Karnataka High Court
M/S Mantri Developers Private Limited vs Bangalore Development Authority on 5 September, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION NO.6826/2012 (BDA)
Between:
M/S. MANTRI DEVELOPERS PRIVATE LIMITED,
A registered company having its
Registered office at No.41,
Vittal Mallya Road,
Bengaluru - 560 001
Represented by its Authorised Signatory,
Mr. Girish Gupta H.S
...Petitioner
(By Sri.Srinivas & Badari Associates, Adv.)
And:
BANGALORE DEVELOPMENT AUTHORITY
Chowdaiah Road
Bengaluru
Represented by its Commissioner
...Respondent
(By Sri.K.Krishna , Adv.)
This writ petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the demand of
lease amount and additional lease amounts vide allotment
letter bearing No.464 dated 21.01.2012 vide Annex-H made
by the respondent towards allotment of Civic Amenity site as
per 1989 Rules.
This Writ Petition is having been reserved for orders,
coming on for pronouncement this day, the Court
pronounced the following:
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ORDER
The petitioner is praying that the demand of lease amount and additional lease amount vide allotment letter dated 21.01.2012 (Annexure-H) towards Civic Amenity site be quashed. The petitioner is also seeking for consideration of their representation dated 22.08.2011 (Annexure-F) and also to restore 15% excess land relinquished vide Relinquishment Deed dated 10.05.2006.
2. The brief facts are that the petitioner is a developer of the residential apartment complex called 'Mantri Tranquil' at Gubbalala Village, Uttarahalli, Bangalore South Taluk. The development plan was initially approved on 19.12.2005. As per the requirement, the petitioner relinquished 25% of the land measuring 11558.92 sq mtrs towards park etc (15%) and 7702.105 sq.mtrs towards civic amenities (10%). The relinquishment deed dated 10.05.2006 was executed in favour of BDA. The said plan was as per the Comprehensive Development Plan of 1995 ('CDP for short). The plan approved in favour of the petitioner 3 was modified on 30.03.2007. The petitioner thereafter by letters dated 18.12.2007 and 23.02.2008 sought for re-conveyance of the relinquished land on lease basis. The request was rejected by endorsement dated 06.07.2009. Subsequently the Master Plan -2015 and the Zonal Regulations 2007 has come into force with effect from 25.06.2007 whereby the change has been brought in vide Regulation No.7 with regard to development of parks, open areas and Civic Amenity area. According to the petitioner, the issue came up for consideration before this Court in the case of another developer viz., M/s. Golden Gate Properties Ltd., in W.P.No.12689/2007 and this Court by order dated 13.07.2011 has held that Regulations under Master Plan-2015 would be applicable and not the BDA (Allotment of Civic Amenity Sites) Rules 1989 (hereinafter referred to as 'the Rules 1989' for short). Hence, the petitioner made a representation dated 22.08.2011 (Annexure-F) seeking for handing over the area reserved for Civic Amenities as per Regulation 7 of Master Plan-2015 and Zonal Regulation-2007. Though 4 the petitioner had assailed the earlier endorsement dated 06.07.2009 by filing W.P.No.35855/2011, the same was disposed of on 04.11.2011 directing consideration of the representation. The respondent BDA by their allotment letter dated 21.01.2012 has allotted the Civic Amenity Area measuring 7702.180 for the lease rentals indicated therein. The petitioner is therefore aggrieved by the imposition of lease rentals.
3. The respondent has filed its objections and disputed the claim of the petitioner. It is contended that the petitioner has executed a Relinquishment Deed dated 10.05.2006. As such the park, open space and Civic Amenity Area became the property of BDA and they are the owners and are entitled to deal with the same in the manner provided under the Rules 1989. The manner of allotment under the Rules is referred to in detail. The respondents have referred to the letter dated 25.02.2008 by which the petitioner sought for allotment of Civic Amenity site in their favour. The request was rejected by the Resolution in Subject No.199/09 since the relinquishment made was under 5
the Revised CDP-1995. The petitioner has thereafter made an application dated 07.10.2009 to the State Government seeking to advise the BDA to allot the Civic Amenity site on lease basis for 30 years. When that letter had been forwarded to the respondent, the petitioner again made the representation dated 22.08.2011 seeking for allotment under the Revised Master Plan-2015 ('RMP- 2015' for short). The Government granted approval for allotment of Civic Amenity site on 30 years lease basis. Accordingly, the rate as prescribed under the Rules was calculated and the allotment letter was issued. It is the case of the respondents that the RMP-2015 and Zonal Regulations that came into force with effect from 25.06.2007, are prospective in nature. Since the respondent has become the owner much earlier, the request of the petitioner for allotment under RMP-2015 cannot be considered, is their case. The rejection of the request was made pursuant to Resolution in Subject No.199/09 which has not been challenged but, the petitioner sought the Government to direct allotment for 30 years 6 which has been considered in view of the direction issued earlier. Hence, it is contended that the writ petition is liable to be rejected.
4. Heard Sri H Srinivasa Rao, learned counsel for the petitioner and Sri K Krishna, learned counsel for the respondent and perused the petition papers.
5. The undisputed facts are that the approval of the development plan of the petitioner was granted on 19.12.2005 under Resolution No.288/2005 and 25% of the land for parks, open spaces as well as Civic Amenity Area was relinquished under a registered deed dated 10.05.2006 whereunder the land therein has vested with the respondent. As the position stood at that point, if the area reserved for Civic Amenity i.e., the facilities to be provided as contemplated under Section 2(bb) of the BDA Act and the sites carved out therein for the said purpose were to be allotted, the same is to be done as provided under the Rules 1989. It is in that context the petitioner had also made the applications seeking allotment of the Civic Amenity Site initially 7 though it is now contended that it was a mistake due to ignorance. However, the petitioner on learning about the decision in the case of M/s. Golden Gate Properties Ltd., in W.P.No.12689/2007 disposed of on 13.07.2011 relating to another developer has made another representation dated 22.08.2011 for allotment under Regulation 7 of RMP-2015 (Annexure-F). The respondent though has allotted the land indicating in the allotment letter dated 21.01.2012 (Annexure-H) that it is allotted under RMP-2015 Regulation 7.1 (2) and that it should be transferred to the Residents Welfare Association has also indicated the lease rentals payable in different categories for a period of 30 years.
6. By the order passed by this Court in M/s. Golden Gate Properties Ltd., the learned Judge has referred to the provision in the RMP-2015 and Zonal Regulations 2007 with specific reference to Regulation No.7.1 relating to Residential Development Plan. In that case, both the developer and the Residents Welfare Association had made the application for permission from BDA, to maintain the same by the Association. In 8 that context, this Court was of the view that the Rules 1989 would not apply after the RMP-2015 and Zonal Regulations have come into force. The reason indicated therein is that the Regulations-2007 do not deal with disposal of such sites and it is further held that even in the absence of disposal of the said areas by the authority, the maintenance of the said site can be handed over to the registered local resident's association. This Court has ultimately summarised as follows;
" Therefore, when there is no allotment of a civic amenity site, but only the maintenance of the same has to be considered, Regulation 7 of the Master Plan-2015 would apply and not Rules 1989. It is only when a civic amenity site is to be disposed on the basis of lease to be executed by the authority that the 1989 Rules would apply"
Thereafter this Court in para-14 of its order has noticed that in that case, by the representation they are not seeking allotment of the Civic Amenity site which they have relinquished to the BDA and therefore, 1989 Rules pertaining to allotment of Civic Amenity Sites would not 9 apply. Hence, a direction was issued to consider the representation made by the developer as well as the Association in terms of Regulation 7.1 and 7.2. The said observations in my opinion would indicate that the consideration is to be made by the BDA keeping in view the nature of the request made and situation arising in the particular case.
7. Before considering the nature of request by the petitioner in the instant case for the Civic Amenity site, it would be appropriate to consider the position as it stood prior to the RMP-2015 and Zonal Regulations and the present position. The comparative provision as provided by the petitioner themselves is as follows;
1995 MASTER PLAN 2007 MASTER PLAN
REGULATIONS REGULATIONS
Norms for approval of Group 7.1 Regulations for
Housing plan: residential Development
Plan)
The following norms shall be 1) 10% of the land shall be adopted while approving the reserved for park and open layout plan for group housing: space. The open space (park) shall be relinquished The boundary roads if any must to the authority free of have a minimum width of 12 cost and the same may be mtrs allowed to be maintained by the local residents The FAR should be considered association (Registered), if with reference to the width of the Authority so desires the public road abutting the 10 property and the FAR should be 2) A minimum 5% of total calculated after deducting the plot area shall be provided area reserved for parks, open for civil amenities and the spaces and civil amenities owner or developer shall develop such civil The set-backs should be amenities which finally provided with reference to the shall be handed over to the depth and width of total plot local residents association area for maintenance. The mode of such handing over The coverage shall be with shall be decided by the reference to total area of the authority. layout
3) far is calculated on the The distance between the total land area after building should be a minimum deducting civil amenity site of half of the height of the tallest building 4) Parking area requirements shall be as applicable vide 25% of the total area be table No.23 reserved for CA, Parks and open spaces, subject to a 5)Roads as shown in the minimum of 15% for parks Revised Master plan 2015 and open space. shall be incorporated within plan and shall be handed The means of access to the over to the authority free of building blocks in the area of cost.
group housing shall be as follows:
Access length in mtrs Min width Less than 100 mtrs 6 mtrs 100-200 mtrs 9 mtrs More than 200 mtrs 12 mtrs The area reserved for Parks and Open spaces, CA and roads (other than internal access in each sub divided plot) shall be handed over free of cost to the BDA through registered relinquishment deed before issue of work order.11
8. From the above, it is seen that the Regulations-1995 specifies that 25% of the total area be reserved for Civic Amenities, parks and open spaces, subject to a minimum of 15% for parks and open space. In other words, it would be 10% for Civic Amenity. The entire 25% area was to be handed over free of cost to the BDA through registered Relinquishment Deed. In contrast, the Regulation-2007 provides to reserve 10% of the land for parks and open space and that area alone is to be relinquished to the authority free of cost and the same may be allowed to be maintained by the local residents association (Registered), if the Authority so desires and the developer has no role to play once that 10% of land is relinquished. But, in so far as 5% of the total plot area provided for civic amenities, the developer is not required to relinquish as in the case of parks and open spaces, but, is required to develop such civic amenity sites as per the development plan, which shall finally be handed over to local residents association for maintenance. The mode of such handing over shall be decided by the BDA. 12
9. The resultant effect is that in the development plan under Regulation-1995, the developer was required to reserve 25% of the total area at the appropriate places as per the Approved Development Plan and relinquish the same in favour of BDA and any person, including the developer could seek allotment of Civic Amenity sites as per the provisions under Rules 1989. The position remains so insofar as 10% for park and open spaces even under Regulation 2007 though there is no provision for allotment of such area. Insofar as 5% Civic Amenity area, it would have to be developed as provided under the development plan by the owner or developer himself and the question of allotting it would not arise at all. After development, it will be finally handed over to the local residents association for maintenance. Since the mode of handing over is to be decided by the BDA, until such decision is taken, the BDA will have the right over the same on completion of development.
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10. In this background, the representation dated 22.08.2011 (Annexure-F) made by the petitioner needs to be perused. It would at the outset indicate that the petitioner, as the developer has made the request and in the instant case, the Association of residents has not made the request as in the case of M/s. Golden Gate Properties Ltd. Further, the representation indicates that reference is made to the earlier letters and has requested for allotment of Civic Amenity site in their favour for the development of the same for the benefit of apartment owners. This would imply as if the development of the Civic Amenity area has not been made as it was not required under the Regulation-1995, where it was only to be reserved and relinquished, as the plan was approved under the old Regulations. The learned counsel for the petitioner would however contend that the development plan relating to the petitioner was modified once again on 23.07.2007 i.e., after 25.06.2007, the date on which the Regulation- 2007 came into force. The question however is whether the modification of development plan was made on 14 23.07.2007 to bring it in conformity with the Regulations-2007 and if that be so, the further question would be whether the 10% Civic Amenity area reserved and relinquished under the Regulation-1995 was reduced to 5% Civic Amenity area in the modified development plan and whether the development of the Civic Amenity was also approved under the said modified development plan. Prima facie it does not appear to be so since as per the petition averments, the 10% area reserved and relinquished measures 7702.105 sq.mtrs and it is the same extent which has now been leased by the BDA under the allotment letter dated 21.01.2012 (Annexure-H). Therefore, this aspect of the matter is the most relevant position which is required to be kept in perspective.
11. To clarify the position, if the relinquishment made on 10.05.2006 relates to 10% of the area and it has remained so despite the development plan being modified subsequent to 25.06.2007 i.e., the date of Regulation-2007 and if the developer has sought allotment of the same, it can be made only as provided 15 under the Rules 1989. On the other hand, notwithstanding the relinquishment dated 10.05.2006, if the Modified Development Plan approved by the BDA after the new Regulations came into force has reduced the area to 5% for Civic Amenity and if the development of Civic Amenity is made, the allotment under Rules 1989 would not arise but the BDA may take a decision regarding handing over of the developed Civic Amenity sites for maintenance to the Residents Welfare Association as provided under Regulation 7.1 of Regulations - 2007.
12. In that light, the resolution referred and the allotment letter dated 21.01.2012 (Annexure-H) indicates that the BDA itself has not applied its mind in this direction. The allotment letter itself will disclose that the terms of allotment is contradictory to one another. The allotment made thereunder is the extent of 7702.180 sq.mtrs. which relates to the relinquished 10% Civic Amenity area and the purpose for which it is allotted is for Social, Cultural and Community Bhavan in Civic Amenity Site No.1. The lease rental fixed is for 16 long lease as contemplated under the Rules 1989 but at the foot of the allotment letter, it provides that the allotment is made as per Regulation - 7.1 (2) of RMP- 2015 and after allotting on long lease as stated above, it provides that it has to be transferred to Residents Welfare Association within one year after the development is carried out. There is no reference to the request by the Residents' Welfare Association or as to whether such registered Association exists. However, in the objection statement, the ownership of BDA after relinquishment is contended and it is claimed that the allotment is as per Rules 1989, which cannot be reconciled with one another.
13. Hence, on the face of it, the allotment letter dated 21.01.2012 displays lack of application of mind and the same is not sustainable though not in acceptance of the contentions raised by the petitioner in its entirety. The contentions need reconsideration by BDA themselves keeping in view the reasons and criteria indicated above. In that view, the representation dated 22.08.2011 (Annexure-F) needs 17 reconsideration keeping in view the above stated alternatives. The prayer to restore the 15% excess land relinquished however cannot be granted under any one of the alternatives indicated above and the prayer in that regard stands rejected.
14. In the result, the following;
ORDER
(i) The allotment letter bearing No.464 dated 21.01.2012 (Annexure-H) allotting Civic Amenity Site No.1 stands quashed in its entirety.
(ii) The respondent is directed to reconsider the representation dated 22.08.2011 (Annexure-F) in the light of the guidelines and alternatives indicated above and take a decision in accordance with law.
(iii) The writ petition is disposed of in the above terms.
(iv) The parties to bear their own costs.
Sd/-
JUDGE Akc/bms