Condition To Surrender Property Free Of Cost For Road Widening To Sanction Building Plan Violates Article 300A: Karnataka HC Quashes BBMP Circular

A single judge bench of Justice Hemant Chandangoudar said, "I am of the considered view that the impugned endorsements issued by the respondent - BBMP requiring the petitioners to relinquish the properties in question free of cost as a condition precedent for processing their applications for sanctioning of building plans is without authority of law and the same violate Article 300A of the Constitution of India."

Case Background:

The petitioner Dr Arun Kumar B C, is the owner of a property ad-measuring 12.08 guntas in Bengaluru. Out of which, an extent of 235.8 sq. meters (2538 sq.ft.) is earmarked for the purpose of widening of road in future in the revised Master Plan 2015.

He intended to develop the property for the purpose of construction of the hospital and submitted an application with the respondent - BBMP so as to sanction the building plan. The respondent - BBMP issued an endorsement stating that the application submitted by the petitioner for sanctioning of the building plan will be processed only upon the petitioner surrendering the property earmarked for the purpose of widening of road in the master plan free of cost. Following which he approached the High Court.

Petitioners submissions:

The counsels for the petitioners submitted, "The properties in question which are earmarked for widening of the road in the revised master plan are not included in the plans submitted by the petitioners. Hence, the requirement to relinquish the properties in question which are earmarked for widening of road as a condition precedent for sanctioning of the building plans violates Article 300A of the Constitution of India."

Further, it was said, "In the absence of any legal authority or support by competent legislature as enumerated in Article 300A of the Constitution of India, the petitioners cannot be deprived of their right over the immoveable property by mere executive fiat."

BBMP Opposed the plea:

It was said Section 17(3) of the Karnataka Town and Country Planning Act, 1961 which is applicable to a person who intends to develop a single plot or sub-division of plot or layout of private street specifies that no compensation shall be payable for sanctioning of single plot.

Further, Regulations 7.1(5) and 7.2(d) of the Zoning of Land Use and Regulations - Revised Master Plan 2015 require that roads as shown in the revised Master Plan 2015 shall be incorporated within the plan and shall be handed over to the Authority free of cost.

Moreover, the circular dated 29.2.2016 issued by the respondent - BBMP requiring the owners to surrender the property earmarked for widening of the road free of cost is in consonance with the provisions contained in Section 17 of the KT and CP Act and also the Zonal Regulations, 2015.

Court findings:

The court noted Section 17 of KT & CP Act in its entirety does not specify that the land earmarked as road in the master plan will have to be relinquished free of cost or that the owner is not entitled for compensation while sanctioning the layout plan. Section 17(3) is applicable only to lands enumerated in Section 17-2A like parks, open space, roads formed within the layout and civic amenity site.

Further it said Section 70 of the KT and CP Act specifies that land needed for the purpose of Town Planning Scheme or master plan shall be deemed to be land needed for public purpose within the meaning of Land Acquisition Act, 1894. Section 71 of the KT and CP Act specifies that the State Government can acquire land included in the scheme by taking recourse to the provision contained in Land Acquisition Act 1894 subject to payment of compensation to the owners of the lands.

Following which it observed, "A conjoint reading of Sections 12, 17(3), 70 and 71 indicate that if any land needed for the purpose of Town Planning Scheme or master plan shall be acquired by the Government by taking recourse to the provisions of Land Acquisition Act, 1894 subject to payment of compensation to the owners of the land. Section 17(3) of the Act does not specify that the property earmarked for widening of the road requires it to be surrendered free of cost at the time of sanctioning of the single plot."

Referring to definition of Development Plan and Regulations 7.1(5) and 7.2(d). The court said, "It indicates that it is a condition precedent to incorporate the road shown in the Master Plan - 2015 in the plan and shall be handed over free of cost to the respondent - BBMP. However, these Regulations are applicable only to Development of lands, the extent of which is more than 20000 sq. meters in respect of residential plan and the extent of which is more than 12000 sq. meters in respect of nonresidential plan."

It then held, "In the present cases, the extent of land sought to be developed for residential/commercial purposes is far less than the extent of land specified in the definition development plan. Hence, the Regulations 7.1(5) and 7(2)(d) of the Regulations 2015 are not applicable and cannot be invoked requiring the petitioners to relinquish the properties in question free of cost to the respondent - BBMP."

The court opined, "Even otherwise, the impugned endorsements and circulars issued by BBMP is arbitrary and discriminatory since the owners of the properties earmarked as Road in Master Plan 2015 and who have not applied for sanctioning of building plan for developing their properties will be entitled for compensation under Section 71 of KT & CP Act, if the said properties are acquired for implementing the Master Plan. The petitioners cannot be deprived of their properties earmarked as road in the revised Master Plan, 2015 merely because they intend to develop their properties by obtaining a sanctioned building plan."

The court allowed the petitions directed BBMP to process the applications submitted by the petitioners for sanctioning the building plans and pass appropriate order in accordance with law within a period of two months.

Case Title: Dr Arun Kumar B C v. State of Karnataka

Case No: Writ Petition No.9408/2020

Citation: 2022 LiveLaw (Kar) 45

Date of Order: 17th Day Of January, 2022

Appearance: Senior Advocates Shashi Kiran Shetty, B V Shankara Narayan, G V Sudhakar and Advocate Rohan Hosmath for petitioners

Advocate Prathima Honnapura, For R1,

Advocate Ashwin S Halady For R2, R3

Click Here To Read/Download Order