Dismissed

Smt. M.Anasuya @ Anasuyamma v. the State of Karnataka by

Karnataka HC16 Feb 2021WA/238/2020

Case brief

AI extract

What is this about?

The High Court dismissed a writ appeal filed by two appellants against an interim order staying the cancellation of an auction and sale deed. The Court held that the auctioned site was not part of the schedule properties under challenge in the underlying writ petition, justifying the stay on the cancellation.

What did the court decide?

The writ appeal against the stay of cancellation order was dismissed.

Smt. M.Anasuya @ Anasuyamma Vs the State of Karnataka by — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 16^TH DAY OF FEBRUARY, 2021

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA

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AND

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THE HON’BLE MRS. JUSTICE M.G. UMA

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WRIT APPEAL No.238/2020 (BDA)

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BETWEEN:

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SMT. M. ANASUYA @ ANASUYAMMA

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W/O. LATE G.M. SRINIVAS, AGED ABOUT 58 YEARS, RESIDING AT NO.80, 1^ST MAIN, 1^ST CROSS, GEDDALAHALLI, R.M.V. 2^ND STAGE,

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BANGALORE - 560 094.

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SRI M. RAMAMURTHY S/O. MOTAPPA, AGED ABOUT 60 YEARS, RESIDING AT NO.80, 1^ST MAIN, 1^ST CROSS, GEDDALAHALLI, R.M.V. 2^ND STAGE, BANGALORE - 560 094. ... APPELLANTS

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(BY SRI SATISH K., ADVOCATE FOR SRI M.S. BHAGWAT, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY THE POLICE INSPECTOR, SANJAYNAGAR POLICE STATION, SANJAYNAGAR, BANGALORE - 560 094.

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BANGALORE DEVELOPMENT AUTHORITY, REPRESENTED BY ITS COMMISSIONER, CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE - 560 020.

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SRI D. GANESH SHANKAR S/O. LATE B. CHINNAVENKANNA, AGED ABOUT 64 YEARS, RESIDING AT NO.37, SRIHARINILAYAM, 8^TH CROSS, K.G.E. LAYOUT,

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RMV 2^ND STAGE, BANGALORE - 560 094. ... RESPONDENTS

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(BY SMT. VANI H., ADDL. GOVERNMENT ADVOCATE FOR R-1; SMT. SUNITHA H. SINGH, ADVOCATE FOR R-2; SRI B.S. MANJUNATH, ADVOCATE FOR R-3 (THROUGH V/C))

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO i) SET ASIDE THE IMPUGNED ORDER DATED 05/02/2020 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.28882/2019 ON INTERLOCUTORY APPLICATION NO.2/2019; ii) PASS ANY OTHER ORDER AS THIS HON'BLE COURT DEEMS FIT, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE COST OF THIS WRIT APPEAL.

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THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-

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J U D G M E N T

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The appellants were respondent Nos.3 and 4 in W.P.No.28882/2019. That writ petition was filed by respondent Nos.3 herein, assailing the order dated 30/05/2019 at Annexure - "O", which was passed by the respondent/Bangalore Development Authority ("BDA") and endorsement dated 04/07/2019 (Annexure - "P") passed by respondent No.1 herein, the jurisdictional inspector of Sanjayanagar Police Station.

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Learned single Judge on 05/02/2020, after considering the statement of objections filed by the respondent/BDA, stayed Annexure -"O" dated 30/05/2019, which was passed by the Commissioner of the respondent/BDA, cancelling the auction sale of corner site No.317 at RMV 2nd Stage in Sy.No.5, Geddalahalli Village, Kasaba Hobli, Bengaluru North Taluk and a direction was issued to institute an appropriate suit before the Civil Court for cancellation of the sale deed dated 28/06/2017. Being aggrieved by the said cancellation, respondent No.3 herein, who was the highest bidder at the auction sale and who had paid a sum of Rs.2,34,69,785/- (Rupees two crore, thirty four lakh, sixty nine thousand, seven hundred and eighty five only) for the said site, filed the writ petition (W.P.No.28882/2019) in which the impugned order dated 05/02/2020 was passed by the learned single Judge.

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We have heard learned counsel for the appellants, learned counsel for the caveator/respondent No.3 and learned Additional Government Advocate for respondent No.1 and perused the material on record.

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Briefly stated the facts are, the land in

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question namely, Sy.No.5 of Geddalahalli Village was a

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subject matter of acquisition by the BDA pursuant to Preliminary Notification issued on 03/01/1977 under Section 17(1) of the Bangalore Development Act, 1976 (hereinafter referred to as "the BDA Act" for short) and declaration and Final Notification dated 02/08/1978 issued under Section 19(1) of the said Act. That the appellants have preferred W.P.Nos.24087-24093/2016 assailing the said Notifications. That this Court on 23/03/2016 issued an interim order staying demolition and dispossession of petitioners from the schedule properties. That site bearing No.317, which has been auctioned to respondent No.3 herein is one of the sites mentioned in the schedule properties.

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That in fact, CCC.Nos.760/2019 and 819/2019 were filed by the appellant herein before this Court. In that a counter affidavit was filed on behalf of the respondent/BDA stating that the Notification for e-auction ought not to have been issued and therefore, on that basis, the contempt proceeding was closed. Pursuant to the said counter affidavit and the closer of the contempt petition, the impugned order at Annexure - "O" has been passed, which has been assailed by respondent No.3 herein in the writ petition. On 05/02/2020, the learned

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single Judge has stayed the order of cancellation of the auction dated 30/05/2019.

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Learned counsel for the appellants submitted that during the pendency of the writ petition, interim order was passed in W.P.Nos.24087-24093/2016 filed by the appellants herein. Since, there was an interim order granted, the respondent/BDA could not have auctioned the site in question and respondent No.3 could not have bid for the same. Therefore, respondent/BDA rightly issued the order of cancellation of auction on 30/05/2019 (Annexure - "O"). That there is no merit in the writ petition filed by respondent No.3 herein. Even then, the learned single Judge granted an order of stay of the order dated 30/05/2019 on the premise that the site in question namely, site No.317 auctioned to respondent No.4/petitioner does not fall within the schedule properties, which is the subject matter of the writ petition filed by the appellants herein. He submitted that site No.386, which is mentioned in the schedule is, in fact, to be read as site No.317 and therefore, the BDA has rightly issued the cancellation of the auction notification and also the sale deed issued thereafter, by virtue of Annexure-"O"

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dated 30/05/2019. Therefore, the learned single Judge ought not to have stayed Annexure - "O".

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Per contra, learned counsel for the

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caveator/respondent No.3 supported the impugned order passed by the learned single Judge on 05/02/2020 and submitted that the RMV 2nd Stage is a full-fledged layout, which has been formed by the respondent/BDA pursuant to the acquisition notifications issued for the year 1977-78. That even if the appellants herein preferred the writ petitions (W.P.Nos.24087-24093/2016) in the year 2016, site No.317, which has been auctioned by the respondent/BDA to respondent No.3 pursuant to which, sale deed, has also been registered in the name of respondent No.3 in W.P.No.28882/2019 on receipt of Rs.2,34,69,785/- (Rupees two crore, thirty four lakh, sixty nine thousand, seven hundred and eighty five only) after obtaining loan of Rs.1,76,00,000/- (Rupees one crore and seventy six lakh only), does not find a place in the schedule properties submitted by the appellants herein in respect of which the acquisition has been assailed. Therefore, learned single Judge was justified in staying Annexure -"O", order dated 30/05/2019 and there is no merit in the appeal.

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We have considered the submissions of learned

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counsel for the respective parties in light of the aforesaid facts and impugned order passed by the learned single Judge. There is no dispute that during the pendency of the writ petitions filed by the appellants herein i.e., W.P.Nos.24087-24093/2016 (in which there was an interim order of stay of dispossession and demolition), the respondent/BDA issued notification calling for auction of corner sites, inter alia, the site in question, that is site No.317. Respondent No.3 being the highest bidder, paid a sum of Rs.2,34,69,785/- (Rupees two crore, thirty four lakh, sixty nine thousand, seven hundred and eighty five only) after obtaining loan of Rs.1,76,00,000/- (Rupees one crore and seventy six lakh only) for the said site and sale deed dated 28/06/2017 was executed in his favour.

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When such being the position, without any

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intimation or information to respondent No.3, a decision was taken to the effect that the auction as well as the sale deed to be cancelled by the BDA by filing a suit against respondent No.3. The action of the BDA in doing so, unilaterally, has been assailed by respondent No.3 in the writ petition. In that context, the contention of respondent

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No.3 is that site No.317, which has been auctioned to respondent No.3 by the BDA does not find a place in the schedule properties submitted by the appellants herein before this Court in their writ petition. The list of properties therein does not include site No.317, which has been auctioned by the BDA to respondent No.3. Even on a cursory glance of Schedule to the sale deed executed in favour of respondent No.3 and the schedule appended thereto, it is prima facie observed that, what has been auctioned and sold is site No.317. That being the position, the respondent/BDA was not right in unilaterally and without notice to respondent No.3 cancelled the auction as well as decided to take steps to cancel the sale deed. Therefore, we find that respondent No.3 was justified in assailing the same in the writ petition. On perusal of the schedule properties, prima facie it is noted that site No.317, which is the subject matter of the writ petition, does not find a place in the list of the schedule properties submitted by the appellants before this Court in their writ petitions namely, W.P.Nos.24087-24093/2016. It is on that premise, the learned single Judge has stayed the impugned order dated 30/05/2019 (Annexure - "O") by which, not only the auction proceeding has been cancelled,

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but also the sale deed executed by the BDA in favour of respondent No.3 is to be cancelled. We do not find any infirmity in the order of the learned single Judge. There is no merit in the appeal. Hence, the appeal is dismissed.

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No costs.

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In view of dismissal of the appeal, I.A.No.1/2020

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also stands dismissed.

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Sd/JUDGE

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Sd/JUDGE

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Smt. M.Anasuya @ Anasuyamma v. the State of Karnataka by

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Smt. M.Anasuya @ Anasuyamma v. the State of Karnataka by

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