IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.2432/2019 (LB-BMP) c/w WRIT PETITION Nos.2421/2019, 2431/2019 In W.P.No.2432/2019 Between:
Malik Mohammad Nawaz, Aged about 69 years, S/o M.Zaharuddin (late), 124/2, 2nd Cross, Old Panchayat Office Road, Kadugodi, Bangalore-560 067.
(By Ms.Sohani A. Holla, Advocate) And:
1. The Asst. Executive Engineer, BBMP Whitefield Sub-Division, Mahadevapura, Bangalore-560 066.
… Petitioner 2. The Executive Engineer, Public Roads and Infrastructure Projects (Mahadevpura) Central Office, New Building, Bruhat Bengaluru Mahanagara Palike (BBMP) BBMP Head Office, N R Square, Bangalore-560 002.
3. The Commissioner, Bruhat Bengaluru Mahanagara Palike (BBMP) BBMP Head Office, N.R.Square, Bangalore-560 002.
4. The Principal Secretary to the Government Urban Development Department Government of Karnataka Bengaluru-560 001.
… Respondents (By Sri.Amit Deshpande, Advocate for R1 to R3 Sri M A Subramani, HCGP for R4) This Writ Petition is filed under Articles 226 & 227 of Constitution of India, praying to quash the notice dated 26.12.2018 at Annexure-C issued by respondent No.1.
In W.P.No.2421/2019 Between:
R.Srinivasa Murthy, Aged about 63 years S/o Ramanjanappa No.301, Railway Station Road, Kadugodi, Bangalore-560 067.
(By Ms.Sohani A. Holla, Advocate) And:
1. The Asst. Executive Engineer BBMP Whitefield Sub Division Mahadevapura Bangalore-560 066.
2. The Executive Engineer, Public Roads and Infrastructure Projects (Mahadevpura) Central Office, New Building …Petitioner Bruhat Bengaluru Mahanagara Palike (BBMP) BBMP Head Office, N.R.Square, Bangalore-560 002.
3. The Commissioner, Bruhat Bengaluru Mahanagara Palike (BBMP) BBMP Head Office, N.R.Square Bangalore-560 002.
4. The Principal Secretary to the Government Urban Development Department Government of Karnataka Bengaluru-560 001.
… Respondents (By Sri.H.Devendrappa, Advocate for R1 to R3 Sri M A Subramani, HCGP for R4) This Writ Petition is filed under Articles 226 & 227 of Constitution of India, praying to quash the notice dated 26.12.2018 at Annexure-C issued by respondent No.1.
In W.P.No.2431/2019 Between:
K.Gopal Singh, Aged about 58 years S/o Krishna Singh (late) No.408, Eshwara Temple Street, Kadugodi, Bangalore-560 067.
(By Ms.Sohani A. Holla, Advocate) And:
1. The Asst. Executive Engineer BBMP Whitefield Sub Division Mahadevapura Bangalore-560 066.
…Petitioner 2. The Executive Engineer, Public Roads and Infrastructure Projects (Mahadevpura) Central Office, New Building Bruhat Bengaluru Mahanagara Palike (BBMP) BBMP Head Office, N.R.Square, Bangalore-560 002.
3. The Commissioner, Bruhat Bengaluru Mahanagara Palike (BBMP) BBMP Head Office, N.R.Square Bangalore-560 002.
4. The Principal Secretary to the Government Urban Development Department Government of Karnataka Bengaluru-560 001.
… Respondents (By Sri.Ashwin S. Halady, Advocate for R1 to R3 Sri M A Subramani, HCGP for R4) This Writ Petition is filed under Articles 226 & 227 of Constitution of India, praying to quash the notice dated 26.12.2018 at Annexure-C issued by respondent No.1.
These Writ Petitions coming on for preliminary hearing in ‘B’ group this day, the Court made the following:
ORDER The petitioners in W.P.Nos.2432/2019, 2431/2019, 2421/2019, who are owners of the property bearing khatha Nos.190, 200 and 201 respectively, situated at Kadugodi, Bengaluru would state that they are in possession and enjoyment of their properties and have been paying the taxes.
2. The petitioners have sought for issuance of a writ of certiorari to quash the notice at Annexure-C dated 26.12.2018 whereby, the petitioners were called upon to accept Transferable Development Rights (hereinafter ‘TDR’) Certificate and submit necessary forms with documents.
3. The petitioners state that the respondent – Bruhat Bengaluru Mahanagara Palike (hereinafter ‘BBMP) intending to carry out an underpass and also road widening activity at LC-131 near Kadugodi (332/100 km.) between Devaganthi Whitefield Stations as per the Revised Master Plan–2015 had made the said offer to the petitioners to accept the TDR Certificate in lieu of monetary compensation. Necessary notification at Annexure-B came to be issued under Section 14-B of the Karnataka Town and Country Planning Act, 1961 (‘the Act’ for brevity) dated 24.12.2018 calling upon the property owners, morefully mentioned in the schedule to the notification to surrender their property rights in return for TDR.
4. The petitioners state that pursuant to the notice dated 26.12.2018, a reply came to be submitted by the petitioners at Annexure-D dated 08.01.2019 stating that they were not accepting the TDRs and also had demanded monetary compensation as regards giving up their rights to the property.
5. The petitioners state that inspite of reply at Annexure-D, the respondent Authorities were intent upon continuing with their proposed project and were calling upon the petitioners to surrender their rights pursuant to the offer made under Section 14-B of the Act.
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 petitioners as TDR 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 and that 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 intended the road widening/formation of road pursuant to the proposal in the Revised Master Plan- 2015 and in fact, the intention is made clear in the notification issued under Section 14-B of the Act itself. 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 appearing for the petitioners as well as the learned counsel appearing for the respondents, it is clear that the notification under Section 14-B of the Act that has been made by the respondent-BBMP is only an offer made to the property owners to give up their properties voluntarily in return for grant of TDR Certificates, which would be in lieu of monetary compensation. In fact, Section 14-B(6) of the Act would clarify the said position. The said provision reads as follows:-
“14-B. Benefit of development rights.-
(6) If the owner does not agree to surrender his ‘Area’ required by a Public Authority for any public purpose, for the Development Rights and demands for monetary compensation, then the Public Authority may acquire such ‘Area’ by providing compensation as per the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 or any other law prevailing.”
9. In light of the provisions of Section 14-B(6) of the Act, it is clear that, if the petitioners were unwilling to accept the ‘Development Rights Certificates,’ which was being offered in lieu of monetary compensation, the respondent-BBMP would have to resort to acquisition under the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 or any other law prevailing.
10. Hence, it is made clear that in light of the rejection of offer made by the respondent-BBMP, the BBMP would not interfere with the rights of the properties of petitioners. However, the respondent- BBMP is entitled to:-
(a) Initiate appropriate proceedings for acquisition of properties of the petitioners as may be required for the purpose of implementing their project under the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 or any other law prevailing;
(b) They are entitled to obtain transfer of property of the petitioners to the extent as may be required for the purpose of implementation of the project by negotiations after obtaining the Deed of Conveyance.
(c) All other contentions of the parties are kept open and without prejudice to the rights of the petitioner.
11. It is made clear that no occasion arises for quashing of the notification at Annexure-B dated 24.12.2018, as the same is only in effect an offer, which has been rejected by the petitioners and if the respondent-BBMP were to require the properties belonging to the petitioners, the respondent-BBMP is at liberty to take further action as observed above.
12. Further, it is made clear that insofar as the work initiated by respondent-BBMP as regards the public property for formation of road, the present order does not in any manner impose any embargo on such work being carried out by the BBMP, which however would not encroach upon the private property rights of the properties.
Subject to the above, these petitions are disposed of.
Sd/- JUDGE VGR