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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF JUNE 2014
BEFORE
THE HON’BLE MR. JUSTICE RAM MOHAN REDDY
W.P.No.33033/2012 (LB-BMP) c/w
W.P.Nos.7242 & 8303/2012 (KLR-RR/SUR),
W.P.Nos.27467 & 27661/2012 (LB-BMP) &
W.P.Nos.34636 – 34638/2011 (LB-BMP)
IN W.P.No.33033/2012: BETWEEN M/S HAMARA SHELTERS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, AND HAVING ITS REGISTERED OFFICE AT NO.41, VITTAL MALLYA ROAD, BENGALURU - 560 001 AND REP. BY ITS AUTHORISED SIGNATORY MR GIRISH GUPTA H S
... PETITIONER
(BY SRI UDAYA HOLLA, SR. ADV. FOR SRI S MAHESH, ADV.) AND
1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE (BBMP), J C ROAD, N R SQUARE BANGALORE SOUTH, BENGALURU.
2. THE DEPUTY COMMISSIONER LAND ACQUISITION AND TDR BRUHAT BANGALORE MAHANAGARA PALIKE BENGALURU.
3. THE NATIONAL TEXTILE CORPORATION (APKK & M) LTD., A GOVERNMENT OF INDIA UNDERTAKING,
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HAVING ITS OFFICE AT III FLOOR, NANJAPPA MANSION, 29/2, K H ROAD, SHANTINAGAR BENGALURU 560027.
4. THE STATE OF KARNATAKA,
BY ITS SECRETARY, URBAN DEVELOPMENT DEPARTMENT, VIKAS SOUDHA, DR.AMBEDKAR VEEDHI, BANGALORE.
... RESPONDENTS
(BY SRI ASHOK HARANAHALLI, SR. ADV. FOR SRI. SANDEEP PATIL, ADV. FOR R-1 & 2; SRI H.KANTHARAJA, AAG FOR SRI VASANT V. FERNANDES, HCGP FOR R-4; SRI S.SRIRANGA, ADV. FOR R-3.)
THIS WP FILED PRAYING TO QUASH THE IMPUGNED ORDER DATED 24.08.2012, ISSUED BY THE R2, REJECTING THE REVALIDATE THE TDR VIDE ANNEX-A AND THE JOINT COMMITTEE REPORT 19.08.2011 VIDE ANNEX-X AND ALL ITS CONSEQUENT PROCEEDINGS. IN W.P.Nos.7242 & 8303/2012: BETWEEN
1. HAMARA SHELTERS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, AND HAVING ITS REGISTERED OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU-560 001 AND REP. BY ITS DIRECTOR MR GIRISH GUPTA H S
2. ABHISHEK DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU-560 001 AND REP. BY ITS AUTHORISED SIGNATORY MR GIRISH GUPTA H S
... PETITIONERS
(BY SRI UDAYA HOLLA, SR. ADV. FOR SRI. S MAHESH, ADV.)
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AND
1. THE COMMISSIONER SURVEY, SETTLEMENT & LAND RECORDS K R CIRCLE, BENGALURU.
2. THE JOINT DIRECTOR OF LAND REFORMS
OFFICE OF THE COMMISSIONER OF SURVEY SETTLEMENT & LAND RECORDS K R CIRCLE, BENGALURU
3. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE J C ROAD, N R SQUARE BANGALORE SOUTH, BENGALURU
4. THE ASSISTANT DIRECTOR
LAND RECORDS, CITY SURVEY ENQUIRY-1 BENGALURU
5. THE ENQUIRY OFFICER
CITY SURVEY-1, BENGALURU ... RESPONDENTS
(BY SRI ASHOK HARANAHALLI, SR. ADV. FOR SRI. SANDEEP PATIL, ADV. FOR R-3; SRI H.KANTHARAJA, AAG FOR SRI VASANT V. FERNANDES, HCGP FOR R-1, 2, 4 & 5.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED PROCEEDINGS IN REVISION SUOMOTO 2/11-12 INITIATED BY THE R1 THE COMMISSIONER OF SURVEY SETTLEMENT AND LAND RECORDS AS PER HIS NOTICE DATED 13.01.2012 UNDER ANNX-Y AND ALL ITS CONSEQUENT PROCEEDINGS. IN W.P.Nos.27467 & 27661/2012: BETWEEN
1. HAMARA SHELTERS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, AND HAVING ITS REGISTERED OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU-560 001 AND
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REP. BY ITS DIRECTOR MR GIRISH GUPTA H S
2. ABHISHEK DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU-560 001 AND REP. BY ITS AUTHORISED SIGNATORY MR GIRISH GUPTA H S
... PETITIONERS (BY SRI UDAYA HOLLA, SR. ADV. FOR SRI. S MAHESH, ADV.) AND
1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE J C ROAD, N R SQUARE BANGALORE SOUTH, BENGALURU
2. THE JOINT COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE WEST ZONE, BANGALORE
... RESPONDENTS (BY SRI ASHOK HARANAHALLI, SR. ADV. FOR SRI SANDEEP PATIL, ADV.)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS OR ANYONE CLAIMING THROUGH THEM NOT TO MAKE ANY CLAIM OR INTERFERE INTO THE POSSESSION OF THE SAID PROPERTY OR ANY PORTION THEREOF, BASED ON THE JOINT COMMITTEE REPORT UNDER ANNEX-S. IN W.P.Nos.34636 – 34638/2011: BETWEEN
1. HAMARA SHELTERS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, AND HAVING ITS REGISTERED OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU-560 001 AND REP. BY ITS DIRECTOR MR GIRISH GUPTA H S
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2. M/S ABHISHEK DEVELOPERS A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 41, VITTAL MALLYA ROAD, BENGALURU-560 001 AND REP. BY ITS AUTHORISED SIGNATORY MR GIRISH GUPTA H S
3. MR SUSHIL MANTRI
S/O MR. PANDURANG MANTRI AGED ABOUT 46 YEARS, HAVING OFFICE AT MANTRI HOUSE, # 41, VITTAL MALLYA ROAD, BANGALORE-560001
... PETITIONERS
(BY SRI UDAYA HOLLA, SR. ADV. FOR SRI. S MAHESH, ADV.) AND
1. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE J.C ROAD, N.R. SQUARE, BANGALORE SOUTH, BANGALORE.
2. THE DEPUTY COMMISSIONER BRUHATH BENGALURU MAHANAGARA PALIKE BENGALURU
3. NATIONAL TEXTILE CORPORATION (APKK & M) LTD., A GOVERNMENT OF INDIA UNDERTAKING, HAVING ITS OFFICE AT III FLOOR, ‘NANJAPPA MANSION’, 29/2, K.H. ROAD, SHANTHINAGAR, BENGALURU- 560 027
... RESPONDENTS (BY SRI ASHOK HARANAHALLI, SR. ADV. FOR SRI SANDEEP PATIL, ADV. FOR R-1 & 2; SRI S.SRIRANGA, ADV. FOR R-3.)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED REPORT DATED 19.08.2011 SUBMITTED BY THE JOINT COMMITTEE CONSTITUTED BY IST RESPONDENT UNDER ANNEXURE VI, ITS CONSEQUENTIAL ENQUIRY PROCEEDINGS BEFORE THE 2ND RESPONDENT AND THE NOTICE DATED 27.08.2011 UNDER ANNEXURE V2 ISSUED BY THE 2ND RESPONDENT THREATENING TO CANCEL THE KHATA ISSUED IN FAVOUR OF THE PETITIONERS PROPERTY.
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THESE WRIT PETITIONS COMING ON FOR ORDERS ON BEING SPOKEN TO THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
Since common questions of fact and that of law
arise for decision making, these petitions are clubbed
together, finally heard and disposed of by this order.
Facts briefly stated are:
I Immovable properties bearing:-
(a) CTS No.3593 measuring 13.592 acres;
(b) CTS No.3593(P) measuring 1.492 acres;
(c) Sy.No.43 measuring 2.016 acres;
(d) CTS No.3593 measuring 0.907 acres;
(e) CTS No.908 measuring 0.263 acres;
(f) CTS No. 3596 measuring 0.420 acres;
in all measuring 18.69 acres (75,634.69 sq. mtrs.) when
owned and possessed by M/s Mysore Spinning and
Manufacturing Mills Limited (‘MSMML’ for short) under
the then Maharaja of erstwhile State of Mysore, put up
factory, go-down, sheds, residential quarters and other
structures thereon to carry on its business activities
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and encompassed the said properties by a compound
wall all around. Consequent upon several textile mills
including M/s MSMML being declared sick, were
acquired and all the right, title and interest in the said
mills stood transferred and vested in M/s National
Textile Corporation (‘NTC’ for short), a Government of
India undertaking, under The Sick Textile Undertakings
(Nationalisation) Act, 1974, with effect from 01.04.1974,
whence the immovable properties of M/s MSMML
assessed to property tax under the erstwhile Bangalore
municipality and there afterwards by the Corporation of
the city of Bangalore and khatha certificate issued
recording the name of M/s MSMML in its revenue
registers, was changed to the name of M/s NTC.
II. M/s NTC having applied for change of land use,
the State Government by order, dated 27.07.2000
accorded permission for change of land use from partly
industrial and partly park area to multistoried
commercial use following which the Bangalore
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Development Authority (‘BDA’ for short) issued a
commencement certificate, dated 12.12.2003.
III. M/s NTC issued a tender notice for sale of the
lands including buildings belonging to M/s MSMML by
a publication in the news paper ‘Prajavani’ dated
05.04.2003. M/s Hamara Shelters Private Limited,
petitioner is said to be the successful bidder, whence,
M/s NTC executed and lodged for registration:-
(a) Sale deed dated 09.01.2004 conveying 13.592
acres (5,92,068 sq.ft) being part of CTS No.3593
as described in the schedule thereto and annexed
with a plan, and;
(b) Sale deed dated 27.05.2004 conveying:
(i) Sy.No.43 bearing CTS No.3593(P)
measuring 1.492 acres;
(ii) Sy.No.43 measuring 2.016 acres;
(iii) Part of CTS No.3593 measuring 0.907
acres;
(iv) Part of CTS No.908 measuring 0.263
acres;
(v) CTS No.3596 measuring 0.420 acres;
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in all measuring 5.098 acres (2,22,068.88 sq.ft.) or
20,630.702 sq.mtrs. as described in the schedule
therein annexed with a plan. Both the properties, it is
said, were assigned with municipal No.1 by the
municipality at the earliest point of time and there
afterwards continued by the erstwhile Bangalore
Mahanagara Palike (‘BMP’ for short).
IV. The respondent/Bruhath Bengalooru Mahanagara
Palike (‘BBMP’ for short) passed an order under Section
114 of the Karnataka Municipal Corporation Act, 1976,
(‘KMC Act’ for short) accepting the transfer of immovable
properties supra, by M/s NTC in favour of petitioner,
accordingly effected changes in its records, issued a
khatha certificate dated 16.03.2005 assigning a
Property Identification Number (PID) which when
assessed to tax, was paid by the petitioner.
V. Petitioner/purchaser having made diligence over
title and possession of the aforesaid immovable
properties of the erstwhile M/s MSMML, later on M/s
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NTC, applied for and obtained permission for
development of the said properties from Karnataka
State Pollution Control Board; Department of Fire Force,
Department of Forest, Bangalore Water Supply and
Sewage Board; Bangalore Electricity Supply Company;
Bharath Sanchar Nigam Limited, Metro Rail
Corporation Limited; Airport Authorities of India and
the Bruhath Bengalooru Mahanagara Palike. According
to the petitioner, the purpose of securing these
permissions/ no objection certificate was to put up
multistoried residential complex known as ‘Mantri
Greens’ and commercial complex known as ‘Mantri
Square’.
VI. The respondent/BBMP having noticed severe
traffic congestion on Sampige Road, initiated process to
lay a new road to reach the 2nd Main Road,
Malleshwaram, near Srirampura Railway under pass,
through municipal property No.1, 2nd Main Road,
belonging to the petitioner, and sought to acquire land
measuring 12,268 sq.mtrs. as stipulated in the
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Government Notification dated 18.01.2005, which the
petitioner, along with group companies (Mantri Group)
having accepted, in public interest, volunteered to
surrender the said extent of land, following which,
BBMP is said to have invoked Section 14B of the
Karnataka Town and Country Planning Act, 1961,
(‘KTCP Act’ for short) and called upon the petitioner to
execute a relinquishment deed and hand over
possession of the said property on issue of Transfer
Development Right Certificate (‘TDR certificate’ for
short), also known as Development Right Certificate
(‘DRC’ for short). Petitioner claims to have complied
with the said request and executed a relinquishment
deed dated 06.03.2006 in favour of BBMP which when
duly registered, BBMP issued the TDR certificate
bearing No.3 dated 02.05.2006 in the name of M/s
Hamara Shelters Private Limited.
VII. M/s Karnataka Industrial Area Development
Board, by notification dated 24.10.2007 acquired land
measuring 5.04 acres from out of 15.680 acres
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belonging to the petitioner for ‘Namma Metro’ project, a
public purpose, proposed by M/s Bangalore Metro Rail
Corporation Limited (‘BMRCL’ for short). Consequent
upon the acquisition and delivery of possession of
property, BBMP effected change of katha in the name of
M/s BMRCL to that extent of land. Petitioner along
with group company, namely, M/s Mantri
Infrastructures Private Limited, entered into a
concession agreement with BMRCL to construct a metro
station at Swastik at its own cost together with other
constructions as stipulated in the terms and conditions
therein.
VIII. Petitioner applied for and obtained from BBMP
sanction of building plans to put up residential
apartments consisting of four wings/blocks each having
ground plus 18 upper floors and a commercial complex
consisting of two basements plus two ground plus three
upper floors and having put up construction, BBMP
issued occupancy certificates where afterwards, the
residential units in the buildings were conveyed to
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purchasers who are in possession and enjoyment, while
the commercial complex is said to be in possession of
third parties who carry on business therein.
IX. The State Government though issued a declaration
of a Revised Master Plan (‘RMP’ for short) under the
Karnataka Town and Country Planning Act, 1961,
nevertheless did not provide for widening of Sampige
Road by four metres, by acquiring land adjoining the
road, belonging to private parties, including that of the
property belonging to petitioner. Respondent/ BBMP, it
is asserted, took a stand that widening of the said road,
in the absence of a clearance from the Government, was
not permissible.
X. Despite the stand of BBMP, its officials, without
prior notice, demolished a portion of the ramp
compound and other portions of the property on
01.06.2011 at about 6.00 am which was resisted by the
petitioner who instituted W.P.No.19757/2011, whence
this Court issued an interim order of stay of further
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demolition and by final order dated 05.03.2013
disposed of the petition by recording thus:
“Taking on record the affidavit dt. 5.3.2013 of
Sri.Siddaiah, Commissioner of the Bruhat
Bangalore Mahanagara Palike expressing
remorse for having removed a portion of the
compound belonging to the petitioner and the
action on the part of the officials of the BBMP
which the learned Sr.counsel for the petitioner,
on instructions, submits may be accepted,
nothing further survives for consideration in
this petition.
2. Sri.K.N.Puttegowda, learned counsel for
BBMP submits that action under the Land
Acquisition Act, 1894, for short ‘Act’ for
acquisition of 4 mtrs wide land belonging to the
petitioner will be initiated, for a public purpose
i.e. formation of a road, invoking Section 17 of
the Act, in view of the extreme urgency, and
would conclude the proceeding by drawing an
award within six months time from today.
Learned Sr.counsel for the petitioner has no
objection to the course of action of the BBMP
except for the petitioner filing objections, if
necessary, over the quantum of compensation
which the BBMP, in accordance with law has to
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make a reference to the Civil Court for
adjudication over enhancement of
compensation. The submission of the learned
counsel for the parties is recorded and the
BBMP is reserved the liberty to cause necessary
notifications under the Act for for acquisition of
the portion of the property of the petitioner. It
is needless to state that since the urgency
clause is likely to be invoked, the respondent-
BBMP is directed to ensure issuance of
notifications under the Act and take possession
not earlier thereto, in accordance with law and
issue the notification under Section 16(2) of the
Act.
Petition is accordingly disposed of.”
XI. The Joint Commissioner of the first respondent/
BBMP issued a show cause notice dated 30.06.2011
informing constitution of a Joint Enquiry Committee
and called upon the petitioner to clarify over the
allegations of having acquired land not belonging to it
which was responded to by a reply. Following the report
dated 19.08.2011 of the Joint Committee, the Joint
Commissioner issued notice dated 27.08.2011 to show
cause as to why the khatha should not be cancelled by
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invoking Section 114-A of the KMC Act, whence, the
report as well as the notice are called in question in
W.P.No.34636-638/2011 on the premise that khatha
once issued on 16.08.2005 cannot be revoked three
years there afterwards, in view of the prescription of
limitation under Section 114-A of the KMC Act.
XII. On the complaint dated 20.09.2011 of the BBMP,
the Commissioner of Survey Settlement and Land
Records sought to enquire into the allegations of
inclusion of certain areas by the petitioner, not
belonging to it, as indicated in the Joint Committee
Report dated 19.08.2011, following which the said Joint
Commissioner issued a notice dated 13.01.2012
informing that the Commissioner, BBMP, as well as the
Assistant Director of Land Records submitted a report
that the enquiry officer’s order dated 17.10.1975 over
CTS No.3593 was defective, and that the State
Government was interested in rectifying the mistake,
hence, the initiation of suo-motu revision proceeding
calling upon the petitioner to appear on 28.01.2012,
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which proceeding is called in question in W.P.Nos. 7242
and 8303/2012 on the premise that under the proviso
to Section 56 of the Karnataka Land Revenue Act, 1964
(‘KLR Act’ for short) the limitation prescribed for
exercising power of revision is three years from the date
of order sought to be revised.
XIII. Petitioner preferred W.P.Nos.27467 and
27661/2012 for a writ of mandamus restraining the
BBMP from making any claim or interfering with its
peaceful possession and enjoyment of the aforesaid
immovable properties on the basis of the Joint
Committee Report, dated 19.08.2011.
XIV. The rejection of petitioner’s application dated
08.06.2012 for revalidation of the TDR certificate upon
payment of the required fee by communication dated
24.08.2012, on the allegations contained in the Joint
Committee Report dated 19.08.2011 is called in
question in W.P.No.33033/2012 on the premise that
condition no.5 in the notification dated 18.01.2005 of
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the State of Karnataka gazetted on 03.02.2005 requiring
re-validation of the certificate every five years is ultra-
vires the Constitution of India and that BBMP has no
right in law to direct the petitioner to fully utilize the
development rights within five years from the date of
issue of the certificate. In addition, petitioner sought for
a direction to the BBMP to accord sanction to the
integrated development plan of Swastik Metro Station
on the basis of the plan submitted by the petitioner and
BMRCL.
2. (a) W.P.No.33033/2012 is opposed by filing
statement of objections of the respondent/BBMP inter-
alia seeking to support the action as fully justified and
not calling for interference. The rejection of the
application to re-validate the TDR certificate, it is said,
is based upon Joint Committee Report dated
19.08.2011 and consequent proceedings. According to
the respondent, allegations were made by several public
representatives over encroachment by the petitioner of
Government tank bed, public road and railway property,
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which are not the properties belonging to the petitioner
and an allegation that TDR certificate was obtained after
surrendering extent of land not belonging to the
petitioner, hence BBMP constituted a committee
comprising of three Deputy Commissioners, i.e., Estate,
Health and; Land Acquisition who it is said, conducted
a survey of CTS No.3593, however, without notice to the
petitioner, compared the extent of land shown in a
village map and pointed out several discrepancies in the
Joint Committee Report dated 19.08.2011. It is the
assertion of respondent/BBMP that the said report is
“recommendatory” and yet to be tabled before the
Corporation Council. As regards condition No.5 in the
Government Notification dated 03.02.2005 that TDR
certificate is valid for five years and should be re-
validated every five years, it is submitted that petitioner
having accepted the said term amongst others, was
issued with the certificate hence, cannot be allowed to
turn round and question the said condition and
therefore, estopped from challenging the said condition.
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At paragraph-6 of the statement of objections,
respondent/ BBMP states that the integrated
development plan for Swastik Metro Station is under
active consideration and that necessary orders would be
passed there on under the KMC Act, building bye-laws
and it was pre-mature for the petitioner to approach the
Court for a writ of mandamus.
(b) The State Government filed its statement of
objections dated 31.07.2013 inter-alia contending that
surrender of land in lieu of payment of compensation
being voluntary, not compulsory and being optional,
under Section 14-B of the KTCP Act, petitioner having
accepted condition No.5 of the terms and conditions for
issue of TDR, cannot be permitted to call in question the
said condition. In addition, it is contended that the
condition does not impinge upon any constitutional or
statutory right of the petitioner but “enables the local
authority for proper monitoring of the generation and
utilization of the DRC’s and to facilitate the revision of
master plan as per Section 13D of the KTCP Act and for
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providing necessary infrastructure in areas where TDR
is utilized.” As regards the object behind insertion of
Section 14(b) of the KTCP Act, it is stated thus:
“11. Further, this Hon’ble Court, in its interim
order dated 24.04.2013, has directed to place the
objects behind the insertion of Section 14(b) to the
Karnataka Town and Country Planning Act. The
following are the objects for insertion of Section
14(b) to the Karnataka Town and Country
Planning Act.
(i) The process of acquisition of lands in
urban areas under the Land Acquisition Act, for
public purposes such as road widening,
implementation of infrastructure projects,
providing parks and play grounds,
implementation of Master Plan proposals etc.,
has led to too many legal complications
resulting in project delays and cost escalation,
thus affecting development.
(ii) In order to overcome such project delays
and cost escalation in land acquisition and to
enable a process which could be more
effectively and advantageously implemented for
acquiring land, the Government of Karnataka
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after detailed study of the situation in other
neighbouring States, introduced the
Transferable Development Rights (TDR). Cities
like Mumbai, Chennai, Pune and Hyderabad
have already successfully implemented the
same.
(iii) TDR benefits both, the land owner by
way of getting compensation for the land
surrendered and also the Authority by way of
successfully implementing not only the
proposals of Master Plan but also other
infrastructure projects.
(iv) To empower the Planning Authority to
permit;
(a) Additional Floor Area Ratio of 100
percent for the land handed over free of
cost whenever such lands are required for
road widening purposes or for formation
of new roads.
(b) Additional Floor Area Ratio upto 100
percent in case of starred hotels subject
to payment of a minimum of fifty percent
and a maximum of 100 percent of the
market value of land equivalent to the
Floor Area Ratio permitted.”
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(c) State Government filed a memo dated 05.04.2014
enclosing a copy of the general terms and conditions of
issue of Development Right Certificate of the Municipal
Corporation of Greater Bombay; statement of objections
as well as objects behind insertion of Section 14B of the
KTCP Act, w.e.f. 02.06.2004 and justification of
condition no.5 of the terms and conditions of grant of
Transferable Development Right under the KTCP Act
signed by the Director of Town and Country Planning
(in-charge), Bangalore.
(d) During pendency of this proceeding on
15.04.2013, this Court passed the following Order:
“In the light of the proceedings of the
meeting held under the chairmanship of the
Prl.Secretary to Government Urban
Development Department on 27.11.2012 in
respect of sanction of plan for building the
Metro Station Integrated with Residential and
Commercial Building as part of the PPP
between BMRCL and Abhishekh Developers
(Mantri Developer Group), Annexure-AF, the
Prl.Secretary and the Commissioner of BBMP
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are directed to comply with the decision and
report by 18.4.2013.
Government Advocate to forthwith inform
the Prl.Secretary of the said order.”
Pursuant thereto, BBMP filed a memo dated
24.04.2013 stating that in compliance with the direction
dated 15.04.2013 BBMP has decided to request the
Government to reconsider and recall the order issued in
the meeting dated 27.11.2012, however, the plan, is
accorded sanction on 30.07.2013. On the interim order
dated 16.01.2014, the TDR certificate No.3 issued to the
petitioner was re-validated by the BBMP for five years
from 02.05.2011 to 01.05.2016.
(e) W.P.Nos.34636-638/2011 is opposed by filing
statement of objection of respondent/BBMP inter-alia
contending that the Joint Committee Report dated
19.08.2011 is yet to be deliberated upon and therefore,
the challenge to it is pre-mature. As regards the show
cause notice to cancel the khatha, it is said without a
response in writing by the petitioner and since no
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adverse decision is taken, petitions are pre-mature,
while the direction to restrain the respondents from
interfering with petitioner’s business activities is more
in the nature of injunction, hence must be relegated to
the Civil Court. It is further stated that property
bearing CTS No.3593 on Platform Road, originally
belonged to M/s MSMML which was taken over as a
sick textile industry by M/s NTC, while the properties
were assigned CTS Nos.3593, 3596 and 908. At
paragraph 5, it is admitted that NTC executed sale
deeds conveying the immovable properties in favour of
the petitioner. It is reiterated that several allegations
were made by “various sections of society” over alleged
encroachment by the petitioner upon the properties
belonging to the Government, railways and other
authorities and therefore, the Joint Committee was
constituted. The allegations of encroachment,
according to the respondent, appeared in several
newspapers and the Joint Committee before
commencement of the enquiry issued notice dated
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30.6.2011 which was responded to by the petitioner by
way of reply dated 5.7.2011. It is further reiterated that
a survey was conducted, and “on verification of the
village maps and revenue records” led to the Joint
Committee submitting a detailed report. It is the
allegation of the respondent-BBMP that NTC Ltd.,
owned 15 acres 19 ¼ guntas but the sale was in respect
of 18 acres 27½ guntas, while the physical survey
disclosed that petitioner was in actual occupation of an
area measuring 19 acres 1½ guntas. In addition, it is
stated that the Joint Committee report indicated that an
area shown as Bangalore-Tumkur road in village map
measuring 2 acres 31 guntas; Halla measuring 4
guntas; kere (tank) measuring 35 guntas and
Government land abutting the railway line measuring
32 guntas were illegally included in the sale deeds
executed by NTC in the sale transaction. Additionally, it
is stated that apart from the aforesaid properties,
railway properties were encroached upon and in all,
government land measuring 4 acres 24 guntas was
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encroached upon by the petitioner. At paragraph 8, it is
stated that the Memorandum of Understanding (MOU)
entered into between the petitioner and BMRCL for
construction of the metro station along with commercial
units is in respect of property measuring 5 acres 4
guntas forming part of CTS 3593 and the Joint
Committee unearthed an extent of 1 acre 34 guntas
including 28 guntas as belonging to the railways and
not to the petitioner though included in the MOU and
therefore, the BBMP has taken the issue with regard to
the development of an extent of 1 acre 34 guntas with
BMRCL. At paragraph 9, it is stated that 3 acres of land
in CTS 3593 was allegedly handed over to the BBMP for
construction of the road for citizens to approach the
metro station when Transfer Development Right (TDR)
certificate equivalent to 1.5 times the area relinquished
by the petitioner for the said road was issued. That,
petitioner when found not to own or possess the said
extent of land, is disentitled to TDR certificate.
According to the BBMP, the land surveyed for
28
construction of the road when superimposed on the
village map, discloses encroachment of 28 guntas
belonging to railways; 21½ guntas of a tank; 1 acres 3
guntas of the erstwhile Bangalore-Tumkur road and 28
½ guntas private land. At paragraph 10, it is stated
that after several years some factual aspects regarding
ownership of the properties belonging to MSMML and
NTC, railways and government in CTS 3593 surfaced,
which was reported by the Joint Committee in its
report. It is said, BBMP is yet to take a decision over
the said matter and that only after deliberation
necessary action would be initiated and the petitioner
cannot prempt the corporation from acting upon the
Joint Committee report. It is further alleged that the
notice dated 27.8.2011 is to put on notice the petitioner
and to elicit clarification so as to pass orders over
continuation of the katha or otherwise. It is lastly
stated that petitioners having suppressed relevant
material facts and obtained TDR certificate, are not
entitled to any of the reliefs.
29
3. Having heard learned Sr.counsel Sri.Udaya Holla
for the petitioners, learned Sr.counsel Sri.Ashok
Haranahalli for BBMP and the learned AAG, perused
the pleadings and examined the order rejecting
petitioners’ claim for renewal of TDR, the notification
issued under Section 14-B of the KTCP Act, the Joint
Committee report dt. 19.8.2011, the notice of suo motu
revision and notice under Section 114-A of the KMC Act
and the statutory provisions, the following points arise
for consideration:
I) Whether in the light of prescription of
time under Section 114-A of the KMC
Act, the BBMP is justified in issuing
notice dated 28.7.2011 to revoke khata
dt. 16.8.2005 of the immovable
properties standing in the name of the
petitioner?
II) Whether the constitution of the Joint
Committee consisting of the Deputy
Commissioner (Estate); Deputy
Commissioner (Health) and Deputy
Commissioner (Land Acquisition)
investing jurisdiction to conduct an
independent enquiry including survey of
30
the lands in CTS No.3593 belonging to
the petitioner, without involving the
petitioner at every stage of such enquiry
and survey and “comparing the extent of
land purchased by the petitioner” from
M/s NTC by superimposing it on an
alleged village map, followed by
submission of a report dated 19.8.2011
alleging that petitioner encroached upon
the lands belonging to railways,
Bangalore-Tumkur road, water tank and
government land, is legal, valid and has
the force of law ?
III) Whether in the light of the order dated
17.10.1975 of the Survey officer
certifying the extent of land in CTS 3593
belonging to the erstwhile M/s MSMML
taken over by M/s NTC and put to
auction whence petitioner purchased the
properties in a public auction, regard
being had to the proviso to Section 56 of
the KLR Act, the Joint Commissioner of
City Survey and Settlement was justified
in initiating suo-motu Revision No.2/11-
12 by issuing notice dated 13.01.2012 on
the complaint dated 20.9.2011 of the
31
BBMP allegedly based upon the Joint
Committee report dated 19.8.2011?
IV) Whether on the basis of the Joint
Committee report dt. 19.8.2011 the
BBMP is justified in interfering with
petitioners’ peaceful possession and
enjoyment of the immovable property in
CTS No.3593 ?
V) Whether the BBMP was justified in
rejecting petitioners request for renewal
of TDR certificate NO.3 dated 2.5.2006 by
communication dated 24.8.2012 on the
premise of the report dated 19.8.2011 of
the Joint Committee ?
VI) Whether the BBMP was justified in not
according approval/sanction to the
integrated plan submitted by petitioner
and BMRCL for integrated development
and construction of Swastik Metro
Station despite the decision of the
Principal Secretary, Urban Development
Department (UDD) as a Chairman in the
meeting held on 27.11.2012 ?
VII) Whether condition No.5 in the
Government Notification dated 3.2.2005
32
duly gezetted is ultra vires the
Constitution of India as asserted by the
petitioner ?
POINT NO.I:
Facts not being in dispute there is no necessity to
reiterate the same, suffice it to notice that though
Section 114-A of the KMC Act invests a review
jurisdiction in the Commissioner, BBMP, nevertheless
prescribes a period of limitation of three years from the
date of order recording transfer of title sought to be
reviewed. In the instant case there is no dispute that
recording the transfer of title in favour of the petitioner
was on 16.8.2005 while the predecessors-in-title viz.,
M/s NTC was during the year 1975 and that M/s
MSMML was wayback during the regime of the
Maharaja of the State of Mysore, by the erstwhile City
Municipality when CTS No.3593 was assigned to the
properties by the then Survey and Settlement
Authorities. Therefore, notice dt. 28.7.2011 of the
BBMP to reopen the case and pass such orders with
respect thereto as Commissioner thinks fit by exercising
33
a review jurisdiction is without jurisdiction and dehors
competence, being beyond the period of limitation. The
initiation of the proceeding for review by the
Commissioner, BBMP is tainted with arbitrariness,
colourable exercise of power, illegal and unsustainable.
The first point for consideration is answered in the
negative and against the BBMP holding that there is no
justification to issue the notice dt. 27.8.2011 invoking
Section 114-A of the KMC Act.
POINT NO.II.
(i) The KMC Act and Rules framed thereunder do not
envisage the constitution of a joint enquiry committee
by the commissioner, BBMP. Assuming that the
Commissioner in exercise of his general power of
superintendence did have jurisdiction to constitute a
committee in the matter of administration of the
corporation nevertheless no such power is shown to
invest a jurisdiction in the committee to go into the
legality and validity of the unsubstantiated allegations
made by “various sections of society”, into the properties
34
belonging to the erstwhile M/s MSMML taken over by
the M/s NTC under the provisions of Sick Textile
Undertakings (Nationalisation) Act, 1974 so as to undo
what had been done, sanctioned, permitted and
authorized by the then Municipality followed by
Corporation of the City of Bangalore, and later by the
Bangalore City Corporation and finally by the BBMP.
(ii) There is no dispute that the Deputy Commissioner
(Estate) custodian of all relevant material particulars of
all properties belonging to the Corporation, if vested in
it, to ascertain as to whether petitioner had, in fact,
usurped the properties belonging to the corporation.
The jurisdiction if any of the Deputy Commissioner
(Estate) would rest on the properties belonging to the
BBMP as have been transferred to it by the government
and in order to safeguard such properties Commissioner
ought to have taken recourse to Section 178-A o the
KMC Act relating to decisions of claims on and behalf of
the corporation. Hence the constitution of the joint
committee perse is not only arbitrary, capricious but is
35
colourable exercise of power and the illegality is
pulsating calling for interference.
(iii) Yet another reason to hold that the committee had
no jurisdiction to enquire into and submit a report is
the fact that the committee is said to have conducted a
survey of CTS No.3593, a duty obligated on the
Commissioner for survey and settlement in the State of
Karnataka under the Land Revenue Act. When a
statutory authority is empowered to discharge its duties
in the matter of survey of all properties in the State of
Karnataka, it is not known as to why the Deputy
Commissioners of Estate, Land Acquisition and Health
of BBMP undertook jointly to conduct a survey of the
properties belonging to the petitioner. More so, in the
light of the fact that on the date when the khata was
made in respect of CTS No.3593, the then State of
Mysore was under the Maharaja and within the
jurisdiction of the Municipality, followed by the
Corporation, hence, no justifiable reasons are
36
forthcoming to undo all that was done in the previous
past by the very same authority.
(iv) Again it is not the case of the BBMP that the joint
committee was required to investigate into properties
belonging to BBMP, but as noticed supra, it is alleged
that the properties belong to the railway board, a Kunte
to the government of Karnataka and an alleged road
between Bangalore and Tumkur also belonging to the
State of Karnataka. If that is so, and if the properties
are not vested in the BBMP then, there was no reason
or justification to hold an enquiry by the constitution of
a Joint Committee.
(v) The report must suffer for yet another reason that
it militates against the principles of audi alteram partem
i.e. principles of natural justice, in not extending
reasonable opportunity of hearing to petitioners, M/s
NTC, the erstwhile title holder as well as M/s MSMML
who continued to be the owners in possession of the
properties in CTS No.3593.
37
(vi) Suffice it to notice that the constitution of the
Joint Committee is illegal, without authority of law, and
the effort of three officers of the BBMP have only
resulted in wasteful public time.
The second question is answered accordingly
holding that the constitution of Joint Committee and its
report are illegal, invalid and have no force of law.
POINT NO.III:
(i) If regard is had to the proviso to Section 56 of the
Karnataka Land Revenue Act, the initiation of suo motu
revision by the Joint Commissioner of Survey and
Settlement against the order dated 17.10.1975 of the
Survey Officer over CTS No.3593 belonging to the
petitioner, by issuing notice dt. 13.1.2012 is beyond the
period of limitation. Proviso to Section 56 prescribes
the period of limitation of three years from the date of
order sought to be revised.
(ii) In that view of the matter, answer to point No.3 is
in the negative holding that there was no justification
38
for the Joint Commissioner, Survey and Settlement to
initiate suo motu revision proceedings, that too on the
basis of a compliant dt. 20.9.2011 of the BBMP said to
be on the basis of the Joint Committee report dt.
19.8.2011.
POINT NO.IV:
Having recorded a finding that the constitution of
the Joint Committee and the report are illegal and the
report has no force of law, it is needless to state that the
BBMP was not justified in interfering with the
petitioners’ properties in CTS No.3593 and therefore,
the point is answered accordingly.
POINT NO.V:
For the very same reason that the constitution of
the Joint Committee and its report is held to be illegal,
there is no justification for the BBMP to have relied
upon such a report to decline the petitioners’ request for
renewal of TDR certificate No.3 dated 02.05.2006 in
terms of Section 14-B of KTCP Act and notification
39
issued thereunder. The said point is answered
accordingly.
POINT NO.VI:
(i) The integrated development plan for construction
of Swastik Metro station, submitted both by the
petitioner and M/s BMRCL was required to be
considered by the respondent-BBMP on the basis of the
decision of the Prl. Secretary, Urban Development
Department, State of Karnataka as Chairman in the
meeting held on 27.11.2012, as also in accordance with
the Building Bye-laws 2003 under the KMC Act. The
BBMP exhibited inertia in the matter of consideration of
the said plan for sanction, by its dilatory tactics despite
the directions of the Prl. Secretary, Urban Development
Department. A perusal of the Building Bye-laws 2003
clearly discloses that an obligation is cast upon the
BBMP to consider the plan and either accord sanction
in its original form or as modified or decline to accord
sanction, while there is no provision for procrastination.
The assertion of the BBMP in its statement of objections
40
that pursuant to the directions of this court in the order
dt. 15.4.2013 to comply with the decision of the Prl.
Secretary, Urban Development Department opinion was
sought from the officers of the BBMP further fortifies the
view of this court that there was no proper
consideration of the plan as required under the Building
Bye-laws 2003 since the said Building Bye-laws do
neither provide for discussion of such plan nor an
opinion by the officers of the BBMP. Be that as it may,
even if the decision of the Secretary, UDD of the State of
Karnataka is not taken into consideration nevertheless
a duty is cast upon the BBMP to ensure that every plan
for construction of a building when placed before it
must have its consideration in accordance with the
Building Bye-laws 2003. Suffice it to notice that due to
procrastination by the respondent-BBMP over the
consideration of the integrated plan for construction of
Swastik Metro station has resulted perhaps in increase
in the cost of inputs for construction. The answer to the
said point is in the negative holding that BBMP was not
41
justified in not considering and according sanction of
the building plan.
POINT NO.VII:
(i) It is relevant to extract Section 14-B of KTCP Act
which reads thus:
“14B. Benefit of development rights.- Where
any area within a local planning area is required
by a Planning Authority or local authority for a
public purpose and the owner of any site or land
which comprises such area surrenders it free of
cost and hands over possession of the same to the
Planning Authority or the local authority free of
encumbrances, the planning authority or the local
authority, as the case may be, may
notwithstanding anything contained in this Act or
the regulations but subject to such restrictions or
conditions as may be specified by notification by
the State Government, permit development rights
in the form of additional floor area which shall be
equal to one and half times of the area of land
surrendered. The development right so permitted
may be utilised either at the remaining portion of
the area after the surrender or anywhere in the
local planning area, either by himself or by
transfer to any other person, as may be
42
prescribed. The area remaining after surrender
shall have the same floor area which was available
before surrender for the original site or land as per
regulations.
Explanation.-
For the purpose of this section,-
(a) Public purpose means.-
(i) widening of an existing road or formation
of a new road;
(ii) providing for parks, playgrounds and
open spaces or any other civic amenities;
(iii) maintaining or improving heritage
building or precincts notified by the State
Government.
(iv) any other purpose notified by the State
Government from time to time.
(b) “development right” means the right to carryout
development or to develop land or building or both.
Illustration No.1:
In a plot area of 500 square meters at road “A”, where floor area ratio is 1.5.-
i Plot area 500 square meters
ii Permissible floor area
ratio
1.5
43
Iii Buildable floor area 500 x1.5 =750 square meters
iv Area surrendered 100 square meters
v Additional floor area in the form of Development Rights
150 square meters
vi Plot area after surrender 500-100=400 square
meters
vii Buildable floor area in plot area of 400 square meters (after surrender):-
(a) If additional floor area is not utilised in the same plot (b) If additional floor area is utilised in the same plot
750 square meters 750+150 = 900 square meters
Illustration No.2: In a plot area of 500 square meters at road “B”, where floor area ratio is 0.75:-
i Plot area 500 square meters
ii Permissible floor area ratio
0.75
Iii Buildable floor area 500 x0.75 =375 square meters
iv Area surrendered 100 square meters
v Additional floor area in
the form of Development Rights
150 square meters
vi Plot area after surrender 500-100=400 square meters
vii Buildable floor area in plot area of 400 square meters (after surrender):- (a) If additional floor area is not utilised in the same plot
375 square meters
44
(b) If additional floor area is utilised in the same plot
375+150 = 525 square meters
Illustration No.3: In a plot area of 500 square meters at road “C”, where floor area ratio is 0.75 and Development Right of 150 square meters originated at road “A” is transferred.-
i Plot area 500 square meters
ii Permissible floor area ratio
0.75
Iii Buildable floor area 500 x0.75 =375 square meters
Iv Additional floor area transformed from road
‘A'
150 square meters
v Total Buildable floor area
375+150=525 square meters
(emphasis supplied)
(ii) Prescription is found in the Government
Notification dated 18.1.2005 gazetted on 3.2.2005 and
the relevant portion i.e. condition No.5 reads thus:
“1. xxxxx
2. xxxxx
3. xxxxx
4.xxxxx
5. The DRC shall be valid for a period of five
years. However, the same may be revalidated for
a further period of five years subject to payment
of revalidation fee.”
45
(iii) Though the aims and objects of the prescription
are not found in the notification nor did the State
Government make available such aims and objects for
the notification, nevertheless the State Government in
its memo dated 5.4.2014 under the signature of the
Director of Town and Country Planning (In-charge)
states that the object behind insertion of Section 14-B
of the KTCP Act w.e.f. 2.6.2004 is that the process of
acquisition of land in urban area under the Land
Acquisition Act for public purposes such as road
widening, implementation of infrastructure projects,
providing parks and play grounds, implementation of
Master Plan proposals etc., led to too many legal
complications resulting in delay in projects and cost
escalation affecting development and in order to
overcome the difficulties the Govt. of Karnataka having
had a detailed study of the situations in the
neighbouring States introduced the Transferable
Development Rights and further that “TDR benefits
both, the land owner by way of getting compensation
46
for land surrendered and also the authority by way of
successful implementation not only the proposals of the
master plan but also infrastructure projects.”
(iv) As regards justification over condition No.5, the
Director of Town and Country Planning (in-charge)
states that:
(a) TDR is additional development right
(additional FAR) allowed to be constructed over
and above the permissible floor area of the
remaining portion of the land after surrender or
allowed to be transferred to any other eligible
land (as prescribed);
(b) the utilization of TDR increases the density of
construction in the areas where TDR is utilized
over and above the permissible FAR prescribed in
the master plan;
(c) the utilization of TDR is purely driven by the
real estate market and thus TDR would be
utilized by the builders where there is no real
47
estate demand for constructions made using
TDR
(d) that such additional areas are constructed
using TDR, it would create additional land on the
infrastructure such as roads, power supply,
water supply, UGD, etc., and also traffic
management of such areas;
(e) it becomes obligatory on the part of the
Planning Authority to timely monitor such
additional growth due to utilization of TDR and
to make suitable changes in the permissible FAR
limits for those areas during the revision of
Master Plan;
(f) Under Section 13-D of the KTCP Act, 1961
atleast once in every 10 years, the Planning
Authority shall initiate action to revise the
Master Plan for which information regarding the
potential growth centres and the utilization of
TDR is very much necessary. Accordingly a
48
reasonable time limit be prescribed for the
validity of utilization of TDR;
(g) If the TDR is utilized within a reasonable
timeframe of five years, there would be proper
balance between TDR generated and TDR
utilized;
(h) If no time framed is prescribed for utilization
of TDR it increases unwanted speculation and
holding of TDR in any particular area, of
excessive floor area is constructed using TDR, all
of a sudden due to market demand, it could
create chaotic situation, since provisions to
enhance the infrastructure and to make suitable
revision in the Master Plan is a very time
consuming exercise.
(v) There is force in the submission of Sri Kantharaj
learned Addl. Advocate General and
Sri.Ashokharanahalli, learned Senior Counsel for the
respondents that petitioner having exercised its option
49
under Section 14-B of KTCP Act to voluntarily surrender
the land belonging to it and having obtained the TDR
certificate No.3 dated 3.2.2005, followed by an
application for its revalidation at the end of fifth year,
fully aware of condition No.5 thereunder cannot at this
stage question the validity of the said condition.
Keeping open the constitutional validity of
condition No.5 to be considered in an appropriate
proceeding, the point is accordingly answered.
In the result, W.P.No.33033/2012 is allowed in
part. W.P. Nos.7242/12 & 8303/12, W.P.Nos.27467/12
and 27661/12, W.P.Nos.34636-34638/11 are allowed.
Impugned orders, notices and Joint Committee report
are quashed.
Sd/- JUDGE
kcm/ln
2014-07-02T15:10:52+0530ANAND N