The Commissioner Vs the State of Karnataka

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.13263/2022 DATED 03/07/2023 AND BE FURTHER PLEASED TO DISMISS THE WRIT PETITION.

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THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON 28.08.2025 COMING ON FOR PROUNOUNCEMENT THIS DAY, RAJESH RAI K, J., DELIVERED THE FOLOWING.

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and

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HON'BLE MR. JUSTICE RAJESH RAI K

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE RAJESH RAI K)

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This intra Court appeal is filed by the appellant

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challenging the order dated 03.07.2023 passed by the learned Single Judge in W.P.No.13263/2022, whereby the learned Single Judge allowed the writ petition directing the BBMP to issue Transferable Development Rights Certificate (for brevity, referred to as "the TDR Certificate") as undertaken by the

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Commissioner, BBMP in the Relinquishment Deed dated 17.03.2012 in favour of the petitioner/respondent No.3 herein.

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We have heard the learned counsel Sri.Monesh Kumar K.B., for the appellants, the learned Additional Government Advocate for respondent No.1, Smt.Poonam Patil, learned counsel for respondent No.2 and Sri Shivaprasad Shantanagoudar, the learned counsel for respondent No.3.

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It is contended by the learned counsel for the appellant-BBMP that the learned Single Judge has erred while allowing the writ petition without considering the factual aspect of the matter in right perspective. He contended that respondent No.3 i.e. the writ petitioner had relinquished his property i.e. 1019.16 sq. mtrs of land in Sy.No.128/1 of Herohalli Village, Yeshwanthapura Hobli, Bengaluru North, Ward No.72 (for brevity, "the land in question") in favour of local erstwhile Panchayath Authority for formation of road in the year 2007. Even the other landowners in Sy.No.128/2B had voluntarily handed over 25 feet to the said Authority for formation of road. Thus, various owners including respondent

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No.3 handed over portion of their lands measuring 25 feet free of cost for formation of road. However, after lapse of ten years, respondent No.3 insisted the BBMP to issue TDR Certificate by relying on the concocted Relinquishment Deed dated 17.03.2012. As such, there is no question of compelling the appellant-BBMP to issue the TDR Certificate.

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He further contended that the claim of respondent No.3 for issuance of TDR Certificate is not within the ambit of Section 14B of the Karnataka Town and Country Planning Act, 1961 (for brevity, referred to as "the 1961 Act").

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He also contended that the Relinquishment Deed dated 17.03.2012 is a concocted and bogus document as the same was executed by respondent No.3 in collusion with the First Division Assistant of the BBMP, who represented the BBMP at the time of registration of said Deed before the SubRegistrar Office without being authorised by the Commissioner of BBMP, which ought to have been made by the Commissioner of BBMP.

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As such, the impugned order passed by the learned

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Single Judge is liable to be set-aside. Accordingly, he prays to allow the appeal.

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Per contra , learned counsel for respondent No.3 contended that the learned Single Judge while allowing the Writ Petition has meticulously examined the documents placed by either parties and passed a reasoned order which does not call for any interference at the hands of this Court.

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He also contended that the contention of the appellant-BBMP that respondent No.3 has been voluntarily handed over the possession of the property to the erstwhile panchayat is totally without any evidence on record. If such was the position, the BBMP would not have accepted the Relinquishment Deed executed in its favour by respondent No.3.

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He further contended that the defence put forth by

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the appellant-BBMP that the TDR Certificate sought for by respondent No.3 is not within the ambit of Section 14-B of 1961 Act is liable to be rejected at the threshold, for the reason that the BBMP has accepted the Relinquishment Deed executed

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in its favour by respondent No.3 vide registered Relinquishment Deed dated 17.03.2012 and agreed that respondent No.3, being the absolute owner of the property, relinquished his right in favour of the BBMP free of cost and without any encumbrance in lieu of TDR Certificate and that the BBMP agreed to grant TDR Certificate in respect of schedule 'B' property to the Relinquishment Deed. Such being the position, the BBMP cannot over turn the agreed terms in the Relinquishment Deed and deny issuance of TDR certificate to respondent No.3.

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Further, it is contended that the contention raised by the learned counsel for the appellant-BBMP that the Relinquishment Deed is a concocted document since it was executed by respondent No.3 in collusion with the First Division Assistant of the BBMP, without being authorised by the Commissioner of BBMP is also liable to be rejected for the reason that such a plea has not been raised by the appellant either before the learned Single Judge or prior to that.

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He also contended that these aspects of the matter have been rightly appreciated by the learned Single Judge. As such, he prays to dismiss the appeal.

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Having heard the learned counsel for the respective

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parties and on perusal of the documents on record, the point that would arise for our consideration is that:

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Whether the learned Single Judge has justified in allowing the Writ Petition by directing the BBMP to issue TDR certificate as undertaken by the Commissioner, BBMP in the Relinquishment Deed executed by the petitioner in favour of the BBMP?

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As could be gathered from records, it is the specific case of respondent No.3 before the learned Single Judge that he had relinquished the land in question under Relinquishment Deed dated 17.03.2012 in favour of the Commissioner of BBMP for formation of new road in Kempegowda Nagara, Magadi Main Road. The respondent No.3 has surrendered the said land to the BBMP as per the provisions of Section 14-B of 1961 Act as

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amended prior to 2012 for free of cost and without any encumbrance, subject to issuance of TDR certificate by the

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BBMP. Accordingly, the Relinquishment Deed was executed by respondent No.3 in favour of BBMP. The said Deed was registered before the Sub-Registrar, Nagarabhavi on 17.03.2012.

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On careful perusal of Relinquishment Deed, the same depicts that 'the BBMP has taken up for construction of new road in Kempegowda Nagara, Magadi Main Road, for which, 1019.61 sq. mtrs. of land was required from the property belonging to respondent No.3 i.e., the land in question. Further, the BBMP has agreed to grant TDR Certificate to respondent No.3 as per the terms and conditions stipulated in the Government Notification UDD/154/BEM/RUPRA/2004 dated 18.01.2005. The BBMP has also agreed that respondent No.3 is the absolute owner in possession of the property mentioned at the schedule 'A' of the Relinquishment Deed i.e., an area of 1019.61 sq. mtrs. and that the TDR Certificate will be issued by the BBMP in favour of respondent No.3 equal to 1.5 times the area of land relinquished i.e., 1019.61 sq. mtrs. as per schedule 'B' mentioned in the Relinquishment Deed. This being the position, the contention of the learned counsel for the appellant-BBMP

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that respondent No.3 cannot claim the TDR Certificate since he has voluntarily surrendered the land to the erstwhile Panchayat, cannot be accepted.

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Though it is contended by the learned counsel for the appellant-BBMP that since respondent No.3 has already sold the property in question in favour of third party, he cannot claim TDR Certificate, which may not come in the way of respondent No.3 claiming TDR Certificate in view of Relinquishment Deed.

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As regards the contention of the learned counsel for the appellant-BBMP that the Relinquishment Deed is a concocted document executed by respondent No.3 in collusion with the First Division Assistant of BBMP without being authorised by the Commissioner, BBMP is concerned, admittedly, the said document has not been questioned by the BBMP till date, either by lodging a complaint before the police or by initiating any action against the concerned First Division Assistant, who represented the Commissioner, BBMP at the time registration of the Relinquishment Deed. When the veracity of the said document has not been challenged, the

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contention raised by the learned counsel for the appellantBBMP as regards concoction of the Relinquishment Deed, for the first time before this Court, cannot be accepted.

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The learned Single Judge while allowing the writ petition in the impugned order has observed at paragraphs 4 to 6 as under:

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" 4. Statement of objections has been filed at the hands of the respondents-BBMP. It is now sought to be contended that the petitioner is not the only person to have relinquished the land in question for formation of the public road. Attention of this Court is drawn to Annexure-R2, which is said to be a consent letter given by the many persons including the petitioner herein. Moreover, it is sought to be contended that the public road was not formed as per the requirement of the reservations made in the Master Plan and it was only a voluntary act on the part of the petitioner to form a road.

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5. In the considered opinion of this Court, such statement should not be

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coming from the Commissioner, BBMP. The least that is expected from the statutory authority who has got valuable piece of property relinquished at the hands of the petitioner under a relinquishment deed is to fulfill the undertaking given by the authority which is recorded in the Relinquishment Deed. It would be a futile exercise on the part of the Commissioner seeking to contend that many other persons are entitled for TDR certificates. Such statements will not portray the Commissioner in good picture. If there were some other persons who are entitled for TDR certificates, similar Relinquishment Deeds should have been obtained at their hands. As could be seen from the Relinquishment Deed it is executed only by the petitioner in favour of the Commissioner. Therefore, the Commissioner will not be permitted to make such statement that some other persons are also entitled for the TDR certificates.

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6. This Court having been satisfied that a genuine grievance has been made out by the petitioner for

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issuance of TDR certificate in terms of the Relinquishment Deed dated 17.03.2012, the writ petition will have to be allowed."

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In view of the aforesaid discussions and considering

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the reasoning of the learned Single Judge, we are of the view that no interference with the impugned order passed by the learned Single Judge is called for and the writ appeal lacks merit. Accordingly, we answer the point raised above in the

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'affirmative'. Consequently, the writ appeal stands dismissed .

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SD/(ANU SIVARAMAN) JUDGE

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SD/(RAJESH RAI K) JUDGE

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PKS

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List No.: 1 Sl No.: 1

The Commissioner v. the State of Karnataka

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The Commissioner v. the State of Karnataka

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