H.V.TEJAS Vs. BRUHAT BENGALURU MAHANAGARA PALIKE

JUDGEMENT

(1.) 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 Sec. 40(5) along with interest under Sec. 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 2 nd 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 dtd. 17/3/2016, registered on 13/11/2018 as per Annexure-A. Thereafter, petitioners have changed the nature of the land to non- agricultural/commercial purpose as per the certificate dtd. 26/8/2015 (Annexure-B) issued by the BMICAPA (Planning Authority) and in this regard, Official Memorandum was issued on 11/1/2016 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 dtd. 21/6/2016 and in terms of the said Government Order dtd. 21/6/2016 (Annexure- G), the schedule property was identified for acquisition for expanding Bannerughatta Road as per Sec. 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 dtd. 1/6/2017 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 dtd. 6/3/2019. Respondent No.2-BDA has fixed quantum of compensation as per the 2016 KTCP Rules on 30/4/2019 (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 dtd. 11/11/2019. In view of issuance of Form-III dtd. 30/4/2019, petitioners have also executed Relinquishment Deed dtd. 15/2/2020 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 dtd. 2/3/2020 (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 dtd. 9/4/2020, 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 21/9/2020 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.