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Judgment
J.S. Khehar, C.J.—The instant writ petition has been filed as a cause in public interest. The sole Petitioner is a former Corporator. He has also held the position of Deputy Mayor. The assertion made in the instant, writ petition is, that the Respondent, No. 6, i.e., Sri Banashankari Temple (hereinafter referred to as the ''Temple'') has unauthorisedly and Illegally raised permanent construction over an existing road. It is the submission of the Petitioner, that the construction raised by the Temple has resulted in traffic jams, inasmuch as. the busy road abutting the Temple has now a bottleneck. In order to substantiate the assertions made In the writ petition, a site plan (Annexure-A) was brought, to our notice In order to demonstrate the sudden diversion in the road caused as a result of the encroachment made by the Temple.
Consequent upon the issuance of notice in this case, the Bangalore Mahanagara Palike (now ''Bruhat Bangalore Mahanagara Palike'' hereinafter referred to as the ''BBMP''), arrayed as Respondent No. 2, has filed a statement of objections, wherein in paragraph 2 it is sought to be asserted as under;
The Petitioner has filed the Petition contending that the 6th Respondent is constructing the Rqjagopura and also a compound wall encroaching the Kanakapura Road. It is contended that, the encroachment of Public Road has resulted in traffic jams and affected the movement of traffic, as the same is a busy Road. The 6th Respondent Temple is a Muzrai Temple managed and administered by the Slate Government. The 6th Respondent started construction of the compound wall and it is true that the 6th Respondent put up construction without obtaining Sanctioned Plan from this Respondent. However, the state Government need not obtain sanctioned plan as they are exempted under Karnataka Municipal Corporations Act, 1976. It was also noticed that the Public Road had been utilized by constructing the ''compound wall In this writ petition this Hon''ble Conn has directed the authorities to ensure that the 6th Respondent, do not: proceed with further constructiori of Rqjagopura, The authorities have obeyed the same.
The factual position depicted in paragraph 2 re-produced hereinabove, prima facie establishes the fact, that Respondent No. 6 Temple has raised construction over an existing road.
It is in the aforesaid circumstances, that the onus stands shifted to Respondent No. 6, so as to establish, that the Temple has not encroached over the road line. In order to establish its claim over the land where construction has been raised, learned Counsel for the Respondent No. 6 invited our attention to "record of rights and pahani" (hereinafter referred to as ''RTC''). The first and foremost, our attention has been drawn to Annexure-Rl pertaining to survey No. 71/2 (renumbered consequent upon sub-division) wherein, Sri Banashankari Temple has been entered in column No. 9. Column No. 9 bears the heading "name of khatedar or occupant, father''s name and address." For the same purpose, Annexure-R2 is RTC pertaining to survey No. 72 wherein, again Sri Banashankaramma Temple has been entered in column No. 9. Finally, reference has been made to Annexure-R3, i.e. RTC for survey No. 71/5 (re-numbered consequent upon sub-division) to the same effect. Based on the aforesaid RTC''s, it is the contention of the learned Counsel for the Respondent No. 6, that construction has been raised over the land which is in the ownership of Respondent No. 6. it is therefore sought to be asserted, that Respondent No. 6 cannot be accused to have trespassed over the road.
The second contention advanced at the hands of the learned Counsel for Respondent No. 6, is based on Annexure-E appended to the writ petition. Annexure-E is a newspaper report, which appeared in the Times of India dated 6.10.2004. Without examining the matter any further, we are satisfied that a newspaper report cannot be a basis for any judicial determination, and as such, we wish to say no further on the issue, besides what we have noticed hereinabove, insofar as the second contention is concerned.
Last of all, it is the third contention of the learned Counsel for the Respondent No. 6, that the office of the Commissioner, Hindu Religious and Charitable Endowments Department, Bangalore had addressed a communication dated 29.8.2006/2.9.2006 (Annexure-R18) to the Secretary, Revenue Department, M.S.Buikling, Bangalore indicating the exchange of lands between the BBMP and Respondent No. 6 Temple. Based on Annexure-R18, it is also the contention of the learned Counsel for the Respondent No. 6, that the Respondent Temple cannot be stated to have encroached upon the road.
While adjudicating upon the present controversy, we wish to deal with the first and third contention of the Respondent No. 6 simultaneously. Insofar as RTC''s pertaining to survey Nos. 71/2, 71/5 (both re-numbered consequent upon sub-division) and 72 relied upon by the learned Counsel for Temple are concerned, we are satisfied that the entries recorded therein cannot be taken as proof of the factual position. In order to establish ownership rights, it was imperative for Respondent No. 6 to place on the record of this case documents on the basis of which Respondent no. 6 claimed title to the survey numbers under reference. In the absence of the Respondent Temple, having placed any such title documents on the record of this case, it is natural to infer that Respondent No. 6 is not in possession of any documents of title in respect of its ownership rights over the survey, numbers under reference (for which our attention was drawn to; Annexures-R1 to R3). More so, while canvassing the third contention, when reliance was placed on Annexures R13. a communication dated 29.8.2006/2.9.2006 there remained hardly any doubt that the RTC''s relied upon by the learned Counsel for the Respondent No. 6 could not be made basis of a valid determination at our hands. For the aforesaid inference drawn by us, we consider it just and appropriate to extract. hereunder the text of the letter dated 29.8.2006/2.9.2006. The same is accordingly re-prodaeod hereinbelow:
Sir,
Sub: Approval is sought for exchange of suitable lands from Mahartagai apalikc for the development of Sri Banashankan Temple, Kanakapura Road, Bangalore - Reg,
Ref: This office letter of even number dt. 22.6.05.
In the above, referred letter, it was informed to send a separate proposal to the Government seeking permission for exchange of'' lands belongs to Mahanagara Palike with the temple property for ail round development of Sri Barxashankart Temple. The First Grade Surveyor who was on deputation to our department had identified the survey numbers which are to be handed over to Mahanagara Palike and. also the survey numbers which are to be taken to the Temple from Mahanagara Palike. As per the sketch prepared, by the Surveyor the following lands belonging to the Temple have to be handed over to Mahanagara Palike and the same extent, of land.. detailed below have to be taken to the possession of the Temple.
The following lands belonging to Sri Banashankari Temple have to he handed over to Mahanagara Palike:
1.
By. No. 72 - Denoted by letters ABCD
0.25 guntas
2.
Sy. No. 71/2 Denoted by letters DKIH
0.06 guntas
Total
0.31 guntas
The possession of the following lands to be taken to the Temple:
1.
Sy. No. 72 -- Denoted by letters ADEF
0.21 guntas
2.
Sy. No, 71/2 Denoted by letters DEGH
0.08 guntas
3.
Sy. No. 71/1A Denoted by letters ABHJ
0.2 1/2 2guntas
Total:
0.31 1/2guntas
As per the above, a Government Order with the concurrence of the Urban Development Department may please be accorded to exchange the lands from Mohanai,ara Palike to Temple and from Temple to Mahanagara Palike (the copy of the sketch is enclosed)."
From the proposed exchange depicted in. the aforesaid letter dated 29.8.2006/2.9.2006, it is natural to infer, that the entire survey No. 72 cannot, be stated to have been in the ownership or occupation of Respondent No. 6 (even though the part of the same may have been actually in the occupation of Respondent No. 6), The same inference can be drawn to survey No. 71 (with its different subdivisions).
Even though the aforesaid factual position goes to the root of the matter, yet it is necessary to notice, that, Respondent, No. 6 filed a memo dated 7.7.2011 placing on record certain photographs. The memo reads as under:
The Respondent No. 6 most respectfully submits that: this Hon''ble Court that the encroached road portion as alleged by the Petitioner in the memorandum of writ petition is now removed by the Bangalore Metro Rail Corporation Ltd. (B.M.R.C.L) for the installation of the pillars for the purpose of formation of the Metro Rail. To reflect this fact the photographs are herewith produced for kind perusal of this Hon''ble Court. Under these circumstances the above'' said writ petition becomes infraetuous, same may be taken on record, in the interest of justice and equity.
The aforesaid memo filed at the hands of the Respondent No. 6 acknowledges, that the construction raised on the alleged encroached road portion, had been removed by the Bangalore Metro Rail Corporation Limited, and therefore, the instant writ petition should be disposed of as having rendered infructuous. The instant Writ petition was however not disposed of as having rendered infructuous, as the Petitioner placed further photographs on the record of this case, in order to demonstrate, that a part: of the road portion was still under encroachment, at the hands of Respondent No. 6.
During the course of hearing today, a memo dated 11.8.2011 was filed at the hands of the Petitioner whereby, a google map was sought to be placed on the record of this case. The satellite image in the google map was shown to this Court in order to demonstrate, that the Temple had encroached over the road. Having perused the satellite image from the google map placed on the record of this case, this Court prima facie feels that Respondent No. 6 Temple has indeed encroached over the existing road. Even though, while this order was being dictated, it was the vehement contention of the learned Counsel representing Respondent No. 6, that the encroachments depicted in the satellite image are not on the land owned by Respondent No. 6. If that be so, Respondent No. 6 cannot be permitted to continue its possession over the land, which the satellite image shows, as an encroachment over the existing road.
Despite the inference and the conclusions recorded herein under, we consider it just and appropriate to direct the Director, Land Records to demarcate survey Nos. 71/2, 71/5 (re-numbered consequent upon sub-division) and 72. The aforesaid demarcation shall be carried out in the presence of Petitioner or his representative, as also, the representative(s) of Respondent No. 6 Temple. Having completed the survey, the Director, Land Records shall permit Respondent No. 6 Temple to establish its title over the survey numbers in question. It shall be open to the Temple to furnish particulars to the Director, Land Records within two weeks of the completion of the survey referred to hereinabove. In case Respondent No. 6 Temple cannot establish its ownership rights in respect of the aforesaid survey numbers, the BBMP shall forthwith take possession of the demarcated survey numbers and restore the same to the road.
The rival parties shall appear before the Director, Land Records on 25.8.2011. The process of survey and demarcation shall be completed within one month thereafter.
Disposed of in the aforesaid terms.