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It is furthermore not in dispute that the first Comprehensive Development Plan was prepared in the year 1984, whereas the second Comprehensive Development Plan was prepared in the year 1995. The change contemplated thereby is only from one category of land use to another. The land use indisputably is categorized into six categories, details whereof would be noticed later.

Sub-section (2) of Section 15 of the Act, which provides for a deemed grant, refers only to the change of permitted category. It is furthermore not in dispute that by a notification dated 05.01.1995, the Comprehensive Development Plan was notified providing for Zoning of Land Use and Regulations of the BDA. Under the heading "Residential Zone", two sub clauses were made, viz. (a) uses that are permissible; (b) uses that are permissible under special circumstances by the Authority. Restaurant does not come within the purview of Annexure II of the said Zoning Regulations i.e. in either of the aforementioned categories. Schedule I thereof sets out a list of service industries that are permissible in Residential Zone (as a part of Residential building)/Retails Business Zone. The Regulations framed were approved by the Government under Section 13(1) of the Act.

ANALYSIS OF THE STATUTORY PROVISIONS:

The Act prior to coming into force of Section 14-A of the Act contained two provisions for enabling change in land use. The definition of 'land use' indisputably will have to be read with the Zoning Regulations.

Section 14(1), as it then stood, of the Act provided that every change in land use and every development in the area covered by the Plan subject to Section 14A shall conform to the provisions of the Act. Section 14(2), however, provides that no such change in land use or development shall be made except with the written permission of the Planning Authority which shall be contained in a commencement certificate in the form prescribed. Section 15 provides for the procedure required to be followed where the Planning Authority is required to pass an order in terms of Section 14 of the Act. So far as changes of land use or development from the Outline Development Plan is concerned, the same would be subject to the procedure laid down in Section 14-A of the Act. Outline Development Plan being a one time Plan, evidently sub-section (2) of Section 14 had no application. It is only for that purpose Section 14-A had to be introduced. Section 14-A categorically states that change in the land use or development from the Outline Development Plan must be necessitated by : (i) topographical or cartographical or other errors and omissions; (ii) 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; and (iii) circumstances prevailing at any particular time by the enforcement of the Plan.

CHANGES OF USER:

We have noticed hereinbefore that so far as running of a hotel in a residential zone is concerned, having regard to the Zoning Regulations, the same is not permissible.

The Zoning Regulations provide for use of land that are permitted and may be permitted under special circumstances by the authority in the local planning area of Bangalore. Thus, even for the purpose of invoking clause

(b) of the Regulations affecting residential zone must be referable to the special circumstances which were obtaining. We may, at this stage take note of explanation appended to Section 15. In terms of the said explanation, the power to grant necessary permission under Section 15 for a change of user of land would include the power to grant permission for retention on land of any building or work constructed or carried out thereon before the date of the publication of the declaration of intention to prepare an Outline Development Plan under sub-section (1) of Section 10 or for the continuance of any use of land instituted before the said date.

The Planning Authority has no power to permit change in the land use from the Outline Development Plan and the Regulations. Sub-section (1) of Section 14, as it then existed, categorically stated, that every change in the land use, inter alia, must conform to the Outline Development Plan and the Regulations which would indisputably mean that it must conform to the Zoning Regulations.

The provisions of the Act are to be read with the Regulations, and so read, the construction of Sections 14 and 15 will lead to only one conclusion, namely, such changes in the land use must be within the Outline Development Plan and the Zoning Regulations. If running of a hotel or a restaurant was not permissible both under clauses (a) and (b) of the Zoning Regulations in a residential area, such change in the land use could not have been permitted under Sections 14 read with 15 of the Act. It is precisely for that reason, Section 14-A was introduced.