IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 26 TH DAY OF JUNE 2014 BEFORE THE HON BLE MR. JUSTICE RAM MOHAN REDDY

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 26 TH 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 & 27661/2012 (LB-BMP) & W.P.Nos /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 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,

2 2 HAVING ITS OFFICE AT III FLOOR, NANJAPPA MANSION, 29/2, K H ROAD, SHANTINAGAR BENGALURU 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 , ISSUED BY THE R2, REJECTING THE REVALIDATE THE TDR VIDE ANNEX-A AND THE JOINT COMMITTEE REPORT 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 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 AND REP. BY ITS AUTHORISED SIGNATORY MR GIRISH GUPTA H S... PETITIONERS (BY SRI UDAYA HOLLA, SR. ADV. FOR SRI. S MAHESH, ADV.)

3 3 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 UNDER ANNX-Y AND ALL ITS CONSEQUENT PROCEEDINGS. IN W.P.Nos & 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 AND

4 4 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 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 /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 AND REP. BY ITS DIRECTOR MR GIRISH GUPTA H S

5 5 2. M/S ABHISHEK DEVELOPERS A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU 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 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 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 SUBMITTED BY THE JOINT COMMITTEE CONSTITUTED BY IST RESPONDENT UNDER ANNEXURE VI, ITS CONSEQUENTIAL ENQUIRY PROCEEDINGS BEFORE THE 2ND RESPONDENT AND THE NOTICE DATED UNDER ANNEXURE V2 ISSUED BY THE 2ND RESPONDENT THREATENING TO CANCEL THE KHATA ISSUED IN FAVOUR OF THE PETITIONERS PROPERTY.

6 6 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) (b) (c) (d) (e) (f) CTS No.3593 measuring acres; CTS No.3593(P) measuring acres; Sy.No.43 measuring acres; CTS No.3593 measuring acres; CTS No.908 measuring acres; CTS No measuring acres; in all measuring acres (75, 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

7 7 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 , 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 accorded permission for change of land use from partly industrial and partly park area to multistoried commercial use following which the Bangalore

8 8 Development Authority ( BDA for short) issued a commencement certificate, dated 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 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 conveying 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 conveying: (i) Sy.No.43 bearing CTS No.3593(P) measuring acres; (ii) Sy.No.43 measuring acres; (iii) Part of CTS No.3593 measuring acres; (iv) Part of CTS No.908 measuring acres; (v) CTS No.3596 measuring acres;

9 9 in all measuring acres (2,22, sq.ft.) or 20, 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 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

10 10 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 2 nd Main Road, Malleshwaram, near Srirampura Railway under pass, through municipal property No.1, 2 nd Main Road, belonging to the petitioner, and sought to acquire land measuring 12,268 sq.mtrs. as stipulated in the

11 11 Government Notification dated , 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 in favour of BBMP which when duly registered, BBMP issued the TDR certificate bearing No.3 dated in the name of M/s Hamara Shelters Private Limited. VII. M/s Karnataka Industrial Area Development Board, by notification dated acquired land measuring 5.04 acres from out of acres

12 12 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

13 13 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 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

14 14 demolition and by final order dated disposed of the petition by recording thus: Taking on record the affidavit dt 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

15 15 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 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 of the Joint Committee, the Joint Commissioner issued notice dated to show cause as to why the khatha should not be cancelled by

16 16 invoking Section 114-A of the KMC Act, whence, the report as well as the notice are called in question in W.P.No /2011 on the premise that khatha once issued on 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 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 , following which the said Joint Commissioner issued a notice dated informing that the Commissioner, BBMP, as well as the Assistant Director of Land Records submitted a report that the enquiry officer s order dated 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 ,

17 17 which proceeding is called in question in W.P.Nos 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 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 XIV. The rejection of petitioner s application dated for revalidation of the TDR certificate upon payment of the required fee by communication dated , on the allegations contained in the Joint Committee Report dated is called in question in W.P.No.33033/2012 on the premise that condition no.5 in the notification dated of

18 18 the State of Karnataka gazetted on requiring re-validation of the certificate every five years is ultravires 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 interalia 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 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,

19 19 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 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 that TDR certificate is valid for five years and should be revalidated 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.

20 20 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 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

21 21 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 , 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

22 22 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.

23 23 (c) State Government filed a memo dated 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 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 , 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 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

24 24 are directed to comply with the decision and report by Government Advocate to forthwith inform the Prl.Secretary of the said order. Pursuant thereto, BBMP filed a memo dated stating that in compliance with the direction dated BBMP has decided to request the Government to reconsider and recall the order issued in the meeting dated , however, the plan, is accorded sanction on On the interim order dated , the TDR certificate No.3 issued to the petitioner was re-validated by the BBMP for five years from to (e) W.P.Nos /2011 is opposed by filing statement of objection of respondent/bbmp inter-alia contending that the Joint Committee Report dated 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

25 25 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

26 which was responded to by the petitioner by way of reply dated 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

27 27 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 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 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 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 , 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 to revoke khata dt 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 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 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 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 on the complaint dated of the

31 31 BBMP allegedly based upon the Joint Committee report dated ? IV) Whether on the basis of the Joint Committee report dt 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 by communication dated on the premise of the report dated 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 ? VII) Whether condition No.5 in the Government Notification dated

32 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 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 of the BBMP to reopen the case and pass such orders with respect thereto as Commissioner thinks fit by exercising

33 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 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 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 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 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 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 of the Survey Officer over CTS No.3593 belonging to the petitioner, by issuing notice dt 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 38 for the Joint Commissioner, Survey and Settlement to initiate suo motu revision proceedings, that too on the basis of a compliant dt of the BBMP said to be on the basis of the Joint Committee report dt 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 in terms of Section 14-B of KTCP Act and notification

39 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 , 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 40 that pursuant to the directions of this court in the order dt 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 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 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 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 i Plot area 500 square meters ii Permissible floor area 1.5 ratio

43 43 Iii Buildable floor area 500 x1.5 =750 square meters iv Area surrendered 100 square meters v Additional floor area in 150 square meters the form of Development Rights vi Plot area after surrender =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 = 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 0.75 ratio Iii Buildable floor area 500 x0.75 =375 square meters iv Area surrendered 100 square meters v Additional floor area in 150 square meters the form of Development Rights vi Plot area after surrender =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 44 (b) If additional floor area is utilised in the same plot = 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 0.75 ratio Iii Buildable floor area 500 x0.75 =375 square meters Iv Additional floor area 150 square meters transformed from road A' v Total Buildable floor =525 square area meters (emphasis supplied) (ii) Prescription is found in the Government Notification dated gazetted on 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 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 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 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 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 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 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 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 , 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 /11 are allowed. Impugned orders, notices and Joint Committee report are quashed. kcm/ln Sd/- JUDGE