Annabel Builders Developers Private Limited Vs. The State of Karnataka - Court Judgment

1 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE29h DAY OF JUNE2015® BEFORE THE HON'BLE MR.JUSTICE RAM MOHAN REDDY WRIT PETITION NOS.11380-11381 OF2015BDA) BETWEEN:

1. ANNABEL BUILDERS DEVELOPERS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.1-E, JHANDEWALAN EXTENSION NEW DELHI11055AND OFFICE AT NO.356/1/1 AKSHAYA NAGARA MAIN ROAD BEGUR, OFF BANNERGHATTA ROAD BANGALORE URBAN56006, REPRESENTED BY ITS AUTHORIZED SIGNATORY MRS G REVATHY2 WESTEND HEIGHTS CONDOMINIUM APARTMENT OWNERS WELFARE ASSOCIATION A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT HAVING ITS REGISTERED OFFICE AT DLF NEW TOWN, NO.356/1, BEGUR AKSHAYANAGAR MAIN ROAD BANGALORE URBAN56006 REPRESENTED BY ITS SECRETARY MR PRAVEEN K.V YADAV (By Sri. UDAYAHOLLA, SENIOR COUNSEL A/W SRI. MAHESH A.S, ADV.,) ... PETITIONERS2AND1 THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT AND TOWN PLANNING VIKAS SOUDHA BANGALORE560001. REPRESENTED BY ITS SECRETARY2 THE BANGALORE DEVELOPMENT AUTHORITY NO.1, T CHOWDAIAH ROAD KUMARA PARK WEST BANGALORE56000. REPRESENTED BY ITS OCMMISSIONER ... RESPONDENTS (By Sri. S. LAKSHMINARAYANA, AGA FOR R1; SRI. K KRISHNA, ADV., FOR R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES226& 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE CONDITION TO REMIT LEASE RENTALS IMPOSED BY THE R-2 IN ITS ALLOTMENT LETTER DTD.23.7.2014 [ANNEX-A]. & ETC., THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

The core short question for decision making is, “Whether Regulation 7.1(2) of the Regulations for Residential Development Plan under the Revised Master Plan 2015 empowers the respondent-BDA to allot the ‘civic amenity’ site on lease and demand lease rentals, 3 exercising jurisdiction under The Bangalore Development (Allotment of Civic Amenity Site) Rules, 1989 ?.” 2. Petitioner No.1 sought to develop 26 acres 32.8 guntas of land in several survey numbers of Begur village for residential purpose invoking Chapter VII of Zoning of Land Use and Regulations providing for Revised Master Plan 2015, for short ‘RMP’, under The Karnataka Town and Country Planning Act, 1961, for short ‘KTCP Act’. The development plan Annexure-B, for group housing was accorded sanction by the respondent-BDA under the Bangalore Development Authority Act, 1976, for short ‘BDA Act’, subject to certain conditions, amongst others, to provide a civic amenity site measuring approximately 5% of the total area put up for residential development. Regulation 7.1 reads thus:

4. Development Plan: “7.1 Regulation for Residential 1.

2. xxxx A minimum 5% of total plot area shall be provided for Civic amenities and the owner or developer shall develop such civic amenities which finally shall be handed over to the local residents association for maintenance. The mode of such handing over shall be decided by the authority.

3. 4.

5. xxxx xxxxx xxxxx ” 3. Petitioner No.1 having constructed the residential buildings in terms of the development plan and the construction plans, purchasers/occupiers of residential flats constituted themselves into a welfare association, the 2nd petitioner, registered under The Societies Registration Act. The 2nd petitioner made an application to the respondent-BDA for allotment of civic amenity site, whence the BDA reserved the said civic 5 amenity site for social and cultural activities falling within the definition of the term ‘civic amenity’ under Section 2(bb) of the ‘BDA Act’.

4. In the light of clause (2) of Regulation 7.1, supra, 1st petitioner was required to develop the civic amenity. The term ‘Development’ is defined under Section 2(j) of the BDA Act thus: “ ‘Development’ with its grammatical variations means the carrying out of building, engineering, or other operations in or over or under land or the making of any material change in any building or land and includes redevelopment.” 5. The word ‘develop’ in clause (2) supra means that the 1st petitioner was required to carry out construction of the building on the civic amenity site to be put to use for social and cultural activitites, as reserved by the BDA. Thus after the construction of the building, in terms of clause (2) supra is required to be 6 finally handed over to the local residents association i.e. the 2nd petitioner, for maintenance, while mode of such handing over is to be decided by the Authority.

6. Respondent-BDA was required to ensure compliance of clause (2) of Regulation 7.1 insofar as it relates to ‘Development’ of the Civic Amenity by construction of a building to be put to use for ‘social and cultural activities’ as reserved, and thereafter handover its maintenance to the 2nd petitioner.

7. The respondent-BDA having considered the 2nd petitioner’s application invoked the provisions of the Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989, for short “Allotment of CA Site Rules’ and allotted the civic amenity site in question in favour of the 2nd petitioner, on lease basis with a demand for payment of ‘lease rentals’. The allotment letter Annexure-A is called in question in this 7 petition insofar as it relates to the demand for payment of ‘lease rentals’.

8. The Rules relating to allotment of civic amenity site under the ‘Allotment of CA Site Rules’ requires the making of an offer of civic amenity sites under Rule 3, while Rule 4 is over disposal of sites reserved. Rule 5 relates to registration of an institution applying for civic amenity site while eligibility is prescribed in Rule 6 and the principles of selection of institution for leasing out civic amenity is embodied in Rule 7. Rule 8 provides for lease amount of the site allotted to the institution. Rule 9 provides for making of an application in Form No.II and Rule 10 prescribes conditions of allotment of the civic amenity site, while Rule 11 relates to voluntary surrender.

9. Apparently the application of the 2nd petitioner when not under the Rules nor the allotment order Annexure-A, admittedly in conformity with the 8 ‘Allotment of CA Site Rules’, the allotment order Annexure-A cannot but be said to be in violation of the said Rules’.

10. Having regard to the fact that the Zoning of Land Use and Regulations is framed under the ‘KTCP Act’, the effect of other laws in relation to ‘RMP’ is found in Section 76-M which reads thus: “76-M. Effect of other laws:- (1) Save as provided in this Act, the provisions of this Act and the rules, regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law. (2) xxxxxx” 11. In the light of Section 76-M of the ‘KTCP Act’ it is needless to state that the Zoning of Land Use and Regulations providing for the ‘RMP’ with Regulation 7.1(2), the handing over of the building constructed on the civic amenity site for maintenance to the 2nd 9 petitioner was to be governed in terms of Regulation 7.1(2) and not by ‘Allotment of CA Site Rules’. On this score too the Respondent-BDA could not have exercised a jurisdiction under the said Rules for allotment of the civic amenity site in question in favour of the 2nd petitioner.

12. The submission of Sri.K.Krishna, learned counsel that on an application filed by the 2nd petitioner-Society, the BDA did have the jurisdiction to allot the civic amenity site to the 2nd petitioner exercising jurisdiction under the ‘Allotment of CA Site Rules’ pales into insignificance.

13. The allotment of the said Civic Amenity site under Annexure-A of the BDA in favour of the 2nd petitioner and calling upon it to make payment of ‘lease rentals’, cannot but be characterized as without jurisdiction, arbitrary and illegal calling for interference. Having noticed that the exercise of jurisdiction by the 10 BDA in issuing the letter of allotment Annexure-A is illegal, sequentially the conditions contained therein too are also illegal, calling for interference.

14. In the light of clause (2) of Regulation 7.1, the relief in the writ petition is restricted to one of quashing the condition in Annexure-A relating to remitting lease rentals and for a mandamus to execute lease deed in favour of the 2nd petitioner in respect of a civic amenity site. Since the Respondent-BDA did not have jurisdiction to allotment the civic amenity site by invoking the provisions of the ‘Allotment of CA Site Rules’, the allotment order, Annexure-A is without jurisdiction and illegal. In the circumstances, the relief to quash the condition in Annexure-A over ‘lease rentals’ is unavailable.

15. In the result, this petition is allowed in part and for the reasons stated supra, the allotment order Annexure-A is quashed. The 2nd relief to execute a lease 11 deed, in the circumstances, does not arise. Respondent-BDA is directed to comply with its obligations under Regulation 7.1(2) of the ‘RMP’ by strictly adhering to the said law and to pass orders.

16. It is pointed out that the land in question falls within the territorial jurisdiction of Bruhat Bangalore Mahanagara Palike and therefore, BDA to issue a ‘No objection certificate’ for the 1st petitioner to make an application for sanction of a building plan for construction of a building to be put to use for social and cultural activities, on the civic amenity site, within two weeks. ln. Sd/- JUDGE