Karnataka High Court
Smt Padmavathi vs The Commissioner on 20 November, 2024
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2024:KHC:47153
WP No. 13558 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 13558 OF 2022 (LB-BMP)
BETWEEN:
1. SMT PADMAVATHI
W/O SRI. C.S. HARIKUMAR
R/AT 91/4 ANANDAVANA ESTATE,
DEVAKI NIVAS,
NAGASANDRA POST,
BENGLAURU 560 073
2. SRI. SHANMUGA SHYAM S.H
S/O SRI. C.S. HARIKUMAR
R/AT NO. 90/4, DEVAKI NIVAS,
ANANDAVANA ESTATE,
Digitally NAGASANDRA POST,
signed by
VANAMALA BENGALURU 560 073
N
...PETITIONERS
Location:
HIGH
COURT OF (BY SRI. SUBRAMANYA S UPASANA., ADVOCATE)
KARNATAKA
AND:
1. THE COMMISSIONER
BRUHATH BENGALURU MAHANAGARA PALIKE
N.R SQUARE,
BENGALURU
KARNATAKA 560002
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NC: 2024:KHC:47153
WP No. 13558 of 2022
2. THE ASSISTANT REVENUE OFFICER
BRUHATH BENGALURU MAHANAGARA PALIKE,
DASARAHALLI SUB DIVISION,
4th CROSS, JAIN TEMPLE ROAD,
T DASARAHALLI
BENGALURU 560 057
...RESPONDENTS
(BY SRI. JAGADEESWARA N R., ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO DECLARE THAT THE CIRCULAR OF
THE R-1, DTD. 01.07.2014 AT ANNX-H AND
CIRCULAR OF THE R-1 DTD. 20.10.2014 AT ANNX-G
HAS NO APPLICATION IN SO FAR AS BIFURCATION
OF KATHAS OF SCHEDULE-A AND B PROPERTIES;
CONSEQUENTLY QUASH THE ENDORSEMENT
BEARING DTD. 24.05.2022 ISSUED BY THE
ASSISTANT REVENUE OFFICER, BBMP,
DASARAHALLI SUB-DIVISION, AT ANNX-F OR IN
THE ALTERNATIVE DECLARE THAT THE CIRCULAR
OF THE R-1 DTD. 20.10.2014 AT ANNX-G ULTRA-
VIRES THE KARNATAKA MUNICIPAL
CORPORATIONS ACT, 1976 AND BRUHUTH
BANGALORE MAHANAGARA PALIKE ACT, 2020.
THIS PETITION, COMING ON FOR
PRELIMINARY HEARING, THIS DAY, ORDER WAS
MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD
ORAL ORDER
The petitioners have acquired an extent of 66,856.69 Sq. Ft. of land [out of the total extent -3- NC: 2024:KHC:47153 WP No. 13558 of 2022 measuring 5 acres and 8 guntas] in Sy.Nos.90/1, 90/2, 90/3 and 90/4 of Bagalgunte Village, Yeshwanthpura Hobli, Bengaluru North Taluk under the Gift Deed dated 21.04.2022. The petitioners have approached the Bruhat Bengaluru Mahanagara Palike [BBMP] for consequential bifurcation of Katha issued for the larger property, and the second respondent has issued the impugned Endorsement dated 24.05.2022 [Annexure-F].
2. The second respondent, in issuing this impugned Endorsement, has informed the petitioners that 'A' Katha is issued for the total extent of 5 acres 8 guntas and they cannot be given the benefit bifurcation of Katha based on the Gift Deed/Partition Deed/Sale Deeds. Sri. Subramanya S. Upasana, the learned counsel for the petitioners, submits that the decision to refuse the petitioners' request for bifurcation of 'A' Katha issued for the larger property is because of a Circular dated 20.10.2014 [Annexure- -4-
NC: 2024:KHC:47153 WP No. 13558 of 2022 G] but this Circular cannot be made applicable to the present case inasmuch as the petitioners' predecessor-in-interest has already paid the betterment charges and is issued with 'A' Katha for the larger property in view of the fact that this larger property is diverted from agricultural to residential purposes.
3. Sri. Jagadeeswara N. R., a learned standing counsel for the BBMP and its Officers [the respondents], relies upon a decision of a Co-ordinate Bench of this Court in W.P.No.23418/2021 [which is decided on 24.11.2022] to contend that if Katha issued for a larger property is to be bifurcated, the concerned must necessarily obtain approval from the Planning Authority viz., the Bangalore Development Authority [BDA].
4. The petitioners' grievance as against the impugned Endorsement is considered in the light of these rival submissions. The second respondent -5- NC: 2024:KHC:47153 WP No. 13558 of 2022 could not have referred to the Circular dated 20.10.2014 inasmuch as the petitioners' predecessor- in-interest has paid betterment charges and is issued with Katha for the larger property. However, the question is: can the petitioners insist on bifurcation of Katha issued for the larger property only because they have the advantage of a Gift Deed executed by the Kathedhar [their predecessor-in-interest] and the predecessor-in-interest has paid betterment charges for the larger property.
5. This question must be answered in the light of Bye-law 7.1 Note (ii) of the BBMP Building Bye-laws - 2003, and the provisions of Section 17 of the Karnataka Town and Country Planning Act, 1961 [for short, 'the KTCP Act'] along with the definition of a 'Plot' under this Act which reads as under:
Bye-law 7.1(ii) "If the proposed use of the building on the site does not conform to the land use proposals of the development plan or zoning regulations, -6- NC: 2024:KHC:47153 WP No. 13558 of 2022 permission from the Bangalore Development Authority, (a) for the change of land use; and (b) for the sub-division of plot, have to be furnished."
Section 2(8) of the KTCP Act:
"Plot" means a continuous portion of land held in one ownership."
Section 17 of the KTCP Act:
"17. Sanction for [single plot or sub- division] of plot or lay-out of private street
- (1) The State Government shall by rules prescribe the standards to be followed and minimum extent of land to be considered for approval of layout for sub-dividing a plot and prescribe the minimum extent of area to be earmarked for park, open spaces and civic amenity sites and laying out roads. Every person who intends to develop a single plot or sub divide his plot by making a layout on or after the date of the publication of the declaration of Local Planning Area under Section 4-A, shall submit detailed plan of the layout of his plot showing layout of roads, sub- divided plots and earmarking area for park and open spaces and civic amenities to such extent and in such manner, as prescribed.-7-
NC: 2024:KHC:47153 WP No. 13558 of 2022 (2) The Planning Authority may, within the prescribed period, sanction such plan either without modification or subject to such modifications and conditions as it considers expedient or may refuse to give sanction, if the planning authority is of the opinion that such plan is not in any way consistent with the proposals of the Master Plan:
Provided that where the Master Plans are not finally approved, in such cases the Planning Authority may sanction the layout plan as per the guidelines issued by the Government from time to time1."
6. These provisions must be read to mean that if a larger property which is diverted from agricultural to non-agricultural purposes under Section 95 of the Karnataka Land Revenue Act, 1964 is to be developed with all consequential approvals, it would be incumbent upon the concerned to approach the Planning Authority [in the present case, the BDA] and obtain approval for development. The larger 1 The other provisions of this Section details stipulations on the approval of a 'Layout' as against development of a 'Single Plot'.
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NC: 2024:KHC:47153 WP No. 13558 of 2022 property will be a Plot, and if this Plot [construed as a Single Plot] is to be sub-divided, the approval from the Planning Authority under Section 17 of the KTCP Act will be necessary. The petitioners' predecessors-in- interest owned the larger extent of 5 acres and 8 guntas, and they have transferred a part of this extent [66,856.69 Sq Ft] in favour of the petitioners under the Gift Deed dated 21.04.2022. Indisputably, this bifurcation of the larger property paves way for a separate development of the bifurcated/sub-divided portion.
7. It cannot be even be argued that the petitioners/their predecessor-in-interest should have taken the approval under Section 17 of the KTCP Act for transfer of a portion of the larger property by gift [or even otherwise]. However, as the subdivision of the larger property paves way for a separate development of a subdivided portion, the petitioners will have to comply with the requirement for approval -9- NC: 2024:KHC:47153 WP No. 13558 of 2022 under Section 17 of the KTCP Act if there is to be such development. The insistence on this compliance at the stage of mutating revenue entries based on the Gift Deed, which would be the first stage insofar as BBMP as the Local Authority, only ensures that this requirement is not diluted by happenstance or otherwise and therefore, cannot be called unreasonable. The BBMP will have to ultimately consider the plans submitted for development of the subdivided plot.
8. This Court must next refer to the Regulations notified by the State Government on 17.03.2023 under Section 13E of the KTCP Act. These Regulations reiterate the requirement that Khata can be issued for a building or a site which is part of the Sub-Division Plan or a Development Scheme duly approved by the Planning Authority while stipulating that the Local Authority cannot issue Khata for sub-
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NC: 2024:KHC:47153 WP No. 13558 of 2022 division or bifurcation of a building or a site without the prior approval of the Planning Authority.
In the circumstances, this Court is not persuaded to interfere with the impugned Endorsement, but this Court must observe that if the petitioners approach the BDA with necessary development plan, it must be considered by the BDA independent of the outcome of this petition.
The petition stands disposed of accordingly.
Sd/-
(B M SHYAM PRASAD) JUDGE RB