Partly allowed

Smt B Sumithra v. the Commissioner

Karnataka HC11 Oct 2023WP/2464/2023

Case brief

AI extract

What is this about?

This High Court of Karnataka held that an authority insisting on title documents from an unauthorised occupant applying for regularisation under Section 38D of the BDA Act is unreasonable. The impugned endorsement rejecting the application was quashed.

What did the court decide?

Impugned endorsement dated 05.01.2023 set aside; authorities directed to consider application without insisting on further documents.

Smt B Sumithra Vs the Commissioner — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:37289 WP No. 2464 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^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. 2464 OF 2023 (BDA)

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BETWEEN:

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SMT B SUMITHRA W/O NARAYANA AGED ABOUT 43 YEARS R/O NO 1089/C, 9TH MAIN KALIDASA NAGAR SLUM AREA HOSAKEREHALLI BSK 3RD STAGE BANGALORE - 560 085.

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…PETITIONER

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(BY SRI. G A SRIKANTE GOWDA, ADVOCATE)

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AND:

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

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THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY KUMARA PARK WEST BANGALORE - 560 020.

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ASSISTANT COMMISSIONER RE ALLOTMENT /RE-GRANT BANGALORE DEVELOPMENT AUTHORITY KUMARA PARK WEST BANGALORE - 560 020.

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…RESPONDENTS

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(BY SRI. BASAVARAJA H T., ADVOCATE)

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NC: 2023:KHC:37289 WP No. 2464 of 2023

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER OR DIRECTION, QUASHING THE ENDORSEMENT DATED 05.01.2023 ISSUED BY THE 2ND RESPONDENT BEARING NO. ¨ÉA.C.¥Áæ/¸À.D/ªÀÄºÀ&ªÀÄªÀÄ/100/2022-23 VIDE ANNEXURE-P AND ETC.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN `B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner is before this Court seeking quash of endorsement dated 05.01.2023 produced at Annexure-P in terms of which respondent -BDA has rejected the requisition of the petitioner for regularisation of her occupation in respect of site bearing No.1089/C situated at Kalidasanagar Slum Area, Hosakerehalli Village, Banashankari III Stage, Bangalore on the premise that the petitioner had not submitted the records in support of her claim and that the petitioner had informed that no other documents were available.

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NC: 2023:KHC:37289 WP No. 2464 of 2023

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Sri.G.A.Srikante Gowda, learned counsel for petitioner appears through video conferencing, takes through the records more particularly the Judgment and decree in O.S.No.7576/2007 on the file of XL Additional City Civil and Sessions Judge(CCH-41), Bangalore, in which granting the relief of permanent injunction and declaring the deed of sale executed by BDA in favour of defendant No.2 as null and void, has further directed respondent -BDA to consider the application filed by the petitioner for regularisation of occupation over the schedule property. He further submits that in terms of application at Annexure-L dated 11.10.2022 the petitioner while narrating the entire facts and incidents of the matter had also produced as many as eight documents in support of her claim for regularisation. He submits that respondent -BDA by notice dated 19.11.2022 produced at Annexure-M had called upon the petitioner to produce documents in the nature of revenue records of the original khathedar and title deeds and revenue records of the applicant in respect of schedule property. It is his further

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4 - NC: 2023:KHC:37289 WP No. 2464 of 2023

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submission that when petitioner is seeking regularisation of occupancy under section 38 D of BDA Act respondent authorities calling upon petitioner to produce title documents is unjustified. He submits that petitioner has produced all possible documents available in her possession including Judgment and decree referred to above to establish her settled possession of the property.

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He submits in that view of the matter insistence by respondent authorities to produce the documents enlisted in Annexure-M is arbitrary and without application of mind

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and issued only with a malafide intention of declining the request of the petitioner.

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In response, learned counsel for respondent -BDA submits that without petitioner furnishing the documents in support of her claim, her request for regularisation under Section 38D of the Bangalore Development Authority Act cannot be considered. He submits that calling upon the petitioner to furnish the documents

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5 - NC: 2023:KHC:37289 WP No. 2464 of 2023

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enlisted in Annexure-M cannot be found to be arbitrary and as the same in accordance with law without which petitioner request for regularisation of occupation cannot be considered. He submits that since petitioner failed to submit documents called for as per Annexure-M the impugned endorsement came to be issued and same cannot be found fault with. Hence, seeks for dismissal of the petition.

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Heard and perused the records.

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All that petitioner is seeking is regularisation of

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her admitted unauthorised occupation of site bearing No.1089/C. Petitioner appears to have filed a suit challenging the deed of sale which was executed by respondent -BDA in favour of defendant No.2 pertaining to property in occupation of the petitioner. Accepting the case of the petitioner the said suit in O.S.No.7576/2007 has been decreed in favour of the petitioner. Being aggrieved respondent -BDA had filed RFA No.555/2016 and it is submitted that said RFA No.555/2016 has been

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NC: 2023:KHC:37289 WP No. 2464 of 2023

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withdrawn by respondent-BDA. Thus it cannot be said that the petitioner claiming regularisation of her

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unauthorised occupation of subject property without any basis. The petitioner along with application dated 11.10.2022 produced at Annexure-L has produced eight documents including aforesaid Judgment and decree. It is relevant at this juncture to refer Section 38D of BDA Act, 1976 wherein allotment of land in favour of original owner or purchaser or "unauthorised occupant" is provided. The term "unauthorised occupant" would invariably include person in occupation of land without authority. In other words person who has no title over the subject property. When a provision is made for consideration of a case of unauthorised occupation for regularization, respondent authority insisting such unauthorised occupant to produce title documents is unreasonable and one without application of mind. Read in that context the purpose of Section 38D would be rendered redundant.

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NC: 2023:KHC:37289 WP No. 2464 of 2023

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All that petitioner, claiming to be unauthorised occupant, required to be proved that she is in settled possession and that it does not mean the petitioner is claiming title over the property. Consequently respondent authority are required to look into whether petitioner is in settled possession of property being claimed by her. In the light of petitioner having obtained the Judgment and decree against none other than the very respondent-BDA and allottee of site and the said Judgment and decree having attained finality cannot be expected to bring her title deed in respect of the property. The impugned endorsement dated 05.01.2023 is required to be set aside.

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In that view of the matter, petition is partly allowed. The impugned endorsement dated 05.01.2023 is set aside. Consequently respondent -BDA is directed to consider the applications at Annexures A, L and N dated 12.05.2003, 12.10.2022 and 28.11.2022 respectively with the information made available by the petitioner in the aforesaid applications without insisting for production of

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NC: 2023:KHC:37289 WP No. 2464 of 2023

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any further documents. Such consideration shall be made within an outer limit of eight weeks from the date of

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receipt of certified copy of this order.

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Sd/JUDGE

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SBN

Smt B Sumithra v. the Commissioner

Case brief

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Smt B Sumithra v. the Commissioner

Case brief

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