Karnataka High Court
Smt Simpal R Shetty vs The Commissioner on 23 November, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
1/10
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 23rd DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.47449/2017 (LB-RES)
BETWEEN:
SMT.SIMPAL R SHETTY
W/O ROHAN SHETTY
AGED ABOUT 34 YEARS
704, CASTLE APARTMENT
OPP CANARA CLUB, KADRI
MANGALORE - 575 002
...PETITIONER
(BY SRI SANATHKUMAR SHETTY K, ADVOCATE)
AND:
1. THE COMMISSIONER
MANGALORE URBAN DEVELOPMENT
AUTHORITY (MUDA)
URVA STORES, ASHOKA NAGAR
MANGALORE - 575 006.
2. THE SECRETARY
URBAN DEVELOPMENT DEPARTMENT
GOVERNMENT OF KARNATAKA
ROOM No.434, VIKAS SOUDHA
BANGALORE - 560 001.
3. STATE OF KARNATAKA
Date of Order 23-11-2017 W.P.No.47449/2017
Smt.Simpal R Shetty Vs.
The Commissioner, MUDA & Others
2/10
REP BY ITS SECRETARY
SRI M S REDDY
THE DEPARTMENT OF URBAN
DEVELOPMENT, DR.AMBEDKAR VEEDHI
BANGALORE -01.
...RESPONDENTS
(BY SRI A K VASANTH, AGA FOR R2 AND R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING
TO QUASH THE ORDER DATED 11.09.2017 ISSUED
BY THE R-1 IN REFERENCE NO.3531/2016-17 VIDE
ANNEXURE-S AND ALLOW THE APPLICATION
SUBMITTED BY THE PETITIONER AS PER ANNEXURE-
B.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
Mr.Sanathkumar Shetty K., Advocate for Petitioners Mr.A.K.Vasanth, AGA for R2 and R3.
1. The petitioner Smt. Simpal R. Shetty has filed this petition in this Court challenging the order dated 11-09-2017 passed by the Commissioner of respondent- Mangalore Urban Development Authority (MUDA), Mangalore, refusing to consider the application and request of the petitioner for changing the land use from agricultural purpose to commercial purposes, Date of Order 23-11-2017 W.P.No.47449/2017 Smt.Simpal R Shetty Vs. The Commissioner, MUDA & Others 3/10 where on the site purchased by the petitioner in Survey No.43/3P4 situated at Adyaaru village, Mangalore Taluk, Dakshina Kannada District, the petitioner wanted to set up a LPG Godown.
2. The reasons assigned in the impugned order by the respondent- Commissioner, Managalore Urban Development Authority, for refusing the said permission are quoted below for ready reference:
"With reference to the above subject, you have submitted application dated 06.12.2016 to the authority seeking single site approval for commercial purpose as per reference No.1 above. In the said application you have sought for single site approval for godown purpose. In the case, you have sought for approval to use the land for LPG Godown purpose by taking into considering the Government Circular No.UDD/ 268/ My.DA/2014 dated 30.06.2016 and Order of the Hon'ble High Court of Karnataka in W.P.No.55104/2016 (GM RES) dated Date of Order 23-11-2017 W.P.No.47449/2017 Smt.Simpal R Shetty Vs. The Commissioner, MUDA & Others 4/10 02.11.2016. As per the existing zonal regulations, the land to put up LPG Godown should be situated in commercial zone, having a 12.0 Mt., wide connecting road with a proposal to extend the said road to 24 Mtrs. Width. But, your land as per the Master Plan(P- II) is situated in the agricultural zone, and presently there is 5.0 Mtr. Wide connecting road. But, in Master Plan(P-II) there is no proposal for widening of the aforesaid road. In the instant case as you have sought approval on the basis of the Government Circular No.UDD/268/ MyDA/ 2014 dated 30.06.2016, your request for single site approval was forwarded to the Government as per Section 14A of KPCP Act and a proposal was submitted as per letter of even number of this Office dated 03.03.2017.
On perusal of the said proposal, the government had given direction to produce the necessary documents such as No Objection certificate and other documents as per Government guidelines from the Secretariat of the Petroleum. Therefore, it was informed as Date of Order 23-11-2017 W.P.No.47449/2017 Smt.Simpal R Shetty Vs. The Commissioner, MUDA & Others 5/10 per reference No.3 above to furnish the no objection certificate from the secretariat to the ministry of petroleum and other documents necessary for the change of land use in two sets. But, till date you have not submitted any documents. In the meanwhile, as per Government Letter at Reference No.4, as per the existing zonal regulations, to set up a LPG godown, the land should be located in commercial zone and it should measure 4000 Sq. Mtr. and there should be a 12.0 Mtr. wide road. Therefore, it is informed that, it is not eligible for consideration of the proposal for change of land use. Further the directions published in the circular dated 30.06.2016 is in the nature of suggestions and cannot be considered as rules. The directions in this circular will come into existence only after amendment and incorporation of the same in the Zonal Regulations of the Mangalore Development Authority. Till then, as per the existing zonal regulations the proposal should be examined and considered. Therefore it is clarified that even if the proposal is eligible for Date of Order 23-11-2017 W.P.No.47449/2017 Smt.Simpal R Shetty Vs. The Commissioner, MUDA & Others 6/10 consideration under the Circular dated 30.06.2016, the same cannot be considered under the same Circular until Zonal Regulations are amended.
Therefore, it is informed that, at present there is no occasion to consider your proposal under the Regulations.
Your's faithfully Sd/-
Commissioner, Mangaluru Urban Development Authority, Mangaluru".
3. Learned counsel for the petitioner Mr. Sanathkumar Shetty K., has urged before the court that in the Circular issued by the State Government on 30th June 2016, Annexure-A1, the State Government had inter alia directed the local authorities to allow use of land in the non residential zone and agricultural zone in the Master Plan for retailing of automotive and cooking fuels (MS/HSD/LPG) as an essential public utility service. He submitted that the State Government had directed the authorities concerned to strictly implement Date of Order 23-11-2017 W.P.No.47449/2017 Smt.Simpal R Shetty Vs. The Commissioner, MUDA & Others 7/10 these suggestions issued by the State Government as issued by the Ministry of Petroleum and Natural Energy, while preparing the Master Plan for concerned Cities/Town or local planning area.
4. Learned counsel further submitted that Section 14-A of the Karnataka Town and Country Planning Act, 1961, permits the change of land use from the Master Plan and therefore, the respondent-MUDA being bound by the said suggestions of the State Government was bound to permit use of the agricultural land in question for commercial purpose by changing the land use.
5. Having heard learned counsel for the petitioner, this Court is satisfied that writ petition has no merit and deserves to be dismissed.
6. The reasons assigned by the respondent- Commissioner of MUDA in the impugned order as quoted above, inter alia, clearly indicates that as per the Date of Order 23-11-2017 W.P.No.47449/2017 Smt.Simpal R Shetty Vs. The Commissioner, MUDA & Others 8/10 existing Zonal Regulation, land to put up LPG Godown should be situated in commercial zone having 12.0 Mtrs. wide connecting road with a proposal to extend the said road to 24 Mtrs. width with minimum area of 4000 Sq.Mtrs, whereas, the present land of the petitioner for setting up of said LPG godown had only 5.0 Mtrs. wide connecting road and there is no proposal for widening of the aforesaid road. The said restriction in the existing Zonal Regulation was obviously for public safety reasons so that in cases of any accident in the LPG godown sufficient space is available for Fire Brigade, Ambulances etc., to move in, to prevent loss of lives and property. The insistence of the petitioner that even though he has only 5.0 Mtrs. connecting road on the agricultural land in question where he wanted to set up LPG godown, cannot be appreciated and countenanced unless and until in view of the suggestions given by the State Government, which too cannot undo the effect of the aforesaid Date of Order 23-11-2017 W.P.No.47449/2017 Smt.Simpal R Shetty Vs. The Commissioner, MUDA & Others 9/10 requirements in the existing Zonal Regulation are really enacted into law. The petitioner cannot claim the benefit of conversion of land use as a matter of right.
7. Section 14-A is only an enabling provision for directing the State Government and MUDA to allow such change of land use subject to the requisite amendments to be effected in the Zoning Regulations. Such amendments in the Zoning Regulations have not yet been effected. That is why, the respondent- Commissioner of MUDA has rightly held that the suggestions cannot amount to be binding on the existing Zonal Regulation. Since requirement of existing Zonal Regulation is not met by the petitioner the said permission could not be granted and rightly so. No error is found in the impugned order, much less any illegality, which requires any interference in the present writ petition.
Date of Order 23-11-2017 W.P.No.47449/2017 Smt.Simpal R Shetty Vs. The Commissioner, MUDA & Others 10/10
8. The writ petition is found to be devoid of merits and is liable to be dismissed. Accordingly, it is dismissed. No costs.
Sd/-
JUDGE tsn*