Writ Petition No. 20963 of 2022 · The High Court
Case Details
- 1 - NC: 2025:KHC:4003 WP No. 20963 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 20963 OF 2022 (BDA) BETWEEN: 1. PAVALA MERY W/O LATE A. PUSHPARAJ, AGED ABOUT 64 YEARS, 2. CHARLES P S/O LATE A. PUSHPARAJ, AGED ABOUT 40 YEARS,
Legal Reasoning
3. SMT. KEERTHANA S W/O LATE STEPHEN P, AGED ABOUT 35 YEARS, 4. MARIA SHALINI D/O LATE A. PUSHPARAJ, AGED ABOUT 27 YEARS, Digitally signed by SUMA B N Location: High Court of Karnataka RESPONDENT NOS.1 TO 3 ARE ALL RESIDING AT NO.705, 1ST CROSS, BSA ROAD, A K COLONY, SAGAYAPURAM, FRAZER TOWN, BANGALORE-560005. …PETITIONERS (BY SRI. SURESH S. LOKRE, SENIOR COUNSEL FOR SRI. SHRAVAN S. LOKRE, ADVOCATE) AND: 1. THE STATE OF KARNATAKA DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT - 2 - NC: 2025:KHC:4003 WP No. 20963 of 2022 REPRESENTED BY ITS SECRETARY, VIKAS SOUDHA, BANGALORE-560 001. 2. THE BANGALORE DEVELOPMENT AUTHORITY HAVING ITS HEAD OFFICE AT 5TH MAIN ROAD, KUMARAPARK WEST, GUTTAHALLI, BENGALURU-560 020 REPRESENTED BY ITS COMMISSIONER. 3. THE ASSISTANT EXECUTIVE ENGINEER BANGALORE DEVELOPMENT AUTHORITY, BANGALORE NORTH DIVISION, NO.4, NORTH SUB DIVISION, BDA, BANGALORE NORTH DIVISION, NO.4, NORTH SUB DIVISION, BDA, BDA SHOPPING COMPLEX, R T NAGAR, BANGALORE-560032. (BY SMT. B. SUKANYA BALIGA, ADVOCATE FOR R1; SRI. G.M. ANANDA, ADVOCATE FOR R2 AND R3) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED PROVISIONAL ORDER PASSED BY THE R-3 UNDER REFERENCE NO.BDA/AEE/N-4/UAC/HRBR/2022-23/938 DATED 10.10.2022 VIDE ANNEXURE-A AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL - 3 - NC: 2025:KHC:4003 WP No. 20963 of 2022 ORAL ORDER Petitioners are before this Court being aggrieved by the provisional order dated 10.10.2022 at Annexure -A issued by the respondent -BDA under Section 33(1) of the Bangalore Development Authority Act, 1976 ('Act 1976' for short) in and by which, apart from alleging the petitioners being involved in unauthorized construction on site No.2AC-607 and 2BC-608, HRBR, 2nd Block of Sy.No.293/1 of Banasawadi village, has called upon the petitioners to show cause within four days as to why the structure so constructed thereon shall not be demolished. In addition petitioners have also been called upon to appear in person or through a duly authorized representative to answer the questions connected with the matter along with evidence in support of the cause to be shown on or before 15.10.2022 at 11.30 a.m. 2. Sri.Suresh S.Lokre, learned Senior counsel appearing counsel for the petitioners submits that a suit in O.S.No.26445/2020 has been filed by the petitioners against the Commissioner of BDA and an interim order in this regard has been obtained and the said suit is pending consideration. - 4 - NC: 2025:KHC:4003 WP No. 20963 of 2022 He further submits that though the provisional order at Annexure-A is in the nature of a show cause notice, the manner in which it is issued and the tenor of which indicates that same is in the nature of a final order threatening demolition of the property of the petitioners without providing an opportunity of being heard. 3. In addition, learned Senior counsel further submits that as per provisions of Section 33(1) of the Act, 1976 the notice ought to have been issued by the Commissioner and not by the Assistant Executive Engineer. That the provisional order/impugned notice issued by the Assistant Executive Engineer is clearly one without jurisdiction. Hence, seeks for allowing of the petition. 4. Learned counsel for the respondent -authorities on the other hand submits that the Annexure-A is a provisional order issued under Section 33 (1) of the Act, 1976 which mandates issuance of a provisional order and then calling upon the petitioner to show cause and thereafter an opportunity of personal hearing would be given. He submits that all these process has been indicated explicitly in the said notice and - 5 - NC: 2025:KHC:4003 WP No. 20963 of 2022 there is no cause of action for the petitioners to approach this Court prematurely. He submits though order has been passed, petitioners are at liberty to furnish the show cause with supportive documents by way of evidence which would be considered strictly in accordance with law and appropriate orders will be passed thereon. 5. Heard. Perused the records. 6. The impugned notice dated 10.10.2022 at Annexure-A is issued purportedly under the provisions of Section 33(1) Act, 1976, which reads as under; "33. Alteration or demolition of extension, layout or street.-(1) If any person forms an extension or layout or makes any street referred to in Section 32 or puts up any building without or otherwise than in conformity with the orders of the authority under the [Commissioner] may, whether or not the offender be prosecuted under this Act by notice.- sub-section said the (a) require the offender to show cause, by a written statement signed by him and sent the [Commissioner] on or before such day as may be specified in the notice, why such extension, layout or street should not be altered to the satisfaction of the [Commissioner] or if such alteration be deemed impracticable by the [Commissioner], why such extension layout or street should not be demolished; or to (b) require the offenders to appear before the [Commissioner] either personally or by a duly authorised agent on such day and at such time and - 6 - NC: 2025:KHC:4003 WP No. 20963 of 2022 place as may be specified in the notice and show cause as aforesaid". 7. Thus in terms of the aforesaid provisions, it is the Commissioner who is authorized to issue notice as contemplated therein. In the instant case the notice in question has been issued by Assistant Executive Engineer who has no jurisdiction or authority under the Act, 1976. On this ground alone the impugned order requires to be quashed. 8.
Decision
In view of the above, following ; (a) Writ petition is allowed. ORDER (b) The provisional order dated 10.10.2022 at Annexure -A issued by the respondent -BDA is hereby quashed. (c) Notwithstanding the order as above, liberty is reserved to the respondent -BDA to initiate action strictly in accordance with law. (d) The petitioners are at liberty to make an application under Section 38D of the Act, 1976 seeking regularization of their unauthorized occupation within 30 days from the date of receipt of the certified copy of this order. If such representation is made, respondent-BDA shall consider the same strictly in accordance with law. RU, List No.: 1 Sl No.: 33 Sd/- (M.G.S. KAMAL) JUDGE Retyped and replaced vide Court order dated:17.02.2025.