IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION [CIVIL] No. 12361 of  2006        C/W SLP [Civil]    No. 12363 of 2006

[ Arising out of 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) ]

[WITH PRAYER FOR INTERIM RELIEF]
 

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.
 


Advocate For The Petitioners :
P.R. Ramasesh


I N D E X           Dismissal  Order  of SC

Sl. No. =
Links in this Page


P A R T I C U L A R S

01.

Office Report on Limitation

02.

Check List

03.

Synopsis and List of Dates

04.

A true copy of 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).

05.

 Special Leave Petition With Affidavit.

06.

Annexure – P1 A true copy of the Memorandum of writ Petition No. 40994/2002 dated 28.10.2002 filed by the Respondent / Society before the High Court of Karnataka at Bangalore.

 07.

Annexure –P2 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.

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.

Annexure-P6 A true copy of the interim order dated 18.06.2003  passed by the High Court of Karnataka at Bangalore. In W.P.No.40994/2002.

  12.

Annexure-P7 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.

  13.

Annexure-P8 A true copy of the Contempt petition in CCC No. 87/2004 in W.P.No.40994/2002 dated 20-01-2004 filed by the Respondent No.1/society before the High Court of Karnataka at Bangalore.

  14.

Annexure-P9 A true Copy of the Affidavit dated 10.3.2005 filed by president of the petitioner/society in CCC No.87/2004  in W.P.No.40994/2002.

  15.

Annexure-P10 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.

  16.

Annexure-P11 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.
 

 



 

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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03.        SYNOPSIS

        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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LIST OF DATES


11-08-1983

 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.



22-01-1996

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).


22-05-1996

The formation of Municipal Council Yelhanka approved the layout plan of the society by its resolution No.24.

 

 

28-10-2002

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)

 

 

 

 

21-01-2003

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.

 

 

 

22.01.2003

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.”

 

10.02.2003

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)

 

 

12-03-2003

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.

 

18-06-2003

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) 

18-06-2003

The order sheet for this date indicates the office note as follows: “Respondents No. 3 and 4 are served, separate interim order dictated”.

 

 

 

 

18-06-2003

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.



02-07-2003

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.

 


23-10-2003

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)



20-01-2004

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)

 

 

29-01-2004

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.”

 


10-03-2005

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)

 

 

17-02-2006

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)

 

17-02-2006

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)


07-07-2006

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.

24-07-2006

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.  

 Sd/-

Judge

 

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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

 

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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.

 

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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

 

 

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08.  Annexure – P3 A true copy of the filing memo with the endorsement for filing of the Vakalatnama dated 10.02.2003.

 

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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.


 

 

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 10.  Annexure-P5 A true copy of the Cause List of the High Court for 18.06.2003.


 

 

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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.

 

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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.

S
ri 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.  

 

 

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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.

 

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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

 

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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 )

 

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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.
 

Sd/ Judge

Sd/Judge

 

 

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