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2008 DIGILAW 381 (KAR)

JANAPRIYA ENGINEERS SYNDICATE (INDIA) PRIVATE LIMITED, BANGALORE v. BRUHAT BANGALORE MAHANAGARA PALIKE, BANGALORE

2008-07-21

RAM MOHAN REDDY

body2008
ORDER Though the petition is listed for preliminary hearing, with the consent of the learned Counsel for the parties, the petition is heard and finally disposed of by this order. 2. The petitioner, a builder having purchased 4 acres of converted land in Sy. No. 25/2/3/4 of Kodichikkanahalli, Begur Hobli, Bangalore South Taluk, under a registered sale deed dated 26-6-2001 and rectification deed dated 30-12-2002, which fell within the territorial jurisdiction of the Bruhat Bangalore Mahanagara Palike (BBMP), pursuant to the notification dated 16-1-2007, applied for registration of katha of the said property, by filing an application dated 20-12-2007 Annexure-A. It is the allegation of the petitioner that the 2nd respondent-Assistant Revenue Officer of BBMP issued an endorsement dated 28-1-2008 Annexure-B demanding payment of Rs. 97,15,980/- at the rate of Rs. 600/- per sq. mtr. in respect of the land measuring 16193.30 sq. mtrs. or 1,74,240 sq. ft. and that on payment of the said sum, further action would be taken over the application, Annexure-A, for registration of katha. According to the petitioner, the circular Annexure-C with the nomenclature 'melpatu vechcha' (betterment charge) is issued with a view to generate funds for improvement of infrastructure in the areas merged into the BBMP, at the time of registering the katha and assessment of tax in respect of new properties, in view of the Section 192-A of the Karnataka Land Revenue Act, 1964 and the provisions of the Karnataka Town and Country Planning Act, 1961. It is the assertion of the petitioner that there is no reference to the provisions of the Karnataka Municipal Corporations Act, 1976 (for short, 'KMC Act), in the exercise of power to impose "melpatu vechcha". It is stated that the circular Annexure-C refers to the proceedings Annexure-D of the Administrator which states that under Sections 465 and 467 of the KMC Act empowers the imposition and recovery from owners of immovable properties merged into BBMP, improvement charges in 20 instalments on the basis of estimate of the amount likely to be spent for providing roads, underground drainage, electricity, etc., and after spending the said sum, and that due to financial crunch, the recovery of melpatu vechcha in 20 annual instalments, would be remote. It is further stated that in W.P. No. 13368 of 1998 when a similar such demand for recovery of melpatu vechcha, was questioned, this Court quashed the demand and issued a direction to collect the same only if the tax payer volunteered. So also, in W.P. No. 16617 of 2002, dated 22-8-2000 questioning the demand for imposition and recovery of improvement charges, the 1st respondent is said to have given up the said demand, whence this Court reserved liberty to the 1st respondent to make a demand after relevant rules were framed under Section 466 of the Karnataka Municipal Corporations Act. In W.P. No. 13368 of 1998, clubbed along the other writ petitions of on were disposed of by a common order dated 24-7-1998, on the basis of the memo filed by 1st respondent that it will not compulsorily impose and collect development charges. Hence this writ petition for the following reliefs: "1. Issue writ of certiorari or similar writ, order or direction to quash the following: (i) Endorsement bearing No. DA/KTR/302/07-08, dated 28-1-2008 issued by the 2nd respondent, at Annexure-B. (ii) Circular bearing No. ua(kom) PR/23/07-08, dated 7-11-2007 of the 1st respondent at Annexure-C. (iii) Proceedings of the 3rd respondent dated 27-10-2007 in Subject No. 104/07-08 at Annexure-D. 2. Issue writ of mandamus or any other appropriate writ or order or direction, directing the respondents to register the name of the petitioner in the katha register without insisting on payment of melpatu vechcha (betterment charges) as requested in the application under acknowledgement at Annexure-A. 3. Issue any other writ, order or direction including payment of cost as this Court deems fit in the circumstances of the case". 3. The petition is opposed by filing statement of objections dated 16-7-2008 of respondents 1 to 3 inter alia contending that the property, subject-matter of the petition is situated in an undeveloped revenue pocket and the Corporation assessed the cost of development of the area, for fixing the improvement charges, at the rate of Rs. 600/- for the sites measuring more than 120 sq. mtrs; Rs. 400/- for the sites measuring more than 60 sq. mtrs. and Rs. 200/- for the sites measuring upto 60 sq. mtrs., as approved by the Administrator in exercise of power of the Corporation Council and Standing Committee, in their absence. 600/- for the sites measuring more than 120 sq. mtrs; Rs. 400/- for the sites measuring more than 60 sq. mtrs. and Rs. 200/- for the sites measuring upto 60 sq. mtrs., as approved by the Administrator in exercise of power of the Corporation Council and Standing Committee, in their absence. At paragraph 6 of the statement of objections, it is admitted that in earlier writ petitions before this Court, the Corporation took a stand that it would collect the charges after framing rules as contemplated by Section 466 of the KMC Act and that the matter is pending before the Government for suitable amendments to the Act and the framing of rules since the year 2001. It is stated that in view of a larger extents of immovable properties hitherto revenue areas, having become part of the BBMP pursuant to the notification in the year 2007 and the reconstitution of the Bangalore Mahanagara Palike into BBMP, has necessitated the recovery of improvement charges. In addition, it is contended that Section 505 of the KMC Act, invests the BBMP with the jurisdiction to discharge duties as regards land use or development plan or where there is no development plan with the concurrence of the Planning Authority. According to the respondents, the lands belonging to the petitioner, not approved by the Planning Authority as contemplated by the Karnataka Town and Country Planning Act, the BBMP is justified in imposing and demanding the payment of development charges as contemplated under Section 505 of the KMC Act. Lastly it is contended that as the State Government and the BDA, not being arrayed as parties, the petition, is liable to be dismissed for non-joinder of necessary parties. 4. Having heard the learned Counsel for the parties, perused pleadings and the orders impugned, the 1st question for decision-making is, whether Section 114 of the KMC Act permits a demand for improvement charges or betterment charges as a precondition to registration of katha of immovable properties? 4. Having heard the learned Counsel for the parties, perused pleadings and the orders impugned, the 1st question for decision-making is, whether Section 114 of the KMC Act permits a demand for improvement charges or betterment charges as a precondition to registration of katha of immovable properties? The answer to this question is no more res integra in the light of the decision in Asian Institute of Rural Development, Bangalore v Bangalore City Corporation1, following the decision in the case of Kamal Chopra v Commissioner, Corporation of the City of Bangalore2, laying down the law that once the party produces necessary documents to change the katha, duty is cast on the officials of the respondent to change the katha and comply with the provisions of Section 114 of the KMC Act. Therefore, the endorsement Annexure-B to the extent that it imposes a precondition for the payment "melpatu vechcha", to consider the petitioner's application Annexure-A for registration of katha, is without authority of law, arbitrary and is unsustainable. 5. The next question for decision-making is, whether the respondent BBMP, in exercise of jurisdiction under Sections 466 and 467 of the KMC Act, is justified in imposing and demanding from the petitioner expenses known as "melpatu vechcha" as set out in the endorsement Annexure-B, and whether the 1st respondent, in the absence of the elected representatives constituting the Council and the Standing Committee, is competent to direct the imposition of improvement expenses and issue the circular dated 7-11-2007 Annexure-C in that regard? 6. Although there is no dispute between the parties that when identical issues arose for consideration in earlier writ proceedings before this Court the respondent gave an undertaking to the effect that the BMP would collect improvement expenses, only after framing rules as required by clause (b) of Section 466 and that the making of those rules is pending with the Government since the year 2001. If that is so, the answer is that the proceeding Annexure-D of the 1st respondent followed by the issues of the circular Annexure-C, leading to the impugned demand Annexure-B said to be in exercise of jurisdiction under Sections 466 and 467 of the KMC Act is incompetent and arbitrary. 7. Be that as it may Section 466 of the KMC Act invests in the Commissioner, subject to the approval of the Standing Committee, the power to declare expenses on certain works as improvement expenses. 7. Be that as it may Section 466 of the KMC Act invests in the Commissioner, subject to the approval of the Standing Committee, the power to declare expenses on certain works as improvement expenses. Clause (a) of Section 466 relates to expenses to be recovered in respect of that which is incurred or to be incurred as mentioned in Sections 189, 225, 227, clause (b) of sub-section (1) of Section 272, Section 283, sub-sections (1) and (2) of Section 328, Section 332, 337, 376 or 462. Clause (b) of Section 466 provides for recovery of improvement expenses subject to the rules made under the Act. Section 467 provides for the obligation to pay the improvement expenses, as a charge on the premises in respect of which or for the benefit of which it is incurred, recoverable in 20 annual instalments of such amounts as the Commissioner may in each case determine. The improvement expenses is liable to be paid by the owner or occupier of the premises of which the expenses are charged and if in the case of the occupier, the payment of such instalments will entitle him to effect deduction from out of the rent payable by him to the owner or recover the same from the owner. 8. In the instant case, it is admitted that the power to declare expenses on certain works or improvements, as set out in the sections mentioned in clause (a) of Section 466 is not applicable. If that is so, then what is applicable is clause (b) which subjects the recovery of improvement expenses, to the framing of rules in that regard. An examination of the minutes of the proceedings Annexure-D of the 1st respondent, discloses that Rs. 200 crores was spent in the year 1995 to provide water supply, and for other development expenses, the basis and foundation to impose and recover from the petitioner improvement charges. In the absence of specifies over the expenses incurred by the 1st respondent, as development expenses and that too in respect of the areas fallen within the larger areas of BBMP, pursuant to the notification constituting the said BBMP, the figure of Rs. 200 crores expended in the year 1995 cannot have any nexus or is justification to recover improvement expenses under Section 466 of the KMC Act. 200 crores expended in the year 1995 cannot have any nexus or is justification to recover improvement expenses under Section 466 of the KMC Act. A bare reading of clause (b) of Section 466 what is discernible is that recoveries are for the amount expended or likely to be incurred. In the instant case, it is not known whether expenses were incurred for the areas that fell beyond the territorial jurisdiction of the then existing BMP nor is it shown that such amounts were in fact expended for the petitioner's property and areas falling within the territorial jurisdiction of BBMP. So also, what is not forthcoming is as to what is the reasonable expenses likely to be incurred by the BBMP so as to entitle it recover the same as improvement charges, in advance, from the petitioner. Looking at it from any angle, the fallacy in the reasoning of the 1st respondent as set out in the proceedings Annexure-D lies in the superficial, cursory nature of consideration undertaken therein without reference to relevant material constituting legal evidence of a fact of incurring expenditure by which the 1st respondent could have exercised his jurisdiction under Section 466 of the KMC Act to impose and recover improvement charges. The proceedings Annexure-D fall short of the requirement of law and is shown to suffer from infirmities which patently tantamounts to arbitrary exercise of power. It is no doubt true that the 1st respondent, in the absence of the elected body and the Standing Committee, is entitled to exercise power under Section 466 of the KMC Act, but such exercise of power must be fully justified. 9. The contention that the impugned demand is justified in exercise of power under Section 505 of the KMC Act, pales into insignificance since, neither the proceedings Annexure-D nor the circular, Annexure-C refers to exercise of such power. Even otherwise the case of the respondent is not as to development on change of land use after the petitioners' properties fell within the larger area of BBMP. 10. Having held that the proceedings Annexure-D directing the imposition and recovery of improvement expenses is without justification, as a consequence the circular dated 7-11-2007 Annexure-C and the impugned demand by endorsement Annexure-B are illegal and unsustainable. In the result, this writ petition is allowed. The endorsement dated 28-1-2008; circular dated 7-11-2007 Annexure-C and the proceedings dated 27-10-2007 Annexure-D are quashed. Having held that the proceedings Annexure-D directing the imposition and recovery of improvement expenses is without justification, as a consequence the circular dated 7-11-2007 Annexure-C and the impugned demand by endorsement Annexure-B are illegal and unsustainable. In the result, this writ petition is allowed. The endorsement dated 28-1-2008; circular dated 7-11-2007 Annexure-C and the proceedings dated 27-10-2007 Annexure-D are quashed. The respondents are directed to consider the petitioner's application Annexure-A and effect registration of katha in the name of the petitioner, if the application is found otherwise to be in accordance with law, in any event within a fortnight from today.