Karnataka High Court
M. Ramachandra vs Deputy Commissioner (Land ... on 9 March, 1998
Equivalent citations: 1998(4)KARLJ464, 1998 A I H C 3789, (1998) 4 KANT LJ 464
ORDER
1. This writ petition is directed against the order dated 15th September, 1997, passed by Smt. Shoba Nambisan, Divisional Commissioner, Bangalore Division, whereby, the Divisional Commissioner has dismissed the Revision No. MUN(1) CR. 68 of 1996-97, filed by the petitioner and has maintained the order of the Competent Authority dated 3rd October, 1996.
The petitioner has sought the issuance of a writ of certiorari for quashing of the order passed by the 3rd respondent, namely, the Divisional Commissioner, Bangalore Division, Bangalore, in Case No. MUN(1) CR. 68 of 1996-97, dated 15-9-1997, copy of which has been annexed as Annexure-A. Petitioner has further sought the relief of writ of mandamus or writ order in the nature of writ of mandamus directing respondents 1 and 2 to the petition, namely, Deputy Commissioner (Land Acquisition), Bangalore Development Authority, as well as the Screening Committee of the Bangalore District represented by the Commissioner of the B.D.A., Bangalore, to regularise the construction put up by the petitioner in the property in question, namely, property No. 5/3-A, Yellukunte Village, Bangalore, as well as for the grant or issue of such order or direction as this Court deems fit.
2. The petitioner's case is that petitioner has been the absolute owner of the property in dispute bearing S. No. 5/3-A in Yellukunte Village, Begur Hobli, Bangalore. Petitioner claims that property to have been acquired by inheritance and according to him, a house was built long ago in which petitioner has been residing. Petitioner's case is that the house for the residential purpose had been constructed in the year 1983. The petitioner has further alleged that the said property was notified for acquisition by the Bangalore Development Authority by publication of preliminary notification in 1986. The final notification had been issued in 1988. The petitioner's case is, no doubt, that he challenged the acquisition proceedings in a writ petition and that writ petition was dismissed upholding the acquisition proceedings, but reserving liberty to approach respondents 1 and 2 seeking regularisation of the construction the petitioner had put up on the land in question, in accordance with the law. Petitioner's further case is that petitioner made an application for regularisation of the construction which was put up on the land which had been the subject-matter of acquisition.
During the pendency of the application for consideration, and for regularisation, Officers of the B.D.A. tried to demolish those constructions, the petitioner filed the Writ Petition No. 18440 of 1994 which was allowed by this Court vide the order dated 3-8-1994, by which order, the B.D.A. officials were directed not to resort to any act of demolition of the existing structure in the property in question until the disposal of the petitioner's application for regularisation of the same. Petitioner's case is that the B.D.A. has allotted the property in question in favour of a prospective allottee and who had attempted to demolish the existing structures. Petitioner had to file the civil suit for injunction and prayed for grant of temporary injunction, but the Civil Court declined to grant temporary injunction and a Miscellaneous First Appeal was filed before this Court, but this Court dismissed that appeal as well. Petitioner finding no alternative remedy available, except for seeking writ of mandamus against respondents 1 and 2, for disposing of that application for regularisation and for any other relief, filed the petition under Article 226, namely Writ Petition No. 7567 of 1996 which writ petition was dismissed by this Court by its judgment and order, dated 3-6-1996. This Court dismissed it taking the view that the property having been acquired by the B.D.A., petitioner cannot have any manner of right and interest over the same and therefore, not entitled to the relief. The writ petition having been dismissed, the petitioner had filed a Writ Appeal No. 6752 of 1996. According to the petitioner, the Division Bench was of the view that the petitioner can approach respondents 1 and 2, for taking up his application for regularisation of construction and there was no need to interfere with the matter. Thus, the petitioner, who was appellant in that writ appeal was allowed to withdraw the appeal and liberty was reserved to prosecute the application with the respondents 1 and 2, for regularisation.
According to petitioner, respondent 1, by order dated 30-1-1996, rejected the petitioner's application for regularisation after having taken the view that application of the petitioner comes under Section 4(viii) of the Karnataka Regularisation of Unauthorised Constructions in Urban Areas Act, 1991, for short 'the Act' and therefore, the petitioner's request could not be considered by the respondent 1.
3. Petitioner felt aggrieved from the order dated 13-6-1996 and preferred a revision under Section 8(a) of the Act.
As mentioned earlier, the Revisional Authority after having considered the matter and particularly taking in view the decision of this Court dated 3-6-1996, dismissed the revision taking the view that this Hon'ble High Court has specifically stated that the petitioner had no right, title or interest in the property and was not entitled for regularisation.
4. Feeling aggrieved from the order of the Revisional Authority, the petitioner has come up before this Court under Article 226 of the Constitution of India.
5. I have heard Sri M.S. Varadarajan, learned Counsel for the petitioner and Sri Sampath Ananda Shetty, learned Counsel for respondents 1 and 2 and the learned Government Pleader Sri M.H. Ibrahim, for respondent 3.
6. It has been contended by the learned Counsel for the petitioner that the respondent 3, the Divisional Commissioner acted illegally in dismissing the revision and confirming the order of the respondent 1, taking the view that this was a case covered by Section 4(viii) of the Act of 1991. Learned Counsel contended that the petitioner had been entitled to seek regularisation under Section 3, clauses (ii) and (iii). That the earlier decision of this Court is also binding on the petitioner, where, it has been held that once the property had been acquired, petitioner had no right left, but to approach the authorities for regularisation, so also the Division Bench held in the writ appeal.
7. I have applied my mind to the respective contentions made by the learned Counsels. It has to be taken note of the admitted fact between the parties that land originally belonged to the petitioner. There is no dispute that the construction was put on the land in question sometimes in 1983 or so. There is no dispute between the parties that acquisition proceedings had taken place by publication in the preliminary notification in the year 1986 and that final notification was passed in the year 1988. So, the property had been acquired in the present case during the period between 1986 and 1988. The question before the Court is: Whether petitioner had been entitled to seek regularisation and was illegally deprived of it or not. It has to be taken note of that the Act, that is, the Karnataka Regularisation of Unauthorised Constructions in Urban Areas Act, 1991, received the assent of the Governor on 4th of November, 1991 and it was published in the Gazette, Extraordinary, on 8th November, 1991.
8. Sub-section (2) of Section 1 of the Act provides that:
"It shall come into force on such date as the State Government may by notification appoint. The Government of Karnataka appointed 1st August, 1992, as the date on which the Act shall come into force".
Thus, reading sub-section (2) of Section 1 of the Act along with the notification, it comes out that the Act came into operation with effect from 1st of August, 1992.
9. Section 3 of the Act deals with the question of regularisation which reads as under:
"Regularisation.--Notwithstanding anything contained in any law, but subject to such rules as may be prescribed, any unauthorised construction made in any urban area, except those specified in Section 4, made prior to the Thirty First day of March, 1990, by any person, on land.--
(i) belonging to the State Government, or
(ii) which is a revenue site owned by him, or
(iii) belonging to him which is proposed to be acquired in connection with any development scheme of an Authority, in relation to which a notification under the Bangalore Development Authority Act, 1976, or under Section 17 of the Karnataka Urban Development Authorities Act, 1987, or under Section 15 of the Karnataka Improvement Boards Act, 1976, is published and which has not yet vested in favour of any authority for which the acquisition is proposed.
May, on the application of such person made within sixty days of the commencement of this Act, be regularised in accordance with the provisions of this Act.
10. Section 4 is also material. Section 4 of the Act reads as under:
"Section 4.--Unauthorised constructions which shall not be regularised.--The following unauthorised constructions shall not be regularised.--
(i) unauthorised constructions coming in the way of existing or proposed roads and railway lines, communications and other civic facilities or public utilities;
(ii) unauthorised construction or any portion thereof falling within the required set off, if any, from roads, railway lines, communications and other civil facilities or public utilities, under the rules, bye-laws or regulations governing buildings;
(iii) unauthorised constructions made in forest land or on tank bed;
(iv) unauthorised constructions made in the area specified as green belt in the comprehensive development plan or outline development plan prepared under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963) or declared as green belt under sub-section (3-A) of Section 95 of the Karnataka Land Revenue Act, 1964 (Karnataka Act 12 of 1964);
(v) unauthorised constructions made by any person on the land belonging to another person over which former has no title,
(vi) unauthorised constructions having more than two floors including ground floor;
(vii) unauthorised constructions made in violation of Urban (Land Ceiling and Regulations) Act, 1976 (Central Act 33 of 1976);
(viii) unauthorised constructions made on the land belonging to or vested in any Authority or a local authority;
(ix) unauthorised constructions on any land reserved for parks, play grounds, open places or for providing any civic amenities".
A reading of Section 3 per se reveals that any unauthorised constructions made in any urban area (excluding those constructions specified in Section 4) prior to 31st of December, 1990, by any person on any land either belonging to the Government or on the land which is a revenue site owned by the person, who had made the unauthorised constructions or in cases, where the constructions had been made prior to 4th of March, 1990, the site belonged to the owner of the building, but it is proposed to be acquired in connection with the Development Scheme in relation to which notification under the B.D.A. Act, 1976 or under Section 17 of the Karnataka Urban Development Authorities Act or Section 15 of the Karnataka Improvement Boards Act has been published and the land has not till the date of coming into force of the Act vested in the authority for which it has been proposed to be acquired, the authority may on the application made by such persons, that is, the person who has made the unauthorised constructions to regularise the constructions in accordance with the provisions of the Act, provided the application had been made within 60 days from the date of commencement of this Act, that is, within 60 days from the 1st of August, 1992.
11. Thus, for application of Section 3, the following conditions have to be established:
That unauthorised constructions should have been made in the Urban Area (a) prior to 31st of March, 1990, (b) on the land which comes under either of the three categories, either the land is one belonging to State Government or be the land is a revenue site owned by the person constructing the building or that the land must be belonging to the person making an unauthorised construction, but that land is proposed to have been acquired in connection with the Development Scheme, notification for which had already been published, but the land had not been vested in favour of any authority for which it had been or proposed to acquired on the date of the coming into force of the Act, that is, Act No. 29 of 1991. It is then in such cases, the authority has been given power to regularise the unauthorised construction subject to the applicant or owner of the unauthorised construction making the application within the time before 1-10-1994. Another condition is that the unauthorised construction should not be of the nature which is covered by Section 4. If there is an unauthorised construction and the nature of construction is as referred in Section 4, then Section 3 will not apply and authorities have no jurisdiction to regularise it, because Section 4 per se in clear terms says that the unauthorised constructions referred in Section 4 shall not be regularised, the negative mandate is there, that those constructions ought not to be regularised. Keeping these principles and whether petitioner's case is covered by Section 3 or not is the point in issue.
12. In the present case as mentioned earlier, acquisition had been completed by final notification being published in 1988. The preliminary notification had been published in 1986 and on a publication of the final notification in the case, the property acquired had vested in the authority. The Section 3 says 'that which has not yet vested in favour of any authority'. The expression 'yet' used in the Section is per se indicative of legislative intent and it means that it has not been vested in favour of the authority for which it had been acquired on the date of enforcement of the Act, 'yet' refers the date on which the Act had come into force, namely, on 1-8-1992. In my opinion, as such in view of the acquisition proceedings, the property had been acquired on which the construction belonging to the petitioner, existed and it stood vested in the authority in 1988, that is, earlier to 1-8-1992. Section 3(iii) as such, could not apply to the petitioner. Section 3, clause (ii) also could not apply. Clause (ii) is applicable where the constructions are made is on the land which is revenue site did belong to the owner of the building and owner of the building has right in that site, as also a resident of that site, but once the land had been acquired, the revenue site could not be deemed to be belonging to the petitioner after 1988.
As such, in this view of the matter as on 1-8-1992, it cannot be held that the petitioner was the owner of the site, really the property i.e., land had vested in the State Government and the B.D.A. Section 4 as mentioned earlier, provides that unauthorised constructions shall not be regularised which are covered under clauses (i) to (ix) of that section. Section 4 read with clause (viii) provides that unauthorised constructions made on the land belonging to or vested in any authority or a local authority shall not be regularised. In this case construction had been put on the land which land had vested in the B.D.A., that is, the Bangalore Development Authority, as such, in view of Section 3 read with Section 4 of the Act in my opinion the petitioner did not have any right to move application for regularisation and the unauthorised construction could not be regularised in view of Section 4(viii).
13. The respondents 1 and 2, have rightly rejected the petitioner's prayer for regularisation and the Revisional Authority, that is, the Divisional Commissioner, in my opinion, as well did not commit any error of law apparent on the face of the record nor of jurisdiction. Therefore, this petition being devoid of merits, it is liable to be dismissed and is dismissed, subject to undermentioned observations.
The authorities may proceed with their actions, if they want to demolish, but according to law and after giving a reasonable notice to the petitioners in this regard and to vacate the premises within reasonable time and in every case not less than two weeks time to vacate the premises shall be given.
14. With the above observations, this writ petition is disposed of as dismissed.