆvÁð ºÀtªÀ£ÄÀ ß vÁªÀÅ ºÉýzÀ ¢£ÁAPÀzÀAzÉà ¥ÁªÀw ªÀiÁqÀÄvÉÛãÉAzÀÄ ºÁUÀÆ gÀ¸ÛÉ ªÀÄvÀÄÛ GzÁå£ÀªÀ£ÀUÀ¼À d«ÄãÀߣÀÄß E£ÀÄß ºÀ¢£ÉÊzÀÄ ¢£ÀUÀ¼Æ É ¼ÀUÁV ¥Áæ¢üPÁgÀPÌÉ ºÀ¸ÁÛAvÀgÀ ªÀiÁqÀ®Ä vÀ¦àzÀÝ°è vÁªÀÅ ¥Áæ¢üPÁgÀzÀ ¤AiÀiÁªÀĪÀ½UÀ¼À ¥ÀæPÁgÀ ¸ÀÆPÀÛ PÀæªÄÀ vÉUÉzÀÄPÉƼÀÀÄzÁVzÉ."

16. After which, the petitioner again represents

to the Planning Authority on 28.07.1995. This

representation comes about in the wake of the Planning

Authority declining to grant commencement certificate

to the purchasers of the site in the layout formed by the

original petitioner. The representation reads as follows:

"EAzÀ, PÉ.J¸ï.gÁdÄ ªÀiÁf £ÀUÀgÀ ¸À¨sÁ ¸ÀzÀ¸åÀ gÄÀ ªÀÄAqÀå.

UÉ, DAiÀÄÄPÀÛgÀÄ,

ªÀÄAqÀå £ÀUÀgÁ©üªÀÈ¢Ý ¥Áæ¢üPÁgÀ, ªÀÄAqÀå.

ªÀiÁ£ÀågÉ,

ªÀÄAqÀå ¹n, ¸ÀĨsÁµÀ£ÀUÀgÀ PÉ.Dgï. gÀ¸ÛÉAiÀÄ°è ªÁ¸ÀªÁVgÀĪÀ PÉ.¹zÉÝÃUËqÀgÀ ªÀÄUÀ£ÁzÀ PÉ.J¸ï.gÁdÄ §gÉzÄÀ PÉÆAqÀ Cfð.

K£ÉAzÀgÉ, QgÀAUÀAzÀÆgÀÄ UÁæªÀÄzÀ ¸ÀªÉð £ÀA.225:1 gÀ°è 2 JPÀgÉ 11 UÀÄAmÉ d«ÄäzÀÄÝ 81gÀ°è C£ÁåPÁæAvÀ ªÀÄAdÆgÁV 82gÀ°è £ÀUÀgÀ¸À¨sÉUÉ C©üªÀÈ¢Þ ±ÀÄ®Ì ¸ÀĪÀiÁgÀÄ 40 ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÄÀ ß PÀnÖ £ÀªÀÄä £ÀªÀÄä ºÉ¸ÀjUÉ SÁvÉAiÀÄÄ PÀÆqÀ DVgÀÄvÉÛ. ªÀÄvÀÄÛ ªÀÄAqÀå £ÀUÀgÁ©üªÀÈ¢Þ ¥Áæ¢üPÁgÀPÌÉ 27800 gÀÆ GvÀÛªÄÀ ±ÀÄ®Ì ªÀÄvÀÄÛ ¥Àj²Ã®£É ±ÀĮ̪À£ÀÄß PÀÆqÀ PÀnÖgÄÀ vÉÛ »ÃVgÀĪÀ°è ¸ÁªÀðd¤PÀjUÉ ¸ÀܼÀªÀ£ÀÄß PÁ¢j¹gÀĪÀÅ¢®è JAzÀÄ DgÀA¨sÀzÈÀ rüÃPÀgÀt ¥ÀvæÀ ¤ÃrgÀĪÀÅ¢®è »ÃVgÀĪÀ°è £ÀUÁgÁ©ªÀÈ¢Þ ¥Áæ¢üPÁgÀzÀ DAiÀÄÄPÀÛgÀÄ f¯Áè¢üPÁjUÀ¼ÀÄ ºÁUÀÆ £ÀUÀgÀAiÉÆÃd£À¥Áæ¢üPÁgÀzÀ C¹¸ÉÖAmï qÉÊgÉPÀÖgï ªÀÄvÀÄÛ CA¢£À ªÀiÁf £ÀUÀgÀ¸À¨Ás CzsÀåPëÀgÄÀ £ÀUÀgÀ AiÉÆÃd£É ¥Áæ¢üPÁgÀzÀ ¸ÀzÀ¸ÀågÁzÀ JA.PÉ.gÁªÀÄ°AUÉÃUËqÀgÄÀ r.¹.AiÀĪÀgÀ ºÀwÛgÀ ZÀZÉð £Àqɹ ¥ÀƪÀðPÉÌ ªÉÄîÌAqÀªÀgÀ ¸À®ºÉAiÀÄAvÉ 60 40 3 ¸ÉÊlÄUÀ¼À£ÀÄß ¥À©èPï ¥À¥ìÀðUÉ ©lÄÖ PÉÆqÀĪÀAvÉ ¸ÀÆa¹gÀÄvÁÛgÉ CzÀgÀAvÉ 3 ¸ÉÊlÄUÀ¼À£ÄÀ ß ¸ÁªÀðd¤PÀ G¥ÀAiÉÆÃUÀPÌÉ ©nÖgÀÄvÉÛãÉ. DzÀÄzÀjAzÀ ¥ÀævÉåÃPÀªÁV £ÀUÀgÀ¸À¨sÉAiÀÄ°è SÁvÉAiÀiÁVgÀĪÀ J¯Áè ¥ÀæPÀgÀtUÀ½UÀÆ DgÀA¨sÀzÀÈrüÃPÀgÀt ¥ÀvÀæ PÉÆr¹ PÉÆqÀ¨ÉÃPÉAzÀÄ PÉýPÉƼÀÄîvÉÛãÉ."

17. The petitioner in the aforesaid representation

again undertakes that 3 sites measuring 60 x 40 would

be given away for the public purpose and sought that

the commencement certificate be issued to the

purchasers of the property. This was the last

communication from the hands of the petitioner to the

Mandya Urban Development Authority.

18. Pursuant to the aforesaid communication,

the City Municipal Council took over the property

measuring 120 x 70 to its fold on 29.09.1995 as could

be seen from Annexure-R13. After this the City

Municipal Council has constructed a overhead tank for

public purpose. After about 9 years, the petitioner

stakes a claim that he has not relinquished the said

property and reclaims the same by seeking restoration

of khata at the hands of the City Municipal Council.

That having not been considered, has driven the

petitioner to this Court as stated hereinabove.

19. The subsequent writ petition rendered a

clear finding that, if the area is not reserved for park,

then the authorities would be obliged to acquire the

property in a manner known to law. Respondent No.1 -

the Deputy Commissioner renders a finding that it was

infact rendered for a park on the relinquishment of the

petitioner though not on the strength of a deed of

relinquishment, but on the aforesaid documents which

in unequivocal terms divulge that the petitioner did

relinquish the property for the purpose of civic

amenities, roads or park as the case would be. The mere

fact that the deed of relinquishment is not executed by

the original petitioner in favour of the Planning

Authority or the City Municipal Council would not

render the order passed by the Deputy Commissioner

illegal or enure to the benefit of the petitioner to reclaim

the said property that he had with eyes wide open

relinquished, which ought to have been legally done as

well.

20. It is apposite to refer to the judgment of the

Co-ordinate Bench of this Court in the case of M/S.

BHAVANI HOUSING CO-OPERATIVE SOCIETY

LIMITED V. BANGALORE DEVELOPMENT AUTHORITY

AND ANOTHER1, has held as follows:

"21. From the above discussion, it is clear that the petitioner's society is bound to hand over the 'CAS' in question in favour of the 1st respondent-authority by way of relinquishment, as agreed by it while getting the sale deed executed in its favour from the BDA. Added to it, that is the requirement of law also, as contemplated U/S. 32(5) of the Act. Thus it is necessary that the petitioner be directed to comply with the said contractual and statutory obligations. However, in the case on hand, no such relinquishment deed is executed by the petitioner in favour of the BDA. But the B.D.A., suo-moto took possession of the 'CAS' in question under mahazar dated 3-12-2001 and leased the same in favour of the 2nd respondent Trust for construction of school building. As the 'CAS' in question is not relinquished by the petitioner in favour of 1st respondent authority, it cannot and consequently should not have leased the same in favour of the 2nd

ILR 2006 KAR 1352

respondent-Trust. It is also not in dispute that in pursuance of the lease deed executed by the BDA and after taking possession, the 2nd respondent-Trust has already started construction of school building by investing huge amounts. In view of my finding that the 'CAS' in question was leased by the 1st respondent in favour of the 2nd respondent for a period of 30 years on receipt of adequate amount of consideration and after due publicity as required by law, I deem it proper to safeguard the interests of the BDA as well as the 2nd respondent-Trust which is constructing the school building, by said process, the loss of public property will be prevented. In view of the same, the following order is made.

(a) The decision taken by the BDA dated 3-10-2002 to execute the lease deed in respect of Civic Amenity Site situated in Bhavani House Building Co-operative Society, Banashankari-III Stage, Bangalore in favour of the 2nd respondent is quashed.

(b) The petitioner is directed to relinquish the Civic Amenity Site situated in Bhavani House Building Co-operative Society Layout, Banashankari-III Stage, Bangalore as per the terms of the sale deed dated 24-10-1998 (Vide Annexure-C) within two months from today in favour of BDA.

(c) The 1st respondent BDA shall thereafter lease the said schedule 'CAS' in favour of the 2nd respondent-Trust by executing fresh lease deed without any delay, on the same terms and conditions as contained in the lease deed dated 27-2-2003 vide Annexure-K."

This Court in the case of Bhavani Housing Co-

operative Society Ltd. (supra) had while observing that

the BDA had suo-moto taken possession of the property

without deed of relinquishment directs that the deed of

relinquishment be executed by the Society therein on

the ground that relinquishment of the area for civic

amenity is in tune with law when a private layout is

formed.

21. It is not in dispute that the petitioner did

form a layout and did relinquish the said area of 120 x

70. The plan that respondent No.1 - the Deputy

Commissioner refers to is the one that is produced by

the Planning Authority as Annexure-R17, which bears

the signature of the petitioner and also bears the area of

120 x 70 being reserved for a park. It is this plan, on

the strength of which, the petitioner has formed a layout

and sold the sites in the layout.

22. After having sold the sites in the layout in

terms of the modified plan, it would not be open to the

petitioner to contend that he has not relinquished the

said area in the layout and stake a reclaim to the said

property. Though the order of respondent No.1 - the

Deputy Commissioner does not bear complete

consideration of the facts, but the documents that are

placed to demonstrate the conduct of the petitioner after

having relinquished and wanting to wriggle out of such

relinquishment, the matter need not be referred back to

respondent No.1 - the Deputy Commissioner to afford

an opportunity to the petitioner, as on the sheer

conduct of the petitioner, who has given up his right

and wants to reclaim it on the plea that the statute

prescribes that a deed of relinquishment has to be

executed for relinquishing the said property and that

having not been done, he still continues to be the owner

of the property.

23. The afore-narrated facts would in

unequivocal terms indicate that the petitioner after

having relinquished is now wanting to reclaim the said

property. The judgment in the case of Bhavani Housing

Co-operative Society Ltd. (supra) covers the issue in

the case at hand on all its fours.

For the aforesaid reasons, the writ petition lacks

merit and is dismissed.

Sd/-

JUDGE

SJK