1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE12H DAY OF NOVEMBER, 2021 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.54098 OF2018(LB-BMP) C/W WRIT PETITION No.2452 OF2021(LB-BMP) IN WRIT PETITION No.54098 OF2018(LB-BMP) BETWEEN1 SRI MADHUSUDHAN BHADRI S/O B.KRISHNAMURTHY, AGED ABOUT46YEARS RESIDING AT NO.799/14, 1ST MAIN, 4TH CROSS, SHREYAS COLONY, WARD NO.195, J.P NAGAR, 7TH PHASE, BENGALURU - 560 078.
2. SMT.SUHASINI P.RAO W/O SRI MADHUSUDHAN BHADRI, AGED ABOUT38YEARS, RESIDING AT NO.799/14, 1ST MAIN, 4TH CROSS, SHREYAS COLONY, WARD NO.195, J.P NAGAR, 7TH PHASE, BENGALURU - 560 078. ... PETITIONERS (BY SRI M.S.BHAGWAT, ADVOCATE (PHYSICAL HEARING)) 2 AND1 BRUHATH BANGALORE MAHANAGARA PALIKE REPRESENTED BY ITS COMMISSIONER, N R SQUARE, BENGALURU - 560 002.
2. THE ASSISTANT REVENUE OFFICER WARD NO.195, YELACHENAHALLI SUB-DIVISION, BRUHAT BANGALORE MAHANAGARA PALIKE, BENGALURU - 560 078. ... RESPONDENTS (BY SRI V.SREENIDHI, ADVOCATE (PHYSICAL HEARING)) THIS WRIT PETITION IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA PRAYING TO QUSH THE FORM-B PROPERTY REGISTER BEARING NO.813 ISSUED BY THE R-2 IN RESPECT OF THE PETITION SHECUEL PROPERTY [ANNEXURE-D]. AND CONSEQUENTLY DIRECT THE RESPONDENT TO ISSUE/RECORD THE PETITION SCHEDULE PROPERTY IN FORM-A PROPERTY REGISTER IN VIEW OF THE PRINCIPLES LAID DOWN BY THIS HON'BLE COURT IN SMT.SHANTA M.GAD AND OTHERS V/S ASSISTANT REVENUE OFFICER, BBMP, AND ANOTHER REPORTED IN ILR20158KAR441[ANNEXURE-E].. IN WRIT PETITION No.2452 OF2021(LB-BMP) BETWEEN1 SMT.DIANA LOBO W/O LATE MATHIAS BERNARD LOBO AGED ABOUT67YEARS RESIDING AT NO.473/E, JAGADISHNAGAR, NEW THIPPASANDRA POST, BENGALURU - 560 075. 3
2. SRI ROHAN LOBO S/O LATE MATHIAS BERNARD LOBO AGED ABOUT40YEARS RESIDING AT NO.473/E, JAGADISHNAGAR, NEW THIPPASANDRA POST, BENGALURU - 560 075. ... PETITIONERS (BY SRI M.S.BHAGWAT, ADVOCATE (PHYSICAL HEARING)) AND1 BRUHATH BANGALORE MAHANAGARA PALIKE REPRESENTED BY ITS COMMISSIONER N.R. SQUARE, BENGALURU - 560 002.
2. THE ASSISTANT REVENUE OFFICER BRUHAT BANGALORE MAHANAGARA PALIKE H.A.L. AIRPORT SUB-ZONE, MAHADEVAPURA ZONE, BENGALURU - 560 037. ... RESPONDENTS (BY SRI S.N.PRASHANTH CHANDRA, ADVOCATE (PHYSICAL HEARING)) THIS WRIT PETITION IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE RESPONDENTS; QUASH THE IMPUGNED ENDORSEMENT DATED1608.2019 ISSUED BY THE R-2 ANNEXURE-J AS WELL AS THE IMPUGNED ENDORSEMENT DATED1612.2019 ISSUED BY THE R-2 ANNEXURE-K AND CONSEQUENTLY DIRECT THE RESPONDENTS HEREIN TO ISSUE / RECORD THE PETITION SCHEDULE A AND B PROPERTIES IN FORM-A PROPERTY REGISTER, IN VIEW OF THE PRINCIPLES LAID DOWN BY THIS HON'BLE COURT IN SMT SHANTA M GAD AND OTHERS V/S ASSISTANT REVENUE OFFICER, BBMP AND ANOTHER REPORTED IN ILR2015KAR441(ANNEXURE-L). 4 THESE WRIT PETITIONS COMING ON FOR DICTATING ORDER
S THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioners in these writ petitions seek quashment of endorsements which place the properties of the petitioners in Form-B register and also seek consequential directions to place the properties of the petitioners in Form-A register.
2. Heard Sri M.S.Bhagwat, learned counsel for the petitioners and Learned Counsel Sri V Srinidhi and Learned counsel Sri S.N.Prashanth Chandra, learned counsel for respondents 1 and 2 in both in these petitions W.P.NO.54098 OF2018 3. Petition schedule property was a site in the erstwhile Kothanurgramatana now in Ward No.195, KothanurShreysas Colony. One Smt. M.R.Ambuja had purchased the said property by way of registered sale deed dated 17-10-1994 and thereafter she gifted the property by way of gift deed dated 10-12-2002 in favour of Dr. Roshni P.Rao from whom the petitioners had 5 purchased the petition schedule property by way of registered sale dated 17.06.2010. The petitioners are now the absolute owners of the said property from 17-06-2010.
4. It appears that the petitioners on becoming the owners of the property and the fact that the property came within the jurisdiction of the Bruhat Bengaluru MahanagaraPalike (‘BBMP’) applied for inclusion of their names in the demand register for the purpose of payment of tax. The BBMP assed the property and included the petition schedule property in Form-B of the property register under Rule 11 of the Bruhat Bengaluru MahanagaraPalike Property Tax Rules, 2009 (hereinafter the ‘the Rules’ for short). It is this entry of the property of the petitioners that is made in Form-B Register is what drives the petitioners to this writ petition. W.P.NO.2452 OF2021 5. On 25-09-1986 the husband of the 1st petitioner and father of the 2nd petitioner purchased the Schedule ‘A’ property as described in the petition schedule pursuant to a registered 6 sale deed. On 22-10-1992 the then H.A. Sanitary Board assessed on the petition schedule ‘A’ property for the year 1988- 89. On 17.03.1995 another property was purchased by them which is described in the schedule as petition schedule ‘B’ property. On 16-05-2012 the 2nd respondent/’BBMP included the petition schedule ‘B’ property in form-B property register. On 15-12-2018 the owners of the properties appear to have died intestate. The petitioners on acquisition of all documents that were necessary for the entry in their names applied for entry of their names in the demand register and issuance of khata accordingly which came to be rejected by the BBMP by two separate endorsements on the score that the properties of the petitioners were never found in Form-A register and sought to be entered in Form-B register. The issuance of these endorsements has driven the petitioners to this Court.
6. The learned counsel for the petitioners in both these cases Sri M.S.Bhagwat would contend that the very entry in Form-B being made of the properties is opposed to Section 108A7(3) of the Karnataka Municipal Corporations Act, 1976 and would submit that the act of the BBMP making entries in Form- B property register in respect of properties coming within its jurisdiction was subject matter of a writ petition in which a co- ordinate Bench had quashed all the entries so made in Form-A or Form-B property register as the case may be.
7. On the other hand Sri V.Srinidhi , Sri S.N.Prashanth Chandra learned counsel appearing for the respondent/BBMP in both these cases would contend that the judgment of the co- ordinate Bench was rendered at a time when there was no provision for such entry and subsequently an amendment has been brought to the Rules which now empowers the BBMP to maintain form-A and Form-B register depending on the nature of the properties and would also submit that the action of the BBMP in issuing such endorsements cannot be found fault with.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. 8
9. The afore-narrated facts, with regard to the nature of properties and their possession by the petitioners being not in dispute, are not iterated. The only issue that requires to be considered is whether the endorsements are in tune with law. A co-ordinate Bench of this Court in the case of SMT. SHANTA M.GAD v. ASSISTANT REVENUE OFFICER, BBMP – ILR2015KAR441set aside those entries made on the ground that the Rules did not empower the BBMP to place the properties in Form-B register and reserved liberty on the BBMP to make necessary amendment if it wants to include the properties in Form-B register. The writ petition was disposed of by the following observations: “18. In the circumstances, it is for the respondent/ BBMP, (i) to ensure necessary amendments to the Rule if it so desires, so as to include in Form-B register assessment to tax of properties which do not have approvals and sanctions under various applicable enactments, falling within the purview of Section 108-A(3) of the 9 ‘Act’, rather than include them in Form-A register. (ii) to ensure assignment of ‘property identification numbers’ to all properties falling within its jurisdiction irrespective of being assessed or not assessed to levy of property tax.
19. Until such exercise is done, there is no justification for respondent/BBMP to include petitioners’ properties in Form-B Register and issue extracts, Annexure-B series. Therefore, the extracts Annexure-B series must necessarily be held to be illegal.
20. Though learned counsel for the respondent/ BBMP, suggests that petitioners be reserved liberty to file objections to the notice Annexure-A, and the appropriate authority would consider the same, nevertheless, in the light of observations supra, would be futile.
21. It is further made clear in the event the respondent/BBMP intends to record the assessment of property tax in respect of properties falling under Section 108A(3) of the Act, in a separate register, shall make available to the petitioners all relevant material particulars to enable petitioners to file their objections and thereafter pass orders in accordance with law.
22. In the result, the notice Annexure-A insofar as it relates to the finding that the properties of the petitioners are not complaint with statutory provisions and the building ‘Bye-laws’ and the recording the assessment in Register Form-B, as well as the extracts of Form-B register, Annexure-B series are quashed. The notice Annexure-A insofar as it relates to assessment of property tax remains unaltered."
10 Pursuant to the aforesaid liberty reserved in the BBMP to amend the Rules to place the properties in Form-B register, the BBMP has by Notification dated 1-09-2020 amended the Rules by the Bruhat Bengaluru MahanagaraPalike Property Tax (Amendment) Rules, 2020. The amendment Rules brought in amendment to Rule 11 by way of substitution. The amended Rule 11 reads as follows: “2. Amendment of rule 11 – In the Bruhat Bengaluru MahanagaraPalike Property Tax Rules 209 (hereinafter referred as the said rules), for rule 11, the following shall be substituted, namely:- “11. Property register. – (1) The property tax collected from the owner or occupier in respect of authorized property shall be maintained in property tax register in Form A and in respect of unauthorized property shall be maintained in a register in Form B. Explanation: For the purpose of these rules, - (i) “Authorised property” means the property which complied with sanctions and approval under applicable laws time being in force. (ii) “Unauthorisedpropery” means the property wherein developments are 11 carried out under the following categories, namely:- (a) “Unapproved and violated development” means any development made without obtaining prior approval from the competent authority and also in violation of Master Plan, zonal regulations and building bye- laws. (b) “Approved and violated development” means development carried out after obtaining approval from the competent authority but constructed in violation of Master plan, zonal regulations and building bye- laws; and (c) “Unapproved and non-violated development” means development carried out without obtaining prior approval from the competent authority but the development carried out in accordance with Master plan, zonal regulations and building bye-laws. (2) Property Identification Number shall be assigned to all properties falling within the jurisdiction of Bruhat Bengaluru MahanagaraPalike, irrespective of such properties being authorized or unauthorized. (3) Amendment of schedule. – In the schedule to the said rules, - 12 (i) in the heading of From-A, for the words and letters “Register maintained for properties having PID numbers During the Block Period”, the words “Register maintained for authorized properties” shall be substitute; and (ii) in the heading of Form-B, for the words and letters “Register maintained for properties without katha/ PID numbers During the Block Period,” the words “Register maintained for unauthorized properties” shall be substituted”. (Emphasis supplied) In terms of the aforesaid amendment, the property register was divided into two – one Form-A and the other Form-B. In respect of property tax collected from the owner or occupier in respect of authorized property it has to be maintained in Form-A and un-authorised property it has to be maintained in Form-B. What is an unauthorized property is also defined in the aforesaid amendment. An unauthorized property is a property wherein developments are carried out in categories enumerated in sub-rule (ii) which are unapproved and violated developments 13 formed in violation of Master Plan, Zoning Regulations or building Bye-laws and unapproved and non-violated developments also bear meaning in the Rules. Approved and violated developments are the ones which are carried out after obtaining approval from the competent authority but constructed in violation of the Master Plan, Zoning Regulations and Building bye-laws. Unapproved and non- violated developments are those where development is carried out without obtaining prior approval from the competent authority but the development carried out is in accordance with the Master Plan, Zonal Regulations and Building Bye-laws.
10. Thus, a clear categorization of properties is brought out under the Rules. Notwithstanding the property being authorized or unauthorized, the property identification number is mandatorily to be assigned under sub-rule (2) of Rule 11. Therefore, the ground which the petitioners urge in these petitions, that the entry being made of their properties in Form- 14 B register is without authority of law is unfounded. This Court while disposing of the aforesaid writ petition had reserved liberty in the BBMP to ensure amendments to the Rules if it so desires, so as to include the properties in Form-B register which do not have sanctions and approvals under the applicable enactments. Pursuant to the said order, the Rule is now amended as quoted supra.
11. Wherefore, the ground on which the endorsements are to be quashed is not available to the petitioners at this juncture. However, the BBMP will have to now assess the properties of the petitioners if they would come within the explanation rendered in Rule 11 as to whether it is an authorized property or an unauthorized property for the entry to be made in the respective registers in terms of Rule 11. The property whether it is authorized or unauthorized, a property identification number will have to be given. In these petitions the properties of the petitioners are not given property identification numbers (PID) 15 which the BBMP will have to now carry out in terms of the applications given by the petitioners.
12. In the light of the preceding analysis, I pass the following: ORDER
(i) Writ Petitions are allowed and (a) Form-B Property Register bearing No.813 (Annexure-D in Writ Petition No.54098 of 2018); (b) Endorsements dated 16.08.2019 and 16-12-2019 (Annexures J and K in Writ Petition No.2452 of 2021) stand quashed. (ii) A direction is issued to the BBMP to assess the properties of the petitioners in terms of Rule 11 of the Rules and later make an entry in Form-A or Form-B registers as the case would be. (iii) BBMP shall issue Property Identification Number to the subject properties notwithstanding the fact whether they are placed in Form-A or Form-B registers, within four weeks from the date of receipt of a copy the order, if not already issued. (iv) The contentions of both the parties remain open with regard to entries of the properties of the petitioners. 16 (v) The assessment and entry shall be complied with, within twelve weeks from the date of receipt of a copy the order. Sd/- JUDGE KG CT:MJ