Smt Lalitha Devi vs State Of Karnataka
2022 Latest Caselaw 12600 Kant

                           1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF OCTOBER, 2022

                       PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

         WRIT APPEAL NO.1417/2021(LA-RES)

BETWEEN:

1.     SMT. LALITHA DEVI
       W/O ASHOK KUMAR
       AGED ABOUT 55 YEARS.

2.     SMT. USHA
       W/O RAMESH KUMAR
       AGED ABOUT 47 YEARS.

       BOTH RESIDING AT NO.100/5
       BULL TEMPLE ROAD
       BANGALORE - 560 019.

3.     SRI VIBISH PAREKH
       S/O LATE VINOD KUMAR
       AGED ABOUT 34 YEARS
       RESIDING AT 20, 3RD CROSS
       GANDHINAGAR
       BANGALORE - 560 009.

4.     SMT. SUDHA BAI
       W/O RAJENDRA KUMAR
       AGED ABOUT 51 YEARS
       RESIDING AT 4, 4TH CROSS
       GANDHINAGAR
       BANGALORE - 560 009.

       ALL THE APPELLANTS ARE
       REPRESENTED BY THEIR GPA HOLDER
       SRI DINESH CHAND
       S/O LATE MANGILAL S JAIN
                               2

       AGED ABOUT 60 YEARS
       RESIDING AT 20, 3RD CROSS
       GANDHINAGAR
       BENGALURU - 560 009.             ...APPELLANTS

(BY SRI D.N. MANJUNATH, ADV.)

AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY
       PRINCIPAL SECRETARY
       REVENUE DEPARTMENT
       M.S. BUILDING
       BANGALORE - 560 001.

2.     THE COMMISSIONER
       BRUHAT BANGALORE MAHANAGARA
       PALIKE, 3RD FLOOR, ANNEXE
       BUILDING 3, HUDSON CIRCLE
       N.R. ROAD, BANGALORE - 560 002
       OPPOSITE TO LIC BUILDING
       NEAR TOWN HALL

3.     ASSISTANT EXECUTIVE ENGINEER
       BBMP, DASARAHALLI ZONE NH-4
       NEXT TO POST OFFICE
       BANGALORE - 560 057.

4.     ENGINEER IN CHIEF
       BRUHAT BANGALORE MAHANAGARA
       PALIKE, 3RD FLOOR, ANNEX BUILDING 3
       OPPOSITE TO LIC BUILDING
       NEAR TOWN HALL, HUDSON CIRCLE
       N.R. ROAD, BANGALORE - 560 002.

5.     THE EXECUTIVE ENGINEER
       HBR SUB DIVISION
       BRUHAT BANGALORE MAHANAGARA
       PALIKE, 9TH FLOOR, MAYO HALL
       BANGALORE - 560 025.

6.     THE ASSISTANT EXECUTIVE ENGINEER
       BRUHAT BANGALORE MAHANAGARA
       PALIKE, HBR LAYOUT, NEAR BDA
       COMPLEX, BANGALORE - 560 043   ....RESPONDENTS
                             3

(BY SRI B. RAJENDRA PRASAD, HCGP FOR R-1;
SRI. B.S. SATYANAND, ADV., FOR R-2 TO R-6)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 21.10.2021 PASSED BY THE LEARNED SINGLE
JUDGE IN WP 36207/2019 (LA-RES) AND CONSEQUENTLY
DISMISS THE WP AS PER ANNEXURE-A BY ALLOWING THIS
WA BY DIRECTION THE RESPONDENTS TO NOTIFY THE
PROPERTY FORCIBLY TAKEN OVER FOR FORMATION OF ROAD
ON THE PORTION OF THE PROPERTY BEARING Sy No.78/3
PRESENTLY ASSIGNED BBMP CORPORATION NO 609/78/3
MEASURING EAST TO WEST 50 FEET, NORTH TO SOUTH 90
FEET OR 4500 Sq.Ft SITUATED AT NAGARAWARA VILLAGE
KASABA HOBLI BANGALORE NORTH TALUK.

     THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, VISHWAJITH SHETTY J.,      DELIVERED THE
FOLLOWING:

                    JUDGMENT

The unsuccessful petitioners have filed this intra

court appeal challenging the order dated 21.10.2021

passed by the learned Single Judge of this Court in

W.P.No.36207/2019.

2. Heard the learned Counsel for the parties and

also perused the material on record.

3. Facts leading to the filing of this appeal narrated

in brief are, the appellants claim to be the co-owners in

respect of portions of property bearing Sy. No.78/3

measuring 32 guntas and 6 guntas, respectively, having

purchased the same under two separate sale deeds dated

04.11.2004 and 08.12.2004. It is their case that the

respondents have taken forcible possession of the

portions of the aforesaid property for the purpose of

forming the road and no compensation has been paid to

them. It is under these circumstances, they had given

representation dated 05.07.2019 to the respondents,

which was not considered, and therefore, the appellants

had approached this Court in W.P.No.36207/2019

seeking a writ of mandamus to consider their

representation dated 05.07.2019 and also to issue a writ

of mandamus directing the respondents to hold a joint

survey of the property belonging to the appellants so as

to ascertain the area which has been taken over by the

respondents illegally and further to issue a writ of

mandamus directing the respondents to pay

compensation to the appellants under the Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013.

4. The writ petition was opposed by the

respondents by filing statement of objections contending

that they have not encroached upon the property of the

petitioners and had not utilized the petitioners property

for the purpose of widening the road. It was also

contended on behalf of the respondents that the layout

was formed by the Bangalore Development Authority

(BDA) and the roads were subsequently handed over to

Bruhath Bengaluru Mahanagara Palike (BBMP) for the

purpose of maintenance and since the BDA has not been

arrayed as a party to the writ petition, no relief can be

granted to the appellants.

5. The learned Single Judge vide the order

impugned, taking into consideration that there were

disputed questions of fact involved in the case and since

the petitioners had already approached the Civil Court by

filing O.S.No.5711/2016, held that the writ petition

cannot be maintained and has accordingly dismissed the

same. Being aggrieved by the said order, the

unsuccessful petitioners have preferred this appeal.

6. Learned Counsel for the appellants submits that

since the respondents have forcibly taken possession of

the petitioners land, they are bound to compensate the

petitioners. He submits that necessary directions may be

issued to survey the property in question jointly so as to

ascertain whether the respondents have utilized the

petitioners land and in the event it is found that the

petitioners property has been utilized by the

respondents, directions may be issued to pay

compensation in accordance with law.

7. The respondents in their statement of objections

filed before the learned Single Judge have denied the

averments made in the writ petition and they have also

contended that they have not taken over the possession

of the land belonging to the petitioners nor they have

utilized any portion of their land for the purpose of

widening the road. They have also contended that the

layout in question was formed by the BDA and the roads

were thereafter handed over to the BBMP for

maintenance and since BDA is not a party to the writ

petition, no relief can be granted to the petitioners.

8. Having regard to the denial of the fact that the

respondents have encroached petitioners land or made

use of the petitioners land for the purpose of widening

the road, the learned Single Judge has rightly declined to

entertain the writ petition on the ground that there were

disputed questions of fact involved in the petition which

cannot be adjudicated under Article 226 of the

Constitution of India. Further, undisputedly, the

appellants have already approached the Civil Court

seeking necessary reliefs in respect of the very same

lands, and therefore, the learned Single Judge had

refused to entertain the writ petition on the ground that

the appellants cannot initiate parallel proceedings in

respect of the very same lands which are the subject

matter of O.S.No.5711/2016.

9. We do not find any illegality or irregularity in the

said order passed by the learned Single Judge which is

impugned in this writ petition. Accordingly, we decline to

entertain this appeal and the same is therefore

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE KK