Marappa and Others. vs State of Karnataka

All these appeals under S. 33 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act) are from the orders dated 28-5-1979 and 5-10-1979 under S. 8 of the Act. Appeal 2/1980 is filed by 11 persons from the common order dated 5-10-1979 passed by the Special Deputy Commissioner and Competent Authority, Urban Land Ceiling, Bangalore, in case No. ULC (4) 874, 884, 899, 900, 901, 902, 903, 904, 907, 919 and 969 of 1978 79, respectively, and the same persons have filed 11 appeals 5 to 15 of 1980, each seperately, questioning the same common order. Appeal 4/1980 is from the order dated 28-5-1979 in ULC (4) 905/ 78-79.

All these appeals involve common questions of law and facts. Hence after hearing the learned counsel on both sides and by consent all these 13 appeals are clubbed together and a common order is passed in all these appeals. The original order shall be placed in Appeal No. 2/80 (ULC) and a copy thereof shall be kept in each of the remaining 12 appeals. Appeal 4/80 (ULC) filed by Smt. Vijayalakshmi is from the so called order dated 28-5-1979 wherein the Special Deputy Commissioner has only said that a draft statement be prepared and served under S. 8(3) of the Act. The appellant, however, has prepared the grounds of appeal as if there was a final order under S. 8(4) of the Act. I find from the record that after 28-5-1979 draft statement was prepared and served and the appellant preferred objections on 29-8-1979, but somehow those objections have not been considered so far by the Special Deputy Commissioner.

The facts of these cases in brief are as follows:

The appellants in their respective appeals filed their statements under sub-section (1) of S. 6 of the Act declaring the lands/with building held by them before the Special Deputy Commissioner and Competent Authority, Urban Land Ceiling, Bangalore. The Competent Authority verified the statements filed by the appellants and issued notices under sub-section (3) of S. 8 of the Act to the appellants along with the draft statement prepared under Sub-sec. (1) of S. 8 of the Act. In response to the notices calling upon the appellants to file their objections, if any, to the said draft statement, the appellants in their objections filed on different dates, prayed for dropping further proceedings under the Act on the ground that the term ''vacant land'' defined in the Act does not include agricultural lands mainly used for agriculture even though they are situate within the Bangalore Agglomeration; that the notice issued is misconceived and is not according to law; that the Competent Authority has misconceived the spirit of the various provisions of the Act; that the lands held by the appellants are agricultural lands which have been assessed by the Revenue Department and that they have been entered in the Land Revenue records before the appointed day for the purpose of agriculture; etc. On receipt of the above objections, the learned Competent Authority passed a common order overruling the objections of the appellants as not maintainable and confirming the draft statements already served, in case Nos. ULC(4) 874, 884, 899, 900, 901, 902, 903, 904, 907, 919 and 969/78 79 dated 5-10-1979, which have been impugned before this Authority in appeal Nos. 2 and 5 to 15/80 (12 cases).

The appellants in Appeal No. 2/80 (ULC) have filed a certified copy of the impugned order dated 5-10-1979. The appellant in Appeal No. 4/80 (ULC) has also filed a certified copy of the order impugned in case No. ULC (4) 905/78-79 dated 28-5-1979. Other appellents in Appeal Nos. 5 to 15/80 have not filed certified copies of the impugned order dated 5-10-1979. The appellants in these respective appeals have filed copies of the impugned order along with an application for dispensing with the production of certified copy of the order for the reasons sworn to in the affidavit annexed thereto.

The grounds made for exempting production of the certified copies are that the certified copy had been produced in the connected Appeal No. 2/80 and that since all the appeals involve the same questions of law and facts and the Special Deputy Commissioner and Competent Authority has passed a common order, production of certified copy in individual cases may be dispensed with. Perused the application and affidavit filed in support of the exemption from producing the certified copy of the order impugned in the above 11 cases. These applications are allowed and production of certified copies in individual cases dispensed with.

With regard to the question of limitation involved in these Appeals 2 and 5 to 15/80, the appellant in para 9 of the appeal memorandum has slated that the common order impugned was passed on 5-10-1979, that he applied for grant of certified copy on 12-10-1979 and that the copy was delivered to him on 29-12-1979 and that, therefore, the appeals filed on 18-1-1980 before this Authority will be within time as provided by S. 33 of the Act. On perusal of the original copy application available at page 105 of the file in ULC (4) 902 and 904/78-79 Sri K. Venkatarama Sastry, Advocate, applied for the certified copy of the order on 12-10-1979 and he received the certified copy on 29-12-1979. The records of the Special Deputy Commissioner and Competent Authority (Urban Land Ceiling) Bangalore also do not show any endorsement communicating the order to any of the appellants in the above appeals. The knowledge of the order can, therefore, be taken as the date of receipt of the certified copy, that is, 29-12-1979. The learned Assistant State Representative, who appeared for the State, has not raised any objection with regard to limitation. Hence, these appeals are treated as having been filed within time.

So far as Appeal No. 4/80 (ULC) filed by Smt. Vijayalakshmi is concerned, it is seen that the Special Deputy Commissioner has not given any date for pronouncement of the order, as could be seen from the order sheet maintained by him. The appellant was not also intimated of the date on which the orders would be pronounced nor the result of the order was communicated to her till Sri K. Venkatarama Sastry, Advocate, filed an application for grant of certified copy of the said order on 29-12-1979 in response to which a certified copy of the order was delivered to him on 29-12-1979. According to the appellant, this appeal will be within time from the date of delivery of the certified copy as she had no notice of the order impugned until she received the certified copy. This appeal has been preferred before this Authority on 18-1-1980. The learned Assistant State Representative who has appeared for the respondent, has also not filed any objections with regard to delay. In the circumstances, this appeal is also treated as one having been filed within time stipulated in S. 33 of the Act.

Heard Sri K. Venkatarama Sastry, learned counsel for the appellants, and also Sri R. Narayana Shetty, Assistant State Representative, on behalf of the respondent State.

The learned counsel for the appellants stated that the Urban Land Authorities have conceded that the lands in question are all agricultural lands and they are within the Urban Agglomeration of the City of Bangalore. According to the learned counsel, urban lands are those which are marked in the master plan according to definition in S. 2(o) and that urbanisable land is that which is not included in the urban land. He also referred to the definition of vacant land as found in S. 2(o) of the Act, which, according to the counsel, is fit for construction of buildings. Sri K. Venkatarama Sastry, also drew attention of this Authority to the preamble portion of the Act and argued that the Act is "an Act to subserve the common good". Under S. 6 of the Act, declarations will have to be filed regarding the vacant land if it is in excess of the ceiling limit. Whether these lands are actually included or not in the master plan prepared by the Bangalore Development Authority in the year 1976, the learned counsel stated that no such scheme is heard of and no notices have been issued to the appellants and no notifications have been issued regarding the master plan. The learned counsel, therefore, argued that in the absence of any master plan, these lands should be construed only as urbanisable lands situated in the Bangalore Agglomeration; and that even though they are urban lands, they are not vacant lands. The learned counsel argued that taking any view of the matter, the character of the lands in question is not altered and that the orders of the Special Deputy Commissioner and Competent Authority are erroneous and they are liable to be set aside. Sri K. Venkatarama Sastry, learned counsel, argued that correct interpretation of the term "vacant land" is incorporated in a decision of the Delhi High Court reported in Shanti Devi v. Competent Authority AIR 1980 Delhi 106 according to which decision, the learned counsel said, that so long as an agricultural land is not converted into non-agricultural purposes and the building regulations do not permit the construction of buildings on such land, such land cannot be called a vacant land. He also stated that all the lands of the appellants lie outside the Bangalore City Corporation limit, they are all agricultural lands, and in no case any vacant land exists within the limits of the Corporation and as there is strict prohibition to construct buildings on these lands, these lands do not come under the definition of vacant land as defined in S. 2(q) of the Act. He also said that even if the lands come under urban land, they cannot be equated to vacant lands.

The learned Assistant State Representative argued that the appellants filed their declarations on 14-9-1976 before the Competent Authority furnishing the details of vacant lands held by them in the prescribed form as provided in S. 6(1) of the Act. He stated that Explanation given in clause (o) "Urban Land" includes clause (q) also and that the explanation given in clause (o)(C) holds good to "vacant land" in clause (q). The learned Assistant State Representative argued that if any land is included in the master plan, it is urban land as well as vacant land according to the Explanation which is common to clauses (o) and (q). He brought to the notice of this Authority that there is a master plan prepared and published by the Government of Karnataka and these villages in entirety are included in the said master plan:

Kasaba Hobli-Geddalahalli (Sl. No. 28 of master plan),

Lottegollahalli (Sl. No. 46 master plan) and

Nagasettihalli (Sl. No. 53 master plan). He argued that there is no doubt regarding the fact that these are vacant lands and that they refer to both urban land and vacant land. According to the arguments put forth by the learned Assistant State Representative, this Authority has no jurisdiction to decide the validity of the master plan and that the Delhi High Court decision quoted by the learned counsel for the appellants does not refer to these cases as they are not identical cases. He, therefore, prayed that the orders of the Competent Authority may not be interfered with by this Authority and that the appeals may be dismissed.

In reply, Sri K. Venkatarama Sastry, stated that at best the lands in question may become urban lands since they were included in the master plan, but they cannot be called as vacant land, that for the term "vacant land" a number of exceptions are shown, i.e., clause (q)(i), (ii) and (iii) in S. 2 of the Act, but for urban land no exception is shown, and that urban land is quite different from vacant land. Mr. Sastry therefore prayed that the orders impugned in these appeals may be set aside.

The first question for consideration is whether the Outline Development Plan prepared under the Karnataka Town and Country Planning Act, 1961, is not binding on the appellants, for the simple reason that they were not aware of it and no notice had been served on them before or after the plan war prepared. There is no dispute that Outline Development Plan prepared under S. 14 of the said Town and Country Planning Act falls within the meaning of master plan under the Urban Land Ceiling Act. I am of the opinion that the Outline Development Plan approved by the State Government shall be conclusive and binding on all though individual notices are not served. S. 10 of the Planning Act only enjoins the publication of the plan in the Official Gazette and also give public notice inviting objections. It is nobody''s case that such publication was not done. There is a presumption that official acts have been performed and, therefore, I must say that the Outline Development Plan, which is the master plan, is binding,

It is not disputed that all the lands in these cases are specified in the master plan for residential or industrial purposes. Those are other than for agricultural purposes.

The next question is whether because these lands are specified in the master plan for a purpose other than agriculture, they become vacant lands notwithstanding the fact that they are mainly used for the purpose of agriculture. It should have been stated that all these lands are within urban agglomeration. S. 2(o) defines "urban land" and generally excludes land which is mainly used for the purpose of agriculture. But Explanation (C) in that Section states:

"Notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture".

It is clear that generally a land used for the purpose of agriculture is outside the scope of urban land, but becomes urban land when the master plan specifies or designates such agricultural land for purposes other than agriculture. Both the Explanations (B) and (C) are to be read into the definition of both "urban land" and "vacant land". Such is the clear and unambiguous meaning of the Explanation to S. 2(o).

According to S. 2(q) "vacant land" means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include (i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated;

(ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and (iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building.

Here also, generally vacant land does not mean land mainly used for purpose of agriculture, but this definition is necessarily subject to Explanation (C) to S. 2(o) which has an over riding effect. Not only that the language of S. 2(o) and 2(q) is plain and unambitious but the purpose or intention of the legislature in making an exception in the case of land earmarked in the master plan for purposes other than agriculture, is very clear. The master plan or the outline development plan is meant for regulating the development and improvement of an area and the fact that the lands in question are specified for residential or industrial purposes suggests that the lands though at present are agricultural, are capable of being used for other purposes in the near future. In other words, those lands have a high potential for other than agricultural purposes and, therefore, are very much similar to vacant land.

I am not impressed by the argument advanced by Sri K. Venkatarama Sastry, Advocate, who and his wife and children are also appellants in some of these cases, that the agricultural lands are not vacant lands despite the fact that they are specified in the master plan.

The very opening words of Explanation to S. 2(o), namely,-

"For the purpose of this clause and clause (q),"-leave no doubt whatsoever that the Explanation governs or qualifies the definition of vacant land given in S. 2(q), and what is inevitable and inexorable is that, land though used for the purpose of agriculture is vacant land which is specified in the master plan for purposes other than agriculture. It is not the case of the appellants that the agricultural lands are not shown in the master plan for other purposes. Their contention is that the master plan is not binding on them, which I have already said, is not valid.

The last contention is that the lands in question cannot be treated as "vacant land" because the appellants are prohibited from constructing buildings. The counsel for the appellant was unable to point out any provision of law or building regulations which prohibit the construction of buildings on these lands. "Building regulations" according to S. 2(b) of the Act, means the regulations contained in the master plan, or the law in force governing the construction of buildings. It is well known that the building regulations are contained in the municipal laws such as the Corporation Act or the Municipalities Act and the Rules thereunder, and such regulations enjoin leaving minimum open space on all sides, and the land which is required to be so left open only can be said to be land on which construction of a building is not permissible under the building regulations. It is not possible to predicate that land which is at present agricultural land cannot at all be used for building purpose particularly when the development plan or the master plan designates the same for residential or industrial purposes. The items excepted from the definition of "vacant land" in S. 2(q) are not the same as the lands in these appeals before me. The decision of the Delhi High Court in Shanti Devi v. Competent Authority AIR 1980 Delhi 106 held that land in Sant Nagar was not "vacant land" because at the relevant time the Delhi Development Act and the Delhi Municipal Corporation Act prohibited construction of buildings on the lands in that area. No such law is in force in Bangalore Agglomeration, and it has already been pointed out that the object of the Legislature has been to treat all agricultural lands which are shown in the master plan as fit for other purposes, as vacant land.

For the forgoing reasons, Appeals 2 and 5 to 15 of 1980 (ULC) are dismissed.

Appeal 4/1980 (ULC) is also dismissed because a mere direction for preparation of a draft statement under S. 8(3) is not an order which can be subjected to an appeal. The appellant will be at liberty to prefer an appeal as and when an order under S. 8(4) of the Act is passed.

Appeals dismissed.