Karnataka High Court
M R Ramesh vs The State Of Karnataka on 12 December, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12th DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WP Nos. 25066-68 OF 2012 (LA-BDA)
BETWEEN:
1.M.R.Ramesh, 66 years
S/o.Ramanna, R/at 456,
Ramesh Nursery, Bannerghatta Road
4th Kothanur Cross, Arekere Village
IIM Post, Bangalore-76
2.M.R.Satish, 40 years
S/o.M.R.Ramesh, R/at 456,
Ramesh Nursery, Bannerghatta Road
4th Kothanur Cross, Arekere Village
IIM Post, Bangalore-76
3.Ravi Machani, 38 years
S/o.M.R.Ramesh, R/at 456,
Ramesh Nursery, Bannerghatta Road
4th Kothanur Cross, Arekere Village
IIM Post, Bangalore-76 ... PETITIONERS
(By Sri.A. Murali, Advocate for J.Sagar Associates,
Advocates)
AND:
1.The State of Karnataka
Represented by its Chief Secretary
3rd Floor, Vidhan Soudha
Bangalore-560 001
2
2.The Principal Secretary
Government of Karnataka
Housing and Urban Development(HUD)
Multistoreyed Building,
Bangalore-1
3.The Commissioner,
Bangalore Development Authority(BDA)
T.Chowdaiah Road, Kumarapark West,
Bangalore-20.
4.M/s.SJR Enterprises Private Limited
Flat No.1, SJR Premises,
7th and 8th Floor, Industrial Area
7th Block, Koramangala,
Bangalore-45
Represented by Manging Director
Mr.J.Bhupesh Reddy ... RESPONDENTS
(By Sri.H.I. Narendra Prasad, HCGP for Respondents 1
and 2; Sri.Basavaraj V.Sabarath, Advocate for
Respondent No.3, Sri.Navkesh Batra, Advocate for
Respondent No.4)
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These Writ Petitions are filed under Article 226 of
the Constitution of India praying to set aside/ quash
the resolution dated 25.2.2012 vide Annexure-Y, hereto,
keeping the Words Order, dated 6.3.2008 in abeyance
etc.
These writ petitions coming on for hearing this
day, the Court passed the following:-
ORDER
Heard the learned counsel for the petitioners and the learned counsel for the respondents. 3
2. The facts briefly stated are as follows:-
The petitioners are stated to be the owners of lands bearing various survey numbers of Arekere Village, Begur Hobli, Bangalore South Taluk totally measuring 7 acres 29 guntas which they had purchased under two sale deeds dated 31.12.80 and 6.6.1983, respectively, and the said lands were being maintained as a Nursery. It transpires that the lands were notified for acquisition under the Bangalore Development Authority Act, 1976,(hereinafter referred to as the 'BDA"
Act, for brevity) by a notification dated 22.7.1991 apart from other lands for formation of Jayaprakash Narayana Nagar-9th stage scheme. However, at the instance of the petitioners the land belonging to them was excluded from the proposed acquisition subject to the condition imposed by the State Government that the same should be maintained as a Nursery in terms of the Notification dated 26.8.1996 which is at Annexure-"D"
to the writ petition. It then transpires that the Jayaprakash Narayana Nagar 9th stage scheme was fully 4 implemented by the year 1999 and there was no need felt for the acquisition of the petitioners lands which were already deleted from the acquisition proceedings. With passage of time the other parts of Arekere village were fully built up and modern apartment, buildings and other commercial buildings had sprouted. It is the case of the petitioners that in terms of the erstwhile Comprehensive Development Plan and the Master Plan 2015 the petitioners' land in question is classified as a residential zone. Though the petitioners have continued to maintain the land from inception as a nursery, for over twenty-five years in view of the developments in the vicinity of the land and having regard to the classification under the Zoning Regulations, the petitioners had made an application for conversion of the land from agricultural to residential use in the year 2006. Since any such conversion required the approval of the planning authority the Bangalore Development Authority (hereinafter referred to as the "BDA", for brevity) had in turn issued "No objection" letters dated 5 17.10.2006 and 14.10.2008, respectively, in respect of the two parcels of land. Thereafter the Special Deputy Commissioner, on an application filed by the petitioners, had passed an order dated 28.10.2006 and 5.8.2008, respectively, granting change in land use. In furtherance of the intention of the petitioners they had obtained a development plan for construction from the BDA under a Group Housing Scheme which was duly sanctioned on 17.3.2007. The petitioners had then entered into a development agreement with a developer, namely, M/s.SJR Builders. While the land which was to be developed was reduced from 7 acres 29 guntas to 7 acres 1.67 guntas, there was a revised plan which was also sanctioned by the BDA under the licence dated 28.3.2008 and a Work Order was also issued dated 6.3.2008. Pursuant to the conversion orders and the sanctioned plan, the developer commenced construction of the residential apartment blocks under the Group Housing Scheme. It is the allegation of the petitioners that when the construction was in progress one C. 6 Lakshminarayana, who is said to be Ex-Councilor of Bommanahalli Municipal Council along with one Harish had made representations to the BDA alleging that the petitioners lands were meant to be maintained as a nursery and they could not have been permitted to construct apartment blocks and therefore there was a clear violation of the condition. The BDA however ignored the said representations and did not choose to interfere with the construction of the residential apartment blocks which were nearing completion by the end of 2011. It is the case of the petitioners that the Engineers of BDA have conducted inspection of the construction of apartment blocks and have recommended for issuance of occupancy certificate as per note dated 22.10.2011, which is at Annexure-"S1" to the writ petition. It is the further allegation of the petitioners that Lakshminarayana and Harish intended to extort monies from the developer and the petitioners and therefore they had pursued their complaint before the Lokayuktha who in turn had ordered an 7 investigation. This was widely reported in the news papers and according to the petitioners it is this which prompted the BDA to pass a resolution dated 25.2.2012 directing construction on the petitioners' land to be kept in abeyance. The same having been communicated to the petitioners, the petitioners are before this Court in the grave apprehension of entire process as narrated herein above being set at naught and their possible consequences.
3. The learned counsel for the petitioner while reiterating the above circumstances would candidly admit that apart from placing the entire construction in abeyance the BDA has not taken any positive action to reverse its earlier decision nor has taken any coercive measures. The State government has also not issued any notice of any violation having been committed by the petitioners insofar as the condition on which the lands were originally denotified. In that, the petitioners were required to maintain the land as a nursery. 8
4. While the learned counsel appearing for the fourth respondent would submit that the fourth respondent as a developer has invested huge amounts of money and the project having been almost completed the said respondent owes an obligation to several hundred third party purchasers who have invested their monies in purchasing apartments that have been made ready for occupation and would submit that the impugned orders are a serious impediment to the further progress of the project which is complete in almost all respects and the impugned orders therefore are an aberration, and are inconsistent with the actions of the BDA which were taken in conscious response to the applications and the requests made by the petitioners from time to time, as is evident from the above sequence of events and it may not be said that the BDA could have proceeded under a misconception or without knowledge of the previous history of the property in holding that the condition imposed under the Notification 26.8.1996, Annexure-"D" to the writ 9 petition was not within its knowledge or was not apparent. The learned counsel for the petitioners would submit that the petitioners cannot be accused of suppression of material as any such condition as imposed by the State Government was duly gazetted in the Karnataka Gazette and was a matter of record and hence the petitioners having been permitted to develop the land in terms of the sanctioned plans cannot now be prevented from enjoying the same in accordance with law.
5. The learned counsel for the BDA on the other hand would seek to justify its action and would submit that since there was an active investigation by the Lokayuktha and since the BDA in retrospect did find and when there was a condition imposed vide Annexure-"D", the said condition having been imposed by the State Government it was necessary for the State Government to have relaxed that condition. In this regard though the BDA had addressed the State Government by a letter dated 23.11.2011, the BDA had 10 proceeded to process the application seeking no objection as regards the intention to seek change of land user filed by the petitioners without awaiting the decision of the Government in response to its representation and therefore by way of prudence and in the light of the on going investigation by the Lokayuktha, the Board had resolved that the further construction of the apartment blocks shall be kept in abeyance awaiting for further directions, if any, by the State Government or such other authority. Therefore, it cannot be said that the petitioners are aggrieved by any illegal action of the BDA. It has merely directed the petitioners to maintain status-quo awaiting further directions, if any, by the State Government or punitive action that may be taken by any other authority in respect of the obvious breach that has been committed. The learned counsel further submits that this direction was issued more in the interest of the petitioners and in order to mitigage further damage that may occasion by further development of the property.
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6. Given the above facts and circumstances and the sequence of events, first of all as seen from Annexure-"D" the same reads as follows:-
"No.UDD/266/MNX/91. In exercise of the powers conferred by sub-section(1) of Section 48 of the Land Acqusition Act-1894(Central Act, 1894) the Government of Karnataka hereby withdraw from acquisition of the lands specified below in respect of which the preliminary Notification was published in the Karnataka Gazette dated 19th January 1989, in Part-III at pages from 99 to 123 vide Notification No.BDA/SLAO/A4/PR/257/88-89 dated 17th November 1988 and Final Notification No.HUD/553/MNX/90 dated 22nd July 1991 was published in the Karnataka Gazette dated 27th July 1991 in Para-III-I pages 1 to 23 under sub-section(1) of Section-19 of B.D.A. Act, 1976(Karnataka Act-12 of 1976) for formation of layout called Jayaprakash Narayana Nagar-
9th Stage subject to the condition that the land should be maintained as Nursery only and if any violation takes place, the Bangalore Development Authority is at liberty to acquire the land for its schem."
The above is of the year 1996 and the condition that was imposed was that the petitioners ought to maintain the land which was the subject-matter of the notification as a nursery. At the relevant point of time under the Zoning Regulations, even as on that date the land in question was classified as residential. However 12 since the petitioners had made an application seeking deletion of the land from acquisition the condition had been imposed that the land should be maintained as a nursery. With passage of time and the entire area having been developed the petitioners have sought to develop the land notwithstanding the condition imposed under Annexure-"D". It is also to be noticed that the scheme under which the lands were acquired for the formation of J.P.Nagar 9th stage was implemented and completed in the year 1999. Therefore, if the condition is to be strictly applied, if there was violation on the part of the petitioners in not maintaining the land as a nursery in terms of Annexure-D it was open for the State to acquire the land and to utilize the same as part of the scheme, when that was the consequence of the breach of the condition. The 9th stage having been formed and completed in the year 1999, the application made by the petitioners in the year 2006 was after much lapse of time and after the area had developed beyond recognition. Therefore, the application of the 13 petitioners having been processed by the BDA in granting no objection to enable the petitioners to approach the competent authority to seek conversion of land and the competent authority also having scrutinized the papers of the petitioners it should be presumed that both BDA as well as the competent authority were fully conscious of the condition imposed earlier and the same having spent itself out, with the completion of the scheme in the year 1999. Therefore the permissions and sanctions having been obtained thereafter by the petitioners were in accordance with law. If the authorities have overlooked the condition and even if the same continued to apply and is to be treated to be in force, the fault if any, would not lie with the petitioners since the petitioners, have proceeded in accordance with law in seeking such sanctions and permissions and going ahead with the construction. On the basis of any compliant if action has been initiated by the Lokayuktha or such authority that shall take its own course. However, it is not open for the BDA to 14 revise its earlier decisions or to harbour any reservations about its earlier action of having over looked the condition, if at all it was over looked, as imposed under Annexure-"D". Therefore, the present status where the petitioners and the fourth respondent having been permitted to complete the construction during the pendency of this petition, it is needless to state that the BDA shall not prevent the petitioners from completing the project in all respects and to process any other applications for such other statutory certificates that may have to be issued in favour of the petitioners if the petitioners have complied with such terms and conditions and, in accordance with law.
7. Therefore, the petitions stand allowed and the restraint imposed by the BDA in terms of Annexures-"Y and Z" are hereby quashed.
Sd/-
JUDGE *alb/-.