Allowed

The Karnataka State Judiciary v. the State of Karnataka

Karnataka HC22 Sept 2023WP/7863/2021

Case brief

AI extract

What is this about?

The court quashed the State Government's order rejecting a layout plan and directed its approval after finding that only the BDA, not the State, has statutory authority to sanction plans. The court also held the State was estopped and barred by res judicata from challenging the plan after consenting to earlier proceedings.

What did the court decide?

Petition allowed; declaration that the layout plan stands approved in terms of BDA resolution; quashing of the impugned government order, BDA endorsement, and notice; direction to respondents to accor

The Karnataka State Judiciary Vs the State of Karnataka — Land Acquisition | Karnataka HC (2023)

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NC: 2023:KHC:34669 WP No.7863 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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WRIT PETITION NO.7863 OF 2021 (BDA)

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BETWEEN:

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THE KARNATAKA STATE JUDICIARY EMPLOYEES HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., REGISTERED OFFICE R/O: NO.7/2, SURYA CHAMBERS, 2^ND FLOOR, 1^ST MAIN ROAD, SHESHADRIPURAM, BENGALURU-560 020, REPT. BY ITS SECRETARY SRI. SUDHAKAR, S/O. K.S.ASWATHAPPA, AGED ABOUT 45 YEARS.

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…PETITIONER

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(BY DR. D.R.RAVISHANKAR, SENIOR COUNSEL FOR SRI. SARAVANA S. AND SRI. RAJASHEKHAR, ADVOCATES)

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AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA REPT. BY THE SECRETARY DEPARTMENT OF URBAN DEVELOPMENT VIKAS SOUDHA, DR. B.R.AMBEDKAR VEEDHI, BENGALURU-560 001.

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THE COMMISSIONER BENGALURU DEVELOPMENT AUTHORITY, T.CHOWDAIAH ROAD, KUMARAPARK WEST, BENGALURU-560 020.

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…RESPONDENTS (BY SRI. SANTOSH GOGI, ADDL. ADVOCATE GENERAL A/W SMT. RASHMI PATEL, HCGP FOR R1; SRI. GURUDAS KANNUR, SENIOR COUNSEL FOR SRI.KIRAN C.V., ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTILCES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO, DECLARE THAT THE SANCTION SUBMITTED BY THE PETITIONERS SOCIETY IN TERMS OF ANNEXURE-E STANDS APPROVED OR IS ACCORDED WITH THE SANCTION IN TERMS OF BDA RESOLUTION DTD.21.12.2017 IN RESOLUTION NO.187/2017 VIDE ANENXURE-E1 AND ETC.,

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THIS PETITION, COMING ON FOR FURTHER HEARING (THROUGH VIDEO CONFERENCE) THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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In this petition, petitioner has sought for the following reliefs:

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“a) Pass an appropriate writ or declaration by declaring that the sanction submitted by the petitioner’s society in terms of Annexure-E stands approved or is accorded with the sanction in terms of BDA resolution dated 21.12.2017 in resolution No.187/2017 vide Annexure-E1;

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Or in the alternative

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b) Issue a writ in the nature of certiorari to quash Annexure-H the government order bearing No.NAAE/88/BEMAASE/2018, Bengaluru, dated 22.09.2020 and also the consequential endorsement of BDA Annexure-F, dated 25.02.2021 vide No.BEMAPRAA/NAYOSA/MIS-2074/1591/2020-21, and consequential notice dated 30.03.2021, vide

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No.BEMAPRAA/NAYOSA/PRL-52/05-06/1781/202021, at Annexure-J; and

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c) Further issue a writ of mandamus directing the respondents to issue a formal order according sanction of the layout plan submitted in terms of Annexure-E.

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d) Pass such other orders as may be deemed appropriate in the ends of justice and equity.”

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Briefly stated, the facts leading to the present

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petition as contended by the petitioner are as under:

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a) The petitioner is a House Building Society for whose

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benefit the subject land was acquired and a layout plan was submitted which was approved by the BDA in Subject No.503/1992 dated 16.11.1992 subject to certain conditions pursuant to which a layout was formed in the subject land. Subsequently, the Association comprising of residents and site holders preferred W.P. No.40994/2002 seeking a direction to the BDA to produce the said layout plan and for other reliefs. In the said petition, the petitioner society

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herein was arrayed as respondent No.4 along with other respondents including the State. The said Association also instituted contempt proceedings in CCC No. 87/2004 alleging disobedience of the order dated 18.06.2003 passed in W.P. No. 40994/2002 and both the matters were taken up together by a Division Bench of this court.

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b) During the pendency of the said W.P. No. 40994/2002 c/w CCC No. 87/2004, a memo dated 10.12.2015 was filed on behalf of the BDA to the effect that as per the prevailing master plan, the area to be reserved for residential purpose was 55% and the remaining 45% was to be reserved towards park, civic amenities and road. It was also stated in the memo that the petitioner Society had formed a layout to an extent of 57.5% and had accordingly utilized an excess area of about 2.5% as against 55% reserved for residential purpose and out of the total extent of about 45% reserved for park, civic amenities and road, there was a

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shortfall to an extent of 2.5%. In the said memo, BDA also stated before this court that in view of similar decisions taken by the BDA pursuant to court orders in other petitions in respect of Vishwa Bharati House Building Co-Operative Society in which there was a shortfall of 9.77% and the Mysore Paper Mills House

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Building Co-Operative Society in which there was a shortfall of 13.7%, the shortfall in respect of the subject layout of the petitioner society to an extent of 2.5% could be compensated by payment of penalty and the layout plan could be sanctioned by imposition of

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penalty. It is contended by the petitioner that even before the BDA had filed the aforesaid memo dated 10.12.2015, the petitioner had executed release/ relinquishment deeds dated 16.10.2009, 21.06.2010, 01.03.2013, 25.09.2013 and 08.09.2015 in favour of the BBMP, the local authority to the aforesaid extent of 42.5% reserved for park, civic amenities and road.

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Pursuant to the said memo filed by the BDA, the Division Bench disposed of the aforesaid petition and

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contempt proceedings vide final order dated 01.01.2016 issuing several directions to the petitioner society, BDA, the State, BBMP, BWSSB, KSPCB and also other directions in this regard.

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Petitioner contends that pursuant to the aforesaid order passed in W.P. No. 40994/2002 c/w CCC No. 87/2004, the petitioner submitted the layout plan for sanction to the BDA which proceeded to pass a resolution bearing Subject No.187 dated 21.12.2017 approving/sanctioning the layout plan. The said BDA resolution/recommendation dated 21.12.2017 was forwarded to the State Government by the BDA vide communication dated 26.02.2018 pursuant to which, the State Government passed the impugned order at Annexure-H dated 22.09.2020 rejecting the layout plan. In pursuance of the same, the BDA issued an endorsement / communication at Annexure-F dated 25.02.2021 intimating the petitioner that the layout plan had been rejected which was followed by the impugned notice at

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Annexure-J dated 30.03.2021 issued by the BDA to the petitioner Society u/s 17(4) of the Karnataka Town & Country Planning Act r/w Sec. 33 of the BDA Act directing the petitioner to demolish the construction put up in the subject layout. Aggrieved by the aforesaid Government Order dated 22.09.2020, BDA endorsement dated 25.02.2021 and the BDA notice dated 30.03.2021, petitioner is before this court by way of the present petition seeking the aforesaid reliefs.

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The respondent No.2-BDA filed its statement of

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objections inter-alia admitting all earlier proceedings in relation to the subject layout culminating in the BDA resolution dated 21.12.2017 whereby the layout plan submitted by the petitioner society was approved and recommended by the BDA which forwarded the same to the State Government vide communication dated 26.02.2018. It is contended that subsequently, the State Government issued a communication vide Annexure-R6 dated 25.07.2018 asking for certain particulars to which

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the BDA issued reply dated 16.08.2018 by clarifying that the petitioner society had utilized ‘B’ kharab land for formation of layout which was not permissible and the residential area was more than the permissible limit of 55% with only 6.30% being reserved for park area as against the mandatory limit of 15%. The State Government issued one more communication dated 28.03.2018 (Annexure-G) as well as a subsequent communication at Annexure-R8 dated 27.08.2019 calling upon the BDA to clarify the statutory provisions based on which the resolution was made and the BDA to also clarify expected income from levying penalty for the C.A. sites. In response thereto, the BDA issued replies dated 02.05.2019 (Annexure-R9) and 21.10.2019 (AnnexureR10) referring to the orders passed by this court in W.P. No. 40994/2002 c/w CCC No. 87/2004 as well as the BDA resolution dated 21.12.2017 and reiterating that in view of similar sanctioned plans being issued in favour of Vishwa Bharati HBCS and Mysore Paper Mills HBCS by imposing and collecting additional sums in respect of the shortfalls

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in relation to the said societies, the layout plan of the petitioner society may be approved by imposing a penalty in a sum of Rs.6,81,58,000/- on the petitioner society. The BDA contended that subsequently the proposal of the petitioner was rejected by the State Government vide impugned endorsement dated 22.09.2020 on the ground

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that the same was contrary to the KTCP Act and was communicated to the petitioner vide impugned letter dated 25.02.2021 followed by the impugned notice dated 30.03.2021 issued by the BDA to the petitioner. It was therefore contended that there was no merit in the petition and the same is liable to be dismissed.

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The respondent No.1-State has filed its statement of objections disputing and denying the various contentions put forth in the petition. Though the earlier proceedings including the BDA resolution dated 21.12.2017 of the BDA were admitted, it was contended that the State Government called upon the BDA to furnish necessary particulars with regard to whether the petitioner

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had utilized ‘B’ kharab land and also if the residential area is more than the permissible limits of 55% and whether the park area was less than the mandatory limit of 15%. It was contended that this Court directed the State Government to grant approval in accordance with the KTCP Act and after having found that the layout plan submitted by the petitioner was contrary to the KTCP Act and BDA Act, the State proceeded to reject the layout plan. It was therefore contended that there is no merit in the petition and the same is liable to be dismissed.

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I have heard Sri D.R. Ravishankar, learned Senior Counsel for the petitioner and Sri Gurudas Khannur, learned Senior Counsel for the respondent-BDA and Sri Santosh Gogi, learned Additional Advocate General for the respondent-State and perused the material on record.

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In addition to reiterating the various

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contentions urged in the petition as well as the written submissions and referring to the material on record,

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learned senior counsel for the petitioner invited my attention to the earlier proceedings including the memo filed by the BDA in W.P. No.40994/2002 c/w CCC No. 87/2004 which culminated in the order dated 01.06.2016 passed by this court wherein several directions were issued in relation to the layout plan pursuant to which the BDA passed a resolution dated 21.12.2017 resolving and deciding to approve the plan submitted by the petitioner by imposing penalty for the deficit/ shortfall area of 2.5% and to forward it to the State Government. It was submitted that though the layout plan was recommended and approved by the BDA, the State rejects the same by citing / quoting reasons which are contrary to the judgment of this court in W.P. No.40994/2002 c/w CCC No.87/2004 referred to supra which preceded the BDA resolution. It is submitted that a conjoint reading of Sections 17 and 81-B of the KTCP Act indicates that approval / sanction to a layout plan has to be accorded by the BDA which is the appropriate / competent authority and the State Government has no role to play as regards

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granting approval / sanction to a layout plan under either the KTCP Act or the BDA Act. My attention was also invited to the communication at Annexure-G dated 28.03.2019 addressed by the State Government to the BDA asking it to clarify the expected income from levying penalty for C.A. sites to which the BDA issued a reply dated 02.05.2019 (Annexure-R9) clarifying that the penalty to be imposed for the shortfall of 2.5% was Rs.6,81,58,000/-. Learned senior counsel also invited my attention to the directions issued by this court in W.P. No. 40994/2002 c/w CCC No. 87/2004 wherein an option was given to the petitioner society that in the event there was shortfall of area reserved for park, CA sites and roads, the petitioner was entitled to either make available the deficit of the land or in the alternative pay penalty determined by the BDA as done in the case of VBHCS Society and MPMEHBCS Society and the only direction given to the State Government was to pass orders by considering the resolution passed by the BDA strictly in accordance with the KTCP Act. It was also submitted that the cumulative

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effect of the memo filed by the BDA before this court, the orders passed by this Court including several directions issued to the BDA and the State as well as the BDA resolution are sufficient to indicate that the petitioner is entitled to the benefit granted / given to VBHCS Society and MPMEHBCS Society and by virtue of the doctrine / principle of parity, petitioner society was also entitled to sanction / approval of the layout plan submitted by it. It was submitted that when directions are issued to the State or statutory authorities by a court, the said directions are to be complied with in terms of the orders passed by a court and in accordance with law and relevant statutory provisions with reference to the facts of the case. It was submitted that the BDA having passed a resolution according sanction / approval of the layout plan in favour of the petitioner, the said resolution was forwarded to the State Government to pass formal orders and in the absence of any provision either under the KTCP Act or BDA Act which empowers / enables the State to sanction / approve a layout plan, the role of the State Government

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was limited and restricted to passing a formal order and it did not have jurisdiction or authority of law to reject the layout plan submitted by the petitioner and consequently, the impugned order dated 22.09.2020 passed by the State Government and consequential endorsement and notice issued by the BDA deserve to be quashed by declaring that

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the layout plan submitted by the petitioner stands sanctioned / approved / accorded in terms of the BDA resolution bearing No.187/2017 dated 21.12.2017 in favour of the petitioner society and by further directing the respondents to issue a formal order in this regard by collecting the requisite fine within a stipulated time frame.

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Per contra, learned senior counsel for the BDA, in addition to referring to the statement of objections and documents as well as written submissions, submitted that the request for approval / sanction of the layout plan submitted by the petitioner was contrary to the provisions contained in the KTCP Act and the BDA Act and since the minimum extent of park area to be reserved in any layout

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is 15% as per the zonal regulations prescribed under RMP 2015, the layout plan submitted by the petitioner which shows only 8.70% cannot be sanctioned or approved. It was submitted that utilization of ‘B’ kharab land for formation of layout was not permissible and on this ground also, the layout plan submitted by the petitioner including the ‘B’ kharab land cannot be sanctioned or approved. It was further submitted that as per the provisions of the KTCP Act and BDA Act, it was not permissible to levy penalty for the purpose of approval / sanction of a layout plan and the only option available was to relinquish the areas reserved for park, civic amenities and roads to an extent of 45% which had not been done in the instant case. It was therefore submitted that there is no merit in the petition and the same is liable to be dismissed.

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So also, learned Additional Advocate General would also reiterate the various contentions urged in the statement of objections filed by the State and submit that the layout plan of the petitioner was contrary to the KTCP

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Act and BDA Act. It was contended that Section 76-K of the KTCP Act and Section 65 of the BDA Act empower the State Government to regulate and control the administration of the BDA and also give directions to the BDA to carry out the purposes of the KTCP Act and accordingly, the State was entitled to issue the impugned order dated 22.09.2020 rejecting the layout plan submitted by the petitioner. It was therefore submitted that there is no merit in the petition and that the same is liable to be dismissed.

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I have given my anxious consideration to the rival submissions and perused the material on record.

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Upon perusal of the entire material on record and after considering the rival submissions, I am of the view that the impugned order passed by the State and the impugned endorsement and notice issued by the BDA are illegal, arbitrary and without jurisdiction or authority of law and the same deserve to be quashed and the present petition deserves to be allowed for the following reasons:

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a) The material on record discloses that subsequent to the BDA resolution bearing Subject No.503/1992 dated 16.11.1992 resolving to approve the layout plan submitted by the petitioner-society to an extent of 156 acres 26¾ guntas, the Association of residents/site owners preferred W.P. No.40994/2002 c/w CCC No. 87/2004 in which the petitioner society was arrayed as respondent No.4 while the State Government, BDA as well as other statutory authorities including the BBMP, BWSSB and KSPCB were arrayed as parties. As per the prevailing master plan, RMP 2015 and zoning regulations, while 55% of the area was supposed to be reserved for residential purpose, the remaining 45% was supposed to be reserved towards civic amenities, parks and roads. During the pendency of the said petition, several interim orders/directions were passed/issued pursuant to which petitioner executed relinquishment deeds dated 16.10.2009, 21.06.2010, 01.03.2013, 25.09.2013 and 08.09.2015 in favour of the BBMP to an extent of 42.5% for the purposes of

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park, civic amenities and roads as against the prescribed extent of 45%.

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b) On 10.12.2015, a memo was filed by the BDA which reads as under:

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Society has submitted Residential Layout Plan in several Sy. Nos. of Allalasandra, Chikkabommasandra and Jakkuru Plantation Villages to an extent of 156 acres 26 ¾ guntas for approval.

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Authority in its meeting held on 16-11-1992, vide Sub. No. 503/92, resolved to approve the Layout Plan in Sy. Nos.9/1, 2B & 3,11/1 & 2, 12/2A, 2B, 3, 4A, 13/1A, IB & 2, 14/2, 3, 5 & 6, 89/1 & 2, 90, 91/2A, 4 to 6, 94/3, 97, 98/1, 5, 6 & 9, 99, 100, 100/P, 101/1, 2 & 3, 102/2, 3 & 4, 104/1, 3A, 3B, 108, 108/P, 110/1 & 2, 3A, 3B & 4, 111/2 & 3, 112 of Allasandra Village and Sy. Nos 39, 41/2 & 42of Chikkabommasandra Village and Sy. Nos.3/1 and 2, 4P of Jakkur Plantation, Yelahanka Hobli, Bangalore North Taluk to an extent of 156 acres 26% guntas in favour of Karnataka State Judicial Department Employees HBCS Ltd., subject to the following conditions:

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i) To furnish possession certificate f rom Revenue Department before issue of intimation

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communicating layout charges;

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ii) To furnish NOC from KEB and BWSSB authorities before issue of work order;

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iii) To remit contibutation of Rs. 2.00 Lakhs per acre towards Cauvery Water Supply Schemes as per the revised rates;

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iv) To furnish NOC from the Co-operation Department before release of sites.

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v) To entrust the civil works to the Society itself under the supervision of BDA.

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vi) To pay ring road surcharge @ Rs. 1.00 Lakh per acre as per the Authority Resolution.

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vii) Other usual terms and conditions.

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Now the Society has produced the Layout Plan as built on the ground in an extent of 156 acres 26.75 guntas and out of this extent, the area reserved for roads, C.A. is to the extent of 67 acres 7.45 guntas. The Society has already handed over an area of 10 acres 01 gunta to the BBMP to retain as Park.

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As per the then Master Plan approved on 1210-1984, the Society should have reserved upto 50% for residential purpose and remaining extent to Park, open spaces, play grounds, C.A., Road.

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As per the prevailing Master Plan, the area to be reserved for residential purpose is 55% and 45% towards Park, C.A. & Road. Since the Society has executed the Layout, the residential area is around 57 ½ %. It means that Society has utilized the excess area of about 2% %.

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In the earlier occasion BDA passed a Resolution under Subject No.140/2004 on 29-05-2004 in the case of MPME HBCS Ltd., and therein the Authority permitted excess residential area of 13.70% and also considered 4.10% of Park and open space area which was less than minimum prescribed in the ZR The above Resolution was passed after taking into consideration all the facts and circumstances involved. Similar decision was also taken in the case of Vishwabharathi HBCS as per Court order in W.P. Nos.18496/2007 C/w 6945/2008, 10377/2008, 10343/2008, 9990/2008, 11127/2008, 9832/2008, 19025-19087/2010, 16108-16112/2010, 1611316123/2010, 2182/2008 & 18960-19025/2010 (LABDA) dated: 16-11-2010. In the present case, Layout is fully developed, residential buildings have come up. On humanitarian grounds, BDA is

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prepared to approve the Layout Plan keeping in mind the procedure followed in the earlier two cases referred to above if there is a direction by the Hon'ble High Court,

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c) Thereafter, this Court heard all the parties including the

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petitioner-society, BDA, the State Government and disposed off the said petition and contempt proceedings vide final order dated 01.06.2016 passed in W.P. No.40994/2002 c/w CCC No.87/2004. The relevant portions of the said order at paragraphs No.125, 151, 156, 157, 159, 164, 190 and 191 as under:

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“125. On 18/12/2015, this Court passed the following order:

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"Sri Subramanya Jois, learned senior Counsel submits that a synopsis of the case, in brief, is filed on 14.12.2015 furnishing relevant information, in a

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nutshell, about the case put-forth by the society, in defence, and further that the actual extent of shortfall in the civic amenity areas is 2% of 156 acres 26.34 guntas of land acquired

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and handed over to the society for formation of the layout.

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Learned senior Counsel further submits that this extent of land could be considered by the Bangalore Development Authority (for short 'BDA') so as to forward a recommendation to the State Government to condone the shortfall as has been done in the previous past in respect of similarly circumstanced House Building Cooperative Societies, numbering more than 5. According to learned Senior Counsel, the layout plan submitted to the BDA for approval under the Bangalore Development Authority Act, 1976 when placed before the Board, in its meeting held 16.11.1992 resolved to approve the layout plan subject to certain conditions, of which condition No.3 and 6 relating to payment of Rs.2,00,000/- per acre towards Cauvery Water supply Schemes and Rs. 1,00,000/- towards legal right surcharge when subject matter of writ petition 11144/1993 instituted by Aircraft Employees Co-operative Societies Ltd. and others subjected to very similar conditions, a Division Bench of this court by order dated 20th April 2001, quashed the said two conditions and applying the very same principle, the BDA cannot insist on compliance with the aforesaid two conditions, by the 4th respondent-society.

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In addition, it is asserted that the Board of the BDA did not, subsequent to resolution No.503/1992 dated 16.11.1992, accord sanction to the layout plan nevertheless, the civil works carried at by the society to form the layout is well within the four corners of the policy of the State government relating to percentages of land to be put to use for residential purposes, roads, civic amenities etc.

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Learned Senior counsel points to paragraph 8 of the statement of objections dated 24.5.2004 of the BDA admitting the fact of there being no sanction accorded to the layout plan while also pointed to the memo dated 10.12.2015 filed by the BDA signed by the Commissioner and Town Planning Member interalia admitting that the shortfall is 2% % Le. 42% instead of 45% towards park, civic amenity, road and on humanitarian ground BDA would approve the layout plan as has been done in earlier cases.

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It is lastly submitted that the society has, over twelve years, complied with all the directions issued by the Court, time and again, to reduce the short fall in the civic amenity area to 2%, hence necessary directions be issued to the State Government and the BDA.

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Sri K.Krishna, learned counsel for the BDA reiterates the averments set out in the memo dated 10.12.2015 to submit that 2% deficit in the civic amenity areas could be considered in the like manner as has been done at the instance of the State Government in respect of other House Building Co-operative Societies.

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Sri A.Krishna Bhat, learned counsel for petitioners No.6, 8, 10 & 11 to 14 submits that memo dated 9.12.2015 is filed and the same be taken on record and reiterates the averments setout therein. In other words, submits that considering the absence of the sanction to the layout plan by the BDA and in the changed circumstances over a period of twelve years and keeping in mind the welfare and benefits of members of the 4th respondent-Society who are allottees of sites in the layout, the relief in the petition be moulded suitably so as to sanction the layout plan submitted to the BDA by the 4^th respondent.

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Sri G.Papi Reddy, learned counsel representing the petitioners 1, 3, 4 & 5, submits that in the changed fact situation of the layout providing civic amenity areas, the shortage being 24%, nevertheless, I.A.6/2013 is for a direction to the BDA to consider survey of the entire extent of land and submit a report, over

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land in possession of the society, which if released would further reduce the shortfall. Learned Counsel submits that having noticed, in the report of BBMP, that 32 guntas of land from out of 1 acre 15 guntas is since relinquished, I.A.6/2013 does not survive for consideration. As regards the merit of the petition, learned counsel very fairly submits that the changed circumstances coupled with the fact that shortfall of 22% in the area for civic amenities would be considered by the BDA or the Government, nothing further survives for consideration in the petition.

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Learned counsel for the BWSSB submits that he would file an affidavit of the Chairman relating to establishment of Tertiary Treatment Plant of capacity 10 MLD in the 41 acres of land allotted to it though presently what is commissioned as a secondary treatment plant existing over an area of 10 acres. Affidavit to be filed within a week.

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Learned counsel for the BBMP, submits that an affidavit dated 6.11.2015 is filed enclosing Development Plan/Scheme in relation to properties released and relinquished in its favour by the 4th respondent-society.

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Learned counsel responding to the query, submits that item No.17 measuring 15785 Sq.ft. described in compendium of BBMP dated 6.11.2015, at page 43, is used by the people in the vicinity as a burial ground and that Section 393 of the Karnataka Municipal Corporation Act, 1976, applies to burials and its management under bye-laws.

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Learned counsel hastens to add if granted a week's time he would file the affidavit of the Commissioner enclosing copy of the bye-laws over the management of the burial ground.

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Government Advocate submits that affidavit of the Principal Secretary, Urban Development would be filed within a week clarifying the power of the State Government to condone the deficit of 2¿% of land for Civic amenity and other common areas.

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Learned counsel for the Pollution Control Board respondent No.20 maintains that it is for the BWSSB to ensure proper treatment of sewage flowing into the Secondary and Tertiary treatment plants by establishing necessary infrastructure of STPs since 41 acres is allotted to BWSSB.

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All learned counsel submit that they have concluded their arguments.

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Reserved for Judgment."

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151. POINT I(d):

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The testimony of PW-1 that the site meant for 'temple' and other civic amenity sites as shown in Ex.P- 1 were put to use for residential purpose, in other words by altering its usage at the instance of the respondent society is sought to be corroborated by the testimony of PW-2 who in cross examination however admits that in the original blue print Ex.P82, there is a pencil entry 'temple' as against the site denoted as CA and that entry was made for the purpose of working when the authorities went for inspection to ascertain the nature and usage of CA sites and further that the entry was made by the Head Draftsman on the basis of statement made by Petitioner and Accused although PW-2 was not present at the time of spot inspection.

¶141

156. The BBMP has filed its reports disclosing the extents of lands which the society has handed over under several relinquishment deeds duly registered and the action taken by the BBMP to develop the said areas.

¶142

157. The BDA in its memo dated 10/12/2015 does not dispute the extent of land i.e., 156 Acres 26 guntas from out of which 67 Acres 7.45 guntas

¶143

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are reserved for CA and parks, and handing over of possession of 10 Acres and 01 gunta to the BBMP towards parks and open spaces submits that in terms of the Master Plan approved on 10/12/1984 under the KTCP Act, the Society could have reserved 50% of land for residential purpose and the remaining towards parks., open spaces, play grounds, CA and roads. However, it is also stated that under the prevailing Master Plan the area to be reserved for residential purpose is 55% and 45% towards parks, CA etc., and since the Society having formed the layout reserving 57 2% towards residential, the excess utilisation is about 2 2%.

¶146

159. It is a matter of fact as admitted by the BDA in its Memo dated 10/12/2015, that in the case of MPME HBCS Ltd the BDA passed a resolution in Subject No.140/2004 dated 29/05/2004 permitting excess residential area of 13.70% and an extent of 4.10% less than the prescribed minimum extent for parks and open spaces in the Zonal Regulations. So also, it is admitted that in the case of Vishwabharathi HBCS in terms of the order dated 16/11/2010 in WP 18496/2007 and connected petitions, similar such resolution was passed by the BDA favouring the society. Memo further states that the Society having carried out all the civil works by fully developing the layout in question and several

¶147

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residential buildings constructed, the BDA is prepared to approve the layout having regard to and in the light of the resolution in other societies, as may be directed by this Court. 164. In the light of several orders passed in the Petition extracted supra, and the layout developed reserving areas noticed above, it would be in the best interest of all concerned i.e., the Society, its members and allottees to ensure that the comprehensive layout plan d-alienating the areas put to use for residential, parks, civic amenities, open spaces and road, is placed before the BDA- the Planning Authority under the BDA Act and as the area in question falls within the territorial jurisdiction of the BDA, for sanction and approval. Points II and III are answered accordingly.

¶150

190. In the circumstances, since there is substantial compliance with the formation of layout reserving areas for residential, parks, open spaces, CA, roads, etc., coupled with sufficient dispute over the exact extent of land and their location as also the reservation in the lands acquired and unacquired, while Society has settled the dispute of the unacquired land before the Civil Court in the Suits instituted against respondents 5 to 16, there is a need to issue directions. to the BDA and the State Government over the sanction of the layout plan.

¶151

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¶153

191. In the result, though petitioner is not entitled to the reliefs, nevertheless the writ petition is disposed of with the following directions:

¶154

(a) The Society to prepare and submit on or before 30th June, 2016 to the BDA a layout plan over an extent of 154 acres 11 % guntas since acquired by the State Government and 28 acres 06 4 gunta being the unacquired portion, totalling to 182 acres and 18 guntas comprised in Allasandra, Chikkabommasandra and Jakkur Plantation, as indicated in the plan Annexure-R4(G), for approval and sanction in accordance with the KTCP Act as also the BDA Act;

¶155

(b) The layout plan to depict the areas reserved and handed over to the BBMP as civic amenities and open spaces under the Relinquishment Deeds executed by the Society, and in the event of shortfall in the area so reserved, in accordance with law, the Society shall make available the deficit of the land from out of the said layout or in the alternative, pay penalty determined by BDA as done in the case of Vishwa Bharati House Building Cooperative Society and Mysore. Paper Mills Employees' House Building Cooperative Society;

¶156

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(c) BDA to consider the layout plan to be submitted by the Society and pass resolution after due inspection and verification of the land and accord sanction, strictly in accordance with law, within four months thereafter;

¶159

(d) The State Government to consider the resolution to be passed by the BDA strictly in accordance with the KTCP Act and pass orders thereon within one month from the date of recommendation from the BDA;

¶160

(e) Respondents 5 to 16 are at liberty to have their grievance redressed before the competent Civil Court in respect of land measuring 22 guntas each in Sy.Nos. 12/2C and 12/4B, claimed to be subject matter of Judgment and decree dated 9.7.2003 in O.S.4361/2000 on the file of the City Civil Court, Bangalore and as also in W.P.3152/2002 DD 9.7.2003;

¶161

(f) This order shall not be construed as a precedent or one of regularising allotment of sites, if shown to be illegal;

¶162

(g) The Society to pursue all legal proceedings pending before the Civil Court,

¶163

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¶164

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as also before the Authorities of the Cooperative Department in respect of the sites formed in the layout, including the evicting of unauthorised occupants, taking possession of the sites and allot them to members who have lost the allotment due to cancellation on account of reservation of the sites for civic amenities and open spaces or have not been allotted sites, in accordance with their seniority in membership;

¶166

(h) The BBMP is directed to ensure the development within 6 months and maintenance of the layout including the areas delineated as parks open spaces etc of which they are put in possession by the Society under several relinquishment deeds and in accordance with the promise set out in the compendium filed in 6/11/2015, so as to show case the layout as a Model Layout;

¶167

(i) All the statutory bodies namely the BDA, BBMP, the BWSSB and KSPCB are directed to act, in tandem, in the matter of ensuring proper functioning of the sewage treatment plan at Jakkur established during the year 2004, including its maintenance based on established standards for treating the sewage

¶168

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and to pump the treated water into the water tank adjoining the STP;

¶170

(j) The State Government and all its authorities are directed to consider, within six months the establishment of a tertiary treatment plant in the light of the quantity of sewage flowing from the Judicial Layout and surrounding layouts at Jakkur;

¶171

(k) The Society is directed not to allot or alienate any site until the layout plan to be submitted by the Society is approved and duly sanctioned by the BDA and the State Government;

¶172

(l) In the light of the aforesaid findings, conclusions and directions, the Contempt petition is dismissed.

¶173

d) In this context, it is relevant to state that apart from

¶174

the fact that the said order attained finality and became conclusive and binding upon all parties including the BDA and the State, this Court has passed the said order and issued directions pursuant to the aforesaid Memo filed by the BDA as well as the express

¶175

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consent given by all parties including the Association(Writ Petitioners), BDA, State, Society, BWSSB, KSPCB and other parties with the intention and objective of resolving the issues/disputes and to salvage the situation for the purpose of enabling the layout plan to be sanctioned and approved in favour of petitioner-Society so that minimum/no hardship or loss would be caused to the site owners/residents.

¶178

e) A perusal of the memo filed by the BDA will indicate that it has categorically stated that the petitioner society had produced a layout plan to an extent of 156 acres 26.75 guntas out of which the area reserved for roads, civic amenities was to an extent of 67 acres 7.45 guntas and an extent of 10 acres one gunta had already been handed over to the BBMP for the purpose of park. It was also stated by the BDA that as per the prevailing master plan, the area to be reserved for residential purposes was 55% and the remaining 45% was to be reserved towards park, civic amenities and

¶179

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road. The BDA further stated in the said memo that since the petitioner society had executed a layout which comprised of a residential area to an extent of 57.5% as against the permitted 55%, the society had utilized an excess area of 2.5% to the extent of which there was a shortfall insofar as area reserved for park, civic amenities and roads were concerned.

¶181

f) In the said memo, BDA also stated that since resolutions had been in respect of VHBCS Society and MPMEHBCS Society pursuant to court orders whereby layout plans containing shortfall of 13.70% and 9.77% in areas reserved for park, civic amenities and roads were approved/ sanctioned in favour of the said societies and since the present subject layout was fully developed and residential buildings had already come up, on humanitarian grounds the BDA was prepared to approve the layout plan on the ground of parity. A perusal of the said memo will clearly indicate that except stating that there was a shortfall of 2.5% which

¶182

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can be compounded / regularized by imposing penalty upon the petitioner on the ground of parity akin to VHBCS society and MPMEHBCS Society by approving / sanctioning the layout plan in favour of the petitioner, the BDA did not put forth any contention or allegation for the purpose of not granting / sanctioning / approving the layout plan of the petitioner society. The aforesaid orders passed by this court were acted upon by the BDA which proceeded to pass a resolution dated 21.12.2017 bearing Subject No. 187/2017 granting sanction / approval to the plan submitted by the petitioner-society and forwarded the same to the respondent-State. Under these circumstances, it is clear that the BDA has no locus standi to oppose or contest the present petition and it is clearly estopped from putting forth diametrically opposite contentions in the present petition. In other words, having filed a memo dated 10.12.2015 before this Court which accepted the same and passed the aforesaid order dated 01.06.2016 which was given effect to by the BDA

¶185

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which approved/sanctioned the layout plan and forwarded the same to the State government for approval, the BDA is not entitled to approbate and reprobate and put forth completely contrary contentions in the present petition which is clearly impermissible and unsustainable in law.

¶187

g) A perusal of the order dated 01.06.2016 passed W.P. No. 40994/2002 c/w CCC No. 87/2004 will indicate that one of the main issues that arose for consideration before this Court was with regard to shortfall/deficit in the areas to be reserved for civic amenities, roads and

¶188

parks and violation of the KTCP Act and Zoning Regulations. During the pendency of the proceedings, several interim orders/directions were passed/issued by this Court which resulted in the petitioner-society executing relinquishment deeds dated 16.10.2009, 21.06.2010, 01.03.2013, 25.09.2013 and 08.09.2015 in favour of the BBMP to an extent of 42.5% for the purposes of park, civic amenities and roads as against

¶189

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the prescribed extent of 45% and the shortfall was only to an extent of 2.5% which has directed to be regularized/compounded by collecting requisite penalty from the petitioner-society. The said order also notices that this Court disposed of the petitions by moulding the reliefs’ with the consent of all parties including the BDA and State government which neither opposed the memo filed by the BDA nor challenge this Court’s orders. Under these circumstances, even the State government is estopped from contending that sanction/approval to the layout plan cannot be granted by contending that there is violation of the KTCP Act or that there was shortfall/deficit in the areas reserved for parks, civic amenities and roads especially when it was a consenting party to the entire proceedings and order passed by this Court as can be clearly discerned from the relevant portions of the order extracted supra. In this context, it is relevant to state that a conjoint reading and a cumulative effect of the earlier court proceedings including the order passed by this court in

¶192

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W.P. No. 40994/2002 c/w CCC No. 87/2004, based

¶194

upon the memo filed by the BDA as well as the BDA resolution dated 21.12.2017 and the clarifications given by the BDA to the queries of the State Government lead to the inescapable conclusion that the impugned order passed by the State Government rejecting the recommendation for sanction/ approval of the layout plan submitted by the petitioner was illegal, arbitrary and contrary to law as well as without jurisdiction or authority of law and the same deserves to be quashed.

¶195

h) As rightly contended by the learned Senior counsel for the *petitioner , the cumulative effect of the memo filed by the BDA before this court, the orders passed by this court including several directions issued to the BDA and the State as well as the BDA resolution granting approval/sanction to the layout plan are sufficient to indicate that the petitioner is entitled to the benefit granted / given to VBHCS Society and MPMEHBCS Society and by virtue of the doctrine / principle of

¶196

Corrected vide Court order dated: 26.10.2023.

¶197

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parity, petitioner society was also entitled to sanction / approval of the layout plan submitted by it.

¶200

i) As stated earlier, in the earlier proceedings, several

¶201

interim orders/directions were passed/issued by this Court which ultimately culminated in the final order dated 01.06.2016 during which the State(arrayed as respondent No.2) did not put forth any contentions nor oppose grant of sanction/approval to the layout plan in favour of the petitioner-society. On the other hand, the State gave its express/implicit/tacit consent for sanction/approval of the layout plan as is clear from the said orders/proceedings without raising any objections. Under these undisputed circumstances, the earlier proceedings and orders of this Court having attained finality and become conclusive and binding upon all parties including the State, the various contentions urged by the State in the present petition as well as in its correspondence with the BDA prior to this petition are clearly barred by the principles of res-

¶202

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judicata and constructive res-judicata and on this ground also, the claim of the State cannot be accepted.

¶205

j) The material on record also indicates that the BDA having passed a resolution according sanction / approval of the layout plan in favour of the petitioner, the said resolution was forwarded to the State Government for the limited purpose of passing formal orders as directed by this Court and in the absence of any provision either under the KTCP Act or BDA Act which empowers / enables the State to sanction / approve a layout plan or to reject a plan sanctioned/approved by the BDA, the role of the State Government was limited and restricted to only/merely pass a formal order and the State does not have jurisdiction or authority of law to reject the layout plan approved/sanctioned by the BDA and consequently, the impugned order dated 22.09.2020 passed by the State Government and consequential endorsement and notice issued by the BDA deserve to be quashed

¶206

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k) Insofar as the contention urged by the respondentState that the layout plan submitted by the petitioner was contrary to the KTCP Act and BDA Act are concerned, in the light of the earlier court proceedings and the approval / sanction by the BDA itself in favour of the petitioner society and since the State Government is neither the competent / appropriate authority to accord approval / sanction of the said layout plan which is within the exclusive domain and jurisdiction of the BDA which had in fact granted approval/sanction, the said contention urged on behalf of the State Government cannot be accepted.

¶209

l) The contention of the State Government that in W.P. No. 40994/2002 c/w CCC No. 87/2004, this court directed the State Government to consider the sanction and approval as per the BDA resolution and to pass orders implies that the State Government was entitled to reject the BDA recommendation is misconceived and cannot be accepted; apart from the fact that this court

¶210

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merely directed the State Government to pass

¶212

appropriate orders since it was a party to the said proceedings, the jurisdiction and power of the State Government to either grant or reject sanction / approval is circumscribed and limited by the provisions of the KTCP Act and the BDA Act under which it was

¶213

only the BDA which was the appropriate / competent authority and not the State Government which has no role to play in this regard and merely because this court thought it fit and proper to involve the State Government also in the process since it was a party and in the facts and circumstances obtaining in the said case, the said circumstance/ direction cannot be made the basis by the respondent-State to contend that it was entitled to pass the impugned order which is clearly without jurisdiction or authority of law.

¶214

m) The undisputed material on record also clearly discloses that the specific stance of the BDA that it was ready to grant approval / sanction of the layout plan submitted

¶215

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¶217

by the petitioner by imposing a penalty for the excess / shortfall area of 2.5% reserved for roads, parks and civic amenities was not only accepted by this court which went one step further and provided an option to the petitioner to submit a layout plan by depicting the areas reserved and handed over to the BBMP under the relinquishment deeds and in the event there was a shortfall, an option was also reserved in favour of the petitioner to pay penalty in lieu of land on parity with VBHCS Society and MPMEHBCS Society. In pursuance of the same, in view of the request made by the petitioner society that it would pay the penalty to be imposed by the BDA since it was not in a position to hand over or make available the deficit land to an extent of 2.5%, the BDA passed a resolution dated 21.06.2017 approving and granting sanction to the said layout plan and consequently, the respondent-State was not entitled to reject the same by passing the impugned order which deserves to be quashed on this ground also.

¶218

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n) The impugned government order and the impugned endorsement and notice issued by the BDA is contrary to the orders passed by this court in W.P. No. 40994/2002 c/w CCC No. 87/2004, memo filed by the BDA in the said proceedings, BDA resolution dated 21.12.2017 as well as the clarifications provided by the

¶221

BDA to the queries of the State Government and as such, the same deserve to be quashed.

¶222

o) The contention of the respondents that the layout plan submitted by the petitioner society is contrary to the KTCP Act and BDA Act and as such the same cannot be approved is misconceived and untenable; in this context it is relevant to state that in the light of the memo filed by the BDA referred to supra, final order passed in W.P. No. 40994/2002 c/w CCC No. 87/2004, the BDA resolution, etc., the sanction / approval of the layout plan would necessarily be dependent upon the aforesaid documents and previous proceedings including the orders passed by this court and so long as

¶223

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the BDA was directed to grant approval/ permission in favour of the petitioner to the layout plan submitted by it and given the limited role of the State Government to pass orders pursuant to the BDA resolution, in the absence of any statutory power conferred upon the State Government to reject the layout plan either under the KTCP Act, BDA Act or any other statutory provision, the impugned order passed by the State Government is clearly illegal and deserves to be quashed on this score also.

¶225

p) In view of the aforesaid facts and circumstances, I am of the considered opinion that the layout plan at Annexure-E submitted by the petitioner to the BDA stands approved in terms of the BDA resolution dated 21.12.2017 in Subject No.187/2017 and consequently, the impugned government order at Annexure-H dated 22.09.2020, BDA endorsement at Annexure-F dated 25.02.2021 and BDA notice dated 30.03.2021 deserve

¶226

to be quashed and directions are to be issued to the

¶227

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respondents to pass appropriate orders and accord sanction/approval to the said layout plan of the petitioner after collecting necessary penalty from the petitioner-society as expeditiously as possible and within a period of three months from the date of receipt of a copy of this order.

¶230

In the result, I pass the following:

¶231

ORDER

¶232

i) The petition is hereby allowed;

¶233

ii) The petitioner-Society is declared as being entitled to approval and sanction of the layout plan at Annexure-E submitted by the petitioner to the BDA in terms of resolution dated 21.12.2017 in Subject No.187/2017 communicated by the BDA to the petitioner vide Annexure-E1 dated 26.02.20218;

¶234

iii) Consequently, the impugned government order at Annexure-H dated 22.09.2020, BDA endorsement at Annexure-F dated 25.02.2021 and BDA notice dated 30.03.2021 are hereby quashed;

¶235

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iv) The respondents are directed to pass appropriate orders and accord sanction/approval to the said layout plan of the petitioner after collecting necessary penalty from the petitioner-society as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of this order.

¶237

v) It is made clear that the present order is passed in the peculiar/special facts and circumstances of the instant case and shall be restricted/limited to the subject layout and shall not be applicable to any other layouts'.

¶238

vi) It is further clarified that the present order will not be treated as a precedent and shall not have any precedential value for any purpose whatsoever.

¶239

Sd/JUDGE

¶240

KMS/SRL List No.: 19 Sl No.: 5

¶241

Retyped and Replaced vide Court order dated 26.10.2023

The Karnataka State Judiciary v. the State of Karnataka

Case brief

What is this about?

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The Karnataka State Judiciary v. the State of Karnataka

Case brief

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