Mir Iqbal Hussain and Others vs Bangalore Development Authority

Balakrishna, J.-The 1st petitioner is the owner of residential site bearing No. 63 in Jaladarshini Colony having purchased the same from Bharat Electronics Employees Co-operative House Building Society Limited under a sale deed vide Annexure-A. The petitioner was put in possession on 11-10-1974 by Possession Certificate vide Annexure-B and thereafter he has been in continuous possession and enjoyment of the site. A copy of the lay-out plan relating to the vast extent of land in which sites were formed by the aforesaid Society is Annexure-C. Petitioners-2 and 3 entered into an agreement on 3-2-1988 with the 1st petitioner for purchase of the same residential site bearing No. 63. It is stated that petitioners-2 and 3 have already advanced a substantial amount of money towards consideration of the sale agreement. The agreement of sale stipulated that the sale shall be completed within a period of six months. The grievance of the 2nd and 3rd petitioners is that the respondent B.D.A. has interfered with the said property without acquiring the site and have formed storm water drain on the site as a result of which the site is rendered useless from the point of view of construction of a residential building on it. Petitioner-2 and 3 filed an application for being impleaded and the same was allowed and they have joined hands with the 1st petitioner since all the 3 petitioners are affected by the impugned action of the B.D.A. Petitioners-2 and 3 are worse affected since they have been put in possession of the site by the 1st petitioner following the execution of an agreement of sale. It is stated in the writ petition that since the request of the petitioners to the officials of the B.D.A. was in vain, they were constrained to approach this Court by filing the writ petition.

It is contended on behalf of the petitioners that the digging of the site in question is illegal and arbitrary and the B.D.A. had no authority of law to cause the digging of the site and that there is a contravention of Article 300A of the Constitution of India. It is also contended that the B.D.A. did not even inform the petitioners of the intention of digging a storm water drain across the site before doing so. In the process, the aggrieved petitioners did not have an opportunity of bargaining for an alternative site of similar dimension with the B.D.A.

In the statement of objections filed on behalf of the B.D.A., it is stated that the respondent notified the Society which allotted the site in question, regarding the construction of a storm water drain and that the Society gave its consent for the construction. But it is admitted that the respondent has utilised a portion of the site bearing No. 63 for the construction of the storm water drain and that the respondent is willing to provide an equal extent of the land in the adjacent civic amenity site. It is also contended that the B.D.A. has not released the site in favour of the Society and, therefore, the question of issuing a notice to the petitioners does not arise.

Petitioners have sought for a mandamus directing the respondent to refrain from interfering with the petitioners'' possession and enjoyment of site bearing No. 63 and a direction to the respondent to restore the site to its original condition before the respondent interfered with the site in question.

The point for consideration is whether the interference by constructing a storm water drain on the site in question is justified and whether the petitioners are entitled to the reliefs sought in the writ petition.

Undisputed is the fact that the respondent has made an inroad on the site belonging to petitioners-2 and 3 who are put in possession of the site by the vendor. Another fact which is beyond dispute is that none of the petitioners was notified and their consent was not taken by the B.D.A. before venturing to dig the site for the purpose of opening a storm water drain. In the absence of such a consent from the petitioners who claim to be the owners of the site in the light of the documents produced before the Court, perhaps the only course available to the respondent in order to provide a public amenity was to have the area of land that was required for the purpose acquired in accordance with law. The respondent has made a short shrift of the procedure and virtually circumvented the law and has barged upon the land belonging to the petitioners depriving them of the use of the extent of the area which has been utilised by the respondent for opening a storm water drain. The action taken by the respondent does not admit of any doubt that it is totally unwarranted. Securing the consent of a Society which has already parted with the site having duly allotted the same to the 1st petitioner certainly would not meet the requirements of law. Consent is of relevance if it had been taken from the 1st petitioner who acquired possession of the same by lawful means having paid the necessary sale consideration.

It was brought to my notice that in the sanctioned plan of the Society which is Annexure-C, there is no indication of the storm water drain and that the plan was sanctioned by the respondent by Resolution No. 3543 dated 16-8-1974. It was further pointed out that even in the statement of objections of the respondent, there is no mention that the storm water drain was in existence at the time when the plan was sanctioned. This is obviously because and the reasonable probability justifies it also that there was no storm water drain in existence prior to 16-8-1974 or as on 16-8-1974.

It is pointed out by the learned Counsel appearing for the respondent that at least there is an indication of a proposal for construction of storm water drain in Annexure-C as could be seen from marking in red colour in the plan in the area in question. A mere proposal further confirms the non-existence of the storm water drain which is responsible for bringing the petitioners before the Court.

I do not see any justification and authority for the respondent to proceed to open the drain on the site in question without having recourse to law and I am of the opinion that the impugned action is both unilateral and arbitrary having no authority of law.

For the above reasons, the writ petition is allowed. The respondent is directed to close down the storm water drain and restore the site No. 63 in Jaladarshini Colony formed by Bharat Electronics Employees Co-operative House Building Society Limited and restore the site to its original condition as it existed before it was interfered with and, in the alternative, allot in exchange of site No. 63 and put petitioners-2 and 3 in possession of a site of equal dimension as site No. 63 in accordance with the measurements specified in the Possession Certificate dated 10-10-1974 vide Annexure-B either in the proximity or in any other area belonging to the B.D.A. in the vicinity. For the sake of clarification, it is mentioned, as could be seen from Annexure-B, that the measurement of site No. 63 as disclosed by the Possession Certificate dated 10-10-1974 is 39'' East, 40'' West, 88''6 North and 86''6" South.

The time limit for implementation of the directions of this Court is ninety days from today. A copy of this order shall be forthwith communicated to the respondent.

Writ Petition Allowed.