Karnataka High Court
The Bangalore Development Authority vs Sri Iqbal Hussain on 19 February, 2024
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RFA No. 1917 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1917 OF 2007 (INJ)
BETWEEN:
THE BANGALORE DEVELOPMENT AUTHORITY,
HEAD OFFICE, SANKEY ROAD,
KUMARA PARK (WEST),
BANGALORE - 560 020.
REP. BY ITS COMMISSIONER.
...APPELLANT
(BY SRI. AJAY KUMAR M., ADVOCATE)
AND:
SRI. IQBAL HUSSAIN,
S/O LATE KHAZI ABDUL RAHAMAN,
AGED 53 YEARS,
R/AT NAGAVARA MAIN ROAD,
Digitally signed
by ANNAPURNA ARABIC COLLEGE POST,
G BANGALORE - 560 045.
Location: High REP. BY ZIAULLA KHAN,
Court of
Karnataka G.P.A. HOLDER.
...RESPONDENT
(VIDE ORDER DATED 19.02.2016 NOTICE TO
RESPONDENT IS HELD SUFFICIENT)
THIS RFA IS FILED U/S.96 R/W O XLIII R 1 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 29.03.2007
PASSED IN O.S.NO.9640/1999 ON THE FILE OF THE IX
ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-10),
DECREEING THE SUIT FOR PERMANENT INJUNCTION.
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RFA No. 1917 of 2007
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel for the appellant. None
appears for the respondent.
2. The defendant No.2 before the Trial Court
in O.S.No.9640/1999, is before this Court in appeal
being aggrieved by the judgment and decree dated
29.03.2007 passed by IX Additional City Civil Judge,
Bangalore(CCH-10).
3. The factual matrix of the case is that the
plaintiff approached the Trial Court contending that
the house premises in Sy.No.30/3 of Nagavara Village,
was owned by the plaintiff and his predecessors and a
building bearing No.919/352/40/C was existing in the
same. It is stated in the plaint that the suit schedule
property is part of the original Sy.No.30/3 of Nagavara
Village, which had been notified for acquisition under
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the Karnataka Acquisition of Land for Grant of House
Site Act, 1972.
4. Plaintiff contended that he had formed
revenue sites through his G.P.A. holder one
Mr.Samiulla and most of the purchasers belonged to
the weaker sections of the society. It is contended that
the plaintiff had parted with the possession of the
same by forming several sites to various others. The
plaintiff alleged that the defendant/B.D.A. in the year
1997 had issued a notice under Section 4 of the
Karnataka Public Premises (Eviction of Unauthorised
Occupants) Act, 1974 and the plaintiff had filed
objections to the same. Later the plaintiff had also
applied to the defendant No.2/B.D.A. for allotment of
schedule site in his favour under Section 38(c) of the
B.D.A Act,.
5. It is contended that while these
representation of the appellant/plaintiff were pending,
the B.D.A. authorities came to the site on 20.12.1992
and started to identify the different premises and
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taking measurements and also threatened that the
building may be demolished. There being a cause of
action, he approached Trial Court seeking an
injunction.
6. On appearance, the defendant-B.D.A
resisted the suit and contended that the entire
Sy.No.30/3 at Nagavara Village, is the subject matter
of an acquisition proceeding and therefore, when the
suit schedule property is part of Sy.No.30/3, any suit
before the City Civil Judge, Bangalore is not
maintainable and as such the suit of the plaintiff was
liable to be dismissed. Inter alia, it is also contended
that possession of the suit schedule property was
taken over by the defendant-B.D.A. under a mahazar
and therefore, the acquisition has become final and
plaintiff has no locus standi to appear before the Court
and seek a relief.
7. On the basis of the pleadings by both the
parties the Trial Court framed the following issues:-
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"1.Whether the plaintiff proves his lawful possession
of the suit schedule property on the date of the suit?
2. Whether the plaintiff further process unlawful
interference against the authorities of the 2nd
defendant?
3. Whether the 2nd defendant proves that the suit
schedule property stood vested in the BDA by virtue
of the acquisition proceedings and as such the suit is
not maintainable?
4. Whether the plaintiff is entitled to a decree of
permanent injunction as sought for?"
8. The GPA holder of the plaintiff was
examined as PW1 and the documents Exs.P1 to P5
were marked. The official of the defendant No.2 was
examined as DW1 and another witness was examined
as DW.2, and Exs.D1 to D6(a) were marked.
9. After hearing the arguments, Trial Court
came to the conclusion that plaintiff is in lawful
possession of the suit schedule property and there was
interference by defendant No.2 and as such proceeded
to decree the suit. Inter alia the Trial Court also held
that the defendant No.2 had failed to prove that the
suit schedule property stood vested in B.D.A. by virtue
of the acquisitions proceedings. Being aggrieved by
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the said judgment and decree, B.D.A. is before this
Court in appeal.
10. Learned counsel appearing for the appellant
would contend that there is no material to show that
the suit schedule property is part of the 20 guntas of
land, which was not taken possession of, by the B.D.A.
He submits that though 2 acres 30 guntas was taken
possession of under the mahazar at Ex.D4, there is no
evidence on record to show that suit schedule property
falls within the 20 guntas of the land, which was also
subject matter of the acquisition. It is submitted that
nowhere it is the case of the plaintiff that the suit
schedule property falls within 20 guntas of land of
which the possession was not taken by the defendant
No.2.
11. He relied on the decisions in the case of
I) G.V.REDDY V. MINISTRY OF COMMUNICATION
EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD.,
BANGALORE1, III) STATE OF BIHAR VERSUS
AIROnline 2019 Kar 968
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DHIRENDRA KUMAR AND OTHERS2, AND III)
COMMISSIONER, BANGALORE DEVELOPMENT
AUTHORITY AND ANOTHER V. BRIJESH REDDY AND
ANOTHER3 wherein, it was held that when the
property is subject matter of acquisition proceedings,
the bar contained under Section 9 of CPC is excluded.
It was held that when the acquisition proceedings
were notified, a civil suit is not maintainable. If at all
any relief is to be claimed, it should be based on the
provisions of Land Acquisition Act, and therefore,
present suit could not have been entertained.
12. Obviously, it is an admitted fact that the
suit schedule property was part and parcel of the
acquisition proceedings by the defendant-B.D.A. The
entire 3 acres 10 guntas of land was subject matter of
the acquisition. It may be true that only 2 acres 30
guntas of land was taken possession of by the B.D.A.
The question is whether the remaining portion of the
(1995) 4 SCC 229
(2013) 3 SCC 66
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property was still available for consideration with the
BDA, concerning the representation made by the
plaintiff is a matter, which should be agitated before
the appropriate forum.
13. In the case on hand, the fact that there was
an acquisition proceedings for the entire 3 acres 10
guntas is not in dispute. In that view of the matter,
on the basis of the pleadings itself, the plaintiff could
not have maintained the present suit.
14. The Trial Court observed that the suit
schedule property may be within 20 guntas of land, of
which the possession was not taken. However, there
was no such pleading by plaintiff in the plaint.
Therefore, Trial Court was not proper in venturing to
say that the suit schedule property fell within the 20
guntas of land, of which, the possession was not taken
by the BDA. In that view of the matter, the view of
Trial Court is not sustainable in law and as such the
impugned judgment deserves to be interfered with.
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15. Consequently, the appeal is allowed. The
impugned judgment and decree dated 29.03.2007
passed in O.S.No.9640/1999 by the Trial Court is
hereby set-aside and the suit stands dismissed.
Sd/-
JUDGE
PTM
