Karnataka High Court
M/S Maverick Holdings And Investments ... vs State Of Karnataka on 21 October, 2020
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE B.A.PATIL
WRIT PETITION NO.3904 OF 2020 (LB-RES)
BETWEEN:
M/s. Maverick Holdings and Investments Pvt. Ltd.,
A Company incorporated under the
Provisions of the Companies Act, 1956,
Having its Office at 78/1, New K.R.Road,
Basavanagudi, Bengaluru-560 004.
Represented herein by its Authorized
Representative Mr.Mahesh Deshpande. ... Petitioner
(By Sri Sriranga S., Advocate)
AND:
1. State of Karnataka
Through its Secretary
Housing and Urban Development
Bengaluru-560 001
Represented by Principal Secretary
Department of Urban Development.
2. Bruhat Bengaluru Mahanagara Palike (BBMP)
Head Office, Corporation Circle
N.R. Square, Hudson Circle
Bengaluru-560 002.
Represented by its Commissioner.
2
3. Bangalore Development Authority
T. Chowdaiah Road
Kumara Park West, Guttahalli
Bengaluru-560 020.
Represented by its Commissioner. ...Respondents
(Sri M.Arun Shyam, AAG a/w
Smt. Nagashree, AGA for R1;
Sri Sreenidhi V., Advocate for R2;
Sri K. Krishna, Advocate for R3)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to quash the
communication/order dated 19.10.2019 issued by the
Under Secretary, Department of Urban Development
(Annexure-V); to quash the communication dated
04.11.2019 issued by Bengaluru Development Authority
(Annexure-W); and to consequently, direct the
Respondent No.3 to consider the Revised Development
Plan submitted by the petitioner on 21.02.2018
(Annexure-T) in the light of the Provisions of the
Karnataka Town and Country Planning Act, 1961 in a
time bound manner.
This Writ Petition coming on for Orders this day,
ARAVIND KUMAR. J., made the following:
ORDER
Petitioner has called in question the communication/order dated 19.10.2019 - Annexure 'V' issued by first respondent and communication dated 04.11.2019 - Annexure 'W' issued by third respondent addressed to the petitioner, whereunder the modified 3 plan submitted seeking change of land use to the extent specified therein i.e., in the application has been rejected.
2. This matter was listed on 16.10.2020 and the learned Advocates appearing for the parties had agreed that the matter can be disposed of at this stage itself and as such, by consent of learned Advocates, it is taken up for final disposal.
3. Brief background of the case:-
The Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as 'BBMP' for short) called for expression of interest for developing economically weaker section quarters (hereinafter referred to as 'EWS' for short) at Ejipura, Koramangala, Bengaluru by publishing a notification on 12.10.2004 (Annexure-A) as existing flats constructed between 1987 to 1992 had developed cracks. Hence, BBMP issued a Request for rectification during May 2005 (Annexure 'C') and thereafter BBMP issued Request for Proposal (RFP) for inviting detailed 4 proposal for the said project from interested persons during December 2005 vide Annexure 'B'. It was indicated thereunder that scope of work included developing of EWS Housing Complex and remaining area would be available for commercial activities. The council for BBMP by resolution bearing No.13(306) passed on 30.10.2006 vide Annexure 'D' resolved to award contract to the petitioner as petitioner was the successful bidder.
Writ Petition No.16216/2006 was filed by the rival bidder challenging said resolution and said writ petition came to be dismissed on 09.06.2008 vide Annexure 'E' on the ground specified therein. Thereafter, the contract came to be awarded in favour of the petitioner by Government Order dated 26.09.2008 - Annexure 'F'. A Concession Agreement was entered into between the BBMP and the petitioner on 02.01.2012 - Annexure 'G'. On 09.01.2012 petitioner had filed an application with the Bangalore Development Authority (for short 'BDA') for approval of the development plan and such application was kept pending on the ground that there was a public interest 5 litigation pending in W.P.No.3676/2008, 43472- 43474/2011 and certain interim orders had been passed. Petitioner is said to have commenced the work.
In the meanwhile, a public interest litigation came to be instituted by the original allottees of EWS quarters on 24.8.2012 in W.P.No.45915/2011 who had been in occupation of the said EWS quarters seeking for a direction to the Government to allocate funds so as to restart the construction of demolished EWS quarters and said writ petition came to be disposed of on 24.08.2012 vide Annexure 'J' by virtue of the joint memo filed on 24.08.2012. A duty is cast on BBMP to sanction all statutory plans and it is also required to extend cooperation to the petitioner in getting permissions, sanctions from other statutory authorities and Government in a timely manner.
In the aforesaid background, an application I.A.No.1/2014 was filed by the writ petitioner herein in W.P.No.3676/2008 and 43472-74/2011 seeking direction to the BDA to consider its application for 6 approval of the development plan. The said application came to be disposed of on 27.01.2014 vide Annexure 'K' by clarifying that there is no impediment to consider the proposed development plan of the project proponent (writ petitioner herein). It is thereafter petitioner filed an application with the BBMP for sanction of plan on 25.02.2014 and thereafter, the BDA granted approval of the development plan on 28.02.2014. Work order also came to be issued by the BDA on 18.08.2014 vide Annexure 'L'. On account of the project having not come up as per order dated 28.02.2014 passed in W.P.No.45915/2011, the EWS Residential Welfare Association initiated contempt proceedings before this Court in C.C.C.No.951/2016. An order came to be passed on 31.05.2017 in the contempt proceedings directing the petitioner to pay developmental charges within one week and upon compliance of said direction BBMP was directed to issue the sanctioned plan. However, BBMP by order/endorsement/approval dated 28.6.2017 - Annexure 'M' though sanctioned the plan, 7 for the first time contended that there was a pillagaluve and also cited the existence of a 66KV high tension electricity line running through the property as reason for not approving the plan as per the development plan approved by the BDA. In the contempt proceedings this Court granted liberty to the petitioner to move the Corporation for any infirmities in the sanctioned plan vide order dated 19.07.2017 and progress of the construction would not be hampered in any manner. Petitioner is said to have pointed out the infirmities to the BBMP and also commenced the construction work as per sanctioned plan. BBMP issued partial commencement certificate dated 26.06.2019 for only block Nos.2 and 3 out of 26 blocks and same was communicated to the petitioner on 10.07.2019 by providing a copy to the counsel for respondent No.3 in C.C.C.No.951/2016.
The Deputy Commissioner, Bengaluru Urban District by order dated 21.12.2017 - Annexure 'N' permitted change of path of pillagaluve subject to 8 conditions stipulated thereunder. Shifting of existing 66KV Adugodi-HAL DC line was also permitted by KPTCL by issuance of work order dated 04.01.2019 - Annexure 'P' and same has been completed as per communication of the Agency dated 14.11.2019 - Annexure 'Q'. It is the grievance of the petitioner that due to various bottlenecks and hurdles placed by the respondents, the project as envisaged under the Concessions Agreement has not been completed in a time bound manner.
On 05.02.2018 vide Annexure 'Y' petitioner sought for modification of the sanctioned plan vide Annexure 'S' from BBMP and for modification of the development plan vide Annexure 'T' from BDA as instructed by BBMP by submitting an application on 21.02.2018 vide Annexure 'Z' (filed along with memo dated 10.7.2020).
When this was the factual scenario, petitioner filed I.A.No.1/2019 in W.P.No.45915/2011 which had been disposed of on 24.08.2012 seeking certain directions for implementation of the terms of the joint memo dated 24.08.2012 which had been recorded while passing 9 orders thereunder and direction was also sought for sanctioning revised development plan by BDA and further direction was sought to the BBMP to issue commencement certificate for the entire project in an expeditious manner, so as to enable it to complete the project in terms of the joint memo dated 24.08.2012 filed in W.P.No.45915/2011. The State Government, by impugned communication dated 19.10.2019 - Annexure 'V', addressed to the BDA rejected the application for approval of the revised development plan proposed by the petitioner on the ground that there was no power to consider the changes sought for and it is contrary to page 29 of the Concession Agreement and also the law laid down by this Court in the case Leena Fernandes Vs. Planning Authority in ILR 1992 KAR 3068. Subsequently, by communication dated 4.11.2019 vide Annexure 'W' BDA has reiterated the contents of the communication dated 19.10.2019 (Annexure 'V') and rejected the revised development plan submitted by the 10 petitioner. Hence, this writ petition has been filed for quashing of these two communications.
4. It is the contention of Mr.Sriranga.S, learned counsel appearing for petitioner that respondents- authorities are not implementing the order dated 24.08.2012 passed by this Court in W.P.No.45915/2011 in its letter and spirit and thereby project is getting delayed, as a direct consequence of which, the beneficiaries of the project namely, the occupants of the quarters who have now been dispossessed and rehabilitated temporarily, are without roof over their head and consequently the interest of the petitioner is jeopardized as petitioner has already invested more than 200 crores in the project. He would also contend that communication dated 19.10.2019 from first respondent to the third respondent is based on a total misconception of provision of law and by completely ignoring the provisions of the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as 'KTCP Act' for short). He would contend that the provisions of KTCP Act under 11 which zoning regulations as well as Comprehensive Development Plan (hereinafter referred to as 'CDP' for short) is issued, provides for ample power to the State Government to allow changes to be made in CDP in consultation with BDA to sub-serve the public interest. He would also submit, in page 29 of the Concession Agreement revision of plans for construction of additional facilities contemplated under the Concession Agreement is permissible and it would in no way come in the way of the revised developmental plan being considered by State Government in consultation with planning authority. Hence, he prays for quashing of the impugned communications/orders and seeks for a direction to the third respondent to consider the revised Development Plan submitted by the petitioner on 21.02.2018 vide Annexure 'T' in the light of the provisions of KTCP Act.
5. Sri.M.Arun Shyam, learned Additional Advocate General appearing for the State would submit that once master plan has been prepared, it would not be possible for the appropriate Government to permit the change of 12 land use without the permission of the planning authority as required under Sections 14, 14A and Section 15 of the KTCP Act and if planning authority were to permit change of land use, the Government would re-examine the issue in accordance with law. Hence, he prays for suitable orders being passed keeping the provisions of KTCP Act in mind.
6. Sri.Sreenidhi.V, learned counsel appearing for the BBMP would submit that intention of the BBMP is to ensure the terms of the joint memo which came to be filed in W.P.No.45915/2011 is implemented in its letter and spirit and at no point of time there has been any infraction on the part of the BBMP in either forwarding the proposal submitted by the petitioner to appropriate authorities or granting the approval, sanctioning the plan as required under the terms agreed to under the Concession Agreement and this is evident from the fact that the BBMP has sanctioned the plan way back on 28.6.2017 vide Annexure 'M' and issuance of partial commencement certificate on 10.07.2019 and as such, 13 he would contend that any steps to be taken or acts to be performed by the BBMP would be done in accordance with the Concession Agreement and BBMP would not only act in terms of order passed by this Court on 24.08.2012 in W.P.No.45915/2011 but also as per the direction that may be issued by this Court.
7. Sri.K.Krishna, learned counsel appearing for BDA would submit that under the KTCP Act, the planning authority being the BDA, proposals for change of land use if any received from the appropriate Government, would be examined in accordance with law and same would be considered and appropriate orders would be passed.
8. Hence, keeping the contentions raised by the learned Advocates appearing for parties in mind, it would be apt and appropriate to notice that language employed in Section 14 of KTCP Act would clearly indicate that it is mandatory and it would not be possible to make change of land use without written permission of the planning 14 authority. Any development plan like CDP as prepared under the Act by the planning authority would be for the benefit of the public and it is needless to state that parties are required to strictly observe the development plan and BBMP can never issue any licence to put up construction contrary to the zoning regulations. However, the planning authority is competent to permit changes in the land use with the prior approval of the State Government.
9. A plain reading of sub-section (1) of Section 14 of KTCP Act would indicate that every development in the area covered by the plan should conform to the provisions of the Act and ODP/CDP regulations made thereunder. Under sub-section (2) of Section 14 no change of land use or development shall be made except with the permission of the planning authority. If the development or change of land use is to be made contrary to the ODP/CDP, the planning authority may with the previous approval of the State Government allow such changes in the land use or development as provided 15 under Section 14A of the Act. Section 14A of the KTCP Act reads as under:
"14-A. Change of land use from the (Master Plan).
--(1) At any time after the date on which the (Master Plan) for an area comes into operation, the Planning Authority may, with the previous approval of the State Government, allow such changes in the land use or development from the (Master Plan) as may be necessitated by topographical or cartographical or other errors and omissions, or due to failure to fully indicate the details in the plan or changes arising out of the implementation of the proposals in (Master Plan) or the circumstances prevailing at any particular time, by the enforcement of the plan:
Provided that,--
(a) all changes are in public interest;
(b) the changes proposed do not contravene any of the provisions of this Act or any other law governing planning, development or use of land within the local planning area; and
(c) the proposal for all such changes are published in one or more daily newspapers, having circulation in the area, inviting objections from the public within a period of not less than fifteen days from the date of publication as may be specified by the Planning Authority.16
(2) The provisions of sub-section (2) and (3) of Section 14 shall apply mutatis mutandis to the change in land use or development from the (Master Plan} (3) xxxxx."
A plain reading of aforesaid section would clearly indicate that the planning authority may, with the previous approval of the State Government, allow such changes in the land use or development from the master plan and further subject to condition of publication inviting objections for change of land use. In other words, the planning authority being supreme, it can alter or change the land use with the approval of the Government. Thus, it is for the appropriate Government to consider such requests and on receipt of such requests, it is required to obtain the views of the planning authority for according or appraising change of land use.
Keeping aforesaid analysis of law in mind when facts on hand are examined, it would emerge from the records that land ad measuring 15.64 acres situate at Ejipura, Koramangala, Bengaluru in survey numbers as 17 indicated in various documents, was the subject matter of adjudication by this Court in W.P.No.45915/2011.
10. This Court of which Hon'ble Mr.Justice Aravind Kumar was a party, had noticed that the habitants of the said area who had been assured of a decent roof over their head had been deprived of construction of building and as such had called upon both the parties to arrive at an amicable settlement and as such, an agreement was entered into which got crystallized into a joint memo which came to be filed and taking note of the same, this Court had passed the following order:
"6. It is observed that some of the Petitioners have not subscribed their signatures or their thumb impressions to Exhibit-C. Their counsel submit that each one of them has agreed to the terms of Agreement
- Exhibit-C but for one reason or the other are physically unable to subscribe their signature or their thumb impressions. Similar position obtains so far as some of the imp leaded Respondents are concerned.18
7. We have carefully perused the terms of Exhibit - C and are satisfied that it is to the advantage of the original allottees of the subject lands. This Writ Petition is in public interest and therefore Exhibit-C shall bind all original allottees or 1512 original allottees regardless of whether they have signed Exhibit-C or not. Several of the Petitioners are present in Court and affirm the submissions made by counsel for Petitioners and counsel for newly added Respondents.
8. So far as Stamp Duty on the conveyance which will ultimately be executed is concerned, we are of the view that provisions of Section 2(1)(mm) of the Karnataka Stamp Act, 171957 clarifies that market value shall be the price mentioned in the Lease-cum-Sale Agreement or Allotment letter (in original) as the case may be.
9. Learned AGA submits that so long as the conveyance mentions the price contained in the original Lease-cum-Sale Agreement and/or Allotment letter, Sub-Registrar would have no objection treating that price as the market price. We clarify that BBMP shall only 19 mention the price in the Lease-cum-Sale agreement executed earlier as the sale consideration for the allotment now being made in respect of the EWS Flats now being constructed by Respondent No.3 under the agreement.
10. Registry is directed to place any Writ Petition if filed in future pertaining to project of 'Development of Housing Complex for Economically Weaker Sections at Koramangala, Bangalore' before Court Hall No.1 along with the papers of the instant Writ Petition.
11. All those desirous of taking up the offer ofRs.30,000/- in lieu of alternate re- location/rehabilitation shall do so within two weeks from today. Respondent No.3shall tender aforementioned payment by cheque or DD drawn in the name of original allottee who are residing in 18the site, in terms of the Joint memo. Such person shall vacate the premises within 15 days thereafter.
12. Respondent No.2 has made available five acres of land in Iglur on Hosur 20 Road for rehabilitation of 1512 original allottees minus those who have accepted Rs.30,000/-. Respondent No.2 undertakes to hand over possession of the site within 15 days from today to Respondent No.3 who shall immediately thereupon construct temporary transit sheds and other infrastructure for temporary rehabilitation of the said original allottees, within four weeks thereafter.
13. In view of the above arrangement, we are satisfied that there will be no justification for any person to remain on the present site after six weeks from today. Accordingly, Respondent No.2 shall have the authority to evict/eject all occupants from the present site after 8th October, 2012 and if necessary taking the aid/assistance of police force.
14. Learned AGA undertakes to the Court that there shall be adequate Police presence, protection and Patrolling on the present site 24 hours in order to provide safety and security to persons concerned. This arrangement shall continue till 8th 21 October, 2012. This order should not be understood to indicate that thereafter BBMP shall not been titled to seek Police aid.
Public Interest Litigation stands disposed of in the above terms."
On passing of this order on 24.08.2012, the approval of the building plan and Development Plan by BBMP/BDA arose. One of the grounds which is made out by the appropriate government to reject the revised Development Plan submitted by the petitioner as noticed hereinabove is on the ground that page 29 of the Concession Agreement entered into between BBMP and the petitioner prohibits such alteration. Same reads:
"5.3 Drawings A. xxx xxx xxx B. Additional Facilities
(a) Preparation of Drawings The Concessionaire shall prepare its own Drawings including revised/modified drawings for construction of the Additional Facilities.
The Concessionaire shall be solely responsible for compliance of all such 22 Drawings with Applicable Laws and in procuring Applicable Permits."
Aforesaid contention deserves to be considered for the purposes of outright rejection, inasmuch as, clause 5.3B(a) referred to hereinabove enables the concessionaire to prepare its own drawings including the revised and modified drawings. This seems to have been completely ignored by respondents 1 to 3 while examining the prayer of the petitioner for change in Development Plan. In the matter of Leena Fernandes which has been referred to under the impugned communication, the issue therein related to setback being contrary to the zoning regulations and as such, it was held that neither Section 14 nor section 76-K(1) was attracted to reduce the setback. It was further held that very purpose of zoning regulation will be defeated if every builder is to be permitted to reduce the setback.
"48. In view of the glaring violation of the Zonal Regulations, the manifestly illegal orders of the State Government and having regard to the strategic location of the place of construction, we are of the view that the right 23 of the petitioners 3 to 5 as Rate Payers and their special interest as the residents of the City of Mangalore require to be protected and this is not a case to non-suit them by suspecting their bona fides. Even otherwise, the petitions of the first two petitioners cannot be thrown out on any such ground of ulterior motive, because such a motive on their part is not at all alleged and proved.
Regarding the two propositions advanced by Mr.Karanth there can be no two opinions. In the absence of any power vested in any authority to alter the requirements to be obeyed by a builder under the Zonal Regulations, the fourth respondent could not have been permitted to put up the construction with a reduced set-back of eight and a half feet only. Only because a few others have been permitted such a reduced set-back is no ground that the illegality should be perpetuated. The very purpose of the Zonal Regulations will be defeated if every builder is to be permitted to reduce the set-back. Even on facts, it is clear that the three other builders who have been permitted earlier may stand on a different footing having regard to the location of their respective lands. If the Zonal Regulations are to be thus permitted to be ignored, Rule of Law will have to give place to Rule of Lawlessness. Supreme Court has repeatedly pointed out the need to maintain neat and orderly development of Cities and in the instant case it is all the more necessary having regard to the traffic flow at the place in question."
(Emphasis supplied by us) 24 It is also clear that the Government has no power to grant any exemption and Section 76-K of the KTCP Act and it nowhere empowers the Government to modify the compliance of zonal regulations. As such, the said principles of law laid down in Leena Fernandes case would be inapplicable to the facts on hand whereunder the petitioner is seeking for change of land use and same has to be examined by the appropriate Government and its instrumentalities in the background of Sections 14, 14A and 15. As such, we are of the considered view that the impugned communications/orders cannot be sustained.
11. For the reasons afore-stated, we proceed to pass the following:
ORDER
(i) Writ petition is allowed in part.
(ii) The communication dated 19.10.2019 vide Annexure 'V' issued by the first respondent and communication dated 04.11.2019 vide Annexure 'W' issued by the third respondent to the petitioner are hereby quashed.25
(iii) First respondent is directed to consider the application of the petitioner for change of land use by considering the application/revised plan submitted by the petitioner on 21.2.2018 vide Annexure 'Z' as well as the revised plan at Annexure 'T' keeping in mind the provisions of KTCP Act, referred to hereinabove.
(iv) It is needless to state that first respondent is at liberty to solicit the opinion of the planning authority and planning authority shall on receipt of such request from the appropriate Government, shall communicate its decision by considering the application of the petitioner dated 21.2.2018 Annexures 'Z' and 'T' in the background of Sections 14, 14A, 15 r/w Section 24 of the KTCP Act.
(v) In the event of either of these two authorities were to require any proposal or consent to be forwarded from the BBMP, they shall seek such proposal or consent from BBMP and in such an event, BBMP shall forward the requisite proposal or consent to the State Government and/or to the BDA expeditiously, at any rate within three weeks from the date 26 of such request being made by either of these two authorities.
(vi) The entire exercise of considering the application by respondents 1 and 3 in association with BBMP shall be completed expeditiously and at any rate within an outer limit of three months from the date of receipt of copy of this order, since the main beneficiaries of the project would be the allottees of the EWS quarters who hail from economically backward strata of the society and are waiting for a roof over their head.
(vii) It is made clear that on no ground whatsoever the respondents including the petitioner shall reduce the extent of area of 7.25 acres earmarked for construction of EWS buildings in the land which is subject matter of this proceeding and all parties should ensure construction of 1512 EWS flats with all amenities expeditiously.
All the parties shall ensure that the order passed by this Court on 24.08.2012 in W.P.No.45915/2011 is taken to its logical end without any infraction and 27 expeditiously by keeping in mind the joint memo which has been filed in W.P.No.45915/2011 on 24.08.2012.
Sd/-
JUDGE Sd/-
JUDGE bkp