Karnataka High Court
The Commissioner vs The State Of Karnataka on 9 June, 2022
Bench: Alok Aradhe, J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M. KHAZI
W.A. NO.1285 OF 2021 (LA-BDA)
IN
W.P.No.33755 OF 2013 (LA-BDA)
BETWEEN:
1. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST, BANGALORE-20.
2. THE DEPUTY COMMISSIONER
LAND ACQUISITION
BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST, BANGALORE-20.
... APPELLANTS
(BY MR. D.N. NANJUNDA REDDY, SR. COUNSEL FOR
MR. K. KRISHNA, ADV.,)
AND:
1. THE STATE OF KARNATAKA
URBAN DEVELOPMENT
VIKASA SOUDHA, BANGALORE 560001
REPRESENTED BY ITS SECRETARY.
2. SRI. B.S. SUDHAKAR SHETTY
S/O LATE B. MAHABALA SHETTY
2
AGED ABOUT 73 YEARS
R/AT NO.9-71-3(2)
VIA YEKKAR, KANKANADY VILLAGE
MANGALORE-575007.
3. M/S. SURABHI SEVA SANGHA REGD.
NO.187, 22ND CROSS, 6TH BLOCK
JAYANAGAR, BANGALORE-560082
BY ITS SECRETARY
S. SUBBA RAO
S/O LATE KRISHNAMURTHY
R/AT NO.187, 22ND CROSS
6TH BLOCK, JAYANAGAR
BANGALORE-560082.
... RESPONDENTS
(BY MRS. VANI H, AGA FOR R1
MR. O. SHIVARAMA BHAT, ADV., FOR C/R2
V/O DTD:7.6.2022 SERVICE OF NOTICE TO R3 HELD SUFFICIENT)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER OF THE
LEARNED SINGLE JUDGE PASSED IN WP NO.33755/2013 (LA-BDA)
DATED 29.01.2020.
THIS W.A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
In this intra Court appeal, Bangalore Development
Authority (hereinafter referred to as 'the Authority' for short)
has assailed the order dated 29.01.2020 by which a writ
petition preferred by the respondent has been disposed of
with a direction to the Authority to allot him a site measuring
40 x 60 feet in Sir M.Vishveswaraiah Layout or any other
nearby layouts in Bangalore.
2. Facts leading to filing of this appeal briefly stated are
that M/s. Surabhi Seva Sangha (hereinafter referred to as
'the Sangha' for short) had allotted a site bearing No.86
measuring 40 x 60 feet to the wife of respondent No.2
(hereinafter referred to as 'the petitioner' for short). The
Authority issued a preliminary notification dated 14.12.2001
under Section 17(1) of the Bangalore Development Authority
Act, 1976 (hereinafter referred to as 'the Act' for short) for
acquisition of lands including the aforesaid plot in question.
Thereafter, a final notification dated 30.10.2002 under
Section 19 of the Act was issued and subsequently an award
was passed on 28.11.2002. The possession of the land was
taken on 26.12.2002 and a notification under Section 16(2)
of the Land Acquisition Act, 1894 was issued on 20.12.2003.
3. The Authority sent a recommendation on 21.04.2008
to the State Government for deletion of plot in question as
well as other lands from the acquisition. However, no action
was taken on the said recommendation. Thereupon, some
Sangha and 2 others filed a writ petition namely
W.P.No.18424/2011 which was disposed of by an order dated
14.02.2012 with a direction to the State Government to
consider the recommendation submitted by the Authority.
The State Government, by an order dated 28.05.2013,
rejected the recommendation made by the Authority inter
alia on the ground that the possession of the land was
already taken and therefore, the land in question cannot be
released from acquisition.
4. The aforesaid order passed by the State Government
dated 28.05.2013 was challenged by the petitioner in a writ
petition which was disposed of with a direction to the
petitioner to register herself as an applicant for allotment
under Bangalore Development Authority (Allotment of Sites)
Rules, 1984 within a period of two months which was
extendable by another one month by the Authority provided
sufficient cause is shown. The petitioner was also directed to
pay only the registration fee and the Authority was directed
to allot a site to the petitioner measuring 40 x 60 feet in Sir
M.Vishveshwariah Layout or in any other nearby layouts in
Bangalore at the prevailing allotment prices. The order
passed by the learned Single Judge has been impugned by
the appellant in this appeal.
5. Learned Senior counsel for the appellant submitted
that the petitioner had challenged the order dated
28.05.2013 passed by the State Government by which it had
refused to accede to the recommendation made by the State
Government for de-notification of the land in question from
acquisition. However, the learned Single Judge has found
fault with the order dated 28.05.2013 on the ground that
Section 5A of the Act has not been complied with. However,
the order passed by the State Government has not been
quashed. It is also pointed out that no factual foundation
has been laid in the pleadings with regard to entitlement of
the petitioner to seek allotment of a site measuring 40 x 60
feet and the impugned directions have been issued. It is
further submitted that the learned Single Judge ought to
have appreciated that challenge to the validity of the land
acquisition proceedings had attained finality and the
petitioner had not filed any application for allotment of the
plot.
6. On the other hand, learned counsel for the petitioner
submitted that the learned Single Judge has followed the
decision in 'JUNJAMMA AND OTHERS Vs. THE
BANGALORE DEVELOPMENT AUTHORITY, REP. BY ITS
COMMISSIONER, BANGALORE AND OTHERS' ILR 2005
KAR 608. Alternatively, it is submitted that the petitioner be
granted the liberty to take recourse to such remedy as may
be available to her in law for redressal of her grievance.
7. We have considered the submissions made on both
sides and have perused the record. We are conscious of the
well settled legal position that strict rules of pleading do not
apply to a proceeding under Article 226 of the Constitution of
India and this Court in exercise of powers under Article 226
can mould the relief. However, factual foundation has to be
laid in the writ petition. In the instant case, the petitioner
has prayed for the following reliefs:
(a) Issue a writ of certiorari to quash
BEMBHUSVA 2013 Bangalore dated 28.5.2013
passed by the respondent No.1 vide Annexure-
A.
(b) Issue a writ, order or direction as this
Hon'ble Court deems fit and proper under the
circumstances of this case, in the interest of
justice and equity.
8. From careful perusal of the averments made in the
writ petition as well as the prayer clause which has been
extracted above, it is evident that the petitioner has not laid
out any factual foundation in the writ petition about her
entitlement to make an application for allotment under the
1984 Rules or her entitlement to seek allotment of a plot
measuring 40 x 60 feet. The petitioner has also not averred
anywhere in the petition that she is entitled to seek the
benefit of the decision of this Court in 'G.R.JAYAMMA AND
OTHERS Vs. THE STATE OF KARNATAKA AND OTHERS'
IN W.P.NOS.20875-938/2001 DECIDED ON
20.07.2001, JUNJAMMA AND OTHERS, supra and
'CHANDRU AND OTHERS Vs. BANGALORE
DEVELOPMENT AUTHORITY' IN W.P.NO.31750-
85/2000 DECIDED ON 2.11.2000.
9. In the absence of any averments, the learned Single
Judge has transgressed beyond the scope of the writ petition
and has granted the relief to the petitioner which was even
not sought for by the petitioner. In any case, learned Single
Judge in the absence of any averment, could not have
adjudicated the entitlement of the petitioner for allotment of
a land and could not have recorded a finding that the case of
the petitioner is similar to that of JUNJAMMA AND
JAYAMMA'S case. The Authority was not put to notice by
the learned Single Judge with regard to the reliefs granted in
the writ petition.
10. In view of preceding analysis, the impugned order
cannot be sustained in the eye of law. It is accordingly set
aside. However, liberty is reserved to the petitioner to take
recourse to such remedy as may be available to her in law
with regard to her grievance. All contentions are kept open
which are available to the parties in law to be raised.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
RV
