IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION NOS.16822-16823/2018 (LB BMP) BETWEEN 1. DR. GEETHA SUNDAR RAO W/O DR. PRAVEEN SUNDAR RAO AGED ABOUT 55 YEARS, RESIDING AT NO.88 & 89 4TH CROSS, 1ST MAIN, KUVEMPU LAYOUT, GUBBI CROSS, KOTHANUR, BANGALORE – 560077.
2. DR. P SAMUEL SIMON SUNDAR RAO S/O JOHN SUNDAR RAO AGED ABOUT 50 YEARS, RESIDING AT NO.88 KUVEMPU LAYOUT GUBBI CROSS, KOTHANUR BANGALORE - 560077.
(BY SRI B.N.PRAKASH, ADV. FOR M/S. LAWYERS INC.) AND 1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF URBAN DEVELOPMENT VIDHANA SOUDHA BENGALURU 560001.
2. THE BRUHATH BENGLAURU MAHANAGARA PALIKE # 105, 1ST FLOOR, ... PETITIONERS NEW ANNEX BUILDING-03 N R SQUARE, BENGALURU 560002 REPRESENTED BY ITS COMMISSIONER.
3. THE ADDITIONAL/JOINT COMMISSIONER MAHADEVAPURA ZONE BRUHATH BENGALURU MAHANAGARA PALIKE BENGALURU – 560002.
4. THE EXECUTIVE ENGINEER ROAD INFRASTRUCTURE MAHADEVAPURA DIVISION, BRUHATH BENGALURU MAHANAGARA PALIKE BENGALURU 560002 5. THE BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD KUMARA PARK WEST BENGALURU 560020 REPRESENTED BY ITS COMMISSIONER 6. THE TOWN PLANNING MEMBER ROOM NO.210, 2ND FLOOR, BDA COMMERCIAL COMPLEX BANASHANKARI 2ND STAGE BENGALURU - 560070 (BY SRI M.A.SUBRAMANI, HCGP FOR R1, SRI K.N.PUTTEGOWDA, ADV. FOR R2-R4, SMT. A.M.VIJAY, ADV. FOR R5.) ... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUSAH THE NOTIFICATION ISSUED BY THE RESPONDENT BBMP DTD 02.08.2017 IN RESPECT OF ACQUISITION OF LAND BEARING SY.NO.10 SITUATED AT BYRATHI VILLAGE, DODDAGUBBI PANCHAYATH LIMITS, BIDARAHALLI HOBLI, BANGALORE EAST TALUK VIDE ANNX-H ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Heard the learned Counsel for the petitioners and the learned Counsel for respondents 2 & 4.
2. It is submitted that the issue involved in these writ petitions is no more res integra and the co-ordinate bench of this Court has been pleased to allow a similar writ petition in W.P.No.16816/2018 by order dated 03.04.2019, whereby this Court has been pleased to hold the issue in favour of the petitioner therein. Copy of the order dated 03.04.2019 passed in W.P.No.16816/2018 is placed before the Court.
3. Learned Counsel for respondents 2 & 4 would concur with the same.
4. The co-ordinate bench by considering the efficacy of the notification issued under Section 14-B of the Karnataka Town and Country Planning Act, 1961, has been pleased to observe as under:
“3. The petitioner however states that pursuant to the notification at Annexure-H, he had issued a reply at Annexure-J dated 17.10.2017 in which he had specifically stated at para (viii) that he is not interested in accepting the Transferable Development Rights (TDR) being offered in lieu of monetary compensation for giving up rights in the property. The petitioner had also raised other contentions, including the existence of alternate road and has contended that there was no necessity as such to resort to the proposed road widening/formation of fresh road as sought to be done by the respondent BBMP.
4. The petitioner states that despite his reply dated 17.10.2017, the respondent- BBMP by its communication at Annexure-K dated 29.01.2018 has stated that it intends to continue with the project and has reiterated its offer of’ ‘Development Rights Certificate.’ 5. The petitioner further contends that despite petitioner having subsisting rights with respect to the property in question, his name is not reflected in the notification at Annexure-H.
6. The learned counsel appearing for the respondent-BBMP, however, contends that the notification under Section 14-B of the Act has to be read in proper context and under Section 14-B, it is clear that what has been offered to the petitioner as ‘Development Rights Certificate’ is in lieu of monetary compensation as would be payable under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 or any other law as may be applicable for acquiring rights in property. It is further stated that the position is made clear on a plain reading of Section 14-B(6), which states that, if the owner does not agree to surrender his area, such land may be acquired by the respondent-BBMP in accordance with law that is applicable.
7. It is further submitted by respondent-BBMP that the proposed road widening/formation of road is in light of the Revised Master Plan–2015 and states that they intend to execute works relating to road widening/formation of road pursuant to the proposal in the Revised Master Plan- 2015. It is further submitted that the intention is made clear in the notification issued under Section 14-B of the Act itself. It is further stated that the notification under Section 14-B is only an offer and that there is no compulsion to accept the same by the property owners. Hence, it is submitted that the apprehension of the petitioner is ill- founded and the respondent-BBMP being a public Authority would proceed strictly in accordance with law.
8. Having heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents, it is clear that the notification under Section 14-B of the Act provides for making of an offer to the land owners where a public Authority requires an area ‘for public purpose.”
9. It is also clear that this offer that is made by the respondent Authority, if accepted, the property owners would be required to surrender their rights in the private property free from all encumbrances in lieu of compensation. If the property owners were not agreeable for such an offer, they would be entitled to compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 or any other law, in the event of acquisition of their rights by the Authority in accordance with law.
10. In the event of such surrender of property rights, the property owners would be entitled to ‘Development Rights Certificate,’ which would be given as per the specifications in the Table which provides for quantum of Development Rights as regards the property of the owners that were to be surrendered. Certain other stipulations are provided for regarding grant of ‘Development Rights Certificates’ in the notification vide No.UDD 283 BEMRUPRA, 2015 Bengaluru, dated 04.03.2017.
11. It is further stated by learned counsel appearing on behalf of respondent- BDA that under the Scheme that is applicable, BDA would issue the ‘Development Rights Certificates.’ 12. In light of the clear and unambiguous wording of Section 14-B of Act, what is offered by way of notification at Annexure-H is only an offer and there is no compulsion to accept the same. In view of reply at Annexure-J, it is open for the respondent-BBMP to proceed in terms of Section 14-B(6) of the Act or any other law as may be applicable, relating to acquisition of property rights.
13. In light of the submission of learned counsel appearing for the respondent-BBMP that they would proceed in accordance with law and in light of the stand of the petitioner that he has rejected the offer made at Annexure-H, suffice it to state that the respondent-BBMP would initiate action for road widening/formation of road so as to utilize the property of the petitioner subject to:
(a) Initiating proceedings for acquisition under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 or any other law as may be applicable for the purpose of acquisition of private property.
(b) The respondent-BBMP is also at liberty to obtain transfer of title with respect to the extent required for their proposed project from the owners of the property through outright purchase pursuant to the negotiations with the land owners.
14. Till such time, the respondent- BBMP cannot make use of the petitioner’s property for the purpose of their proposed project.
15. In light of what is provided for under Section 14-B of the Act and in light of the rejection of the said offer, the question of quashing the notification at Annexure-H as sought for does not arise.
16. It is clarified by the learned counsel appearing for the respondent-BBMP that Annexure-K is merely a reply to the query raised and in view of the submission made, the question of quashing Annexure-K does not arise.”
5. Learned Counsel for the respondents 2 & 4 fairly submits that the instant writ petitions could also be disposed of in terms of the order dated 03.04.2019 passed in W.P.No.16816/2018.
6. The aforesaid submission is placed on record. These writ petitions are also disposed off in terms of the order dated 03.04.2019 passed in W.P.No.16816/2018.
Chs* CT-HR Sd/- JUDGE