Karnataka High Court
M/S Venkateshwara Developers vs Bruhat Bangalore Mahanagara Palike on 20 January, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
WRIT PETITION NOS. 30279-30282 OF 2013 (LA-RES)
BETWEEN:
1. M/S VENKATESHWARA DEVELOPERS
A REGISTERED PARTNERSHIP FIRM
HAVING ITS REGISTERED OFFICE AT NO.A1,
NITESH CAMP DAVID, NO.32(OLD NO.7A)
NETAJI ROAD, PULAKESHI NAGAR
BANGALORE-5
REPRESENTED BY ITS MANAGING PARTNER
SRI PRAVEEN P SHAH
2. M/S BALAJI INFRASTRUCTURES AND DEVELOPERS
A REGISTERED PARNTERSHIP FIRM
HAVING ITS REGISTERED OFFICE AT NO.A1,
NITESH CAMP DAVID
NO.32(OLD NO.7A), NETAJI ROAD
PULAKESHI NAGAR
BANGALORE-5
REPRESENTED BY ITS PARTNER
SRI VIKRAM OSWAL
3. SRI C THIMMAIAH
S/O LATE THIMMAIAH
AGED ABOUT 75 YEARS
R/A NO.188/26
12TH CROSS, 3RD BLOCK
THYAGARAJANAGAR
BANGALORE-28
4. SRI T C MARIRAJU
S/O SRI C THIMMAIAH
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AGED ABOUT 45 YEARS
R/A NO.188/26
12TH CROSS, 3RD BLOCK
THYAGARAJANAGAR
BANGALORE-28
PETITIONERS 3 AND 4 ARE
REPRESENTED BY THEIR GPA HOLDERS
SRI VIKRAM OSWAL
SRI PRAVEEN P SHAH
SRI CHIRAG J SHAH
... PETITIONERS
(BY SRI. S.M.CHANDRASHEKAR, SENIOR ADVOCATE FOR
SRI. BRIJESH PATIL, ADVOCATE)
AND
1. BRUHAT BANGALORE MAHANAGARA PALIKE
HEAD OFFICE
CORPORATION CIRCLE
BANGALORE
REPRESENTED BY ITS COMMISSIONER
2. DEPUTY COMMISSIONER
LAND ACQUISITION AND TDR, BBMP
HEAD OFFICE
CORPORATION CIRCLE
BANGALORE
3. GOVERNMENT OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
VIKASA SOUDHA, BANGALORE
REPRESENTED BY PRINCIPAL SECRETARY
URBAN DEVELOPMENT
4. ADDITIONAL DIRECTOR & MEMBER SECRETARY
OF URBAN & RURAL PLANNING
BANGALORE-MYSORE INFRASTRUCTURE CORRIDOR
PLANNING AUTHORITY (BMICAPA)
MULTISTORIED BUILDING, BANGALORE
REPRESENTED BY ITS
PRINCIPAL SECRETARY
... RESPONDENTS
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(BY SRI. SUBRMANYA R, ADVOCATE FOR
M/S. ASHOK HARANAHALLI AND ASSOCIATES
FOR R1 AND R2
SRI. H. ANANTHA, HCGP FOR R3
SRI. S.G.PANDIT, ADVOCATE FOR R4)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO:-
(A) CALL FOR THE ENTIRE RECORDS FROM R1
PERTAINING TO ENTIRE PROCEEDINGS IN ANNX-A,G,AM TO AP
WITH REGARD TO THE MATTER OF LAND ACQUISITION
RELATED TO KODIYALAKEREHALLI VILLAGE;
(B) CALL FOR THE ENTIRE RECORDS VIDE ANNX-H
FROM R3 PERTAINING TO ENTIRE PROCEEDINGS AND ALL
OTHER RECORDS PERTAINING TO LAND ACQUISITION
RELATED TO KODIYALAKEREHALLI VILLAGE;
(C) SET ASIDE THE ORDERS DATED 1.4.13 VIDE ANNX-A
PASSED BY R1 AND ALL ITS FURTHER PROCEEDINGS AND
ORDERS IN THE MATTER OF CNACELLING THE DRCS DATED
12.3.13 ISSUED BY IT TO P3 AND 4;
(D) DIRECT THE R3 TO PASS APPROPRIATE ORDERS
DIRECTING THE R1 TO IMPLEMENT THE ORDERS PASSED BY
THE R3 AND REVALIDATE THE DRCS DATED 12.3.13 ISSUED
BY R1TO P3 AND 4 WHICH WAS FURTHER SOLD TO THE
PETITIONER NO.1 AND 2 AND TRANSFER THE SAME TO THE
NAME OF P1 AND 2 HEREIN AND PERMIT THE P1 AND 2 TO
TRANSFER/UTILIZE THE SAID DRCS IN FUTURE BY WAY OF
TRANSFER/UTILIZE OF IN ANY LAWFUL MANNER;
(E) DIRECT THE R1 TO REVALIDATE THE SAME DRCS
DATED 12.3.13 ISSUED BY THE R1 IN FAVOUR OF P3 AND 4, AS
PROVIDED UNDER GO DATED 1.3.13 AS PER NOTIFICATION
AND ISSUE AND ISSUE THE DRCS TO P3 AND 4 WITHOUT
VIOLATING THE PROVISION OF KTCP ACT, WITH REGARD TO
THE ZONAL FACILITIES FOR WHICH THE PETITIONERS ARE
ENTITLED AND TRANSFER THE SAME IN FAVOUR OF P1 AND 2
HEREIN AND PERMIT THE P1 AND 2 TO TRANSFER/UTILIZE
THE SAID DRCS IN FUTURE BY WAY OF TRANSFER/UTILIZE OF
IN ANY LAWFUL MANNER.
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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING - B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned Senior Advocate Shri S.M.Chandrashekar, appearing for the learned counsel for the petitioners, and the learned counsel for the respondents.
2. The facts of the case are as follows:
The third petitioner was said to be the absolute owner of the land bearing Sy. Nos. 384, 385/1, 385/2, 385/3, 386, 386/1, 386/2, 532, 537, 543, 544, 545, in all measuring 37 acres 32 guntas situated at Kodiyalakarehalli Village, Bidadi Hobli, Ramanagara Taluk, Ramanagara District. The fourth petitioner is said to be the owner of land bearing Sy.No.538 measuring 2 acres 17 guntas of the same village. The said extent of lands of both the petitioners measured totally about 40 acres 5 guntas. It transpires that the -5- Bruhat Bangalore Mahanagara Palike (BBMP, for brevity) had issued a public notice that, in order to set up waste disposal units, it invited the general public to offer their lands for the purpose of setting up the same and it was stated that any such land acquired for the said purpose would entitle the land owner to the benefit of Transferable Development Rights (TDR) certificate in terms of Section 14-B of the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as the 'KTCP Act', for brevity). Consequently this expression of interest, as it was called, having been notified, the petitioners No.3 & 4 had offered their lands for the said purpose.
3. It was, however, noticed that the lands of the petitioners fell outside the jurisdiction of the BBMP and therefore the BBMP had made a request to the State Government, having regard to the exigency of the case, that BBMP be permitted to acquire lands which fell -6- outside its jurisdiction, as the consideration for such acquisition also involved the issuance of a Development Right Certificate (DRC). It is in this regard that after a close consideration of the circumstance, Annexure-H came to be issued. In terms of Annexure-H, the State Government had imposed three conditions. Firstly, that since the lands were outside the jurisdiction of BBMP, the Bangalore-Mysore Infrastructure Corridor Planning Authority, hereinafter referred to as 'BMICAPA', shall take possession of the land in question. Secondly, that it shall transfer the lands, free of cost, to BBMP. Thirdly, that it shall issue the DRC, which shall enable the land owners to use the same within a radius of 25 kilometers from the subject properties, which are surrendered.
4. It further transpires that in furtherance of the said government order, the BBMP had issued a DRC certificate in favour of petitioners 3 and 4 and a -7- relinquishment deed had been executed by petitioners 3 and 4 in favour of the BBMP. It is thereafter that the petitioners 3 and 4 had transferred the TDR certificates in favour of petitioners 1 and 2. They inturn had sought for an endorsement of the said transaction from BBMP. It is thereafter that BBMP had woken up to the irregularity. In that, the government order referred to herein above, did not enable the petitioners 3 and 4 to relinquish the land in favour of BBMP nor that authority to issue a TDR certificate. On the other hand, what was contemplated was that, the land would be relinquished in favour of BMICAPA, and BMICAPA inturn would handover the land to BBMP, free of cost, and a certificate was to be issued to the land owners. It is not clear from the government order, whether BBMP should issue the certificate or BMICAPA should issue it. On BBMP realizing the irregularity, had called upon the petitioners herein to surrender the TDR certificate. It is in apprehension that the BBMP would take steps to -8- cancel the certificate and the entire transaction as well, the petitioners are before this court.
5. It is not in dispute that the lands in question are outside the jurisdiction of BBMP. It was for this reason that the State Government had to step in, to permit the surrender of the land by the land owners in favour of BMICAPA, and BMICAPA inturn to handover the lands to BBMP. This procedure not having been followed, it would only be a matter of formality for necessary execution of rectification deeds insofar as the relinquishment is concerned. In so far as the grant of TDR certificates is concerned, BMICAPA as the Planning Authority would also be enabled to issue TDR certificate, in respect of the lands within its jurisdiction on being duly authorized by notification by the State Government under Section 14-B of the KTCP Act. The present circumstance is such that the lands sought to be acquired, is for the benefit of BBMP. But it lies -9- within the jurisdiction of BMICAPA. Hence the TDR certificate which shall at the present point of time is only by virtue of the order at Annexure-H be issued by BMICAPA. This is on the relinquishment of the lands in its favour by the land owners. The certificate would enable the land owners to utilize the same not only within the jurisdiction of BMICAPA, but also within the jurisdiction of BBMP, albeit, within a 25 kilometre radius of the lands so relinquished.
6. To ensure the above, the parties are directed to take necessary steps for the execution of a rectification deed to the relinquishment deed and the land owners shall surrender the TDR certificate to BBMP. The BMICAPA shall issue a fresh TDR certificate in respect of the lands in question. It is also made clear that since there has been a transfer from petitioners 3 and 4 to petitioners 1 and 2 after the TDR certificate was issued by BBMP, it is not necessary for petitioners 3 and 4 to
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join the proposed future transactions, and it would be valid for petitioners 1 and 2 alone to execute the necessary documentation to complete the transaction instead of petitioners 3 & 4. With these observations, the petitions stand allowed in part.
7. Insofar as the contention raised on behalf of Planning Authority to the effect that Section 14-B of the Karnataka Town and Country Planning Act, 1961, contemplates that the State Government ought to issue a notification to enable the Planning Authority to issue the TDR certificate and since the notifications that are in force, only cover the Bangalore Development Authority and the BBMP, it does not enable the Planning Authority to issue any such certificate. Having regard to the fact that this is a peculiar situation and is a stand-alone case, the order passed by the State Government at Annexure-H, shall be deemed to be a notification and shall be restricted only to this
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particular transaction and shall enable BMICAPA to comply with this direction, notwithstanding that there is no formal notification extending the authority of BMICAPA to issue TDR certificates. The present directions being carried out, would only regularize and formalize the transaction which has already taken place, it is necessary that the respondents expedite the completion of the same. In any event, the same shall be completed within a period of four weeks from the date of receipt of a certified copy of this order.
Since the acquisition of the land is for the benefit of BBMP, the BBMP shall have no objection in respect of transfer of such rights, in respect of the properties within its jurisdiction, as per the government order.
Sd/-
JUDGE Rd/-