Karnataka High Court
Sri A Ajayan vs The Commissioner Bengaluru ... on 17 December, 2021
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.22803/2021 (BDA)
BETWEEN:
1. SRI GURUPRASAD BUDAVARTHI
S/O LATE VENKOBACHAR
AGED ABOUT 43 YEARS.
2. SRI VEERENDRA REDDY VENNAPUSA
S/O SRI V.C. VEERA REDDY
AGED ABOUT 44 YEARS.
BOTH ARE R/AT SITE NUMBER 3
BBMP KATHA NO.39/424/412/
67/5/68/2/3
(OLD KATHA NO.220/67/5/68/2
NEW PID NO.191-W0058-27
WARD NO.191, BOMMANAHALLI
BENGALURU-62.
...PETITIONERS
(BY SRI RAMESH KUMAR R.V., ADV.)
AND:
1. THE CHIEF COMMISSIONER
BBMP, HUDSON CIRCLE
BENGALURU-560001.
2. THE ZONAL COMMISSIONER
BBMP
2
BOMMANAHALLI ZONE
BEGUR ROAD
BENGALURU-560 068.
3. THE COMMISSIONER
BENGALURU DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD
KUMARA PARK WEST
BENGALURU-560020.
4. THE ASSISTANT EXECUTIVE ENGINEER
EAST SUB DIVISION-3
BENGALURU DEVELOPMENT AUTHORITY
CHOWDAIAH ROAD
KUMARA PARK WEST
BENGALURU-560020.
...RESPONDENTS
(BY SRI M A SUBRAMANI, ADV. FOR R1 & R2
SRI K KRISHNA, ADV. FOR R3 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED NOTICE/ORDER DATED 01.12.2021 VIDE
ANNEXURE-A ISSUED BY THE R4, THEREBY
ORDERING/DIRECTING REMOVAL OF ALLEGED
UNAUTHORIZED CONSTRUCTION OF THE RESIDENTIAL
BUILDING FORMED IN SURVERY NUMBER 67/5 AND 68/2, OF
SINGASANDRA VILLAGE, BENGALURU, FORMED BY SUPREME
DEVELOPERS, IN SO FAR AS THE PETITIONERS ARE
CONCERNED.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
The petitioners, claiming to be the owners in possession of schedule property bearing No.3, formed in land bearing Sy.Nos.67/5 and Sy.No.68/2 are before this Court under Article 226 of the Constitution of India, praying for a writ of certiorari to quash the notice bearing No.¨ÉAC¥Áæ/PÁC/¥ÀƪÀð/422/2021-22 dated 01.12.2021 (Annexure-a), directing petitioners to vacate unauthorized occupation of the schedule land.
2. Heard learned Counsel Sri.Ramesh Kumar R.V. for petitioners; learned counsel Sri.M.A.Subramani for respondents No.1 and 2 and Sri.K.Krishna, learned counsel for respondents No.3 and 4.
3. Learned counsel for the petitioners submits that the petitioners are in joint possession and enjoyment of the schedule property to an extent of 3040 Sq. ft. having acquired under registered sale deed dated 23.11.2012 4 (Annexure-B). It is submitted that Site No.3, petition schedule property is formed in Sy.Nos.67/5 and 68/2 of Singasandra village, Begur Hobli, Bangalore South Taluk, Bangalore. The petitioners, on obtaining licence have constructed residential premises and are in actual possession and enjoyment.
4. Learned Counsel for the petitioners would invite attention of this Court to the order passed by Division Bench of this Court in a public interest litigation in W.P.No.9666/2021, wherein this Court directed the BDA to clear the encroachment made by the Aircraft Employees House Building Co-operative Society Limited in accordance with law and hand over the parks to BBMP. It is stated that the subject matter of above stated public interest litigation is Sy.No.74/2 of Singasandra village. In the guise of implementing the said order of the Division Bench, the respondent-BDA issued the impugned notice dated 01.12.2021. Learned counsel would contend that no notice 5 was issued prior to issuance of impugned notice which is in the nature of direction. No proceedings or action in accordance with law is initiated before directing the petitioners to vacate from the schedule land alleging unauthorized occupation.
5. Learned counsel Sri.K.Krishna appearing on behalf of respondent-BDA submits that the impugned notice was issued in pursuance of the order of the Division Bench dated 02.09.2021 in W.P.No.9666/2021. It is his submission that the schedule lands fall in Sy.Nos.67/5 and 68/2 and the land of the petitioners also fall under encroached portion of the aforesaid Society. Thus, he justifies the impugned notice.
6. The petitioners claim that they are the owners in joint possession of the schedule property to an extent of 3040 Sq. ft. in Sy.Nos.67/5 and 68/2 under registered sale deed dated 23.11.2012 (Annexure-B). The Division Bench of this Court in a public interest litigation filed against the State as well as 6 3rd respondent herein alleging encroachment of parks and other civic amenity sites passed the following order:
"3. In the considered opinion of this Court as the fact has been admitted in respect of encroachment, the encroachments are certainly required to be removed immediately making the parks available to a common man. At this stage, the Respondent No.5 Housing Co-operative Society has stated before this Court that they have relinquished the park area to the BDA and Relinquishment Deeds have been executed in favour of BDA in the year 2001 and 2008 and there is no encroachment by them. This Court, after careful consideration of the report submitted by the Respondent No.3-BDA is of the opinion that all encroachments/illegal constructions are required to be removed forthwith and after removing the encroachments, the parks should be handed over to BBMP, if they fall within the territorial jurisdiction of BBMP as they are required to be maintained by BBMP, after they are handed over to them.
4. Resultantly, the third respondent is directed to remove all the encroachments and to file 7 a compliance report before this Court within a period of sixty days from today.
5. It is made clear that the BDA shall take appropriate action for removing the encroachment in accordance with law and thereafter shall hand over the parks to BBMP as stated above."
A reading of the above order makes it abundantly clear that this Court directed the BDA to take appropriate action for removing the encroachment in accordance with law. The BDA, before issuing the impugned notice dated 01.12.2021 (Annexure-A) which is in the nature of order or direction directing the petitioners to vacate the land and building in question alleging the same as unauthorized and before coming to the said conclusion, has not initiated any proceedings in accordance with law, as directed by the Division Bench of this Court. No show cause notice was issued affording an opportunity to the petitioners to have their say on its occupation or possession. The impugned notice, even though styled as notice, it is not in the nature of 8 notice, but it is an order. Therefore, I am of the view that without going into the merits of the case, it would be appropriate at this stage to direct the parties to treat the notice under challenge dated 01.12.2021 as show-cause notice with an opportunity to the petitioners to file objections, within two weeks from today and thereafter to direct the respondent-BDA to pass appropriate order after hearing the petitioners. The petitioners shall appear before the Executive Engineer, East Division, BDA on 05.01.2022. Hence, the following order:
(i) Notice bearing No.¨ÉAC¥Áæ/PÁC/¥ÀƪÀð/422/2021-
/422/2021-22 dated 01.12.2021 (Annexure-B) is read down as show cause notice. The petitioners are granted 15 days time from today to file objections and to file necessary documents. The petitioners shall appear before the Executive Engineer, East Division, BDA on 05.01.2022 at 3.00 p.m., without expecting any notice.
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(ii) The Executive Engineer, East Division, BDA is directed to conclude the proceedings within 15 days thereafter by passing appropriate order in accordance with law in the light of the order of the Division Bench in W.P.No.9666/2021 dated.29.11.2021.
(iii) Till the Executive Engineer, East Division, BDA passes order as directed above, parties to maintain status-quo with regard to possession and nature of schedule property as on this day. With the above, the writ petition stands disposed of.
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JUDGE mpk/-* CT:bms