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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 21^ST DAY OF JUNE, 2021

BEFORE

THE HON'BLE MR.JUSTICE P.S. DINESH KUMAR

WRIT PETITION No.28465 OF 2018 (GM-CPC)

BETWEEN :

SMT. M. VASANTHAKUMARI

W/O SRI. C. GOPALAN

AGED ABOUT 62 YEARS

R/AT NO.153, 5^TH CROSS

1^ST BLOCK, SIDDAPUR

JAYANAGAR, BENGALURU-560 011.

REPRESENTED BY HER HUSBAND

AND POWER OF ATTORNEY HOLDER

SRI. C. GOPALAN &PETITIONER

(BY SHRI. G. KRISHNA MURTHY, SENIOR ADVOCATE FOR

SMT. N. APARNA, ADVOCATE)

AND :

1.

BRUHAT BANGALORE MAHANAGARA

PALIKE CORPORATION OFFICE

N.R.SQUARE

BENGALURU-560 002

REPRESENTED BY ITS COMMISSIONER

2.

THE JOINT COMMISSIONER

BRUHAT BENGALURU

MAHANAGARA PALIKE

RAJARAJESHWARINAGAR DIVISION

BENGALURU-560 098 ... RESPONDENTS

(BY SHRI. N.R. JAGADEESWARA, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE

CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED

23.06.2018 PASSED BY THE LXIV ADDL. CITY CIVIL AND SESSION

JUDGE,

(CCH-65),

BENGALURU

CITY,

IN

O.S.NO.6140/2016

ANNEXURE-A.

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING

IN 'B' GROUP, THROUGH VIDEO CONFERENCING, THIS DAY, THE

COURT MADE THE FOLLOWING:

ORDER

Petitioner is plaintiff in O.S. No.6140/2016 filed for a

declaration that plaintiff has not encroached upon any

portion of the Raja Kaluve. Respondents have contested

the suit by filing written statement.

2.

On 16.03.2018, defendants/respondents have

filed a Memo to refer the suit to Land Grabbing Court.

Learned Trial Judge has directed to transmit the entire

records of the suit to the Special Land Grabbing Court,

Kandhaya Bhavan, K.G.Road, Bengaluru. Hence, this writ

petition.

3.

Shri. Krishna Murthy, learned Senior Advocate for

petitioner, adverting to para 26 in Smt. Sunitha Vs. The

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State of Karnataka, rep., by its Chief Secretary and others¹,

submitted that in view of the law laid down by this Court,

only where a positive proceeding has been initiated against

the land grabber, such pending proceeding can be

transferred to Special Court. Para 26 of the said judgment

reads as follows:

"26. For an action to be initiated under the Act, there has to be

a positive action by the Authorities concerned. In that, there

has to be positive proceedings which are initiated against a land

grabber for an action of land grabbing. It is only those

proceedings which are pending before any Authority or Court

which are required to be transferred to the Special Court."

4.

The instant suit is filed by a private party against

BBMP for a declaration that she has not encroached the Raja

Kaluve. No positive action has been initiated by BBMP.

Further, as rightly pointed out by Shri. Krishnamurthy, in

the survey conducted during the pendency of the suit at the

instance of BBMP, as per the sketch prepared by the Survey

Department (Annexure-L), there is no encroachment.

1 ILR 2021 KAR 385

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5.

Shri. N.R. Jagadeeswara, learned Advocate for

respondents argued opposing the writ petition. However, to

a pointed query as to how he would substantiate, if any

positive action has been taken as stated in para 26 in

Sunitas case, learned Advocate in his usual fairness

submitted that in view of the law laid down by this Court

and he has nothing to say.

6.

In view of the above, this writ petition merits

consideration and it is accordingly allowed.

The order dated 23.06.2018 passed by the LXIV Addl.

City

Civil and

Sessions

Judge,

Bengaluru

City

vide

Annexure-A, is set-aside.

The Trial Court shall proceed further in accordance

with law.

No costs.

Sd/-

JUDGE

SPS