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Moogambigai Charitable & Educational Trust (R) by its Executive Director Dr. S. Vijayanand, Bengaluru v/s The State of Karnataka, by its Principal Secretary, Department of Urban Development, Bengaluru & Another


Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400MH2011PTC300616

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400WB2011PTC166069

Company & Directors' Information:- URBAN DEVELOPMENT TRUST PRIVATE LIMITED [Active] CIN = U65929MH1989PTC051845

Company & Directors' Information:- KARNATAKA URBAN DEVELOPMENT CORPORATION LIMITED [Active] CIN = U45202KA1970ULL001975

Company & Directors' Information:- L. S. EDUCATIONAL PRIVATE LIMITED [Active] CIN = U80221WB2010PTC142822

Company & Directors' Information:- N. K. CHARITABLE [Active] CIN = U80900DL2009NPL197027

Company & Directors' Information:- R K URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U45400MH2011PTC223591

Company & Directors' Information:- AMP URBAN INDIA PRIVATE LIMITED [Active] CIN = U45400WB2011PTC164960

Company & Directors' Information:- A. B. URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U70100MH2015PTC267677

Company & Directors' Information:- DEVELOPMENT TRUST PRIVATE LIMITED [Active] CIN = U45101UP1942PTC001109

    WP. No. 48267 of 2018 (BDA)

    Decided On, 24 February 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE R. DEVDAS

    For the Petitioner: A.S. Ponnanna, Senior Counsel, A. Sampath, Advocate. For the Respondents: R1, H.K. Basavaraj, AGA, R2, Subramanya, AAG, K. Krishna, Advocate.



Judgment Text

(Prayer: This Writ Petition is filed Under Article 226 of the Constitution of India praying to quash the impugned order dated 21.06.2018 passed by the R-2 which is enclosed As Annexure-AF and etc.)(Oral):1. The petitioner-Trust has constructed a building where it is presently running a Medical College, Engineering College, Dental and Nursing School. The entire area where the institutions are being run measures about 38 acres and 21 guntas including karab.2. It is the contention of the petitioner that the State Government, in fact, granted permission under a notification dated 02.05.2003 to purchase agricultural lands, under the provisions of Karnataka Land Reforms Act. Thereafter, the lands were converted to non-agricultural purposes. The permission was granted under Section 109 of the Karnataka Land Reforms Act, since the petitioner requested that it is interested in putting up educational institutions in the land in question. It is the contention of the petitioner that at the relevant point of time, the lands fell within the administrative control and jurisdiction of Kumbalgodu Gram Panchayat and therefore, it applied for sanction of building plans, for construction of Medical College, Hospitals, Engineering College etc. The Panchayat sanctioned the building plans on 19.02.2003 authorising construction of ground plus six floors.3. The learned Senior Counsel appearing for the petitioner would submit that all was well until the Village Panchayat declined to receive the property tax and informed the petitioner that it was required to seek a sanction of the development plan. It is in this regard, the petitioner approached the second respondent-BDA, which is the planning authority, under the provisions of the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as the KTCP Act for short) seeking sanction of a developmental plan.4. The learned Senior Counsel submits that as per the requirements of BDA, the petitioner furnished no objection certificates from the Fire Department, Pollution Control Board, BWSSB, BESCOM, KRDCL etc. However, since nothing was heard from the second respondent, the petitioner submitted a representation dated 09.07.2014 to the Honble Chief Minister. The petitioner was informed that the petitioner had not submitted a modified development plan or the Total Station Survey sketch and further that 8 acres 10 guntas in Sy.Nos.202/1, 2 and 3 of Kambipura Village, fell within the area notified for Peripheral Ring Road-II and the petitioner had constructed buildings in violation, in the sense that the petitioner was required to construct building beyond 40 mtrs. from the centre of the road, but had put up the construction within 34.6 mtrs. Similarly several such objections were brought to the notice of the petitioner.5. It is submitted that the petitioner submitted a detailed response dated 22.11.2014 allaying the statement of respondent No.2. However, by a subsequent letter dated 09.03.2015, the BDA informed the petitioner that it had given up the proposal to form Peripheral Ring Road-II and thus there was no impediment to sanction the development plan. Nevertheless, the requisition of the petitioner was rejected by the BDA on the ground that the petitioner had already constructed the building by obtaining licence from the Gram Panchayat and that these buildings violated the Revised Master Plan 2015.6. Once again the petitioner submitted a detailed response dated 20.03.2015 stating that the Revised Master Plan 2015 was not applicable since the construction was put prior to the year 2007 and in that view of the matter, provisions of The Karnataka Town and Country Planning (Regularisation of Unauthorised Development Or Constructions) Rules, 2007 was applicable to constructions which were in existence on or after 15.09.2007. The second respondent-Bangalore Development Authority, having considered the representation dated 20.03.2015 given by the petitioner, resolved to collect a penalty and regularize the construction and approve the development plan in terms of its resolution No.81/2015 dated 16.06.2015. Following the resolution, the Bangalore Development Authority (hereinafter referred to as BDA for short) addressed a letter dated 14.07.2015 intimating the petitioner to pay the penalty after being notified. The BDA thereafter addressed a letter dated 21.12.2015 calling upon the petitioner to pay a sum of Rs.8,49,43,000/- which included Rs.6,51,09,906/- towards penalty at the rate of Rs.600/- per sq. mtr.7. Learned Senior Counsel for the petitioner would submit that since BDA proposed to levy penalty, the petitioner was once again constrained to make a representation to the Chief Minister seeking exemption of penalty which was sought to be levied at the rate of Rs.600/- per sq. mtr. The petitioner paid a sum of Rs.53,90,468/- on 06.01.2016 and the balance amount, excluding the penalty was assured to be paid within the time granted, considering the fact that the petitioner had made a representation to the Chief Minister. The learned Senior Counsel submits that even as the representation was pending before the Chief Minister, the petitioner made a representation dated 15.06.2016 to the Additional Chief Secretary, of the Urban Development Department seeking his indulgence in the matter.8. In the meanwhile, the balance of Rs.1,44,42,626/- was also paid by the petitioner and the same was brought to the notice of the Additional Chief Secretary. The learned Senior Counsel submits that it is another matter that, during the interregnum, the second respondent-BDA resolved to hike the demand to Rs.39,22,85,012/- and the subsequent communications between the parties may not require the consideration of this Court, at this juncture. Nevertheless, the petitioner is aggrieved by the communication dated 26.04.2018 issued by the Additional Chief Secretary to respondent No.2-BDA rejecting the request of the petitioner. Thereafter, a communication was issued by the second respondent-BDA informing the petitioner about recalling its earlier resolution and rejecting the representation given by the petitioner.9. One another communication dated 15.10.2018 given by the second respondent-BDA is also under challenge.10. The learned Senior Counsel appearing for the petitioner submits that there was no occasion for the Additional Chief Secretary to reject the representation given by the petitioner. It is submitted that the Additional Chief Secretary was a party to the proceedings where resolution bearing No.81/2015 dated 16.06.2015 was passed by the Board of the BDA. Moreover, it is submitted that the request of the petitioner was to waive the penalty that was sought to be levied by the second respondent-BDA. When that was the matter pending consideration at the hands of the State Government, there was no occasion for the Additional Chief Secretary to reject the representation given by the petitioner to the BDA to sanction the development plan. The learned Senior Counsel further submits that the impugned communication dated 26.04.2018 also does not assign any reasons as to why the recommendation made by the BDA could not be considered.11. During the course of his arguments, the learned Senior Counsel for the petitioner submits that there are several instances where the State Government, while considering similar cases, has given its seal of approval for regularising the development plan which were put up without prior approval of the BDA. Nevertheless, it is submitted by the learned Senior Counsel that what was requested by the petitioner is only to waive off the penalty and therefore, the Additional Chief Secretary could not have directed the BDA to reject the proposal for sanction of development plan itself.12. The learned Additional Advocate General appearing on behalf of the State Government submits that firstly the communication dated 26.04.2018 is not an order passed under the provisions of the Town and Country Planning Act. It is submitted that it is a communication made to the BDA and the same cannot be construed as an order which could be challenged by citing Section 65 of the Bangalore Development Authority Act, 1976 or Section 76-N of the Karnataka Town and Country Planning Act, 1961. The learned Additional Advocate General would further submit that since the impugned communication dated 26.04.2018 issued by the Additional Chief Secretary is only a communication to the BDA and unless and until the same is communicated directly by the State Government or the Additional Chief Secretary on behalf of the State Government to the petitioner, there is no occasion for the petitioner to challenge the said communication/order.13. Having heard the learned Senior Counsel for the petitioner and the learned Additional Advocate General for the respondent-State and the learned Counsel for the second respondent-BDA, this Court finds that the impugned communication dated 26.04.2018, has essentially closed the doors on the petitioner, since it is stated in the communication that there is no provision for regularising the unauthorized constructions, under the provisions of the KTCP Act. As rightly submitted by the learned Senior Counsel, what was requested by the petitioner was to waive the penalty that was sought to be levied by the BDA. On the other hand, the communication dated 26.04.2018 goes beyond the request made by the petitioner and has precluded the petitioner from seeking the development plan sanctioned or the constructions put up by the petitioner from being regularized. What is noticeable is that there is no explanation or details forthcoming in the communication dated 26.04.2018 as to what is the reason for rejecting the recommendation made by the BDA to collect penalty and regularize the constructions and sanction the development plan.14. For the sake of argument, even if it is taken that the impugned communication dated 26.04.2018 is an order passed by the State Government, Section 76N of the KTPC Act, would only empower the State Government to suspend the execution of such resolution or order or prohibit the doing of any such Act after issuing a notice to the planning Authority to show cause within the specified period as to why the resolution or order may not be cancelled, in whole or in part. The respondent-State Government cannot be permitted to blow hot and cold. If it is the stand of the State Government that the impugned communication dated 26.04.2018 is only a communication and not an order either emanating from the provisions of the BDA Act or the KTCP Act, then the petitioner cannot be put in a state of limbo, though there is a recommendation by the BDA to collect penalty and regularize the constructions and sanction the development plan, but, by virtue of the communication dated 26.04.2018, all further action at the hands of BDA remains unimplementable. The rule of law and natural justice requires that the aggrieved party before the BDA should be given opportunity of hearing before any order that would affect the interest of the petitioner is passed either by the BDA or by the State Government. It requires to be noticed that on an earlier occasion, when the resolution was passed by the Board of BDA proposing to levy penalty on the petitioner and the same was communicated to the State Government, and at the same time when a representation was made by the petitioner requesting the State Government to waive the penalty, the request of the petitioner regarding levy of penalty was rejected by the State Government. If that is the position, the petitioner may only be aggrieved by the rejection of its request regarding waiver of penalty. But in the present situation, in view of the communication dated 26.04.2018, even the request of the petitioner for sanction of the development plan seems to have been rejected by the State Government.15. In the considered opinion of this Court, when the petitioner had only requested the State Government to waive the penalty, the Additional Chief Secretary has travelled beyond the brief and has passed the impugned communication which amounts to rejecting the request of the petitioner regarding the sanction of development plan. This, according to the Court, is illegal, arbitrary and therefore requi

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res interference at the hands of this Court.16. In the light of the above, this petition is partly allowed. The impugned communication dated 26.04.2018 issued by the Additional Chief Secretary, Urban Development Department, at Annexure AG is hereby quashed and set aside. The consequential communications issued by the BDA at Annexure AF dated 21.06.2018 and Annexure AH dated 15.10.2018 also are quashed and set aside. The Additional Chief Secretary, is required to reconsider the representations given by the petitioner, having regard to the fact that the State Government, in several other matters, is said to have considered such representations made by developers who had developed the lands in violation of the provisions of Town and Country Planning Act, and the State Government has considered such representations, approved and directed the BDA to consider the case of such developers and on collection of penalty, such unauthorized layouts have been sanctioned by the State Government and the BDA.17. Needless to observe that if the Additional Chief Secretary is of the opinion that there is no such provision under the KTCP Act for regularisation, an opportunity of hearing shall be given to the petitioner who could substantiate and place material before the Additional Chief Secretary regarding the precedents in this regard.It is ordered accordingly.
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