Allowed

Sri B v. Omprakash v State of Karnataka

Karnataka HC5 Jan 2023WP/27224/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka granted a writ of certiorari quashing an order by the BDA that treated specific lands as common area sites. The court upheld the authenticity of the original private layout plan and the petitioner's property rights based on registered sale deeds and long-standing possession.

What did the court decide?

Certiorari issued quashing the impugned order and communications designating sites as CA; directions issued to retrace steps if further action was taken.

Sri B v Omprakash Vs State of Karnataka — Land Acquisition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO.27224 OF 2014 (BDA)

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BETWEEN:

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SRI. B.V.OMPRAKASH, S/O LATE V.VENKATESHAIAH, AGED ABOUT 47 YEARS, RESIDING AT NO.68, 3^RD CROSS ROAD, RADHAKRISHNA LAYOUT, 2^ND STAGE, PADMANABHANAGAR, BANGALORE - 70.

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…PETITIONER

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(BY SRI.B.V.OMPRAKASH, PARTY – IN - PERSON)

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AND:

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STATE OF KARNATAKA, BY ITS PRINCIPAL SECRETARY, HOUSING AND URBAN DEVELOPMENT DEPARTMENT, M.S.BUILDING, BANGALORE - 1.

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THE COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK WEST, BANGALORE - 20.

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ASSISTANT EXECUTIVE ENGINEER, SOUTH SUB - DIVISION NO.3, BANGALORE DEVELOPMENT AUHTORITY, BANASHANKARI BDA COMPLEX, BANASHANKARI 2^ND STAGE, BANGALORE - 70.

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THE TOWN PLANNING MEMBER/AUTHORITY, BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK WEST, BANGALORE - 20.

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THE PRESIDENT, SRI RADHAKRISHNA HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., KADIRENAHALLI, NO.692, 10^TH A MAIN ROAD, 4^TH BLOCK, JAYANAGAR, BANGALORE – 560 011.

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…RESPONDENTS

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(BY SRI.R.SRINIVASA GOWDA, AGA FOR R1; SRI.KIRAN C.V., ADVOCATE FOR R2 TO R4; SMT.SUKANYA H.D., ADVOCATE FOR R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE LETTER DT.20.6.13, PRODUCED AT ANNEXURE – S; GRANT AN INTERIM ORDER TO STAY THE LETTER DATED 20.6.13, PRODUCED AT ANNEXURE - S.

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

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ORDER

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Petitioner, a practicing lawyer is complaining before

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the Writ Court against the action of the Respondent-BDA and its officials whereby his two sites bearing Nos.86 & 86A have been designated and treated as CA sites vide order dated 20.16.2013 at Annexure-S and Endorsement dated

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19.05.2009 as approved by the BDA Commissioner on 23.05.2009 at Anexure-S1. Pleadings of both the sides are bulky but that bulkiness was not needed in the facts of the case since matter lies in a narrow compass. Be that as it may.

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After service of notice, the Respondent-BDA and

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its officials having entered appearance through their Senior Panel Counsel who resist the writ petition by filing the Statement of Objections on 27.11.2014 and by vehemently contending that the subject sites are CA sites and they were so designated in the original approved plan of the private layout, given by CITB decades ago and therefore, the respondent-Housing Society could not have conveyed the sites in favour of the petitioner at all. The BDA Panel Counsel contends that everything having done illegally, the said illegality is now set right by the impugned endorsement and therefore, the interference of the Writ Court is not warranted. So contending, he seeks dismissal

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of the writ petition. However, the advocate appearing for the Respondent -Housing Society maintains distance from the stand taken by the BDA and supports the case of the petitioner.

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Having heard the learned counsel for the parties

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and having perused the petition papers, this Court is inclined to grant indulgence in the matter for the following reasons:

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a) The housing layout is a private layout formed by the respondent-Housing Society and the same was approved by the CITB way back on 24.10.1973 much before the enactment of the BDA Act, 1976 is not in dispute. A copy of the approved layout planning is at Annexure-P wherein the middle stratum part thereof shows site Nos.86 & 86A . There is not even a whisper in the Statement of Objections filed by the BDA disputing the authenticity of this Approved Layout Plan. Learned Panel Counsel draws attention of the Court on the affidavit dated 10.10.1990 filed by the

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Revenue Officer of jurisdictional Division of BDA disputing the authenticity of the approved plan of 1973. The affidavit does not refer to any enquiry having been held before forming such an opinion and therefore, it is devoid of credentials of law.

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(b) The Society allotted these two sites in favour of the Petitioner by executing two Sale Deeds both dated 07.06.1985 as originally, and later some mistakes therein came to be rectified by executing another Deed dated 29.03.1997. The property has passed to the hands of the Petitioner and the consideration which he has paid has passed on to the Respondent-Society. The original registered Deeds of June, 1985 are more than 30 years old and therefore, they enjoys presumptive value under Section 90 of the Indian Evidence Act, 1872 in the light of decision of the Apex Court in Prem Singh vs. Birbal, (2006) 5 SCC 353.

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transfer katha; he holds a bunch of tax paid receipts at hands; thereafter the property being engulfed in the territory limits of the BBMP, petitioner has put permanent structures in the said sites by investing huge amount. Anyway there is no dispute that there is some structure regardless of the arguments of the Panel Counsel as to they being temporary. The property rights are constitutionally guaranteed under Article 300A and therefore, any action on the part of the instrumentally of the State like the BDA has to be strictly scrutinized keeping this in view since ours is not of the governance of East India Company but the Welfare State.

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(d) The impugned letter and the orders have been issued by the BDA unmindful of the approved plan which is a foundational document. It hardly needs to be stated that there is no dispute as to the authenticity of the Layout Plan prima facie demonstrable by the records. Had the officials

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sought for the information from the respondent-society, perhaps the petitioner would not have been put to this catastrophe at all. In any event, human life being as short as can be, delayed actions of the kind spurn the reason & justice. Even on that ground, the impugned orders are liable to be voided, as rightly contended by the lawyerparty in person.

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In the above circumstances, this writ petition succeeds; a writ of Certiorari issues quashing the impugned order & communications. Although this is a fit case for levying exemplary costs, this court on the request of learned Panel Counsel for appearing for the BDA, refraining from levying any.

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If any further steps had been taken pursuant to the impugned orders that are now quashed, BDA and its officials shall retrace their steps within a period of six weeks failing which, Petitioner may move a Memo seeking levy of

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the costs that would be payable personally by the erring officials.

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Now, no costs.

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Sd/JUDGE

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Sri B v. Omprakash v State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri B v. Omprakash v State of Karnataka

Case brief

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