ORDER
Sadashiva, J.
1. This Petition is listed for preliminary hearing after notice to the respondents. Sri R. S. Hegde, learned Counsel for Bangalore Development Authority produced certain documents. The Petition was therefore taken up for final disposal with the consent of the learned Counsel appearing on both sides.
2. This Petition was presented for a Writ of Mandamus directing the respondents 2 and 3 to consider the claim of the petitioner for regularisation of unauthorised construction made in Site No. 49 of Survey No. 1 of Jarakabande Kaval village now called BDA No. 643, 4th Block, Nandini Layout and for a further direction to the second respondent not to dispossess him of the property in question until his application for regularisation is disposed of by the Screening Committee.
3. The regularisation of unauthorised constructions in the urban areas is governed by the provisions of the Karnataka Regularisation of Unauthorised Constructions in Urban Areas Act, 1991, (for short ‘the Act’), The said Act provides for regularisation of certain unauthorised constructions in the urban areas, under which a Screening Committee would be constituted to scrutinise the applications for regularisation of unauthorised constructions in the urban areas, to hold an enquiry in accordance with such Rules as may be prescribed and order the regularisation of the unauthorised constructions subject to payment being made according to the provisions contained in the Act,
4. Section 3 of the Act deals with the regularisation, which reads as follows :
“3. Regularisation:- Notwithstanding anything contained in any law, but subject to such rules as may be prescribed, any unauthorised construction made in any urban area, except those specified in Section 4, made prior to the Thirtyfirst day of March, 1990, by any person, on land,-
(i) belonging to the State Government; or (ii) which is a revenue site owned by him; or
(iii) belonging to him which is proposed to be acquired in connection with any development scheme of an Authority, in relation to which a notification under the 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 Boards Act, 1976, is published and which has not yet vested in favour of any Authority for which the acquisition is proposed,
may, on the application of such person made within sixty days of the commencement of this Act, be regularised in accordance with the provisions of this Act”.
It is not disputed that the time to make the application for regularisation of unauthorised constructions was extended from time to time till 31.08.1994. From the scheme of the Act it is seen that the applicant for regularisation of unauthorised constructions is not entitled as a matter of course for the regularisation of such unauthorised construction. He must establish that he is in the occupation of an unauthorised construction made prior to 31.03.1990, on a land belonging to the Government or on a revenue site owned by him or a land belonging to him which is proposed for acquisition but not yet vested in the authority, in whose favour the acquisition proposal was made and he shall also file his application within the period prescribed. In addition to these he must also satisfy the Screening Committee, of that he would not suffer any disqualification prescribed by the Act under its various provisions.
5. Section 5 of the Act prescribes conditions for regularisation, which reads as under;
“5. Conditions for regularisation:- (1) No unauthorised construction shall be regularised if the person who has applied for regularisation or any member of his family owns any building or site within the urban area in which the unauthorised construction sought to be regularised is situated.
(2) No person shall be eligible to seek regularisation of more than one unauthorised construction either in his name or in the name of any member of his family”.
Section 5 prescribes that, the applicant for regularisation of any unauthorised construction is not entitled for regularisation, if either the applicant or any member of his family owns any building or a site within the urban area in which the unauthorised construction sought to be regularised is situated and further prohibits an applicant for regularisation of more than one unauthorised construction. These are the matters to be enquired into by the Screening Committee at the time of consideration of the application for regularisation of unauthorised constructions.
6. Further Section 4 of the Act excludes certain category of unauthorised constructions from being regularised by the Screening Committee. They are as follows;
“4. Unauthorised constructions which shall not be regularised:-The following unauthorised constructions shall not be regularised; namely,-
(i) unauthorised constructions coming in the way of existing or proposed roads and railwaylines, communications and other civic facilities or public utilities; (ii) unauthorised construction or any portion thereof falling within the required set off, if any, from roads, railway fines, communications and other civic facilities or public utilities under the rules, bye-laws or regularisations governing buildings; (iii) unauthorised constructions made in forest land or on tank bed;
(iv) unauthorised constructions made in the area specified as green belt in the comprehensive development plan or outline development plan prepared under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963) or declared as green belt under Sub-section (3A) of Section 95 of the Karnataka Land Revenue Act, 1964; (Karnataka Act 12 of 1964),
(v) unauthorised constructions made by any person on the land belonging to another person over which former has no title;
(vi) unauthorised construction having more than two floors including the ground floor;
(vii) unauthorised constructions made in violation of Urban (Land Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976); (viii) unauthorised constructions made on the land belonging to or vested in any Authority or local authority; and (ix) unauthorised constructions on any land reserved for parks, play grounds, open places or for providing any civic amenities."
It is seen from Section 4 that, if any of the unauthorised constructions coming within the category of unauthorised constructions enumerated in Clauses (i) to (ix) of Section 4, such unauthorised constructions shall not be regularised. It is a statutory prohibition against regularisation by the Screening Committee. If there is an admitted fact or it is shown that the unauthorised construction belongs to any of the category specified in Section 4, I am of the view that nothing would be left to the consideration of the Screening Committee. The consideration by the Screening Committee in respect of such established fact is only an empty formality and no Writ of whatsoever nature need be issued to complete an empty formality and that is not what Article 226 is meant for.
7. In the light of the above, it is to be seen that whether the petitioner is entitled for any relief in this Petition. Whether he is entitled for consideration of his application by the Screening Committee.
8. It is admitted that the unauthorised construction of the petitioner is on the BDA Site No. 637, 4th Block, Nandini Layout, the old No. being 49 in Survey No. 1 of Jarakabande Kaval village. It is not disputed that the unauthorised construction is situated within Nandini Layout, and, in the schedule annexed to the Petition the petitioner has given the BDA No. of the site and the name of the Layout and its original survey No. with its corresponding revenue Site No. It is the contention by Sri Sundresh, the learned Counsel for the petitioner that the BDA has not formed any layout and this land is not acquired; the notified area is 335 acres and the BDA has taken possession of only 127 acres and therefore it is not possible to hold that the unauthorised construction is situated in the land vested in the BDA. The contention of the petitioner shall be considered in the light of the admitted facts made in the Petition. At the cost of the repetition, it is to be remembered that the relief sought for by the petitioner is in respect of BDA site No. 634, 4th block, Nandini Layout. Where the relief was sought for in respect of a specific property, it is not open to the petitioner to argue contrary to his pleadings. He shall not be allowed to blow hot and cold at the same time.
9. It is contended by Sri R.S. Hegde, learned Counsel appearing for the BDA, that the land on which the unauthorised construction is alleged to have been made is vested in the BDA which is a local authority. The petitioner is not entitled for regularisation of unauthorised construction even if there is any, in view of the Clause (viii) of Section 4 of the Act. In support of his contention he states that the site in question is the part and parcel of Survey No. 1 of Jarakabande Kaval village. The said Survey Number was acquired for formation of Nandini Layout as per Preliminary Notification dated 16.11.1977 and Final Notification dated 30.08.1979, the Award was made on 04.06.1985 and approved by the Government on 19.09.1986. The possession of the land was taken on 23.09.1986. In support of his contention Sri R.S. Hegde, has produced the xerox copies of the Award made by the Land Acquisition Officer and the Mahajar dated 23.09.1986 drawn at the time of taking possession of the land in question. He has further stated that after the formation of the layout the said site was allotted to one Sri B. Yayacharan and the Executive Engineer has also sanctioned the plan in his name for construction of the house. It is also admitted that the petitioner is stated to have purchased the said site after the publication of Final Notification.
10. In view of the documents produced by Sri R.S. Hegde in support of his contention, I find no reason to doubt that the land is vested in the BDA, which is a local authority.
11. However Sri Sundaresh, learned Counsel for the petitioner has contended that irrespective of the land being vested or not vested in a local authority, it is only the Screening Committee which is competent to consider and dispose of the application for regularisation of the unauthorised construction and till such disposal no authority can interfere with his possession and enjoyment of the property. He derives support for his contention from the Decision of this Court in FATHIMABI v. STATE OF KARNATAKA , wherein it was held that:
“The Act has specifically created a forum called the Screening Committee to go into the relevant factors. It is for the Screening Committee to consider the various factors which would disentitle an applicant for the regularisation as stated in Sections 3 and 4 of the Act. The jurisdictional fact and the ground to grant the relief are interwoven under the Act. it is difficult to separate the jurisdictional fact from the facts which would entitle the petitioner to seek the relief from the Screening Committee except where it is shown that the application was filed beyond the prescribed time or the applicant lost his right for any other reason. Till these or any of the basic questions are decided under a speaking order the authorities of the respondents shall not interfere with the possession of the applicants in case the applicants are found to be in possession.”
12. There is no dispute in so far as the authority of the Screening Committee is concerned to consider and dispose of the application for regularisation of unauthorised construction and the Decision referred to above also supports the same. But in view of the exception stated in the very Decision that ‘the applicant lost his right for any other reason’ is not necessary to wait till the Screening Committee to consider and dispose of the application for regularisation of unauthorised construction. Section 4 imposes a prohibition on the Screening Committee to regularise unauthorised construction of certain categories. Where the application for regularisation of such unauthorised construction comes within the exception stated in the Decision referred to above, it is not necessary to allow the petitioner to enjoy the fruits of his illegal acts. The Division Bench of this Court in an unreported Judgment in Writ Appeal 2240/1993 M. Ramachandra v. B.D.A. DD 9.11.1993, considering the scope of the Section 4, has also held that:
“Regularisation of unauthorised construction is now covered by the Karnataka Regularisation of Unauthorised Construction in Urban Areas Act, 1991 which came into force on 01.08.1992. Under Section 4 of the said Act, unauthorised construction made in lands vested in any local authority cannot be regularised. It is not in dispute that the entire Survey No. 5/3A came to be acquired in the year 1985 itself. In these circumstances we do not find any substance in this appeal and no ground is made out to interfere with the order of rejection passed by the learned single Judge.”
13. It was an Appeal filed against the order made by the learned Single Judge rejecting the Writ Petition on the ground that it is not possible to issue any direction for regularisation to the BDA particularly when the right, title and interest of the third parties are involved in the view of the allotments made by the BDA.
14. From the documents produced by the BDA it is clear that the I disputed site has been the part and parcel of Survey No. 1 of Jarakabande Kaval Village, the possession of which was taken by the Land Acquisition Officer on 23.09.1986 and on the very day handed over to the Engineering Department, BDA. The BDA has formed a layout and the disputed area was given BDA Site No. 637, 4th Block, Nandini Layout. Thus the land is vested in the BDA and in view of the statutory prohibition to regularise the unauthorised construction on the land vested in a local authority the application deserves rejection at the threshold. Where the application is liable to be rejected at the threshold, there would be nothing for the Screening Committee to consider, except rejecting the application.
15. For the reasons stated above this Petition fails and accordingly it is rejected.
16. In the circumstances of the case no order is passed.