I . L . R . 1994 KAR 2115

SHIVAPRAKASH . J

Karnataka State Judicial Employees' House Building Co-operative Society Ltd. vs State of Karnataka *

[W.P. No. 18447 of 1994 dated 15th July 1994]

CIRCULAR BY COMMISSIONER FOR REGISTRATION & STAMPS DATED 17-05-1994. Release of site allotted in private layout sanctioned by BDA, each & every time & 'No objection certificate' from Registrar of Co-operative Societies, do not arise - Circular of no legal effect & liable to be struck down.

HELD:

[i] There is no provision in the Bangalore Development Authority Act enjoining that each and every time a site has to be allotted in a private layout sanctioned by the BDA, the said site has to be released by the BDA. Obviously, because sites in private layouts are never in the clutches of BDA and the question of BDA "releasing" the sites does not arise. Therefore, the condition stipulated in the Circular, cannot be legally sustained. [ Para - 5]

[ii] The other requirement of production of "No Objection Certificate" issued by the Registrar of Co-operative Societies, also cannot be legally sustained since there is no provision of law requiring production of "No Objection Certificate" issued by the Registrar of Co-operative Societies before a document presented Sub-Registrar. [ Para - 6]

[iii] The Circular not published in the Gazette in terms of provisions of Section 22A of the Registration [Karnataka Amendment] Act, 1976 is of no legal effect.. The Circular does not disclose any intelligible different and also does not reveal any public policy being involved in issuing the said Circular. On this ground also the Circular has to be struck down. [ Paras - 8 & 9 ]

CASES REFERRED:

[1] W.P.No. 20898 OF 1990 DD 29-01-1993-
[2] ILR 1993 KAR 3103 - Bhaskar vs State [ Foll]
Mr. T. S. Ramachandra for Petitioner
Mr. V.B. Ganachar, HCGP for Respondents

O R D E R

Shivaprakash, J

[1] The petitioner is a House Building Co-operative Society registered under the provisions of the Karnataka Co0operative Societies Act.

[2] In this petition the petitioner-Society questions the legality and validity of the Circular dated 17-05-1994 issued by the Second respondent - the Commissioner for Registration and Stamps in Karnataka, copy of which is marked as Annexure -C. In the said circular, t is stated that the Government has issued instructions to 32 House Building C-operative Societies to allot sites to its members and that the Government in its letter dated 11-05-1994 has issued instructions to the concerned Sub-Registrars that whenever documents are presented by the aforesaid 32 Co-operative Societies the same shall be registered if only the produce the following documents:

1. No objection certificate from Registrar of Co-operative Societies;
2. Release certificate from the Bangalore Development Authority [ BDA for short]

[3] In the said Circular there is a warning to the concerned Sub-Registrars that if they were to register any document presented by the aforesaid 32 Societies without production of the above two Certificates, disciplinary action would be initated against them.

[4] This Court in W. P. 20898/90 [ DD. 29-01-1993] while considering the question of issue of Release certificate by the B.D.A. for the purpose of allotment by the Society, has ruled that after the formation of the layout in accordance with the layout sanctioned by the B.D.A. and after the Society has executed the Relinquishment Deed relinquishing its right, title and interest over the roads, parks, playgrounds, open spaces etc; in the layout formed, in favour of the B.D.A., there was no question of "releasing the sites" by the B.D.A. for the purpose of allotment by the Society since the layout in question is a private layout formed by the Co-operative Society concerned.

[5] There is no provision in the Bangalore Development authority Act enjoining that each and every time a site has to be allotted ina private layout sanctioned by the B.D.A., the said site has to be released by the B.D.A. Obviously, because sites in private layouts are never in the clutches of B.D.A. and the question of B.D.A. "releasing" the sites does not arise. Therefore, the condition stipulated in the Circular, as contended by the learned Counsel for the petitioner, cannot be legally sustained. As a matter of fact, against the aforesaid Decision of a learned single Judge of this Court, the B.D.A. had preferred Writ Appeal in W. A. No. 394 of 1993 and the same was dismissed on 23-03-1993.

[6] The other requirement of production of "No Objection Certificate" issued by the Registrar of Co-operative Societies, also cannot be legally sustained since no provision of law is brought to my notice requiring production of "No Objection Certificate" issued by the Registrar of Co-operative Societies before a document presented by the Co-operative Society is registered by the concerned Sub-Registrar.

[7] Sri. T. S. Ramachandra, learned Counsel for the petitioner also contended that the impugned Circular has no legal force since the same is not notified in the Gazette in terms of the provision of Section 22A of the Registration Act, 1976. Section 22A of the said Act reads thus:

"22A. Documents registration of which is opposed to public policy: (1) The State Government may, by notification in the official Gazette, declare that the registration of any document or class of documents is opposed to public policy. (2) Notwithstanding anything contained in this Act, the registering officer shall refuse to register any document to which a notification issued under sub-section (1) is applicable. "

[8] This Court while considering an identical question in A. BHASKAR vs STATE OF KARNATAKA has ruled that Circulars which are not published in the Gazette in terms of the provisions of Section 22A of the Registration [Karnataka Amendment ] Act, 1976, is of no legal effect. It appears, the State Government had preferred Appeal against the said Ruling of a learned Single Judge of this Court and the same was dismissed in Writ Appeal Nos. 1283 to 1320 of 1994 [ DD 07-06-1994].

[9] The learned Counsel for the petitioner next contended that the impugned Circular is also bad in law as the same is violative of article 14 of the constitution of India. He submitted that among hundreds of Housing Co-operative Societies only 32 Societies of which the petitioner-Society is one, have been singled out for discriminatory treatment without any discernible basis. He submitted that any valid classification to stand the test of Article 14 of the constitution of India has to be based on intelligible differential having reasonable relation to the object sought to be achieved. In the instant case, the Circular does not disclose any such intelligible differentia and also does not reveal any public policy being involved in issuing the said Circular. On this ground also the Circular has to be struck down.

[10] For the foregoing reasons, this Writ Petition is allowed and the impugned Circular is quashed.

[11] The Learned Government Pleader pleaded that while allowing the petition no costs be imposed. Despite Rulings of this Court, if the authorities concerned persist in issuing Circulars, in contumacious disregard of the law laid down by this Court, thus compelling the parties to file Writ Petitions putting them to unnecessary expenses. It is just and reasonable to impose costs.

[12] The authorities should realise that Judicial testing of statutory and administrative Regulations has a vital part to play not only in contesting individuals against abuse by officials but also in helping is make the official Regulations themselves enforceable if they are legal and valid.

[13] This Petition is allowed with costs quantified at Rs. 3000/-
                                                                                                                                                                               
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BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD KUMARA PARK WEST, BANGALORE - 560 020.

No. BDA / TPM 1498 / 97-98. Date: 22-09-1997.

FINAL NOTICE

Notice under Section 17[4] of the KTCP Act 1961 and Rules 37 of Karnataka Planning Authority Rules 1965.

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Subject:- Unauthorized formation of layout in several Sy. No. S. of Jakkur Plantations Allasandra Village & Chikkabommasandra Village.

Ref:-
[1] This Office Notice No. BDA /TPM / 14/96-97, Dt. 02-04-1997.

[2] This Office letter No. BDA/TPM / 164 / 97-98, Dt. 02-05-1997.

**********

[1] Inspite of the notices issued by this office against the formation of layout unauthorisedly in several Sy. Nos. of Jakkur, Allasandra & Chikkabommasandra village, you have not responded or appeared before the sub committee. Also you have not yet stopped the work and restored the land to the original condition.

[2] As per section 17 of the karnataka Town and Country planning Act, and section 32 of the Bangalore Development Act, 1976 every development has to be proceeded only after getting necessary permission from the Bangalore Development Authority, which is the planning Authority for the Metropolitan Area of Bangalore under the said Act. The property in question lies within the Jurisdiction of the Bangalore Development Authority. Records of this Authority reveal that no permission for development has been obtained as required under provisions of the above said Act.

[3] When permission for such development has not been obtained from this Authority, such development shall not be deemed to be law-fully undertaken and carried out by reason only of the fact that permission, approval or sanction has been obtained from any statutory as per Section 76 - M of the Karnataka Town & Country Planning Act . Such unlawful activities are liable for action under Section 73 The KTCP Act.

[4] Hence, you are hereby called upon to discontinue such work and to showcause within seven days from the date of receipt of this notice as to why action should not be taken to stop the unauthorised work and restore the land to its original condition.

[5] If no reply is received from you within the above said period, it will be presumed that you have no explanation to offer and confirm that you are forming residential layout unauthorisedly in violation of the Karnataka Town and Country Planning Act and the rules framed thereunder. In that event, the Bangalore Development Authority is at liberty to take such action as is permissible under the law.

Mrs. Lakshmi Venkatachalam .
Commissioner,
BDA, Bangalore.

To.

The President,
Karnataka State Judicial Employees House Building Co-operative Society
High Court Building complex,
Bangalore - 560 001.
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Proceedings of the Meeting of the Sub-Committee constituted to hear the cases of unauthorised contractions/developments B.D.A held on 8-5-1997 in the Chambers of the commissioner,

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Sub:-1

Unauthorised formation of layout and construction of buildings in several Syl Nos. of Allalasandra village, Chikkabommasandra village and Jakkur Plantation by the Karnataka State Judicial department Employees House Building Co-operative society.

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Authority vide resolution No. 503/92 Date: 16-11-1992 declared to approve residential layout in favour of the society subject to certain conditions. Work order and the layout plan were not issued as the conditions were not complied with. Mean while the society has applied for modified layout. In reply, in reply, the society was informed to submit porpoises in accordance with the stipulations contained in G.O. Date: 17-11-1995. The Society informed BDA that they were unable to comply with the requirement of G.O. Date: 17-11-1995.

So for the society has not furnished the revised plan for approval as per G.O. Date: 17-11-1995.

Meanwhile the HBCS has taken up formation of unauthorized layout and building activities were also found in the layout. Notice was issued against the unauthorized Developments, under the KTCP Act. No reply is received from the society.

Division: It was decided to issue final notice with the survive of the notice with information of hearing. Top