Karnataka High Court
Sri H V Tejas vs The Bruhat Bengaluru Mahanagara Palike on 19 September, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.10272 of 2020 (BDA)
BETWEEN:
1. SRI H V TEJAS
AGED ABOUT 37 YEAS
S/O SRI H K VENKATASWAMY
NO.77, B T M 2ND STAGE
3RD MAIN, DOLLARS COLONY
N S PALYA
BENGALURU-560 076.
2. SMT. B CHANDRAPRABHA
AGED ABOUT 55 YEARS
W/O SRI D JANARDHAN
NO.360, 24TH 'B' CROSS
9TH MAIN, BSK 2ND STAGE
BENGALURU-560 070.
...PETITIONERS
(BY SRI K. SUMAN, SENIOR ADVOCATE
FOR SRI SIDDARTH SUMAN, ADVOCATE)
AND:
1. THE BRUHAT BENGALURU MAHANAGARA PALIKE
N R SQUARE
BENGALURU-560 002.
REPRESENTED BY ITS COMMISSIONER.
2
2. THE BANGALORE DEVELOPMENT AUTHORITY
SANKEY ROAD, KUMARAPARK WEST
RAJAMAHAL GUTTAHALLI
BENGALURU-560 020.
REPRESENTED BY ITS COMMISSIONER.
3. THE STATE OF KARNATAKA
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA
BENGALURU-560 001.
...RESPONDENTS
(BY SRI SREENIDHI, SENIOR COUNSEL FOR
SMT. SINCHANA M R, ADVOCATE FOR R1;
SRI K. KRISHNA, ADOVCATE FOR R2;
SRI K.R. NITYANANDA, AGA FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
DIRECTION TO THE RESPONDENT NO.2 DIRECTING THEM TO
ISSUE TRANSFERABLE DEVELOPMENTAL RIGHTS IN RESPECT OF
THE SCHEDULE PROPERTY AS QUANTIFIED IN FORM-III ISSUED
BY THE BDA AND TO ISSUE SUCH DRC WHICH SHALL BE
UTILISED IN THE LOCAL PLANNING AREA OF THE BANAGLORE
(BDA PLANNING AUTHORITY) TO THE PETITIONERS, WITHIN
SUCH TIME AS MAY BE FIXED BY THIS HON'BLE COURT; AND
ETC.
IN THIS PETITION ARGUMENTS BEING HEARD, JUDGMENT
RESERVED, COMING ON FOR "PRONOUNCEMENT OF ORDERS",
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, petitioners are seeking writ of mandamus or direction to the second respondent-BDA to issue 3 Transfer of Development Rights (for short hereinafter referred to as the 'TDR') in respect of the schedule property in terms of Form-III issued by respondent-BDA and consequential relief. Alternatively, petitioners have sought for a direction to respondents claiming monetary compensation as per Section 40(5) along with interest under Section 80 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement, Act, 2013, (for short, hereinafter referred to as "2013 Act") in respect of the schedule property along with damages. The writ petition was amended by incorporating an additional prayer, challenging the order dated 02nd December, 2020 issued by the 3rd respondent-Government (Annexure-S) as without jurisdiction.
2. The factual matrix of the case is that, petitioners claim to be owners in possession of the property bearing BBMP katha No.3317/103/02 (Old Survey.No.103/2 of Gottigere village) measuring to an extent of 2.27 acres situate at Gottigere village, Bangalore South Taluk. Petitioners have purchased the schedule property as per the sale deed dated 17th March, 2016, registered 4 on 13th November, 2018 as per Annexure-A. Thereafter, petitioners have changed the nature of the land to non- agricultural/commercial purpose as per the certificate dated 26th August, 2015 (Annexure-B) issued by the BMICAPA (Planning Authority) and in this regard, Official Memorandum was issued on 11th January, 2016 by the Deputy Commissioner, Bangalore Urban District, Bengaluru. It is further averred that the schedule property situate in the limits of respondent No.1-Bruhat Bengaluru Mahanagara Palike (for short hereinafter referred to as "BBMP") and the Revenue Records stand in the name of the petitioners. It is further stated that the respondent No.1-BBMP has undertaken expansion of the Bennerughatta Road for implementing the proposals of the approved Master Plan/Proposal as per the Scheme of Acquisition of Land by giving Transfer of Development Rights (for short hereinafter referred to as "TDR") in lieu of monetary compensation under the 2013 Act, as per the Government Order dated 21st June, 2016 and in terms of the said Government Order dated 21st June, 2016 (Annexure- G), the schedule property was identified for acquisition for expanding Bannerughatta Road as per Section 14-B of Karnataka 5 Town and Country Planning Act, 1961 (for short hereinafter referred to as the "KTCP Act") read with Karnataka Town and Country Planning (Benefit of Development Rights) Rules, 2016 (for short hereinafter referred to as the "2016 KTCP Rules,"). It is the case of the petitioners that though the 2016 KTCP Rules are issued, however, as per the Circular dated 01st June, 2017 issued by the respondent No.1-BBMP, in respect of properties coming under the limits of the respondent No.1-BBMP, the respondent No.2-Bangalore Development Authority (for short hereinafter referred to as "BDA") is the Planning Authority to issue TDR. It is further stated in the writ petition that the respondent No.2-BDA has issued notification identifying certain lands including the land belonging to the petitioners at Gottigere village for acquisition and as such, the petitioners had given consent for acquisition of the land on the basis of claiming compensation by way of development rights by the respondent No.2-BDA. In pursuance of the same, the respondent No.1- BBMP has issued Form-II recommending to issue development rights and therefore, the case of the petitioner is that, respondent No.2-BDA is the competent authority to issue 6 Development Right Certificate (for short hereinafter referred to as the "DRC") as per Form-II dated 06th March, 2019. Respondent No.2-BDA has fixed quantum of compensation as per the 2016 KTCP Rules on 30th April, 2019 (Annexure-L). Thereafter, the petitioners have approached the State Government seeking issuance of TDR by the respondent No.2- BDA as the respondent-authorities did not proceed to take any decision in the matter as per the representation dated 11th November, 2019. In view of issuance of Form-III dated 30th April, 2019, petitioners have also executed Relinquishment Deed dated 15th February, 2020 in Form-XII in favour of the first respondent on the premise that the respondents would issue DRC in terms of Form-III issued by the respondent No.2-BDA (Annexure-N). The grievance of the petitioners is that though the land belonging to the petitioners has been acquired and utilised for the purpose of widening of Bannerughatta Road, but are now contending that respondent No.2-BDA has no authority to issue TDR, however, no official communication has been received by the petitioners in this regard. Immediately thereafter, petitioners approached the respondent-authorities, 7 seeking issuance of TDR as per Annexure-P. It is the grievance of the petitioners that the respondent-authorities have misconstrued Appendix-I of the 2016 KTCP Rules and informing that the said KTCP Rules, 2016 do not provide for issuance of TDR by BMICAPA and after having executed the relinquishment deed, the respondents are recused from issuance of DRC on the ground that the planning question is within the limits of BMICAPA and the said action on the part of the respondents is contrary to law. It is also stated that the petitioners have filed Appeal under Rule 8 of the KTCP Rules 2016, before the third Respondent-Appellate Authority as per Annexure-Q. The grievance of the petitioners is that the third respondent- Appellate Authority has neither passed any orders on the Appeal preferred by the petitioners nor issuing DRC/TDR, as contended by the petitioners. Hence, the present writ petition is filed. The petitioners have also challenged the Proceedings of Meeting of the third respondent dated 02nd March, 2020 (Annexure-S).
3. Respondents have filed statement of objections. It is the specific defence of the respondent No.2-BDA that, the BDA has 8 issued Form-III inviting objections from the general public for the purpose of issuance of Development Rights Certificate, however, the BDA has not quantified the development right. It is also pleaded that as the property in question comes under the jurisdiction of local planning area of BMICAPA and not under the local planning area of BDA, and therefore, the respondent No.2- BDA has no role to play in the matter. The specific allegation made by the respondent No.2-BDA that the respondent No.1- BBMP, without jurisdiction, has allowed the land for conversion and therefore, it reiterates that Form-III was issued by the respondent No.2-BDA inviting objections and suggestions in the matter of development works. It is further stated that the respondent No.2-BDA has returned the entire proceedings to the respondent No.1-BBMP stating that the land in question comes within the purview of the BMICAPA. It is also stated in the objection statement that, the state Government, as per letter dated 09th April, 2020, accorded approval for change of land for commercial purpose, however, the same is subject to certain restrictions. It is also pleaded in the statement of objections that the appeal in No.14/MNG/2020 filed by the petitioners 9 before the respondent No.3-Appellate Authority, was dismissed on 21st September, 2020 and therefore, in terms of the direction issued by the Government, the respondent No.2-BDA is not the competent authority to issue DRC/TDR and therefore, sought for dismissal of petition.
4. The respondent No.1-BBMP in its statement of objections has contended that BDA, BBMP and BMICAPA have submitted reports to the State Government and same has to be considered by the State Government. It is also stated by the BBMP that the State Government has not approved any plan/proposal for construction of Bus Terminal or Flyover in the extent of land and therefore, submitted that the respondent No.2-BDA is not the competent authority to issue TDR and it is the specific contention of the Respondent No.1-BBMP that BMICAPA alone is the authority to issue TDR under the KTCP Act and accordingly, sought for dismissal of the petition.
5. Heard Sri K. Suman, learned Senior Counsel appearing for Sri Siddarth Suman, appearing for the petitioner; Sri K. Krishna, Learned Counsel for the respondent No.2-BDA; Sri 10 Sreenidhi, learned counsel appearing for the respondent No.1- BBMP and Sri K.R. Nityananda, learned Additional Government Advocate, for respondent-State.
6. Sri K. Suman, learned Senior Counsel appearing for the petitioner argued that the land in question bearing BBMP katha No.3317/103/2 (Old Survey.No.103/2 of Gottigere village) measuring to an extent of 2.27 acres situate at Bannerughatta Road, was changed from Park purpose to non-agricultural commercial purpose as per Official Memorandum dated 11th January, 2016. He further contended that the land in question is situate within the limits of Bruhat Bengaluru Mahanagara Palike and therefore the BBMP has issued khata in favour of the petitioners. Emphasising on these facts, learned Senior Counsel further contended that as per Notification dated 21st June, 2016 approval was accorded by the Government for widening of Bannerughatta Road and the property in question was identified for acquisition as per Section 14-B of KTCP Act read with KTCP Rules, 2016. In this regard, the learned Senior Counsel invited the attention of the Court to Annexure-B to the writ petition, 11 particularly with reference to condition No.3, and argued that as per Government Order dated 18th January, 2015, the BMICAPA is not competent authority to issue TDR. He also invited the attention of the Court to the Circular dated 01st June, 2017 issued by the respondent-BBMP and drew the attention of the Court with reference to the Government Order dated 18th January, 2015 and 10th September, 2015 and argued that the respondent No.2-BDA alone is the competent authority to issue TDR in respect of the property situate within the vicinity of the Bruhat Bengaluru Mahanagara Palike. He further contended that Section 14B(2) of the KTCP Act provides for benefit of development rights and in terms of the said provision, local planning area is the Bangalore Development Authority and if at all the BMICAPA is the competent authority to issue TDR, no such notification has been issued by the Government to that effect. In furtherance of the same, the learned Senior Counsel submitted that Section 14B(6) of the KTCP Act enumerates for surrender of the property by the owner inter alia seeking compensation under the Right to Fair compensation and Transparency in Land Acquisition, Rehabilitation and 12 Resettlement Act, 2013. Emphasising on these aspects, learned Senior Counsel invited the attention of the Court to the definition clause in Section 2(7) of the KTCP Act which provides for the authorities considered to be as Planning Authority and as per Section 2(7)(a)(i) of the KTCP Act, the authority is the Bangalore Development Authority. In this regard, he also refers to Appendix-I of KTCP Rules, 2016. The learned Senior Counsel also invited the attention of the Court to the statement of Objections filed by respondent No.2-BDA and argued that the competent "authority" to issue TDR is the Bangalore Development Authority and not BMICAPA and in this regard he invited the attention of the court to Notification dated 30th April, 2019 (Annexure-L). Continuing his submission with regard to the same, Sri K. Suman, learned Senior Counsel, invited the attention of the Court to the proceedings dated 17th November, 2020 held under the Chairmanship of the Additional Chief Secretary, Urban Development Department, wherein as per the direction issued by this Court on 06th November, 2020, he contended that the finding recorded by the Government that the petitioners have concealed the true facts from Bruhat Bengaluru 13 Mahanagara Palike is misnomer and the said finding is without jurisdiction. Elaborating on these facts, making submission on the impugned Proceedings Annexure-S dated 02nd December, 2020 passed by the Government, learned Senior Counsel submits that the Proceedings Annexure-S do not specify the fact as to who is the competent authority to issue TDR and therefore, he sought for direction to the respondent No.2-BDA to issue TDR in respect of the petition schedule property. Learned Senior Counsel, further contended that the order dated 17th November, 2020 passed by the respondent-Government is without jurisdiction and no cogent reasons have been given while passing the said order. The conclusion arrived at by the Government in the impugned proceedings dated 17th November, 2020 is contrary to the direction issued by this Court on 06th November, 2020. The Government, without considering the stipulation under Section 69 of the KTCP Act, held that the respondent No.2-BDA is not the competent authority to issue DRC for the property in question and therefore, he argued that once the relinquishment deed dated 05th February, 2022 has been executed and registered in favour of the respondent No.1- 14 BBMP, the Government has no authority to direct the respondent No.2-BDA to modify the same restricting the area acquired by them. In support of his contention, learned Senior Counsel placed reliance on the following judgments:
1. BELGAUM, A.G v. PLANNING AUTHORITY, HUBLI-DHARWAR reported in KLJ 1976(2) 178;
2. WPs No.8804-8815 of 1996 decided on 31.08.1998;
3. WP No.3254 of 2005 and connected writ petition decided on 13.04.2016;
4. WP No.48258 of 2018 decided on 27.05.2022;
7. Per contra, Sri K. Krishna, learned counsel appearing for the respondent-BDA invited the attention of the Court to paragraphs 5 and 7 of the statement of objections of respondent No.2-BDA and contended that the land in question comes under the purview of BMICAPA and the execution of the relinquishment deed would arise only after the Planning Authority calculates the area of development rights that the petitioners are entitled to, and further referring to Annexure-B dated 26th August, 2015, learned Counsel argued that as per clause (3) therein, the competent authority to issue DRC/TDR is BMICAPA and in this 15 regard, he refers to Sections 14A and 14B of the KTCP Act. He further contended that the respondent No.2-BDA has addressed letter to the Government for the purpose of widening of Bannerughatta Road and for establishment of Bus Terminal. Accordingly, he sought for dismissal of the writ petition.
8. Sri K.R. Nityananda, learned Additional Government Advocate argued, reiterating the submission made by Sri K. Krishna counsel for the respondent No.2-BDA and placed reliance on the judgment of the Hon'ble Apex Court in the case of KOLHAPUR MUNICIPAL CORPORATION AND OTHERS v.
VASANT MAHADEV PATIL (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2022)5 SCC 758 and sought to justify the impugned order Annexure-S dated 02nd December, 2020 passed by the Government.
9. Sri Sreenidhi, learned counsel appearing for the respondent No.1-BBMP, argued that the Planning Authority to issue the DRC/TDR is the BMICAPA and in this regard he referred to Chapters 3 and 9 of the KTCP Act. Emphasising on this aspect, by inviting the attention of the Court to Section 12 of the 16 KTCP Act, learned counsel submitted that the approval of Government is mandatory. However, he submitted that no prior approval is required by the Government.
10. In reply to the submission made by the learned counsel appearing for the respondent No.1-BBMP, learned Senior Counsel appearing for the petitioner, Sri K. Suman, submitted that the Master Plan-2015 was issued by Bangalore Development Authority and not BMICAPA and the Government has to approve the action of the respondent-authorities and no prior approval is required by the Government. He also argued on the aspect relating to approval and prior approval by the Government. He further contended that since the DRC is yet to be issued in the present case, the submission made by the learned counsel appearing for the respondent-BBMP cannot be considered. Distinguishing the judgment referred to by the learned Additional Government Advocate in the case of KOLHAPUR MUNICIPAL CORPORATION (supra), learned Senior Counsel argued that paragraph 40 of the said judgment would indicate issuance of declaration under Section 19 of the 2013 Act, to pay 17 compensation to the land owners, and accordingly, sought for quashing the Proceedings at Annexure-S dated 02nd December, 2020.
11. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the writ papers and the questions to be answered in this writ petition is, Whether the petitioners have made out case for issuance of writ of mandamus against the respondent No.2-BDA seeking DRC/TDR or in the alternative, petitioners are entitled for compensation under 2013 Act?
12. It is not in dispute that the petitioners herein are the owners in possession of the commercial property bearing BBMP khata No.3317/103/2 (Old Survey No.103/2 of Gottigere village) measuring 2.27 acres situate at Gottigere village, Bannerughatta Road, Bangalore South Taluk and the same was changed to non- agricultural commercial purpose as per Annexure-B and C passed by the BMICAPA and Deputy Commissioner, Bengaluru, respectively. At Annexure-B, the condition No.3 stipulated therein, reads as under:
18
"3. ¥Àæ²ßvÀ d«ÄäUÉ ºÉÆA¢PÉÆAqÀAvÉ 23.8 «ÄÃ. CUÀ®zÀ gÀ¸ÉÛAiÀÄ£ÀÄß 45.0«ÄÃ.UÉ «¸ÀÛj¸À®Ä ¨ÉAUÀ¼ÀÆgÀÄ C©üªÈÀ ¢Þ ¥Áæ¢üPÁgÀzÀ ªÀĺÁAiÉÆÃd£ÉAiÀÄ°è ¥Àæ¸ÁÛ¦¹zÀÄÝ, ¸ÀzÀj gÀ¸ÉÛ «¸ÀÛgÀuÉUÉ ¥Àæ²ßvÀ d«Ää£À°è ¨ÉÃPÁzÀ CªÀ±ÀåPÀ eÁUÀªÀ£ÀÄß ¸ÀA§A¢ü¹zÀ ¥Áæ¢üPÁgÀPÉÌ ¥ÀÄPÀÌmÉAiÀiÁV ©lÄÖPÉÆqÀvÀPÀÌzÀÄÝ."
(emphasis supplied)
13. Reference to Government Order dated 18th August, 2015 was made in Annexure-B to the writ petition. It is also not in dispute that the schedule property is in the limits of respondent No.1-BBMP. The Government had undertaken work of widening of Bannerughatta Road as per the approved Master Plan/proposals of the Local Authority on the scheme of acquisition of land by giving TDR in lieu of monetary compensation under 2013 Act as per Government Order dated 21st June, 2016 (Annexure-G). The schedule property was identified for acquisition for development/expansion of Bannerughatta Road as per Section 14B of the KTCP Act. In terms of KTCP Rules, 2016, the public authority notified at Appendix-I in Form-I stating the details of area required by the said authority within the Corporation (BBMP) limits, wherein the 19 owners of the land are entitled for benefit of Development rights (Annexure-H). Notification-I dated 18th February, 2019 (Annexure-J) and Form-II (Annexure-K) issued by the respondent No.1-BBMP confirm the right of the petitioners seeking entitlement of TDR in lieu of acquisition of their land by the respondent-authorities for expansion of the Bannerughatta Road. On careful examination of Annexure-L issued by respondent No.2-BDA in Form-III under Sub-rule (3) of Rule 3 of KTCP Rules, 2016 bearing No.BDA/TDR Cell/Form-III/06-2019- 20 dated 30th April, 2019 stipulates surrender of land by the owners to an extent of 10826.20 square meters. It is also not in dispute that the petitioners herein have executed Relinquishment Deed dated 15th February, 2020 (Annexure-N) as per Sub-rule (4) of Rule 3 of KTCP Rules, 2016 for grant of TDR Certification for the land surrendered by the property owners to the Government. The grievance of the petitioners is that the respondents 1 and 2 have not taken specific steps for issuance of TDR or in the alternative passed award of compensation under 2013 Act, and accordingly, approached the Government as per their representation dated 11th November, 2019 to settle the 20 issue with regard to DRC/TDR. Since the authorities have not taken any steps, the petitioners have presented this petition and this Court, on 06th November, 2020, passed the following order:
"Learned State Counsel filed a memo dated 06.11.2020 for production of documents and he is directed to serve copy of the same to the petitioners counsel so also to contesting respondents.
On 21.09.2020, State Government issued direction to both BBMP and BDA who are the public authority and planning authority respectively to take note of the direction given by the Government order dated 09.04.2020 and to pass a detailed order clarifying the issue raised by the State Government so also the petitioners.
At this juncture, learned counsel for the petitioners pointed out from para No.7 of the statement of objection filed by the BDA. Before BDA takes any action, BMICAPA is required to take a decision.
In this regard, order of the State Government dated 21.09.2020 is silent. Therefore, State Government is hereby directed to take note of para No.7 of the statement of objection filed by the BDA and resolve the issue. The State Government is hereby directed to take note of the three authorities i.e., BDA, BBMP and BMICAPA and its role in the matter and issue appropriate 21 directions to each of the authority within a period of four weeks.
Re-list this matter on 07.12.2020 for further consideration.
Copy of this order be made available to the State Counsel - Respondent No.3."
(emphasis supplied)
14. In furtherance of the same, the Additional Chief Secretary, Department of Urban Development, conducted proceedings and passed order dated 02nd December, 2020 (Annexure-S) holding that the request of respondent No.2-BDA for transfer of jurisdiction of the property in question from BMICAPA to BDA cannot be considered. Petitioners herein have also challenged the said proceedings dated 02nd December, 2020 (Annexure-S) after amending the writ petition. I have carefully examined the reasons assigned by the respondent-State as per paragraph (viii) at Proceedings Annexure-S. The reasons assigned by the Additional Chief Secretary to Government, Department of Urban Development, Government of Karnataka with regard to issue No.1 cannot be accepted as to direct the 22 petitioners herein to release the land with free of cost since the said finding recorded by the said authority is contrary to Article 300A of the Constitution of India. In this regard, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of VIDYADEVI v. STATE OF HIMACHAL PRADESH , reported in (2020)2 SCC 569, wherein at paragraph 12.2-12.6 of the judgment, it is held as follows:
"12.2 The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right 2 in a welfare State, and a Constitutional right under . Article 300A of the Constitution. Article 300A A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300A, can be inferred in that Article.
12.3 To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. V. Darius Shapur Chenai, wherein this Court held that:23
" 6. ... Having regard to the provisions contained in. Article 300A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid."
12.4 In N. Padmamma v. S. Ramakrishna Reddy, this Court held that:
"21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. . Article 300A divest such right, keeping in view of the provisions of . Article 300A of the Constitution of India, must be strictly construed." (emphasis supplied) 12.5 In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P., this Court recognized the right to property as a basic human right in the following words:
"30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property."Property must be secured, else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists." (emphasis supplied) 12.6 In Jilubhai Nanbhai Khachar v. State of Gujarat, this Court held as follows :24
"48. ...In other words, . Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300A . In other words, if there is no law, there is no deprivation."
15. In addition to this, this Court in the case of DR.ARUNKUMAR B.C. v. STATE OF KARNATAKA made in writ petition No.9408 of 2020 and connected writ petitions disposed of on 17th January, 2022 has held thus:
"17. The properties in question are earmarked for the purpose of widening of road in the revised Master Plan 2015 under Section 12(1)(b) of the KT and CP Act. Section 17(3) of the KT and CP Act specifies that the owner is not entitled for compensation while sanctioning a single plot. However, reading of Section 17 of KT & CP Act in its entirety does not specify that the land earmarked as road in the master plan will have to be relinquished free of cost or that the owner is not entitled for compensation while sanctioning the layout plan. Section 17(3) is applicable only to lands enumerated in Section 17-2A like parks, open space, roads formed within the layout and civic amenity site.25
18. Section 70 of the KT and CP Act specifies that land needed for the purpose of Town Planning Scheme or master plan shall be deemed to be land needed for public purpose within the meaning of Land Acquisition Act, 1894. Section 71 of the KT and CP Act specifies that the State Government can acquire land included in the scheme by taking recourse to the provision contained in Land Acquisition Act 1894 subject to payment of compensation to the owners of the lands.
19. A conjoint reading of Sections 12, 17(3), 70 and 71 indicate that if any land needed for the purpose of Town Planning Scheme or master plan shall be acquired by the Government by taking recourse to the provisions of Land Acquisition Act, 1894 subject to payment of compensation to the owners of the land. Section 17(3) of the Act does not specify that the property earmarked for widening of the road requires it to be surrendered free of cost at the time of sanctioning of the single plot.
20. The term Residential Development Plan under the Regulations 2015 is defined as plan containing proposal for construction of one or more residential building on a plot measuring more than 20000 sq. meter in an extent and the term Non-residential Development Plan is defined as plan containing proposal for construction of one or more commercial building on a plot size measuring more than 20000 sq. meter.26
21. Chapter 7 of the Regulations 2015 deals with the Regulations for residential development plan and non- residential development plan. Regulation 7.1(5) and 7.2(d) specify that the road as shown in the Master Plan 2015 shall be incorporated within the plan and shall be handed over to the authority free of cost.
22. A reading of the definition of Development Plan and Regulations 7.1(5) and 7.2(d) indicate that it is a condition precedent to incorporate the road shown in the Master Plan - 2015 in the plan and shall be handed over free of cost to the respondent - BBMP. However, these Regulations are applicable only to Development of lands, the extent of which is more than 20000 sq. meters in respect of residential plan and the extent of which is more than 12000 sq. meters in respect of non-residential plan.
23. In the present cases, the extent of land sought to be developed for residential/commercial purposes is far less than the extent of land specified in the definition development plan. Hence, the Regulations 7.1(5) and 7(2)(d) of the Regulations 2015 are not applicable and cannot be invoked requiring the petitioners to relinquish the properties in question free of cost to the respondent - BBMP.
24. The Circular dated 29.2.2016 requiring the owners to surrender the properties earmarked for widening of road free of cost at the time of sanctioning of 27 building plans violates Article 300A of the Constitution of India. The Apex Court in the case of KT Plantation (supra) has held that the owner of immovable property cannot be deprived of his property by mere executive order without any specific legal authority or support by competent legislation. In the absence of specific legal authority or support by competent legislation, the impugned Circular issued by the respondent - BBMP violates Article 300A of the Constitution of India.
25. Even otherwise, the impugned endorsements and circulars issued by BBMP is arbitrary and discriminatory since the owners of the properties earmarked as Road in Master Plan 2015 and who have not applied for sanctioning of building plan for developing their properties will be entitled for compensation under Section 71 of KT & CP Act, if the said properties are acquired for implementing the Master Plan. The petitioners cannot be deprived of their properties earmarked as road in the revised Master Plan, 2015 merely because they intend to develop their properties by obtaining sanctioned building plan.
26. In view of preceding analysis, I am of the considered view that the impugned endorsements issued by the respondent - BBMP requiring the petitioners to relinquish the properties in question free of cost as a condition precedent for processing their applications for sanctioning of building plans is without authority of law 28 and the same violate Article 300A of the Constitution of India. Accordingly, I pass the following:
ORDER
i) Writ petitions stand allowed:
ii) The Circular dated 29.2.2016 issued by the 2nd respondent vide Annexure-A & endorsement dated 20.5.2020 issued by respondent No.3 vide Annexure-B in WP No.9408/2020, endorsement dated 24.6.2021 issued by respondent No.2 vide Annexure-G in WP No.14095/2021, the order dated 18.12.2020 passed by respondent No.2 vide Annexure-A in WP No.14975/2021 and Circular dated 29.2.2016 vide Annexure-
E issued by respondent No.2 in W.P. No.19737 of 2021 are hereby quashed;
iii) The respondent - BBMP is directed to process the applications submitted by the petitioners for sanctioning the building plans and pass appropriate order in accordance with law within a period of two months from the date of receipt of certified copy of this order."
16. In view of the discussion made by this Court in the above stated decision and following the dictum of the Hon'ble Apex Court, it is an obligation on the part of the respondent- authorities, to acquire the property by making compensation. The Hon'ble Supreme Court in the case of VIDYADEVI (supra) has held that depriving Article 300A of the Constitution of India by the respondent-authorities, tantamount to violation of human 29 rights and constitutional right and in that view of the matter, I find force in the submission made by the learned Senior Counsel for the petitioner. I have also noticed from Annexure-S whereby the competent authority has held that the petitioners have concealed the facts from the respondent No.1-BBMP before issuing Form-I. Whether such a conclusion be arrived at without providing an opportunity to the petitioners, is another aspect that needs to be considered in the present writ petition. After careful consideration of the entire proceedings dated 02nd December, 2020 (Annexure-S), there is no discussion about the concealment of the facts by the petitioner and if at all, such decision is to be arrived at by the competent-authority, before arriving at such a conclusion, an opportunity ought be given to the petitioners to provide adequate details. In that view of the matter, arriving at such a conclusion that the petitioners have concealed the facts from respondent No.1-BBMP without hearing the petitioners, amounts to violation of principles of natural justice and therefore, the direction issued by the competent authority to the respondent No.1-BBMP cannot be accepted. I have also noticed from the Circular dated 01st June, 2017 by 30 respondent-BDA (Annexure-H), wherein it is stated by referring to Clauses 1 and 2 referring to Government order dated 18th January, 2005 and 10th September, 2015 and also in the said circular reference has been made to Section 14B of KTCP Act, wherein it is stated that the respondent-BDA is the competent authority to issue TDR/DRC in respect of the properties situate in respondent No.1-BBMP limits and therefore, I am of the view that the though the learned counsel appearing for the respondent No.2-BDA vehemently contended that Bangalore Development Authority is not competent authority and BMICAPA alone is the competent authority to issue DRC/TDR, however, the same is contrary to Anenxure-H dated 01st June, 2016 and the Notification dated 30th April, 2019 by the respondent No.2- BDA and therefore, I do not find any force in the submission made by the learned counsel appearing for the respondents. It is well established principle in law that respondent N.2-BDA is the statutory authority inter alia being an instrumentality of State under Article 12 of the Constitution of India, is required to follow the principles of law and the rule of law . I have also noticed from the arguments advanced by the learned counsel for 31 the parties whether pre-condition to execute of relinquishment deed is recognised under law as the same would violate Article 300-A of the Constitution of India. This Court, in the case of DR. ARUNKUMAR (supra) answered the same negatively. In that view of the matter, I am of the view that the petitioners have made out a case for issue of writ of mandamus to the respondent-authorities to issue DRC/TDR by the respondent-BDA and BMICAPA is not the competent authority to issue the DRC/TDR. At this juncture, it is pertinent to deduce paragraph 3 of the judgment rendered by this Court in the case of BELGAUM, A.G. (supra), which reads as under:
"3. But, in this case, the Planning Authority has imposed a condition that the area ABCD in the provisionally approved plan, which has been designated as District Centre should be handed over by the petitioner to the Corporation free of cost. If the Planning Authority cannot itself acquire the area ABCD without paying the price for it in accordance with Section 69 of the Act, it is plain that it cannot direct the petitioner to hand over the said area free of cost to another body viz., the Corporation. The Planning Authority was well within its rights in taking the view that no lay out can be permitted on the area marked as ABCD in the provisionally 32 approved plan, in as much as the same has been designated in the Outline Development Plan for a public purpose viz., District Centre. Though the Planning Authority was right to that extent, it is clear that it was not entitled to impose a further condition that the said area should be given free of cost by the petitioner to the Corporation, in as much as the imposition of that condition is clearly opposed to the provisions of Section 69 of the Act. I have, therefore, no hesitation in taking the view that the impugned condition imposed by the Planning Authority being opposed to the provisions of the Act is clearly illegal and invalid. If the Planning Authority had correctly understood the provisions of law and had realised that it could not impose the impugned condition, it is reasonable to presume that it has sanctioned the approval without the impugned condition to the effect that the petitioner should surrender the area ABCD marked in the plan to the Corporation free of cost. Hence, the severable portion of the condition imposed by the Planning Authority can be quashed."
17. I have also given my anxious consideration to the arguments addressed by the learned Additional Government Advocate placing reliance in the decision of Hon'ble Apex Court in the case of KOLHAPUR MUNICIPAL CORPORATION (supra) wherein, the observation made at paragraph 40 of the said judgment, reads thus:
33
"40. Even otherwise, in the facts and circumstances of the case, the High Court had erred and/or the High Court was not justified in directing the Municipal Corporation to acquire the land in question and to issue a declaration under Section 19 of the Act of 2013 and to pay compensation under the Act of 2013. It is to be noted that right from the very beginning it was stated in the counter before the High Court that the land in question was not suitable and/or usable for the purposes for which it has been reserved. It was specifically pointed out that the subject land is flood affected through which a rivulet named 'Jayanti Nala' passes, making it unsuitable for the public purposes for which it was reserved. It was also specifically pointed out that unless and until the substantial development is carried out, the land in question is not usable at all. It was also specifically pointed out that the reserved area is coming within High Flood Line and every year for a period of fifteen days to one month, the said area gets flooded during rainy season. In that view of the matter, the High Court ought not to have directed the Corporation to still acquire the land and pay the compensation to the original landowners though the land in question is unsuitable and unusable for the public purposes for which it has been reserved."
18. In the aforementioned decision, the facts would reveal that, the land in question was not suitable or usable for the purpose for which it has been reserved. However, in the present 34 case, the factual aspect is contrary to the facts on record and further perusal of paragraph 40 is self-explanatory and as such, I am of the view that the respondents cannot rely upon the same. Therefore, I am of the view that the petitioners herein have made out a case for issuing direction to the respondent in the nature of writ of mandamus directing the respondent No.2- BDA to issue TDR in respect of the schedule property as quantified in Form-III by the Bangalore Development Authority as per Annexure-L dated 30th April, 2019 or alternatively, as rightly contended, the petitioners are entitled for compensation under the provisions of 2013 Act in respect of the land acquired by the respondent-authorities for the purpose of widening of Bannerguhatta Road. In the result writ petition allowed. Ordered accordingly.
Sd/-
JUDGE lnn