Fathimabi Vs. State of Karnataka

Fathimabi vs State of Karnataka

Disposition Writ petition allowed Court Karnataka Decided Aug 16, 1993

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Citation: sooperkanoon.com/380023
Court: Karnataka High Court
Judge: Shivashankar Bhat, J.
Decided On: Aug 16, 1993
Case Number: W.P. No. 23082 of 1992
Subject: Property
Disposition: Writ petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

KARNATAKA REGULATION OF UNAUTHORISED CONSTRUCTION IN URBAN AREAS ACT, 1991 (Karnataka Act No. 29 of 1901) - Sections 3 & 4 - Screening Committee : duty & procedure - No Interference with possession of applicants until matter decided under speaking order.;The Act has specifically created a forum called the Sc...

Key legal issue: Property
Outcome / disposition: Writ petition allowed
Acts & sections: Karnataka Regulation of Unauthorised Construction In Urban Areas Act, 1991 - Sections 3 and 4

Parties & Advocates

Appellant / Petitioner

Fathimabi

Advocate S. Channaraya Reddy, Adv.

Respondent

State of Karnataka

Advocate Pradeep Roy, HCGP for R-1 and ;H. Thipperudrappa, Adv. for R-2

Legal References

Acts: Karnataka Regulation of Unauthorised Construction In Urban Areas Act, 1991 - Sections 3 and 4
Reported In: ILR1993KAR2712; 1993(3)KarLJ387

Excerpt

.....3 & 4 - screening committee : duty & procedure - no interference with possession of applicants until matter decided under speaking order.;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 entitle or 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. - section 138 & 139: [arali nagaraj, j] presumption that holder received cheque for discharge of debt held, the presumption under section 139 of the act extends only to the issuing of cheque towards discharge of a legally enforceable debt or liability and it has to be raised only after the complaint establishes that such debt or liability in fact existed as on the date of the cheque in question and that the cheque was given to him by the accused. therefore, since the very fact that the complainant lent to the accused a loan of rs.70,000/- and the accused issued in favour of the complaint and delivered to her cheque for the said loan amount of rs. 70,000/- have not been established by the complainant, no presumption under section 139 of n.1 act could be raised in favour of the complainant that the said cheque was issued by the accused towards discharge of the alleged loan amount. - the screening committee shall scrutinise the..........entirely unauthorised and that the constructions were not put up in such a way so as to attract the provisions of section 3 of the regularisation of the constructions.4. there should be some competent authority to decide this disputed question of fact. under section s of the act a screening committee shall have to be constituted for the purpose of regularisation of unauthorised constructions. the screening committee shall scrutinise the application received under section 3. after holding an enquiry as stated in section 6(4), necessarily the screening committee shall have to decide whether the property in question belong to the state government as per section 3(i) or whether it is a revenue site owned by the applicant as per sub-section (ii) or whether the property is the one falling within sub-section (iii) of section 3.5. the applicant shall have to establish that the property claimed by the applicant falls within any one of the categories stated under three sub-sections of section 3. the applicant also shall have to prove that the unauthorised construction was made in the urban area prior to 31st march, 1990. the applicant shall have to further establish that the construction was the one contemplated by the said section 3. if all these conditions are satisfied and it is shown that the construction is the one which does not fall within the provisions of section 4 then the screening committee shall have to allow the application provided the application was filed within the period prescribed by section 3. section 4 is an exception to the provisions for regularisation under section 3. under section 3 certain specific facts shall have to be established and when those facts are established by an applicant who filed the application within the prescribed period, regularisation can be denied if section 4 gets attracted to the case. on a consideration of these provisions and the material placed before the screening committee it shall have to give a finding under section.....

Full Judgment

ORDER

Shivashankar Bhat, J.

1. According to the petitioners they are the residents of Bangalore and they own the sites in question. They further assert that they have put up buildings on the sites and they have been residing therein. The buildings were constructed prior to 31st March, 1990 is their contention.

2. The petitioners also assert that the B.D.A. had not acquired the property at the time when the buildings were put up and that under Section 3 of the Karnataka Regularisation of Unauthorised Constructions in Urban Areas Act, 1991 ('the Act' for short) they are entitled for regularisation. The petitioners also assert that they have made appropriate application under the Act.

3. The respondents seems to contend that the properties in question belong to the B.D.A. and the constructions were entirely unauthorised and that the constructions were not put up in such a way so as to attract the provisions of Section 3 of the regularisation of the constructions.

4. There should be some competent authority to decide this disputed question of fact. Under Section S of the Act a Screening Committee shall have to be constituted for the purpose of regularisation of unauthorised constructions. The Screening Committee shall scrutinise the application received under Section 3. After holding an enquiry as stated in Section 6(4), necessarily the Screening Committee shall have to decide whether the property in question belong to the State Government as per Section 3(i) or whether it is a revenue site owned by the applicant as per Sub-section (ii) or whether the property is the one falling within Sub-section (iii) of Section 3.

5. The applicant shall have to establish that the property claimed by the applicant falls within any one of the categories stated under three sub-sections of Section 3. The applicant also shall have to prove that the unauthorised construction was made in the urban area prior to 31st March, 1990. The applicant shall have to further establish that the construction was the one contemplated by the said Section 3. If all these conditions are satisfied and it is shown that the construction is the one which does not fall within the provisions of Section 4 then the Screening Committee shall have to allow the application provided the application was filed within the period prescribed by Section 3. Section 4 is an exception to the provisions for regularisation under Section 3. Under Section 3 certain specific facts shall have to be established and when those facts are established by an applicant who filed the application within the prescribed period, regularisation can be denied if Section 4 gets attracted to the case. On a consideration of these provisions and the material placed before the Screening Committee it shall have to give a finding under Section 6. Until such a finding is given and the claim of the applicant is rejected it will not be permissible for the authorities to take any action either for demolition or for removal of the applicant from the property in question.

6. In an appropriate case the Screening Committee may at the threshold examine whether the application was filed for regularisation within the prescribed time and whether for any other reason the application is liable to be rejected. The decision of the Screening Committee is to be based on an examination of certain facts and circumstances. On proof of these facts/circumstances, an applicant gets a right for regularisation. Therefore the decision of the Screening Committee shall have to be by a speaking order, giving proper reasons for rejecting the claim of an applicant. The order of the Screening Committee affects the statutory rights of an applicant. In the circumstances, an order merely rejecting the application of an applicant without disclosing the reasons will be invalid.

7. 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 entitle or 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 jurisdiction fact from the facts which would entitle the petitioner to seek the relief from the Screening Committee except where it is shown that 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.

8. Consequently these Writ Petitions are allowed. The respondents are restrained from interfering with the respective possession of the petitioners if they are in possession till an appropriate decision is taken by the Screening Committee according to law as observed above. The petitioners are also restrained from putting up any further constructions in the property.

Same Court & Year Karnataka · 1993 Same Parties Fathimabi vs State of Karnataka Same Subject Property Same Judge Shivashankar Bhat, J. Acts & Sections Karnataka Regulation of Unauthorised Construction In Urban Ar...

Property