Allowed

M/S Snn Abode LLP v. the State of Karnataka

Karnataka HC4 Jul 2023WP/2856/2016

Case brief

AI extract

What is this about?

Petitioner challenged Condition No. 2 in a Commencement Certificate requiring free relinquishment of Buffer Zone land. Court relied on a coordinate bench ruling holding no statutory authority exists for such demand outside Section 17(2A) for roads and parks. Writ allowed; condition to insist on free relinquishment of Buffer Zone quashed.

What did the court decide?

Respondent Nos. 2 & 3 directed not to insist on Condition No. 2 of the Commencement Certificate requiring free relinquishment of Buffer Zone area.

M/S Snn Abode LLP Vs the State of Karnataka — Land Acquisition | Karnataka HC (2023)

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NC: 2023:KHC:22992 WP No. 2856 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R DEVDAS WRIT PETITION NO. 2856 OF 2016 (LB-RES)

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BETWEEN:

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M/S SNN ABODE LLP ( A LIMITED LIABILITY PARTNERSHIP FIRM) RAJ LAKE VIEW, NO.3761, 29^TH MAIN, BTM 2^ND STAGE, N.S.PALYA MAIN ROAD, BANGALORE-560076 (REPRESENTED BY ITS MANAGING PARTNER MR.SHAH SANJAY JAIN)

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…PETITIONER

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(BY SRI. GOUTHAM CHAND S F., ADVOCATE)

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AND:

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Digitally signed by DHARMALINGAM Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA BY ITS SECRETARY, URBAN DEVELOPMENT DEPARTMENT, 4^TH FLOOR, VIKASA SOUDHA, DR.AMBEDKAR VEEDHI, BANGALORE-560 001

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BANGALORE MYSORE INFRASTRUCTURE CORRIDOR AREA PLANNING AUTHORITY (BMICAPA) NO.5, 2^ND FLOOR,LOOP LANE RACE COURSE ROAD, BANALORE-560009 (REPRESENTED BY ITS MEMBER SECRETARY)

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NC: 2023:KHC:22992 WP No. 2856 of 2016

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ADDITIONAL DIRECTOR OF URBAN AND RURAL PLANNING AND MEMBER SECRETARY, BANGALORE-MYSORE INFRASTRUCTURE CORRIDOR AREA PLANNING AUTHORITY (BMICAPA) NO.5, 2^ND FLOOR, LOOP LANE RACE COURSE ROAD, BANGALORE-560009

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…RESPONDENTS

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(BY SRI. SANTHOSH KUMAR M.B., HCGP FOR R1 SRI. YOGESH D NAIK, ADVOCATE FOR R2 SRI. V.B. SHIVAKUMAR, ADVOCATE FOR PROPOSED RESPONDENTS)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITTUTION OF INDIA PRAYING TO CALL FOR RECORDS AND QUASH CONDITION.2 IN THE COMMENCEMENT CERTIFICATE DTD 23.11.2015 ANEXURE-D IN SO FAR AS IT RELATES TO CALLING UPON THE PETITIONER TO EXECUTE A RELINQUISHMENT DEED (FREE OF CONSIDERATION) IN RESPECT OF THE AREA DESIGNATED AS BUFFER ZONE AND DECLARE THE SAME AS ARBITRARY, ILLEGAL AND WITHOUT JURISDICTION AND GRANT ALL CONSEQUENTIAL RELIEFS THERETO AND ETC.,

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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R.DEVDAS J., (ORAL):

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The prayers in the writ petition are as follows:

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“WHEREFORE, the Petitioner prays that this Hon'ble Court be pleased to:

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a) Call for records

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NC: 2023:KHC:22992 WP No. 2856 of 2016

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b) Issue an order, direction or writ in the nature of certiorari quashing Condition No. 2 in the 'Commencement Certificate' dated 23.11.2015 (Annexure-D) in so far as it relates to calling upon the Petitioner to execute a Relinquishment Deed (free of consideration) in respect of the area designated as 'Buffer Zone' and declare the same as arbitrary, illegal and without jurisdiction and grant all consequential reliefs thereto.

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c) Issue an order, direction or writ in the nature of mandamus or any other writ directing the Respondent Nos.2 & 3 to take all further steps in the matter without insisting for execution of a Relinquishment Deed (free of consideration) in respect of the area designated as 'Buffer Zone'.

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d) To Declare that the provisions contained in Section 17 (2A) & (2B) of the Karnataka Town and Country Planning Act, 1961 is confined to roads, parks and Civic Amenity Area/s and as such not applicable to any area falling under "Buffer Zone" as defined

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NC: 2023:KHC:22992 WP No. 2856 of 2016

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in the Zoning Regulations published by the Respondent No. 2 for the Planning Area.

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e) To issue any other writ or order or directions, as this Hon'ble Court deem it fit and appropriate under the facts and circumstance of the case, in the interest of justice and equity.”

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The issue regarding relinquishment of the area designated as Buffer Zone, free of cost, which is stipulated in condition No.2 in the commencement certificate dated 23.11.2015 at Annexure ‘D’ is no more res integra . The issue has been considered by a co-ordinate Bench of this Court in the case of Dr.Arun Kumar B.C. Vs. State of Karnataka and Others in W.P.No.9408/2020 and connected matters dated 17.01.2022.

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In those batch of writ petitions, the petitioners had filed applications for developing the property into residential buildings. The Bruhat Bengaluru Mahanagara

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Palike, had issued an endorsement to the petitioner therein stating that the applications submitted by the

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petitioner for sanction of the building plan will be processed only upon the petitioner surrendering the property earmarked for the purposes of widening of road in the Master Plan, free of cost.

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The co-ordinate Bench held that no doubt, the provisions contained in the Karnataka Town and Country Planning Act, 1961, more specifically, Section 17(3) of the Act specifies that the owner is not entitled for compensation for the relinquished property. However, a reading of Section 17 of the Act in its entirety does not expressly provide that the land earmarked as road in the Master Plan will have to be relinquished free of cost or that the owner is not entitled for compensation while sanctioning a layout plan. It was held that Section 17(3) of the Act, is applicable only to the lands enumerated in Section 17 (2-A) like parks, playgrounds and roads formed within the layout and civic amenity sites.

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In the present context, however, the respondent is the Bangalore - Mysore Infrastructure

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Corridor Area Planning Authority (BMICAPA). Whence the petitioner approached the Planning Authority seeking a single plot approval for the entire extent of 5 acres 17 ½ guntas situated at Kammanahalli, Begur Hobli, Bangalore South Taluk, the Planning Authority issued a commencement certificate dated 23.11.2015 at Annexure ‘D’. However, a condition was imposed at Sl.No.2 that the frontage of the property which falls within the Buffer Zone abutting the Nandi Infrastructure Corridor Enterprises road (NICE Road) shall not be used by the petitioner for putting up any construction and that the said space should be relinquished by the petitioner by executing a relinquishment deed in favour of the Bruhat Bengaluru Mahanagara Palike, free of cost.

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There is not much of a difference between the two cases, except that the condition has been imposed in the present case at the hands of respondent No.2BMICAPA which is the Planning Authority, while granting the commencement certificate in favour of the petitioner.

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The other aspect of the matter which is the crux of the

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issue is one and the same, that is, whether the Planning Authority or the sanctioning authority is empowered to levy such a condition calling upon the owner of the property to relinquish a portion of the property free of cost in favour of the authority. This aspect of the matter has been considered by the co-ordinate Bench and has rightly held that there is no provision contained in the Karnataka Town and Country Planning Act, or any such statute for that matter, which would enable the Planning Authority or the sanctioning authority to impose such a condition that the sanction will be accorded only on the condition that a portion of the property where construction is not permitted, shall be relinquished free of cost to the authority.

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As rightly held by the co-ordinate Bench,

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provision is made under sub-section (2-A) of Section 17 of

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the Karnataka Town and Country Planning Act, for execution of relinquishment deed, free of cost without,

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claiming any compensation in respect of roads, parks, playgrounds to the local authority and civic amenity area to the Planning Authority. There is no such provision which would enable the Planning Authority to seek relinquishment of the Buffer Zone or the area earmarked as falling within the building line where construction cannot be put up by the owner of the property, free of cost, to the Planning Authority. In that view of the matter, the contention of the petitioner is required to be upheld.

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Although a challenge was raised to the

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provisions contained in the Karnataka Town and Country Planning Act, and the Zonal Regulations, nevertheless, in view of the declaration already made by the co-ordinate bench, the prayer made by the petitioner in that regard need not be considered.

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Consequently, the writ petition is allowed . Respondent No.2 and 3-BMICAPA and its Additional Director, are hereby directed not to insist upon the second condition contained in the commencement certificate

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dated 23.11.2015 insofar as the Buffer Zone is concerned.

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The petitioner may proceed to execute the relinquishment deed in terms of Section (2-A) of Section 17 of the Act. If such a relinquishment deed is executed by the petitioner, the respondent shall accept the same and proceed to grant

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all further permissions and approvals in accordance with law.

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Ordered accordingly.

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In view of the disposal of the writ petition, I.A.No.2/2017 for impleading does not survive for

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consideration and accordingly, the same stands disposed

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of.

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Sd/JUDGE