Disposed

Sri Venkatesha M v. the Chairman

Karnataka HC10 Nov 2021WP/5633/2021

Case brief

AI extract

What is this about?

The High Court directed the Bangalore Development Authority to remove illegal constructions on civic amenity sites and secure transfer of those areas via relinquishment deeds under Revised Master Plan 2015, completing the task in three months instead of the respondent's six-month request.

What did the court decide?

Direction to remove encroachments on civic amenity sites within three months and secure transfer of areas under registered relinquishment deeds.

Sri Venkatesha M Vs the Chairman — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF NOVEMBER, 2021

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PRESENT

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THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.5633 OF 2021 (BDA-PIL)

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BETWEEN:

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SRI VENKATESHA M S/O DODDAMUNIYAPPA, AGED ABOUT 45 YEARS, LAKSHMI NIVASAM, NO.7, FLAT NO.G1, 10^TH CROSS, 100 FEET BDA ROAD, CHARIMAN LAYOUT, BANASWADI, BANGALORE-560043

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...PETITIONER

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(BY SRI.SAILESH S KATAREY, ADVOCATE)

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AND:

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THE CHAIRMAN, BANGALORE DEVELOPMENT AUTHORITY KUMARA PARK WEST, T CHOWDAIAH ROAD, BENGALURU-560001

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THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK WEST, T CHOWDAIAH ROAD, BANGALORE-560001

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THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, NR ROAD, BANGALORE-560009

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THE SECRETARY GOVERNMENT OF KARNATAKA, DEPARTMENT OF URBAN DEVELOPMENT, VIDHANA SOUDHA, DR AMBEDKAR BEEDHI, BANGALORE-560001

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THE CHAIRMAN VYALIKAVAL HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED, NO.100, 11^TH CROSS, 6^TH MAIN, MALLESHWARAM, BANGALORE-560003

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…RESPONDENTS

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(BY SRI.G.LAKSHMEESH RAO, ADVOCATE FOR R1 & R2; SRI.N.K.RAMESH, ADVOCATE FOR R3; SMT.VANI.H, AGA FOR R4; R5 SERVED & UNREPRESENTED)

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THIS PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO a)ISSUE A WRIT, DIRECTION OR AN ORDER DECLARING THAT THE SITE EARMARKED AS A CIVIC AMENITY SITE BE RESTORED TO THE CURRENT STATUS AND ANY ALIENATION BY WAY OF LEASE, SALE ETC., BE DECLARED ILLEGAL AND ETC.,

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THIS PETITION COMING ON FOR ORDERS THIS DAY, SACHIN SHANKAR MAGADUM J., MADE THE FOLLOWING:

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ORDER

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The captioned writ petition is filed in the nature of public interest litigation seeking a writ in the nature of mandamus to declare the site earmarked as a civic amenity site and the same may be restored to current status by demolishing the illegal structures put up in the civic amenity site.

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The grievance in the present public interest litigation is that the respondent No.5 which is a House Building Co-operative Society Limited has formed a private layout for its members in Sy.Nos.377/2, 377/3, 377/4, 377/5, 377/6, 376/1, 372/2, 376/3, 375/1, 375/2, 374/1, 359/1 and 359/2 of Marrenahalli Village, Kempapura Agrahara, Kasaba Hobli, Bangalore North Taluk. The petitioner claim that the layout plan submitted by respondent No.5 for approval prescribed the lands earmarked for playground and also for civic amenity site. The petitioner claim that both park and civic amenity site measure to an extent of 1 acre out of total 20 acres where the layout is developed. The petitioner contend that the

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respondent No.5 has formed a residential layout and thereafter sites have been distributed to its members and the residents residing in the said layout are utilizing the portion earmarked as park and civic amenity site for several years.

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The petitioner has specifically alleged that though respondent No.5 can utilize only 50% of the entire layout for formation of residential sites, however, respondent No.5 has exceeded the said limit and has formed sites to an extent of 62% of the total area. The petitioner has specifically claimed that the area notified as park and civic amenity site has been sold by the respondent No.5 and therefore the entire layout is utilized for residential purpose thereby depriving open lung space for the residents of the said layout. On these set of grounds, the present writ petition is filed.

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This Court vide order dated 22.07.2021 directed the respondent Nos.2 and 3 to conduct a joint survey and to place the report before this Court. The respondents having

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conducted a joint survey submitted a report on 13.08.2021. This Court having perused the joint survey report found that certain violations of sanctioned layout plan were indicated in the joint survey report. Having perused the joint survey report, this Court directed the respondent Nos.2 and 3 to file affidavits indicating what steps would be taken against the illegalities which are noted in the joint survey report. This Court also directed the authorities to indicate timeline within which appropriate action would be initiated against the encroachers.

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Pursuant to the direction issued by this Court, the respondent No.2 has filed an affidavit dated 06.09.2021 in compliance of the order dated 13.08.2021. Paragraph 6 of the affidavit would be relevant and the same is culled out as under:

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"6. I humbly submit that pursuant to the directions of this Hon'ble Court, meeting of the Engineer Member, the Executive Engineer and Assistant Executive Engineer, West Division of the

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BDA was convened on 23.08.2021 and discussed about the steps to be taken by the authority for removal of encroachment in the park and CA site in question. The Bengaluru Development Authority will take appropriate action for removal of unauthorized encroachments made on the area of Park and the CA site in question by invoking Section 33 of the Bengaluru Development Authority Act and will make every attempt to remove the unauthorized encroachments within a period of six months subject to the interventions of the court if any."

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We have examined the affidavit filed by the Commissioner of Bengaluru Development Authority. At paragraph 6, the Commissioner has given an undertaking that action would be taken to remove all unauthorized encroachments within a period of six months. Having taken note of the said undertaking, we direct the respondent No.2 to act upon the joint survey report and remove all encroachments forthwith as indicated in the joint survey report. However, we are not inclined to grant six months time as pleaded in the affidavit. We cannot appreciate the conduct

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of the respondent No.2 authority in not taking possession of the civic amenity site and park while approving the layout.

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Regulations 6.1(c) and 6.1(d) of the Revised Master

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Plan 2015 empower and authorize the respondent No.2 to secure a relinquishment deed either from the developer or from the owner free of cost. Regulations 6.1(c) and 6.1(d) reads as follows:

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6.1(c) Parks/Open spaces and Playgrounds:

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Parks/Open spaces and Playgrounds shall not be less than 15% of the total land area. This shall be relinquished to the Authority (free of cost and free of encumbrance) and if required, the authority may handover the area for maintenance to the resident’s welfare association. If the land is not maintained up to the satisfaction of the authority, it shall be resumed back by the authority.

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6.1(d) Civic amenities and Roads:

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i) After making provision for Parks and roads in the layout, the balance portion of land shall be earmarked for civic amenity site only. Such CA site shall be relinquished to BDA free of cost and free of encumbrance.

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ii) If the area that remains after making provision for road and park is less in extent, then the authority shall have the discretion to earmark such land for park.

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iii) When ever the total area proposed for formation of layout exceeds 10 acres, then adequate extent of land may be earmarked for provision/installation of utilities like transformer, sewage treatment plant, overhead water tank, bus bay/shelter etc. This area may be taken in to calculation under either CA or Park as the case may be. Decision of the Authority in this regard shall be final.

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iv) CA sites owned by Bangalore Development Authority (BDA) could be used for any purpose irrespective of the land use classification in the Revised Master Plan-2015. But, such use shall be based on the need of the locality and the Authority has to take a conscious decision in this regard. This clause is operative till amendments to relevant Acts & Rules are made."

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8. On perusal of Regulations 6.1(c) and 6.1(d), it can

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be gathered that the said regulation was brought into force with a view to discourage the builders and owners meddling

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with civic amenity sites and park area. Therefore, the law mandates that authorities shall secure possession of the parks and civic amenity sites which are part and parcel of a private approved layout through registered relinquishment deed free of cost. The said parks and civic amenity sites be made available to the public at large. The inaction on the part of the respondent No.2 in not insisting for relinquishment of the park area and civic amenity site has resulted in encroachments. Therefore, we would direct the respondent No.2 to forthwith remove illegal constructions reserved for civic amenity and thereafter secure transfer of those areas under registered documents free of cost in terms of the above said regulation of Revised Master Plan 2015. This exercise shall be completed within a period of three months and compliance report shall be furnished with the Registry of this Court.

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With the above observations, the writ petition stands disposed of.

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The pending interlocutory applications, if any, stand

disposed of.

Sd/CHIEF JUSTICE

Sd/JUDGE

Sri Venkatesha M v. the Chairman

Case brief

What is this about?

What did the court decide?

Sri Venkatesha M v. the Chairman

Case brief

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What did the court decide?

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