Karnataka High Court
The Coffee Board Employees vs State Of Karnataka on 16 November, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.18626 OF 2022(BDA)
BETWEEN:
THE COFFEE BOARD EMPLOYEES
CO OPERATIVE HOUSE BUILDING SOCIETY LIMITED
REGISTERED OFFICE AT NO.1,
COFFEE BOARD PREMISES,
DR AMBEDKAR VEEDHI,
BANGALORE-560001
REPRESENTED BY ITS SECRETARY
N JAYARAMA
...PETITIONER
(BY SRI. JAYAKUMAR.S.PATIL., SENIOR COUNSEL FOR
SRI. AJAY.J.NANDALIKE., ADVOCATE)
AND:
1. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT,
M S BUILDING,
BANGALORE-560001
REPRESENTED BY ITS SECRETARY
2. BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD,
BANGALORE-560020
REPRESENTED BY THE COMMISSIONER
3. BRUHAT BANGALORE MAHANAGARA PALIKE
N R SQUARE,
BANGALORE-560002
REPRESENTED BY THE COMMISSIONER
...RESPONDENTS
(BY SRI.K.R.NITHYANDA., AGA FOR R-1
SRI.D.N. NANJUNDA REDDY., SENIOR COUNSEL FOR
SRI. GOWTHAMDEV.C., ULLAL., ADVOCATE FOR R-2
SRI. V.SREENIDHI., ADVOCATE FOR R-3)
2
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER BEARING NO.BDA/UUD/PLR-07/2005-06/952/2019-20 DTD
20.09.2019 PASSED BY THE R2 REJECTING THE CLAIM OF THE
PETITIONER FOR A TRANSFERABLE DEVELOPMENT RIGHTS
CERTIFICATE IN LIEU OF THE AREA RELINQUISHED FOR THE
NATIONAL HIGHWAY BYPASS ROAD/SCHEDULE PROPERTY
TRANSFERRED TO THE BDA VIDE ANNEXURE-A
THIS W.P. COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
In this petition, petitioner has sought for the following reliefs:-
a. Set aside the order bearing No.BDA/UUD/PLR-
07/2005-06/952/2019-20 dated 20.09.2019 passed by the Respondent No.2 rejecting the claim of the Petitioner for a transferable development rights certificate in lieu of the area relinquished for the National Highway Bypass Road/Schedule Property transferred to the BDA vide Annexure-A;
b. Direct the Respondent to issue a TDR certificate in lieu of the National Highway Bypass Road/Schedule Property transferred to the BDA or in the alternative grant alternative land or monetary compensation for the Schedule Property.
c. Pass any such order/relief that this Hon'ble Court deems fit in the interests of justice and equity. 3
2. Heard Sri. Jayakumar S. Patil, learned Senior counsel for the petitioner, learned AGA for respondent No.1, Sri. D.N. Nanjunda Reddy, learned Senior counsel for respondent No.2-BDA and learned counsel for respondent No.3-BBMP and perused the material on record.
3. The brief facts rising to the present petition are as under: -
A perusal of the material on record discloses that during 1988-99, the petitioner - Society proposed to form a layout for its employees in Kempapura village, Yelahanka Hobli, Bangalore North Taluk, out of an extent of 54 acres 9 guntas situated across several survey numbers. At that time, there was a proposal to form a National Highway Bypass Road between Bellary NH-7 in Km.554 and Nelamangala NH-4. However, the said proposal was not given effect to as can be seen from the communication dated 03.08.1991 addressed by the Highway Authorities to the BDA and no portion of the said extent was utilised for the purpose of formation of Bypass road. 4
3.1 Subsequently, the petitioner - Society relinquished certain area of the aforesaid layout for the purpose of roads, open spaces, civic amenities sites and parks by executing a Relinquishment Deed dated 01.04.1995 in favour of the BDA. The petitioner also entered into a Registered Agreement dated 10.11.1995 with the BDA in this regard. The proposed National Highway Bypass road measuring 1,110 ft into 220 ft was also the subject matter of the aforesaid Relinquishment Deed, out of which, 90% of land equivalent to 2,19,780 sq.ft. is the subject matter of the present petition and described as the petition schedule property. As stated supra, apart from other portions of the layout, the petition schedule property was sought to be relinquished from the petitioner-Society for the purpose of National Highway Bypass road and not for the purpose of roads, open spaces, civic amenities sites and parks situated in the layout. It is contended that though the petition schedule property was proposed to be utilised for the purpose of National Highway Bypass, the said Bypass was never formed in the schedule property and instead, the BDA 5 addressed a communication dated 26.07.1996 to the petitioner-Society intimating it that there was a modification in the proposed Bypass and the petition schedule property was to be utilised for the purpose of peripheral ring road.
3.2 After completion of the layout, which came within the jurisdiction of CMC Byatarayanapura, the BDA addressed a communication dated 09.01.2001 to the CMC regarding handing over the subject layout to the CMC, which was followed by a mahazar, under which the layout was handed over by the BDA, according to which the petition schedule property, which was earmarked for National Highway Bypass road was left vacant for the purpose of acquisition by the authorities. As stated earlier, the proposal to use the petition schedule property for the purpose of National Highway Bypass road or peripheral ring road had been dropped by that time by the respondents-authorities.
3.3 In the meanwhile, on 20.01.2000, the Society requested the BDA for permission to utilize the petition schedule property for formation of additional sites in the layout since the proposal to use the same for National 6 Highway Bypass road or peripheral ring road was no longer subsisting. A request in this regard having been made to the State Government also on 04.02.2000, the Principal Secretary, Urban Development Department - 1st respondent sought clarification from the BDA, which addressed a letter dated 06.03.2007 stating that the petition schedule property was not going to be utilised for the purpose of peripheral ring road and instead use it for civil amenities, parks, roads and open spaces. After becoming aware of the said letter, the petitioner-Society addressed a communication dated 14.08.2007 requesting restoration of the petition schedule property back to the Society since the same was not required for the purpose of either National Highway Bypass road or peripheral ring road by the BDA.
However, the said request was rejected by the BDA vide resolution bearing No.576/2008 dated 06.11.2008 and instead, the BDA issued a letter dated 11.03.2009 to the petitioner intimating it that the petition schedule property had been handed over to the BBMP for the purpose of development of the same as a park as stated in the letter dated 03.03.2009 written by the BDA to the BBMP. 7
3.4 Aggrieved by the same, petitioner approached this Court in W.P.No.7743/2009 c/w W.P.Nos.9210- 14/2009 and W.P.Nos.3848-3853/2009, which were disposed of by this Court vide final order dated 14.09.2012 directing the BDA to re-transfer the petition schedule property back to the petitioner. In its order, this Court held that so long as the petition schedule property was not utilised for the purpose of National Highway Bypass or peripheral ring road, petitioner was not obliged/obligated to relinquish the same and consequently, since the proposal to form the Bypass or peripheral ring road had been dropped, the respondents were duty bound to restore/retransfer the petition schedule property back to the petitioner.
3.5 While, the BBMP preferred writ appeals against the aforesaid order, the petitioner-Society also challenged the same, aggrieved by certain observations made in the order and Writ Appeal Nos.7012/2012 & 8373-8383/2012 c/w W.A.Nos.449/2013 & 4041-4051/2013 were preferred before the Hon'ble Division Bench of this Court. During the pendency of the appeals, Section 14-B was introduced in 8 the Karnataka Town and Country Planning Act, 1961 (for short 'the KTCP Act') w.e.f. 04.03.2017, by virtue of which, the petitioner-Society contended that they became entitled to obtain Transferable Development Rights (TDR) in lieu of their right over the petition schedule property pursuant to the order passed by the learned Single Judge in the writ petitions referred to supra.
3.6 Accordingly, petitioner-Society submitted a representation dated 10.09.2018 to the BDA requesting issuance of TDR certificate in its favour in lieu of restoration of the petition schedule property. The said representation was brought to the notice of this Court in the said writ appeals, which were accordingly disposed of by this Court vide final order dated 13.02.2019 setting aside the order of the learned Single Judge and directing the BDA to consider the petitioner's representation dated 10.09.2018 and to pass appropriate orders within a period of six weeks from the date of receipt of a copy of this order.
3.7 Pursuant to the aforesaid order passed in the writ appeals, petitioner submitted another representation dated 13.03.2019 requesting grant of TDR certificate in 9 their favour, since the petition schedule property had already been developed into a park by the BBMP, however the said requests/representations of the petitioner were rejected by the BDA vide impugned order dated 20.09.2019, aggrieved by which, the petitioner-Society is before this Court by way of the present petition inter alia contending that even the subsequent requests made by the petitioner-Society to the BDA in this regard have not been complied with by the BDA.
4. Learned Senior counsel appearing for the BDA has filed statement of objections and opposed the petition inter alia contending that though the petition schedule property was relinquished by the petitioner-Society for the purpose of National Highway Bypass road in terms of the revised CDP-1995, the petition schedule property was earmarked for residential and park zone instead of the bypass, as a result of which, the request of the petitioner to restore the property back to the petitioner was rejected by the BDA vide resolution dated 06.11.2008 and the petition 10 schedule property was handed over to the BBMP for the purpose of park by invoking Section 38-A of the BDA Act.
4.1 Respondent No.2-BDA, while admitting that the learned Single Judge had directed restoration of the petition schedule property back to the petitioner contended that in view of the order passed in the writ appeals, the BDA considered the representations of the petitioner and passed the impugned order rejecting the same since the petitioner-Society, who had surrendered the petition schedule property for the purpose of National Highway Bypass road/Peripheral ring road, the petitioner was not entitled to seek issuance of TDR certificate in view of the specific bar contained in Section 14-B(20) of the KTCP Act. It was therefore contended that there was no merit in the petition and that the same is liable to be dismissed.
5. I have given my anxious consideration to the rival submissions and perused the material on record.
6. The undisputed material on record establishes that the petition schedule property was proposed to be used by the BDA originally for the National Highway Bypass road 11 and subsequently, the same was changed for the purpose of peripheral ring road; however, both the said purposes did not fructify and no portion of the petition schedule property was eventually used either for the purpose of National Highway Bypass road or peripheral ring road and the same remained vacant till it was handed over by the BDA to the BBMP for the purpose of development of a park.
7. It is also an undisputed fact that the petition schedule property was not earmarked for the purpose of either a common area civic amenities site or park either under the CDP/RCDP 1995 or at the time when the petitioner executed a Relinquishment Deed dated 01.04.1995 and Agreement dated 10.11.1995 in favour of the BDA in relation to the layout. Similarly, the order passed by the learned Single Judge directing restoration of the petition schedule property back to the petitioner on the ground that the same was not utilised/used for the purpose of a Bypass or peripheral ring road and the directions issued by the Division Bench in the writ appeals to the BDA to consider the representation of the petitioner for issuance 12 of TDR certificate under Section 14-B of the KTCP Act is also not in dispute. So also, the fact that the petitioner executed a Relinquishment Deed in relation to the petition schedule property for the specific purpose of National Highway Bypass road, which was subsequently changed to peripheral ring road, which was eventually never utilised for either purpose is also the undisputed position of fact between the parties.
8. In the backdrop of the aforesaid undisputed facts and circumstances, a perusal of the impugned order passed by the BDA rejecting the claim of the petitioner for issuance of TDR will indicate that the sole ground on which the claim of the petitioner has been rejected is that Section 14-B(20) disentitles the petitioner from claiming TDR, since the petitioner had surrendered the petition schedule property for the purpose of road within the meaning of the said provision. In this context, it is relevant to extract Section 14-B(20) of the KTCP Act, which reads as under:-
14-B. Benefit of development rights-
(20) No person shall be eligible for the Development Rights for the surrender of the areas 13 earmarked for road, parks or common open spaces and Civic Amenity sites to the Planning Authority or Local Authority while obtaining permission for formation of layouts or development any land under section 15 or 17.
9. A plain reading of the aforesaid provision clearly indicates that a person shall be ineligible for TDRs in the event he surrenders areas earmarked for roads, parks, common open spaces or civic amenities sites while obtaining permission for formation of layouts or development of any land under Sections 15 or 17 of the KTCP Act; it is only when a request is made for change of land use under Section 14 of the KTCP Act for which permission is granted/not-granted under Section 15 or when a layout plan is submitted by a person for sanction/approval that the ineligibility to obtain TDRs becomes applicable as per Section 14-B(20) of the KTCP Act. In other words, if there is no request for change of land use under Section 14, which requires permission under Section 15 OR if there is no request for sanction/approval under Section 17, the bar of ineligibility 14 contained in Section 14-B(20) would not be applicable to such a property.
10. In the instant case, it is an undisputed fact that change of land use as required under Section 14 of the KTCP Act had not been sought for by the petitioner and consequently, Section 15 would have no application in the context of Section 14-B(20) of the KTCP Act. In this context, it is significant to note that Section 17(1) of the KTCP Act, reads as under:-
17. Sanction for [single plot or sub-
division] of plot or lay-out of private street. - (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 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.
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11. As is evident from the aforesaid provision, the layout plan submitted by a person for sanction/approval should consist and comprise of the details of the layout including roads, subdivided plots and earmarking area for park and open spaces and civic amenities. As stated supra, it is this layout plan comprising of proposed roads, parks, open spaces and civic amenities sites formed by a person and submitted for sanction/approval under Section 17(1), which would render a person ineligible from seeking issuance of TDRs under Section 14-B(20) of the KTCP Act. To put it differently, the ineligibility to claim TDRs is restricted and limited only to roads, parks, open spaces and civic amenities sites formed by a person submitting the layout plan for approval and the said ineligibility cannot be extended to roads, which are not a part of the layout plan and not formed by a person submitting the layout plan.
12. In the instant case, the material on record clearly discloses that no road was proposed to be formed in the petition schedule property by the petitioner-Society at the time of submitting the layout plan for sanction/approval and 16 the petition schedule property had been left out for the designated purpose of National Highway Bypass road and subsequently, changed to peripheral ring road by the BDA, both of which were not meant for the purpose of formation of a road by the petitioner in the layout plan submitted by it. In other words, so long as the petition schedule property was not proposed to be utilised by the petitioner for the purpose of formation of a road as per the layout plan submitted by it for sanction/approval, it cannot be said that the provisions of Sections 14-B(20) and 17(1) of the KTCP Act are applicable to the petition schedule property or the petitioner for the purpose of coming to the conclusion that the petitioner was ineligible to seek issuance of TDRs in respect of the petition schedule property. It is also necessary to state that the expression 'road' contained in Section 14-B(20) and Section 17 of the KTCP Act cannot be construed, treated or interpreted to include either National Highway Bypass road or peripheral ring road, which were earmarked for the said purposes in accordance with the CDP/RCDP 1995 by the BDA and the same is restricted and limited to roads proposed to be formed in the 17 layout by the petitioner-Society as per the layout plan submitted by it for sanction/approval.
13. Further, a conjoint reading of Section 14-B(20) and Section 17 of the KTCP Act leads to the sole conclusion that the bar of ineligibility to claim/obtain TDRs is applicable only in relation to the portions of the layout demarcated and formed as roads, parks, civic amenities sites and open spaces in the layout plan submitted by the petitioner and the said bar will not apply to any portion of the petition schedule property, which was not demarcated and formed by the petitioner for the aforesaid purposes, but was a part of the Relinquishment Deed only because the same was identified to be utilised for the proposed National Highway Bypass and subsequently, changed to peripheral ring road by the BDA, both of which are not contemplated in the said provisions. Under these circumstances, I am of the considered opinion that since the petitioner-Society was not obliged/obligated to relinquish the petition schedule property for utilisation / use for the purpose of Bypass or peripheral ring road, Section 14-B(20) of the KTCP Act is 18 wholly inapplicable to the facts of the instant case in relation to the petition schedule property and consequently, the impugned order/communication dated 20.09.2019 issued/passed by the BDA rejecting the request/claim of the petitioner-Society for issuance of TDR is illegal, arbitrary and without jurisdiction or authority of law and the same deserves to be quashed.
14. As stated supra, it is an undisputed fact that though the petitioner was successful before the learned Single Judge in the earlier round of litigation, during the pendency of the writ appeals, it submitted a representation dated 10.09.2018 requesting for issuance of TDRs in lieu of the petition schedule property, which was directed to be restored to the petitioner-Society by the order of the learned Single Judge. A perusal of the order of the Division Bench will indicate that the submission made by the petitioner before this Court that it would suffice that if the representation was considered was not opposed by the BDA, which instead agreed to consider the representation in accordance with law. At that time, it was open for the 19 BDA to oppose the representation as well as the request made by the petitioner by stating that the petitioner was ineligible to seek TDRs; instead, the BDA categorically stated and submitted that it would consider the petitioner's representation in accordance with law and did not chose to contend that Section 14-B(20) rendered the petitioner ineligible to obtain TDRs.
15. Under these circumstances, the aforesaid undisputed conduct of the BDA and the absence of any opposition by the BDA for the Hon'ble Division Bench to dispose of the writ appeals by directing consideration of the petitioner's representation is sufficient to show that the BDA is subsequently estopped from contending that the petitioner was ineligible to claim TDRs and consequently, the defence of the BDA is clearly barred by the principles of estoppel and acquiescence and the impugned order deserves to be quashed on this ground also.
16. Section 32(5) of the BDA Act reads as follows:-
32. Forming of new extensions or layouts or making new private streets .-20
(5) The authority may require the applicant to deposit, before sanctioning the application, the sums necessary for meeting the expenditure for making roads, side-drains, culverts, underground drainage and water supply and lighting and the charges for such other purposes as such applicant may be called upon by the authority, provided the applicant also agrees to transfer the ownership of the roads, drains, water supply mains and open spaces laid out by him to the Authority permanently without claiming any compensation therefor.
17. The aforesaid provision makes it clear that surrender/relinquishment by the petitioner could have been made in favour of the BDA only in relation to roads, drains, water supply, mains and open spaces laid by the petitioner to the BDA permanently without claiming any compensation for the same. Similarly, Sections17(1), 17(2), (2-A) and (2- B) of the KTCP Act also contemplates relinquishment of the road area formed by the petitioner in the layout and the same are not applicable to the road area earmarked by the BDA either for Bypass or peripheral ring road. Viewed from this angle also, a conjoint reading of Section 32(5) of the BDA Act and Sections 17(1), 17(2), (2-A) and (2-B) of the KTCP Act will indicate that the bar of ineligibility to 21 claim/obtain TDRs under Section 14-B(20) of the KTCP Act is applicable only in relation to the portions of the layout demarcated and formed as roads, parks, civic amenities sites and open spaces in the layout plan submitted by the petitioner and the said bar will not apply to any portion of the petition schedule property, which was not demarcated and formed by the petitioner for the aforesaid purposes, but was a part of the relinquishment deed only because the same was identified to be utilised for the proposed National Highway Bypass and subsequently, changed to peripheral ring road by the BDA, both of which are not contemplated in the said provisions.
18. A perusal of the material on record will also indicate that at the time of submission and approval / sanction of the layout plan, the petition schedule property was demarcated for the purpose of Bypass road and subsequently changed to peripheral ring road in addition to the areas relinquished by the petitioner for the purpose of roads formed in the layout approved / sanctioned by the BDA. It is an undisputed fact that the aforesaid purpose for 22 Bypass road or peripheral ring road was never achieved and the petition schedule property was not utilised / used for the aforesaid purposes. Consequent upon non-user of the petition schedule property either for Bypass road or peripheral ring road coupled with the fact that the road portions in the layout plan had already been formed and demarcated by the petitioner and approved / sanctioned by the BDA, the user of the petition schedule property would revert back to being a mere open space simpliciter, which cannot be construed or treated or demarcated as a road for the purpose of Section 14-B(20) of the KTCP Act.
19. Under these circumstances also, in view of the undisputed factual position that no portion of the petition schedule property was utilised / used for the purpose of Bypass road or peripheral ring road as demarcated earlier, the petition schedule property is not a 'road' within the meaning of Section 14-B(20) of the KTCP Act which was clearly inapplicable to the facts of the instant case and consequently, the impugned communication / letter deserves to be quashed on this ground also.
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20. Insofar as the contention of the BDA that it had transferred the petition schedule property to the BBMP for the purpose of shortage / shortfall in park area in the layout which was compensated by the petition schedule property being used as a park is concerned, apart from the fact that the said contention is not contained in the impugned order / communication and cannot be relied upon by the petitioner in the light of the judgment of the Apex Court in Mohindar Singh Gill vs. Chief Election Commissioner - (1978) 1 SCC 405, there is no nexus or connection between ineligibility of the petitioner to claim TDR under Section 14- B of the KTCP Act and the alleged shortfall / shortage in the park area in the layout and consequently, the said allegation cannot be made the basis by the BDA to contend that the petitioner was not entitled to issuance of TDRs and as such, even this contention urged by the respondent-BDA cannot be accepted.
21. The respondent - BDA has contended that since the petitioner has voluntarily surrendered the petition 24 schedule property in favour of the BDA, the petitioner is not entitled to claim / obtain TDRs in lieu of the petition schedule property. The said contention ignores the scheme underlying Section 14-B of the KTCP Act which entitles the petitioner to claim / obtain TDRs in lieu of the petition schedule property surrendered / relinquished by it for the purpose of National Highway Bypass Road at the time of submitting the layout plan for sanction / approval by the BDA. In fact, the right to claim TDR arose in view of the surrender / relinquishment by the petitioner in favour of the BDA and so long as the ineligibility / disqualification contemplated in Section 14-B(20) of the KTCP Act did not apply to the petitioner in the facts and circumstances of the instant case as stated supra, it cannot be said that the petitioner was not entitled to seek issuance of TDR as sought for in its representations. Under these circumstances, even this contention urged on behalf of the respondent - BDA cannot be accepted.
22. The aforesaid facts and circumstances clearly indicate that the impugned communication / order issued / 25 passed by the respondent - BDA rejecting the claim of the petitioner for issuance of TDR certificate in lieu of the petition schedule property is illegal, arbitrary and without jurisdiction or authority of law, apart from being contrary to the provisions of the BDA Act and the KTCP Act and consequently, the same deserves to be set aside and the respondent -BDA be directed to reconsider the claim of the petitioner in accordance with law bearing in mind the observations made in this order.
23. In the result, I pass the following:-
ORDER
(i) The petition is hereby allowed.
(ii) The impugned order dated 20.09.2019 at Annexure-A passed by respondent No.2-BDA is hereby set aside.
(ii) The respondent No.2 - BDA is directed to reconsider the representations dated 10.09.2018 and 20.12.2019 submitted by the petitioner-Society for issuance of TDR certificate in favour of the petitioner in accordance with law and bearing in mind the observations made in this 26 order as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of this order.
Sd/-
JUDGE Bmc/Srl.