IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2017 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.56181/2016(BDA) SMT. CH. PAULINE, W/O CH. LOKANADHA RAO, AGED 67 YEARS, # 10, PAPANNA LAYOUT, NEW BBMP HELP CENTRE, HORAMAVU, HORAMAVU POST, BANGALORE – 560043.
(BY SRI T.P. VIVEKANANDA, ADVOCATE) AND:
1. BANGALORE DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD, BANGALORE – 560020.
REPRESENTED BY ITS COMMISSIONER, 2. EXECUTIVE ENGINEER (NORTH), BANGALORE DEVELOPMENT AUTHORITY, SHOPPING COMPLEX, R. T. NAGAR, BANGALORE – 560020.
... PETITIONER ... RESPONDENTS (BY SRI M. N. SUDEV HEGDE, ADVOCATE FOR R1 & R2 ) … THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT TO CONSIDER THE REPRESENTATION DATED 22.8.2016 AT ANNEXURE-L AND PROVIDE ACCESS ROAD TO THE PETITIONERS SITE/HOUSE TO ENABLE HER TO COMPLETE THE CONSTRUCTION AND TO RESIDE THEREIN.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner has filed the present writ petition for a writ of mandamus directing the respondents- Bangalore Development Authority to consider the application dated 22.8.2016 as per Annexure-L; provide access road to the petitioner’s site/house to enable her to complete the construction and to reside therein and also to consider the representation dated 28.10.2015 for refund of the stamp duty of Rs.34,190/- and registration fee of Rs.4,650/- in terms of the order dated 21.2.2013 in W.P.No.43702/2012 as per Annexure-P.
2. It is the case of the petitioner that in response to the public notification issued by the respondents- BDA for allotment of sites in Arkavathi Layout, the petitioner had applied for allotment of site measuring 12 meters x 18 meters. Accordingly, site bearing No.37 measuring 12 meters x 18 meters in Block 12, Arkavathi Layout, formed in Sy.No.18/1A of Dasarahalli village was allotted to her. She had also paid full sital value as required under the provisions of the Bangalore Development Authority (Allotment of Site) Rules, 1982. Accordingly, the Bangalore Development Authority executed the lease-cum-sale agreement duly registered on 15.7.2007 in her favour in the office of the Additional District Registrar, Bangalore Urban District. Consequent upon the execution and registration of the lease-cum-sale agreement, she was put in possession of the site on 19.2.2007 issuing possession certificate and accordingly, the katha was also issued in her name.
3. When things stood thus, in the month of August, 2013 the petitioner came to know that certain unlawful activities by which an attempt had been made to obliterate the layout that had been formed in Sy.No.18/1A of Dasarahalli Village, in which survey number, the site allotted to the petitioner was located and the petitioner brought the same to the notice of the Executive Engineer of the respondent-Authority through letter dated 10.8.2013. Subsequently, the petitioner came to know that the owner of the land in Sy.No.18/1A of Dasarahalli i.e., James Raju Reddy & C. Joseph had filed W.P.Nos. 38732/2010 and 38733/2010 respectively for deletion of land bearing Sy.No.18/1A measuring 3 acres 4 guntas in Dasarahalli based on the judgment of the Hon’ble Supreme Court in the case of Bandu Ramaswamy. This Court by the order dated 10.12.2012 disposed of both the writ petitions directing the respondents to hold spot inspection in respect of the aforementioned lands and if it was found that the land with constructed area thereon was not capable of being conveniently integrated with the formation of Arkavathi Layout and that it formed an island, it is possible that the BDA may take a decision to recommend to the State Government to exempt the land from acquisition proceedings and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of that order. In the meanwhile, the owners of the land enclosed 3 acres 4 guntas of land by a compound wall and have totally obliterated the layout of 39 sites including 2 roads formed by the respondents.
4. In that view of the matter, the petitioner made representation to the Bangalore Development Authority on 25.4.2014 pointing out that in identical circumstances, the BDA has considered and allotted an alternative site in favour of G.K. Ramachandra, who was an allottee of site formed in the very same survey number (Sy.No.18/1A) along with the petitioner. Therefore, the petitioner requested the BDA to allot an alternative site, but the respondents have not considered her request for allotment of an alternative site. Hence, she was constrained to approach this Court by filing Writ Petition No.23563/2014. This Court by its order dated 20.07.2014 disposed of the writ petition directing the respondents-BDA to consider the case of the petitioner under Rule 11-A of the BDA Allotment Rules, 1984 and re-allot a site which process to be completed at the earliest and in any event not later than eight weeks from the date of a copy of that order.
5. Inspite of the order passed by this Court, the respondents-BDA has not complied with the direction issued by this Court. Therefore, the petitioner again made representation to the BDA on 8.9.2014 and thereafter, finally the respondents-BDA issued an allotment letter dated 17.10.2014 allotting site No.2131 measuring 12 x 18 meters at Arkavathy II Block (Sy.No.17/2), Sampigehally. After receipt of the allotment letter, the petitioner approached the Office of the respondents-BDA requesting to issue possession certificate and to complete the process of re-allotment. Since her request was not considered, again she was forced to approach this Court in Writ Petition No.29879/2014, since there was an interim order operating against the BDA directing not to allot any site formed in Sy.No.17/1, the respondents allotted another site in favour of the petitioner and the said writ petition was disposed of on 26.11.2014 directing the BDA to earmark 40% of the developed area to be allotted in lieu of the compensation in respect Sy.Nos.14/4, 15 and 17/1 and further directed identification of 40% of the area and to hand over the possession of the land within three months. In view of the above circumstances, the petitioner instituted contempt of court proceedings in CCC (Civil) No. 415/2015 and during the pendency of the same, the respondents-BDA issued another letter of allotment dated 2.5.2015 allotting an alternative site bearing site No.1048 measuring 12 x 18 meters at Arkavathi Layout, 6th Block (Sy.No.94/7), Thanisandra. Thereafter, the possession certificate came to be issued on 16.10.2015 after execution of the lease-cum-sale agreement in respect of the site allotted by the respondents.
6. In pursuance of the lease-cum-sale agreement and possession certificate issued by the respondents- BDA, the name of the petitioner was entered in the khatha in respect of Sy.No.1048 measuring 12 x 18 meters, the petitioner with an intention to construct residential house, applied for sanction of building plan and license on 3.12.2015. The respondent-BDA granted building license and approved the building plan for construction of residential house consisting of stilt floor, ground floor, and first floor and subsequently executed the absolute registered sale deed on 1.9.2016. The petitioner also availed the house loan of Rupees Thirty Five Lakhs from the State Bank of Travancore by deposit of title deed on 25.4.2016 and commenced the construction. Now the entire construction is completed except the finishing work.
7. The site allotted in favour of the petitioner is situated in Sy.No.94/7 of Thanisandra village. The location where the site allotted to the petitioner situated is like an island surrounded by the lands which are neither acquired nor dropped from the acquisition proceedings. About 50 to 60 sites are formed in Sy.Nos. 94/7, 94/8, 94/9. The said block is surrounded by the lands bearing Sy.No.94/6, 94/5, 94/4A, 95/2, 95/3 and 12 meters road which is the boundary of the layout in question. To the sites formed in Sy.Nos. 94/7, 94/8 and 94/9, the only access road is through 12 meters road which commences from 24 meters wide RMP road which passes through the land bearing Sy.No.100/2, 97/1 part of Sy.Nos. 97/5 and 95/3. Till today, the petitioner had no difficulty to reach her site as well as to transport the construction materials upto the building site. When the things stood thus, during the first week of August, 2016, the petitioner found that the 12 meters road which starts from 24 meters wide RMP road at the point at Sy.No.97/5 has been dug, obstructing the access to the sites formed in Sy.Nos.94/7, 94/8 and 94/9 which is the only way to reach the site of the petitioner.
8. When she came to know by the Engineering Section of the respondent-BDA that the land bearing Sy.No.97/5 has been de-notified and the land owner taking advantage of the order of the de-notification has obliterated the road formed by the respondent which consequently affected the right of way to the petitioner’s site. Therefore, the petitioner approached the respondents-authorities on 22.8.2016 by making representation for providing access road and connecting road to her site/house to enable her to complete the construction and to reside therein. Inspite of such representation, the respondents have neither considered nor have passed any orders.
9. It is the further case of the petitioner that though she had given earlier representation dated 28.10.2015 for refund of stamp duty of Rs.34,190/- and registration fee of Rs.4,650/- in respect of site No. 2131 in terms of the order passed by this Court, but the same has not been considered by the respondents. Therefore, the petitioner is before this Court for the relief sought for.
10. When the matter came up for admission on 19.1.2017, this Court directed the learned Counsel for the BDA to file affidavit of the officer concerned in response to the petition averments by 27.1.2017. In compliance of the said order passed by this Court, Sri H.L. Venkatesh, Executive Engineer, Bangalore North Division, Bangalore Development Authority, has filed an affidavit dated 20.9.2017 specifically stating that certain adjacent lands to Sy.No.94/7, Thanisandra village were de-notified and hence, the access to the site of the petitioner which formed a part of the de-notified land is not in existence any more. The said matter was placed before the Board and was numbered as Subject No.76/2017 dated 9.6.2017. Further it is stated that as noticed by the Board, a total area of 19 acres and 12 guntas of land was required to form access road as these roads were left out due to de-notification and redo access. It was also resolved by the Board that an extent of 19 acres 12 guntas of land could be acquired and the land owners would be compensated by giving them developed sites in Arkavathy Layout or in any other subsequently formed layout in the ratio of 40:60 as per the Government Circular of the year 2011. A copy of the relevant portion of the Board decision had been produced as Annexure-R1. It is further stated that the Board is duty bound to provide access roads to the allottees of the sites and the Bangalore Development Authority would now acquire the requisite lands and form the roads. The whole procedure of acquiring the lands and the formation of the access roads would require a minimum period of nine months.
11. Sri M.N. Sudev Hegde, learned Counsel appearing for the respondents-BDA submitted that already acquisition proceedings have been initiated by the Bangalore Development Authority and action will be taken to provide access to the petitioner’s site within a period of six months without asking further extension of time. The said fair submission is placed on record.
12. Having heard the learned Counsel for the parties, the averments made in the writ petition with regard to allotments of sites by the respondents-BDA i.e., first, second and ultimately on third occasion in favour of the petitioner is not in dispute. It is also not in dispute that the BDA had executed the sale agreement in respect of an alternate site No. 1048 in Sy.No.94/7 of Thanisandra, Arkavathi Layout in the name of the petitioner and she was also put in possession. The respondent BDA had also executed the sale deed as stated supra and the petitioner has completed construction after obtaining building license and approved building plan for construction of residential house from the BDA. The Executive Engineer, who has filed the affidavit before this Court, has also admitted the allotments and filing of several writ petitions by the petitioner. He has also stated that it is the duty bound to provide access roads to the allotees of the sites including the present petitioner and it is necessary to take steps to acquire the requisite lands for formation of roads, in which, access road would be provided to the petitioner. Therefore, the learned Counsel for the BDA seeks six months time to provide access road to the petitioner’s site.
13. The history of this case clearly depicts the laxity on the part of the authorities of the Bangalore Development Authority while allotting a sites and de-notifiying the same and subsequently, allotting another site and again de-notifying. Ultimately the petitioner, who is aged about 67 years, finally was able to get allotment of site bearing No.1048 and still there is no mental peace to her. All these acts of the Bangalore Development Authority is nothing but playing with the life of the citizens of the State and also with the Court in obstructing the Judicial process. This Court only trusts and hopes that BDA should not repeat such things and it should act as Bangalore Development Authority so as to fulfill the intention of the Legislature while enacting the Act for development of City of Bangalore and the areas adjacent thereto and not otherwise in the interest of the public at large. For the reasons stated supra, the petitioner has made out a judicially enforceable as well as legally protected right to issue writ of mandamus as prayed for.
14. In view of the above, writ petition is allowed.
A writ of mandamus is issued directing the respondents-BDA to consider the representation dated 22.8.2016 and provide access road to the petitioner’s site/house to enable her to complete the construction and reside therein in terms of the affidavit filed before this Court by the Executive Engineer, Bangalore Development Authority, Bangalore North Division, Bangalore dated 20.9.2017, without driving the petitioner further before this Court and also directed the respondents-BDA to consider the representation dated 28.10.2015 for refund of stamp duty of Rs.34,190/- and registration fee of Rs.4,560/- in terms of the order passed by this Court on 21.2.2013 made in W.P.No.43702/2012 and pass orders for refund of money within a period of four weeks.
15. Further the respondents/Bangalore Development Authority is directed to provide access road to the petitioner’s site/house as promised by the BDA in the affidavit dated 20.9.2017 filed before this Court by the Executive Engineer within a period of six months from the date of receipt of a copy of this order without fail, failing which, the petitioner is at liberty to file a contempt petition before this Court against the BDA in accordance with law.
Sd/- Judge Nsu/-