NAMA KRISHNAIAH Vs. BRUHAT BENGALURU MAHANAGARA PALIKE

JUDGEMENT

(1.) The prayer made by the petitioner is for a writ of mandamus for an appropriate direction to declare that the impugned action of the respondent in demolishing the schedule property is arbitrary and in violation of Articles 14 and 300A of the Constitution of India.

(2.) It is submitted that he owns a property in plot No.30 present BBMP Khatha No.742 and old No.518/30 being a private property, and the property situated in a residentially converted land bearing survey No.57, Kasavanahalli Village, Varthur Hobli, Bangalore South Taluk, Bangalore District totally measuring 10200 Sq ft. He owns the property by virtue of the sale deed dated 10.09.2008 as per Annexure -B. As things stood thus, the respondents -BBMP, without authority of law, has demolished a portion of the property. Hence, the present petition.

(3.) It is stated that he has put up the construction on the schedule property on the basis of the sanction plan given by the Corporation who is the competent authority under the provisions of Karnataka Municipal Corporations Act, 1976. If it was the case of the respondents that he has encroached or put up a construction on the naala, they could have rejected the sanction plan. It is further submitted that the plan sanctioned itself is after having satisfied the fact that he has not encroached the property or put up a construction on the Naala. The property, which was purchased as per Annexure B was registered and at the time of registration, the Registrar who is the competent authority has not raised any objection. Under these circumstances, the learned counsel submitted that what has been in possession as owner of the property is a private property and it is not encroached at any point of time, at any stretch, on the naala. In support of his contention, the learned counsel referred CDP of 1985, which does not show any existing or running naala. The action of the respondents -Corporation by relying on the village map for the purpose of demolition on the pretext that there is existence of naala is illegal. It is submitted that the CDP overrules the old village map, which has not been taken into account. Under these circumstances, the impugned action of the respondents is without authority of law, unconstitutional and arbitrary and has deprived of his fundamental right viz., right to shelter. He preferred an appeal before the Assistant Commissioner and the same is still pending. Under these circumstances, the action taken for demolition is arbitrary and illegal. Learned counsel referred to the judgment in W.P.Nos.10705 -708/15 dated 20.03.2015, in which the petitioners therein were permitted to appear before the Assistant Commissioner on a particular date without waiting for any notice with a further direction to co -operate with the Assistant Commissioner in the speedy disposal of the appeal pending consideration before him. Since, the respondents -Corporation had taken shelter under Sections 288A and 288D of the Karnataka Municipal Corporations Act, 1976 the learned counsel referred to a judgment of this Court in W.P.No.7377/1993 dated 05.08.1994, in which it has been held by referring to the case Volga Tellis And Ors. Vs. Bombay Municipal Corporation And Ors. 'that discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable.' In the instant case, no such procedure has been followed. Hence, the impugned action is in contravention of the judgment of the Hon'ble Supreme Court in the case of Volga Tellis And Ors. Vs. Bombay Municipal Corporation And Ors. reported in AIR 1986 SC 180.