M. Devaraj vs Bengaluru Development Authority

Dilip B. Bhosale, J.—Heard learned counsel for the parties.

The petitioner, in the instant writ petition, seeks the following reliefs:-

"(a) Call for records from the 1st respondent in respect of the schedule property and set aside the recent allotment made in favour of the 3rd respondent, which is produced ''Annexure-R'' dated 28.02.2014 bearing No. FDA/UKA/2/3976/BSK.2/2013-14.

(b) a writ or direction more in the nature of writ or mandamus directing the 1st respondent to consider his representation and to pass appropriate orders safeguarding his interest, which is produced at Annexure-V dated 04.03.2014".

The site in dispute is site No. 3976, BSK II stage, Bangalore (for short "the site"). The petitioner claims that it was allotted to one Smt. Yerramma in 1992. The added respondent No. 4 is legal representative of deceased Yerramma. Petitioner in paragraph-8 of the writ petition, has stated that in 1999, respondent No. 4 had approached him and requested him to purchase the site and he had orally agreed to purchase the same. The site, according to the petitioner and respondent No. 4 was allotted to Yerramma in 1992 for a period of ten years on lease. There is nothing on record to indicate, whether the lease period was extended.

On the other hand, B.D.A., in their statement of objections, have stated that the site was never allotted to Yerramma. Though, they have so stated in the statement of objections, in their deed of cancellation dated 28.02.2014, they have mentioned that the site was allotted to Yerramma and lease-cum-sale agreement was executed and registered on 22.09.1992. Learned counsel for the respondent-BDA, across the bar, however submits that by mistake, the BDA mentioned in the deed of cancellation that the site was allotted to Yerramma.

Petitioner claims that initially he was put in possession of the structure standing/constructed on the site as a tenant and thereafter, he paid certain amounts/monies to respondent No. 4 and thereby acquired title in respect of the structure.

Petitioner''s stand is not clear. In paragraph-6 of the writ petition, he has stated that he mortgaged the structure/house for a sum of Rs. 9 lakhs. Thus, none of the parties to this writ petition is clear, as to what is their exact stand in respect of the site. Respondent No. 3 who is allottee of the site, admits that there is a structure, standing at the site and what is allotted to him is only site and not the structure.

Who is the owner of the structure?; whether the petitioner is entitled to claim any right over the structure and the site?; whether respondent No. 3 on the basis of allotment can seek possession of the site with structure?; whether the site was allotted to Yerramma? etc., are the questions, being disputed questions of fact, cannot be gone into and decided in writ jurisdiction under Article 226 of the Constitution of India. When, I so expressed, learned counsel for the petitioner, prays for withdrawal of the writ petition with liberty to the petitioner to institute a suit seeking declaration about his right in the structure, which, according to the petitioner is being used for residence, before the appropriate forum.

Insofar as the 3rd respondent is concerned, since he admits that there is a structure standing at the site and that he has no right to demolish the same, he would approach the BDA for seeking possession of the vacant site. His statement is recorded and accepted.

Learned counsel for the BDA submits that if the 4th respondent or the person in possession of the structure, refused to vacate the premises and hand over the vacant possession to the BDA, they shall follow the due process of law for getting possession so as to hand over vacant possession of the site to respondent No. 3. His submission is also accepted.

In the circumstances, I dispose of the writ petition, by the following order:-

(i) It is open to the petitioner to file civil suit, as aforementioned, for declaration and injunction against the respondents before appropriate forum within the period of limitation. It is also open to the petitioner to file application for interim order in the suit that he proposes to file. The trial court shall deal with the suit and application for interim relief on merits in accordance with law. All contentions on merits of the suit are kept open.

(ii) For a period of eight weeks from today, parties shall maintain status-quo, insofar as the residential site/structure standing at the site is concerned.

(iii) If the petitioner files any application for interim order in the suit, the concerned Court shall deal with the same, on merits, in accordance with law and without being influenced by this order.

(iv) While passing this order, I shall not be understood to have examined rights of the parties in respect of the site and structure standing at the site.

(v) Insofar as the BDA is concerned, it is open for them to take appropriate measures in respect of the site and the structure.

(vi) It is needless to mention that they shall follow the due process of law for demolishing the structure and handing over vacant possession of the site to respondent No. 3.

(vii) Insofar as the 3rd respondent is concerned, it is open for her to approach the BDA for getting vacant possession of the site. If respondent No. 3 approaches the respondent-BDA, as observed earlier, they shall follow the due process of law for handing over vacant possession of the site to respondent No. 3.

(viii) Insofar as the 4th respondent is concerned, it is open for this respondent to adopt appropriate remedy, if he so desire and advised, for seeking declaration of his right over the site and the structure.

(ix) All contentions of the parties, on merits are kept open.

With these observations, the petition is disposed of. In view thereof, interim applications, do not survive for consideration and disposed of as such.