Karnataka High Court
M/S Karle Infra Pvt Ltd vs Bangalore Development Authority on 6 January, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 6th DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.13000 OF 2020(LA-BDA)
BETWEEN:
M/S. KARLE INFRA PVT.LTD.,
NO.151, INDUSTRIAL SUBURB
YESHWANTHPUR
BENGALURU - 560 022.
REPRESENTED BY ITS DIRECTOR
MR. BHRUVA KARLE.
...PETITIONER
(BY SRI. UDAYA HOLLA, SENIOR COUNEL FOR
SRI. VIVEK HOLLA, ADVOCATE)
AND:
1. BANGALORE DEVELOPMENT AUTHORITY
CHOWDAIAH ROAD, KUMARAPARK WEST
BENGALURU - 560 020.
REPRESENTED BY ITS COMMISSIONER.
2. THE LAND ACQUISITION OFFICER
BANGALORE DEVELOPMENT AUTHORITY
CHOWDAIAH ROAD, KUMARAPARK WEST
BENGALURU - 560 020.
...RESPONDENTS
(BY SRI. D.N.NANJUNDA REDDY., SENIOR COUNSEL FOR
SRI. M. UNNIKRISHNAN, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASHT HE
NOTIFICATION DTD: 16.02.2019 ISSUED BY THE BANGALORE
DEVELOPMENT AUTHORITY THE R-1 VIDE ANNX-P IN SO FAR IT
RELATES TO INCLUSION OF THE LANDS OF THE PETITIONERS
IN THE SAID NOTIFICATION AND ETC.
THIS W.P. COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-
2
ORDER
In this petition, petitioner has sought for the following reliefs:-
" i) Issue a Writ of Certiorari or any other writ, order or direction, quashing the Notification bearing No.BDA/AaYu/VibhuStaA-2/1842/2018-19 dated:
16.02.2019 issued by the Bangalore Development Authority, the first respondent herein (Annexure-P) in so far it relates to inclusion of the lands of the petitioner in the said notification;
ii) Issue a Writ of Certiorari or any other writ, order or direction, quashing the Demand Notice bearing No.BDA/BhuswaA/237/2020-21 dated:
23.10.2020 issued by the Land Acquisition Officer, Bangalore Development Authority, the second respondent herein (Annexure-N);
iii) Grant Such other and further relief's including the cost of this petition in the interest of justice and equity."
2. The brief facts of the case as contended by the petitioner are as follows:-
The petitioner is the owner, developer / assignee of the two parcels of lands measuring 57 acres 14.5 guntas and 2 acres 5 guntas situated at Nagavara village, Bangalore North taluk, Bangalore. The subject matter of the present petition are lands measuring 38 acres 23 3 guntas, which were notified by the BDA for acquisition by framing a scheme for the purpose of formation of 'Arkavathy layout' by issuing a preliminary notification dated 03.02.2003. In pursuance thereof, the State Government approved/sanctioned the said scheme and issued a final notification dated 23.02.2004 in respect of various lands including the subject lands.
2.1 The acquisition proceedings in relation to the subject lands was challenged by the erstwhile land owners in W.P.No.28087/2004 before this Court and several contentions were urged by them. By order dated 15.04.2005, the learned Single Judge of this Court allowed the said petition and quashed the acquisition proceedings, aggrieved by which, the BDA preferred W.A.No.2624/2005 which was tagged along with connected matters. Since certain contentions of the writ petitioners were not accepted by the learned Single Judge, the said writ petitioners also preferred W.A.No.2760/2005 against the order of the learned Single Judge.
2.2 By order dated 25.11.2005, the Hon'ble Division Bench dismissed the appeals of the BDA insofar 4 as the subject lands are concerned and also allowed the appeal in W.A.No.2760/2005 filed by the erstwhile landowners and consequently, the entire acquisition proceedings in relation to the subject lands of the petitioner stood quashed.
2.3 Aggrieved by the aforesaid orders of the Hon'ble Division Bench of this Court, the BDA preferred SLP (Civil ) No.7052/2006 before the Apex Court. When the said petition was listed on 22.03.2007, submission was made on behalf of the BDA that it would not press the petition, since the subject lands of the petitioner were not required for the purpose of 'Arkavathy layout'. The Apex Court recorded the said submission made on behalf of the BDA and disposed of the petition vide order dated 22.03.2007, thereby affirming the orders of this Court and consequently, the quashing of the acquisition proceedings by this Court in relation to the subject lands attained finality and became conclusive and binding upon the BDA.
2.4 It is contended that pursuant to the aforesaid orders, the BDA issued an Endorsement dated 27.04.2007 intimating the petitioner that the subject lands had been 5 dropped from the acquisition proceedings. During the period from 2007 to 2014, the BDA demanded and collected various amounts from the petitioner for the purpose of approval of development plan, betterment fee, development fee, modified development plan, work order, inspection fee etc., and all the amounts demanded by the BDA were paid by the petitioner. Subsequently, on 03.04.2014, a re-modified / revised / altered scheme for the formation of 'Arkavathy Layout', was framed / formulated by the respondents, in terms of which, the subject lands were expressly and specifically excluded and omitted and consequently, the subject lands no longer remained or comprised of in the re-modified scheme. Pursuant to the aforesaid re-modified / revised / altered scheme dated
03.04.2014, a final notification dated 18.06.2014 was issued without including the subject lands and on the other hand, specifically excluding / deleting / dropping the subject lands from the scheme as well as the acquisition proceedings.
2.5 During the period from 2014 to 2018, both BBMP and BDA also demanded and collected various 6 sums of money towards betterment fee, betterment charges, lake development fee etc., from the petitioner, pursuant to which, a modified layout development plan dated 08.01.2018 was issued by the BDA in favour of the petitioner.
2.6 Subsequently, BDA issued the impugned Notification dated 16.02.2019 proposing to impose / levy betterment tax under Section 20 of the BDA Act in respect of various lands including the subject lands of the petitioner. It is the grievance of the petitioner that when it filed one more application dated 10.03.2020 for approval of the modified development plan, BDA issued the impugned Demand notice dated 23.10.2020 calling upon the petitioner to pay a sum of Rs.54,57,45,248/- towards betterment tax in respect of the subject lands. Aggrieved by the impugned Notification and Demand notice, the petitioner is before this Court by way of the present petition.
3. The BDA has opposed the present petition and contended that the petitioner is not entitled to any of the reliefs sought for in the petition. It is contended that merely 7 because the acquisition proceedings in relation to the subject lands were quashed by this Court and confirmed by the Apex Court, the BDA is not divested of its power to impose betterment tax under Section 20 of the BDA Act. It is specifically contended that though the subject lands were deleted / dropped from the subsequent final notification dated 18.06.2014, the subject lands continued to be part and parcel of the original scheme and as such, since the subject lands continued to be comprised of in the scheme and were not required for the purpose of execution of the scheme, on account of the acquisition proceedings having been quashed, the BDA was fully empowered to impose betterment tax on the subject lands. It is therefore contended that the impugned notification dated 16.02.2019 including the subject lands and the consequential Demand notice dated 23.10.2020 were legal, valid and proper and the same do not warrant interference by this Court in the present petition.
4. Heard Sri.Udaya Holla, learned Senior counsel for the petitioner and Sri.D.N.Nanjunda Reddy, learned Senior 8 counsel for the respondents - BDA and perused the material on record.
5. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior counsel for the petitioner submits that the impugned Notification dated 16.02.2019 issued by the BDA and the Demand Notice at Annexure-N dated 23.10.2020 are illegal, arbitrary and without jurisdiction or authority of law and the same deserve to be quashed.
6. Per contra, learned Senior counsel for the respondents-BDA, in addition to reiterating the various contentions urged in the statement of objections, submit that there is no merit in the petition and the same is liable to be dismissed.
7. After having given my anxious consideration to the rival submissions and perusal of the material on record, in my considered opinion, the impugned Notification dated 16.02.2019 and the Demand notice dated 23.10.2020 issued by the BDA in respect of the subject lands deserve to be quashed for the following reasons:-
9(i) That pursuant to the acquisition proceedings in relation to the subject lands having been quashed by this Court and confirmed by the Apex Court at the instance of the BDA and on the basis of submission made on behalf of the BDA that the subject lands were no longer required for acquisition for the purpose of formation of 'Arkavathy layout', the subject lands were not only dropped / deleted from the acquisition proceedings, but the re-modified/ revised / altered scheme expressly and specifically excluded and omitted the subject lands and was sanctioned and approved on 03.04.2014 without including the subject lands in the re-modified scheme, pursuant to which, a fresh / new final notification dated 18.06.2014 was issued under Section 19(1) of the BDA Act expressly and specifically dropping / deleting / excluding / omitting the subject lands from acquisition proceedings, also as a result of which, the subject lands were no longer comprised of in the scheme which was a mandatory pre-condition / requirement for applicability of Section 20 which was clearly not applicable to the subject lands. It is therefore clear that having excluded / deleted / dropped the subject 10 lands under the re-modified scheme, as well as from the fresh / new final notification, the BDA did not have jurisdiction or authority of law under Section 20 to impose/demand/levy betterment tax in relation to the subject lands which were not comprised of in the scheme and consequently, the impugned notification and demand insofar as it relates to the subject lands deserves to be quashed.
(ii) So also, there is absolutely no material to establish that the subject lands were not only comprised of the re-modified scheme but that the same were also required for the purpose of execution / implementation of the scheme as contemplated under Section 20 of the BDA Act, which was clearly not applicable to the subject lands and consequently, on this score also, the impugned notification insofar as it relates to the subject lands and the consequential Demand notice deserve to be quashed.
(iii) The question as to whether the BDA would be entitled to impose, levy and demand betterment tax in relation to the lands which are no longer comprised of in the re-modified scheme and deleted from the acquisition 11 proceedings came up for consideration before this Court in the case of Ex-Servicemen House Building Co-
operative Society Ltd., rep. by its Secretary vs. Government of Karnataka, Department of Revenue & Others - W.P.No.40445/2014 Dated 28.10.2021, wherein it was held as under:-
10. This aspect relates to the legality and validity of the impugned Notification dated 12.09.2003 insofar as the subject lands of the petitioner are concerned. In my considered opinion, the impugned Notification is illegal, invalid and arbitrary and the same deserves to be quashed for the following reasons;-
(viii) In the aforesaid notification dated 07.11.2002, the entire extent of land was notified only for acquisition and no portion of the land including the subject lands were notified for the purpose of imposition of betterment tax.
(ix) In the scheme framed by the BDA, prior to the aforesaid Notification dated 07.11.2002, the BDA proposed acquisition of the entire extent of 1732 acres and no portion was proposed to be included in the scheme for the purpose of imposition of betterment tax.
(xii) Pursuant to the aforesaid Resolution, the BDA submitted a modified scheme comprising of only 750 acres to the State Government for 12 approval under Section 18(3) of the BDA Act; in the Communications dated 16.08.2003 and 22.08.2003 addressed by the BDA to the State Government enclosing the modified scheme, the BDA sought for approval of the modified scheme in respect of 750 acres and also imposition of betterment tax in respect of the remaining 782 acres.
(xiii) On 04.09.2003, the State Government passed an order under Section 18(3) of the BDA Act granting approval of the modified scheme in respect of 750 acres; however, the said order does not state anything with regard to approval being granted to the BDA in respect of imposition of betterment tax.
(xiv) On 09.09.2003, the State Government issued the final notification under Section 19 of the BDA Act notifying 750 acres for acquisition as per the modified scheme.
(xv) Subsequently, on 12.09.2003, the BDA issued one more Notification at Annexure-SS under Section 17(1) of the BDA Act purporting to notify 782 acres including the subject lands for the purpose of imposition of betterment tax.
(xxvii) A perusal of the Notification will indicate that it has been issued pursuant to the Resolution dated 28.06.2003 passed in subject No.177/2003 by the BDA; the said Resolution was undisputedly quashed by this Court in Gangaiah Naidu's case supra; it is also not in dispute that 13 apart from this resolution, no other resolution was passed by the BDA prior to 12.09.2003, when the impugned notification was issued; consequently, since the resolution dated 28.06.2003 which was the basis for issuance of the impugned notification dated 12.09.2003 had been quashed in Gangaiah Naidu's case and the same having attained finality and become conclusive and binding upon the BDA, the impugned notification dated 12.09.2003 is clearly without any basis and deserves to be quashed since the same is not preceded by any resolution by the BDA.
(xxx) The impugned notification is also illegal in view of the undisputed fact that in the earlier notification dated 07.11.2002, the BDA did not propose to impose betterment tax in respect of the subject lands while notifying the lands for acquisition; in other words the earlier notification under Section 17(1) notifying the subject lands for acquisition had been taken to its logical end by the State Government granting approval in respect of 750 acres only by excluding the subject lands and by issuing the final notification only in respect of 750 acres excluding the subject lands; consequently, the earlier notification under Section 17(1) of the Act had exhausted itself by being taken to its logical end by issuance of notification by the State Government under Section 19(1) of the BDA Act and as such, in the facts and circumstances of the instant case, it was not 14 permissible for the BDA to issue a fresh notification under Section 17(1) of the BDA Act in respect of the subject lands which were excluded from the final notification under Section 19(1) of the BDA Act.
(xxxi) The impugned notification dated 12.09.2003 also does not take into account the acquisition of the subject lands by the State Government prior to the subsequent notifications by the BDA; so also, the impugned notification does not refer to the various circumstances / correspondence between the petitioner and the BDA between 1992 and 2008 including payment of charges by the petitioner and approval of the layout plan by the BDA and the impugned notification deserves to be quashed on this ground also.
(xxxii) The State Government Order dated 04.09.2003 grants approval to the modified scheme submitted by the BDA by deleting 782 acres and continuing the acquisition only in respect of 750 acres; exclusion of the subject lands from the acquisition tantamounts to exclusion of the subject lands from the scheme also, which is accordingly modified and consequently, so long as the modified scheme does not contain or include the subject lands, which have been excluded from the scheme on account of being dropped / deleted from acquisition proceedings, the question of imposing 15 betterment tax on the subject lands, which are no longer part of the scheme or included in the area of the scheme does not arise and consequently, the impugned notification deserves to be quashed on this ground also.
(xxxiii) Insofar as the contention of the BDA that the impugned notification is valid since there is no bar to issue 2 separate notifications for acquisition and levy of betterment tax is concerned, it has to be stated that the question that arises for consideration in the facts and circumstances of the instant case is not with regard to the power/jurisdiction of the BDA to issue 2 separate notifications, but as to whether the impugned notification is legal and valid; as stated supra, the impugned notification is illegal and invalid on account of several illegalities and infirmities in the same and consequently, the said contention urged by the BDA can not be accepted.
(xxxiv) Insofar as reliance placed by the BDA upon the decision of this Court in Gangaiah Naidu's case(supra) in support of the contention that the impugned notification is legal and valid since the BDA is entitled to levy betterment tax under Section 20 of the BDA Act is concerned, it cannot be gainsaid that the BDA is certainly empowered to levy betterment tax, but the said levy would necessarily have to be strictly in accordance with law and in terms of the BDA Act; as stated supra, for the various reasons already 16 narrated hereinbefore, I have already come to the conclusion that the impugned notification is illegal and invalid; under these circumstances, no reliance can be placed upon Gangaiah Naidu's case(supra) by the BDA in order to contend that the impugned notification is legal and valid, particularly when there are several illegalities and infirmities which vitiate the same in the peculiar facts and circumstances of the instant case and consequently, even this contention of the BDA cannot be accepted.
11. This aspect relates to the legality and validity of the impugned Resolution passed by the BDA dated 28.04.2011 insofar as the subject lands of the petitioner are concerned. In my considered opinion, the impugned Resolution is illegal, invalid and arbitrary and the same deserves to be quashed for the following reasons;-
(iii) The direction issued in Gangaiah Naidu's case to the BDA to initiate proceedings in respect of the lands given up from acquisition on the ground it is not necessary while implementing the scheme is clearly not applicable to the subject lands in view of the material on record, which indicates that the subject lands were dropped / deleted from acquisition not on the ground that they were not required / necessary for the purpose of implementing the scheme, but on the ground that the lands had already been acquired by the State Government; In other words, the directions 17 issued by this Court in respect of either of the situations do not apply in so far as the subject lands are concerned and consequently, in the absence of any valid notification or any other document or any other basis for the BDA to pass the impugned Resolution in respect of the subject lands, the impugned Resolution deserves to be quashed.
(iv) While the earlier Resolution dated 28.06.2003 specifically stipulates that the BDA had resolved and decided to impose betterment tax in respect of the lands dropped / deleted from acquisition, the impugned resolution dated 28.04.2011 does not stipulate that the same applies in respect of the subject lands, which were dropped / deleted from acquisition; on the other hand, the impugned resolution merely states that betterment tax has to be imposed in respect of 'Banashankari VI Stage Further Extension' without reference to the subject lands or the lands dropped / deleted from acquisition and consequently, since the impugned resolution does not pertain or relate to the subject lands, the same deserves to be quashed on this ground also.
(v) The impugned resolution is not in accordance with any of the provisions contained in Sections 20 and 21 of the BDA Act in relation to levy of betterment tax; apart from the fact that the procedure prescribed under Sections 20 and 21 of the BDA Act have not been followed by the BDA 18 prior to the impugned resolution, the impugned resolution is not preceded by compliance of other statutory requirements and the same being wholly bald and vague, the impugned resolution deserves to be quashed.
12. This aspect relates to the legality and validity of the impugned Demand Notice issued by the BDA dated 25.07.2013. In my considered opinion, the impugned Demand Notice is illegal, invalid and arbitrary and the same deserves to be quashed for the following reasons;-
(ii) It is well settled that when the statute prescribes that any act, deed or thing is to be done in a particular manner, it has to be done in that manner only and in no other manner; in the instant case, as held by this Court in Gangaiah Naidu's case, it was incumbent upon the BDA to take a decision with regard to the extent of land to be acquired and the extent of land in respect of which betterment tax is to be imposed prior to issuance of Section 17(1) notification dated 07.11.2002 and not subsequently after issuance of the final notification dated 09.09.2003; this non-compliance of Sections 16, 17, 18 and 19 by the BDA is sufficient to show that the BDA was not entitled to approbate and reprobate and issue the impugned demand for payment of betterment tax.
(iv) A perusal of the modified scheme and the approval dated 04.09.2003 granted by the State Government will indicate that the subject lands were 19 excluded from not only acquisition but also from the scheme itself; in order to exercise its power to impose betterment tax under Section 20, it is absolutely essential that the subject lands continue to be part of the scheme and since the lands were no longer part of the modified scheme which was approved by the State Government in its order dated 04.09.2003, Section 20 of the BDA Act was not applicable to the subject lands and the impugned demand for payment of betterment tax is vitiated on this ground also.
(vi) Section 20 of the Act contemplates that betterment tax can be imposed only if the subject lands were not required for execution of the scheme; the said provision does not provide for imposition of betterment tax if the subject lands were dropped from acquisition; in other words, in view of the specific stand of the BDA that the subject lands continued to be part of the scheme and that even the modified scheme included the subject lands for the development of the scheme, in the absence of any material to show that they were not required for execution / implementation of the scheme, on account of subject lands being dropped from acquisition, the only inference that can be drawn is that the subject lands even after modification of the scheme were required for execution of the scheme and consequently, Section 20 which pre-supposes that the subject lands should not be required for execution of the scheme is 20 inapplicable in the facts of the instant case and the impugned demand deserves to be quashed on this ground also.
(iv) In my considered opinion, the ratio of the aforesaid judgment is directly and squarely applicable to the facts of the instant case also, inasmuch as so long as the original BDA scheme was altered / revised / re-modified so as to the expressly / specifically exclude the subject lands from the scheme, as a result of which, the subject lands no longer were comprised of in the re-modified scheme which superceded and substituted the original scheme, Section 20 could not have be applied or invoked by the BDA to impose / demand / levy betterment tax upon the subject lands.
(v) As held by this Court in the aforesaid decision, imposition, levy, demand of betterment tax by the BDA in relation to the lands which were excluded / omitted from the scheme and deleted / dropped from the acquisition proceedings is illegal and without jurisdiction or authority of law, resulting in the notification and demand notice impugned therein being quashed by this Court. In the 21 instant case, the material on record clearly establishes that the subject lands were not only excluded / omitted in the re-modified scheme which was approved and sanctioned on 03.04.2014 but the same were also excluded / deleted / dropped from the fresh / new final notification dated 18.06.2014.
(vi) In the aforesaid judgment, this Court has also held that after issuing a fresh / new final notification excluding and omitting the subject lands from the scheme and acquisition, it was not open for the BDA to issue a fresh notification only for the purpose of imposition / levy of betterment tax, particularly when the subject lands were no longer comprised of in the scheme and viewed from this angle also, the impugned notification followed by the impugned demand deserves to be quashed.
(vii) In the instant case, the alteration and modification of the original BDA scheme by substituting the same with the re-modified / altered / revised scheme without including the subject lands was not only traceable to the litigations referred to supra but also to Section 19(5) of the BDA which permits alteration / modification of the 22 scheme at any stage; it is an undisputed fact that the entire original scheme was redone / revised / altered by the re-
modified scheme which was approved on 03.04.2014 on account of subsequent developments, Court orders, deletion / dropping of lands etc., as a result of which, the original scheme which included the subject lands simply vanished / disappeared and did not remain in existence any longer and consequently, since the subject lands being comprised of in the scheme was a sine-qua-non for applicability of Section 20 was conspicuously in the instant case, levy / imposition of betterment tax by invoking Section 20 was impermissible and unsustainable in law.
(viii) It is also relevant to state that the BDA has not placed any material to establish that the subject lands which are undisputedly not comprised of in the re-modified scheme are required for the execution of the re-modified scheme. Under these circumstances, in the absence of the dual / twin requirement contemplated under Section 20 of the BDA Act being complied with or fulfilled by the BDA, the BDA does not have jurisdiction or authority of law to 23 issue the impugned notification or the consequential demand notice which clearly deserve to be quashed.
(ix) A perusal of the order passed by the Apex Court will also indicate that after making a submission that it did not require the subject lands for the purpose of formation of 'Arkavathy layout', the BDA did not seek liberty / leave of the Apex Court to impose betterment tax and this circumstance is yet another factor, which would militate against the BDA and consequently, vitiate the impugned notification and demand notice.
(x) Though it is sought to be contended that the BDA has challenged this Court's order in Ex-Servicemen's case (supra) in W.A.No.164/2022, since there is no interim order passed in the appeal, the said contention urged on behalf of the BDA cannot be accepted.
8. In view of the aforesaid discussion, I am of the considered opinion that the impugned notification and demand of the BDA deserves to be quashed and necessary directions are to be issued to the BDA as sought for by the petitioner.
249. In the result, I pass the following:-
ORDER
(i) The petition is hereby allowed.
(ii) The impugned Notification at Annexure-P dated 16.02.2019 issued by the BDA insofar as it relates to the subject lands of the petitioner are concerned is hereby quashed.
(iii) Consequently, the impugned Demand Notice at Annexure-N dated 23.10.2020 issued by the 2nd respondent is also hereby quashed.
(iv) The respondents - BDA is directed to process the application for sanction / approval of the modified plan submitted by the petitioner and take all necessary steps in this regard as expeditiously as possible and at any rate, within a period of 7(seven) weeks from the date of receipt of a copy of this order.
Sd/-
JUDGE Srl.