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Judgment
Mohan Shantanagoudar
The petitioners have raised the challenge to the 2nd respondent''s endorsement, dated 3.12.2011 (Annexure-K). They have also prayed for issue of a direction in the nature of mandamus to the 2nd respondent to sanction the layout plan for the following lands viz.,
a. Sy. No. 26/2 measuring 1 acre 18.08 guntas
b. Sy. No. 27/2 measuring 0-10 guntas
c. Sy. No. 27/2A measuring 0.32.08 guntas
d. Sy. No. 27/2B measuring 0.28-08 guntas
e. Sy. No. 27/2A measuring 1.11.00 guntas
f. Sy. No. 27/2B measuring 0-04.08 guntas of Doddakannelli village, Varthur Hobli, Bangalore East Taluk &
g. Sy. No. 33/2 measuring 2 acres 17 guntas
h. Sy. No. 33/3 measuring 1 acre 18 guntas
i. Sy. No. 33/1 measuring 2 acres 33 guntas of chikkannelli village, Varthur Hobli, Bangalore East Taluk, totally measuring 11 acres 30 guntas.
Sri Srivatsa, Sr. Advocate for the petitioners submits that the lands are already converted from agricultural into the residential lands. He submits that the lands in question are not the subject matter of any acquisition notification nor are they designated for any specific purpose in the master plan. In the master plan, and lands are shown as constituting the residential zone.
He further submits that the 2nd respondent may refuse to sanction for layout only under the five circumstances enumerated in sub-section (6) of Section 32 of the Bangalore Development Authority Act, 1976.
The said provisions are extracted hereinbelow:
6(1) Such sanction may be refused -
(i) if the proposed street would conflict with any arrangements which have been made or which in the opinion of the authority is likely to be made for carrying out any general scheme of street improvement or other schemes of development or expansion by the authority; or
(ii) if the proposed street does not conform to the provisions of the Act, rules and bye-laws referred to in sub-section (3); or
(iii) if the proposed street is not designed so as to connect at one end with a street which is already open, or
(iii-a) if the proposed extension or layout is on the land which is proposed to be acquired for the purpose of the development scheme under this Act, and in respect of which a notification under sub-section (3) of Section 17 is already published, or
(iv) if the layout in the opinion of the authority cannot be fitted with any existing or proposed expansion of development schemes of the authority.
He submits that the one and only reason given by the respondent No. 2 for turning down the petitioners'' request for the layout, in the impugned endorsement, is that the lands fall in the proposed K.C. Reddy Layout As the Government has already accorded approval for forming the said layout the petitioners'' request cannot be turned down.
The learned, counsel submits that there is no notification u/s 17 of the BDA Act, in respect of the development scheme of the KC Reddy Layout. Therefore, the respondent No. 2 is not justified in refusing the sanction. He sought to draw support from the Apex Court judgment in the case of T. Vijayalakshmi and Others Vs. Town Planning Member and Another, , wherein it is held that the valuable right could not be denied in the absence of a clear regulating statutory provision.
Sri Srivatsa, also complaints of hostile discrimination. He submits that the respondent No. 2 has already granted the sanction to M/s. Wipro Limited for the establishment of the residential complex and training facility in the land adjoining to the petitioners'' lands.
Per contra, Sri B.V. Shankaranarayana Rao, the learned counsel for the respondent No. 2 submits that as the Government has already accorded the approval for the development scheme in respect of KC Reddy Layout, the lands in question are also required. It is for the said reason that the sanction is refused to the petitioners. He submits that the privately formed layouts benefit few selected persons only; on the other hand, the proposed layout caters to the requirements of all persons including those belonging to the weaker sections. He also submits that the BDA has already requested the Government to issue the necessary directions to look into the matter. Sri B.V. Shankaranarayana Rao would emphatically contend that there is no illegality committed by the respondent No. 2 in rejecting the petitioners'' applications. According to the learned counsel, refusal in the instant case is on account of the circumstances contained in Section 32(6)(iv) of the BDA Act, 1976.
Sri, K. Krishna, learned Addl. Government Advocate for respondent No. 1 argues in support of the case of BDA.
The submissions of the learned counsel have received my thoughtful consideration. The question that fails for my consideration is whether the permission for development of land can be turned down on the ground of the approval granted for the proposed development scheme in respect of the KC Reddy layout. My answer is emphatic ''no'' for the following reasons:
(a) Unless the land is notified for compulsory acquisition or it is designated for a certain purpose in the master plan, the respondent No. 2 cannot refuse the sanction.
(b) It would have been open to the respondent No. 2 to reject the petitioners'' applications, if a notification were to be issued u/s 17(3) of the BDA Act, 1976; that such a notification is not issued in respect of the petitioners'' land is not in dispute at all.
(c) That the Clause (iv) to sub-section (6) of Section 32 is attracted to the petitioners'' case does not commend itself to me, because such a reason is not stated in the impugned endorsement.
(d) The Hon''ble Supreme Court, in the case of T. Vijayaiakshmi (supra) has taken the considered view that the determination of the right to enjoy the property cannot be postponed, much less taken away. The right to property of a person would include a right to develop land and/or construct the building. Such a right, of course, can be restricted only by way of legislation. The rights of the parties cannot be intermediated in the absence of a clear regulating statutory provision.
For the aforesaid reasons, the impugned endorsement is quashed. The respondent No. 2 is directed to consider the petitioners'' application for sanction of the layout in respect of the lands viz.
a. Sy. No. 26/2 measuring 1 acre 18,08 guntas,
b. Sy. No. 27/2 measuring 0-10 guntas,
c. Sy. No. 27/2A measuring 0.32.08 guntas,
d. Sy. No. 27/2B measuring 0.28-08 guntas
e. Sy. No. 27/2A measuring 1.11.00 guntas,
f. Sy. No. 27/2B measuring 0-04,08 guntas of Doddakannelli village, Varthur Hobli, Bangalore East Taluk &
g. Sy. No. 33/2 measuring 2 acres 17 guntas
h. Sy. No. 33/3 measuring 1 acre 18 guntas,
i. Sy. No. 33/1 measuring 2 acres 33 guntas of ChiKkanneili village, Varthur Hobli, Bangalore East Taluk, totally measuring 11 acres 30 guntas, in accordance with law.
At the risk of repetition also, it is made clear that the consideration has to be independently of the approval granted by the Government for its development scheme for KC Reddy Layout. It is open to the 2nd respondent to examine whether the petitioners are otherwise entitled to get the sanction that they have prayed for. The respondent No. 2 shall take a decision in the matter within two months from the date of the issuance of the certified copy of today''s order.
Under similar circumstances, this Court had granted similar prayers in W.P. No. 9645-9646/2012, W.P. No. 2856/2012, W.P. No 121606/3009 & W.P. No. 22027/2009 and W.P. No. 1514/2012.
These petitions are accordingly disposed of No order as to costs.