Karnataka High Court
M/S. White Feather vs The State Of Karnataka on 4 June, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 04.04.2024
Pronounced on : 04.06.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.28077 OF 2015 (GM - RES)
BETWEEN:
M/S. WHITE FEATHER
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT
NO.42, 13TH CROSS, HANUMAIAH LAYOUT
SANJAY NAGAR
BENGALURU - 560 094
REPRESENTED BY ITS PARTNER
SRI VASUDEVA UDUPA.
... PETITIONER
(BY SRI K.G.RAGHAVAN, SR.ADVOCATE A/W
SRI B.S.RADHANANDAN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
M.S.BUILDING, AMBEDKAR BEEDHI
BENGALURU - 560 001
REPRESENTED BY ITS SECRETARY.
2
2. THE BANGALORE-MYSORE INFRASTRUCTURE
CORRIDOR AREA PLANNING AUTHORITY
2ND FLOOR, GATE-4, M.S.BUILDING
AMBEDKAR BEEDHI
BENGALURU - 560 001
REPRESENTED BY ITS
MEMBER SECRETARY AND
ADDITIONAL DIRECTOR OF TOWN AND
COUNTRY PLANNING.
3. M/S. NANDI ECONOMIC CORRIDOR
ENTERPRISES LIMITED
A COMPANY REGISTERED UNDER
COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
NO.1, MIDFORD HOUSE
MIDFORD GARDEN, OFF.M.G.ROAD
BENGALURU - 560 001
REPRESENTED BY ITS
AUTHORIZED SIGNATORY
MR.SRINATH MANGALURU.
... RESPONDENTS
(BY SMT.NAVYA SHEKHAR, AGA FOR R1;
SRI YOGESH D.NAIK, ADVOCATE FOR R2;
SRI PRABHULING K.NAVADGI, SR.ADVOCATE A/W
SRI SHANTALINGAYYA B.MATHAPATI, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
FINAL NOTICE DATED 16.6.2015 PASSED BY THE R-2 AT
ANNEXURE-M.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 04.04.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
The petitioner is before this Court calling in question a final notice dated 16-06-2015 issued by the 2nd respondent/ Bangalore- Mysore Infrastructure Corridor Area Planning Authority (hereinafter referred to as 'the Authority' for short).
2. The facts, in brief, germane are as follows:-
The 3rd respondent is M/s Nandi Economic Corridor Enterprises Limited ('NECEL' for short). It is a Company incorporated under the Companies Act, 1956. It claims to have engaged in implementation of Bangalore-Mysore Infrastructure Corridor Project comprising of several kilometers. The 3rd respondent enters into a framework agreement (hereinafter referred to as 'the agreement' for short) on 03-04-1997 with the Government of Karnataka. Under the said agreement the 3rd respondent had certain rights over the land in the surrounding of the peripheral ring road. It is the claim of the 3rd respondent that all the litigations against the said framework agreement had ended 4 in its favour up to the Apex Court. The issue in the lis does not pertain to the framework agreement or its interpretation.
3. The petitioner, a partnership firm engaged in the business of events management, desirous of taking certain pieces of land which comes within the rights of the 3rd respondent in terms of the framework agreement, enters into a contract with the 3rd respondent for erection of temporary structure in lands bearing Sy.Nos.40, 41/1 41/2, 42/1 and 42/2 measuring 1 acre 27.25 guntas in Beretena Agrahara Village, Begur Hobli, Bangalore South Taluk. Under the out-line development plan, it is claimed that the 3rd respondent has a right to enter into such agreement in terms of permitted commercial land use of the land coming within the framework agreement. Pursuant to the said right and the desire of the petitioner to take the aforesaid land for conducting events by erecting temporary structure, enters into the aforesaid agreement. The Planning Authority/2nd respondent noticing the fact that there is development in the land and the said development has taken place without the permission of the Planning Authority, issues a show cause notice on 04-05-2015 calling upon the petitioner to produce 5 certain documents viz., commencement certificate and sanctioned plan for putting up structures in the subject property described hereinabove. The petitioner claims to have furnished a reply on 14-05-2015 by producing plethora of documents indicating that it was a temporary fabrication and there is no need to obtain any plan sanction for construction nor a commencement certificate is required for a temporary structure. The 2nd respondent issues a final notice on 16-06-2015 directing the petitioner to remove the structure which according to the 2nd respondent was unauthorized. It is this notice that has driven the petitioner to this Court in the subject petition. This Court, on 08-07-2015, granted an interim order as prayed for, in favour of the petitioner, which is in subsistence even as on date. Therefore, for the last 9 years the activity of the petitioner and event management activities of the petitioner have gone on unhindered.
4. Heard Sri K.G. Raghavan, learned senior counsel appearing for the petitioner, Smt. Navya Shekhar, learned Additional Government Advocate appearing for respondent No.1, Sri Yogesh D. Naik, learned counsel appearing for respondent No.2 6 and Sri Prabhuling K. Navadgi, learned senior counsel appearing for respondent No.3.
5. The learned senior counsel Sri K.G. Raghavan appearing for the petitioner would vehemently contend that the Planning Authority has no jurisdiction to issue the impugned notice, as prior to issuance of the notice it has to pass the rigours of the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as 'the Act' for short) and the Karnataka Town and Country Planning Rules, 1965 (hereinafter referred to as 'the Rules' for short) framed thereunder. It is the submission of the learned senior counsel that the structure that is put up is without doubt a temporary one, as it is by fabricating iron and a temporary shed purely for the purpose of managing events temporarily. The necessity of the land will be as per the necessity of events; it can vary in its size and dimension at any given point of time. Therefore, it cannot be construed to be permanent structure. There is no foundation laid and there is no construction made for the structure to construe it to be a permanent one. If there is no development as required under the Act, the Planning Authority would not get jurisdiction to interfere 7 with the activities of the petitioner or the like. The learned senior counsel would also take this Court through the Zonal Regulations notified under the Act to contend that, what does a building would mean is already defined and the said definition would not fit into what is now erected as a temporary structure. He would seek quashment of the notice by allowing the writ petition.
6. Per contra, the learned counsel for the Planning Authority/respondent No.2 Sri Yogesh D. Naik would vehemently refute the submissions to contend that any alteration, be it temporary or permanent in the agreement, usage of the land will require permission from the 2nd respondent. He would contend that the definition of development would include both temporary and permanent structures in the subject property, which has to pass through the rigours of the Act and the Rules. It is an admitted fact that no permission is sought from the hands of the Planning Authority. Therefore, the notice cannot be found fault with. It was for the petitioner to remove the structure in the subject property as the agreement itself is contrary to law, since the Planning Authority is not in the loop. The learned counsel would place reliance upon 8 Sections 14, 15 and 17 of the Act to buttress all his submissions and the judgment of the Division Bench of this Court in the case of KRISHNEGOWDA v. M/S BANGALORE-MYSORE INFRASTRUCTURE CORRIDOR AREA PLANNING AUTHORITY1 . It is his submission that the Division Bench has clearly held that a Convention Hall being built without permission of the Planning Authority would undoubtedly be violative of law. He would also place reliance upon a judgment rendered by this Court in SMT. PRABHAVATHI M. S. AND ANOTHER v. THE STATE OF KARNATAKA2.
7. The learned senior counsel Sri Prabhuling K. Navadgi representing the 3rd respondent would refute the submissions of the Planning Authority to contend that the 3rd respondent has every right to enter into an agreement to permit commercial land use in terms of the framework agreement itself, and what is under construction, according to the agreement, is a temporary structure, which would not require permission of the Planning Authority. He would take this Court through the Zonal Regulations notified under 1 2018 SCC OnLine Kar. 524 2 Writ Petition No.8859 of 2021 decided on 6th December, 2021 9 the Act. Insofar as the judgment of the Division Bench of this Court is concerned, the learned senior counsel would seek to distinguish the same, as the facts before the Division Bench were entirely different. The construction of a Convention Hall therein was without the land being converted for commercial purposes. In an agricultural land the said Conventional Hall had been erected. Therefore, the Division Bench goes on to hold that the term 'permanent' does not mean that the structure must last forever.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. The afore-narrated facts are not in dispute. Before embarking upon consideration of the lis, I deem it appropriate to notice clauses of the framework agreement, which is the genesis of the right of the 3rd respondent. Clause 3.2.1 of the Out-Line Development Plan which led to framework agreement reads as follows:
10
".... .... ....
3.2: COMMERCIAL LAND USE
3.2.1: PERMITTED USE: Shops, Shopping complex, office complex, residential buildings / layout including apartments banks, clubs, themes, park, stock exchanges /financial institution, bakeries and confectioneries, cinema hall/theatre, kalyana mantapas, banquet halls, guest houses, restaurants, hotels, weekly market, petrol pumps, godowns and warehousing, general business, wholesale, hostel/boarding housing, banks, auditorium, colleges, hospitals, nursing homes/medical clinics, research/training institute, service centres/garages/workshops, library, parks/open spaces, museum, police stations/posts, taxi stand/three wheeler stands, parking site, post offices, Government/institutional offices, telephone exchange /centres, warehousing and covered storage, research institutions, professional computer rooms and centres and industries listed in Schedule
1."
Clause 3.2.3 reads as follows:
"..... .... ....
3.2.3 GOK covenants that it will not restrict the use of the Land in any way and that the Company shall have full freedom and discretion to industrially and commercially develop and use the Land, as generally contemplated by this Agreement, except that GOK shall zone and rezone, and shall cause to be zoned and rezoned, all Land in a manner consistent with its intended use in the Infrastructure Corridor Project as contemplated by this Agreement or as reasonably requested by the Company, all in accordance with applicable law."
(Emphasis added) 11 The permitted use for commercial purpose in the framework agreement to the 3rd respondent is erection of shops, shopping complex, office complex and so on as found in the aforesaid clause. In terms of the afore-quoted clauses claiming that the 3rd respondent has absolute right over the said usage of land enters into the agreement with the petitioner on 16-04-2015. The usage in terms of the agreement reads as follows:
"5. Usage:
This Deed is entered for utilization of Schedule Property for erecting of temporary structure/tent for conducting Expo's and Convention Center/s for the purpose of conducting Exhibitions. Lessee shall not construct any permanent structure on the Schedule Property. The Schedule Property shall not be utilized for any illegal or immoral activity and shall be utilized only after obtaining all necessary permissions from the concerned authority. The Lessee shall not store or keep or allow to keep any heavy or explosive or dangerous or prohibited or contraband articles or chemicals in the Schedule Property. The Lessee is not permitted to change the terrain of the Schedule Property without written permission of the Lessor.
Lessee shall not make any permanent change to the premise handed over to them, unless specific written permission is provided by the Lessor. Further, Lessee would be liable to indemnify Lessor for such activity."
(Emphasis added) 12 The usage under the lease deed entered into between the petitioner and the 3rd respondent is for erection of temporary structure/tent for conducting Expo's and Convention Centre/s for the purpose of conducting exhibitions. It clearly indicates that the lessee shall not construct any permanent structure on the schedule property. This attracts the eye of the 2nd respondent/Planning Authority who issues a notice to the petitioner seeking to show cause as to why action should not be taken against it for having sought no permission prior to erection of the said structure. The notice dated 04-05-2015 reads as follows:
"UÉ,
1. ೕ ೆ. ಾಸು ೇವ ಉಡುಪ ಮತು ಇತರರು ( ೈ ¥sÉದ ಕ ೆ ಂಷ ೆಂಟ 42), " ೆಳಕು", 13 ೇ ಾ ", ಆ .ಎಂ.%.ಆಸ&'ೆ ಹ)ರ, ಹನುಮಯ, -ೇಔ , ಸಂಜಯನಗರ, ೆಂಗಳ1ರು - 560094,
2. ವ,ವ ಾ3ಪಕ 4 ೇ5ಶಕರು, 7ೕ// ನಂ8 ಇ ¥sÁæಸ9PÀÑ ಎಂಟ :ೆ;ಸ" <=>ೆ?.
ನಂ. 1, =?@ೕ?5 Aೌ", ಎಂ.C. ರ ೆ, ೆಂಗಳ1ರು - 01.
Dಾನ,Eೆ,
13
%ಷಯ: ೆಂಗಳ1ರು ದFಣ 'ಾಲೂJಕು, ೇಗೂರು AೋಬL, ೆರ>ೇನ ಅಗ Aಾರ
Nಾ ಮದ ಸ.ನಂ:41/1, 2 ಮತು 42/2ರ ಜ=ೕ4ನ<J " ೈ ¥sÉದ ಕ ೆ
ಷ ೆಂಟ " ಎಂಬ AೆಸOನ ಕಟPಡ 4=5Qರುವ ಕುOತು.
ಉ-ೆJೕಖ: ಸದನ ಸ=) ಸ3ಳ ಪO ೕ<Qದ 8 ಾಂಕ: 02.04.2015 **** %ಷಯ ೆS ಸಂಬಂTQದಂ'ೆ, ಉ-ೆJೕUತ 8 ಾಂಕ: 02.03.2015ರಂದು ಪ Vತ ಕಟPಡದ ಸ3ಳ ಪO ೕ<ಸ-ಾW ಸ3ಳದ<J ಅನ¢üಕೃತ ಾW ಕ ೆ ಷ AಾY 4Dಾ5ಣNೊಂZರುವ[ದನುV ಸದನ ಸ=)ಯು ಗಮ4Q, ಸದO ಅನTಕೃತ ಕಟPಡದ %ರುದ\ ಸೂಕ ಕ ಮ ೈNೊಳ]^ವಂ'ೆ 4 ೇ5 Q ೆ. ಅಂ'ೆ_ೕ :ಾ T ಾರದ<Jನ ಾಖ-ೆಗಳನುV ಪO ೕ<ಸ-ಾW, 'ಾವ[ :ಾ T ಾರದ :ಾ ರಂ`ಕ ಪ Dಾಣ ಪತ ಪaೆ8ರುವ[ದು ಕಂಡುಬರು)ಲJ. ಆದುದOಂದ, ಪ Vತ ಜ=ೕ4Nೆ ಸಂಬಂTQದ ಭೂ ಾಖ-ೆ, Dಾ<ೕಕತ ದ ಾಖ-ೆಗcೆ1 ಂ8Nೆ ಸದO ಕಟPಡವನುV 4=5ಸಲು ಪaೆದ ಮಂಜೂEಾ) ಮತು ಪdರಕ ಾಖ-ೆಗcೆ1 ಂ8Nೆ :ಾ T ಾರ ೆS <Uತ ಸಮeಾfgಯನುV ಈ ಪತ ತಲುiದ 15 8ನಗಳ M¼ÀUÁV ಒದWಸಲು )Lಸ-ಾW ೆ ಇಲJ ಾದ<J ಈ ಬNೆk 'ಾವ[ )Lಸುವ[ ೇನೂ ಇಲJ ೆಂದು )Lದು ಾನೂ4ನZ ಮುಂ8ನ ಕ ಮ ಜರುWಸ-ಾಗುವ[ದು.
ತಮl %mಾ Q, ¸À»/-
ನಗರ ಮತು Nಾ Dಾಂತರ AiÉÆÃd£Á AೆಚುoವO
4 ೇ5ಶಕರು Aಾಗೂ ಸದಸ,- ಾಯ5ದ 5ಗಳ], ©.JA.L.¹.J.¦.J., ¨ÉAUÀ¼ÀÆgÀÄ."
The petitioner replies to the said notice indicating that it was only a temporary structure for the purpose of conduct of exhibition. The issue that attracted the eye of the 2nd respondent attracts its ire as well, which results in a final notice being issued on 16-06-2015. The final notice reads as follows:
"ಸಂqೆ,: rಎಂಐQಎiಎ/ಅ.ಕ.4/ಇತEೆ/02/2014-15 ¢£ÁAPÀ: 16 JUN 2015 14 "ಅಂ)ಮ ೋtೕ""
(ಕ ಾ5ಟಕ ನಗರ ಮತು Nಾ Dಾಂತರ uೕಜ ಾ ಾ_v, 1961ರ ಕಲಂ 15 ರZಯ<J) %ಷಯ: ೆಂಗಳ1ರು ದFಣ 'ಾಲೂJಕು, ೇಗೂರು AೋಬL, ೆರ>ೇನ ಅಗ Aಾರ Nಾ ಮದ ಸ.ನಂ:41/1,2 ಮತು 42/2ರ ಜ=ೕ4ನ<J " ೈ ¥sÉದ ಕ ೆ ಷ ೆಂಟ " ಎಂಬ AೆಸOನ ಕಟPಡ 4=5Qರುವ PÀÄjvÀÄ.
ಉ-ೆJೕಖ : 1. ಈ :ಾ ¢ü ಾರದ ೋtೕ" ಸಮಸಂqೆ, ಪತ ದ 8 ಾಂಕ: 04.05.2015
2. ತಮl ಪತ 8 ಾಂಕ:14.05.2015 ೆಂಗಳ1ರು ದFಣ 'ಾಲೂJಕು, ೇಗೂರು AೋಬL, ೆರ>ೇನ ಅಗ Aಾರ (wಾಗಶಃ) Nಾ ಮವ[ ೆಂಗಳ1ರು-7ೖಸೂರು ಇ yಾ ಸ9ಕP ಾOaಾ ಪ ೇಶ uೕಜ ಾ :ಾ T ಾರದ ಾ,iNೆ ೇOರುತ ೆ. 'ಈ uೕಜ ಾ :ಾ T ಾರದ ಾ,iಯ<J zಾವ[ ೇ ಅ`ವೃ8\ ಾಮNಾOಗಳನುV ೈNೊಳ]^ವ ಮುನV ಕ ಾ5ಟಕ ನಗರ ಮತು Nಾ Dಾಂತರ uೕಜ ಾ ಾ_v, 1961ರ ೆ{ 14, 15 ಮತು 17ರZಯ<J ಕ ಮ ಾW ಭೂ ಬದ-ಾವ|ೆNೆ (ಅವಶ,%ದv<)J , ಕಟPಡ 4=5ಸಲು ಮತು ಬaಾವ|ೆ ರಚ ೆNೆ :ಾ T ಾರ8ಂದ ಪd ಾ5ನುಮ) ಪaೆಯುವ[ದು ಕaಾ}ಯ ಾWರುತ ೆ. ಆದEೆ 'ಾವ[ ಸದO ಕಟPಡ ಕಟುPವ ಮುನV ಕ ಾ5ಟಕ ನಗರ ಮತು Nಾ Dಾಂತರ uೕಜ ಾ ಾ_v, 1961ರ ಕಲಂ 15(1)ರZಯ<J :ಾ T ಾರ8ಂದ :ಾ ರಂ`ಕ ಪ Dಾಣ ಪತ ಪaೆಯ8ರುವ[8ಲJ. ಸದO ಅನTಕೃತ ಕಟPಡದ ಬNೆk <Uತ ಸಮeಾfg 4ೕಡಲು ಉ-ೆJೕಖ(1)ರ ಪತ ದ<J ಸೂ~ಸ-ಾWತು.
ಉ-ೆJೕಖ(2)ರ ಪತ ೊಂ8Nೆ 4ೕZರುವ ಾಖ-ೆಗಳನುV ಪO ೕ<ಸ-ಾW, 'ಾವ[ ಸ<JQರುವ ಮನ%ಯ<J ಸದO " ೈ yೆದ ಕ ೆ ಷ ೆಂಟ " ಕಟPಡವ[ 'ಾ'ಾS<ಕ ಕಟPಡ ಾWದುv, 4ಗTತ ಅವTNೆ Dಾತ ಕಟPಡವನುV ಕಟP-ಾW ೆ. 4ಗTತ ಶುಲSವನುV rrಎಂiNೆ :ಾವ)Q ಾಯ5ಕ ಮಗಳನುV 4ವ5•ಸು)ದುv, ಸ ಾ5ರ ೆS :ಾವ)ಸ ೇ ಾದ ಎ-ಾJ ಕಂ ಾಯ ೆ"/ಶುಲSವನುV :ಾವ)Qರುವ[ ಾW )LQರು)ೕO. rrಎಂiಯು ಸದO ಜ=ೕ4Nೆ qಾ'ೆ 'ೆEೆದು ಕಂ ಾಯ 4ಗTಪZಸುವ[ ಾW )LQರು)ೕO. ಈ ಸಂಬಂಧ ಾಖ-ೆ 4ೕZರು)ೕO. ಇ ೇ Oೕ)ಯ ಹಲ ಾರು ಕಟPಡಗಳ] ೆಂಗಳ1ರು ಅರಮ ೆ 7ೖ ಾನದ ಆವರಣದ<Jರುವ[ ಾWಯೂ " ೈ ¥sÉದ ಕ ೆ ಷ ೆಂಟ " ಕಟPಡದ Oೕ)ಯ-ೆJೕ ಾಯ54ವ5•ಸು)ರುವ[ ಾW )Lಸ-ಾW ೆ. ಸದO ಕಟPಡವ[ ಇರುವ eಾಗವನುV ೈ"
ಕಂಪ4fಂದ ಾZNೆNೆ ಪaೆ8ರುವ[ ಾWಯೂ, ಸದO ಕಂಪ4ಯವರು ಸದO ಜ=ೕ4ನ Dಾ<ೕಕEೆಂದು )Lಸ-ಾW ೆ. ಆದEೆ, ಸ<JQರುವ ಾಖ-ೆಯಂ'ೆ ಪ Vತ ಜ=ೕನನುV ಸ ಾ5ರವ[ Stage-1 of the Infrastructure Corridor ಉ ೆvೕಶ ೆS •ತ 4ೕZದುv, 30ವಷ5ಗಳ ನಂತರ ಸದO ಜ=ೕನುಗಳನುV ಸ ಾ5ರ ೆS •ಂ8ರುWಸ ೇ ಾWರುತ ೆ. ಅಂದEೆ F.W.A ಪ ಾರ Stage-I ಅಂದEೆ 15 <ಂ‚ ರ ೆ, :ೆO¥sÉರY ರ ೆಯ ರಚ ೆNಾW Dಾತ ಾWರುತ ೆ. ಆದುದOಂದ, ೈ" ಕಂಪ4ಯು eಾಗದ ಸಂಪdಣ5 Dಾ<ೕಕEೆಂದು ಪOಗƒಸಲು ಬರುವ[8ಲJ. ತಮl ಪತ ದ<J %ವರಗಳನುV 4ೕZ ಾಗೂ, ಪ Vತ ಕಟPಡ 4Dಾ5ಣ ೆS ಈ :ಾ T ಾರ8ಂದ ಅನುಮ) ಪaೆ8ರುವ ಬNೆk ಾಖ-ೆ ಇರುವ[8ಲJ. ಆದುದOಂದ, ತಮl ಸಮeಾfgಯು ಸಮಂಜಸ ಾWರುವ[8ಲJ. ೆtQi ಾ_v, 1961ರ ಕಲಂ (2)ರನ ಯ Development JAದEೆ with its grammatical variations, means the carrying out of building. engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land or in the use of any building or land and includes sub-division of any land JAzÀÄ G¯ÉèÃT¸À¯ÁVzÉ.
ಸದO ಕಟPಡ 4Dಾ5ಣ ೆS ಸ3Lೕಯ ಸಂ ೆ3fಂದ ಅನುಮ) ಪaೆ8ರುವ[ದ ೆS zಾವ[ ೇ ಾಖ-ೆಗಳನುV ಸ<JQರುವ[8ಲJ. 'ಾ'ಾS<ಕ ಕಟPಡ ಾಗ<ೕ qಾಯಂ ಕಟPಡ (zಾವ[ ೇ ೆಳವƒNೆ) 4Dಾ5ಣ ೆS ೆ.t.Q.i. ಾ_v, 1961ರ ಕಲಂ 76ಎಂ(2)(r) ಪ ಾರ :ಾ T ಾರ8ಂದ ಅನುಮ) ಪaೆಯ ೆ ಕಟುPವ ಕಟPಡಗಳನುV ಾನೂನು ಾ•ರ ಾW 4=5Qರುವ ಕಟPಡಗcೆಂದು ಪOಗƒಸ-ಾಗುತ ೆ.
ಆದುದOಂದ, ಇದ ೆVೕ "ಅಂ)ಮ ೋtೕ"" ಎಂದು )Lದು ಈ ೋtೕ" ತಮNೆ ತಲುiದ 15 8ನಗcೆ1 ಳNಾW (ಹ8 ೈದು 8ನ) 'ಾವ[ 4=5Qರುವ ಆನ¢üಕೃತ ಕಟPಡವನುV 'ೆರವ[NೊLQ ಪ Vತ ಜ=ೕನನುV ಮೂಲQ3)Nೆ ತರಲು ಈ ಮೂಲಕ ಆ ೇ ಸ-ಾW ೆ. ತi&ದv<J ಕ ಾ5ಟಕ ನಗರ ಮತು Nಾ Dಾಂತರ uೕಜ ಾ ಾ_v, 1961 ರ<Jನ ಅವ ಾಶಗಳಂ'ೆ ಮುಂ8ನ ಕ ಮವ•ಸ-ಾಗುವ[ ೆಂದೂ )LಯಪZQ ೆ.
¸À»/-
ನಗರ ಮತು Nಾ Dಾಂತರ uೕಜ ಾ AೆಚುoವO 4 ೇ5ಶಕರು Aಾಗೂ ಸದಸ,- ಾಯ5ದ 5ಗಳ], r.ಎಂ.ಐ.Q.ಎ.i.ಎ., ೆಂಗಳ1ರು."
The final notice, as observed, is what has driven the petitioner to this Court in the subject petition.
16
10. The issue that falls for consideration is thus, whether the Planning Authority could have intervened into the erection of a temporary shed. To consider the same, I deem it appropriate to notice certain provisions of the Act and the Rules. Section 2(1c) of the Act defines 'development'. It reads as follows:
"2. Definitions.--In this Act, unless the context otherwise requires,--
... ... ...
(1c) 'development' with its grammatical variations, means the carrying out of building, engineering, mining, or other operations in, on, over or under land or the making of any material change in any building or land, or in the use of any building or land and includes sub-division of any land;"
(Emphasis supplied) The 'development' would mean carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land. Section 14 of the Act deals with enforcement of the Master Plan and the Regulations. It reads as follows:
"14. Enforcement of the Master Plan and the Regulations.--(1) On and from the date on which a declaration of intention to prepare a Master Plan is published under sub- section (1) of section 10, every land use, every change in land use and every development in the area covered by the plan 17 subject to section 14-A shall conform to the provisions of this Act, the Master Plan and the Report, as finally approved by the State Government under sub-section (3) of section 13.
(2) No such change in land use or development as is referred to in subsection (1) shall be made except with the written permission of the Planning Authority which shall be contained in a commencement certificate granted by the Planning Authority in the form prescribed.
Provided that where the use or change of land use under this section needs the diversion of agricultural land to non- agricultural purposes, such use or change of use shall not be permitted unless permission is obtained in accordance with the provisions of the Karnataka Land Revenue Act, 1964 for such diversion.
Explanation.-- For the purpose of this section,--
(a) the expression "development" means the carrying out of building or other operation in or over or under any land or the making of any material change in the use of any building or other land;
(b) the following operations or uses of land shall not be deemed to involve a development of any building or land, namely:--
(i) the carrying out of works for maintenance, improvement or other alteration of any building, being works which affect only the interior of the building or which do not materially affect the external appearance of the building;
X X X
(iv) the use of any building or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such;
(v) when the normal use of land which was being temporarily used for any other purpose on the day on which the declaration of intention to prepare the 18 outline development plan is published under sub-
section (1) of section 10 is resumed;
(vi) when land was normally used for one purpose and also on occasions for any other purpose, the use of the land for that other purpose on similar occasions. (3) Every application for permission under sub-section (2) shall be accompanied by a plan, drawn to scale showing the actual dimensions of the plot of land in respect of which permission is asked, the size of the building to be erected and the position of the building upon the plot and such other information as may be required in this behalf by the Planning Authority."
Section 15 deals with permission for development of building or land. The sheet anchor of the 2nd respondent is Section 15. Section 15 mandates that an application should be made for permission under Section 14 to the Planning Authority with regard to changes to be made in the already existing master plan, on which it is the discretion of the Authority to grant or refuse the commencement certificate on such application. Section 76M of the Act reads as follows:
"76M. Effect of other Laws.--(1) Save as provided in this Act, the provisions of this Act and the rules, regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law.
(2) Notwithstanding anything contained in any such other law,-19
(a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained;
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained."
(Emphasis supplied) Section 76M gives the Act overriding effect over any other Act which runs inconsistent with the subject Act.
11. Exercising power under the Act, the State Government has framed the Rules. Rule 37 is germane to be noticed. It reads as follows:
"37. Manner of inquiry under Section 15(4) or 17(4).- (1) An inquiry under sub-section (4) of Section 15 or sub-section (4) of Section 17 shall be conducted in the manner specified in this rule.
(2) The Planning Authority shall serve a notice in writing upon the person concerned calling upon him to show cause why he should not be directed.-20
(a) to remove or pull down the work; or
(b) to restore the land to its original condition, as the
case may be.
The notice shall specify a date not earlier than seven days from the date of its service for hearing the case.
(3) The Planning Authority, if it considers it expedient to do so, may appoint a Committee of not less than three of its members to hear such cases.
(4) Any representation which may be made by or on behalf of the person served with the notice on the date specified under sub-rule (1) or which may be received on or before such date, shall be considered. Minutes shall be kept of the inquiry so held and the decisions arrived at in such inquiry shall be reduced to writing together with reasons for the same. Reasons for the decision shall be signed by all the persons giving such decision."
Rule 37 depicts the manner in which an inquiry should be conducted for any violation of the provisions of Section 15 or 17 of the Act by any person of a land coming within the precincts of the Planning Authority. Invoking the power under Section 14 supra, Zonal Regulations are framed by the Planning Authority. The Zonal Regulations define what is a building. Regulation 2.08 reads as follows:
"2.08 Building means any permanent structure having a roof and intended for the shelter, housing or enclosure of persons, animals, or materials. Any permanent structure more than 2.5 mtrs high shall 21 be considered as a building excluding a public utility pole or flagpole."
(Emphasis supplied) Regulation 2.08 defines what is a building to be a permanent structure having a roof and intended for the shelter, housing or enclosures of persons, animals or materials. The dimension of the permanent structure is also indicated therein. Clause 1.04 contemplates procedure for obtaining commencement certificate for development. It reads as follows:
"1.04 PROCEDURE FOR OBTAINING COMMENCEMENT CERTIFICATE FOR DEVELOPMENT
(a) No person can carry out any development without obtaining commencement certificate from the Authority, unless exempted by State. Central Acts/Rules/Orders. Any permission/ commencement certificate granted by any other Authority except the BMICAPA within its LPA is deemed invalid as per provisions of Section 76(M) of the KT & CP Act.
(b) Every person who intends to carry out development shall make an application in the prescribed form as per section 15 of KTCP Act and under Rule 35 of Karnataka Planning Authority Rules, 1965. The applications shall be accompanied by:
i. For building permission
a) Key Plan (Location Plan)
b) Site Plan
c) Building Plan
d) Ownership Title
e) Up to date tax paid receipt
f) Khatha Certificate 22 ii. For Sub-Division/Layout Plan/Development Plan
(a) Key plan showing location of site with reference to public roads and land marks etc.
(b) Site Plan with existing topographical features, survey numbers and dimensions of all segments of the site. The site plan shall bear direction of north point, names of streets and width abutting the site.
(c) Contour Plan at 0.5 metre interval.
(d) Proposed Layout/Development Plan showing the roads, dimension of all plots, parks, open spaces and civic amenities.
(e) The plans showing the surface drains, UGD, water supply and electrical lines etc.
(f) Project report, which includes proposals for sewage treatment, water treatment, Rain water harvesting and solid waste disposal.
(g) Katha, Tippanni, Encumbrance Certificate and Title Deed.
(h) Conversion Certificate from the Revenue Authorities under Section 95 of the Karnataka Land Revenue Act.
(i) Up to date tax paid receipts.
All the plans shall be duly signed by the Owners and the Licensed Planner/Architect/Engineer/Structural Engineers/ Surveyor as the case may be and shall indicate their names, addresses and license number allotted by the Authority. Six sets of plans in blue prints along with the original on tracing film will have to be furnished for approval. The layout plan shall bear the table showing the no. of plots, size, area and land use analysis.
Based on the above documents the plans will be scrutinised by the Authority."
23Every person who intends to carry out development should make an application under Section 15 of the Act and Rule 35 of the Rules. A detailed procedure is narrated even under the Zonal Regulations.
12. If the definition of 'development' under the Act, 'building' under the Zoning Regulations are read in tandem, what would unmistakably emerge is, that permission under Section 15 would become applicable if any permanent structure is being erected, even if be a compound wall. Section 76M of the Act has overriding effect on other laws. Section 76M (2)(b) directs that when permission for development has not been obtained such development would be deemed to be unauthorized. Therefore, the rigour of Section 15 or the overriding of provision in Section 76M would trigger if the subject building would come within the definition of the Act, the Rules and the Regulations. In the considered view of the Court it does not fit in, as the subject structure would not fit in to any of the ingredients found in the definition of building and development found in the Act and the Regulations. If it does not fit into the definition, the jurisdiction of 24 the Planning Authority can hardly be justified to issue a notice to the petitioner.
13. The learned counsel for the 2nd respondent places heavy reliance upon the judgment of the Division Bench of this Court supra. The Division Bench in KRISHNEGOWDA's case has held as follows:
".... .... ....
6. The solitary contention urged by Shri R. Nataraj, in support of these appeals is that, the structure in question erected by the petitioner is a 'temporary structure'. He submitted that the 'Convention Hall' is constructed by using such engineering skill and material that it can be dismantled at any time. He further submitted that, the size of the Convention Hall is adjustable and it can be increased or decreased based on the requirement of hirer. He also submitted that the petitioner has taken the land on lease from its owner and obtained licence from the Panchayat Development Officer to get power connection.
7. Thus, in sum and substance, the argument of the Learned Counsel for the petitioner is that, the structure in question cannot be classified as a permanent building and therefore, the notice issued by the Planning Authority is unsustainable.
8. Shri Yogesh Naik, Learned Counsel for the Planning Authority, opposing these appeals submitted that, Explanation to Section 14(2)(a) of the Act defines development of land. The petitioner has admittedly developed the land in question by constructing the huge Convention Hall without obtaining a commencement certificate under Section 15 of the Act. 25
9. We have carefully considered submissions made by the Learned Counsel appearing for the parties and perused the records.
10. Incontrovertible facts of the case are, petitioner has constructed a 'Convention Hall' measuring 9923 square feet as discemable from the Building Plan certified by the Panchayat Development Officer, produced as annexure 'G' to the writ petitions. The photographs produced by the petitioner in 'M' series, appended to the writ petitions show that the Convention Hall is a 'State of Art' air-conditioned building with manicured lawns and sophisticated facade.
11. No material is placed on record to show that, the land in question has been converted for non-agricultural purposes. The averments contained in the writ petitions disclose that the land measures about 2 acres 34 guntas. The lease deeds produced as annexures 'B' and 'C' to the writ petitions clearly indicate that the lands in question bear revenue survey numbers.
12. Enforcement of master plan and the regulations is contemplated under Section 14 of the Act and the same reads as follows:--
"14. Enforcement of the Master Plan and the Regulations:-- (1) On and from the date on which a declaration of intention to prepare a Master Plan is published under sub-section (1) of Section 10, every land use, every change in land use and every development in the area covered by the plan subject to Section 14-A shall conform to the provisions of this Act, the Master Plan and the report, as finally approved by the State Government under sub-section (3) of Section 13.
(2) xxxx No such change in land use or development as is referred to in sub-section (1) shall be made except with the written permission of the Planning Authority which shall be contained in a commencement certificate granted by the Planning Authority in the form prescribed:
Provided that where the use or change of land use under this section needs the diversion of agricultural land to non-agricultural purposes, such use or change of use shall 26 not be permitted, unless permission is obtained in accordance with the provisions of the Karnataka Land Revenue Act, 1964 for such diversion.
Explanation.-For the purpose of this section,
(a) the expression "development" means the carrying out of building or other operation in or over or under any land or the making of any material change in the use of any building or other land:"
(emphasis supplied)
13. As noticed, the land in question is an agricultural piece of land. Explanation to Section 14(2) contains an express bar from making any changes or developing any land except with the written permission from the Planning Authority. Proviso to Section 14 mandates that, where the use of land needs diversion of agricultural land to non-agricultural purposes, such use shall not be permitted unless permission is obtained under the Karnataka Land Revenue Act.
14. Permission for development of building or land can be taken up only after obtaining a commencement certificate under Section 15 of the Act. Development is also defined in Section 2(1-c) of the Act, which reads as follows:
"2(1-c) "Development" with its grammatical variations, means the carrying out of building, engineering, mining, or other operations in, on, over or under land or the making of any material change in any building or land, or in the use of any building or land and includes subdivision of any land;"
15. The sole contention urged on behalf of the petitioner is that the Convention Hall is a temporary structure. The averment made by the petitioner clearly suggests that, after taking the land in question on lease, he has utilized the same to erect the structure in question for holding like marriages, corporate events etc. The petitioner has precisely pleaded thus in this writ appeal:
27
"5. One Sri. Shivalinge Gowda was the lessee of land bearing Sy. No. 15/2A and 15/2C of Madavara Village, Dasanapura Hobli, Bangalore North Taluk, measuring 1 acre and 20 guntas respectively in terms of two lease agreements dated 20.7.2013 and 2 acre 34 guntas in terms of a lease deed dated 1.7.2013 executed by Nandi Economic Corridor Enterprises Ltd and was commercial land. Subsequently, the said Shivalinge Gowda had executed Sub Lease Agreement in favour of his brother, the appellant herein. The appellant has utilized the said land for holding certain events like marriages, corporate events etc."
(emphasis supplied)
16. Records of the case clearly disclose that it is an air-conditioned Convention Hall measuring 9923 square feet. It appears to be no less in standard than a permanent building constructed upon a well laid foundation, using brick and mortar or cement concrete.
17. In the conspectus of facts of this case, what needs to be examined is whether the structure erected by the petitioner can be treated as a 'temporary structure'. The purpose and intent of the petitioner as discemable from the pleadings is to erect the structure in question to hold events like marriages, corporate events etc., for commercial gain. In the case of Purushottamdas Bangur v. Dayan and Gupta [(2012) 10 SCC
409.] , while considering the nature of a structure, the Hon'ble Supreme Court has held as follows:--
"19. Applying the above to the case before it, the High Court held that the tenant in that case had constructed a kitchen which he intended to use till the time he remained in occupation. The Court found that the case before it was not one where the tenant had constructed the structure for a special purpose like a marriage in the family. Any structure which was used for any such limited period or definite event, function or occasion, even if made of bricks and mortar would not amount to building or erecting a permanent structure. The Court observed: (Bimalendu Nath case [AIR 1965 Cal 408], AIR p. 411, para 5) "5. ... A person raises a structure for the purpose of a marriage in the family. There he intends to use it only during the occasion and has no intention to use it thereafter and intends to remove the structure thereafter.28
We cannot say that it would be a permanent structure even if it is made of brick and mortar. In the circumstances of this case, the lessee has said that he wanted to use it as a kitchen. He never says that the kitchen was required for a particular purpose temporarily. Therefore, we get from the evidence of the tenant that the tenant intended to use the structure as a kitchen during the continuance of the lease, because the tenant requires a kitchen as long as the tenant uses the premises and as he wants, to use it as a kitchen, he sufficiently expresses his intention to use it as a kitchen during the term of his tenancy which in this case is not definite. Therefore, for purposes of Section 108 (p) of the Transfer of Property Act, we would hold that the kitchen raised must be considered to be for a permanent purpose."
20. To sum up, no hard-and-fast rule can be prescribed for determining what is permanent or what is not. The use of the word "permanent" in Section 108(p) of the Transfer of Property Act, 1882 is meant to distinguish the structure from what is temporary. The term "permanent" does not mean that the structure must last forever. A structure that lasts till the end of the tenancy can be treated as a permanent structure. The intention of the party putting up the structure is important for determining whether it is permanent or temporary. The nature and extent of the structure is similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108(p) of the Act. Removability of the structure without causing any damage to the building is yet another test that can be applied while deciding the nature of the structure. So also the durability of the structure and the material used for erection of the same will help in deciding whether the structure is permanent or temporary. Lastly, the purpose for which the structure is intended is also an important factor that cannot be ignored."
(emphasis supplied)
18. It is not the case of the petitioner that the structure is erected for the sake of conducting a particular function such as, marriage or a corporate event. On the other hand, the structure is given on rent to various prospective users to conduct their respective functions or events. Thus, the facts on hand irresistibly lead us to hold that the petitioner has developed the land in question within the meanings contained in Section 2(1-c) and explanation to Section 14(2) of the Act. 29
19. Development of land by the petitioner without written permission of the Planning Authority has rightly entailed in issuance of notice in question."
At paragraph 11 the foundation on which the Division Bench proceeds is that no material is placed on record to show that the land in question has been converted for non-agricultural purposes. The lease deeds were therefore indicative of the fact that they still bear revenue survey numbers. The subject lands in the case at hand were all subject matter of acquisition for the purpose of formation of a road.
14. The Karnataka Industrial Areas Development Board in terms of the Act had issued preliminary notification on 02-06-1999 and final notification on 05-07-2003 which are lands acquired for the purpose of the project which would undoubtedly mean that they are lands that are converted from agriculture to non-agricultural purposes. Therefore, the framework agreement permits usage of land even for commercial purposes. The judgment of the Division Bench thus becomes inapplicable to the facts of the case on hand, though the Division Bench holds that a structure either temporary 30 or permanent it is the intention of the parties putting up the structure that matters for determining whether it is permanent or temporary. Therefore, reliance placed by the learned counsel for the Planning Authority on the said judgment is neither here nor there. The other judgment relied on is the one rendered by this Court in SMT. PRABHAVATHI M.S. supra. The learned counsel would seek to place reliance upon paragraphs 12 to 16 of the judgment. They read as follows:
" ... ... ...
12. If the property comes within the limits of the Local Planning Authority issuance of khata of such property is also regulated under the KTCP Act. Section 17 which deals with sanction of a plan for a single plot or for a layout, would mean either it is for a single residential house or for a layout which is a cluster of houses, sanction will have to be accorded under Section 17 of the KTCP Act. Section 17(2-C)(vii) of the KTCP Act places an unambiguous embargo upon the Local Authority under the 1964 Act to issue khata or property index number to such properties. The said provision reads as follows:
"17. Sanction for single plot or sub-division of plot or lay-out of private street. - (1) ... ... ...
(2-C) ... ... ... ...
(vii) Any building site which has not been released by the Planning Authority shall not be issued any khata or given property index number (e- khata) under the Karnataka Municipalities Act, 1964, the Karnataka Municipal Corporations Act, 1976 and the Karnataka Gram Swaraj and Panchayat Raj Act, 1993."31
(Emphasis supplied) The embargo under the aforesaid provision is that any building site which has not been released by the Planning Authority shall not be issued any e-khata.
13. Admittedly, the subject land of the petitioners comes within the planning area and the Planning Authority has not yet released the land from its ambit in accordance with the KTCP Act. Therefore, no fault can be found with the endorsement issued by the 6th respondent directing the petitioners to approach the Department of Town & Country Planning or the Planning Authority since the property of the petitioners is situated within the planning area. Once the property comes within the planning area, the provisions of the KTCP Act would be applicable to such area. The KTCP Act also defines what is 'development' in such area. Section 2(1-c) deals with development and reads as follows:
"(1-c) "Development" with its grammatical variations, means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land, or in the use of any building or land and includes sub-division of any land."
'Development' in terms of KTCP Act would mean any grammatical variations carried out in the building, engineering, mining or any other operations. Therefore, the very act of the petitioners in putting up a compound without the concurrence of the Planning Authority was itself contrary to law. The 'Planning Authority' is defined under Section 2(7) of the KTCP Act and reads as follows:
"7. "Planning Authority" means -
(a) in a case of -
(i) the local planning area comprising the City of
Bangalore, the Bangalore Development Authority, and;
(1-a) the local planning area comprising any urban
area defined in the Karnataka Urban
32
Development Authorities Act, 1987, the Urban Development Authority of such urban area;
(i-b) the heritage area as defined in the Hampi World Heritage Area Management Authority Act, 2002 (hereinafter referred to as 'heritage area'), the Hampi World Heritage Area Management Authority constituted, under that Act;
(ii) Any other local planning area in respect of which the State Government may deem it expedient to constitute a separate Planning Authority, the Planning Authority constituted under this Act.
(b) In the case of any local planning area in respect of which a Planning Authority is not constituted under this Act, the Town Improvement Board constituted under any law for the time being in force having jurisdiction over such local planning area, and where there is no such Town Improvement Board, the local authority having jurisdiction over such local planning area."
(Emphasis supplied) Therefore, the contention of the petitioners that the 1964 Act insofar as issuance of khata will prevail over the KTCP Act as issuance of khata has nothing to do with the declaration of planning area is unacceptable, in terms of the clear embargo as aforesaid, in the KTCP Act. The KTCP Act will prevail over the 1964 Act in terms of Section 76-M of the KTCP Act, which has an overriding effect over any other law for the time being in force.
Section 76-M of the KTCP Act reads as follows:-
"76-M. Effect of other laws.- (1) Savfe as provided in this Act, the provisions of this Act and the rules, regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law.33
(2) Notwithstanding anything contained in any such other law.-
(a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained;
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained."
Section 76-M(2)(b) mandates that when permission for development has not been obtained under the KTCP Act, such development shall not be deemed to be lawfully undertaken or carried out for the reason that sanction, approval or permission is accorded under any other law for such development.
14. Therefore, what would unmistakably emerge from Section 76-M of the KTCP Act is that permission even if obtained for conversion of land from the hands of the Deputy Commissioner, it will not clothe the beneficiary of such conversion for undertaking any development activities in a planning area without the express permission of the Planning Authority, as the act of conversion under Section 95 of the Karnataka Land Revenue Act, 1964 would stand ousted in law, in view of the afore-quoted overriding effect, in terms of Section 76-M of the KTCP Act. The overriding effect of the KTCP Act is considered in its affirmation by the Apex Court in the latest judgment in the case of BANGALORE INTERNATIONAL AIRPORT AREA PLANNING AUTHORITY v. BIRLASUPER BULK TERMINAL - (2019) 12 SCC 572, wherein the Apex Court holds as follows:
"21. The non obstante clause in Section 76-M of the KTCP Act reads as under:34
"76-M. Effect of other laws.--(1) Save as provided in this Act, the provisions of this Act and the Rules, Regulations and Bye-laws made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law.
(2) Notwithstanding anything contained in any such other law--
(a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained;
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained."
30. Section 14 read with Section 18 of the KTCP Act clearly connotes that the Planning Authority is entrusted with the function of granting licence to put up construction on the land including the land acquired and allotted by the Board under the KIAD Act. This is also clear from the provisions contained in the non obstante clause in Section 76-M of the KTCP Act which declares that the provisions of the said Act and the Rules, Regulations and Bye-laws made thereunder shall have effect notwithstanding anything inconsistent contained in any other law. There is nothing in the provisions of this Act to exclude or exempt the lands which are covered by the KIAD Act."
15. In the light of the afore-narrated provisions of law, what would unmistakably emerge is that the petitioners will have now to approach the Planning Authority i.e., Hunsur Local Planning Authority and seek change of land use notwithstanding the fact that the land is already converted, as the subject property is now within the planning area and once the Planning Authority releases the land from its ambit in accordance with law, the 6th respondent would then issue khata in favour of the 35 petitioners, which would be in tune with the afore-quoted provisions of the KTCP Act.
16. Though it is the land of the petitioners and they have right to develop the said land, once the land comes within the planning area, the Government is empowered to regulate such usage by legislation. One such legislation is the KTCP Act. This regulatory measure of the lands coming within the planning area under the KTCP Act is recognized and affirmed by the Apex Court in the judgment rendered in T.VIJAYALAKSHMI v. TOWN PLANNING MEMBER AND ANOTHER - (2006)8 SCC 502 - wherein the Apex Court holds as follows "13. Town Planning legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, are ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled with so long as an appropriate amendment in the legislation is not brought into force.
............
15. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that the building plans are required to be dealt with in 36 terms of the existing law. Determination of such a question cannot be postponed far less taken away. Doctrine of legitimate expectation in a case of this nature would have a role to play."
In the light of the afore- extracted provisions of the KTCP Act and the judgments of the Apex Court, the contentions advanced by the learned counsel appearing for the petitioners are unacceptable."
The issue before this Court in the aforesaid case was whether erection of a compound wall would mean development and for such development, permission of the Planning Authority would be required or otherwise. This Court interpreted Section 2(1c) definition of 'development' quoted supra to mean that putting up of a compound wall to be a part of carrying out building or engineering in the property. Therefore, the rigour of Section 76M of the Act would kick in and the Planning Authority would have every right to intervene in the proceedings.
15. The issue here is, the right of the parties under the framework agreement and the interpretation of the Zonal Regulations, all of which are considered in the above referred judgment. The Rules quoted hereinabove contemplate procedure for taking action against such unauthorized construction by 37 depicting a manner of inquiry. Sub-rule (2) of Rule 37 directs the Planning Authority to serve a notice upon the person to show cause as to why the noticee should not be directed to remove or pull down the structure. The Planning Authority then if it considers to be expedient may appoint a Committee of three members to hear such cases. Any representation which may be made on behalf of a person served with notice may be considered by the Committee. The reasons for a decision shall be signed by all the members of the Committee. Though the words used are that 'if the Planning Authority considers it expedient to do so', a Committee could be appointed. It is directory and not mandatory.
16. In the case at hand it becomes necessary, for the reason that there is a dispute with regard to applicability of the Act. The learned counsel for the Planning Authority would contend that whether it is temporary or permanent, permission of the Planning Authority is imperative. For the aforesaid reasons, I decline to accept the said submission. Therefore, the notice would tumble down for want of legal sanction. However, liberty would be reserved to the Planning Authority to conduct a thorough inspection of the 38 property to arrive at a conclusion with regard to its usage and if necessary, place it before a Committee so appointed and take a reasoned decision in terms of the Rules. The success of the writ petition will not however come in the way of the Planning Authority acting in accordance with law, bearing in mind the observations made in the course of the order.
17. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) The notice dated 16-06-2015 issued by the 2nd respondent stands quashed, with the afore-rendered observations at paragraph No.16.
Sd/-
JUDGE bkp CT:MJ