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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 26TH DAY OF JUNE 2014

BEFORE

THE HON’BLE MR. JUSTICE RAM MOHAN REDDY

W.P.No.33033/2012 (LB-BMP) c/w

W.P.Nos.7242 & 8303/2012 (KLR-RR/SUR),

W.P.Nos.27467 & 27661/2012 (LB-BMP) &

W.P.Nos.34636 – 34638/2011 (LB-BMP)

IN W.P.No.33033/2012: BETWEEN M/S HAMARA SHELTERS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, AND HAVING ITS REGISTERED OFFICE AT NO.41, VITTAL MALLYA ROAD, BENGALURU - 560 001 AND REP. BY ITS AUTHORISED SIGNATORY MR GIRISH GUPTA H S

... PETITIONER

(BY SRI UDAYA HOLLA, SR. ADV. FOR SRI S MAHESH, ADV.) AND

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE (BBMP), J C ROAD, N R SQUARE BANGALORE SOUTH, BENGALURU.

2. THE DEPUTY COMMISSIONER LAND ACQUISITION AND TDR BRUHAT BANGALORE MAHANAGARA PALIKE BENGALURU.

3. THE NATIONAL TEXTILE CORPORATION (APKK & M) LTD., A GOVERNMENT OF INDIA UNDERTAKING,

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HAVING ITS OFFICE AT III FLOOR, NANJAPPA MANSION, 29/2, K H ROAD, SHANTINAGAR BENGALURU 560027.

4. THE STATE OF KARNATAKA,

BY ITS SECRETARY, URBAN DEVELOPMENT DEPARTMENT, VIKAS SOUDHA, DR.AMBEDKAR VEEDHI, BANGALORE.

... RESPONDENTS

(BY SRI ASHOK HARANAHALLI, SR. ADV. FOR SRI. SANDEEP PATIL, ADV. FOR R-1 & 2; SRI H.KANTHARAJA, AAG FOR SRI VASANT V. FERNANDES, HCGP FOR R-4; SRI S.SRIRANGA, ADV. FOR R-3.)

THIS WP FILED PRAYING TO QUASH THE IMPUGNED ORDER DATED 24.08.2012, ISSUED BY THE R2, REJECTING THE REVALIDATE THE TDR VIDE ANNEX-A AND THE JOINT COMMITTEE REPORT 19.08.2011 VIDE ANNEX-X AND ALL ITS CONSEQUENT PROCEEDINGS. IN W.P.Nos.7242 & 8303/2012: BETWEEN

1. HAMARA SHELTERS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, AND HAVING ITS REGISTERED OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU-560 001 AND REP. BY ITS DIRECTOR MR GIRISH GUPTA H S

2. ABHISHEK DEVELOPERS

A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU-560 001 AND REP. BY ITS AUTHORISED SIGNATORY MR GIRISH GUPTA H S

... PETITIONERS

(BY SRI UDAYA HOLLA, SR. ADV. FOR SRI. S MAHESH, ADV.)

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AND

1. THE COMMISSIONER SURVEY, SETTLEMENT & LAND RECORDS K R CIRCLE, BENGALURU.

2. THE JOINT DIRECTOR OF LAND REFORMS

OFFICE OF THE COMMISSIONER OF SURVEY SETTLEMENT & LAND RECORDS K R CIRCLE, BENGALURU

3. THE COMMISSIONER

BRUHAT BANGALORE MAHANAGARA PALIKE J C ROAD, N R SQUARE BANGALORE SOUTH, BENGALURU

4. THE ASSISTANT DIRECTOR

LAND RECORDS, CITY SURVEY ENQUIRY-1 BENGALURU

5. THE ENQUIRY OFFICER

CITY SURVEY-1, BENGALURU ... RESPONDENTS

(BY SRI ASHOK HARANAHALLI, SR. ADV. FOR SRI. SANDEEP PATIL, ADV. FOR R-3; SRI H.KANTHARAJA, AAG FOR SRI VASANT V. FERNANDES, HCGP FOR R-1, 2, 4 & 5.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED PROCEEDINGS IN REVISION SUOMOTO 2/11-12 INITIATED BY THE R1 THE COMMISSIONER OF SURVEY SETTLEMENT AND LAND RECORDS AS PER HIS NOTICE DATED 13.01.2012 UNDER ANNX-Y AND ALL ITS CONSEQUENT PROCEEDINGS. IN W.P.Nos.27467 & 27661/2012: BETWEEN

1. HAMARA SHELTERS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, AND HAVING ITS REGISTERED OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU-560 001 AND

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REP. BY ITS DIRECTOR MR GIRISH GUPTA H S

2. ABHISHEK DEVELOPERS

A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU-560 001 AND REP. BY ITS AUTHORISED SIGNATORY MR GIRISH GUPTA H S

... PETITIONERS (BY SRI UDAYA HOLLA, SR. ADV. FOR SRI. S MAHESH, ADV.) AND

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE J C ROAD, N R SQUARE BANGALORE SOUTH, BENGALURU

2. THE JOINT COMMISSIONER

BRUHAT BANGALORE MAHANAGARA PALIKE WEST ZONE, BANGALORE

... RESPONDENTS (BY SRI ASHOK HARANAHALLI, SR. ADV. FOR SRI SANDEEP PATIL, ADV.)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES

226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS OR ANYONE CLAIMING THROUGH THEM NOT TO MAKE ANY CLAIM OR INTERFERE INTO THE POSSESSION OF THE SAID PROPERTY OR ANY PORTION THEREOF, BASED ON THE JOINT COMMITTEE REPORT UNDER ANNEX-S. IN W.P.Nos.34636 – 34638/2011: BETWEEN

1. HAMARA SHELTERS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, AND HAVING ITS REGISTERED OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU-560 001 AND REP. BY ITS DIRECTOR MR GIRISH GUPTA H S

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2. M/S ABHISHEK DEVELOPERS A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU-560 001 AND REP. BY ITS AUTHORISED SIGNATORY MR GIRISH GUPTA H S

3. MR SUSHIL MANTRI

S/O MR. PANDURANG MANTRI AGED ABOUT 46 YEARS, HAVING OFFICE AT MANTRI HOUSE, # 41, VITTAL MALLYA ROAD, BANGALORE-560001

... PETITIONERS

(BY SRI UDAYA HOLLA, SR. ADV. FOR SRI. S MAHESH, ADV.) AND

1. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE J.C ROAD, N.R. SQUARE, BANGALORE SOUTH, BANGALORE.

2. THE DEPUTY COMMISSIONER BRUHATH BENGALURU MAHANAGARA PALIKE BENGALURU

3. NATIONAL TEXTILE CORPORATION (APKK & M) LTD., A GOVERNMENT OF INDIA UNDERTAKING, HAVING ITS OFFICE AT III FLOOR, ‘NANJAPPA MANSION’, 29/2, K.H. ROAD, SHANTHINAGAR, BENGALURU- 560 027

... RESPONDENTS (BY SRI ASHOK HARANAHALLI, SR. ADV. FOR SRI SANDEEP PATIL, ADV. FOR R-1 & 2; SRI S.SRIRANGA, ADV. FOR R-3.)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED REPORT DATED 19.08.2011 SUBMITTED BY THE JOINT COMMITTEE CONSTITUTED BY IST RESPONDENT UNDER ANNEXURE VI, ITS CONSEQUENTIAL ENQUIRY PROCEEDINGS BEFORE THE 2ND RESPONDENT AND THE NOTICE DATED 27.08.2011 UNDER ANNEXURE V2 ISSUED BY THE 2ND RESPONDENT THREATENING TO CANCEL THE KHATA ISSUED IN FAVOUR OF THE PETITIONERS PROPERTY.

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THESE WRIT PETITIONS COMING ON FOR ORDERS ON BEING SPOKEN TO THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

Since common questions of fact and that of law

arise for decision making, these petitions are clubbed

together, finally heard and disposed of by this order.

Facts briefly stated are:

I Immovable properties bearing:-

(a) CTS No.3593 measuring 13.592 acres;

(b) CTS No.3593(P) measuring 1.492 acres;

(c) Sy.No.43 measuring 2.016 acres;

(d) CTS No.3593 measuring 0.907 acres;

(e) CTS No.908 measuring 0.263 acres;

(f) CTS No. 3596 measuring 0.420 acres;

in all measuring 18.69 acres (75,634.69 sq. mtrs.) when

owned and possessed by M/s Mysore Spinning and

Manufacturing Mills Limited (‘MSMML’ for short) under

the then Maharaja of erstwhile State of Mysore, put up

factory, go-down, sheds, residential quarters and other

structures thereon to carry on its business activities

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and encompassed the said properties by a compound

wall all around. Consequent upon several textile mills

including M/s MSMML being declared sick, were

acquired and all the right, title and interest in the said

mills stood transferred and vested in M/s National

Textile Corporation (‘NTC’ for short), a Government of

India undertaking, under The Sick Textile Undertakings

(Nationalisation) Act, 1974, with effect from 01.04.1974,

whence the immovable properties of M/s MSMML

assessed to property tax under the erstwhile Bangalore

municipality and there afterwards by the Corporation of

the city of Bangalore and khatha certificate issued

recording the name of M/s MSMML in its revenue

registers, was changed to the name of M/s NTC.

II. M/s NTC having applied for change of land use,

the State Government by order, dated 27.07.2000

accorded permission for change of land use from partly

industrial and partly park area to multistoried

commercial use following which the Bangalore

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Development Authority (‘BDA’ for short) issued a

commencement certificate, dated 12.12.2003.

III. M/s NTC issued a tender notice for sale of the

lands including buildings belonging to M/s MSMML by

a publication in the news paper ‘Prajavani’ dated

05.04.2003. M/s Hamara Shelters Private Limited,

petitioner is said to be the successful bidder, whence,

M/s NTC executed and lodged for registration:-

(a) Sale deed dated 09.01.2004 conveying 13.592

acres (5,92,068 sq.ft) being part of CTS No.3593

as described in the schedule thereto and annexed

with a plan, and;

(b) Sale deed dated 27.05.2004 conveying:

(i) Sy.No.43 bearing CTS No.3593(P)

measuring 1.492 acres;

(ii) Sy.No.43 measuring 2.016 acres;

(iii) Part of CTS No.3593 measuring 0.907

acres;

(iv) Part of CTS No.908 measuring 0.263

acres;

(v) CTS No.3596 measuring 0.420 acres;

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in all measuring 5.098 acres (2,22,068.88 sq.ft.) or

20,630.702 sq.mtrs. as described in the schedule

therein annexed with a plan. Both the properties, it is

said, were assigned with municipal No.1 by the

municipality at the earliest point of time and there

afterwards continued by the erstwhile Bangalore

Mahanagara Palike (‘BMP’ for short).

IV. The respondent/Bruhath Bengalooru Mahanagara

Palike (‘BBMP’ for short) passed an order under Section

114 of the Karnataka Municipal Corporation Act, 1976,

(‘KMC Act’ for short) accepting the transfer of immovable

properties supra, by M/s NTC in favour of petitioner,

accordingly effected changes in its records, issued a

khatha certificate dated 16.03.2005 assigning a

Property Identification Number (PID) which when

assessed to tax, was paid by the petitioner.

V. Petitioner/purchaser having made diligence over

title and possession of the aforesaid immovable

properties of the erstwhile M/s MSMML, later on M/s

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NTC, applied for and obtained permission for

development of the said properties from Karnataka

State Pollution Control Board; Department of Fire Force,

Department of Forest, Bangalore Water Supply and

Sewage Board; Bangalore Electricity Supply Company;

Bharath Sanchar Nigam Limited, Metro Rail

Corporation Limited; Airport Authorities of India and

the Bruhath Bengalooru Mahanagara Palike. According

to the petitioner, the purpose of securing these

permissions/ no objection certificate was to put up

multistoried residential complex known as ‘Mantri

Greens’ and commercial complex known as ‘Mantri

Square’.

VI. The respondent/BBMP having noticed severe

traffic congestion on Sampige Road, initiated process to

lay a new road to reach the 2nd Main Road,

Malleshwaram, near Srirampura Railway under pass,

through municipal property No.1, 2nd Main Road,

belonging to the petitioner, and sought to acquire land

measuring 12,268 sq.mtrs. as stipulated in the

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Government Notification dated 18.01.2005, which the

petitioner, along with group companies (Mantri Group)

having accepted, in public interest, volunteered to

surrender the said extent of land, following which,

BBMP is said to have invoked Section 14B of the

Karnataka Town and Country Planning Act, 1961,

(‘KTCP Act’ for short) and called upon the petitioner to

execute a relinquishment deed and hand over

possession of the said property on issue of Transfer

Development Right Certificate (‘TDR certificate’ for

short), also known as Development Right Certificate

(‘DRC’ for short). Petitioner claims to have complied

with the said request and executed a relinquishment

deed dated 06.03.2006 in favour of BBMP which when

duly registered, BBMP issued the TDR certificate

bearing No.3 dated 02.05.2006 in the name of M/s

Hamara Shelters Private Limited.

VII. M/s Karnataka Industrial Area Development

Board, by notification dated 24.10.2007 acquired land

measuring 5.04 acres from out of 15.680 acres

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belonging to the petitioner for ‘Namma Metro’ project, a

public purpose, proposed by M/s Bangalore Metro Rail

Corporation Limited (‘BMRCL’ for short). Consequent

upon the acquisition and delivery of possession of

property, BBMP effected change of katha in the name of

M/s BMRCL to that extent of land. Petitioner along

with group company, namely, M/s Mantri

Infrastructures Private Limited, entered into a

concession agreement with BMRCL to construct a metro

station at Swastik at its own cost together with other

constructions as stipulated in the terms and conditions

therein.

VIII. Petitioner applied for and obtained from BBMP

sanction of building plans to put up residential

apartments consisting of four wings/blocks each having

ground plus 18 upper floors and a commercial complex

consisting of two basements plus two ground plus three

upper floors and having put up construction, BBMP

issued occupancy certificates where afterwards, the

residential units in the buildings were conveyed to

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purchasers who are in possession and enjoyment, while

the commercial complex is said to be in possession of

third parties who carry on business therein.

IX. The State Government though issued a declaration

of a Revised Master Plan (‘RMP’ for short) under the

Karnataka Town and Country Planning Act, 1961,

nevertheless did not provide for widening of Sampige

Road by four metres, by acquiring land adjoining the

road, belonging to private parties, including that of the

property belonging to petitioner. Respondent/ BBMP, it

is asserted, took a stand that widening of the said road,

in the absence of a clearance from the Government, was

not permissible.

X. Despite the stand of BBMP, its officials, without

prior notice, demolished a portion of the ramp

compound and other portions of the property on

01.06.2011 at about 6.00 am which was resisted by the

petitioner who instituted W.P.No.19757/2011, whence

this Court issued an interim order of stay of further

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demolition and by final order dated 05.03.2013

disposed of the petition by recording thus:

“Taking on record the affidavit dt. 5.3.2013 of

Sri.Siddaiah, Commissioner of the Bruhat

Bangalore Mahanagara Palike expressing

remorse for having removed a portion of the

compound belonging to the petitioner and the

action on the part of the officials of the BBMP

which the learned Sr.counsel for the petitioner,

on instructions, submits may be accepted,

nothing further survives for consideration in

this petition.

2. Sri.K.N.Puttegowda, learned counsel for

BBMP submits that action under the Land

Acquisition Act, 1894, for short ‘Act’ for

acquisition of 4 mtrs wide land belonging to the

petitioner will be initiated, for a public purpose

i.e. formation of a road, invoking Section 17 of

the Act, in view of the extreme urgency, and

would conclude the proceeding by drawing an

award within six months time from today.

Learned Sr.counsel for the petitioner has no

objection to the course of action of the BBMP

except for the petitioner filing objections, if

necessary, over the quantum of compensation

which the BBMP, in accordance with law has to

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make a reference to the Civil Court for

adjudication over enhancement of

compensation. The submission of the learned

counsel for the parties is recorded and the

BBMP is reserved the liberty to cause necessary

notifications under the Act for for acquisition of

the portion of the property of the petitioner. It

is needless to state that since the urgency

clause is likely to be invoked, the respondent-

BBMP is directed to ensure issuance of

notifications under the Act and take possession

not earlier thereto, in accordance with law and

issue the notification under Section 16(2) of the

Act.

Petition is accordingly disposed of.”

XI. The Joint Commissioner of the first respondent/

BBMP issued a show cause notice dated 30.06.2011

informing constitution of a Joint Enquiry Committee

and called upon the petitioner to clarify over the

allegations of having acquired land not belonging to it

which was responded to by a reply. Following the report

dated 19.08.2011 of the Joint Committee, the Joint

Commissioner issued notice dated 27.08.2011 to show

cause as to why the khatha should not be cancelled by

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invoking Section 114-A of the KMC Act, whence, the

report as well as the notice are called in question in

W.P.No.34636-638/2011 on the premise that khatha

once issued on 16.08.2005 cannot be revoked three

years there afterwards, in view of the prescription of

limitation under Section 114-A of the KMC Act.

XII. On the complaint dated 20.09.2011 of the BBMP,

the Commissioner of Survey Settlement and Land

Records sought to enquire into the allegations of

inclusion of certain areas by the petitioner, not

belonging to it, as indicated in the Joint Committee

Report dated 19.08.2011, following which the said Joint

Commissioner issued a notice dated 13.01.2012

informing that the Commissioner, BBMP, as well as the

Assistant Director of Land Records submitted a report

that the enquiry officer’s order dated 17.10.1975 over

CTS No.3593 was defective, and that the State

Government was interested in rectifying the mistake,

hence, the initiation of suo-motu revision proceeding

calling upon the petitioner to appear on 28.01.2012,

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which proceeding is called in question in W.P.Nos. 7242

and 8303/2012 on the premise that under the proviso

to Section 56 of the Karnataka Land Revenue Act, 1964

(‘KLR Act’ for short) the limitation prescribed for

exercising power of revision is three years from the date

of order sought to be revised.

XIII. Petitioner preferred W.P.Nos.27467 and

27661/2012 for a writ of mandamus restraining the

BBMP from making any claim or interfering with its

peaceful possession and enjoyment of the aforesaid

immovable properties on the basis of the Joint

Committee Report, dated 19.08.2011.

XIV. The rejection of petitioner’s application dated

08.06.2012 for revalidation of the TDR certificate upon

payment of the required fee by communication dated

24.08.2012, on the allegations contained in the Joint

Committee Report dated 19.08.2011 is called in

question in W.P.No.33033/2012 on the premise that

condition no.5 in the notification dated 18.01.2005 of

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the State of Karnataka gazetted on 03.02.2005 requiring

re-validation of the certificate every five years is ultra-

vires the Constitution of India and that BBMP has no

right in law to direct the petitioner to fully utilize the

development rights within five years from the date of

issue of the certificate. In addition, petitioner sought for

a direction to the BBMP to accord sanction to the

integrated development plan of Swastik Metro Station

on the basis of the plan submitted by the petitioner and

BMRCL.

2. (a) W.P.No.33033/2012 is opposed by filing

statement of objections of the respondent/BBMP inter-

alia seeking to support the action as fully justified and

not calling for interference. The rejection of the

application to re-validate the TDR certificate, it is said,

is based upon Joint Committee Report dated

19.08.2011 and consequent proceedings. According to

the respondent, allegations were made by several public

representatives over encroachment by the petitioner of

Government tank bed, public road and railway property,

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which are not the properties belonging to the petitioner

and an allegation that TDR certificate was obtained after

surrendering extent of land not belonging to the

petitioner, hence BBMP constituted a committee

comprising of three Deputy Commissioners, i.e., Estate,

Health and; Land Acquisition who it is said, conducted

a survey of CTS No.3593, however, without notice to the

petitioner, compared the extent of land shown in a

village map and pointed out several discrepancies in the

Joint Committee Report dated 19.08.2011. It is the

assertion of respondent/BBMP that the said report is

“recommendatory” and yet to be tabled before the

Corporation Council. As regards condition No.5 in the

Government Notification dated 03.02.2005 that TDR

certificate is valid for five years and should be re-

validated every five years, it is submitted that petitioner

having accepted the said term amongst others, was

issued with the certificate hence, cannot be allowed to

turn round and question the said condition and

therefore, estopped from challenging the said condition.

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At paragraph-6 of the statement of objections,

respondent/ BBMP states that the integrated

development plan for Swastik Metro Station is under

active consideration and that necessary orders would be

passed there on under the KMC Act, building bye-laws

and it was pre-mature for the petitioner to approach the

Court for a writ of mandamus.

(b) The State Government filed its statement of

objections dated 31.07.2013 inter-alia contending that

surrender of land in lieu of payment of compensation

being voluntary, not compulsory and being optional,

under Section 14-B of the KTCP Act, petitioner having

accepted condition No.5 of the terms and conditions for

issue of TDR, cannot be permitted to call in question the

said condition. In addition, it is contended that the

condition does not impinge upon any constitutional or

statutory right of the petitioner but “enables the local

authority for proper monitoring of the generation and

utilization of the DRC’s and to facilitate the revision of

master plan as per Section 13D of the KTCP Act and for

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providing necessary infrastructure in areas where TDR

is utilized.” As regards the object behind insertion of

Section 14(b) of the KTCP Act, it is stated thus:

“11. Further, this Hon’ble Court, in its interim

order dated 24.04.2013, has directed to place the

objects behind the insertion of Section 14(b) to the

Karnataka Town and Country Planning Act. The

following are the objects for insertion of Section

14(b) to the Karnataka Town and Country

Planning Act.

(i) The process of acquisition of lands in

urban areas under the Land Acquisition Act, for

public purposes such as road widening,

implementation of infrastructure projects,

providing parks and play grounds,

implementation of Master Plan proposals etc.,

has led to too many legal complications

resulting in project delays and cost escalation,

thus affecting development.

(ii) In order to overcome such project delays

and cost escalation in land acquisition and to

enable a process which could be more

effectively and advantageously implemented for

acquiring land, the Government of Karnataka

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after detailed study of the situation in other

neighbouring States, introduced the

Transferable Development Rights (TDR). Cities

like Mumbai, Chennai, Pune and Hyderabad

have already successfully implemented the

same.

(iii) TDR benefits both, the land owner by

way of getting compensation for the land

surrendered and also the Authority by way of

successfully implementing not only the

proposals of Master Plan but also other

infrastructure projects.

(iv) To empower the Planning Authority to

permit;

(a) Additional Floor Area Ratio of 100

percent for the land handed over free of

cost whenever such lands are required for

road widening purposes or for formation

of new roads.

(b) Additional Floor Area Ratio upto 100

percent in case of starred hotels subject

to payment of a minimum of fifty percent

and a maximum of 100 percent of the

market value of land equivalent to the

Floor Area Ratio permitted.”

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(c) State Government filed a memo dated 05.04.2014

enclosing a copy of the general terms and conditions of

issue of Development Right Certificate of the Municipal

Corporation of Greater Bombay; statement of objections

as well as objects behind insertion of Section 14B of the

KTCP Act, w.e.f. 02.06.2004 and justification of

condition no.5 of the terms and conditions of grant of

Transferable Development Right under the KTCP Act

signed by the Director of Town and Country Planning

(in-charge), Bangalore.

(d) During pendency of this proceeding on

15.04.2013, this Court passed the following Order:

“In the light of the proceedings of the

meeting held under the chairmanship of the

Prl.Secretary to Government Urban

Development Department on 27.11.2012 in

respect of sanction of plan for building the

Metro Station Integrated with Residential and

Commercial Building as part of the PPP

between BMRCL and Abhishekh Developers

(Mantri Developer Group), Annexure-AF, the

Prl.Secretary and the Commissioner of BBMP

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are directed to comply with the decision and

report by 18.4.2013.

Government Advocate to forthwith inform

the Prl.Secretary of the said order.”

Pursuant thereto, BBMP filed a memo dated

24.04.2013 stating that in compliance with the direction

dated 15.04.2013 BBMP has decided to request the

Government to reconsider and recall the order issued in

the meeting dated 27.11.2012, however, the plan, is

accorded sanction on 30.07.2013. On the interim order

dated 16.01.2014, the TDR certificate No.3 issued to the

petitioner was re-validated by the BBMP for five years

from 02.05.2011 to 01.05.2016.

(e) W.P.Nos.34636-638/2011 is opposed by filing

statement of objection of respondent/BBMP inter-alia

contending that the Joint Committee Report dated

19.08.2011 is yet to be deliberated upon and therefore,

the challenge to it is pre-mature. As regards the show

cause notice to cancel the khatha, it is said without a

response in writing by the petitioner and since no

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adverse decision is taken, petitions are pre-mature,

while the direction to restrain the respondents from

interfering with petitioner’s business activities is more

in the nature of injunction, hence must be relegated to

the Civil Court. It is further stated that property

bearing CTS No.3593 on Platform Road, originally

belonged to M/s MSMML which was taken over as a

sick textile industry by M/s NTC, while the properties

were assigned CTS Nos.3593, 3596 and 908. At

paragraph 5, it is admitted that NTC executed sale

deeds conveying the immovable properties in favour of

the petitioner. It is reiterated that several allegations

were made by “various sections of society” over alleged

encroachment by the petitioner upon the properties

belonging to the Government, railways and other

authorities and therefore, the Joint Committee was

constituted. The allegations of encroachment,

according to the respondent, appeared in several

newspapers and the Joint Committee before

commencement of the enquiry issued notice dated

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30.6.2011 which was responded to by the petitioner by

way of reply dated 5.7.2011. It is further reiterated that

a survey was conducted, and “on verification of the

village maps and revenue records” led to the Joint

Committee submitting a detailed report. It is the

allegation of the respondent-BBMP that NTC Ltd.,

owned 15 acres 19 ¼ guntas but the sale was in respect

of 18 acres 27½ guntas, while the physical survey

disclosed that petitioner was in actual occupation of an

area measuring 19 acres 1½ guntas. In addition, it is

stated that the Joint Committee report indicated that an

area shown as Bangalore-Tumkur road in village map

measuring 2 acres 31 guntas; Halla measuring 4

guntas; kere (tank) measuring 35 guntas and

Government land abutting the railway line measuring

32 guntas were illegally included in the sale deeds

executed by NTC in the sale transaction. Additionally, it

is stated that apart from the aforesaid properties,

railway properties were encroached upon and in all,

government land measuring 4 acres 24 guntas was

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encroached upon by the petitioner. At paragraph 8, it is

stated that the Memorandum of Understanding (MOU)

entered into between the petitioner and BMRCL for

construction of the metro station along with commercial

units is in respect of property measuring 5 acres 4

guntas forming part of CTS 3593 and the Joint

Committee unearthed an extent of 1 acre 34 guntas

including 28 guntas as belonging to the railways and

not to the petitioner though included in the MOU and

therefore, the BBMP has taken the issue with regard to

the development of an extent of 1 acre 34 guntas with

BMRCL. At paragraph 9, it is stated that 3 acres of land

in CTS 3593 was allegedly handed over to the BBMP for

construction of the road for citizens to approach the

metro station when Transfer Development Right (TDR)

certificate equivalent to 1.5 times the area relinquished

by the petitioner for the said road was issued. That,

petitioner when found not to own or possess the said

extent of land, is disentitled to TDR certificate.

According to the BBMP, the land surveyed for

28

construction of the road when superimposed on the

village map, discloses encroachment of 28 guntas

belonging to railways; 21½ guntas of a tank; 1 acres 3

guntas of the erstwhile Bangalore-Tumkur road and 28

½ guntas private land. At paragraph 10, it is stated

that after several years some factual aspects regarding

ownership of the properties belonging to MSMML and

NTC, railways and government in CTS 3593 surfaced,

which was reported by the Joint Committee in its

report. It is said, BBMP is yet to take a decision over

the said matter and that only after deliberation

necessary action would be initiated and the petitioner

cannot prempt the corporation from acting upon the

Joint Committee report. It is further alleged that the

notice dated 27.8.2011 is to put on notice the petitioner

and to elicit clarification so as to pass orders over

continuation of the katha or otherwise. It is lastly

stated that petitioners having suppressed relevant

material facts and obtained TDR certificate, are not

entitled to any of the reliefs.

29

3. Having heard learned Sr.counsel Sri.Udaya Holla

for the petitioners, learned Sr.counsel Sri.Ashok

Haranahalli for BBMP and the learned AAG, perused

the pleadings and examined the order rejecting

petitioners’ claim for renewal of TDR, the notification

issued under Section 14-B of the KTCP Act, the Joint

Committee report dt. 19.8.2011, the notice of suo motu

revision and notice under Section 114-A of the KMC Act

and the statutory provisions, the following points arise

for consideration:

I) Whether in the light of prescription of

time under Section 114-A of the KMC

Act, the BBMP is justified in issuing

notice dated 28.7.2011 to revoke khata

dt. 16.8.2005 of the immovable

properties standing in the name of the

petitioner?

II) Whether the constitution of the Joint

Committee consisting of the Deputy

Commissioner (Estate); Deputy

Commissioner (Health) and Deputy

Commissioner (Land Acquisition)

investing jurisdiction to conduct an

independent enquiry including survey of

30

the lands in CTS No.3593 belonging to

the petitioner, without involving the

petitioner at every stage of such enquiry

and survey and “comparing the extent of

land purchased by the petitioner” from

M/s NTC by superimposing it on an

alleged village map, followed by

submission of a report dated 19.8.2011

alleging that petitioner encroached upon

the lands belonging to railways,

Bangalore-Tumkur road, water tank and

government land, is legal, valid and has

the force of law ?

III) Whether in the light of the order dated

17.10.1975 of the Survey officer

certifying the extent of land in CTS 3593

belonging to the erstwhile M/s MSMML

taken over by M/s NTC and put to

auction whence petitioner purchased the

properties in a public auction, regard

being had to the proviso to Section 56 of

the KLR Act, the Joint Commissioner of

City Survey and Settlement was justified

in initiating suo-motu Revision No.2/11-

12 by issuing notice dated 13.01.2012 on

the complaint dated 20.9.2011 of the

31

BBMP allegedly based upon the Joint

Committee report dated 19.8.2011?

IV) Whether on the basis of the Joint

Committee report dt. 19.8.2011 the

BBMP is justified in interfering with

petitioners’ peaceful possession and

enjoyment of the immovable property in

CTS No.3593 ?

V) Whether the BBMP was justified in

rejecting petitioners request for renewal

of TDR certificate NO.3 dated 2.5.2006 by

communication dated 24.8.2012 on the

premise of the report dated 19.8.2011 of

the Joint Committee ?

VI) Whether the BBMP was justified in not

according approval/sanction to the

integrated plan submitted by petitioner

and BMRCL for integrated development

and construction of Swastik Metro

Station despite the decision of the

Principal Secretary, Urban Development

Department (UDD) as a Chairman in the

meeting held on 27.11.2012 ?

VII) Whether condition No.5 in the

Government Notification dated 3.2.2005

32

duly gezetted is ultra vires the

Constitution of India as asserted by the

petitioner ?

POINT NO.I:

Facts not being in dispute there is no necessity to

reiterate the same, suffice it to notice that though

Section 114-A of the KMC Act invests a review

jurisdiction in the Commissioner, BBMP, nevertheless

prescribes a period of limitation of three years from the

date of order recording transfer of title sought to be

reviewed. In the instant case there is no dispute that

recording the transfer of title in favour of the petitioner

was on 16.8.2005 while the predecessors-in-title viz.,

M/s NTC was during the year 1975 and that M/s

MSMML was wayback during the regime of the

Maharaja of the State of Mysore, by the erstwhile City

Municipality when CTS No.3593 was assigned to the

properties by the then Survey and Settlement

Authorities. Therefore, notice dt. 28.7.2011 of the

BBMP to reopen the case and pass such orders with

respect thereto as Commissioner thinks fit by exercising

33

a review jurisdiction is without jurisdiction and dehors

competence, being beyond the period of limitation. The

initiation of the proceeding for review by the

Commissioner, BBMP is tainted with arbitrariness,

colourable exercise of power, illegal and unsustainable.

The first point for consideration is answered in the

negative and against the BBMP holding that there is no

justification to issue the notice dt. 27.8.2011 invoking

Section 114-A of the KMC Act.

POINT NO.II.

(i) The KMC Act and Rules framed thereunder do not

envisage the constitution of a joint enquiry committee

by the commissioner, BBMP. Assuming that the

Commissioner in exercise of his general power of

superintendence did have jurisdiction to constitute a

committee in the matter of administration of the

corporation nevertheless no such power is shown to

invest a jurisdiction in the committee to go into the

legality and validity of the unsubstantiated allegations

made by “various sections of society”, into the properties

34

belonging to the erstwhile M/s MSMML taken over by

the M/s NTC under the provisions of Sick Textile

Undertakings (Nationalisation) Act, 1974 so as to undo

what had been done, sanctioned, permitted and

authorized by the then Municipality followed by

Corporation of the City of Bangalore, and later by the

Bangalore City Corporation and finally by the BBMP.

(ii) There is no dispute that the Deputy Commissioner

(Estate) custodian of all relevant material particulars of

all properties belonging to the Corporation, if vested in

it, to ascertain as to whether petitioner had, in fact,

usurped the properties belonging to the corporation.

The jurisdiction if any of the Deputy Commissioner

(Estate) would rest on the properties belonging to the

BBMP as have been transferred to it by the government

and in order to safeguard such properties Commissioner

ought to have taken recourse to Section 178-A o the

KMC Act relating to decisions of claims on and behalf of

the corporation. Hence the constitution of the joint

committee perse is not only arbitrary, capricious but is

35

colourable exercise of power and the illegality is

pulsating calling for interference.

(iii) Yet another reason to hold that the committee had

no jurisdiction to enquire into and submit a report is

the fact that the committee is said to have conducted a

survey of CTS No.3593, a duty obligated on the

Commissioner for survey and settlement in the State of

Karnataka under the Land Revenue Act. When a

statutory authority is empowered to discharge its duties

in the matter of survey of all properties in the State of

Karnataka, it is not known as to why the Deputy

Commissioners of Estate, Land Acquisition and Health

of BBMP undertook jointly to conduct a survey of the

properties belonging to the petitioner. More so, in the

light of the fact that on the date when the khata was

made in respect of CTS No.3593, the then State of

Mysore was under the Maharaja and within the

jurisdiction of the Municipality, followed by the

Corporation, hence, no justifiable reasons are

36

forthcoming to undo all that was done in the previous

past by the very same authority.

(iv) Again it is not the case of the BBMP that the joint

committee was required to investigate into properties

belonging to BBMP, but as noticed supra, it is alleged

that the properties belong to the railway board, a Kunte

to the government of Karnataka and an alleged road

between Bangalore and Tumkur also belonging to the

State of Karnataka. If that is so, and if the properties

are not vested in the BBMP then, there was no reason

or justification to hold an enquiry by the constitution of

a Joint Committee.

(v) The report must suffer for yet another reason that

it militates against the principles of audi alteram partem

i.e. principles of natural justice, in not extending

reasonable opportunity of hearing to petitioners, M/s

NTC, the erstwhile title holder as well as M/s MSMML

who continued to be the owners in possession of the

properties in CTS No.3593.

37

(vi) Suffice it to notice that the constitution of the

Joint Committee is illegal, without authority of law, and

the effort of three officers of the BBMP have only

resulted in wasteful public time.

The second question is answered accordingly

holding that the constitution of Joint Committee and its

report are illegal, invalid and have no force of law.

POINT NO.III:

(i) If regard is had to the proviso to Section 56 of the

Karnataka Land Revenue Act, the initiation of suo motu

revision by the Joint Commissioner of Survey and

Settlement against the order dated 17.10.1975 of the

Survey Officer over CTS No.3593 belonging to the

petitioner, by issuing notice dt. 13.1.2012 is beyond the

period of limitation. Proviso to Section 56 prescribes

the period of limitation of three years from the date of

order sought to be revised.

(ii) In that view of the matter, answer to point No.3 is

in the negative holding that there was no justification

38

for the Joint Commissioner, Survey and Settlement to

initiate suo motu revision proceedings, that too on the

basis of a compliant dt. 20.9.2011 of the BBMP said to

be on the basis of the Joint Committee report dt.

19.8.2011.

POINT NO.IV:

Having recorded a finding that the constitution of

the Joint Committee and the report are illegal and the

report has no force of law, it is needless to state that the

BBMP was not justified in interfering with the

petitioners’ properties in CTS No.3593 and therefore,

the point is answered accordingly.

POINT NO.V:

For the very same reason that the constitution of

the Joint Committee and its report is held to be illegal,

there is no justification for the BBMP to have relied

upon such a report to decline the petitioners’ request for

renewal of TDR certificate No.3 dated 02.05.2006 in

terms of Section 14-B of KTCP Act and notification

39

issued thereunder. The said point is answered

accordingly.

POINT NO.VI:

(i) The integrated development plan for construction

of Swastik Metro station, submitted both by the

petitioner and M/s BMRCL was required to be

considered by the respondent-BBMP on the basis of the

decision of the Prl. Secretary, Urban Development

Department, State of Karnataka as Chairman in the

meeting held on 27.11.2012, as also in accordance with

the Building Bye-laws 2003 under the KMC Act. The

BBMP exhibited inertia in the matter of consideration of

the said plan for sanction, by its dilatory tactics despite

the directions of the Prl. Secretary, Urban Development

Department. A perusal of the Building Bye-laws 2003

clearly discloses that an obligation is cast upon the

BBMP to consider the plan and either accord sanction

in its original form or as modified or decline to accord

sanction, while there is no provision for procrastination.

The assertion of the BBMP in its statement of objections

40

that pursuant to the directions of this court in the order

dt. 15.4.2013 to comply with the decision of the Prl.

Secretary, Urban Development Department opinion was

sought from the officers of the BBMP further fortifies the

view of this court that there was no proper

consideration of the plan as required under the Building

Bye-laws 2003 since the said Building Bye-laws do

neither provide for discussion of such plan nor an

opinion by the officers of the BBMP. Be that as it may,

even if the decision of the Secretary, UDD of the State of

Karnataka is not taken into consideration nevertheless

a duty is cast upon the BBMP to ensure that every plan

for construction of a building when placed before it

must have its consideration in accordance with the

Building Bye-laws 2003. Suffice it to notice that due to

procrastination by the respondent-BBMP over the

consideration of the integrated plan for construction of

Swastik Metro station has resulted perhaps in increase

in the cost of inputs for construction. The answer to the

said point is in the negative holding that BBMP was not

41

justified in not considering and according sanction of

the building plan.

POINT NO.VII:

(i) It is relevant to extract Section 14-B of KTCP Act

which reads thus:

“14B. Benefit of development rights.- Where

any area within a local planning area is required

by a Planning Authority or local authority for a

public purpose and the owner of any site or land

which comprises such area surrenders it free of

cost and hands over possession of the same to the

Planning Authority or the local authority free of

encumbrances, the planning authority or the local

authority, as the case may be, may

notwithstanding anything contained in this Act or

the regulations but subject to such restrictions or

conditions as may be specified by notification by

the State Government, permit development rights

in the form of additional floor area which shall be

equal to one and half times of the area of land

surrendered. The development right so permitted

may be utilised either at the remaining portion of

the area after the surrender or anywhere in the

local planning area, either by himself or by

transfer to any other person, as may be

42

prescribed. The area remaining after surrender

shall have the same floor area which was available

before surrender for the original site or land as per

regulations.

Explanation.-

For the purpose of this section,-

(a) Public purpose means.-

(i) widening of an existing road or formation

of a new road;

(ii) providing for parks, playgrounds and

open spaces or any other civic amenities;

(iii) maintaining or improving heritage

building or precincts notified by the State

Government.

(iv) any other purpose notified by the State

Government from time to time.

(b) “development right” means the right to carryout

development or to develop land or building or both.

Illustration No.1:

In a plot area of 500 square meters at road “A”, where floor area ratio is 1.5.-

i Plot area 500 square meters

ii Permissible floor area

ratio

1.5

43

Iii Buildable floor area 500 x1.5 =750 square meters

iv Area surrendered 100 square meters

v Additional floor area in the form of Development Rights

150 square meters

vi Plot area after surrender 500-100=400 square

meters

vii Buildable floor area in plot area of 400 square meters (after surrender):-

(a) If additional floor area is not utilised in the same plot (b) If additional floor area is utilised in the same plot

750 square meters 750+150 = 900 square meters

Illustration No.2: In a plot area of 500 square meters at road “B”, where floor area ratio is 0.75:-

i Plot area 500 square meters

ii Permissible floor area ratio

0.75

Iii Buildable floor area 500 x0.75 =375 square meters

iv Area surrendered 100 square meters

v Additional floor area in

the form of Development Rights

150 square meters

vi Plot area after surrender 500-100=400 square meters

vii Buildable floor area in plot area of 400 square meters (after surrender):- (a) If additional floor area is not utilised in the same plot

375 square meters

44

(b) If additional floor area is utilised in the same plot

375+150 = 525 square meters

Illustration No.3: In a plot area of 500 square meters at road “C”, where floor area ratio is 0.75 and Development Right of 150 square meters originated at road “A” is transferred.-

i Plot area 500 square meters

ii Permissible floor area ratio

0.75

Iii Buildable floor area 500 x0.75 =375 square meters

Iv Additional floor area transformed from road

‘A'

150 square meters

v Total Buildable floor area

375+150=525 square meters

(emphasis supplied)

(ii) Prescription is found in the Government

Notification dated 18.1.2005 gazetted on 3.2.2005 and

the relevant portion i.e. condition No.5 reads thus:

“1. xxxxx

2. xxxxx

3. xxxxx

4.xxxxx

5. The DRC shall be valid for a period of five

years. However, the same may be revalidated for

a further period of five years subject to payment

of revalidation fee.”

45

(iii) Though the aims and objects of the prescription

are not found in the notification nor did the State

Government make available such aims and objects for

the notification, nevertheless the State Government in

its memo dated 5.4.2014 under the signature of the

Director of Town and Country Planning (In-charge)

states that the object behind insertion of Section 14-B

of the KTCP Act w.e.f. 2.6.2004 is that the process of

acquisition of land in urban area under the Land

Acquisition Act for public purposes such as road

widening, implementation of infrastructure projects,

providing parks and play grounds, implementation of

Master Plan proposals etc., led to too many legal

complications resulting in delay in projects and cost

escalation affecting development and in order to

overcome the difficulties the Govt. of Karnataka having

had a detailed study of the situations in the

neighbouring States introduced the Transferable

Development Rights and further that “TDR benefits

both, the land owner by way of getting compensation

46

for land surrendered and also the authority by way of

successful implementation not only the proposals of the

master plan but also infrastructure projects.”

(iv) As regards justification over condition No.5, the

Director of Town and Country Planning (in-charge)

states that:

(a) TDR is additional development right

(additional FAR) allowed to be constructed over

and above the permissible floor area of the

remaining portion of the land after surrender or

allowed to be transferred to any other eligible

land (as prescribed);

(b) the utilization of TDR increases the density of

construction in the areas where TDR is utilized

over and above the permissible FAR prescribed in

the master plan;

(c) the utilization of TDR is purely driven by the

real estate market and thus TDR would be

utilized by the builders where there is no real

47

estate demand for constructions made using

TDR

(d) that such additional areas are constructed

using TDR, it would create additional land on the

infrastructure such as roads, power supply,

water supply, UGD, etc., and also traffic

management of such areas;

(e) it becomes obligatory on the part of the

Planning Authority to timely monitor such

additional growth due to utilization of TDR and

to make suitable changes in the permissible FAR

limits for those areas during the revision of

Master Plan;

(f) Under Section 13-D of the KTCP Act, 1961

atleast once in every 10 years, the Planning

Authority shall initiate action to revise the

Master Plan for which information regarding the

potential growth centres and the utilization of

TDR is very much necessary. Accordingly a

48

reasonable time limit be prescribed for the

validity of utilization of TDR;

(g) If the TDR is utilized within a reasonable

timeframe of five years, there would be proper

balance between TDR generated and TDR

utilized;

(h) If no time framed is prescribed for utilization

of TDR it increases unwanted speculation and

holding of TDR in any particular area, of

excessive floor area is constructed using TDR, all

of a sudden due to market demand, it could

create chaotic situation, since provisions to

enhance the infrastructure and to make suitable

revision in the Master Plan is a very time

consuming exercise.

(v) There is force in the submission of Sri Kantharaj

learned Addl. Advocate General and

Sri.Ashokharanahalli, learned Senior Counsel for the

respondents that petitioner having exercised its option

49

under Section 14-B of KTCP Act to voluntarily surrender

the land belonging to it and having obtained the TDR

certificate No.3 dated 3.2.2005, followed by an

application for its revalidation at the end of fifth year,

fully aware of condition No.5 thereunder cannot at this

stage question the validity of the said condition.

Keeping open the constitutional validity of

condition No.5 to be considered in an appropriate

proceeding, the point is accordingly answered.

In the result, W.P.No.33033/2012 is allowed in

part. W.P. Nos.7242/12 & 8303/12, W.P.Nos.27467/12

and 27661/12, W.P.Nos.34636-34638/11 are allowed.

Impugned orders, notices and Joint Committee report

are quashed.

Sd/- JUDGE

kcm/ln

2014-07-02T15:10:52+0530ANAND N