1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 5TH DAY OF APRIL, 2016

BEFORE

THE HON'BLE MR. JUSTICE ANAND BYRAREDDY

WP Nos.185-186/2016[BDA]

BETWEEN:

M/S. PRESTIGE CITY PROPERTIES,

A PARTNERSHIP FIRM
HAVING ITS OFFICE AT:
THE FALCON HOUSE,
NO.1 MAIN GUARD CROSS ROAD,
BANGALORE – 560 001,
REP. BY ITS MANAGING PARTNER,
M/S. PRESTIGE ESTATES PROJECTS LIMITED,
ACTING THROUGH ITS AUTHORIZED SIGNATORY,
MR. T. ARVIND PAI.
... PETITIONER

(By SHRI. UDAY HOLLA, SENIOR ADVOCATE FOR

SHRI. VIVEK HOLLA, ADVOCATE.)

AND:

1. BANGALORE DEVELOPMENT AUTHORITY,

REP. BY ITS COMMISSIONER,
T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE – 560 020.

2. THE TOWN PLANNER MEMBER,

BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE – 560 020.

3. PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE,
 2

GOVERNMENT OF KARNATAKA,
M. S. BUILDING,
BANGALORE – 560 001.
... RESPONDENTS

(By SRI. G. S. KANNUR, ADVOCATE FOR R.1 AND R.2,

SRI. LAXMINARAYANA, AGA FOR R.3)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226

AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENDORSEMENT DATED 9.12.2015 ISSUED BY THE
TOWN PLANNING MEMBER, THE RESPONDENT NO. 2 VIDE
ANNEXURE-S ETC.,

THESE PETITIONS COMING ON FOR ORDERS, THIS DAY,

THE COURT MADE THE FOLLOWING:

ORDER

Heard the learned Senior Advocate Shri. Uday

Holla for Shri. Vivek Holla, for the petitioner

and Sri. G.S.Kannur, the learned Counsel appearing

for respondents 1 and 2.

2. The facts briefly stated, are as under :

The petitioner is a partnership firm and claims to

have purchased lands bearing Sy.Nos. 138 and 140,

measuring 8 acres 29 guntas, situated at Koramangala

village, under a registered sale deed dated 06-06-1959.

Later, an extent of 9 guntas of land in Sy.No. 140 was

 3

sold by Chikkayellappa and his sons in favour of M/s.

International Instruments (P) Ltd. under a registered sale

deed dated 17-05-1962. It appears that the erstwhile

City Improvement Trust Board ( Herein after referred to

as the CITB, for brevity ), the predecessor in interest and

title of the Bangalore Development Authority ( Herein

after referred to as the BDA, for brevity ), is said to have

issued a preliminary notification, wherein the above lands

were not mentioned. Notwithstanding the above, it

transpires that the erstwhile CITB had entered into a

registered agreement with M/s. International Instruments

(P) Ltd., wherein the CITB had granted permission to

M/s. International Instruments (P) Ltd. for conversion of

the aforesaid lands for construction of a factory building

and other structures. It is thereafter that the lands were

converted for non-agricultural industrial use and a

factory was indeed set up in the said lands. A final

declaration under Sec. 6 of the Land Acquisition Act,

1894 was issued on 28-09-1965. In the preliminary

notification, though the land was referred to by survey

number, the owners name was not mentioned in the

 4

final notification. Notwithstanding this, an agreement

was entered into. On 25-08-1966, a resolution is said to

have been passed by the CITB, resolving to denotify the

aforesaid land from the acquisition proceedings.

Notwithstanding the notifications for acquisition, the

CITB had also granted licences for construction of

additional buildings in the above said land. With the

constitution of the BDA, the said Authority had also

granted licence for construction of additional buildings in

the above said land. On 30-06-1969, the Additional Land

Acquisition Officer, CITB had submitted a note to the

CITB stating that the land had been converted for non-

agricultural use and that CITB had entered into an

agreement with M/s. International Instruments (P) Ltd.

and had granted `No objection’ and further CITB had

resolved to de-notify the aforementioned lands. On 31-

03-1969, the Special Land Acquisition Officer addressed

a letter to the Chairman, CITB, enclosing therewith the

draft of the de-notification to be published in the official

gazette. As matters stood thus, it transpires, the name of

M/s. International Instruments (P) Limited. came to be

 5

changed to VOD India Limited. and later as Siemens VDO

Automotive Limited. As per a scheme of amalgamation

approved by the High Court of Judicature at Bombay as

well as this Court. It is thereafter, that M/s. Siemens

Limited had sold the lands in favour of the present

petitioner and the revenue entries having been

transferred in favour of the petitioner, the petitioner had

approached the BDA seeking `no objection’ to go ahead

with its plan for construction of a commercial complex. It

is at that stage that the BDA is said to have informed the

petitioner that originally after the CITB had entered into

an agreement with M/s. International Instruments, there

was a proposal to de-notify the land, and a proposal had

been sent to the Government on 01-04-1969 and there

was no communication from the Government and the

property was subject matter of acquisition by the BDA

and was the property of the BDA and hence, sanction of a

non-residential development plan could not be granted

and had rejected the application. It is in this

background, the petitioner is before this Court.

 6

3. The learned Senior Advocate would submit that

the lands having been originally notified for acquisition

and thereafter, for whatever reason the land notified

having been used for formation of a non-residential

layout and after the issuance of the final declaration, no

further proceedings have been taken, it would have to be

deemed that the acquisition proceedings in respect of the

petitioner’s lands have been abandoned and the earlier

notifications of the year 1961 and 1965 would be of no

significance and the BDA refusing to grant permission is

unfair and unreasonable, as there is no impediment in

issuing such permission as the Master Plan 2015 would

indicate that the lands are situated in a commercial zone

and there would not be any impediment for grant of such

permission.

4. On the other hand, the learned Counsel Shri.

Kannur would submit, that it is not in dispute that there

was an agreement between the owner of the land and the

CITB, whereby, `no objection’ was granted to convert the

land for industrial use for construction of factory and

 7

other structures and it was only on that account the land

was spared from acquisition and when the intention is to

utilize the land for any other purpose, the concession

shown would not be permissible and therefore the owner

or anybody claiming under the owner would be bound

under the undertaking given, that the land would not be

utilized for any other purpose other than the factory

premises and if there is a breach of agreement, ipso facto,

it would enable the rigour of the acquisition proceedings

being invoked, notwithstanding the lapse of time. It is

this primary contention which is sought to be pressed

into service.

5. As rightly contended by Shri. Holla, the

aforesaid agreement does not refer to any acquisition

proceedings. It is an agreement dated 28-04-1961, when

there was only a preliminary notification issued and even

assuming that there was an intention to keep the land

out of the scope of acquisition proceedings, there is no

reference to the same. Apparently, the owner of the land

had sought for a `no objection’ for conversion, from the

 8

CITB and the `no objection’ is granted imposing certain

conditions and the CITB imposed such conditions as if

the land had vested with it. Whether such agreement is

enforceable is doubtful. In any event it was only an

agreement where `no objection’ was granted by imposing

conditions at that point of time. With the passage of time

and the Master Plan which is relevant as on date,

indicating the area to be a commercial zone, there should

be no impediment for development of the land into a

commercial complex. The acquisition proceedings would

lose their significance even if there was no notification,

whereby the State had withdrawn from the acquisition

proceedings. By sheer lapse of time, the acquisition

proceedings initiated in the year 1959 and 1965 are

redundant and cannot be enforced at this point of time.

Though the power of eminent domain is in the State

Government to acquire the lands if it so desires, to claim

that the petitioner would be bound by the agreement and

therefore the lands shall be available for acquisition at

this point of time based on the notification of the year

1965 is untenable and cannot be found on conditions

 9

imposed under the agreement against the petitioner,

claiming under the owner of the land who may have

entered into such an agreement, the same would not hold

water. It cannot be said that notwithstanding the change

of regulations applicable to the land in question, the

agreement should continue to apply. On the other hand,

if a factory is located in the midst of the residential area,

it may mitigate against the interests of the public.

6. Therefore, it cannot be said that the respondents

are justified in claiming that the land should be specified

as an industrial zone and that only industry can be set

up in the said land. Accordingly, the petition is allowed.

7. The respondent – BDA shall reconsider the

permission sought for by the petitioner in accordance

with law, which certainly is loaded in favour of the

petitioner. Annexure `S’ stands quashed.

SD/-
JUDGE

Mgn/-