Bruhat Bengaluru Mahanagara ... vs Dr Arun Kumar B C
2022 Latest Caselaw 12207 Kant

                          1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 28TH DAY OF SEPTEMBER, 2022

                       PRESENT

             THE HON'BLE MR. ALOK ARADHE
                 ACTING CHIEF JUSTICE

                         AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                 W.A. NO.335/2022

                        C/W
             W.A. NO.331/2022 (LB-BMP)

IN W.A.NO.335/2022:

BETWEEN:

1.     BRUHAT BENGALURU MAHANAGARA PALIKE
       N.R. SQUARE, BENGALURU - 560 002.
       REPRESENTED BY ITS COMMISSIONER

2.     THE ASSISTANT COMMISSIONER
       TOWN PLANNING - (MAHADEVAPURA)
       BRUHAT BENGALURU MAHANAGARA PALIKE
       RHB COLONY, WHITEFIELD MAIN RAOD,
       BENGALURU - 560 048.

3.     THE DEPUTY COMMISSIONER
       ( LAND ACQUISITION AND TDR)
       BRUHAT BENGALURU MAHANAGARA PALIKE,
       1st FLOOR, ANNEX BUILDING-3
       CENTRAL OFFICER, N.R. SQUARE
       BENGALURU - 560 002.

4.     THE ASSISTANT DIRECTOR (TDR)
       BRUHAT BENGALURU MAHANAGARA PALIKE
                          2

       1st FLOOR, ANNEX BUILDING-3
       CENTRAL OFFICER, N.R.SQUARE
       BENGALURU - 560 002.          ...APPELLANTS

(BY SRI. VIKRAM HUILGOL, SENIOR, ADV. FOR
    SRI. DEVENDRAPPA, ADV.,)

AND:

1.     SRI DWARAKAPRASAD SHARADA
       S/O SRI. JAGADISH PRASAD SHARDA,
       AGED ABOUT 63 YEARS,
       R/AT FLAT NO. CONGO-503,
       SNN RAJ LAKE VIEW PHASE II
       BTM LAYOUT, 2nd PHASE,
       BENGALURU.

2.     THE STATE OF KARNATAKA
       REPRESENTED BY ITS PRINCIPAL SECRETARY
       DEPARTMENT OF URBAN DEVELOPMENT
       VIDHANA SOUDHA
       BENGALURU-560 001.           ...RESPONDENTS

(BY SRI.D.N.NANJUNDA REDDY, SR. ADVOCATE, FOR
    SRI. SUDHAKAR G.V, ADV. FOR R1
    SMT. PRATHIMA HONNAPURA, AGA FOR R2)

       THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE ORDER PASSED IN WP NO. 19736/2021
DATED 17/01/2022, PASSED BY THE LEARNED SINGLE
JUDGE    AND   CONSEQUENTLY    DISMISS    THE   WRIT
PETITION AND ETC.

IN W.A.NO.331/2022:

BETWEEN:

1.     BRUHAT BENGALURU MAHANAGARA PALIKE
                           3

       N.R. SQUARE, BENGALURU - 560 002.
       REPRESENTED BY ITS COMMISSIONER

2.     THE ASSISTANT COMMISSIONER
       TOWN PLANNING - (MAHADEVAPURA)
       BRUHAT BENGALURU MAHANAGARA PALIKE
       RHB COLONY, WHITEFIELD MAIN RAOD,
       BENGALURU - 560 048.          ...APPELLANTS

(BY SRI. VIKRAM HUILGOL, SENIOR, ADV. FOR
    SRI. DEVENDRAPPA, ADV.,)

AND:

1.     DR. ARUN KUMAR B.C
       AGED ABOUT 43 YEARS
       S/O SRI CHIKKANNA
       R/A NO. 832, 5TH CROSS
       5TH MAIN, M.C. LAYOUT
       VIJAYANAGAR
       BENGALURU - 560 040.

2.     THE STATE OF KARNATAKA
       URBAN DEVELOPMENT DEPARTMENT
       AMBEDKAR VEEDHI
       VIKAS SOUDHA
       BENGALURU - 560 001.      ...RESPONDENTS

(BY SRI ROHAN HOSMATH, ADV., FOR R-1;
    SMT. PRATHIMA HONNAPURA, AGA FOR R-2)

       THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE ORDER PASSED IN WP NO.9408/2020
DATED 17/01/2022, PASSED BY THE LEARNED SINGLE
JUDGE    AND   CONSEQUENTLY     DISMISS    THE   WRIT
PETITION AND ETC.
                                 4

        THESE APPEALS COMING ON FOR PRELIMINARY
HEARING      THIS    DAY,   VISHWAJITH            SHETTY       J.,
DELIVERED THE FOLLOWING:

                      JUDGMENT

These two intra court appeals arise out of a

common order passed by the learned Single Judge of this

Court dated 17.01.2022 in W.P.No.9408/2020 and

W.P.No.19736/2021 and therefore, these two appeals are

heard together and disposed of by a common judgment.

2. Heard the learned Senior counsels appearing

for the parties, the learned Additional Government

Advocate and also perused the material available on

record.

3. Facts leading to filing of these appeals briefly

stated are, respondent No.1 herein who intended to

develop his property had approached the appellants for

sanction of the building plan. The appellants had issued

an endorsement stating that the application of

respondent No.1 would be considered for sanctioning of

the plan only upon the respondent No.1 surrenders the

portion of his property for in consonance with the circular

dated 18.12.2020 issued by the appellants. Challenging

the said endorsement and the circular, Respondent No.1

herein had approached this Court by filing writ petition

with a prayer to quash the endorsement and the circular

and also to issue necessary direction to the appellants to

issue sanction plan for construction of building in his

property.

4. The learned Single Judge vide the order

impugned has allowed the said writ petition and having

quashed the endorsement and circular issued by the

appellants has directed the appellants to process the

application filed by respondent No.1 for sanctioning the

building plan and pass appropriate order in accordance

with law within a period of two months. Being aggrieved

by the said order, these intra court appeals are filed.

5. Learned Senior Counsel appearing for the

appellants submits that the learned Single Judge erred in

quashing the circular as well as the endorsement issued

by the appellants on the ground that it does not have any

statutory support. He refers to Section 17 of the

Karnataka Town and Country Planning Act, 1961 (for

short, the "Act of 1961") and submits that the powers of

the appellants can be read into from the said provision of

law and therefore, the learned Single Judge was not

justified in quashing the circular as well as the

endorsement issued by the appellants which provides for

relinquishing or surrendering of property free of cost in

favour of the appellants for the purpose of widening of

the road.

6. Per contra, the learned Senior Counsel

appearing for respondent No.1 submits that the

appellants cannot take assistance of Section 17 of the

Act of 1961 as the same is not applicable. He submits

that the planning authority within the meaning of Section

17 of the Act of 1961 for purpose of Bengaluru City is the

Bangalore Development Authority as could be seen from

Section 2(7) of the Act of 1961 and therefore, there is no

merit in the contention urged on behalf of the appellants.

7. The learned Single Judge has quashed the

circular issued by the appellants and the endorsement

issued based on the said circular on the ground that the

said documents are without authority of law and

therefore, they are in violation of Article 300A of the

Constitution of India. Even otherwise, it cannot be

countenanced that a citizen can be asked to surrender or

relinquish his right over his property free of cost in favour

of a statutory authority. In the present case, the

endorsements were issued by the appellants asking

respondent No.1 to surrender/relinquish his right in the

property based on the circular dated 18.12.2020 and the

said circular and endorsement have rightly been quashed

by the learned Single Judge since the same were not

supported by any statutory provisions as contended by

the learned senior counsel appearing for respondent

No.1.

8. Reliance placed by the learned Counsel for

the appellants on Section 17 of the Act of 1961 is

misconceived as the appellant is not the specified

authority under the said provision of law. Therefore, we

do not find any merit in these appeals. Accordingly, we

decline to entertain the same, and therefore, they are

dismissed.

Sd/-

ACTING CHIEF JUSTICE

Sd/-

JUDGE

NMS