Allowed

Mr. Nithyanandan J v. Commissioner

Karnataka HC13 Dec 2024WP/25448/2023

Case brief

AI extract

What is this about?

A disabled petty-shop operator challenged BBMP's demolition of his shop on marginal land. The court permitted him to construct a temporary booth measuring 6 feet x 7.9 feet per a court sketch, to operate until the BBMP Estate Management Rules 2024 are notified and his application under them is considered.

What did the court decide?

Permission to construct and operate a temporary booth (6' x 7.9') per court sketch until 2024 Rules notified and application considered; BBMP may charge permissible rent.

Mr. Nithyanandan J Vs Commissioner — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:51530 WP No. 25448 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO.25448 OF 2023 (LB-BMP)

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BETWEEN:

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MR. NITHYANANDAN .J AGED ABOUT 37 YEARS, S/O. JAYARAM, #10/1, GANGMAN QUARTERS, SOUTH ROAD, KBAR ROAD, AUSTIN TOWN, VIVEK NAGAR, BANGALORE, KARNATAKA – 560 047.

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... PETITIONER

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(BY SRI AZHAR ALI FAROOQI, ADVOCATE)

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AND:

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Digitally signed by VANAMALA N

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Location: HIGH COURT OF KARNATAKA

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COMMISSIONER BBMP HEAD OFFICE, CORPORATION CIRCLE, HUDSON CIRCLE, HUDSON CHURCH, TOWN HALL, BANGALORE, KARNATAKA – 560 002.

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ASSISTANT EXECUTIVE ENGINEER BBMP, DOMLUR SUB DIVISIONAL OFFICE, 1^ST MAIN ROAD, 1^ST ‘B’ CROSS, DOMLUR EXTENSION, BANGALORE – 560 071.

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HEALTH OFFICER-EAST, BBMP, MAYOHALL, ASHOK NAGAR, BENGALURU, KARNATAKA – 560 025.

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ASSISTANT REVENUE OFFICER, 12^TH FLOOR, PUBLIC UTILITY BUILDING, M.G. ROAD, BANGALORE. KARNATAKA – 560 001.

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NC: 2024:KHC:51530 WP No. 25448 of 2023

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... RESPONDENTS

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(AMENDMENT CARRIEDOUT VIDE COURT RODER DATED 10.06.2024)

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SMT. RATHNAMMA W/O. LATE C. KUMAR, AGED ABOUT 60 YEARS,

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SRI MUNRAJ .K S/O. LATE C. KUMAR, AGED ABOUT 31 YEARS,

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BOTH ARE R/AT WARD NO.114, NO.10, GANGMEN QUARTERS, KBAR ROAD, AUSTIN TOWN, VIVEKNAGAR POST, BENGALURU – 47.

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(BY SRI KARTHIKEYAN B.S., ADVOCATE FOR R-1 TO R-4; SRI M.D. RAGHUNATH, ADVOCATE FOR SRI S.V. MANJUNATHA, ADVOCATE FOR PROPOSED R-5 AND R-6 IN I.A.NO.1/2024 FOR IMPLEADING)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE ACT OF DEMOLITION OF THE SCHEDULE PROPERTY ON 31.10.2023 PRODUCED AS ANNEXURE-Z1 TO Z2 BY THE R2 IS ILLEGAL, ARBITRARY AND VIOLATIVE OF FUNDAMENTAL RIGHTS UNDER 19(1)(g) OF THE PETITIONER; AND DIRECT THE RESPONDENTS TO PERMIT THE PETITIONER TO PUT UP PETTY SHOP ON THE SCHEDULE PROPERTY AND CONTINUE HIS LIVELIHOOD AND ETC.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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3 - NC: 2024:KHC:51530 WP No. 25448 of 2023

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CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD

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ORAL ORDER

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The petitioner, who is a person with permanent disability and is allotted a particular shop by the Bruhat Bengaluru Mahanagara Palike [ BBMP ], is aggrieved by the decision to demolish the premises occupied by him, and hence, the petitioner has sought for the following reliefs.

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[i] For declaring that the second respondent’s act of demolition of the schedule property on 31.10.2023 [as Annexures –Z1 & Z2] is illegal, arbitrary and violative of Fundamental Rights under 19(1)(g) of the Petitioner.

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[ii] For directing the Respondents to permit the Petitioner to put up petty shop on the schedule property and continue his livelihood.

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[iii] For directing the Respondents to collectively pay a sum of Rs.10,00,000/(Rupees Ten Lakh Only) towards compensation to the Petitioner.

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Alternatively

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[iv] For directing the Respondents to allot and handover possession of an alternative

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4 - NC: 2024:KHC:51530 WP No. 25448 of 2023

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establishment/shop to the Petitioner before demolishing the Schedule Property.

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The BBMP and its officers have demolished the premises which was in the petitioner’s occupation and such decision/action is a consequence to this Court’s order dated 04.07.2023 in the Writ Petition in W.P. No.5595/2023. This writ petition in W.P.No.5595/2023 is filed being aggrieved by the notice to all, including the petitioner, to remove the encroachment on footpath. This Court, with certain concessions being made, has recorded such concessions in the following terms:

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The grievance of the petitioner is directed against some of the neighbors, who are said have encroached upon the footpath. During the course of these proceedings, inspections were conducted as directed by this Court and reports were filed which would show that even the petitioner had encroached upon a portion of the footpath. The petitioner had undertaken to remove the encroached portion.

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5 - NC: 2024:KHC:51530 WP No. 25448 of 2023

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It is because of this concession, this Court has directed the Assistant Executive Engineer, Domlur Sub-Division, BBMP to proceed in accordance with law and to take the proceedings to its logical conclusion within a certain time. It is after this order the subject demolition is undertaken. The petitioner’s contention is that the BBMP’s officers have demolished even structure that is outside the footpath.

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The BBMP has permitted the petitioner to

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construct a shop for his business in a marginal land. The applicants in I.A.No.1/2024 are the owners of the land that is beyond the subject road and this marginal road. Crucially, there is no dispute that the petitioner, because he is disabled, is allotted some extent within the marginal land. This Court has called for a report. Consequently, a Report is filed on 02.07.2024 along with photographs, which show a

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standing tree and the marginal land which the petitioner is permitted to occupy.

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This Court, on a careful consideration of

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the Report, had called upon the petitioner to file an affidavit on whether he would ensure that the debris at the subject property are cleared and the details as regards the extent of marginal land that he proposes to occupy to construct a Booth and his readiness to operate such booth until he avails allotment in terms of the proposed Bruhat Bengaluru Mahanagara Palike [Estate Management] Rules, 2024 which is awaiting approval by the State Government. In response, the petitioner has filed an affidavit stating that if he is provided an area measuring 10 feet x 8 feet at the same place where he was earlier permitted to operate, he would put up a temporary structure which is made of metal and sheets and that he would remove all the debris at his own cost. Further, the learned counsel for the BBMP has placed on record a

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NC: 2024:KHC:51530 WP No. 25448 of 2023

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sketch of the subject property in view of the affidavit

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that is placed on record by the petitioner. The sketch

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reads as under.

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W
S N
E
60’ KBAR ROAD
INDEX
50’ TREE MARGINAL LAND
MARGINAL LAND
60’
HOUSE ENTRANCE FOR SOUTH ROAD TREE
NO.10 HOUSE NO.10
56’
HOUSE
NO.09 SCHEDULE
79’ 30’
HOUSE NORTH BY – SOUTH ROAD
NO.04 SOUTH BY – HOUSE NO.10
MARGINAL LAND EAST BY – MARGINAL LAND
HOUSE WEST BY – KBAR ROAD
NO.03/1

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Smt. Jayna Kothari, the learned Senior

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counsel for the petitioner, submits that [i] the petitioner, in terms of the afore, seeks permission to construct a temporary Booth using metal sheets in

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an area measuring 6 feet x 7.9 feet [ as shown in this sketch ], [ii] the petitioner will operate this Booth and not create any nuisance, [iii] the petitioner will occupy such Booth until Rules 2024 are notified and that the petitioner’s application under these Rules is considered.

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Sri B.S. Karthikeyan, the learned standing

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counsel for the BBMP, submits that the petition indeed be disposed with just directions. However, Sri.M.D.Raghunath, the learned counsel for the applicants, submits that even if the petitioner is operated out of this area measuring 6 feet x 7.9 feet, the applicants will be prejudiced because the marginal land is at the entrance of the applicant’s property and that they are entitled for such marginal land.

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These rival submissions are considered.

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This Court must observe that the applicants, who do

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not assert ownership to the extent of 6 feet x 7.9 feet as today, cannot claim any interest therein to defeat any equitable arrangement that could be made in favour of the petitioner in light of the fact that he was operating this area. However, if the BBMP has proposed Rules for Management of its estate with certain reservations for the persons with differently abled, the petitioner must avail his right under such Rules and until then, the petitioner, who has suffered demolition of the entire construction [including the Booth permitted], must be accommodated in a manner that would not create permanent interest. Hence, the following:

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ORDER

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i. The writ petition is allowed permitting the petitioner to construct a Booth measuring 6 feet x 7.9 feet in terms of the sketch and to operate from out of

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such Booth as a transitory operation without causing any nuisance.

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ii. The petitioner would be entitled to this use until the 2024 Rules are notified and the application filed by him in terms of such Rules is considered. The petitioner must also not only remove the debris as is available at the site but must also incur all costs in putting up fabricated Booth as now permitted.

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iii. The application stands disposed of. It is needless to observe that if the applicants could make any application, after the petitioner is allotted or otherwise, an alternative premises, under Rules 2024, they would be at liberty.

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iv. The BBMP shall be at liberty to issue notice calling upon the petitioner to pay

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NC: 2024:KHC:51530 WP No. 25448 of 2023

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such rent as would be permissible under

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law after the petitioner constructs a

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booth as is permitted.

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Sd/(B M SHYAM PRASAD) JUDGE

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MBM List No.: 1 Sl No.: 24

Mr. Nithyanandan J v. Commissioner

Case brief

What is this about?

What did the court decide?

Mr. Nithyanandan J v. Commissioner

Case brief

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What did the court decide?

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