Adappa and Others vs The Belgaum Development Authority and Others

B. Manohar, J—Petitioners, in these writ petitions, have sought for a writ of mandamus directing the 2nd respondent to approve the layout plan in respect of lands bearing Sy. Nos. 129/1, 129/2, 129/3 and 125/2 situate at Bastwad village, Bagewadi Hobli, Belagavi Taluk, in terms of Section 2(7) of the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as the ''Act'' for short). Further, petitioners have sought for quashing the endorsement dated 19.11.2014 issued by the 2nd respondent.

Since common questions of law and facts are involved in these writ petitions and the relief prayed for in these writ petitions are similar, hence writ petitions are clubbed together and disposed of by this common order.

Petitioners in W.P. No. 110771/2014 are the owners of land bearing Sy. No. 129/1 measuring 1 acre 10 guntas; petitioners in W.P. No. 110772/2014 are the owners of lands bearing Sy. No. 129/2 measuring 2 acres 4 guntas and Sy. No. 129/3 measuring 33 guntas; and the petitioners in W.P. No. 110773/2014 are the owners of land bearing Sy. No. 125/2 measuring 6 acres 1 guntas situated at Bastwad village, Bagewadi Hobli, Belagavi Taluk. The said lands are situated near Suvarna Soudha at Belagavi. The lands in question were originally agricultural lands. Petitioners wanted to form a layout and demarcate the site and form residential layout. They made an application for conversion of the said lands for non-agricultural purpose under Section 95 of the Karnataka Land Revenue Act, 1964. Since the Deputy Commissioner did not consider the said application, petitioners filed Writ Petition No. 75476/2013 seeking direction to the respondent for conversion of land. This Court on 18.01.2013 issued a direction to the Deputy Commissioner to consider the application seeking conversion of land within a period of three months. The Deputy Commissioner, by his order dated 22.03.2013 rejected the said application. Being aggrieved by the same, petitioners filed W.P. Nos. 78306, 78307, 78308 and 78309 of 2013. This Court by its order dated 26.06.2013 quashed the order passed by the Deputy Commissioner and issued a direction to the Deputy Commissioner to consider the application seeking conversion of the land in accordance with law. Pursuant to the directions issued in the said writ petitions, the Deputy Commissioner, by his order dated 26.08.2013, has granted approval for conversion of the land from agricultural purpose to residential purpose with certain conditions. One of the conditions imposed is that the layout plan has to be got approved either by the Assistant director of Town and Country Planning or by the Belagavi Urban Development authority. It was also made clear that if the converted land was not used for purpose it was sought to be converted, within a period of two years from the date of order of conversion, the conversion order would stand cancelled automatically. In compliance of the conditions imposed by the Deputy Commissioner, petitioners submitted the layout plan to the 2nd respondent, as provided under Section 2(7) of the Act for approval of layout plan since the land in question was not situated within the urban area of Belagavi Taluk. However, the 2nd respondent without passing any orders forwarded the said application of the petitioner to the 1st respondent for approval of the layout plan on the ground that Bastwad village and surrounding area is included in Belagavi Urban area and the 1st respondent is the competent authority to approve the layout plan. The 1st respondent, by its endorsement dated 14.04.2014, informed the petitioners that the 1st respondent has no authority to approve the layout plan since Bastwad village and surrounding area was not included in Belagavi Urban area and that, as soon as the said area is included within the jurisdiction of Belagavi Urban Development Authority, necessary steps would be taken. Petitioners came to know that Bastwad village is not included in the Urban area of Belagavi Urban Development Authority. Accordingly, petitioners once again made an application/representation to the 2nd respondent on 27.10.2014 to approve the layout plan since the 2nd respondent was the competent authority to approve the layout plan. The 2nd respondent has not considered the said application. Hence, the petitioners have filed these writ petitions.

In the meantime, the 2nd respondent, by its communication dated 19.11.2014, has issued an endorsement stating that the Government has issued a notification dated 05.07.2012 including Bastwad village under the Karnataka Urban Development Authority Act, 1987, within the jurisdiction of Belagavi Urban Development Authority, as per Section 2(7)(ia) and Section 4A(1) of the Act and hence respondent No. 1 has to take necessary steps in the matter.

Being aggrieved by the said order, the petitioner filed an application seeking amendment of the writ petition seeking for quashing the order dated 19.11.2014.

Shri. F.V. Patil, learned advocate appearing for the petitioners contended that though the State Government, by issuing a notification on 05.07.2012 has taken decision to include Bastwad village and Shaganamatti village in the Belagavi local planning area, but it has not issued final notification as required under Section 13 of the Act. The planning authority has to fulfil Sections 9 to 12 and 13 of the Act. In the instant case, the Government has not yet approved the master plan in respect of Bastwad and Shaganamatti villages. Hence, the 2nd respondent is the competent authority to approve the layout plan. The endorsement issued by the 2nd respondent is contrary to law. Petitioners are left high and dry by the two authorities. Petitioners are entitled to use their lands as per their wishes. The order passed by the authorities is contrary to law and sought for issuance of mandamus to the respondent to approve the layout plan .

Shri. M. A. Hulyal, learned advocate appearing for the 1st respondent has filed statement of objections contending that the Government of Karnataka has issued a notification under Section 4A(1) of the Act and thereby included Bastwad and Shaganamatti villages in the Belagavi local planning area vide notification dated 05.07.2012 and directed the 1st respondent to submit the Master Plan for its approval after following the procedure contemplated under Sections 5, 9 to 12 and 13 of the Act. In order to prepare the Master Plan, the 1st respondent conducted land use survey work and prepared the base map in respect of the lands of the said villages. The subject was placed before the Meeting of the Authorities on 08.01.2015 and submitted a proposal to the State Government on 22.01.2015. the matter is pending before the State Government. Unless the final Master Plan of Bastwad and Shaganamatti villages are approved by the State Government and published in the State Gazette, the 1st respondent would not be in a position to approve the layout plan as sought for by the petitioners and therefore, sought for dismissal of the writ petitions.

Learned Additional Government Advocate appearing for respondent No. 2 filed statement of objections contending that the State Government issued notification on 05.07.2012 including Bastwad village under the Karnataka Urban Development Authorities Act, 1987 within the jurisdiction of Belagavi Urban Development Authority under Section 4A(1) of the Act. It is the duty of the 1st respondent to prepare the Master Plan and get it approved by the State Government. Once the Government issues notification including Bastwad village under the Belagavi Urban Development Authority, the 2nd respondent has no jurisdiction to approve the layout plan. Hence, the question of granting permission or approval of the layout plan will not arise and sought for dismissal of the writ petitions.

I have carefully considered the arguments addressed by the advocates appearing for the parties and perused the impugned orders and other relevant records.

Records disclose that the petitioners are the owners of various items of land bearing Sy. Nos. 129/1, 129/2, 129/3 and 125/2 situate at Bastwad village, Bagewadi Hobli, Belagavi Taluk. Their application for conversion of land for non-agricultural purpose was rejected by the Deputy Commissioner twice. In pursuance of the directions issued by this Court in W.P. Nos. 78306, 78307, 78308 and 78309 of 2013 disposed of on 26.06.2013, the Deputy Commissioner granted permission to convert the land from agricultural to residential purpose subject to fulfillment of certain conditions. Condition No. 3 imposed in the conversion order is that the layout plan has to be obtained either from the Assistant Director of Town and Country Planning Authority or Belagavi Urban Development authority, commencement of construction only after approval of layout plan and the petitioner has to leave necessary land for the road, road margin as per the approved plan. Further, as per condition No. 11, within two years of issuance of conversion order, petitioner shall use the land for the purpose it was converted failing which conversion order will automatically stands cancelled. In view of the conditions imposed in the conversion order, petitioners made an application for approval of layout plan by the Planning Authority under Section 2(7) of the Act. Admittedly, the land in question is not situated within the urban area of Belagavi Agglomeration limits. Though the petitioners made an application to the 2nd respondent, the 2nd respondent forwarded the same to the 1st respondent. The 1st respondent issued an endorsement dated 14.08.2014 stating that the lands for which approval for formation of residential layout is sought is not included in the urban limits of Belagavi Urban Development Authority and as soon as it is included in the urban area, action will be taken for approval of the plan. In view of that, the petitioners requested the 2nd respondent to approve the layout plan contending that the property falls within the planning area of the 2nd respondent and it is the competent authority to approve the layout plan. After filing of these writ petitions, the 2nd respondent has issued an endorsement on 19.11.2014 stating that in view of the Government Notification dated 05.07.2012 issued under Section 4A(1) of the Act including Bastwad and Shaganamatti villages in the Belagavi local planning area, it has no jurisdiction to approve the layout plan. The said order issued by the 2nd respondent is sought to be quashed in these writ petitions and a writ of mandamus is sought for directing the 2nd respondent to approve the layout plan since the Government has not approved the Master Plan as required under Section 13 of the Act. A reading of Sections 5, 9 to 12 and 13 makes it clear that the Planning Authority has to prepare the master plan. The same has to be forwarded to the State Government as required under sub-section (4) of Section 9 for inspector by the public. Unless the said master plan is approved by the State Government under Section 13 of the Act and is published in the Official Gazette, the master plan will not come into operation. The Planning authority shall publish in the prescribed manner the master plan and the reports as finally approved by the Government. The master plan and reports shall be permanently displayed in the office of Director of Planning Authority and a copy shall be kept available for inspection of the public at the Office of the Planning Authority. In the instant case, as stated by the Commissioner of Belagavi Urban Development Authority, Dr. Praveen Kumar in his affidavit, notification under Section 10 of the Karnataka Town and Country Planning Act, 1961 has been published in the Karnataka State Gazette on 12.02.2015 calling suggestions if any from the public. The said notification is published in Marathi daily news paper and also Kannada daily news papers. The Planning Authority has not received the notification issued by the State Government under Section 5 of the Act regarding present land use of lands of Bastwad and Shaganamatti village. After the notification under Section 5 of the Act is received from the State Government, respondent No. 1 has to place the subject before the meeting of the Authority for discussion and decision will be taken thereafter, unless the said property is included in the master plan, the 1st respondent has no jurisdiction to pass the order. In effect, the Bastwad and Shaganamatti village is not yet included in the urban area of Belagavi Urban Development Authority. Hence, the 2nd respondent is the competent authority to approve the layout plan.

The Hon''ble Supreme Court in the judgment reported in T. Vijayalakshmi and Others Vs. Town Planning Member and Another, AIR 2007 SC 25 : (2006) 9 JT 297 : (2006) 10 SCALE 455 : (2006) 8 SCC 502 : (2006) 8 SCR 534 Supp

"13. Town Planning Legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, is ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled so long as an appropriate amendment in the legislation is not brought into force."

"15. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that the building plans are required to be dealt with in terms of the existing law. Determination of such a question cannot be postponed far less taken away. Doctrine of Legitimate Expectation in a case of this nature would have a role to play."

In view of the law laid down by the Hon''ble Supreme Court, the authorities has to consider the layout plan submitted in terms of the existing law. Hence, the 2nd respondent is bound to consider the application of the petitioners for approval of the lay out plan and take appropriate decision. Accordingly, I pass the following order:

Writ petitions are allowed. The endorsement issued by the 2nd respondent is quashed. The 2nd respondent is directed to consider the application of the petitioners seeking approval of layout plan as expeditiously as possible but not later than three months from the date of receipt of a copy of this order.