IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.55232/2015(KLR-RES) C/W WRIT PETITION NO.33741/2016 (KLR-RES) C/W WRIT PETITION NO.54421/2016 (GM-ST/RN) IN W.P.No.55232/2015:
BETWEEN:
M/S SRI NAKODA CONSTRUCTION LTD OFFICE AT NO.133/1, THE RESIDENCY, 10TH FLOOR, RESIDENCY ROAD, BENGALURU-560025, REPRESENTED BY ITS DIRECTOR, SRI.MAHAVEER GULECHA, S/O.TEJRAJ GULECHA, AGED ABOUT 40 YEARS.
... PETITIONER (BY SRI SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR MS. FARAH FATHIMA, ADVOCATE) AND 1. THE STATE OF KARNATAKA DEPARTMENT OF REVENUE, REPRESENTED BY ITS SECRETARY, M.S.BUILDING, AMBEDKAR VEEDHI, BENGALURU-560001.
2. TAHSILDAR BENGALURU SOUTH TALUK, BENGALURU-560017.
3. THE REVENUE INSPECTOR BEGUR CIRCLE, BENGALURU SOUTH TALUK, BENGALURU-560017.
4. BENGALURU DEVELOPMENT AUTHORITY 5TH MAIN, KUMARA PARK WEST, BENGALURU – 560 020 REPRESENTED BY COMMISSIONER ... RESPONDENTS (BY SRI T.S.MAHANTESH, AGA FOR R1 TO R3, SRI KRISHNA.K, ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE DTD:24.11.2015 ISSUED BY 2ND RESPONDENT DIRECT THE PETITIONER TO DIRECT THE PETITIONER TO HANDOVER THE ALLEGED ENCROACHED LAKE LAND OF SY NO.42, HULIMAVU VILLAGE, BEGUR WITHIN 15 DAYS FROM RECEIPT OF NOTICE AND ALSO TO INITIATE CRIMINAL PROCEEDINGS (ANNEXURE-A).
IN W.P. No.33741/2016:
BETWEEN:
M/S SRI NAKODA CONSTRUCTION LTD OFFICE AT NO.133/1, THE RESIDENCY, 10TH FLOOR, RESIDENCY ROAD BENGALURU-560025 REPRESENTED BY ITS DIRECOTR SIR.MAHAVEER GULECHA S/O TEJRAJ GULECHA AGED ABOUT 40 YEARS ... PETITIONER (BY SRI SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR MS. FARAH FATHIMA, ADVOCATE) AND 1. THE STATE OF KARNATAKA DEPARTMENT OF REVENUE REPRESENTED BY ITS SECRETARY M.S.BUILDING, AMBEDKAR VEEDHI BENGALURU-560001 2. DEPUTY COMMISSIONER BENGALURU SOUTH TALUK K.G.ROAD BENGALURU-560002 3. THE ASSISTANT COMMISSIONER BENGALURU SOUTH TALUK KANDAYA BHAVAN BENGALURU-560 002 4. TAHSILDAR BENGALURU SOUTH TALUK BENGALURU-560 009 5. THE REVENUE INSPECTOR BEGUR CIRCLE BENGALURU SOUTH TALUK BENGALURU-560054.
6. BENGALURU DEVELOPMENT AUTHORITY 5TH MAIN, KUMARA PARK WEST, BENGALURU – 560 020 REPRESENTED BY COMMISSIONER ... RESPONDENTS (BY SRI T.S.MAHANTESH, AGA FOR R1 TO R5, SRI K.KRISHNA, ADVOCATE FOR R6) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.4.5.2016 ISSUED BY THE 4TH RESPONDENT AS THE SAME IS HIGHLY ARBITRARY ILLEGAL AND WITHOUT AUTHORITY OF LAW VIDE ANNEXURE-A AND ETC.
IN W.P. No.54421/2016:
BETWEEN:
M/S SRI NAKODA CONSTRUCTION LTD OFFICE AT NO.133/1, THE RESIDENCY, 10TH FLOOR, RESIDENCY ROAD, BENGALURU-560 025 REPRESENTED BY ITS DIRECTOR, SRI MAHAVEER GULECHA, S/O TEJRAJ GULECHA, AGED ABOUT 40 YEARS. ... PETITIONER (BY SRI SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR MS. FARAH FATHIMA, ADVOCATE) AND 1. THE STATE OF KARNATAKA REPRESENTED BY ITS CHAIRMAN HOUSE COMMITTEE ON ENCROACHMENT OF TANKS/PRESERVATION IN BENGALURU URBAN & RURAL DISTRICTS, VIDHANA SOUDHA, BENGALURU-560 001.
2. THE ASSISTANT COMMISSIONER BENGALURU SOUTH SUB-DIVISION, KANDHAYA BHAVAN, 2ND FLOOR, K.G.ROAD, BENGALURU-560 009.
3. THE INSPECTOR GENERAL OF REGISTRATION AND STAMPS COMMISSIONER, 8TH FLOOR, KANDAYA BHAVAN, K.G.ROAD, BENGALURU-560 009.
4. THE DISTRICT REGISTRAR JAYANAGAR REGISTRATION DISTRICT BENGALURU-560 011. ... RESPONDENTS (BY SRI T.S.MAHANTESH, AGA FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMUNICATION DTD:9.6.2016 ISSUED BY 2ND TO 3RD RESPONDENTS (ANNEXURE-A) AND QUASH THE COMMUNICATION DTD:29.6.2016 ISSUED BY THE 3RD RESPONDENT DIRECT THE 4TH RESPONDENT NOT TO REGISTER THE FLATS CONSTRUCTED ON SY NO.52 i.e., SCHEDULE PROPERTY (ANNEXURE-B) AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER All these three writ petitions and another W.P.No.16282/2017 are pertaining to common petitioner M/s Sri Nakoda Constructions Limited, which is owner of Sy.No.52 measuring to an extent of 1 acre 38 ½ guntas situated at Hulimavu village, Begur Hobli, Bengaluru South Taluk. The petitioner has purchased the aforesaid extent of land under registered sale deed dated 29.3.2011.
2. Admittedly, the aforesaid extent of land is a portion of larger extent held by its vendors which was measuring to an extent of 2 acres 22 guntas inclusive of 1 gunta kharab. The record would indicate that entire extent was subject matter of acquisition by BDA under preliminary notification dated 8.9.1987 followed by final notification dated 28.7.1990. The same was de-notified by the State by its order dated 13.9.2010 which was subsequently converted from agriculture to non agriculture use by an order of Special Deputy Commissioner dated 11.10.2010 vide proceedings No.ALN(SB) SR:88/2010-11.
3. It is stated that the petitioner herein has secured sanctioned plan for construction of a building thereon which is not disputed either by BDA or BBMP who are parties before this Court and the petitioner has also completed the construction of building in accordance with sanctioned plan. However, it is noticed that some of the rowdy elements with the assistance of Government officials have successfully stalled the project in creating one after the other problems for completion of the building and securing occupancy certificate which has necessitated the petitioner to approach this Court by filing writ petitions for various reliefs and all the writ petitions which are filed by the petitioner being under different classifications the matters not being clubbed together has caused lot of inconvenience to him. Subsequently, by virtue of an order passed by this Court all these matters are clubbed together and they are taken up together.
4. It is seen that out of total four matters which are filed by the petitioners three writ petitions are disposed of by a detailed order which was passed on 16.4.2019, which is subsequent to the occupancy certificate being given by the Corporation to major portion of the building except for a small portion in the top floor, for which the Commissioner has undertaken to issue occupancy certificate immediately after the pending internal work in said floor is completed.
5. On 16.4.2019 by accepting the said submission of the Commissioner of Corporation an order was passed, where certain observations are made which are necessary to be reiterated to dispose of these three writ petitions, which reads as under:
“SNSJ:
16.4.2019 WP Nos.55232/2015 c/w 33741/2016, 54421/2016 & 16282/2017 ORDER In these proceedings, learned counsel appearing for the respondent-BBMP files a memo dated 16.04.2019 with partial occupancy certificate dated 15.4.2019 bearing No. DTP(S)/ADTP/Partial OC/01/19-20 pursuant to the undertaken given by them to this Court on 12.04.2019. The memo is taken on record.
2. While accepting the occupancy certificate, this Court would direct the learned Senior standing counsel for Corporation Sri.K.N.Puttegowda to ensure that affidavit of Commissioner of BBMP is filed on next date of hearing undertaking to issue occupancy certificate with reference to remaining two floors of the building within one week from the date of receipt of application for issuance of occupancy certificate after the building is completed in accordance with sanction plan. In the said affidavit, he should also undertake to refund the entire amount of security deposit received by them which is to the tune of Rs.45,34,141/- within 10 days from the date of receiving application regarding completion of the entire building and seeking occupancy certificate of remaining two floors.
3. Now coming to W.P.No.55232/2015 filed by the petitioner seeking quashing of Notice bearing No.NCR/CR/37/15-16 dated 24.11.2015 issued by the 2nd respondent – Tahsildar, Bangalore South taluk in directing the petitioner to handover encroached lake land of Sy.No.42, Hulimavu village, within 15 days from the date of receipt of notice, is hereby allowed in the light of the affidavit filed by the Commissioner for BDA in stating that no portion of land bearing Sy.No.42 of Hulimavu village, Begur Hobli, Bangalore South taluk, is encroached by the petitioner, who is said to be the owner of 1 acre 38½ guntas of land in Sy.No.52 of Hulimavu village, which is a portion of land denotified to the original owner from whom the petitioner is said to have purchased under the registered sale deed.
4. In the light of the aforesaid submission by the Commissioner, BDA, who is custodian of lands on all the three sides abutting the property of petitioner, the present notice which is issued by 2nd respondent-Tahsildar does not merit consideration and the same is required to be quashed and accordingly, the said notice is quashed.
5. Though the writ petition is allowed in terms stated therein, the present writ petition is kept pending for the reason to be stated hereinafter.
6. Coming to W.P.No.33741/2016, which is filed by the petitioner seeking quashing of the order bearing No.NCR.CR.37/15-16 dated 4.5.2016 by 4th respondent-Tahsildar, Bangalore South taluk since notice is already quashed in W.P.No.55232/2015, the proceedings and order passed directing the petitioner to remove the alleged encroachment also does not survive for consideration. Accordingly, the present writ petition is also allowed and the order impugned is quashed. However, this writ petition is also kept pending for the reasons to be stated as hereinafter.
7. W.P.No.54421/2016 filed by the petitioner seeking quashing of communication dated 29.6.2016 bearing No.RGN/49/16-17 issued by 2nd respondent-Assistant Commissioner, Bangalore South Sub-division to Inspector General of Registration and Stamps Commissioner-3rd respondent in instructing him not to register the flats which are constructed on property bearing Sy.No.52 by the petitioner is hereby allowed and interference with the impugned communication does not arise in the light of the submission made by learned Additional Advocate General, where he would cite the letter dated 9.6.2016, which is filed by him on 11.04.2019 bearing No. LND/NCR/60/15-16 wherein he would clarify the reason for issuance of the letter and also withdraws issuance of such letter to 3rd respondent –Inspector General of Registration and Stamps Commissioner.
8. With this, by allowing this writ petition, the said communication is hereby quashed reserving liberty to the petitioner to deal with the flats which are constructed in the aforesaid property in the manner they so desire either by selling, mortgaging or creating encumbrance of apartments which are constructed on the property upto 27 floors, which is accepted and cleared by BBMP by issuing occupancy certificate this day.
9. Though this writ petition is allowed, it is kept pending for the reasons to be assigned at later stage.
10. Coming to W.P.No.16282/2017, which is filed seeking issuance of occupancy certificate to 29 floors of building constructed by the petitioner on land bearing Sy.No.52 of Hulimavu village, this day the Corporation has issued occupancy certificate for 27 floors and undertakes to issue occupancy certificate within one week from the date of receipt of application regarding completion of the remaining two floors. Therefore, this writ petition is kept pending to be considered after the petitioner completes remaining two floors of the building and till such time, they file application seeking issuance of occupancy certificate for remaining two floors and until such time same is considered. Since Writ Petitions No. 55232/2015, 33741/2016 and 54421/2016 are disposed of, in strict sense that need not be kept pending for further consideration in these proceedings. However, in the light of a report being filed by the Corporation on 8.4.2019 along with the affidavit of the Commissioner, Sri.Manjunath Prasad wherein he has produced the status of the applications for issuance of occupancy certificate received by the Corporation in its 198 wards for the period 1.1.2018 to 31.3.2019 in respect of high rise and low rise buildings where there is reference to receipt of 393 applications for issuance of occupancy certificate, out of that it is stated that in respect of 257 buildings occupancy certificates are issued and 78 applications are pending. In this regard, this Court would like to verify the same since serious allegations are made in these writ petitions filed by the petitioner and also in view of the arguments submitted by the learned Senior counsel appearing for the petitioner that there is large scale fraud by the Corporation in disposing of the applications received for issuance of occupancy certificate. In that view of the matter, this Court feel it is appropriate to hold an enquiry into the same and to ensure whether BBMP is functioning properly in people friendly manner or it is resorting to illegal methods in trying to be an extorter from innocent and gullible citizens of the Society as complaints are received day in and out in this regard. It is for this purpose, though three of the writ petitions viz., W.P.Nos. 55232/2015, 33741/2016 and 54421/2016 are already disposed of and W.P.No.16282/2017 is partially considered, all the four petitions are kept alive to enquire into the procedure which is followed by the Corporation for disposal of 393 applications received by it for issuance of occupancy certificate for the period from 1.1.2018 to 31.3.2019.
11. To consider the same, list on 23.04.2019, on which day, affidavit of the Commissioner is required to be filed as stated supra, by the learned Senior standing counsel appearing for the Corporation.”
6. This day, the aforesaid three writ petitions are disposed of by this order, pursuant to the order dated 16.04.2019 referred supra. So far as WP.No.16282/2017 which was connected to these three petitions is disconnected from the batch and kept pending for consideration in view of an enquiry contemplated in the said proceedings.
Sd/-
JUDGE nd/-