ORDER
1. Heard the petitioner who is an Advocate of this Court as well. Petitioner has sought the following reliefs.-
2. The issuance of writ in the nature of mandamus or any other writ or order of direction as the Court deems fit, whereby the respondent be directed to regularise the schedule property of the petitioner after collecting the necessary charges in accordance with law and to further direct the respondents not to demolish the schedule property of the petitioner and has further sought for grant of such other reliefs as this Court deems fit.
3. The petitioner claims himself to be the absolute owner and to be in peaceful possession and enjoyment of the residential House No. 29 owned by him existing on Sy. No. 53/2-C (converted vide Order No. B. dis. ALN. SR. 483-73-74, dated 24-2-1973 of the Deputy Commissioner, Bangalore District, and Tahsildar, Bangalore South Taluk and Certificate No. ALN.SR. 723 of 1973-74, dated 2-4-1974) situated at Sarakki Village, Uttarahalli Hobli, Bangalore South Taluk, measuring 40′ x 30′. The petitioner asserts that he had purchased this property from one Smt. Vidyavathi, W/o. Sri M. Venugopala Naidu vide sale deed dated 11-10-1995. It has further been stated that Smt. Vidyavathi did purchase the schedule property from one Sri T.G. Gopala Shetty vide sale deed dated 8-8-1988 and registered on that day. The petitioner has stated that the title deed itself has not been handed over to the petitioner by the Sub-Registrar and the same has been referred to the Deputy Commissioner for determination of the extent of undervaluation. The petitioner’s case is that the Government of Karnataka has been issuing orders from time to time directing the respondent and other local authorities to regularise the unauthorised constructions on what is known as revenue sites including those revenue lands which are under acquisition proceedings at various stages. On 7-9-1994 according to the petitioner, petitioner’s vendor Smt. Vidyavathi had made an application for regularisation of construction and thereafter petitioner on 30-12-1995 himself made an application for regularisation. The petitioner’s case is that, he has been ready to make deposit of necessary charges and that the applications for regularisation by the entire public in and around Bangalore are pending before the respondent and the respective local authorities. Petitioner has further stated that the officials of the respondent, with vested interests are bent upon flouting the order and threatening to demolish the suit schedule property. The petitioner has further stated that his neighbour’s property was being demolished on 3-5-1996 and Bangalore Development Authority officials threatened that they would come with bigger force and bulldoze the entire area. The petitioner therefore, having apprehended that respondent may carry out the threat approached this Court. Petitioner’s further case is that the petitioner’s neighbour had filed writ petition in 1993 namely W.P. No. 11055 of 1993 and obtained interim order and thereafter the writ petition was disposed of with a direction to the respondent not to demolish the building until the disposal of the application for regularisation. In the circumstances, the petitioner stated that, he is filing this writ petition. In para 8 he has mentioned the documents on which the petitioner is and has been relying i.e., Registered Sale Deed dated 8-8-1988, Registered Sale deed dated 11-10-1995, Registration Fee Receipt, Katha Extract, Application for regularisation dated 7-9-1994 and Application for regularisation dated 30-12-1995 one made by Smt. Vidyavathi and the other by the petitioner. With these allegations the petitioner has filed this writ petition.
4. On notice being issued the Bangalore Development Authority has filed the counter affidavit. In the statement of objections supported by affidavit, the respondent has brought on record the following facts.-
That the land bearing Sy. No. 53/2-C measuring 3 acres 35 guntas has been notified for the formation of Sarakki Layout by erstwhile City Improvement Trust Board vide its preliminary notification dated 13-5-1969 bearing No. AD/A-1-(S)-(5)/1964. Thereafter, final notification dated 27-5-1970 was also issued. As per the revenue records the notified khatedar of the said land at that time was recorded as Sri Annayappa. The respondent has further held that the land had been notified for acquisition and final notification had also been published in May 1970. The predecessors in interest of the petitioner’s vendor from whom the one Smt. Vidyavathi purchased this property by way of transfer dated 8-8-1988, namely Gopalashetty, and thereafter from Smt. Vidyavathi the petitioner has purchased the said property vide deed dated 11-10-1995 and they respectively purchased the land which land had already been notified for acquisition vide notifications dated 13-5-1969 and 27-5-1970 as such the petitioner did not acquire any title or interest in the land in question by virtue of the aforesaid sale deeds in view of the provisions of Sections 3 and 4 of Karnataka Land (Restriction on Transfer) Act, 1991. The respondents’ case is that the transfers whereunder petitioner or petitioner’s vendor Smt. Vidyavathi purchased and have got no legal value and they did not confer any title on the petitioner or on the petitioner’s vendor. As such, the petitioner has got no right and petitioner cannot maintain the writ petition claiming to be the owner of the suit schedule property. That therefore the writ petition is liable to be dismissed as not maintainable. Respondent has further averred that, the answering respondent is not competent to decide the legality otherwise, alleged by the petitioner seeking regularisation of the alleged construction. It has further averred that, the petitioner is not entitled to any direction sought to be issued to the respondent to regularise the unauthorised construction, as per Section 3 of the Karnataka Regularisation of Unauthorised Constructions in Urban Areas Act, 1991. Under such circumstances according to the respondent, the petitioner is not entitled to the reliefs sought. The respondent has asserted that the land in question had been acquired by the present respondent as back as 1970, and the petitioner has purchased 25 years after acquisition of said land. So, the sale deed is invalid and the petitioner is not entitled to maintain this petition. With these allegations the respondent has prayed that the writ petition be dismissed.
5. I have heard Sri M.R. Narayan, the petitioner who is present in person and has argued the case himself and Smt. Shobha Patil, learned Advocate for respondent 1. It is one of the well-settled principles of law under Article 226 of the Constitution with reference to the issuance or grant of writ of mandamus that, person seeking the issuance of writ of mandamus must first establish his right to seek and his right to enforce the performance of legal duty by a party against whom the mandamus is sought and such right must be shown to subsist on the date of petition. He must thereafter allege and establish that the right as one created by law and duty is the one imposed by law including rules and orders having force of law and that he had approached the authority for the performance of the obligation and the authority has not performed or has failed to discharge his obligations. Whether the petitioner had approached the authority for the performance of the duty in accordance with law? Until these necessary ingredients are established the writ petition cannot be maintained for the claim of writ of mandamus. The petitioner must also very clearly narrate the cause of action including any act or omission on the part of the respondent which has caused necessity for the filing of the writ petition. Keeping these basic factors and principles in view, the matter has to be examined.
6. The petitioner has submitted that he is the owner of the building and the land. He further submitted that, he is in possession and enjoyment of the property under deed dated 11-10-1995 and has got right and title and interest in the property and the authorities are not entitled to demolish that building, unless the petitioner’s application for regularisation is considered and disposed of. Petitioner further contended that, in
any case the petitioner being one settled in possession of property aforesaid the authorities cannot demolish the building or throw him out except in accordance with law. The petitioner further urged that, he seeks the relief that at least the respondent may be directed to act in accordance with law in taking any action against the petitioner, including demolition of the construction. These contentions of the petitioner have hotly been contested by Smt. Shobha Patil, Advocate appearing for the respondent-Bangalore Development Authority.
7. Learned Counsel for the respondent, Smt. Shobha Patil submitted that land had been acquired in 1970 by the final notification dated 27-5-1970 and at that time khatedar was one Sri Annayappa. Learned Counsel submitted that the two sale deeds i.e., the one executed in favour of the petitioner’s predecessor Smt. Vidyavathi executed by Sri Gopalashetty on 8-8-1988 and the sale deed which was executed by Smt. Vidyavathi in favour of the petitioner as alleged is the one dated 11-10-1995, were not valid and did not confer any right or title over the property in favour of transferor indeed as the said property had already vested in the Bangalore Development Authority in view of the acquisition thereof vide notification dated 13-5-1969 and the final notification of acquisition dated 27-5-1970. Learned Counsel further contended that Section 8 of Karnataka Act No. 17 of 1991 had barred the transfer of land that had been acquired or was in the process of acquisition vide Section 3 of the Act. Learned Counsel further contended that there is no proof of any permission being taken by the vendor as per requirement of Section 4 of the Act. The learned Counsel urged in a case like present, where the land had already been acquired, the land could not be transferred in view of Section 3 of the Act. Learned Counsel for the respondent submitted that, in view of Section 3 read with sub-section (4-A) of the Karnataka Regularisation of Unauthorised Construction in Urban Areas Act, 1991. the regularisation could not be granted in favour of the petitioner, as Section 4, sub-section (4-A) mandates that, regularisation shall not be granted in respect of the building unauthorisedly constructed on the land which had been acquired and which has vested in the local authority or the authority. Learned Counsel also submitted that, firstly the application for regualrisation itself had not been made in time as prescribed under the Act and secondly, in view of Act, the regularisation could not be granted, therefore, the petitioner is not entitled to the direction which has been sought by him to direct the respondent, to regularise the unauthorised construction. Learned Counsel for the respondent further submitted that respondents have got the right to demolish and they intend to proceed only in accordance with law and not otherwise. As such, there is no need to issue any direction as authorities will not proceed or act otherwise than in accordance with law.
8. I have applied my mind to the contentions made by the learned Counsel for the parties. A writ direction is not to be granted or issued to perpetuate illegality or breach of law or to encourage breach of law. A person seeking the writ direction must come with clean hands. The petition does not disclose that the authorities have proceeded against the petitioner or have threatened the petitioner to demolish his construction. But, it appears that the petitioner bona fide apprehended that constructions belonging to him are likely to be demolished, he may also come under threat and knowing or realising that constructions purchased by or raised are illegal and unauthorised, has tried to take shelter under Article 226, with a prayer that respondents should be directed not to demolish the petitioner’s construction or building and the respondent be directed to regularise the construction. Unless the authority exercises power and takes steps to regularise in accordance with law, an application being made in accordance with law for regularisation under Karnataka Regularisation of Unauthorised Constructions in Urban Areas Act, 1991 (hereinafter referred as ‘Act No. 29 of 1991’) the unauthorised constructions continue to be and are unauthorised one. This is the position beyond doubt. It is uncontroverted fact as alleged in the affidavit as no rejoinder is filed, that the preliminary notification for acquisition of Sy. No. 53/2 was issued on 13-5-1969 and thereafter, the final notification for acquisition was issued and published in the Gazette on 27-5-1970. The Karnataka Act No. 29 of 1991 as per the Notification No. HUD. MNJ. 92, Bangalore dated 28-7-1992 issued by the Karnataka Government under Section 1, sub-section (2) of the Karnataka Regularisation of Unauthorised Constructions in Urban Areas Act, 1991, that it has been specified and provided Act No. 29 of 1991 was enforced with effect from August, 1992. Section 3, subject to exception to the provisions of Section 4, provided for unauthorised constructions being regularised on the fulfilment of conditions specified in Section 3 itself. The first condition under Section 3 is that the unauthorised construction should have been made in the urban area prior to 31-3-1990: that the construction should not come within the category of the constructions specified under Section 4 of the Act: that the unauthorised construction must have been made on the land of either of the three categories specified therein. That is site or land should have been proposed to be acquired in connection with the developmental schemes in relation to which the notification had been issued under either of the Acts namely Bangalore Development Authority Act, 1976 or under Section 17 of the Karnataka Urban Development Authorities Act, 1987 or under Section 15 of the Karnataka Improvement Board Act, 1976 and the notification should have been published, but the property has not vested by then in any authorities for which acquisition is proposed to be made. The 4th condition is that the application for regularisation should have been made before the date specified in the section which date has been changed from time to time by amending Act from time to time and which by Act No. 9 of 1994 has been specified as 31-12-1995. Then the authority may regularise on satisfaction of the said conditions, the unauthorised construction in accordance with the provisions of the Act. The rule prescribes that authorities are entitled to regularise the unauthorised construction, if those conditions as mentioned in Section 3 are fulfilled apart from other ingredients. When or if the construction did come under either of categories as mentioned under Section 4 ‘I’ to ‘IX’ of the Act and as Section 4(4-A) by itself strictly directs that such construction shall not be regularised, cannot be regularised. Clause (viii) of Section 4
of the Karnataka Act No. 29 of 1991 refers to “unauthorised constructions made on the land belonging to, or vested in the authority or local authority”. Here in the present case, it is undisputed that the land was acquired by the City Improvement Trust Board in 1970 and the land stood vested in it and City Improvement or Bangalore Development Authority in which land stands vested the Authority under the Act. In this view of the matter, it appears that it is not open to this Court to issue writ of mandamus as no mandamus can be issued to act against the validly enacted legal provision and no such writ as claimed can be issued.
9. The petitioner has further claimed issue of writ of mandamus directing the respondent-Bangalore Development Authority or any other authority not to demolish the building belonging to petitioner. The petitioner has with emphasis claimed direction that respondents may not proceed to demolish his construction. So far the petitioner has not been approached and threatened. For the present, it does not appear that the authorities have tried to demolish petitioner’s construction, but the petitioner has approached this Court under Article 226 on apprehension as action has been taken against others. The land belongs to the respondent and it has been vested in 1970. When the land had vested in the authority, definitely no person could make transfer of the land, particularly in view of Section 3 of the Karnataka Act No. 17 of 1991. Section 3 prohibits transfer of lands acquired by the Government under the Land Acquisition Act or under any other law. No doubt this Act appears to be perspective. But, the deed was executed on 11-10-1995 in favour of the petitioner though could not be made, in view of Section 3 and the sale deed dated 11-10-1995 which is in favour of petitioner itself being breach of Section 3 appears as such to be illegal, null and void. Section 4 clearly bars making transaction of sale, mortgage, gift etc., by the owner of the property, except after the obtaining of previous permission by him from the authority concerned. In the present case, the petitioner’s vendor had obtained the sale deed in the year 1988, but so far the petitioner is concerned, he obtained the sale deed in 1995 and no permission has been taken by the petitioner or his vendor under Section 4. If the petitioner’s construction is on the land belonging to the Government or belonging to the Bangalore Development Authority, the authority has got the right to dispossess the petitioner. But, the owner of the land or Bangalore Development Authority is entitled to take possession of the property and to disposses the trespasser by proceeding according to law and not otherwise. As mentioned earlier, the petitioner has got no right to seek regularisation as prima facie it appears and so no direction may be issued by this Court to the Bangalore Development Authority or any authority to pass an order of regularisation. No doubt the statutory authority which has to deal with the public matters should not keep on matters pending for long without passing any orders. Even if the application was not maintainable it could have been rejected the same as being not maintainable. Anyway I do not think or take it to be a case in which writ of mandamus is to be issued and as such claim for relief of writ of mandamus is hereby rejected. The other question whether the
petitioner be issued the writ as claimed against the authorities that the authorities should not demolish, in my opinion such a writ cannot be granted. Article 226 is meant to enforce the law and not to encourage breach of law as well as not to encourage those who break the law. The petitioner’s predecessor or the predecessor in title might have raised the construction prior to 1988, but the construction is on the land belonging to or vested in the Bangalore Development Authority and no direction can be given for regularisation in view of Sections 3 and 4 of Karnataka Act No. 29 of 1991. Petitioner’s possession being that of a trespasser, the petitioner is not entitled to the exercise of any writ jurisdiction by this Court or to grant of any order under Article 226. Hence, the writ petition is dismissed with costs, subject to the observation that the respondent may take possession but only in accordance with law and procedure prescribed by law. The respondent and their Counsel have stated that respondent will act only in accordance with and procedure established by law.
In this view of the matter subject to the above observations, the writ petition is dismissed herewith.