Bruhat Bangalore Mahanagara Palike vs Sri Ramesh Vishwanatha

K.L. Manjunath, J.—Bruhat Bangalore Mahanagara Palike and Bangalore Development Authority have preferred these appeals challenging the legality and correctness of the order passed in Writ Petition Nos. 29394/2009 and 29396/2009 dt. 24th June 2010.

Sites Nos. 1 and 2 situated in 8th Main Road, HIG Layout, RMV II Stage, Bangalore, were purchased by the Respondents respectively in a public auction conducted by the Bangalore Development Authority. The Respondents filed the Writ Petitions on the ground that their property has been unauthorized encroached by the BBMP. Therefore, a suit was filed In O.S.No. 487/08 for a perpetual Injunction by the Respondent - Ramesh Vishwanath and later the said suit was withdrawn. The Writ Petitions were filed on the ground that the BBMP without acquiring their property have unauthorisedly utilised the entire property for the purpose of construction of storm water drain. Therefore, they approached the court requesting the court to Issue a writ of mandamus declaring the action of the BBMP for taking their site for widening the storm water drain without due process of law as illegal and to issue a direction to the BBMP and BDA to restore the site to its original condition and hand over the same or in the alternative to allot a alternate site of the same dimension in the same vicinity or in the alternative to pay the cost of the site based on the prevailing market value along with the interest. The Learned Single Judge after hearing has come to the conclusion that the BBMP has taken over the properties of the Writ Petitioners without acquiring the same and without following the law and in the circumstances he allowed the Writ Petitions and directed the BBMP and BDA to allot a alternative site of similar dimension in the same area and for the same value within a period of two months.

Being aggrieved by the direction issued by the Learned Single Judge in the aforesaid Writ Petitions, the B.D.A. and B.B.M.P have filed these four appeals.

We have heard the learned counsel for the BBMP and B.D.A. and Mr. Subba Rao, the learned senior counsel appearing for the owners of the site.

The Respondents who lost their site have also filed an application to allot a site to them in the area recovered by the BDA from various unauthorised persons.

The main convention of Mr. Abdul Khader, the learned counsel appearing for the B.D.A. is that if the BBMP without acquiring the properties of the Respondents have utilised their site for the formation of storm water drain, no court can give a direction to the BDA to allot an alternate site in the same area for no fault of BDA. Therefore, he requests the court to set aside the order of the Learned Single Judge so far as it relates to the direction issued to BDA.

Mr. Muralidhar, learned counsel appearing for the BBMP submits that If the BBMP had taken away the properties of the Respondents as the same for public purpose, namely, for widening the existing storm water drain, at best the Respondents are entitled for the market value of the site and that BBMP having realised its mistake has already Initiated acquisition proceedings under the provisions of the Land Acquisition Act and compensation would be paid to the Respondents in accordance with the Land Acquisition Act. He further submits that pursuant to the direction issued by this court in these appeals, BBMP has been paying damages as determined by this court. He further submits that no properties are available with the BBMP to allot any site to the Respondents in the same vicinity as the layout was formed by the BDA and all sites are allotted by the BDA. What remains with the Corporation is only a civic amenity site handed over to the BBMP by the BDA and the said civic amenity site cannot be allotted. In the circumstances, he requests the court to set aside the order passed by the learned Single Judge.

Mr. Subba Rao, learned senior counsel appearing for the Respondents submits that BBMP has committed an error in encroaching the property of the Respondents without acquisition proceedings. In such circumstances if the Learned Single Judge has directed the BDA to allot alternate sites, this court cannot find fault with the order of the Learned Single Judge. He further submits that several properties are recovered by the BDA in the same area. Therefore, there cannot be any difficulty for the BDA to allot an alternate land to the Respondents. In the circumstances, he requests the court to dismiss these appeals.

Having heard the counsel for the parties, we have to consider the following two points in these appeals:

1) For the mistake committed by the BBMP whether court can direct the BDA to allot an alternate site for no fault of it?

2) If for pubilc purpose any properties taken away by the BBMP, is it open for the court to issue a direction to allot an alternate site, if such sites are not available in the vicinity and

3) Whether the Respondents who lost their lands are entitled for compensation or not?

Admittedly, BBMP has taken away the properties of the Respondents without acquiring the same, for pubilc purpose. It is no doubt true that widening of a storm water drain is for pubilc purpose. But the Corporation should have initiated acquisition proceedings before taking the properties of the Respondents. In the circumstances, we are of the view that the action of the BBMP for taking away the sites of the Respondents without acquiring the same is bad in law. But the Corporation having realised its mistake has initiated acquisition proceedings at later date. If it is so, the Respondents who lost their properties are entitled to claim compensation based on the market value on the date of the preliminary notification with other consequential benefits. If the Corporation had agreed to provide alternative sites, If such sites are available, the matter would have been different. When acquisition proceedings are Initiated by the BBMP, the court cannot direct the BBMP to allot alternative sites of the same dimension in the same area for the same market value. When there is nothing on record to show that the Corporation is possessing such sites for allotment, direction issued by the Learned Single Judge to the BBMP to allot a site of similar dimension In the same locality Is impermissible as the same cannot be implemented by the BBMP. Accordingly, we hold that the direction issued against BBMP to allot sites which are not available with the BBMP in the same locality that too in the background of initiation of the acquisition proceedings under the provisions of the Land Acquisition Act.

So far as BDA is concerned, admittedly it has not done any wrong. It is no way concerned with the formation of a storm water drain. If it is so, no court can direct the BDA to allot a site of similar dimension in the same locality at the old rate for no mistake of the BOA. Therefore, such direction cannot be issued by this court to the BDA.

Similarly, the applications filed by the Respondents is also liable to be rejected, because no such lands are available with BBMP. If BDA is in possession of the land, this court cannot direct the BDA to allot such lands for no fault of it. In the circumstances, we are of the opinion, In the back ground of this case, Learned Single Judge was required to direct the BBMP to initiate acquisition proceedings and to settle the compensation payable to the Respondents who lost their sites. Accordingly, we hold that an error is committed by the Learned Single Judge.

The order passed In Writ Petition NOS. 29394/2009 and 29396/2009 dt. 24th June 2010 are hereby set aside and the order of the Learned Single Judge is modified holding that the Writ Petitioners are entitled for compensation in accordance with the Land Acquisition Act, based on the acquisition proceedings initiated by the BDA subsequent to filing of the Writ Petitions.

With the above observation, these appeals are allowed.