Dr. Anand vs State of Karnataka and Others

Heard Sri Madanmohan M. Khannur, learned Counsel for the petitioner and Sri Basavaprabhu S. Patil, learned Counsel for respondent 2 and Sri M.H. Ibrahim, learned Government Pleader who had taken notice on behalf of respondents 1 and 3.

By this petition, petitioner has sought for issuance of writ of certiorari for quashing letter Annexure-E dated 14-11-1997 and endorsement Annexure-G dated 1-1-1998 bearing No. hu.da.na.pra.yovi.vinyas.4: 97-98, 3512. He has also sought for issuance of a writ of mandamus directing 2nd respondent to release the layout land duly approved as per application dated 26-11-1997 vide Annexure-F. Petitioner has further sought for any such other order or direction or writ as in the circumstances of the case this Court deems fit and proper.

The facts of the case as per allegations made in the writ petition are that, the petitioner claims that the property in dispute has been ancestral property and it had been purchased by the petitioner''s father Sri N.B. Kabbur in Court auction in execution case Dharkhest No. 152/52 on the file of learned Civil Judge, Dharwad on 8-9-1958 for sale consideration of Rs. 6,515/-. Petitioner has further alleged that his father Sri N.B. Kabbur had got the land converted from agricultural to non-agricultural user and he got necessary orders from the Deputy Commissioner, Dharwad, in No. LND.SR.2045, dated 25-2-1965. It may be mentioned that copy of this order has not been annexed with the petition, but allegation is there. Petitioner''s case is that his father got the layout plan of the land approved by the then Consulting Surveyor, Government of Bombay on 15-7-1952 and that said layout plan was revised by the respondents in the year 1970 and 1972. Petitioner''s case is that the property in dispute measuring 100 feet (2168 sq. mts.) was left from the boundary of railway property to provide 60 feet link road from railway goods shed to University road. Petitioner''s case is that petitioner filed declaration under the provisions of Urban Land (Ceiling and Regulation) Act and the same had been finalised by respondent 3 holding that petitioner is having an excess land of 10647 feet i.e., 2223 sq. mts. Petitioner has further alleged that he has taken exemption from the Government u/s 20 of the Urban Land (Ceiling and Regulation) Act. Petitioner further alleged that he had moved an application before the Hubli-Dharwad Development Authority, challenging the setback area providing 60 feet link road and requested that it should be reduced to 40 feet from the railway track and not from the railway property boundary. Petitioner''s case is that vide resolution Annexure-B to the writ petition namely resolution 22, dated 31-10-1992, respondent 1 revised the layout plan and permitted the petitioner to make use of the property in dispute for residential purposes i.e., it changed the user of the land provided for 60 feet link road to be reduced to 40 feet link road and leaving remaining area for being used by the petitioner for residential purposes. Petitioner''s case is that a fresh declaration u/s 15 of the Urban Land (Ceiling and Regulation) Act had been filed by the petitioner before the 3rd respondent i.e., the Deputy Commissioner and Competent Authority vide Annexure-C to the writ petition, and that matter is still pending before the authority for final orders. Petitioner has alleged that he has produced ''No Objection Certificate'' issued by the railway authorities for user of this disputed area for residential purposes. Petitioner''s case is that respondent 2 by letter dated 14-11-1997 informed respondent 3 i.e., the Competent Authority that the said land is reserved for park, overlooking its resolution 22 dated 31-10-1992 permitting to make use of the land for residential purposes. Petitioner''s case is that he requested the respondent 2 i.e., the Hubli-Dharwad Urban Development Authority vide his letter dated 26-11-1997 i.e., Annexure-F to release the layout plan revised as per resolution 22, dated 31-10-1992 permitting the use of the land for residential purposes. In response to the letter Annexure-F of the petitioner, respondent 2 sent an endorsement to the petitioner asking the petitioner to produce the permission from the Government to change the land use from railway margin to residential purpose. Petitioner felt aggrieved from the letters dated 14-11-1997 addressed by the Hubli-Dharwad Urban Development Authority-respondent 2 to the Competent Authority under the Ceiling Act as well as having felt aggrieved from the endorsement issued by the Hubli-Dharwad Development Authority to the petitioner dated 1-1-1998 and has come up before this Court by this petition under Article 226 of the Constitution.

Petitioner''s case is that once the respondent 2 has permitted the change of user of the land and has ordered that only 40 feet road will be provided and rest was to be left for user of residential purpose, the respondent had not authority to issue letter dated 14-11-1997 saying that land is reserved for park or asking the petitioner to seek Government''s permission for user of the land otherwise than provided under the law.

On behalf of the respondent 2, statement of objections has been filed. Respondent 2 in paragraph 4 of statement of objections has alleged as under:

"(4) It is submitted that this respondent in its meeting dated 31-10-1992, in its subject No. 22, resolved to modify the layout plan. This respondent also informed the petitioner to produce necessary Government order for change of land use from railway margin/open space to residential use as per letter dated 1-1-1998. This requirement is sought under the Town and Country Planning Act, 1961 u/s 14A. As per the Comprehensive Development Plan (C.D.P.) approved by the Government, the area in question is earmarked for railway margin/open space and 60 feet road".

In paragraph 6, it has been stated:

"It is submitted that as per the C.D.P., this area is reserved for railway margin/open space and 60 feet road. Hence, in that view of the matter, it is the State Government who has got power to permit the change of the land use and not the railway authorities".

It has been further stated in paragraph 7:

"It is submitted that u/s 14A of the Town and Country Planning Act, 1961, it is only the State Government who has got power to permit for change of land use, in consultation with this respondent, following the procedures contemplated under the Town and Country Planning Act".

On behalf of the petitioner, it has been contended by the learned Counsel for the petitioner Sri Madanmohan M. Khannur that once the authority i.e., respondent 2 had accepted the request of the petitioner for modifying the comprehensive Development Plan and has accepted that only 40 feet land is to be used for link road and as regards remaining 20 feet area, the petitioner bad been allowed to make use of the same for residential purposes vide resolution dated 31-10-1992. Therefore, it was not open to the respondent 2 to contend that it is reserved for park or to ask the petitioner to seek Government''s permission for change of user or for user of the land otherwise than provided under the Comprehensive Development Plan. Therefore, the letter issued to the petitioner by the respondent 2 is illegal and without authority. Learned Counsel contended that the railway has already granted ''No Objection Certificate'' for user of the land for residential purpose and once the railway has no objection, there was nothing on the part of the Hubli-Dharwad Development Authority to issue such a resolution, Learned Counsel contended that obtaining Government''s permission u/s 14A was not a necessary (mandatory) requirement.

These contentions of the learned Counsel for the petitioner have been hotly contested on behalf of respondent 2 by Sri Basavaprabhu S. Patil and on behalf of the State Government by Sri M.H. Ibrahim, who has taken notice of this petition.

It has been contended on behalf of the respondents that in view of Section 14 of the Act when the Comprehensive Development Plan has come into operation, the land could be used only in accordance with the provisions of the Act, development plan and the regulations framed and not otherwise with exception to the cases where a permission for user otherwise than covered by Section 14 is permitted. Learned Counsel contended that obtaining of Government''s approval cannot be said to be discretionary. On behalf of the respondents, it has been urged that u/s 14 of the Act for the user of the land covered by the development plan, requirement of permission for change of user is necessary. Section 14 is only an empowering provision which empowers the Plan- ning Authority concerned that the Planning Authority may permit the user of the land otherwise than provided under the Development Plan. But that permission is subject to the approval by the Government. It has been contended by the learned Counsel for the respondent that before granting permission, prior approval of the Government has to be obtained. Learned Counsel for respondent 2-Sri Basavaprabhu S. Patil in addition to the above contentions submitted that by Annexure-G what has been mentioned is that for layout plan being effected the prior permission of the Government has to be taken. He further contended no doubt petitioner has been required to get the permission of the Government. He contended that it is not the petitioner who is being required to obtain the Government''s permission, but the authority before granting permission has to obtain approval of the Government and therefore this order has not been communicated by the respondent 2 by any letter of communication. No doubt, petitioner had made an application to release the layout plan. But it is mentioned that before resolution could be given effect or communicated, permission of the Government has got to be obtained and so no copy of the resolution has been communicated as such.

I have applied my mind to the contentions made by the learned Counsels for the parties. Before proceeding further, it will be very appropriate at this juncture to quote in extenso the relevant provisions of Section 14 and Section 14A of the Karnataka Town and Country Planning Act, 1961, which reads as under:--

"Section 14. Enforcement of the Outline Development Plan and the Regulations.-

(1) On and from the date on which a declaration of intention to prepare an outline 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 shall, (subject to Section 14A) conform to the provisions of this Act, the Outline Development Plan and the regulations, as finally approved by the State Government under sub-section (3) of Section 13.

(2) 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 provision 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;

(b) the following operations or uses of land shall not be deemed to involve a development of any building or land, namely:--

(i) the carrying out of works for maintenance, improvement or other alteration of any building being works which affect only the interior of the building or which do not materially affect the external appearance of the building;

(ii) the carrying out of works in compliance with any order, or direction made by any authority under any law for the time being in force;

(iii) the carrying out of works by any authority in exercise of it''s powers under any law for the time being in force;

(iv) the use of any building or other land within the cartilage of a dwelling house for any purposes incidental to the enjoyment of the dwelling house as such;

(v) when the normal use of land which was being temporarily used for any other purpose on the day on which the declaration of intention to prepare the Outline Development Plan is published under sub-section (1) of Section 10 is resumed;

(vi) when land was normally used for one purpose and also on occasions for any other purpose, the use of the land for that other purpose on similar occasions.

(3) Every application for permission under sub-section (2) shall be accompanied by a plan, drawn to scale showing the actual dimension of the plot of land in respect of which permission is asked, the size of the building to be erected and the position of the building upon the plot and such other information as may be required in this behalf by the Planning Authority.

Section 14A. 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 suck 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 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 provisions 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 objec- tions from the public within a 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-sections (2) and (3) of Section 14 shall apply mutatis mutandis to the change in land use or development from the Outline Development Plan".

A reading of Section 14 perse reveals that from the date of publication of declaration of intention to prepare an outline, it has been provided that every land use and change in land use and every development in the area covered by the plan shall conform with the provisions under the Act and the Outline Development Plan and the regulations framed thereunder as finally approved by the State Government. This general principle has been subjected to one exception namely it has been subject to what has been provided in Section 14A. The mandate of sub-section (2) is that no change shall be made in the use of the land or development except with the written permission of the Planning Authority. The proviso further provides that where the use or change of land use requires diversion of agricultural land to non-agricultural purposes, until and unless the applicant concerned has obtained necessary sanction and permission as required by the provisions of Section 95 of the Karnataka Land Revenue Act, 1964 for such diversion, no permission shall be granted by the Planning Authority for change of user. It means one of the conditions for being permitted to change of land use is that before obtaining that permission of the Planning Authority, if a land is an agricultural land, then person concerned must obtain the requisite permission under the Section 95 of the Karnataka Land Revenue Act, 1964 for such diversion. Section 14 explanation defines what is the meaning of the expression "development" and Section 14A is a provision which empowers the Planning Authority to allow such changes, but granting of permission or allowing change of use of land has been made subject to prior approval of the State Government. Section 14A cannot be taken that it makes granting of permission obligatory. In all, Section 14A is very clear that after coming into force of Outline Development Plan, this section empowers the Planning Authority to allow change in the land use or development from Outline Development Plan as may be necessitated in the circumstances as mentioned in the section. This section is an empowering provision which provides that the Planning Authority may or may not grant permission for change of use of land or development. But, in every case, when the authority has to allow the change of land use, no doubt, it may resolve to allow it, but the resolution of the authority may not be effective order until it is placed before the State Government for approval and approved by the Government. When the section says Planning Authority may allow, it may take a tentative decision to allow, but that tentative decision had to be sent to the Government for consideration and approval. It is after the approval granted by the Government, it has to be communicated to the person concerned. Nowhere in the petition, the petitioner has asserted that resolution Annexure-B had been communicated to him. He might have been able to get a certified copy, but it is nowhere stated how he got it. This resolution Annexure-B cannot by itself be taken to have authorised the change or granting of the relief claimed by the petitioner in his application u/s 14(2). Before the communication, prior approval of the Government has to be taken which is not taken. Who has to take the approval of the Government? It is not the petitioner or the person who has applied for change. It is the authority who has to take previous approval before communicating that order. Therefore, Annexure-B is meaningless. It appears Annexure-B is based on wrong understanding of impact of Section 14 to this extent that petitioner had to obtain the permission of the Government. He has got the permission from the Planning Authority. Planning Authority should communicate it to the petitioner after obtaining approval from the Government. Until it gets the approval from the Government, it could not communicate it to the petitioner, because it is one of the trite principles of law that when power is given to do certain things and provisions are there to circumscribe the exercise of that power, then the power has to be exercised in the mode specifically prescribed under the section. Here mode prescribed is that Planning Authority could resolve to grant permission, but before granting, it will obtain the written approval of the Government. Once the Government grants approval, then the authority may allow such changes in the land use or development from the Outline Development Plan. It is the duty of the authority to get permission.

In this view of the matter, in my opinion, Annexure-G requiring the petitioner to obtain permission from the Government deserves to be quashed. No doubt, earlier part is correct when the respondent say that necessary approval has to be taken with respect to resolution. But direction to the petitioner to obtain approval from the Government is illegal. It is the duty of the respondent to get it. Use of land could not be changed except in accordance with Section 14 read with Section 14A. Therefore, if land has been reserved for railway margin, it could neither be reserved for park nor it could be changed into residential use.

Thus considered, it appears just and proper only to issue a direction in the nature of mandamus to the respondent 2 that if it has adopted a resolution in 1992 vide resolution 22 and it is of the opinion that the change should be allowed even after six years, it has to refer the matter to the Government for obtaining its approval and after approval is granted by the Government, it may communicate the same to the petitioner. If the Government does not grant approval, Planning Authority may reject the application of the petitioner disclosing explaining the Government''s intention and order.

Writ petition is thus allowed to this extent that later part of endorsement dated 1-1-1998 is quashed where the petitioner has been required to obtain permission of the Government. Further respondent 2 is directed to take action in accordance with Section 14-A(1) at the earliest possible. Respondent 1-State Government is expected to look into the circumstances particularly of long delay in the matter as resolution has been passed in 1992, that it shall also expedite the matter of granting or refusal of the approval to the resolution passed by the Plan- ning Authority in the matter of granting permission for change of use of land. It is expected that respondent 2 will take its action within a period of six weeks from the date of receipt of this order and the Government is expected to consider and dispose of the matter within six months from the date of receipt of reference of the matter from Planning Authority seeking approval. Let the direction to the above effect be issued to the respondents 1 to 3. Writ petition is allowed in part as above. Parties are directed to bear their respective costs.

Learned Government Pleader is permitted to file his memo of appearance.