The Bangalore City Jetty Community and Sree Nimbaja Devi Temple Trust Vs the State of Karnataka

THE BANGALORE CITY JETTY COMMUNITY AND SREE NIMBAJA DEVI TEMPLE TRUST, REGD. UNDER THE INDIAN TRUST ACT, REPRESENTED BY ITS PRESIDENTSRI. JAGANNATH A JETTY, S/O B.ANANTHAPADMANABHA, AGED ABOUT 64 YEARS, HAVING ITS OFFICE AT NO.94, 4^TH FLOOR, B.V.K. IYENGAR ROAD, BENGALURU- 560 053.

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…PETITIONER (BY SRI. RAJESH MAHALE, SENIOR COUNSEL, A/W ASHWIN KUMAR.M, PARIKSHITH MALIYE AND PANCHAMI MAHALE, ADVOCATE)

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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AND:

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THE STATE OF KARNATAKA DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, REPRESENTED BY ITS SECRETARY, VIKAS SOUDHA, BANGALORE-560 001.

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BANGALORE DEVELOPMENT AUTHORITY, REPRESENTED BY ITS COMMISSIONER, HAVING ITS HEAD OFFICE AT, 5TH MAIN RD, KUMARAPARK WEST, GUTTAHALLI, BENGALURU - 560 020.

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…RESPONDENTS

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HC-KAR

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(BY SRI. HARISHA A.S, AGA FOR R1; SRI. B.S.KARTHIKEYAN, ADVOCATE FOR R2)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING THE RESPONDENT BDA TO CONSIDER THE REPRESENTATION DATED 08-06-2020 FOR THE EXECUTION OF SALE DEED OR EXCHANGE DEED WITH RESPECT TO THE SCHEDULE IMMOVABLE PROPERTY IN RESPECT OF C.A. SITE FORMED IN SY.NO.40 OF MARENAHALLY BENGALURU (ANNEXURE-A) AND ETC

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

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL ORDER

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The petitioner has approached this Court seeking a writ of mandamus directing the respondent-BDA to consider the representation dated 08.06.2020 (Annexure-A) for execution of a sale deed or an exchange deed in respect of Civic Amenity (for short 'CA') Site formed in Survey No.40 of Marenahally, Bengaluru.

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Heard Sri.Rajesh Mahale, learned Senior counsel appearing for the petitioner, learned Addl. Government

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HC-KAR

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Advocate for respondent No.1 and Sri. B.S.Karthikeyan, learned counsel for respondent No.2.

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Learned Senior counsel submits that the erstwhile City Improvement Trust Board (for short "CITB") now BDA had acquired Municipal Nos.216, 217 and 218 for the purpose of road widening under a Gazette notification dated 21.09.1961. In lieu of such acquisition, the petitioner was allotted the schedule CA site in Survey No.40. A supplemental deed dated 18.08.2010 was executed, granting a lease for 30 years. The petitioner had earlier instituted a suit in OS.No.3566/1993 for perpetual injunction against Bruhath Bengaluru Mahanagara Palike (for short 'BBMP'), which came to be decreed and later confirmed in RFA No.483/2009.

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A third party Sri.Jagadish filed a Public Interest Litigation (for short 'PIL') titled as K.JAGADISH Vs. STATE OF KARNATAKA AND OTHERS¹ (K.JAGADISH ),

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1 WP.No.50222/2012 (BDA-PIL), D.D.06.08.2015

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wherein he contended that the schedule property is in the nature of a commercial land. This Court categorically held that the schedule land was neither a playground nor a park nor a civic amenity site, but was in the nature of commercial land. Consequently, the PIL was dismissed. Relying on these findings, learned Senior counsel contends that petitioner is entitled to re-conveyance of the property in terms of Rule 10-A of the Bangalore Development Authority (Allotment of Civic Amenity Sites) (Amendment) Rules, 2020 (for short 'the BDA Rules, 2020').

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Per contra , learned counsel for the respondentBDA submits that the property in question is shown in revenue records as 'Government Tank Bed', the maintenance of which vests with BBMP. It is submitted that BBMP has been in lawful possession overtime and that the property stands de-notified. He further submits that allotment of a CA site must necessarily follow the statutory procedure prescribed under the BDA Act. However, without prejudice, it is stated that if the petitioner seeks

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HC-KAR

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allotment of an alternative CA site from the available list (annexed to the statement of objections), the BDA would consider such request in accordance with law.

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This Court has carefully considered the contentions urged by the learned counsel for the parties and perused the materials on record.

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It is undisputed that a lease-cum-sale agreement dated 08.09.1992 was executed for a period of 30 years. The petitioner's suit in OS.No.3566/1993 was decreed restraining the BBMP and other defendants from interfering with the petitioner's possession. In RFA.No.483/2009, it was clarified that BBMP, despite the decree was not precluded from taking steps in accordance with law, if the land was indeed public property.

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Subsequently, BBMP conceded before this Court that possession was earlier taken irregularly and undertook to restore possession to the petitioner while seeking liberty to proceed in accordance with law. This

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HC-KAR

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Court recorded the submission and directed that the property, which was fenced with mesh-wire, should not be disturbed and that the BBMP was at liberty to take steps strictly as permitted under law.

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In the PIL filed by Sri. K.Jagadish, this Court observed at paragraph Nos. 10, 11, 12 and 13 as under:

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"10. Thus, we come to the conclusion that, atleast, it was not a playground or a park.

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11. Further, there was interference from respondent No.4 and the Bruhat Bengaluru Mahanagara Palike ("BBMP" for short). Therefore, a suit was instituted by the private respondent in the City Civil Court at Bengaluru being Original Suit No.3566 of 1993. The suit was decreed in favour of the private respondent.

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12. It is an admitted position that the BBMP has never made any attempt to acquire the property.

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13. We fail to see any grievance of the writ petitioner when the property was not earmarked as playground in the original layout plan, but was earmarked as commercial area. In the CDPs in 1984 and 1995, there was no bar for the authorities to

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allot this land to the private respondent as there has been no change. We are not convinced that there has been a change of user under Section 38-A of the BDA Act, inasmuch as it was neither a playground nor a civic amenity area or a burial ground. We fail to see any merit in the belated grievance of the writ petitioner with regard to the lease of the property to private respondent No.4."

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( Emphasis Supplied)

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The Division Bench of this Court categorically held that the property was neither a playground nor a park nor a civic amenity area. It categorised as commercial land and the PIL was dismissed. The Division Bench also noted that BBMP had never attempted acquisition and that there was no bar for allotment of the land to the petitioner and therefore, the allotment falls within the category of CA site eligible for conveyance under Rule 10-A of the BDA Rules, 2020.

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These findings have attained finality and favourably support the petitioner.

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HC-KAR

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Rule 10-A of the BDA Rules, 2020 reads as

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under:

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"10-A: Conditions for sale of civic amenity sites already allotted .-- Notwithstanding anything contained in these rules, the allotted civil amenity sites that have been utilised for the purpose for which it is allotted shall be conveyed in accordance with the following procedure, namely.-

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(i) the Authority shall publish the list of civic amenity sites allotted to institutions with details of allottee, dimension of civic amenity site, purpose for which it is allotted and such other particulars as the Commissioner may consider necessary, by affixing a notice on the notice board of the office and website of the Authority and any other office, as the Commissioner may decide and by publication in not less than two daily newspapers of which one shall in the Kannada, having wide circulation in the city of Bengaluru"

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Rule 10-A was inserted in 2020 to provide a

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mechanism for conveyance for CA Sites already allotted, in cases where the allottee has utilized the site for the

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purpose for which it was allotted. The Rule begins with a non-obstante clause, thereby overriding anything contained in the earlier Rules. Thus, the BDA cannot fall back on earlier procedural objections once conditions of Rule 10-A are established.

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In view of the Division Bench's categorical conclusion regarding the commercial nature of land, the respondent-BDA ought to have considered the petitioner's representation dated 08.06.2020 under Rule 10-A of the BDA Rules 2020, which permits conveyance of allotted sites used for the purpose for which they were allotted.

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The petitioner has demonstrated continuous possession, utilisation of the property and compliance with all lease conditions. The representation has remained unattended for over five years, without justification.

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For the foregoing reasons, this Court pass the following:

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HC-KAR

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ORDER

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i) The writ petition is allowed .

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ii) The respondents are directed to consider the petitioner's representation dated 08.06.2020 (Annexure-A) for execution of a sale or exchange deed in respect of CA Site formed in Survey No.40 of Marenahally, Bengaluru, strictly in accordance with Rule 10-A of the BDA Rules, 2020, keeping in mind the categorical finding of the Division Bench that the property is neither a park nor a playground but is earmarked as a commercial site in the comprehensive development plans of 1984 and 1995 and to pass reasoned order within a period of eight(8) weeks from the date of receipt of a certified copy of this order.

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