Karnataka High Court
Smt Vanitha L vs The State Of Karnataka on 11 November, 2020
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.8066/2020 (LB-RES)
BETWEEN
SMT VANITHA L
DAUGHTER OF LATE G LAXMAN RAO,
AGED ABOUT 39 YEARS,
RESIDING AT NO.1644/A-1,
'ASHRAY', 1ST CROSS,
A BLOCK, SS LAYOUT,
DAVANAGERE 577006
...PETITIONER
(BY SRI VIVEK HOLLA, ADVOCATE FOR
SRI SANTOSH S GOGI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY THE PRINCIPAL SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
VIKAS SOUDHA,
BANGALORE-560001
2. THE COMMISSIONER
DAVANAGERE AND HARIHARA
TOWN PLANNING AUTHORITY,
SRI DEVARAJ ARASU LAYOUT,
'A' BLOCK, PB ROD,
DAVANAGERE- 577006
...RESPONDENTS
(BY SMT VANI H, AGA FOR R1
SRI S MAHESH, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
DIRECTION QUASHING THE MASTER PLAN 2021 FOR THE
DAVANAGERE AND HARIHARA LOCAL PLANNING AREA IN SO
FAR AS FIXING BUILDING LINE TO 75 METERS IN CHAPTER
2
XI AT PAGE 91 AS PER ANNEXURE-N ISSUED BY THE R-2
AND ETC.
THIS WRIT PETITION IS COMING ON FOR ORDERS
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
R. DEVDAS J., (ORAL):
The petitioner is the owner of 2 acres 09 guntas of land in Sy.No.52/4 of Vaddinahalli Village, Anagodu Hobli, Davanagere Taluk and District. The petitioner has got the land converted from agricultural use to non-agricultural commercial purposes in terms of the Office Memorandum dated 15.03.2019 issued by the Deputy Commissioner.
One of the conditions imposed in the Office Memorandum of conversion is that owners of properties situated adjacent to National Highways and State Highways, shall not put up any construction within the distance of 40 mtrs. from the centre of such Highways.
2. The petitioner made an application for allotment of petrol bunk retail outlet dealership and 3 sought to establish the same in the land in question. On allotment of the retail outlet dealership by the Hindustan Petroleum Corporation Limited (HPCL for short) and as per Clause 10 of the Letter of Intent, the petitioner was required to secure a 'No objection Certificate' (NOC) from the appropriate authorities. It was also pointed out that at Clause No.16 in the Letter of Intent, it is provided that if the petitioner is not able to provide development plan within the specified time or fails to fulfill the terms and conditions of the Letter of Intent, the allotment would be cancelled. It follows that the initial security deposit would also be forfeited.
3. The learned Counsel for the petitioner submits that the petroleum Corporation i.e., HPCL has given a requisition dated 27.04.2019 to the Deputy Commissioner, Davangere, to issue a No objection Certificate to establish the petrol bunk in the petitioner's land. Such No objection certificate was also required from various authorities like the Superintendent of Police, Fire and Emergency 4 Services Department, Davangere, Project Director, National Highways Authority of India, Commissioner, Davangere Harihar Urban Development Authority, Tahsildar, Davangere, the Executive Engineer, BESCOM, Davangere and the Panchayat Development Officer, Davangere. It is submitted that the Deputy Commissioner, Davangere, by his letter dated 04.05.2019 informed all such authorities, as per their jurisdiction and scope of work, to inspect the spot and furnish their opinion for issuance of No Objection Certificate.
4. The grievance of the petitioner in the present writ petition is that the Commissioner of the Urban Development Authority by issuing an endorsement dated 06.03.2020 has refused to approve the single layout plan on the ground that as per the approved Master Plan 2021, a minimum of 75 meters is required to be left from the center of National Highway, as the same is reserved for formation of road and there is no provision for approval of single layout plan. The petitioner was therefore required to 5 submit a revised plan leaving 75 mtrs. from the center of the Highway and thereafter provision could be made for construction activity.
5. Sri Vivek Holla, learned Counsel appearing for the petitioner submits that under similar circumstances, a communication dated 13.12.2019 made by the GM (Tech) and Project Director, NHAI, PIU-Chitradurga, addressed to the Principal Secretary of the Urban Development Department, Government of Karnataka, Bangalore, clarified the position that on NH-48 (Old NH-4), the ROW (right of way) is 30 mtrs. and building line shall be 40 mtrs. on either side of the center line of the National Highway road. It was also clarified that the Circular No.PWD:362:CRM:98:
Bangalore, dated 09.10.1998 was also required to be followed. Consequently, the Principal Secretary of the Urban Development Department, has conveyed the said clarification to the Commissioner of the Urban Development Authority by a written communication dated 03.02.2020 at Annexure 'K'. 6
6. The learned Counsel would further submit that the property in question is not adjacent to the bypass road. It is submitted that the Commissioner, on a mistaken notion has noted that the property is situated next to the bypass road and is therefore insisting that the petitioner should leave 75 mtrs. from the midpoint of the National Highway. In this regard, a clarification was also sought by the petitioner and the concerned authority of the National Highway has issued a clarification dated 10.08.2020 which is produced at Annexure 'U', alongwith a memo dated 11.08.2020 that the land in question is not situated next to the bypass road. The learned Counsel therefore submits that prayer Nos.3 and 4 in the writ petition seeking a writ of certiorari quashing the endorsement dated 06.03.2020 and consequent direction to consider the representation dated 17.02.2020 is required to be issued to the Commissioner of the Town Planning Authority.
7. Sri S.Mahesh, learned Counsel appearing for the second respondent-Commissioner, Davanagere & 7 Harihara Town Planning Authority, submits that the authority is required to consider any application made to the authority only on the basis of the Master Plan and therefore it cannot be accepted that the clarification issued by the National Highways Authority would prevail over the provisions of the Master Plan. Moreover, it is submitted that the clarifications issued by the National Authority is not with respect to the property in question and therefore such clarification cannot apply to the facts of this case.
8. In other words, it is the contention of the learned Counsel for the respondent-Town Planning Authority that when it comes to the interpretation of the provisions of the Master Plan, the Town Planning Authority will have the last word.
9. Learned AGA has pointed out to the communication dated 13.12.2019 made by the concerned authority of the National Highway and the further clarification in that regard said to have been made by the Principal Secretary of the Urban 8 Development Department and submits that even with respect to the said property which was the subject matter of those communications dated 13.12.2019, the Town Planning Authority has not sanctioned the plan pursuant to the communications. The learned AGA has furnished the relevant documents along with the statement of objections as seen at Annexures 'R3', 'R4' and 'R5'.
10. The learned AGA submits that it is also required to be brought to the notice of this Court that the Town Planning Authority has forwarded the revised Master Plan seeking sanction and in the revised Master Plan, Authority has taken into consideration the grievance of the land owners who have their lands adjacent to the National Highway and in that regard, the Development Authority has forwarded a proposal to reduce the building line from 75 mtrs. to 40 mtrs. It is therefore submitted that it is in the interest of the petitioners to wait for the approval of the revised Master Plan.
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11. Heard the learned Counsels and perused the petition papers.
12. Having heard the learned Counsels, this Court finds that there is some confusion on the factual aspects. It is the contention of the petitioner that the prescription of building line at Table No.22 of the Davanagere, Harihar Master Plan 2021 (Final) at Sl.No.20 is applicable only to the bypass to NH-4 (four lane road) which includes service road, but the property in question is not situated adjacent to the bypass to NH-4 and neither it is situated next to the service road.
13. The learned Counsel for the petitioner further clarifies that the contention of the petitioner is that the lands are not situated next to the bypass to NH-4 and the service road to the extent of the bypass. In other words, it is contended that the property in question lies on the old National Highway and such Old National Highway may also have a service road but the building line as provided in Table No.22 would be applicable only to cases where the 10 lands are situated next to the bypass and the service road attached to the bypass.
14. Since there is a factual re-assessment that may be required, this Court is of the considered opinion that the matter could be disposed of granting liberty to the petitioner to make one more representation clarifying the position as enumerated hereinabove to the Commissioner, Davanagere & Harihar Town Planning Authority. If such a representation is given by the petitioner, the Commissioner, Town Planning Authority, is required to cause an enquiry or survey, permitting the petitioner to participate in such an enquiry to clarify the position and thereafter the Commissioner may proceed to pass appropriate orders. The entire exercise shall be completed as expeditiously as possible and at any rate within a period of four weeks from when the petitioner makes a representation to the Commissioner, Davanagere Harihar Town Planning Authority. Needless to observe that the authorities of the National Highway may also be 11 required to assist the Commissioner in the entire exercise.
The petition stands disposed of in the above terms.
Sd/-
JUDGE JT/-