Karnataka High Court
Cnc, Mangalore Kavoor Project Private ... vs State Of Karnataka on 15 November, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2023:KHC:40992
WP No. 15148 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2023
BEFORE R
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 15148 OF 2023 (LB-RES)
BETWEEN:
CNC, MANGALORE KAVOOR PROJECT PRIVATE LIMITED
COMPANY INCORPORATED UNDER COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT,
509, 5TH FLOOR, ADITYA TRADE CENTER,
AMEERPET, HYDERABAD - 500 038
REPRESENTED BY ITS DIRECTOR
MR. RADHAKRISHNA NANJUNDAPPA,
S/O NANJUNDAPPA NARAYAPPA,
AGED ABOUT 55 YEARS
R/AT C.V.RAMAN ROAD,
SADASHIVA NAGARA, BENGALURU - 560 006
...PETITIONER
(BY SRI. ANANDARAMA K.,ADVOCATE)
AND:
Digitally signed
by
NARAYANAPPA 1. STATE OF KARNATAKA
LAKSHMAMMA URBAN DEVELOPMENT DEPARTMENT,
Location: HIGH VIKASA SOUDHA, AMBEDKAR VEEDHI,
COURT OF BANGALORE - 560001
KARNATAKA
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
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NC: 2023:KHC:40992
WP No. 15148 of 2023
...RESPONDENTS
(BY SMT. B.P. RADHA., AGA FOR R1;
SRI. T. HAREESH BHANDARY., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND
ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER
QUASHING THE ENDORSEMENT NO. MANAPA/NAYOU/TDR/CR-
238/2022-23 DATED 15/02/2023 (ANNEXURE D) ISSUED BY R3 IN
THE INTEREST OF JUSTICE AND ETC.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Petitioner is before this Court seeking for the following reliefs:
1.1. Call for Records;
1.2. Issue a writ of certiorari or any other writ or Order quashing the Endorsement No.MANAPA/NAYOV/TDR/CR-238/2022 dated 15.02.2023(Annexure-D) issued by Respondent No.3 in the interest of justice;
1.3. 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 Petitioner and issue DRC in favour of the Petitioner, in the interest of justice and equity;
1.4. Direct the Respondents, jointly and severally, to partly 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 -3- NC: 2023:KHC:40992 WP No. 15148 of 2023 06.04.2022) from 06.04.2022 i.e. the date of relinquishment deed till date of issue of DRC in the interest of justice;
1.5. Direct the Respondents, jointly and severally, to pay compensation in a sum of Rs.1,00,000/-
(Rupees One Lakh Only) to the Petitioner, in the interest of justice;
1.6. Grant costs of the proceedings; 1.7. Grant such other relief(s) as this Hon'ble Court deems fit to grant in the facts and circumstances of the case.
2. Petitioner claims to be the absolute owner, having valid right and title over land in R.S.No.20-1, 20- 1BP4 and 39-2, bearing Khata No.2265, totally measuring 18 Acres and 66 cents, situated at Kavoor Village, Mangaluru Taluk. The petitioner had approached respondent No.2 for sanction of layout plan which came to be sanctioned on 19.01.2022. At the time of said sanction, respondent No.2 called upon the petitioner to relinquish the internal roads, parks, civic amenities as also a portion of the land on the east side and the west side for widening of the existing 18 meters wide road, which was so executed by the petitioner.
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NC: 2023:KHC:40992 WP No. 15148 of 2023
3. Contention of learned counsel for the petitioner is that such relinquishment deed was executed in the belief that TDR would be issued insofar as the land used for widening of existing road in terms of CDP and Zonal Regulations. The petitioner approached the respondent for such TDR. However, wide impugned endorsement dated 15.02.2023 respondent No.3 contended that there is no provision to issue TDR in view of Section 14B (20) of the Karnataka Town Country Planning Act 1961 (KTCP Act for short). Being aggrieved by the same, the petitioner is before this Court seeking the aforesaid reliefs.
4. The contention of Sri.Anandarama.K., learned counsel for the petitioner is that:
4.1. It is only insofar as internal roads are concerned that no TDR can be claimed by the land owner. However, insofar as the land which is used for widening of any existing road which -5- NC: 2023:KHC:40992 WP No. 15148 of 2023 lies outside the layout sanctioned, then the petitioner would be entitled for TDR in view of such land being used for said widening.
4.2. If at all the said road had been within the layout of the petitioner and benefit of widening of the road within the layout were to be enjoyed by the petitioner and residents thereof, then the petitioner would have surrendered the said land free of cost. Since the petitioner would be entitled for the percentage of the land which has been surrendered to be taken into consideration for the total land which could be used for the sites vis-a-vis the total land which is to be used for roads, civic amenities, parks and open spaces. In as much as, it is only 55 percent of the land which can be used for sites.
4.3. The widening of the existing road on the eastern and western side of the property of the petitioner not coming within such calculations -6- NC: 2023:KHC:40992 WP No. 15148 of 2023 then the TDR would have to be granted by respondent No.2.
5. Sri.Hareesh Bhandary.T., learned counsel for respondents No.2 and 3 submits that:
5.1. In terms of sub-section (20) of section 14B of Karnataka Town and Country Planning Act 1961 (KTCP Act 1961) no development rights are required to be issued by the corporation, if there is surrender of roads earmarked for roads, parks, open spaces and civic amenities by the planning authority, while obtaining permission for formation of layout. 5.2. Widening of the road being an integral part of the plan sanction, said sub-section 20 of section 14B (KPTC Act 1961) would be applicable disentitling the petitioner from any developmental rights. On these grounds petition is to be dismissed.
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6. Heard Sri.Anandarama.K., learned counsel for the petitioner and Sri.Haressh Bhandary, learned counsel for respondents 2 and 3 and perused the papers.
7. The question that arises before this Court is "Whether the widening of the road outside a sanctioned layout on the ground that the said widening is earmarked under Comprehensive Development Plan would disentitle the land owner from his Developmental Rights?"
8. It is not in dispute that the road proposed to be widened in the present matter is not a road which comes within the layout, but comes in the periphery of the layout and is a widening of the existing road falling outside the layout. In terms of section 69 of KTCP Act 1961 whenever any demarcation for widening of the road or laying of a new road is made, the same would have to be acquired by the planning authority or the jurisdictional corporation as and when they were to form a road under The Right to -8- NC: 2023:KHC:40992 WP No. 15148 of 2023 Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013.
9. Sub-section (20) of Section 14B (KTCP Act 1961) deals with the eligibility of the person for development rights in respect of surrender of areas earmarked for roads, parks, common open spaces and civic amenities to the planning authority or local authority. Said sub-section is here under reproduced for easy reference.
(20) No person shall be eligible for the Development Rights for the surrender of the areas 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.
10. Sub-section (20) of Section 14 does not deal with the widening of an existing road falling outside the layout, but deals only with the areas earmarked within the layout for roads, parks, common open spaces and civic amenities. Thus, I am of the -9- NC: 2023:KHC:40992 WP No. 15148 of 2023 considered opinion that relying on sub-section (20) of section 14 would not ensure the benefit of the corporation, in as much as, same does not deal with areas demarcated for widening of existing roads in terms of section 13 of KTCP Act 1961, which lays down the contents for a master plan, Comprehensive Development Plan and any such use of land belonging to private persons by the authorities can only be made in terms of Section 69 of KTCP Act 1961 by acquisition thereof.
11. In terms of regulation 29.5.9 (Mangalore Zonal Regulations), it is made clear that any road shown in the master plan with the proposed road or park shall be incorporated in the sub-divisional plan, and a portion of the road falling within the land shall be handed over to the authority in view of issuance of TDR. Regulation 29.5.9 is reproduced hereunder for the easy reference.
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NC: 2023:KHC:40992 WP No. 15148 of 2023 29.5.9) Road as shown in the Master Plan with proposed road width shall be incorporated in the sub division plan and the portion of the road falling within the plot shall be handed over to the Authority in lieu of TDR. All roads in the layout plan shall be handed over to the Authority free of cost.
12. That is to say that if a road is part of master plan and surrender thereof is made, TDR is required to be allotted. It is only where the roads in the layout plan are surrendered the same would be free of cost.
13. In the present case as afore observed roads in question are in periphery and are not part of the layout plan which is sanctioned, as such even regulation 29.5.9 would not come to the rescue of the corporation.
14. As such I answer to the point raised above by holding that, the corporation will not be entitled to contend that a person who forms a layout will not be entitled for TDR in respect of land used for widening of the existing CDP road laying outside or in the periphery
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NC: 2023:KHC:40992 WP No. 15148 of 2023 of the layout. In that view of the matter I pass the following:
ORDER I. Writ petition is allowed.
II. A Certiorari is issued, endorsement No.MaNaPa/NaYoVi/TDR/CR-238/2022- 23 dated 15.02.2023 at Annexure-D issued by respondent No.3 is hereby quashed.
III. A mandamus is issued directing respondent No.3 to issue necessary recommendation/consent for issuance of transferable development rights in respect of land used for widening of existing road demarcated in the CDP. Such consent to be issued within a period of sixty 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 TDR certificate to the petitioner within a period of thirty days thereafter.
Sd/-
JUDGE NJ List No.: 1 Sl No.: 87