Karnataka High Court
V Ramaiah vs State Of Karnataka on 6 January, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 51567 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 51567 OF 2019 (BDA)
BETWEEN:
V. RAMAIAH,
S/O. LATE N. VENKATAPPA,
AGED ABOUT 65 YEARS,
RESIDING AT NO.44/1,
11ST MAIN, 'D' BLOCK,
2ND STAGE, GYATHRINAGAR,
BANGALORE-560 010.
...PETITIONER
(BY SRI. PRASAD VINOD GANAPATI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY TO HOUSING
Digitally
signed by AND URBAN DEVELOPMENT DEPT.
SUMA B N
Location: VIDHANA SOUDHA,
High Court of
Karnataka BENGALURU.
2. BANGALORE DEVELOPMENT AUTHORITY,
BY ITS COMMISSIONER,
B.D.A. COMPLEX,
SANKEY ROAD, KUMARA PARK WEST,
BENGALURU-250 020.
3. SMT. LAKSHMINARASAMMA
W/O. B.A. RAMACHANDRAPPA,
DOOR NO.1225/A,
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WP No. 51567 of 2019
PRAKASH NAGAR,
BENGALURU-560 025
...RESPONDENTS
(BY SRI. SPOORTHY HEGDE N., HCGP FOR R1;
SRI. SACHIN B.S., ADVOCATE FOR R2;
SRI. K. SRINIVASA AND
SRI. S. SRINIVASA MURTHY, ADVOCATES FOR R3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENT BDA TO FORM A ROAD FOR THE PETITIONER
AND OTHERS, AS STATED IN THE POSSESSION CERTIFICATE
ISSUED BY CITB IN CONNECTION WITH THE SITE NO,.2703 AT
ANNEXURE-B AS DIRECTED BY THIS HONBLE COURT, IN THE
RFA NO.788/2005 OR ALLOT THE MARGINAL LAND STATE
ABOVE, TO THE PETITIONER AS PER THE RULES OF
ALLOTMENT OF MARGINAL LAND AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
ORAL ORDER
The petitioner is before this Court seeking the
following reliefs:
i. Issue a writ of mandamus directing the
respondent BDA to form a road for the petitioner and
others, as stated in the possession certificate issued
by CITB in connection with the site No.2703 at
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Annexure-B, as directed by this Hon'ble Court, in the
RFA No.788/2005.
Or
Allot the marginal land state above, to the petitioner
as per the rules of allotment of marginal land.
ii. Issue a writ of mandamus directing the BDA
keep the marginal land, situated on the western side
of site No.2703 New Corporation No.44/1 in 11th
Main, D Block, Gayathrinagar, Bengaluru vacant,
after removing the encroachment and after removing
the shed (stated in the endorsement at Annexure-
M).
iii. Issue any other writ or order or direction which
this Hon'ble Court deemed fit in the circumstance of
the case."
2. The case of the petitioner is that, he is the
absolute owner of the property bearing No.2703, New
Corporation No.44/1, situated in 11th Main 'D' Block,
Gayathri Nagar, Bengaluru having purchased the same
from one Sri.Gangadharaih under deed of sale dated
02.02.1973. It is the further case of the petitioner that
there is a storm water drain, running North to South on
the western side of the property belonging to the
petitioner and that after the said storm water drain there
exists a marginal land measuring 25 feet North to South,
6 feet East to West, which is the only means of access to
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the property of the petitioner and the petitioner had been
using the said property uninterruptedly and continuously
since then.
3. That in the year 1992, one
Smt.Lakshminarasamma started to put up construction on
the said marginal land thereby obstructing the petitioner's
right of way, constraining the petitioner to file a suit in
O.S.No.7148/1992 seeking relief of declaration and
mandatory injunction. The said Lakshminarasamma is
arrayed as respondent No.3 in this petition. The Bangalore
Development Authority (BDA) and Corporation City of
Bangalore were also made parties to the said suit. The
said suit was dismissed. Being aggrieved, the petitioner
filed a Regular First Appeal in RFA No.788/2005, in which
this Court taking note of the fact that the petitioner herein
had purchased only half of the site bearing No.2703 from
its erstwhile owner who had not been made party to the
said suit and that in the absence of said persons rights of
the parties could neither be determined nor any direction
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be given to the corporation and the BDA, disposed of the
said regular first appeal with an observation made at
paragraph 4 thereof which reads as under:
"4. Therefore to do this the suit is required to be
remanded back to the trial court. While doing so, this
Court directs the trial court to permit the plaintiff to
bring the persons who are in possession and
enjoyment of the marginal land, situated on the
eastern side of the site bearing No.2703 and also
erstwhile owner Sri.Gangadhar and trial court is also
directed to delete defendants 3 and 4 from the said
suit and proceed with the suit against BDA,
Corporation and said erstwhile owner of the
property, Gangadhar and the present occupiers of
marginal land to east of original site No.2703 and
pass necessary judgment to keep marginal land open
for the benefit of the owners of portion of original
site No.2703. If proposed road is not formed, the
trial court shall pass necessary orders directing
defendants 1 and 2 to form proposed road if it is not
already formed as stated in Exhibit P3, the
possession certificate issued to the erstwhile owner
of site No.2703 on court."
4. Subsequently it appears that petitioner had filed
an application to implead the occupiers of the marginal
land and also legal representatives of the erstwhile owner
Sri.Gandharaih to implead them as proposed defendants in
the said suit which was rejected by the trial Court. Which
order was challenged by the petitioner herein by filing writ
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petition in W.P.No.36634/2011 (GM-CPC). The said writ
petition was withdrawn by the petitioner on 03.06.2014
with liberty to approach the BDA to seek appropriate
remedy for providing access to the main road. Petitioner
herein had also filed a review petition seeking review of
Judgment passed in RFA No.788/2005 which was also
rejected.
5. It is the further case of the petitioner that he had
made representation to the respondent-BDA to provide
access to the main road through the marginal land which
has not been considered till date.
6. Learned counsel for the petitioner reiterating
the grounds urged and the prayer of the petition submits
that in the possession certificate issued by BDA there is a
reference to the existence of the marginal land towards
western side of the property. That once the BDA in the
memo dated 17.06.1965 had given the description of the
property allotted to the vendor of the petitioner showing
existence of the storm water drain on the western side and
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thereafter marginal land, cannot now shy away and
contend that the marginal land does not belong to the BDA
and the same operates as an estoppel. Therefore, the
petitioner is seeking the relief as sought for.
7. In response the learned counsel for the BDA
drawing attention of this Court to the contents of
Annexure-M, an endorsement that was issued by the BDA
to the petitioner wherein, he specifically points out that
the BDA had made its stand very clear that the marginal
land claimed by the petitioner does not belong to the
petitioner and the same forms part of the layout, which
was approved in respect of a revenue land.
8. Learned counsel for the BDA referring to the
said document further submits that since the relief sought
for by the petitioner is on the premise that the marginal
land belonged to the BDA and the same having being
clarified in writing, the petition is not maintainable. Hence,
seeks for the dismissal of the petition.
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9. Heard. Perused the records.
10. As noted above, even according to the
petitioner, third respondent herein had put up construction
on the purported marginal land, which is situated on the
western side of the storm water drain and the petitioner
had already approached the civil Court. However though
the regular first appeal filed by the petitioner in RFA
No.788/2005 was disposed of remanding the matter for
consideration, the petitioner for reasons best known has
not pursued the said matter. Petitioner had apparently
made attempt by filing writ petition in W.P.36634/2011 for
direction to the BDA for grant of marginal land which he
has withdrawn. Now the petitioner relying upon the
observation made at paragraph 4 of the Judgment passed
in aforesaid regular first appeal in RFA No.788/2005 which
is extracted hereinabove, s insisting that the marginal land
formed part of the layout formed by the BDA and that
therefore the petitioner is entitled for the relief sought for.
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11. The endorsement issued by the BDA more
particularly at Annexure-M clarifies that the marginal land
does not belong to the BDA and that it further points out
BDA has not formed any roads and sites in the layout.
That the marginal land being asked for by the petitioner
for access to his site No.2703/A is a revenue site over
which BDA has no right or authority and that certain
persons have already put up shed on the said property.
The endorsement further points out that the existing
storm water drain which is covered by RCC slab is serving
as an approach road to the petitioner as well as the
owners of the neighbouring properties. As such the
respondent-BDA has declined the requisition of the
petitioner for demolition of existing structure on the said
marginal site to form the road as sought for.
12. From the above it is clear that the marginal land
being sought for by the petitioner does not belong to the
respondent-BDA. In that view of the matter, the relief
sought for by the petitioner cannot be considered in this
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writ petition in exercise of extraordinary jurisdiction under
Articles 226 and 227 of the Constitution of India and the
same is accordingly dismissed.
It is made clear, notwithstanding the dismissal of the
petition, the petitioner is at liberty to seek such relief as
may be available under law, against the persons who are
occupying the said marginal land, if permissible.
SD/-
(M.G.S. KAMAL)
JUDGE
