Karnataka High Court
Sri V Ramachandran vs State Of Karnataka on 1 February, 2018
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 1st DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.17845 OF 2015
AND
WRIT PETITION No.24044 OF 2017 (LB-RES)
Between:
Sri. V. Ramachandran,
S/o Sri. Venkatachala Goundar,
Aged about 76 years,
Residing at Muddanapalya Village,
Ajjanahalli Dakale,
Chunchanaguppe Post,
Tavarakere Hobli,
Bangalore District.
Represented by his GPA Holder,
M/s. B.V.S. Properties,
A Partnership Firm,
Having its registered office
At No.2617, GF, 11th Main,
2nd Stage, Rajajinagar,
Bangalore - 560 010.
Represented by its Partners.
1. Sri. Vijay Kumar B.U.,
S/o Sri. M.B. Umapathy,
Aged about 37 years,
No.2617, 11th Main,
2nd Stage, Rajajinagar
Bangalore - 560 010.
Date of Order 01-02-2018 W.P.Nos.17845/2015 & 24044/2017
Sri.V. Ramachandran & others Vs. State of Karnataka & others.
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2. Sri. Raghavendra S.C.,
S/o Sri. G.S. Chandrashekar,
Aged about 30 years,
Residing at No.5/12,
1st A Main, Govindarajnagar,
Bangalore - 560 040.
...Petitioners
[By: Mr.K.B. Manian, Advocate]
And:
1. State of Karnataka,
Represented by its
Principal Secretary,
Department of Housing and
Urban Development,
Vikasa Soudha,
Dr.Ambedkar Veedi,
Bangalore - 560 001.
2. Bangalore Metropolitan Regional
Development Authority (BMRDA)
Represented by Metropolitan
Commissioner - Member Secretary,
No.1, Ali Askar Road,
Bangalore - 560 052.
3. Magadi Planning Authority,
Represented by its
Director and Member Secretary,
NES Layout, Opposite IB
(Inspection Banglow), Magadi Town,
Ramanagara District - 562 120.
...Respondents
(By:Mr.A.K. Vasanth, AGA for R1;
Mr. Yogesh Naik, Advocate for
Mr. S.G. Pandit, Advocate for R2 and R3)
Date of Order 01-02-2018 W.P.Nos.17845/2015 & 24044/2017
Sri.V. Ramachandran & others Vs. State of Karnataka & others.
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These Writ Petitions are filed under Articles 226 & 227
of the Constitution of India praying to direct the respondents
that the gazette notification dated 03.01.2012 issued for the
amendment of Section 18 & 18A of the Karnataka Town and
Country Planning (Amendment) Act, 2011 (Karnataka Act
No.6/2012) vide Annexure - F and etc.,
These Writ Petitions coming on for orders this day, the
Court made the following:-
ORDER
Mr. K.B. Manian, Advocate for Petitioner Mr. A.K. Vasanth, AGA for R1;
Mr. Yogesh Naik, Advocate for Mr. S.G. Pandit, Advocate for R2 and R3 The petitioner - Sri. V.Ramachandran, S/o. Sri. Venkatachala Goundar, representing M/s.B.V.S. Properties, Bengaluru, have filed these writ petitions against the levy of 'Lake Rejuvenation Cess' by the third respondent-Magadi Planning Authority by the impugned demand notice dated 10.05.2012, Annexure-
"H".
2. As per the amended provisions of Section 18(1A) inserted by Karnataka Town and Country Planning(Amendment) Act, 2011, which received assent Date of Order 01-02-2018 W.P.Nos.17845/2015 & 24044/2017 Sri.V. Ramachandran & others Vs. State of Karnataka & others. 4/14 of the Governor on 02.01.2012, the provisions are made applicable with retrospective effect from 03.10.2009. The copy of the said Gazette Notification is produced on record as Annexure-"F".
3. Upon issuance of notice, the third respondent-Magadi Town Planning Authority has filed the statement of objections in the Court today and the learned counsel for the respondents has pointed out that the petitioner had applied for approval of Residential Layout in Survey No.39/1A2 totally measuring 5 acres situated at Ajjanahalli Village, Tavarakere Hobli, Bengaluru South Taluk, on 20.12.2007, which was approved on 12.03.2008. The petitioner executed the relinquishment deed on 03.04.2008 and handed over the areas earmarked for parks, civic amenity and roads to the Planning Authority.
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4. The Planning Authority by its communication dated 05.04.2008 released 60% of the sites for registration.
5. Thereafter, the petitioner again filed an application on 20.05.2011 for modification of the earlier approved Layout Plan, which was placed before the 38th Meeting of the Authority on 16.08.2011 and after scrutiny of the application, the modified layout plan was given on 21.12.2011.
6. The respondents have contended before the Court that since the modification application has to be considered in the same manner as a fresh application for approval of the layout plan, the petitioner was called upon accordingly to pay the 'Rejuvenation of Tank Fee' of Rs.5,00,000/- at the rate of Rs.1,00,000/- per acre, as per the amended provision inserted by Amendment Act.No.6/2012, Annexure-'F', with retrospective effect from 03.10.2009 and therefore at Date of Order 01-02-2018 W.P.Nos.17845/2015 & 24044/2017 Sri.V. Ramachandran & others Vs. State of Karnataka & others. 6/14 the time of issuing of the said Demand Notice, the amended law was on the statute book.
7. The petitioner had challenged this notice for demand of 'Tank Rejuvenation Fee' before this Court on an earlier occasion vide W.P.No.41795/2011 (Sri.V. Ramachandran .vs. State of Karnataka and others) which came to be disposed by the learned Single Judge of this Court on 09.01.2012 and the learned Single Judge(Hon'ble Justice Abdul Nazeer, as His Lordship then was) observed that in view of the amendment of Sections 17 and 18-A(1), the contention of the petitioner that the demand of additional fee or cess towards rejuvenation of tanks is without authority of law cannot be accepted at this stage. The said writ petition was accordingly dismissed. However, the learned Single Judge reserved liberty to the petitioner to challenge the amendment made in law including the Demand Notice in accordance with law.
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8. It appears from the record that petitioner filed another W.P.No.17928 of 2012 (Sri.V. Ramachandran .vs. State of Karnataka and others), which also came to be disposed of by a short order by another Co-ordinate Bench of this Court on 02.07.2014 holding that the challenge to the notice dated 10.05.2012 had become infructuous and the petitioner may make a representation to the respondent to be considered in accordance with law. It is thereafter that the present impugned Demand Notice came to be issued to the petitioner vide Annexure-"K" dated 19.01.2015 demanding Verification/Examination Fees of Rs.2,050/-, the demand of 'Tank Rejuvenation Fees' raised earlier on 08.07.2014 of Rs.5,00,000/- was reiterated in the said Demand Notice along with the interest at 8% per annum by the said Planning Authority and the same is again challenged before this Court in these petitions.
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9. The learned counsel for the petitioner has submitted before the Court that since the original Layout Plan was approved prior to the amendment in law, way back in the year 2008 on 12.03.2008, the application for mere modification of the Layout Plan, which was applied for changing the location of civic park etc. to the place where the trees in the said Layout existed to save those trees, cannot amount to fresh application for approval of Layout Plan and therefore, the said modification application would not attract levy of 'Tank Rejuvenation Fees' as per the amendment provisions of law. He fairly submitted that though the validity of the said amendment in law has not been challenged by the present petitioner in the present petitions, the said amended law would not apply to the present case and therefore the said levy cannot be demanded from the petitioner.
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10. On the other hand, the learned counsel for the respondent-Planning Authority has supported the impugned levy and has reiterated his objections raised in the Statement of Objections.
11. Having heard the learned counsel for the parties, this Court is satisfied that the present petitions have no force and deserves to be dismissed.
12. There is no dispute that the original Layout Plan of the petitioner was approved in the year 2008 and the amended law prescribing 'Lake or Tank Rejuvenation Fees' came on the Statute book by amendment Act No.6/2012 which received the assent of the Governor on 02.01.2012, and was enforced with retrospective effect from 03.10.2009, but the fact remains that the said amended law in the form of Section 18(1A) to the Act was very much on the Statute Book, when the modification of the Layout Plan was Date of Order 01-02-2018 W.P.Nos.17845/2015 & 24044/2017 Sri.V. Ramachandran & others Vs. State of Karnataka & others. 10/14 applied for and was being considered by the respondent-Planning Authority.
13. The said amendment in law is quoted below from the Gazette Notification for ready reference:-
"2. Amendment of Section 18.-In Section 18 of the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963)(hereinafter referred to as the principal Act), after sub-section (1), the following shall be deemed to have been inserted with effect from the 3rd day of October, 2009, namely:-
"(1A)Where an application for sanction of sub-division of his plot or make or layout a private street is submitted under Section 17 of Planning Authority, such Planning Authority may levy and collect an additional fee at the rate of rupees one lakh per acre of land, for the purpose of rejuvenation of lakes or Date of Order 01-02-2018 W.P.Nos.17845/2015 & 24044/2017 Sri.V. Ramachandran & others Vs. State of Karnataka & others.11/14
water bodies within the planning area."
It is clear that the said provisions enabled the respondent-Planning Authority to levy additional fees at the rate of Rs.1,00,000/- per acre for the purpose of rejuvenation of lakes or water bodies within the planning area with retrospective effect from 03.10.2009. Therefore, any application for approval of the layout plan eventhough for the modification of the Layout Plan would fall within the four corners of this amended law. The extent of modification or purpose of modification in the Layout Plan is of no significance for levy of such fees.
14. Neither the amended provision nor retrospectivity of the same is under challenge before this Court.
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15. Learned counsel for the respondent also submitted that a similar challenge in W.P.No.37442/2012 was however negatived by a Co- ordinate Bench of this Court on 9.6.2014 against which the writ appeal is pending. However, in the present writ petitions no such prayer has been made by the petitioner.
16. This Court is satisfied that the purpose of levy of fees for development of Lakes and rejuvenating water bodies within its territorial limits, the Planning Authority is fully within the legislative competence of the State and no valid exception can be taken to the same. The challenge to the said levy, as a matter of fact, came to be negated by a Co-ordinate Bench of this Court in the order dated 09.01.2012 passed in W.P.No.41795/2011, itself vide Para 5 of the said order which is quoted below for ready reference:-
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"5. In view of the amendment of Sections 17 and 18-A(1) as above, the contention of the petitioner that the demand of additional fee or cess towards rejuvenation of tanks is without authority of law cannot be accepted at this stage. The writ petition is accordingly dismissed. However, liberty is reserved to the petitioner to challenge the amendment made to Sections 17 and 18-A(1) of the Act including the demand notice impugned herein in accordance with law. No costs."
The said order of the learned Single Judge does not appear to have been appealed against in any further writ appeal. The contention thus raised before this Court at this stage in the present writ petitions, as a matter of fact, stood negated by the Co-Ordinate Bench of this Court on 09.01.2012 itself and therefore, the Date of Order 01-02-2018 W.P.Nos.17845/2015 & 24044/2017 Sri.V. Ramachandran & others Vs. State of Karnataka & others. 14/14 petitioner is estopped from raising the same contention again before this Court.
17. In view of the above, this Court does not find any merit in the present writ petitions and the same are liable to be dismissed. Accordingly, the writ petitions are dismissed. No costs.
Sd/-
JUDGE *alb/-.