V. Nagendra vs Income Tax Layout Residents Welfare Association No. 3

H.G. Ramesh, J.—Petitioners have sought for writ of certiorari to quash the letter/communique dated 24-6-2014 addressed by respondent No. 3 to respondent No. 4 vide Annexure-Y in recommending respondent No. 4 to take action to demolish the existing structures found on 12 guntas of land in survey No. 6/2 of Benniganahalli Village, K.R. Puram Hobli, Bangalore South Taluk and direct respondents No. 3 and 4 from interfering with the peaceful possession and enjoyment of the above said land belonging to the petitioners.

Learned counsel for petitioner No. 1 submits that the land bearing survey No. 6/2 measuring 2 acres 14 guntas at Benniganahalli Village, K.R. Puram Hobli, Bangalore South Taluk, originally belonged to petitioner''s grand-father Sri Musalappa. During his life time, he sold 1 acre 0.2 guntas of land in favour of Smt. Munithayamma and another 1 acre in favour of Sri S.A. Murthy and maintained 12 guntas of land. After the demise of Musalappa, petitioner No. 1 inherited and succeeded to the said property being the grand-son of Late Musalappa and he is in peaceful possession and enjoyment of the said property with the consent of other legal heirs and successors of the deceased Musallapa, as absolute owner. The deceased Musalappa had obtained building licence to put up construction on the said land from Byappanahalli Group Panchayath and petitioner No. 1 got mutated khatha of the said property in his name, in the records of Tahsildar, Bangalore South Taluk. Respondent No. 3 - Bangalore Development Authority has issued an endorsement dated 5-3-1998 stating that they have released the property measuring 12 guntas in survey No. 6/2 of Benniganahalli Village, K.R. Puram Hobli, Bangalore South Taluk, in favour of Petitioner No. 1. On 13-7-1988, the N.G.E.F. Employees'' House Building Cooperative Society Ltd., has also issued ''No Objection Certificate'' stating that the said property is in possession and enjoyment of petitioner No. 1. The said property has been assigned as No. 57/1 by the Byappanahalli Group Panchayath and later the Bruhat Bengalure Mahanagara Palike has assigned PID No. 84-101-57/1 and khatha has been extracted in the name of petitioner No. 1. Munithayamma and S.A. Murthy who had purchased 2 acres 0.2 guntas in survey No. 6/2 from the grand-father of petitioner No. 1, have in turn sold the same in favour of the then Mysore Income Tax House Building Co-operative Society and the said Society has formed the Layout consisting of 35 sites. Since respondent No. 3 - Bangalore Development Authority has released 12 guntas of land in favour of petitioner No. 1 by an endorsement dated 5-3-1998, the Income Tax Housing Building Co-operative Society has got no right, title and interest over the said land. Hence, it is stated petitioner No. 1 is the sole, absolute owner in possession and enjoyment of the said land.

Learned counsel for the petitioners submits that respondent No. 2 is a member of the Income Tax House Building Co-operative Society and he has been allotted site No. 1 in the Layout formed by the Society and towards the northern side of site No. 1, the property belonging to petitioner No. 1 is situated. In order to grab the property belonging to petitioner No. 1, respondent No. 2 has filed a suit in O.S. No. 8365/2005 before the Civil Court, Bangalore, stating that the said land is a road margin belonging to him. The said suit, after contest, has been dismissed on 18-3-2010.

According to petitioner No. 1, he is the absolute owner of 12 guntas of land after the demise of his grandfather. However, the respondents are interfering with the peaceful possession and enjoyment of the property.

At this juncture, the contention raised by the respondents is that there is an encroachment of the public road and an attempt is being made to remove the existing structures. The say of respondent No. 2 is that there is an encroachment of the public road. Respondent No. 1 is the Society in whose favour the property of 2 acres 0.2 guntas stands. As submitted by respondent No. 1 - Association, respondent No. 2 filed a suit for injunction. On contest, it was dismissed. Title claimed by respondent No. 1 with respect to 12 guntas of land in survey No. 6/2 is already alienated by the grand-father of petitioner No. 1. However, the contention of petitioner No. 1 is that it is not 12 guntas and it is only 2 acres 0.2 guntas which has been sold in favour of the Society.

At this juncture, the dispute between the parties is as to identity of the property. In the case on hand, the respondents have taken a contention that where the building is put up, it is a portion of the road and it has to be demolished. However, 12 guntas of land has come to the petitioner by his grand-father after obtaining a license from the Mandal Panchayath. Since in the order of demolition, the right of the petitioner is involved, an order of status-quo has been granted. As per respondent No. 1, the said property was sold to them by Munithayamma and S.A. Murthy under a registered sale deed. Suit filed by respondent No. 2 came to be dismissed. However, Regular First Appeal filed by the plaintiffs - petitioners for declaration of title is said to be pending. Now the right of the petitioners is pending and the same has to be looked into vis-�-vis documents available to the parties and their entitlement. So far as the encroachment and existing structures concerned, 12 guntas of land said to be left out in favour of petitioner No. 1 by the grand-father or predecessor has to be determined by conducting a Survey. In this regard, respondents - Bangalore Development Authority and Bruhat Bengaluru Mahanagara Palike have to take note of right of the petitioner and say of respondent No. 1 on the one hand and it is to be clarified 12 guntas in survey No. 6/2 is either of petitioner No. 1 or the purchaser of the suit property. The property could be earmarked and thereafter, formation of the layout could be made. Whether it is part and parcel of the right available to petitioner No. 1 in survey No. 6/2 of 12 guntas is to be identified in the formation of the layout to be taken up.

However, for the present, the right of petitioner No. 1 and the right of respondent No. 1 shall be dealt specifically before the appropriate forum. Respondents - Bangalore Development Authority and Bruhat Bengalure Mahanagara Palike to identify the property available to the parties and thereafter to proceed. Identification to be conducted before the parties. Till such identification process is completed, Respondents - Bangalore Development Authority and Bruhat Bengalure Mahanagara Palike shall not proceed to disturb the rights of the petitioners. With the above clarification, the petitions are disposed of.