Karnataka High Court
Sri Nagendra N H vs The Principal Secretary on 18 March, 2013
Bench: Chief Justice, B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF MARCH 2013
PRESENT
THE HON' BLE MR.D.H.WAGHELA, CHIEF JUSTICE
AND
THE HON' BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION NOS.2581-2585/2012 (GM-RES-PIL)
BETWEEN
1. SRI NAGENDRA N H,
S/O LATE H HANUMAIAH,
AGED ABOUT 46 YEARS,
R/A NO.53/A, 3RD CROSS,
5TH MAIN ROAD,
PRAMODA LAYOUT,
PANTHARAPALYA,
BANGALORE-560039.
2. SRI HARISH KUMAR B,
S/O LATE B S BYRASHETTY,
AGED ABOUT 32 YEARS,
R/A NO.25/A, 5TH MAIN ROAD,
PRAMODA LAYOUT,
BANGALORE-560039.
3. SRI CHIKKAVEEREGOWDA,
S/O SRI KODY GOWDA,
AGED ABOUT 49 YEARS,
R/A NO.311, 40 FEET ROAD,
6TH CROSS, PRAMODA LAYOUT,
BANGALORE-560039.
4. SRI RAMANNA,
S/O SRI MOODALAIAH,
AGED ABOUT 57 YEARS,
R/A NO.68/A, 2ND CROSS,
5TH MAIN ROAD,
2
PRAMODA LAYOUT,
BANGALORE-560039.
5. SRI B M PADMANABHA,
S/O SRI MUDDU MADAPPA,
AGED ABOUT 50 YEARS,
R/A NO.93, 4TH MAIN,
GANGA NILAYA,
PRAMODA LAYOUT,
BANGALORE-560039.
... PETITIONERS
(BY SRI N.R.NAGARAJ, ADV., FOR
M/S.N.R.NAGARAJ & ASSOCIATES, ADVS.,)
AND
1. THE PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE,
KARNATAKA GOVERNMENT SECRETARIAT,
M.S.BUILDING, BANGALORE-560001.
2. THE COMMISSIONER,
BRUHAT BANGALORE MAHANAGARA PALIKE,
N.R.SQUARE, BANGALORE-560002.
3. SRI M SRINIVAS,
S/O SRI MUNISWAMAPPA,
AGED ABOUT 70 YEARS,
MLA & THE PRESIDENT,
ASHRAYA SCHEME,
R/A NO.8, 4TH CROSS, 7TH BLOCK,
JAYANAGAR, BANGALORE-560082.
4. THE LAKE DEVELOPMENT AUTHORITY,
2ND FLOOR, PARISARA BHAVAN, NO.49,
CHURCH STREET, BANGALORE-560001.
(R-4 IMPLEADED V/O DATED 30.01.2013)
... RESPONDENTS
(BY SRI R.DEVDAS, AGA FOR R-1;
SRI B.V.MURALIDHAR, ADV., FOR R-2;
SRI D.R.RAVISHANKAR, ADV., FOR
M/S.LEX NEXUS, ADVS., FOR R-3;
SRI H.S.SACHIDANANDA, ADV., FOR R-4)
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THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUION OF INDIA
PRAYING TO DIRECT RESPONDENT NO.1 HEREIN TO
WITHDRAW THE DELIVERY OF SY.NO.59 THAT HAS
BEEN MADE TO RESPONDENT NO.2 BY THE SPECIAL
DEPUTY COMMISSIONER IN TERMS OF ANNEXURE-H &
ETC.,
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, NAGARATHNA .J
MADE THE FOLLOWING:
ORDER
1. In these writ petitions, which are sought to be filed by way of public interest litigation, the petitioners have assailed Annexure-H, which is a communication dated 16.07.2011 made by the Joint Secretary, Revenue Department to the Special Deputy Commissioner, Bangalore Urban District, Bangalore. By the said communication, the Revenue Department has stated that the land in question i.e., the Government land in Survey No.59 of Pantharapalya Village, Bangalore South Taluk, has been reserved for Ashraya Project and that approval has been granted to handover the said land to the BBMP for the purpose of the said project.
2. It is the case of the petitioners, who are said to be the residents of Pramoda Layout, that the land in question in Survey No.59 measuring 2 acres, but now measuring only 1 4 acre 24 guntas, is a tank as shown in the village map. That the Lake Development Authority of the Government of Karnataka has listed the said tank in the Government records under the name 'Pantharapalya Lake'. That the 3rd respondent, who is the representative of the people and a Member of the Legislative Assembly, has moved the State Government to form a residential layout under Ashraya Scheme for economically weaker sections of the society and at his instance, a letter dated 16.07.2011 was addressed to the Special Deputy Commissioner, Bangalore Urban District, Bangalore, to handover the said land for the purpose of Ashraya Project. That the residents of the Pramoda Layout are aggrieved by this as there is encroachment of the tank and the tank itself would now cease to exist on account of formation of the Ashraya Scheme. Aggrieved by the illegal and unlawful act of the respondents herein in encroaching upon the tank area in Pantharapalya Village, which is sought to be used as a residential area, these writ petitions have been filed.
3. The writ petitions have been countered by the statement of objections filed by respondent No.2/BBMP. In its statement of objections, it is contended that Survey 5 No.59 of Pantharapalya Village was originally a tank, but it has ceased to be a tank. That the State Government has granted permission for transferring the land to the BBMP for the purpose of Ashraya Scheme, as per the letter dated 16.07.2011 of the Joint Secretary, Revenue Department to the Special Deputy Commissioner, Bangalore Urban District. That subsequently, by an order dated 17.10.2011, the Deputy Commissioner had directed the Tahsildar, Bangalore South Taluk, to transfer the said land to the BBMP for the purpose of Ashraya Scheme with certain conditions. That Ashraya Committee has issued 'Hakku Patras' to certain eligible persons, who belong to economically weaker section for the purpose of housing facility. Since the land in question is ceased to be a tank, the State Government, in its wisdom, thought it fit to use the same for Ashraya Project and on that premise, the BBMP has come into possession of the land in question and therefore, there is no illegality in reserving the said land for the purpose of Ashraya Project.
4. The Lake Development Authority, which has been impleaded subsequently as respondent No.4, has filed its Status Report regarding the tank in question. 6
5. We have heard learned counsel for the parties and perused the material on record.
6. It is contended on behalf of the petitioners that Survey No.59 was originally a Government tank and subsequently, it has been reduced to a pond. Therefore, it was the duty on the part of the respondent/authorities to have maintained the said pond and even if there is no collection of water in the said pond, then the lake bed area must be maintained as a tree park. In the instant case, the said area is being utilized for Ashraya Scheme thereby there is diversion of the user of the tank bed which is illegal. Learned counsel for the petitioners therefore contended that the communication at Annexure-H may be quashed and the area be maintained as a tree park.
7. Countering the said arguments, learned counsel for the BBMP has drawn our attention to the statement of objections by stating that the order at Annexure-H dated 16.07.2011 categorically states that there is no such lake in existence in Survey No.59. Under such circumstances, the area has been transferred to the BBMP for utilization for a housing project and no fault can be found in this regard.
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8. Learned counsel for the Lake Development Authority, however, has stated that there was several communications written by the said authority to the BBMP for preservation of the said area as a tank.
9. Having heard learned counsel for the parties and on perusal of the material on record, we note that Annexure-H is a communication, which states that since 1992-93, the land in question has been reserved for Ashraya Project as it was found that there was no tank in existence and it was not listed with the Lake Development Authority as a tank. It is in that connection, a communication has been addressed from the Revenue Department to the Special Deputy Commissioner to transfer 2 acres 1 gunta of land in Survey No.59 of Pantharapalya Village to the BBMP for the purpose of Ashraya Project. The statement of objections, while referring to the said communication, also states that the Tahsildar has submitted a Report that no lake has been in existence since 1992-93 in Survey No.59. A copy of the order dated 17.10.2011 is also produced as Annexure-R.1 by the BBMP, as annexed to the statement of objections, wherein it is stated that on the Report of the Tahsildar and the order passed by the State Government, the Deputy 8 Commissioner in turn passed an order stating that the land in question shall be transferred to the BBMP and shall be utilized exclusively for Ashraya Scheme and necessary changes to that effect shall be made by the Tahsildar, Bangalore South Taluk.
10. That apart, in terms of the directions issued by this Court, the Lake Development Authority has carried out an inspection of the land in question. A copy of the Report is submitted in Court and the same is taken on record. The Lake Development Authority has inspected the land in question on 20.03.2012 and again on 01.02.2013. The recent inspection states that Survey No.59 measuring 2 acres 1 gunta is presently in the custody of BBMP. The BBMP has also erected a fence on the western and northern side leaving the southern and eastern sides to be fenced. The lake is presently land locked and all sources of water inlets have been cut off due to urbanization on all sides of the lake. That the formation of NICE road on the southern side at a height of 15 to 20 feet higher than that of the lake has resulted in totally cutting off any water source that may have reached the lake and rain water coming from the upstream side of the lake i.e., Rajakaluve 9 is being encroached and entry of rain water into the lake is completely stopped. That the bund of the lake which is on the western side is still intact and has been fenced by the BBMP, however, immediately adjoining the said bund towards northern side, there are constructions which have encroached upon the lake. According to the Lake Development Authority, the lake has lost all its characteristics and therefore, presently it cannot be restored back to its original form.
11. Taking into consideration the Report as submitted by the Lake Development Authority and there being no illegality or arbitrariness pointed out by learned counsel for the petitioners with regard to utilization of the land in question for the purpose of Ashraya Scheme, we find that there is no merit in these writ petitions.
12. That apart, the reliance placed by learned counsel for the petitioners in the case of J.M.NARAYANA AND OTHERS vs CORPORATION OF THE CITY OF BANGALORE, BY ITS COMMISSIONER OFFICE, BANGALORE AND OTHERS (ILR 2005 KAR 60) is wholly misplaced as it is stated therein that the provisions of the Land Revenue Act would cease to be applicable to such lands which are included in the 10 extended Corporation limits. In the instant case, it is not in dispute that the land in question is within the Corporation limits.
13. In that view of the matter, we find that the writ petitions are devoid of merit and are accordingly dismissed.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE bkv