Karnataka High Court
M/S Vijayashree Builders And ... vs State Of Karnataka on 26 August, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO.10388/2022 (LB - RES)
BETWEEN:
1. M/s.Vijayashree Builders and Developers
A partnership firm registered under
Section 58 of the Indian Partnership
Act, 1932, having its office at "Milestone -
25", 5th Floor, Shop No.514, Door
No.15-5-223/140 & 141, Collector's
Gate Junction, Balmatta, Mangalore-
575002, represented by its Partners
Sri K Mohan Amin and Sri K Shrinath Hebbar.
2. Sri K Mohan Amin, s/o Sri Babu Poojary
aged about 59 years, Partner
M/s.Vijayashree Builders & Developers
having its office at "Milestone -
25", 5th Floor, Shop No.514, Door
No.15-5-223/140 & 141, Collector's
Gate Junction, Balmatta, Mangalore-
575002.
3. Sri K Shrinath Hebbar
s/o late K Srinivas Hebbar
aged about 54 years, Partner
M/s.Vijayashree Builders & Developers
having its office at "Milestone - 25"
5th Floor, Shop No.514, Door
No.15-5-223/140 & 141, Collector's
Gate Junction, Balmatta, Mangalore-
575002. ..Petitioners
(By Sri Anandarama K, Advocate)
2
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.
3. Corporation of the City of Mangaluru
Lalbagh, Mangaluru-575003
Represented by its Commissioner. ..Respondents
(By Sri R Srinivasa Gowda, AGA for R1,
Sri Hareesh Bhandary T, Advocate for R2 and R3)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to call for records pertaining to the
endorsements, all Dtd 04.04.2022 Annexure-M, N and P issued
by the Commissioner, Mangalore Urban Development Authority,
R2 herein and etc.,.
This writ petition coming on for preliminary hearing in 'B'
group this day, the Court made the following:
ORDER
The petitioners relinquished an area of 20,800.09 Sq. meters i.e. 5 acres 14 cents of land in favour of respondent No.3 under Section 14-B of Karnataka Town and Country Planning Act 1961 (for short `Act').
2. In turn, respondent No.3 granted Development Right Certificate in favor of petitioners in the form of Notional Land 3 equalling 1.5 times of the area of land surrendered. However, the development right certificate issued in favour of petitioners was subject to amendment to be effected to Section 14-B of the Act. Thereafter, Section 14-B of the Karnataka Town and Country Planning Act was amended, wherein the development right certificate to be granted in the form of notional land was equal to two times of the land surrendered. In view of the said amendment, the petitioners submitted a representation with the respondent No.3 to issue development right certificate in the form of notional land to an extent of two times of the total area of land surrendered.
3. However, the said application was rejected on the ground that there is no provision under the Act to grant development right certificate in favour of petitioners to the extent of two times of the area of the land surrendered. The application submitted by the petitioners was not considered by the 2nd respondent, which constrained the petitioners to approach this Court in WP No.20329/2021 challenging the rejection of the application for grant of development right certificate. This Court by order dated 24.1.2022 quashed the communication dated 4.9.2021 issued by the 2nd respondent 4 and further directed the 2nd respondent to reconsider the application dated 26.7.2021 in the light of amendment to Section 14-B of the Act and pass appropriate order in accordance with law. Thereafter the 2nd respondent has issued the impugned communication stating that the application submitted by the petitioners for grant of additional Transferable Development Right (for short `TDR') in terms of the amendment to Section 14B of the Act cannot be considered since the proviso to Clause- 10 of Section 14-B of the amended Act specifies that only those land owners shall be eligible for benefit of development right certificate as per the amendment to Section 14B of the Act who have not been issued with development right certificate five years or prior to the commencement of the amendment Act, 2021. Taking exception to the same, this writ petition is filed.
4. The learned counsel appearing for the petitioners submits that proviso to Clause-10 of Section 14B of the amendment Act does not take away the right conferred to the petitioners under amended Section 14-B of the amendment Act. However, the 2nd respondent misinterpreted the said proviso to deprive the legitimate right of the petitioners for grant of additional TDR as specified under Section 14-B of the Act. 5
5. On the other hand, the learned counsel appearing for the respondents No.2 and 3 submits that in view of proviso to Clause-10 of Section 14-B of the Act the Petitioners are not entitled for additional TDR certificate.
6. I have examined the submissions of the learned counsel for the parties.
7. Section 14-B of the Act was substituted by Act No.38 of 2015 with effect from 10.9.2015, which specifies that if any Public Authority requires any area for the public purpose, it shall notify the same in such manner as may be prescribed and the owner of such area hands over possession of such area free from all encumbrances to such Public Authority in lieu of any compensation he is entitled for grant of development right certificate as specified in the table.
8. A reading of the table indicates that the development right certificate in the form of notional land shall be equal to two times of the total area surrendered for the purpose of parks and playgrounds. Hence, prior to amendment, the land owners were entitled for grant of development right certificate in the form of notional land equal to one and half times of the area of land 6 surrendered, which were granted to the petitioners, however, was subject to amendment to Section 14-B of the Act.
9. Section 14-B of the Act was substituted by Act No.38 of 2015 w.e.f. 10.9.2015. Hence, in view of substitution of Section 14B of the Act, the petitioners are entitled for development rights in the form of notional land equal to two times of the total area of land surrendered. The proviso to Clause-10 of Section 14B of the Act was inserted so as to grant development right certificate to owners who were not issued with development right certificate five years or prior to the commencement of amendment Act, 2021. Hence, the said provision has not taken away the rights of the petitioners for grant of development right certificate equal to two times of the total area of land surrendered as specified in the Table read with sub-section 1 of Section 14B of the Act. Hence, the impugned communication issued by the 2nd respondent is contrary to amended Section 14B of the Act and the same is not sustainable. Accordingly, I pass the following:
ORDER
i) Writ petition is allowed.7
ii) The impugned communication dated 4.4.2022 vide Annexures-M, N and P issued by the 2nd respondent are hereby quashed.
iii) The 2nd respondent is hereby directed to grant transferable development right certificate in the form of notional land equivalent to two times of the total area of land surrendered by the petitioners by deducting transferable right in the form of notional land equivalent to one and half times of the area of land surrendered already granted to the petitioners. The said exercise shall be completed within a period of six weeks from the date of receipt of certified copy of this order.
Sd/-
JUDGE bkm