Karnataka High Court
M/S Valmark Developers Pvt Ltd vs State Of Karnataka on 6 July, 2022
Author: Alok Aradhe
Bench: Alok Aradhe
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY 2022
PRESENT
THE HON'BLE MR. ALOK ARADHE
ACTING CHIEF JUSTICE
AND
THE HON'BLE MS.JUSTICE J.M. KHAZI
W.A. NO.1226 OF 2021 (BDA)
BETWEEN:
M/S. VALMARK DEVELOPERS PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE
AT THE RESIDENCY
19TH FLOOR, NO.133/1
RESIDENCY ROAD, BANGALORE 560 025
REPRESENTED BY ITS MNAGING DIRECTOR
SRI. RATAN LATH.
... APPELLANT
(BY MR. UDAYA HOLLA, SR. COUNSEL FOR
MR. VIVEKANANDA T.P. ADV.,)
AND:
1. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIKAS SOUDHA, BANGALORE 560 001
REPRESENTED BY ITS SECRETARY.
2. STATE OF KARNATAKA
DEPARTMENT OF REVENUE
VIDHANA SOUDHA, BANGALORE 560 001
REPRESENTED BY ITS SECRETARY.
3 THE DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT
2
KANDAYA BHAVAN
BANGLAORE 560 009.
4. KARNATKAA LAKE CONSERVATION
DEVELOPMENT AUTHORITY
II FLOOR, PARISHARA BHAVAN
NO.49, CHURCH STREET
BANGALORE 560 001
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.
5. BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST, BANGALORE 560 020
REPRESENTED BY ITS COMMISSIONER.
6. THE TOWN PLANNING MEMBER
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD, KUMARA PARK WEST
BANGALORE 560 020.
7. BRUHAT BANGALORE MAHANAGARA PALIKE
N R SQUARE, BANGALORE
REPRESENTED BY ITS COMMISSIONER.
... RESPONDENTS
(BY MRS. VANI H, AGA FOR R1 TO R3
MR. V. RAGHUNATH, ADV., FOR R4
MR. K. KRISHNA, ADV., FOR R5 & R6
MR. K.N. PUTTEGOWDA, ADV., FOR R7)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS
WRIT APPEAL SET ASIDE THE ORDER DATED 01.09.2021
PASSED BY THE LEARNED SINGLE JUDGE PASSED IN WP
NO.12942/2020 AND ALLOW THE WP NO.12942/2020 AS
PRAYED FOR.
THIS W.A. COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ACTING CHIEF JUSTICE DELIVERED THE
FOLLOWING:
3
JUDGMENT
This intra court appeal has been filed against order dated 01.09.2021 passed by the learned Single Judge, by which writ petition preferred by the appellant has been disposed of with liberty to seek clarification from the division bench of this court, in respect of its claim to raise construction without leaving the buffer zone in and around survey No.4 measuring 3 acres and 16 guntas. In order to appreciate the appellant's grievance, few facts need mention, which are stated infra.
2. The appellant who is a builder submitted an application before the Bangalore Development Authority (hereinafter referred to as 'the Authority' for short) on 01.03.2013 seeking sanction of development plan proposing to construction 554 villaments with a total built up area of 1,44,184 square meters. The 4 Authority in its meeting held on 31.01.2014 decided to accord approval to the development plan. However, the work order was directed to be released only after receipt of information from the Deputy Commissioner regarding reservation of an area measuring 3 acres 16 guntas of Survey No.4 of Chandrashekarpura Village. The Authority, thereafter, issued a demand notice dated 11.02.2014, by which the appellant was asked to pay a sum of Rs.81,94,800/- as well as to execute a relinquishment deed in respect of road and parks. The appellant submitted a modified plan on 18.02.2015 reducing the proposed buildable area to 1,17,303.98 square meters.
3. The State Government in exercise of powers under Section 71 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 'the Act' for short) by a communication dated 07.08.2015 addressed to the Deputy Commissioner, Bangalore Urban District 5 accorded prior approval for reserving Chandrashekarpura Tank in survey No.4 measuring 3 acres and 16 guntas for a specific purpose of development of tree park. The Authority by a communication dated 09.09.2015 directed the appellant to execute the relinquishment deed in relation to park and open spaces, which was executed by the appellant on 15.09.2015. The Authority thereafter issued the work order to the appellant on 07.10.2015.
4. The Deputy Commissioner, Bangalore Urban District passed an order under Section 71 of the Act reserving Chandrashekarpura Tank area for development of a tree park and directed to hand over the same to Bruhat Bangalore Mahanagara Palike (hereinafter referred to as 'the BBMP' for short). The BBMP on 22.03.2016 permitted the appellant to construct the villaments in terms of development plan 6 approved by the Authority. The appellant on 23.03.2016 itself applied for approval to the modified development plan in respect of entire extent of land measuring 27 acres and 33 guntas and permit development of 554 villaments. The Lake Development Authority by a communication dated 20.04.2016 furnished in response to an application under Right To Information Act, 2005 (hereinafter referred to as 'the 2005 Act' for short) stated that the Chandrashekarpura Tank on Survey No.4 has lost its characteristic as tank and the same has been reserved for tree park.
5. The appellant thereafter submitted a representation on 24.12.2016 requesting the Authority for consideration of modified plan in the light of information furnished by the Lake Development Authority. Thereafter, the Authority addressed a communication dated 20.01.2017 to the 7 Lake Development Authority making an a reference to the information furnished under the 2005 Act seeking clarification as to whether the construction of the building could be permitted by leaving 16 meters of buffer zone.
6. The Lake Development Authority by a communication dated 17.02.2017 informed the Town Planning Department of the Authority that Chandrashekarpura Tank is modified to that of tree park and the area is a Tank and provisions of Karnataka Conservation and Development of Lakes Act, 2014 and its Rule as well as the order of National Green Tribunal (NGT) dated 04.05.2016 and Wet Land Rules are applicable. In the list of Tanks, the Lake Development Authority has mentioned that Chandrashekarpura Tank is reserved, as per orders of Deputy Commissioner, Bangalore dated 15.01.2015 for development of the park. The appellant submitted 8 a representation on 27.02.2018 to the Authority requesting for consideration of modified development plan in respect of additional 182 units pointing out that more than once the authority has clarified about the status of Tank in question. The authority on 23.05.2019 sought the opinion of the Deputy Commissioner, Bangalore Urban District about buffer zone of 30 meters.
7. The Deputy Commissioner, Bangalore Urban District by an order dated 03.06.2019 communicated to the Authority that Tank in question has lost its characteristic and the same has been reserved for development of tree park under Section 71 of 1964 Act. The authority was directed to hand over the possession to BBMP and it was clarified that zoning regulations referred to in the letter are not applicable. The authority by a communication dated 14.10.2019 informed the appellant that there is no 9 clarity in the opinion furnished by the Deputy Commissioner, as to declaration of the tank area as tree park. The appellant was informed that Revised Master Plan 2015 and zoning regulation, the appellant has to provide a buffer zone of 30 meters from the edge of the Tank and to submit a modified plan. The appellant assailed the aforesaid communication in a writ petition, which was disposed of by learned Single Judge of this court with the liberty to the appellant to seek clarification from the division bench of this court with regard to the claim of construction of the appellant without leaving a buffer zone of 30 meters in and around land bearing survey No.4 measuring 3 acres and 16 guntas. In the aforesaid factual background, this appeal has been filed.
8. Learned Senior counsel for the appellant submitted that the land in question is reserved for the tree park and is no longer a tank and therefore, the 10 impugned communication dated 14.10.2019 directing the appellant to provide a buffer zone of 30 meters from the edge of the tank and to submit a modified plan and arbitrary and suffers from the vice of non application of mind. It is further submitted that the prior approval of the State Government has been accorded and the land has been reserved as tree park. Learned Senior counsel has invited our attention to various documents on record. It is also submitted that State Government after having accorded the permission for the land in question with the reserve for tree park cannot take a stand that the same is a tank.
9. On the other hand, learned Additional Government Advocate submitted that communication dated 07.08.2015 is an inter departmental communication and at no point of time the lake has been de-classified as tree park and it remains to be so 11 in the revenue record. It is further submitted that land bearing survey No.4 measuring 3 acres and 16 guntas is a dry land and therefore, to avoid encroachment on the lake, the same has been reserved as tank. Attention of this court is also invited to Section 2(g) of Karnataka Tank Conservation and Development Authority Act, 2014 (hereinafter referred to as 'the 2014 Act' for short). It is further submitted that in the absence of any provision under the 1964 Act, the State Government has no power to de-classify the park.
10. Learned counsel for Lake Development Authority has submitted that the lake in question has lost its characteristic as a lake and the same has been handed over to BBMP to develop the same as tree park. Attention of this court has also been invited to the report submitted by the Lake Development Authority and it has been pointed out that the land in 12 question as reserved as tree park. Learned Counsel for the Authority has supported the stand taken by the Additional Government Advocate.
11. We have considered the rival submissions made on both sides and have perused the record. Section 71 of the 1964 Act enables the Deputy Commissioner to assign the land for special purposes and when they are so assigned, shall not otherwise be used without sanction of the Deputy Commissioner. However, the aforesaid order is subject to general orders of the State Government. Section 71 of the 1964 Act reads as under:
71. Lands may be assigned for special purposes and when assigned, shall not be otherwise used without sanction of the Deputy Commissioner.--Subject to the general orders of the State Government, Survey Officers, whilst survey operations are proceeding under this Act, and at any other time, the Deputy Commissioner, may 13 set apart lands, which are the property of the State Government and not in the lawful occupation of any person or aggregate of persons in any village or portions of a village, for free pasturage for the village cattle, for forest reserves or for any other public purpose; and lands assigned specially for any such purpose shall not be otherwise used without the sanction of the Deputy Commissioner; and in the disposal of lands under section 69 due regard shall be had to all such special assignments.
12. The relevant extract of the communication dated 07.08.2015 sent by Principal Secretary to the Revenue Department, Government of Karnataka to Deputy Commissioner, Bangalore Urban District, Bangalore reads as under:
In view of the same, I am directed to inform that, prior approval of the government is hereby accorded reserving the park/plantation for the specific purpose of forming park/plantation as per Section 14 71 of Karnataka Land Revenue Act, 1964 and to transfer the said Lake land to BBMP, subject to the following conditions:
Thereafter, the Deputy Commissioner by an order dated 15.10.2015 has passed an order under Section 71 of the 1964 Act reserving the land for the purposes of park / plantation. The relevant extract of the order is reproduced below for ready reference.
It is hereby ordered, reserving government land measuring 3-16 acres in Survey No.4 of Chandrashekharapura village, Begur Hobli, Bangalore South Taluk for the purpose of Park/Plantation as per Section 71 of Karnataka Land Revenue Act, 1964 subject to the following conditions:
12. From perusal of revenue records of houses and vacant lands maintained by BBMP, it is evident that land measuring 3.16 acres of survey No.4 has been recorded in the name of BBMP. In the list of 15 lakes prepared by Karnataka Lake development Authority , it is evident that in the aforesaid list also Chandrashekarapura Lake has been shown as reserved for development of tree park. The land bearing Survey No.4 measuring 3 Acres and 16 Guntas cannot be used for any other purpose and from perusal of the order dated 15.10.2015 passed by the Deputy Commissioner, the land is directed to be protected by putting up a barbed wire fencing to protect the trees and to prevent encroachment.
13. It is also pertinent to note that in the Master Plan-2015 land bearing Survey No.4 measuring 3 Acres and 16 Guntas has been shown to be reserved for residential purposes. For the aforementioned reasons, there appears to be no justification for the Authority to contend that the land in question is a lake and the appellant is required to set apart a buffer zone of 30 meters and to obtain a modified 16 development plan. The impugned communication dated 16.10.2020 and communication dated 17.02.2017 are hereby quashed. The Authority is directed to approve the modified development plan, treating land bearing Survey No.4 measuring 3 Acres and 16 Guntas to be a land earmarked for the purposes of a tree park. The BBMP shall issue a building plan and the license.
Accordingly, the appeal is disposed of.
Sd/-
ACTING CHIEF JUSTICE Sd/-
JUDGE SS