-: 1 :-

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Dated this the 16TH day of July, 2015

-: PRESENT :-

THE HON' BLE MR. SUBHRO KAMAL MUKHERJEE,

ACTING CHIEF JUSTICE

AND

THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

W.A.No.1522/2009 c/w W.A.No.3124/2014,

W.A.No.1490/2009, W.P.No.4970/2014,

W.A.No.1024/2014 (LA-BDA)

IN W.A.No.1522/2009

BETWEEN:

M/S LAKSHMI MALLEABLES PVT. LTD., NO.144, NAYANDAHALLI,

MYSORE ROAD, BANGALORE,

BY ITS PRESENT MANAGING DIRECTOR, SRI. M R RAJATH. ... APPELLANT

(BY SRI: H T NATARAJA, ADV. FOR M/S. H T N LAW ASSOCIATE ADV.)

AND:

1.SRI G CHANNARAYAPPA, S/O LATE GUMMAIAH,

AGED ABOUT 60 YEARS,

2.C SANDEEP BABU, S/O G CHANNARAYAPPA, AGED ABOUT 28 YEARS,

-: 2 :-

3.C CHETAN, S/O G CHANNARAYAPPA,

AGED ABOUT 25 YEARS,

4.C MADHUSUDAN S/O G CHANNARAYAPPA, AGED ABOUT 23 YEARS,

RESPONDENTS NO.1 TO 4 ARE ALL

R/AT NO.21, PANTHARAPALYA, MYSORE ROAD, BANGALORE-560 029.

5.THE STATE OF KARNATAKA,

REP. BY ITS SECRETARY, DEPT. OF HOUSING & URBAN DEVT. M S BUILDING,

BANGALORE-560 001.

6.BANGALORE DEVELOPMENT AUTHORITY, K P WEST EXTENSION,

BANGALORE-560 020, REP. BY ITS COMMISSIONER.

7.THE SPL. ADDL. LAND ACQUISITION OFFICER, K P WEST EXTENSION,

BANGALORE-560 020. ... RESPONDENTS (BY SRI: C M NAGABHUSHANA, ADV. FOR R1-R4,

SRI. R DEVDAS, PRL. GOVT. ADV. FOR R5, SRI. M N KUMAR, ADV. FOR R6 & R7)

*******

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA

HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 13028/2007 DATED 20/03/2009.

IN W.A.No.3124/2014

BETWEEN:

1.BANGALORE DEVELOPMENT AUTHORITY, T CHOWDAIAH ROAD,

-: 3 :-

KUMARA PARK WEST, BANGALORE-560 020.

REP. BY ITS COMMISSIONER.

2.THE SPECIAL LAND ACQUISITION OFFICER, BANGALORE DEVELOPMENT AUTHORITY,

T CHOWDAIAH ROAD, KUMARA PARK WEST,

BANGALORE-560 020. ... APPELLANTS (BY SRI: G S KANNUR, ADV.)

AND:

1.THE STATE OF KARNATAKA, REP. BY ITS SECRETARY TO URBAN

AND HOUSING DEPARTMENT, M.S. BUILDING,

DR. AMBEDKAR VEEDHI, BANGALORE-560 001.

2.SRI. M GANGADHAR, S/O LATE MUNIVEERAPPA,

AGED ABOUT 35 YEARS, RESIDING AT NO.182,

PANTHARAPALYA, MYSORE ROAD, BANGALORE-560 039. ...RESPONDENTS

(BY SRI: M I ARUN, ADDL. GOVT. ADV. FOR R-1, SRI. P SUBRAMANYA, ADV. FOR C/R-2)

******

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 214/14 DATED 27/1/14.

-: 4 :-

IN W.A.No.1490/2009

BETWEEN:

BANGALORE DEVELOPMENT AUTHORITY, K.P.WEST EXTENSION, BANGALORE-560 001.

BY ITS COMMISSIONER. ... APPELLANT

(BY SRI: KUMAR M N, ADV.) AND:

1.G CHANNARAYAPPA

S/O LATE GUMMAIAH, AGED ABOUT 58 YEARS,

2. C SANDEEP BABU S/O SRI. G.CHANNARAYAPPA,

AGED ABOUT 26 YEARS,

3.C CHETAN, S/O SRI. G. CHANNARAYAPPA, AGED ABOUT 23 YEARS,

4.C MADHUSUDHAN,

S/O SRI. G CHANNARAYAPPA, AGED ABOUT 21 YEARS,

ALL ARE RESIDING AT NO.21, PANTHARAPALYA, MYSORE ROAD,

BANGALORE-39. 5.STATE OF KARNATAKA,

BY ITS SECRETARY, DEPT. OF HOUSING & URBAN

DEVELOPMENT, M.S.BUILDING, BANGALOER-560 001.

6.M/S LAKSHMI MALLEABLES PVT. LTD., NO.144, NAYANDAHALLI,

MYSORE ROAD, BANGALORE.

-: 5 :-

BY ITS MANAGING DIRECTOR, MR. M. RAMACHANDRA. ... RESPONDENTS

(BY SRI: RAJENDRA M S, ADV. FOR SRI. VIVEK HOLLA, ADV.

FOR R1, SRI. PUNDIKAR ESHWARA BHAT, ADV. FOR R2-R4, SRI. M I ARUN ADDL. GOVT. ADV. FOR R5; SRI.H.T.NATARAJ, ADV. FOR R7)

******

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA

HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED

IN THE WRIT PETITION No.13028/2007 DATED 20.3.2009.

IN W.P.No.4970/2014

BETWEEN:

1.ALL COMMUNITIES DEVELOPMENT

WELFARE SOCIETY, BY ITS SECRETARY-

SRI. S R HEGDE, MAJOR, NO.826/A, 5TH MAIN ROAD, VIJAYANAGARA,

BANGALORE-560 040.

2.SRI. B KUSUMAKAR SHETTY, S/O MANJAYYA SHETTY, AGE: 59 YEARS,

R/O NO.1764, 22ND CROSS, GOVINDARAJNAGAR,

BANGALORE-560 040. 3.SMT. M N VIJAYALAKSHMI,

W/O M N PRASANNA, AGE: 52 YEARS,

R/O NO.3390/35, 5TH MAIN ROAD, 3RD CROSS, VIJAYANAGARA 2ND STAGE,

BANGALOE-560 040.

4.MISS. NIVEDITHA RESHME, D/O RAVINDRA RESHME,

-: 6 :-

AGE: 28 YEARS, R/O NO.5/2, POPULATION,

CENTRE QUARTERS, MALLESHWARAM,

BANGALORE-560 003. 5.SMT. GEETHA SHETTY,

W/O SANTHOSH SHETTY, AGE: 52 YEARS,

R/O NO.94, 5TH CROSS, BAPUJI LAYOUT, VIJAYANAGARA,

BANGALORE-560 040.

6.SMT. VIJAYAMMA, W/O T PRABHAKARA, AGE: 68 YEARS,

R/O NO.1780, 23RD CROSS, KHB COLONY,

BANGALORE-560 079.

7.SMT. DEEPA W/O SAMPATH KUMAR, AGE: 41 YEARS,

R/O NO.85, 3RD CROSS, 3RD MAIN ROAD,

CHOLURPALYA, MAGADI ROAD, BANGALORE-560 023.

8.SRI. K R VIJAYAKUMAR, S/O K RAJASHEKARAIAH,

AGE: 73 YEARS, R/O NO.831-A, 4TH MAIN, 5TH CROSS, VIJAYANAGAR,

BANGALORE-560 040.

9.SMT. PRATHIMA PRASAD, D/O SAMPANGIRAMAIAH, AGE: 43 YEARS,

R/O NO.1123, 18/1A, VANI VILAS ROAD,

MYSORE.

-: 7 :-

10.SRI. SHARATH KUMAR HEGDE, S/O SEETHARAMA HEGDE,

AGE: 39 YEARS, R/O NO.6, KRISHNA RESIDENCY,

4TH CROSS, AMARJOTHINAGAR, BANGALORE-560 040.

11.DR. SUNIL SHETTY, S/O RAJEEV SHETTY,

AGE: 37 YEARS, JANANI DENTAL CLINIC, R/O NO.70, 50 FEET ROAD,

CHANDRA LAYOUT, BANGALORE-560 040.

12.MISS. SARITHA HEGDE, D/O S R HEGDE,

AGE: 43 YEARS, R/O NO.312, SALARPURIA,

CAMBRIDGE RESIDENCY, SOMESHWARAPURA 1ST CROSS,

ULSOOR, BANGALORE-560 008. ... PETITIONERS

(BY SRI: MANJUNATH R, ADV. )

AND:

1.THE STATE OF KARNATAKA,

BY ITS SECRETARY, URBAN DEVELOPMENT DEPARTMENT,

M S BUILDING, BANGALORE-560 001.

2.THE BANGALORE DEVELOPMENT AUTHORITY,

BY ITS COMMISSIONER, T CHOWDAIAH ROAD, KUMARA PARK WEST,

BANGALORE-560 020.

3.THE SPECIAL LAND ACQUISITION OFFICER,

-: 8 :-

BANGALORE DEVELOPMENT AUTHORITY, T CHOWDAIAH ROAD,

KUMARA PARK WEST, BANGALORE-560 020.

4.SRI. M MUNIRAMAIAH, S/O LATE MUNIVEERAPPA,

AGE: 46 YEARS, R/O NO.182, PANTHARAPALYA,

MYSORE ROAD, BANGALORE-560 039. ... RESPONDENTS

(BY SRI: R DEVDAS, PRL. GOVT. ADV. FOR R-1, SRI. A LOKNATH ADV. FOR R2 & R3,

SRI. SUBRAMANYAM, ADV. FOR R4, SRI. K C VISWESWARAIAH C/R-2)

******

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ALLOW THIS WRIT

PETIITON AND TO RECALL THE JUDGEMENT PASSED IN W.P.NO.46953/2013 DTD.13.12.2013 AS PER ANNEX-C FOR THE PURPOSE OF PASSING A FRESH JUDGEMENT AFTER

GIVING AN OPPORTUNITY OF BEING HEARD TO THE PRESENT PETITIONERS.

W.A.No.1024/2014:

BETWEEN:

1.THE COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY, T.CHOWDAIAH ROAD, K.P.WEST,

BANGALORE-560 020.

2.THE SPECIAL LAND ACQUISITION OFFICER, BANGALORE DEVELOPMENT AUTHORITY, T.CHOWDAIAH ROAD, K.P.WEST,

BANGALORE-560 020. ... APPELLANTS

(BY SRI: G S KANNUR, ADV.)

-: 9 :-

AND:

1.THE STATE OF KARNATAKA, REP. BY ITS SECRETARY,

URBAN DEVELOPMENT DEPARTMENT, M.S.BUILDING, DR. AMBEDKAR VEEDHI,

BANGALORE-560 001.

2.SRI. M MUNIRAMAIAH, S/O LATE MUNIVEERAPPA, AGED ABOUT 47 YEARS,

RESIDING AT NO.182, PANTHARAPALYA,

MYSORE ROAD, BANGALORE-560 039. ... RESPONDENTS

(BY SRI: DEVDAS PRL. GOVT. ADV. FOR R1 SRI. VISWESWARAIAH, ADV. FOR C/R-2)

******

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA

HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED

IN THE WRIT PETITION 46953 /2013 DATED 13/12/2013.

THESE WRIT APPEALS AND WRIT PETITION COMING ON FOR HEARING-INTERLOCUTORY APPLN. THIS DAY, ACTING CHIEF JUSTICE, DELIVERED THE FOLLOWING:

J U D G M E N T

Although these matters are appearing under the

heading, “Hearing - Interlocutory Application”, we have

considered the matters at length because of long pendency

of the matter.

-: 10 :-

2. Bangalore Development Authority (“BDA” for

short) issued a preliminary notification on July 15, 1982 for

the formation of Nagarbhavi Layout.

Writ Appeal No.1522 of 2009 has been filed by

respondent No.4 in Writ Petition No.13028 of 2007 against

order dated March 20, 2009 by the Hon’ble Single Judge.

3. The writ petitioners in Writ Petition No.13028

of 2007 are the owners of 2 acres of land in Survey No.103

at Nagarbhavi Village. They have impugned the award

passed by the BDA on the ground that the acquisition

proceeding got lapsed. This reveals as to how the

provisions of Section 27 of the Bengaluru Development

Authority Act, 1976 are misutilised by the owners to stall

the formation of layouts.

The relief claimed against the appellant herein by the

respondent land owners, that is, petitioner Nos.1 to 4 in

the writ petition was to seek a declaration that allotment

and issuance of possession certificates in respect of seven

-: 11 :-

sites vide seven sale deeds dated November 7, 2007 were

null and void.

4. Petitioner No.1 in the writ petition had earlier

filed Writ Petition No.13042 of 1986, which was dismissed

by order dated November 23, 1987. He had also filed

Original Suit No.5824 of 1989 before the City Civil Court,

Bengaluru, against the BDA, which was also dismissed on

January 9, 1996. One Muniveerappa, the adjoining land

owner had filed Writ Petition No.17707 of 1986, which was

dismissed on March 8, 1991.

5. Writ Appeal No.2361 of 1991 was dismissed on

July 18, 1991, which arose out of Writ Petition No.21563 of

1989 seeking regularization of unauthorized construction.

The owners of the adjoining land, Muniveerappa filed Writ

Petition No.19532 of 2005 to declare that the acquisition

proceeding had lapsed under Section 27 of the BDA Act.

That writ petition was, also, dismissed on August 3, 2006.

-: 12 :-

6. In the second writ petition, the petitioner had

challenged the acquisition proceeding stating that the

scheme had lapsed. The writ petition was dismissed on

the ground that the scheme had been substantially

implemented.

7. It was contended that although the acquisition

proceeding was initiated in the year 1982, but till 2003 the

award was not passed. Consequently, the entire scheme

got lapsed.

8. Section 27 of the BDA Act postulates that if the

authority fails to execute the scheme substantially, the

scheme shall lapse and the provisions of Section 36 shall

become inoperative.

9. It is not that all the land owners had

challenged the acquisition proceeding. We are informed

that the layout has been formed. Therefore, we cannot

hold that there was a dereliction of duty on the part of the

authorities or failure on their part to execute the scheme

-: 13 :-

substantially within five years from the date of publication

of the official gazette and the declaration under

sub-section (1) of Section 19 of the said Act. There was

no failure to execute the scheme, but there were attempt

to stall the scheme by the land owners. Several writ

petitions were filed. A civil suit was instituted. We do not

find that the authorities either failed or derelicted from

duty in implementing the scheme.

10. We feel that the land owners are aggrieved as

there has been a spiraling in price of land in the city of

Bengaluru, but that cannot be a ground to permit them to

stall the scheme for the formation of layout when the

authorities have decided to form layout for the better

interest of the society.

Despite the aforesaid facts, Hon’ble Single Judge has

held that the acquisition proceeding had lapsed in respect

of 2 acres of land in Sy.No.103 belonging to respondent

Nos.1 to 4 herein and, consequently, declared the

allotment made to respondent No.4 as null and void. In

-: 14 :-

view of the dismissal of the earlier writ petitions filed by

respondents herein as well as the dismissal of the suit filed

by respondent No.1, the Hon’ble Single Judge ought not to

have entered upon the merits of the matter and ought to

have simply dismissed the writ petition.

11. We are of the opinion, with greatest respect to

the Hon’ble Single Judge, it was not necessary for him to

dwell upon the facts for the purpose of declaration that the

scheme has lapsed when it has been proved that the land

owners have made all attempts to stall the scheme.

Therefore, the order impugned in Writ Petition No.13028 of

2007 dated March 20, 2009 is set aside.

12. Writ Appeal No.1522 of 2009 is allowed.

W.A.NO.1024/2014

13. This appeal is filed by the BDA assailing order

dated December 13, 2013 passed by the Hon’ble Single

Judge in Writ Petition No.46953 of 2013.

-: 15 :-

14. By that order, Hon’ble Single Judge has held

that insofar as the land belonging to respondent No.2

herein was concerned, the scheme has lapsed under

Section 27 of the BDA Act.

15. Learned counsel for the BDA has submitted

that the impugned judgment would have to be set aside in

view of the fact that respondent No.2 (M.Muniramaiah)

herein had earlier filed Writ Petition No.19532 of 2005

along with his brother M. Gangadhar and by order dated

August 3, 2006 that writ petition was dismissed.

16. In that writ petition, also, the very same

declaration to the effect that the acquisition had lapsed

was sought and the Hon’ble Single Judge of this Court had

dismissed that writ petition, which order has attained

finality.

17. The writ petition filed by the second

respondent herein, in our view, has to be dismissed for the

simple reason that the second respondent had filed a

-: 16 :-

second writ petition on the same cause of action, which

was not maintainable. The writ petition filed by the second

respondent was hit by the principles of res judicata.

Therefore, the order of the Hon’ble Single Judge dated

December 13, 2013 passed in Writ Petition No.46953 of

2013 is set aside and the appeal is allowed.

W.A.No.3124/2014:

18. This writ appeal is filed by the BDA assailing

order dated January 27, 2014 passed in Writ Petition

No.214 of 2014. By that order, Hon’ble Single Judge has

followed order passed in Writ Petition No.46953 of 2013

disposed of on December 13, 2013 and allowed the writ

petition by holding that the scheme insofar as the land of

respondent No.2 herein is concerned had lapsed under

Section 27 of the BDA Act.

19. Learned counsel for the BDA has brought to

our notice that respondent No.2 herein along with his

brother Muniramaiah M., had filed Writ Petition No.19532

-: 17 :-

of 2005 before this court and by order dated August 3,

2006, the Hon’ble Single Judge dismissed the writ petition.

That order has attained finality. He, therefore, contended

that the second respondent could not have filed one more

writ petition seeking the very same relief, which he had

sought in Writ Petition No.19532 of 2005 along with his

brother.

20. We are of the opinion that the Hon’ble Single

Judge ought not to have entertained the said writ petition

inasmuch as those petitioners earlier filed Writ Petition

No.19532 of 2005, and upon a contested hearing, the said

writ petition, on the selfsame issue, was dismissed on

August 3, 2006.

21. We are of the opinion that the filing of second

writ petition was an abuse of the process of the Court to

stall the scheme. Therefore, both the orders as aforesaid

are set aside.

-: 18 :-

22. In view of the order passed in Writ Appeal

No.1024/2014, we dismiss Writ Petition No.214 of 14 and

set aside the order passed therein by allowing this appeal.

W.A.NO.1490/2009:

23. In view of Writ Appeal No.1522 of 2009 being

allowed and the impugned order being set aside, this writ

appeal is, also, allowed as the very same order of the

learned Hon’ble Judge has been impugned in this writ

petition.

24. The writ appeals are allowed

25. We, however, make no order as to costs.

W.P.NO.4970/2014:

26. This writ petition is filed by certain persons

assailing order dated August 3, 2006 passed in Writ

Petition No.19532 of 2005.

-: 19 :-

27. The aforesaid writ petition was filed by

Muniramaiah M. and M. Gangadhar. By order dated

August 3, 2006, Hon’ble Single Judge of this Court had

dismissed the writ petition. It is significant to note that

the petitioners in Writ Petition No.19532 of 2005 have not

assailed the order dated August 3, 2006.

28. In fact, they attempted to overcome that order

by independently filing two different writ petitions, which in

fact were not maintainable, but were allowed and by order

passed in Writ Appeal Nos.1024 of 2014 and 3124 of 2014,

we have dismissed the writ petitions filed by them for the

second time and by setting aside the orders made in their

favour.

29. In Writ Petition No.19532 of 2005, Hon’ble

Single Judge has noted the earlier proceedings filed by

Muniveerappa, father of the petitioners therein, and

G.Channarasappa, as well as the suits filed by them came

to be dismissed, and has, also, held that after the

-: 20 :-

dismissal of the aforesaid matters, possession of the land

was taken over by the BDA.

30. In the order under challenge, Hon’ble Single

Judge has, also, held that the scheme has been

implemented substantially by the BDA and that the process

relating to taking possession of some portion of the land of

the petitioners in Writ Petition No.19532 of 2005 was

obstructed because of the interim orders granted by

various Courts including this Court and that the BDA

cannot be blamed for the same. Therefore, Hon’ble Single

Judge dismissed the writ petition. When the order dated

August 3, 2006 has not been assailed by the petitioners,

we do not see as to how the petitioners herein could assail

that order. In fact, the writ petition filed by the petitioners

in Writ Petition No.19532 of 2005 was an abuse of the

process of this court and that was rightly dismissed by the

Hon’ble Single Judge. We find no error in the impugned

order. Hence, this writ petition is dismissed.

-: 21 :-

31. However, we refrain from imposing cost in

the matter.

Sd/- ACTING CHIEF JUSTICE

Sd/- JUDGE

S*