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Judgment
B.S. Patil
In this writ petition, petitioner is calling in question the communication dated 04.11.2010 issued by the Commissioner, Bangalore Development Authority, Bangalore, as per Annexure-A, thereby informing the petitioner to hand over 24,982.79 sq. ft. or 6.7 acres of land and also the land that belongs to the Social Welfare Department so as to enable the BDA to consider the request for issuing modified layout plan to the petitioner-Society. Petitioner is also notified that a detailed discussion with regard to the issue of modified layout plan was also permissible if the petitioner availed such an opportunity by contacting the Commissioner.
The background facts that are necessary for appreciating the controversy raised in this writ petition are, that, the petitioner is a House Building Co-operative. Society established to cater to the needs of the employees in the Ministry of Communication, Union of India. Petitioner-Society has formed a layout during the year 1988. According to the petitioner, pursuant to the layout plan approved by the respondents, it had executed relinquishment deed on 06.04.1992 with regard to the roads, civic amenity sites, parks, etc., in favour of the BDA. Subsequently, BDA released sites as per the approved plan in the year 1992, 1994, 1996 & 1997. The sites so released by the BDA were allotted in favour of the members of the petitioner-Society and sale deeds came to be executed in favour of the allottees.
It is the case of the petitioner that on account of some litigation initiated at the instance of the owners of the land and due to the de-notification of the land that was acquired for the benefit of the petitioner-Society, in an extent of 12 acres 36 guntas, petitioner was constrained to ask for modification of the layout plan. At that stage Public Interest Litigation in W.P.No. 3074/2006 came to be filed making a grievance that the petitioner-Society did not set apart the required area for park and other amenities in the layout formed by it. The said writ petition was disposed of on 06.03.2006 with a direction to the respondents herein to consider the representation submitted by the petitioners therein and to take appropriate action. As the petitioner was not a party to the said PIL, subsequently, petitioner was able to get clarification of the order by filing R.P. No. 341/2006, wherein it was made clear that the petitioner should be heard before any decision was taken by the respondents in the matter. Thereafter, after considering the matter, Annexure-E - Resolution dated 22.12.2006 came to be passed by the BDA holding that though the petitioner-Society was required to leave 15% of the area for park in the modified plan submitted, the area earmarked for park was only 13.11%, meaning thereby that the petitioner-Society was required to set apart an extent of 3 acres 31 guntas and therefore the petitioner-Society had to purchase an extent of 3 acres 31 guntas to make good the deficit of 1.89% and hand over the same in favour of the BDA or pay the value of the said extent in terms of money. A condition was also imposed stating that in view of the utilization of excess land to an extent of 4.89% for residential purposes, petitioner-Society shall be liable to pay penalty at Rs. 100/=-per sq. ft.
It is not in dispute that pursuant to the resolution passed by the BDA vide Annexure-E, petitioner-Society has purchased 3 acres 31 guntas of land located in different part of Bangalore and has handed over the same in favour of the BDA by executing a registered document. It is also not in dispute that the amount ordered to be paid as penalty at the rate of Rs. 100/- per sq. ft. for utilizing 4.89% of the land for residential purpose has been since paid in a sum of Rs. 4,37,46,654/-.
It is necessary to notice at this stage that some three residents of the layout formed by the petitioner-Society approached this Court in W.P. No. 18522/2007 challenging the resolution passed by the BDA vide Annexure-E and also to restrain the petitioner herein and the allottees from the petitioner-Society from putting up any construction on the areas reserved for park, open space, civic amenity contrary to the original layout plan dated 30.07.1988. This Court by order dated 20.07.2009 dismissed the writ petition making it clear that the land measuring 3 acres 31 guntas which was directed to be handed over to the BDA by the petitioner-Society has to be developed and maintained as a park.
In other words, as contended by the Counsel for the petitioner, this Court did not find fault with the resolution passed by the BDA and rejected the writ petition filed by the residents of the locality who had taken exception to the resolution passed by the BDA providing an opportunity to the petitioner-Society to purchase an extent of 3 acres 31 guntas of land to earmark the same for park and convey the same in favour of BDA. This order passed in the writ petition came to affirmed in. W.A. No. 2904/2009 vide judgment dated 10.11.2009. The SLP filed against the game also came to be dismissed by the Apex Court vide order dated 22.02.2010. Copy of the said order is produced at Annexure-Q.
Thereafter, when the modified plan was not issued, petitioner was constrained to approach this Court in W.P. No. 17068/2010. This Court on 22.06.2010 directed the BDA to issue the modified plan as per the resolution dated 22.12.2006 if the petitioner had complied with the condition. An outer limit of eight weeks was granted to the respondents to comply with the said direction. This order is at Annexure-W. A clarification of this order was sought on 26.10.2010, but this Court disposed of the same without interfering with the order passed earlier. It is thereafter that the Commissioner, BDA by the impugned communication dated 04.11.2010 has called upon the petitioner-society to hand over an extent of 24,982.79 sq. ft. or 6.7 acres of land and also the land belonging to the Social Welfare Department. This action of the Commissioner is challenged now.
I have heard the learned Counsel for the parties and perused the entire materials on record.
It is to be noticed at the outset that as far back as on 22.03.2007, the BDA has taken a conscious decision to permit the petitioner to have a modified plan by complying with certain conditions. It is not in dispute that these conditions have been fulfilled by the petitioner-society. It cannot be also disputed that this Court has issued a positive direction on 22.06.2010 in W.P. No. 17068/2010 stating that modified plan in terms of the said resolution has to be issued in case petitioner complied with the conditions. It is also relevant to notice that the grievance made by some of the residents of the locality against the said resolution passed by the BDA contending that the same would come in the way of the amenities to be provided to the residents has been repelled and the matter has gone up to the Apex Court and the order passed by this Court has been upheld, wherein the resolution of the BDA to purchase as extent of 3 acres 31 guntas of land and convey the same to the BDA for the purpose of maintaining it as park was confirmed.
In the wake of the aforesaid developments, it is ununderstandable how the Commissioner, BDA, could call upon the petitioner to surrender an extent of 6.7 acres of land or 24,982.79 sq. ft. area and also the land allegedly belonging to the Social. Welfare Department. This action of the Commissioner is contrary to the resolution passed by the BDA.
The ''Authority'' as defined consists of the Chairman, Finance Member, Chief Engineer, Town Planner and a person with experience in architecture and several others as can be seen from Section 3(a) of the Bangalore Development Authority Act, 1976. As per Section 13 of the said Act, the Commissioner shall be the Chief Executive and Administrative Officer of the authority. It is thus clear that the Commissioner cannot take a decision on his own contrary to the resolution passed by the authority, particularly when the matter has undergone litigation resulting in decisions rendered by this Court and also by the Apex Court.
It is true the Commissioner can call upon the petitioner to adhere to the resolution by making good the land agreed to be handed over and the amount required to be paid for not properly making use of the entire area for the purpose for which it is earmarked and also to ensure that the parks and open spaces that are agreed to be handed over in terms of the said resolution are in fact adhered to. But, as per the impugned order, instead of enforcing the resolution passed by the authority earlier on 22.12.2006, the Commissioner has called upon the petitioner-Society to hand over 6.7 acres of land Therefore, the said communication cannot be sustained.
It is pointed out by the learned Counsel for the respondent-BDA that some of the area that is earmarked for park is occupied by unauthorized constructions put up particularly in Park No. 8. If unauthorized constructions have come up in an area which is meant for park, as the said area is already relinquished in favour of the respondent BDA, it is for the BDA to take action to clear the said unauthorized construction in accordance with law.
It is also contended by the learned Counsel for the respondent-BDA that due to road widening certain area meant for park has become unavailable. If the area meant for park has been utilized by the competent authorities for widening the road, the responsibility cannot be fixed on the petitioner-society to make good the deficit as the petitioner-society has already surrendered that area to the BDA and it is thereafter that the widening of the road has taken place. Therefore, in my considered view, the contention urged by the Counsel for the respondent-BDA that even in respect of the area that is utilized for widening the road, the society has to be directed to make good the same is untenable. At any rate, it is not the case of the BDA that as on the date of the resolution dated 22.12.2006, any such conditions were imposed and therefore the Commissioner was not right in going behind the said resolution and incorporating such conditions.
It is to be noticed that as long as the society has complied with the conditions in the resolution dated 22.12.2006 in terms of the directions issued by this Court in W.P. No. 17068/2010 disposed of on 22.06.2010, the BDA is bound to accord sanction the modified layout plan. There is absolutely no justification for the BDA to withhold the same and call upon the petitioner to surrender additional land.
Therefore, this writ petition is allowed. The impugned communication Annexure-A is quashed. BDA is directed to issue the modified layout plan on being satisfied that the conditions imposed in the resolution dated 22.12.2006 are complied with. It is also made clear that if there is any unauthorized construction in the area which is earmarked for parks that has been surrendered to the BDA, it will be open to the BDA to take steps in accordance with law to clear the same. The respondent-BDA is directed to comply with the direction to issue the modified plan to the petitioner society within three months from the date of receipt of a copy of this order.