Sri. S. Balaraju Vs the Commissioner

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO: QUASH THE ANNEXURE-A I.E., ENDORSEMENT DTD 4.6.2019 ISSUED BY THE R1 IN RESPECT OF SITE NOS.290/A, 777 AND 777A SITUATED AT 33^RD CROSS, 4^TH BLOCK, JAYANAGAR, BANGALORE VIDE ANNEXURE-A AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Petitioner is before this Court seeking following reliefs:

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"a) Quashing the Annexure "A" ie., endorsement dated 4.6.2019 issued by the first respondent in respect of site Nos.290/A, 777 & 777A situated at 33^rd Cross, 4th Block, Jayanagar, Bangalore vide Annexure "A"

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b) Issue a writ of mandamus directing the first respondent to allot the sites bearing site Nos.777 and 777A in favour of the petitioner and the respondents in respect of site Nos.777 and 777A, as per the orders passed in RFA No.1476/2005, R.P.No.369/2008 dated 19.6.2012 and W.P.No.4955/2014 dated 04.10.2014 and also legal opinion given by the law officer BDA. Vide Annexures-C, E & F".

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Case of the petitioner is that one S.Konaraju, the original propositus had three sons by name S.Narasaraju,

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S.Subbaraju and S.Muniswamy Raju. Land in Sy.Nos.22 and 23 of Thayappanahalli Village, Uttarahalli Hobli, Bengaluru, was

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the subject matter of acquisition. The then CITB had jointly allotted three sites namely site bearing Nos.290A, 777, 777A to the family of said S.Konaraju. Since Sri.S.Narasaraju was the kartha of the family the allotment was in his name. Sri.Muniswamy Raju passed away leaving behind PetitionerSri.S.Balaraju as his heir. However, site which was otherwise required to have been allotted to the share of Muniswamy Raju.

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Petitioner had earlier filed a suit in O.S.No.2951/1980 for partition and the same came to be dismissed against which he had filed an appeal in RFA No.1476/2005. Learned counsel for petitioner draws the attention of this Court to paragraph 10 of the said Judgment, which reads as under:

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"10. Liberty is reserved to the plaintiffs representing the branch of S.Munuswamyraju to approach the Bangalore Development Authority for re-conveyance of site No.777 and defendants 1(a) to (g) in respect of site No.777A. As per the request of S.Narasaraju the then CITB reconveyed the site No.290A in favour of his daughter the 4^th defendant herein. The plaintiffs and other defendants cannot have any right in respect of site No.290A reconveyed to 4^th defendant. So also, the defendants cannot have any objections for the plaintiffs to claim site No.777 with the Bangalore Development Authority if they are so entitled according to law. Similarly, the plaintiffs and other defendants cannot have any objection for defendants 1(a) to (g) to claim site No.777A with the BDA if they are so entitled and in accordance with law."

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Referring to above learned counsel for the petitioner submits that liberty was reserved to the petitioner herein to make a representation to the respondent-BDA seeking allotment of Site No.777 and respondent-BDA was to pursue the same in accordance with law. He submits without adhering to said direction respondent authorities issued an endorsement dated 04.06.2019 at Annexure-A. He submits reasons assigned in the said endorsement is untenable. Inasmuch as there was specific direction issued by this Court in its Judgment in RFA No.1476/2005 reserving liberty to the petitioner to seek allotment of site No.777 and corresponding obligation of the respondent-BDA to consider the same, it is this which has led to the fresh cause of action to the present petition. Hence, he submits respondent-BDA be directed to allot the said site in the name of petitioner.

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Sri.V.B.Shivakumar, learned counsel appearing for the private respondents submits petitioner has already filed suit in O.S.No.6665/2015 seeking following substantial reliefs:

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a) Declare that the re-conveyance sale deed dated 27.01.2015 made in respect of schedule property in favour of defendants 6 and 9 by the defendants 12 and 13 is null void and not binding on the plaintiff and

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defendants 1 to 3 as they are entitled to the site No.777 the schedule property.

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b) Grant a mandatory injunction directing the 12^th and 13^th defendants to execute the necessary reconveyance/sale deed in favour of the plaintiff and defendants 1 to 3 as per judgment in RFA No.1476/2005.

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c) Grant permanent injunction restraining the 14^th defendant from changing the khata in favour of the defendants 6 and 9 in respect of the suit schedule property.

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d) Award costs of this suit and grant such other reliefs in the facts and circumstances of the case in the interest of justice and equity."

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and that the said suit is pending consideration. He submits

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that until and unless rights of the parties are determined the petitioner cannot seek quashing of the Annexure-A and consequent relief of allotment of site in his name. He submits that the present petition is only to over-reach the pending proceedings in O.S.No.6665/2015 which cannot be considered. Hence, seeks for dismissal of the petition.

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Learned counsel for respondent-BDA supplementing

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the submissions made by learned counsel Sri.V.B.Shivakumar submits that in the event of petitioner succeeding in the suit which is stated to be pending consideration and makes application thereafter it would be considered in accordance with law.

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Heard and perused the records.

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There is no dispute of the fact that the petitioner had earlier approached the trial Court by filing a suit and High Court by filing Regular First Appeal as well as by filing a writ petition seeking several directions. The fact remains that there exists a private interse dispute between the petitioner and private respondents with regard to entitlement of their properties and the said matter is pending consideration in the aforesaid suit in O.S.No.6665/2015.

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Since the facts at hand involve complicated and disputed question of fact, this Court do not deem it appropriate to show any indulgence in the matter under Article 226 of the Constitution of India particularly when the matter is being considered by the trial Court involving very same claim being made by the petitioner.

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In that view of the matter petition is disposed of with liberty to petitioner to pursue the remedy as already sought for. However, it is made clear that the allotment/reconveyance that is made by respondent-BDA in favour of respondent Nos.12 to 14 and 17 is subject to outcome

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of the said suit. Impugned endorsement dated 04.06.2019 at Annexure-A issued by the respondent-BDA shall be kept in abeyance until determination of rights of the parties in the said suit.

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No opinion is expressed with regard to rights of the parties.

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SD/(M.G.S. KAMAL) JUDGE

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SBN List No.: 1 Sl No.: 13

Sri. S. Balaraju v. the Commissioner

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Sri. S. Balaraju v. the Commissioner

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