Karnataka High Court
The Commissioner vs Smt. B.L. Ramadevi on 7 March, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.5320/2022 (CPC)
BETWEEN:
1. THE COMMISSIONER
BENGALURU DEVELOPMENT AUTHORITY
KUMARA PARK WEST
BENGALURU-560 020. ... APPELLANT
(BY SRI MURUGESH V. CHARATI, ADVOCATE)
AND:
1. SMT. B.L.RAMADEVI
W/O LATE S.M.VENKATPATHI
AGED ABOUT 55 YEARS
RESIDING AT NO.9, 80 FEET ROAD,
HRBR LAYOUT, KALYAN NAGAR
BANGALORE 560043. ... RESPONDENT
(BY SRI THIMMEGOUDA N., ADVOCATE)
THIS M.F.A. IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 24.05.2022 PASSED ON I.A.NO.2 AND IA
NO.3 IN OS.NO. 4415/2020 ON THE FILE OF THE X ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-26,
ALLOWING THE I.A.NO.II FILED UNDER ORDER 39 RULE 1 AND
2 OF CPC, AND REJECTING IA NO.3 FILED U/O.39 RULE 4 OF
CPC.
THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
2
JUDGMENT
Heard the learned counsel for the appellant and learned
counsel for the respondent.
2. This miscellaneous first appeal is filed challenging
allowing of the application-I.A.No.II filed under Order XXXIX
Rule 1 and 2 of CPC on the file of the X Additional City Civil and
Sessions Judge, Bangalore (CCH-26) dated 24.05.2022 and
praying this Court to set aside the impugned order.
3. The factual matrix of the case of the plaintiff before
the Trial Court while seeking the relief of permanent injunction is
that the plaintiff is the owner of the schedule property bearing
No.7, formed in old Sy.No.263/1, re-survey No.286/2 measuring
21,780 square feet situated at P.N.S. Layout, Banaswadi,
Bengaluru with RCC building. It is contended that her deceased
husband Venkatapathi had acquired the said property in a
partition decree in O.S.No.4577/97 and constructed buildings in
the said property by investing huge amount and developed the
same by paying betterment charges and not transferred khatha
into his name and he died on 06.12.2017 and thereafter, the
khatha of the schedule property said to have been transferred in
the name of the plaintiff and she is said to be paying tax to the
BBMP. It is further urged that the entire area in and around the
schedule property came to be developed about decades back
during the lifetime of her father-in-law. It is contended that on
18.09.2020, the officials of the defendant came near the
schedule property and attempted to demolish the structures in
the said property highhandedly and though at that time, the said
illegal acts were resisted and stopped by the plaintiff and the
neighbours, the defendant has been threatening her of
demolishing the existing structures on the schedule property.
Hence, she has filed an application under Order XXXIX Rule 1
and 2 of CPC to restrain the defendant from demolishing the
existing structure put up on the schedule property, till the
disposal of the suit.
4. In pursuance of the suit summons, the defendant-
BDA appeared and filed the statement of objections to I.A.No.II
and also filed an application in I.A.No.III under Order XXXIX
Rule 4 of CPC seeking to vacate the interim order of status-quo
granted by the Trial Court. It is the contention that defendant is
not the owner of the property and property was acquired long
back and the entire Sy.No.286/2 has been acquired by the
defendant for formation of layout and now the defendant is the
owner and plaintiff is attempting to seek adjudication of the
acquisition proceedings which is not maintainable and the suit is
not maintainable against the acquired property and contend that
preliminary notification was issued in 1977 and final notification
was also duly notified publicly on 12.06.1980. In pursuance of
the said paper publication, the khatedar A. Muniswamy filed his
claim petition on 02.07.1981 and subsequently, the award was
passed by the LAO on 29.11.1982.
5. It is also contended that already layout has been
formed and possession is also taken and property in suit survey
number has been vested in the defendant. The defendant also
denied the alleged acquisition of the schedule property by the
husband of the plaintiff in a partition proceeding in
O.S.No.4577/1997 as claimed by her and also denied that her
husband constructed school and residential building on the
schedule property. It is contended that in view of the acquisition
proceedings, it has the authority to collect betterment charges.
The BBMP has no jurisdiction to issue khatha to third parties by
collecting such charges and transfer the property in favour of the
plaintiff and the question of collecting the tax also does not arise
and the same will not create any right.
6. The Trial Court, having considered the pleadings of
the parties, formulated the points whether the plaintiff has made
out a prima facie case, balance of convenience and to whom the
irreparable loss or hardship would be caused, in case of grant or
refusal of temporary injunction. The Trial Court, having
considered the material on record, comes to the conclusion that
the material prima facie reveals that there has been acquisition
proceedings in respect of acquired suit land as per the records.
But, the defendant has not placed any material before the Court
whether the said scheme of acquisition has been implemented
by it and all these disputed aspects certainly require enquiry and
trial. Hence, the plaintiff has made out a prima facie case to
conduct a trial and mere making out prima facie triable case is
not sufficient, since the plaintiff is further required to make out
prima facie grounds to seek the temporary injunctive relief.
7. Having considered the material on record, the Trial
Court comes to the conclusion that the plaintiff and her sons
have challenged the acquisition proceedings in
W.P.No.10632/2020 and status-quo order has been passed in
the said writ petition and writ proceedings is still pending. The
Trial Court also comes to the conclusion that the other
documents which are produced by the plaintiff is clear that
electricity is provided to the building and also permission is given
to run the college in the schedule premises in the year 1998 and
comes to the conclusion that there is a prima facie case and
balance of convenience in favour of the plaintiff and allowed the
application restraining the defendant not to demolish the existing
structure put up on the suit schedule property, till the disposal of
the suit. It is also mentioned that the said order is subject to
cancellation, variation or modification, if necessary during the
course of the proceedings. Being aggrieved by the said order,
the present appeal is filed before this Court
8. It the contention of the learned counsel for the
appellant that the very suit is barred under Section 9 of CPC. It
is also contended that plaintiff herself has mentioned that
schedule property is situated at Sy.No.286/2 and entire said
survey number was acquired and acquisition has also attained its
finality. It is also contended that the Trial Court committed an
error in coming to the conclusion that adjudication of a title
could be looked into during the course of trial and the same is
contrary. Learned counsel also would contend that the Trial
Court committed an error in ignoring the decision rendered by
this Court and also the Apex Court. When the suit itself is not
maintainable, the question of granting the interim order does not
arise, that too in a suit for permanent injunction. Hence, it
requires interference of this Court and the very approach of the
Trial Court is erroneous.
9. Learned counsel for the appellant during the course
of argument produced some photographs and contend that
recently, the plaintiff has made construction taking advantage of
the status-quo order and contend that the very construction
made in the suit schedule property is illegal. In support of his
argument, he also relied upon the order passed in
W.P.No.10632/2020 dated 13.02.2023 which was disposed
of with a direction to vacate the premises within a period of two
years three months, subject to filing an affidavit within four
weeks undertaking to quit the property accordingly. But, the
respondent did not comply with the said order and instead, filed
an appeal in W.A.No.301/2023 dated 27.09.2023 and in the
writ appeal also, this Court elaborately discussed the same and
also an observation is made that already acquisition proceedings
was completed and observed that the appellants who claimed to
have put up the construction of building to accommodate the
school and have contended that they have not received any
compensation and that they would forego their claim for
compensation, if the respondent-BDA considers the matter.
Without expressing any view on this aspect of the matter, it is
made clear that notwithstanding dismissal of this writ appeal,
the appellant/petitioner is at liberty to approach respondent-BDA
to seek redressal of their grievance and respondent-BDA may
consider the same, if permissible in accordance with law. It is
also observed that in view of the contention that they invested
huge money and they are running school, attempt to make
construction cannot be encouraged or accepted. Learned counsel
also would vehemently contend that the very suit itself is not
maintainable.
10. The learned counsel for the appellant, in support of
his argument, he relied upon the judgment in SHIV KUMAR
AND ANOTHER VS. UNION OF INDIA AND OTHERS reported
in (2019) 10 SCC 229, wherein the Apex Court has held that
right of subsequent purchasers of property to invoke provision
under Section 24(2) of 2013 Act, held that such sale after
issuance of notification under Section 4 of Land Acquisition Act,
1984 is void. Hence, it does not give any right to subsequent
purchasers to invoke provisions of Section 24(2) of 2013 Act,
even proviso to Section 24(2) does not recognise such
purchasers and the same is "void ab initio".
11. The counsel also relied upon the judgment in
COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY
AND ANOTHER VS. BRIJESH REDDY AND ANOTHER
reported in (2013) 3 SCC 66 and referring this judgment, the
counsel would vehemently contend that the Civil Court is devoid
of jurisdiction to give declaration or even bare injunction on
invalidity of procedure contemplated under Land Acquisition Act,
only right available to aggrieved person is to approach High
Court under Article 226 and Supreme Court under Article 136 of
Constitution with self-imposed restrictions on their exercise of
extraordinary power, it is held that Civil suit filed by plaintiffs for
permanent injunction restraining Defendants 1 an 2 i.e., BDA,
from interfering with peaceful possession and enjoyment of
schedule property was not maintainable.
12. Learned counsel also relied upon the judgment
reported in H.N. JAGANNATH AND OTHERS VS. STATE OF
KARNATAKA AND OTHERS reported in (2018) 11 SCC 104,
wherein in the head note, it is observed that despite that
landowner repeatedly challenging acquisition proceedings in
different suits or writs on one or other ground, relegating parties
to approach civil Court to question acquisition proceedings by
granting liberty to raise all contentions of three decades and the
same is unsustainable and such approach would unsettle already
settled issues and challenging the same before the Civil Court is
impermissible.
13. Learned counsel also relied upon the order in STATE
OF BIHAR VS. DHIRENDRA KUMAR AND OTHERS reported in
(1995) 4 SCC 229, wherein the Apex Court has held that
exclusion of civil Court's jurisdiction, held that civil Court has no
jurisdiction to go into the question of validity or legality of
notification under Section 4(1) or of declaration under Section 6
and only High Court can do so under Article 226.
14. Per contra, learned counsel for the respondent in his
argument would vehemently contend that the property was
purchased by grand-father of plaintiff's husband and earlier it
was Sy.No.263/1 and it was re-numbered as Sy.No.286/2. The
counsel also would contend that the acquisition is not in dispute
and the very acquisition has been challenged in the writ petition
and writ appeal is also filed against the order passed in the writ
petition. Against the judgment passed in writ appeal, SLP is
pending before the Apex Court. It is contended that plaintiff is in
settled possession of suit property and BDA cannot demolish the
same. It is also contended that building was constructed in 1982
itself and permission was taken to run the college in 1998. It is
contended that BBMP collected betterment charges and not
taken any possession and not formed any layout in the suit
schedule property and they are in settled possession of 20
guntas of land which is morefully described in the suit. It is
contended that plan and permission is obtained for construction.
15. In reply to the arguments of the learned counsel for
the respondent, learned counsel for the appellant would
vehemently contend that when there is a bar to approach the
Civil Court, whether it is a declaratory suit or bare injunction and
when the same itself is not maintainable, the question of
granting the interim order does not arise and the Trial Court
committed an error in granting the said relief.
16. The learned counsel for the respondent in support of
his argument, relied upon the judgment in BANGALORE
DEVELOPMENT AUTHORITY, BANGALORE AND OTHERS VS.
SMT. ARIFA KAUSER AND OTHERS reported in 2015 (3)
KCCR 2706 and brought to notice of this Court the principles
laid down in the judgment that plaintiffs found to have put up
structures and in possession and they have to be evicted in
accordance with law and till such time, they have to be protected
against unlawful dispossession only, parties to maintain same
state of things till disposal of suit.
17. Learned counsel also relied upon the order of this
Court in JOHN B. JAMES & OTHERS VS. BANGALORE
DEVELOPMENT AUTHORITY & ANOTHER reported in ILR
2000 KAR 4134 and brought to notice of this Court the point
formulated with regard to settled possession and relied upon
Para Nos.58 with regard to point No.3 framed therein i.e.,
forcible dispossession is concerned and Para No.61. The counsel
also relied upon Para No.66 of the order, wherein it is held that
BDA has not been able to point out any other provision which
empowers or authorises it to forcibly dispossess any persons in
unauthorised occupation of its land. We therefore, hold that as
the law stands now, BDA as owner of any land, has no authority
to forcibly dispossess any one of settled possession of any
partition of its land. The counsel also brought to notice of this
Court Para No.74, wherein this Court has observed that having
regard to the power of BDA to initiate action against such
persons under the provisions of the Karnataka Premises (Eviction
of Unauthorized Occupants) Act, 1974 or initiate prosecution
under Section 33A of the BDA Act, in regard to unauthorized
occupant, filing of civil suits by the unauthorized occupant may
only buy him some breathing time and nothing more, unless he
has perfected their title by adverse possession.
18. Learned counsel also relied upon the judgment in
D. NARAYANAPPA VS. THE STATE OF KARNATAKA, BY ITS
SECRETARY, HOUSING AND URBAN DEVELOPMENT
DEPARTMENT, BANGALORE AND OTHERS reported in ILR
2005 KAR 295, wherein it is held that assuming that BDA took
the land on 28.12.1976, from whom it took possession, how it
took possession and how and when the structures upon the land
came-up, are not known to it and the same is not stated in the
counter. If BDA had taken actual possession of the land, it could
not have allowed the structures to come up on the land. Nothing
prevent it to from forming sites and allotting the same to public
simultaneously when the sites in the surrounding areas were
formed as per Master Layout Plan produced by it and allotted
under the relevant Rules applicable for allotment. Also, there
was no impediment for the erstwhile CITB to take possession of
the land from the petitioners as there was no interim order
against the BDA in any proceedings. The BDA could not have
taken actual possession of the land since the petitioner was in
possession of the land in question and structures were in
existence on the same. Therefore, the petitioner has been in
possession, either as true owner or in the alternative in settled
possession of the land, and has acquired statutory right over it.
19. Having heard the learned counsel for the appellant
and learned counsel for the respondent, it is not in dispute that
the property was acquired in 1977, final notification was issued
in 1980 and award is also passed in the year 1981. It has to be
noted that the respondent has challenged the said notification by
filing a writ petition before this Court and the writ petition came
to be dismissed by giving an opportunity to vacate the premises
within a period of two years, three months, subject to filing an
undertaking to that effect within four weeks. While passing the
impugned order by the Trial Court, the said writ petition was not
disposed of and the same was pending and came to be
dismissed on 13.02.2023. Thereafter, review petition was filed
in R.P.No.106/2023 and the same was dismissed on 17.04.2023
and thereafter, writ appeal was filed in W.A.No.301/2023 and in
the writ appeal, the Co-ordinate Bench of this Court upheld the
judgment of single bench of this Court passed in the writ petition
and however, an observation was made that the parties can give
representation and the same can be considered by the BDA, if
permissible in accordance with law. No doubt, the respondent
contend that they have filed SLP before the Apex Court, till date,
no order has been passed in the said SLP.
20. Having considered the material on record, it is seen
that acquisition proceedings has attained finality and SLP is not
yet considered before the Apex Court. It is also important to
note that the main contention of the learned counsel for the
respondent is that the respondent is in settled possession. It has
to be noted that preliminary notification was issued in 1977 itself
and final notification was issued in 1980 and writ petition was
filed in 2020 and the very contention that building was
constructed in the year 1982 itself is not in dispute. The material
also discloses that permission was taken in 1998 i.e., almost
after 20 years of preliminary notification. Knowing fully well that
the property is acquired by the BDA, the plaintiff has put up
construction and any construction made by investing huge
money is at the peril of the respondent. The subsequent
construction after the acquisition of the property by the BDA is
the risk of the respondent and the same cannot be protected.
21. It is also important to note that, now the respondent
cannot contend that they are in settled possession and
construction has been done subsequent to the acquisition and
acquisition is also not disputed. No doubt, the principles laid
down in the judgments referred by the learned counsel for the
respondent in BANGALORE DEVELOPMENT AUTHORITY,
BANGALORE's case, it is held that the unauthorised occupants
have to be evicted in accordance with law and in the judgment in
JOHN B. JAMES's case, this Court has discussed with regard to
forcible dispossession and also in the other judgment in
D. NARAYANAPPA's case, this Court held that there cannot be
any forcible dispossession, the same not comes to the aid of the
respondent.
22. I have already pointed out that in the case on hand,
acquisition proceedings has been initiated in the year 1977 and
final notification was issued in 1980. It is not the case of the
respondent that by that time itself, building was in existence and
documents which have been produced before the Court clearly
disclose that even after acquisition also, they invested huge
money and constructed the building, that too in the year 1982,
but no building plan is obtained in 1982 for putting up any
construction. However, the documents reveal that BBMP had
collected tax and permission was taken from school authorities in
1998.
23. It is also important to note that in the judgments
relied upon by the learned counsel for the appellant, the Apex
Court in the judgment in SHIV KUMAR's case has held with
regard to maintainability of the suit and the Apex Court also in
COMMISSIONER, BANGALORE DEVELOPMENT
AUTHORITY's case held that Civil Court is devoid of jurisdiction
to give declaration or even bare injunction on invalidity of
procedure contemplated under Land Acquisition Act, only right
available to aggrieved person is to approach High Court under
Article 226 and Supreme Court under Article 136 of Constitution
with self-imposed restrictions on their exercise of extraordinary
power, it is held that Civil suit filed by plaintiffs for permanent
injunction restraining Defendants 1 an 2 i.e., BDA, from
interfering with peaceful possession and enjoyment of schedule
property was not maintainable. The principles laid down in the
in the said judgments is aptly applicable to the case on hand and
the respondent cannot maintain a suit for bare injunction when
the property was acquired and the respondent cannot take
shelter by filing a suit for permanent injunction.
24. The Apex Court also in H.N. JAGANNATH's case
observed that, despite that landowner repeatedly challenging
acquisition proceedings in different suits or writs on one or other
ground, relegating parties to approach civil Court to question
acquisition proceedings by granting liberty to raise all
contentions of three decades and the same is unsustainable and
such approach would unsettle already settled issues and
challenging the same before the Civil Court is impermissible and
the Civil Court cannot decide the same and Civil Court has no
jurisdiction to examine acquisition proceedings under Section 9
of CPC and when the Civil Court has lost its jurisdiction under
Section 9, the question of even entertaining the suit for bare
injunction also does not arise. The said judgment is aptly
applicable to the case on hand.
25. In the other judgment of the Apex Court in STATE
OF BIHAR's case with regard to exclusion of civil Court's
jurisdiction, it is held that civil Court has no jurisdiction to go
into the question of validity or legality of notification under
Section 4(1) or of declaration under Section 6 and only High
Court can do so under Article 226. The principles laid in the
judgments referred supra by the learned counsel for the
respondent no doubt is with regard to the eviction under due
process of law, admitted fact of respondent is that the very
construction is subsequent to acquisition and possession was
also taken by the BDA and after the possession was taken,
subsequently the respondent has constructed the building by
investing huge money and the said act cannot be protected and
encouraged as observed in writ appeal by this Court.
26. It is also important to note that the Trial Court while
exercising its discretionary power has made an observation that
the actual physical possession of the schedule property is
apparently shown with the plaintiff and judgments which have
been relied upon is not applicable to the facts of the case and
also comes to the conclusion that the Civil Court jurisdiction is
excluded to go into the validity and illegality of such acquisition
proceedings. Further, the acquisition proceedings has not been
challenged in O.S.No.4415/2020. When the Apex Court has
categorically held that suit for bare injunction cannot be
maintained, the Trial Court committed an error in exercising its
discretion in favour of the plaintiff, even though the suit itself is
not maintainable. The observation made by the Trial Court is
erroneous and the Trial Court ought not to have exercised the
discretion in favour of the respondent, when the property was
acquired and no dispute with regard to the acquisition is
concerned.
27. I have already pointed out that even construction
put up by the respondent is subsequent to the acquisition and
the act of the respondent/plaintiff cannot be protected and the
photographs which have been produced clearly disclose that
though school building was constructed long back, but recently
shopping complex is also constructed and the photographs which
have been produced before the Court depicts that the same is an
unauthorized construction and taking advantage of pendency of
the writ petition, the construction is completed. Hence, such
construction cannot be protected by exercising the discretion
granting an order of temporary injunction. Therefore, it requires
interference.
28. In view of the discussion made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order passed on I.A.No.II
granting an order of temporary injunction in
favour of the respondent/plaintiff is set aside
and consequently, I.A.No.II is dismissed.
Sd/-
JUDGE
ST
