Bangalore Development Authority vs Sri A Krishnappa S/O Late Ajjappa
2023 Latest Caselaw 316 Kant

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                                                  RFA No. 1615 of 2006




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 5TH DAY OF JANUARY, 2023

                                      BEFORE
                    THE HON'BLE MR JUSTICE N S SANJAY GOWDA


                    REGULAR FIRST APPEAL NO. 1615 OF 2006 (DEC)


             BETWEEN:

             BANGALORE DEVELOPMENT AUTHORITY
             HAVING ITS OFFICE AT T.CHOWDAIAH ROAD,
             BANGALORE
             (REPRESENTED BY ITS COMMISSIONER)

                                                          ...APPELLANT

             (BY SRI. G.M.ANANDA, ADVOCATE)

             AND:

             SRI A KRISHNAPPA
             SON OF LATE AJJAPPA,
             AGED ABOUT 57 YEARS
             RESIDING AT NO.1475/29
             SOUTH END B MAIN
Digitally    9TH BLOCK, JAYANAGAR,
signed by
PANKAJA S    BANGALORE-69
Location:
HIGH COURT                                              ...RESPONDENT
OF
KARNATAKA    (BY SRI. RAVI H.K. FOR SRI. H. KANTHARAJA, ADVOCATE)

                                       ****
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                                      RFA No. 1615 of 2006




     THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE, 1908,
PRAYING TO CALL FOR THE RECORDS IN O.S.15176/2004 ON
THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE; SET ASIDE THE JUDGMENT
AND DECREE, DATED 28-3-2006 IN O.S.NO.15176/2004
PASSED BY THE XXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE, IN SO FAR AS IT RELATES TO
GRANT OF PERMANENT INJUNCTION IN FAVOUR OF THE
RESPONDENT/PLAINTIFF AND PASS/GRANT SUCH OTHER
RELIEFS/ORDERS AS THE COURT DEEMS FIT TO PASS/GRANT
IN THE CIRCUMSTANCES OF THE CASE WITH COSTS
THROUGHOUT IN THE INTERESTS OF JUSTICE AND EQUITY.

     THIS RFA COMING ON FOR FINAL HEARING, THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

This is an appeal by the defendant-BDA.

1. The respondent/ plaintiff filed a suit to declare

that the building constructed on property bearing Khata

Nos.23 and 24 situate at Industrial Area, III Phase, J.P.

Nagar, Bangalore, totally measuring 39,806 sq.ft. was in

accordance with law, by virtue of the sanctioned plan

issued by the BDA. A consequential decree of permanent

injunction was also sought for against the defendant.

RFA No. 1615 of 2006

2. It was the case of the plaintiff that Sy.No.105/2,

measuring 3 acres situate at Nainappanashettypalya,

Begur Hobli, Bangalore South Taluk was the property of

one Muninanjappa and he had gifted the property to

J.Ajjappa under the registered Gift Deed dated

06-03-1931 and J. Ajjappa had thus become the absolute

owner of the said property. It was also stated that the

khata of the said property was also registered in his name.

It was contended that J. Ajjappa wanted to form a Layout

of Industrial sites and he had, therefore, applied to the

BDA for grant of an 'NOC' for conversion of the land from

agricultural to industrial purposes and the BDA by its letter

dated 06-07-1972 had recommended to the Deputy

Commissioner to grant conversion.

3. It was stated that pursuant to the said

recommendation, the Deputy Commissioner had granted

permission by his Official Memorandum dated 09-10-1972

and had permitted J. Ajjappa to use the land for non-

RFA No. 1615 of 2006

agricultural industrial purpose. It was stated that J.

Ajjappa was also called upon to pay a sum of `4,000/- per

acre as conversion fine. It was also stated that

subsequently, J. Ajjappa was exempted from payment of

conversion fine as he was an ex-serviceman.

4. It was stated that J. Ajjappa had applied to the

BDA for grant of approval for formation of Industrial

Layout and the said request was considered by the Board

in its meeting dated 10-07-1974 and an approval was

accorded. It was stated that thereafter the Board had also

addressed a letter dated 26-08-1974 to J. Ajjappa,

informing him that approval had been accorded for

formation of site Nos.21, 22, 23 and 24, each of which

measuring 110 ft.x 150 ft and was comprised in Survey

No.105/2.

5. It was stated that J. Ajjappa was called upon to

pay Layout charges of `51,333/- calculated at the rate of

`7/- per sq. yard and Ajjappa had requested the Board to

RFA No. 1615 of 2006

waive the Layout charges and his request was favourably

considered and only Development charges of `3.50 per sq.

yard was to be collected from Ajjappa. It was stated that

the Government of Karnataka, by an order dated

15-07-1975 had also accorded sanction to the proposal of

the Board to collect the Development charges only to the

extent of `3.50 per sq. yard instead of `7/- per sq. yard.

6. It was stated that Ajjappa was called upon to

deposit an advance Development charges of `25,666-50

on the sital area of 7,333.30 sq. yard and he was also

called upon to execute an agreement in favour of the

Board and accordingly, Ajjappa had paid the said amount

and also executed an agreement on 19-07-1976 in favour

of the BDA. It was also stated that the agreement was also

registered and thereafter the BDA supervised the

formation of the Industrial Layout and had granted an

approved Layout plan to Ajjappa on 02-11-1976. It was

contended that as per the approved plan, Ajjappa was

RFA No. 1615 of 2006

required to form four sites bearing Nos.21, 22, 23 and 24

and one of the conditions was that he should not alter the

dimensions or increase the number of sites. It was stated

that Ajjappa formed four industrial sites as per the

approved plan.

7. It was stated Ajjappa ultimately passed away on

21-02-1978, leaving behind him his two sons

A. Munikempanna (who was the brother of the plaintiff)

and A. Krishnappa, who had inherited the four sites.

8. It was also stated that on coming into force of the

Urban Land (Ceiling and Regulation) Act, 1976 (for short

"ULC Act") A. Krishnappa, the son of Ajjappa had sought

for and was granted exemption as contemplated under the

ULC Act by the Government, under an order dated

16-01-1979. It was also stated that the proceedings

initiated by the Deputy Commissioner, notwithstanding the

exemption, was also dropped on 09-04-1987.

RFA No. 1615 of 2006

9. It was stated that the khata of the four sites

bearing No.21, 22, 23 and 24 was made out in the name

of A. Krishnappa, since the other son A. Munikempanna

had passed away and A Krishnappa had accordingly

continued to pay taxes in respect of these four sites. It

was also stated that all these four sites coming within the

purview of the Corporation limits, the khata was also

registered in the name of A.Krishnappa by the Bangalore

City Corporation.

10. It was stated that there was a partition amongst

A. Krishnappa and the children of A. Munikempanna (the

brother of A.Krishnappa) and in the said partition, two

sites were allotted to the plaintiff which were the suit

schedule property. It was thus contended that the plaintiff

was the absolute owner of the suit property.

11. It was stated that the plaintiff had also applied

to BDA for sanction of an Industrial plan, which was also

sanctioned on 29-07-1982 in respect of site No.24 and in

RFA No. 1615 of 2006

accordance with the said sanction plan the plaintiff had put

up a construction and was running a Small Scale Industry,

in respect of which he was also sanctioned power to the

extent of 25 HP by the KEB. It was thus contended that

plaintiff was the absolute owner of the property and was in

lawful possession. It was stated that despite these facts,

the officials of the BDA sought to interfere with the

possession of the plaintiff, which constrained the plaintiff

to file the present suit.

12. The said suit was contested by the BDA by filing

a detailed written statement. The BDA contended that the

land bearing Sy.No.105/2 of Nainappanashettypalya was

notified for acquisition by the erstwhile City Improvement

Trust Board (CITB), under a preliminary Notification dated

30-11-1967 and was also followed by a declaration dated

27-05-1970. It was stated that the notified khatedar of

Sy.No.105/2 was J. Ajjappa, the father of the plaintiff and

an award was also passed in respect of this land and

RFA No. 1615 of 2006

vacant possession was taken and handed over to the

Engineering Section on 28-07-1971 for formation of a

Layout called 'Sarakki Layout' between K.R.Pura Road and

Bannerghatta Road. It was stated that the Layout was

formed in the area and the land in question stood vested

with the BDA free from all encumbrances.

13. It was contended that the plaintiff's father had

written to the authorities by suppressing the entire

acquisition proceedings and by making false

representations had obtained permission. It was stated

that BDA had an absolute right over the property and

had issued a Notification to cancel the resolution approving

the Industrial Layout in the said land on the ground that

Ajjappa had suppressed the actual facts. It was stated that

there was no order de-notifying the land or canceling the

acquisition and hence the property continued to vest in the

BDA. All other averments made by the plaintiff were

denied.

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RFA No. 1615 of 2006

14. The Trial Court framed six issues and an

additional issue.

15. On behalf of the plaintiff, plaintiff examined

himself as PW-1 and exhibited thirty-six documents, while

on behalf of the BDA, three witnesses were examined and

five documents were exhibited.

16. On an analysis of the evidence and the

pleadings, the Trial Court has recorded a finding that the

plaintiff was in lawful possession of the suit property and

has also held that the BDA had proved that the suit

schedule property was a portion of Sy.No.105/2 of

Nainappanashettypalya (now N.S. Palya) and had been

acquired by them. The Trial Court has come to the

conclusion that the suit was not bad for non-issuance of

statutory notice and also held that the suit of the plaintiff

was maintainable. The Trial Court has recorded a finding

that the plaintiff had failed to prove that he had put up the

construction as per the sanctioned plan issued by the BDA

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RFA No. 1615 of 2006

and therefore was not entitled for the declaration sought

for.

17. Learned counsel appearing for BDA, Sri. G.M.

Ananda, strenuously contended that the judgment of the

Trial Court cannot be sustained, since essentially, the Trial

Court was determining the validity of acquisition which had

not been challenged either by the plaintiff or by his father.

He contended that since the plaintiff contended that the

property continued to be in his possession,

notwithstanding the fact that an award had been passed,

the suit basically amounted to testing the validity of the

process of acquisition and therefore the bar for

entertaining the suit as held by the Hon'ble Apex Court in

the case of Commissioner, Bangalore Development

Authority and Another Vs. Brijesh Reddy and Another

reported in (2013) 3 Supreme Court Cases 66 would

stand attracted. Learned counsel submitted that since the

Trial Court had recorded a finding that the land in question

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RFA No. 1615 of 2006

had been acquired in accordance with law, it could not

have granted a decree of injunction.

18. Learned counsel for the respondent/plaintiff

contended that the decree of the Trial Court was just and

proper and did not warrant any interference in appeal. He

submitted that the Trial Court had categorically recorded a

finding that an award had not been passed and since the

award had not been passed, the question of the BDA

taking over possession would never arise.

19. Learned counsel submitted that since the BDA,

in its written statement admitted that it had granted

permission for construction of a building, the BDA was

estopped from contending that the plaintiff was not in

possession. He submitted that having regard to the clear

admission by the official witnesses of the BDA and also the

documentary evidence produced clearly proved the

existence of a structure on the property in question and

the Trial Court was thus justified in granting a decree.

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RFA No. 1615 of 2006

20. At the outset, it is to be stated here that the

plaintiff had sought for a declaration that the building

constructed on the schedule property by virtue of the

sanctioned plan issued by the BDA. This prayer has been

refused by the Trial Court and this has not been

challenged by the plaintiff. Therefore, the only question

that will have to be considered here is as to whether the

Trial Court was justified in granting a decree of injunction

in favour of the plaintiff. The Trial Court while granting the

decree of injunction has recorded a clear finding on the

basis of the deposition of DW-2, which was to the effect

that there was no document with the BDA to show that

compensation was paid in respect of the acquired land.

The Trial Court has also noticed that DW-1 admitted that

the plaintiff had trespassed and constructed a complex in

the remaining area of the site and these two factors

indicated that the physical possession of the suit property

was with the plaintiff.

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RFA No. 1615 of 2006

21. The Trial Court has also recorded a finding that

there was no material to show that the actual physical

possession of Sy.No.105/2 was taken by BDA, and on the

other hand, the plaintiff had furnished tax paid receipts,

plan for constructing the industrial shed and the grant of

licence by the BDA to instal a 25 HP Motor in the premises

and all these documents clearly established that the

plaintiff was in possession of the suit property.

22. It is to be stated here that in the written

statement filed by the BDA, the BDA in fact admitted that

it had granted permission to Ajjappa for formation of an

Industrial Layout. The relevant portion of the written

statement reads as follows:

" The averment made in paras 3 & 4 of the plaint is not within the knowledge of the defendant. The plaintiff's grand father wrote to the authorities by suppressing the notification, acquisition and possession taken of Sy.No.105/2 of N.S. Palya by the defendant. The plaintiff's father by making false

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RFA No. 1615 of 2006

representation and undue influence, obtained the permission. The defendant has got absolute right and issued notification to cancel the resolution for approving the industrial layout in the said land as the plaintiff's father had suppressed the real facts of the land that was taken over by the defendant. Even though the then CITB now the BDA had issued that the land was notified and acquired by the Authority and taken vacant possession by the Authority, without de-notifying and cancelling the acquisition of the property, the conversion obtained by the plaintiff's father was illegal and no right has been acquired by the plaintiff's father to the suit schedule property."

23. As could be seen from the above, the BDA

clearly admitted that the plaintiff's father Ajjappa had

obtained permission by making false representations and

by exercise of undue influence. The BDA also stated that it

had an absolute right to issue a notification to cancel the

resolution passed for approving the Layout plan. This

particular plea by itself tantamounts to an admission of

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RFA No. 1615 of 2006

the plaintiff that permission had been granted by BDA, not

only for conversion of the land but also for formation of

an Industrial Layout. Since the BDA admittedly did not

produce any documents to show that it had cancelled the

resolution which it had passed for approving the Layout

plan, it is obvious that the permission granted by it for the

formation of the layout subsisted and it would therefore

not be open for the BDA to contend that the plaintiff's

father and the plaintiff thereafter are not in possession of

the suit property.

24. DW-1 who was the Junior Engineer of the BDA

has admitted that site No.24 was allotted by the CITB to

Ajjappa. It is to be noticed here that the suit property was

described as Khata Nos.23 and 24 and thus if according to

DW-1, site No.24 had been allotted to Ajjappa, the

possession of the plaintiff over site No.24 cannot be

denied in the light of the registered Partition Deed

executed amongst his family members.

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RFA No. 1615 of 2006

25. DW-1 has further deposed in his cross-

examination as follows:

"... I have inspected the suit schedule property and it is a commercial complex..."

In the light of this clear admission by DW-1 that he

had inspected the suit property and there was a

commercial complex in existence on the said property it is

rather clear that the BDA was not in possession and it was

the plaintiff who was in possession.

26. Apart from the admission in the written

statement and in the deposition, it will also have to be

noticed that an order of conversion has been passed in

respect of Sy.No.105/2 in favour of Ajjappa and BDA,

has, in fact, recommended for conversion and

subsequently granted approval for formation of a Layout

plan as per Ex.P-12. The further fact that the khata in

respect of the land in question has been registered in the

name of the plaintiff for the past several years and that

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RFA No. 1615 of 2006

the plaintiff has been paying the property taxes over a

fairly lengthy period of time clearly and exclusively

establishes that it was the plaintiff who was in possession

of the suit property.

27. The argument of the learned counsel for the BDA

that the suit was not maintainable, in view of the decision

rendered by the Hon'ble Apex Court in Brijesh Reddy's

case (supra), is without any merit. The Supreme Court in

the said case stated that the Civil Court would not have

jurisdiction to give a declaration or even grant an

injunction in respect of invalidity of the procedure

contemplated under the Land Acquisition Act.

28. In the instant case, the plaintiff did not question

the validity or invalidity of the process of acquisition. The

simple case of the plaintiff was that the land was not

acquired and that he was in lawful possession and it was

his further contention that his possession was

acknowledged by BDA by grant of permission to form the

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RFA No. 1615 of 2006

Layout and also for the construction of the structure on

the said property. In that view of the matter, the

judgment relied upon, as stated above, would have no

relevance.

29. In view of the above, in my view, the Trial Court

was perfectly justified in granting the decree of injunction

in favour of the plaintiff. I find no reason to entertain this

appeal and the appeal is accordingly dismissed.

30. In view of disposal of the main appeal, pending

I.A.No.1/2012 for impleading does not survive for

consideration and is accordingly dismissed.

SD/-

JUDGE

BMV*