Karnataka High Court
Smt. H.M. Sandya @ H.M. Sandhya Aras vs Shimoga Development Authority on 20 June, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.13804 OF 2015 (LB-RES)
BETWEEN:
SMT. H.M. SANDYA @ H.M. SANDHYA ARAS
WIFE OF SRI. H.S. MURALIDHARA ARAS,
AGED ABOUT 47 YEARS,
'VEDASHREE', 60 FT. ROAD,
OPP: SHUBHAMANGALA KALAYANA MANTAPA,
2ND STAGE, VINOBHANAGAR,
SHIMOGA CITY.
...PETITIONER
(BY SRI. RAMESH CHANDRA, ADVOCATE)
AND:
SHIMOGA DEVELOPMENT AUTHORITY
COMMERCIAL COMPLEX, 100 FEET ROAD,
VINOBHANAGAR, SHIMOGA-577 204
REPRESENTED BY ITS COMMISSIONER
...RESPONDENT
(BY SRI. A.V.GANGADHARAPPA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
CONDITION NO.1 IN ANNEXURE-A PASSED BY THE
RESPONDENT DATED 10.06.2014, £ÀA.²£À¥Áæ/AiÉÆÃ/J£ï.M.¹.-18/£ÀPëÉ
zÀÈrüÃPÀgÀt/2013-14/249 AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03.06.2022 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:-
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ORDER
The petitioner has challenged the legality of imposition of a condition to relinquish 963.90 sq.mtrs of land as a condition precedent for sanction of a single unit plan by the respondent.
2. The petitioner claims to be the owner of 0.16¾th guntas of land in Sy.No.131/1 of Sominakoppa village, Kasaba Hobli, Shivamogga Taluk. The petitioner intended to develop the property as a single unit and therefore, applied for conversion of the land from agricultural to non-agricultural use. The Deputy Commissioner, Shivamogga granted permission for conversion of the aforesaid land from agricultural to residential use. One of the conditions attached to the order of conversion was that the petitioner should obtain permission from the respondent for development of the land as a single unit. On an application filed by the petitioner, the respondent granted permission for development of the aforesaid land as a single unit in terms of the order dated 10.06.2014 (Annexure-A). However, the 3 respondent imposed a condition that the petitioner should relinquish an extent of nearly 10 guntas of land by executing a relinquishment deed free of cost. The petitioner contends that this condition amounted to compulsory acquisition of the property without paying any compensation and therefore it violated the constitutional right under Article 300A of the Constitution of India. The attempts of the petitioner to impress upon the respondent to withdraw the condition proved futile and therefore, the petitioner is before this Court.
3. The learned counsel for the petitioner submitted that the total extent of the property owned by the petitioner is 0.16¾th guntas, out of which, the respondent has required the petitioner to relinquish nearly 10 guntas of land free of cost. He further submitted that a co-ordinate Bench of this Court in W.P.No.9408/2020 and other connected writ petitions has held that such relinquishment is in violation of Article 300A of the Constitution of India.
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4. Per contra, the learned counsel for the respondent submitted that a public road from Shivamogga to Gejjenahalli (Ramanagara) village ran on the western side of the property in question and that 2½ guntas was reserved for the said road. He also stated that this road was shown in the village map of Gejjenahalli village, which was originally a village road and subsequently upgraded to a State Highway. He further submitted that on the eastern-southern side of the property, there is the Upper Tunga project canal. It is stated that as per the approved Master Plan - 2031 there is a provision for widening of the road to 30 meters with 9 meters of service road and 3 meters buffer. As per the approved Master Plan and clause 6.1B of the Zonal Regulations, it is mandatory to reserve the land for proposed widening of the road. In so far as the land in question is concerned, he contended that it lay adjacent to a State Highway and is proposed for widening to 30 meters along with 9 meters of service road and 3 meters as buffer and therefore, under Section 32(5) of the Karnataka Urban Development Authorities Act, 1987, the 5 respondent is entitled to demand the petitioner to relinquish the area reserved in the Master Plan. He further contended that under Section 17 of the Karnataka Town and Country Planning Act, 1961 (henceforth referred to as 'Act of 1961' for short) the planning authority is entitled to demand the owner to relinquish the roads, parks and playgrounds to the local authority and civic amenity areas to the planning authority free of cost by a registered relinquishment deed without claiming any compensation. It is only after such relinquishment, the planning authority will issue the final layout plan. Therefore, he contends that the demand to relinquish the area reserved in the Master Plan is justified. He therefore submits that the writ petition lacks merit and is liable to be dismissed.
5. I have considered the submissions made by the learned counsel for the parties.
6. It is relevant to note that in the State of Karnataka once a planning authority is constituted for a planning area, the provisions of the Act of 1961 becomes 6 applicable as provided under Section 81-D of the Act of 1961. Once the authority is constituted, it not only performs the role of development authority but also acts as a planning authority. When it dons the role of a development Authority, it has to function in accordance with the Karnataka Urban Development Authorities Act, 1987 and when it performs the role of a planning authority, it has to act in accordance with the provisions of the Act of 1961. The duality of the roles of a planning authority is easily discernible. In the case on hand, the petitioner desired to develop his property into a single unit and therefore sought and obtained conversion of the said land for residential purposes. The petitioner also sought for use of the said land for residential purposes as a single unit and submitted the plan thereof which was sanctioned. However, the respondent imposed a condition requiring the petitioner to relinquish 963.90 sq.mtrs. free of cost. The reason for such relinquishment is that the property lay alongside a State Highway which was intended to be widened as per the Master Plan - 2031. It is relevant to 7 note that the petitioner did not seek for the sanction of a development plan to develop a private layout in the property in question. Therefore, the provisions of Section 32 of the Karnataka Urban Development Authorities Act, 1987, was certainly not applicable to the facts and circumstances of this case. Likewise, Section 17 Sub- section 2-A was also not applicable as the petitioner had sought for a single unit plan and not set apart any area for the purpose of a road/civic amenity/open space etc. The question that concerns us is whether the planning authority can insist an owner of a property to relinquish the portion of the land free of cost when such land is shown in the Master Plan indicating proposed use. The answer to this question is a certain 'No', as mere designation of proposed use in the Master Plan does not create any right, title or interest in a planning authority and does not divest a owner of his right title and interest. The only way to appropriate land belonging to a citizen is by acquiring it under the provisions of the Land Acquisition Act, 1894 or the Right To Fair Compensation And 8 Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013, else the action of the planning authority would fall foul of Article 300-A of the Constitution of India. As a matter of fact, Section 69 of the Act of 1961 grants power to the planning authority to acquire land earmarked in the Master Plan which is extracted below:
"69. Acquisition of land designated for certain purposes in a Master Plan.-(1) The Planning Authority may acquire any land designated in the Master Plan for "public purposes"
by agreement or under the Right to Fair
Compensation and Transparency in Land
Acquisition Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) as in force in the State.
Explanation.-For the purpose of this section land "designated for public purpose" means designated for the purpose of providing parks, open spaces, public or semi public utilities and infrastructure relating to transport.
(2) If the land designated for public purpose, as under sub-section (1), except land designated for purpose of clause (b) of sub-section (1) of section 12 is not acquired either by agreement within five years from the date of publication 9 of the Master Plan under sub-section (4) of section 13 nor the proceedings under the Right to Fair Compensation and Transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) are commenced within period of five years, the designation shall be deemed to have lapsed.
(3) When the designated land use lapses
under sub-section (2), the Authority may
consider the new land use sought by the land owner of such land, based on the surrounding developments, in the meeting of the Authority, after previous publication in one or more daily newspapers of which at least one shall be in local language having wide circulation in the area and call for objections and suggestions in this regard.
(4) The Planning Authority shall after considering the proposals to assign land uses and objects and suggestions received in that behalf in the meeting of the Authority, the Authority may convey the assignment of new land use to the owner or reject the proposal for the reasons recorded there in.
7. A cursory look at Section 69 of the Act of 1961 shows that the planning authority may acquire any land designated in a Master Plan for public purpose, which is 10 nothing but an extension of the 'due process' under Article 300-A of the Constitution of India. Further, under Section 15, a person is entitled to seek for change of land use under Section 15 of the Act of 1961. If the said request is rejected by the Planning Authority, then such land owner is entitled to request the State Government to acquire the said property. If the State Government fails to acquire the property within six months from the date of such intimation, then the reservation of the land in the Master Plan would automatically stand lapsed. Thus, the scheme of acquisition of land designated for particular purposes is underscored in the Act of 1961, which is a safeguard against arbitrary appropriation of the immovable property of a citizen. Therefore, the respondent is not entitled to seek free relinquishment, but on the contrary, it can only ensure that the plan sanctioned by it conforms to the Master Plan that is approved by the State Government meaning thereby, that it can regulate the construction of the building, away from the area reserved for particular purposes in the Master Plan, in which event, the petitioner 11 shall be entitled to the Floor Area Ratio as applicable based on the road width in the Master Plan. However, the respondent cannot and is not entitled to demand free relinquishment of the lands in favour of the respondent for the purpose of sanction of a plan. This is also the view of a co-ordinate Bench of this Court in W.P.No.9408/2020 and other connected petitions, where this Court had considered similar such demand by development authority and this Court held such demand would amount to violation of the constitutional right under Article 300A of the Constitution of India. The Co-ordinate Bench of this Court considered in detail the Judgment of the Apex Court in K.T. Plantation Pvt. Ltd., and another vs State of Karnataka [(2011) 9 SCC 1] and held that the owner of immovable property cannot be deprived of his property by a mere executive order. In view of the above, the condition imposed by the respondent requiring the petitioner to relinquish 963.90 sq.mtrs. of land free of cost in favour of the respondent is ultra vires the provisions of the of the Act of 1961 as well 12 as Article 300A of the Constitution of India and hence, is liable to be struck down.
8. Hence, this writ petition is allowed.
9. The impugned condition attached to the order dated 10.06.2014 requiring the petitioner to relinquish 963.90 sq.mtrs. of land in Sy.No.131/1 of Sominakoppa village, Kasaba Hobli, Shivamogga Taluk is quashed. Consequently, the petitioner is entitled to the benefit of the plan sanctioned by the respondent without executing any relinquishment deed in favour of the respondent. However, the construction that may be put up by the petitioner shall conform to the plan sanctioned by the respondent.
Sd/-
JUDGE PMR