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Judgment
K.N. Keshavanarayana, J.—In all these appeals, the legality and correctness of the order dated 24.7.2008 passed by the learned Single Judge of this Court in W.P. No. 10054/2008, allowing the said petition filed by National Technological Institutions Housing Co-operative Society Limited (hereinafter referred to as ''the Society'' for short) and directing Bangalore Development Authority (for short ''BDA'') to issue modified lay out plan, work order and to release 60% of total sites within 15 days from the date of the receipt of the order and also directing the BDA to remove the encroachment in respect of the civic amenities sites shown in the lay out plan.
The appellants in W.A. No. 1332/2008; W.A. No. 1435/2008, W.A. No. 1812/2009 and W.A. No. 2349 to 2471/2009 to were not parties to the said Writ Petition. BDA which was arraigned as respondent No. 1 in the Writ Petition is the appellant in the Writ Appeal No. 1485/2008. The appellants in W.A. Nos. 1332/2008, 1435/2008, 1812/2009 and W.A. No. 2349 to 2471/2009, have filed the appeals along with applications seeking permission to file the appeals.
The Society filed W.P. No. 10054/2008 against the Commissioner of BDA and Town Planning Member, BDA for issuance of a direction/writ of mandamus to them to issue work order in favour of the Society and to release the sanctioned modified layout plan relating to 161.08 acres comprised in the schedule lands as submitted by the Society and as approved and sanctioned by BDA in its resolution No. 136/2008 dated 23.4.2008 - Annexure-H and also to issue release order relating to 60% of sites as per the approved sanction plan within a reasonable time. It was the case of the Society in the said Writ Petition that for the purpose of formation of layout and allotment of sites to the members of the Society, on the request of the Society the Government acquired 320 acres of land comprised in Kodihalli, Kotihosahalli, Kodigehalli and Byatarayanapura of Yelahanka Hobli, Bangalore North Taluk. On 19.10.1992. The original layout plan was approved by BDA. Thereafter during 1995, by resolution No. 83/95 modified layout plan was submitted to BDA confining only to the extent of 173.29 acres as there was some encroachment on the rest of the area. However, the BDA demanded huge amount towards release of work order as per the modified plan. The said demand was questioned by the Society by filing W.P. No. 15664/97 and obtained an interim order. Subsequently, during 1998 by resolution No. 128/98 BDA approved the modified plan and the erstwhile Commissioner of the BDA by his letter dated 28.12.1999 informed the Society that BDA would remove the encroachment in the CA sites and parks. It was further alleged by the Society that on account of the delay in formation of the lay out, as per the approved plan, another 8 acres came to be encroached by unauthorised persons and therefore ultimately confining to only 161.08 acres, the Society submitted a fresh modified plan as per the instructions of the BDA and the Society also met the further demands made by the BDA. Though the Society requested the BDA to release 60% of the sites and also executed relinquishment deeds regarding CA sites and park area as sought by the BDA, the BDA has not issued the work order and without the work order, the Society is unable to proceed with the formation of the lay out.
BDA opposed the petition by denying the allegations. It was contended on behalf of the BDA that the Society has undertaken to develop the area and are trying to release the sites in favour of the allottees without approval and since several unauthorised constructions were found on inspection made by BDA, a joint inspection was required to be conducted and civic amenities sites have to be earmarked and until such period it would be difficult for the BDA to permit the Society to go on with the work.
After hearing the parties, the learned Single Judge by the order under appeal, noticing that already relinquishment deeds have been executed by the Society in favour of BDA regarding civic amenities sites and park area, observed that it is for the BDA to inspect the spot and if those places are encroached, as per the undertaking given by the Commissioner, such encroachments are to be removed by the BDA and the land will have to be handed over to the Society for further development. The learned Single Judge also observed that it is high time the work has to be executed in the interest of the Society and to protect the interest of the members who have paid heavy amount since the beginning and 19 years have elapsed since the land was acquired for the benefit of the Society, therefore, the learned Single Judge thought it fit to issue directions to the BDA to release the modified lay out plan and to issue work order and also to release 60% of the total sites within 15 days from the date of receipt of the order. The learned Single Judge also observed that it is for the BDA to remove the encroachment if any, on any of the area mentioned as civic amenities sites and park in the lay out plan. While holding that the BDA has to remove the encroachments, the learned Single Judge observed that such persons have to be evicted and the area be developed as civic amenity, by adopting extra judicial method or by moving the Court and by obtaining necessary orders since already 19 years have been elapsed. It is against the said order directing the BDA to issue modified lay out plan and the work order and also directing the BDA to remove the encroachment if required by adopting extra judicial method, the BDA has filed W.A. No. 1485/2008 interalia on the ground that such direction issued by the learned Single Judge is erroneous, illegal and unconstitutional.
The appellant in W.A. No. 1332/2008 which is stated to be a resident''s welfare association called M/s. Shantivana Residents Association has questioned the I legality of the order of the learned Single Judge interalia contending that the members of the association are In possession and enjoyment of the sites purchased from the previous owners of Survey Nos. 14, 17/3, 4, 5 and 6 of Kodigehalli village of Yelahanka Hobli, Bangalore and many of its members have constructed residential houses and they are living therein and the area in occupation of the members of this Association has been included in the proposed modified lay out plan 3tated to have been submitted by the Society to the BDA for its approval. Therefore, the members of the Association apprehend that the Society under the guise of approved lay out plan and work order that may be issued by the BDA pursuant to the directions of the learned Single Judge, is likely to dispossess the members of the Association by demolishing the buildings put up by them. Thus, their interest is in jeopardy as such they are aggrieved by the order of the learned Single Judge and therefore, they have sought for permission to file the appeal.
The appellants in W.A. No. 1435/2008 claims that they are the owners of the land bearing Nos. 39/lA, 26/2, and 28/1 of Kothihosahalli, Sy. Nos. 68/5, 69/2 and 69/5 of Kodigehalli village and Sy. No. 83 of Byatarayanapura and that they have not accepted the award passed by the Government in connection with the acquisition of the land and that they have not handed over the possession of those properties to any of the authorities as such they are in lawful possession and enjoyment of those properties and that an enquiry as to the fraud played and mis-representation made by the Society in respect of acquisition of the land is pending before Principal Secretary, Department of Revenue, Government of Karnataka and suppressing the said fact the Society Med W.P. No. 10054/2008 to circumvent the enquiry proceedings and has obtained an order in the said Writ Petition. According to these appellants, the enquiry was initiated pursuant to the observations made by Division Bench of this Court in W.A. No. 8181/96 connected with W.A. No. 7633-34/1996 which had been filed by the appellants challenging the acquisition notifications and since the enquiry is still pending before the competent authorities, the appellants apprehend that they are likely to be dispossessed from the properties in their possession pursuant to the directions issued by the learned Single Judge and therefore, they are aggrieved by the said order of the learned Single Judge
The appellants in Writ Appeal No 1812/2009 and W.A. No. 2349 to 2471/2009 claim that they are the owners of land bearing Sy. Nos. 68/1, 66/2A, 4/6, 67/3, 70/1B, 68/3, 70/3, 69/4, 67/2, 70/2 and 66/3 of Kodigehalli Village, which were acquired by the Government for the benefit of Respondent-Society. According to them, they did not challenge the acquisition proceedings, earlier but, only few owners of some other lands, which were also acquired, approached this Court in W.P. Nos. 37086/96 and 5775/96, which came to be dismissed by the learned Single Judge, against which W.A. No. 8181/96 c/w. 7633 & 7634/96 were filed and while disposing of the said writ appeals on 24.03.1998, the Division Bench of this Court observed that dismissal of the appeals would not prevent the appellants therein from bringing to the notice of the concerned authorities the detailed facts and circumstances with respect to the commission of alleged fraud and if such plea is raised, the same is expected to be disposed of in accordance with law applicable in the case. Thereafter, some of the land owners gave representations, based on which an enquiry was initiated by the Government. Subsequently, according to the appellants, they got themselves impleaded in the enquiry initiated by the Government which was pending before the Principal Secretary, Town Planning Department, Government of Karnataka and filed their objections and finally the Principal Secretary passed an order dated 07.11.2008 rejecting all the contentions of the appellants and similarly placed persons. It is further stated by the appellants in this appeal that against the order of the Principal Secretary, the appellants have filed Writ Petition Nos. 16289-16298/2008 before this Court and the said writ petitions are still pending consideration. In the meanwhile, according to the appellants, they came to know about the orders passed by the learned Single Judge in W.P. No. 10054/2008 dated 24.07.2008 issuing certain directions and since those directions issued by the learned Single Judge are affecting the rights of the appellants, and since they are not parties to the said writ petition, they have filed this appear questioning the legality and correctness of the said order passed by the learned Single Judge, along with an application for permission to file the appeal.
During the course of the arguments, a memo was filed on behalf of the Society to the effect that without prejudice to the legal contentions raised by it in these appeals, a direction may be issued to the BDA for joint inspection with the assistance of surveyors and survey of the area of the civic amenities in the presence of the office-bearers of the society with a view to find out whether the area shown for civic amenities in the draft layout plan as per Annexure-R.3 is sufficient or not, and upon such inspection and report, if any shortage of park and other amenities area pointed out, the Society would make good the area for the said purpose in the acquired land in its favour.
After hearing the learned Senior Counsel arid Counsel appearing for the parties, this Court by order dated 19.12.2008, directed the Commissioner of BDA to depute from its Engineering Department, the competent engineers and surveyors to conduct inspection in the presence of office - bearers of the Society to find out the acquired area of the Society available for the purpose of earmarking park and civic amenity purposes to bring the lay out within the conformity of the provisions of the BDA Act and Zonal Regulations and to submit a detailed report along with sketch with reference to Survey Numbers and records of acquisition. Pursuant to said direction, the inspection was conducted by the BDA and a report came to be filed along with sketch and photographs. On 20.3.2009, the learned Counsel for the Society filed a memo agreeing to execute rectification deed within a week in respect of the areas mentioned in paragraph-1 of the memo. On 26.3.2009 the learned counsel for the Society undertook to file additional memo with affidavit to clarify the memo dated 19.12.2008 stating that the apprehension in the mind of the appellants in W.A. No. 1332/2008 that pursuant to the order impugned in this appeal, demolition of the structures and taking possession of the properties which are claimed by the members of the Association will not be done without due process of law. He also further submitted that apprehension of BDA that alternative land to cover civic amenities for allotment of the members of the association will be rescinded. Pursuant to such undertaking, affidavit sworn to by Sri. R. Prakash stated to be the Secretary of the Society has been filed on 30.3.2009. The relevant portion concerned is contained in para 3 reads thus:
The appellant in W.A. No. 1332/2008 has filed a list of members claiming that some of them have put up constructions/structures. The respondent society by means of memo dated 19.12.2008 has stated that these members would not be evicted otherwise than in due course of law. Having regard to the apprehension by the appellants, this Hon''ble Court by an order dated 26.3.2009 directed the respondent society to file a further affidavit. Therefore, the respondent society is now clarifying that the respondent society would not demolish the structures/buildings stated to have been in existence as on the date of filing of the above Writ Appeal No. 1332/2008 in Sy. No. 17/3, 17/4, 17/5 and 17/6 of Kodigehalli village. This undertaking is applicable only to the structures/buildings stated to have been in existence as on the date of filing of W.A. No. 1332/2008 in the above Sy. Nos. alleged to have been put up by the members of Shanthivana resident''s Association, who is appellant in W.A. No. 1332/2008. This undertaking is not applicable to the vacant sites/spaces available in the above Sy. Nos. Further the society reiterates the action to demolish or evict against the encroachers/trespassers who are the members of the appellant association shall be only in accordance with law.
With regard to appeal by BDA, the following undertaking has been given by the Society, which reads thus:
This Hon''ble Court, by order dated 19.12.2008 was pleased to appoint the commissioner to find out and report as to whether, the areas which has been shown as park and civic amenity as per the modified layout plan submitted to the BDA by the respondent society dated 1.7.2008, is vacant or not. The commissioner by his report dated nil, and filed in this Hon''ble court on 18.3.2009 (as serve on the Counsel for respondent society on 18.3.2009) has submitted that the areas shown in the modified plan dated 1.7.2008 as parks and civic amenity sites are all vacant.
The respondent society has filed a memo dated 20.3.2009 in the above writ appeal agreeing to rectify the earlier relinquishment deed executed in favour of the BDA.
The apprehension of the BDA was that in the areas now shown in the modified plan dated 1.7.2008 and which is now vacant, there might be some allotment of sites to the members of the respondent society and that no such allotment should be made in future. The respondent society, therefore, undertakes before this Court that there would not be any allotment in respect of any sites in the parks and civic amenity areas as shown in the modified plan dated 1.7.2008. and that if any allotment is already in existence, the same would be rescinded by the society and the society would take responsibility that the members would not claim any area in respect of the open space shown as parks and civic area in the modified plan dated 1.7.2008
It is now made clear from the report of the Commissioner of BDA and also from the modified lay out plan that the areas stated to be in possession of the members of Shantivana Residents Association is not comprised within the area shown as civic amenities sites, park etc. in the lay out plan and therefore, the apprehension of the appellants in W.A. No. 1332/2008 that pursuant to layout plan and work order that may be issued by the BDA, the constructions put up by the members of the Society are likely to be demolished either by the Society or by BDA is allayed. Now the Society has given an undertaking that it would evict the members of the Association only in accordance with law and that they will not be evicted otherwise than due process of law. Therefore, in our considered opinion, in the light of the said undertaking given by the Society there is no need to consider the various contentions urged in the appeals except placing the undertaking given by the Society on record and directing the Society not to evict the members of the Association from the possession of their respective sites, details of which have been furnished in the appeal, otherwise than the due process of law.
The apprehension of BDA has also been allayed by the undertaking given by the Society. As the area shown as civic amenities, park etc. in the modified lay out plan dated 1.7.2008 are now reported to be vacant and no constructions are existing thereon, question of BDA requiring to remove any encroachment as directed by the learned single judge do not arise. As the Society has undertaken to execute the relinquishment deed in respect of the area now shown by the Society as civic amenities and park in the modified plan dated J.7.2008, in our opinion, the BDA has no grievance to make, in any case, the observation that the learned Single Judge that the BDA has to remove the encroachment if necessary even by adopting extra judicial method is uncalled for and unjustified. Such a direction cannot be issued by a constitutional authority. Courts should act in protecting the constitution and the law established thereunder. The courts cannot direct any authority to adopt extra judicial method for either removing encroachment & construction of the buildings made thereon. Therefore, the. said observation of the learned Single Judge is erroneous and is liable to be expunged. Accordingly, the said observation is ordered to be expunged. However, we do not see any error in the other directions issued by the learned Single Judge directing the BDA to release the modified lay-out plan, to issue work order and to release 60% of the sites.
In view of the undertaking given by the Society as noted above, the learned Counsel for the BDA submitted that he has no further grievance to make. In view of the above, there is no need for us to go into the merits of the appeal filed by the BDA.
In so far as W.A. No. 1435/2008 is concerned, admittedly the appellants therein challenged the acquisition proceedings by filing Writ Petitions before this Court and those Writ Petitions were dismissed against which they filed Writ Appeal which also came to be dismissed. Of course, while dismissing the Writ Appeals, the Division Bench of this Court appears to have observed that the dismissal of the appeal would not prevent the appellant from bringing to the notice of the concerned authorities the detailed facts and circumstances of the case with respect to commission of fraud and if such plea is applicable to the case the concerned authorities to take suitable action in that regard. According to the appellants pursuant to this observation, enquiry is initiated and the enquiry is pending before the Principal Secretary to the Department of Revenue, Government of Karnataka. Therefore, the appellants in W.A. No. 1435/2008 will have to work out their remedies before the competent authorities and they cannot be allowed to question the order of the learned Single Judge directing the BDA to issue modified plan and work order. As we have held that the observation & directions of the learned Single Judge that the BDA has to remove the encroachment, if necessary by adopting extrajudicial method, is uncalled for and erroneous, there is no basis for the apprehension of these appellants that they will be dispossessed high handedly as contended by them. The question as to whether the possession of the land owned by them has been taken by the acquiring authority is also a disputed question of fact and therefore, it is not open for the appellants to urge all those contentions in this appeal. These appellants are entitled to protect their possession if any, before the proper forum in accordance with law, if law permits. Subject to these observations we find no ground to grant permission to the appellants in W.A. No. 1435/2008 to file the appeal.
In so far as Writ Appeal No. 1812/2009 and W.A. No. 2349 to 2471/2009 are concerned, even according to these appellants, they did not challenge the acquisition proceedings and they themselves got impleaded in the enquiry which was pending before the Principal Secretary, Revenue Department, which had been initiated pursuant to the observations made by the Division Bench of this Court in Writ Appeal Nos. 8181/1996 c/w. W.A. Nos. 7633 & 7634/1996 and against the order passed by the Principal Secretary, rejecting the contentions of the appellants, they have admittedly filed Writ Petition Nos. in 16289-16298/2008 which are still pending consideration. Therefore, the appellants in this appeal are required to work-out their remedies in the said writ petitions filed by them, as such, they cannot be allowed to question the order of the learned Single Judge directing the BDA to issue modified plan and work order, as, even according to them none had questioned the acquisition of the lands owned by them. Subject to these observations, we find no ground to permit the appellants in the Writ Appeal No. 1812/2009 and W.A. No. 2349 to 2471/2009 to file the appeal.
Accordingly, W.A. Nos. 1332/2008 and 1485/2008 are disposed of in terms of the undertaking given by the Society. BDA shall comply with the directions of the learned Single Judge, except the one which is expunged, within a period of one month from the date of Society executing rectification deeds to rectify the earlier relinquisment deeds in respect of parks and civic amenity area as per its undertaking. The NTI Housing Society is directed not to either demolish any constructions put up by the members of Shanthivana Residents Association (Regd.) or to evict any members of the Association, the appellant in W.A. No. 1332/2008, except in due process of law, as per the undertaking given by the NT1 Housing Society. Applications filed in by the appellants W.A. No. 1435/2008 and W.A. No. 1812/2009 and W.A. No. 2349 to 2471/2009 for permission to file appeals are rejected and consequently, the appeals are also dismissed.