Karnataka High Court
Smt B Sumithra vs The Commissioner on 11 October, 2023
Bench: M.G.S. Kamal
-1-
NC: 2023:KHC:37289
WP No. 2464 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 2464 OF 2023 (BDA)
BETWEEN:
SMT B SUMITHRA
W/O NARAYANA
AGED ABOUT 43 YEARS
R/O NO 1089/C, 9TH MAIN
KALIDASA NAGAR SLUM AREA
HOSAKEREHALLI
BSK 3RD STAGE
BANGALORE - 560 085.
...PETITIONER
(BY SRI. G A SRIKANTE GOWDA, ADVOCATE)
AND:
Digitally
signed by 1. THE COMMISSIONER
SUMA B N
BANGALORE DEVELOPMENT AUTHORITY
Location:
High Court of KUMARA PARK WEST
Karnataka
BANGALORE - 560 020.
2. ASSISTANT COMMISSIONER
RE ALLOTMENT /RE-GRANT
BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST
BANGALORE - 560 020.
...RESPONDENTS
(BY SRI. BASAVARAJA H T., ADVOCATE)
-2-
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WP No. 2464 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER
APPROPRIATE WRIT OR ORDER OR DIRECTION, QUASHING
THE ENDORSEMENT DATED 05.01.2023 ISSUED BY THE 2ND
RESPONDENT BEARING NO. ¨ÉA.C.¥Áæ/¸À.D/ªÀĺÀ&ªÀĪÀÄ/100/2022-23
VIDE ANNEXURE-P AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN `B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner is before this Court seeking quash of
endorsement dated 05.01.2023 produced at Annexure-P in
terms of which respondent -BDA has rejected the
requisition of the petitioner for regularisation of her
occupation in respect of site bearing No.1089/C situated at
Kalidasanagar Slum Area, Hosakerehalli Village,
Banashankari III Stage, Bangalore on the premise that the
petitioner had not submitted the records in support of her
claim and that the petitioner had informed that no other
documents were available.
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2. Sri.G.A.Srikante Gowda, learned counsel for
petitioner appears through video conferencing, takes
through the records more particularly the Judgment and
decree in O.S.No.7576/2007 on the file of XL Additional
City Civil and Sessions Judge(CCH-41), Bangalore, in
which granting the relief of permanent injunction and
declaring the deed of sale executed by BDA in favour of
defendant No.2 as null and void, has further directed
respondent -BDA to consider the application filed by the
petitioner for regularisation of occupation over the
schedule property. He further submits that in terms of
application at Annexure-L dated 11.10.2022 the petitioner
while narrating the entire facts and incidents of the matter
had also produced as many as eight documents in support
of her claim for regularisation. He submits that
respondent -BDA by notice dated 19.11.2022 produced at
Annexure-M had called upon the petitioner to produce
documents in the nature of revenue records of the original
khathedar and title deeds and revenue records of the
applicant in respect of schedule property. It is his further
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WP No. 2464 of 2023
submission that when petitioner is seeking regularisation
of occupancy under section 38 D of BDA Act respondent
authorities calling upon petitioner to produce title
documents is unjustified. He submits that petitioner has
produced all possible documents available in her
possession including Judgment and decree referred to
above to establish her settled possession of the property.
He submits in that view of the matter insistence by
respondent authorities to produce the documents enlisted
in Annexure-M is arbitrary and without application of mind
and issued only with a malafide intention of declining the
request of the petitioner.
3. In response, learned counsel for respondent -BDA
submits that without petitioner furnishing the documents
in support of her claim, her request for regularisation
under Section 38D of the Bangalore Development
Authority Act cannot be considered. He submits that
calling upon the petitioner to furnish the documents
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WP No. 2464 of 2023
enlisted in Annexure-M cannot be found to be arbitrary
and as the same in accordance with law without which
petitioner request for regularisation of occupation cannot
be considered. He submits that since petitioner failed to
submit documents called for as per Annexure-M the
impugned endorsement came to be issued and same
cannot be found fault with. Hence, seeks for dismissal of
the petition.
4. Heard and perused the records.
5. All that petitioner is seeking is regularisation of
her admitted unauthorised occupation of site bearing
No.1089/C. Petitioner appears to have filed a suit
challenging the deed of sale which was executed by
respondent -BDA in favour of defendant No.2 pertaining to
property in occupation of the petitioner. Accepting the
case of the petitioner the said suit in O.S.No.7576/2007
has been decreed in favour of the petitioner. Being
aggrieved respondent -BDA had filed RFA No.555/2016
and it is submitted that said RFA No.555/2016 has been
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WP No. 2464 of 2023
withdrawn by respondent-BDA. Thus it cannot be said
that the petitioner claiming regularisation of her
unauthorised occupation of subject property without any
basis. The petitioner along with application dated
11.10.2022 produced at Annexure-L has produced eight
documents including aforesaid Judgment and decree. It is
relevant at this juncture to refer Section 38D of BDA Act,
1976 wherein allotment of land in favour of original owner
or purchaser or "unauthorised occupant" is provided. The
term "unauthorised occupant" would invariably include
person in occupation of land without authority. In other
words person who has no title over the subject property.
When a provision is made for consideration of a case of
unauthorised occupation for regularization, respondent
authority insisting such unauthorised occupant to produce
title documents is unreasonable and one without
application of mind. Read in that context the purpose of
Section 38D would be rendered redundant.
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6. All that petitioner, claiming to be unauthorised
occupant, required to be proved that she is in settled
possession and that it does not mean the petitioner is
claiming title over the property. Consequently respondent
authority are required to look into whether petitioner is in
settled possession of property being claimed by her. In
the light of petitioner having obtained the Judgment and
decree against none other than the very respondent-BDA
and allottee of site and the said Judgment and decree
having attained finality cannot be expected to bring her
title deed in respect of the property. The impugned
endorsement dated 05.01.2023 is required to be set aside.
In that view of the matter, petition is partly allowed.
The impugned endorsement dated 05.01.2023 is set aside.
Consequently respondent -BDA is directed to consider the
applications at Annexures A, L and N dated 12.05.2003,
12.10.2022 and 28.11.2022 respectively with the
information made available by the petitioner in the
aforesaid applications without insisting for production of
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any further documents. Such consideration shall be made
within an outer limit of eight weeks from the date of
receipt of certified copy of this order.
Sd/-
JUDGE
SBN
