Allowed

Sri. Muneshwaraswamy Temple Development Trust (Regd), v. Bangalore Development Authority

Karnataka HC6 Oct 2023WP/22899/2022

Case brief

AI extract

What is this about?

This High Court set aside a confirmation order passed by the Bangalore Development Authority under Section 33 of the BDA Act. The Court held that Section 33 applies to layouts or extensions formed without compliance, not to cases involving unauthorised occupation of acquired land, which falls under Section 33A.

What did the court decide?

Impugned confirmation order dated 14.11.2022 (Annexure-H) set aside; liberty taken by respondents to initiate action under Section 33A BDA Act.

Sri. Muneshwaraswamy Temple Development Trust (Regd), Vs… — Land Acquisition | Karnataka HC (2023)

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1 - NC: 2023:KHC:36516 WP No. 22899 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 22899 OF 2022 (BDA)

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BETWEEN:

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SRI. MUNESHWARASWAMY TEMPLE

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DEVELOPMENT TRUST (REGD) REPRESENTED BY ITS PRESIDENT AND GENERAL SECRETARY SMT S V JAYAMMA AND SRI N K RAVIKUMAR NO.71/3, RMV II STAGE NAGASHETTYHALLI, BANGALORE-560 074.

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SMT. S V JAYAMMA W/O LATE KARIYAPPA AGED ABOUT 78 YEARS R/AT NO.170

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Digitally signed by SUMA B N Location: High Court of Karnataka

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SRI MUNESHWARASWAMY TEMPLE COMPOUND

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NEAR NAGASHETTYHALLI BUS STOP

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SANJAYNAGAR POST R M V II STAGE BANGALORE-560 094.

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SRI. N K RAVIKUMAR S/O LATE KARIYAPPA AGED ABOUT 52 YEARS R/AT NO.170

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SRI MUNESHWARASWAMY TEMPLE COMPOUND NEAR NAGASHETTYHALLI BUS STOP SANJAYNAGAR POST

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R M V II STAGE, BANGALORE-560 094.

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SRI ARIF BAIG S/O BASHA, AGED ABOUT 43 YEARS, R/AT NO.104, 5TH MAIN, 2ND C CROSS, VASANTHAPPA BLOCK, GANGANAGAR, BANGALORE-560 032.

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SRI RAMESH A S/O ANNAYAPPA, AGED ABOUT 48 YEARS, R/AT NO.44/4, IST A MAIN, IST CROSS, BALAJI LAYOUT, TATANAGAR MAIN ROAD, BANGALORE-560 094.

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SMT ARPITHA B W/O BASAVARAJ, AGED ABOUT 32 YEARS, R/AT NO.117, 3RD CROSS, BADRAPPA LAYOUT, BANGALORE-560 094.

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SRI NANJAPPA S/O KARIYAPPA K K, AGED ABOUT 33 YEARS, R/AT NO.107, KODAGAHAI, K R PETE TALUK, KODAGAHALLI, MALAGUR, MANDYA-571 436.

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…PETITIONERS

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(BY SRI. M.S. BHAGWAT, SENIOR COUNSEL FOR SRI. SATISH K., ADVOCATE)

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AND:

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BANGALORE DEVELOPMENT AUTHORITY REPRESENTED BY ITS COMMISSIONER, T CHOWDAIAH ROAD, KUMARAPARK WEST, BANGALORE-560 020.

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THE EXECUTIVE ENGINEER NORTH DIVISION, BANGALORE DEVELOPMENT AUTHORITY, BDA SHOPPING COMPEX, R T NAGAR, BANGALORE-560 032.

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THE ASSISTANT EXECUTIVE ENGINEER NO.6, NORTH SUB DIVISION, BANGALORE DEVELOPMENT AUTHORITY, BDA SHOPPING COMPLEX, R T NAGAR, BANGALORE-560 032.

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…RESPONDENTS

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(BY SRI. MURUGESH V CHARATI.,ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) CALL FOR THE RECORDS FROM R2 IN RESPECT OF THE IMPUGNED ORDER DATED 14.11.2022 (ANNEXURE-H). b) ISSUE WIRT OR ORDER QUASHING THE IMPUGNED ORDER DATED 14.11.2022 BEARING NO BDA/EE(N)/UAC/RMV-II/N.HALLI/2022-23/1103 ISSUED BY THE R2 (ANNEXURE-H) AND ALL FURTHER PROCEEDINGS THERETO AND ETC.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard Sri. M.S.Bhagwat, learned Senior counsel for Sri. Satish K for the petitioners and Sri. Murugesh V.Charati, learned counsel for the respondents.

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Conformation order passed by the respondent No.2 under Section 33 of the Bangalore Development Act, 1976 (hereinafter referred to as 'BDA Act' for short) produced at Annexure-H is put in issue in this petition. Being aggrieved by the same, petitioners are before this Court.

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Sri.M.S.Bhagawat, learned Senior counsel for

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the petitioners though has raised several grounds in support of the challenge to the said confirmation order at Annexure-H, this court at this juncture would not dwell upon those issues except to the extent of the maintainability of the said order given, that the same has been issued under Section 33 of the BDA Act.

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It is the contention of Sri. M.S.Bhagwat, learned

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Senior counsel for the petitioners that the provisional order as per Annexure-F passed under Section 33(1) of the BDA Act and the confirmation order at Annexure-H purportedly passed under Section 33 of the BDA Act are not sustainable, inasmuch as, the case of the petitioners would not fall within the ambit of Section 33 of the BDA Act. Learned Senior counsel submits that the allegations made by the respondents-BDA is that the petitioners are in unauthorized occupation of the premises and have misusing the property, which allegations do not meet the requirement of Section 33 of the BDA Act. Learned Senior counsel further submits that therefore the very initiation of the proceedings under Section 33 of the BDA Act with the provisional order culminating in the confirmation order, is one without jurisdiction.

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In response, Sri. M.V.Charati, learned counsel

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for the respondents-BDA submits that a wrong mentioning of provision in the order should not be a ground for setting

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aside the impugned order. Learned counsel submits that acquisition of land having attained finality and possession

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of land of the petitioners having been taken, the continuation of occupation by the petitioners over the acquired land is one at sufferance. Learned counsel further submits that land in occupation of the petitioners have been demarcated in the layout as a civic amenity site. Therefore, he submits that issuance of provisional order and conformation order, issued under Section 33 of the BDA Act should not be interfered with as the petitioners in

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the first place have no authority to remain in occupation of the property.

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In the light of the aforesaid rival contentions, it

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is necessary to refer to Section 33 of the BDA Act, which reads as under;

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"33. Alteration or demolition of extension, layout or street. - (1) If any person forms an extension or layout or makes any street referred to in section 32 or puts up any building without or otherwise than in conformity with the orders of the Authority under the said sub-section the Commissioner

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may, whether or not the offender be prosecuted under this Act by notice,-

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(a) require the offender to show cause, by a written statement signed by him and sent to the Commissioner on or before such day as may be specified in the notice, why such extension, layout or street should not be altered to the satisfaction of the Commissioner or if such alteration be deemed impracticable by the Commissioner, why such extension layout or street should not be demolished ; or

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(b) require the offenders to appear before the Commissioner either personally or by a duly authorised agent on such day and at such time and place as may be specified in the notice and show cause as aforesaid.

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(2) If any person on whom such notice is served fails to show cause to the satisfaction of the Commissioner why such extension, layout or street should not be so altered or demolished, the Commissioner may pass an order directing the alteration or demolition of such extension, layout or street".

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A plain reading of said provision would reveal

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that the said provision can be invoked only in respect of a person who has formed the layout and has violated the terms and conditions imposed by the authority, which is not a case in the instant case, since according to the respondents-BDA, petitioners are the unauthorised occupants of a civic amenity site formed and carved out by

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the respondents-BDA as rightly contended by learned Senior counsel for the petitioners, the said provision is not applicable.

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It is also necessary to note Section 33A of the BDA Act, which reads as under;

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"33A. Prohibition of unauthorised occupation of land:-

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(1) Any person who unauthorisedly enters upon and uses or occupies any land belonging to the Authority to the use or occupation of which he is not entitled or has ceased to be entitled, shall on conviction, be punished with imprisonment for a term which may extend to three years and which fine which may extend to five thousand rupees.

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(2) Any person who having unauthorisedly occupied whether before or after the commencement of the Karnataka Municipal Corporations and certain other Laws (Amendment) Act, 1984, any land belonging to the Authority to the use or occupation of which he is not entitled or has ceased to be entitled, fails to vacate such land in pursuance of an order under sub-section (1) of section 5 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (Karnataka Act 32 of 1974) shall, on conviction, be punished with imprisonment for a term which may extend to three years and with fine which may extend to five thousand rupees and with a further fine which may extend to fifty rupees per acre of land or part thereof for every day

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on which the occupation continues after the date of the first conviction for such offence.

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(3) Whoever intentionally aids or abets the commission by any other person of an offence punishable under sub-section (1) or subsection (2) shall, on conviction , be punishable with the same punishment provided for such offence under the said sub-sections.]"

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9. Learned counsel for the respondents-BDA fairly

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submits that reading of the Section 33A of the BDA Act would suggest that the proceedings ought to have been initiated against a person who has unauthorisedly occupied the premises under said provisions read with provisions of sub-section (1) of section 5 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974.

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In view of the aforesaid position, without expressing any opinion on the merits or demerits of the contentions raised by the parties, petition is allowed. The impugned order at Annexure-H passed by the respondent No.2 is set aside. Needless to state that the setting aside of the impugned order at Annexure-H would not come in

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