Dismissed

Banglore Development Authority v. Mr. Ramakrishna Reddy

Karnataka HC27 Aug 2021RFA/1314/2018

Case brief

AI extract

What is this about?

The High Court dismissed the BDA's appeal against a decree granting permanent injunction to the plaintiff. The court held that since the acquisition proceedings basis the BDA's claim were quashed as lapsed by the Writ Court, the BDA had no ground to challenge the trial court's decree or to claim possession.

What did the court decide?

Appeal dismissed; Prayer for condonation of delay allowed.

Banglore Development Authority Vs Mr. Ramakrishna Reddy — Karnataka HC (2021) — LawSathi Research

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF AUGUST, 2021

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PRESENT

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THE HON’BLE MRS. JUSTICE S. SUJATHA

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AND

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THE HON’BLE MR. JUSTICE RAVI V. HOSMANI

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R.F.A.No.1314/2018(INJ)

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BETWEEN:

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BANGALORE DEVELOPMENT AUTHORITY KUMARA PARK WEST, BANGALORE-560 020 REP. BY ITS COMMISSIONER. ...APPELLANT

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(BY SRI.LOKANATH.A, ADVOCATE)

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AND:

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MR.RAMAKRISHNA REDDY S/O B.MUNISWAMY REDDY AGED ABOUT 59 YEARS R/AT NO.667, 22^ND A MAIN 22^ND SECTOR, H.S.R. LAYOUT BANGALORE-560 102. ...RESPONDENT

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(BY SRI.HARISH H.V., ADVOCATE (VIDEO CONFERENCE)

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THIS RFA IS FILED UNDER ORDER XLI RULE 1 R/W SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 12.09.2012 PASSED IN O.S.NO.6771/2010 ON THE FILE OF THE XXVII ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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THIS RFA COMING ON FOR FURTHER ORDERS THIS DAY, S. SUJATHA J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is directed against the judgment and decree dated 12.09.2012 passed in O.S. No.6771/2010 on the file of the XXVII Additional City Civil Judge, Bengaluru (‘trial court’ for short), whereby the suit filed by the plaintiff has been decreed restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff without taking recourse of law.

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For the sake of convenience, the parties are referred to, as per their status before the trial court.

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The subject matter of the suit property is the property bearing Bruhat Bengaluru Mahanagara Palike (‘BBMP’ for short) Khata No.266 formed out of Sy.No.31/2, “Ramakrishna Towers” situated at Rupena Agrahara, Agrahara Village, Begur Hobli, Bengaluru South Taluk, Bengaluru presently coming within the jurisdiction of BBMP totally measuring 23½ Guntas (25591.5 Sq.ft.) and bounded by:

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East by : Earlier property bearing Sy.No.31/3 and Sy.No.31/9 now road. West by : Bengluru Hosur main road and property bearing Sy.No.31/1. North by : Private property and South by : Road and land bearing Sy.No.31/9.

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The plaintiff instituted the suit seeking relief of perpetual injunction in favour of plaintiff and against the defendant from interfering over the peaceful possession and enjoyment of suit schedule property without taking recourse to law and for such other consequential reliefs.

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The plaint averments in brief are that the plaintiff purchased suit schedule property under various sale deeds dated 24.09.1999, 11.12.2002, in all there are six sale deeds and he is the absolute owner and in possession of suit schedule property as claimed. The plaintiff contended that he has paid conversion charges and the khata is standing in his name. Bengaluru Development Authority (BDA) also has issued the occupancy certificate dated 06.01.2005 and permitted the plaintiff to put up construction of commercial building “Ramkrishna Towers” over the suit schedule property and he has rented out the same to

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various tenants, pursuant to the license issued by the BDA. It is the grievance of plaintiff that the defendant, without any manner of right, title and the interest tried to interfere with his peaceful possession and enjoyment of the suit schedule property on 20.09.2010. Hence, he was constrained to file the present suit.

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Pursuant to the suit summons issued, defendant appeared before the Court and contested the matter. Written statement was filed setting up the defence that suit schedule property was acquired by the BDA vide Preliminary Notification dated 15.12.1984 and final Notification dated 25.12.1986. Award was passed on 30.04.2010. Plaintiff has purchased the suit schedule property in the year 1999, subsequent to the acquisition proceedings, suit schedule property has been vested with the defendant-authority. Hence, plaintiff cannot seek any relief against the defendant.

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Based on the pleadings as aforesaid, trial court

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framed the following issues:

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1) Whether plaintiff proves his lawful possession over the suit schedule property as on the date of the suit?

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2) If so, whether plaintiff further proves the alleged interference into his peaceful

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possession and enjoyment of the suit schedule property by the defendant as alleged?

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3) Whether defendant proves that suit schedule property is already vested with it as contended in the written statement?

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4) Whether plaintiff is entitled for permanent injunction as prayed?

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5) What order or decree?

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Plaintiff got examined himself as PW-1 and got marked Exs.P.1 to P.41. DW-1 was examined on behalf of the defendant-authority and Exs.D.1 to D6 were marked. On appreciation of oral and documentary evidence, trial Court answered issue Nos. 1, 2 and 4 in the affirmative and issue No.3 in the negative. Finally, the suit came to be decreed as aforesaid. Being aggrieved by the said judgment and decree defendant-BDA has preferred this appeal.

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Learned counsel for BDA would submit that trial court has failed to appreciate the fact of acquisition of the schedule property by the BDA. In view of the acquisition proceedings duly concluded and the possession of the property having been taken by the BDA by issuing the Notification under Section 16(2) of the Land Acquisition Act, 1894 (‘Act’ for short). The suit schedule

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property was vested with the defendant-BDA. Despite the same, trial court proceeded to decree the suit restraining the defendant-Authority from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. In view of the acquisition, suit for injunction is not maintainable. This vital aspect was lost sight of, by the trial Court. Relying on the acquisition proceedings, learned counsel seeks to set aside the impugned judgment and decree, holding that the defendant-BDA is in lawful possession of the schedule property to which the plaintiff is not entitled for any relief.

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Learned counsel appearing for the plaintiff has opposed the aforesaid arguments canvassed, referring to the order of the Writ court in W.P.No.6354-6356/2011 (D.D on 01.12.2011). He would contend that the challenge made to the acquisition proceedings initiated by the defendant to the said property has been extensively considered by the Writ Court, acquisition proceedings are held to be lapsed. On further challenge to the said order in W.A.No.1069-71/2012 filed by the BDA-defendant, the appellant in the WA proceedings has withdrawn the appeal by filing a memo. In view of the order passed in the Writ Appellate Court, the acquisition proceedings

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said to have been initiated is quashed insofar as it pertains to the suit schedule property. This aspect of the matter has been duly considered by the trial Court while disposing of the suit. It has been held by the trial Court that though the defendant has argued that the suit schedule property is vested with the defendant-BDA but, in view of the order passed by the Hon’ble High Court in Writ Petition 6354-6356/2011 disposed on 01.02.2011, the contention of the defendant is not duly proved in accordance with law. Since, the Writ Court has categorically held that acquisition proceedings have been lapsed, the trial Court has decreed the suit restraining the BDA from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff without taking recourse to law, the same requires to be confirmed dismissing the present appeal.

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We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the records.

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The point that arises for our consideration is that:

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“Whether the impugned judgment and decree passed by the trial Court is justifiable?”

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The controversy involved herein rests in a narrow compass. It is the specific assertion of the BDA that suit schedule property has been acquired by the BDA under Preliminary Notification dated 15.12.1984 and Final Notification dated 28.11.1986, award being passed on 30.04.2010, Notification under Section 16(2) of the Act was also issued taking possession of the suit schedule property, as such the property vests with the authority. It is significant to note that the very same acquisition proceedings was the subject matter of challenge in the writ petition Nos.6354-6356/2011 (DD 1.12.2011) before this Court in which defendant-BDA was arrayed as respondents No.2 and 3. In the said writ petitions, the learned Single Judge has referred to catena of judgments and has observed thus:

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“23. For all the aforesaid reasons, this Court cannot but hold and declare that the acquisition proceedings have lapsed. Needless to observe that it is always open to the respondents to resort to the initiation of fresh acquisition proceedings, if the lands are required for any public purpose. As I have held that the acquisition proceedings have lapsed, consequently the award and any further proceedings thereto stand quashed in so far as it pertain to the petitioner’s lands.”

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Thus, the defendant-BDA being aggrieved by the said order has preferred WA Nos.1069-71/2012. In the said

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proceedings, BDA has filed the memo dated 08.04.2003 which reads thus:

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“Without prejudice to the contentions urged in the Memorandum of Writ Appeal and considering the peculiar facts and circumstances of the case as narrated in paragraph 22 of the order dated 01.12.2011 passed by the learned Single Judge in Writ Petition Nos. 6354-56/2011 (LA-BDA), the appellants seek leave of the Hon’ble Court to withdraw the writ appeal.”

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Considering the said memo filed by the learned

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counsel appearing for the appellants and for the reasons stated in the said memo, the writ appeal has been dismissed as withdrawn at the risk of the learned counsel appearing for the appellants, holding that further I.A.s therein does not survive for consideration.

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It cannot be gainsaid that the very same acquisition proceedings are the basis for filing the present appeal, though, the learned Single Judge in the writ proceedings has observed that it is always open to the respondent to resort to the initiation of fresh acquisition proceedings, it is not the case of the BDA that any such acquisition proceedings have been initiated and pursuant to which the suit schedule property has been acquired and taken possession by the BDA. But on the other hand, the

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very same acquisition proceedings which were considered and held to be lapsed by the Writ Court has again reiterated or emphasized for asserting the rights of the BDA.

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The said proceedings having been reached finality and no fresh acquisition proceedings initiated, there is no ground for BDA to challenge the impugned judgment and decree.

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For the reasons aforesaid, we do not find any infirmity or material irregularity in the judgment and decree impugned. In the result, appeal stands dismissed.

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Since we have considered the case on merits and have held that there is no good ground for this Court to interfere with the impugned judgment and decree, though the delay is inordinate, in condoning the said delay, it would not prejudice rights of the defendant. Hence, we condone the delay of 2053 days in filing the appeal. I.A. 1/2018 stands allowed.

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Sd/JUDGE

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Sd/JUDGE

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BVK

Banglore Development Authority v. Mr. Ramakrishna Reddy

Case brief

What is this about?

What did the court decide?

Banglore Development Authority v. Mr. Ramakrishna Reddy

Case brief

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