IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.1166/2019 (LB-BMP) Between:
Sri Mohammed Ebrahim @ Imtiyaz, S/o A. Razack Adam, No.408, 5th “A” Cross, HRBR, 2nd Block, Near Giriyas, Next to FBB, Kalyangara, Bangalore – 43 Represented by GPA Holder Mohammed Amin @ Imran, S/o Mohammed Ebrahim @ Imtiyaz, Aged about 34 years, R/at No.408, 5th “A” Cross, HRBR, 2nd Block, Service Road, Kalyan Nagar, Bangalore – 43. … Petitioner (By Sri V. Srinivas, Advocate) And:
1. The Commissioner, BBMP, NR Square, Bangalore – 560 002.
2. The Executive Engineer, Infrastructure Mahadevapura Division, BBMP Main Office, NR Square, Bangalore – 02.
3. The Deputy Commissioner (Land Acquisition and TDR), BBMP Main Office, NR Square, Bangalore – 02. … Respondents (By Sri I.G. Gachchinamath, Advocate) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to direct the respondents to consider the representation/reply given by the petitioner on 23.11.2018 i.e., Annexure-G to the writ petition and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioner stating to be the owner in possession of the property situated in Sy.No.157, Pattandur Agrahara Village, K.R.Puram Hobli, Bengaluru East Taluk, measuring an extent of 20 guntas and has sought for issuance of a writ in the nature of mandamus to consider his representation at Annexure-G dated 23.11.2018 and has also sought for issuance of a writ of mandamus directing the respondents to afford an opportunity of personal hearing in light of request for monetary compensation instead of issuance of Transferable Development Rights (TDR).
2. The petitioner has stated that the respondent – Bruhat Bengaluru Mahanagara Palike (BBMP) have sought to widen the road from Whitefield main (SH-35) road to Nagondanahalli via Vijayanagara (Munsing Hospital) as per the Revised Master Plan – 2015 to the extent of 24 meters width.
3. The petitioner states that pursuant to the notice at Annexure-F dated 16.11.2018, he has caused the issuance of reply as per Annexure-G on 23.11.2018 and has stated that he was not interested in availing of TDR that is proposed in lieu of monetary compensation for the utilization of property of the petitioner that was required for the purpose of road widening activity.
4. The petitioner states that despite his reply, the respondent-BBMP has issued notification at Annexure-H dated 26.12.2018 under Section 14-B of the Karnataka Town and Country Planning Act, 1961 calling upon the property owners to give up the rights with respect to their properties in lieu of TDR that is sought to be offered.
5. 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 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.
6. 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.
7. Having heard the learned counsel appearing 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 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.”
8. In light of the provisions of Section 14-B(6) of the Act, it is clear that, if the petitioner was 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.
9. 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 petitioner. However, the respondent-BBMP is entitled to:-
(a) Initiate appropriate proceedings for acquisition of properties of the petitioner 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 petitioner 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.
Subject to the above, this petition is disposed of.
Sd/- JUDGE VGR