IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR.JUSTICE S. ABDUL NAZEER WRIT PETITION NOS TO 20886/2012 (BDA)

Transcription

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE Between: DATED THIS THE 27 TH DAY OF JUNE 2012 BEFORE THE HON BLE MR.JUSTICE S. ABDUL NAZEER WRIT PETITION NOS TO 20886/2012 (BDA) 1 Sri K.N. Sreedhara Murthy, S/o late K.Nanjundaiah, Aged about 45 years, Flat No.105, SJR LUXURIA, 2 Sri Rajeev Menon, S/o Sri Venugopal P., Aged about 37 years, Flat No.301, SJR LUXURIA, 3 Sri Ravindra Nagaraja, S/o Sri T.Nagaraja, Aged about 32 years, Flat No.411, SJR LUXURIA,

2 2 4 Sri Muthu Krishnan E.V., S/o late E.A.Vaidyanathan, Aged about 60 years, Flat No.205, SJR LUXURIA, 5 Sri Rohit Sadhu, S/o Sri Roshan Lal Sadhu, Aged about 32 years, Flat No.209, SJR LUXURIA, 6 Smt. Viji Menon, D/o Sri K.K.Menon, Aged about 42 years, Flat No.203, SJR LUXURIA, 7 Sri Anand, S/o Sri Vishanatha B.S., Aged about 33 years, Flat No.401, SJR LUXURIA,

3 3 8 Sri Basavaraj M. Sullad, S/o Sri Mallikarjun, Aged about 38 years, Flat No.104, SJR LUXURIA, 9 Smt. Neha Agarwal, W/o Sri Sachin Agarwal, Aged about 30 years, Flat No.302, SJR LUXURIA, 10 Smt. Purnima Panth, W/o Sri Akshay Kumar Panth, Aged about 28 years, Flat No.202, SJR LUXURIA, 11 Sri Adithya R. Bhandary, S/o Sri R.Bhandary, Aged about 32 years, Flat No.305, SJR LUXURIA,

4 4 12 Sri Arun M.V., S/o Sri N.M.Venkateswaran, Aged about 35 years, Flat No.009, SJR LUXURIA, 13 Sri Mayank Mittal, S/o Sri Susheel Kumar Dayal, Aged about 27 years, Flat No.412, SJR LUXURIA, 14 Sri Srikanth Namburi, S/o Sri N.Radha Krishnamurthy, Aged about 37 years, Flat No.504, SJR LUXURIA, 15 Sri Ganesh Balakrishnan, S/o Sri A.R.Balakrishnan, Aged about 28 years, Flat No.102, SJR LUXURIA,

5 5 16 Sri S. Subbanna, S/o late Dr.H.K.Srinivasa Rao, Aged about 73 years, Flat No.208, SJR LUXURIA, 17 Sri Nithin Chinubhai Parikh, S/o Sri Chinubhai, Aged about 56 years, Flat No.606, SJR LUXURIA, 18 Sri Madhu Narayan Kizhepat, S/o Sri KPS Narayanan, Aged about 36 years, Flat No.505, SJR LUXURIA, 19 Smt. Sridevi, W/o Sri B.N.Prasad, Aged about 32 years, Flat No.005, SJR LUXURIA,

6 6 20 Smt. Trisha Sandill Nagpal, W/o Sri Vikram Nagpal, Aged about 31 years, Flat No.304, SJR LUXURIA, 21 Sri V.V.Muralidharan, S/o late V.Venkatachari, Aged about 67 years, Flat No.010, SJR LUXURIA, 22 Sri V.V.Sitaram Rao, S/o Sri V.Srinivas Rao, Aged about 36 years, Flat No.304, SJR LUXURIA, 23 Sri Srikrishna Srivatsa, S/o Sri D.K.Sitaraman, Aged about 40 years, Flat No.507, SJR LUXURIA,

7 7 24 Sri Gagan Vohra, S/o Sri Suresh Vohra, Aged about 31 years, Flat No.410, SJR LUXURIA, 25 Sri Sandeep G. Kulkarni, S/o Sri Ganpatrao, Aged about 35 years, Flat No.209, SJR LUXURIA, 26 Sri Kiran Mada, S/o Sri Seshagiri Rao, Aged about 29 years, Flat No.303, SJR LUXURIA, 27 Sri Ashit Kumar C., S/o Sri Kunjiraman, Aged about 40 years, Flat No.201, SJR LUXURIA,

8 8 28 Sri S.Sarangan, S/o Sri Soundararajan, Aged about 42 years, Flat No.103, SJR LUXURIA, 29 Smt. Geetanjali, W/o Sri S.Govindarajan, Aged about 35 years, Flat No.203, SJR LUXURIA, 30 Sri Mitesh Shetty, S/o Sri Dr.N.S.Shetty, Aged about 39 years, Flat No.111, SJR LUXURIA, 31 Sri Viswanathan Ramaswamy, S/o Sri R.Gopalan, Aged about 43 years, Flat No.503, SJR LUXURIA,

9 9 32 Sri Narayan Raju Endukuri, S/o Sri Venkata Raju, Aged about 36 years, Flat NO.104, SJR LUXURIA, 33 Smt. Gitanjali Sarangan, W/o Sri S.Sarangan, Aged about 35 years, Flat No.404, SJR LUXURIA, 34 Sri Amit Gupta, S/o Sri D.D.Gupta, Aged about 37 years, Flat No.405, SJR LUXURIA, 35 Sri Sriharsha Rayase, S/o Sri Venkata Rao, Aged about 29 years, Flat No.001, SJR LUXURIA,

10 10 36 Sri Subramanian R., S/o late Ramaswamy, Aged about 60 years, Flat No.310, SJR LUXURIA, 37 Sri Sudhir C.P., S/o Sri Prahlada Rao, Aged about 39 years, Flat No.003, SJR LUXURIA, 38 Sri Sandeep Kumar Misra, S/o Sri Himansu Bhusan Misra, Aged about 35 years, Flat No.102, SJR LUXURIA, E Block, IIMB Post, 39 Smt.Aditi Acharya, W/o Sri Mohajit Acharya, Aged about 37 years, Flat No.202, SJR LUXURIA, E Block, IIMB Post,

11 11 40 Smt. Sujatha Logou, W/o Sri K.B.Logou, Aged about 42 years, Flat No.403, SJR LUXURIA, E Block, IIMB Post, 41 Smt. Lavanya, W/o Sri V.Selvaraj, Aged about 28 years, Flat No.103, SJR LUXURIA, E Block, IIMB Post, 42 Sri Vivek Srinivasa Murthy, S/o Sri Srinivasa Murthy, Aged about 31 years, Flat No.101, SJR LUXURIA, E Block, IIMB Post, 43 Sri Tarun Jain, S/o Sri S.K.Jain, Aged about 35 years, Flat No.001, SJR LUXURIA, E Block, IIMB Post,

12 12 44 Sri Santosh Ganesh Kirve, S/o Sri Ganesh Kirve, Aged about 60 years, Flat No.303, SJR LUXURIA, E Block, IIMB Post, 45 Sri Vilas Kannagoudar, S/o Sri Veeranna Gowda, Aged about 31 years, Flat No.511, SJR LUXURIA, 46 Sri Binosh George T., S/o Sri George Varghese, Aged about 30 years, Float No.301, SJR LUXURIA, E Block, IIMB Post, 47 Sri Shankar B., S/o Sri Balasubramaniam, Aged about 32 years, Flat No.401, SJR LUXURIA, E Block, IIMB Post,

13 13 48 Sri Gopikrishna Reddy, S/o Sri Subba Reddy, Aged about 35 years, Flat No.403, SJR LUXURIA, Petitioners. (By Sri Udaya Holla, Sr.Adv. for M/s Mahesh & Co., Advs.) And: 1 Bangalore Development Authority, Kumar Park West, Bangalore , Reptd. by its Commissioner. 2 The Assistant Executive Engineer, Bangalore Development Authority, No.2, South Sub-Division, Bangalore Development Authority, Bangalore.. Respondents. (By Sri B.V. Shankaranarayana Rao, Adv.) --- These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India, praying to quash the impugned notice dated issued by the 2 nd respondent at Annexure J, etc. These Writ Petitions coming on for Further Orders this day, the Court passed the following:

14 14 ORDER In these writ petitions, the petitioners have challenged the validity of the notice at Annexure J dated issued by the second respondent calling upon M/s SJR Enterprises Private Limited (for short developer ) to get the apartments in possession of the petitioners vacated within 3 days. 2. Brief facts of the case are as under: Lands bearing Sy.Nos.100/P, 101/1 and 103 of Arakere Village, Begur Hobli, Bangalore South Taluk, were notified for acquisition for public purpose, namely, for the formation of Jayaprakash Narayan 9 th Stage Layout. Preliminary notification under Section 17(1) of the Bangalore Development Authority Act was issued on This was followed by a final notification dated At this stage, one of the notified kathedars, namely, M.R.Ramesh made an application to the State Government for deletion of lands measuring 1 acre 13 guntas in Sy.No.100, 1

15 15 acre 2 guntas in Sy.No.101 and 5 acre 16 guntas in Sy.No.103 from acquisition. On the basis of the said application, the State Government issued a notification under Section 48(1) of the Land Acquisition Act, 1894 dated withdrawing the said lands from acquisition subject to the condition that the nursery in the lands should be maintained and if any violation takes place, the Bangalore Development Authority ( BDA for short) is at liberty to acquire the land for its scheme. Thereafter, it appears that the notified kathedar has entered into a joint development agreement with the developer. The developer appears to have made an application for sanctioning a plan for construction of multistoried residential apartments on the said land. Accordingly, the Planning Section of the BDA has sanctioned a plan as per Annexure A dated It appears that one Sri C.Lakshminarayan filed a private complaint before the 23 rd Additional City Civil and Sessions Judge, Bangalore, against G.Boopesh Reddy and G.Vijaya Reddy and

16 16 certain other persons in PCR No.8/2012. In the said case, the Sessions Judge has referred the complaint to the Lokayukta Police under Section 156(3) of the Cr.P.C. for an investigation. On the basis of the directions of the Sessions Court, the Lokayukta has issued a notice dated to the Commissioner of the BDA to take certain steps in respect of the apartments in question. At this stage, the second respondent has issued the notice at Annexure J impugned herein. 4. The contention of the learned Senior Counsel for the petitioners is that when the construction was in progress, the petitioners have purchased various apartments from the developer. The commencement certificate was issued as per Annexure B dated After the completion of construction of the apartments, sale deeds have been executed in respect of different apartments in favour of the petitioners and that they have been in possession and enjoyment of the said apartments. Learned Senior Counsel further submits that petitioners have purchased different

17 17 apartments constructed by the developer for valuable consideration. They have invested their life s savings for purchase of the said apartments. Some of them have availed financial assistance from the Banks for payment of the consideration. The second respondent has issued a notice to the developer as per Annexure J calling upon him to get the apartments vacated within three days from the date of service of the notice. If the petitioners are dispossessed from their respective apartments, they will be put to great hardship. They are neither notified nor heard before issuance of the impugned notice. Implementation of the direction contained in the notice will have serious civil consequences. Thus, the action of the 2 nd respondent is opposed to the principles of natural justice. 5. On the other hand, Sri B.V.Shankaranarayana Rao, learned Counsel appearing for the respondents submits that in violation of the conditions of the notification withdrawing the land from acquisition, the owner has entered into an agreement with the developer and that they are putting up apartments contrary to the

18 18 conditions contained in the de-notification dated Private complaint was lodged before the Sessions Court for taking action in this regard. The Sessions Court has directed the Lokayukta Police to make investigation and submit a report. The Lokayukta Police have sought for certain particulars from the BDA in this regard. Therefore, the second respondent issued the notice at Annexure J to the developer. 6. I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record. 7. It is clear from the materials on record that petitioners have purchased various apartments from the owner and the developer. It is also clear from the sale deeds that they are put in possession of the apartments on different dates. The de-notification dated has been issued subject to the conditions that nursery should be maintained in the land in question and if any

19 19 violation takes place, BDA is at liberty to acquire the land for its scheme. Despite the said condition in the de-notification, Town Planning Section of the BDA has sanctioned the plan on for construction of apartments. No explanation is forthcoming as to under what circumstances the plan has been issued by the BDA. Be that as it may. The fact remains that petitioners are in possession of various apartments in the building in question. They should not be dispossessed from the apartments in question without due process of law. 8. Though Annexure J is in the form of a notice, it is in the nature of an order directing the developer to get the apartments vacated. The petitioners have not been issued with any show cause notice in this regard. The contention of the learned Senior Counsel for the petitioners is that these notices have been pasted on the doors of the apartments of the petitioners. BDA ought to have heard the petitioners before initiating action for their eviction from the apartments. Since the petitioners have purchased the apartments

20 20 under registered sale deeds, the BDA cannot plead ignorance of the purchase of the said apartments by them. Having regard to the facts and circumstances of the case, I am of the view that it is just and proper to treat Annexure J notice as a show cause notice calling upon the petitioners as to why they should not be evicted from the apartments in question. 9. I am also of the view that the Commissioner of the BDA has to hold an enquiry as to under what circumstances the Town Planning Section of the BDA has sanctioned the plan at Annexure A dated for construction of the apartments. If it is found that the plan has been illegally sanctioned, he has to initiate disciplinary action against the officials concerned in accordance with law. 10. Therefore, I pass the following:

21 21 ORDER (i) The notice at Annexure J is treated as a show cause notice calling upon the petitioners herein as to why action should not be initiated against them for their eviction from their respective apartments. The petitioners are granted eight weeks time from the date of receipt of a copy of this order to file their objections to the said notice. (ii) The Commissioner of BDA is directed to consider the objections and pass appropriate orders thereon after granting the petitioners an opportunity of being heard. (iii) The first respondent is directed to hold an enquiry as directed in paragraph 9 of this order. If it is found that the plan has been sanctioned contrary to law, he is directed to initiate disciplinary proceedings against the officials, who are responsible for issuing the said plan. (iv) The Lokayukta Police are directed to investigate the matter without being influenced by this order.

22 22 (v) Needless to say that the petitioners shall not be dispossessed or their possession shall not be interfered with until further orders by the Commissioner, Bangalore Development Authority in terms of this order. (vi) It is further clarified that this order should not be treated as granting permission to the developer to proceed with the further construction on the land in question. Liberty is also reserved to the respondents to initiate appropriate action against the owner and developer of the apartments in accordance with law. (vii) All the contentions of the petitioners are kept open. (viii) Writ petitions are disposed of accordingly. No costs. Sd/- JUDGE. BMM/-