Karnataka High Court
M/S Nandi Housing Pvt Ltd vs The Assistant Executive Engineer on 22 May, 2023
Author: Krishna S Dixit
Bench: Krishna S Dixit
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WP No. 7587 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 7587 OF 2021 (BDA)
BETWEEN:
M/S NANDI HOUSING PVT LTD.,
SITUATED AT NO.46, 36TH MAIN ROAD,
BTM DOLLAR SCHEME, BENGALURU - 560 068.
REPRESENTED BY ITS AUTHORISED SIGNATORY.
...PETITIONER
(BY SRI.VIVEK REDDY., SENIOR COUNSEL A/W
SRI.DILLI RAJAN., ADVOCATE FOR
SRI.AMITH XAVIER.,ADVOCATE)
AND:
1. THE ASSISTANT EXECUTIVE ENGINEER,
BENGALURU DEVELOPMENT AUTHORITY,
NO.1, SOUTH SUB-DIVISION, BDA,
Digitally BENGALURU.
signed by
CHETAN B C
Location: 2. THE TOWN PLANNING MEMBER,
HIGH COURT BENGALURU DEVELOPMENT AUTHORITY,
OF NO.1, SOUTH SUB-DIVISION, BDA,
KARNATAKA BENGALURU.
3. THE COMMISSIONER, BDA,
BENGALURU DEVELOPMENT AUTHORITY,
BENGALURU - 560 001.
4. M/S VALMARK DEVELOPERS PRIVATE LIMITED.,
A PRIVATE LIMITED COMPANY,
INCORPORATED UNDER THE COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT NO.133/1,
RESIDENCY, 10TH FLOOR, RESIDENCY ROAD,
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WP No. 7587 of 2021
BENGALURU - 560 025.
REPRESENTED BY PARAS TOLAI,
S/O DHAIVANTRI TOLAI,
REPRESENTED BY ITS AUTHORISED SIGNATORY.
...RESPONDENTS
(BY SRI. G LAKSHMEESH RAO., ADVOCATE FOR R1 TO R3;
SRI. B S RADHANANDAN., ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED NOTICE DATED 10.03.2021 BY THE R-1
VIDE ANNX-A IN ACCORDANCE WITH LAW.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
Petitioner, a land developing company is complaining before the Writ Court against the notice dated 10.3.2021 issued by the 1st Respondent at Annexure-A whereby, he is directed to remove an unauthorizedly constructed wall that denies easy ingress & egress to the public. The operative portion of the same reads as under:
"F »£É߯ÉAiÀÄ°è £ÉÆAzÁ¬ÄvÀ ¥ÀjvÁåd£Á ¥ÀvÀæzÀ ªÀÄÆ®PÀ ªÉÄîÌAqÀ ªÀ¸Àw ¸ÀªÀÄÄZÀÑAiÀÄzÀ GzÁå£ÀªÀ£À ªÀÄvÀÄÛ gÀ¸ÛÉ ¥ÀæzÉñÀUÀ¼À£ÀÄß vÁªÀÅ FUÁUÀ¯Éà ¥Áæ¢üPÁgÀPÉÌ ºÀ¸ÁÛAvÀj¹gÀĪÀÅzÀjAzÀ CªÀÅUÀ¼ÀÄ ¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Ý ¥Áæ¢üPÁgÀzÀ ¸ÀévÁÛVzÀÄÝ, ¸ÀzÀj gÀ¸ÉÛAiÀÄ°è ¸ÁªÀðd¤PÀgÀÄ ¸ÀAZÀj¸À®Ä C£ÀÄPÀÆ®ªÁUÀĪÀAvÉ vÁªÀÅ C£À¢üPPÀÈvÀªÁV ¤«Äð¹gÀĪÀ vÀqÉUÉÆÃqÉAiÀÄ£ÀÄß F £ÉÆÃnøï vÀ®Ä¦zÀ PÀÆqÀ¯Éà vÉgÀªÀÅUÉƽ¹ F PÀbÉÃjUÉ °TvÀªÁV ªÀgÀ¢ ªÀiÁqÀĪÀAvÉ F ªÀÄÆ®PÀ ¸ÀÆa¹zÉ. vÀ¦àzÀÝ°è ¥Áæ¢üPÁgÀzÀ ¤AiÀiÁªÀiÁªÀ½AiÀÄ ¥ÀæPÁgÀ ªÀÄÄA¢£À PÀæªÀÄ dgÀÄV¸À¯ÁUÀĪÀÅzÀÄ."-3- WP No. 7587 of 2021
2. Learned Sr. Advocate Mr.Vivek Reddy appearing for the Petitioner sought to falter the impugned notice on the basis of original & amended Writ Petition contending that: the said notice is issued unilaterally, violates principles of natural justice; it is issued on the basis of a false complaint lodged by the newly added 4th Respondent-Company; there are no residential houses in the area nor the members of public can make use of the road in question; 'Petitioner has not obstructed any persons and also not constructed any compound wall/grabbed government land in an illegal manner...'; the 4th Respondent-Company has an alternate road for ingress & egress to it's adjoining layout which is now being developed; the impugned notice is violative of Petitioner's Fundamental Rights under Articles 19, 21 & 300A of the Constitution of India and therefore, the Relinquishment Deed executed by the Petitioner being contrary to the said Articles, cannot be held against it.
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3. After service of notice, the Respondent Nos.1, 2 & 3 are represented by their Sr. Panel Counsel and the 4th Respondent-Company is represented by it's Advocate. They did not much oppose the amendment to the Writ Petition and therefore, leave to amend as prayed for, has been accorded. Petitioner has also filed an amended Petition in advance, which is officially a part of the record. The 4th Respondent has filed the Statement of Objections resisting the Writ Petition. Learned BDA Panel Counsel and the advocate appearing for the Respondent-Company made submission in justification of the impugned notice; all contentions of the Petitioner, they submit, are liable to be rejected in view of the registered Relinquishment Deed, executed by the Petitioner himself; the argument of acquisition of property sans compensation, has no place; Petitioner's predecessor-in-title in his very application for conversion of the land has admitted existence of the public road on which now the wall is built by the petitioner; there are other records too in support of this; Petitioner is high -5- WP No. 7587 of 2021 handedly doing all these things and therefore, Writ Court should not show any indulgence to him.
4. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court declines indulgence in the matter for the following reasons:
a) The first submission advanced on behalf of the Petitioner that the impugned notice has been generated on the basis of a false complaint lodged by the 4th Respondent, does not merit a deeper examination at the hands of this Court since the matter is being investigated into by the jurisdictional police in accordance with law;
added, there is Petitioner's prior complaint, as well; whether the complaint of the 4th Respondent is true or that of the Petitioner is, is a matter left to the domain investigating agency, and this Court cannot interfere consistent with the observations of the Apex Court in LALITA KUMARI VS. STATE OF UTTAR PRADESH, (2014) 2 SCC 1. This apart, an action in a criminal law which Petitioner and the 4th Respondent seek to initiate against -6- WP No. 7587 of 2021 each other has nothing to do with the impugned notice which instructs the Petitioner to remove the wall which is admittedly built by the Petitioner unauthorizedly and to the detriment of public ingress & egress.
b) The second submission made on behalf of the Petitioner that the impugned notice has been issued unilaterally and at the instance of the 4th Respondent and therefore, the same is liable to be voided on the ground of violation of principles of natural justice, is not demonstrated: firstly, Petitioner admittedly has executed & registered a Relinquishment Deed more than a decade ago; under the said deed he has given up inter alia the roads & pathways in the subject layout in favour of the BDA. Now, all of a sudden, Petitioner cannot turn around to contend that this deed is liable to be voided as being contrary to the constitutional guarantees enacted in Articles 19, 21 & 300A. It is on the basis of this deed, that the BDA has approved the layout in question, needs no deliberation and thus, it was a part of the bargain between -7- WP No. 7587 of 2021 him & BDA. Added, Articles 19 & 21 do not avail to the Petitioner which is a registered Company; which provision of Article 19 is violated, is also not mentioned nor argued.
c) The vehement contention of Mr.Vivek Reddy, learned Sr. Advocate appearing for the Petitioner that execution of Relinquishment Deed virtually amounts to acquisition of private property of his client sans compensation and therefore, is violative of constitutional protection guaranteed u/a 300A, cannot be acceded to, and reasons for this are not far to seek: Firstly, as already mentioned above, this relinquishment arrangement was part of the bargain that eventually resulted into BDA according approval to Petitioner's layout in question; the Petitioner having derived benefit from such an arrangement, cannot now contend that the same amounts to acquisition sans compensation. Secondly, under the subject Relinquishment & Rectification Deeds inter alia the roads & drainages have already vested in the BDA more -8- WP No. 7587 of 2021 than a decade ago, although their beneficial interest would enure to the residents of layout & other public.
(d) It was not the case of Petitioner in the original pleadings that he was coerced to execute the Relinquishment & Rectification Deeds. Such a contention now belatedly taken up by way of amendment to the Petition is only an after-thought. There is no supportive material emerging from the record of long correspondence between Petitioner & the BDA to vouch the same. Petitioner has taken up such a new contention only after looking to the decision of a Coordinate Bench in Dr.ARUN KUMAR B.C., vs. STATE OF KARNATAKA (2022) 2 KLJ 553, as is reflected from the copy of a decision of another Coordinate Bench in W.P.No.48258/2018 between SRIVATSA DEVELOPERS vs. BANGALORE DEVELOPMENT AUTHORITY, disposed off on 27.5.2022 which Petitioner himself has placed on record by a Memo filed on 21.4.2023 i.e., days after the matter was heard & reserved for judgment. Thus the contention lacks -9- WP No. 7587 of 2021 bonafide. That being the position, the argument of acquisition sans compensation does not avail to the Petitioner, especially when Petitioner on the basis of relinquishment has derived the benefit i.e., the approval to his layout decades ago.
(e) There is force in the submission of learned advocates appearing for the Respondents that the subject road has been in existence since decades which fact is reflected in the registered Sale Deed dated 12.8.2004, land conversion order dated 29.10.2005 and such other documents. The BDA Planning Committee Resolution No.96/2015 at para 5 which confirms the existence of approach road to the adjoining project of Respondent No.4, reads as under:
"5. ¥Àæ±ÁߦvÀ ¥ÀæzÉñÀzÀ°è ªÀ¸Àw ¸ÀªÀÄÄZÀÒAiÀÄ C©üªÀÈ¢Ý £ÀPÉë C£ÀĪÉÆÃzÀ£É ¸ÀA§AzsÀ »A¢£À ¸À¨sÉUÉ ªÀÄAr¸ÀĪÀ ªÀÄÄ£Àß ¸ÀܼÀ ¥Àj²Ã°¸À¯ÁVzÉ. eÁUÀªÅÀ SÁ° EgÀÄvÀÛzÉ JA§ ªÀgÀ¢AiÉÆA¢UÉ ¥Àæ²ßvÀ d«ÄäUÉ JgÀqÄÀ ºÁ° gÀ¸ÉÛUÀ½AzÀ G¥ÀUÀªÀÄ£À«zÀÄÝ MAzÀÄ gÀ¸ÛÉAiÀÄÄ 7.80 «Äà ¤AzÀ 9.00 «Äà CUÀ®zÀ gÀ¸ÉÛAiÀÄ£ÀÄß ºÉÆA¢zÀÄÝ, E£ÉÆßAzÀÄ gÀ¸ÉÛAiÀÄÄ ®UÀvÁÛVgÀĪÀ ZÀAzÀæ±ÉÃRgÀ¥ÀÄgÀ UÁæªÀÄzÀ ¸ÀªÉð £ÀA.23, 24 ªÀÄvÀÄÛ J¯ÉãÀºÀ½î UÁæªÀÄzÀ ¸ÀªÉð £ÀA.50/2(¦) gÀ°è ¢£ÁtPÀ:20/01/2012 gÀ°è C£ÀĪÉÆzÀ£ÉAiÀiÁVgÀĪÀ ªÀ¸Àw
- 10 -WP No. 7587 of 2021
¸ÀªÀÄÄZÀÑAiÀÄ C©üªÀÈ¢Ý AiÉÆÃd£Á £ÀPÉëAiÀÄAvÉ ¨ÉAUÀ¼ÄÀ gÀÄ C©üªÀÈ¢Ý ¥Áæ¢üPÁgÀPÌÉ ¥ÀjvÁåd£À ªÀiÁrgÀĪÀ 12.00«Äà CUÀ®zÀ gÀ¸ÉÛ EgÀÄvÀÛzÉ."
Added, the very Relinquishment Deed contains intrinsic material to infer that there has been such a road since years; even the google map vouches such existence. In fact, the Respondent No.4 having accomplished the layout development has already sold several apartments, after securing the Occupancy Certificate on 20.7.2022.
(f) Counsel for the Respondent No.4 is more than justified in contending that, whatever arguable rights the Petitioner had in respect of relinquished area, cannot be now reclaimed by the Petitioner to the detriment of public commuters because of estoppel & acquiescence, especially when the said road is being used by the residents of these two layouts & the public, since a decade or so. It is a matter of common knowledge that the aspirants of sites or apartments go for the purchase only after ascertaining the existence of access roads like the pme at doscissopm and such other amenities that avail to them. Further, this court
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WP No. 7587 of 2021is not sure whether the concept of "gated community" has legal cognition in the statutory schemes envisaged under the provisions of the Karnataka Town and Country Planning Act, 1961 and the Bangalore Development Authority Act, 1976. No law is notified to court nor any ruling is cited to substantiate a contra view.
(g) The vehement submission of learned Sr. Advocate Mr.Vivek Reddy that the impugned notice has been issued unilaterally in gross violation of principles of natural justice and therefore, should be voided, does not merit acceptance. The principles of natural justice cannot be ritualistically invoked as a mantra; one who complains of their violation should prima facie demonstrate that had he been given an opportunity, he could have shown something that would have eventually not resulted into impugned action of the kind. Where adherence to principles of natural justice would not even otherwise have resulted into gainful product, the contention of their contravention, does not much avail. This view gains
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WP No. 7587 of 2021support from the decision of the Apex Court in S.L.KAPOOR VS. JAGMOHAN AIR 1981 SC 136.
In the above circumstances, this Writ Petition being devoid of merits, is liable to be dismissed and accordingly, it is, costs having been reluctantly made easy.
Sd/-
JUDGE cbc