Full Judgment Text
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 12 DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.54098 OF 2018 (LB-BMP)
C/W
WRIT PETITION No.2452 OF 2021 (LB-BMP)
IN WRIT PETITION No.54098 OF 2018 (LB-BMP)
BETWEEN
1. SRI MADHUSUDHAN BHADRI
S/O B.KRISHNAMURTHY,
AGED ABOUT 46 YEARS
ST
RESIDING AT NO.799/14, 1 MAIN,
TH
4 CROSS, SHREYAS COLONY,
WARD NO.195,
TH
J.P NAGAR, 7 PHASE,
BENGALURU - 560 078.
2. SMT.SUHASINI P.RAO
W/O SRI MADHUSUDHAN BHADRI,
AGED ABOUT 38 YEARS,
ST
RESIDING AT NO.799/14, 1 MAIN,
TH
4 CROSS, SHREYAS COLONY,
WARD NO.195, J.P NAGAR,
TH
7 PHASE,
BENGALURU - 560 078.
... PETITIONERS
(BY SRI M.S.BHAGWAT, ADVOCATE (PHYSICAL HEARING))
R
2
AND
1. BRUHATH BANGALORE MAHANAGARA PALIKE
REPRESENTED BY ITS COMMISSIONER,
N R SQUARE, BENGALURU - 560 002.
2. THE ASSISTANT REVENUE OFFICER
WARD NO.195, YELACHENAHALLI
SUB-DIVISION,
BRUHAT BANGALORE MAHANAGARA PALIKE,
BENGALURU - 560 078.
... RESPONDENTS
(BY SRI V.SREENIDHI, ADVOCATE (PHYSICAL HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUSH THE FORM-B
PROPERTY REGISTER BEARING NO.813 ISSUED BY THE R-2 IN
RESPECT OF THE PETITION SHECUEL PROPERTY [ANNEXURE-D]
AND CONSEQUENTLY DIRECT THE RESPONDENT TO
ISSUE/RECORD THE PETITION SCHEDULE PROPERTY IN FORM-A
PROPERTY REGISTER IN VIEW OF THE PRINCIPLES LAID DOWN BY
THIS HON'BLE COURT IN SMT.SHANTA M.GAD AND OTHERS V/S
ASSISTANT REVENUE OFFICER, BBMP, AND ANOTHER REPORTED
IN ILR 20158 KAR 441 [ANNEXURE-E].
IN WRIT PETITION No.2452 OF 2021 (LB-BMP)
BETWEEN
1. SMT.DIANA LOBO
W/O LATE MATHIAS BERNARD LOBO
AGED ABOUT 67 YEARS
RESIDING AT NO.473/E,
JAGADISHNAGAR, NEW THIPPASANDRA POST,
BENGALURU - 560 075.
3
2. SRI ROHAN LOBO
S/O LATE MATHIAS BERNARD LOBO
AGED ABOUT 40 YEARS
RESIDING AT NO.473/E,
JAGADISHNAGAR, NEW THIPPASANDRA POST,
BENGALURU - 560 075.
... PETITIONERS
(BY SRI M.S.BHAGWAT, ADVOCATE (PHYSICAL HEARING))
AND
1. BRUHATH BANGALORE MAHANAGARA PALIKE
REPRESENTED BY ITS COMMISSIONER
N.R. SQUARE, BENGALURU - 560 002.
2. THE ASSISTANT REVENUE OFFICER
BRUHAT BANGALORE MAHANAGARA PALIKE
H.A.L. AIRPORT SUB-ZONE, MAHADEVAPURA ZONE,
BENGALURU - 560 037.
... RESPONDENTS
(BY SRI S.N.PRASHANTH CHANDRA, ADVOCATE (PHYSICAL
HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM
THE RESPONDENTS; QUASH THE IMPUGNED ENDORSEMENT
DATED 16.08.2019 ISSUED BY THE R-2 ANNEXURE-J AS WELL AS
THE IMPUGNED ENDORSEMENT DATED 16.12.2019 ISSUED BY
THE R-2 ANNEXURE-K AND CONSEQUENTLY DIRECT THE
RESPONDENTS HEREIN TO ISSUE / RECORD THE PETITION
SCHEDULE A AND B PROPERTIES IN FORM-A PROPERTY
REGISTER, IN VIEW OF THE PRINCIPLES LAID DOWN BY THIS
HON'BLE COURT IN SMT SHANTA M GAD AND OTHERS V/S
ASSISTANT REVENUE OFFICER, BBMP AND ANOTHER REPORTED
IN ILR 2015 KAR 441 (ANNEXURE-L).
4
THESE WRIT PETITIONS COMING ON FOR DICTATING
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners in these writ petitions seek quashment of
endorsements which place the properties of the petitioners in
Form-B register and also seek consequential directions to place
the properties of the petitioners in Form-A register.
2. Heard Sri M.S.Bhagwat, learned counsel for the
petitioners and Learned Counsel Sri V Srinidhi and Learned
counsel Sri S.N.Prashanth Chandra, learned counsel for
respondents 1 and 2 in both in these petitions
W.P.NO.54098 OF 2018 :
3. Petition schedule property was a site in the erstwhile
Kothanurgramatana now in Ward No.195, KothanurShreysas
Colony. One Smt. M.R.Ambuja had purchased the said property
by way of registered sale deed dated 17-10-1994 and thereafter
she gifted the property by way of gift deed dated 10-12-2002 in
favour of Dr. Roshni P.Rao from whom the petitioners had
5
purchased the petition schedule property by way of registered
sale dated 17.06.2010. The petitioners are now the absolute
owners of the said property from 17-06-2010.
4. It appears that the petitioners on becoming the owners
of the property and the fact that the property came within the
jurisdiction of the Bruhat Bengaluru MahanagaraPalike (‘BBMP’)
applied for inclusion of their names in the demand register for
the purpose of payment of tax. The BBMP assed the property
and included the petition schedule property in Form-B of the
property register under Rule 11 of the Bruhat Bengaluru
MahanagaraPalike Property Tax Rules, 2009 (hereinafter the ‘the
Rules’ for short). It is this entry of the property of the petitioners
that is made in Form-B Register is what drives the petitioners to
this writ petition.
W.P.NO.2452 OF 2021 :
st
5. On 25-09-1986 the husband of the 1 petitioner and
nd
father of the 2 petitioner purchased the Schedule ‘A’ property
as described in the petition schedule pursuant to a registered
6
sale deed. On 22-10-1992 the then H.A. Sanitary Board
assessed on the petition schedule ‘A’ property for the year 1988-
89. On 17.03.1995 another property was purchased by them
which is described in the schedule as petition schedule ‘B’
nd
property. On 16-05-2012 the 2 respondent/’BBMP included
the petition schedule ‘B’ property in form-B property register. On
15-12-2018 the owners of the properties appear to have died
intestate. The petitioners on acquisition of all documents that
were necessary for the entry in their names applied for entry of
their names in the demand register and issuance of khata
accordingly which came to be rejected by the BBMP by two
separate endorsements on the score that the properties of the
petitioners were never found in Form-A register and sought to be
entered in Form-B register. The issuance of these endorsements
has driven the petitioners to this Court.
6. The learned counsel for the petitioners in both these
cases Sri M.S.Bhagwat would contend that the very entry in
Form-B being made of the properties is opposed to Section 108A
7
(3) of the Karnataka Municipal Corporations Act, 1976 and
would submit that the act of the BBMP making entries in Form-
B property register in respect of properties coming within its
jurisdiction was subject matter of a writ petition in which a co-
ordinate Bench had quashed all the entries so made in Form-A
or Form-B property register as the case may be.
7. On the other hand Sri V.Srinidhi , Sri S.N.Prashanth
Chandra learned counsel appearing for the respondent/BBMP in
both these cases would contend that the judgment of the co-
ordinate Bench was rendered at a time when there was no
provision for such entry and subsequently an amendment has
been brought to the Rules which now empowers the BBMP to
maintain form-A and Form-B register depending on the nature of
the properties and would also submit that the action of the
BBMP in issuing such endorsements cannot be found fault with.
8. I have given my anxious consideration to the
submissions made by the respective learned counsel and
perused the material on record.
8
9. The afore-narrated facts, with regard to the nature of
properties and their possession by the petitioners being not in
dispute, are not iterated. The only issue that requires to be
considered is whether the endorsements are in tune with law. A
co-ordinate Bench of this Court in the case of SMT. SHANTA
M.GAD v. ASSISTANT REVENUE OFFICER, BBMP – ILR 2015
KAR 441 set aside those entries made on the ground that the
Rules did not empower the BBMP to place the properties in
Form-B register and reserved liberty on the BBMP to make
necessary amendment if it wants to include the properties in
Form-B register. The writ petition was disposed of by the
following observations:
“18. In the circumstances, it is for the respondent/
BBMP,
(i) to ensure necessary amendments to
the Rule if it so desires, so as to
include in Form-B register
assessment to tax of properties
which do not have approvals and
sanctions under various applicable
enactments, falling within the
purview of Section 108-A(3) of the
9
‘Act’, rather than include them in
Form-A register.
(ii) to ensure assignment of ‘property
identification numbers’ to all properties
falling within its jurisdiction irrespective
of being assessed or not assessed to
levy of property tax.
19. Until such exercise is done, there is no
justification for respondent/BBMP to include petitioners’
properties in Form-B Register and issue extracts,
Annexure-B series. Therefore, the extracts Annexure-B
series must necessarily be held to be illegal.
20. Though learned counsel for the respondent/
BBMP, suggests that petitioners be reserved liberty to file
objections to the notice Annexure-A, and the appropriate
authority would consider the same, nevertheless, in the
light of observations supra, would be futile.
21. It is further made clear in the event the
respondent/BBMP intends to record the assessment of
property tax in respect of properties falling under Section
108A(3) of the Act, in a separate register, shall make
available to the petitioners all relevant material
particulars to enable petitioners to file their objections
and thereafter pass orders in accordance with law.
22. In the result, the notice Annexure-A insofar as it
relates to the finding that the properties of the petitioners
are not complaint with statutory provisions and the
building ‘Bye-laws’ and the recording the assessment in
Register Form-B, as well as the extracts of Form-B
register, Annexure-B series are quashed. The notice
Annexure-A insofar as it relates to assessment of
property tax remains unaltered."
10
Pursuant to the aforesaid liberty reserved in the BBMP to amend
the Rules to place the properties in Form-B register, the BBMP
has by Notification dated 1-09-2020 amended the Rules by the
Bruhat Bengaluru MahanagaraPalike Property Tax (Amendment)
Rules, 2020. The amendment Rules brought in amendment to
Rule 11 by way of substitution. The amended Rule 11 reads as
follows:
“2. Amendment of rule 11 – In the Bruhat
Bengaluru MahanagaraPalike Property Tax Rules 209
(hereinafter referred as the said rules), for rule 11, the
following shall be substituted, namely:-
“11. Property register. – (1) The property tax
collected from the owner or occupier in respect of
authorized property shall be maintained in property tax
register in Form A and in respect of unauthorized
property shall be maintained in a register in Form B.
Explanation : For the purpose of these rules,
-
(i) “Authorised property” means the
property which complied with sanctions
and approval under applicable laws
time being in force.
(ii) “Unauthorisedpropery” means the
property wherein developments are
11
carried out under the following
categories, namely:-
(a) “Unapproved and violated
development” means any
development made without
obtaining prior approval from the
competent authority and also in
violation of Master Plan, zonal
regulations and building bye-
laws.
(b) “Approved and violated
development” means development
carried out after obtaining
approval from the competent
authority but constructed in
violation of Master plan, zonal
regulations and building bye-
laws; and
(c) “Unapproved and non-violated
development” means development
carried out without obtaining prior
approval from the competent
authority but the development
carried out in accordance with
Master plan, zonal regulations
and building bye-laws.
(2) Property Identification Number shall be assigned
to all properties falling within the jurisdiction of Bruhat
Bengaluru MahanagaraPalike, irrespective of such
properties being authorized or unauthorized.
(3) Amendment of schedule . – In the schedule to
the said rules, -
12
(i) in the heading of From-A, for the words and
letters “Register maintained for properties having
PID numbers During the Block Period”, the words
“Register maintained for authorized properties”
shall be substitute; and
(ii) in the heading of Form-B, for the words
and letters “Register maintained for properties
without katha/ PID numbers During the Block
Period,” the words “Register maintained for
unauthorized properties” shall be substituted”.
(Emphasis supplied)
In terms of the aforesaid amendment, the property register was
divided into two – one Form-A and the other Form-B.
In respect of property tax collected from the owner or
occupier in respect of authorized property it has to be
maintained in Form-A and un-authorised property it has to be
maintained in Form-B.
What is an unauthorized property is also defined in the
aforesaid amendment. An unauthorized property is a property
wherein developments are carried out in categories enumerated
in sub-rule (ii) which are unapproved and violated developments
13
formed in violation of Master Plan, Zoning Regulations or
building Bye-laws and unapproved and non-violated
developments also bear meaning in the Rules.
Approved and violated developments are the ones which
are carried out after obtaining approval from the competent
authority but constructed in violation of the Master Plan, Zoning
Regulations and Building bye-laws. Unapproved and non-
violated developments are those where development is carried
out without obtaining prior approval from the competent
authority but the development carried out is in accordance with
the Master Plan, Zonal Regulations and Building Bye-laws.
10. Thus, a clear categorization of properties is brought
out under the Rules. Notwithstanding the property being
authorized or unauthorized, the property identification number
is mandatorily to be assigned under sub-rule (2) of Rule 11.
Therefore, the ground which the petitioners urge in these
petitions, that the entry being made of their properties in Form-
14
B register is without authority of law is unfounded. This Court
while disposing of the aforesaid writ petition had reserved liberty
in the BBMP to ensure amendments to the Rules if it so desires,
so as to include the properties in Form-B register which do not
have sanctions and approvals under the applicable enactments.
Pursuant to the said order, the Rule is now amended as quoted
supra.
11. Wherefore, the ground on which the endorsements are
to be quashed is not available to the petitioners at this juncture.
However, the BBMP will have to now assess the properties of the
petitioners if they would come within the explanation rendered
in Rule 11 as to whether it is an authorized property or an
unauthorized property for the entry to be made in the respective
registers in terms of Rule 11. The property whether it is
authorized or unauthorized, a property identification number
will have to be given. In these petitions the properties of the
petitioners are not given property identification numbers (PID)
15
which the BBMP will have to now carry out in terms of the
applications given by the petitioners.
12. In the light of the preceding analysis, I pass the
following:
O R D E R
(i) Writ Petitions are allowed and (a) Form-B Property
Register bearing No.813 (Annexure-D in Writ Petition
No.54098 of 2018); (b) Endorsements dated
16.08.2019 and 16-12-2019 (Annexures J and K in
Writ Petition No.2452 of 2021) stand quashed.
(ii) A direction is issued to the BBMP to assess the
properties of the petitioners in terms of Rule 11 of the
Rules and later make an entry in Form-A or Form-B
registers as the case would be.
(iii) BBMP shall issue Property Identification Number to
the subject properties notwithstanding the fact
whether they are placed in Form-A or Form-B
registers, within four weeks from the date of receipt
of a copy the order, if not already issued.
(iv) The contentions of both the parties remain open with
regard to entries of the properties of the petitioners.
16
(v) The assessment and entry shall be complied with,
within twelve weeks from the date of receipt of a copy
the order.
Sd/-
UDGE
J
KG
CT:MJ