'Reflects Mindset Of East India Company Era': Karnataka High Court Pulls Up BDA For Denying TDR Certificates To Landowners

The Karnataka High Court has while quashing an order passed by the Bangalore Development Authority denying TDR Certificates (Transfer of Development Rights) as promised to land owners while acquiring their lands for public purpose, observed,

“A bare perusal of the impugned order gives an impression that it is texted with the mindset of a Draftsman of East India Company of the bygone era and not by the one whose heart is at the right place.”

A single judge bench of Justice Krishna S Dixit allowed the petitions filed by Jayamma and Others and quashed the order dated 17.03.2022 issued by the Respondent - BDA whereby, the recommendation of the respondent —BBMP for issuing the TDR Certificates to them has been negatived.

The bench directed BDA to grant the petitioners TDR Certificates and report compliance to the Registrar General within a period of three months. Should there be delay the Commissioner of BDA shall pay to each of the Petitioners a sum of Rs.1,000 per day which may be recovered from the erring officials in accordance with law.

The authorities had objected to the petition contending that grant of TDR is governed by statutory scheme, unless the conditions of scheme are complied with, there cannot be justiciable claim for TDR certificates in the absence of strict compliance. Petitioners not being the ‘owners’ of the subject land, have no right to seek TDR Certificates. The Proviso to section 14B of 1961 Act introduced by way of 2020 Amendment renders their claim legally untenable.

On going through the records the bench noted that BBMP after conducting the inquiry & verification records has drawn up the proceedings to the effect that land was retrieved from the occupation of the petitioners for the purpose of putting it to public use such as formation & widening of road.

Then it held “The Hakku Patraas and Possession Certificates were given to the occupants in respect of lands of the same village namely Marenahalli. The Government vide letter dated 28.12.1979 had authorised the BDA to issue these Hakku Patraas. The contention of the learned Sr. Panel Counsel appearing for the Respondent – BDA that Petitioners were not the owners of the land in question, does not come to his rescue.”

Court said the Right to Property continues to be constitutionally guaranteed under Article 300A and this guarantee is not confined to the right of ownership but extends to a much larger bundle of rights wherein interest in the property short of ownership too, finds place.

The bench said “It cannot be gainfully contended that the petitioners did not have any interest in the lands in Sy. No. 40 & 17, more particularly when in recognition of that right/interest they have been issued Hakku Patraas that too on payment of a certain offset price.”

Rejecting the contention of BDA that the TDR scheme as envisaged under Section 14B of the 1961 Act, read with the Rules promulgated by the Government has to be construed strictly, and in cases which do not stricto sensu fit into the same, no relief can be granted to the litigants.

The bench said “The Govt. of Karnataka vide Notifications dated 03.02.2005 & 15.03.2012 has promulgated certain terms & conditions for regulating the grant of Transferable Development Rights by the Municipal Corporations. These are referable to the provisions of Sec.14B of the 1961 Act and they recognize justiciable rights of owners of land or of persons interested therein.”

Following which it observed “Schemes of the kind are beneficial to the persons who have given up their lands to the State in consideration of TDR Certificates in lieu of compensation. It is not only beneficial to such persons but also to the State since it does not shell out anything from the Exchequer, though it takes the private land of the citizens. Such schemes having been enacted to further the development and Welfare objectives of the State, such goals must be borne in mind while effectuating the statutory schemes of the kind.”

Then it held “The respondent-BDA is not justified in negativing petitioners’ claim for TDR Certificates for want of acquisition notifications. It virtually amounts to saying petitioners are not entitled to recompense, despite the Hakku Patraas having been granted to them for off-set price.”

It added “If the State has appropriated the private property of a citizen without due process of acquisition, denying TDR facility to him makes it more illogical than otherwise.”

The bench opined that “Citizens whose property has been made use of for a public purpose sans a formal acquisition process can be justifiably treated on a higher pedestal qua those whose property is taken by due process of acquisition, whilst treating the claim for grant of TDR Certificates.”

The bench was irked at the attitude of two statutory authorities, who failed to take note that petitioners who were treated as slum dwellers were accordingly granted Hakku Patraas & Possession Certificates in respect of land in Sy. No. 17 in recognition of their occupancy qua the one in Sy. No. 40. Offset price was also extracted from them. They were impressed that khata transfer would be effected and khata certificates would be issued in their names. They were assured of formation of the layout with the water & power supply. However, the authorities could not keep their assurance.

It said “The subject land has been utilised for some other public purpose such as formation & widening of main road, housing layout of KEB Employees, etc. In fact, that was the reason, the petitioners were promised off TDR facility as a viable alternative.”

Following which it remarked “The conduct of the respondents in now turning around and denying the TDR certificates is liable to be met with by the doctrine of promissory estoppel.”

Considering the long drawn legal proceedings in the matter, the bench refused to remit the matter back to the authorities, it said “It is the poor and hapless petitioners who are complaining before the Constitutional Courts in the third round of litigation, which has a chequered history. Our Constitution which has ushered in a Welfare State ordains that Government & its authorities shall conduct themselves fairly, justly & reasonably while treating the grievance of the citizens who are unable to fend for themselves. Our Constitution having been founded on human values, the State and its authorities should adopt a humane approach to the problems of those in need of socio-economic aid.”

Finally it said “The Petitioners had a rough deal at the hands of both the BDA & the BBMP, whose conduct does not generate confidence in the mind of the Court that they would ever grant relief to the deserving litigants, on their own. Repeated remand is not desirable in matters involving grievances of the poor & disadvantaged. Remitting the matter of the kind back to the portals of the authorities, by quoting some theories of law would not do real justice to the deserving litigants that hail from ‘have-not’ segment of the society.”

Case Title: Jayamma & Others And State of Karnataka & others

Case No: WRIT PETITION NO. 20671 OF 2022

Citation: 2023 LiveLaw (kar) 107

Date of Order: 09-03-2023

Appearance: Senior Advocate D L JAGADEESH, a/w Advocate LEELA P, for petitioners.

AGA R Srinivasa for R1.

Advocate Chaitravathi for R2 & R4.

Advocate B S Sachin FOR R3 & R5

Click Here To Read/Download Judgment