Disposed

M/S Fashion Power v. Bangalore Development Authority

Karnataka HC4 Oct 2023WP/19180/2023

Case brief

AI extract

What is this about?

The Court held that the BDA lacked jurisdiction to adjudicate a private property dispute and unauthorisedly demolish petitioner's property. While no further direct objection was taken to the demolition given the admission of facts, the Court directed the BDA to reconstruct the demolished eastern wall of the petitioner's property at its own cost within four weeks. Alternative relief is available vi

What did the court decide?

Respondent-BDA shall reconstruct the demolished eastern wall of petitioner's property at its own cost within four weeks from the date of receipt of certified copy of this order.

M/S Fashion Power Vs Bangalore Development… — Execution and Attachment | Karnataka HC (2023)

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NC: 2023:KHC:35978 WP No. 19180 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 19180 OF 2023 (BDA)

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BETWEEN:

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M/S. FASHION POWER A REGISTERED UNDER PARTNERSHIP ACT, 1932 HAVING ITS REGISTERED OFFICE AT PLOT NO-II D , 7TH CROSS 3RD PHASE, PEENYA INDUSTRIAL AREA BANGALORE 560 058 REPRESENTED BY ITS PARTNER MRS ANUBHA JAIN.

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…PETITIONER

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(BY SRI. AJAY J NANDALIKE.,ADVOCATE)

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AND:

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Digitally signed by SUMA B N Location: High Court of Karnataka

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BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD, BENGALURU - 560 040 REPRESENTED BY ITS COMMISSIONER.

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SMT KRISHNAVENI W/O UNKNOWN RESIDING AT SY NO 171-C, 3RD PHASE, PEENYA INDUSTRIAL AREA BANGALORE 560 058.

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NC: 2023:KHC:35978 WP No. 19180 of 2023

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SMT. MEERA R., W/O CHETHAN R AGED ABOUT 38 YEARS NO. 831, 2ND FLOOR, 1ST BLOCK 3RD CROSS, KALYAN NAGAR BENGALURU - 560 043

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…RESPONDENTS

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(BY SRI. B. VACHAN, ADVOCATE FOR R1; SRI. ROHAN HOSMATH, ADVOCATE FOR SRI. DARSHAN L., ADVCOATE FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) SET ASIDE THE IMPUGNED NOTICE DTD 24/08/2023 BEARING NO. BEN.APRA/SKA-KP/137/2023-24 ISSUES BY THE R-1 AT ANNEXURE-A.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This writ petition is filed seeking to set aside the notice dated 24.08.2023 issued by respondent No.1-BDA produced at Annexure-A.

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Case of the petitioner is that, he is the absolute

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owner in peaceful possession of the industrial land bearing

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NC: 2023:KHC:35978 WP No. 19180 of 2023

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No.171/A and 171/B, amalgamated property No.171/A, with PID No.11-15-171/A, 7th Main Road, Industrial Suburb, II stage, Rajajinagar, Bangalore ("Petition Schedule Property") , having purchased the same in terms of the Deeds of Sale dated 11.09.1995 and 21.12.1995.

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That the petitioner has been using the said property for industrial purposes by having twenty employees working therein. That on 24.08.2023 petitioner received a notice from the respondent No.1 referred to as "Final Notice". It is contended in the said notice that representative of respondent No.1 had come to the petitioner's property and taken measurement and found that there was an encroachment by the petitioner over the adjoining property in Sy.No.173-C owned by respondent No.2.

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It is the further case of the petitioner that the

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notice issued though called as a "Final notice" was served in the evening of Thursday that on 24.08.2023, following Friday and Saturday being holiday and fourth Saturday non working days. It is alleged that the timing of the

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NC: 2023:KHC:35978 WP No. 19180 of 2023

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issuance of the notice was malafide . That having issued the said notice, even without giving an opportunity to petitioner, representative of the respondent No.1-BDA went ahead and demolished the compound wall/stone slab on eastern side of this property.

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Learned counsel for the petitioner drawing attention of this Court to the photographs produced at Annexure-H series submits that illegal demolition was carried out by respondent No.1-BDA by demolishing the stone slab wall, which was constructed enclosing the generators on the eastern side of the petitioner's property. Learned counsel for the petitioner further submits that the suit in O.S.No.5478/2023 has already been filed and the same is pending consideration before the City Civil Court. That since the subject property do not belong to the respondent-BDA, respondent-BDA had no authority to interfere in a private matter. Hence, this petition.

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NC: 2023:KHC:35978 WP No. 19180 of 2023

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Sri.B.Vachan, learned counsel appearing for the

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respondent-BDA submits that the notices were issued prior to the impugned notice at Annexure-A and since there was no response from the petitioner, the representative of respondent-BDA was constrained to take action in demolishing the stone slab wall on the eastern side of the property which belongs to the petitioner. He further submits that the said action was prompted an account of the complaint given by the proposed respondent alleging the encroachment of the property.

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Sri. Rohan Hosmath, learned counsel appearing for

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the proposed respondent submits that the petitioner has indeed encroached upon the property of the proposed respondent and that in view of the fact that the property was had been purchased by the proposed respondent from the BDA, the complaint regarding encroachment was made

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to the respondent-BDA and that no fault in that can be found in that. Further respondent-BDA responding to the

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NC: 2023:KHC:35978 WP No. 19180 of 2023

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complaint has redressed the grievous of the proposed respondent. Hence, seeks for dismissal of this petition.

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Heard, perused the records.

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There is no dispute with regard to the fact that

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the property being claimed by the petitioner is a private property and respondent-BDA has no claim over the said property. Considering the allegation made by the proposed respondent of petitioner encroaching up on his property, at the most same would amount to a private

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dispute over the proprietary rights of the petitioner and the proposed respondent. Needless to state such dispute needs to be adjudicated and determined in a properly constituted suit before the Competent Court of law. When this being the admitted position, it is astonishing as to the basis on which the representative of the respondent-BDA had taken upon himself, the task of determining a private property dispute between petitioner and the proposed respondent. Not only that, he has admittedly proceeded to demolish the stone slab wall existing on the disputed area

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7 - NC: 2023:KHC:35978 WP No. 19180 of 2023

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causing damage to the property of the petitioner. It is in this background this Court by Order dated 21.09.2023 and 25.09.2023 had called upon learned counsel for the respondent-BDA to file an affidavit with necessary particulars of the concerned official who had taken upon this task of adjudicating the dispute between the private parties namely the petitioner and the proposed respondent and even executed his own decision conclusion. However, no such affidavit is filed till date. On a query by this Court, Sri.B.Vachan, learned counsel for the respondent-BDA

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fairly concedes that the property involved in the matter does not belong to BDA. He also submits that the BDA would get the jurisdiction only when the property belongs to BDA. When the above being admitted position this Court is at loss to comprehend the authority's jurisdiction and the justification sought to be offered on behalf of the respondent-BDA in justifying the illegal action of demolishing the property of the petitioner.

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NC: 2023:KHC:35978 WP No. 19180 of 2023

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This Court refrains from making any further observation in the matter. As the above stated facts and circumstances would speak for themselves. Also in view of the fact the petitioner having alternative options of approaching the Civil Court, by seeking appropriate remedy against the erring officer of the BDA, including seeking relief of damages to the property, if any.

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Since the impugned notices and the action contemplated there under has already been given effect to, nothing survives for consideration. However, since the damage to the property that has been caused on account of illegal action on the part of officers of BDA, in view of the demolition of the eastern side of the wall by the illegal act, same can not be left unaddressed. Therefore the respondent-BDA shall have the wall of the eastern side of the petitioner's property, which was demolished, reconstructed at its cost within a period of four weeks from the date of receipt of certified copy of this order.

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NC: 2023:KHC:35978 WP No. 19180 of 2023

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It is made clear all contention of the parties

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namely petitioner, respondent No.2 and the impleading proposed respondent are kept open to be urged before the Competent Court of law, the aforesaid Order and arrangement made herein in view of undisputed facts and admitted unauthorised demolition carried out by respondent-BDA.

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With the above observations, petition is disposed of.

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Any determination of the lis between the parties shall

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be on its own merits and without being influenced by any observation made by this Court.

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Sd/JUDGE

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M/S Fashion Power v. Bangalore Development Authority

Case brief

What is this about?

What did the court decide?

M/S Fashion Power v. Bangalore Development Authority

Case brief

What is this about?

What did the court decide?

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