Whitefield Rising Trust vs State Of Karnataka
2023 Latest Caselaw 6845 Kant

                               1
                                                                      R
     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 27TH DAY OF SEPTEMBER, 2023

                           PRESENT

 THE HON'BLE MR.PRASANNA B.VARALE, CHIEF JUSTICE

                              AND

           THE HON'BLE MR.JUSTICE M.G.S.KAMAL

      WRIT PETITION NO.11265 OF 2023 (LB-BMP-PIL)

BETWEEN:
WHITEFIELD RISING TRUST
A CHARITABLE TRUST REGISTERED UNDER
SECTION 12 AA(1)(b)(i) OF THE INCOME TAX ACT, 1961.
HAVING ITS REGISTERED ADDRESS AT:
NO. 7, SIGMA SOFT TECH PARK,
5TH FLOOR, BETA BLOCK,
WHITEFIELD MAIN ROAD, VARTHUR KODI
BENGALURU-560 066
REPRESENTED BY ITS TRUSTEE
MR. AJIT SEQUEIRA.
                                                      ...PETITIONER

(BY SMT. JAYNA KOTHARI SENIOR ADVOCATE A/W
     SRI. NAVEEN CHANDRA V., ADVOCATE)

AND

1.    STATE OF KARNATAKA
      DEPARTMENT OF URBAN DEVELOPMENT
      M.S.BUILDING
      AMBEDKAR VEEDHI,
      BENGALURU - 560 001.
      REPRESENTED BY ITS CHIEF SECRETARY.

2.    BRUHAT BANGALORE MAHANAGARA PALIKE
      NR SQUARE,
      BENGALURU -560 002.
      REPRESENTED BY ITS JOINT COMMISSIONER.

3.    TAHSILDAR
      BENGALURU EAST TALUK,
      KRISHNARAJAPURAM
      BENGALURU -560 036.

4.    DISTRICT COMMISSIONER
      KG ROAD, NEAR DISTRICT REGISTRAR OFFICE
                               2


     AMBEDKAR VEEDHI,
     SAMPANGI RAMA NAGARA,
     BENGALURU-560 009.

5.   ASSISTANT DIRECTOR OF LAND RECORDS
     BENGALURU EAST TALUK, K.R. PURA
     BENGALURU.

6.   SMT. INDIRA DEVI
     W/O MR. NEMI CHAND
     RESIDING AT NO. 53,
     SWAMI KRUPA APARTMENT
     J DASAPPA LAYOUT,
     RAMAMURTHY NAGAR
     BENGALURU-560 016.

7.   SMT. RAMI KANWAR
     W/O HUKAM SINGH RAJPUROHIT
     RESIDING AT FLAT NO.208, 2ND FLOOR,
     GNC WHITE PALMS
     RAMAGONDANAHALLI BOREWELL ROAD
     PHASE 2, WHITEFIELD
     BENGALURU-560 066.

8.   MR. VENKATESH
     S/O VENKATAPPA
     RESIDING AT NO. 1485,
     11TH CROSS, 20TH MAIN,
     HSR LAYOUT, SECTOR-1,
     BEHIND KUBERA TVS MOTORS,
     BENGALURU-560 102.

9.   MR. TAMMAIAH
     S/O LATE ANNAYAPPA,
     RESIDENT OF GUNJUR PALYA,
     GUNJUR VILLAGE,
     VARTHUR HOBLI,
     BENGALURU EAST TALUK,
     BENGALURU-560 087.

10 . MR. BEERANNA
     S/O MOTAPPA,
     RESIDING AT NO. 1015,
     JANATHA COLONY,
     BOMMASANDRA INDUSTRIAL AREA,
     ANEKAL TALUKU,
     BENGALURU-560 099.

11 . MR. KIRAN KUMAR
     S/O LATE Y. NAGARAJ,
     RESIDENT OF GUNJUR PALYA,
                                    3


     GUNJUR VILLAGE,
     VARTHUR HOBLI,
     BENGALURU EAST TALUK,
     BENGALURU-560 087.

                                                     ...RESPONDENTS

(BY SMT. NILOUFER AKBAR, AGA FOR R1, R3 TO R5;
    SRI. N.K. RAMESH, ADVOCATE FOR R2;
    SRI. K.N. PHANINDRA, SENIOR ADVOCATE FOR
    SRI. KARTHIK V., ADVOCATE FOR R6 & R7;
    SRI. V. NAGA REDDY, ADVOCATE FOR R8;
    R10 & R11 ARE SERVED AND UNREPRESENTED)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO a)ISSUE A WRIT, ORDER(s),
DIRECTIONS OR WRIT(s) IN THE NATURE OF MANDAMUS OR ANY
OTHER WRIT DIRECTING THE RESPONDENT NOS.1 TO 3 TO REMOVE
ALL THE ILLEGAL ENCROACHMENTS ON THE LAND IN SURVEY NO.7,
MEASURING 0.22 GUNTAS, IN SIDDAPURA VILLAGE, WHICH IS KNOWN
AS "SIDDAPURA LOTUS POND" AND TO FENCE THE SAID LAND AND
TAKE ALL STEPS REQUIRED TO PROTECT IT FROM ANY FURTHER
ENCROACHMENT AND DESTRUCTION AND ETC.

      THIS PETITION HAVING BEEN HEARD AND RESERVED, COMING
ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, M.G.S.KAMAL J.,
MADE THE FOLLOWING:

                               ORDER

This Public Interest Litigation is filed seeking following

reliefs:

"a) To issue a writ, order(s), directions or writ(s) in the nature of mandamus or any other writ directing the respondent nos.1 to 3 to remove all the illegal encroachments on the land in Survey no.7, measuring 0.22 guntas, in Siddapura village, which is known as "Siddapura Lotus Pond" and to fence the said land and take all steps required to protect it from any further encroachment and destruction.

b) To direct the respondent nos.1 to 4 to take necessary steps to restore the Siddapura Lotus Pond in survey no.7, measuring 0.22 guntas, in Siddapura village to its original state and to revive the same as a water body within a fixed time frame; and

c) To set aside order dated 03/05/2012 bearing

No.L and D (West)/CR, 140/10-11, issued by respondent no.4, produced herein as Annexure-H, granting 0.04 guntas in Survey no.7 as alternative land under Rule 28(A) of the Karnataka Land Grant Rules 1969 read with Rule 97(4) of the Karnataka Land Revenue Rules, 1966 to land losers.

d) To direct the respondent nos.1 to 4, to stop and remove all construction being carried out by respondent nos.6 and 7 of the commercial multi- storeyed complex in 0.04 guntas in Sy.no.7, Siddapura, which is part of the Siddapura Lotus Pond, without any sanctioned plan or approval and to bring back the land to its original position, so that the Siddapura lotus pond may be revived.

e) To set aside order dated 03.08.2022, bearing No.L and D (West)/CR-147/2017-18, issued by Respondent No.4, marked as Annexure-Z, earmarking 0.02 guntas land in Survey No.7 being the Siddapura Pond, as easement.

g) To order an enquiry into the illegal grant and transfer of land in sy.no.7, Siddapura village being the "Siddapura Lotus pond" by an appropriate authority".

2. It is the case of the petitioner that the subject

land where the "Siddapura Lotus Pond" was earlier located

was an important water body, portion of which has been

illegally granted as alternate land under order dated

03.05.2012 issued by respondent No.4, granting 0.04

guntas under Rule 28(A) of the Karnataka Land Grant

Rules, 1969 read with Rule 97(4) of the Karnataka Land

Revenue Rules, 1966 to the land losers. The grantees of

the said land have sold the same which is now acquired by

respondent Nos.6 and 7 in terms of deed of sale dated

16.08.2021. That the respondents 6 and 7 have been

illegally putting up construction on the said land which is a

part of said "Siddapura Lotus Pond".

3. Smt.Jayna Kothari, learned Senior counsel

appearing for the counsel for petitioner taking through the

documents produced along with the writ petition submitted

that;

(a) the google images produced for the period from

2003 till 2010 disclose the existence of the said pond.

(b) That in the revenue records namely RTC extract

produced by the respondent at Annexure-R-2 for the year

1992-93, Col.No.12 indicates that the 22 guntas of land in

Sy.No.7 is referred to as "Mufat Kaval Sarkari Kunte".

(c) She also referred to copy of Akarband register

extract produced Annexure-F to the writ petition wherein

the said 22 guntas of land is shown as 'B' Kharab land.

(d) She also relied upon Rule 21(2) of the

Karnataka Land Revenue Rules, 1966 to submit that 'B'

kharab land is an unarable land reserved for public purpose

and that the aforesaid revenue documents clearly reveal

that the subject land is a tank, falling within the

classification of 'B' kharab land reserved for public purpose.

Thus, she submits that under the provisions of Karnataka

Land Revenue Act and Rules 'B' kharab land which is

reserved for public purpose cannot be made a subject

matter of a grant.

(e) Referring to a communication dated 21.05.2011

produced as Annexure-G wherein the Tahsildar has

submitted the report and proposal before the Deputy

Commissioner, Bangalore Urban District proposing to grant

0.04 guntas of land in Sy.No.7 to the land losers as

alternate land under Rule 28(A) of the Karnataka Land

Grant Rules, 1969 as their lands were utilised for formation

of road, she submitted that Rule 28(A) of the Karnataka

Land Grant Rules does not allow for grant of alternate land

for the purpose as stated in Annexure-G namely 'losing land

for road' widening purposes.

(f) Thus, she submits that grant of 0.04 guntas out

of 22 guntas, which was classified as 'B' kharab earmarked

for public purposes, was illegal.

(g) That the construction of multistoried

commercial complex being carried on by respondents 6 and

7 on the aforesaid 0.04 guntas of land is over the said

Siddapura Lotus Pond and is without any sanctioned plan or

building licence being issued by the competent authority.

(h) Hence, she submits that the petitioners have

raised a serious issue of environmental concern which

would destroy the important water body in the city causing

significant damage to the health and welfare of the

residents violating their fundamental right.

(i) She relied upon following Judgments in support

of her contentions:

1. SARVEPALLI RAMAIAH AND OTHERS VS. DISTRICT COLLECTOR CHITTOOR AND OTHERS, reported in (2019) 4 SCC 500

2. INTELLECTUALS FORUM TIRUPATHI VS. STATE OF A.P. AND OTHERS, reported in (2006) 3 SCC 549

3. JAGPAL SINGH AND OTHERS VS. STATE OF PUNJAB AND OTHERS, reported in (2011) 11 SCC 396

4. HINCH LAL TIWARI VS. KAMALA DEVI AND ORS. reported in (2001) 6 SCC 496.

5. JITENDRA SINGH VS. MINISTRY OF ENVIRONMENT AND OTHERS, reported in (2020) 20 SCC 581.

6. MALLIKARJUNA SWAMY V. STATE OF KARNATAKA AND OTHERS- W.P.NO.46900/2011.

7. P. PRATHAP AND OTHERS VS. STATE OF KARNATAKA- WP.NO.13683-13691/2012.

8. ST. ANNES EDUCATION SOCIETY AND ANR VS. STATE OF KARNATAKA AND ORS- ILR 2002 KAR 4096.

4. Sri.S.S.Mahendra, learned Principal Government

Advocate, Smt.Niloufer Akbar, learned Additional

Government Advocate, submitted;

(a) that 22 guntas of land in Sy.No.7 is classified as

"Mufat Kaval land" as per revenue records and was never

classified as a water body either in the village map or in the

revenue records.

(b) Out of said 22 guntas of land 0.04 guntas i.e.,

one gunta each has been granted in favour of one

Sri.Thammaiah, Sri.Venkatesh, Sri.Beeranna, Sri.Kiran

Kumar, as they had lost their sites in different survey

numbers for formation of drainage in Ashraya Colony

situated at Gunjuru Palya, Varthur Hobli.

(c) The Government by order dated 26.04.2012

accorded sanction for grant as above in exercise of power

under Rule 28(A) of the Karnataka Land Grant Rules, 1969

and consequent order dated 03.05.2012 impugned in the

writ petition has been issued by respondent No.3.

(d) It is submitted that since the land is classified

as Mufat Kaval land in the revenue records it falls within the

scope and ambit of Rule 97 of Karnataka Land Revenue

Rules, 1966 which enables the Deputy Commissioner to

reduce the extent of land in a Mufat Kaval land after

obtaining permission from the Divisional Commissioner.

(e) Thus, they submitted that the grant of one

gunta land each in the names of aforesaid persons was in

accordance with Rule 97 of the Karnataka Land Revenue

Rules, 1966 and Rule 28(A) of the Karnataka Land Grant

Rules, 1969.

(f) That the land grant as above was in the year

2012 and the present petition is filed after lapse of 11 years

when there are series of subsequent transactions in respect

of the said land. Hence they seek for dismissal of the writ

petition.

5. Sri.K.N.Phanindra, learned Senior counsel

appearing for learned counsel for respondents 6 and 7

reiterating the submission made on behalf of respondent-

State as above, further submitted that;

(a) respondents 6 and 7 purchased the sites in terms

of deeds of sale dated 16.08.2021 from erstwhile owners of

the property. That BBMP had issued khatha in their names.

That they have raised loan on the said property by creating

mortgage. Thus, the respondents 6 and 7 are bonafide

purchasers of the land having invested their life time

savings are in the process of developing the same.

(b) Learned Senior counsel submitted that the only

reliance being placed by the petitioners is on the RTC

extract of the years 1991-92 to 1994-95 wherein there is a

stray entry of Mufat Kaval Sarkari Kunte and no such entry

is found in any other revenue records.

(c) Drawing attention of this Court to the village map

produced before this Court, learned Senior counsel pointed

out that pond being referred to by the petitioner is shown in

the land bearing Sy.No.8 and there is no reference of pond

in the land bearing Sy.No.7 measuring 22 guntas.

(d) Referring to Annexure-T a letter dated 04.11.2017

issued by the petitioner-Trust, learned Senior counsel

submits that the petitioner was aware of the fact that only

18 guntas of land had been fenced by the BBMP and not the

entire 22 guntas of land as contended in the petition. He

further contended the petitioner despite having knowledge

of this factual aspect of the matter as early in the year

2017 has now filed the present petition contending that

entire 22 guntas of land in Sy.No.7 is fenced. Thus, he

submitted the petitioner has deliberately attempted to

suppress the facts and mislead this court. Hence, he seeks

for dismissal of the writ petition.

6. Sri.N.K.Ramesh, learned counsel for the BBMP

submits that;

(a) the land in Sy.No.7 do not contain any pond. The

fencing of the land was done to prevent any dumping of

garbage.

(b) He further submits that respondents 6 and 7

are legally bound to put up construction only after obtaining

sanction plan and in compliance of the building bye-laws

and other applicable statutory provisions. He also submits

that BBMP would ensure construction if any by the

respondents 6 and 7 will have to be in compliance with the

provisions of law.

7. Heard and perused the records.

8. The thrust of the submission of the learned Senior

counsel appearing for the petitioner is that Siddapura Lotus

Pond is situated within 22 guntas of land in Sy.No.7. That

in the Akarband register produced at Annexure-F the said

land has been classified as B kharab land and the same is

found mentioned in the RTC extract produced by

respondent-State at page No.16 for the years 1991-92 to

1996-97 wherein there is a mention in column No.12 with

regard to "Mufat Kaval Sarkari Kunte". That in terms of

Rule 21(2) of the Karnataka Land Revenue Rules, 1966,

since the said land was a water tank it was classified as B

kharab unfit for agriculture and is reserved for public

purpose. Since land reserved for public purpose cannot be

granted even under Rule 28(A) of the Karnataka Land Grant

Rules, 1969 the respondent authorities could not have

resorted to Rule 97(A) of the Karnataka Land Revenue

Rules, 1966 to grant 0.04 guntas of land in favour of

private persons. Learned Senior counsel also relied upon

relevant provisions of law and certain decisions on the

issue.

9. There cannot be any dispute with regard to the

fact that natural water bodies require protection,

preservation and restoration in larger environmental and

public interest. However, it needs to be seen in the instant

case if the said 22 guntas of land Sy.No.7 is/or was a water

tank area as contended by the petitioner. As noted above,

except copy of Akarband and copy of RTC extract for the

years 1991-91 to 1996-97 there are no other revenue

records furnished by the petitioner to justify its claim of the

subject land being water tank. Reliance placed on the

picture purportedly taken from google earth images cannot

be relied upon.

10. This Court had directed the respondent authorities to

furnish the records pertaining to the subject land accordingly on

07.08.2023 had placed on record the original RTC extracts

pertaining to subject land. A close scrutiny of RTC extracts

produced for the years 1970-71 to 1974-75 onwards in respect

of Sy.No.7 of Siddapura Village, Varthur Hobli, Bangalore South

Taluk reveal that consistently in Col.No.9 there is reference of

land being "Mufat Kaval" and the same being cultivated by one

Hanumanthappa. It is only in the RTC extract for the years

1991-92 to 1994-95 there is a mention of "Sarkari Kunte" along

with reference to "Mufat Kaval". There are no other records

indicating mention of Sarkari Kunte except this copy of RTC

extract.

11. Further on perusal of the village map it is seen that

kunte/water tank is shown to be existing in the land in Sy.No.8

which is adjoining the land in Sy.No.7. Learned counsel for the

petitioner sought to contend that village map has no evidentiary

value and no presumption can be drawn regarding contents of

the same. Therefore, she submitted that in the light of existence

of entries in Akarband and in the RTC extracts of the years 1991-

92 wherein there is a reference to "Sarkari Kunte" the

presumption of its existence has to be drawn in favour of the

petitioner.

12. In response Sri.K.N.Phanindra, learned Senior

counsel referred to chapter 11 of the Karnataka Land Revenue

Rules wherein Rule 73 and Rule 82 refers to village map. As

rightly contended by learned Senior counsel village map is the

basis on which the entries in the revenue records are made.

Therefore, the contention of learned counsel for the petitioner

that the village map has no evidentiary value cannot be

accepted. That apart as already noted in the RTC extracts from

the year 1970-71 onwards there is consistent reference to land in

Sy.No.7 measuring 22 guntas as "Mufat Kaval" which means land

for free pasturage.

13. When it is clear from the records produced by the

parties and respondent authorities that the Kunte/tank is

situated within land in Sy.No.8, the question of validity or

otherwise of the grant of 0.04 guntas of land from and out of 22

guntas of land in Sy.No.7 in favour of private parties by the

authorities becomes insignificant for the purpose of adjudication

of present lis, inasmuch as the primary contention of the

petitioner is that "Siddapura Lotus Pond" is situated in the canal

in Sy.No.7, which they failed to establish.

14. Though learned Senior counsel for the petitioner

sought to contend that even if the land is classified as "Mufat

Kaval"/"Pasturage" same cannot be granted even under Rule

28(A) of the Karnataka Land Grant Rules read with Rule 97 of the

Karnataka Land Revenue Rules in as much as according to

learned Senior counsel only if grantees' land is utilized for the

purposes enumerated under Rule 97(4) can the authorities grant

the land as an alternate and in the instant case there is no such

grounds made out by the respondents justifying the grant. This

submission cannot be countenanced for, firstly the contention of

the petitioner that the pond is situated in 22 guntas of land in

Sy.No.7 has been negated in view of the records evidencing said

land to be "Mufat Kaval" and that the pond was in Sy.No.8.

Secondly, Rule 97 of Karnataka Land Revenue Rules, 1966

makes a provision for reduction of land reserved for pasturage

and distribution of portion of it for house sites to the site less

persons. Rule 28A of the Karnataka Land Grant Rules, 1969 also

provides for grant of land in exchange for the land relinquished.

In that relinquishment of land for the purpose of pathway is one

of the purposes enumerated thereunder. In the instant case

0.04 guntas of land has been granted in lieu of utilization of the

land of the grantees for the purpose of widening of road and

formation of drainage. In any event since we have already

opined that the pond is not existing in 22 guntas of land in

Sy.No.7, further probe into the matter of grant would be a futile

exercise.

15. On 07.08.2023 on a query by this Court as to

whether a sanctioned plan has been issued by the BBMP for

construction of building by respondents 6 and 7, it was

submitted by the counsel for respondents 6 and 7 and

respondent -BBMP that there is no sanctioned plan. Further

learned Senior counsel for the respondents 6 and 7 on

instruction submitted that respondent Nos.6 and 7 will not

carryout any construction on the subject property until

further orders of this Court and that they would approach

respondent No.2 for sanction of building plan. Counsel for

respondent -BBMP had submitted that if such an application

is filed BBMP would consider the same in accordance with

law. In view of these submissions, notwithstanding the

findings regarding non-existence of tank within 22 guntas

of land in Sy.No.7, it is made clear that while considering

the application for issuance of sanction plan concerned

authorities of BBMP shall ensure due compliance with

regard to all applicable laws including buffer zone relating

to water tank/pond if any.

With the above observations, writ petition stands

dismissed.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

SBN