Karnataka High Court
Srivatsa Developers vs The Bangalore Development Authority on 27 May, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 48258 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 48258 OF 2018 (LA-BDA)
BETWEEN:
1. SRIVATSA DEVELOPERS
A REGISTERED PARTNERSHIP
BY ITS PARTNERS,
a. SUJAY KRISHNA
S/O NANDIAH
AGED ABOUT 37 YEARS
b. SURYANARAYANA REDDY
S/O M. RAMACHANDRA REDDY
AGED ABOUT 67 YEARS
BOTH (A) & (B) HAVING THEIR OFFICE AT
# C-004 KRISHNA DHAVALA
NEXT TO GEAR INTERNATIONAL SCHOOL
DODDAKANNELLI, BENGALURU-560035
2. SREECHARAN DEVELOPERS
A REGISTERED PARTNERSHIP
BY ITS PARTNERS,
Digitally
signed by
a. G. RAVI VARMA
NIRMALADEVI S/O SUDHARSHAN VARMA
Location:
HIGH COURT AGED ABOUT 44 YEARS
OF
KARNATAKA
b. CHINNAPPA REDDY
S/O NARAYANA REDDY
AGED ABOUT 53 YEARS
BOTH (A) AND (B) RESIDING
#175-176, THE PAVILION
BANNERGHATTA ROAD
BILEKAHALLI NEXT TO
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WP No. 48258 of 2018
IOCL PETROL BUNK
BENGALURU-560078
3. DEVAMMA
AGED ABOUT 76 YEARS
W/O LATE SRIRAMULU NAIDU
R/AT NO.888, 5TH CROSS, 18TH MAIN
6TH BLOCK, KORAMANGALA
BANGALORE-560095
4. R.S. GOPI
AGED ABOUT 63 YEARS
S/O LATE SRIRAMULU NAIDU
R/AT NO.160, KHB COLONY
KORAMANGALA, BANGALORE-560095
5. R.S. CHARAN KUMAR
AGED ABOUT 62 YEARS
S/O LATE SRIRAMULU NAIDU
R/AT NO.114, 1ST CROSS, 5TH "A" BLOCK
KORAMANGALA, BANGALORE-560095
6. R.S. PRADEEP KUMAR
AGED ABOUT 56 YEARS
S/O LATE SRIRAMULU NAIDU
R/AT NO.24, 1ST CROSS, 5TH A BLOCK
KORAMANGALA, BANGALORE-560095
7. KAVITHA DAYAL
W/O R.S. DAYAL KUMAR
AGED ABOUT 48 YEARS
R/A NO.24, 1ST CROSS, 5TH A BLOCK
KORAMANGALA BANGALORE-560095.
8. R.BHARATHI
AGED ABOUT 73 YEARS
D/O R VENKATAKRISHNAIAH NAIDU
R/AT TAVAREKERE MAIN ROAD, DRC POST
HOSUR MAIN ROAD, BANGALORE-560029
9. V. SRINIVAS
AGED ABOUT 67 YEARS
S/O R VENKATAKRISHNAIAH NAIDU
R/AT NO.3, KORAMANGALA ROAD
ADUGODI, BANGALORE-560030
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WP No. 48258 of 2018
10. R. RAVINDRANATH
AGED ABOUT 64 YEARS
S/O R VENKATAKRISHNAIAH NAIDU
R/AT NO.305, 2ND MAIN ROAD
NANJAPPA LAYOUT, ADUGODI
BANGALORE-560030
11. R. GIRIDHARA
AGED ABOUT 59 YEARS
S/O R VENKATAKRISHNAIAH NAIDU
R/AT NO.305, 2ND MAIN ROAD
NANJAPPA LAYOUT, ADUGODI
BANGALORE-560030
...PETITIONERS
(BY SRI. MANIAN.K.B.S, ADVOCATE)
AND:
1. THE BANGALORE DEVELOPMENT AUTHORITY
A STATUTORY BODY CONSTITUTED
UNDER SECTION 3 OF THE BANGALORE
DEVELOPMENT AUTHORITY ACT, 1976
AND REPRESENTED BY ITS COMMISSIONER
SANKEY ROAD, BANGALORE-560001
2. THE BRUHAT BANGALORE MAHANAGARA PALIKE
A STATUTORY BODY CONSTITUTED
UNDER SECTION 3 OF THE KARNATAKA MUNICIPAL
CORPORATION ACT, 1976, AND
REPRESENTED BY ITS COMMISSIONER
HUDSON CIRCLE, BANGALORE-560001
3. STATE OF KARNATAKA
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
VIDHANA SOUDHA, BANGALORE-560001
REPRESENTED BY ITS PRINCIPAL SECRETARY
...RESPONDENTS
(BY SRI. NITHYANANDA.K.R, AGA FOR R3;
SMT. SARITHA KULKARNI, ADVOCATE FOR R2;
SRI. N.R. GIRISHA, ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO A WRIT OF CERTIORARI
QUASHING REGULATION 7.2 D OF THE ZONING REGULATIONS OF
THE REVISED MASTER PLAN 2015 FRAMED UNDER THE KARNATAKA
TOWN AND COUNTRY PLANNING ACT, VIDE ANNEXURE-A AND ETC.
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WP No. 48258 of 2018
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court seeking for the following reliefs:
a. A writ of certiorari quashing Regulation 7.2 d of the Zoning Regulations of the Revised Master Plan 2015 framed under the Karnataka Town and Country Planning Act, vide Annexure-A b. A writ of certiorari quashing the relinquishment deed dated 08/02/2010 and registered as document No.6606/2009-10 got executed from the petitioners pursuant thereto (Annexure-B). c. A writ of mandamus directing the petitioners to comply with the provisions of the Right to Fair Compensation and Transparency in land acquisition and rehabilitation and resettlement Act, 2013 in the matter of acquisition of lands for the purposes of widening the Bannerghatta road, Bangalore.
d. A writ of mandamus directing the respondents to award compensation to the Petitioners for the acquisition of their lands in accordance with the provisions of the Right to Fair Compensation and Transparency in land acquisition and rehabilitation and resettlement act, 2013.
2. Sri.Manian K.B.S., learned Counsel for the petitioners at the very outset submits that he does not press the -5- WP No. 48258 of 2018 relief sought for in prayer No.1. As such, prayer No.1 is deleted.
3. The petitioners No.3 to 11 claim to be the owners of the land bearing Sy.Nos.175(P) and 176(P) of the Begur Hobli, Bilekahalli, Bangalore South Taluk. The petitioners No.1 and 2 had entered into a Joint Development Agreement to develop the said lands and had applied to respondent No.1 for approval of the plan for the construction of a commercial office complex. A plan was sanctioned on 23.06.2008. However, respondent No.1 prevailed upon the petitioners to execute a relinquishment deed as a pre- condition for sanction of a plan and issuance of a commencement certificate. The petitioners being under duress and being constrained were forced to execute the relinquishment deed in pursuance of which the plan was sanctioned and the petitioners were permitted to go on with the construction. -6- WP No. 48258 of 2018
4. On 10.08.2017, respondent No.2-BBMP issued a notice calling upon the petitioners to clear the lands said to be relinquished claiming that the said land was relinquished free of cost and as such, the land now belongs to the BBMP [BDA having transferred to the BBMP]. It is aggrieved by the said notice, the petitioners are before this Court seeking the aforesaid reliefs.
5. Sri.Manian K.B.S., learned counsel for the petitioners would submit that:
5.1. the only manner in which a property of a citizen of the country can be taken possession of by the State or any instrumentality of the State is by acquisition or requisition of the land. Apart from the same, there is no other methodology which has been provided under law for any authority to take possession of the land belonging to a private citizen;-7-
WP No. 48258 of 2018 5.2. that the land though demarcated in the revised master plan for the widening of a road, the widening of the road itself is subject to acquisition of the land by making payment of compensation in terms of applicable law and it is only thereafter that the road could be formed. The petitioners as such have no objection for the widening of the road so long as the land is acquired and due compensation is paid;
5.3. he further relies upon the decision of this Court in DR.ARUN KUMAR B.C., VS. STATE OF KARNATAKA AND OTHERS reported in (2022) 2 KLJ 553 and submits that the issue raised in the present petition has already been decided by this Court and similar endorsement as the impugned endorsement issued by the BBMP has been quashed by this Court. He, therefore, submits that similar orders could be passed; -8- WP No. 48258 of 2018
6. Smt.Saritha Kulkarni, learned counsel for respondent No.2 - BBMP would submit that:
6.1. the decision in Dr.Arun kumar's case is under challenge in W.A.No.335/2022 and therefore, submits that the hearing of the present matter be deferred;
6.2. on enquiry as to whether there is any stay of the order of the learned Single Judge by the Division Bench, she fairly submits that only notice has been issued and there is no order of stay;
6.3. as regards the merits of the matter, she submits that since there is a relinquishment deed already executed, the petitioners cannot now backtrack on the same and seek for the aforesaid reliefs;
6.4. she submits that the impugned endorsement has been issued in pursuance of the Circular dated 18.12.2020 and therefore, the action -9- WP No. 48258 of 2018 taken by the BBMP being correct and proper, the petition is required to be dismissed.
7. Heard Sri.Manian K.B.S., learned counsel for the petitioners, Sri.N.R.Girisha, Smt.Saritha Kulkarni and Sri.Nithyananda K.R., learned counsel for respondents No.1, 2 and 3 respectively and perused the papers.
8. The issue which has been raised in the present matter has already been covered by the decision of the Co-ordinate Bench of this Court in Dr.Arun Kumar's case supra. The effect of the circular and the rights of the owner on the land like the petitioners has categorically being considered.
9. I am in complete agreement with the decision of Shri Hemanth Chandanagoudar J in Dr.Arun Kumar's case supra. Only to add that the State or any instrumentality of the State cannot by holding back the sanction of the plan or the like force an owner of the property to execute a relinquishment deed or the
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WP No. 48258 of 2018
like inasmuch as the State would be literally blackmailing the citizen of the country to execute the relinquishment deed by threatening non-sanction of the plan until a relinquishment deed is executed.
10. It cannot be contended that the present petition is barred by principles of estoppel. There cannot be estoppel against a Statute. When the Statute requires that a person can be deprived of property only in accordance with the law, the same not having been done in the present case, BBMP or BDA cannot be heard to say that the execution of a relinquishment deed estopps the petitioner from filing the present petition.
11. It is the contention that there is an estoppel by conduct of parties, I am of the considered opinion that the conduct on part of the petitioner was forced by the BDA and was a result of duress exercised by the BDA. There is no element of fair play in the scene. This
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WP No. 48258 of 2018 falls foul of the decision of the Apex Court in the case of Commissioner of Income Tax, Madras vs. V.Mr.P.Firm Muar reported in 1961 SC 1216 and Union of India vs. N.Murugesan reported in 2021 (3) SLJ 401 (SC). I am further unable to accede to the contention of Smt.Sarita Kulkarni, learned counsel for respondent No.2 that the petitioner's conduct amounts to approbation and reprobation inasmuch as it is the BDA who has acted in a manner contrary to law to coerce the petitioner to execute a relinquishment deed under a threat that without execution of the said deed, the plan sanction would not be granted depriving the petitioner and exercise of ownership right over his property. The said action on part of the BDA being in the absence of any sanction of law without legal authority or support of competent legislation as enumerated under Article 300A of the Constitution of India, the contention that the principles of estoppel applies or that amounts to approbation and
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WP No. 48258 of 2018 reprobation on the part of the petitioner is liable to be rejected.
12. The BDA, BBMP or any statutory authority can neither short circuit or be permitted to short circuit the applicable law. A statutory authority is required to follow the due process of law however arduous it may be. It is only then that meaning can be given to the principle of Rule of law otherwise the same would result in Rule by law, which is not permissible.
13. In the present case, as could be seen, there is no compensation which has been paid by the State, BDA or BBMP to the petitioners for so called relinquishment inasmuch as the relinquishment has been executed as a pre-condition for the sanction of the plan which is not permissible. Such a pre-condition not being recognized under any law in force.
14. Mere demarcation of land for widening of a road in the Revised Master Plan (RMP) would not vest the land in
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WP No. 48258 of 2018 the state or the BDA. It only declares as intention or a proposal to widen the road at that particular location. In the event of the State or BDA wanting to widen the road or carry out any developmental activities requiring land or property of a citizen of a country, the said State or any instrumentality of the State cannot violate the rights of the citizen of the country more particularly those guaranteed under Article 300A of the Constitution of India. In such circumstances, the only power which can be exercised by the State or any instrumentality of the State is the power of eminent domain for acquisition or requisition of the land by awarding compensation in terms of applicable law as on the date of such acquisition or requisition being made.
15. In the present case, no acquisition having been made and no compensation having been paid, I am of the considered opinion that the relinquishment deed which has been obtained on the condition that only
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WP No. 48258 of 2018 thereafter plan would be sanctioned is not sustainable. The execution of a relinquishment deed cannot be a quid pro quo for such sanction of plan, the relinquishment not having been mandated under any law in force. No such mandate can be made since for the process of sanction of plan does not require any such relinquishment, the law contemplated that the plan has to be in terms of the building laws and the requisite fee be paid, which has been complied with by the Petitioners, there being no grievance on this aspect by the Respondents.
16. As such, I pass the following:
ORDER i. The Writ Petition is allowed.
ii. A writ of certiorari is issued and the relinquishment deed dated 08.02.2010 registered as document No.6606/2009-10 at Annexure -B is hereby quashed.
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WP No. 48258 of 2018 iii. The respondents are prevented from interfering with the right of the petitioners to enjoy the land of the petitioners.
iv. Liberty is however reserved to the respondents to acquire the land in terms of the applicable law if they so desire since the petitioners have categorically stated that the petitioners would not have any objection for acquisition of the land subject to compensation being payable.
Sd/-
JUDGE Prs*