Smt. Shubha Vs Smt. Nagamma

SMT. ARUNA KUMARI D/O T. SIDDAPPA AND LATE NAGAMMA AGED ABOUT 47 YEARS R/AT NO.19/36, 2ND CROSS RAMASHETTY LAYOUT BYATARAYANAPURA SAHAKARANAGARA POST BANGALORE 560092.

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V. SHOBHA AGED ABOUT 28 YEARS GRAND DAUGHTER OF NAGAMMA D/O LATE VASANTHA @ VASANTHA KUMAR AND PUNYAVATHI.

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SWETHA AGED ABOUT 26 YEARS GRAND DAUGHTER OF NAGAMMA D/O LATE VASANTHA @ VASANTHA KUMAR AND PUNYAVATHI.

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RESPONDENT NOS.3 & 4 ARE R/AT VIDYHI LAYOUT KITHAGANUR MAIN ROAD BIDARAHALLI HOBLI VINOBNAGARA POST BANGALORE 560049.

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SMT. NAGAVENI AGED ABOUT 50 YEARS DAUGHTER IN LAW OF NAGAMMA

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HC-KAR

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W/O LATE VASANTHA @ VASANTHA KUMAR.

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SEEMA AGED ABOUT 26 YEARS GRAND DAUGHTER OF NAGAMMA D/O LATE VASANTHA @ VASANTHA KUMAR AND NAGAVENI.

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RESPONDENT NOS.5 & 6 ARE R/AT GUNJUR PALYA GUNJUR POST, VARTHUR HOBLI BANGALORE 560 087.

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SMT. SUSHEELAMMA D/O LATE MUNIYAPPA AGED ABOUT 60 YEARS R/AT NO.506, BYAPPANAHALLI BANGALORE 560038.

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JAGADESHA

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(SINCE DECEASED BY HIS LRS).

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SMT. BHAGYA AGED ABOUT 43 YEARS W/O LATE JAGADEESHA.

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HEMANTH KUMAR .J AGED ABOUT 29 YEARS S/O LATE JAGADEESHA.

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SMT. RAMYA .J AGED ABOUT 28 YEARS D/O LATE JAGADEESHA.

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RESPONDENT NOS.8 TO 10 ARE R/AT NO.167 BIDARE AGRAHARA VIRGONAGARA BANGALORE 560049.

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HC-KAR

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SRINIVASA S/O LATE VENKATAPPA AND DEVAMMA AGED ABOUT 48 YEARS R/AT NO.6/3, 1ST CROSS G-STREET, JOGUPALYA, ULSOOR BANGALORE 560008.

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SOMASHEKAR

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(SINCE DECEASED BY HIS LRS).

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SMT. SHASHIKALA AGED ABOUT 64 YEARS W/O LATE SOMASHEKAR.

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MANISH .S AGED ABOUT 46 YEARS S/O LATE SOMASHEKAR.

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SHAMANTHA .S AGED ABOUT 44 YEARS D/O LATE SOMASHEKAR.

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RESPONDENT NOS.12 TO 14 ARE R/AT NO. 5, ANJANADRI NILAYA L L ENCLAVE, LAKE VIEW ROAD KALKERE CHANNASANDRA BANGALORE 560043.

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SMT. VANAJAKSHI D/O LATE M. SHIVANNA AGED ABOUT 49 YEARS.

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RAMESH S/O LATE M. SHIVANNA AGED ABOUT 46 YEARS.

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SMT. CHANDRAKALA D/O LATE M. SHIVANNA AGED ABOUT 44 YEARS.

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HC-KAR

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BHASKAR @ BABU S/O LATE M. SHIVANNA AGED ABOUT 42 YEARS.

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SMT. ANITHA D/O LATE M. SHIVANNA AGED ABOUT 40 YEARS.

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RESPONDENT NOS.15 TO 19 ARE R/AT 3RD CROSS NEAR RAMASWAMY TEMPLE NEW BYAPPANNAHALLI BANGALORE 560038.

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M. GOPALAKRISHNA S/O LATE MUNIYAPPA AGED ABOUT 56 YEARS R/AT NO. 1/1, 3RD CROSS BYAPPANNAHALLI EXTENSION BANGALORE 560038.

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M. PUSHAPARAJ @ KANAKARAJU S/O LATE MUNIYAPPA AGED ABOUT 43 YEARS R/AT NO.1/4, 3RD CROSS BYAPPANNAHALLI EXTENSION BANGALORE 560038.

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SMT. JAYAMMA

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SINCE DECLARED AS DEAD BY HER LR'S.

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SMT. PADMA D/O THIMMAIAH AND JAYAMMA AGED ABOUT 36 YEARS.

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T. PRASAD S/O THIMMAIAH AND JAYAMMA AGED ABOUT 40 YEARS.

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RESPONDENT NOS.22 TO 23 ARE R/AT NO. 76, 1ST MAIN ROAD

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HC-KAR

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SUDDAGUNTE PALYA C.V. RAMANAGAR POST BANGALORE 560016.

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SMT. R. JAYAMMA W/O LATE M. SHIVANNA AGED ABOUT 72 YEARS R/AT NO.1/3, III CROSS NEW BYAPPANAHALLI EXTENSION BANGALORE 560038.

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SMT. PRABHAVATHI D/O LATE VENKATAPPA AND LATE DEVAMMA W/O GOPALAKRISHNA AGED ABOUT 45 YEARS R/AT NO. 1/1, III CROSS NEW BYAPPANAHALLI EXTENSION BANGALORE 560038.

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SMT. V. VANAJAKSHI D/O LATE VENKATAPPA AND LATE DEVAMMA W/O B.M. MUNIRAJU MAJOR R/AT NO.16/8 RAMASHETTY LAYOUT KALLESHWARA NILAYA BELLARY ROAD BYATARAYANAPURA BANGALORE 560092.

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SMT. V. MANJULADEVI D/O LATE VENKATAPPA AND LATE DEVAMMA W/O.GOPALAIAH AGE MAJOR R/AT NO.50/3, 1ST CROSS 1ST MAIN, INDIRAGANDHI ROAD UDAYANAGAR DURAVANINAGAR POST

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HC-KAR

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BANGALORE 560016.

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SMT. V. LEELAVATHI D/O LATE VENKATAPPA AND LATE DEVAMMA W/O B. NAGARAJU R/AT NO.58/3, 1ST MAIN 4TH CROSS, MAHESWARINAGARA BANGALORE 560048.

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SRI. MUNIRAJU S/O LAKKAPPA AGED ABOUT 62 YEARS R/AT. DR. RAJKUMAR CIRCLE S.G. PALYA, C.V. RAMAN NAGAR BANGALORE-93.

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[AMENDED AS PER THE ORDER DATED 18.04.2022]

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…RESPONDENTS

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(BY SRI. MUNISWAMAPPA G, ADV., FOR R1 - R11, R22, R23, R25 - R28 SRI. S. VIJAYAKUMAR, ADV., FOR SRI. N. NAGARAJA, ADV., FOR R15-R18, R20, R21 & R24 SRI. C.V. KRISHNAN, ADV., FOR R29 R12 - SHASHIKALA - SD R13 - MANISH S - SD R14 - SHAMANTHA S - SD R19 - ANITHA - SD)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE ORDER DTD.20.6.2020 PASSED BY THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-32) IN FDP NO.106/2012 ON THE IA NO.XIII FILED BY THE PETITIONER ANNEXURE-A. QUASHING THE ORDER DTD.12.10.2020 PASSED BY THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE IN FDP NO.106/2012 VIDE ANNEXURE-A. QUASHING/SETTING ASIDE THE AUCTION PROCEEDINGS DTD.9.10.2019 CARRIED OUT PURSUANT TO THE ORDER DTD 14.06.2019 PASSED BY THE XX

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HC-KAR

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ADDITIONAL CITY CIVIL AND SESSIONS JUDGE IN FDP NO.106/2012 VIDE ANNX-A1 & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed challenging the order dated 20.06.2020 passed on IA.No.13 and order dated 12.10.2020 in FDP.No.106/2012 by the XX Additional City Civil and Sessions Judge, Bengaluru (for short ‘the trial Court’).

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Sri.Arun B.K., learned counsel appearing for the petitioners submits that the petitioners had filed an application seeking refund of the bid amount deposited by them pursuant to the public auction dated 09.10.2019, as they were the successful bidders in auction of the property, on the ground that the entire property notified for auction was not available for enjoyment. It is submitted that in view of the notification dated 11.05.2020 issued by the Urban Development Department an extent

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HC-KAR

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of 11 meters from the last of the pillars of the metro is unavailable for development and required to be kept as a buffer zone. However, the trial Court erroneously rejected the application by recording the reason that the metro pillar was not situated within the auctioned property and that the petitioners had failed to produce any genuine documents to show that there is a restriction in use and enjoyment of the property. It is further submitted that it was the duty of the Commissioner, who has put the property for auction to disclose the buffer zone restriction and any encumbrance as required under Order XXI Rule 66 of the Code of Civil Procedure, 1908 (for short ‘CPC). In the absence of such disclosure, the auction purchasers can always withdraw from the auction and seek refund of the amount deposited. Hence, he seeks to allow the petition.

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Per contra, Sri.S.Vijayakumar G., learned

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counsel for Sri.N.Nagaraj, learned counsel appearing for respondent Nos.15 to 18, 20, 21 and 24 submits that he has no objection to allow the writ petition and no objection

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HC-KAR

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to the petitioners receiving a refund of the 25% advance

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bid amount deposited by them. It is submitted that, on instructions received from the other respondents and parties to the FDP proceedings that all the family members

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have now agreed to sell the property in favour of respondent No.18 i.e. Sri.Bhaskar, who has agreed to purchase the said property, if this writ petition is disposed of. His submission is placed on record.

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I have heard the arguments of the learned counsel for the petitioners, the learned counsel for the respondents and meticulously perused the material available on record.

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Considering the submissions and taking note of

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the disputes, I am of the considered view that the trial Court has committed a grave error in recording the finding that the petitioners had failed to place the material before

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the Court to substantiate their contention regarding their inability to enjoy the entire extent of the property. The

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notification dated 11.05.2020 issued by the Under Secretary to Government (PMC), Urban Development Department, produced by the petitioners, clearly indicates that 11 meters of width in plan from the outer edge of the metro underground structures on either side including the width of the metro structures as “influence zone of Bengaluru Metro”. The said notification further indicates that no new construction of structures, drilling of boreholes, demolitions/modifications/alterations of the existing structures in the “influence zone of Bengaluru Metro” is permitted without the consent of BMRCL.

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6. The perusal of the said notification clearly

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indicates that the authority has created embargo in enjoyment of property within the “influence zone of Bengaluru Metro” and as per the material available on record, it clearly demonstrates that the property falls within the influential zone of the Bengaluru Metro. Considering the aforesaid facts, I am of the view that if the auction purchasers, who are also family members,

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HC-KAR

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wanted to withdraw from the auction in view of the said notification, there cannot be any impediment in permitting them to do so. It is also not in dispute that the said embargo of influential zone of Bengaluru Metro was neither disclosed to the petitioners at the time of the auction nor brought to their notice before they deposited 25% of the advance bid amount. Hence, for the aforementioned reasons and in view of the specific stand taken by the other contesting parties to the proceedings that now respondent No.18, Sri.Bhaskar or his nominee is intending to purchase the property, I proceed to pass the following:

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ORDER

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