Far East Broadcasting Association of India Vs the State of Karnataka

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NC: 2025:KHC:3165 WP No. 30828 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 30828 OF 2024 (LA-BDA)

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BETWEEN:

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FAR EAST BROADCASTING ASSOCIATION OF INDIA SOCIETY REGD. UNDER THE KARNATAKA SOCIETIES REGISTRATION ACT HAVING ITS REGISTERED OFFICE AT NO.15/B, THAMBUCHETTY ROAD, COX TOWN, BENGALURU - 560 005.

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REPRESENTED BY ITS POWER OF ATTORNEY HOLDER DR. A GREGORY ASHOK, S/O LATE AROKIASWAMY PILLAI AGED ABOUT 65 YEARS

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…PETITIONER

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

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(BY SRI. BASAVARAJ V. SABARAD SENIOR COUNSEL FOR SRI. H.L. PRADEEP KUMAR.,ADVOCATE)

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AND:

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THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT VIKASA SOUDHA BENGALURU-560 001. REPRESENTED BY ITS SECRETARY.

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BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK WEST EXTENSION, BENGALURU-560 020. REPRESENTED BY ITS COMMISSIONER.

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THE LAND ACQUISITION OFFICER BANGALORE DEVELOPMENT AUTHORITY,

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NC: 2025:KHC:3165 WP No. 30828 of 2024

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KUMARA PARK, WEST EXTENSION, BENGALURU-560 020.

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…RESPONDENTS

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(BY SRI. HANUMANTHARAYA LAGALI, AGA FOR R1; SRI. B.S. KARTHIKEYAN, ADVOCATE FOR R2 & R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT DATED 20.08.2024 UNDER REFERENCE NO. BDA/LAND ACQUISITION/60/2024-25 ISSUED BY THE RESPONDENT, COMMISSIONER-BDA MARKED AS ANNEXURE-A AND ETC.

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

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CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Petitioners are before this Court aggrieved by the endorsement dated 20.08.2024, produced at Annexure-A issued by the respondent No.3-Additional Land Acquisition Officer, BDA by which the respondent No.3 has held that the request of the petitioner for regularization of occupation of their land in Sy.No.37/1 measuring 26 guntas and an adjacent land in Sy.No.38/2A measuring 39 guntas of land, totally measuring to an extent of 1 acres and 25 guntas situated at Hennur Village, Kasaba Hobli, Bengaluru North Taluk was under Section 38D of the Bangalore Development Act, 1976 (hereinafter referred to as 'the Act, 1976') for not permissible.

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NC: 2025:KHC:3165 WP No. 30828 of 2024

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Petitioners claim to be the absolute owners of land in Sy.No.37/1 measuring 26 guntas and land in Sy.No.38/2A totally measuring 39 guntas of land, totally measuring to an extent of 1 acres and 25 guntas, having purchased the same in terms of deed of sale 28.02.1984 from one Sri. Chikka Veerappa and had put up a construction of Chruch, Charitable Hospital, Orphanage, old age home, bible training centre and etc aver the said land. It appears in the meanwhile preliminary notification dated 27.06.1978 and final notification dated 09.01.1985 came to be issued by the respondent-BDA seeking to acquire the said land. The petitioners had approached this Court on several occasions. This Court had passed the orders in the nature of directions to the respondent-BDA to consider the case of the petitioner. One such order is dated 12.09.2023, passed in W.P.No.12625/2021, wherein this Court taking note of the factual aspect of the matter and in view of the provisions contained Under Section 38D of the Act, 1976 had directed the respondent-BDA to consider the case of the petitioner. Paragraph Nos.11 and 12 of the said order is as under:

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''11. Be that as it is. In view of the aforesaid factual position this writ petition is disposed of directing the respondent-BDA to consider the case

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of the petitioner in the light of provisions of Section 38D of the Act and in the light of the interim order passed by the Division Bench of this Court in W.P.No.14959/2020 (PIL) within an outer limit of eight (8) weeks from the date of receipt of certified copy of this order.

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12. It is made clear that petitioner is also at liberty to make necessary representation seeking compensation including interest to the respondentBDA and upon such representation the same shall be considered by the respondent-BDA in accordance with law.''

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It appears pursuant to the said order, the respondent

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No.3-SLAO without even providing an opportunity to the petitioners has passed the impugned Endorsement dated 20.08.2024, paragraph No.3 of which reads as under:

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Sri.Basavaraja Sabarad, learned Senior Counsel

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appearing for Sri. Pradeep H.L, learned counsel for the

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petitioner, drawing attention of this Court to the provisions of Section 38D of the Act, 1976 in the light of the directions issued in the aforesaid order submits that there is statutory requirement on the part of the respondent-BDA to afford an opportunity and conduct an enquiry, more particularly when a specific directions issued by this Court and thereafter ought to have come to the conclusion in the matter. Instead, respondent No.3 who was not the authority contemplated under Section 38D of the Act, 1976 has taken up the matter upon himself and without even affording any opportunity of being heard and conducting of any enquiry has come to the conclusion that petitioners being in possession of land in Sy.No.37/1 measuring 26 guntas and land in Sy.No.38/2A totally measuring 39 guntas of land, totally measuring to an extent of 1 acres and 25 guntas are not entitled for the benefit under Section 38D, on the premise that the extent of land in possession of the petitioners exceeds the limits set out under Sub-Section (iii) of Section 38D of the Act, 1976. It is this order which is put to challenge.

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There is a considerable force in the submissions being made by the learned Senior counsel appearing for the

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petitioner. Admittedly the respondent No.3-SLAO has issued the endorsement in question as per Annexure-A without conducting enquiry as contemplated under Section 38D of the

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Act, 1976 there is nothing on record to indicate that the petitioners were heard before the respondent No.3 coming to the said conclusion.

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Yet another aspect of the matter is who is the ''competent authority'' contemplated under Section 38D of the Act, 1976. Learned Senior Counsel appearing for the petitioner at this juncture points out to the Section 2(a) of the Act, 1976 which reads as under:

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''(a). 'Authority'' means the Bangalore Development Authority constituted under Section 3;''

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Section 3 of the Act, 1976 further reads as under:

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'' 3. Constitution and incorporation of the Authority.(1) As soon as may be after the date of commencement of this Act, the Government shall, by notification, constitute for the Bangalore Metropolitan Area an Authority to be called the Bangalore Development Authority.

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(2) The Authority shall be a body corporate by the name aforesaid having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both moveable and immoveable and

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to contract and shall by the said name sue or be sued.

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(3) The Authority shall consist of the following members, namely:-

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(a) the Chairman;

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(b) one person to be called the Finance Member possessing qualifications in accounts and audit ;

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(c) an engineer who shall be an officer of the Karnataka Engineering Service or an officer employed in any undertaking owned or controlled by the State Government not below the rank of a Chief Engineer;

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(d) a town planner who shall be a person with experience in town planning;

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(e) a person with experience in architecture ;

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(f) the Commissioner, Corporation of the City of Bangalore, ex-officio;

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(ff) an officer of the Secretariat Department incharge of urban development, not below the rank of a Deputy Secretary to Government.

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(g) two persons who are members of the Karnataka State Legislature;

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(gg) two persons of whom one shall be woman and one shall be a person belonging to the Scheduled Castes or the Scheduled Tribes;

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(h) four others of whom one shall represent the labour;

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(i) a representative of the Bangalore Water Supply and Sewerage Board;

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(j) a representative of the Karnataka Electricity Board;

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(k) a representative of the Karnataka State Road Transport Corporation;

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(l) two persons elected by the councillors of the Bangalore City Corporation from among themselves in the prescribed manner:

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(m) the Commissioner, ex-officio;

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(n) the Secretary of the Authority, who shall be an ex-officio member.

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Provided that during the period of supersession of the Corporation or where any Administrator has been appointed, the two persons shall be nominated by the Administrator from among the officers of the Corporations.

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(4) The persons referred to in clauses (a) to (e) and (ff) to (h) of subsection (3) (both inclusive) shall be appointed by the Government and the persons referred to in clauses (i), (j) and (k) thereof shall be nominated by the respective bodies:

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Provided that all the first members of the Authority shall be appointed by the Government.

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(5) The Chairman, the engineer member, the finance member and the town planner member shall be whole-time members and the other members shall be part-time members.''

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It is also relevant to refer to Rule 4 of the Bangalore

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Development Authority Allotment of Unauthorized Sites with Building Rules, 2021 reads as under:

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''4). The Authority shall after verifying the particulars submitted by the applicant and recommendations of the Commissioner, after holding such enquiry as it deemed necessary, shall determine the eligibility or otherwise of the applicant and the extent of site with building to which the applicant is entitled for allotment and either allot or reject the application. The Authority shall intimate the eligible applicant the amount required to be paid under Section 38D of the Act. The amount has to paid within the period of sixty days from the date of intimation. ''

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The aforesaid provisions of Act and Rules would make it clear that the 'Competent Authority' to deal with the issues of consideration of case under Section 38D of the Act, is 'the Bengaluru Development Authority' as defined under Section 2(a) of the Act, 1976. Therefore, the impugned order passed by the respondent-SLAO in the absence of any provisions under the Act authorizing him is clearly one without jurisdiction and authority. As such impugned endorsement dated 20.08.2024 produced at Annexure-A requires to be set-aside on this ground alone.

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Notwithstanding the above, the said order also suffers from same having been passed without affording any opportunity and without holding any enquiry as required under Section 38D the Act, 1976 even on this ground the impugned endorsement is liable to be quashed.

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Accordingly, following:

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ORDER

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(i). Writ petition is disposed of .

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(ii). Impugned Endorsement dated

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20.08.2024, produced at Annexure-A issued by the respondent No.3-Additional Land

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Acquisition Officer, BDA is hereby quashed.

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(iii). The matter is relegated to respondent

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No.1-BDA, who shall cause an enquiry to be conducted and shall afford sufficient opportunity to the petitioner of being heard strictly as contemplated under Section 38D of the Act, 1976 and Rule 4 of the Bangalore Development Authority Allotment of Unauthorized Sites with Building Rules, 2021 and thereafter pass appropriate order in accordance with law within an outer limit of 6 months from the date of receipt of certified copy of this order.

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(iv). It is made clear, respondent-Authorities or their representatives shall not take any precipitative actions against the petitioners

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