IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.23349/2018 (LB-BMP) Between:
1. Mr.Mohammed Shahid Ahmmed S/o.Mr.Mohammed Sayeed Ahmed, Aged about 45 years, 2. Mrs.Hajira Khanum W/o.Mohammed Shahid Ahmmed, Aged about 38 years, Both residing at No.110, 5th Cross, 1st Main, Kuvempu Layout, Gubbi Cross, Kothanur, Bengaluru – 560 077 (By Sri. K.R.Krishna Murthy, Advocate) And:
1. The State of Karnataka Represented by its Secretary, Department of Urban Development, Vidhana Soudha, Bengaluru – 560 001 ... Petitioners 2. The Bruhath Bengaluru Mahanagara Palike # 105, 1st Floor, New Annex Building – 03, N.R.Square, Bengaluru – 560 002 Represented by its Commissioner 3. The Additional /Joint Commissioner Mahadevapura Zone, Bruhath Bengaluru Mahanagara Palike, Bengaluru – 560 002 4. The Executive Engineer Road Infrastructure, Mahadevapura Division, Bruhath Bengaluru Mahanagara Palike, Bengaluru – 560 002 5. The Bangalore Development Authority T.Chowdaiah Road, Kumara Park West, Bengaluru – 560 020 Represented by its Commissioner 6. The Town Planning Member Room No.210, 2nd Floor, BDA Commercial Complex, Banashankari, 2nd Stage, Bengaluru – 560 070 ... Respondents (By Sri.M.A.Subramani, HCGP for R1; Ms.M.C.Nagashree, Advocate for R2 to R4; Sri.A.M.Vijay, Advocate for R5 to R6) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the notification issued by the respondent-BBMP dated 02.08.2017 vide in respect of acquisition of land bearing Sy.No.10 situated at Byrathi Village, Doddagubbi Panchayath Limits, Bidarahalli Hobli, Bangalore East Taluk (At Annx-G) and etc., This Writ Petition coming on for Preliminary Hearing in ‘B’ group, this day, the Court made the following:
ORDER The petitioners claiming to be the owners of the property morefully described in the schedule have filed the present writ petition seeking for issuance of a writ of certiorari to quash the notification at Annexure-G dated 02.08.2017 issued in exercise of power under Section 14-B of the Karnataka Town and Country Planning Act, 1961 (‘the Act’ for short). The petitioners have also sought for appropriate writ to quash the communication issued by the respondent – Bruhat Bengaluru Mahanagara Palike (BBMP) at Annexure-J dated 29.01.2018.
2. The petitioners state that the respondent- BBMP intended to carry out road widening/formation of road with respect to the road from Hennur Main Road (Biozeen) to Bhilishivale to the BBMP limits. Pursuant to the said intention, it is stated that as per Annexure-G notification came to be issued wherein, an extent of property belonging to the private property owners which may be required for implementing the proposal of the Authority, has been set out in the said notification. The owners of the property have been called upon to produce the relevant documents evidencing title, tax paid receipts, etc. and avail of the ‘Development Rights’ by accepting the ‘Development Rights Certificate.’ 3. The petitioners however state that pursuant to the notification at Annexure-G, they have issued a reply at Annexure-H dated 16.10.2017 in which they have specifically stated at para (viii) that they are not interested in accepting the Transferable Development Rights (TDR) being offered in lieu of monetary compensation for giving up rights in the property. The petitioners have also raised other contentions, including the existence of alternate road and have 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 petitioners state that despite their reply dated 16.10.2017, the respondent-BBMP by its communication at Annexure-J 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 petitioners further contend that despite petitioners having subsisting rights with respect to the property in question, their name is not reflected in the notification at Annexure-G.
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 ‘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 owners does not agree to surrender their 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 petitioners are 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 petitioners 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-G is only an offer and there is no compulsion to accept the same. In view of reply at Annexure-H, 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 petitioners that they have rejected the offer made at Annexure-G, 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 petitioners 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 petitioners’ 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-G as sought for does not arise.
16. It is clarified by the learned counsel appearing for the respondent-BBMP that Annexure-J is merely a reply to the query raised and in view of the submission made, the question of quashing Annexure-J does not arise.
17. The contention of the parties as regards the proposed action of BBMP on the necessity of such a project are kept open to be raised in the event acquisition proceedings are initiated by BBMP. All contentions of both the parties are kept open.
In light of the observations made above, the petition is disposed of.
Sd/- JUDGE KPS