Karnataka HC Says BDA Officials Should Not Survey Disputed Property, Citing Agency’s Stake In The Suit

In brief

The question

1. Whether appointment of a Court Commissioner was warranted to determine the identity of the disputed property, or would impermissibly amount to collecting evidence for the plaintiffs.

The court held

The Court declined to interfere with the appointment of a commissioner but modified the trial court’s order as to the commissioner’s identity.

It also directed

The Assistant Director of Land Records having jurisdiction over the disputed area is to be appointed; the parties must place the officer’s particulars and proposed instructions before the trial court. A BDA officer is not to participate as a co-commissioner, and the commission must be executed and the report submitted within one month after the trial court issues its instructions.

The writ petition was disposed of accordingly.

01Facts

The suit concerns a claim for declaration and removal of structures allegedly erected by the petitioners on the suit property.

p. 3

The plaintiffs claimed Site No. 28 formed part of specified survey numbers in Bilekahalli Village and N.S. Palya Extension; the petitioners maintained that their property was part of Survey No. 172/5, Bilekahalli Village.

pp. 3, 5–6

The trial court allowed the plaintiffs’ application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC), and appointed a Court Commissioner. The petitioners challenged that order under Article 227, arguing that a commission would improperly collect evidence and was premature.

pp. 3–4

02Issues

i.1. Whether appointment of a Court Commissioner was warranted to determine the identity of the disputed property, or would impermissibly amount to collecting evidence for the plaintiffs.

pp. 3–4, 5–6

ii.2. Whether a BDA official should conduct the commission, or whether an independent officer should be appointed given the BDA’s interest in the suit’s outcome.

pp. 4–5, 7–8

03Law Applied

Order XXVI Rule 9 CPC permits the court to appoint a commissioner for local investigation where it considers such investigation necessary or proper to elucidate a matter in dispute.

The Court relied on the coordinate Bench decision in Shadaksharappa v. Kumari Vijayalaxmi and Others, W.P. No. 201274/2022, dated 24 January 2023, for the principle that a commission during trial is desirable where property identity or the extent of encroachment is central to the dispute; the report assists the court, while parties may object to it and, if necessary, cross-examine the commissioner.

p. 6

A commissioner’s appointment should assist the court impartially and should not be used to delay proceedings.

pp. 7–8

04Reasoning

The identity of the suit property was a principal dispute: the plaintiffs relied on survey numbers different from the petitioners’ asserted Survey No. 172/5. The Court therefore found a local investigation necessary to assist adjudication, rather than treating the appointment as impermissible evidence-gathering.

pp. 5–6

However, because the plaintiffs claimed through BDA acquisition, layout formation and allotment, and might pursue remedies against the BDA if the property could not be identified, the BDA had an interest in the suit’s outcome. Appointing its officer could create an apprehension of bias; accordingly, the Assistant Director of Land Records with jurisdiction over Bengaluru South Taluk was considered the appropriate commissioner.

pp. 7–8