2002 Supreme(Kar) 739

Karnataka High Court
Musrath Yaseen - Appellant
Versus
State of Karnataka - Respondent
Decided On : 11-29-02

Headnote:Effect of time lapse on land acquisition by the Authority

       BANGALORE DEVELOPMENT AUTHORITY ACT, 1975 - Section 38(c)(2) and Karnataka Regularisation of unauthorised Construction in Urban Areas Act, 1991 -Petition for regularisation-area in question acquired by the Authority-declaration of acquisition as elapsed by time -sought -whether the petitions are maintain- able in view of Act of 1991 and whether the petitioners are entitled for reliefs sought though the amen- ded provisions of section 38(c)(2) are not given effect to? Yes.

       [V. Gopala Gowda, J.] - The contention of the society about suppression of dismissal of the original suits filed by the petitioners, not disclosed in these writ petitions or dismissal of the writ petitions filed by similarly placed persons before the Court, and hence these petitions are not maintainable in law, are wholly untenable in law. Legal rights are conferred upon the petitioners under the Government Orders referred to supra. The Civil Court or the Court had no occasion to examine and consider the rights of the petitioners with reference to the G.Os referred to supra. Therefore, the Court has to reject the legal submissions made on behalf of the respondents that the petitions are not maintainable in law. The submission of the Counsel for 7th respondent that the Court cannot exercise its extra-ordinary and discretionary jurisdiction placing reliance upon the judgment reported in 1956(1) MLJ 324 and other judgments of the Apex Court referred to in the earlier paragraph of this order are not applicable to the facts of this case. Further reliance placed upon Clauses I to IX of section 4 of the Karnataka Regularisation of Unauthorized Constructions in Urban Areas Act 1991 have been carefully examined and the Court has to hold that the applications filed by the petitioners can be entertained under the provisions of the said Act as the provisions of the Act have not repealed the Government orders under which statutory rights are conferred upon the unauthorized occupants. The said Act deals only with regard to the unauthorized constructions made by parsons upon their sites/revenue sites in contravention of various Enactments, Rules and bye-laws. If constructions are made on their own sites of the petitioners, then the provisions of the said Act are applicable. In respect of the constructions made on the site/property belonging either to BDA or Government, or any other person the provisions of the said Act are not applicable to such cases. Therefore, the Government Orders of 1987 and 1990 required to supra are applicable to the case of the petitioners. In this view of the matter, the reliance placed upon the judgment of the High Court and legal submissions made by the learned Counsel for the respondents cannot be accepted by the Court as they are devoid of merit.

       Cases Referred :

       AIR 1962 SC 945; AIR 1990 SC 104: AIR 1977 SC 1900; AIR 1985 SC 724; AIR 1985 SC 735; 1956 (1) MLJ 324; ILR 1995 Kar. 2323; ILR 1995 Kar 2514; 1993 (3) Kar. LJ 576; ILR 2000 Kar 4134; AIR 1999 Kant 38; AIR 1960 Orissa 46.

       Regularisation of unauthorised constructions

       BANGALORE DEVELOPMENT AUTHORITY ACT, 1975 - Section 38 -By repealing the amended provisions of Section 38(c)(2) of the Bangalore Development Authority (Amendment) Act No.1 of 2000 whether the Government Order dated 12-10-1987 issued by the State Government in exercise of its executive power under Article 162 of the Constitution of India has got statutory force, and the rights acquired by the petitioners under the said Government Order would survive for consideration by the Screening Committee for considering the claims of regularization of the unauthorised occupants petitioners?

       [V. Gopala Gowda, J.] - For the reasons stated the Court has to record a finding that even though the amended Section 38(C) (2) of the BDA Act has been repealed by Act No. 1/2000, which has been upheld by the Division bench of the court in John. B. James s cage referred to supra, and also Section 6 of the Karnataka General Clauses Act the Government Orders were neither repealed nor cancelled by the Government in exercise of its power. Therefore, in view of the statutory rights conferred upon the petitioners pursuant to the said Government Orders, the second point formulated by the Court also requires to be answered positively in their favour. Even in case of M/s. I.T.I. EMPLOYEES HOUSING CO-OP SOCIETY LTD. VS. STATE OF KARNATAKA &. ORS. in Writ Appeal Nos.1825/1993 c/w 1826/1993 and 5700- 706/1997 c/w 5707-719/1997 disposed of on 24-10- 1997 a Division Bench of the Court held that the applications for regularization shall be considered and disposed of within the Period specified therein. The same holds good for there cases also.

       Cases Referred :

       AIR 1962 SC 945; AIR 1990 SC 104: AIR 1977 SC 1900; AIR 1985 SC 724; AIR 1985 SC 735; 1956 (1) MLJ 324; ILR 1995 Kar. 2323; ILR 1995 Kar 2514; 1993 (3) Kar. LJ 576; ILR 2000 Kar 4134; AIR 1999 Kant 38; AIR 1960 Orissa 46.

       Demolition of constructions made by bona fide purchasers

       KARNATAKA (REGULARISATION OF UNAUTHORISED CONSTRUCTIONS IN URBAN AREAS ACT, 1991

       Act amended applicable prior to 16-10-1996 -Petitioners bonafide purchaser s -buying Revenue sites from 1992 to 1997 -land acquired during 1985 -competent authorities changing khata, sanctioning power, receiving taxes -petitioners building structures on the sites -proposal to demolish -held, not in the interest of justice and equity -directed the competent authorities to consider their applications for regularisation.

       [V. Gopala Gowda, J.] -Though the petitioners were duty bound to take all precautions about acquisition of land and such other encumbrances before buying revenue sites. The authorities on other hand were equally duty bound to inform the petitioners when they approached them for necessary permissions about the acquisition. Since the petitioners after undergoing necessary formalities have constructed houses on the sites which they have purchased as bona fide purchasers. The principles of equity demands that their applications for regularisation should be considered in accordance with law.