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01. IN
THE SUPREME COURT OF INDIA
CIVIL
APPELLATE JURISDICTION
SPECIAL
LEAVE PETITION (CIVIL) NO. ------ OF 2006
BETWEEN
The Karnataka State
Judicial Department
Employees House
Building Co-operative society .
Rep.By its Secretary
& Anr.
…………….PETITIONERS.
AND
Judicial Layout
Residents and Site Holders Association (Regd.)
Rep. By its Board of
Direction & Ors.
…………….. RESPONDENTS.
OFFICE
REPORT ON LIMITATION
The above mentioned Special Leave Petition is in time
SECTION.
OFFICER
Filed
on : 24.07.2006.
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The Petitioners, arrayed as a
contemnor in the in the Contempt of court petition No.87/2004
[civil] in the high court of Karnataka at Bangalore, is an
office bearer of a cooperative society called the Judicial
Department Employees House Building Society [Regd.], Bangalore. The
said society consists Judicial Officers including the present
and past Judges of the Hon’ble
High Court of Karnataka, former Chief Justices of the
said court, Judicial Officers belonging to the subordinate
Judiciary of the State and, inter alia,officals of the High
Court of Karnataka,
particularly of those working in the city of Bangalore.
The society has been registered in the year 1983. A
layout was formed and the first phase of the layout formed by
the society having been completed several years ago, a
large number of houses of its members including those of the
former and present judges, Chief Justices and others, have come
up in the layout, and many of them have been residing there.
The Respondent herein is an Association of the residents
and site holders of the layout concerned.
A Writ Petition in W.P.No.40994/2002 (GM-Res) has been
filed by the Respondent Association professedly probing public
claiming to be a public interest litigation, seeking various
relates in respect of the alleged sale or allotments of sites.
The said petition is pending adjudication before the High Court
of Karnataka.
In a Contempt of Court Petition filed by the Respondent,
the petitioners herein and several others have been sold by the
society. It has also been alleged that
the society has changed the majority of the civic amenity sites
by converting them as residential sites.
The petitioners herein, by their statement of Objections,
contended that the petition was bereft of bonafides, devoid of
truth and that there was no willful disobedience of any order
passed in the writ petition. The
petitioner have also filed Affidavits to the effect that they
would unconditionally and without any reservation or demur seek
the pardon of the Hon’ble court and would apologize to the
said court, and set right any infraction of the interim orders,
that may have occurred due to absence of knowledge of the said
interim orders.
The Hon’ble High Court,
without considering the apology tendered, the cancellation of
sale of sites after the interim orders dated 22-01-2003 and
18-06-2003, without considering the effect of lack of knowledge
of the said orders and th e other contentions, has proceeded to
frame charges against the Petitioners. Hence, the present
Special Leave Petition.
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11-08-1983
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The
Judicial Department Employees House Building Society
[Petitioner/Contemnor) (hereinafter referred to as
petitioner-society) was registered under the Co-operative
societies Act, Karnataka for the benefit of the employees of the
Judicial Department including the members of the judicial
service.
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22-01-1996
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Government
of Karnataka issued a notification bearing no. HUD 439 KLR 95,
under Sections 3 & 9 of the Karnataka Municipalities Act,
1964, bringing within the jurisdiction of the City
Municipal council, yelahanka, Bangalore the area where the
residential layout formed by the Judicial Department Employees
House Building Society (Regd).
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22-05-1996
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The formation of
Municipal Council Yelhanka approved the layout plan of the
society by its resolution No.24.
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28-10-2002
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Respondent No.1
herein filed a Writ Petition in W.P.No.40994/2002 before the
High Court of Karnataka, at Bangalore styled as public
interest litigation questioning
the irregularities allegedly committed by the petitioner society.
The substance of the Writ Petition is that the site reserved for civic
amenity purposes are likely to be transferred / alienated by the
society contrary to the approved plan, and as such the
Respondents sought a writ of Mandamus as against the petitioner
society. ( A true copy of the Memorandum of Writ Petition
W.P.No.40994/2002dated 28-10-2002 filed by the
Respondent/society before the High Court of Karnataka at
Bangalore, is filed herewith and marked ANNEXURE-P1
to this Petition)
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21-01-2003
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In the writ petition
an Application in I.A.No.1 was filed U/o 39 R.1& 2 of C.P.C.
with a specific prayer seeking temporary injunction restraining
the society from forming road or otherwise altering the nature
of the open space measuring 195 X 200 ft’
surrounded by the boundaries described therein. No
specific number of the site or of the land is mentioned in the
Application. It is relevant to state that out of the area
measuring 195X200ft., the society has already formed certain
sites and a plot of land measuring 100X100ft. alone was to be
utilized a civic amenity purpose, namely the construction of a
Temple. The entire area of 195X200ft, was not reserved for civic
amenities, or for construction of a Temple as alleged in the
Writ Petition. (A true copy of the Application in I.A. No.1 in
W.P.No.40994/2002 dated 21-01-2003, filed by the
petitioner before the High Court of Karnataka at Bangalore, is
filed herewith and marked ANNEXURE-P2 to this
petition)
It
appears that writ petition was posted for preliminary hearing
initially before different benches of the High Court as some of
the Hon’ble Judges happen to be the members of the society and
were disabled from hearing the writ petition,
it is relevant to state that in the writ petition the society
was the sale contesting Respondent as represented by its
secretary. The other three Respondents being the government of
Karnataka the B.D.A and C.M.C yelahanka.
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22.01.2003
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The Division of the
High Court of Karnataka for the first time while issuing notice
to Respondents in the writ petition made the following order:
“Learned counsel
for the petitioners submits that, despite prohibition to change
the character and nature of the open space land, the Respondents
have started forming sites in the open space land measuring
195’X200’ reserved for temple.
Issue notice to
Respondent Nos.1,3 and 4 returnable in two weeks. Learned
Government Advocate to take notice for Respondent No.2
In the meanwhile
Respondent No.4/society not to change the character of the land
described in I.A.No.1/2003.”
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10.02.2003
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The
petitioner/society herein (Respondent No.4 in the writ petition)
after service of notice had entered appearance by filling its
Vakalatnama through its Advocate Shri B.L.Acharya. (A true copy
of the filing memo with the endorsement for filing of the
Vakalatnama dated 10-02-2003 is filed herewith and marked ANNEXURE-P3
to this petition)
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12-03-2003
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The office report in
the order sheet of the Writ Petition in W.P.No.40994/2002 shows
that ‘Respondent No.3 and Respondent No.4 are served’
however, it does not show that a Vakalatnama has already been
filed by the Advocate for the Respondent No.4, on behalf of the
society. (A true copy of the order-sheet dated 12-03-2003 of the
High Court of Karnataka at Bangalore in W.P.No.40994/2002 is
filed herewith and marked ANNEXURE-P4 to this
petition)
It appears that on
the strength of a memo filed by the Respondent No.1 herein, the
writ petition was posted for further orders on 18-06-2003.
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18-06-2003
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It is relevant to
state that on 18-06-2003 the Cause List of the High Court does
not contain the name of the Advocate for the Respondent
No.4/Petitioner with the result that neither the petitioner with
the result that neither the petitioner, nor its counsel was
aware of the case being listed on 18-06-2003. (A true copy of
the cause list of the high court for 18-06-2003 is filed
herewith and marked ANNEXURE-P5 to the petition)
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18-06-2003
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The order sheet for
this date indicates the office note as follows: “Respondents
No. 3 and 4 are served, separate interim order dictated”.
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18-06-2003
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The Division Bench
of the High Court of Karnataka at Bangalore, after hearing only
the Counsel for the Respondent No.1 while noticing that though
the Respondents No.3 and 4 are served, but nobody appeared,
proceeded to make an order directing that during the pendency of
the writ petition, ‘the society shall not transfer any civic
amenity site as shown in the application submitted to B.D.A
until further order. In the meanwhile the Respondent can file
their Counter. Put up after two months’ (A true copy of the
interim order dated 18-06-2003 passed by the High Court of
Karnataka at Bangalore, in Writ Petition in W.P.No.40994/2002,
is filed herewith and marked ANNEXURE-P6 to this
petition}
It is relevant to
state that as indicated above the petitioner herein was not
aware of the orders passed by the Hon’ble High Court on
22-1-2003 or the order dated 18-6-2003, mainly because the name
of the Advocate was not shown in the Cause List.
Unfortunately in the
absence of the knowledge of the interim order dated 22-1-2003
passed by the High Court of Karnataka, the society had allotted
4 plots of land bearing Site No.859/A, 859/B, 859/E and 859/F,
falling within the area of 195X200ft. as described in I.A.No.1
in favour of 4 Members. Subsequently the society has cancelled
these allotments and the sale-deeds which had been executed
earlier in their favour have also been cancelled.
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02-07-2003
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The Respondent No.1
issued a letter to the petitioner society intimating the orders
passed by the High Court on 22-01-2003 and 18-06-2003. for the
first time the petitioner-society became aware of the orders
passed by the High Court of Karnataka.
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23-10-2003
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The petitioners
herein have filed their statement of Objections to the writ
petition before the High Court of Karnataka. (A true copy of the
statement of objections dated 23-10-2003 filed by the
petitioners in W.P.No.40994/2002 before the High Court of
Karnataka at Bangalore, is filed herewith and marked ANNEXURE-P7
to this petition)
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20-01-2004
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The Respondent No.1
herein moved a contempt petition in CCC No. 87/2004 before the
High Court of Karnataka under Article 215 of the constitution
read-with sections-11 and 12 of the contempt of Courts Act,
inter-alia on the ground that the petitioner society had
committed willful disobedience of the orders of the High Court
dated 22-1-2003 and 18-6-2003 in the contempt petition, the
Respondents have
imp leaded all the 15 Directors of the petitioner-society,
including the Secretary, it is relevant to note that in the writ
petition, none of them is made a party except the society itself
represented by its secretary. (A true copy of the contempt
petition in CCC No. 87/2004 filed by the Respondent No.1/society
before the High Court of Karnataka at Bangalore, is filed
herewith and marked ANNEXURE-P8 to this petition)
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29-01-2004
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The Division of the
High Court, at the
stage of preliminary hearing of the contempt proceedings,
directed as follows:
“Issue notice to Respondent No.6 as to why contempt
proceeding should not be initiated, returnable in six weeks. The
learned counsel for the complainants submits that he does not
seek any relief against Respondent Nos.2 and 3. Accordingly,
Respondent Nos.2 and 3 deleted at the risk of the learned
counsel.”
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10-03-2005
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Shri Shivilagaiah,
the president of the petitioner society, had also filed an
Affidavit in the contempt proceedings narrating the
circumstances in which the orders passed by the High Court had
not come to the knowledge of the society of its Directors and
that there was no intention to disobey any of the orders of the
Hon’ble High Court and further an unconditional apology was
also tendered by him in the affidavit. (A true copy of the
Affidavit dated 10-03-2005 filed by president of the
petitioner/society in CCC No.87/2004 in W.P.No.40994/2002, is
filed herewith and marked ANNEXURE-P9 to this
petition)
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17-02-2006
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The petitioner
herein filed its reply to the contempt petition on behalf of
Respondent Nos. 4 to 8, inter-alia, contending that the
petitioner-society was not aware of the order passed by the High
Court on 22-01-2203 and the order dated 18-6-2003 name of the
Directors was parties to the Writ Petition, and as such they
were not aware of the orders passed by the High Court further
the society was taking all necessary steps to rectify the
mistake, which was done without awareness or knowledge of the
orders passed by the High Court; the Respondents Nos.4 to 8 also
rendered unconditional apology with a prayer to drop the
contempt proceedings. It is also stated that the
Petitioner-society had already cancelled all such sale-deeds
issued subsequent to the orders of the High Court dated
22-1-2003 and 18-6-2003. (A true copy of the reply dated
17-2-2006 filed by the petitioner/society in CCC No.87/2004 in
W.P.No.40994/2002, is filed herewith and marked ANNEXURE-P10
to this petition)
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17-02-2006
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The High Court
passed an order, on the basis of the submissions of the Counsel
for the petitioner that the society should be given an
opportunity to enable the petitioner to file an affidavit, of
Respondent’s responsible office bearer of the society or the
contemnors, undertaking to, purge the contempt by executing
the cancellation deed of the documents of conveyance or
other forms of transfer…”, (A true copy of the order dated
17-02-2006 passed by the High Court of Karnataka at Bangalore in
CCC No.87/2004 in W.P.No.40994/2002, is filed herewith and
marked ANNEXURE-P11 to this petition)
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07-07-2006
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The Division Bench
of the High Court, by the impugned order dated 07-07-2006, has
held that a prima-facie case of willful disobedience of the
orders have been made out against Respondents No. 4 to 8, and as
such directed the case to be listed on 28-7-2006 framing of
charges against Respondent Nos. 4 to8.
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24-07-2006
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Special Leave
petition is filed.
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04. IN
THE HIGH COURT OF KARNATAKA AT BANGALORE
CCC
NO. 87 OF 2004
IN
W.P.NO. 40994 OF 2002 (GM-RES)
IN THE MATTER OF
Judicial Layout
Residents and Site Holders Association (Regd.)
Rep. By its Board of Direction & Ors.
…………….. Complainant
Versus
Bangalore
Development Authority
Rep. By its Commissioner & Ors.
……………Respondents
RMRJ & HBJ
Dated: 07-07-2006
Order
(1)
Heard the learned counsel for the complainants and the learned
counsel for the respondents/accused regarding framing of the charges.
(2)
The complaint avers that there is willful disobedience of the
order dated 18-06-2003. It is averred in the complaint that the
complainants are the president, secretary and Directors of the Judicial
Lay-out, Residents and Site-Holders Association (Regd.), and that the
Association had filed writ petition W.P.No. 40994/2002 seeking a direction
to the respondents to take necessary steps to protect, preserve and
maintain the open spaces like C.A.’s
parks, play-ground and bus terminus in the judicial Lay-out and
that when the matter came up for preliminary hearing on 22-01-2003, this
court directed emergent notice to the respondents and passed an interim
order restraining the respondents from changing the nature of the land
with regard to the temple site measuring 195’X200’ and that an
18-06-2003, this Court directed the fourth respondent to produce the map
that was submitted to the BDA along with, list of civic amenity sites
which have been transferred within one month and that BDA was also
directed to submit its report within two months and that this court while
continuing the interim order dated 22-012003, an order stating that the
society shall not transfer any civic amenity sites shown in the map and
that on 02-07-2003, made an order stating that the society shall not
transfer any civic amenity sites shown in the map and that on 02-07-2003,
the complainants have served copy of the interim order on the
secretary/Manager of the said society and that in spite of the interim
order dated 18-02-2003, the society has deliberately sold residential
sites in the open area in direct and willful disobedience of the interim
order dated 18-06-2003, it is also averred that the society has changed
the nature of civic amenity sites by converting them as residential sites
and it is selling and registering the same to different person even after
the order passed by this court on 18-06-2003, in support of the same, the
complainants have produced series of encumbrance certificates. They have
also produced the list of civic amenity sites and layout plan submitted by
the society to the BDA and modified plan said to have been approved by the
CMC, Yelahanka. It is, therefore, they have prayed for initiation of
contempt proceedings against the respondents herein for willful
disobedience of the order dated 18-06-2003.
(3)
This court by its order dated 29-01-2004 has directed notice to
the respondent No.6 and thereafter by its order dated 09-07-2004 it had
directed notice to the respondents1,4,5,7 and 8 and R.2 and 3 have been
deleted by order dated 29-01-2004 and no notice is directed to respondents
9 to 19.
(4) The respondent No.1 has filed its response contending
that there is no violation of the order passed by
this court. It has also stated that this court had directed the
fourth respondent to submit a copy of the map filed by it to the BDA and
also directed the BDA to submit its report within two months and that the
fourth respondent did not furnish the copy of the map said to have been
filed by it to the BDA and that as it did not act according to the
direction, the Town planning Member of the BDA addressed a letter to the
fourth respondent of 17-07-2003 and there was no response to said letter
and therefore one more letter was written on 23-07-2003 and there was no
response to the said letter also and therefore it was not possible for the
BDA to submit its report in terms of the order dated 18-06-2003. it is,
therefore, it has prayed for dismissal of the petition.
(5)
In the affidavit dated 03-03-3005 filed on behalf of the
respondent No.4-society, Sri Suresh Kumar, secretary, has stated that as
on 22-05-1996 the society was in possession of 193 acres and 2 ¼ guntas
of land and out of that plan has been sanctioned in respect of
466197.48sq. yards by the City Municipal Council. Yelahanka, vide
resolution dated 22-05-1996
and that in the said plan, sites have been allotted for school, park and
play-ground. He has also stated that in the land measuring 934392.96
square yards totally 2268 sites have been formed and 90% of them have been
sold to the members of the society. He has also stated that respondent
No.4-society has not disposed of any civic amenity sites reserved in terms
of the sanctioned plan dated 22-05-1996. It is also stated that BDA in its
meeting held on 16-11-1992 had resolved to approve that private layout
plan subject to certain conditions and that plan was not released by the
BDA as huge amount was demanded towards conveyance, water supply and ring
road and that it was challenged before this court in W.P.No.39338-34/1992
and it came to be dismissed in view of the letter dated 16-05-1994 issued
by Sri.T.S.Ramachandra, Advocate. It is also stated that the area was
brought within the limits of Municipal Council and municipal Council has
approved the plan on 22-05-1996 and there is no violation of the interim
orders passed by this court. It is also stated that the sale deeds
mentioned by the complaints are all residential sites in the approved plan
dated 22-05-1996.
(6)
The respondent No.6 has filed his response dated 04-08-2004
contending that the complaint is false, frivolous and vexatious and it is
not maintainable either in law or on facts and it is filed with malafide
intention of harassing the respondents. It is also stated that some of the
complaints had contested the election for the post of Director of the
Karnataka State Judicial Department Employees House Building Co-operative
Society and that they had lost the election and therefore, they have a
grudge against him. It is also averred by him that the complainants had
sought for a site in the Judicial Lay-out for construction of the temple
and that the Board of Directors of the society decided that the society
itself can construct the temple in a site measuring 80’X100’ and that
this angered the petitioners. Further it is averred that Sri.B.L.Acharya,
Advocate, had filed vakalath for the fourth respondent and his name was
not shown in the cause-list, and therefore he was not present before the
court on 18-06-2003 when the order was passed. It is also averred by him
that he has not violated the interim order passed by this court. Further
it is averred that this court had passed interim order dated 22-01-2003
directing the respondents not to change the nature of the land in regard
to the site measuring 195’X200’ which has been termed as a temple site
in the writ petition and that in fact as per the lay-out plan sanctioned
by the Yelahanka Municipal Council, the said land area comprises of
several residential sites and some of them had been transferred before the
interim order was passed by this court and that whatever sites had not
been transferred have remained as they are. It is also averred by him that
no plan submitted to the BDA is available in the records of the fourth
respondent-society and that he is not aware of any plan having been
prepared and submitted to the BDA. According to him as per the records of
the society and as per his knowledge, only one layout plan has prepared
and it has been submitted to the third respondent-City Municipal Council.
It is also averred by him that BDA has issued an endorsement stating that
no layout plan is available in the records of the BDA. It is also averred
by him that this court had directed the fourth respondent-society not to
transfer any civic amenity sites as shown in the map submitted to the BDA
and that since there was no plan submitted to the BDA and plan was
submitted by the fourth respondent to the third respondent-City Municipal
Council, the interim order was considered by this respondent and the Board
of Directors of the fourth respondent
– society as preventing and precluding them from transferring the civic
amenity sites shown in the layout plan submitted to the third
respondent-City Municipal Council. He has denied the allegations that the
society has deliberately sold the sites for residential purposes in
violation of the order passed by this Court on 18-06-2003. He has stated
that sites which have been sold are not civic amenity sites. He has also
stated that civic amenity sites specified in the layout plan approved by
the City Municipal Council have not been converted or transferred or
alienated and that all the civic amenity sites have been transferred to
the City Municipal Council, Yelahanka. He has also stated that the
sale-deeds shown in the encumbrance certificates produced by the
complainants relate to the sale or residential sites which have taken
place in the routine course of business of the fourth respondent-society
and that the allegation that Annexure-‘D’ depicts the list of civic
amenity sites is not true. It is also stated that in fact all these sites
had been sold years back when the respondent was not the president of the
society. He has also stated that as per the records and as per his
knowledge no layout plan has been submitted to the BDA for approval. He
has also stated that he has the highest regard for all the courts and he
has served as Registrar of this court for nearly 20 years and therefore,
has prayed for dismissal of the complaint.
(7)
Thereafter, the respondents 4 to 8 have filed their detailed
reply to the contempt petition on 17-02-2006 contending as follows:
That the order dated 18-06-2003 has two directions, namely, that
the fourth respondent – society shall not change the character of the
land described in I.A.1/03 and that I.A.1/03 is for an ad-interim order of
temporary injunction restraining the fourth respondent or anyone acting
under it from forming sites or otherwise altering the nature of the site
measuring 195’X200’ and that the fourth respondent has sold three
sites namely 859/A, 589/E and 859/F prior to the order dated 18-06-2003
but pursuant to the order dated 22-01-2003 and that the said action of the
respondents is due to lack of knowledge or info motion as to the order
passed by this court on 22-01-2003 and 18-06-2003. They have also stated
that the said order was not communicated to the fourth respondent society
or its office bearers. It is also stated that the office bearers of the
fourth respondent – society are employees of this court and the courts
below and they have served this institution for more than 20 years and
they have the highest regard for all the courts. They have also stated
that thee is no willful or intentional violation of the orders passed by
this court, but it is only due to non-communication of the orders passed
by this court. It is also stated that keeping in mind the grievance of the
complainants, the respondents are taking steps to see that the site
measuring 195’X200’ is kept vacant for the purpose of building the
temple and that the respondent No.4-society has requested the Members in
whose favour sale-deeds have been executed to surrender the same and to
which some of them have accepted and the respondent No.4-society is in the
process of getting the remaining sale-deeds cancelled. It is also stated
that in so far as site
No.859/C and 859/D are concerned, the sale-deeds have been executed on
18-11-2002 and 26-10-2002 and site No.859/B1 measuring 10,000sq.ft., has
been kept vacant for the purpose of temple and that efforts are being made
to see that the land measuring 195’X200’ is earmarked for the purpose
of temple. It is also stated that the second portion of the order dated
18-06-2003 states that the society shall not transfer any civic amenity
sites as shown in the plan submitted to the BDA until further orders and
that pursuant to the order dated 18-06-2003, totally 24 sites have been
sold and out of the same, the respondent has cancelled 7 sale-deeds and
only 17 sale-deeds are to be cancelled to which the respondents herein
have already issued notice to the allottees to get the sale-deeds
cancelled. It is also stated that the sixth respondent was not a party in
the said writ petition and the order passed by this court in the writ
petition. It is also averred that respondents 5,7 and 8have not executed
any sale-deeds in violation of the orders passed by this court and they
were not parties to the writ petition and they were not aware of the
orders passed by this court, it is also stated that the respondent No.4
–society had engaged the services of B.L.Acharya, Advocate and his name
was not shown in the cause-list and therefore he was not present before
the court on 18-06-2003 when the order was passed. It is also stated that
the sale-deeds have been executed without being aware of the orders passed
by this court and if the respondents were aware of the orders passed by
this court, they would not have executed the sale-deeds. It is also stated
that the action of the respondent No.4 –society in executing sale-deeds
is not willful and intentional to violate the orders of this court and the
respondents are taking all steps to get the sale-deeds cancelled which
have been made pursuant to the orders of this court and therefore,
contempt proceedings may be dropped. They have also stated that the court
can accept the unconditional apology tendered by them and drop the
contempt proceedings.
(8)
In the affidavit filed by Sri.Kempathimmaiah i.e., the
respondent No.8 herein on 24-03-2006, it is stated that sale deeds have
been executed bonafide and without the knowledge of the interim orders and
that he society would purge itself of the contempt alleged by cancellation
of the deeds in respect of which sites have been sold in violation of the
interim orders and that the sale deeds have been cancelled and that they
have the highest regard for this court and they will scrupulously obey the
orders of this court and therefore they have prayed for dropping of the
proceedings. They have also produced copies of the cancellation deeds.
(9)
The learned counsel for the complainants contended that the
respondents have committed willful disobedience of the orders passed by
this court and therefore, they are liable to be prosecuted. He also
submitted that the encumbrance. Certificates produced by the complainants
clearly show that the respondents have violated the orders passed by this
court and therefore they are liable to be prosecuted. He therefore, prayed
to initiate contempt proceedings against the respondents.
(10)
The Learned Senior Counsel Sri. T.R.Subbanna, appearing for the
respondent No.6placing reliance on the decisions of the Hon’ble Supreme
Court submitted that there is no willful disobedience of the order passed
by this court and unless there is willful disobedience and it is
intentional, contempt proceedings cannot be inflated and therefore
contempt proceeding may be dropped. He also submitted that rights
of the parties will be seriously prejudiced if contempt petition
and writ petition are not heard together. He also submitted that
respondents have retraced their steps and they have already taken steps to
cancel the sale-deeds and therefore contempt proceedings may be dropped.
He also submitted that the respondents have tendered unconditional apology
and the same may be accepted and contempt proceedings may be dropped. He
also submitted that the respondents have served this court and they have
the highest regard for this court and therefore, they have no intention to
commit willful disobedience
of the orders passed by this court and therefore, contempt proceedings may
be dropped.
(11)
Sri Venkata Reddy, the learned counsel appearing for the
respondent No.7 submitted that writ petition was filed on 11-11-2002 and
thereafter interim orders were passed on 22-01-2003 and 18-06-2003 and
there is no willful disobedience of the interim orders and therefore there
is no contempt. He also submitted that 24 sites have been sold and they
have retraced their steps and therefore, there is no contempt. He also
submitted that 24 sites have been sold and they have retraced their steps
and therefore, there is not contempt and the proceedings may be dropped.
He also submitted that the respondents have tendered unconditional apology
and the same may be accepted and contempt proceedings may be dropped. He,
therefore prayed to drop contempt proceedings.
(12)
The learned Senior Counsel Sri.Subramanya Jois appearing for
the respondent No.8 submitted that the writ petition may also be heard
laong with the contempt petition. He also submitted that the complainants
have not approached this court with clean hands and they have suppressed
the material facts. Further he submitted that complainants a,b,c,d and e
are all beneficiaries and the respondent No.8 and others were not parties
to the writ petition and they were not informed to the order. He also
submitted that there is no plea of disobedience and there is no willful
disobedience of the order passed by this court and therefore contempt
proceedings may be dropped.
(13)
We have carefully considered the submissions made by the
learned counsel for the parties.
(14)
In our considered view, a prima facie case has been made out
against the respondents 4 to 8.
(15)
It is not in dispute that the respondents 5 to 8 are the office
bearers of respondent No.4-society. This court by its order dated
22-01-2003 has directed the respondent No.4-society not to change the
nature of the land with regard to the temple site measuring 195’X200’and
thereafter by its order dated 18-06-2003 it has directed the respondent
No.4 not to transfer the civic amenity sites shown in the map submitted to
the BDA. It has also directed the respondent No.4 to produce the map that
was submitted to the BDA along with list of civic amenity sites
transferred within one month. It has also directed the BDA to submit its
report within two months. In spite of this, the respondent No.4-society
has transferred the sites.
(16)
It is clear from the response filed by the respondents 4 to 8
on 17-02-2006 that the respondents 4 to 8 have alienated civic amenity
sites. They have sold 24 sites. In the land measuring 195’X200’ they
have sold three sites bearing Nos.859/A, 859/E and 859/F subsequent to the
order dated 22-01-2003 and prior to the order dated 18-06-2003.
They have stated that due lack of knowledge of the orders dated 22-01-2003
and 18-06-2003 they have alienated the sites. They have also stated that
the said orders were not communicated to them and that the respondents 5
to 8 were not parties to the writ petition. At this stage it is difficult
to believe this. It is averred in the complaint that the order was
communicated to the secretary on 02-07-2003. Apart from this, the
respondent No.4 was represented by the learned counsel. While it is true
that he was not present before the court on 18-06-2003, when the order was
passed, but the fact remains that the society was aware of the
proceedings. The respondent No.6 in his statement dated 04-08-2004 has
stated that the directed the fourth respondent has to amenity sites as
shown in the map submitted to the BDA and since no plan was submitted to
the BDA and plan was submitted to the City Municipal Council, the Board of
Directors and himself considered that interim order passed by this court
was precluding and preventing them from transferring civic amenity sites
shown in the layout plan submitted to the third respondent –City
Municipal Council which clearly shows that the respondents 4 to 8 had the
knowledge of the interim orders passed by this court. In our considered
view, there is no merit in the contention that the respondents 4 to 8 had
no knowledge of the orders passed by this court.
(17)
The respondent No.6 surprisingly in his response dated
04-08-2004 has stated that no plan was submitted to the BDA and it is not
available in the records of the respondent No.4 society which is totally
incorrect. The material on record clearly discloses that plan was
submitted to the BDA and it was not sanctioned since conditions were not
fulfilled. The covenants in the sale deed executed by the society
stipulate that the layout plan was duty approved by the BDA in its
resolution bearing No.503/1992 dated 16-11-1992. in our
considered view, there is no merit in the said contention.
(18)
This court by its order dated 18-06-2003 had directed
the respondent No.4 not to alienate the civic amenity sites shown in the
map submitted to the BDA. Admittedly the respondents 4 to 8 have sold 24
sites in violation of the order passed by this court. They have also sold
three sites in the land measuring 195’X200’ in violation of the order
passed by this court. In view of this. In our considered view, there is no
merit in the contention that there is no willful disobedience of the
orders passed by this court. No doubt in their response dated 17-02-2006
they have stated that they have retraced their steps and they are
taking steps to cancel the sale-deeds and some of the sale-deeds have been
cancelled, but the fact remains that they have violated the orders passed
by this court and failed to comply with the direction of this court. In
view of this, in our considered view there is prima facie case against the
respondents 4 to8. The respondents 4 to 8 after taking all kinds of stands
in the course of proceedings have now tendered their unconditional apology
which is unacceptable. A prima facie case of willful disobedience of
lawful orders of this court has been made out against the respondents 4 to
8 calling forth framing of charges.
(19)
In so far as respondent No.1 is concerned the direction was to
submit a report within two months and in response to which it has stated
that it had addressed letters to the respondent No.4 – society to
furnish the details and since details were no furnished, it has not filed
its report we accept the same and drop the proceedings against the
respondent No.1.
(20)
In so far as respondents 9 to 19 are concerned, as no notice is
directed to them, we drop the proceedings against them.
(21)
List this matter for framing of charges against the respondents
4 to 8, on 28-07-2006.
|
|
05. IN
THE SUREME COURT OF INDIA
[Order
XVI Rule 4(1)(a)]
CIVIL
APPELLATE JURISDICTION
SPECIAL
LEAVE PETITIONS
(Under
Article 136 of the Constitution of India)
SPECIAL
LEAVE PETITIONS (CIVIL) NO. 12361 of
2006
[WITH
PRAYER FOR INTERIM RELIEF]
POSITION O F PARTIES BERORE
High
Court
This Court
BETWEEN
1.
The
Karnataka State Judicial
Department Employees
House
Building Co-operative Society,
Rep. By its Secretary-
Sri .C. Shivalingaiah,
High Court Buildings,
Bangalore-560 001,
Karnataka.
Respondent –4
Petitioner- 1
2.
Shri. C. Shivalingaiah,
President, Consumer Forum,
Secretary, The Karnataka State
Judicial Department Employees
House Building Co-operative
Society, Swathi Complex, 4th Floor,
Platform Road, Seshadripuram,
Bangalore- 560 020,
Karnataka.
Respondent- 6 Petitioner-
2
AND
1.
Judicial Layout Residents and
Site Holders Association (Regd.),
G.K.V.K. Post Bangalore- 560 065,
Karnataka, Rep. By its Board of
Directors consitsting of:
a) B.V.
Byra Reddy
President,
No.
1362, III Cross,
Judicial
Layout,
Bangalore-
560 065
Karnataka.
Complainant- 1a
Respondent- 1a
h) A.
Laxmana Rao
Director,
No.
522, Seven Hills,
23rd
Cross, 18th Main,
Judicial
Layout,
Bangalore-
560 065,
Karnataka.
Complainant- 1h
Respondent- 1a
i) L.S.
Raja Rao
Director,
No.
516, 18th Main, 24th Cross,
Judicial
Layout,
Bangalore-
560 065,
Karnataka.
Complainant- 1i
Respondent- 1i
j) Manjunatha Holla,
Director,
13th Main, Judicial Layout,
Bangalore -560 065,
Karnataka.
Complainant- 1j
Respondent- 1j
k) Smt.
Saraswati,
Director,
11th Main, Judicial Layout,
Bangalore -560 065,
Karnataka.
Complainant- 1k
Respondent- 1k
2.
Bangalore Development Authority
Rep. By its Commissioner,
T. Chowdaiah Road,
Kumara Park West,
Bangalore- 560 020
Karnataka.
Respondent- 1 Respondent-
2
( R1 & R2 are contesting Respondents)
3.
Sri. C.M. Basavarya
Retired
District & Sessions Judge,
Hon’ble President,
The Karnataka State Judicial
Department Employees House
Building Co-Operative Society,
R/o. No.16, 2nd Cross,
Judicial Officers Colony,
Sanjaynagar, Bangalore,
Karnataka.
Respondent- 5
Respondent- 3
4.
Sri. M. Rudraiah
Advocate,
Vice-President,
The Karnataka State Judicial
Department Employees House
Building Co-Operative Society,
”Nandi House, No. 1284,
III Cross, Judicial Layout,
G.K.V.K. Post,
Bangalore- 560 065
Karnataka.
Respondent- 7 Respondent-
4
5.
5.
Sri. Kempa Thimmaiah
Treasurer,
The Karnataka State Judicial
Department Employees House
Building Co-Operative Society,
SDA, CMM Court,
Nrupathunga Road,
Bangalore- 560 052,
Karnataka.
Respondent- 7 Respondent-
4
To,
THE
HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF
HON’BLE SUPREME COURT OF INDIA
THE
HUMBLE PETITION OF PETITIONERS ABOVE NAMED
MOST
RESPECTFULLY SHOWETH
1.
The present Special Leave Petition arises from the order
dated 07.07.2006 passed by the High Court of Karnataka at
Bangalore in CCC No. 87/ 2004 in W.P. No. 40994/ 2002 (GM-Res),
whereby the Division Bench of the High Court has directed
Framing of charges as against the Petitioners in a Petition
filed by the Respondent No. 1 under Section 11 and 12 of the
Contempt of Courts Act, 1971.
1A.
It is relevant to mention here that, the High Court, by
its order dated 29.01.2004, has directed the deletion of
Respondent Nos.2 and 3 from the array of parties in CCC No.
87/2004. Similarly, the High Court, by its impugned order dated
07.07.2006, has dropped proceedings against Respondent Nos. 9 to
19 in CCC No. 87/2004, as no notice was directed on them.
Accordingly, the said Respondent Nos.2 and 3 and Respondent Nos.
9 to 19 in CCC No. 87/2004 are not made parties to the present
Special Leave Petition as per the orders of the High Court.
2.
QUESTION OF LAW
The following substantial questions of law of general
public importance arise for consideration by this Hon’ble
Court:
A.
Whether the High Court can frame charges against the
Petitioners who were not eio-nominee parties in W.P. No.
40994/2002 on the ground that they are the members of the Board
of Directors of the Society, the Respondent No.1 in the Writ
Petition?
B.
Whether the charges can be framed under Section 11 and 12
of the Contempt of Courts Act without hearing the alleged
contemnors?
C.
Whether, under Section 12 of the Contempt of Courts Act,
an unconditional apology tendered by the alleged contemnors be
rejected without consideration and without assigning any reasons
?
3.
DECLARATION IN TERMS OF RULE 4(2)
The Petitioners state that no other Petition seeking
leave to appeal has been filed by them against the impugned
order dated 07.07.2006.
4.
DECLARATION IN TERMS OF RULE 6
The Annexures- P1 to
P11 produced along with the Special Leave Petition are true
copies of the pleadings/documents with formed part of the
records of the case in the court/Tribunal below against whose
order the leave to appeal is sought for in this petition.
5.
GROUNDS
Leave to appeal is
sought for on the following amongst other grounds:
A.
It is respectfully submitted that the High Court has held
that there is prima facie case for framing of the charges as
against the Petitioners herein contrary to law and ignoring the
basic facts, namely;
(i)
that the alleged contemnors (Respondent Nos.5 to 19
before the High Court) were not even parties to the Writ
Petition No. 40994/2002 consequently the parties were not aware
of the pendency of the Writ Petition;
(ii)
some of the alleged contemnors are not even office
bearers of the Society at present including a former president;
(iii)
the fact that Sri. B.L.Acharya, Advocate, had filed
Vakalatanama on behalf of the Society and the same was not noted
in the order sheets, not in the cause list which resulted in
neither the parties nor their Counsel being aware of the listing
of the case on 17.06.2003;
(iv)
the Division Bench proceeds on an incorrect assumption
that Respondent Nos. 3 and 4 ( the Petitioners herein) were not
represented even though service was complete, whereas the
society was represented by Counsel who had no notice of listing
of the case;
These
important procedural aspects have been overlooked while coming
to the conclusion that a prima facie exists for framing of the
charges.
B.
The High Court erred in not noticing the scope of the
interim order dated 22.01.2003 and 18.6.2003 while accepting the
allegations in the Contempt Petition made in respect of facts
not related to the scope of the interim order.
C.
It is submitted that the interim order dated 22.01.2001
was confined not to make alterations in respect of the land
measuring 195 X 200 Ft. as prayed in I.A.No.1 in the Writ
Petition. The scope of the interim order dated 18.06.2003 was
also not ‘to transfer any civic amenity sites as shown in plan
submitted to BDA until further orders’. It is submitted that,
before framing of the charges, the High Court has to satisfy
itself about the disobedience of the orders on the ground that
civic amenity sites in the plan submitted by the BDA had in fact
been transferred or not, and as to whether the area carved out
of the land comprised in the area mentioned in I.A.No.1 of the
Writ Petition. Unfortunately, there has been no consideration of
the said issue.
D.
The High Court erred in not accepting the unconditional
apology tendered by the Society and the Directors and supported
by evidence placed on record to the effect that the transfers of
sites made contrary to the earlier orders, dated 22.01.2003 and
18.06.2003, without even consideration of the apology or
assigning any reasons as to why such an apology was not being
accepted.
E.
The High Court erred in proceeding on the basis that 24
sites carved out of the land measuring 195 X 200 Ft. have been
sold by the Society subsequent to the orders made in the Writ
Petition, whereas, in fact, as demonstrated in the reply filed
by the Society on 17.02.2006, only 4 sites had been sold.
F.
The High Court erred in rejecting the case of the
Petitioners that they had no knowledge of listing of the matters
or the order passed on 17.06.2003 in a summary manner without
examining the order sheet or the noting on the file, or
considering the record of the case.
G.
It is submitted that the interim order dated 17.06.2003
was not within the knowledge of the Petitioner Society or any of
its Directors or the President there of till 02.07.2003 when,
even according to the Respondent Association, the said order was
communicated by it to the Society.
H.
The High Court failed to appreciate that the Petitioner
Society had entered appearance through its Secretary on
10.02.2003 itself and had filed its detailed Statement of
Objections in the Contempt Petition, contending inter alias that
it did not have any knowledge of either of the two interim
orders that it has the highest respect for the Courts and that
its office bears consisting of former Judicial officers and
employees of the Judicial department, it would unfair to allege
that such a Society would disobey the orders of the High Court;
and that no civic amenity has been alienated in violation of any
interim order and that residential sites which have been already
sold have been so sold well before the interim orders were made
known to the Society and even so, the Society would purge itself
to the allegation of contempt by retracing its steps and
canceling the transactions of sale of residential sites effected
by it in which regard it had even issued notices to the
respective alieness.
I.
It is submitted that, at the earliest point of time
besides bringing to the notice of the Hon’ble Court that steps
were and had been taken to retrace the steps which had been
taken before 02-07-2006, it was submitted that introspection was
being made and that the alleged contemnors also sought that they
would purge themselves of the contempt alleged. Upon this
submission, the High Court by its order dated 17-02-2006 had
given an opportunity to file such an apology. Unfortunately the
same has been ignored in the order directing framing of
charges.
J.
It is submitted that the absence to knowledge of the
interim orders dated 22-01-2003 and 18-06-2003, the steps taken
to cancel the sale respecting the residential sites in question,
earmarking of a site for the construction of a temple which the
Respondent Association has been urging upon, the purging of the
alleged contempt, the petitioner and others tendering apology
and a host of other of aspects of the case have been overlooked
by the High Court resulting in miscarriage of justice.
K.
It is submitted that the petitioner society, which was
the only eio-nominee contesting party to the writ petition and
represented by its secretary, had entered appearance on
10-02-2003 nor the later order dated 18-06-2003 was within the
knowledge of the society or any of its office bearers till
02-07-2003. The interim orders having been passed without notice
to and without hearing the alleged contemnors and having regard
to the conduct of the alleged contemnors in having cancelled the
sale deeds of the sites and the cancellation deeds and tendering
an affidavit of apology in that regard having been filed the
High Court erred in proceeding to frame charges as against the
petitioners.
L.
It is submitted that the finding recorded in paragraph 18
of the impugned order that the sites have been sold in the land
measuring 195X200 Ft., in violation of the order passed by this
Hon’ble Court, is factually incorrect.
6.
GROUNDS FOR INTERIM RELIEF
It is submitted that the High Court has by the impugned
order dated 07-07-2006, directed that the charge should be
framed as against the petitioners. It is submitted that the
petitioners have a good case on merits as the impugned order is
passed contrary to law and the facts of the case. In the even of
the charge being framed and the contempt proceedings are
continued, the petitioners would suffer irreparable loss and
injury and hardship without any reason when they have purged
themselves by tendering an unconditional apology. Further, Shri.
Basavarya, one of the petitioner, is about 80 years of age, who
has held various responsible positions and also has worked as
District Judge in his entire career. Similarly,
Shri.Shivalingaiah, the president of the society and also a
Registrar of the High Court of Karnataka, holds a responsible
position and has always held judiciary in high respect. It is in
the interest of justice that the impugned order dated 07-07-2006
be stayed, as otherwise it would result in a great miscarriage
of justice.
7.
MAIN PRAYER
It
is therefore, most respectfully prayed that this Hon’ble Court
may graciously be pleased to:
(a)
grant special leave to appeal to the petitioners against
the order dated 07-07-2006 passed by the High Court of Karnataka
at Bangalore in CCC No. 87/2004 in W.P.No.40994/2002 (GM-Res):
and
(b)
pass such other order or orders as the circumstances
of the case may require.
8.
PRAYER FOR INTERIM RELIEF
It
is therefore, most respectfully prayed that this Hon’ble Court
may graciously be pleased to :
(a)
pass an interim ex-parte order staying the operation of
the order dated 07-07-2006 passed by the High Court of Karnataka
at Bangalore CCC No.87/2004 in W.P.No.40994/2002(GM-Res), during
the pendency of the Special Leave petition before this Hon’ble
Court:
(b)
pass on order in terms of prayer (a) above and make the
same absolute after notice to the Respondents: and
(c)
pass such other order or orders as the circumstances of
the case may require.
DRAWN AND FILED BY
[P.R. RAMASESH]
Advocate for the petitioners
New
Delhi. Drawn
on : 20-07-2006
Filed
on: 24-07-2006
IN THE SUPREME COURT
OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) No.12361
of 2006
BETWEEN
The
Karnataka State Judicial
Department Employees House
Building Co-operative Society,
Rep. By its Secretary & Anr.
….PETITIONERS
AND
Judicial
Layout Residents and Site
Holders
Association (Regd.),
Rep.
By its Board of Directors & Ors.
…..RESPONDENTS
C E R T I F I C A T E
This
is to certify that the Special Leave petition is confined only
to the pleadings before the High Court whose order are
challenged and other documents relied upon in these proceedings.
No additional facts, documents or grounds have been taken
therein or relied upon in the Special Leave Petitions. It is
further certified that the copies of Annexures attached to this
Special Leave Petition are necessary to answer the questions of
law raised in the petition and to make out grounds urged in the
Special Leave Petition for consideration of this Hon’ble
Court. This certificate is given on the basis of the
instructions given by the petitioner/or person whose affidavit
is filed in support of Special Leave Petition.
FILED BY
[P.R. RAMASESH]
Advocate for the Petitioners
New
Delhi
Filed
on: 24-07-2006
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) No.12361
of 2006
BETWEEN
The
Karnataka State Judicial
Department Employees House
Building Co-operative Society,
Rep. By its Secretary & Anr.
….PETITIONERS
AND
Judicial
Layout Residents and Site
Holders
Association (Regd.),
Rep.
By its Board of Directors & Ors.
…..RESPONDENTS
A F F I D A V I
T
C.
Shivalingaiah, S/o. Late Shri. Channe Gowda,
Secretary, Karnataka State Judicial Department Employees
House Building Co-operative Society, Bangalore-560 0001,
Karnataka, do hereby solemnly swear and affirm as under;
(1)
That, I am the Petitioner No.2 as well as the Secretary
of the Petitioner No.1 Society in the above matter and I am
fully familiar with the facts and circumstances of the case
Hence, I am competent to swear to this Affidavit.
(2)
That, the accompanying Special Leave Petition together
with a prayer for interim relief containing praras 1 to 8 at
pages 19 to 34 Synopsis and List of Dates at pages B to R and
the accompanying Interlocutory Applications have been drafted by
my Counsel on my instructions. Instruction. I have read
understood the contents of the same, which are true and correct
to my knowledge and belief.
(3)
The Annexures filed along with the Special Leave petition
are true and correct copies of their originals.
VERIFICATION
What is stated above in the affidavit is true to my
knowledge and belief.
Bangalore:
20-07-2006
DEPONENT
G.B.TURAMARI
NOTARY,
Bangalore |
|
06. IN
THE HIGH COURT OF KARNATAKA BANGALORE
(Original Jurisdiction)
WRIT PETITION NO.
40994 OF 2002
BETWEEN:
Judicial Layout Residents and Site
Holders Association (Regd.)
G.K.V.K. Post, BANGALORE 560 065,
Represented by the Board of Directors Consisting of
(a) B.V. Byra Reddy, President, No.
1362, III Cross,
Judicial Lay-out, Bangalore _65,
(b) Y.R. Jagadish, Vice-President, No.
548, 18th Main Road,
Judicial Lay-out, Bangalore-65,
(c) M. Chikkalingaiah, Secretary, No.
1816, 8th Main,
Judicial Lay-out, Bangalore-65,
(d) G.K. Nagaraja, Treasurer, No. 1730,
6th Main, 5th Cross,
Judicial Lay-out, Bangalore-65,
(e) S. D. Venkataramanaiah, Founder
President and Director,
No. 1803, 8th Main Road, Judicial Lay-out,
Bangalore-65,
(f) M. Shiva Murthy, Former
Vice-President and Director,
No. 1430, 1st Cross, Judicial Lay-out, Bangalore _65.
(g) D.N. Kagwad, Director, No. 1185, 10th
Cross,
Judicial Lay-out, Bangalore-65,
(h) Smt. Rupa Kumari, Director, No. 126,
21st Main,
Judicial Lay-out, Bangalore-65,
(i) Y.C. Bujabhalaiah, Joint Secretary
and Director,
No. 990, 14th Cross, Judicial Lay-out, Bangalore-65,
(j) A. Laxman Rao, Director, No. 522,
Seven hills,
23rd Cross, 18th Main, Judicial Lay-out,
Bangalore-65,
(k) L.S. Raja Rao, Director, No. 516, 18th
Main, 24th Cross,
Judicial Lay-out, Bangalore-65,
(l) N. Nagaraju, Director, No. 185, 25th
Main Road,
Judicial Lay-out, Bangalore-65,
(m) Manjunatha Holla, Director, 13th
Main,
Judicial Lay-out, Bangalore-65,
(n) Smt. Saraswati, Director, 11th
Main, 8th Cross,
Judicial Lay-out, Bangalore-65, …PETITIONERS.
AND:
[1] Bangalore Development Authority
Represented by Commissioner,
T. Chowdaiah Road, Kumarapark West,
BANGALORE. 560 020.
[2] The State of Karnataka
By its Secretary,
Housing and Urban Development Department.
M.S. Building, BANGALORE. 560 001.
[3] The City Municipal Council,
Yelahanka,
Represented by its Commissioner,
BANGALORE. 560 064
[4] The Karnataka State Judicial
Department
Employees House Building Co-operative Society,
Represented by its Secretary, High Court Buildings,
BANGALORE. 560 001. … RESPONDENTS.
MEMORANDUM
OF WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
The above named petitioner states as
follows;
[1] In this writ petition, the
petitioner seeks at direction to the respondents to take all
necessary steps to protect, preserve and maintain the o9pen spaces
in the judicial Lay-out, Bangalore Bellary Road, Bangalore _ 560
065.
[2] The petitioner is a Society
registered under the Karnataka Societies Registration Act, 1960. a
true copy of the certificate of registration is produced herewith
and marked as Annexure-`A'[040.04]
.The said society has been promoted and
registered to secure the rights of the residents and site holders
of the Judicial Lay-out, Bellary Road, Bangalore-65, Presently the
membership of the said society is about 200. In view of the
increasing irregularities and illegalities committed by the 4th
respondent, which has seriously jeopardized the rights of the
residents of the lay-out, by a resolution dated 6-5-2002 a true
copy of which is produced herewith and marked as Annexure-`B'
[040.05 ] the Executive
Committee of the petitioner society unanimously resolved to prefer
a writ petition. Accordingly, this writ petition is preferred on
behalf of the petitioner society.
[3] The 4th respondent is a
Society registered under the Karnataka Co-operative Societies Act,
1959. it was registered as a co-operative society on 11-8-1983. It
is stated to have been registered with the object of acquiring
lands, forming lay-out and allot house sites to its members. In
furtherance of this object, the society approached the 2nd
respondent to acquire certain lands under the provisions of the
Land Acquisition Act. Accordingly, an extent of 193 Acres of land
was acquired by the 2nd respondent and handed over to
the 4th respondent. After taking possession of these
lands, the 4th respondent prepared a detailed plan of
the lay-out to be formed and submitted the same to the first
respondent for approval. It is stated that by a resolution dated
16-11-1992 bearing No. 503/92, the first respondent approved the
said plan subject to certain conditions. Accordingly, the lay-out
has been formed by laying roads, leaving open spaces for parks,
Civic Amenity Sites and 2048 housing sites were formed, as
detailed below:
(a) 845 sites of the size 30'X 40'
(b) 70 sites of the size 30' X 45'
(c) 493 sites of the size 40' X 60'
(d) 220 sites of the size 30' X 40'
(e) 80 sites of the size 50' X 80'
(f) 104 Sites of the size 60' X 90'
(g) 39 sites of the size 80' X 120'
(h) 197 odd sites.
This information was furnished to this
Hon'ble Court by the 4th respondent society in its
Statement of objections in the case reported in SUBRAMAINI Vs .
UNION OF INDIA _ I.L.R. 1995 Kar. 3139. Therein, it was stated
that the sites have been formed after the lay-out was approved by
the first respondent as per Annexure R3 produced therein .
[4] The 4th respondent
specifically held out to its members before allotment of sites
that the approved plan provides for formation of 11 parks and 5
Civic Amenity sites in the said lay-out. It is on the strength of
the said representation that the members of the 4th
respondent-society have applied for and secured sites in the
layout. All the members of the petitioner-society had applied and
secured sites on the basis of the representation so held out by
the 4th respondent. Majority of the members of the
petitioner-society have already put up constructions and are
residing in this very lay-out. In the Statement of Objections
referred to above the respondent No. 4 had stated that
"Besides provision has also been made for meeting public
amenities required for the locality such as provision for park,
stadium, play grounds, hospital, temple, schools, educational
institutions etc., keeping in view the norms prescribed by the
B.D.A."
[5] The petitioner has been writing to
all the respondents herein furnish a copy of the approved plan of
the lay-out in question. However, till this day, no such copy has
been supplied or made available to the petitioner. The petitioner
produces herewith and marks as Annexure-`C', C1 to C3 (Colly.)
[040.06][040.07] [040.08] [040.09]
, true copies of the representations made in that
behalf. The first respondent has sent a reply in response to the
said representation by its communication dated 17-06-2002, a true
copy of the same is produced herewith and marked as Annexure-`D'
[040.11] ,
intimating that by a resolution dated 16-11-1992 the
authority had decided to approve the plan subject to certain
conditions. The 4th respondent-society was required to
pay the first respondent the estimated cost for the lay-out. The 4th
respondent has not paid the said amount and it has not complied
with the conditions imposed in the resolution and hence it has not
issued the approved layout plan and work order to the 4th
respondent. Be that as it may, the 4th respondent has
consistently held out that the layout is formed in accordance with
the approved plan and citing the resolution dated 16-11-1992
as the authority for formation of the layout as also for allotment
of sites. This representation is made by the 4th
respondent in every communication issued by it in this behalf and
has also stated so before this Hon'ble Court on oath in the
Statement of objections referred to earlier. In every sale deed
executed by the 4th respondent-society in favour of the
allottees, it has held out that the layout plan is approved by the
first respondent in Resolution No. 503/92 dated 16-11-1992.
[6] The 4th respondent
represented before this Hon'ble Court that the total number of
sites formed in the layout was 2048. the 4th
respondent, however, has not allotted and sold much more that the 2048
sites. As a matter of fact, the open spaces earmarked for
Parks, Civic Amenity Sites etc., have already been allotted and
construction of residential buildings are put up in about ten of
those CA sites. The 4th respondent itself has
represented to its General Body at a meeting held on 29th
September 2002, that 49% of the 193 Acres utilized for
formation of the layout has been reserved for roads, underground
drainage, temple, parks and play grounds. This is evident from the
statement of the 4th respondent management made to the
General Body-a true copy of which is produced herewith and marked
as Annexure-`E'. 49% of 193 Acres works out to 95 acres.
In other words, the number of sites formed should not exceed 98
acres.
[7] In view of the fact that the 4th
respondent has allotted and sold more than 2048 sites, the
petitioner has been demanding the 4th respondent to
disclose the details of the same and to inform as to the number of
sites so formed in excess of 2048 sites and the area utilized for
the said purpose, in the layout. In this behalf, several
communications have been addressed to the 4th
respondent _ true copies of the same are produced herewith and
marked as Annexure-`F' series colly. Only on 15-4-2002
the 4th respondent has given a reply by a communication
(wrongly the date has been mentioned in the communication as 15-2-2002)
_ a true copy of the same is produced herewith and marked as Annexure-`G'.
[8] During the year 2000, the petitioner
society sought permission of the 4th respondent to
install Gouri and Ganesha idols to celebrate Ganesha Festival
during that year. In response to the same, by a letter dated
28-8-2000 _ a true copy of which is produced herewith and
marked as Annexure-`H', the 4th respondent had
specifically mentioned that the civic amenity site bounded to the
East; by 14th Main Road; to the West; site No. 969; to
the North:16 the Cross and to the South : 15 the Cross, would be
made available for the said purpose. It is thus clear that the
entire land so described, is a civic amenity site. The petitioner
has reliably learnt and believes it to true that the 4th
respondent is now taking steps to convert this plot into sites and
dispose of the same.
[9] In the entire lay-out, till this
day, not a single plot is developed as Park or a play-ground. Not
a singly plot has been made available for a stadium hospital,
temple, schools, educational institutions or other civic amenities
like Bus terminal, market etc. no stadium, hospital or other
public office has been started till this day in the lay-out. It is
thus clear that the 4th respondent has not handed over
any open space to the 1st respondent or the 3rd
respondent though it is statutorily bound to do so. On the other
hand more than five hundred sites have been formed in these parks,
play grounds and civic amenity sites by the fourth respondent and
sold in favour of individuals to commercially exploit these plots.
Respondent No.3 has been freely effecting change of kathas and
granting building licenses in flagrant violation of its statutory
duty.
[10] It is in these circumstances that
two members of the 4th respondent society, by name B.R.
Srinivas and P.H Basavaraj had caused a legal notice to be served
on all the respondents and other authorities _ a true copy of the
said notice is produced herewith and marked as Annexure-I.
Besides informing the flagrant violation of the approved plan
specific information was given about the nature of violation and a
demand was made to take stern action against these deviations. The
Notice-Annexure-J, has been served on all the respondents
in the month of October 2001 itself. However, till this day, no
favourable action has been taken by any one of the respondents in
response to the notice. It is, therefore clear that not with
standing a specific demand made in that behalf, the respondents
are not inclined to take any action against the violation of the
approved layout plan.
[11] The petitioner produces herewith
and marks as Annexure-K a true copy of the Statement of
Objections filed by the 4th respondent in W.P.No.
11211/95, before this Hon'ble Court. The petitioner also
produces herewith and marks as Annexures-`L' and `M' _ true
copies of two sale deeds executed by the 4th respondent
specifically relying on the approved layout plan given by the
first respondent by its Resolution No. 503/92 dated 16-11-1992.
[12] In view of the fact that
Annexure-`H' was a notice given on behalf of the two Members of
the 4th respondent-society, the petitioner respectfully
prays that the said notice may be treated as demand made on behalf
of the petitioner-society also. Since no action has been taken in
response to the said notice, it is evident that the respondents
have refused to discharge their statutory duties to preserve,
protect and maintain the parks and other open spaces. Hence, this
petition.
[13] The petition has not presented any
other writ petition seeking similar reliefs as prayed for in this
writ petition.
[14] As the petitioner has no other
efficacious and alternative remedy except to approach this Hon'ble
Court, it has preferred this writ petition under Art. 226 of the
constitution, on the following among other:
GROUNDS
[15] Under the Zoning of Land Rules and
Regulations of the Bangalore Development Authority (G.O.NO.HUD 139
MNJ 95, dated 5.1.1995), a minimum of 25%of the total area in any
layout plan should be reserved for civic amenity sites, parks ands
open spaces subject to a minimum of 15% for parks and open space.
The 4th respondent itself has made a categorical
statement that 49% of the layout area is used for this purpose as
per Annexure-E. even in its statement of objections before this
Hon'ble Court, it has categorically stated on oath that provision
has been made for parks stadium play-grounds, hospital, temple,
schools, educational institutions etc. Under Sec. 32(5) of the
Bangalore Development Authority Act, the condition precedent for
sanctioning a private layout is an unconditional undertaking by
the 4th respondent-society to transfer ownership of the
open spaces to the B.D.A. permanently without claiming any
compensation thereof. Under Sub-sec.(2) of Sec.32 thereof, every
layout plan submitted for approval should provide for open spaces.
Under the aforesaid Zoning Regulations, it is mandatory that the
area reserved for parks, and open spaces and civic amenity sites
shall be handed over free of cost to the B.D.A. under a registered
relinquishment Deed before issue of work order. In the instant
registered relinquishment Deed before issue of work order. In the
instant case, not only formation of the layout is completed but
the layout is substantially developed already. Nearly 40% of the
sites allotted have already been utilized for putting up
residential houses; but, even to this day, the 4th
respondent has not handed over the parks, C.A. sites and other
open spaces either to the first respondent or to the 3rd
respondent. It is therefore, clear that there is a total violation
of the mandatory requirements of the aforementioned provisions and
the 4th respondent has failed in its statutory duty to
do so and since it has wrongfully refused to perform the said
duty, it is just and necessary that this Hon'ble Court compels the
4th respondent to perform its statutory duty through
the process of this Hon'ble Court.
[16] It is a statutory duty cast on the
1st respondent under Section 32 of the B.D.A. Act, to
demand and secure registered relinquishment deeds in respect of
parks, civic amenity sites and other open spaces, as shown in the
approved plan. The first respondent has failed to perform this
statutory duty and it is, therefore, just and necessary to compel
the first respondent has failed to perform this statutory duty and
it is, therefore, just and necessary to compel the first
respondent to perform the said duty.
[17] Now that the entire judicial layout
has been included within the Municipal limits of the 3rd
respondent, it is the responsibility of the 1st
respondent to take possession and title deeds in respect of the
open spaces from the 4th respondent and make over the
same to the 3rd respondent to be protected, preserved
and maintained in accordance with the provisions of the Karnataka
Municipalities Act, 1964. Since the 3rd respondent has
failed to perform its statutory duty to take possession of the
open spaces in the Judicial Layout and to protect, preserve and
maintain the same, it is just and necessary to compel the 3rd
respondent to perform the said statutory duty.
[18] It is obligatory function of the 3rd
respondent under Section 87 of the Municipalities Act, to remove
obstructions and projections of public places and in places not
being private property which are open to the enjoyment of the
public under Clause (f) thereof. Likewise, it is its obligatory
duty to clean all public places and all places not being private
property which are open to the enjoyment of the public. This is a
statutory obligation is caston the 3rd respondent even
when such open spaces are not vested in the Municipal Council. In
other words, whether or not the open spaces are made over to the 3rd
respondent, the 3rd respondent is under a statutory
obligation to preserve, protect and maintain the open spaces.
Since the 3rd respondent has wrongfully refused to
perform this duty, it is just and necessary to compel the 3rd
respondent to perform this duty.
[19] Parks, playgrounds, other lung
spaces and civic amenity sites are essential for preserving and
protecting environment of the layout. They are indispensable for a
beneficial enjoyment of the rights of the petitioner's members
over the sites allotted to them by the 4th respondent.
This right is a part of the right to life guaranteed under Art. 21
of the Constitution. By the willed disobedience to perform the
statutory duties cast on the respondent, this right to life
guaranteed to the members of the petitioner society is infringed
and therefore, it is just and necessary to compel the respondents
to perform their statutory obligations, in the interest of justice
and equity.
[20] The B.D.A. is prohibited from
allowing any park, playground or civic amenity sites being
disposed of for any other purpose. What the B.D.A. cannot do
directly, it cannot allow respondent No.4 to do and thus defeat
statutory mandate under Sec.38A of the B.D.A. Act. Hence, all
actions of the respondents in converting parks. Open spaces and
C.A. sites into sites and transferring, registering, changing
Katha, sanctioning building licences etc., in favour of
individuals are null and void.
[21] Acts and omissions of the
respondents in allowing the 4th respondent to deviate
from the approved layout plan and commercially expeit the parks,
playgrounds, civic amenity sites and other open spaces meant for
beneficial enjoyment of the residents of the locality by
converting them into sites and selling the same to the individuals
has resulted in unauthorisedly converting the public property into
private property. This is a racked act of sacrificing the public
interest defeating the very mandate of the B.D.A. Act. Beside
being the clear breach of rule of law, the acts and omissions of
the respondents in converting parks, playgrounds, civic amenity
sites and other open spaces to private property is a fraud on
power and wholly male fide act. It is the essence of the
legislative mandate under the Act and the Rule of Law to ensure to
protect preserve and to maintain these open spaces for the purpose
for which they are earmarked in the approved plan. These acts are
therefore liable to be invalidated as null and void in the
interest of justice and equity.
[22] Failure on the part of the 4th
respondent-society to hand over the parks, playgrounds, Civic
Amenity sites and other open spaces in Judicial layout to the 1st
respondent and the inaction on the part of the respondents 1 and 2
in not securing possession and title deeds in respect of these
open spaces is arbitrary, capricious and whimsical, violating the
rights guaranteed to the petitioner under Article 14 of the
Constitution of India.
GROUNDS
IN SUPPORT OF THE INTERIM PRAYER
The manner in which the 4th
respondent is violating the approved layout plan gives room for a
reasonable apprehension to the petitioner that if the interest of
the residents of the layout is not protected, through an interim
order as prayed for, not only the parks, civic amenity sites and
other open paces, but even the roads and drainages may not be
available to the residents in the near future. Deviation from the
approved layout plan and converting the parks, civic amenity sites
and other open spaces for other purpose to form house sites and
put up the said open spaces to commercial purposes, would result
in irreparable loss and injury, which cannot be compensated in
terms of money. The petitioner has made out a prima facie case and
the illegality is writ large, in the omissions and commissions of
the respondents. The balance of convenience is in favour of the
petitioner. Hence, the interim prayer.
P
R A Y E R
WHEREFORE, the petitioner respectfully
prays that this Hon'ble Court be pleased to :
[i] DIRECT THE First respondent to
produce before this Hon'ble Court the layout plan of the Judicial
Layout approved in favour of the 4th respondent Society
by its Resolution No. 503/92, dated 16-11-1992;
[ii] DECLARE all the actions of the 4th
respondent society and any one claiming under it, deviating from
the approved layout plan sanctioned by the first respondent
bearing Resolution No. 503/92, dated 16-11-1992, in so far as they
altered the nature of the Parks, civic amenity sites and other
open spaces specified therein, as illegal, void and inoperative;
[iii] ISSUE a writ, order of direction
in the nature of Mandamus directing the first respondent to take
registered relinquishment deed from the 4th respondent
society transferring all the Parks, civic amenity sites and other
open spaces as specified in the layout plan sanctioned by it as
per Resolution No. 503/92 dated 16-11-1992 and hand over
possession of the same to the 3rd respondent herein, in
the interest of justice and equity.
[iv] ISSUE a writ, order or direction in
the nature of Mandamus directing the 3rd respondent to
forth with take all necessary steps to preserve, protect and
maintain the parks, civic amenity sites and other open spaces in
the Judicial Layout, Bellary Road, G.K.V.K post, Bangalore-560
065, in the interest of justice and equity; and
[v] GRANT such other relief this Hon'ble
Court deems fir in the facts and circumstances of this case,
including an order as costs, in the interest of justice and
equity;
INTERIM
PRAYER
[a] ISSUE an order of temporary
injunction restraining the 4th respondent society and
anyone claiming through is, from altering the nature of the land
in all Parks, civic amenity sites and other open spaces As found
in the layout plan approved by the 1st Respondent vide
its resolution No. 503/92 dated 16-11-1992 Pending disposal of
this writ petition, in the interest of Justice and equity; and
[b] RESTRAIN the 3rd
respondent from issuing any building licenses or changing the
Katha in respect of the sites formed in the Parks, civic amenity
sites and other open spaces in the layout plan approved by the
first respondent by its Resolution No.503/92 dated 16-11-1992, in
the interest of justice and equity.
Bangalore.
Dated: 28-10-2002. |
Signed/-
ADVOCATE FOR PETITIONER
[RAVIVARMA KUMAR] |
Address for Service:-
Shri. Ravivarma Kumar, and J. Prashanth,
Advocates,
No. 37, II Main Road, Vyalikaval, Bangalore- 560 003. |
|
07. IN
THE HIGH COURT OF KARNATAKA AT BANGALORE
I.A.No.
1/2003
IN
Writ Petition No. 40994/2002
BETWEEN
Judicial Layout
Residents &
Site-Holders
Association.
By its Directors.
……… PETITIONERS
A
ND
Bangalore
Development Authority & others
…. RESPONDENTS
APPLICATION
UNDER ORDER 39 RULES 1 AND 2 OF C.P.C.READ WITH ARTICLE 226 OF THE
CONSTITUTION OF INDIA
The above named
petitioners states as follows:
(1)
It is submitted that the above writ petition has been
presented seeking a direction to the Respondents to take all
necessary steps to direct reserve and maintain the Open Spaces in
the Judicial Layout, Bangalore-Bellary Road, Bangalore-560 065.
(2)
It is submitted that the above Writ Petition was filed as
early as on 11-11-2002. The matter was listed for preliminary
hearing before Court No.1 on 15-11-2002. There afterwards. In view
of the disability expressed by Hon’ble Mr.Justice Sabahit to
hear the matter, the matter was not heard for preliminary hearing
on the said date and the case came to be adjourned. Since then a
number of Memos have been moved before Court Hall No.1, requesting
for early posting of the matter for preliminary hearing. The last
of such Memos was filed on 17.01-2003. however, the matter has not
been listen for preliminary hearing till this day.
(3)
One of the Open Spaces in the Lay-out in question measure
195’X200’ was ear-marked for putting up a Temple and the
petitioner – Association that the said site may be utilized for
celebrating GOWRI/GANESH festival during the said year after
holding-out that the site in question is reserved for construction
of a temple. Accordingly on 17-11-2002 Bhoomi Pooja was also
performed under the President ship of President of the 4th
Respondent Mr.C.Shivalingaiah to lay the foundation for a Temple.
On the said occasion, apart from the President of the 4th
Respondent Association, the Honorary President Mr. C.M.Basavarya,
the Vice President M.Rudraiah, the Director P.Srinivas and others
were also present. A large number of the Members of the 4th
Respondent-Society were also member of the petitioner Association
and residing in the layout participated in the ‘Bhoomi Pooja’
Several sitting and retired Judges of this Hon’ble Court and
employees of this Hon’ble Court also graced the occasion. In the
light of the said development necessary preparations are being
made to secure approval of a plan to build a temple.
(4)
However, after noticing the delay in the listing of the
matter before this Hon’ble Court the 4th Respondent
appears to be taking undue advantage of the same in order to
precipitate matters and render the writ petition in fructuous at
least in respect of some open spaces. In this direction
notwithstanding the assurances held out as per ANNEXURE-H. and the
Bhoomi Pooja performed on 17-11-2002, on Monday the 20th
of January 2003, about 25 persons have been employed by the 4th
Respondent to form Roads on the land which is the subject matter
of ANNEXURE-H. The said persons are working day and night to after
the nature of the land to frustrate the process of this Hon’ble
Court in the above writ petition. In the circumstances any further
delay in the matter would seriously prejudice the cause espoused
in the above writ petition. It is therefore just and necessary to
maintain status-quo pending disposal of this writ petition.
(5)
As a mater of fact apprehending trouble on the site in
question. A complaint had also been lodged before the police on
25-12-2002 and the station House Officer and police inspector
Yelahanka Police Station, Bangalore has also given on endorsement
assuring that all necessary steps will be taken to preserve the
property and prevent any encroachment on the same. A true copy of
the said endorsement is produced herewith and marked as
ANNEXURE-N. Notwithstanding the some the 4th Respondent
is making hectic efforts to after the nature of the land and
create rights in favour of third parties solely with the object of
frustrating the process of this Hon’ble Court. The petitioner
has made out a prima facie case and the balance of convenience is
in favour of granting an interim Order as prayed.
(6)
It is submitted that if no interim Order is made,
irreparable damage will be done to the layout in general and to
the residents in particular and the same cannot be compensated in
terms of money. It is therefore just and necessary to injunet the
4th Respondent from altering the nature of the land in
the interest of justice and equity. It is obvious that the 1st
Respondent has learnt about the Memo filed before this Hon’ble
Court on 17-01-2003 and is therefore taking pre-emptive steps to
precipitate matters before the matter is listed for preliminary
hearing.
WHEREFORE,
the petitioner respectfully prays that this Hon’ble Court be
pleased to issue an ad-interim order of temporary injunction
restraining the 4th Respondent and any one claiming
under it from forming Roads or otherwise altering the nature of
the Open space measuring 195’X200; and bounded by:
To THE EAST
:
14TH main Road;
TO
THE WEST
:
Site No.969:
TO THE NORTH :
16th Cross: and
TO THE SOUTH
:
15TH Cross,
In Karnataka Judicial
Employees House Building Layout, Bangalore-560 065, pending
disposal of the writ petition, in the interest of justice and
equity.
Bangalore.
Date: 21-01-2003,
Sd/- Advocate for Petitioner
|
|
08.
Annexure
– P3 A true copy of the filing memo with the endorsement
for filing of the Vakalatnama dated 10.02.2003.
 |
|
09.
Annexure
– P4 A true copy of the order
sheet dated 12.03.2003 of the High Court of Karnataka at
Bangalore in W.P.No.40994/2002.
|
|
10.
Annexure-P5
A true copy of the Cause List of the High Court for 18.06.2003.
|
|
11. IN
THE HIGH COURT OF KARNATAKA AT BANGALORE
(Original Jurisdiction)
Writ Petition NO. 40994 OF 2002
IN THE MATTER OF
Judicial Layout
Residents and Site Holders Association (Regd.)
Rep. By its Board of Directors
…………….. Petitioner
Versus
Bangalore
Development Authority
Rep. By its Commissioner & Ors.
……………Respondents
CJ
& KBJ
Dated: 18-06-2003
CJ
& KBJ: Date: 18-6-2003.
WP02
W.P.
40994/2002
Order
Learned Counsel for the petitioners submits that despite the order
dated 22-1-2003 the civic amenity sites are being sold by the 4th
Respondent-Society and in this way it is changing the character.
The Petitioners are directed to file the details of such sites,
which have been sold in violation.
2. Respondents 3 and 4
are served, but not appeared despite service. Learned Standing
Counsel for the B.D.A., and the learned Government Advocate are
present, but no counter has been filed.
3. It is necessary to
ascertain the facts. Therefore, Respondent No.4/society is
directed to submit a copy of the map filed to B.D.A., to this
court and a list of transfer of civic amenity sites, if any,
within one month. Respondent No. 1/B.D.A., shall also submit its
report within two months.
4. The interim order
dated 22-1-2003 shall continue and in addition it is also made
clear that during the pendency of this petition, the society shall
not transfer any civic amenity sites as shown in plan submitted to
B.D.A., until further orders. In the meanwhile the respondents can
file their counter. put up after two months. |
|
12.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
WRIT PETITION NUMBER 40994 OF 2002
BETWEEN
Judicial Layout
Residents &
House Holders Association (Regd.)
Represented by Board of Directors.
Sri B.V.
Byra Reddy & Others ………
PETITIONERS
AND
Bangalore
Development Authority
&
others
………. RESPONDENTS
STATEMENT OF
OBJECTIONS FILED ON BEHALF OF THE
RESPONDENT NO.4 TO THE WRIT PETITION
The Respondent No.4 above named most respectfully submits as
follows:
1.
The
petitioners have filed the above writ petition as Public Inter
Litigation seeking for a direction to the Respondents to produce
before this Hon’ble Court the layout plan approved in favour of
this respondent – Society, by the first respondent as per its
Resolution No.503/92, dated 16.1.1992, declare all actions plan
sanctioned by the first respondent in the said resolution, for
issue of a writ order or direction in the nature of mandamus
directing the first respondent to take registered relinquishment
deep from this respondent society transecting all Civic Amenities
site and other open spaces and to issue an order or direction in
the nature of mandamus directing the third respondent to forthwith
take all necessary steps to preserve, protect and maintain parks,
C.A. Sites, and other open spaces in Judicial Layout. The petition
is not maintainable either in law or on facts and the same is
liable to dismissed.
2. It is
alleged in para 2 of the writ petition that the petitioner is a
society registered under the Karnataka Societies Act, which is
said to have been registered for the purpose of promoting certain
interests of residents and site owners of Judicial Layout and that
in view of increasing irregularities and illegalities committed by
this respondent which is said to be seriously jeopardizing the
rights of the residents of the layout, passed a Resolution dated
06.05.2002, at its Executive Meeting resolving to prefer a writ
petition. This clearly discloses that the action contemplated or
the reliefs sought for in the writ petition are only against this
respondent society for the alleged irregularities and
illegalities, and such a writ petition is not maintainable in law
against this respondent. It is submitted that this respondent
society is a society registered under the Karnataka Co-operative
Societies Act, 1959. It is not a State within the meaning of
Article 12 of the Constitution of India, and as such no writ will
lie in respect of alleged irregularities of this respondent
society in the nature of writ sought for in this writ petition. As
such, the writ petition filed by the petitioners in not
maintainable and is liable to dismissed in liming.
3. This
respondent submits that the petitioners society said to have been
formed and registered as a society under the Societies
Registration Act, which is said to be to secure the rights of
residents and site owners of judicial layout. It is a dispute
admittedly between the members of this society and petitioner
society, and in respect of such disputes concerning any rights of
the said site holders it could only be agitated under Section 70
of the Karnataka Co-operative Societies Act and not by way of writ
petition. The writ is not maintainable to enforce such rights of
members of this respondent society for the alleged irregularities
and illegalities but, it could only be agitated as contemplated
under Section 70 of the Karnataka Co-operative Societies Act. On
this score alone the writ petition filed by the petitioners is
liable to be dismissed as not maintainable. It is submitted that
in the guise of securing rights in respect of the alleged
irregularities and illegalities of this respondent society, the
petitioners cannot seek direction to the first respondent society,
the petitioners cannot seek direction to the first respondent or
the third respondent and seek to maintain the writ petition on
that basis. Apart from all the members of the petitioner society
are not members of this respondent society as site holders in the
layout. The persons who are not members of this respondent society
who are members of the petitioner society are utter strangers in
relation to the layout of this respondent society and such persons
cannot seek for redressal for alleged irregularity or illegality
said to have been committed by this respondent though, no such
irregularities or illegalities are committed by this respondent
society, and the writ petition is liable to dismissed for the
same. It is submitted that the petitioner (b), (j) and (n) are not
members of this respondent society and there are many others who
are said to be members of petitioner society, who are not members
of this respondent society. That being so, the petitioners cannot
seek for any such direction by those persons as they have no locus
stand to maintain the writ petition seeking for such a relief. The
writ petition is liable to dismissed as not maintainable. It is
submitted that all these are disputed questions of fact, which
cannot be gone into in writ petition under Article 226 of the
Constitution of India.
4. it is
true that this respondent is a registered society under the
Karnataka Co-operative Societies Act, 1959. The Society has been
formed with the object of securing land, forming layout and allot
sites to the benefit of its members, but the averments that in
furtherance of it, the society approached the second respondent to
acquire certain lands under the provisions of the Land Acquistion
Act, and accordingly an extent of 193 acres of land war acquired
by the second respondent and handed over to this respondent is not
entirely true and correct. Such of the petitioners who are members
of the society are well aware of the fact that this respondent
society are well aware of the fact that this respondent society
after it is being registered under the Karnataka Co-operative
Societies Act, approached the villagers of Allalasandra,
Chikkabommasandra and Jakkur Plantation and negotiated with them
for selling their lands in fovour of the society for formation of
layout, and in pursuance of which this respondent society
negotiated and entered into agreements with the villagers for
purchase of lands to and extent of 200 acres at the prevailing
market rate of lands during 1984. Incidentally, the land owners
have also agreed to sell their lands and this respondent society
could get acquired these lands through second respondent under the
Land Acquistion Act. This respondent society could get acquired
these lands through second respondent under the Land Acquisition
Act. This respondent society in pursuance of the agreements of
sale paid the entire consideration to owners of lands and
correspondence with the Government to acquire the lands, which
were agreed to sold and to have the same acquired. After
constitution of a committee called the “Three Men Screening
Committee” by the government to enquire about functioning of
societies in general. In regard to the genuineness of the society
and the requirement of the lands to be acquired etc., and after
obtaining the Report of the Three Men Screening Committee, the
Deputy Commissioner issued a Notification under Section 4(1) of
the Land Acquisition Act to acquire the lands in favour of this
respondent society to an extent of about 170 acres b intending to
obtain agreements in respect of remaining land of about 40 acres
from lands owners. Pursuant to the preliminary Notification. Final
Notification was issued to acquire 169 acres, the second
respondent deleted from the acquisition but 13 acres and odd, the
ultimate acquisition was confined only to 156 acres. In view of
the same, it is not true and correct that the second respondent
acquired 193 acres as claimed by the petitioners.
5) This
respondent submits that in pursuance of the acquisition of 156
acres 26 ¼ guntas of land possession was delivered tot his
respondent by the Land Acquisition Officer on 13-11-1992. A copy
of the possession Certificate is produced herewith as ANNEXURE-R1.
The possession of an extent of only 139 acres 8 ¼ guntas was
delivered to this respondent society as there was litigation in
respect of the remaining extent questioning the acquisition before
this Hon’ble Court by the owners namely. Papaiah and others and
there was an order of stay concerning an extent of 17 acres 18
guntas. On the basis of the extent of acquired land a Tentative
Plan was prepared and submitted before the first respondent BDA
for approval showing the extent of sites to be formed as 2048
sites at that time. It is on the said basis the first respondent
passed a Resolution bearing No.503/92, dated 16-11-1992, to
approve the plan subject to certain conditions namely:
a]
To furnish possession certificate from the Revenue
Department:
b]
Furnish NOC from KEB &BWSSB:
c] Remit contribution of Rs. 2,00,000/- per acre towards
Cauvery Water Supply Scheme as per revised rates:
d] Furnish
NOC from the Co-operation Department before release of sites:
e] To
entrust civil works to the society itself under the supervision of
the BDA:
f] To pay
Rind Road charges of Rs.1,00,000/- per acre as per Authority
Resolution:
g] Other
usual terms and conditions.
This Respondent in
respect of the conditions imposed by the BDA of obtaining NOC
from Registrar of Co-operative Societies and release sites through
BDA authorities filed a writ petition before this Hon’ble Court in
W.P.No. 18447 of 1994. The said writ petition was allowed by an
order dated 15-07-1994, and the said conditions were directed not
to be enforced and the Circular in regard to the said conditions
was quashed. A copy of the said order is produced herewith as
ANNEXURE-R2.
6) This
respondent submits that the other conditions for payment of Rs.
2,00,000/- per acre towards Cauvery Water Supply Scheme, Rs.
1,00,000/- towards the Ring Road charge, surcharge and other
conditions by issuing a Cricular by the BDA was called in question
by the House Building Co-operative Societies in Writ Petition No.
11144 of 1993 and connected writ petitions. There was an order of
stay of such conditions imposed by the BDA by the Hon’ble Court.
On account of the stay by this Hon’ble Court, and also of quashing
of the circular issued by the BDA as per Annexure –R1, the
processing of issuance of Approved Plan was kept pending as it was
subject to complying with the conditions imposed. Subsequently,
this Hon’ble Court allowed the writ petition No.11144 of 1993 and
connected writ petitions. A copy of the same is produced herewith
as ANNEXURE-R3.
7) This
respondent submits that subsequently the writ petitions filed by
Papaiah and others questioning acquisition of their lands came to
be dismissed. It was thereafter, the Land acquisition Officer
delivered possession of the remaining 17 acres 18 guntas by
Possession Certificate dated 02-09-1994. a copy of the same is
produced herewith as ANNEXURE-R4.
8) In the
meanwhile, the writ petitions were filed by Subramani and others
in W.P.No.35837 of 1994 and other connected writ petitions
questioning the very acquisition of the land in favour of this
respondent society and judges of this Hon’ble Court being members
of the society and allotment of sites to them etc., by way of
public interest Write Petitions. Since the very acquisition
proceedings on various grounds were questioned by filing public
interest Litigation writ petition, this respondent could not
pursue processing of the application for approval of the plan
which was tentatively approved by the first respondent subject to
certain conditions to be complied with as per Resolution dated
16-11-1992 and also for the reasons that huge amount was claimed
by the first respondent by way of Cauvery Water Supply Surcharge,
Ring Road charge and other levies, which were questioned before
this Hon’ble Court in Writ Petitions by a large number of Housing
Co-operative societies, and there was an order of stay in regard
to the same. Ultimately, a Division Bench of this Hon’ble Court
was pleased to dismiss the public interest Litigation Writ
Petitions filed by Subramani and other in W.P.No.3836 of 1994 and
connected writ petitions by an order dated 12-10-1995 up-holding
the acquisition and rejecting the other contentions raised in the
said writ petitions regarding alleged illegalities and
irregularities said to have been committed by this respondent
society. The special Leave petition against the said decision was
also dismissed. The petitioners are once again representing the
same alleged irregularities and illegalities.
9) This
respondent submits that since it has sought for acquisition of 240
acres initially and finally acquisition of land to the extent of
200 acres in respect of which the respondent society has obtained
agreements of sale from owners by paying full land values to them
or even otherwise to purchase the said lands for formation of the
layout, this respondent society initiated further correspondent
with the Government for acquisition of the remaining lands as per
their letter No. KSIDEHBCS/RM/2/92-93 dated
24-02-1993
to acquire further extent of 45 acres 33 ¼ guntas of lands to the
said extent his respondent had agreements to purchase. A copy of
the said letter is produced herewith as ANNEXURE-R5. This included
the remaining lands which were pocket lands i.e., the lands within
the boundaries of acquired lands spread over in the middle of the
layout, pursuant to the said correspondence by this respondent
with the Government, the Government in their letter dated
18.05.1993 No. RD 29 AQB 91. directed the Special Deputy
Commissioner, Cauvery Bhavan. Bangalore to acquire an extent of 45
acres 33 ¼ guntas in Allalsandra village in favour of this
respondent. A copy of the said letter is produced herewith and
marked as ANNEXURE-R6. Pursuant to the same the Deputy
Commissioner, Bangalore District, addressed a letter to Special
Land Acquisition Officer by letter dated 14.07.1993, to initiate
acquisition proceedings by getting 50% as advance in respondent of
value of the lands to be acquired in favour of this respondent and
at the same time directing to enquire about lands belonging to
Hanumanthaiah and Doddappanna of Sy.No.9/1. A copy of the said
letter is produced herewith as ANNEXURE-R7. The Special Land
Acquisition Officer, sent a letter to this respondent on
21.08.1993 in pursuance of direction issued by the Special Deputy
Commissioner to acquire remaining extent of lands asking to
furnish details of land in respect of which acquisition
proceedings are to be initiated along with an application to b
submitted in that behalf and agreements of sale obtained from the
land owners etc. A copy of the letter dated 21.08.1993 is produced
herewith as ANNEXURE-R8. Pursuant to the said communication from
the Special Land Acquisition Officer, this respondent submitted
the application in prescribed from to the Special Land Acquisition
Officer. A copy of the application is produced herewith as
ANNEXURE-R9. Though. The 45 acres 33 ¼ guntas of land is sought to
be acquired, as some lands were ordered to be deleted from
acquisition, this respondent sought for acquisition of 39 acres 6
¼ guntas and requested the Special land Acquisition Officer to
initiate acquisition proceedings urgently. A copy of the letter
dated 30.12.1993 is produced herewith as ANNEXURE-R10. Inspite of
it, acquisition proceedings were no initiated by issuing 4(1)
Notification. This Respondent again addressed a letter to the
Hon’ble Minister on 13.07.1994 along with a list of survey numbers
and contents of lands proposed to be acquired. A copy of the same
is produced herewith as ANNEXURE-R11. Though the Government ahs
ordered and though the Special Deputy Commissioner had also
ordered and directed the Land Acquisition Officer to initiate
acquisition proceedings in respect of the remaining extents of
lands it was not initiated and correspondence went on in regard to
the same.
(10) this
respondent submits in the meanwhile, the government constituted
the Yelahanka
Municipality
as City Municipal Council, by issuing a Notification published in
the Karnataka Gazette in No. RD 479 MLR 95. dated 04.10.1995.
specifying the area of the City Municipal Council Limits of
Yelahanka. A copy of the said Gazette Notification is produced
herewith as ANNEXURE-R12, Thus, by virtue of the Government
Notification constituting the Yelahanka City Municipal council
including the area of the layout of this respondent the approval
of the layout plan which was under process with the first
respondent came under the jurisdiction of the third respondent
here and ceased to be within the area or jurisdiction of the first
respondent. The City Municipal Council, Yelahanka directed this
respondent to pay developmental charges and to obtain approval of
the layout plan to proceed with the formation of the layout. As
the layout area has included within the City Municipal Council,
yelahanka this respondent prepared a comprehensive plan including
the remaining un-acquired area which was also proposed to be
acquired as per Government directions of forming totally for 2200
and odd sites and providing for parks, civic amenities, play
grounds, stadium, including schools, temple and paid developmental
charges to the Yelahanka city Municipal Council approved the
layout plan as per its Resolution No. 24 dated 22.05.1996. The
plan approved by the Yelahanka City Municipal Council has already
been produced before this Hon’ble Court along with Memo dated
18.07.2003. The Yelahanka City Municipal Council demanded payment
of developmental charges pursuant to the said approval of layout
plan, which has been paid by this respondent and still the
yelahanka City Municipal Council is demanding to pay some more
amount in that regard.
(11) In view of
the approval of layout plan by the Yelahanka City Municipal
Council, the contentions of the petitioners that there was an
approved plan by the first respondent BDA as per Resolution
No.503/1992, dated 16.1.1992 and it contained only formation of
sites of 2048 only and that this respondent without authority has
increased the number of sites by altering the Civic Amenities area
and other areas is without any basis and untenable. Though the BDA
as per its resolution No.503/1992, dated 16.11.1992 of the layout
plan agreed to approve the layout subject to fulfillment of
certain conditions mentioned herein. Thereafter the BDA ceased to
have any jurisdiction and question of complying with the
conditions in the said Resolution did not arise.
(12) This
respondent submits that after the layout came within the
jurisdiction of Yelahanka City Municipal Council, the third
respondent herein has approved the layout plan and as per the
approved layout plan sites have been formed and there is no
increase in number of sites as contended by the petitioners. This
increase in number of sites as contended by the petitioners. This
increase in number of sites while getting approval from the third
respondent is due to inclusion of lands of about 39 acres in
respect of which this respondent had already entered into
agreements of sale from owners, who have by receiving the entire
sale consideration delivered possessions and pursuant to that the
said lands have also been included for formation of the layout,
Thus, the total number of sites are 2268 and not 2048 which was
the earlier proposal. The approval of Yelahanka City Municipal
Council is for formation of 2445 sites and in view of the same,
there is no merit in the contentions of the petitioners that there
is an increase in the number of sites without the approval by
competent authority. The said contention has no merit and
unsustainable.
(13) This
respondent submits that after the area came within the
jurisdiction of Yelahanka City Municipal Council, sites were
formed and all those sites were entered in the registers of
Yelahanka City Municipal Council and assessed for Land Tax. In
fact, the sites which are allotted in favour of some of the
petitioners who are members of this respondent society by
executing the sale deeds in their favour have been included in the
Municipal records of the Yelahanka City Municipal Council as
properties coming within its area and kathas were made in the
names of respective allottees / owners and not with the BDA, the
first respondent herein. The site owners have obtained license and
sanctioned plans from Yelahanka City Municipal Council. The first
respondent has no jurisdiction or authority over the layout area
as per Government Notification. The first respondent has no
authority or jurisdiction to take any action against this
respondent compelling this respondent not deviate from the alleged
approved layout plan by the first respondent in its Resolution
No.503/1992, dated 16.11.1992 or to produced the same as sought
for the writ petition.
(14) This
respondent submits that it is totally false and untenable that it
has already provided for 11 parks, 5 Civic Amenities sites in the
layout, and on the strength of the said representation, the
members of this respondent society applied for the acquired sites
in the layout. It is without any basis and unsustainable. This
respondent has provided for parks, stadium, playgrounds, temple,
schools, vegetable shops, in the layout formed by it and at no
time it was stated that it would provide for hospital, as it is
for the Municipality of the Government to provide for the
Hospital.
(15) The
allegation that the society has not complied with the approved
plan etc., is not true and correct. As stated supra, the first
respondent ceased to have jurisdiction after Government
Notification. It may be that the first respondent has sent a reply
in response to various representations, as stated in the letter
dated 17.06.2002. The contentions of the petitioners that this
respondent was required to pay first respondent estimated costs
for the layout etc., is not correct as the first respondent ceased
to have jurisdiction over the layout area. This is within the
knowledge of the petitioners, suppressing the same, they have
filed this writ petition with false allegations, with malafide
intentions for reasons best known to them.
(16) This
respondent submits, that when the public interest Litigation with
petitions were filed by subramani and others and were pending
before this Hon’ble Court, the first respondent, the BDA had
jurisdiction for the approval of the plan etc., and as stated
supra, the BDA has approved the plan tentatively subject to
fulfilling the conditions stipulated therein and it was in the
process only. Litigations were pending before the Hon’ble Court
with regard to conditions imposed by BDA for approval as per
Resolution No. 503/1992, dated 16.11.1992. As per said Resolution
approval accorded at that time was in respect of 2048 sites only.
Subsequently, after inclusion of un-acquired lands and subsequent
delivery of acquired lands by the Land Acquisition officer he
layout plan was altered and a comprehensive layout plan was
prepared and while doing so, number of sites was increased and the
area came within the jurisdiction of the third respondent,
Yelahanka City Municipal Council, and accordingly the layout plan
was not approved from Yelahanka City Municipal Council for 2268
sites. In the layout plan land for parks, play ground, stadium,
civic amenities, educational institutions, temple, have also been
provided and they are intact, it is false that open spaces
earmarked for parks, C.A. sites, have been allotted and
construction of residential buildings are put up in about ten of
these C.A. sites. The said allegations are false and without any
basis. The contentions that this respondent in its General Body
Meeting held on 19-09-2002, has stated that 49% of 193 acres has
been reserved for roads, Under Ground Drainage, temple etc., was a
mistake in the printing, which was got corrected in the General
Body meeting itself, which is within the knowledge of the
petitioners, and by suppressing the same and by taking advantage
of mistake have contended that it has been represented by this
respondent to the said effect in the General Body.
(17) The
petitioners taking advantage of the temporary permission granted
for installing Gowri and Ganesh idols to celebrate Ganesha
festival in one year, are attempting to build up a case with
untenable contentions. They have misinterpreted the letter
produced as ANNEXURE-H. The entire area covered by the boundaries
mentioned in the said letter was not a Civic Amenities Site.
Within tnat area covered by the boundaries only one site measuring
about 100X100 feet was reserved as a Civic Amenities Site for
temple. It is in this plot that Gowri and Ganesha idols were
installed temporarily for one year. The said site still remains
vacant.
(18) The
contention of the petitioners that during the year 2000, the
petitioner society sought permission of this respondent to install
the Gowri and Ganesha idols and this respondent has written a
letter is true. It is only for the festival purpose the
petitioners were permitted to install Gowri and Ganesha idols
temporarily which were installed and after the festival was over
they were removed. The petitioners have made false and reckless
allegations in this regard without regard to the fact of
permitting them to install and worship Gowri and Ganesha for the
festival accessions. This clearly demonstrates the ill-motive the
petitioners have forwards this respondent for reasons best know to
them. There are no bonafides in the allegations made in the write
petition. It is bereft of truth and liable to be dismissed.
(19) The
contentions of the petitioners that in the entire layout till
this day not a single plot is development as park, or play ground
has no basis. This respondent society only provides land for
development of parks, play grounds etc., which is to be done by
the authority concerned. Namely the Yelahanka
City Municipal Council. It is for the third respondent to
establish the same. There is already an educational institution in
the layout which is in the acquired land by this respondent. The
stadium is to be built and to be developed by the City Municipal
Council, Yelahnka. This respondent society is not required to
provide any public office and no such public office could be
provided by this respondent society and it is for the Government
to provided or establish public offices and no such requirement is
there to provide any land for public office while forming the
layout by this respondent society. Similarly, this respondent is
not required to provide any hospital as such, it is for the public
authority and the Government to provide hospital. Apart from that,
there is already a hospital provided by the Government adjoining
this layout. There is also a
Government
Hospital
in Chikkabommasandra village. Apart from that there are private
Nursing Homes, near the layout providing medical facilities. It is
clear from this the petitioner are making false and untenable
allegations, alleging illegalities and irregularities said to have
been committed by this respondent society.
(20) The
allegations that his respondent has not handed over any open
spaces to the first respondent and third respondent though it is
statutorily bound to do so, is false and incorrect. It is further
false that more than 500 sites have been formed in these parks,
play grounds and C.A. Sties by this respondent and sold in favour
of individuals and to commercially exploit the same. It is further
false that the third respondent has been freely effecting change
in katha and granting building licenses in flagrant violation of
its statutory duty. As stated earlier, the plan approved by the
third respondent is for total number of 2268 sites and the said
sites have been formed in the layout and there is no deviation as
such from approved layout plan. By taking undue advantage of the
temporary plan submitted to the first respondent for approval at
that time with the available land without including the extra
lands the petitioners are trying to build up a false case.
However, that plan was not final and while executing the layout, a
comprehensive plan was prepared and got approved after all the a
lands were included in the formation of the layout. The total
number of sites has been increased to 2268 and that has been
approved by the concerned authorities. As such there is no
irregularity or illegality in formation of the layout and sites.
(21) This
respondent submits that this respondent has handed over the entire
layout to the third respondent i.e., Yelahanka City Municipal
Council and has executed registered relinquishment deed in favour
of the Yelahanka City Municipal council and the Yelahanka City
Municipal Council has taken over possession of the C.A. sites,
play grounds, parks, drainages, water supply lines and all other
Civic Amenities concerned as per the letter of the Town Planning
Engineer dated 23.01.2003. A copy of the said letter is produced
herewith as ANNEXURE-R13.
(22) This
respondent submits that concerning un-acquired lands in respect of
which had society obtained sale agreements and corresponded with
the Government being pockets of land without which formation of
the layout could not be done. Though the Government directed the
Deputy Commissioner to acquire these lands. The lands were not
acquired by issuing Notification. Ultimately, the Government by a
letter dated 23.01.1999, in the form of a Circular informed that
the societies which genuinely require lands in respect of which
sale agreements are entered for formation of layout to provide
house sites to its members, could be permitted to hold such lands
and form layout without acquisition. This respondent submits it
has obtained final agreements of sale by paying full sale
considerations to the owners of lands and taken possession
pursuant to the agreements of sale, proceeded with the formation
of the layout including these lands which were already pocket
lands. The owners had also executed irrevocable Power of Attorney
in favour of this respondent society to deal with these lands
including obtaining sale deeds or having in acquired or in any
other manner. These lands were also included when the
comprehensive plan was prepared in respect of the total extent of
193 acres for approval from the third respondent. The third
respondent. Yelahanka City Municipal Council has accorded approval
for total 2268 sites which is inclusive of such un-acquired lands.
In the meanwhile some of the land owners filed suits against this
respondent claiming this respondent has no right to hold such
lands as the said lands were not got acquired even though they had
agreed to sell and the delivered possession. Since the sites were
formed and sites were distributed even in respect of the said
lands in favour of the members of this respondent society, this
respondent society had to enter into compromise with the owners of
lands to have its title to the said extent of lands cleared by
allotting some sites to them. Even now, some suits are pending in
respect of some extent of the said lands un-acquired, and this
respondent society is trying to safeguard the interest of its
members who have been allotted sites. All these are within the
knowledge of the petitioners.
(23) The writ
petition has no merit. Some of the contentions urged by the
petitioners in the writ petition are untenable. This respondent
society has not committed any irregularities of illegality which
has seriously jeopardized the nights of the residents in the
layout. Since this respondent has already handed over the entire
layout, including parks, playgrounds, C.A. sites, drainages water
supply lines, and other civic Amenities to the third respondent
the question of issuing a direction for the same does not arise.
(24) It is
submitted that since the BDA has no jurisdiction over the area in
question as it comes within the Yelahanks City Municipal Council
limits as per Government Notification. Question of enforcement of
Section 32 of the BDA Act to demand and secure the registered
relinquishment deeds does not arise. That even otherwise, as the
layout has already been handed over by this respondent to the
third respondent and the third respondent having acknowledged
having taken over the same as per their letter dated 23.01.2003
any further direction from this Hon’ble Court in this behalf does
not arise. There is no merit in any of the contentions urged by
the petitioners, and the relief sought for a issuing a writ, order
or direction in the nature of mandamus does not arise or survive
for consideration. Similarly, direction to the third respondent in
that regard as per prayed No.4 also does not survive. The writ
petition has been filed by making false allege ions and urging
untenable contentions and by suppressing material facts. It is
liable to be dismissed with costs.
(25) It is
emphatically denied that the Respondent No.4 has made any
representation as referred to in para 4 and 5 of the writ
petition. No such representation has been held out. It is denied
that any area earmarked as Civic Amenities site has been allotted
to any person. The averments in the statement of objection filed
in the earlier writ petition No. 11211 of 1995 is not relevant as
subsequently the area having come within the jurisdiction of Yelahanka City Municipal Council the approval of the plan was by
the said City Municipal Council. Hence any averment earlier on
the basis of the tentative approval granted BDA is irrelevant.
(26) All other
allegations which are not specifically traversed herein are hereby
denied as false.
WHEREFORE, this respondent prays that this Hon’ble Court be
pleased to dismiss the above writ petition with costs in the
interest of justice and equity.
Bangalore.
Sd/-
Date:
23-10-2003.
ADVOCATE FOR RESPONDENT NO. 4.
|
|
13.
IN THE
HIGH COURT OF KARNATAKA AT BANGALORE
C.C.C. No. 87/2004
in Writ Petition No. 40994/2002
BETWEEN
Judicial Layout Residents
and Site Holders association (Regd.),
G.K.V.K. Post. BANGALORE – 560 065.
Represented by the Board
of Directors Consisting of :
(a) B.V. Byra
Reddy.
President
No. 1362, III Cross, Judicial Layout,
BANGALORE – 560 065.
(b) M.
Chikkalingaiah.
Secretary,
No. 1816, 8th Main, Judicial Layout,
BANGALORE – 560 065.
(c) G.K. Nagaraja.
Treasurer,
No. 1730, 6th Main, 5th Cross,
Judicial Lay-out,
Bangalore – 560 065.
(d) S.D.
Venkataramanaiah,
Founder President and Director,
No. 1803, 8th Main Road,
Judicial Lay-out,
Bangalore – 560 065.
(e) D.N. Kagwad,
Director, No. 185, 10th Cross,
Judicial Lay-out,
Bangalore – 560 065.
(f) Smt. Rupa
Kumari,
Director, No. 185, 10th Cross,
Judicial Lay-out,
Bangalore – 560 065.
(g) Y.C.
Bujabhaiah.
Joint Secretary and Director,
No. 990, 14th Cross,
Judicial Lay-out,
Bangalore – 560 065.
(h) A. Laxmana Rao.
Director,
No. 522, Seven hills,
23rd Cross. 18th Main.
Judicial Lay-out,
Bangalore – 560 065.
(i) L.S. Raja Rao.
Director,
No. 516, 18th Main 24th Cross
Judicial Lay-out,
Bangalore – 560 065.
(j) Manjunatha
Holla
Director,
13th Main, Judicial Lay-out,
Bangalore – 560 065.
(k) Smt. Saraswati.
Director,
11th Main, 8th Cross, Judicial
Lay-out,
Bangalore – 560 065.
…………. Complainants
AND:
[1] Bangalore
Development Authority.
Represented by its Commissioner.
T. Chowdaiah Road. Kumarapark West,
Bangalore – 560 020.
[2] The City Municipal
Council.
Yelahanka.
Represented by its Commissioner.
Bangalore – 560 064
[3] The
Karnataka State Judicial
Department
Employees
House
Building Co-operative Society
High Court
Buildings. Bangalore – 560 001.
[4] Sri. C.M.
Basavarya
Retired District & Sessions Judge,
Hon’ble President,
The
Karnataka State Judicial Department
Employees
House Building Co-Operative Society,
R/o. No.16, 2nd Cross,
Judicial Officers Colony,
Sanjaynagar, Bangalore.
[5]
Shri. C. Shivalingaiah,
President, Consumer Forum,
Secretary, The Karnataka State
Judicial Department
Employees House
Building Co-operative
Society, Swathi Complex, 4th
Floor,
Platform Road, Seshadripuram,
Bangalore- 560 020,
[6]
Sri. M. Rudraiah
Advocate, Vice-President,
The Karnataka State Judicial
Department
Employees
House Building Co-Operative Society,
”Nandi House, No. 1284,
III Cross, Judicial Layout,
G.K.V.K. Post, Bangalore- 560 065
[7] Sri.
Kempa Thimmaiah
Treasurer,
The Karnataka State Judicial
Department
Employees
House
Building Co-Operative Society,
SDA, CMM Court, Nrupathunga Road,
Bangalore- 560 052,
[8] Sri. D.B.
Devagirikar.
Director, The Karnataka State Judicial
Department
Employees
House
Building Co-Operative Society,
‘Devamandira’
No.1396, 9th Main Road,
Judicial Layout,
G.K.V.K. Post Bangalore- 560 065,
[9]
Sri. N. Shivanna.
Director, The Karnataka State
Judicial
Department
Employees
House
Building Co-Operative Society,
Retired Assistant Registrar,
No.84, Kumbale Mayura Varma Road,
Laxmipura.
Kempe Gowda Road, Bangalore – 19.
[10] Sri. N.
Lingaiah.
Director, The Karnataka State
Judicial
Department
Employees
House
Building Co-Operative Society,
Section Officer / Asst, Librarian,
High court of Karnataka. Bangalore.
[11] Shri. S. Bsavaraju.
Director, The Karnataka State
Judicial
Department
Employees
House
Building Co-Operative Society,
Sheristedar,
Central Process Nazar Office, City
Civil Court Complex.
Bangalore -9.
[12] Shri. H.C.
Puttaswamy,
Director, The Karnataka State
Judicial
Department
Employees
House
Building Co-Operative Society,
F.D.A.,
City Civil Court, Court Complex,
Bangalore – 9
[13] Smt B. S.
Shankarambha,
Director, The Karnataka State
Judicial
Department
Employees
House
Building Co-Operative Society,
Chief Sheristedar,
Judicial Magistrates Court,
Nruputhunga Road, Bangaore – 52.
[14] Shri. K. Sippegowda,
Director, The Karnataka State
Judicial
Department
Employees
House
Building Co-Operative Society,
Court Officer.
High Court of Karnataka and
President,
Karnataka State Employee’s
association, Cubban Park, Bangalore -1
[15] Shri. Narayanappa.
Director, The Karnataka State
Judicial
Department
Employees
House
Building Co-Operative Society,
Retired Assistant Registrar,
No. 1867, 7th Cross, 1st
‘A’ Main
Judicial Layout G.K.V.K. Post,
Bangalore – 65.
[16] Shri Mallaiah.
Director, The Karnataka State
Judicial
Department
Employees
House
Building Co-Operative Society,
Court officer.
High Court of Karnataka, Bangalore –
1
[17] Shri. P.
Srinivas.
Director, The Karnataka State
Judicial
Department
Employees
House
Building Co-Operative Society,
Court Officer,
High Court of Karnataka, Bangalore –
1.
[18] Shri. G.S.
Shivakumar.
Director, The Karnataka State
Judicial
Department
Employees
House
Building Co-Operative Society,
F.D.A. High Court of Karnataka
K.G.I.D. Building. Bangalore – 1.
…………. Respondents
Complaint under Article
215 of the Constitution of India read with 11 and 12 of the contempt
of court Act. 1971.
The above named complainants state as follows:
[1] This is a complaint against willful
disobedience of the order passed by this Hon’ble Court made on
18.06.2003 passed in W.P. No. 40994/2002 [GM.PIL]. A copy of the
interim order dated 18-06-2003 is produced herewith and marked as
ANNEXURE-A.
[2] The complaints are the President,
Secretary, Directors of the Judicial Layout Resident and Site
Holders Association [Reg]. The Association filed Writ Petition No.
40994/2002 [ GM. PIL] seeking a direction to the Respondents to take
necessary steps to protect, preserve and maintain the open spaces
like C.A.’s parks and play ground and bus terminus in the Judicial
Layout Bangalore – Bellary Road, Bangalore – 560 065. This matter
came up for preliminary hearing on 22-01-2003 and this Hon’ble Court
issued emergent notices to the Respondents and passed an interim
order restraining the Respondents from changing the nature of the
land with regard to the temple site measuring 195’ X 200’.
Subsequently on 18-06-2003, this Hon’ble Court directed the 4th
respondent therein to produce the map that was submitted to the BDA
along with a list of civic amenities sites which have been
transferred within one month. The BDA was also directed to produce a
report within two months as per the order dated 18-06-2003. This
Hon’ble Court while continuing the interim order dated 22-01-2003
made on order in the above writ petition that the society shall not
transfer any civic amenity sites shown in the map. The complainants
have represented to the Commissioner, City Municipal Council,
Yelahanka and have given a representation. A copy of the
representation and the acknowledgement is produced herewith and
marked as ANNEXURE-B. On 02-07-2003 the complainants have served
copy of the interim order dated 18-06-2003 on the Secretary /
Manager of the said society. The interim order was made in the
presence of the counsel for the said society.
[3] The Accused herein are the
President, Manager / secretary and Directors of the Karnataka State
Judicial Department Employees’ House – Building Co-operative Society
Ltd. The said society is arrayed as Respondent No.4 in the said
petition and was served with the court notice in the said writ
petition by 18-06-2003. in obedience to the interim order dated
18-06-2003. The society has also filed a Memo before this Court on
18-07-2003. After the interim order dated 18.06.2003 and personal
service of its copy affected by the complaints on the Accused No.2
the said Society has deliberately sold residential sites in the open
area in direct and willful disobedience of the interim order dated
18-06-2003. the complaints submit that the society, has changed the
nature of civic amenity sites by converting them as residential
sites and selling and registering the same to different persons even
after the order by this Hon’ble Court on 18-06-2003 the complainants
herewith produce and mark ANNEXURE-C [Series], copies of the
Encumbrance Certificates to evidence the fact that the nature of
civic amenity sites have been changed by transferring and
registering the same as residential sites. A copy of the list of
such civic amenities sites is produced herewith and marked as
ANNEXURE - D. The complainants herewith produce and mark as ANNEXURE
– E a layout plan submitted by the said society to the BDA for
approval. The complainants submit that the said Society has also
produced a modified plan approved by the CMC, Yelahanka. A copy of
which is produced as ANNEXURE-F. From a perusal of the same it is
evident that several sites ear-marked for C.A., and park have been
converted into sites and have been sold.
[4] In the circumstances, it is clear
that the Respondents have committed contempt of this Hon’ble Court
by willful disobedience of the order dated 18-06-2003 in
W.P.No.40994/2002 [GM-PIL]. Since the Respondents are the office
bearers responsible for sale of these sites in the name of the
society they are all personally liable for the actions of the
society. Hence the complaint.
WHEREFORE, the complainants pray
that this Hon’ble Court be pleased to initiate contempt of Court
proceedings against the Respondents herein and take suitable action
for their willful disobedience of the interim order dated 18.06.2003
made in W.P.No.40994/2002 [GM-PIL] and direct annulment of all
transactions in violation of the same and to give all consequential
benefits including a direction to the Sub Registrar, Yelahanka to
cancel registration of sites a list of which is produced herewith
and marked as ANNEXURE-D, in the interest of justice and equity.
|
Bangalore.
Date: 20-01-2004. |
Sd/-
G. Sharada Ravivarma
Advocate for Complainants. |
Address for
Service:
G. Sharada Ravivarma
J. Prashanth & Vijay Raghava Sarathy,
Advocates,
No. 37, II Main, Vyalikaval,
Bangalore – 560 003. |
|
14. IN THE
HIGH COURT OF KARNATAKA AT BANGALORE
CCC. 87/2004
IN W.P. No.
40994/2002
BETWEEN
Judicial Layout
Residents &
Site-Holders Association. [Regd.],
By its President Sri B.V. Byra Reddy.
……. COMPLAINANTS
AND
Bangalore Development
Authority & others ....…. RESPONDENTS
A F F I D A V I T
C. Shivalingaiah S/o.
Channegowda Age: 65 Years, Presently working as President District
Consumer Forum {Rural}, Swathi Complex, Bangalore-560 020, do hereby
solemnly affirm and state on oath as follows:
[1] I am the 6th
Respondent in the above Contempt, petition and I am conversant with
the facts of this case. Hence, I am swearing to this affidavit.
[2] I submit that I am
not the secretary of the Karnataka State Judicial Department
Employees House Building Co-operative Society, but the President of
the said Society. I have been wrongly imp leaded as secretary,
knowing fully well that I am the President of the society.
Complainants (c), (d), (g) and ( i )have all contested as Directors
in the earlier election, in which 1999 election I was elected.
Therefore, I am the President of the Society is within the knowledge
of the Complainants before this Hon’ble Court and arrayed me as
Secretary only to bring under the purview of the contempt
jurisdiction, because in the Writ Petition, the society was
represented by the Secretary.
[3] Respondent No.5 has
been shown as the President, but who is not the President of the
Society, whereas I am the President of the society. This conduct of
the Complainants clearly shows that the post held by me has been
wrongly shown as the secretary only with an intention to bring be
under the clutches of the Contempt of Court Act.
[4] I submit that I was
not President or the office bearer of the society from February 1995
up to June 1999.
[5] The Complainants have
suppressed certain facts and wrongly made a statement before this
Hon’ble Court that there were 13 alienations made. The contempt
Notice was issued on the statement made by the complainants that the
alienations have been made by the Respondents which are alleged to
be made in contravention of the interim order passed by this Hon’ble
Court.
[6] The prayer made in
the Write Petition is to produce the approved plan, vide resolution
No. 503/92 dated 16-11-1992, whereas in Para-5 of the Contempt
Petition, the Complainants have admitted that no plan has been
approved. Therefore, the entire prayer will not survive.
[7] I further, submit
that in the absence of the approved plan, taking a Relinquishment
Deed from the Respondent Society to the B.D.A., does not arise at
all.
[8] The complainants, who
were parties to the General Body Proceedings from 1992 up to 2002
and they were aware of the fact that the entire layout has been
developed and also they themselves have obtained the sale deeds in
pursuance of the layout sanctioned by the B.D.A., by its Resolution
No. 503/92 dated 16.11.1992 and hence the Complainants are stopped
from complaining of as against the Resolution No.503/92 dated
16.11.1992.
[9] I humbly submit that
Resolution bearing No.503/92 has approved only for 156 acres 26 ¼
guntas of land subject to 7 conditions. These conditions including
payment of Surcharge towards Cauvery III Stage could not be complied
and a Writ petition was filed and the said Writ Petition is pending.
Thereafter, the land was notified and came within the jurisdiction
of the Municipality. Therefore the plan could not be approved by the
B.D.A.
[10] I submit that when the
interim order was passed by this Hon’ble Court on 18.06.2003, the
plan produced by the complainant along with the Contempt Petition,
Annexure-E produced along with the complaint was not annexed along
with the Contempt Petition, Annexure-E was not before this Hon’ble
Court. For the first time, in the contempt it has been produced.
Annexure-E produced along with the complaint was not annexed along
with the interim order and it was not brought to my knowledge at any
point of time along with the interim order. The plan which has been
produced by them is pertaining to 192 acres 6 guntas with the
Resolution bearing No. 506/92. The Judicial Layout has been
sanctioned by the B.D.A., vide Resolution No. 503/92 and not 506/92.
A copy of the Order sanctioning the layout dated 28-11-1992 is
herewith produced and marked as ANNEXURE- R1 for kind perusal of
this Hon’ble Court. I am also herewith producing a copy of the plan
in which civic amenity sites have been marked in yellow ink and the
sites in respect of which sale deeds have been cancelled, which is
based on the sanctioned plan by the Municipality is show in Red ink
and the sale deeds have been withdrawn and recalled and the position
as on the date of interim order i.e., on 18-06-2003 has been
restored and the same is marked as ANNEXURE-R2.
[11] So far as the mention
of Resolution No.503/92 bearing No.BDA/TPM/DDW/1374/92-93 is only
the approval of the layout to an extent of 156 acres 26 ¼ guntas and
not the plan. But the mention of the said Resolution including the
plan was continued as usual as it was a proforma. Therefore. I am
innocent and : have not earned any personal gain out of the
execution of the sale deeds and the discretionary power may not be
exercised in favour of the Complainants.
[12] I further submit that
the sale deeds have been executed based on the sanctioned plan by
the Municipality in respect of 193 acres 2 ¼ guntas of land. The
plan has been sanctioned, vide Resolution No. 24/96-97 dated
22-05-1996.
[13] It is submitted that
since the alienations have been made based on the sanctioned plan,
it is a power which has been exercised by virtue of the Statute and
when it comes to my knowledge, all the sale deeds have been recalled
as an today including that of Smt. Geetha Narayanaswamy and the
contempt has been purged.
[14] I humbly submit that
there is no willful disobedience of the directions issued by this
Hon’ble Court, as the Complainants themselves are responsible for
not annexing a copy of the plan along with the interim order. The
alleged plan, Annexure-E was not present before this Hon’ble Court
when the interim order came to be passed. Therefore, there is no
willful, intentional disobedience of the directions issued by this
Hon’ble Court.
[15] I submit that myself
and-Respondent No.5 are mainly responsible in giving a shape to the
Society and provided sites to the members of the Judicial
Department, I submit further that I have served to the maximum
possible extent to serve the employee of the Judicial Department,
despite number of legal hurdles and despite litigations by the
private parties. Therefore, the society has served the public
purpose.
[16] I humbly submit that I
have not gained any benefit out of the alienations made after the
interim order dated 18-06-2003. The alienations were made in favour
of the members of the society. There is no alteration of the
character of the land. No third party rights have been created. The
position has been restored back i.e., status-quo anti prior to
18-06-2003. Therefore, I have no intention to disobey the directions
of the Hon’gle Court and as such the proceedings may kindly be
dropped and the Respondents may be exonerated from the contempt
proceedings. I have already stated on oath that we are tendering
unconditional apology and the apology may kindly be accepted. If
this Hon’ble Court comes to the conclusion that there is no
disobedience of the orders of this Hon’gle Court. Under these
circumstances, the discretionary powers vested in this Hon’ble Court
may not be exercised in favour of the Complainants and the
proceedings may kindly be dropped and the Respondents may be
exonerated from the Contempt proceedings. In the interest of justice
and equity.
Date:
10-03-2005
Bangalore |
DEPONENT |
|
|
15.
IN THE HIGH
COURT OF KARNATAKA AT BANGALORE
CCC. 87 OF 2004
IN
W.P. No.
40994/2002
BETWEEN
Judicial Layout Residents &
Site-Holders Association. [Regd.],
By its President Sri B.V. Byra
Reddy.
……. COMPLAINANTS
AND
Bangalore Development Authority
& others
....…. RESPONDENTS
REPLY TO THE
CONTEMPT PETITION ON BEHALF OF
RESPONDENTS
4,5,6,7 AND 8 TO ……
The Respondents above named
submits as under.
[1] In the above petition.
The petitioners have prayed to initiate contempt of Court
proceedings against the respondents herein and to take suitable
action for the willful disobedience of the interim order dated
18-06-2003 in W.P.No.40994/2002 and direct annulment of all
transactions in violation of the same and give all consequential
benefits including a direction to the Sub-Registrar, Yelahanka to
cancel registration of sites as per the list produced at Annexure
“D”.
[2] The operative of the
interim order dated 18-06-2003 reads as under. “4.The interim order
dated 22-01-2003 shall continue and in addition it is also made
clear that during the pendency of this petition. The society shall
not transfer any civic amenity sites as shown in plan submitted to
BDA. Until further orders…”
The order dated
18-06-2003 has two directions namely the order dated 22-01-2003
states that the 4th respondent society shall not change
the character of land described in I.A.No.1/2003. it is submitted
that I.A.No. 1/2003 is for an ad interim order of temporary
injunction restraining the 4th respondent or anyone
acting under it from forming sites or otherwise altering the nature
of the sites measuring 195X200and bounded on the East by 14th
Main Road, West by site No. 969. to the north 16th Main
Road and to the South 15th Cross. The 4th
respondent has sold 3 sites namely 859/A. 859/E and 859/F prior to
the order dated 18-06-2003 but pursuant to the order dated
22-01-2003 as the sale deeds are of the year 2002. The said action
of the respondents is due to lack of knowledge or information as to
the order passed by this Hon’ble Court dated 22-01-2003 and
18-06-2003, the respondent herein respectfully submits that the said
order was not communicated to the 4th respondent or its
office bearers. The respondent herein and the office bearers of the
4th respondent society are employees of this Hon’ble
Court and the Courts below. They have served this institution for
more than 20 years and they have served this institution for more
than 20 years and they have the highest respect for all the Courts,
especially this Hon’ble Court and at no stretch of imagination, if
they were aware as to the orders passed by this Hon’ble Court, would
have violated the same. As submitted earlier, the impugned action of
the respondents is not willful, deliberate and intentional to
violate the order passed by this Hon’ble Court, but due to
non-communication of the orders passed by this Hon’ble Court.
[3] Keeping in mind the
grievance of the complainants, the respondents herein are taking all
steps to see that site measuring 195X200 (around 39,000 sq. ft.) to
be kept vacant for the purpose of building the temple. The
respondent society has requested the members in whose favour sale
deeds have been executed to surrender the same to which some of them
have accepted and the respondent society is in the process to
getting the remaining sale deeds cancelled. In so far as Site No.
859/C and 859/D is concerned, the sale deeds were executed on
18-11-2002 and 26-10-2002 and Site No. 859/B1 measuring 10,000 sq.
ft., has been kept vacant for the purpose of temple Now, efforts is
being made to undo the same and to see that the land measuring
195X200 are earmarked for the purpose of temple and not only
complying with the orders of this Hon’ble Court also the grievance
of the petitioners the allottees are:
|
Sl.No. |
Site No. |
Date of Registration
|
Name of Allottees.
|
|
1. |
859/C |
08-11-2002 |
Hon’ble Justice S.R. Nayak
|
|
2. |
859/D |
02-12-2002 |
Hon’ble Mr. Justice
H.L.Dattu |
[4] It is submitted the
second portion of Order dated 18-06-2003 states that the society
shall not transfer any Civic Amenity Sites as shown in the plan
submitted that pursuant to the order dated 18-06-2003, totally 24
sites have been sold. The respondent herein, out of the same have
cancelled 7 sale deeds and only 17 sale deeds are to be cancelled to
which the respondents herein have already issued notice to the
allottees to get the sale deeds cancelled. The copy of the notice
dated 15-02-2006 and 16-02-2006 issued by the respondents to the
allottees is enclosed herewith as ANNEXURE-“R5”. The list of the 24
sale deeds mentioning the sale numbers, date of registration, name
of the allottees and cancellation deed have in whose favor sale
deeds have executed after
22-01-2003 and 18-06-2003 is as
hereunder :
|
Sl. No. |
Site No. |
Date of Registration |
Name of Allottees |
Cancellation
Deed |
|
01. |
2057 |
19-09-2003 |
Mr.M.A. Suresh
|
09-02-2005 |
|
02. |
1976 |
19-09-2003 |
Mr. Shekhar |
09-02-2005 |
|
03. |
1970 |
19-09-2003 |
Mr. G.R.Narayanappa
|
09-02-2005 |
|
04. |
1973 |
19-09-2003 |
Mr.S.Ravindra Babu
|
18-02-2005 |
|
05. |
2119 |
05-09-2003 |
Mr.G.R. Narayanappa |
14-02-2005 |
|
06. |
701/C |
23-08-2003 |
Smt. Geetha Narayanswamy
|
09-02-2005 |
|
07. |
1971 |
19-09-2003 |
N. Sreedhar |
09-02-2005 |
|
08. |
2120 |
29-10-2003 |
B.Anitha |
09-02-2005 |
|
09. |
2122 |
08-10-2003 |
Prema.S |
09-02-2005 |
|
10. |
2117 |
22-11-2003 |
K.M. Nataraj |
09-02-2005 |
|
11. |
2048 |
03-10-2003 |
G. Radhakrishna
|
09-02-2005 |
|
12. |
2023 |
04-11-2003 |
Krishnappa |
09-02-2005 |
|
13. |
859/F |
16-10-2003 |
H.P.Leeladhar |
09-02-2005 |
|
14. |
259/E |
16-10-2003 |
Shamanth |
09-02-2005 |
|
15. |
670/5 |
12-12-2003 |
B. Ramesh |
09-02-2005 |
|
16. |
670/4 |
12-12-2003 |
Sheshagiri |
09-02-2005 |
|
17. |
670/3 |
16-12-2003 |
B.Mallikarjuna
|
09-02-2005 |
|
18. |
362/17 |
12-12-2003 |
K.S. Manjunath
|
09-02-2005 |
|
19. |
362/15 |
12-12-2003 |
Muninagappa |
09-02-2005 |
|
20. |
308/B |
12-12-2003 |
R. Yatish |
09-02-2005 |
|
21. |
859/A |
22-12-2003 |
Hon’ble Justice B.K.
Somashekhar |
09-02-2005 |
|
22. |
670/9 |
27-12-2003 |
B. Bhavya |
09-02-2005 |
|
23. |
2047 |
29-12-2003 |
M. Krishnappa |
09-02-2005 |
|
24. |
859/B |
02-04-2003 |
R.N.Nagaraj |
09-02-2005 |
[5] As can be seen from
Annexure “C” to the Writ Petition there are totally 13 encumbrance
certificates which have been produced to show that the respondents
herein have violated the order of ‘his Hon’ble Court dated
18-06-2003. As mentioned above seven sale deeds have already been
with the consent of the persons in whose favour the sale deeds have
been executed. The respondent society herein had engaged Mr.
B.L.Acharya, Advocate in W.P.No.40994/2002 before this Hon’ble
Court. Even though Mr. B.L. Acharya had filed his vakalath, his name
was not shown in the cause list and the counsel was not present
before this Hon’ble High Court on 18-06-2003 where, the said interim
order came to be passed. The sale deeds came to be executed without
being aware of the order passed by this Hon’ble Court. If the
respondent herein were known as to the orders passed by this Hon’ble
Court dated 22-01-2003 and
18-06-2003, they would not have
executed the sale deeds. The respondents herein have the highest
respect and regard for the orders passed by this Hon’ble Court. The
6th respondent has served as Registrar of this Hon’ble
Court for nearly 20 years and retired as the Presiding Officer of
the District Consumer Forum, Bangalore. The respondents herein seek
pardon from this Hon’ble Court for having executed the sale deeds
without knowledge of the order passed by this Hon’ble Court dated
18-06-2003. From the reading of the order dated 18-06-2003 also it
is clear that (Para 2 ) wherein it is stated that though the
respondent are served but not appeared despite service, which only
goes to show that the respondents herein were not served and further
they were not aware as to the orders passed by this Hon’ble Court.
As a matter of fact, after service of notice on 4th
respondent, vakalath was filed but the name of the counsel who had
appeared on behalf of 4th respondent was not shown
because of which the sale deeds came to be executed. As submitted
earlier all necessary steps have been taken to retrace the action
which have been done subsequent to the orders passed by the Hon’ble
Court and annual sale deeds with the co-operation of the site owners
in whose favor the deeds have been executed.
[6] It is submitted that so
for as the 6th respondent is concerned as can be seen
from the order sheet dated 18-07-2003 in W.P.No. 40994/2002. only 4
respondents were made parties. The 1st respondent being
the Bangalore Development Authority 2nd respondent being
the State Government the 3rd respondent being the City
Municipal Council and the 4th respondent being the State
Government, which was represented by its Secretary. The 6th
respondent is the President of the Society was not a party in the
said writ petition. On 18-06-2003 this Hon’ble Court was pleased to
pass on order directing the 4th respondent, not to
transfer any civic amenity sites, as shown in the plan submitted by
the BDA. It is submitted that the 6th respondent was not
a party in the writ petition and was not aware of the contents of
the writ petition and the order passed by this Hon’ble High Court in
the writ petition. The 6th respondent was not informed as
to the orders passed in the writ petition and was only made party
subsequently in the contempt petition. The respondents 5,7 and 8
have not executed any sale deeds in violation of the orders passed
by this Hon’ble Court and they were not party to the writ petition
and further were not aware of the orders passed by this Hon’ble High
Court. The 6th respondent and the respondents herein on
coming to know of the orders passed by this Hon’ble Court dated
18-06-2003 have not executed any sale deeds. It is further relevant
to submit that the contempt petition was filed only on 20-01-2004 in
which the 6th respondent herein was made a party.
[7] The action of the 4th
respondent society in executing sale deeds is not willful and
intentional to violate the orders of this Hon’ble Court. The
respondent herein are taking all steps to get all the sale deeds
cancelled which have been made pursuant to the orders of this
Hon’ble High Court, in spite of having filed their vakalath, as
their names were not shown in the cause list. This can be evident
from the orders passed by this Hon’ble Court dated 18-06-2003 as
well as the cause list produced along with the statement of
objections. The respondent not being aware of the orders passed by
this Hon’ble Court have executed sale deeds and on coming to know
the said orders passed by this Hon’ble Court, the respondent have
not executed any further sale deeds and further have taken all steps
to rectify the same so that the respondents herein can not only obey
the court order but undo certain actions of the respondent which
were done without the awareness or knowledge of the orders passed by
this Hon’ble Court. It is respectfully submitted that the
respondents herein have the highest respect for the Hon’ble Court.
WHEREFORE, it is prayed that
this Hon’ble Court may be pleased to accept the unconditional
apology rendered by the respondents and drop the contempt
proceedings initiated against the respondents herein in the interest
of justice and equity.
|
Date: 17-02-2006
Bangalore
Sd/- |
Advocate For Respondents 4
to 8
(K. Shashikiran Shetty ) |
|
|
16.
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
CCC. 87 OF 2004
IN W.P. No.
40994/2002 (GM-RES)
IN THE MATTER
OF:
Judicial Layout
Residents &
Site-Holders
Association. [Regd.],
Rep. By its Board of
Directors.
…. COMPLAINANTS
Versus
Bangalore Development
Authority
Rep. By its
Commissioner & others
…. RESPONDENTS
RMRJ & HBJ:
17-02-2006
Order
Sri Subbanna learned
Sr. Counsel for respondent No.6 files a reply to the contempt
petition, which is taken on record. Sri Subbanna submits that the
contemnor seeks to purge the contempt by canceling the deeds of
conveyance of the sites executed on and after the interim order
passed in the writ petition. In addition, the learned Sr. Counsel
submits that efforts and on to restore the vacant areas constituting
C.A. Sites, parks, etc., as set out in the plan furnished to the
Bangalore Development authority, for sanction and to make a written
request to the Bangalore Development Authority to consider sanction
of the said plan, subject to the conditions set out in the
correspondence between the Authority and the society. Sri
C.B.Srinivasan learned counsel for the. Bangalore Development
Authority having been directed to secure and file a report of the
factual position in regard to the 404 sites said to be formed out of
the areas demarcated for civic amenities and parks. Submits that the
report is ready and would be filed into the registry, after service
of copies on the learned counsel for the parties. Learned counsel
further submits that in the joint spot inspection, in the presence
of the petitioner as well as office bearers of the society, 404
sites were identified as formed out of the area de-alienated and
demarcated for civic amenities and parks, out of which approximately
83 contain unauthorized constructions while 321 are vacant sites.
Learned counsel could further add that the Bangalore Development
Authority is prepared to consider the representation of the society
for sanction of the plan that was earlier submitted to it, subject
however to compliance by the society of the conditions already
communicated to the society, provided further that the layout is
restored to fall in conformity with the plan furnished and the
vacant areas notified for parks, civic amenities, etc., are
relinquished in favor of the Bangalore Development Authority.
Having heard the
learned counsel for the parties and the assurance of the learned Sr.
Counsel Sri. T.R. Subbanna, we consider it appropriate to adjourn
the hearing of this matter to 3rd of March, 2006, to
enable the learned Sr. Counsel to file an affidavit of responsible
office bearers of the society or the contemnors, undertaking to
purge the contempt by executing cancellation deeds of the documents
of conveyance or other forms of transfer executed on and after the
date of the interim order passed in the writ petition and to
relinquish in favor of the Bangalore Development Authority the areas
demarcated in the plan furnished to the Bangalore Development
Authority for civic amenities, parks, playgrounds, temple and other
open spaces, further to comply with the conditions already
communicated by the Bangalore Development authority, in addition to
make a representation to the Bangalore Development Authority for
sanction of the said layout plan. The contemnors shall ensure that
the areas demarcated for the aforesaid purposes in the plan
submitted to the Bangalore Development Authority shall be free from
constructions which includes the 404 sites identified by the
Bangalore Development Authority.
As this stage, the learned counsel for the petitioner seeks
time to secure instructions from the instructing counsel as to
whether an affidavit could be filed in the manner noticed by this
court as regards the 404 sites formed in the areas demarked for C.A.
etc., since it is 4.15 P.M. list this matter on 24.02.2006 to hear
regarding framing of charges, and it necessary to frame charges.
All the contemnors are directed to be present in Court on
24-02-2006.
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