Karnataka High Court
P Dayananda Pai vs State Of Karnataka on 10 October, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10th DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No. 2124 OF 2008 (BDA)
BETWEEN:
1. P. Dayananda Pai,
Aged about 62 years,
No.10/1, Lakshminarayana Complex,
Ground Floor, Palace Road,
Bangalore - 560 052.
2. Manipal Academy of
Higher Education (MAHE),
A deemed University,
Having its office at
Manipal Towers,
6th Floor, Airport Road,
Kodihalli, HAL II Stage,
Bangalore - 560 088.
Represented by its
Power of Attorney Holder
M/s. Puravankara Projects Limited,
Through its Director,
Mr. Nani R. Choksey. ...PETITIONERS
(By Shri. Udaya Holla, Senior Counsel for Shri. S. Mahesha,
Advocate )
2
AND:
1. State of Karnataka,
Represented by its Chief Secretary,
Vidhana Soudha,
Bangalore - 560 001.
2. The Bangalore Development Authority,
Kumara Krupa Road,
Bangalore - 560 001,
Represented by its Commissioner. ...RESPONDENTS
(By Shri. V.B. Shivakumar, Advocate for Respondent No.2
Shri. Mallikarjuna K.B. Government Pleader for Respondent
No.1)
*****
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the revised CDP 2015 vide
Annexure-F in so far as the lands of the petitioners are concerned
which are morefully described in the schedule; direct the
respondents to reclassify the lands belonging to the petitioners as
residential use in accordance with the conversion orders vide
Annexure-D to D23; quash the rejection of plans of the petitioners
under order dated 21.05.2007 of the second respondent vide
Annexure-N and direct the respondents more particularly the
second respondent to grant sanction of plans submitted by the
petitioners under cover of their letter dated 19.11.2005 vide
Annexure-H.
This petition, having been heard and reserved on 26.9.2012
and coming on for Pronouncement of Orders this day, the court
delivered the following:
3
ORDER
The first petitioner is said to be an industrialist and a real estate developer. The second petitioner is an educational institution and claim as the owners of the properties which are the subject matter of this petition. The properties are lands in survey no. 62,67,68/1,68/2, 68/3, 70/1, 70/2, 71, 72, 73/1, 73/2B, 73/3, 74, 87, 88/1, 88/2, 89,91, 92 and 95 all of Yelahanka village, Bangalore North Taluk as well as lands in Survey no.18/1, 18/2, 19/2, 19/1-A and 20 of Ammanikere village, Bangalore north Taluk- totally measuring 23 acres 7 guntas. Apart from these lands, the petitioners claim that they also own other lands in the vicinity. It is the case of the petitioners that these lands were declared as being in the residential zone under the Comprehensive Development Plan, 1995 (Hereinafter referred to as ' the CDP, 1995', for brevity) in terms of the provisions of the Karnataka Town and Country Planning Act, 1961 (Hereinafter referred to as ' the KTCP Act' for brevity). It is stated that the petitioners had purchased the lands with the intention of putting up residential 4 buildings and had sought conversion of the land user through the competent authority. Such permission was granted under the provisions of the Karnataka Land Revenue Act, 1964 (Hereinafter referred to as ' the KLR Act' for brevity) - in January 2005. The details of such conversion orders by the competent authority in respect of the several parcels of land are furnished under Annexure
-D to the writ petition. It is also stated that several items of land purchased by the second petitioner had already been converted for non-agricultural residential user even before the purchase.
2. The Planning Authority had notified the Draft Master Plan, 2015. It was found that the aforementioned lands were re- classified as "Valley Zone" under the same. The petitioners had immediately filed their objections to the draft Master Plan to state that the petitioners had already obtained permission for conversion of the lands in question and further that there were many residential complexes already in existence in the area, belonging to both public and private bodies. The petitioners had raised several 5 other issues in the said objections. The respondents however, proceeded to notify the Master Plan with further changes, which were again detrimental to the petitioners.
The consequence of the change in classification of the lands as "valley zone " is that the same can be used only for establishing sewerage treatment and water treatment plants, roads, pathways, formation of drains, culverts, bridges, parks and open spaces and no fresh permission can be accorded for development. It was however, clarified in the Master Plan that any land falling within the valley zone for which permission had been accorded for development, either by the BDA or the Government, no fresh permission would be required pursuant to the change in classification in the revised Master Plan, 2015.
It is therefore the petitioners' case that the change of land user in terms of the CDP, 1995 had been accorded and that the petitioners had been enabled to obtain sanction of building plans even from the year 2005,the mere fact that the petitioners had not 6 proceeded to construct buildings as on the date of re-classification, the permission granted earlier does not stand nullified but on the other hand stands saved, in the light of the clarification in the Master Plan, 2015 itself.
It is contended that the change in classification is without reference to the ground realities and completely inconsistent with the CDP 1995 and hence irrational and unreasonable.
In the light of the above the petitioners' application for sanction of building plans having been rejected on the ground that the Master plan,2015 does not provide for any development on the said lands, the present petition is filed.
3. The BDA has contested the petition and it is urged that though the petitioners had applied for sanction of building plans as on 30.12.2006 the same had been rejected as the majority of the lands in question fall within the valley zone and hence could not be granted for development, in terms of the Master Plan 2015. 7 The petitioners having obtained conversion of the land user under the provisions of the KLR Act was not relevant in the present context. The petitioners were required to conform to the present Master Plan in respect of all prospective development.
It is claimed by the BDA that the present Master Plan has been prepared by the Government of Karnataka in Collaboration with a French company, M/s Strategic Conseil et Ettndes, using satellite images and spot S images. While analyzing the said images of the Yelahanka area it became apparent that the area would fall under the valley zone having regard to the topography and location - given the parameters that were applicable in preparing the Master Plan 2015. The report prepared in respect of the Yelahanka - Byatarayanapura, City Municipal Council area in prompting the re-classification of the land was to the following effect :
" The predominant land use of the planning district is agricultural , which covers 43.3% of the area . Residential use covers 11.1% and industrial use 5% . The natural drainage system consisting of valleys running North-South 8 between the Yelahanka and Puttenahalli is mostly preserved except for an area south of Yelahanka kere which is encroached by residential development. Areas in the north along Doddaballapur road are undergoing major transformation with building of large apartments . Within the large plantations beyond the urbanized areas, several small residential layouts are cropped up "
The observations were specifically taken into account to preserve the major valleys and lakes including the Allalasandra kere and Puttenahalli kere which are proposed as natural setting to prevent urban encroachment.
By contrast conventional methods were used in the preparation of the Revised CDP, 1995 in surveying the lands using chain link survey and reconnaissance survey that was available then. This has been shown to be inaccurate and flawed by the advanced methods used in the preparation of the Master Plan 2015. The petitioners being granted any relief would result in defeating the object sought to be achieved in planned development. Hence it is sought that the petition be dismissed. 9
4. The learned Senior Advocate, Shri Udaya Holla, would contend that there is no dispute that the user of the lands in question were converted from agricultural to non-agricultural - residential use in accordance with law. In other words, the conversion was in accordance with the Comprehensive Development Plan in vogue at the relevant point of time, in which event there is no violation of the provisions of the KTCP, in the competent authority having permitted the conversion in terms of Section 95 of the KLR Act. And the revised Master Plan 2015 specifically saves any such permission for change of land user, granted in consonance with the CDP at the relevant time, prior to the present Master plan coming into force. Attention is drawn to Volume 3 of the Master Plan 2015, clause 4.12.2 (ii) (v), in this regard.
It is also contended that any restriction imposed by the planning law, though in public interest should be strictly 10 construed, because they make inroads into the rights of private persons to carry on business or construction.
The learned Senior Advocate would also contend that though land belonging to private persons can be included in the development plan, but unless the land is acquired by the State or the local authority, such development plan cannot be implemented and the land owner cannot be deprived from using the private property for any other purpose.
Reliance is placed on the following authorities for the above propositions:-
1. Sri Krishnapur Mutt, Udupi vs. N.Vijayendra Shetty and another, 1992 (3) Kar.LJ 326,
2. Bhikhubhai Vithlabhai Patel and others vs. State of Gujarat and another, (2008)4 SCC 144,
3. Raju S Jethmalani and others vs. State of Maharashtra and others, 2005(11) SCC 222
5. On the other hand, the learned counsel for the BDA places heavy reliance on the relevant portions of the Master Plan 11 2015, to demonstrate that the classification is made strictly on a scientific and accurate study of the topography. The petitioners, who are only now seeking to develop the land in question are required to conform to the present land use and the lands in question cannot be permitted for development as it would interfere with planned development of the area. It is contended that the mere conversion of the user of the land under the provisions of the KLR Act by itself does not enable the petitioners to develop the property unless the same is in consonance with the Planning Act. It is hence contended that no sanction of building plans is permissible.
The short question that would arise for consideration by this court in the above circumstances is whether the petitioners could claim that the petitioners having obtained orders of conversion of land user at a time when the CDP provided for such changed user, could be denied sanction of building plans on the ground that the present land user of the same lands has been re-classified and does 12 not permit any development, which may have been possible earlier.
From a reading of the first proviso to sub-section 2 of Section 95 of the KLR Act, it is evident that the diversion of agricultural land for any other purpose is permitted with specific reference to the Comprehensive Development Plan published under the KTCP Act and only if it is in consonance thereof. In the instant case on hand the lands in question had passed the test. It was also possible that the petitioners could have immediately obtained sanction of building plans in developing the lands and putting the same to such use. If for any reason the petitioners have delayed the development - the petitioners being denied sanction of building plans in accordance with the building bye - laws or such other law, results in depriving the petitioners from using their property .
As rightly pointed out by Shri Holla, the Master Plan 2015 itself provides as follows :
13
" Any land falling within the valley for which permission has been accorded either by the Authority or Government , and then such permission shall be valid irrespective of the land use classification in the RMP 2015 .Fresh permission for developments shall not be accorded in valley zone." ( Vol. 3 cl. 4.12.2 (ii) (v) ) And as follows :
" The regulations proposed are prospective. The developments that are lawfully established prior to the coming into force of zonal regulations shall be allowed to continue as non conforming uses " ( Vol. 3 cl. 1.1 ) The State may not, however, be precluded from acquiring the property in question to preserve the same as a valley zone, in the larger interest of the public. But the petitioners cannot be deprived of their right to utilise the property as intended.
In the result, the petition is allowed. Annexure -N to the petition stands quashed. The respondent authorities are directed to process the applications of the petitioners for sanction of building plans without reference to the Master Plan 2015, treating the 14 proposed development as non-conforming use, which is contemplated under the Master Plan 2015 itself.
Sd/-
JUDGE nv