Karnataka High Court
M/S Nandi Housing Pvt Ltd vs The Assistant Executive Engineer on 22 May, 2023
Bench: Krishna S.Dixit
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WP No. 7587 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 7587 OF 2021 (BDA)
BETWEEN:
M/S NANDI HOUSING PVT LTD.,
SITUATED AT NO.46, 36TH MAIN ROAD,
BTM DOLLAR SCHEME, BENGALURU - 560 068.
REPRESENTED BY ITS AUTHORISED SIGNATORY.
...PETITIONER
(BY SRI.VIVEK REDDY., SENIOR COUNSEL A/W
SRI.DILLI RAJAN., ADVOCATE FOR
SRI.AMITH XAVIER.,ADVOCATE)
AND:
1. THE ASSISTANT EXECUTIVE ENGINEER,
BENGALURU DEVELOPMENT AUTHORITY,
NO.1, SOUTH SUB-DIVISION, BDA,
Digitally BENGALURU.
signed by
CHETAN B C
Location: 2. THE TOWN PLANNING MEMBER,
HIGH COURT BENGALURU DEVELOPMENT AUTHORITY,
OF NO.1, SOUTH SUB-DIVISION, BDA,
KARNATAKA BENGALURU.
3. THE COMMISSIONER, BDA,
BENGALURU DEVELOPMENT AUTHORITY,
BENGALURU - 560 001.
4. M/S VALMARK DEVELOPERS PRIVATE LIMITED.,
A PRIVATE LIMITED COMPANY,
INCORPORATED UNDER THE COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT NO.133/1,
RESIDENCY, 10TH FLOOR, RESIDENCY ROAD,
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WP No. 7587 of 2021
BENGALURU - 560 025.
REPRESENTED BY PARAS TOLAI,
S/O DHAIVANTRI TOLAI,
REPRESENTED BY ITS AUTHORISED SIGNATORY.
...RESPONDENTS
(BY SRI. G LAKSHMEESH RAO., ADVOCATE FOR R1 TO R3;
SRI. B S RADHANANDAN., ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED NOTICE DATED 10.03.2021 BY THE R-1
VIDE ANNX-A IN ACCORDANCE WITH LAW.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
Petitioner, a land developing company is complaining
before the Writ Court against the notice dated 10.3.2021
issued by the 1st Respondent at Annexure-A whereby, he
is directed to remove an unauthorizedly constructed wall
that denies easy ingress & egress to the public. The
operative portion of the same reads as under:
"F »£É߯ÉAiÀÄ°è £ÉÆAzÁ¬ÄvÀ ¥ÀjvÁåd£Á ¥ÀvÀæzÀ ªÀÄÆ®PÀ
ªÉÄîÌAqÀ ªÀ¸Àw ¸ÀªÀÄÄZÀÑAiÀÄzÀ GzÁå£ÀªÀ£À ªÀÄvÀÄÛ gÀ¸ÛÉ ¥ÀæzÉñÀUÀ¼À£ÀÄß
vÁªÀÅ FUÁUÀ¯Éà ¥Áæ¢üPÁgÀPÉÌ ºÀ¸ÁÛAvÀj¹gÀĪÀÅzÀjAzÀ CªÀÅUÀ¼ÀÄ
¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Ý ¥Áæ¢üPÁgÀzÀ ¸ÀévÁÛVzÀÄÝ, ¸ÀzÀj gÀ¸ÉÛAiÀÄ°è
¸ÁªÀðd¤PÀgÀÄ ¸ÀAZÀj¸À®Ä C£ÀÄPÀÆ®ªÁUÀĪÀAvÉ vÁªÀÅ
C£À¢üPPÀÈvÀªÁV ¤«Äð¹gÀĪÀ vÀqÉUÉÆÃqÉAiÀÄ£ÀÄß F £ÉÆÃnøï
vÀ®Ä¦zÀ PÀÆqÀ¯Éà vÉgÀªÀÅUÉƽ¹ F PÀbÉÃjUÉ °TvÀªÁV ªÀgÀ¢
ªÀiÁqÀĪÀAvÉ F ªÀÄÆ®PÀ ¸ÀÆa¹zÉ. vÀ¦àzÀÝ°è ¥Áæ¢üPÁgÀzÀ
¤AiÀiÁªÀiÁªÀ½AiÀÄ ¥ÀæPÁgÀ ªÀÄÄA¢£À PÀæªÀÄ dgÀÄV¸À¯ÁUÀĪÀÅzÀÄ."
WP No. 7587 of 2021
2. Learned Sr. Advocate Mr.Vivek Reddy appearing
for the Petitioner sought to falter the impugned notice on
the basis of original & amended Writ Petition contending
that: the said notice is issued unilaterally, violates
principles of natural justice; it is issued on the basis of a
false complaint lodged by the newly added 4th
Respondent-Company; there are no residential houses in
the area nor the members of public can make use of the
road in question; 'Petitioner has not obstructed any
persons and also not constructed any compound
wall/grabbed government land in an illegal manner...'; the
4th Respondent-Company has an alternate road for ingress
& egress to it's adjoining layout which is now being
developed; the impugned notice is violative of Petitioner's
Fundamental Rights under Articles 19, 21 & 300A of the
Constitution of India and therefore, the Relinquishment
Deed executed by the Petitioner being contrary to the said
Articles, cannot be held against it.
WP No. 7587 of 2021
3. After service of notice, the Respondent Nos.1, 2
& 3 are represented by their Sr. Panel Counsel and the 4th
Respondent-Company is represented by it's Advocate.
They did not much oppose the amendment to the Writ
Petition and therefore, leave to amend as prayed for, has
been accorded. Petitioner has also filed an amended
Petition in advance, which is officially a part of the record.
The 4th Respondent has filed the Statement of Objections
resisting the Writ Petition. Learned BDA Panel Counsel and
the advocate appearing for the Respondent-Company
made submission in justification of the impugned notice;
all contentions of the Petitioner, they submit, are liable to
be rejected in view of the registered Relinquishment Deed,
executed by the Petitioner himself; the argument of
acquisition of property sans compensation, has no place;
Petitioner's predecessor-in-title in his very application for
conversion of the land has admitted existence of the public
road on which now the wall is built by the petitioner; there
are other records too in support of this; Petitioner is high
WP No. 7587 of 2021
handedly doing all these things and therefore, Writ Court
should not show any indulgence to him.
4. Having heard the learned counsel for the parties
and having perused the Petition Papers, this Court declines
indulgence in the matter for the following reasons:
a) The first submission advanced on behalf of the
Petitioner that the impugned notice has been generated on
the basis of a false complaint lodged by the 4th
Respondent, does not merit a deeper examination at the
hands of this Court since the matter is being investigated
into by the jurisdictional police in accordance with law;
added, there is Petitioner's prior complaint, as well;
whether the complaint of the 4th Respondent is true or that
of the Petitioner is, is a matter left to the domain
investigating agency, and this Court cannot interfere
consistent with the observations of the Apex Court in
LALITA KUMARI VS. STATE OF UTTAR PRADESH, (2014) 2
SCC 1. This apart, an action in a criminal law which
Petitioner and the 4th Respondent seek to initiate against
WP No. 7587 of 2021
each other has nothing to do with the impugned notice
which instructs the Petitioner to remove the wall which is
admittedly built by the Petitioner unauthorizedly and to
the detriment of public ingress & egress.
b) The second submission made on behalf of the
Petitioner that the impugned notice has been issued
unilaterally and at the instance of the 4th Respondent and
therefore, the same is liable to be voided on the ground of
violation of principles of natural justice, is not
demonstrated: firstly, Petitioner admittedly has executed
& registered a Relinquishment Deed more than a decade
ago; under the said deed he has given up inter alia the
roads & pathways in the subject layout in favour of the
BDA. Now, all of a sudden, Petitioner cannot turn around
to contend that this deed is liable to be voided as being
contrary to the constitutional guarantees enacted in
Articles 19, 21 & 300A. It is on the basis of this deed, that
the BDA has approved the layout in question, needs no
deliberation and thus, it was a part of the bargain between
WP No. 7587 of 2021
him & BDA. Added, Articles 19 & 21 do not avail to the
Petitioner which is a registered Company; which provision
of Article 19 is violated, is also not mentioned nor argued.
c) The vehement contention of Mr.Vivek Reddy,
learned Sr. Advocate appearing for the Petitioner that
execution of Relinquishment Deed virtually amounts to
acquisition of private property of his client sans
compensation and therefore, is violative of constitutional
protection guaranteed u/a 300A, cannot be acceded to,
and reasons for this are not far to seek: Firstly, as already
mentioned above, this relinquishment arrangement was
part of the bargain that eventually resulted into BDA
according approval to Petitioner's layout in question; the
Petitioner having derived benefit from such an
arrangement, cannot now contend that the same amounts
to acquisition sans compensation. Secondly, under the
subject Relinquishment & Rectification Deeds inter alia the
roads & drainages have already vested in the BDA more
WP No. 7587 of 2021
than a decade ago, although their beneficial interest would
enure to the residents of layout & other public.
(d) It was not the case of Petitioner in the original
pleadings that he was coerced to execute the
Relinquishment & Rectification Deeds. Such a contention
now belatedly taken up by way of amendment to the
Petition is only an after-thought. There is no supportive
material emerging from the record of long correspondence
between Petitioner & the BDA to vouch the same.
Petitioner has taken up such a new contention only after
looking to the decision of a Coordinate Bench in Dr.ARUN
KUMAR B.C., vs. STATE OF KARNATAKA (2022) 2 KLJ 553,
as is reflected from the copy of a decision of another
Coordinate Bench in W.P.No.48258/2018 between
SRIVATSA DEVELOPERS vs. BANGALORE DEVELOPMENT
AUTHORITY, disposed off on 27.5.2022 which Petitioner
himself has placed on record by a Memo filed on
21.4.2023 i.e., days after the matter was heard &
reserved for judgment. Thus the contention lacks
WP No. 7587 of 2021
bonafide. That being the position, the argument of
acquisition sans compensation does not avail to the
Petitioner, especially when Petitioner on the basis of
relinquishment has derived the benefit i.e., the approval to
his layout decades ago.
(e) There is force in the submission of learned
advocates appearing for the Respondents that the subject
road has been in existence since decades which fact is
reflected in the registered Sale Deed dated 12.8.2004,
land conversion order dated 29.10.2005 and such other
documents. The BDA Planning Committee Resolution
No.96/2015 at para 5 which confirms the existence of
approach road to the adjoining project of Respondent
No.4, reads as under:
"5. ¥Àæ±ÁߦvÀ ¥ÀæzÉñÀzÀ°è ªÀ¸Àw ¸ÀªÀÄÄZÀÒAiÀÄ C©üªÀÈ¢Ý
£ÀPÉë C£ÀĪÉÆÃzÀ£É ¸ÀA§AzsÀ »A¢£À ¸À¨sÉUÉ ªÀÄAr¸ÀĪÀ ªÀÄÄ£Àß
¸ÀܼÀ ¥Àj²Ã°¸À¯ÁVzÉ. eÁUÀªÅÀ SÁ° EgÀÄvÀÛzÉ JA§
ªÀgÀ¢AiÉÆA¢UÉ ¥Àæ²ßvÀ d«ÄäUÉ JgÀqÄÀ ºÁ° gÀ¸ÉÛUÀ½AzÀ
G¥ÀUÀªÀÄ£À«zÀÄÝ MAzÀÄ gÀ¸ÛÉAiÀÄÄ 7.80 «Äà ¤AzÀ 9.00 «ÄÃ
CUÀ®zÀ gÀ¸ÉÛAiÀÄ£ÀÄß ºÉÆA¢zÀÄÝ, E£ÉÆßAzÀÄ gÀ¸ÉÛAiÀÄÄ
®UÀvÁÛVgÀĪÀ ZÀAzÀæ±ÉÃRgÀ¥ÀÄgÀ UÁæªÀÄzÀ ¸ÀªÉð £ÀA.23, 24
ªÀÄvÀÄÛ J¯ÉãÀºÀ½î UÁæªÀÄzÀ ¸ÀªÉð £ÀA.50/2(¦) gÀ°è
¢£ÁtPÀ:20/01/2012 gÀ°è C£ÀĪÉÆzÀ£ÉAiÀiÁVgÀĪÀ ªÀ¸Àw
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WP No. 7587 of 2021
¸ÀªÀÄÄZÀÑAiÀÄ C©üªÀÈ¢Ý AiÉÆÃd£Á £ÀPÉëAiÀÄAvÉ ¨ÉAUÀ¼ÄÀ gÀÄ
C©üªÀÈ¢Ý ¥Áæ¢üPÁgÀPÌÉ ¥ÀjvÁåd£À ªÀiÁrgÀĪÀ 12.00«ÄÃ
CUÀ®zÀ gÀ¸ÉÛ EgÀÄvÀÛzÉ."
Added, the very Relinquishment Deed contains intrinsic
material to infer that there has been such a road since
years; even the google map vouches such existence. In
fact, the Respondent No.4 having accomplished the layout
development has already sold several apartments, after
securing the Occupancy Certificate on 20.7.2022.
(f) Counsel for the Respondent No.4 is more than
justified in contending that, whatever arguable rights the
Petitioner had in respect of relinquished area, cannot be
now reclaimed by the Petitioner to the detriment of public
commuters because of estoppel & acquiescence, especially
when the said road is being used by the residents of these
two layouts & the public, since a decade or so. It is a
matter of common knowledge that the aspirants of sites or
apartments go for the purchase only after ascertaining the
existence of access roads like the pme at doscissopm and
such other amenities that avail to them. Further, this court
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WP No. 7587 of 2021
is not sure whether the concept of "gated community" has
legal cognition in the statutory schemes envisaged under
the provisions of the Karnataka Town and Country
Planning Act, 1961 and the Bangalore Development
Authority Act, 1976. No law is notified to court nor any
ruling is cited to substantiate a contra view.
(g) The vehement submission of learned Sr.
Advocate Mr.Vivek Reddy that the impugned notice has
been issued unilaterally in gross violation of principles of
natural justice and therefore, should be voided, does not
merit acceptance. The principles of natural justice cannot
be ritualistically invoked as a mantra; one who complains
of their violation should prima facie demonstrate that had
he been given an opportunity, he could have shown
something that would have eventually not resulted into
impugned action of the kind. Where adherence to
principles of natural justice would not even otherwise have
resulted into gainful product, the contention of their
contravention, does not much avail. This view gains
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WP No. 7587 of 2021
support from the decision of the Apex Court in
S.L.KAPOOR VS. JAGMOHAN AIR 1981 SC 136.
In the above circumstances, this Writ Petition being
devoid of merits, is liable to be dismissed and accordingly,
it is, costs having been reluctantly made easy.
Sd/-
JUDGE
cbc
