Karnataka High Court
U. Nithyananda vs Member Secretary, Tpa And Ors. on 18 November, 1997
Equivalent citations: ILR1998KAR348
ORDER G.C. Bharuka, J.
1. This public interest litigation has been filed questioning the competence of the State Government to pass orders like the one dated 8.12.1994 (annexure 'A') permitting change of use of land under the purported exercise of power under Section 14A of the Karnataka Town and Country Planning Act, 1961 ('Act' for short) and also for quashing the consequential orders dated 18.2.1995 (Annexures 'B and C') passed by the respondent-Tahsildar permitting conversion of land from agriculture to non-agriculture.
2. So far as the facts raising to the above question are concerned, those are not at all in dispute. In respect of Udupi-Malpe Town Planning Area, a Comprehensive Development Plan ('CDP' for short) was published on 29.12.1992 as required under Section 22(4) of the Act. As per the said CDP the land measuring 9 acres 34 guntas in Sy. Nos. 70/1B and 70/3B of Nidamboor village, Udupi, owned by the 6th respondent company were reserved for Park, Open space and transport and communication. But the owner made an application under Section 14A of the Act to the Planning Authority as defined under Clause (7) of Section 2 of the Act seeking change of land use which was rejected under their communications dated 14.12.93 and dated 27.5.1994. The 6th respondent thereupon made a representation to the Minister for Housing and Urban Development Department seeking permission for change of land use which has been accorded by the impugned order at Annexure 'A' by permitting the land to be used for residential and commercial purposes. The Secretary to the said department, along with his personal affidavit filed on the issues involved herein, has placed on record the original government file which shows that the impugned order had been passed at the behest of the then Minister Mr. C.R. Sageer Ahamed though the then Secretary had objected to exercise of any such power.
3. In the present case, though the petitioner has raised the issues pertaining, to mala fide as well but we did not examine the said aspect since the present Writ Petition can be disposed of on a pure question of law pertaining to the competence of the State Government to pass order under Section 14A of the Act.
4. The State Government in its counter affidavit filed through the Secretary has sought to assert that though the order like the impugned one cannot be made by the State Government under - Section 76K of the Act in view of the law laid down by this Court in the case of LEENA FERNANDES v. PLANNING AUTHORITY, , but curiously, he has emphatically claimed that the order is justifiable under Section 14A read with Section 24(1) of the Act.
5. It will be proper to quote Section 14A and 24(1) of the Act, which read thus:-
14-A. Change of land use from the Outline Development Plan:-
(1) At any time after the date on which the Outline Development Plan for an area comes into operation. The Planning Authority may, with the previous approval of the State Government, allow such changes in the land use or development from the Outline Development Plan as may be necessitated by topographical cartographical or other errors and omissions, or due to failure to fully indicate the details in the Plan or changes arising out of the Implementation of the proposals in Outline Development Plan or the circumstances prevailing at any particular time, by the enforcement of the plan:
Provided that,-
(a) all changes are in public interest;
(b) the changes proposed do not contravene any of the 'provision of this Act or any other law governing planning, development or use of land within the local planning area; and
(c) the proposal for all such changes are published in one or more daily, newspapers, having circulation in the area, inviting objections from the public within period of not less than fifteen days from the date of publication as may be specified by the Planning Authority.
(2) The provisions of Sub-section (2) and (3) of Section 14 shall apply mutatis mutandis to the change in land use or development from the Outline Development Plan.
XXX XXX XXX
24. Enforcement of the Comprehensive Development Plan.- (1) The provisions of Section 14, Section 14A, Section 15 and Section 16 shall apply mutatis mutandis to the enforcement of the Comprehensive Development Plan.
6. A bare reading of the aforesaid provision clearly goes to show that any change in the land use or development from the CDP can be allowed by the Planning Authority though subject to the previous approval of the State Government and that too subject to the conditions and procedure of publication and inviting objections as laid in the proviso to the Section 14A(i) of the Act. Therefore, even a plain reading of the aforesaid Section makes it crystal clear that the authority to grant permission for change of land use in the Planning Authority alone but exercise of discretion by the Planning Authority has been subjected to the conditions of obtaining previous approval of the State Government. Therefore, the State Government comes into the picture only if the Planning Authority decides to permit the change of land use. But, in case the said authority rejects the application outright, the State Government cannot have any say in the matter.
7. In the present case, the original records placed before us reveal that the 6th respondent being the owner of the land and aggrieved by the order of the Planning Authority went to the Minister with grievance and representation against the said order and the concerned Minister taking upon himself the function of an appellate authority examined the whole matter and took a decision of his own permitting change of land use.
8. In the above view of the matter, in our opinion, the entire exercise of the department which ultimately culminated in the government order at Annexure 'A' is ab initio void and, without jurisdiction since the State Government had no original or appellate powers to accord permission for change of land use under Section 14A of the Act.
9. In STATE OF PUNJAB v. HARI KISHAN SHARMA, while dealing with the provisions relating to grant of licences under the Punjab Cinemas (Regulation) Act, 1952, it was held by the Supreme Court that the scheme of the Act clearly indicates that there are two authorities being the Sub-Divisional Officer as the licensing authority and the State Government who are expected to function under the said Act, it was found that under the scheme of the Act the licensing authority was given sole power to deal with the applications for licences in the first instance and this basic requirement could not have been changed by the Government by issuing any executive orders or even by making rules under Section 9 of the Act. The Supreme Court further observed that-
"The control of the State Government under Section 5(2) subject ' to which the licensing authority has to function is very wide; but however wide this control may be, it cannot justify the State Government to completely oust the licensing authority and itself usurp its functions. The licensing authority has to act under the control of the State Government, but it is the licensing authority which has to act and not the Government itself."
10. Mr. B.V. Acharya, learned Senior Counsel for the 6th respondent, has submitted that since in the present case, it is a matter of record that the local authority or the Road transport corporation has shown their disinclination to acquire the land for the purpose for which it has been reserved in the CDP, therefore in view of the right of the owner to use his land in the manner he desires, even if the impugned order at Annexures 'A' is found to be unauthorised and ultravires, powers of the State Government, the same should not be interfered within the writ jurisdiction.
11. In our opinion, the said submission of Sri Acharya has to be outrightly rejected in view of Section 69 of the Act which provides for sufficient safeguard to the owners of the lands in a situation where the lands are not acquired as per the CDP for the use mentioned therein. Section 69 of the Act reads thus:-
69. Acquisition of land designated for certain purposes in a development plan.-
(1) The Planning Authority may acquire any land designated.-
(i) in an Outline Development Plan for a purpose specified in Clause (b), (c) or (d) of Sub-section (1) of Section 12, or for any public purpose out of those specified in Clause (a) of Sub-section (1) of Section 12; or
(ii) in a Comprehensive Development Plan for public purposes, by agreement or under the. Land Acquisition Act, 1894, (Central Act 1 of 1894), as in force in the State. If the land is acquired under the Land Acquisition Act, 1894, the provisions of the said Act as amended by Section 72 of this Act shall apply to the determination of compensation for the acquisition of such land.
(2) If the designated land is not acquired by agreement within five years from the date the Comprehensive Development Plan is published under Sub-section (4) of Section 22, or if the proceedings under the Land Acquisition Act, .1894, are not commenced within such period, the owner or any person interested in the land may serve notice to the Planning Authority and if within six months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the designation shall be deemed to have lapsed.
12. In the present case, the Planning Authority for the development of the area in question has published the CDP only on 29.12.1992 and the concerned authorities have still time to initiate acquisition proceedings. In case they failed to do so, the owner or the person interested in the land has been given a statutory right to serve notice on the Planning Authority and if, within six months from the date of service of notice, steps are not commenced for acquisition of the land in question, then the designation assigned to the land in the CDP shall be deemed to have lapsed thereby authorising the owner or the person interested to put the land in proper use as per his plans subject to other regulatory provisions.
13. For the aforesaid reasons, the Writ Petition is allowed quashing the orders at Annexures 'A', 'B' & "C' and setting liberty to the 6th respondent to exercise his right in terms of Section 69 of the Act as and when the occassion arises.
14. In the circumstances, there will be no order as to costs.