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S. Sathyanarayana & Others v/s The Commissioner, Bengaluru Development Authority, Bengaluru & Another


Company & Directors' Information:- J J DEVELOPMENT PRIVATE LIMITED [Active] CIN = U50300WB1996PTC081491

Company & Directors' Information:- L N DEVELOPMENT LIMITED [Active] CIN = U70102ML1986PLC002590

Company & Directors' Information:- K K R DEVELOPMENT PVT LTD [Active] CIN = U70101WB1981PTC034258

Company & Directors' Information:- D P S DEVELOPMENT PVT LTD [Active] CIN = U45202WB1988PTC044797

Company & Directors' Information:- DEVELOPMENT CORPN PVT LTD [Active] CIN = U13209WB1939PTC009750

    Writ Petition Nos. 15585, 15601 of 2020 (BDA)

    Decided On, 01 February 2021

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE S.G. PANDIT

    For the Petitioners: Jayakumar S. Patil, Sr. Counsel, B.G. Fayaz Sab, Advocate. For the Respondents: Prabhuling K. Navadgi, AG, M. Unnikrishnan, Advocate.



Judgment Text

(Prayer: This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India praying to call for the entire records pertaining to the case of the petitioner and grant the following reliefs. quash an impugned evicition / demolition notice bearing dated 21.12.2020, issued by the R-2 referring the Hon'ble Apex Court Order, stating that land in Sy.No.30 of Nagarabhavi Village, measuring 3 acres and 05 Guntas has been handed over to BDA on 25.11.2020 for development of park/playground and whereby called upon these petitioners to voluntarily vacate the illegal building constructed within 7 days from the date of receipt of the notice, failing which the BDA will take action Under Section 32 of the BDA Act, 1976 to remove the illegal and unathorised building/shed, which are produced herewith for the kind perusal of this Hon'ble Court and marked as Annexure-AC and AD respectively as illegal, arbitrary, capricious and the same is passed without application of mind and etc.This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India praying to quash an impugned evicition / demolition notice dated 21.12.2020, issued by the R-2 referring the Hon'ble Apex Court Order, stating that land in Sy.No.30 of Nagarabhavi Village, measuring 3 acres and 05 guntas has been handed over to BDA on 25.11.2020 for development of park/playground and whereby called upon these petitioners to voluntarily vacate the illegal building constructed within 7 days from the date of receipt of the notice, failing which the BDA will take action Under Section 32 of the BDA Act, 1976 to remove the illegal and unathorised buildng/shed, Vide Annexure-X1 to X6 respectively as illegal, Arbitrary, capricious and the same is passed without application of mind and etc.)Through Video Conference:Common Order1. Even though the writ petitions are listed for orders on I.A., with the consent of the learned counsel for the parties, both the writ petitions are taken up for final disposal.2. Since facts and prayers sought in both the writ petitions are common, they are disposed of by this common order.3. In W.P.No.15585/2020, the petitioners are before this Court, praying for a writ of certiorari to quash the notice bearing No.BDA/AEE/No.2/W.SD/674/2020-21 dated 21.12.2020 (Annexure-AC) and notice bearing No BDA/AEE/No.2/W.SD/674/2020-21 dated 21.12.2020 (Annexure-AD) and for a writ of mandamus, directing the second respondent not to take coercive action/steps to demolish schedule properties. In W.P.No.15601/2020, the petitioners are before this Court praying for a writ of certiorari to quash notices all bearing No. BDA/AEE/No.2/W.SD/674/2020-21 dated 21.12.2020 (Annexure-X1 to X6) and also for a direction to the second respondent not to take coercive action/steps to demolish the schedule properties.4. Heard learned Senior Counsel Sri.Jayakumar S Patil for Sri.Fayaz Sab, Advocate for petitioners in both the writ petitions and learned Advocate General along with Sri.Unnikrishnan, Advocate for respondents.5. Learned Senior Counsel for the petitioners would submit that the petitioners are owners in possession of the house sites more fully described in the schedule to the writ petitions, formed out of Sy.No.30 of Nagarabhavi village, Yeshwanthpura Hobli, Bangalore North Taluk having purchased the same from their earlier owners. Learned Senior counsel would submit that the petitioners have placed on record the sale deeds and katha certificates issued by the BBMP to establish their ownership. It is also submitted that the petitioners have put up residential building on the sites purchased by them and they are residing therein. Referring to endorsement dated 10.08.2007 (Annexure-W in W.P.No.15601/2020), submits that the BDA had clarified that Sy.No.30 measuring 6 acres 31 guntas is not the subject matter of acquisition under final notification dated 05.08.1986 issued in respect of Nagarabhavi layout. When things stood thus, the petitioners received impugned notices issued by the second respondent-Assistant Executive Engineer of the first respondent-Bangalore Development Authority ('BDA' for short) wherein the petitioners were directed to vacate the premises within seven days, failing which, it is stated that BDA would take action under Section 32 of the BDA Act 1976. The learned Senior Counsel would submit that the said notices indicate that notices are issued in pursuance of the order passed by the Hon'ble Apex Court in Civil Appeal No.3600/2011 dated 26.08.2019 in respect of land in Sy.No.30, measuring 3 acres 05 guntas of Nagarabhavi village. Learned Senior counsel would submit that the petitioners are not parties to the proceedings before the Hon'ble Apex Court nor any notice is issued before directing the petitioners to vacate the premises under impugned notices. Further the learned Senior counsel would submit that the notices are in the nature of order/direction, directing the petitioners to vacate the premises within seven days. Further, it is submitted that the petitioners' land would not fall within 3 acres 05 guntas in Sy.No.30 of Nagarabhavi village which was the subject matter before the Hon'ble Apex Court. Learned Senior Counsel would also submit that the petitioners have submitted representations to the respondent-BDA on 28.12.2020, which is placed on record seeking some time to reply to the notices. Thus, he prays for quashing of the impugned notices.6. Per contra, learned Advocate General appearing on behalf of respondents would submit that the Hon'ble Apex Court in Civil Appeal No.3600/2011 directed the State Government to take possession of the disputed property and to transfer the same to the appellant therein to develop the same as a Park or Playground or both, for the benefit of general public. Further, the Hon'ble Apex Court by order dated 16.10.2020 directed the State Government to take possession of the land in question measuring 3 acres 05 guntas within four weeks and transfer the said land to the BDA. Learned Advocate General refers to paragraphs 52, 55 and 57 of the Apex Court order. In pursuance of the directions of the Hon'ble Apex Court, he submits that survey was conducted on 24.11.2020 which indicates that the petitioners' land falls within 3 acres 05 guntas of Nagarabhavi village, which is the subject matter of the civil appeal before the Hon'ble Apex Court. As the Hon'ble Apex Court has directed the State Government to handover the land to the BDA within a time frame, the respondent-BDA had issued the impugned notices directing the petitioners to vacate the lands in question.7. The petitioners claim that they are the owners in possession of residential buildings in the sites formed out of Sy.No.30 of Nagarabhavi village. Sy.No.30 of Nagarabhavi village to an extent of 3 acres 05 guntas was the subject matter of Civil Appeal No.3600/2011 before the Hon'ble Apex Court. The Hon'ble Apex Court at paragraph 52 of the order dated 26.08.2019 in the above civil appeal has noted that the subject matter of the appeal is only 3 acres 05 guntas in Sy.No.30 which is reserved for civic amenities and balance meant for formation of house sites. Further the Hon'ble Apex Court at paragraph 55 observed that the appellant therein has illegally formed the sites in the other lands reserved for civic amenities in the approved plan and in order to compensate for the loss of land reserved for civic amenities, the Hon'ble Apex Court directed the entire disputed property measuring 3 acres 05 guntas in Sy.No.30 of Nagarabhavi village to be reserved for civic amenities and playground. Thereafter, by order dated 16.10.2020 directed the State Government to take possession of the said land and to transfer the said land to the Bangalore Development Authority. To comply the above directions of the Hon'ble Apex Court, the impugned notices are issued to the petitioners. All notices are identical. Notice indicates the direction of the Hon'ble Apex Court in Civil Appeal No.3600/2011 in respect of land in Sy.No.30 of Nagarabhavi village measuring 3 acres 05 guntas and also the Survey Report dated 25.11.2020. The impugned notices are in the nature of order/direction directing the petitioners to vacate the unauthorized premises within seven days and the second respondent has come to the conclusion that the petitioners' sites fall within Sy.No.30 of Nagarabhavi village based on the joint survey dated 25.11.2020.8. During the course of hearing, learned Advocate General made available additional documents. Survey Report dated 25.11.2020 is also part of the documents produced at the time of hearing. A perusal of Survey Report would indicate that survey was conducted in respect of Sy.No.30 of Nagarabhavi village, measuring 3 acres 05 guntas in the presence of Tahsildar, Village Accountant, Revenue Inspector and officials of BDA along with Special Land Acquisition Officer. But the same would not indicate the notice of survey issued to any of the occupants or petitioners who are apparently occupying the lands in question. If the petitioners were not in possession of the land in question, issuance of impugned notice was not necessary. None of the documents or Survey Report is enclosed to the impugned notices. From the material made available by both the parties, it appears that the petitioners were in dark till they received the impugned notices. When it is the case of the petitioners as well as respondents that the petitioners are in occupation of Sy.No.30 of Nagarabhavi village, the respondents ought to have made known the petitioners, the action initiated by the respondents to take possession of the land in question by putting the materials which are against the petitioners.9. No doubt, the contention of the learned Advocate General is that they are taking action in pursuance of the directions of the Hon'ble Apex Court, but it is not open for the respondents to take action in total violation of principles of natural justice. Taking possession of the land in question in pursuance of the directions of the Hon'ble Apex Court shall be in accordance with law and after affording opportunity to the occupants of the land, who are admittedly not parties before the Hon'ble Apex Court. Therefore, I am of the view tha

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t the impugned notices be treated as show cause notices and the petitioners be given an opportunity to have their say in the matter and thereafter the Commissioner of the first respondent to take a decision in the matter. Therefore, the following order:(a) The impugned notices bearing No. BDA/AEE/No.2/W.SD/674/2020-21 dated 21.12.2020 (Annexure-AC) and notice bearing No.BDA/AEE/No.2/W.SD/674/2020-21 dt. 21.12.2020 (Annexure-AD) in W.P.No. 15585/2020 and impugned notices all bearing No.BDA/AEE/No.2/W.SD/674/ 2020-21 dated 21.12.2020 in W.P.No.15601/2020 (Annexurs-X1 to X6) are treated as show cause notices.(b) Without expecting any notice, the petitioners shall appear before the first respondent-Commissioner, Bangalore Development Authority on 05.02.2021 at 3.00 p.m.(c) The learned counsel for the petitioners undertakes to file additional representation along with necessary documents, a day before the date of appearance.(d) The first respondent-Commissioner, BDA to hear the petitioners on the date fixed above and pass appropriate orders, in accordance with law.With the above observations, the writ petitions are disposed of.
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