IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B V NAGARATHNA AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR C.C.C. Nos.388 AND 447 OF 2017 BETWEEN:
1. SMT. RATHNAMMA V., AGED ABOUT 55 YEARS W/O LATE K.VENKATAIAH, 2. SRI. RAMESH V AGED ABOUT 38 YEARS S/O LATE K. VENKATAIAH, BOTH ARE RESIDING AT NO.541/1 SRI NILAYA, 8TH B CROSS MUNINANJAPPA LAYOUT RAMAMURTHY NAGAR BENGALURU-560 016. …COMPLAINANTS (BY SRI. C M NAGABUSHAN, ADVOCATE) AND:
SRI. RAJ KUMAR KATHRI IAS., COMMISSIONER THE BENGALURU DEVELOPMENT AUTHORITY, K P WEST EXTENSION BENGALURU -560 020. ...ACCUSED (BY SRI. K KRISHNA, ADVOCATE) THESE CCCs ARE FILED UNDER SECTIONS 11 AND 12 OF THE CONTEMPT OF COURTS ACT, 1971 READ WITH ARTICLE 215 OF CONSTITUTION OF INDIA, PRAYING TO TAKE SUITABLE ACTION AGAINST THE ACCUSED BY INITIATING THE CONTEMPT OF COURT PROCEEDINGS FOR WILLFUL DIS-OBEDIENCE OF THE COURT ORDER DATED 29-06-1994 PASSED IN W.P.NO.16899/1993 (BDA) BY THIS HON’BLE COURT AT ANNEXURE-A AND ALSO W.P.NO.1178/2006 (LA-BDA) DATED 21/11/2008 AT ANNEXURE-B.
THESE CCCs COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:
ORDER The complainants have preferred this contempt petition contending that there is willful disobedience of the order of this Court dated 29.06.1994 passed in W.P. No.16899/1993 (Annexure A) and also the directions issued by this Court in W.P. No.1178/2006 dated 21.11.2008 (Annexure ‘B’).
2. At the outset it would be necessary to consider the said orders. In order dated 29.06.1994 passed in W.P. No.16899/1993 this Court on considering the case of the respective parties observed that land comprised in Sy.No.37/1 bearing kaneshumari No.287 was a subject matter of acquisition and preliminary notification was issued on 3.07.1977 and final notification was issued on 10.11.1980 and possession was taken on 09.07.1982 as contended by the respondent Bangalore Development Board (BDA). Thereafter this Court thought it appropriate that the Scrutiny Committee of the BDA ought to examine the matter and decide the question as to whether any construction had been put up on the said site in question if the petitioner filed an application. Since the petitioner had not filed any application before the authority concerned time was extended till 31.08.1994 for the petitioner to file an application before the Scrutiny Committee and a direction was issued to the BDA to consider the said application, until such time respondent BDA was not to take any coercive action and the petitioner was not to take advantage of the order to put up any further construction. Accordingly, the writ petition was disposed off. The aforesaid writ petition was filed by Sri Venkataiah. Subsequently, W.P. No.1178/2006 was filed by Venkataiah and two others seeking quashing of the mahazar with regard to taking of possession of the land said to have been taken under Section 16 of the Land Acquisition Act, 1894 dated 30.07.2005 in respect of 0.27 guntas in Sy.No.37/1 of Banasavadi village, K R Puram Hobli, Bengaluru East Taluk. The said writ petition was disposed off by the learned Single Judge of this Court on 21.11.2008 with the following directions.
(a) Petition stands disposed of (b) The Deputy Commissioner who is seized of the regularizing of unauthorized occupation shall consider the application of the 1st petitioner for such relief expeditiously, having regard to the provisions of the Karnataka Regularization of Unauthorized Construction in Urban Areas Act, 1991, moreso in relation to Sections 3 and 4 of the said Act.
(c) Since the respondents have demolished the building of the 1st petitioner, he is entitled for damages of Rs,25,000/-.
(d) In so far as the claim of the petitioners 2 and 3 is concerned, they are entitled only for the compensation payable to their vendor under the award.
3. It is clear from the above that a specific direction was issued to the Deputy Commissioner who was seized with the aspect of the regularization of unauthorized occupation to consider the application of the first petitioner therein (Venkataiah). Having regard to the provisions of the Karnataka Regularization of Unauthorized Constructions in Urban Areas Act, 1981, particularly under Sections 3 and 4 of the said Act. Since this Court found that there had been demolition of the building belonging to Sri Venkataiah, damages of Rs.25,000/- was awarded. In so far as the claim of petitioners No.2 and 3 therein were concerned, it was held that they were only entitled to compensation. There afterwards a representation was made by Sri Venkataiah to the Deputy Commissioner. On 23.9.2009 the Deputy Commissioner communicated to the Commissioner, Bruhat Bengaluru Mahanagara Palike (BBMP) that in so far as site measuring 30 x 40 feet in katha No.287 in Sy.No.37/1 is concerned, the said matter would have to be considered by the BBMP. On 14.5.2010 the BBMP has issued an endorsement to Sri Venkataiah which is at Annexure ‘D’.
4. Learned counsel for the complainants, who are the legal representatives of late K Venkataiah, submits that when there was a specific direction issued by this Court on 29.6.1994 that until an application made by Sri Venkataiah to the Scrutiny Committee of the BDA was considered, no coercive action could be taken by the BDA, the same has been violated in total disobedience of the said direction and that appropriate proceedings may be initiated against the accused.
5. In response to this learned counsel for the accused has filed an affidavit of the accused who was stated to be the Commissioner, BDA for the period from 22.6.2016 to 10.3.2017 stating that Sy.No.37/1 of Banasawadi village totally measuring 3 acres 30 guntas was inter alia acquired by the BDA for the purpose of formation of OMBR Layout vide preliminary notification dated 3.11.1977 and final notification dated 13.11.1980. That one Chikkamaleyappa was the notified kathedar of the said land and an award was passed in respect of 3 acres 30 guntas of land on 1.7.1982 which was approved on 2.7.1982. Possession of the said extent of land was taken on 9.7.1982 and the remaining extent of 0.27 guntas possession was taken on 30.07.2005. That the compensation amount was deposited before the City Civil Court, Bengaluru and thereafter the BDA has formed sites and allotted the sites to eligible applicants as well as auctioned corner sites to third parties. It is averred that Venkataiah had purchased site measuring 30 x 40 feet from the erstwhile owner on 22.12.1979 after issuance of preliminary notification. It is further averred that Venkataiah had filed O.S. No.2221/1985 seeking the relief of permanent injunction contending that he has purchased the site and was in possession. The said suit was dismissed on 31.10.1986. Thereafter W.P. No.16899/1993 was filed wherein the order dated 29.6.1994 referred to above was passed.
6. It is further stated that Venkataiah had not produced any documents before the BDA for filing any application within the stipulated time before the Scrutiny Committee. On enquiry with the Deputy Commissioner it was informed that Venkataiah has not filed any application within the prescribed time or within the extended time. That on 01.12.2005 Venktaiah made an application stating that he had filed an application before the Deputy Commissioner, Bengaluru District, Bengaluru for regularization of unauthorized construction on 22.7.1994. That BDA by its letter dated 11.3.2008 requested the Deputy Commissioner to furnish the particulars about the aforesaid applications said to have been filed by Venkataiah. The Deputy Commissioner replied on 11.3.2008 stating that Venkataiah has not made the prescribed application within the stipulated time and since the land sought to be regularized was a private land it could not be regularized. Subsequently, W.P. No.1178/2006 referred to above was field by Sri Venkataiah which was disposed of on 21.11.2008 in the aforesaid terms. On perusal of the same it is noted that in so far as regularization is concerned, a specific direction was issued to the Deputy Commissioner to consider the application, if any, filed by Venkataiah; in so far as demolition is concerned, a sum of Rs.25,000/- was awarded as damages. It is submitted that in so far as the said demolition is concerned, this Court has already found that there had been a demolition and therefore the damages had been awarded to Sri Venkataiah.
7. The affidavit further states that in so far as the land in question being 3 acres 3 guntas, in 0.27 guntas of land, BDA has formed site Nos.610, 612, 614, 616, 618, 620, 622 and 624 and in a part of site No.608 which sites have been allotted to the general public long ago. That site No.5M – 675 has been auctioned vide auction held on 22.7.2016 to 3.8.2016 and the auction sale was confirmed on 24.9.2016. In view of erection of temporary unauthorized tents and sheds by encroachers on corner site No.5M-675 the Engineering Section of the BDA on obtaining opinion from the Law Officer decided to remove the said tents and sheds. Accordingly, on 19.9.2016 approval was given to the proposal of the Engineering Section for removal of aforesaid unauthorized sheds and tents in the auction site No.5M – 675 and accordingly it is averred that on the approval of the proposal the sheds and tents on the corner site of the acquired property was removed and that there is no willful disobedience as contended by the complainant. It is stated that the said steps were taken to protect the property acquired by the BDA.
8. In the additional affidavit it has been stated that it is not clear from the boundaries as to what the boundaries of certain site numbers in 3 acres 3 guntas of land are and that the statement of the complainants that in 0.27 guntas of land one part of the eastern side is 5th main road and the remaining part of the southern side is the 5th main road are all incorrect statements. In the circumstances, the accused has sought for dropping of contempt proceedings.
9. On perusal of the directions issued by this Court and also the affidavits filed by the accused and on hearing the learned counsel for the respective parties we find that in so far as seeking regularization under the Act is concerned, a specific direction was issued to the Deputy Commissioner and not to the accused. In so far as any demolition that has taken place at the instance of the accused in W.P. No.1178/2006 there has been award of damages to an extent of Rs.25,000/-. It is also noted that the Deputy Commissioner who is not arraigned as accused in these proceedings has stated on 23.09.2009 vide Annexure ‘C’ that the matter has to be considered by the BBMP and BBMP has accordingly issued an endorsement dated 14.5.2010. In the circumstances, we do not find any force in the contention of the learned counsel for the complainants that the accused has demolished a portion of 0.27 guntas consisting of 30 x 40 feet in Sy.No.37/1 contrary to the direction issued by this Court. In the circumstances we hold that the contempt proceedings as against the accused is to be dropped.
10. However, if the complainants have any grievance with regard to the said extent of land they are entitled to seek remedies in accordance with law.
Sd/- JUDGE Sd/- JUDGE ykl