Karnataka High Court
Sri H V Tejas vs The Bruhat Bengaluru Mahanagara ... on 19 September, 2022
Bench: E.S.Indiresh
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
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
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
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
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,
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
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
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
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,
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
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
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-
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
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
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
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:
"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
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
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
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
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:
" 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 :
"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.
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.
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
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
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
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
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
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
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:
"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
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
