- 1 - HC-KAR NC: 2025:KHC:30210 WP No. 51513 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE R. NATARAJ WRIT PETITION NO. 51513 OF 2016 (GM-PP) BETWEEN: 1. P. SUBRAMANI AGED 61 YEARS, S/O SRI PANDARI NAIDU, 2. S. VARUN KUMAR AGED 32 YEARS, S/O P SUBRAMANI, BOTH ARE R/AT NO.17/22, 7TH CROSS, 30TH MAIN ROAD, B.S.K. III STAGE, BENGALURU - 560 085. …PETITIONERS (BY SRI. S.K. ACHARYA, ADVOCATE) AND: BENGALURU DEVELOPMENT AUTHORITY KUMARA PARK WEST, BENGALURU - 560 020 REPRESENTED BY ITS SECRETARY AND COMPETENT AUTHORITY. …RESPONDENT (BY SRI. K. KRISHNA, ADVOCATE) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 17.09.2016 PASSED IN M.A.NO.26/2016 ON THE FILE OF THE COURT OF THE XLIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU VIDE ANNEXURE-A AND ETC. Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30210 WP No. 51513 of 2016 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R. NATARAJ ORAL ORDER The petitioners have challenged an order bearing No.BDA/Secy/38/16-17 dated 20.04.2016 passed by the Secretary and Competent Authority of the respondent under Section 5(1) of the Karnataka Public Premises (Eviction of Unauthorized occupants) Act, 1974 (for short, 'the Act, 1974'). The petitioners have challenged the judgment dated 17.09.2016 passed by the XLIV Additional City Civil and Sessions Judge, Bengaluru (CCH-45) (for short, 'the Appellate Court') in M.A. No.26/2016 declining to interfere with the said order dated 20.04.2016 passed by the respondent. 2. The respondent issued a notice under Section 4(1) of the Act, 1974 on 28.12.2015 to the petitioner No.2 claiming that the petitioners were in unauthorized possession of the land belonging to it. The said notice was returned unserved. Thereafter, action was taken to serve the notice through the Revenue Officer (South) which purportedly was acknowledged by the petitioner No.2 on 30.01.2016. The petitioner No.2 did - 3 - HC-KAR NC: 2025:KHC:30210 WP No. 51513 of 2016 not file any objections to the said notice which compelled the respondent to issue another notice to the petitioner No.2 on 27.02.2016, which was acknowledged by him on 01.03.2016. The petitioners did not appear for the enquiry and did not file any objections. Following this, the impugned order dated 20.04.2016 was passed by the respondent under Section 5(1) of the Act, 1974 holding that the land in Sy. No.17 (old) new No.136 of Kathriguppe village, Uttarahalli hobli, Bengaluru South Taluk, was acquired by the erstwhile City Improvement Trust Board (CITB) in the year 1968 vide preliminary notification dated 09.05.1968 followed by a final notification issued by the State Government on 28.10.1971. It was also stated that the award was passed on 25.04.1984 and the same was approved on 19.02.1985 and possession of the said land was taken by the Bangalore Development Authority ('BDA' for short) on 27.03.1985 and a notification under Section 16(2) of the Bangalore Development Authority Act, 1976 (for short, ‘the Act, 1976’) was issued on 27.01.1987. It was stated that the petitioners had encroached upon the property and had put up construction unauthorizedly and therefore, they were called - 4 - HC-KAR NC: 2025:KHC:30210 WP No. 51513 of 2016 upon to hand over possession of the property failing which suitable action would be taken to evict them from the property. 3. Being aggrieved by the said order, the petitioners filed M.A. No.26/2016 before the Appellate Court. The said appeal was also dismissed in terms of the judgment dated 17.09.2016. 4. Being aggrieved by the said order dated 20.04.2016 passed by the respondent and the judgment dated 17.09.2016 passed by the Appellate Court, the petitioners are before this Court. 5. The respondent has filed statement of objections inter alia stating that the land in Sy. No.136 (old No.17) of Kathriguppa village, measuring 02 acres 20 guntas along with certain other lands were acquired by the respondent for the formation of "Banashankari 3rd Stage Layout" vide preliminary notification dated 09.05.1968 gazetted on 27.06.1968 and final notification dated 28.10.1971 gazetted on 25.11.1971. Sri Hutchappa, son of Sri Boraiah, was one of the persons claiming ownership in respect of the land measuring 02 acres 20 guntas in Sy. No.17 (new No.136 of Kathriguppa village) and he filed - 5 - HC-KAR NC: 2025:KHC:30210 WP No. 51513 of 2016 objections on 16.08.1972 in response to the acquisition notification. The award in respect of the said 02 acres 20 guntas of land in new Sy. No.136 was passed on 25.04.1984 and the same was approved on 19.02.1985. Possession of the land in new Sy. No.136 was taken on 27.03.1985 and handed over to the Engineering Section. Notification under Section 16(2) of the Land Acquisition Act, 1894 was issued on 27.01.1987 and the same was gazetted on 12.02.1987. Though the petitioners contended that the petitioner No.1 had purchased a site bearing No.17:22 measuring 30 feet x 40 feet from Sri H.D. Narasappa, son of B. Hutchappa vide sale deed dated 27.06.1984, it was not mentioned in the sale deed that the said site was part and parcel of the land n Sy. No.136 or Sy. No.17. The said sale deed was executed subsequent to the date of issuance of the acquisition notifications and passing of the award in respect of the land in Sy. No.136 of Kathriguppa village. It is further stated that the petitioner No.2 had unauthorizedly encroached a portion of the acquired property and had put up unauthorized construction. Therefore, the respondent had issued notice under Section 4(1) of the Act, 1974 to the petitioner No.2 on 28.12.2005 calling upon him to - 6 - HC-KAR NC: 2025:KHC:30210 WP No. 51513 of 2016 show cause as to why the order of eviction should not be passed. The petitioner No.2 received the notice on 30.01.2016, but did not file any reply or objections to the same. Thereafter, the respondent has issued notice dated 27.02.2016 to the petitioner No.2 calling upon him to appear for personal hearing. The said notice was served to the petitioner No.2 on 01.03.2016. The petitioner No.2 neither appeared nor furnished any documents or reply. Thereafter, the respondent passed the impugned order dated 20.04.2016 under Section 5(1) of the Act, 1974 calling upon the petitioner No.2 to vacate the public property mentioned in the schedule of the order within the time stipulated therein. It is further stated that the khata certificate produced at Annexure 'D' is not issued by the respondent and the same does not confer any valid right or title in favour of the petitioners over the property in question. It is contended that the vendor of the petitioner No.1 had participated in the acquisition proceedings and he had not challenged the acquisition and the property vested with the State Government and thereafter, the State Government has handed over the property to the respondent for development. The petitioner No.1 is not in possession of the property in - 7 - HC-KAR NC: 2025:KHC:30210 WP No. 51513 of 2016 question. The petitioner No.2 was in unauthorized occupation of the property in question and hence, the impugned proceedings were initiated against him. Accordingly, the respondent sought for dismissal of the petition. 6. Learned counsel for the petitioners contended that the notice of the proceedings was not served on the petitioners. He contends that as per the impugned order, the first notice was issued to the petitioner No.2 on 28.12.2015 which was not served. He contends that the respondent had purportedly served the notice through the Revenue Officer (South) though there was no proof of such service. He contends that another notice was purportedly issued to the petitioner No.2 on 27.02.2016 which was allegedly acknowledged by the petitioner on 01.03.2016 but no acknowledgment is available regarding service of notice. He, therefore, contends that there was no proper service of notice to the petitioners and the impugned order is liable to be set aside only on this score. Besides this, he contends that the petitioner No.1 had purchased the property in the year 1984 and hence, was not an unauthorized occupant. Therefore, he contends that the provisions of the Act, 1974 were not applicable to the petitioners. - 8 - HC-KAR NC: 2025:KHC:30210 WP No. 51513 of 2016 7. Per contra, the learned counsel for the respondent submitted that the petitioner No.1 had purchased the site in the year 1984 which was formed in an area that was already acquired and had vested in the respondent. He, therefore, contends that under Section 33-A of the BDA Act, 1976, it is entitled to evict the petitioner following the due process of law prescribed under the Act, 1974. He contends that the respondent was compelled to take action against the petitioners who were in unauthorized occupation of a 'public premises'. He also contends that the respondent had issued notices to the petitioner No.2 and the same were served but the petitioner No.2 did not appear and did not defend the action of the respondent. He, therefore, contends that the respondent did not have any other option than to pass an order under Section 5 of the Act, 1974. He, therefore, contends that no indulgence can be shown to the petitioners, who are squatting on the property belonging to the respondent unauthorizedly and illegally and that too after the acquisition had attained finality. 8. I have considered the submissions of the learned counsel for the petitioners and the learned counsel for the respondent. - 9 - HC-KAR NC: 2025:KHC:30210 WP No. 51513 of 2016 9. A perusal of the impugned order dated 20.04.2016 passed by the respondent shows that the notice initially issued to the petitioner No.2 on 28.12.2015 was not served. Apparently, there is no document to establish that the respondent had served the notice to petitioner No.2 through the Revenue Officer (South). Besides this, though it is claimed that the respondent had issued a notice to the petitioner No.2 on 27.02.2016 requiring him to appear before it on 01.03.2016, the possibility of the said notice being served on the petitioner No.2 is remote since the first notice issued on 28.12.2015 had returned unserved. Therefore, the contention of the petitioners that there was no proper service of notice to the petitioners merits acceptance. Besides this, it is relevant to note that the acquisition of land for Banashankari III Stage was finalized by the State Government by handing over possession to the officials of BDA on 17.09.1986. However, the respondent did not take any action till the year 2015 to evict the petitioners from the property. Therefore, the question whether the petitioners had acquired any prescriptive right to defend their possession in respect of the property in question may arise for consideration and that being a valuable right, the same cannot - 10 - HC-KAR NC: 2025:KHC:30210 WP No. 51513 of 2016 be allowed to be trampled upon by the respondent in purported exercise of power under the Act, 1974. It is also relevant to note that the respondent has now amended and incorporated Section 38-D in the BDA Act, 1976, which enables a purchaser, who had purchased land from a landowner notified in the acquisition, to be allotted a site, subject to conditions stated therein. Therefore, in view of the change in policy of the State Government as adumbrated in Section 38-D of the BDA Act, 1976, the petitioners cannot be evicted from the property in question. In that view of the matter, the impugned order dated 20.04.2016 passed by the respondent warrants interference. 10. Accordingly, the petition is allowed. The impugned order bearing No.BDA/Secy/38/16-17 dated 20.04.2016 vide Annexure 'A' to the petition, passed by the respondent is quashed. The judgment dated 17.09.2016 passed by the Court of the XLIV Additional City Civil and Sessions Judge, Bengaluru (CCH-45) in M.A. No.26/2016 is set aside. The matter is remitted back to the respondent, who shall consider the same in accordance with law and dispose of the same. - 11 - HC-KAR NC: 2025:KHC:30210 WP No. 51513 of 2016 11. In order to expedite the process, the petitioners are directed to appear before the respondent on 22.09.2025 at 11 a.m. It is open for the petitioners to take advantage of the Scheme provided by the respondent under Section 38D of the Bangalore Development Authority Act, 1976, in which event, the respondent shall consider the feasibility of allotting the site purchased by the petitioner No.1, subject to conditions prescribed under Section 38-D of the Bangalore Development Act, 1976. Sd/- (R. NATARAJ) JUDGE SMA/List No.: 1 Sl No.: 47