IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.Nos.41162 & 43690/2019 (BDA) BETWEEN :
1 . SHRI Y.GOVARDHAN REDDY S/O SHRI Y.CHANDRA REDDY AGED ABOUT 39 YEARS 2 . SMT.SUPRIYA ADALA W/O SHRI Y GOVARDHAN REDDY AGED ABOUT 39 YEARS BOTH ARE R/AT NO.5766M MURRAY CIRCLE, DUBLIN OH USA 43016 BEING REP BY THEIR GPA HOLDER SHRI Y.CHANDRA REDDY S/O SHRI Y.SIDDA REDDY AGED ABOUT 62 YEARS, R/AT CHINNAMUTUKU NADIMICHERLA POST KALAKADA MANDAL CHITTOOR DISTRICT-517 305 ANDHRA PRADESH ...PETITIONERS (BY SRI PRAKASH TIMMANNA HEBBAR, ADV.) AND :
1 . THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD, KUMARA PARK WEST BENGALURU-560 020 2 . THE ENGINEER OFFICE-II BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD, KUMARA PARK WEST BENGALURU-560 020 3 . THE SUPERINTENDENT OF POLICE TASK FORCE BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD, KUMARA PARK WEST BENGALURU-560020 4 . SMT.S.SELVI W/O LATE D.DIWAKAR AGED ABOUT 51 YEARS, R/AT NO.680, 2ND CROSS, NEW BINNY LAYOUT, BINNYPET BENGALURU-560 023 5 . STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT M.S. BUILDING, Dr. B.R. AMBEDKAR VEEDHI BENGALURU-560001 REP BY ITS PRINCIPAL SECRETRY …RESPONDENTS (BY SRI M.V.CHARATI, ADV. FOR R-1 TO R-3; SRI K.SRINIVASA GOWDA, ADV. FOR R-4; SRI E.S.INDIRESH, AGA FOR R-5.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER BEARING No.3869 DATED 11.10.2018 PASSED BY THE COMMISSIONER, BDA, AS PER ANNEXURE-A AND ORDER DATED 5/9.11.2018 AT ANNEXURE-B PASSED BY THE R-2 ENGINEER OFFICER II BDA RESPECTIVELY.
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel for the respective parties.
2. The petitioner is aggrieved by the order dated 11.10.2018 passed by the Commissioner-BDA as per Annexure-A and order dated 5/9.11.2018 passed by the 2nd respondent-Engineer Office-II, BDA, as per Annexure-B.
3. The petitioners are claiming to be the owners of the land measuring 3254.5 sq. feet in the layout formed by Subramanya Enterprises at Rachenahalli village, K.R.Puram Hobli, Bangalore. It is the contention of the petitioners that the land owner of Sy.No.No.104/6 of Rachenahalli village, K.R.Puram Hobli, Bangalore, developed the land measuring to an extent of 1 acres 32 guntas integrated to a residential layout and sold site No.15 to the petitioners predecessor in title Sri.T.K.Subbanna on 26.11.1994, pursuant to which, BDA issued a Preliminary Notification on 3.2.2003 proposing the acquisition for formation of Arkavathi Layout including the site in question. Final Notification dated 5.3.2003 was issued by the BDA. After conclusion of the acquisition proceedings and forming the layout, the BDA allotted site No.RH 240 to one Sri.Linganna, the vendor of the 4th respondent herein in exchange for Linganna’s site No.828 in V Block, Arkavathi layout. An absolute sale deed was executed in favour of Linganna on 6.1.2018. Respondent No.4 has purchased the said site on 15.2.2018 for a valuable consideration through a registered sale deed from his vendor Linganna. Accordingly, 4th respondent is claiming his rights over the site measuring 1200 sq. feet in the land in question.
4. The complaint by 4th respondent not being acted upon by the BDA, W.P.No.2847/2018 was filed by the respondent No.4 before this Court. On the instructions of the Asst. Executive Engineer, who was present before the Court, the submissions made by the learned counsel for the BDA were recoded. Accordingly, this court directed the BDA to remove the unauthorized encroachment in the subject site within a period of six weeks from the date of the order.
5. The petitioners herein had challenged the said order before the Division Bench in Writ Appeal No.3027/2019 which came to be disposed of, observing that not withstanding the order impugned in the appeal, it will be open for the appellants/petitioners herein to challenge the order at Annexure-B herein, in accordance with law. It was further observed that if any interim order is granted in the proceedings which may be adopted by the petitioners herein, it will be open for the petitioners to make appropriate application before the learned Single Judge for recall/modification of the impugned order dated 1.07.2019. Hence, the petitioners have filed the present writ petitions challenging the orders passed by the BDA impugned herein along with an application (I.A.No.2/19) in W.P.No.2847/2018 seeking for recall/modification of the order dated 1.7.2019.
6. Learned counsel for the petitioners would contend that the orders impugned are hit by the principles of natural justice and passed without jurisdiction. It is the grievance of the petitioners that no opportunity of hearing was provided before passing the orders impugned. It is submitted that by virtue of the Government order passed by the BDA in its meeting dated 18.4.2017, the vendor of the petitioners was entitled for allotment of sites. The petitioners being the successors in title are entitled to the benefit flowing from the decision of the BDA dated 18.4.2017. Hence, the petitioner cannot be considered as an unauthorized occupant to proceed with the removal of the building under construction as an unauthorized encroachment without hearing them.
7. Learned counsel for the respondent No.4 would submit that pursuant to the sites formed in the Arkavathi Layout by the BDA, site No.RH 240 measuring 30 x 40 feet was allotted to the vendor of the respondent No.4 on 6.1.2018 and the same has been purchased by the respondent No.4 through a registered sale deed on 15.2.2018. No rights have been accrued either to the vendor of the petitioners or the petitioners herein to claim the rights over the site of the respondent No.4.
8. Learned counsel for the BDA would submit that the petitioners have no right to claim title over the property in question since indisputably, the subject property has been purchased by them through their vendor on 8.2.2019 pursuant to the allotment of site No. RH 240 measuring 1200 sq. feet to the vendor of the respondent No.4 from whom the respondent No.4 has purchased through a registered sale deed. It is submitted that the petitioners in addition to that are encroaching C.A. site. Accordingly, the petitioners being unauthorized occupants, the encroachment requires to be removed.
9. I have carefully considered the submissions of the learned counsel for the parties and perused the material on record.
10. It is not in dispute that no opportunity of hearing was provided to the petitioners before passing the orders impugned which goes to the root of the matter. It is well settled that no construction could be removed even assuming it is unauthorized construction, without providing an opportunity of hearing to the concerned. In the circumstances, without going into the merits or demerits of the case, this Court deems it appropriate to set aside the orders impugned directing the BDA to provide an opportunity of hearing to the petitioners as well as the respondent No.4 and take a decision in accordance with law.
11. The petitioners as well as respondent No.4 shall appear before the Commissioner-BDA respondent No.1 on 25.11.2019 at 3.00 p.m. without waiting for any notice and shall take further orders. The Commissioner after hearing the parties concerned and analyzing the material on record shall take a decision in accordance with law in an expedite manner, in any event, not later than six weeks from 25.11.2019. All rights and contentions of the parties are left open.
12. In view of the order passed in these writ petitions as aforesaid, the undertaking given by the BDA to remove the unauthorized encroachment in site No. RH 240 measuring 1200 sq. feet shall be subject to the decision to be taken by the Commissioner. I.A.2/19 in W.P.No.2847/19 stands disposed of accordingly.
With the aforesaid observations and directions, the writ petitions as well as I.A.No.2/19 in W.P.No.2847/2018 stand disposed of.
Sd/- JUDGE Dvr: