Allowed

Shri. H.M.Mallikarjunaswamy v. the State of Karnataka

Karnataka HC13 Feb 2024WP/15720/2020

Case brief

AI extract

What is this about?

Town planning officers challenged Lokayukta suo motu proceedings arising from a newspaper report over BDA's approval of a land use change, after the Tribunal dismissed their applications. The High Court held the proceedings were witch hunting since no action was taken against senior IAS members of the approving High Power Committee, quashed both orders.

What did the court decide?

Impugned Tribunal order dated 04.11.2019 and Government Order dated 31.08.2015 quashed; no costs.

Shri. H.M.Mallikarjunaswamy Vs the State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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1 - NC: 2024:KHC:6053-DB WP No. 15720 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF FEBRUARY, 2024

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PRESENT

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THE HON'BLE MR P.S.DINESH KUMAR, CHIEF JUSTICE AND

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA WRIT PETITION NO. 15720 OF 2020 (S-KSAT)

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BETWEEN:

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SHRI H.M. MALLIKARJUNASWAMY S/O LATE H.M. MARULARADHYA AGED ABOUT 59 YEARS PRESENTLY WORKING AS ADDITIONAL DIRECTOR OF TOWN AND COUNTRY PLANNING STATE TOWN PLANNING BOARD M.S. BUILDING GATE-4 BENGALURU-560001

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Digitally signed by YASHODHA N Location: HIGH COURT OF KARNATAKA

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SHRI K.N. NARAYANA GOWDA S/O LATE NANJAPPA AGED ABOUT 54 YEARS JOINT DIRECTOR OF TOWN AND COUNTRY PLANNING BENGALURU DEVELOPMENT AUTHORITY BENGALURU-560020

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…PETITIONERS

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(BY SRI S.S. NAGANAND, SENIOR ADVOCATE FOR SMT. SUMANA NAGANAND, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO GOVERNMENT URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA BENGALURU-560001

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THE KARNATAKA LOKAYUKTA REPRESENTED BY ITS REGISTRAR M S BUILDING DR. AMBEDKAR VEEDHI BENGALURU-560001 BY ITS REGISTRAR

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THE HON’BLE UPALOKAYUKTA O/O KARNATAKA LOKAYUKTA M S BUILDING DR. AMBEDKAR VEEDHI BENGALURU-560001 BY ITS REGISTRAR

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…RESPONDENTS

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(BY SRI VIKAS RAJIPURA, AGA FOR R-1; SRI ASHWIN S. HALADY, ADVOCATE FOR R-2 & 3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 04.11.2019 PASSED BY THE TRIBUNAL IN APPLICATION NOS.8557/2015 AND 8556/2015 (ANNEXURE-E) AS NULL AND VOID AND CONSEQUENTLY QUASH THE IMPUGNED ORDER DATED 31.08.2015 (VIDE ENCLOSURE-A17 IN ANENXURE-A) WITH ALL CONSEQUENTIAL BENEFITS.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:

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ORDER

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This writ petition is filed by a retired Additional Director of Town and Country Planning and Joint Director of Town and Country Planning working for BDA¹ with the following prayer:-

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“(a) To quash, by issue of a writ of certiorari or any other appropriate writ or order the impugned order dated 4.11.2019 passed by the Hon’ble Tribunal in Application No.8557/2015 and No.8556/2015 (Annexure-E) as null and void and consequently quash the impugned order dated 31.8.2015 (vide Enclosure-A17 in Annexure-A) with all consequential benefits.”

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Shri S.S.Naganand, learned Senior Advocate for the petitioners submitted that KIADB² had allotted a land situated in Pattandur Agrahara Village, K.R.Puram Hobli, Bengaluru East Taluk, to M/s.Joy Ice Creams (Bangalore) Private Limited and the sale deed was executed on July 21, 2006. Thereafter, M/s. Joy Ice Creams sold the land to M/s. Prestige Estates Projects (Private) Limited on August 30, 2006. M/s.Prestige Estates submitted an application to BDA for change of land use from industrial to residential purpose and to sanction development plan for taking up residential project. BDA called upon M/s.Prestige Estates to obtain No Objection Certificate

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1 Bengaluru Development Authority

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2 Karnataka Industrial Areas Development Board

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from KIADB to consider the said application. M/s.Joy Ice Creams approached KIADB to issue No Objection Certificate. Vide communication dated June 5, 2008 (Annexure-A6), Chief Executive Officer and Executive Member of KIADB informed M/s.Joy Ice Creams that KIADB had already issued sale deeds and M/s.Joy Ice Creams could approach BDA for matters pertaining to change in land use and other allied matters. The High Power Committee of BDA accorded its approval for change of land use from industrial to residential purpose and sanctioned development plan for taking up residential project.

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Based on a news item in Kannada daily newspaper ‘Prajavani’ dated December 31, 2010, Karnataka Lokayukta initiated suo motu proceedings by registering a complaint. The Additional Registrar of Enquiries-8, Karnataka Lokayukta, was nominated as Enquiry Officer to frame charges and to conduct departmental enquiry against the petitioners. Notice was issued by the Chief Engineer of Lokayukta calling upon the petitioners to show cause as to why action should not be taken against them for dereliction of duty. Petitioners submitted their reply and explanation. The Lokayukta recommended for initiation of disciplinary proceedings as per Annexure-A.16.

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Shri Naganand submitted that the land in question was initially allotted to M/s. Joy Ice Creams. Thereafter, M/s. Joy Ice Creams sold the same to M/s.Prestige Estates who applied for change of land use from industrial purpose to residential purpose and to sanction development plan for taking up residential project. The BDA insisted M/s.Prestige Estates to obtain No Objection Certificate from KIADB as is found in Subject No.4 of the Agenda Note dated July 19, 2008 (Annexure-A7). The High Power Committee of BDA has accorded approval. Petitioners are low rank officers. High Power Committee consists of Commissioner, BDA, Bengaluru; Chairman, BWSSB³ ; and Commissioner, BBMP who are all Senior IAS Officers. In addition, member of Town Planning and Secretary, BDA is also a member. Shri Naganand further submitted that allotment of land in question to M/s.Joy Ice Creams was subject matter of a PIL which stood concluded in W.A.No.6845/2017 decided on July 29, 2022 (State of Karnataka and others vs Prestige Estates Projects Limited and others) . He submitted that the appeal filed by Samaja Parivarthana Samudaya was also heard along with the

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3 Bangalore Water Supply and Sewerage Board

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said writ appeal. Adverting to paragraph 22 of the order passed in the said writ appeals, he submitted that this Court has recorded that the sale is absolute. In paragraph 28, it is recorded that, the contention that KIADB had no authority to execute sale deed in favour of M/s.Joy Ice Creams was a misconceived one. The order in W.A.No.6845/2017 has been affirmed in SLP Diary No.36498/2022. In sum and substance, Sri Naganand submitted that initiation of suo motu proceedings by Lokayukta against the petitioners is wholly unsustainable in law.

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In reply, Shri Ashwin S. Halady, learned advocate for respondents No.2 and 3 submitted that the land was initially allotted by KIADB and therefore, No Objection Certificate from KIADB was necessary. Petitioners were working as Additional Director and Joint Director of Town and Country Planning at the relevant point of time and it was their duty to bring the said aspect to the notice of the Board and the High Power Committee. Therefore, action initiated against the petitioners is just and appropriate.

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We have carefully considered the rival contentions and perused the records.

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Undisputed facts of the case are, the land was allotted by KIADB to M/s.Joy Ice Creams. M/s.Joy Ice Creams sold the land to M/s.Prestige Estates who applied for change of land use from industrial purpose to residential purpose and to sanction development plan for taking up residential project. The BDA insisted M/s.Prestige Estates to obtain No Objection Certificate from KIADB. M/s.Joy Ice Creams approached KIADB to issue No Objection Certificate. Vide communication dated June 5, 2008 (Annexure-A6), KIADB informed M/s.Joy Ice Creams as under:

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“Regarding the above subject, I would like to state that the lands were allotted to you by the KIADB way back in the year 1991 and after implementation of the project, sale deeds also have been issued in your favour. In your letter you have indicated that BDA have accorded change of land use for residential purpose. Since KIADB has already issued sale deeds, you may approach BDA only for matters pertaining to change in land use and other allied matters.”

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8. The above communication shows that KIADB raised no

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objection, but informed M/s.Joy Ice Creams to approach BDA for matters pertaining to change of land use and other allied matters. Subject No.4 in the Agenda Note dated July 19, 2008

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(Annexure-A7) records that No Objection Certificate is required from KIADB. Resolution was passed by the High Power Committee of BDA on Subject No.4 in the meeting held on August 20, 2008 and approval has been accorded. In W.A.No.6845/2017 c/w W.A.No.6438/2017, this Court has recorded thus:

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“28. In the instant case, the land has been allotted to KIADB with the prior approval of the GOK. The contention of the learned Additional Government Advocate that the grant has been made in contravention of Rule 20(1)(c) of the Rules does not deserve acceptance. Similarly, the contention that KIADB had not authority to execute the sale deed in favour of Joy Ice Creams is misconceived as the same is contrary to Rules. Similarly the contention that the order of grant was made in favour of Joy Ice Creams for an unauthorised purpose is misconceived. There is no material on record to hold that the land has been either allotted or conveyed in contravention of the Rules and therefore, the contention that Joy Ice creams and Prestige Estates have played fraud with the GOK does not deserve acceptance.”

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As rightly contended by Shri Naganand, this Court has repelled the contention that KIADB had no authority to execute the sale deed in favour of M/s.Joy Ice Creams as ‘misconceived’.

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Admittedly, proceedings have been initiated based on a newspaper report. No action has been taken against three IAS Officers who are members of High Power Committee nor

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against other members. The fact remains that the high power committee has accorded approval.

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In the above facts and circumstances, in our considered view, initiation of proceedings against the petitioners is nothing but witch hunting.

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Accordingly, this writ petition is allowed . The impugned order dated November 4, 2019 passed by the Karnataka Administrative Tribunal in Applications No.8556/2015 c/w 8557/2015 (Annexure-E) and impugned Government Order dated August 31, 2015 (Enclosure-A17 in Annexure-A) are quashed.

No costs.

Sd/CHIEF JUSTICE

Sd/JUDGE

BKV

List No.: 1 Sl No.: 61

Shri. H.M.Mallikarjunaswamy v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Shri. H.M.Mallikarjunaswamy v. the State of Karnataka

Case brief

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