In the High Court of Karnataka at Bengaluru
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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
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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.
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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
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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:
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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
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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.
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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
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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.
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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. In that view of the matter, the slum-dwellers got impleaded in this writ petition as the respondent Nos.8 to 17.
9. In view of the subsequent events, as aforesaid,
S.L.P.No.26906/2014 preferred by the petitioner was dismissed by the Supreme Court as having rendered infructuous, however, with an observation that the present writ petition be disposed of in accordance with law, preferably within six months.
RE-HEARING
10. In terms of the orders passed in SLP
No.26906/2014 and the said review petitions, this Court took up this writ petition for hearing afresh. At the initial stage of hearing of this petition, several different features and factors were projected before the Court that included the stand on the part of the BDA that the earlier undertaking for developing 2 acres 5 guntas of land as park came to be stated on mistake of fact and that, in fact, only 1 acre 3¾ guntas of the said land
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of the park was now available as the remaining had been given to the Slum Board for settlement of the slum-dwellers.
11. Taking note of the submissions so made during the course of hearing, even while leaving the other issues for consideration later, this Court inquired about the development on the said 1 acre 3¾ guntas of land; and it was expected of the respondents to honour the statement made in the additional statement of objections immediately. The proceedings dated 22.10.2018 in this matter could be reproduced for ready reference as under:
“This matter is posted for re-hearing in view of the order dated 15.12.2017 in Review Petition No.325/2015 and the connected matters, whereby this Court had recalled the earlier order dated 13.04.2011 and placed the writ petition for fresh hearing. In this writ petition, the petitioner -Federation has alleged encroachment over 3 acres of land, which was reserved to be developed as park in Banashankarai III Stage in Bengaluru. Earlier, when this petition was taken up on 13.04.2011, certain submissions were made and even undertaking was stated before the Court on behalf of the respondent Nos. 1 and 2, while pointing out that 2 acres 5 guntas of land had remained available for park because of the other part having been taken over by the Karnataka Slum Clearance Board. This Court took note of the submissions so made as also the undertaking stated by counsel for the official respondents and observed with directions as under:
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“3. It is submitted at the hands of the learned counsel for the respondents that the aforesaid final notification has not been assailed at the hands of the federation/welfare association and as such, it is not open to the members of the federation/welfare association to find fault with the aforesaid determination in consonance with the provisions of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973. Besides the aforesaid contention, it is asserted at the hands of the learned counsel representing respondent No.1 that the entire remaining area earmarked for park has now been fenced so as to prevent future encroachment. Besides the aforesaid, it is the contention at the hands of the learned counsel representing respondent nos. 1 and 2 that the remaining park area measuring 2 acres 5 guntas shall be developed as a park within one year from today. Besides the aforesaid undertaking given to this court, learned cousnel representing respondent no.3 i.e., Karnataka Slum Clearance Board has informed us that regulated construction has commenced in the area declared as a slum area so as to raise hygienic construction for the slum dwellers. All the hutments, according to the learned counsel representing respondent no.3 shall be removed within one year from today, by which time, the entire construction process will be completed and all the slum dwellers will be housed in the newly constructed premises. It is also submitted, that within the period of one year, the unauthorised hutments raised by the slum dwellers will be demolished and the area where hutments presently exist will be cleared and will be maintained in a hygienic condition by the Karnataka Slum Clearance Board. 4. In view of the submissions made by the learned counsel representing respondent nos. 1, 2 and 3, we are satisfied that the prayers raised in the instant writ petition to the extent that they can be given effect to, have been conceded. As
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such, the instant writ petition is disposed of in terms of the undertaking given by the learned counsel representing respondent nos. 1 to 3. The undertaking given to this court as have been recorded hereinabove, shall be binding on respondent nos. 1 to 3.” It appears that complaining of the fact about non-compliance of the undertaking stated before the Court, the petitioner filed contempt petition in CCC No.634/2014 but, this Court, by the order dated 10.06.2014, declined to entertain the matter in the contempt jurisdiction on the ground that there had not been any positive direction in the order dated 13.04.2011. On the other hand, some of the persons, said to be in possession of a part of the land in question, filed Review Petitions bearing Nos.1041/2013 and 1042-1050/2013 seeking review of the aforesaid order dated 13.04.2011. On behalf of the Karnataka Slum Clearance Board, another Review Petition bearing No.325/2015 was also filed. These review petitions were considered and allowed by a Division Bench of this Court while condoning the delay in filing by way of the aforesaid order dated 15.12.2017 and thereby, this writ petition is revived for reconsideration. On 02.04.2018, I.A.No.1/2018 filed in this writ petition was allowed and the applicants, who had filed the aforesaid R.P.Nos.1041/2013 and 1042- 1050/2013, were ordered to be joined as the respondent Nos.8 to 17 to this petition. It is also noticed that the petitioner herein approached the Hon’ble Supreme Court against the aforesaid order dated 10.06.2014 in CCC No. 634/2014 by way of the Petition for Special Leave to Appeal (C) No.26906/2014. The said petition for Special Leave to Appeal came up for consideration before the Supreme Court on 20.04.2018. After taking note of the facts aforesaid that this writ petition has been restored for reconsideration, the Supreme Court though
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declined to interfere with the order passed by this Court on 10.06.2014 in CCC No.634/2014, but expected the writ petition to be disposed of at the earliest, and preferably within six months from the date of the order. The Supreme Court also made it clear that in the event of the original order being reiterated, the undertaking may be adhered to. Thereafter, the matter was taken up for consideration on 20.08.2018 when the information about change of counsel for the respondent No.2 –BBMP was taken note of; and the matter was ordered to be posted for hearing on 11.09.2018. On 11.09.2018, the matter was adjourned for hearing on 27.09.2018. After a few more adjournments, the matter was taken up on 10.10.2018. Looking to the subject-matter, counsel for the parties undertook to submit the list of relevant dates and short synopsis of the submissions sought to be made; and the matter was ordered to be posted immediately after Dasara vacations i.e., today (22.10.2018). On the matter being taken up for consideration today, during the course of hearing, we have noticed the submissions made on behalf of the respondent –Bengaluru Development Authority (‘BDA’) that though the petitioner is seeking directions for development of the entire 3 acres and 21¾ guntas of land that was earlier reserved for park, but in view of the fact that 2 acres and 18 guntas of land has been notified for the slum clearance purposes, the said area is not available for being developed as park. However, it is submitted in the affidavit dated 13.04.2018 filed on behalf of BDA by its Assistant Executive Engineer, inter alia, as under:
“3…… It is submitted that the BDA is developing this 1 acre 3¾ guntas of land as park by fencing the said area. It is humbly submitted that the above developments have taken place after filing
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of the earlier statement of objections. Hence, in order to bring to the kind notice of this Hon’ble court the subsequent developments taken place after filing of the earlier statement of objections, the present additional statement of objections is filed by the 1 st respondent BDA. The copy of the survey sketch showing the CA site with the area taken over by the Karnataka slum board and the area the reserved and fenced for park is herewith produced and marked as Annexure R-1.
W H E R E F O R E, the 1 st respondent most humbly pray that this Hon’ble Court may be pleased to dispose of the above writ petition reserving liberty to develop 1 acre 3¾ guntas of land as park in Sy.No.90 of Hosakerehalli Village, BSK 3 rd Stage Layout in the interest of justice and equity.”
The same submissions have been reiterated in the memo of submissions filed on behalf of BDA on 20.10.2018. Taking note of the overall circumstances, we inquired from the learned counsel appearing for the BDA that as at present, even while leaving aside the other aspects for consideration a little later, what has been the development made on the said 1 acre 3¾ guntas of land for being developed as park? In the first place, the learned counsel, on instructions, submitted that the BDA was ready to take all the necessary steps to develop the said land as park. Upon this Court querying further as to why it has not been developed as park as yet, it was sought to be suggested that there has been an interim order in the review petitions. The submission appears to be not of any substance for the reason that the review petitions were decided way back on 15.12.2017. Upon this Court expecting the statement as made in the additional statement of objections to be honoured immediately, it is sought to be
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suggested now that there may be available certain open sheds on the said 1 acre 3¾ guntas of land. If at all any such sheds are said to be available thereat, the statement as made in the additional affidavit filed on behalf of the BDA dated 13.04.2018 is falsified; and if the land is available, there is no reason as to why the same has not been developed as park as yet. Upon this Court expressing reservations in the approach of the authorities concerned towards this matter, learned Senior Counsel appearing for the respondent –BDA submits that given some time, all the necessary steps shall be taken by the authorities concerned. We would expect all the authorities concerned to examine the matter with the requisite seriousness and to take all the necessary steps before the matter is taken up next and to file the requisite affidavit. The facts shall now to be clarified on the affidavits of the Commissioner, BDA as also the Commissioner, Karnataka Slum Clearance board. List this matter on 26.10.2018 for further hearing.”
12. The position that unfolded thereafter left so many things to be desired inasmuch as it was found that even on the said 1 acre 3¾ guntas of land, there were certain sheds available and the submissions were made that there had been certain slum-dwellers in possession thereof, who had been removed. Various other aspects unfolded were taken note of
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by this Court in the proceedings dated 30.10.2018, which may also be noticed for ready reference as under:
“During the course of hearing of this petition on 22.10.2018, this Court had noticed the submissions made on behalf of the respondent – Bangalore Development Authority (‘BDA’) that though the petitioner was seeking direction for development of 3 acres 21¾ guntas of land in the area in question in Banashankari III Stage that was earlier reserved for park, but 2 acres 18 guntas of land therefrom had been notified for slum clearance purposes; and the same was not available for being developed as park. It was, however, noticed that there was a categorical assertion on the part of the Assistant Executive Engineer, BDA, in his affidavit dated 13.04.2018, that the BDA was developing the available 1 acre 3¾ guntas of land as park by fencing the same. Taking note of the submissions so made, learned counsel appearing for the BDA was queried that even while leaving aside the other aspects for consideration a little later, what had been the development made on the said 1 acre 3¾ guntas of land? In this regard, on the queries a bit further, it was sought to be suggested, inter alia, that there may be available some open sheds on the said 1 acre 3¾ guntas of land. This Court took note of the vacillating stand on the part of the BDA and also observed as under: “If at all any such sheds are said to be available thereat, the statement as made in the additional affidavit filed on behalf of the BDA dated 13.04.2018 is falsified; and if the land is available, there is no reason as to why the same has not been developed as park as yet.”
Thereafter, learned counsel appearing for the BDA prayed for time with the submissions that all the necessary steps shall be taken by the
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authorities concerned. In the circumstances, while expecting the authorities to examine the matter with requisite seriousness and to take necessary steps before the matter was taken up next, the facts were also ordered to be clarified on the affidavits of the Commissioner, BDA, as also the Commissioner, Karnataka Slum Clearance Board. The position that has surfaced after the order so passed by this Court, which was essentially based on the very assertions made on behalf of the BDA, carries rather disturbing features and factors. The respondent Nos.8 to 17 (the private respondents) have filed an application seeking interim relief with the submissions that they were under the impression that their present huts were coming under 2 acres 18 guntas handed over to the Slum Clearance Board, but they came to know about the different location only when the BDA authorities forced them to vacate the huts. It is submitted that there had been 21 affected families, comprising of poorest persons and include children, pregnant women and handicapped persons too; and they were not in a position to afford huts on rent immediately and they were rendered shelterless for the action taken by BDA. This matter poses extremely serious questions concerning the said occupants of 1 acre 3¾ guntas of land as referred above. As per the assertion of the Karnataka Slum Clearance Board as also the BDA, the said 1 acre 3¾ guntas of land was the one that remained available after 2 acres and 18 guntas of land was handed over to the Slum Clearance Board. On our queries, it is sought to be suggested on behalf of the Slum Clearance Board that earlier, when construction was being undertaken on the initially allotted 39 guntas of land, the occupants were temporarily moved to the
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nearby areas and those people are given biometric cards for identification. It is the assertion on the part of the Slum Clearance Board that those people, who were temporarily shifted during the course of construction, were accommodated and given built up houses. On the other hand, it is sought to be asserted on behalf of the said occupants by the learned counsel appearing for the respondent Nos.8 to 17 that these persons were earlier residing at the said 39 guntas of land and were shifted for the purposes of construction, but were not accommodated in the built up houses. It is prayed in the application moved on behalf of the respondent Nos.8 to 17 that the said occupants may be allowed to remain in their huts or the BDA and Slum Clearance Board be directed to make alternative arrangements for their shelter. On our further queries, it has been indicated by the learned counsel appearing for the respondent Nos.8 to 17 that there are 21 such families and in that regard, the particulars of such persons with copies of Aadhar cards and/or election identity cards are being submitted. A copy of such compilation may be supplied to the learned counsel appearing for the Slum Clearance Board as also the learned counsel for the petitioner. This matter, by its very nature, involves several questions calling for determination and inquiry. While we take up this process, it is definitely required that these families are accommodated at the appropriate place for the time-being. Upon further queries, learned counsel appearing for the Slum Clearance Board has submitted, on instructions from the Assistant Executive Engineer, No.1 Sub-Division, Karnataka Slum Clearance Board, Bengaluru, that as at present, the Board shall attempt to make temporary shelter arrangement for these families at Bhuvaneshwarinagar.
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Learned counsel appearing for the respondent Nos.8 to 17, who is said to be representing the said dwellers too, may advice his clients appropriately. As prayed, this matter be listed for hearing on 12.11.2018. It is further made clear that the arrangement envisaged by this order shall remain temporary arrangement only and shall not invest any right in any of the parties.”
13. Even providing temporary shelter to the said persons, who were allegedly in possession of the part of the said 1 acre 3¾ guntas of land, also did not materialize, for which the parties have shifted the burden on each other.
Thereafter, when the matters relating to records also remained in obscurity, this Court further took note of the position as obtaining, in the order sheets dated 27.11.2018 and 28.11.2018, which may also be extracted as under:
“27.11.2018
This matter is taken up for re-hearing pursuant to the order dated 15.12.2017 as passed in Review Petition No.325/2015 and is required to be concluded expeditiously in view of the order passed by the Hon’ble Supreme Court in Special leave to Appeal (C) No.26906/2014. During the course of initial hearing on 22.10.2018, primarily this Court noticed several areas of want of clarity and concrete steps by the authorities with reference to the affidavit dated 13.04.2018 filed on behalf of the Bengaluru Development Authority (‘BDA’) about development of the park in the land admeasuring 1 acre 3¾
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guntas. While leaving aside other aspects of the matter to be examined later, the authorities concerned were granted time to take corrective steps and to file the necessary affidavits. On 26.10.2018, learned counsel appearing for the private respondents submitted that he was filing an application seeking interim relief in relation to some of the dwellers. On 30.10.2018, this Court took note of the several inconsistencies that had occurred in the matter as also the questions concerning the occupants of 1 acre 3¾ guntas of land as the fact of such occupation specifically surfaced later. Several submissions were made by learned counsel representing the said private respondents as also the alleged displaced dwellers. This Court took note of the submissions made on behalf of the Karnataka Slum Clearance Board that the Board would make attempt to provide temporary shelter arrangements for such families. Even when the matter was taken up later, the fact remained such that temporary arrangements were not made and this Court expressed reservations in the approach of the authorities concerned including those of the Slum Clearance Board, as indicated in the orders dated 13.11.2018 and 14.11.2018. Again, on 15.11.2018, submissions were made that the Slum Clearance Board had been making serious efforts to provide temporary shelters to the displaced dwellers. The matter was further adjourned on a couple of occasions. Ultimately, further hearing commenced on 20.11.2018, but could not be concluded for paucity of time and hence, the matter was posted today. Several dissatisfying features have occurred in this matter today. In the first place, it was pointed out before us that the learned counsel earlier appearing for the private respondents has given a no-objection certificate and other counsel would be appearing for such respondents. The counsel, who had earlier appeared before the Court, has chosen not even to appear before us today. Now, it is
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sought to be submitted that the said counsel is not available in station today. When the matter is being continuously heard and several aspects relating to the private respondents are being adverted to, it is difficult to appreciate that a counsel has chosen to leave the matter in the midst of hearing and that too, without the permission of the Court. Even while leaving this aspect of the matter at this stage, we have commenced hearing further in the matter. We have heard learned counsel appearing for the respondent No.3 – Slum Clearance Board. During the course of submissions, we have posed further queries and have expected the learned counsel to place before us the original office file, particularly relating to the area said to have been given in possession later. However, whatever files have been placed before us are not specifically making out as to when the so-called possession certificate dated 04.06.2010 was acted upon and the note sheets in that regard. Learned counsel submits that the officers concerned have been instructed to search for the relevant case file and he shall make relevant submissions in that regard on the next date. During the course of submissions, learned counsel appearing for the Slum Clearance Board has also attempted to submit that the discrepancies in the list of the dwellers concerned on the area in question were later on corrected. In that regard too, we have expected the learned counsel to place the original file before us to which, it is submitted, as per instructions, that the file has been submitted to the office of the Lokayukta. The date of such submissions and complete particulars shall be stated on affidavit on behalf of the Slum Clearance Board. Even the file from the BDA concerning the decision to hand over such other piece of land to the Slum Clearance Board that has been placed before
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us does not specifically make out the note sheets and does not answer the queries of the Court. Learned Senior Counsel appearing for the BDA also submits that the officers concerned are being advised appropriately and relevant submissions shall be made on the next date. We have also heard learned counsel now appearing for the private respondents. List this matter for further hearing tomorrow, i.e., on 28.11.2018.
“28.11.2018
Taking note of the factual aspects that were found missing in the records produced before us during the course of hearing yesterday i.e., on 27.11.2018, we had adjourned the matter for further hearing today, while requiring the Bangalore Development Authority (‘BDA’) as also the Karnataka Slum Clearance Board to place the relevant case files before us. The submissions which are sought to be made on behalf of the BDA and the Slum Clearance Board about certain events that had allegedly taken place while issuing the possession certificate dated 04.06.2010 appear to be involving several such facts that have not come on record until now and they may have a bearing on the determination of the issues involved in the matter. Hence, before proceeding further, we deem it appropriate to grant an opportunity to the BDA as also the Slum Clearance Board to specify the facts by way of specific affidavits of the responsible officers. We would expect such affidavits to be filed before the matter is taken up for hearing on the next date. Learned counsel, who had appeared for the private respondents earlier, has appeared today and has pointed out that he has given no-objection certificate to the respondents, but could not attend the Court yesterday for his personal difficulty and
W.P.No.8117/2006 - 23 -
admits that he has not filed any memo for retirement. In further hearing, learned counsel for the petitioner has made his submissions in rejoinder. Learned counsel for the petitioner also submits that he shall be filing further affidavit with regard to the submissions concerning the particulars of the occupants/dwellers. Having regard to the questions raised, we are inclined to grant permission to the petitioner also to file an additional affidavit specifying the relevant facts. List this matter for further hearing on 03.12.2018.”
14. After the proceedings aforesaid, we have heard learned counsel appearing for the parties at length.
Rival Submissions
15. Learned counsel Shri B.S.Murali appearing for the petitioner argued that the Revised Master Plan 2015 issued by the BDA depicts that the area in question has been reserved for park. Placing reliance on Section 38-A of the
Bangalore Development Authority Act, 1976 (‘the Act of
1976’), learned counsel submitted that no land reserved for public park, playgrounds and civic amenities could be sold or otherwise disposed of for any other purpose and any disposition so made shall be null and void. It was argued that the BDA has leased out portion of the park area [908.90
W.P.No.8117/2006 - 24 -
square meters + 800.80 square meters] to the respondent
No.5 – IOCL for the petrol bunk and 35 guntas + 1 acre 23 guntas, totally 2 acres 18 guntas to the Slum Board, in derogation of the Act of 1976 and the revised CDP 2015. It was further submitted that though the Preliminary Notification dated 15.02.2005 (Annexure-E) was issued to declare only 35 guntas of land in question, calling for objections within 15 days; Final Notification was issued on 21.02.2005 declaring
35 guntas as “Slum Area”. However, the possession certificate dated 04.06.2010 issued by the BDA depicts that possession of 2 acres 18 guntas was transferred to the respondent No.3 without issuing any notification to declare such additional 1 acre 23 guntas as slum area. It was submitted that the act of BDA in issuing the said possession certificate had been in utter violation of the undertaking given before this Court as well as before the Supreme Court to develop 2 acres 5 guntas as park and is contrary to Section
38-A of the Act of 1976. Learned counsel contended that over the said 35 guntas of land declared as slum area, 224 houses had already been constructed to accomodate the slum- dwellers and the remaining area is required to be developed
W.P.No.8117/2006 - 25 -
as park by the BDA relocating the slum- dwellers, who had squatted thereat unauthorisedly.
16. Learned Senior Counsel Shri D.N.Nanjunda
Reddy appearing for the respondent No.1 – BDA has argued that Master Plan of 2011 [CDP], approved on 05.01.1995, shows that the land in question was reserved for public and semi-public purposes; that 35 guntas of land had already been transferred to the respondent No.3 -Slum Board and certain land to the respondent No.5 – IOCL; that as per the approved layout plan, 3 acres of land in Sy.No.90 was reserved for park area, wherein unauthorized occupants
(slum-dwellers) squatted over and considering the same, it was undertaken to develop the balance available land of 2 acres 5 guntas as park and, accordingly, the affidavits were filed before this Court and the Hon’ble Supreme Court.
Learned counsel fairly submitted that it was a mistake committed by the BDA in filing such affidavits without properly appreciating the exact measurements of the balance remaining area. The learned counsel submitted that in view of
2 acres 18 guntas of land transferred to the respondent No.3, only 1 acre 3¾ guntas of land is available at present which
W.P.No.8117/2006 - 26 -
shall be developed as park and the work is under progress in that regard.
17. Learned Senior Counsel had made an endeavour to argue that Section 38-A of the Act is not applicable to the present set of facts and any undertaking given in the earlier proceedings would not have any binding effect in view of recall of the order dated 13.04.2011.
18. Learned counsel Shri M.P.Srikanth appearing for the respondent No.3 –Slum Board has contended that as per the Comprehensive Development Plan prepared by the BDA, the land measuring 2 acres 18 guntas in Sy.No.90, where the slum had come up, was not earmarked/allotted/reserved for a park; and that the said land was sought to be shown as a park only after the above writ petition was filed. It was further contended that under the notification dated 21.02.2005, out of the total extent of the land, the area of 35 guntas in respect of
Sy.No.90 of Chamundinagara Slum, Hosakerehalli, Uttarahalli
Hobli, Bangalore South Taluk, was declared to be a slum area under Section 3 of the Act of 1973; the land admeasuring 2 acres 18 guntas was handed over to the Board by way of
Certificate of Possession (Supardu Pathra) dated 04.06.2010
W.P.No.8117/2006 - 27 -
issued by BDA during the pendency of the petition; and in view of the Possession Certificate issued by BDA, the entire land is to be used for construction of houses for the slum- dwellers. The learned counsel further submitted that the
Board started constructing Pucca Houses/apartments over the land in question, in ground + three floors [G+3] to accommodate 424 families, who are residing in the said slum; that the census report of the 424 families was issued by the
Deputy Commissioner, Bangalore Urban; and that in respect of 35 guntas of land, 224 houses have already been constructed and the same are allotted to the slum-dwellers.
19. Learned counsel Shri Prithviraj B.N. appearing for the learned counsel representing the respondent No.5 –
IOCL has argued that the respondent No.1 allotted 908.90 square meters of land, which is a civic amenity site situated in
Sy.No.90, Hosakerehalli, Banashankari III Stage, Bangalore, bearing site No.2(p); that the respondent No.5 has paid a sum of Rs.19,08,690/- towards the civic amenity site. The lease agreement dated 29.06.2005 for a period of 30 years has been executed by the BDA. It was further contended that after obtaining the necessary permissions from the various
W.P.No.8117/2006 - 28 -
departments on 31.03.2006, the petrol bunk was commissioned and later, the respondent No.1 granted additional land of 800.80 square meters in the same survey number by executing a lease agreement dated 02.11.2011 and the respondent No.5 had paid the additional amount of
Rs.40,04,000/- and the said agreement was valid up to
30.06.2035; and that the respondent No.5 also obtained necessary permissions from the concerned authorities/departments to install the necessary equipments in the additional land. It was also contended that Site No.2 (p) allotted to the respondent No.5 is not located in the park area occupied by the slum-dwellers; and the retail outlet commissioned is not over the land which is falling under the alleged park area. According to the learned counsel, the said respondent has spent large amount of money in establishing the retail outlet, which is catering to the public at large by serving the essential commodity; the retail outlet is in no way causing any hardship or prejudice either to the petitioner-
Association or to its members; instead, the consumers are benefitted from the petrol bunk as it is situated in the populated area.
W.P.No.8117/2006 - 29 -
20. Learned counsel Shri A.V.Srihari appearing for the respondent No.6 has supported and adopted the arguments of the respondent No.5.
21. Learned counsel Shri K.B. Onkar appearing for the respondent Nos.8 to 17 slum-dwellers has argued that the writ petition is not maintainable; and that the petitioner has no locus standi to question the action of the BDA in transferring and handing over possession of 2 acres 18 guntas of land to the respondent No.3 –Slum Board. While referring to the
Preamble and Article 21 of the Constitution of India, the learned counsel has contended that the slum-dwellers have a right to dignified living and they cannot be treated in inhuman manner; and that the issue now relates to the human problems, the same is required to be addressed with humane approach.
22. It was submitted by the learned counsel for the respondent Nos.8 to 17 that there are about 424 families, who are living in Chamundinagara Slum since more than 35 years; the respondent No.3 –Slum Board has issued ID cards to all these families and their names are included in the voters’ list; that the respondent No.3 has taken a policy decision to
W.P.No.8117/2006 - 30 -
provide pucca houses to all these Chamundinagar slum dwellers under the Jawaharlal Nehru National Urban Renewal
Mission (JNNURM) Scheme; and that they have considered
396 families for the allotment of houses to be built under this scheme. Learned counsel would further submit that the respondent No.3 has clearly sanctioned the Design, Build and
Transfer (DBT) tender to M/s. D.E.C (India) Pvt. Ltd., to construct 396 houses in the remaining portion of Sy.No.90 of
Banashankari III stage, which is called as Chamundinagar
Slum; and that the respondent No.3 had issued notice to some of these slum dwellers on 04.03.2010 itself (even before this Court passed the order on 13.04.2011). According to the learned counsel, as per the CDP 1995, an extent of 3 acres of this land was earmarked for public and semi-public purposes and further, as per the approved layout plan, this area was reserved for circular railway and for BMRTC; as the BMRTC did not utilize the schedule area for metro project, the respondent No.3 declared 35 guntas of schedule land as slum area; in the said 35 guntas of declared slum area, construction has been completed and the same has been allotted to some of the beneficiaries; only about 126 houses
W.P.No.8117/2006 - 31 -
are constructed in the said 35 guntas of land as against 424 houses/families. Learned counsel further elaborated on the submissions that considering the shortage of land to complete the shelter under the Act of 1973, detailed spot inspection was conducted; that on perusal of the sketch and checklist prepared by the Assistant Executive Engineer No.1, Sub- division, KSDB, Bengaluru, the schedule land was recommended to be declared as a slum area under Section 3 of the Act of 1973; and hence, the respondent No.1 transferred 1 acre 23 guntas of the land in question, in addition to 35 guntas, to the respondent No.3 on 04.06.2010.
According to the learned counsel, the slum-dwellers of 21 families were assured of providing houses on completion of the construction and were shifted to the land in question, evicting them from the sheds built in 35 guntas of land declared as slum area; but, the respondent No.3 has failed to keep up its promise and now, the respondent No.2 is forcefully evicting them from the land in question.
23. In rejoinder to the arguments advanced by the learned counsel for the respondents, the learned counsel for the petitioner has submitted that Article 51-A of the
W.P.No.8117/2006 - 32 -
Constitution of India contemplates a duty on every citizen of the Country to maintain public property; and no unauthorized occupant could be permitted to occupy the park area. It was further argued that the Act of 1976, being the special and later enactment, prevails over the Act of 1973 as both the State enactments have overriding effect with a non obstante clause.
Denying the arguments of the learned counsel for the slum- dwellers regarding locus-standi to maintain the writ petition, it was submitted that the Registration Certificate of the petitioner -Association was obtained on 03.10.2018 and the copy of the same is placed on record.
24. In support of their contentions, the learned counsel for the parties have placed reliance on several decisions; the relevant aspects from the cited decisions are referred to infra. We have given anxious consideration to the rival submissions and have examined the entire record.
PARKS AND OPEN SPACES NEED TO BE MAINTAINED
25. In the first place, we may observe that it remains rather indisputable that maintaining of an open space and public park is an integral necessity with any other requirement
W.P.No.8117/2006 - 33 -
for a civic settlement and particularly, in the urban area.
Protection of environment and other conveniences or amenities are matters of public concern and are to be taken care of in development scheme; including providing public park facility to ensure lung-space to the people of the locality to ensure a healthy life. Public parks are said to be the tangible reflection of the quality of life in a community.
Scientifically also, it is proven that the public parks and open spaces would reduce the stress and strain of the people in the urban area and help them to maintain good health. Obviously, it is the responsibility of the local authority to provide such breathing space to the community to reduce the health hazards, which have become common owing to urbanization and other related factors; as also to provide a quality living.
Apposite it would be to note the following passage in the decision of the Supreme Court in the case of Bangalore
Medical Trust vs. B.S.Muddappa and Ors. : (1991) 4 SCC
54 as under:
“36. Public park as a place reserved for beauty and recreation was developed in 19th and 20th Century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the
W.P.No.8117/2006 - 34 -
aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now it is a, ‘gift from people to themselves'. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology. A private nursing home on the other hand is essentiality a commercial venture, a profit oriented industry. Service may be its motto but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park. No town planner would prepare a blue print without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town planning or development Acts of different States require even private house-owners to leave open space in front and back for lawn and fresh air. In 1984 the B.D. Act itself provided for reservation of not less than 15 per cent of the total area of the lay-out in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited under Section 38-A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may given rise to health hazard. May be that it may be taken care of by a nursing home. But it is axiomatic that prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home. To say, therefore, that by conversion of a site reserved for low lying park into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility.”
26. In order to implement the legislative intent of maintaining the parks and open spaces, the Karnataka Parks,
W.P.No.8117/2006 - 35 -
Play-Fields and Open Spaces (Preservation and Regulation)
Act, 1985 has been enacted by the State of Karnataka. In view of the increasing demand for residential and commercial sites in the urban areas, a number of parks, play-fields and open spaces are being converted into sites and for such other uses. In order to provide necessary space for recreation to the residents of each locality, it is necessary to preserve parks, play-fields and open spaces and to put an end to the practice of converting such lands into other uses; with this avowed object, this Act of 1985 has been enacted.
27. Section 38-A (2) of the BDA Act postulates that the authority shall not sell or otherwise dispose of any area reserved for public park and playgrounds and civic amenities for any other purpose and any disposition so made shall be null and void . No area reserved for public parks, playgrounds and civic amenities can be deviated for any other purpose and any such disposition cannot be approved in terms of this provision.
28. Section 38-A of the Act of 1976 reads as under:
“38-A. Grant of area reserved for civic amenities etc. -(1) The authority shall have the power to lease, sell or otherwise transfer any
W.P.No.8117/2006 - 36 -
area reserved for civic amenities for the purpose for which such area is reserved. (2) The authority shall not sell or otherwise dispose of any area reserved for public parks and playgrounds and civic amenities, for any other purpose and any disposition so made shall be null and void:
Provided that where the allottee commits breach of any of the conditions of allotment, the authority shall have right to resume such site after affording an opportunity of being heard to such allottee.”
Harmonising the two State enactments
29. At this juncture, we may refer to the requirement of hormonising the two State enactments namely, Bangalore
Development Authority Act, 1976 and Karnataka Slum Areas
(Improvement and Clearance) Act, 1973. Section 73 of the
Act of 1976 contemplates that the provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. At the same time, Section 70 of the Act of 1973 also provides similar overriding effect. In the circumstances of two
State enactments having overriding effect, which Act would prevail was the question considered and answered by the
Supreme Court in the case of Sanwarmal Kejriwal vs.
W.P.No.8117/2006 - 37 -
Vishwa Cooperative Housing Society Ltd., and Ors.:
[1990] 2 SCC 288 as under:
“22. It was, however, submitted by the learned counsel for the society that the earlier enactment i.e. the Rent Act must yield to the later Act, i.e. the Societies Act, if the competing provisions of the two cannot be reconciled--lex posterior derogate priori. But the Rent Act is special law extending protection to tenants, just as the Industrial Disputes Act which makes provision for the benefit of the workmen. Ordinarily, therefore, a general provision, a dispute touching the business of the society, would have to give way to the special provision in the Rent Act on the maxim generalia specialibus non derogant. That is why this Court harmonised the said provisions by holding that in matter covered by the Rent Act, its provisions, rather than the provisions of the Societies Act, should apply. In the present case the appellant seeks protection of the Rent Act since he is a deemed tenant under Section 15A read with Section 5(4A) and 5(11)(bb) of the Rent Act. The status of a tenant is conferred on him by law as the legislature desired to extend the protection of the Rent Act to such licensees. Rights which do not flow from contracts but are conferred by law such as the Rent Act, must, we think, be determined by the machinery, if any, provided by the law conferring the right.”
30. In Solidaire India Ltd., vs. Fairgrowth
Financial Services Ltd., and Ors. : (2001)3 SCC 71 , dealing with two special statues namely, Section 3 of the Special
Court (Trial of offences Relating to Transactions in Securities)
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Act, 1992 and Section 32 of the Sick Industrial Companies
(Special Provisions) Act, 1985, it was observed as under:
“11. We are in agreement with the aforesaid decision of the case, more so when we find that whenever the legislature wishes to do so it makes appropriate provisions in the Act in that behalf. Mrs. Shiraz Rustomjee has drawn our attention to Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 wherein after giving an overriding effect to the 1993 Act it is specifically provided that the said Act will be in addition to and not in derogation of a number of other Acts including the 1985 Act. Similarly under Section 32 of the 1985 Act the applicability of the Foreign Exchange Regulation Act and the Urban Land (Ceiling and Regulation) Act is not excluded. It is clear that in the instant case there was no intention of the legislature to permit the 1985 Act to apply, notwithstanding the fact that proceedings in respect of a company may be going on before the BIFR. The 1992 Act is to have an overriding effect notwithstanding any provision to the contrary in another Act.”
31. In Ashoka Marketing Ltd. and Anr. vs. Punjab
National Bank and Ors : (1990) 4 SCC 406, while considering whether the provisions of the Public Premises Act prevails over the provisions contained in the Rent Control Act, it was observed:
“61. The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of
W.P.No.8117/2006 - 39 -
which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. We propose to consider this matter in the light of this principle.”
32. The statement of objects and reasons of the Act of 1976 envisages that Bengaluru City, with its population, is a metropolitan city. Different Authorities like City of Bengaluru
Municipal Corporation, the City Improvement Trust Board, the
Karnataka Industrial Areas Development Board, the Housing
Board and the Bangalore City Planning Authority are exercising jurisdiction over the area. Some of the functions of these bodies, development or planning etc., are overlapping creating thereby avoidable confusion, besides hampering co- ordinated development. It was therefore, considered necessary to set up a single authority for speedy implementation of the object of controlling haphazard and irregular growth of the city; and hence, the Act of 1976 came to be enacted.
33. The statement of objects and reasons of the Act of 1973 indicates that the number of slums in certain areas in the cities of Karnataka was increasing and had been a source
W.P.No.8117/2006 - 40 -
of danger to health conditions of the said areas. In order to effectively check the increase, to eliminate congestion and to provide for basic needs such as streets, water supply and drainage, to clear the slums, which are unfit for human habitation, for better accommodation and improved living conditions for slum-dwellers, promotion of public health generally and for acquisition of lands for the purpose, improving or developing or re-developing slum areas or rehabilitation of slum-dwellers to improve the public health as enshrined in the Directive Principles of State Policy in the
Constitution of India, the Act of 1973 was enacted. Both these
State enactments carry the common avowed object, to ensure planned development of the city and for providing proper human dwelling conditions, including those of public health.
34. On scanning through the objects and reasons of both the enactments, it emerges that the purpose and policy underlying these two enactments are special in nature.
Ordinarily, the Act of 1976, being a special and later enactment, would prevail over the Act of 1973. However, considering the purpose and policy underlying the two
W.P.No.8117/2006 - 41 -
enactments, a harmonious interpretation has to be given to achieve the laudable object of both.
The action of handing over additional land to Slum Clearance Board is illegal and unauthorised
35. In order to analyze the effect of the Possession
Certificate issued by the BDA in handing over the possession of 2 acres 18 guntas of land to the respondent No.3 –Slum
Board, it is necessary to set out relevant statutory provisions of the Act of 1973. Section 3 provides for declaration of slum areas and the same reads thus:
“3. Declaration of slum areas. – [1] Where the Government is satisfied that, -
(a) any area is or is likely to be a source of danger to health, safety or convenience of the public of that area or of its neighbourhood, by reason of the area being low-lying, insanitary, squalid, over-crowded or otherwise; or
(b) the buildings in any area, used or intended to be used for human habitation are, -
(i) in any respects, unfit for human habitation; or
(ii) by reason of dilapidation, over crowding, faulty arrangement and design of such buildings, narrow-ness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities or any combination of these factors, detrimental to safety, health or
W.P.No.8117/2006 - 42 -
morals, it may by notification, declare such area to be a slum area.
[2] xxxxx”
36. Section 11 gives power to declare any slum area to deal clearance area. It reads thus:
“11. Power to declare any slum area to be slum clearance area.- (1) Where the Government, on a report from the Board or the prescribed authority or the local authority concerned or the State Housing Board or an officer authorised by the Government for this purpose is satisfied as respects any slum area that the most satisfactory method of dealing with the conditions in the area is the clearance of such area and the demolition of all the buildings in the area, it may, by notification, declare the area to be a slum clearance area, that is to say, an area to be cleared of all buildings in accordance with the provisions of this Act:
Provided that before issuing such notification the Government shall call upon the owners of the lands and buildings in such slum area to show cause why such declaration should not be made and after considering the cause if any, shown by such owners, it may pass such orders as it may deem fit.
(2) Any part of the slum area or any building in the slum area which is not unfit for human habitation or dangerous or injurious to safety, health or morals may be excluded from the notification under sub- section (1) if the Government considers it necessary.
(3) The notification under sub-section (1) shall specify each of the buildings to be demolished and the area to be cleared.”
W.P.No.8117/2006 - 43 -
37. Section 16 of the Act of 1973 reads thus:
“16. Rules to provide for transfer to previous occupants. - Subject to the provisions of this Act, the Government may, by rules, provide for or regulate the transfer, and the conditions of such transfer to persons who, immediately before the declaration of any slum area to be a slum clearance area, were occupying lands or buildings in that area or lands or buildings in such slum clearance area after its re-development.”
38. It is not in dispute in the present case that
Preliminary and Final Notifications were issued by the respondent No.3 –Slum Board to declare 35 guntas of land in question as a slum area, whereas only Preliminary
Notification dated 19.10.2011 was issued under Section 3 of the Act of 1973 to declare 1 acre 23 guntas. The Supreme
Court, in the case of The Government of Mysore and Ors. vs. J.V.Bhat: AIR 1975 SC 596, while considering Sections
3, 9, 12(1)(a) and 12(1)(b) of the Mysore Slum Areas
(Improvement and Clearance) Act, 1958, which are akin to the provisions of the Act of 1973, held that the said provisions are not unconstitutional, but the notifications were declared as bad since the affected were not given an opportunity of making representations against them.
W.P.No.8117/2006 - 44 -
39. During the course of arguments in this petition, we have posed further queries and had expected the learned counsel appearing for the respondent Nos.1 and 3 to place before us the original office file, particularly relating to the area of the land in question, said to have been given in possession later. Though certain files have been placed before us, but it is not specifically made out as to when the so-called Possession Certificate dated 04.06.2010 was acted upon and the note sheets in that regard are not forthcoming.
Further, on noticing the discrepancies in the list of the dwellers concerned on the area in question, we had requested the learned counsel for the respondent No.3 to submit the original file in this regard also to which, it was submitted, as per the instructions, that the file has been submitted to the office of Lokayuktha. The submissions, which were sought to be made on behalf of the official respondents about certain events that had allegedly taken place while issuing the Possession Certificate dated 04.06.2010, appear to be involving several such facts that have not come on record and having regard to the circumstances, another opportunity was granted to the BDA and also to the Slum
W.P.No.8117/2006 - 45 -
Board to specify the facts by way of affidavits of the responsible officers. The contents of the affidavits filed before this Court by the BDA on 01.12.2018 and the Slum Board on
28.11.2018 pursuant to such directions may be taken note of as under:-
“Affidavit filed by the Commissioner, BDA dated 1.12.2018:
2. At the outset, I state that, the Bangalore Development Authority (“BDA”) expresses its unconditional and unqualified apologies to this Hon’ble Court for having made certain statements before this Hon’ble Court in writing as well as oral during the course of the proceedings of this case. The statement made before this Hon’ble Court that an extent of 2 Acres 5 Guntas of land was available for laying of a Park and that a Park would be developed in remaining said extent of 2 Acres 5 Guntas on the basis of which the above Writ Petition had come to be disposed of by this Hon’ble Court and reiterating the same fact before the Hon’ble Supreme Court of India was without ascertaining the factual position and availability of the said land. Infact, the records would disclose that as on the date the said submissions were made before this Hon’ble Court and later before the Hon’ble Supreme Court of India a total extent of 2 Acres 18 Guntas was handed over to the Slum Clearance Board and the said extent of 2 Acres 18 Guntas was not in possession of BDA. Further, even when a statement was made before this Hon’ble Court that an extent of 1 Acre 3¾ Guntas of land was available for laying of a park, in the first instance it was not brought to the notice of this Hon’ble Court that even in the said extent of 1 Acre 3¾ Guntas of land about 8 unauthorised Huts
W.P.No.8117/2006 - 46 -
were in existence and that before laying the park they will have to be evicted. 3. I state that, the BDA has highest respect to the proceedings before this Hon’ble Court and the Orders passed by this Hon’ble Court and has always been placing the correct factual position before this Hon'ble Court. I, as head of the Institution of the BDA while tendering my unqualified apologies on behalf of BDA assure this Hon'ble Court that such unintentional mistakes shall not occur in future. 4. I state that, I instructed my Office to trace the Original File relating to handing over of the Possession of 2 Acres 18 Guntas of land to the “Slum Clearance Board”. My staff is making efforts to trace the said file and the same shall be placed for perusal of this Hon'ble Court in due course. However, on the available records pertaining to the land in question and upon perusal of the records of the case, the present Affidavit is filed depicting the factual position with respect to Sy.No.90 of Hosakerehalli Village which is the subject matter of the present case. 5. I state that, Sy.No.90 of Hosakerehalli Village was reserved for “Public and Semi-Public Use” in Revised Comprehensive Development Plan (“RCDP”) 2011, which was approved on 05.01.1995. In the Revised Master Plan (“RMP”) 2015, which was approved on 22.06.2007, an extent of 3 acres in the said Sy.No.90 was earmarked for Park and Open Spaces. In the Layout Plan approved by BDA the said extent of 3 Acres was earmarked for Circular Railway, Bangalore Metro Rail Corporation Limited (“BMRCL”) as Park. I state that, the BMRCL did not utilize the said land and also the Circular Railway was not laid. Therefore, this extent of 3 Acres was required to be utilised as a Park. However, certain unauthorised occupants had put up Hutments and were living in a portion of the said land. I state that, though the BDA had taken steps to evict the unauthorised occupants, the unauthorised occupants have again come back and started squatting on the said land by forming an Association by name
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“Chamundinagara Slum Dwellers Association” and moved the State Government to notify the extent which was in their occupation as a Slum Area. 6. I state that, initially an extent of 35 Guntas of land was declared as a Slum Area by issuing the Preliminary Notification and Final Notification under the “Slum Area Improvement and Clearance Act – 1956”. A meeting under the Chairmanship of the District In-charge Minister was held on 06.04.2010 for identifying the problems for implementation of Schemes under the Jawaharlal Nehru National Urban Renewal Mission (“JNNURM”) and Basic Services for Urban Poor Programme (“BSUP”) . In the said meeting, as regards the Chamundinagara Slum Dwellers Association is concerned, the Committee noticed that, under the JNNURM Scheme permission had been obtained for providing basis amenities by constructing 396 Houses. To enable the Slum Board to take up the said work of construction of Houses, BDA was instructed to give necessary permission by handing over possession of the land. I state that, the Slum Board by its letter dated 23.04.2010 requested the BDA to accord permission for construction 396 Houses in an extent of 2 Acres 18 Guntas in Sy.No.90 of Hosakerehalli Village. Accordingly, the BDA handed over possession of an extent of 2 Acres 18 Guntas i.e., (35 Guntas + 1 Acre 23 Guntas) to the Slum Board on 04.06.2010. 7. I state that, since the area earmarked for BMRCL was not utilised by it, a portion of the said land was allotted in favour of Indian Oil Corporation (“IOC”) and in the remaining portion of the land a road has been formed by BDA. 14. I state that, after the present Writ Petition was thus restored, the BDA has filed Additional Statement of Objections on 13.04.2018. Before filing the said Additional Statement of Objections, the BDA conducted a Total Station Survey of the entire Area and noticed that after excluding the extent of 2 Acres 18 Guntas which was handed over to the Slum Board an extent of 1 Acre
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3¾ Guntas was available for developing as Park. However, in the said Statement of Objections the BDA had not mentioned about existence of 8 unauthorised Hutments. 15. I state that, I personally visited the Spot and took immediate steps for eviction of said unauthorised occupants and a Park has been laid in the said extent 1 Acre 3 ¾ Guntas of land. The said Park is being used by the residents of the locality. The area of 1 Acre 3 ¾ Guntas has been secured by fencing the Park Area.”
“Affidavit dated 28.11.2018 filed on behalf of the Slum Board
2. I respectfully submit that after the final notification in respect of 35 Guntas of land in Sy.No.90, Hosakerehalli Village, which is known as Chamundinagara Slum which is notified by the Deputy Commissioner. On 01.03.2010 a note was put up for writing a letter to the Bangalore Development Authority for issuing No Objection for construction of the houses in respect of 35 Guntas of land. Subsequently, the Joint Commissioner has put up the file and as per the order of the Commissioner of the Board, on 01.03.2010 the draft of the letter was put up and the Commissioner of the Board on 05.03.2010 has ordered for issuing the letter and accordingly the letter dated 06.03.2010 was addressed to the Commissioner, Bangalore Development Authority, seeking for issuing of No Objection for construction of the houses in respect of the land which has been notified as slum under Section 3 of the Karnataka Slum Area (Improvement and Clearance) Act, 1973. Thereafter, by Possession Certificate dated 04.06.2010 and copy of the sketch which is signed by the Assistant Executive Engineer, No.2 Sub-Division (South), Bangalore Development Authority, Bangalore-560017, and Assistant Executive Engineer, Special Squad Sub-Division, Karnataka Slum Clearance Board, Bangalore, were handed over to the Board and thus the Board has
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come in possession of the total extent of land measuring 2 Acres 18 Guntas of land in Sy.No.90, Hosakerehalli Village, which is known as Chamundinagar Slum. 3. In so far as submission made by the Petitioner that there is discrepancy in so far as the list of beneficiaries about their religion, caste is concerned, I submit that initially one Sri Yogesh Gowda preferred a complaint to the Hon’ble Lokayuktha and the officials of the Board were called upon to explain about the discrepancy in respect of Complaint No. COMPLAINT/LOK/BCD/1375/2015 by issuing a notice and the individual persons who are issued with notice clarified about the allegations made against them. The concerned case worker who prepared the list clarified that the list was prepared on the oral statement made by the slum dwellers during the socio-economic survey and also clarified that on the basis of the caste or religion that the houses will not be allotted. It was also stated by him that it was only in so far as those persons belonging to Schedule Caste/Schedule Tribe provided that they submit Caste Certificate some relaxation will be provided for with regard to the payment of beneficiary contribution. However, in respect of others, the amount as will be specified to the allottees belonging to the general category will have to be paid by any other person belonging to any other caste. He also stated that there will be some mistake committed during typing the religion/caste while preparing the beneficiary list. 4. I submit that the corrected list prepared by the officials of the Board is also claimed to have been submitted by the concerned officials of the Board, the same submitted to the Lokayuktha on 28.06.2018 in respect of the proceedings No.COMPLAINT/LOK/BCD/1375/2015. 5. I submit that accordingly, I have tried to answer the queries on the directions of this Hon'ble Court as stated above and accordingly I have prepared the present affidavit on the strength of the records available with the Board and I submit that
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the above deposition has been made on the basis of the available records and proceedings which are in the custody of the Board.”
40. The affidavit filed by the Commissioner, BDA is clear volte-face to the earlier affidavits filed before this Court as well as the Supreme Court, undertaking to develop 2 acres
35 guntas of land as park. It is apparent that the BDA, being a responsible Statutory Authority established under the State, has chosen to act differently at different points of time and with different statements before the different Courts according to situation inasmuch as handing over possession to the Slum
Board on 04.06.2010. No such statement was ever made by the BDA when the matter was heard earlier and disposed of on 13.04.2011. Expressing its unconditional and unqualified apologies to this Court for having made certain statements before this Court and the Supreme Court would not cure the defects as also the defaults. Such action of the BDA could only be deprecated.
41. In an overall comprehension of the matter, we are satisfied that the transfer of land to the Slum Board beyond 35 guntas, for which final notification under the Act of
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1973 was issued, was entirely illegal and in direct contravention of the requirements of Section 38-A of the Act of 1976. Such a transfer had been made despite pendency of this writ petition and such a fact was never divulged before the Court in the earlier round of proceedings.
42. Even when the transfer of land to the Slum Board beyond 35 guntas is held illegal, the questions in the present matter are not solved for the reason that because of such actions on the part of the official respondents, as at present, the slum dwellers’ settlement seem to have taken place over such land and it would be leading to several problems and confusions if such land is ordered to be reverted back.
BALANCE NEED TO BE STRUCK
43. With a note of caution to curb against recurrence of such defaults, but keeping in mind the ground realities, we have analyzed the material placed on record. From the overall analysis, it is found that only 1 acre 3¾ guntas of land is now available with the BDA. Attempts are made by the slum- dwellers even to squat on this area. It has only been subsequent to the directions issued during the proceedings in
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this petition that the BDA has taken action to protect at least this 1 acre 3¾ guntas of land.
44. As aforesaid, in the present scenario, if the land in question is sought to be restored back to its original position, it would cause more hazards while putting the slum- dwellers as also slum clearance to chaotic situation. Both the issues of developing the park as well as slum clearance are important as also imperative in the facts and circumstances of the case. Striking a balance is the necessity in the interest of equities. No doubt park area cannot be transferred to any other purpose but, as narrated in the preceding paragraphs, much water has flown under the bridge.
45. In our considered view, disturbing the shelters provided/to be provided to the slum-dwellers in 2 acres 18 guntas of the land in question at this length of time would render their life miserable and would not be a feasible solution to set right the wrong done at this length of time. Article 21 of
Constitution of India provides/guarantees protection of life and personal liberty and this right to life is one of the basic human right and it is cherished constitutional value to be considered
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while examining the equities. However, as regards the other families, who were allegedly squatting over the said 1 acre 3¾ guntas of land, we are clearly of the view that no such directions can be issued for allowing them to enter in possession thereof. We would, however, leave it open for them to take recourse to appropriate remedies in accordance with law in relation to their claim against the Slum Board, including making of the submissions before the Karnataka
Lokayukta.
46. Considering the factual position, we deem it appropriate to direct the respondent No.1 -BDA to develop 1 acre 3¾ guntas of the remaining land as public park within a period of six months and to provide an alternative parcel of about 2 acres of land for park in the nearby area.
Allotment to respondent No. 5 calls for no interference
47. The land allotted to the respondent No.5 – IOCL by the BDA is a civic amenity site and distinct from the park area. Running of petrol bunk cannot be held to be standing at contrast to the civic amenities. This Court, in the case of
Aicoboo Nagar Residents Welfare Association & Anr. vs.
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Bangalore Development Authority & Anr. : ILR 2002 KAR
4705, has held that allotment of civic amenity site to the
Government, through resolution passed by BDA, does not violate the fundamental right or any legal right of the public; and as per the Government Notification No.HUD152/MMT/90 dated 29.08.1990, retail outlets vending petrol are brought under the purview of civic amenities. In view of the same, the challenge made by the petitioner regarding the allotment of civic amenity site to the respondent No.5 cannot be countenanced and must fail.
CONCLUSION AND DIRECTIONS
48. Considering the factual position, we deem it appropriate and hence, direct the respondent No.1 -BDA to develop the aforesaid 1 acre 3¾ guntas of the land as public park within a period of six months; and, in order to compensate for the land of the park lost due to their illegal and unauthorised action, to provide and develop 2 acres of land for park in the nearby area.
49. The complications and contradictions in this matter having arisen only for the fundamental fault on the part of the BDA, it is directed that other civic amenity sites shall be
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scrupulously maintained by BDA and it shall be ensured that no other land reserved for park in the City of Bengaluru is encroached over in any manner. Wherever the development of parks has remained pending, the work shall be taken up by the BDA at the earliest and shall be completed within six months from today.
50. As regards the inconsistencies noticed in the list of beneficiaries submitted by the Slum Board, when it has been pointed out that the matter relating to slum-dwellers is being inquired into by the Karnataka Lokayukta, it appears appropriate and hence, provided that in case of any grievance of any person remaining as regards inclusion or exclusion of name in the list of beneficiaries provided by the Slum Board or any other claim, the same may be submitted for consideration before the Karnataka Lokayukta. Having regard to the circumstances of the case, we would request the Karnataka
Lokayukta to examine such grievance/complaint, if made and to issue necessary directions, as deemed fit, in accordance with law.
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51. This being a matter of public interest litigation, though the petition presently stands disposed of, but we leave it open for the parties to make a prayer for its revival or any further order, if so required.
Sd/- CHIEF JUSTICE
Sd/- JUDGE
NC/bkv