The Karnataka High Court has provided significant relief to the Bangalore Development Authority (BDA) by dismissing a public interest litigation (PIL) that challenged the constitutional validity of Section 38-D of the BDA Act. This provision, effective from July 10, 2020, pertains to the allotment of BDA land in favour of original owners, purchasers, or unauthorised occupants.
Background of the Case
The PIL was filed by Vijayan Menon and others from Bengaluru, who argued that Section 38-D of the BDA Act, along with amendments to the Karnataka Town and Country Planning (KTCP) Act and Rules, was arbitrary and unconstitutional. The petitioners contended that the provision enables the transfer of public lands to illegal occupants without any basis, placing them in an advantageous position compared to law-abiding citizens. They further argued that the absence of guidelines governing the exercise of statutory power would lead to arbitrariness.
BDA's Response
In its defence, the BDA informed the court that its predecessor, the City Improvement Trust Board (CITB), and the authority itself had acquired large areas of land between 1945 and 2010. Approximately 75,000 sites in various CITB layouts were under unauthorised occupation, and many original landowners whose land had been acquired had already built houses on these sites. Over the years, many of these properties had been bought and sold. The BDA stated that it was difficult to evict all unauthorised occupants or demolish structures where people had been living for more than 12 years. In some cases, these occupants were eligible to be allotted BDA sites because their land had been acquired. Therefore, it would make little sense to remove them from the sites only to allot them new ones later.
Court's Observations
A division bench comprising Chief Justice Vibhu Bakhru and Justice CM Poonacha noted that the petitioners' arguments lacked merit. The bench observed that the claim that Section 38-D lacks guiding principles for exercising statutory powers is incorrect. The provision allows the BDA to allot land in certain situations where acquired or vested land cannot be used because a building already exists on it, and it is not practical to include the land in a development scheme or site formation plan. In such cases, the land may be allotted or sold to the original owner, a person who purchased it from the original owner, or an unauthorised occupant who is in settled possession of the land. However, the provision does not apply to tenants, licensees, or land losers, the bench added.
Details of the Amendment
The amendment specifies the levy for regularising unauthorised occupations. For land with a building (excluding corner sites), owners of sites up to 20ft x 30ft must pay a levy of 10% of the guidance value. For sites larger than 20ft x 30ft and up to 30ft x 40ft, the levy is 25% of the guidance value. For sites larger than 30ft x 40ft and up to 40ft x 60ft, the levy is 40%. For sites larger than 40ft x 60ft and up to 50ft x 80ft, the levy is 50% of the guidance value, along with a penalty.
Conclusion
With this dismissal, the BDA can proceed with the regularisation of unauthorised occupations under Section 38-D, providing a legal framework to address long-standing issues of land encroachment in Bengaluru.
