D. BHAKTHAVATSALA, S/O. LATE DHARMA NAIDU Vs. BANGALORE BRUHATH MAHANAGARA PALIKE REPRESENTED BY ITS COMMISSIONER AND OTHERS

JUDGEMENT

(1.) THIS petition is filed as a public interest litigation averring that the Petitioner is the owner in possession and enjoyment of the house bearing No. 146/A situated in 5th main road, 4th Block, Rajajinagar, Bangalore. The Petitioner and his family members are residing in the said house. To the north of house No. 146/A, there is a public park and playground measuring 42' x 75' belonging to the first Respondent namely, Bangalore Bruhath Mahanagara Palike (hereinafter called 'BBMP') bearing No. 591/A, new No. 148. Public park and playground is meant for the use and enjoyment of the general public more particularly, the residents of the area and BBMP has no authority or jurisdiction to use or permit use of the said park and playground for any purpose other than the purpose for which it has been reserved.

(2.) IN spite of the same, a person by name Seshadri unauthorisedly occupied the said park and playground bearing Corporation No. 591/A, new No. 148 and started residing along with his family. In addition to unauthorisedly occupying the park and the playground, he was also committing nuisance and he was a nuisance by himself. On the complaint made by the residents of the locality, the Bangalore City Corporation issued a notice asking him to vacate the park and the playground and it was stated that if it was not done, action would be taken for his eviction. Challenging the said notice, Seshadri filed W.P. No. 4007/1977 which came to be dismissed by order dated 4 -1 -1982.W.A. No. 247/1982 filed against the said order also came to be dismissed by order dated 27 -5 -1982. Not being satisfied with the outcome in the writ petition and the writ appeal, Seshadri and his wife filed O.S. No. 2468/1982 against the Bangalore City Corporation for a direction not to demolish the construction made on the property, by representing and claiming to be the Secretary to Sri Shanidevara Seva Mandali. It was submitted the there is no such Shanidevara Seva Mandali and the same has been created for the malafide intention of knocking of the valuable property. The said suit came to be dismissed by the Civil Court by judgment and decree dated 23 -3 -1995. Being aggrieved by the same. RFA No. 307/1995 was filed and the said appeal was also dismissed on 5 -7 -1995.

(3.) NOT being satisfied with the decisions of the Civil Court and this Court, Respondents -6 and 7 filed W.P. No. 39438/2000 representing non existing Sri Shanidevara Seva Mandali. This Court, by order dated 25 -6 -2001 vacated the interim order and by order dated 29 -6 -2001 dismissed the writ petition. It is further averred that certain persons claiming to be the devotees of Sri Shanidevara Temple, at the instance of Respondents -6 to 8, filed a suit in O.S. No. 5360/2001. The Petitioner and others were Defendants in the said suit. The order of temporary injunction was granted by the Civil Court by order dated 23 -3 -2002. The Petitioner and others filed M.F.A. No. 3669/2002 before this Court and this Court, by order dated 28 -7 -2005 allowed the said appeal and set aside the order of injunction granted by the Civil Court. Despite passing several orders by this Court and the Civil Court, BBMP and its officers, in collusion with Respondents -6 to 8 did not take any action for the eviction of unauthorised occupants. Thus, the Petitioner and others filed W.P. No. 12499/2008. This Court, by order dated 24 -10 -2008 directed the Respondents -1 to 3 to take appropriate action in accordance with law. Since Respondents -1 to 3 did not take any action, CCC No. 778/2009 was filed. Notice was issued in the said contempt case and the Commissioner of BBMP has filed an affidavit on 27 -11 -2009 stating that the jurisdictional officers of BBMP have removed the encroachment and have taken possession of 1771 sq.ft. land on 24 -11 -2009 and produced the report of the jurisdictional Engineer along with the sketch. It is averred that averments made by the Commissioner of the first Respondent was factually incorrect and false. Since the averments made in the affidavit of the Commissioner of the first Respondent was seriously disputed, an Advocate was appointed as a Court Commissioner to visit the spot and to submit a report to this Court. The Advocate Commissioner submitted his report and thereafter an affidavit was filed by Dr. K H Govindaraj, the Special Commissioner and Commissioner incharge of BBMP (first Respondent) on 17 -2 -2010 stating that a local committee constituted by the public has appointed a new Archak by name G.S. Chandrashekar @ Chandrasekhara Shastry and as per the statement of the members of the newly constituted committee, he is not related to Respondents -6 to 8. In the said contempt proceedings, Sri Bharathlal Meena, Commissioner of the first Respondent filed a false affidavit stating that existing temple was handed over to the Corporation and further stated that the BBMP has removed the encroachment and taken possession of 1771 sq.ft. of land. It is averred that the statements made by Sri Bharathlal Meena and Dr. K H Govindaraj are totally false and misleading and such statements are made to get over the contempt proceedings and to help the persons who have grabbed the valuable property. It is further avered that there was and is no temple. They are all newly put up by using wooden poles and asbestos sheets leaning towards the walls of the adjoining buildings with temporary structures where certain idols have been placed to make it appear as temple.