Karnataka High Court
Sri. K. Shrinath Hebbar vs State Of Karnataka on 21 August, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2023:KHC:29766
WP No. 18535 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2023
®
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 18535 OF 2022 (LB-RES)
BETWEEN:
1. SRI. K. SHRINATH HEBBAR,
S/O LATE K. SRINIVAS HEBBAR,
AGED ABOUT 54 YEARS,
R/AT SUNANDA,
MERCERA HILL ROAD,
BENDUR, MANGALURU-575002.
2. M/S LAND TRADES BUILDERS AND DEVELOPERS
A SOLE PROPRIETORSHIP CONCERN,
HAVING OFFICE AT
"MILESTONE - 25, 5TH FLOOR,
SHOP NO.514, DOOR NO.15-5-223/140 AND 141,
COLLECTORS GATE JUNCTION,
BALMATTA, MANGALORE 575002.
REPRESENTED HEREIN BY ITS SOLE PROPRIETOR,
SRI.K. SHRINATH HEBBAR,
S/O LATE K. SRINIVAS HEBBAR,
Digitally signed by AGED ABOUT 54 YEARS.
NARAYANAPPA
LAKSHMAMMA ...PETITIONERS
Location: HIGH (BY SRI. ANANDARAMA K., ADVOCATE)
COURT OF
KARNATAKA
AND:
1. STATE OF KARNATAKA,
URBAN DEVELOPMENT DEPARTMENT,
VIKASA SOUDHA, AMBEDKAR VEEDHI,
BANGALORE-560001,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT.
2. MANGALORE URBAN DEVELOPMENT AUTHORITY
URWA STORES,
ASHOKNAGARA POST,
MANGALURU-575006,
REPRESENTED BY ITS COMMISSIONER.
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NC: 2023:KHC:29766
WP No. 18535 of 2022
3. CORPORATION OF THE CITY OF MANAGALURU
LALABAGH,
MANGALURU-575003,
REPRESENTED BY ITS COMMISSIONER.
...RESPONDENTS
(BY SRI. NAVEEN CHANDRASHEKHAR, AGA FOR R1;
SRI HAREESH BHANDARY T., ADVOCATE FOR R2;
SRI AJAY J.N., ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT
DATED 7.6.2022 ANNEXURE-F ISSUED BY R-3, DIRECT THE R-3 TO
TAKE STEPS IN ACCORDANCE WITH SECTION 14B OF KTCP ACT BY
SENDING THE NECESSARY RECOMMENDATION FORTHWITH TO R-2
ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court seeking for the following reliefs;
a. Call for Records;
b. Issue a writ of certiorari or any other writ or order quashing the endorsement dated 7.6.2022 (Annexure- F) issued by respondent No.3 in the interest of justice; c. Issue a writ of Mandamus or any other Writ, order or direction, directing the Respondent No.3 to take steps in accordance with Section 14B of KTCP act by sending the necessary recommendation, forthwith, to respondent No.2 and further direct the respondent No.2 to grant TDR by way of notional land equal to two times the extent of land (Petition Schedule Property) surrendered/relinquished by the petitioners and issue DRC in favour of the petitioners and issue DRC in favor of the petitioners by considering the representation dated 9.3.2022 (Annexure-D) and -3- NC: 2023:KHC:29766 WP No. 18535 of 2022 representation dated.12.7.2022 (Annexure-E) submitted by the petitioners to respondent No.3 and respondent No.2 respectively, in the interest of justice and equity;
d. Direct the respondents, jointly and severally, to pay interest @ 16% per annum on the rupee value of the TDR (i.e., the rupee value of the notional land granted in the form of TDR as on 12.2.2020) from 12.2.2020 i.e., the date of relinquishment deed till date of issue of DRC in the interest of justice;
e. Direct the Respondents, jointly and severally to pay compensation in a sum of rs.1,00,000/- (rupee one lakh only) to the petitioners, in the interest of justice; f. Grant costs of the proceedings;
g. Grant such other relief(s) as this Hon'ble Court deems fit to grant in the facts and circumstances of the case.
2. The petitioners claim to be the owners of land covered under R.S.No.95-28, 95-29, 95-30 and 95- 31 bearing T.S.No.666-28, 666-29, 666-30 and 666- 31 totally measuring 49 cents situated at Sy.No.90A, Bolooru Village, Mannagudda Ward, Mangaluru Taluk.
3. The petitioners approached respondent No.3 for sanction of plan to develop the aforesaid property as a single plot. In furtherance of which a relinquishment deed was called upon by respondent No.3 to be executed to relinquish 55.68 Sq. mts. of -4- NC: 2023:KHC:29766 WP No. 18535 of 2022 land in the aforesaid survey Nos. for the purpose of widening the existing public road situate beside the property of the petitioner.
4. In furtherance of the same, a relinquishment deed came to be executed on 12.2.2020 and a single site development plan was sanctioned by respondent No.3. The relinquishment made by the petitioner was under an agreement that Transferable of Development Rights (TDR) would be issued for such area which was relinquished by the petitioner.
5. The petitioner submitted a representation on 9.3.2022 to respondent No.3 and another representation dated 11.7.2022 to respondent No.2 to take prerequisite steps to issue TDR. In the meanwhile, on 7.6.2022 respondent No.3 issued endorsement stating that in view of Section 14(B)(20) of the Karnataka Town and Country Planning Act, 1961 (hereinafter "KTCP Act"), there is no provision for grant of TDR in such circumstances. -5-
NC: 2023:KHC:29766 WP No. 18535 of 2022 It is aggrieved by the same, that the petitioner is before this Court seeking for the aforesaid reliefs.
6. Sri. Anandarama., learned counsel appearing for the petitioner would submit that;
6.1. The lis in the above matter has already been delt with by this Court in Mr. N Subban Shiva Rao vs. State of Karnataka and others1 vide judgement dated 11.4.2023 and as such similar orders could be passed in the present matter.
7. Sri.Ajay.J.N., learned counsel appearing for respondent No.3-Corportaion submits that; 7.1. In the aforesaid order in Subban Shiva Rao case, the effect of sub-section (2A) of Section 17 of the KTCP Act was not brought to the notice of this Court. In terms of sub-section (2A) of Section 17 of the KTCP Act, whenever an authority were to sanction a layout plan under sub-section (2) of Section 17 of KTCP 1 WP No.24484/2022 -6- NC: 2023:KHC:29766 WP No. 18535 of 2022 Act, the said authority can seek for relinquishment of certain area free of cost without claiming any compensation. 7.2. This he submits applies equally to a single plot or sub-division of the plot or layout or a private scheme and as such the submission is that, even when the petitioner is seeking for development of a single plot the provision of sub-section (2A) of Section 17 of the KTCP Act would apply and the relinquishment now made by the petitioner cannot be accompanied by a TDR obligation on part of the respondent No.3, since the relinquishment is free of cost without claiming any compensation.
7.3. His further submission is that Section 69 of the KTCP Act would only apply when there is a acquisition to be made by the development authority and since in the present case there is no acquisition which has been made Section 69 -7- NC: 2023:KHC:29766 WP No. 18535 of 2022 would not apply and under sub-section (2A) of Section 17 of the KTCP Act, the Municipal Corporation as also the Urban Development Authority can seek for relinquishment free of cost.
7.4. On these grounds he submits that the above petition has to be dismissed.
8. Sri.Hareesh Bhandary.T., learned counsel appearing for the Planning Authority adopts the submission of Sri.Ajay J.N. learned counsel for respondent No.3 and submits that without a recommendation being received from respondent No.3, respondent No.2 cannot sanction any TDR.
9. Heard Sri.Anandarama., learned counsel appearing for the petitioner, Sri.Naveen Chandrashekhar., learned AGA for respondent No.1, Sri.Hareesh Bhandary.T., learned counsel appearing for respondent No.2 and Sri.Ajay.J.N., learned counsel appearing for respondent No.3. perused papers. -8-
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10. The facts as aforestated and the prayers which have been sought for in my considered opinion are delt with in detail in the order dated 11.4.2022 in the case of Mr. N Subban Shiva Rao vs. State of Karnataka and others in WP No.24484/2022 and as such the said order would apply to the present case also.
11. Certain additional submissions have been made in the present matter by referring to sub-section (2A) of Section 17 of the KTCP Act, which would have to be dealt with.
12. Sub-section (1), sub-section (2) and sub-section (2A) of Section 17 are reproduced hereunder for easy reference;
(1) The State Government shall by rules prescribe the standards to be followed and minimum extent of Land to be considered for approval of Layout for sub dividing a plot and prescribe the minimum extent of area to be earmarked for park, open spaces and civic amenity sites and laying out roads. Every person who intends to develop a single plot or sub divide his plot by making a layout on or after the date of the publication of the declaration of Local Planning Area -9- NC: 2023:KHC:29766 WP No. 18535 of 2022 under section 4-A, shall submit detailed plan of the layout of his plot showing layout of roads, sub-divided plots and earmarking area for park and open spaces and civic amenities to such extent and in such manner, as prescribed.
(2) The Planning Authority may, within the prescribed period, sanction such plan either without modification or subject to such modifications and conditions as it considers expedient or may refuse to give sanction, if the planning authority is of the opinion that such plan is not in any way consistent with the proposals of the Master Plan.
Provided that where the Master Plans are not finally approved, in such cases the Planning Authority may sanction the layout plan as per the guidelines issued by the Government from time to time.
(2A) If the Authority decides to sanction the layout plans under sub-section (2), it shall sanction provisional layout plan in accordance with such rules as may be prescribed for demarcation and development purposes showing the sites, street alignment, park and play ground and civic amenity area and any other infrastructure facility including the arrangement to be made for leveling, paving, metalling, flagging, channeling, sewering, draining, street lighting and water supply to the satisfaction of the Planning Authority and local authority. One copy of such plan shall be marked to the jurisdictional local authority. The owner shall relinquish the roads, parks and play ground to the local authority and Civic Amenity areas to the Planning Authority through registered relinquishment deed free of cost without claiming any compensation.
13. In terms of sub-section (1) of Section 17 of KTCP Act, it is provided for any person wanting to develop a single plot or sub-divide a plot or making a layout to make an application with a detailed plan,
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NC: 2023:KHC:29766 WP No. 18535 of 2022 earmarking the layout of roads, sub-divided plots, parks and open spaces and civic amenities to such extent and in such manner as may be prescribed.
14. In terms of sub-section (2) of Section 17 the planning authority within a prescribed period may sanction such plan either with or without modification and by imposing such conditions as it considers expedient so long as it is not inconsistent with the proposals of the Master Plan.
15. The proviso to sub-section (2) of Section 17 provides that, if a master plan is not finally approved the planning authority may sanction a layout as per the guidelines issued by the Government from time to time.
16. In term of the sub-section (2A) of Section 17 when a authority decides to sanction the layout plan under sub-section (2), it shall sanction a provisional layout plan in accordance with such rules as may be prescribed showing the sites, street alignment, parks
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NC: 2023:KHC:29766 WP No. 18535 of 2022 and playgrounds and civic amenities area and any other infrastructure facility including the arrangement to be made for levelling, paving, metaling, flagging, channeling, sewering, draining, street lighting and water supply to the satisfaction of the planning authority and local authority and mandates the owner to relinquish the roads, parks and playgrounds to the local authority and civic amenity areas to the planning authority through Registered Relinquishment Deed free of cost without claiming any compensation.
17. The submission of Sri.Ajay.J.N., by relying upon sub-
section (2A) is that the sanction contemplated under section (2A) by referring to sub-section (2) relates to a single plot also and not only to a layout.
18. Sub-section (2A) having been reproduced herein above, the said sub-section (2A) does not by itself include a single plot as sought to be contended. Sub-section (1), sub-section (2) and sub-section
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NC: 2023:KHC:29766 WP No. 18535 of 2022 (2A) as also further sub-sections have been substituted by way of amendment dated 10.9.2015.
19. By way of insertion on 22.5.2020 the word 'single plot' or 'sub-division' was inserted in the heading of Section 17 as also under sub-section (1) of Section
17. No such insertion is found in sub-section (2A) of Section 17. Sub-section (2A) deals only with layout plan under sub-section (2) which does not make any reference to sub-section (1) of Section 17 and sub- section (2) of Section 17 which deals with sanction of such plan.
20. A perusal of sub-section (2A) would categorically indicate that the demarcation for development purposes is required to show sites, street alignment, parks and play-ground and civic amenities areas and other infrastructure facilities. It is with reference to such demarcation that a relinquishment is referred to in the later part of sub-section (2A). The later portion of sub-section (2A) of Section 17 has no
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NC: 2023:KHC:29766 WP No. 18535 of 2022 existence or meaning, if not for the earlier portion which does not refer to a single plot but to a Layout.
21. Thus, it is only when a layout plan sanction was sought for under sub-section (2A) that the areas demarcated in the said layout plan sanctioned for the aforesaid purposes namely, sites, street alignment, parks and playground and civic amenities that the relinquishment of roads, parks and play ground and civic amenities areas is to be made to the planning authority. If there is no such demarcation, then the question of relinquishment would also not arise.
22. Thus, sub-section (2A) can only refer to a layout where all the aforesaid are demarcated and not to a single plot development where such area is not demarcated. Even as regards the area demarcated for a layout those areas are required to be within the area sought to be developed by the owner of the property or his agent in that within the land where the sanction of development is sought for, the sites,
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NC: 2023:KHC:29766 WP No. 18535 of 2022 street alignment, parks and playground and civic amenities have to exist and not outside of the said land.
23. In the present case, what is sought for relinquishment is land of the petitioner abutting the existing public road which is sought to be widened by respondents No.2 and 3. This existing public road is sought to be widened on the basis of the reservation made in the Development Plan prepared by respondent No.2. If that be so, then the said reservation can only come under Section 12 of the KTCP Act which deals with contents of the Master Plan and in terms of Clause B of sub-section (1) of Section 12 the complete street pattern indicating major and minor roads, National Highways, State Highways and Traffic Circulation pattern for meeting immediate and future requirement with proposals for improvements is to be provided for in such master plan or development plan.
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24. Once such provision is made in the Development Plan or Master Plan for future development i.e., for formation of a new road or expansion by widening of an existing road the only manner in which the planning authority or the Municipal authority vested with development of the said roads is concerned would be under Section 69 of the KTCP Act. Sub- section (1) of Section 69 provides for the planning authority to acquire any land designated in the Master Plan for public purposes by agreement or Under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
25. The designated land for public purposes under Clause B of sub-section (1) of Section 12 can only be acquired under Section 69 of the KTCP Act 1961. Neither the planning authority nor the Municipal Authority can by relying on sub-section (2A) of Section 17 impose an obligation to relinquish a land of a private party for the purpose of widening of a
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NC: 2023:KHC:29766 WP No. 18535 of 2022 road demarcated in the Master Plan formulated under Section 12 and 13 of the KTCP Act. The manner in which submissions are made on instructions clearly and categorically indicates that the Respondent No.3 which is vested with statutory obligations, is not even aware of the effect and purport of the law that it is required to apply to discharge its obligations.
26. Thus, the contention raised by Sri.Ajay.J.N., learned counsel for the Corporation, is apart from being incorrect is also an attempt made by the Corporation to usurp the land of a private individual by abusing the process of law, which is not permissible. This court, having dealt with all the issues in Subban Shiva Rao case, another attempt has been made by the corporation to rely on an inapplicable provision to try and usurp the land of the Petitioner.
27. A statutory authority like Respondent No.3 is expected to know the law applicable and apply the same in the manner it is required to be applied. Such
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NC: 2023:KHC:29766 WP No. 18535 of 2022 a statutory authority is not expected to abuse the process of law to deprive a citizen of his/her/its property. At the least that the authority is required to do is to obtain legal advice from its own internal law department or an opinion from a lawyer well versed in the matter and then take a decision, the authority cannot on its own try and make applicable a provision of law which exfacie is not applicable, resulting in unnecessary litigation, loss of money, time and energy for citizens like the petitioner as also waste of public money on such frivolous litigation.
28. Normally, this court would not have used such strong words if not for the completely malafide stand resorted to by Respondent No.3, which has constrained this court.
29. In that view of the matter, I pass the following;
ORDER
i. The writ petition is allowed.
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WP No. 18535 of 2022
ii. A certiorari is issued, the endorsement dated
7.6.2022 at Annexure-F issued by respondent No.3 is hereby quashed.
iii. A mandamus is issued, directing respondent No.3 to take steps in accordance with Section 14(B) of the KTCP Act by formally recommending to respondent No.2 for issuance of TDR on account of the land which has been relinquished by the petitioner in favor of the respondent No.3 which shall be so done within a period of 60 days from the date of receipt of copy of this order.
iv. Respondent No.2 is further directed to act on the said recommendation and issue the TDR certificate to the petitioner within a period 30 days thereafter.
v. Though this court could have imposed costs on Respondent No.3, it refrains from doing so.
Sd/-
JUDGE SR List No.: 1 Sl No.: 55