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Judgment
These writ appeals are filed challenging order dated 23.06.2015 passed by the Hon''ble Single Judge, dismissing Writ Petition No.22825/2015
and connected cases.
For the sake of convenience, parties shall be referred to as per their status in the writ petitions.
Heard Shri R. Nataraj, learned Counsel for appellant and Shri Yogesh Naik, learned Counsel for respondent.
Brief facts of the case are, respondent, M/s.Bengaluru Mysore Infrastructure Corridor Area Planning Authority (''Planning Authority'' for short)
issued a notice dated 13.05.2015, under the provisions of the Karnataka Town and Country Planning Act, 1961 (''the Act'' for short), calling upon
petitioner to remove a ''Convention Hall'' by name ''Neelakanta Convention Centre'' constructed by him in Revenue Sy.No.13/A,B,C, 15/2C,
36/1,2,3,4, 37/5A, 5A and 5B of Madavara Village, Dasanapura Hobli, Bengaluru North Taluk. Petitioner challenged the said notice by filing
instant writ petitions and prayed for a writ of certiorari to quash the notice.
The Hon''ble Single Judge, dismissed the writ petitions holding inter alia that the Planning Authority was justified in issuing the notice. Feeling
aggrieved by the dismissal of the writ petitions, petitioner has preferred these appeals.
The solitary contention urged by Shri R.Nataraj, in support of these appeals is that, the structure in question erected by the petitioner is a
''temporary structure''. He submitted that the ''Convention Hall'' is constructed by using such engineering skill and material that it can be dismantled
at any time. He further submitted that, the size of the Convention Hall is adjustable and it can be increased or decreased based on the requirement
of hirer. He also submitted that the petitioner has taken the land on lease from its owner and obtained licence from the Panchayat Development
Officer to get power connection.
Thus, in sum and substance, the argument of the learned Counsel for the petitioner is that, the structure in question cannot be classified as a
permanent building and therefore, the notice issued by the Planning Authority is unsustainable.
Shri Yogesh Naik, learned Counsel for the Planning Authority, opposing these appeals submitted that, Explanation to Section 14(2)(a) of the
Act defines development of land. The petitioner has admittedly developed the land in question by constructing the huge Convention Hall without
obtaining a commencement certificate under Section 15 of the Act.
We have carefully considered submissions made by the learned Counsel appearing for the parties and perused the records.
Incontrovertible facts of the case are, petitioner has constructed a ''Convention Hall'' measuring 9923 square feet as discernable from the
Building Plan certified by the Panchayat Development Officer, produced as annexure ''G'' to the writ petitions. The photographs produced by the
petitioner in ''M'' series, appended to the writ petitions show that the Convention Hall is a ''State of Art'' air-conditioned building with manicured
lawns and sophisticated facade.
No material is placed on record to show that, the land in question has been converted for non-agricultural purposes. The averments contained
in the writ petitions disclose that the land measures about 2 acres 34 guntas. The lease deeds produced as annexures ''B'' and ''C'' to the writ
petitions clearly indicate that the lands in question bear revenue survey numbers.
Enforcement of master plan and the regulations is contemplated under Section 14 of the Act and the same reads as follows:-
Enforcement of the Master Plan and the Regulations.-(1) On and from the date on which a declaration of intention to prepare a Master Plan is
published under sub-section (1) of Section 10, every land use, every change in land use and every development in the area covered by the plan
subject to Section 14-A shall conform to the provisions of this Act, the Master Plan and the report, as finally approved by the State Government
under sub-section (3) of Section 13.
(2) xxxxx No such change in land use or development as is referred to in sub-section (1) shall be made except with the written permission of the
Planning Authority which shall be contained in a commencement certificate granted by the Planning Authority in the form prescribed:
Provided that where the use or change of land use under this section needs the diversion of agricultural land to non-agricultural purposes, such use
or change of use shall not be permitted, unless permission is obtained in accordance with the provisions of the Karnataka Land Revenue Act, 1964
for such diversion.
Explanation.-For the purpose of this section,-
(a) the expression ""development"" means the carrying out of building or other operation in or over or under any land or the making of any material
change in the use of any building or other land;
(emphasis supplied)
As noticed, the land in question is an agricultural piece of land. Explanation to Section 14(2) contains an express bar from making any changes
or developing any land except with the written permission from the Planning Authority. Proviso to Section 14 mandates that, where the use of land
needs diversion of agricultural land to nonagricultural purposes, such use shall not be permitted unless permission is obtained under the Karnataka
Land Revenue Act.
Permission for development of building or land can be taken up only after obtaining a commencement certificate under Section 15 of the Act.
Development is also defined in Section 2(1-c) of the Act, which reads as follows:
2(1-c) ""Development"" with its grammatical variations, means the carrying out of building, engineering, mining, or other operations in, on, over or
under land or the making of any material change in any building or land, or in the use of any building or land and includes sub-division of any land;
The sole contention urged on behalf of the petitioner is that the Convention Hall is a temporary structure. The averment made by the petitioner
clearly suggests that, after taking the land in question on lease, he has utilized the same to erect the structure in question for holding like marriages,
corporate events etc. The petitioner has precisely pleaded thus in this writ appeal:
One Sri. Shivalinge Gowda was the lessee of land bearing Sy.No.15/2A and 15/2C of Madavara Village, Dasanapura Hobli, Bangalore North
Taluk, measuring 1 acre and 20 guntas respectively in terms of two lease agreements dated 20.7.2013 and 2 acre 34 guntas in terms of a lease
deed dated 1.7.2013 executed by Nandi Economic Corridor Enterprises Ltd and was commercial land. Subsequently, the said Shivalinge Gowda
had executed Sub Lease Agreement in favour of his brother, the appellant herein. The appellant has utilized the said land for holding certain events
like marriages, corporate events etc.
(emphasis supplied)
Records of the case clearly disclose that it is an airconditioned Convention Hall measuring 9923 square feet. It appears to be no less in
standard than a permanent building constructed upon a well laid foundation, using brick and mortar or cement concrete.
In the conspectus of facts of this case, what needs to be examined is whether the structure erected by the petitioner can be treated as a
''temporary structure''. The purpose and intent of the petitioner as discernable from the pleadings is to erect the structure in question to hold events
like marriages, corporate events etc., for commercial gain. In the case of Purushottam Das Bangur and Others v. Dayanand Gupta reported in
(2012) 10 SCC 409, while considering the nature of a structure, the Hon''ble Supreme Court has held as follows:-
Applying the above to the case before it, the High Court held that the tenant in that case had constructed a kitchen which he intended to use
till the time he remained in occupation. The Court found that the case before it was not one where the tenant had constructed the structure for a
special purpose like a marriage in the family. Any structure which was used for any such limited period or definite event, function or occasion, even
if made of bricks and mortar would not amount to building or erecting a permanent structure. The Court observed: (Bimalendu Nath case [AIR
1965 Cal 408], AIR p. 411, para 5)
... A person raises a structure for the purpose of a marriage in the family. There he intends to use it only during the occasion and has no
intention to use it thereafter and intends to remove the structure thereafter. We cannot say that it would be a permanent structure even if it is made
of brick and mortar. In the circumstances of this case, the lessee has said that he wanted to use it as a kitchen. He never says that the kitchen was
required for a particular purpose temporarily. Therefore, we get from the evidence of the tenant that the tenant intended to use the structure as a
kitchen during the continuance of the lease, because the tenant requires a kitchen as long as the tenant uses the premises and as he wants, to use it
as a kitchen, he sufficiently expresses his intention to use it as a kitchen during the term of his tenancy which in this case is not definite. Therefore,
for purposes of Section 108(p) of the Transfer of Property Act, we would hold that the kitchen raised must be considered to be for a permanent
purpose.
To sum up, no hard-and-fast rule can be prescribed for determining what is permanent or what is not. The use of the word ""permanent"" in
Section 108(p) of the Transfer of Property Act, 1882 is meant to distinguish the structure from what is temporary. The term ""permanent"" does not
mean that the structure must last forever. A structure that lasts till the end of the tenancy can be treated as a permanent structure. The intention of
the party putting up the structure is important for determining whether it is permanent or temporary. The nature and extent of the structure is
similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108(p) of the Act.
Removability of the structure without causing any damage to the building is yet another test that can be applied while deciding the nature of the
structure. So also the durability of the structure and the material used for erection of the same will help in deciding whether the structure is
permanent or temporary. Lastly, the purpose for which the structure is intended is also an important factor that cannot be ignored.
(emphasis supplied)
It is not the case of the petitioner that the structure is erected for the sake of conducting a particular function such as, marriage or a corporate
event. On the other hand, the structure is given on rent to various prospective users to conduct their respective functions or events. Thus, the facts
on hand irresistibly lead us to hold that the petitioner has developed the land in question within the meanings contained in Section 2(1-c) and
explanation to Section 14(2) of the Act.
Development of land by the petitioner without written permission of the Planning Authority has rightly entailed in issuance of notice in question.
In view of the above discussion, we are at one with the view taken by the Hon''ble Single Judge.
Resultantly, these appeals fail and are accordingly dismissed.
In view of dismissal of the appeals, I.A.1/2015 does not survive for consideration and is accordingly disposed of. Appeals dismissed. We
make no order as to costs.