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In the High Court of Karnataka at Bengaluru

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In the High Court of Karnataka at Bengaluru W.P.No.8117/2006 - 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21 ST DAY OF DECEMBER, 2018 PRESENT HON’BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE AND HON’BLE MRS.JUSTICE S. SUJATHA WRIT PETITION No.8117 OF 2006 (GM – RES) PIL BETWEEN: ABHAYA A FEDERATION OF RESIDENTS WELFARE ASSOCIATION / ESTABLISHMENT / INSTITUTIONS OF WARD-54, SRINIVASANAGARA, No.126/47, FLAT No.3, 1ST FLOOR, TEMPLE VIEW APARTMENTS OPP. MANJUNATHA TEMPLE 2ND MAIN ROAD, SBM COLONY BANGALROE-560050. REP. BY ITS PRESIDENT SRI Y.DAMODHARA. ... PETITIONER (BY SRI B.S.MURALI, ADV.) AND: 1. THE BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD, BANGALORE REP. BY ITS COMMISSIONER 2. THE BANGALORE MAHANAGARA PALIKE HUDSON CIRCLE, BANGALORE REP. BY ITS COMMISSIONER 3. THE KARNATAKA SLUM CLEARANCE BOARD RESHILDAR STREET, SESHADRIPURAM, BANGALORE-560 020 REP. BY ITS COMMISSIONER W.P.No.8117/2006 - 2 - 4. THE MANAGING DIRECTOR METRO RAILWAY, BMTC COMPLEX KENGAL HANUMANTHAIAH ROAD BANGALORE-560027 5. M/S. INDIAN OIL CORPORATION LTD., INDIAN OIL BHAVAN No.29, P.KALINGA RAO ROAD (MISSION ROAD), BANGALORE-560027 (CAUSE TITLE AMENDED VIDE COURT ORDER DATED 21.08.2006) 6. M/S KALABYRAVA SERVICE STATION BY ITS PROPRIETOR SRI N.V.JAYARAM S/O VENKATAPPA AGED ABOUT 45 YEARS, No.686, KEMPEGOWDA LAYOUT BSK III STAGE, BANGALORE-560085 (CAUSE TITLE AMENDED VIDE COURT ORDER DATED 18.09.2006) 7. M/s. EAST COAST CONSTRUCTION INDUSTRIES LTD., No.4, MOORES ROAD, CHENNAI-600006. (CAUSE TITLE AMENDED VIDE COURT ORDER DATED 18.01.2007) 8. SMT P.M.MARGRATE W/O LATE G.DHANRAJ AGED 41 YEARS, No.200, 4TH CROS, CHAMUNDINAGAR SLUM AREA BSK 3 RD STAGE, BANGALORE-560085. 9. SRI PERUMAL S/O SAPRAYAN AGED 39 YEARS No.295, 8 TH CROSS CHAMUNDINAGAR SLUM AREA BSK 3 RD STAGE, BANGALORE-560085. W.P.No.8117/2006 - 3 - 10. SMT D.RATHNA W/O DEVENDRA AGED 38 YEARS No.311, 9 TH CROSS CHAMUNDINAGAR SLUM AREA BSK 3 RD STAGE, BANGALORE-560085. 11. SMT CHELUVAMMA W/O VENKATARAMANA SHETTY AGED 45 YEARS No.203, 4 TH CROSS CHAMUNDINAGAR SLUM AREA BSK 3 RD STAGE, BANGALORE-560085. 12. SMT MANGALA W/O PUTTASWAMY AGED 32 YEARS No.186, 4 TH CROSS CHAMUNDINAGAR SLUM AREA BSK 3 RD STAGE, BANGALORE-560085. 13. SRI NAGARAJ S/O CHINNARAJ, AGED 32 YEARS No.186, 4 TH CROSS CHAMUNDINAGAR SLUM AREA BSK 3 RD STAGE, BANGALORE-560085. 14. SMT RUKMINI W/O DEVARAJ AGED ABOUT 31 YEARS No.125, 3 RD CROSS CHAMUNDINAGAR SLUM AREA BSK 3 RD STAGE, BANGALORE-560085. 15. SMT BHAGYAMMA W/O SHIVA AGED ABOUT 32 YEARS No.365, 12 TH CROSS CHAMUNDINAGAR SLUM AREA BSK 3 RD STAGE, BANGALORE-560085. 16. SRI RADHAKRISHNA S/O GANGADHAR W.P.No.8117/2006 - 4 - AGED ABOUT 67 YEARS No.255, 6 TH CROSS CHAMUNDINAGAR SLUM AREA BSK 3 RD STAGE, BANGALORE-560085. 17. SMT JAYAMMA W/O LATE SHIVALINGAIAH AGED ABOUT 43 YEARS No.367, 11 TH CROSS CHAMUNDINAGAR SLUM AREA BSK 3 RD STAGE, BANGALORE-560085. (CAUSE TITLE AMENDED VIDE COURT ORDER DATED 02.04.2018) ... RESPONDENTS (BY SRI D.N.NANJUNDA REDDY, SENIOR ADVOCATE FOR SRI M.N.RAMANJANEYA GOWDA, ADV. FOR R-1; SRI V.SREENIDHI, ADVOCATE FOR R-2; SRI M.P.SRIKANTH, ADVOCATE FOR R-3; SRI K.KRISHNA, ADVOCATE FOR R-4; SRI PRITHVI RAJ, ADVOCATE FOR SRI B.K.SRIDHAR, ADVOCATE FOR R-5; SRI A.V.SRIHARI, ADVOCATE FOR R-6; SRI Y.K.NARAYANA SHARMA, ADVOCATE FOR R-7; SRI K.B.ONKAR, ADVOCATE FOR R-8 TO R-17) THIS WRIT PETITION FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT R1 AND R2 TO PRESERVE AND MAINTAIN THE SCHEDULE LAND AS PARK AND TAKE SUCH ACTION THAT MAY BE NECESSARY TO IMPROVE THE UTILITY OF THE SCHEDULE LAND AND ALSO DIRECT THE R3 TO COOPERATE WITH THE FIRST RESPONDENT AND SECOND RESPONDENT TO EVACUATE THE ILLEGAL OCCUPANTS IN SCHEDULE LAND RESERVED FOR THE PARK SITE AND ETC., THIS PETITION HAVING BEEN RESERVED FOR ORDERS ON 06.12.2018, COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THE CHIEF JUSTICE PASSED THE FOLLOWING: W.P.No.8117/2006 - 5 - ORDER Preliminary The petitioner Abhaya, said to be a Federation of Residents’ Welfare Association, has filed this writ petition in the nature of Public Interest Litigation (‘PIL’), alleging encroachment over the extent of about 3 acres of land reserved to be developed as park. 2. This petition, filed in the year 2006, has the history and peculiarity of its own. Originally, the petitioner was before this Court contending that Sy.No.90 situated at Chamundinagara Slum, Hosakerehalli, Uttarahalli Hobli, Bangalore South Taluk, admeasuring 3 acres was reserved for park as per the layout plan approved by the respondent No.1 – Bangalore Development Authority [‘BDA’] during the year 1976. 3. It was the grievance of the petitioner that the said land, reserved for park, had turned into a hub of huts and a collection place for debris and scrap materials, which were hazardous to the health of the people living in the locality. It was pointed out that certain persons having illegally put up the huts in that area, preliminary notification dated 15.02.2005 W.P.No.8117/2006 - 6 - under Section 3 of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973 [‘the Act of 1973’] proposing to declare 35 guntas of land in Sy.No.90 as slum area was issued; and then, final notification dated 21.02.2005 was issued, declaring such 35 guntas of land as slum area. Another parcel of land, to an extent of 908.90 square meters, out of the larger extent of the land reserved for park, was granted by way of lease to the respondent No.5 – Indian Oil Corporation Limited (‘IOCL’) for a petrol bunk on 29.06.2005 1. 4. With the submissions aforesaid, the petitioner prayed for the following reliefs: “i. Issue a writ in the nature of Mandamus directing the 1st and the 2nd Respondents to preserve and maintain the Schedule land as park and take such action that may be necessary to improve the utility of the Schedule Land and also directing the 3rd Respondent to cooperate with the 1st Respondent & 2nd Respondent to evacuate the illegal occupants in Schedule Land reserved for the park site. ii. Direct the 1st Respondent to withdraw the allotment of the part of Schedule Land given to start the Petrol Bank. iii. Directing the 2nd & 3rd Respondents to stop illegal constructions 1 Another parcel of land measuring 800.80 square meters was also leased out in favour of the respondent No.5 on 22.11.2011 by the BDA. W.P.No.8117/2006 - 7 - iv. Pass such other order or orders as this Hon’ble Court deems fit in the facts and circumstances of this case.” 5. The respondent No.1 – BDA had earlier submitted that 35 guntas of land was transferred to the respondent No.3 – Slum Board and certain land to the respondent No.5 – IOCL; and that the remaining extent of land will be developed as park. The respondent No.5 filed its objections contending that the vending of petrol was also in public interest. Similarly, the respondent No.6 – allottee of the petrol station had also filed its objections. The previous round of proceedings 6. On considering the aforesaid, the writ petition was decided by this Court on 13.04.2011, recording the submissions of the learned counsel for the respondent Nos.1 and 2 that the remaining area admeasuring 2 acres 5 guntas shall be developed as park within one year as also the undertaking given by the respondent No.3 that all the hutments shall be removed within one year and all the slum- dwellers shall be housed in the newly constructed premises W.P.No.8117/2006 - 8 - as the regulated construction had commenced in the area declared as slum area (35 guntas in the area in question)2. 7. The petitioner filed a contempt petition in C.C.C.No.634/2014 (Civil) alleging non-compliance of the order dated 13.04.2011 passed in the above petition. The said contempt petition was dismissed on 10.06.2014 on the ground that the operative portion of the order did not contain any positive direction. Being aggrieved by the said order dated 10.06.2014 passed in C.C.C.No.634/2014 (Civil), the petitioner herein preferred a Petition for Special Leave to Appeal [S.L.P.No.26906/2014] before the Hon’ble Supreme Court. In the said proceedings, the BDA filed its counter affidavit seeking some more time to complete the process of forming the park in the land in question, in terms of its undertaking given in the writ petition on 13.04.2011. 8. In the meantime, review petitions came to be filed by some of the persons, said to be the slum-dwellers, as also by the respondent No.3 seeking review of the order dated 13.04.2011. The said review petitions, being R.P.No.325/2015 c/w R.P.Nos.1041/2013 and 1042-1050/2013 were allowed on 2 The relevant part of the order dated 13.04.2011 is extracted in the order-sheet of this case dated 22.10.2018 – as reproduced in pargraph 11 infra. W.P.No.8117/2006 - 9 - 15.12.2017 recalling the order dated 13.04.2011 and restoring the matter to file so as to provide an opportunity to the slum- dwellers to get themselves impleaded in the writ petition and to put forth their contentions before the Court.
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