9911796707
TMI Blog2000 (8) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry Planning Act, 1961; 'Public Premises Act' for Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974; and 'Regularisation Act' for Karnataka Regularisation of Unauthorised Constructions in Urban Areas Act, 1991. 1.1 These petitions have been heard with several other batches relating to other layouts of BDA, the common factor being the relief sought, based on Section 38-C(2) of the BDA Act, which was inserted by Karnataka Act 1 of 2000. For convenience, the main order is made in these cases and separate orders will be made in other cases, following this decision. In view of it, several aspects which may not arise directly in these three batches are also considered and decided in this order. 2. Petitioners in these petitions claim that they are owners of sites in a private layout known as Eranna Layout, formed in Sy. No. 73 of Banaswadi-Channasandra Village, K.R. Puram Hobli, Bangalore South Taluk. Petitioners in seventy petitions, i.e., Writ Petition Nos. 11779, 11785, 11786, 11790, 11793 to 11795, 11797 and 11798, 11800 to 11822 of 2000 (in Writ Petition Nos. 11779 to 11822 of 2000) and petitioners in Writ Petition Nos. 20548 to 20557, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 44, 45, 46, 47, 48, 49, 36, 95 (30' x 52'), 57 and 8 respectively of Eranna Layout formed in Sy. No. 73. The measurements of each site is 30' x 40' except those whose measurements are given in brackets. 4. Petitioners in Writ Petition Nos. 11055 to 11059, 11779 to 11792 and 20568 of 2000 state that they are residing in their respective properties. None of the other petitioners claim to be in actual possession of their respective sites claimed by them. Some of the petitioners claim to be owners of sites claimed by them, as legal heirs of original owner. Some claim that they have purchased the sites under registered sale deeds from either the original owner or his successors-in-title. Most of them claim that they are in possession of the sites in pursuance of general powers of attorney executed in their favour by the original owner or his successors-in-title. 4.1 The petitioners in Writ Petition Nos. 11055 to 11059 of 2000 claim that they were put in possession under General Powers of Attorney dated 6-10-1986, 6-10-1986, 21-11-1986, 6-10-1986 and 31-12-1986 and the structures in their sites were constructed in the year 1986. 4.2 The petitioners in Writ Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Minister and local MLA had recommended to the BDA to denotify the said land; and that pursuance of the said request for denotification and in view of the pendency of the writ petitions and original suits filed by them, no developmental activities (in the nature of formation of roads, drains etc.) were taken up by BDA for several years and the land continued to remain as it was prior to acquisition. Status quo was also maintained in regard to possession of land. 8. When matters stood thus, Bangalore Development Authority Act, 1976 was amended by Bangalore Development Authority (Amendment) Act, 1999 (Karnataka Act 1 of 2000), amending Section 38-C of the Act, by inserting sub-section (2) providing for allotment by way of sale in favour of persons in unauthorised possession of sites, in lands which are acquired by or vested in BDA, subject to the conditions stated therein. Though the said Amendment Act received the assent of the President of India on 28-12-1999 and was published in the Karnataka Gazette, dated 5-1-2000, the said newly inserted Section 38-C(2) was not brought into force. Sub-section (2) of Section 1 of the Amendment Act provided that the provisions thereof sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished without recourse to law. 11. Hence, petitioners have filed these petitions seeking the following reliefs: (i) a direction to BDA to send a proposal to State Government seeking approval to sell the sites formed in Sy. No. 73 to the respective occupants (petitioners) and consider their cases under Section 38-C(2) of the BDA Act and allot and sell them, the respective sites in their possession; (ii) a direction to BDA to maintain status quo in regard to sites in question and not to attempt to demolish the houses constructed by them or form a layout in Sy. No. 73; (iii) a direction to State Government to appoint a date for implementation of Act 1 of 2000 which has inserted Section 38-C(2). During the pendency of these petitions, the Governor of Karnataka, in exercise of the power conferred under Article 213(1) of the Constitution of India, promulgated Bangalore Development Authority (Amendment) (Repealing) Ordinance, 2000 (Karnataka Ordinance 4 of 2000), repealing Bangalore Development Authority (Amendment) Act, 1999 (Karnataka Act 1 of 2000). Thus Section 38-C as still-born as it was repealed even before it was brought into force. Feeling aggrieved, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1987 under Section 16(2) of the Land Acquisition Act, 1894 was published in Karnataka Gazette, dated 3-3-1988, confirming that the said land has vested in BDA in pursuance of taking of possession. It has stated that it could not take up any development activities like formation of roads, drains and sites in the said land in view of the pendency of the writ petitions and original suits filed by petitioners (Writ Petition No. 10570 of 1987, O.S. Nos. 1281 to 1285 of 1988 etc.). According to BDA, out of 94 petitioners, 71 petitioners have not put up any structure at all; and only 20 sites have temporary structures measuring between 100 sq. ft. to 350 sq. ft. and three sites have only foundation but no buildings; and none of the petitioners have any manner of right, title or interest in the said land, as it has already vested in BDA; and BDA has now formed a layout in the said land [Sy. No. 73] and has even made allotments; and therefore all the petitions should be dismissed as not maintainable. The State has filed common objections in these petitions and the connected batches contending that the repealing Ordinance is valid. 15. On the grounds urged and submissions made, the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me; and (iii) the total extent of the land allotted under this sub-section together with the land already held by the allottee shall not exceed the ceiling limit specified under Section 4 of the Urban Land (Ceiling and Regulation) Act, 1976. Explanation.-For the purpose of sub-section.- (a) 'land' includes site; (b) 'Original owner of the land' means a person who was occupant of the land immediately before publication of the development scheme which contained proposal for acquisition of such land . Section 38-C(2) thus provides for allotment of any land which was acquired by or vested in BDA, by way of sale, in favour of the original owner of the land or any purchaser from the original owner or a General Power of Attorney holder from the original owner, in certain circumstances, subject to the conditions stated therein. The Amendment Act was published in the Karnataka Gazette, dated 5-1-2000. Sub-section (2) of Section 1 of the Amendment Act provided that the Amendment Act shall come into force on such date as the State Government may, by notification, appoint. The State Government did not issue any notification appointing the date on which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if.- (a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or (b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or (c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President. (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance.- (a) shall be laid before the Legislative Assembly of the State; or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expirati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Karnataka Act 1 of 2000). Thus, the condition specified in clause (1) of Article 213 of the Constitution for promulgation of an Ordinance is fulfilled. 22. The contention of the petitioners is that the proviso to clause (1) of Article 213 provides that the Governor shall not promulgate an Ordinance without the instructions from the President of India, in case any one of the three conditions specified therein exists, and the Repealing Ordinance challenged in these petitions fall under the proviso and therefore requires the instructions from the President. The petitioners admit that conditions (a) and (b) of the proviso are inapplicable. They contend that condition (c) of the proviso applies. According to them, if an Act of the Legislature of the State had contained the same provisions (as in the Ordinance), it would have been invalid unless, it had been reserved for the consideration of the President and had received the assent of the President. Petitioners contend that the Amendment Act was reserved for consideration of the President and had received the assent of the President that the State had thus admitted that Section 38-C(2), inserted in the BDA Act was repugnant to a law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t read as follows: (1) If at any time when the Legislature of a province is not in session the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the Governor General, promulgate any such Ordinance if an Act of the Provisional Legislature containing the same provisions would under this Act have been invalid unless, having been reserve for the consideration of the Governor-General, it had received assent of the Governor General . The contentions urged by the appellants before the Federal Court was that the Bihar Maintenance of Public Order Ordinance, 1949 under which they were detained, contained provisions which, if they were contained in an Act of the provincial Legislature, would have been invalid without the assent of the Governor General and therefore previous instructions of the Governor General were necessary to validate the Ordinance and as there was no such instructions, the Ordinance was invalid. The said contention was rejected by the Federal Court, on the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those of the Criminal Procedure Code. ... As there is no repugnance, Section 107 of the Government of India Act, cannot have any application to the present case . 26. The question was considered by the Patna High Court in Kameshwar Singh v Province of Bihar, The relevant facts of that case were that on 6-7-1949, the Governor General gave his assent to an Act entitled the Bihar Abolition of Zamindari Act, 1948, which empowered the provincial Government to deprive proprietors and tenure holders of their estates and tenures. Subsequently, the Bihar Abolition of Zamindari Repealing Act, 1950, was passed by the Bihar Legislature and assented to by the Governor General on 18-1-1950. It was contended that the Legislative Body which enacted the Bihar Abolition of Zamindari Act, 1948 consisted of the two chambers of the Legislature and the Governor General, whereas the Legislative Body which enacted the Repealing Act, 1950 consisted of the two chambers of the Legislature and the Governor; and that the Legislative Body competent to repeal an Act is only the Legislative Body which enacted it and as the Zamindari Abolition Act, 1948 had received the assent of the Governor General, such ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the matters enumerated in List III of Seventh Schedule of the Constitution of India. Article 254(1) provides that when any provision of a law made by a State Legislature is repugnant to a provision of a law made by the Parliament which the Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then the law made by the Parliament or the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. It is evident from Article 254(1) of the Constitution that what will be void is not the entire enactment made by the State Legislature, but only the repugnant provision. Clause (2) of Article 254 of the Constitution, however, provides that where a law made by the State Legislature (with respect to one of the matter:, enumerated in the Concurrent List), contains any provision repugnant to the provisions of an earlier law made by the Parliament or an existing law with respect to that matter, the law so made by the State Legislature shall, if it has been reserved for the consideration of the President and has received his assent, shall prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State Legislature contains a provision repugnant to provision of a law made by the Parliament or an existing law, and receive the assent of the President, then such State law which has received the assent of the President cannot be repealed by the State Legislature, but it can be amended, added, varied or repealed only by the Parliament, having regard to the proviso to clause (2) of Article 254 of the Constitution. 32. The proviso to clause (2) of Article 254 of the Constitution, relied on by the petitioners reads as follows: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State . Clause (1) of Article 254 deals with the effect of repugnancy between a State law and a law made by the Parliament, or an existing law with respect to/one of the matters enumerated in the Concurrent List. It is a general provision declaring that the State law, to the extent of repugnancy shall be void. It is however subject to clause (2), which contains an exception to the general rule contained in clause (1). Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Canada and within its competence would override provincial legislation covering the same field, the Dominion Parliament had no authority conferred upon it under the Constitution to enact a statute repealing directly any provincial statute. That would appear to have been the position under Section 107(2) of the Government of India Act with reference to the subjects mentioned in the Concurrent List. Now, by the proviso to Article 254(2) the Constitution has enlarged the powers of Parliament, and under that proviso, Parliament can do what the Central Legislature could not under Section 107(2) of the Government of India Act, and enact a law adding to, amending, varying or repealing a law of the State, when it relates to a matter mentioned in the Concurrent List. The position then is that under the Constitution Parliament can acting under the proviso to Article 254(2), repeal a State law . 35. Clauses (1) and (2) of Article 254 of the Constitution correspond to sub-sections (1) and (2) of Section 107 of the Government of India Act, 1935. The State Legislature and the Parliament referred to in clauses (1) and (2) of Article 254 correspond to Provincial Legislature and the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orceable against the Government, at the instance of the promise, notwithstanding that there is no consideration for the promise . The position regarding the doctrine is clarified in State of Himachal Pradesh v Ganesh Wood Products, as follows: . . . . All that we wish to emphasise is that anything and everything done by the promise on the faith of the representation does not necessarily amount to altering his position so as to preclude the promisor from resiling from his representation. If equity demands that the promisor is allowed to resile and the promise is compensated appropriately, that ought to be done. If, however, equity demands, in the light of the things done by the promise on the faith of the representation, that the promisor should be precluded from resiling and that he should be held fast to his representation, that should be done. To repeat, it is a matter of holding the scales even between the parties to do justice between them. This is the equity implicit in the doctrine. ... To wit, the rule of promissory estoppel being an equitable doctrine, has to be moulded to suit the particular situation. It is not a hard and fast rule but an elastic one, the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and therefore the question of petitioners altering their position after any promise by the Government, does not arise. 39. Claims based on the doctrine of 'legitimate expectation' also require reliance on representations and resulting detriment to the claimant, in the same way as claims based on the doctrine of promissory estoppel. The doctrine can be invoked if the decision which is challenged in the Court has some person aggrieved, either by altering rights or obligations of that person, which are enforceable by or against him in private law or by depriving him of some benefit or advantage, which either (i) he had in the past being permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that it should not be withdrawn. The Government and its departments, in administering the affairs of the country are expected to hono ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either passes an appropriate law or disapproves it or allows it to lapse. Such a temporary law should only be promulgated either to maintain status quo or to enable acts which are not irreversible in nature or to meet emergency situations. But, no emergency situation requiring exercise of power under Article 213, arose in June 2000. Further, if the structures put up by the petitioners are demolished, on account of Section 38-C(2) being treated as repealed by the Ordinance, and subsequently if the Ordinance is allowed to lapse or is disapproved and the State Legislature considers it necessary to restore Section 38-C(2), then petitioner, who were assured of benefit under the Section 38-C(2) will be irreversibly and permanently denied the benefit under the said section, thereby rendering Section 38-C(2) nugatory. In such a situation, exercise of power under Article 213, to promulgate a repealing Ordinance, is arbitrary, unreasonable and unjust and therefore unconstitutional. 42. An Ordinance is a legislation. It is an exercise of legislative power by the Executive, under Article 213 of the Constitution. Such law is no less potent because it is made by the Executive and not by the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall cease to operate at the expiration of six weeks from the reassembly of the Legislature or if before the expiration of that period, a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution being agreed to by the Council and (b) may be withdrawn at any time by the Governor. It is seen that Article 213 of the Constitution does not say that the Ordinance shall be void from the commencement on the State Legislature disapproving it. It says that it shall cease to operate. It only means that it should be treated as being effective till it ceases to operate on the happening of the events mentioned in clause (2) of Article 213. . . . . . 44. Therefore, the fact that an Ordinance is of a limited duration or the fact that it may cease to operate on the expiration of six weeks of the reassembly of the Legislature or the fact that it may cease to operate if the Legislature passes a legislation disapproving it, are not grounds to hold that the Ordinance is invalid or to contend that it should not be given effect, till the Legislature has occasion to consider the need for a law in terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned Ordinance does not interfere with any individual decisions. In fact no decision had been rendered when the Ordinance was issued on 22-6-2000. Further, the Ordinance was issued repealing a provision viz., Section 38-C(2), which had not been brought into force. Therefore, the question of any of the petitioners seeking any relief under Section 38-C(2) or the question of this Court granting any relief based on the said section does not arise. Hence Ground (e) is also rejected. 48. Ground (f): Section 38-C(2) was inserted by the State Legislature when a different Political Party was in power. The party now in power has advised the Governor to repeal Section 38-C(2) by promulgating the Ordinance, so as to deny the benefit sought to be extended by the previous Government. The hurry shown in the promulgation of the Ordinance repealing Section 38-C(2), discloses mala fides and ulterior motive on the part of the present Government, apart from non-application of mind to the relevant issues. It also amounts to colourable exercise of power. 49. It is now well-settled that the propriety, expediency and need to promulgate an Ordinance is within the satisfaction of the Governor an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atute is beyond the scrutiny of Courts. Nor can the Courts examine whether the Legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the Courts. An Ordinance passed either under Article 123 or under Article 213 or the Constitution stands on the same footing. When the Constitution says that the Ordinance making power is legislative power and an Ordinance shall have the same force as an Act, an Ordinance should be clothed with all the attributes of an Act of Legislature carrying with it all its incidents, immunities and limitations under the Constitution. It cannot be treated as an Executive action or an administrative decision . . 50.2 In R.S. Joshi v Ajith Mills Limited, the Supreme Court observed thus: ...... If a legislation, apparently enacted under one entry in the List, falls in plain truth and fact, within the content, not of that entry but of one assigned to another Legislature, it can be struck down as colourable even if the motive were most commendable. . . Malice or motive is beside the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , permissible to examine the validity of the Ordinance on the ground whether there were adequate and proper reasons for promulgating the Ordinance. The propriety, expediency and need to promulgate an Ordinance is within the satisfaction of the Governor and will not be subjected to judicial scrutiny. 53. None of the grounds urged by petitioners to challenge the Ordinance has any merit. There is no challenge on the ground of want of legislative competence. No violation of fundamental rights or constitutional provision is made out. We, therefore, uphold the validity of Karnataka Ordinance 4 of 2000. Point (II) - Prayer relating to Section 38-C(2): 54. As we have upheld the validity of the Repealing Ordinance, Section 38-C(2) which has been repealed under the said Ordinance does not exist in the BDA Act. Therefore, the question of either directing the State Government to appoint a date to bring into force the said section, or directing BDA to examine the cases of petitioner? with reference to the provision of Section 38-C(2) does not arise. We may add that the position may not have been much different, even if the Ordinance had not been promulgated or even if it is held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g any objective norms. That makes it difficult for us to substitute our own judgment for that of the Government on the question whether Section 3 of the Amendment Act should be brought into force. .. .. . 56. This position was reiterated by the Supreme Court in Aeltemesh Rein v Union of India and Others, by observing that it is not open to Courts to issue a writ in the nature of mandamus to the Government to bring a statute or a statutory provision into force, when under the said statute, the date on which it should be brought into force, is left to the discretion of the Government. 57. Therefore, the petitioners will not be entitled to any relief based on Section 38-C(2), even if it had not been repealed and had remained in the statute book, unless and until it was brought into force. The petitioners have clearly stated that reliefs sought in these petitions are entirely based on Section 38-C(2). As Section 38-C(2) no longer exists and even if it existed, as it was not enforce, these petitions are liable to be rejected as having no merit. Point (III) - Forcible dispossession: 58. The last point that arises for consideration is whether a direction should be issued to B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of second category of unauthorised occupants. 61. The aforesaid contentions give rise to the following points for considerations: (i) Whether BDA as a statutory authority, has the right to forcibly dispossess a trespasser or unauthorized occupant of its land, by virtue of the provisions of the BDA Act (read with Karnataka Municipal Corporations Act) or Regularisation Act or Planning Act? And (ii) Whether BDA, as the true owner of the property, has the right to forcibly dispossess any trespasser or unauthorized occupant. Re: Point (i): 62. Section 29 of the BDA Act provides that in any area, to which the provisions of the Act applies, the Government may. by notification, declare that from such date and for such period as may be specified therein and subject to such restrictions and modifications, if any, as may be specified in the notification, and powers and functions of the Bangalore City Corporation, under the Karnataka Municipal Corporations Act, shall be exercised and discharged by the Authority; and the powers and functions of the Commissioner of the Corporation shall be exercised and discharged by the Commissioner. Section 321 read with Section 461 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29 of the BDA Act (read with Sections 321 read with Section 461 of the KMC Act) and the power of a Planning Authority extended to BDA under Section 15(4) of the Planning Act are intended to be used to enforce the Building Bye-laws and Zoning Regulations, to ensure orderly development of the City. Such power is not intended to be used by BDA, in its capacity as owner of a land, against a trespasser or unauthorized occupant of its land. Further, such power can be used only to demolish unauthorized structures, but not to dispossess any unauthorized occupant/trespasser. 65. Section 8 of the Karnataka Regularisation of Unauthorized Constructions in Urban Areas Act, 1991, provides that all unauthorized constructions which are not regularized under that Act shall be liable for demolition and the persons who have made such constructions shall be liable to be evicted summarily in accordance with law. It is contended by BDA that Section 4(viii) of the Regularisation Act bars any regularisation of unauthorized constructions in any land belonging to or vested in BDA. Though Section 8 contains a general provision that unauthorized constructions shall be liable to be demolished, it does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and forcible dispossession is prohibited. ..... .Therefore, there is no question in the present case of the Government thinking of appropriating to itself an extra-judicial right of re-entry. Possession can be resumed by Government only in a manner known to or recognised by law. It cannot resume possession otherwise than in accordance with law. Government is accordingly prohibited from taking possession otherwise than in due course of law . 68.3 In Krishna Ram Mahale v Shobha Venkat Rao , while considering the claim of a licence, who has been wrongly dispossessed by the licenser before the expiry of licence period, for restoration of possession, the Supreme Court observed thus: It is well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot he dispossessed by the owner of the property except by recourse to law . The Supreme Court held that the dispossessed licence was entitled to restoration of possession in spite of the fact that by then the term of licence has expired. 68.4 In State of Haryana v Mohinder Pal, the Supreme Court rejected an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession even against the rightful owner. But, stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitle to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he dues not use more force than necessary. Such entry wilt be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force . (emphasis supplied) 69.2 The above principles laid down in Munshi Ram's case, supra, were referred to, reiterated and elaborated by the Supreme Court in Puran Singh v State of Punjab', as follows: . . . The Court explained that the settled possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of private defence . (emphasis supplied) 69.3 The principle was further elaborated by the Supreme Court in Ram Rattan v State of Uttar Pradesh 1, as follows: . . . It is well-settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or prices of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. .... it may not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes compete and accomplished . (emphasis supplied) 69.4 In Nair Service Society Limited v K.C. Alexander, the Supreme Court held that the law does not countenance the doctrine of findings keeping in regard to immovable properties and no one can claim to have acquired a right or claim to be in possession merely by intruding upon a land in the night and putting up a hut or shed and occup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful or authorized; (iv) A person in unauthorized possession, whose entry into the property is illegal or unauthorized, can claim to be unsettled possession, only if he is in open, continuous and actual physical possession over a sufficiently long period, with the knowledge of the true owner; (v) A surreptitious and unauthorized entry into another's land and stealthy trespasser, will not have the effect of dispossessing the true owner of giving possession to the trespasser. Such acts will lead to settled possession only when the true owner having knowledge of it, acquiesces in it; (vi) Where the trespasser is not in settled possession, all acts of the trespasser in regard to the property will be considered as only attempts to secure possession. The true and rightful owner can re-enter and reinstate himself by removing the obstruction or the unauthorized construction put up by the trespasser by using the minimum force. Such action by the true owner will be considered as defending his possession and resisting an intrusion with his property and not forcible dispossession of an unauthorized occupant. (vii) Where however the trespasser is in settled possession and such se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epeatedly pointed out that to claim settled possession, a trespasser's possession must be effective, undisturbed and to the knowledge of the true owner and for a sufficiently long period to show acquiescence by the true owner. 'What is sufficiently long period' depends on the facts of each case. It has been held that in the case of a cultivable land, if a trespasser enters possession and grows any crop with the knowledge of the true owner, then it is possible to say that he completes and accomplishes the act of settled possession. In the case of BDA land, the position is completely different. The land is urban land and not cultivable land. BDA being a statutory authority owning large tracts of land, cannot be expected to take action for demolition or effect resistance immediately after it comes to know about the unauthorized construction. Firstly, the unauthorized occupation and construction should come to the notice of BDA. Secondly, BDA has to verify whether the occupant has obtained any order of stay or injunction. Thirdly, the matter should be brought to the concerned section and appropriate orders should be obtained to obstruct or demolish the construction. Having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time and nothing more, unless he has perfected their title by adverse possession. 75. The above observations are necessarily in regard to land which have vested in BDA. But, there are some cases where some petitioners may have been staying in revenue pockets and clusters and BDA has not passed awards or taken possession for more than 12 years or several decades. There are also cases wherein regard to some fully developed revenue clusters (constructed areas), BDA has shown taking of possession only on record, by drawing a nominal mahazar that it has taken possession, but did not in fact take actual physical possession and permitted the occupants to continue in possession for decades. In Balwant Narayan Bhagde v M.D. Bhagwat, the Supreme Court pointed out that if the acquired land should vest in the acquiring body, then it must take actual possession of the land; and taking 'symbolic possession' or paper possession would not be sufficient. It is not however necessary to examine this aspect further, as this is basically a question of fact. If the contention is that the land has not vested at all in BDA, then the remedy of such petitioners lies in a suit where they can prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entee landlord or absentee owner, there cannot be an absentee trespasser or absentee unauthorized occupant, in regard to vacant land. A person who does not have title can claim a right over a property only on the basis of possession and not otherwise. It will be absurd for a person who admittedly does not have title, to say or contend that he is in possession of a vacant land belonging to another person, unless he has actual physical possession. Supreme Court has repeatedly held that to claim settled possession, a trespasser or unauthorized occupant should be in actual physical possession of the property continuously for a sufficiently long period demonstrating the accomplishment of possession. Supreme Court has held that a stray or casual act of possession cannot give raise to possession. 78.1 Therefore, a person cannot, merely by entering BDA land and putting up a compound wall or a foundation contend that he is in possession. Such act or acts would at best amount to casual or stray acts of possession. If such a person who puts merely a compound wall or foundation does not continue in actual possession, he will not be entitled to contend that he is in settled possession. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay is vacated or modified, BDA will be entitled to protect its possession by demolishing the structure and dispossessing the trespasser/unauthorized occupant. Re: Persons who have put up structures and have remained in settled possession for more than 12 years without any kind of interference from BDA: 80. If anyone, who has trespassed into BDA land or in unauthorized possession of BDA land, has put up a structure and completes and accomplishes the act of possession and continues in such settled possession asserting possession and ownership in himself, openly, peacefully and uninterruptedly to the knowledge of BDA, for more than 12 years, then it is possible for him to contend that he has perfected his title to such property by adverse possession and consequently the title of BDA stood extinguished. It is needless to say that such adverse possession for 12 years should be subsequent to the date of vesting of land in BDA. The person claiming such title by adverse possession cannot call in aid any possession on his part or his predecessor, for any period prior to date of vesting of land in BDA, to establish adverse possession, or possession during the pendency of any litigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for appropriate relief. 84. Where the land has vested in BDA and the petitioners claim to be in settled possession, but such settled possession is less than 12 years, the limited relief to which the petitioners will be entitled is a right to avoid forcible dispossession and nothing more. They do not get any right to continue in possession and they can be evicted by initiating proceedings for eviction/possession either in a Civil Court or by initiating action under the provisions of the Public Premises Act. 85. Where the petitioners claim that they are in settled possession for more than 12 years after the land had vested in BDA, it is open to them to approach the Civil Court for a declaration of title by establishing adverse possession for more than 12 years. 86. On the other hand, BDA is also entitled to initiate action for demolition of structures and forcible eviction of unauthorized occupants/trespassers where they are not in settled possession. It is also entitled to initiate proceedings for eviction of persons in settled possession either in Civil Courts or under Public Premises Act. 87. BDA may do well to formulate some scheme or sale of sites where possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication and after vesting of land in the acquiring bodies or beneficiaries of acquisition. If the State wants to safeguard the interest of the public and if legal practitioners and persons dealing with property are to safeguard the interests of their clients, and if citizen should proceed safely in investing their life savings in a land or house, there should be some procedure by which notifications in regard to acquisition are also recorded as a transition or encumbrance in regard to the property, in the Registers maintained by the jurisdictional Sub-Registrars. Alternatively a centralised Agency should be created to record the progress of all acquisitions and issue certified extracts or certify whether any land is acquired or not. This can be done by acquiring authorities informing the registering Authorities or a centralised Agency about the issue of preliminary and final notification and a provision being made to record such notifications as transactions/encumbrance in respect of respective properties. This will reduce litigation and suffering of members of the public. If the Executive or Legislature bestows its attention to this matter and take appropriate steps, it will go a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
