R. Usha vs Bruhat Bangalore Mahanagara Palike

The appellants, being aggrieved by the order dated 13.8.2014 passed by the learned Single Judge in W.P. No. 36179/2014, have preferred this appeal challenging the legality and correctness of the said order.

Brief facts of the case of the appellants, as averred in the writ appeal, are that they are the lawful owners of the property bearing site No. 11, katha No. 2/3 measuring East-West 30 ft. and North-South 38 ft. situated in Nayandanahalli village, Kengeri Hobli, Bengaluru South Taluk, in ward No. 131 (old No. 39) of Bruhat Bengaluru Mahanagarapa Palike (for short ''the BBMP''). The 1st respondent-BBMP attempted to form public road over the property of the appellants in the year 1998 and hence, the appellants filed O.S. No. 9794/1998 on the file of the City Civil Court at Bengaluru seeking permanent injunction to restrain the defendants therein from forming any road in and over the suit schedule property. After contest, the suit was decreed on 1.10.2005. In spite of the said decree and grant of permanent injunction, the 1st respondent-BBMP and its staff, taking advantage of absence of the appellants, formed public road in and over the site in question and the authorities of BWSSB laid underground drainage and water pipes in the said site. The site/land of the appellants never been acquired by the authorities by following due process of law and the appellants had been deprived of compensation. The appellants have filed Execution No. 53/2007 before the City Civil Court at Bengaluru against 1st respondent-BBMP and its staff for disobedience of the judgment and decree passed in the aforesaid suit and same is still pending.

It is further case of the appellants that, they submitted representation dated 16.3.2012 to the 1st respondent-BBMP as per Annexure-F and sought for allotment of a piece of land or grant of monetary compensation for utilizing their site for formation of the road. General Power of Attorney Holder of the appellants received an endorsement dated 28.9.2012 as per Annexure-H from the BBMP intimating that Katha certificate in respect of the property in question cannot be issued as road had already been formed over the said property. The appellants had also produced extract of the file noting as per Annexure-J said to have been maintained in the office of the 1st respondent. The 2nd respondent issued letter dated 8.7.2014, as per Annexure-K, to General Power of Attorney Holder of the appellants intimating that, upon conducting spot inspection of the property in question, it had been found that a road had been formed in and over the property of the appellants. The appellants were neither given an alternative site nor they were paid compensation for having formed a road on their property. The appellants, therefore, filed W.P. No. 36179/2014, wherein the learned Single Judge has passed impugned order. Hence, the present appeal.

Heard the arguments of learned Counsel for appellants.

Learned Counsel appearing for the appellants, during the course of arguments, submitted that, in spite of injunction order operating against the respondent-authorities, even then, without informing the appellants, the respondents have formed a road on the property of the appellants. Neither the property had been acquired by following due procedure of law nor any compensation had been paid to the appellants. Though the appellants produced documents to show the office noting in the file maintained by the 1st respondent as also the correspondences, it was clearly admitted by the respondent authorities that they had formed road on the property of the appellants. In spite of that, the learned Single Judge has, without perusing the entire materials, committed an error in passing the impugned order. The order under challenge is not a speaking order and the same is liable to be set aside by allowing the appeal. In support of his arguments, learned Counsel for the appellants relied upon the following decisions:

"1. S.R. Ejaz Vs. The Tamil Nadu Handloom Weavers Co-operative Society Ltd.,

R.L. Jain (D) by Lrs. Vs. DDA and Others,

State of U.P. and Others Vs. Manohar,

State of U.P. and Others Vs. Manohar,

Mahesh Chandra Banerji Vs. U.P. Avas Evam Vikas Parishad and Others,

Syed Maqbool Ali Vs. State of Uttar Pradesh and Another,

ILR 2012 KAR 5123 S.P. Sridhar v. State of Karnataka & Ors.

Tukaram Kana Joshi and Others thr. Power of Attorney Holder Vs. M.I.D.C. and Others, "

Perused the records and decisions referred above.

The contention of the appellants that when they suspected that the respondents may make an attempt to form road on their property, they filed a suit in O.S. No. 9794/1998 on the file of the City Civil Court, Bengaluru, seeking permanent injunction against the defendants therein and ultimately, the suit was decreed. It is their further contention that though such injunction order was operating against the respondents and as the appellants were residing at some other place, taking advantage of the same, the 1st respondent and its staff formed a road on the property of the appellants without initiating acquisition proceedings and even they were not paid compensation. The learned Single Judge, while passing the impugned order, in para No. 4 of the order, has observed as under:

"It is not in dispute that the petitioners filed contempt proceedings against the 1st respondent for committing willful disobedience of the order of injunction dated 1.10.2005 and the same is still pending consideration. Learned counsel appearing for the petitioners in response to my query submitted that in the contempt proceedings the respondents have disputed use of any part of the suit land for forming the road. In other words, they have not admitted that any part of the suit land or the land involved in the instant petition, has been used by them for forming the road. It is in this backdrop, learned counsel for the petitioners made an attempt to demonstrate on the basis of the documents annexed to the writ petition that the petitioners land has been used for forming the road. In my opinion, such disputed questions cannot be examined in the instant writ petition. Contempt proceeding is pending before the appropriate court. It is open to the petitioners to prove the allegations of willful disobedience in the said proceedings and if they succeed, they can claim that the portion of land was used for forming the road without acquiring the land and seek appropriate relief including compensation. In any case it cannot be examined in the present writ petition whether petitioners land had been used for forming road, more particularly in view of the dispute raised by the respondents in the contempt proceedings.

In the circumstances, this writ petition is dismissed. All contentions of the petitioners are kept open to be raised in appropriate proceedings or after the contempt proceedings are disposed of."

The learned Single Judge has observed that such disputed questions cannot be examined in the instant writ petition when contempt proceeding is pending before the appropriate court and it is open to the petitioners therein to prove the allegations of willful disobedient in the said proceedings. It is further observed that if petitioners therein succeed, they can claim the portion of the land used for forming the road without acquiring the land and seek appropriate relief including compensation.

We have perused the decisions relied upon by the learned Counsel for the appellants, excerpted above. The application of the said decisions to the case on hand depends upon whether the land of the appellants has been used by the respondent authority for formation of the road. Unless and until the said aspect is established, question of considering prayer of the appellants either in the writ petition or in the writ appeal does not arise.

In State of U.P.''s case (supra), the facts narrated in the said case clearly shows that the respondent''s name to the land in question was deleted high handedly in the revenue records and the name of appellant therein was entered. The respondent was dispossessed from possession of the land and no compensation was paid nor any steps were taken in law for acquiring the land. The observations made by the Hon''ble Supreme Court in para Nos. 5 and 6 of the said decision would indicate that taking over land of the respondent by the appellant authority was not in dispute. Therefore, their Lordships have directed the appellant authorities to pay compensation to respondent as directed by the High Court together with interest at 9% p.a. from 22.2.1999 and cost was also imposed at Rs. 25,000/-.

In Mahesh Chandra Banerji''s case (supra), the observations made by the Apex Court in para Nos. 4, 5, 7 and 21 are relevant for the purpose of our discussion in this case. They read as follows:

"4. Mahesh Chandra Banerji, one of the sons of late Dr. Suresh Chandra Banerji, claims to have acquired knowledge that a Development Scheme known as Yojana No. 7 had been taken up by the Avas Evam Vikas Parishad in 1968 and that a notification under Section 28 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 being U.P. Act 1 of 1966, had been issued on 5-10-1968 and a further notification under Section 32(i) of the Adhiniyam was issued on 25-1-1971, which was published in the Gazette on 13-2-1971. Under the said Scheme along with other lands, the property of late Dr. Suresh Chandra Banerji in Khasra Plot No. 1002, was also proposed to be acquired.

Objections were filed against the proposed acquisition and in response thereto Respondent 1 decided to exclude the residential house of the appellants and the adjoining land from the acquisition. Despite the same, further representations were made by the appellants to allow them full frontal access from G.T. Road to their residential premises, since they wanted to establish a nursing home on the said plot.

Initially, an order of injunction was passed in favour of the appellants, which was subsequently vacated on 19-4-2001. Simultaneously, with the filing of the aforesaid suit, two of the other sons of late Dr. Suresh Chandra Banerji, namely Shri Dinesh Chandra Banerji and Shri Bhavesh Chandra Banerji, filed Civil Miscellaneous Writ Petition No. 18132 of 1998 questioning the acquisition proceedings, but the same was ultimately dismissed on 12-5-1999, on account of the pendency of the suit relating to the same acquisition.

Looking to the contention of the learned Senior Counsel appearing for the appellants in both civil appeals, was that only a part and not whole of plot No. 1002 which according to him measured 15 bighas and 10 biswa had been acquired for the scheme (Yojana No. 7) undertaken by the respondent Parishat. It was urged that out of total area comprising the aforesaid plot, possession had been taken only on 6 bighas and 17 biswa which belonged to one Shivadhan Singh, in whose name compensation has been awarded by the Collector. It is further observed that in fact, it was Mr. Dutta''s stand that no part of the appellants'' land in plot No. 1002 had been acquired for the aforesaid Scheme."

In para Nos. 41 and 42 of the said judgment, their Lordships have observed as under:

"41. All the above questions can either be decided in a properly instituted suit or by the collector on a proper inquiry being conducted. We are therefore, of the view that in order to put a quietus to the dispute, the District Magistrate should conduct a fresh inquiry in order to determine the extent of the lands of the Banerji family which had been included in the acquisition proceedings for the purpose of Yojana No. 7 undertaken by the Parishad upon giving the affected parties an opportunity of placing their respective cases.

The District Magistrate, Aligarh is, therefore, directed to conduct an enquiry in order to determine the extent of land belonging to the Banerji family which is said to have been acquired for the purposes of the scheme covered by Yojana No. 7 undertaken by Respondent 1 Parishad and to also determine as to whether the same was included in the 6.17 bighas of land possession whereof had been taken earlier. In the event the lands have not been included within the ambit of the acquisition proceedings, as indicated by the Additional District Magistrate (V.R.), Aligarh, then, in such an event, the compensation for the same is to be assessed and award is to be made in respect thereof, in accordance with law. On the other hand, if the said lands have been included within the 6.17 bighas in respect of which compensation had already been awarded, the District Magistrate shall, after identification of the lands of the appellants, apportion the compensation payable to them and make an award accordingly."

In Syed Maqbool Ali''s case (Supra), the Hon''ble Supreme Court has held as under:

"B. Land Acquisition Act, 1894 - S. 18 - Reference - Maintainability - Land not having been acquired under LA Act, S. 18 reference, held, is not maintainable -Therefore, High Court was not justified in dismissing writ on ground that remedy under S. 18 had not been exhausted."

In the case on hand and as observed by the learned Single Judge in the impugned order, as per the submissions made by learned Counsel for the writ petitioners, the respondents have disputed use of any part of the land of the appellants for forming the road. Therefore, looking to the facts and circumstances involved in the decisions relied upon by the learned counsel for the appellants and the facts and circumstances in the case on hand, they are not similar. The appellants cannot seek any relief before this Court without establishing the fact of use of their land for formation of road by the respondent authorities with satisfactory materials. They have opportunity to establish their case to the satisfaction of the Court, where the contempt proceedings are admittedly pending.

The averments in the writ petition would indicate that originally, the land bearing Site No. 11, katha No. 2/3 measuring East-West 30 ft. and North-South 38 ft. situated in Nayandanahalli village, Kengeri Hobli, Bengaluru South Taluk, in ward No. 131 (old No. 39) of BBMP belonged to the appellants. In respect of the said extent of site, the appellants said to have filed civil suit O.S. No. 9794/1998. So far as the averments in the writ appeal, at para No. 4, it is mentioned that subsequent to the disposal of the suit O.S. No. 9794/1998, the appellants herein through their GPA Holder sold the eastern portion of residential site bearing No. 11, Katha No. 2/3 measuring East-West 15 ft. and North-South 38 ft. Nayandanahalli, Kengeri Hobli, Bengaluru to Smt. K Anitha by a registered sale deed dated 3.4.2006. In view of this variance, the Court, where the contempt proceedings are pending, is required to ascertain as to what is the extent of land of the appellants and whether the entire extent of site or any portion thereof has been used for formation of the road as contended by the respondents in the said contempt proceedings. The contention of the appellants is that even though they filed civil suit and obtained permanent injunction, the respondent authorities have used their land for formation of the public road. Therefore, it is for the contempt Court to appreciate the said rival contention. Looking to the materials on record, the learned Single Judge has rightly passed the order impugned and directed the parties to raise their contentions in the appropriate proceedings or after the contempt proceedings are disposed of.

Therefore, under the circumstances, we do not find any illegality in the impugned order. There are no valid and justifiable grounds to interfere with the order of the learned Single Judge. Hence, the writ appeal is dismissed.