Sri Eapen Chandy Vs the State of Karnataka

SRI EAPEN CHANDY S/O. SRI. M G CHANDY, AGED ABOUT 64 YEARS R/AT NO.S-2, ABIDE WITH ME, NO.1/A, 1^ST MAIN ROAD, KARIYANAPALYA, LINGARAJAPURAM, BENGALURU-560 084.

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…PETITIONER

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(BY SRI. RAJU S., ADVOCATE)

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AND:

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Digitally signed by GEETHA P G Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, URBAN DEVELOPMENT DEPARTMENT, 4^TH FLOOR, VIKASA SOUDHA, DR. AMBEDKAR VEEDHI, BENGALURU - 560001.

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BRUHAT BENGALURH MAHANAGARA PALIKE N.R. SQUARE, BENGALURU - 560002 REPRESENTED BY ITS COMMISSIONER.

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THE JOINT DIRECTOR TOWN PLANNING (NORTH), BRUHAT BENGALURH MAHANAGARA PALIKE N.R. SQUARE, BENGALURU - 560002.

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…RESPONDENTS

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(BY SRI. BOPANNA B., AGA FOR R.1; SRI S.N. PRASHANTH CHANDRA, ADVOCATE FOR R.2 & R.3.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE BYE-LAWS NOs.3.8 AND 3.9 OF THE BRIHAT BANGALORE MAHANAGARA PALIKE BYE-LAWS, 2003 AS UNCONSTITUTIONAL, ILLEGAL AND ULTRA VIRES AND CONSEQUENTLY DECLARE THAT THE LEVY AND COLLECTION OF GRANT RENT FROM THE PETITIONER IS ILLEGAL AND UNAUTHORIZED, ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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HC-KAR

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ORAL ORDER

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The captioned petition is filed seeking for the following reliefs:

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"Wherefore, the petitioner respectfully prays that this Hon'ble Court be pleased to:-

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(a) Declare that the Bye-Laws Nos.3.8 and 3.9 of the Bruhat Bangalore Mahanagara Palike Bye-Laws, 2003 as unconstitutional, illegal and ultra vires and consequently declare that the levy and collection of grand rent from the petitioner is illegal and unauthorized;

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(b) Issue a writ of Certiorari or order or direction, in the nature of a writ, quashing the demand notice dated 12/07/2019 in No.BBMP/Addl.Dir.JD NORTH/0191/2014-15 issued by the 3^rd respondent- The Joint Director, Town Planning (North), Bruhat Bangalore Mahanagara Palike, N.R. Square, Bengaluru - 560 002, produced at Annexure-E to the Writ Petition in so far as demanding to pay a sum of Rs.29,02,000/towards ground rent,

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C.G.S.T., S.G.S.T and also to pay the scrutiny fee concerned; are

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(c) Issue a Writ of mandamus, directing the Respondents-BBMP to issue Occupancy Certificate to the petitioner without insisting on payment of ground rent/scrutiny fee;

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(d) Pass such other orders, as the petitioner is entitled to in the facts and circumstances of the case, including the costs of the proceedings, in the interest of justice and equity."

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It is brought to the notice of this Court that across the Bar, the issue is dealt by the Co-ordinate Bench in the reported judgment in W.P.No.36017/2018 and connected matters. The Co-ordinate Bench, while deciding the issue, has held that the bye-laws under which Ground Rent, License Fee, Building License fee, Scrutiny fee are levied are ultra vires the Act. The Co-ordinate Bench also quashed the circular dated 04.09.2015 and Government circulars dated 27.01.2017 and 30.03.2017. Therefore,

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this Court deems it fit to cull out the operative portion of

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the order, which reads as under;

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"O R D E R

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(a) All the Writ Petitions are allowed.

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(b) The bye-laws under which Ground Rent, Licence Fee, Building Licence Fee, Scrutiny Fee, Security Deposit are all held ultravires the Act and are resultantly rendered unenforceable.

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(c) The Circular bearing

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No. ºÉ¤£ÀAiÉÆÃ/eÉ.r(G)/rJªÀiï3/¦Dgï/320/2015-16 dated 04.09.2015 stands quashed.

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(d) The Circular bearing No . £ÀCE 36 ¨ÉªÀÄ¥Áæ 2016 (¨sÁUÀ) dated 27.01.2017 and the Circular bearing No. ºÉ¤£ÀAiÉÆÃ/¦Dgï/1533/2016-17 dated 30.03.2017 demanding Lake Rejuvenation Fee are quashed.

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(e) Imposition of labour cess under the

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Welfare Cess Act is upheld, but its demand for payment upfront in terms of Government Orders dated 18.01.2007 and 28.02.2007 stands quashed.

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(f) The State or the BBMP is not precluded from bringing in the impugned levies under the

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provisions of the Act or the Rules by making suitable amendments to the Act and the Rules. 368

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(g) Petitioners in all these petitions who have deposited certain amounts in terms of the interim order passed by this Court before this Court are entitled to refund of the amounts so deposited.

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(h) Insofar as refund in other cases who have paid to the Corporation under protest, they shall be entitled to such refund only if the same is not collected from the consumers of the apartments, businesses as the case would be.

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(i) Insofar as all other payments made, they would all be at liberty to give representation to the BBMP and the BBMP would consider the refund of the amounts, in accordance with law and the findings of this Court.

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(j) If representations are made by the petitioners for refund, the BBMP shall pass

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appropriate orders within 12 weeks from the date

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of such representations.

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In view of disposal of the petitions, all pending Interlocutory Applications also stand disposed."

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In the considered view of this Court, the issues raised in the present writ petition stand squarely covered

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by the authoritative pronouncement rendered by the

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Co-ordinate Bench of this Court in W.P.No.36017/2018 and connected matters. The Co-ordinate Bench, after examining the statutory framework and the impugned levy mechanisms adopted by the BBMP, categorically held that the imposition of Ground Rent, Licence Fee, Building Licence Fee, Scrutiny Fee, and Security Deposit lacked statutory sanction and were ultra vires the Karnataka Municipal Corporations Act, 1976. The Co-ordinate Bench further held that Clause 3.8

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of the BBMP Building Bye-laws, 2003, which provided for imposition of Ground Rent, was also devoid of legal

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authority and consequently struck it down. The Court also quashed the impugned Circular dated 04.09.2015 issued by respondent No.4, as well as the Government Orders dated 27.01.2017 and 30.03.2017, which had directed collection of such fees without statutory backing. With specific reference to labour welfare cess, the Co-ordinate Bench upheld the competence of the State to levy the cess under the Building and Other Construction Workers’ Welfare Cess Act, 1996, but set aside the directive mandating its upfront collection through Government Orders dated 18.01.2007 and 28.02.2007, thereby rendering the demand raised in anticipation of sanction of building plans unlawful. The Co-ordinate Bench also clarified that the only charging provision available under the Act was sub-section (20-b) of Section 423, which merely enabled collection of fees for services relating to burial grounds and crematoria, and could not be relied upon for the imposition of unrelated charges such as ground rent or scrutiny fee. In light of these clear and

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binding findings, the controversy raised in the present writ

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petition does not survive for independent adjudication, as the grievance of the petitioner is directly addressed and resolved by the said judgment. Therefore, this Court is of

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the considered opinion that the present writ petition deserves to be allowed by applying the ratio and operative

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portion of the judgment rendered

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in W.P.No.36017/2018 and connected matters.

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In view of the above, this Court proceeds to pass the following;

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ORDER

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(i) The writ petition is allowed.

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(ii) The impugned demand notice dated 12.07.2019 issued by respondent No.3 as per Annexure-E is hereby set-aside.

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(iii) Respondent - BBMP is hereby directed to issue Occupancy Certificate in accordance with law in compliance of the construction strictly adhering to the approved building plan.

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(iv) RespondentBBMP is hereby directed to forthwith process the petitioner's application seeking occupancy certificate, strictly in accordance with law.

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(v) It is made clear that the issuance of occupancy certificate shall not be withheld merely on the ground that the BBMP is contemplating to file an appeal against the reported judgment.

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(vi) If the occupancy certificate is issued, the same shall be subjected to the outcome of any appeal that may be filed by the BBMP against the judgment.

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Pending applications, if any, are also disposed off.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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VMB

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List No.: 2 Sl No.: 9

Sri Eapen Chandy v. the State of Karnataka

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Sri Eapen Chandy v. the State of Karnataka

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