IN THE HIGH COURT OF KARNATAKA AT BENGALURU. DATED THIS THE 09TH DAY OF JULY 2019 BEFORE THE HON'BLE Mr. JUSTICE B.VEERAPPA WRIT PETITION NO.17935/2010(GM-RES) BETWEEN:
1. Smt. Gowramma W/o. late Sri P. Narayanaswamy Aged about 70 years.
2. Smt. Rathnamma W/o Sri D.R. Balakrishna Aged about 50 years Died by LRs’ 2(a) B. Manjunath S/o. D.R. Balakrishna Aged about 43 years 2(b) B. Ashadevi W/o. Late S.N. Anandan Aged about 41 years 2(a) & 2(b) residing at No.2095, 2nd Cross, 8th Main Road Judicial Layout, G.K.V.K. Road Yelahanka, Bangalore-560 065.
2(c) B. Ravishankar S/o. D.R. Balakrishna Aged about 39 years Flat No.9, 2nd Cross 2nd ‘A’ Main Road Juganahalli, II Block Rajajinagar Bangalore-560 010.
(Amended vide order dated 07.12.2017) 3. Sri N. Muniraju S/o late P. Narayanaswamy Aged about 48 years 4. Smt. N. Saraswathi W/o. Sri Puttaswamy Aged about 37 years 5. Smt. N. Padmavathi W/o. Sri Adaveesha Aged about 39 years 6. Sri N. Ramu S/o. late P. Narayanaswamy Aged about 34 years 7. Smt. Suchitra W/o Sri Krishna Aged about 29 years 8. Sri N. Gururaj S/o late P. Narayanaswamy Aged about 27 years 9. Sri N. Gopalakrishna S/o. late P. Narayanaswamy Aged about 32 years.
All are residing at No.7/1 Jugunahalli, Rajajinagar II Block Bangalore-560 010.
The petitioners 1 to 8 are represented By their G.P.A holder Sri Gopal Krishna the 9th petitioner.
10. Smt. Thayamma W/o. Late Muniyappa Aged about 60 years 11. Sri Rajanna S/o. Late Muniyappa Aged about 50 years.
12. Sri Radha Krishna S/o Late Muniyappa Aged about 45 years 13. Sri Manjunath S/o Late Muniyappa Aged about 40 years 14. Sri. Somashekar S/o Late Muniyappa Aged about 36 years.
15. Sri. Jayadev, S/o. Late Muniyappa, Aged about 36 years.
Petitioners 10 to 15 are R/at No.14/6, Juganahalli Main Road 2nd Block, Rajajinagar Bangalore-560 010.
The petitioners 10 to 14 are represented by their GPA holder Sri M. Jaydev the 15th petitioner ... Petitioners (By Sri. S.V. Bhat, Advocate for Sri B. Manjunath, Advocate) AND:
1. The Slum Clearance Board Sheshadripuram Bangalore Represented by its Commissioner 2. The Deputy Commissioner Bangalore North Division Bangalore 3. Sri R. Ashok Father’s name not known to the petitioner Aged about 52 years R/a. No.123, ‘Srinilaya’ Sharadambanagar, Jalahalli Bangalore-560 013.
4. Sri Rajanna Father’s name not known to the petitioner Aged about 47 years Councilor, Rajajinagar Ward Bangalore-560 010.
... Respondents (By Sri. Y. D. Harsha, AGA for R2; Sri. M.P. Srikanth, Advocate for Sri M.S. Parthasarathi, Advocate for R1; R3 and R4 are served but unrepresented) This writ petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order passed by the second respondent vide Annexure-M and etc., This petition coming on for Hearing this day, the Court made the following:-
O R D E R The petitioners, who claim to be the legal representatives of the original owner filed the present writ petition seeking writ of certiorari to quash the order passed by respondent No.2 – Deputy Commissioner dated 27.07.2004 as per Annexures – M and P and writ of mandamus directing respondent No.1 to demolish the structure/construction put up on the property belonging to petitioners and further seeking writ of certiorari to quash the preliminary notification dated 18.01.2005 issued by respondent No.2 and published in the official Gazette on 03.03.2005 vide Annexure – N; seeking writ of certiorari to quash the final notification dated 21.07.2008 issued by respondent No.2 and published in the official Gazette on 18.09.2008 as per Annexure – T.
2. It is the case of the petitioners that, petitioner Nos.1 to 9 are the wife and children of deceased – P. Narayanaswamy and Petitioner Nos.10 to 15 are the wife and children of deceased – Muniyappa and are having 2/3rd share in the property bearing Sy. Nos.176, 176/1A and 176/1B situated at Laggere Village, Bangalore North Taluk, measuring 3 acres 24 guntas. The said property originally belongs to one Madiwala Papaiah. The said papaiah had four sons. Ultimately, dispute arose between the sons of Madiwala Papaiah, as the property was sold by the third son fraudulently. A suit was filed by Muniyappa and others in O.S. No.9220/1980, which came to be decreed on 16.03.2002 holding that the sale deeds dated 18.10.1967, 24.07.1972 and 13.04.1973 were void to the extent of 2/3rd share of the petitioners and Muniyappa and that they are entitled to 2/3rd share and possession of the same. Thereafter, the petitioners have initiated final decree proceedings in FDP No.36/2003 and the same is pending. The said Muniyappa died and his legal representatives-petitioner Nos.10 to 15 were also brought on record.
3. It is further stated that in pursuance of the FDP passed on 27.11.2014, the petitioners became the owners of the above said property measuring 3 acres and 24 guntas. When things stood thus, that on the requisition made by some of the occupants, respondent No.2 – Deputy Commissioner has issued preliminary and final notifications dated 18.01.2005 and 21.07.2008 respectively, which was the subject matter of writ petitions before this Court in W.P. No.4900/1989 by the original owners P. Narayanaswamy and Sri.
Muniyappa in W.P. No.15895/1990 filed by M/s. Taramandal House Building Co-operation Society Limited. After hearing the parties, by order dated 17.07.1996 and 19.02.1996 respectively, both the writ petitions were allowed and quashed the impugned preliminary and final notifications and directed respondent No.2-Deputy Commissioner to afford an opportunity to the petitioner therein to putforth this contentions along with the petitioner in Writ Petition No.15895/1990 and to pass appropriate orders. The said orders passed by this Court has reached finality. Thereafter, the Deputy Commissioner has inspected the spot on 19.06.2001 and stated that out of 3 acres 5 guntas in Survey Nos. 176/1A and 176/1B of Laggere village, most of the extent, the big buildings, commercial complex, houses are existing and therefore, the entire extent cannot be declared as slum area and directed the Secretary, the Slum Clearance Board to verify the buildings, complexes and houses and send the detailed report as to which area is vacant to declare as the slum area.
4. The Secretary, Karnataka Slum Board has submitted a report and based on the same, the Deputy Commissioner has issued an order dated 27.07.2004 to declare 2 acres 38 guntas as slum under Section 3 of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973 (for brevity “the Act”) which was the subject matter of the writ petition before this Court in W.P. No.12505/2005 and connected writ petition. This Court after hearing both the parties, by the order dated 07th August 2007, declined to entertain the writ petitions, but granted liberty to file appeal under Section 59 of the Act and extended the interim stay until appeal filed within four weeks from then. Thereafter, the petitioner approached this Court by challenging the orders passed by the learned Single Judge in W.A. No.2188/2007. The Division Bench of this Court by the order dated 03.03.2009 dismissed the writ appeal as withdrawn on the ground that during the pendency of the appeal, the final notification was issued under Section 3 of the Act declaring the impugned lands as slum. Therefore, the present writ petition is filed for the relief sought for.
5. I have heard the learned counsel for the parties to the lis.
6. Sri. S.V. Bhat, learned counsel for petitioners vehemently contended that the impugned orders passed by respondent No.2 as per Annexures – M & P and also notifications at Annexures - N & T is wholly erroneous and contrary to the material evidence on record. He would further contended that, on careful reading of Annexures – M and P, it is clear that there are two different orders passed by respondent No.2 on the same day. Thus creating suspicion about the genuineness of the entire proceedings and the handy work by the persons, who are having vested interest. It is further contended that the orders, at Annexures – M and P, clearly depicts that the Deputy Commissioner has inspected the spot along with the officers, local MLA’s, local corporators and slum dwellers. He further submits that the orders dated 27.07.2004 passed by the Deputy Commissioner at Annexures – M and P, there is no clarity as to what extent the buildings, commercial complex and RCC roof houses are existing and what is the area acquired by slum dwellers? In the absence of proper report, the very action initiated by respondent No.2 – Deputy Commissioner issuing preliminary and final notifications cannot be sustained.
7. He further contended that the impugned orders passed by the Deputy Commissioner exercising power under Section 3 of the Act, is an utter violation of principles of natural justice and the same cannot be sustained. It is further contended that the orders passed by this Court on two occasions directing the respondent No.2 – the Deputy Commissioner that an opportunity should be given to the petitioners and the same has not been complied. Therefore, the impugned orders cannot be sustained.
8. He further contended that respondent No.2 has not followed the provisions of Section 3 of the Act; which reads as thus:
(a) “any area is or is likely to be a source of danger to health, safety or convenience of the public of that area or of its neighborhood, by reason of the area being low-lying, insanitary, squalid, over- crowded or otherwise; or (b) the buildings in any area, used or intended to be used for human habitations are:
1. in any respects unfit for human habitation;
2. by reasons of dilapidation, over- crowding faulty arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities, or any combination of these factors, detrimental to safety, health or morals;
it may, by notification declare such area to be a slum area.”
Therefore, he submits that the impugned order cannot be sustained and it is liable to be quashed.
9. He further contended that when the Special Deputy Commissioner himself has inspected the spot on 19.06.2001, after verification, he has clearly and specifically stated that the land in question has been fully developed and all facilities are available. Hence, the entire area cannot be declared as slum and the same is reported. In spite of such report, in the absence of any subsequent report, it is contrary to the earlier report initiated by the Deputy Commissioner declaring that the entire area to the extent of 7 guntas as slum is without any basis and contrary to the actual fact of the properties in question. He has produced photographs at H1 series, which clearly depicts that the existence of big buildings, commercial complex, hospital, houses in the property in question. Therefore, he sought to allow the writ petition.
10. Per contra, learned counsel appearing for respondent No.2 - State Government has filed the statement of objections and sought to justify the impugned orders and contended that the writ petition filed by the petitioner for relief sought for is not maintainable.
11. He further contended that during the spot inspection, it was observed that there were about 260 houses existing in Shankara Mutt road, ten commercial buildings and on the side of pipe line 9 commercial buildings have come up and in hotel, there were 188 sheet houses, 21 tiled roof houses, 26 RCC roof houses were existing having dimension of 10 ft. X 10 ft. and 10 ft. X 15 ft. In the slum area ‘Kacha’ roads are formed and no drinking water facility; that no space is left between one house and the other as well as they are all adjunct to the other; that the inner roads are very congested; that there is no proper light and air to the inhabitants. It is also ascertained that for providing civic amenities such as electricity, street lights, water, road etc., to this area, the BBMP has already spent about Rs.1.5 to 2.00 crores. Taking into consideration the entire materials on record, the impugned orders passed by the Deputy Commissioner exercising power under Section 3 of the Act, is just and proper and sought for dismissal of the present writ petition.
12. Sri. Y.D. Harsha, learned AGA appearing for respondent No.2 reiterating the averments made in the statement of objections contended that the Deputy Commissioner, who is competent Authority has inspected the spot and after satisfying himself and taking into consideration of the entire surroundings and facts and circumstances of the case, has declared the property in question as slum area and therefore, this Court cannot interfere with the impugned orders exercising power under Articles 226 and 227 of the Constitution of India. Therefore, sought for dismissal of the petition.
13. Sri. M.P. Srikanth, learned counsel for respondent No.1 – Karnataka Slum Clearance Board also filed objections to the main petition and contended on the requisition made by respondent No.1-Secretary, Karnataka Slum Board that the Deputy Commissioner has inspected the spot and after being satisfied himself has declared the area in question as slum. It is further submitted that providing few basic facilities, the entire slum area cannot be assessed as fully developed. The action taken to notify the said area as slum is only after satisfying the parameters of the Act would met or not? The second respondent has notified only after due care and caution in accordance with law. Hence, the contentions of the petitioners that the notification is not as per the ingredients of Section 3 of the Act, invoking the provisions of the Act to declare as slum is totally denied, false and untenable. Therefore, sought for dismissal of the writ petition.
14. Having heard the learned counsel for the parties, it is undisputed fact that this is the third round litigation by the petitioners challenging the very action of the respondents. It is also not in dispute that the petitioners are the owners of the property in question, which measuring in total 3 acres 24 guntas. It is also not in dispute that earlier, the very Deputy Commissioner issued preliminary and final notifications under Section 3(1) and 3(2) of the Act, which was the subject mater of the writ petitions before this Court in W.P. Nos.4900/1989 and 15895/1989. This Court considering the rival contentions held that the preliminary notification and final notification issued cannot be sustained against the petitioners and the petitioners were not given an opportunity of being heard before issuing the notifications by the Deputy Commissioner. The said order passed by this Court has reached finality. It is also not in dispute that subsequently, the Deputy Commissioner passed the order on 27.07.2004 declaring 2 acres 38 guntas excluding 7 guntas as per Section 3 of the Act. This Court declined to interfere with the impugned order on the ground that the impugned order passed by the Deputy Commissioner are in the nature or recommendations and liberty was given to the petitioners to urge all the grounds in the appeal is filed before the Government. It is also not in dispute that the petitioners have filed the writ appeal before this Court in W.A. No.2188/07. The Division Bench of this Court by the order dated 03.03.2009, disposed of the appeal as withdrawn in view of the statement made that final notification came to be issued with liberty to the petitioners to challenge the same by filing objections in the appeal.
15. It is also not in dispute that after the orders passed by this Court on 17.07.1996, allowing the writ petitions filed by the petitioners with liberty to the respondent to proceed in accordance with law after giving an opportunity to the petitioners, the Deputy Commissioner has inspected the spot on 19.06.2001 and recorded the findings that almost the area is covered with big buildings, commercial complex, RCC roofs and the entire area cannot be declared as slum and therefore, directed the Secretary, Karnataka Slum Clearance Board to verify all the buildings, complexes and houses and submit a detailed report.
16. The material on record does not depicts any subsequent recommendation made by the Secretary, Slum Board on the basis of the direction issued by the Deputy Commissioner. When things stood thus, the Deputy Commissioner passed and order on 27.07.2004 declaring 2 acres 38 guntas excluding 7 guntas land as slum under Section 3 of the Act. On the same day, two orders came to be passed by the Deputy Commissioner under the same No. KSCCR15/90 as per Annexures – M and P. Annexures – M depicts that it consists of 9 pages and Annexure – P consists of 10 pages. Annexure – P is verbatim of Annexure – M up to 8 pages and in Annexure – P, in page No.9 given the details of commercial buildings, which reads as under:
SL.
NO.
PROPER TY NO.
OCCUPANT UTILITY EXTENT (IN SQ.FT) 1 8 Velu Workshop 15’ x 20’ 2 16 Abdul (Mariyan) Provision Stores 15’ x 20’ 3 49 Meeramma Agarbathi 20’ x 21’ – 1st Cross
17. Ultimately, it is stated that total area covered by commercial building is 7 guntas area covered with roads to the extent of 2 acres 38 guntas and declared as slum area in one breath. Annexure – M clearly depicts about 260 commercial buildings are existing. Both the orders does not depict the area, which can be declared as slum, also refers to the presence of the local MLA, local corporators and slum dwellers and does not depicts the presence of the owners of the property in question. When the Deputy Commissioner inspected the spot on 17.01.2004, he also recorded the statement of MLA regarding seeking amenities such as, electricity, street lights, drinking water etc. to the area in question. The BBMP also spent 1.5 to 2 crores. On the basis of the said orders/directions by the local MLA, coporators, the impugned Annexures came to be issued by the Deputy Commissioner on 18th Jan 2005 and final notification on 21st July 2008. It does not depict that an opportunity of hearing is provided to the owners..
18. Though learned counsel for respondent No.2 - State as well as Slum Board – respondent No.1 tried to persuade this Court that there is no provision in the Act to issue notice and to give an opportunity for personal hearing while issuing notification under Section 3 of the Act, the said contention cannot be accepted in view of the dictum of the Hon’ble Supreme Court while considering the provisions of the Mysore Slum Areas (Improvement and Clearance) Act, 1958 in the case of THE GOVERNMENT OF MYSORE AND OTHERS v. J.V.
BHAT ETC. reported in AIR 1975 SC 596 at paragraph Nos.2 and 8 has held as under:
2. “There are two possible approaches to this question. One is to hold that the provisions of the statute are themselves unconstitutional because they do not provide a reasonable opportunity for the affected parties to be heard, the other is to hold that as there is nothing in the statutory provisions which debar the application of the principles of natural justice while the authorities exercise the statutory powers under the Act, and as the principles of natural justice would apply unless the statutory provisions point to the contrary the statutory provisions themselves are not unconstitutional though the notifications issued under them may be struck down if the authorities concerned do not observe the principles of natural justice while exercising their statutory powers. As there is a presumption of constitutionality of statutes unless contrary is established it is the latter course that appears to us to be the proper approach.
8. We think that the Electricity Commrs’. case 1924-1- KB 171 (supra), which was followed by this Court in Khushaldas S.Advani’s case AIR 1950 SC 222 (supra), was not really a departure from the general principle laid down in (1863) 14 CB (NS) 180 (supra), but, it was an attempt to formulate the conditions under which the general principle laid down there by Erle, C.J., who quoted the Biblical story of how even God Himself had given Adam an opportunity of answering why he had eaten the forbidden fruit before expelling him from paradise was applicable in the circumstances of an increasingly complex economic and social order whose problems compelled the emergence of the welfare socialistic State with its many organs armed with extensive powers. Courts attempted, in the interests of justice, where its imperative demands were not met, to control administrative action by assimilating it to judicial action over which Courts could exercise supervision. In later cases, emphasis was more on the needs of justice and fairness rather than upon the distinction between the judicial and administrative action. Administrative action had, however, to be given free scope within its legitimate sphere without jeopardizing rights of individuals affected. Policies and schemes, framed under statutory provisions, which affected rights of individuals could impose the obligations upon the authorities taking what were essentially administrative decisions at points at which they begin to impinge on specific individual rights. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but, on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding that the “audi alteram partem” rule could be imported. The nature of the hearing would, of course, vary according to the nature of the function and what its just and fair exercise required in the context of rights affected.”
19. In view of the aforesaid admitted facts, respondents were under obligation to provide an opportunity of hearing to each of the petitioners before passing declaration under Section 3 of the Act, Audi alteram partem rule could be imported. The nature of hearing would, of course, vary according to the nature of the function and what its just and fair exercise required in the context of rights affected. Admittedly in spite of direction issued by this Court on two occasions to provide an opportunity to the petitioners either at the time of inspection by the Deputy Commissioner or the Secretary, Slum Clearance board or at any time have not provided an opportunity of being heard before passing the impugned orders. On that ground alone, the impugned orders cannot be sustained and the matter requires reconsideration.
20. For the reasons stated above, writ petition is allowed and the impugned orders at Annexures – M, N, P and T are hereby quashed.
The matter is remanded to respondent No.2 – Deputy Commissioner to inspect the spot along with the present petitioners and the respondent No.1-Board and localists/slum dwellers. After proper spot inspection and drawing up of mahazar, he can proceed strictly in accordance with law. However, it is made clear that mere quashing of the impugned orders under challenge, would not authorize the petitioners to dispossess the slum dwellers, who are residing property in question without due course of law.
In view of disposal of the main writ petition, question of considering I.A. Nos.1/2016 and 2/2016 filed by the impleading applicants would not arise as the interest of the applicants is also protected.
Sd/- JUDGE VBS