Dismissed

Maruthi Education and Seva Trust(Regd) v. Bangalore Development Authority

Karnataka HC9 Sept 2024RFA/121/2018

Case brief

AI extract

What is this about?

Plaintiffs sought permanent injunction over land in Sy.No.11/2, Laggere, claiming BDA acquisition had lapsed for want of development and possession. The trial court dismissed the suit; this Court held acquisition was completed and land vested in BDA under Section 16 BDA Act, and lapse could not be decided in a bare injunction suit, and dismissed the appeal.

What the court decided

AI extract

Maruthi Education and Seva Trust(Regd) Vs Bangalore… — Land Acquisition | Karnataka HC (2024)

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NC: 2024:KHC:36960 RFA No. 121 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 121 OF 2018 (PAR/INJ)

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BETWEEN:

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MARUTHI EDUCATION AND SEVA TRUST, (REGD) OFFICE AT NO.177, 5TH CROSS, SARASWTHIPURA, NANDINI LAYOUT, BENGALURU CITY - 560 094, REPRESENTED BY ITS CHAIRMAN & MANAGING TRUSTE, SRI.T.A.HONNAIAH, SON OF LATE AMASE GOWDA, AGED ABOUT 70 YEARS.

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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SMT. MUTHAMMA, WIFE OF LATE MUNIGANGAPPA, AGED ABOUT 63 YEARS, NO.676, 2ND MAIN ROAD, 3RD CROSS, RAJARAJESHWARI NAGARA, BENGALURU - 560 094. REPRESENTED BY HER GENERAL POWER OF ATTORNEY HOLDER, SRI.T.A.HONNAIAH.

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(BY SRI.FAYAZ SAB B. G., ADVOCATE)

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AND:

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…APPELLANTS

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

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THE SLUM CLEARANCE DEVELOPMENT BOARD,

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NC: 2024:KHC:36960 RFA No. 121 of 2018

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REPRESENTED BY ITS SECRETARY, RISALDAR STREET ROAD, SHESHADRIPURAM, BENGALURU - 560 009.

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…RESPONDENTS

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(BY SRI.HARSHA, ADVOCATE FOR SRI.SACHIN B. S., FOR R1, ADVOCATE)

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THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.11.2017 PASSED IN OS NO.1047/2013 ON THE FILE OF THE XXXIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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JUDGMENT

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Heard Sri.Fayaz Sab B. G., learned counsel for the appellants, Sri.Harsha, learned counsel appearing on behalf of Sri.B.S.Sachin, learned counsel for respondent No.1 and Sri.N.Manohar, learned counsel for respondent No.2.

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Unsuccessful plaintiffs in O.S.No.1047/2013 are the appellants challenging the judgment and decree dated 22.11.2017 whereby, suit came to be dismissed.

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Brief facts of the case which are utmost

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necessary for disposal of the appeal are as under:

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3.1. Plaintiff No.1 claiming to be the trust, having registered on 07.05.1993 for the purpose of establishing educational institution contended that one V.Thimmaiah, was the owner of the property and at an undisputed point of time, his name appeared as the owner of the suit property in revenue records.

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3.2. It is further contended that plaintiff No.2 – Muthamma’s father in law and her husband having died, left behind plaintiff No.2 as the only legal heir.

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3.3. It is further contended that V.Thimmaiah was

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the owner of the landed property in Sy.No.11/2 of Laggere Village, Yeshwanthpur Hobli, Bangalore North Taluk

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measuring 6 acres and having boundaries as under:

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East by : Government Rind Road (Sy.No.14) West by : Big Drainage North by : Sy.No.12 and KSB Houses South by : Drainage and Bridge

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NC: 2024:KHC:36960 RFA No. 121 of 2018

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3.4. It is further contended that defendant No.1 –

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BDA, acquired various lands including the suit property by issuing preliminary notification dated 22.11.1997 and for the formation of Extension of Mahalakshmi Layout (Nandini Layout). The final notification came to be issued on 20.09.1979 and award came to be passed in the year 1982.

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3.5. Father in law of plaintiff No.2 has not taken any compensation. Thereafter, there was no development in the land and as such, acquisition has lapsed and plaintiffs continued to be in the possession of the suit property. When there was a high handed interference by the defendants, the plaintiffs were constrained to file the suit for permanent injunction.

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3.6. It is also contended that Writ Petition was filed earlier by the plaintiffs in Writ Petition No.9766-9767/2011 seeking writ of mandamus to consider the representation given by the plaintiffs for de-notifying the land in the suit property.

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3.7. It is also contended that Writ Petition came to

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be dismissed and later on, plaintiffs approached the Hon’ble Supreme Court in SLP(Civil) CC No.1715152/2012 and said SLP came to be dismissed. Thereafter, plaintiffs were constrained to file the suit on the ground that even after lapse of 35 years, there was no development in the suit property and physical possession of the property was not taken by the defendants from the plaintiffs and thus, sought for decreeing the suit.

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Pursuant to the suit summons, defendant No.1 filed detailed written statement admitting the portion of plaint averments namely paragraph No.5 and all other averments were denied.

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It is further contended by defendant No.1 that ever since the date of preliminary notification till the date of final notification, entire land in Sy.No.11/2 was under the acquisition proceedings and it is now in the possession of defendants and therefore, there is no iota of truth averments made in the plaint.

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NC: 2024:KHC:36960 RFA No. 121 of 2018

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Defendant No.2 also filed detailed written

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statement admitting the notification of the land and denying other averments made in the plaint and also contended that Civil Court has no jurisdiction to entertain the suit.

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Based on the rival contentions of the parties,

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learned trial Judge raised necessary issues and after recording the evidence of the parties, dismissed the suit of the plaintiffs by recording a categorical finding that the suit property is properly acquired by the BDA after following all necessary and requisite procedure.

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Being aggrieved by the same, plaintiffs are in

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before this Court, in this appeal on the following grounds:

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That, the Judgment/Decree dated 22.11.2017 passed by the Trial Court/Court below is totally erroneous, arbitrary, contrary to the facts of the case, material on record, evidence available in the file and law. The same is most arbitrary, capricious and contrary to law and the same is liable to be set-aside in limine.

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The Court below has totally ignored the very cardinal principles of law that, one V.Thimmaiah was the sole and absolute owner in possession and enjoyment of the suit

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Schedule Property even prior to initiation of acquisition proceedings in the year, 1977. Since from the date of allotment Sri.V.Thimmaiah was in peaceful possession and enjoyment of the same without any let or hindrance from anybody by exercising all rights of ownership by effecting all the revenue records in his name. Hence the impugned Judgment and Decree dated 22.11.2017 is illegal, arbitrary, capricious and the same is passed without application of mind and the same is liable to be set-aside.

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 The Court below has totally failed to appreciate the fact that, though the acquisition proceedings were initiated in the year, 1977 and Final Notification was issued on 20.09.1979 and compensation was awarded in the year, 1982. Though the acquisition proceedings were initiated about more than 35 years ago, but till date no developmental activities taken place in the said land. The Court below has utterly failed to appreciate the fact that more than 35 years is over from the date of initiation of acquisition proceedings, so far no developmental activities were taken place in the said land. Therefore the Scheme formulated by the Second Respondent is lapsed by operation of law as provided under Section 27 of the Bangalore Development Authority Act, 1976. Hence the impugned Judgment and Decree dated 22.11.2017 is illegal, arbitrary, capricious and the same is passed without application of mind and the same is liable to be set-aside.

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 That the Court below utterly failed to appreciate the facts that Sri.SUDHEER.H.P, the representative of Respondent No.2 appeared before the Trial Court and adduced his evidence and in the Cross Examination the DW1 clearly admitted that Survey No.11 of the Laggere Village total measuring 35 acres and 05 guntas.

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Further he replied in the Cross-Examination that I do not know that subsequently survey No.11 was phoded and assigned sub-numbers and further replied that " I do not know that Survey No.11/2 measuring 6 acres is standing in the name of V.Thimmaiah. It is relevant to mention that the Trial Court has miserably failed to appreciate the reply given by the DWI in the Cross Examination that Qus: Inspite of interim order we have put up temporary structures on the suit Property? Ans: We have put up structure on Survey No.11 not Survey No.11/2. The reply of the DW1 clearly establishes the fact that none of the Respondents are in physical possession of the suit Schedule Property. On contrary it clearly establishes the fact that the Plaintiffs herein are in physical possession of the suit Schedule Property. Hence the impugned Judgment and Decree dated 22.11.2017 is illegal, arbitrary, capricious and the same is passed without application of mind and the same is liable to be set-aside.

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 That the Court below grossly failed to appreciate the relevant facts that in the Cross Examination DW1 Sri.Sudheer.H.P. categorically admitted that "According to me the Survey No.11 is no way related to Survey No.11/2. It is true that 11/2 is pond and BBMP had dumped debris and leveled it. This aspect of the matter clearly prove the fact that the Respondents have not acquired the Schedule Property as alleged in the Written Statement. Hence the impugned Judgment and Decree dated 22.11.2017 is illegal, arbitrary, capricious and the same is passed without application of mind and the same is liable to be set- aside.

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The Court below grossly erred in coming to a wrong conclusion that in the Cross-Examination of DWI the Plaintiffs themselves have put suggestion that Sy.No.11 of Laggere Village

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NC: 2024:KHC:36960 RFA No. 121 of 2018

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was notified for acquisition under Preliminary Notification dated 22.12.1977 and the said acquisition was for the purpose of further extension of Mahalakshmi Layout ( Nandini Layout) and final Notification was issued on 20.09.1979. Further the Trial Court has come to a wrong conclusion that the suggestion put by the Plaintiff's Counsel itself establish that the land in Sy.No.11 was acquired by BDA. This findings is given by the Learned Trial Judge by ignoring the cordial admission that the DW1 in Cross Examination clearly and categorically admitted that Sy.No.11/2 is not acquired by the BDA for any purpose. Further in the CrossExamination the Official of the Second Respondent who was examined as DWI has categorically admitted that the Sy.No.11/2 is not subject matter of land Acquisition and the said land was a deep ditches and the BBMP used the said Schedule Property to fill debris and solid waste. This cardinal fact was ignored by the Learned Trial Judge while passing the impugned Judgment and Decree on 22.11.2017. Hence the impugned Judgment and Decree dated 22.11.2017 is illegal, arbitrary, capricious and the same is passed without application of mind and the same is liable to be set-aside.

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7. The Court below failed to appreciate that, the suit Schedule Property bearing Sy.No.11/2 was not the subject matter of acquisition. Further it is relevant to mention that Sy.No.11 is totally measuring 35 acres and the said Survey number was podied and assigned new Survey Numbers as 11/1, 11/2, 11/3, 11/4, 11/5, 11/6, 11/8, 11/9 and 11/10. Thus mere suggestion in Cross-Examination of DW1 that Sy.No.11 was acquired by the BDA, it will not construe the fact that the Sy.No.11/2 is also acquired by the BDA. Thus the Learned Trial Judge has wrongly construed the facts of the case and oral deposition given by the Officials

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NC: 2024:KHC:36960 RFA No. 121 of 2018

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of BDA as DW1. Hence the impugned Judgment and Decree dated 22.11.2017 is illegal, arbitrary, capricious and the same is passed without application of mind and the same is liable to be set-aside.

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The Court below grossly erred in framing as many as 3 Issues which were framed by the Trial Court was absolutely not necessary particularly in the suit for Permanent Injunction and improper issues have been framed in the suit for Permanent Injunction.

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 The Trial Court has failed to appreciate the facts of the case that V.Thimmaiah was the sole and absolute owner of the suit Schedule Property. After the death of V.Thimmaiah, the Second Appellant succeeded to the estate left behind by their father. Since then the Appellants herein are in continuous and undisturbed physical possession and enjoyment of the same without nay let or hindrance from any body by exercising all rights of ownership. Hence, the findings of the Trial Court on all the Issues are not at all required. The Trial Court has not properly appreciated the oral and documentary evidence. Hence, the finding of the Trial Court to dismiss the suit of the Appellants is liable to set-aside by allowing this Appeal. Hence the impugned Judgment and Decree dated 22.11.2017 is illegal, arbitrary, capricious and the same is passed without application of mind and the same is liable to be set- aside.

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The Trial Court failed to consider the true material facts available on record, that, the Appellants herein have produced many records, in order to establish the fact that, the suit Schedule Property is their ancestral property and the Respondents herein have not taken the physical possession of the suit Schedule Property till the date of institution of the above

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NC: 2024:KHC:36960 RFA No. 121 of 2018

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suit. In order to establish the fact that the Appellants herein are in physical possession of the suit Schedule Property have produced several documents, such as RTCs and complaints lodged by the Appellants against the Respondents before the Jurisdictional Police. That the Court below utterly failed to appreciate that after perusing the documents placed before the Trial Court, was pleased to grant an Interim Order of Temporary Injunction against the Respondents. Hence, the impugned Judgment and Decree dated 22.11.2017 is illegal, arbitrary, capricious and the same is passed without application of mind and the same is liable to be set-aside.

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 The Court below failed to appreciate that, originally the suit Schedule Property bearing Sy.No.11/2 measuring 6 Acres of Laggere Village was exclusively belongs to Sri.V.Thimmaiah. During his life time he was in peaceful possession and enjoyment of the suit Schedule Property without any let or hindrance from anybody by exercising all rights of ownership by changing all the revenue records in his name. This aspect of the matter is not considered by the Trial Court while passing the impugned Judgment and Decree dated 22.11.2017. Hence, the impugned Judgment and Decree dated 22.11.2017 is illegal, arbitrary, capricious and the same is passed without application of mind and the same is liable to be set-aside.

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That, the other legal grounds will be urged at the time of final hearing of the Appeal.

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Sri.Fayaz Sab B. G., learned counsel for the

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appellants, reiterating the grounds urged in the appeal

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memorandum, contended that physical possession of the property has not been taken by the BDA in accordance with the provisions of BDA Act and compensation having been withdrawn by the plaintiffs or V.Thimmaiah and noting that there is no development made by the BDA, the acquisition stood lapsed and possession of the property is sought to be protected by the plaintiffs by filing the suit for bare injunction. Therefore, dismissal of the suit has resulted in miscarriage of justice and sought for allowing the appeal.

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Per contra, learned counsel for the respondents support the impugned judgment.

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They also contended that acquisition is complete and property is now handed over to the Karnataka Slum Development Board for the purpose of dumping yard and a temporary shed has been put up by the Karnataka Slum Development Board in Sy.No.11 and Sy.No.11/2 actually the garbage is being dumped and land in Sy.No.11/2 is nothing but a pond which now does not

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NC: 2024:KHC:36960 RFA No. 121 of 2018

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exist and therefore, garbage is being dumped in the said land. Therefore, dismissal of the suit by the Trial Court is just and proper and sought for dismissal of the appeal.

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Having heard the parties in detail, this Court perused the material on record meticulously.

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On such perusal of the material on record, Ex.P.1 is the RTC extract filed by the plaintiffs wherein it has been clearly mentioned that land in Sy.No.11/2 is mutated in the name of BDA after the acquisition proceedings have been completed.

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It is settled principles of law and requires no emphasis that when once necessary orders have been passed under Section 16 of BDA Act, there is an automatic testing of land with the BDA.

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Now coming to the question of lapse of acquisition is concerned, the same is not the subject matter of the suit for bare injunction filed by the plaintiffs.

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NC: 2024:KHC:36960 RFA No. 121 of 2018

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Further, plaintiffs have also approached this Court in WP No.9766-9767/2011 which came to be dismissed. Later plaintiffs preferred an appeal before the Hon’ble Supreme Court in SLP (Civil) CC No.1715152/2012 seeking to consider the issue of mandamus vide Ex.P.4 which also came to be dismissed. Ex.P.4 is the document, wherein plaintiffs have made a representation to the Chief Minister to de-notify the land and hand it over to the plaintiffs.

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Admittedly, when all efforts of the plaintiffs to somehow cling on to the suit property failed, they approached the Civil Court and by virtue of an interim order, they continued in so called possession of the property.

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Suit on merits came to be dismissed. Ex.D.3 is the document on which the Trial Court has placed the reliance and then found that acquisition proceedings were completed long bank and possession has also been taken by the BDA.

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The contention of the plaintiffs that the land is

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not developed and compensation has not been paid and therefore, acquisition has lapsed, cannot be decided in a suit for bare injunction.

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Under such circumstances, dismissal of the suit filed by the plaintiffs by the Trial Court is just and property

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and does not warrant any consideration further.

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21. Accordingly, the following:

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ORDER

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i. Appeal is meritless. Hence, admission

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declined.

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ii. Appeal is dismissed.

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iii. No order as to costs.

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Sd/(V SRISHANANDA) JUDGE

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KAV/List No.: 1 Sl No.: 47

Maruthi Education and Seva Trust(Regd) v. Bangalore Development Authority

Case brief

What is this about?

What the court decided

Maruthi Education and Seva Trust(Regd) v. Bangalore Development Authority

Case brief

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What the court decided

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