K A PRABHAKAR Vs. BANGALORE DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) HEARD the learned Counsel for the petitioner Sri Subhash B. Adi as well as Sri N. K. Patil for respondent 1, Sri T. S. Ramachandra for respondent 2 and Sri M. Shivappa for respondent 3, in the writ petition.

(2.) BY this petition, the petitioner has sought the issuance of writ of prohibition or writ or order, in the nature of writ of prohibition, prohibiting respondent 1 from according sanction for conversion of the road into a site existing in between Site Nos. 10 and 11, in the layout as recommended by the Assistant Executive Engineer, as per Annexure-C to the writ petition. The petitioner has further prayed for issuance of writ of mandamus directing respondent 1 namely the Bangalore Development authority, to demolish any construction or Civil Works that may have been taken up in the disputed Site No. 10-A, by respondent 3 to the writ petition and to retain Site No. 10-A in its existing position as a road for the use of the petitioner as well as other persons in the locality. He prayed for grant of any other relief as this Court deems fit.

(3.) THE facts of the case in nutshell are that the petitioner as per his allegations purchased site bearing No. 11, from respondent 2 that is shree Vinayaka Gruha Nirmana Sahakara Sangha Niyamitha, in Vinayaka Layout, which had been duly approved vide, Resolution of 1150, dated 1-8-1973, by the Bangalore Development Authority. The petitioner's case is he had purchased the site in auction conducted by respondent-society, amongst its members and the said site is the corner site as per boundaries given in the deed as well as in the petition. Eastern and Northern boundaries have been described in the deed as the road, while on the Western side or Western boundary is depicted by civic amenities portion; and Southern boundary is depicted as Site No. 12. According to petitioner's case, he has built a residential house on the said site, referred to above, in the year 1985 and has been residing therein. Petitioner further averred that in the year 1990, the society, which is respondent 2, illegally converted the road which was situated between Site Nos. 10 and 11, as a site and assigned Number 10-A and allotted it in favour of respondent 3 to the writ petition and the sale deed was executed and registered on 23-4-1990 in favour of respondent 3. Petitioner's case is that respondent 3 attempted to construct his house on said land namely Site No. 10-A, which was said to be road at one time. Petitioner's case is that road was formed under Comprehensive development Plan, approved by the then City Improvement Trust board, the predecessor in title of the Bangalore Development Authority. Petitioner's case is that the said road was used for the benefit of public and the petitioner. Petitioner has alleged that he raised a dispute before respondent 4, numbered as ARB - 1 / MISC/ 1 / 90-91, against respondents 2 and 3, under Section 70 of the Karnataka Co-operative Societies Act, 1959, for the road having been according to the petitioner illegally converted into a site, without approval of the B. D. A. , and for its having been allotted in favour of respondent 3, who was the Assistant Engineer, incharge of the layout from the BDA. Petitioner's case is that he moved an application also for interim order in the nature of injunction restraining respondents 2 and 3 to proceed with construction, which application was dismissed on 13-6-1990 by respondent 4 to the writ petition, namely assistant Registrar, Co-operative Societies, Bangalore. Petitioner's case is, that thereafter he filed revision against the order of respondent 4, before the Tribunal, which was numbered as Revision Petition No. 46 of 1990. Petitioner's case in the aforesaid revision, a note was stated to have been sent by Executive Engineer, No. 3 Sub-Division (West), BDA complex, Vijayanagar, Bangalore to respondent 1, recommending the approval of the Site No. 10-A which was allotted to another BDA Engineer, Copy of that letter of the petitioner is annexed as Annexure-C to the writ petition. Petitioner's case is that vide. , order dated 26th March, 1991, in view of the undertaking given by respondent 3 that he would not proceed with the construction till the disposal of the dispute, diaposed of the application in accordance with law. Petitioner no doubt alleged to have sent a representation and appeal to respondent 1 on 21-6-1990, with a prayer not to accord sanction to illegal conversion of the road into site which was duly allotted to its Engineer. According to the petitioner, respondent 4 after the objections had been filed by respondents 2 and 3 to the petition, contending that the dispute is not maintainable in view of the fact that the dispute has been raised by two petitioners jointly and further on the ground that the petitioners are seeking easementary rights, so the dispute was not maintainable, dismissed the dispute vide, order dated 29th May, 1993, as not maintainable. The petitioner preferred revision before the Karnataka Appellate tribunal, namely Revision Petition No. 60 of 1993, and after oral observation made by the Tribunal as per petitioner's case that revision was not maintainable and did not lie from the order of respondent 4, the petitioner filed this petition in this Court, alleging that there is no alternative remedy available.