Karnataka High Court
H Govindaraju vs The State Of Karnataka on 5 September, 2014
Equivalent citations: 2014 (4) AKR 398
Author: Dilip B.Bhosale
Bench: Dilip B Bhosale
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5th DAY OF SEPTEMBER 2014
BEFORE
THE HON'BLE MR. JUSTICE DILIP B BHOSALE
W.P.NO.58820/2013 (LB-RES)
BETWEEN
H GOVINDARAJU
SON OF LATE HANUMAIAH
AGED ABOUT 57 YEARS
RESIDING AT SURVEY NO.14/13
TAVAREKERE VILLAGE, BEGUR HOBLI
BANGALORE SOUTH TALUK
NOW ASSIGNED WITH CORPORATION
NO.90, 14TH MAIN, AICOBOO NAGAR
1ST STAGE, BTM LAYOUT
BANGALORE-560 068 ...PETITIONER
(BY SRI N MANOHAR, ADV.,)
AND
1. THE STATE OF KARNATAKA
BY URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA
BANGALORE 560 001
REPRESENTED BY ITS SECRETARY
2. BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST
T.CHOWDAIAH ROAD
BANGALORE 560 020
REPRESENTED BY ITS COMMISSIONER
3. BANK OFFICERS' CO-OPERATIVE HOUSING SOCIETY LTD
AICOBOO NAGAR, 9TH MAIN
2ND CROSS, 2ND STAGE
BANGALORE 560 076
REPRESENTED BY ITS SECRETARY
2
4. THE TAHASILDAR
BANGALORE SOUTH TALUK
BANGALORE 560 068 ... RESPONDENTS
(BY MRS NILOUFER AKBAR, AGA FOR R1 & 4;
SRI VENKATESHA DODDERI H, ADV., FOR R2; SRI P S RAJAGOPAL, SR. ADV., FOR M/S P S RAJAGOPAL ASSTS. FOR R3) THIS W.P. FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 TO CONSIDER THE APPLICATION MADE BY THE PETITIONER ON 29.12.1995 FOR REGULARIZATION OF UNAUTHORIZED CONSTRUCTION VIDE ANNEX-C AND ETC., THIS W.P. COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
PC:
Heard learned counsel for the petitioner, learned Senior counsel for respondent No.3, learned Government Advocate for respondents-1 and 4 and Mr.Venkatesha Dodderi, learned counsel for respondent No.2.
2. The petitioner, in the instant writ petition under Article 226 of the Constitution of India, seeks the following reliefs:
"(a) Issue a writ of mandamus directing the first respondent to consider the application made by the petitioner on 29.12.1995 for regularization of unauthorized construction;
vide Annexure 'C' 3
(b) Issue a writ in the nature of writ or appropriate direction to the first respondent to follow due procedure of law for the eviction of the petitioner in the event he is not entitled for regularization of unauthorized construction of the petition schedule property;
(c) Issue a direction by holding that the acquisition proceedings initiated under the provisions of Bangalore Development Authority act for the Scheme for the formation of Byrasandara Tavarekere- Madivala scheme has lapsed under section 27 of the BDA Act insofar as it relates to the petition schedule lands are concerned;"
3. The petitioner claim to be in possession of 20 guntas of land bearing Corporation No.90, 14th Main, AICOBOO Nagar, I Stage, BTM Layout, Bangalore 560 068, (old Sy.No.14/13, Tavarekere village, Begur Hobli, Bangalore South Taluk (for short "the said land"). Petitioner further claims that his father was a tenant in the said land under one Gaare Munivenkatappa. He states that in 1972 he entered into an unregistered agreement to sale and that is how he is in possession of the said land as its owner. Petitioner had filed O.S.No.16507/2005 seeking declaration that he is the owner of the said land and for injunction. The suit was decreed. Then the appeal filed by 4 respondent Nos.2 and 3 (bearing RFA NO.739/2012 and RFA No.1060/2011) was allowed and judgment of the trial Court was set-aside. The matter was then carried by the petitioner to the Supreme Court by way of S.L.P.. The S.L.P. also came to be dismissed. It is not in dispute that the said land, was a part and parcel of the land, owned by Gaare Munivenkatappa, measuring 2 Acres. Admittedly, the entire 2 Acres of land was acquired by BDA in 1978. Compensation was also paid to Gaare Munivenkatappa and possession was handed over to the BDA. It has also come on record that respondent No.3 had filed Writ Petition No.31183/2010 in this Court basically challenging conversion of the land measuring 2 acres 31 guntas consisting of the two acres of Gaare Munivenkatappa into residential use. It is true that the petitioner was not party to the said writ petition. This Court, while dealing with the challenge raised in the said writ petition, in paragraph-15 observed thus:
"15.........It is the duty of the BDA - a public statutory authority to protect is properties and not to either fritter it away or 5 surrender in favour of third parties when once it is clear that the land was conveyed and a part of this land is surrendered back to the BDA, there is no third party interest. It is the duty of the BDA to maintain the extent of 2 acres 31 guntas of land as a park in Sy.No.14/13. It is their bounden duty to get the disputes resolved before the Civil Court whether it is at the instance of any third party or at the instance of persons like the third respondent in this petition, who is claiming interest under a sale deed executed by a person claiming title under the original land owner, long after the subject land was notified for acquisition by state government for the benefit of BDA, to form a developmental scheme for the benefit of residents of Bangalore city and to ensure that the interest of the BDA is properly defended and the subject land maintained as a park."
(emphasis supplied) In this backdrop, the petitioner has filed the instant writ petition, in view of the liberty granted by this court while disposing of RFA No.739/2012 and RFA No.1060/2011 vide judgment and order dated 4th December 2013 to seek compensation on account of compulsory acquisition of the lands in question and to seek relief that the acquisition proceedings have lapsed. 6
5. In the instant writ petition, the petitioner is seeking direction to the respondents to consider his application dated 29-12-1995 seeking regularisation of unauthorized constructions over the said land measuring 20 guntas. The application is filed by the petitioner under the provisions of the Karnataka Regularisation of Unauthorised Construction in Urban Areas Act, 1991 (for short "Act of 1991").
6. Section 4 of the Act deals with unauthorized constructions which shall be not regularized. It provides, amongst other, that unauthorized constructions made on the land belonging to or vested in any authority or a Local Authority and unauthorized constructions on any land reserved for parks, playgrounds, open places or for providing any civic amenities shall not be regularized.
7. It is not in dispute and as admitted by the petitioner in the writ petition, the land was acquired by the BDA for development of Byrasandara Tavarekere- Madivala Scheme (BTM Scheme) and in 1978 itself, it was vested in 7 the BDA. Moreover, the said land is part of the park area, which is not in dispute. On this ground alone, the first prayer deserve to be rejected. Order accordingly.
8. Insofar as the second prayer is concerned, it is in dispute whether the petitioner is in possession and has made unauthorized constructions over the said land. In my opinion, the disputed questions of fact cannot be gone into and decided in writ jurisdiction under Article 226 of the Constitution of India. It is, however, made clear that if there is any unauthorized construction over the said land, the same shall be removed/demolished by following the due process of law. Thus, the second prayer is not entertained.
9. Lastly, the petitioner seeks declaration that the acquisition proceedings have lapsed. It has come on record that immediately after acquisition of the land in 1978, the scheme was implemented substantially and the land measuring 2 acres 31 guntas, including 2 acres of land belonging to Gaare Munivenktappa, was converted 8 into park. in view thereof, the scheme cannot be stated to have lapsed under Section 27 of the BDA Act. In the circumstances, the writ petition is dismissed.
Sd/-
JUDGE Ia