(Prayer: These Writ Petitions are filed Under Articles 226 and 227 of the Constitution of India praying to quash the said notification Udd/522/Myaapra dated 10.03.2006, vide Annexure-G, whereby the Respondents 1 To 3 have Modified the ealier orders whereby in respect for 4000 Sq. Meteres or Lesser Extent of layout need to reserved as park/open space and Civic Amenities Sites has Been Done in terms of the said Notification Udd/522/Myaapra dated10.03.2006, Vide Annexure-G Subsequent Government Order No.Udd:22:Bbmp:2009, vide Annexure-F as also communication dated 20.08.2009, vide Annexure-H have been issued, by calling for records in respect of the said layout from the Respondent 1 to 4 and on perusal of the same.)
1. The petitioners claim to be residents of Kamakshipuram II Stage, Sulla Road, Hubli owing plots of land measuring about 30 x 40 ft in the layout formed by respondents No.5 to 13 and many of them have constructed houses on the said plots.
2. Respondents No.1 to 4 are the State and the statutory authorities who are empowered to and authorized to sanction layouts including private layouts and vested with the obligation to ensure that the said layouts are formed and administered in accordance with the applicable laws including the Karnataka Town and Country Planning Act, 1961 ('KTCP Act' for short), as also Karnataka Urban Development Act.
3. The concerned plots and/or the layout fall within the purview and jurisdiction of Hubli-Dharwad Urban Development Authority ('HDUDA' for short). The said Authority coming within the purview of KTCP Act.
4. Respondents No. 5 to 9 being the owners of the land bearing Sy.No.131 of Bengeri village in Hubli Taluk, applied for conversion of agricultural land for non- agricultural purposes which was so granted by the Deputy commissioner, Dharwad vide its Order dated 22.09.2005 on the condition that conversion fine is a paid. After making payment of the said conversion fine, respondents No.5 to 9 approached the respondent No.4- Commissioner, HDUDA seeking for sanction of a layout on the said survey number which was so granted by Order dated 24.02.2004.
5. Respondents are stated to have executed a Power of Attorney in favour of respondent No.10, who was carrying on the business in the name and style of respondent No.13, of which respondents No.11 and 12 being the sons of respondent No.10 are stated to be partners.
6. The layout, having been sanctioned in the year 2004 as a Group Housing Scheme in terms of the applicable and revised Comprehensive Development Plan and the Zoning Regulation rules applicable thereto, respondents No. 5 to 13 had undertaken to demarcate and reserve certain land for open spaces, including Park and civic amenity sites which were to be handed over to the purchasers of the sites formed in the said layout. In terms of the sanctioned plan, 17 sites were permitted to be formed in survey number 131 and certain areas were marked for Park, as also civic amenity sites in the said plan.
7. On the above basis, respondents No.5 to 13 marketed the said layout, the petitioners and several persons like the petitioners having perused the sanctioned plan, as also the documents relating to the title thereto were interested to buy the same, in furtherance of which they negotiated and purchased their respective plots. Despite undertaking that the park and civic amenity sites would be handed over to the purchasers and/or relinquished to the jurisdictional Authority, the same was not so handed over. Hence, the petitioners caused several demands on respondents No.9 to 13 to hand over the said areas.
8. It is stated that in the year 2008 the petitioners learnt that respondents No.5 to 13 were seeking to convert the Park and civic amenity sites into plots for residential use and had approached the respondent No.4 in that regard vide their letter dated 2.01.2008 bringing to the notice of respondent No.4, the sanction of the layout and the reservation of space for Park and civic amenities and requested respondent No.4 not to consider any such request. Respondent No.4 replied to the same stating that they had not received any application for conversion of park area and civic amenity sites into plots.
9. On receiving the said reply from respondent No.4, petitioners were of the opinion that their interests were safe guarded and in the event of any application being made to respondent No.4, objections filed by the petitioners on 2.01.2008 would be so considered by respondent No.4. However, to the dismay of the petitioners, they learnt that on 20.05.2009 a Government Order had been issued, permitting the respondents No. 5 to 13 to use the area demarcated as Park, open spaces and civic amenity sites for formation of sites, which is stated to have been issued pursuant to a Notification bearing No.UDD/522/MYAPRA/2005 dated 10.03.2006, whereunder for layouts measuring less than 4000 sq.mtrs, Parks or civic amenity sites would not be required to be demarcated or reserved for parks, open spaces and civic amenity if the developer were to make payment of the market price for the land area which ought to have been reserved for such parks, open spaces and civic amenity.
10. The petitioners therefore, vide their letter dated 4.05.2010 wrote to respondents No.1 to 4 placing the facts on record and stating that in terms of the KTCP Act, once the area having been reserved for Park, open space and civic amenity, same could not be permitted to be used for formation of sites and therefore the sanction so granted is violative of the applicable law and sought for withdrawal of the said Order.
11. It is also contended that one of the reasons why the petitioners had brought the plots was the promise made by respondents No.5 to 13 that certain areas would be demarcated as parks, open spaces and civic amenity sites, which may be used them, which was also evidenced by the sanctioned plan.
12. Noticing the objections of the petitioners, respondents No.5 to 13 had filed a suit in O.S. No. 781 of 2010 against some of the petitioners and other residents in the layout seeking for an injunction.
13. Respondents not having considered the representation made by the petitioners and the Governmental and statutory Authorities not revoking the sanction, as also respondents No.5 to 13 continuing with the actions of changing the nature of lands reserved for parks, open spaces and civic amenities, the petitioners have filed the above writ petition. The Petitioners have sought for writ of certiorari quashing the notification bearing UDD/522/MYAPRA dated 10.03.2006, the subsequent Government Order bearing No.UDD:22:BBMP 2009 dated 22.05.2009, as also communication letter No.KDUA.R.V./V.20/2002/1991 dated 20.08.2009 on the ground that the layout had been formed in the year 2004 hence, the notification which was issued in the year 2006 should not have been applied to the layout already formed. The lands once reserved for parks and civic amenity could not be permitted to be changed or converted into sites which would not only result in harm and injury to the petitioners but also unjust enrichment on the part of the respondents No.5 to 13.
14. The suit in O.S. No. 781 of 2010 came to be subsequently decreed by way of judgement dated 3.04.2013, injuncting the defendants therein i.e., the petitioners herein from interfering with the peaceful possession, enjoyment and development of the properties, which had been shown as civic amenity and Park, however, the said decree was subject to the disposal of the present writ petitions.
15. On notice being served, objections were filed by respondents No.6 to 9 and respondent No.12 contending that respondents No.6 to 9 are the owners of the land and issued power of attorney to respondents 10 to 13 for developing the land, though the layout had been formed, parks and open spaces and civic amenity sites had not been handed over to Hubli-Dharwad Municipal Corporation, hence the Notification dated 10.03.2006 was applicable to the lands which were not handed over.
16. On being made aware of the same, respondents 5 to 13 had made necessary applications for permission to make use of the said land as sites, which was so granted on 22.05.2009, on that basis, it is contended that the actions taken by the respondents are proper and valid, there is no illegality in the same. Respondents further contend that the orders passed by respondents No.1 to 4 in this regard are proper and valid. They further contend that the respondents had filed a suit in O.S. No. 781 of2010 for an injunction against the petitioners and their association, which was decreed on 3.04.2013 during pendency of the above writ petition and the decree having attained finality the petitioners could not proceed with the above writ petitions and therefore the writ petitions ought to be dismissed.
17. Pertinently, the government Authorities and statutory respondents have not filed any objections to the above writ petitions.
18. Sri. Mallikarjunaswamy Hiremath, learned counsel appearing for the petitioners would contend that the Order passed by respondents No.1 to 4 on an application made by respondents No.5 to 13, could not have been so passed, is blatantly illegal, misconceived and such an order has been passed for reasons otherwise than that recognised by law, as also for extraneous consideration. He further contends that the layout having been formed in the year 2004, the Authorities had become functus officio insofar as the sanctioning process is concerned, and therefore the Authorities could not have modified the sanction by permitting the respondents No.5 to 13 to make use of the land reserved for parks, open spaces and civic amenities as sites after a lapse of nearly 5 years and take advantage of the rise in prices.
19. Per contra, Sri.K.N.Phaneendra, learned Senior counsel appearing for Sri.Mahantesh Kottur Shettar, learned counsel for respondents No. 6 to 9 and respondent No.12 would contend that the sanction of layout was in the year 2004, however, the layout formation was not completed as evidenced by the fact that admittedly, the parks, open spaces and/or civic amenity sites were not handed over to either the purchasers or concerned Municipal Corporation being Hubli-Dharwad Municipal Corporation. The Government Order dated 10.03.2006 which permitted a developer to make payment of sale consideration for the area supposed to be reserved for parks and open spaces and claim exemption therefrom was applicable to the respondents No.5 to 13 and accordingly they have rightly made an application, which was also rightly considered by respondents No.1 to 4 and allowed. It is on this basis, it is contended that petitioners cannot seek to challenge the said orders which have been passed by the statutory Authorities by exercising the statutory powers. He further contends that the petitioners were defendants in suit in O.S. No. 781 of 2010, which has been decreed in favour of respondents No.5 to 13 and therefore applying the principles of resjudcata, the petitioners could not have challenged the orders passed by respondent No.4 and contended that the writ petitions ought to be dismissed.
20. Sri.Vinay S.Koujalagi, learned counsel for respondents No.10, 11 and 13 adopts the arguments of the learned senior counsel.
21. Heard Sri.Mallikarjunaswamy, learned counsel for the petitioners, Ms.Seema Shiva Naik, learned HCGP for respondents No.1 and 2, Sri.A.P.Kamoji, learned counsel for respondent No.3, Sri.M.A.Hulyal, learned counsel for respondent No.4, Sri.K.N.Phaneendra, learned Senior counsel for Sri.Mahantesh. C.Kottur Shettar for respondents No.6 to 9 and 12. Sri.Vinay S.Koujalagi,learned counsel for respondents No.10, 11 and 13 and perused papers.
22. It is not in dispute that respondent No.4 has sanctioned the layout by approving the plan on 24.02.2004. It is also not in dispute that as per the said sanction plan, certain areas have been demarcated as sites, roads, parks and civic amenities. It is also not in dispute that respondents 5 to 9 issued a Power of Attorney in favour of respondent No.10. It is further not in dispute that respondent No.13 entered into an agreement of sale cum-construction with the petitioners individually on various dates which refers to the plan sanctioned by HDUDA. One of the agreement dated 30.03.2004 produced along with the Writ Petition at Annexure-B indicates that the site agreed to be sold is bound on the west by a park area, the sale deed in terms thereof has been executed subsequently.
23. Sri.K.N.Phaneendra, learned Senior counsel relies on Clause (32) of the agreement of sale to contend that respondents No.5 to 13 have the Authority or liberty todeviate from the approved plan and therefore formation of sites in the area reserved for parks and open spaces and civic amenity is permitted. Clause 32, is reproduced hereunder for easy reference:
"32. The second party is at liberty to deviate from the approved plan in order to comply with the requirement of any bye-law, regulation or rule and to meet the necessities on the site conditions."
... emphasis supplied
24. He also placed reliance on clause (4) of the sale deed dated 20.07.2004 at Annexure-C to content that respondents No. 5 to 13 have reserved their rights to deal with or dispose of the civic amenities and park area.
The said Clause (4) is hereunder reproduced for easy reference:
"4. The purchaser shall not have any right over the areas reserved for civic amenities, park area in the layout and the vendors have full liberty to dispose off/deal with such land in accordance with law."
25. By relying on both these clauses, Sri.Phaneendra, learned Senior counsel contends that the petitioners have no absolute right or interest over the areas demarcated as parks, open spaces and civic amenities and therefore respondents No.5 to 13 could deal with the said lands which they have so done and the petitioners cannot find fault with the same. This fact and the contention has also been accepted by the trial court in Judgement and decree dated 3.04.2013 in O.S. No.781 of 2010 including the petitioners herein from interfering with the rights of respondents No.5 to 13 to carry out the above.
26. A perusal of the Judgement in O.S. No. 781 of 2010 dated 3.04.2013 indicates that in the said suit the petitioners have been restrained from interfering with the peaceful possession, enjoyment and development of the properties, but however, the trial Court has made the said Judgement subject to the Judgment in the above Writ Petitions by directing the parties to maintain status quo in respect of the property till disposal of the above writ petitions.
27. The proceeding before the trial Court was civil in nature and had been in fact filed by respondents No.5 to 13 for injunction against the petitioners herein. The suit being one for injunction, respondents No.5 to 13 cannot now claim that the petitioners are debarred from questioning the actions taken by them and or the orders passed by the statutory respondents on account of the principle of res-judicata. The question of res-judicata would arise and be applicable only if there are two suits between the same parties, where the same lis is in issue. In the present scenario, the lis before the trial Court is one of injunction, the lis before this Court is one relating to exercise of statutory powers. It cannot be disputed that the trial Court neither had the jurisdiction nor the power to decide on the matters which are subject matter of the present Writ Petitions. It is for this reason that the trial Court has made its Judgment and decree subject to the decision of this Court in these Writ Petitions.
28. In the above background the questions that ae required to be determined by this court are:
i) Whether once the layout plan has been sanctioned and it is implemented by forming the sites, as also selling the sites to third parties, the developer could make an application in terms of the Notification dated 10.03.2006 seeking for exemption of forming of Park or civic amenity by making payment of sale consideration thereof?
ii) Whether mere not handing over of the Park, civic amenity sites would enable the developer to contend that the layout has not been completed and therefore it could have taken the benefit of the Notification dated 10.03.2006?
29. As stated above, the layout was sanctioned in the year 2004, the agreements for sale of the plots were entered in the year 2004 and several sale deeds have also been executed in the year 2004 and registered before the concerned Sub-registrar. It cannot be in dispute that it is the sanctioned plan which was made use of by respondents No.5 to 13 to persuade the intending purchasers to purchase sites, i.e., to say the sanctioned plan was used while marketing the plans. Respondents 5 to 13 had made available the layout plan to intending purchasers to show the location of the sites, location of roads, measurement of sites as also the location and sizes of the parks and civic amenities. It is on that basis that the purchasers have selected the sites that they wanted to purchase, depending on their availability and taking into consideration the road approach as also the park and civic amenities provided.
30. It cannot be disputed that in this age and time, cities have seen unprecedented growth, along with development which is much needed, it is equally required that parks and open spaces are made available to the citizenry. It is for this reason that the Urban Development Authorities have prepared various plans and regulations to address the above. In terms of the Revised Comprehensive Development Plan and Zoning Of Land Use And Regulation 2003, more particularly Rule (3) of Annexure-4 thereof, when a residential layouts are formed not more than 55% of the total area can be used for residential sites, the remaining 45% is to be earmarked for parks and open spaces, but out of the said 45%, not less than 10% will be reserved for Park and playgrounds and balance would be reserved for roads and civic amenities. These rules being applicable for sanction of the layout, no layout would not have been sanctioned without respondents 5 to 13 adhering to the above Rules.
31. As contended by the petitioners, one of important criteria for the petitioners to make a decision of purchase is the availability, location and size of parks and open spaces. The contract between the petitioners and respondents having been entered into on that basis the said factor being an important part of the consideration, respondents No.5 to 13 cannot unilaterally make any change to the same. Of course, if petitioners i.e., the purchasers of the plots in the layout had agreed for the respondents to convert the said parks, open spaces and civic amenity into plots, the same could have been done, but in the present case, the said proposal was objected to by the petitioners vide their letter dated 2.01.2008, which was replied to by respondent No.4 on 1.02.2008 categorically stating that there is no application which has been received. Hence it was not permissible for the respondent No.4 to process and/or respondent No.1 to have issued the impugned Government Order dated 22.05.2009. Respondent No.1 could not have taken any steps without consulting the fourth respondent in this regard.
32. A perusal of the Government Order dated the 22.05.2009 does not indicate whether respondents No.5 to 13, had brought to the notice of respondent No.1 about the sale of the sites to the petitioners. On enquiry, Sri.Phaneendra, learned Senior counsel is also unable to categorically state whether the Authorities have been so informed. He is also unable to produce a copy of the application filed by respondents No.5 to 13 with respondent No.1 on which basis the Government Order dated 22.05.2009 was passed. The said Order reads as if that the entire extent of 35 guntas in survey number 131 is still owned by respondents. Therefore, I am of the opinion that the said Order has also been obtained by suppression of material facts. Be that as it may, irrespective of the above, once a plan is sanctioned, plots formed and sold to third parties, respondents No.5to 13 could not unilaterally seek for the benefit under the subsequent Government Order dated 10.03.2006. Respondents No.5 to 13 could have claimed benefit of the Order dated 10.03.2006, only if they had not sold any sites by that time, and/or if the purchasers were to consent to the
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respondents No.5 to 13, claiming benefits of the Notification dated 10.03.2006. 33. The Petitioners have sought for quashing the Notification dated 10.03.2006, there are no grounds as such made out for the same. They are only aggrieved by the consequential Order dated 22.05.2009 issued on the basis of the above Notification dated 10.03.2006. Hence the petitioners are not entitled to any relief pertaining to quashing of the Notification dated 10.03.2006. 34. Respondents 5 to 13 have sought to abuse the process of law, filed a false suit against the Petitioners, forced the petitioners to approach this court seeking for redressal of their grievances, Respondents no. 5 to 13 are therefore required to bear the costs of these proceedings. 35. In view of the above. I answer the above questions as under: i) Once a layout plan has been sanctioned and it is implemented by forming the sites, as also selling the sites to third parties, the developer cannot make an application in terms of the Notification dated 10.03.2006 seeking for exemption of forming of Park or civic amenity. ii) Once the sites are sold merely on account of not handing over of the Park, civic amenity sites it would not enable the developer to take the benefit of the Notification dated 10.03.2006. 36. In view of the above discussion and finding I pass the following order: a. the Writ Petitions are allowed in part. b. The Order dated22.05.2009 passed by respondentNo.1 at Annexure-F and the consequential communication dated the 20.08.2009 at Annexure-H are hereby quashed. c. It is further made clear that the lands which have been reserved for parks, open spaces and civic amenity shall continue to be so reserved as per the sanctioned plan. d. If any of those lands have not been relinquished in favour of respondent No.4, the same shall be so relinquished within a period of 60 days from the date of receipt of the certified copy of this Order. e. The Respondents 5 to 13 shall make payment of a sum of Rs. 50,000 as cost of this petition to the association of the Petitioner plot owners. In view of disposal of these petitions, IA-1/2018 does not survive for consideration and is, accordingly dismissed.