Sri K H Channappa Vs the State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE 2^ND RESPONDENT TO CONSIDER THE REPRESENTATION DATED 15/03/2024 OF THE PETITIONERS i.e. ANNEXURE-N AND PASS APPROPRIATE ORDERS.

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IN W.P. NO.8673/2024

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BETWEEN:

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SMT. SHARADHAMMA, AGED ABOUT 75 YEARS, W/O LATE JAVARAPPA,

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SRI CHIKKANNA, AGED ABOUT 58 YEARS, S/O LATE BETTAIAH,

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BOTH ARE RESIDING AT HUNASEMARADHA PALYA, RAMOHALLI POST, BHEEMANAKUPPE DHAKALE, KENGERI HOBLI, BENGALURU-560060. ...PETITIONERS

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(BY SMT. SUSHEELA S., SENIOR COUNSEL FOR SRI RAMESHA T.R., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REPT. BY ITS SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, M.S. BUILDING, BANGALORE-560001.

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THE COMMISSIONER, BENGALURU DEVELOPMENT AUTHORITY, NO.7, T. CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560020. ...RESPONDENTS

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(BY SRI HARISHA A.S., AGA FOR R-1; SRI MURUGESH V. CHARATI, ADVOCATE FOR R-2)

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HC-KAR

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE 2^ND RESPONDENT TO CONSIDER THE REPRESENTATION DATED 15/03/2024 OF THE PETITIONERS i.e. ANNEXURE-R AND PASS APPROPRIATE ORDERS.

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THESE PETITIONS COMING ON FOR DICTATING ORDERS, 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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These writ petitions are filed seeking a direction to respondent No.2-Bengaluru Development Authority (BDA) to consider the representation dated 15.03.2024, submitted by the petitioners and to protect their possession over the lands bearing Sy.No.51/1A, measuring 1 acre 12 guntas (W.P.No.8673/2024) and Sy.No.51/1 (new Sy.No.51/4), measuring 1 acre 20 guntas (W.P.No.8678/2024), situated at Kommaghatta Village, Kengeri Hobli, Bengaluru South Taluk, which according to the petitioners are the lands left out from acquisition under the notification issued for the formation of “Nadaprabhu Kempegouda Layout”.

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HC-KAR

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Brief facts in WP 8673 of 2024 :

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The petitioners claim ownership of

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Sy.No.51/1A, measuring 1 acre 12 guntas derived through a panchayathi parikath/ partition deed dated 07.03.2007,

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and they have been in continuous possession. The BDA issued preliminary notification dated 21.05.2008 and the petitioners filed objection. After considering the objection, only 28 guntas were notified and 1 acre 12 guntas was left out, mutation was accordingly carried out. Final notification dated 18.02.2010 covers only 28 guntas followed by an award notice and award dated 06.08.2016. It is submitted that the BDA issued Non Objection Certificate (NOC), sketch and layout plan all showing the petitioners’ land as left out. It is stated that the petitioners have constructed four sheet houses, compound wall, hollow brick factory, electricity connection, borewell and factory licence. That the respondent's officials allegedly attempted demolition. Hence, the petitioners submitted further representation, no action has been taken.

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HC-KAR

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Brief facts in W.P.No.8678/2024:

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It is stated that the petitioner purchased Sy.No.51/1 (new Sy.No.51/4), measuring 1 acre 20 guntas under a registered sale deed dated 27.11.2018 from Muthaiah in the original survey measuring 2 acres 10 guntas belonged to Muttaiah. Upon objections, BDA has left 1 acre 10 guntas and notified only 1 acre. Final notification, award notice and the award show acquisition of 1 acre only. Further, it is submitted that the BDA issued NOC on 07.09.2017 and sketched the marked left out land followed by the layout plan confirming exclusion of the petitioners.

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Learned Senior Counsel for the petitioners submits that the petitioners' land do not form part of the acquisition under the final notification for the formation of “Nadaprabhu Kempegouda Layout”. The BDA's NOC, sketch and layout plan clearly indicate their properties as left out and the award notices and award also confirmed that the acquisition is of only 28 guntas in

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HC-KAR

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W.P.No.8673/2024 and 1 acre in W.P.No.8678/2024.

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Learned Senior Counsel submits that the representation dated 15.03.2024 has not been considered and the BDA official has no jurisdiction to interfere with the peaceful possession or demolish these structures.

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5. Per contra , the learned counsel for the BDA submits that the petitions are liable to be dismissed. The purchasers mutations after preliminary notification conferred no right as acquisition proceedings began in the year 2008. According to BDA, original acquisition sketch (Annexure-R1 in objections) shows that the petitioners land as part of the notified area, except portion with preexisting structures. It is further contended that the later sketch relied by the petitioners allegedly prepared illegally attempt to shift the left out portion. Further, it is submitted that the co-ordination committee resolved that the original sketch must be retained, subsequent sketches are invalid, and that the structures claimed by the petitioners, sheet houses, brick factory, compound wall,

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HC-KAR

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were allegedly recent constructions, not existing at the time of acquisition, and that the petitioners purchased “imaginary property” and the boundaries in the sale deed do not match true acquisition sketch and that the petitioners cannot seek for a mandamus to protect unauthorized occupation of an acquired land.

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Having heard the learned counsel for the parties, the point that arises for consideration is:

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Whether the lands claimed by the petitioners form part of the notified and acquired land under the final notification issued for the formation of “Nadaprabhu Kempegouda Layout” and consequently, whether the petitioners are entitled for protection or possession and direction to the BDA to consider their representation?

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The final notification and the award record produced, prima facie demonstrate that in W.P.No.8673/2024, only 28 guntas was acquired and 1 acre 12 guntas was left out and in W.P.No.8678/2024, only 1 acre was acquired and 1 acre 10 guntas was left

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HC-KAR

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out. The BDA has issued NOC, clearly demarcating left out areas, sketches indicating un-acquired portion, layout plan showing petitioners’ properties as outside the acquisition boundary. These documents are official documents of BDA and were not withdrawn or superseded. The petitioners contended that they are in actual possession, through photographs, electricity connection and factory licence, and the revenue records.

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The controversy between the original acquisition sketch and the later sketches is a matter requiring verification by the BDA. This Court in exercise of writ jurisdiction need not decide the boundary dispute, but ensure fair consideration of representation and protection from illegal demolition. Whether petitioners’ representations remain unconsidered and where prima facie materials show that the lands may be left out, a direction to reconsider representation is justified and until the consideration, they are entitled for protection. Accordingly, this Court pass the following:

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HC-KAR

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ORDER

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i. Both writ petitions are allowed in part .

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ii. Respondent No.2-BDA is directed to consider the petitioners’ representation dated 15.03.2024 along with all the relevant documents including the NOC, sketches and layout plans issued by the BDA and pass a reasoned order within eight weeks from the date of receipt of this order.

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iii. Until such consideration and passing of orders, the respondents are restrained from interfering with the petitioners’ peaceful possession or demolishing any existing structures in the schedule properties.

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iv. All the rights and contention of both parties on issue of extent of acquisition, validity of the sketches and boundaries are kept open to be adjudicated before the competent authority.

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Sd/-

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____________________ JUSTICE K.S. HEMALEKHA

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AT

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List No.: 1 Sl No.: 86

Sri K H Channappa v. the State of Karnataka

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Sri K H Channappa v. the State of Karnataka

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