IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 21ST DAY OF OCTOBER 2021

BEFORE

THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI

WRIT PETITION NO.36207/2019 (LA - RES)

BETWEEN:

• 1. SMT.LALITHA DEVI, W/O ASHOK KUMAR, AGED ABOUT 53 YEARS.
• 2. SMT.USHA, W/O RAMESH KUMAR, AGED ABOUT 45 YEARS.

BOTH RESIDING AT NO.100/5, BULL TEMPLE ROAD, BANGALORE-560019.

• 3. SRI.VIBISH PAREKH, S/O LATE VINOD KUMAR, AGED ABOUT 32 YEARS, RESIDING AT NO.20, 3RD CROSS, GANDHINAGAR, BANGALORE-560009.
• 4. SMT.SUDHA BAI, W/O RAJENDRA KUMAR, AGED ABOUT 49 YEARS, RESIDING AT NO.4, 4TH CROSS, GANDHINAGAR, BANGALORE-560009.

ALL PETITITONERS ARE REPRESENTED BY THEIR PA HOLDER, DINESH CHAND, S/O LATE MANGILAL S JAIN, AGED ABOUT 58 YEARS, RESIDING AT NO.20, 3RD CROSS, GANDHINAGAR, BENGALURU-560009.

...PETITIONERS

(BY SRI.D.N.MANJUNATH, ADVOCATE)

AND:

• 1. STATE OF KARNATAKA REPRESENTED BY PRINCIPAL SECRETARY REVENUE DEPARTMENT, M.S.BUILDING, BANGALORE-560001
• 2. THE COMMISSIONER, BRUHAT BANGALORE MAHANAGARA PALIKE, 3RD FLOOR, ANNEXE BUILDING 3, HUDSON CIRCLE, N.R.ROAD, BANGALORE-560002 OPPOSITE TO LIC BUILDING, NEAR TOWN HALL
• 3. ASSISTANT EXECUTIVE ENGINEER, BBMP, DASARAHLLI ZONE, NH-4, NEXT TO POST OFFICE, BANGALORE-560057
• 4. ENGINEER IN CHIEF, BRUHAT BENGALURU MAHANAGARA PALIKE, 3RD FLOOR, ANNEX BUILDING 3, OPPOSITE TO LIC BUILDING, NEAR TOWN HALL, HUDSON CIRCLE, N.R.ROAD, BANGALORE-560002
• 5. THE EXECUTIVE ENGINEER, (HBR SUB-DIVISION) BRUHAT BANGALORE MAHANAGARA PALIKE, 9TH FLOOR,MAYO HALL, BANGALORE-5600025
• 6. THE ASSISTANT EXECUTIVE ENGINEER, BRUHAT BANGALORE MAHANAGARA PALIKE, HBR LAYOUT, NEAR BDA COMPLEX, BANGALORE-560043.

…RESPONDENTS

(BY SRI.H.C.KAVITHA, HCGP FOR R1, SRI.K.N.PUTTEGOWDA, ADVOCATE FOR R2 TO R6)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTION TO THE RESPONDENTS TO CONSIDER THE REPRESENTATION MADE BY THE PETITIONERS AS PER ANNEXURE-N DATEED 05.07.2019 WITH REQUIRED TO TAKING OVER OF THE POSSESSION OF THE PROEPRTY OF THE PETITIONERS ILLEGALLY TO AN EXTENT OF 4500 IN SY.NO.78/3 SITUATED AT NAGAWARA VILLAGE, KASABA HOBLI, BANGALORE NORTH TALUK PRESENTLY BEARING BBMP NO.609/78/3 AND ETC.

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The petitioners have filed this writ petition

seeking for a writ of mandamus to consider the

representation made by the petitioners as per Annexure-N dated 05.07.2019, sought for mandamus to conduct a joint survey of the property in question and also sought for mandamus to notify the property of the petitioners' in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 so as to award compensation in lieu of acquisition or in the alternative to issue a direction to the respondents to consider the petitioners' request to utilize the karab land measuring 6 guntas which is in possession and forming part of petitioners' property.

2. Brief facts leading to filing of this writ petition are that:

The petitioners claim to be the co-owners in respect of entire property measuring totally 32 guntas having acquired by virtue of two registered sale deeds dated 04.11.2004 and 08.12.2004 measuring 32

guntas and 06 guntas of karab land executed by their vendors. The petitioners have been exercising the act of ownership being in possession as co-owners and got converted the agricultural land into nonagricultural land utilized for residential purpose. The respondents have notified the portion of the property measuring to an extent of east to west 50 feet and north to south 90 feet and attempted to take forcible possession. The petitioners' requested the respondents to referring themselves for taking forcible possession as the property belonging to the petitioners. The respondents have not given any heed to the request made by the petitioners. The petitioners being aggrieved by the action on the part of respondent Nos.2 to 6 filed a suit in O.S.No.5711/2016 seeking for perpetual injunction against the respondents. The said suit is pending. The petitioners submitted a representation dated

05.07.2019 vide Annexure-N. The respondents have not considered the representation. Hence, the petitioners have filed this writ petition.

3. Respondent Nos.2 to 6 have filed the statement of objections and denied the averments made in the memorandum of the writ petition and it is contended that the respondents have not entered upon the property in question and have not taken the possession of the lands as claimed by the petitioners. It is also contended that in case any property or land is required for widening of the road or for any other purpose, these respondents would take necessary steps in accordance with law and prays to dismiss the writ petition.

4. Heard the learned counsel for the petitioners and learned counsel for respondent Nos.2 to 6.

5. Learned counsel for the petitioners submits that the petitioners are the co-owners of the land in question. The respondents without acquiring the property have encroached upon the property of the petitioners. The petitioners have filed a suit for perpetual injunction and he also submits that he has filed an application for amendment of plaint in the said suit seeking for a relief of mandatory injunction. The said application is pending. He submits that respondent Nos.2 to 6 have no right to encroach upon the property of the petitioners without initiating acquisition proceedings. Hence, on these grounds, he prays to allow the writ petition.

6. Per contra, learned counsel for respondent Nos.2 to 6 submits that the respondents have not made any encroachment over the property of the petitioners. Further, he submits that the BDA had formed the layout and subsequently, BBMP is

maintaining the roads which are formed earlier. He further submits that the writ petition is not maintainable for non-joinder of necessary parties as the BDA has not been arrayed as respondent in this writ petition. On these grounds, he prays to dismiss the writ petition.

7. Heard and perused the records and considered the submissions of the learned counsel for the parties.

8. It is not in dispute that the petitioners purchased the property under registered sale deeds and it also not in dispute that the petitioners got converted the agricultural land into non-agricultural land. It is the case of the petitioners that the respondents have encroached upon the property of the petitioners. The respondents have denied the said fact. The writ petition involves serious disputed

question of fact. The petitioner needs to establish that the respondents have encroached upon their property. The said facts requires consideration of evidence before the same can be established which is not on record. The Hon'ble Apex Court in the case of State of Kerala & Others v/s M.K.Jose reported in (2015)9 SCC 433 opinioned which is extracted hereunder at para Nos.16 & 17:

Having referred to the aforesaid decisions, it is obligatory on our part to refer to two other authorities of this Court where it has been opined that under what circumstances a disputed question of fact can be gone into. In Gunwant Kaur v. Municipal Committee, Bhatinda, it has been held thus:-

"14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the

discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.

15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.

16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in- reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit."

[Emphasis supplied]

17. In ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., a two-Judge Bench after referring to various judgments as well as the pronouncement in Gunwant Kaur (supra) and Century Spg. And Mfg. Co. Ltd. v. Ulhasnagar Municipal Council, has held thus:-

"19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact.

xxxxx xxxxx xxxxx

27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition:

(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.

(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.

(c) A writ petition involving a consequential relief of monetary claim is also maintainable.

While laying down the principle, the Court sounded a word of caution as under:-

"However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the Court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks.) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction".

9. Moreover, the petitioners have already availed remedy by way of filing a suit

against respondent Nos.2 to 6, which is pending. In the said suit, the petitioners have already filed an application for amendment of plaint seeking for relief of mandatory injunction. When the petitioners have already availed a remedy, the petitioners have no right to initiate the parallel proceedings in respect of the property in question. Thus, in view of above discussion, I do not find any grounds to entertain the writ petition. Accordingly, the writ petition is dismissed.

However, liberty is reserved to the petitioners to make a necessary application in the suit.

Sd/- JUDGE

ssb