Sri. Ganesh Oulkar vs The Karnataka Housing Board, Belgaum Urban Development Authority Belguam, The Corporation of the City of Belgaum and The State of Karnataka

J.S. Khehar, C.J.—The instant writ petition, which has been styled as cause in public interest. It has been filed by the Petitioner to assail, firstly, the order passed by the Deputy Commissioner, Belgaum, dated 12.12.2006, by which R.S. No. 219 of Jakkeri Honda, Belgaum, measuring 2 acres 10 guntas has been handed over to the Karnataka Housing Board. Secondly, the petitioner assails the purpose for which the land is to be utilized. Out of the aforesaid land, 62010 Sq.it. of land has been reserved for a housing project to be constructed by the Karnataka Housing Board, whereas, 3600 Sq.ft. of land has been earmarked for constructing quarters/flats for the staff of the Revenue Department.

In addition to the aforesaid, the Petitioner has also assailed the approval granted by the Commissioner. Belgaum Urban Development Authority on 24.07.2008, approving the layout plan in respect of RS No. 219.

In order to raise a challenge to the two orders referred to herein-above, the learned Counsel for the Petitioner has placed reliance on the provisions of the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as ''the 1961 Act''). Pointed attention of this Court has been drawn to Sections 12 and 14 of the 1961 Act. The aforesaid provisions are extracted hereunder for facility of reference.

Contents of Master Plan -

(1) The Master Plan shall consist of a series of maps and documents indicating the manner in which the development and improvement of the entire planning area within the jurisdiction of the Planning Authority are to be carried out and regulated, such plan shall include proposals for the following, namely-

(a) zoning of land use for residential, commercial, industrial, agricultural, recreational, educational and other purposes together with Zoning Regulations;

(b) a complete street pattern, indicating major and minor roads, national highways, and state highways, and traffic circulation pattern, for meeting immediate and future requirements with proposals for improvements;

(c) areas reserved for parks, playgrounds, and other recreational uses, public open spaces, public buildings and institutions and area reserved for such other purposes as may be expedient for new civic developments;

(d) areas earmarked for future development and expansion;

(e) reservation of land for the purposes of Central Government, the State Government, Planning Authority or public utility undertaking or any other authority established by Law, and the designation of lands being subject to acquisition for public purposes or as specified in Master Plan or securing the use of the landing in the manner provided by or under this Act;

(f) declaring certain areas, as areas of special control and development in such area being subject to such regulations as may be made in regard to building line, height of the building, floor area ratio, architectural features and such other particulars as may be prescribed:

(g) stages by which the plan is to be carried out.

Explanation-

(i) "Building Line" means the line up to which the plinth of a building adjoining a street may lawfully extend and includes the lines prescribed, if any in scheme;

(ii) "Floor Area Ratio"means the quotient of the ratio of the combined gross floor area of all the floors, excepting areas specifically, exempted under the regulations, to the total area of the plot.

(2) The following particulars shall be published and sent to the State government through the Director along with the master plan, namely-

(i) a report of the surveys carried out by the Planning Authority before the preparation of such plan;

(ii) a report explaining the provisions of the Master Plan;

(fir) regulations in respect of each land use zone to enforce the provisions of such plan and explaining the manner in which necessary permission for developing any land can be obtained from the Planning Authority;

(iv) a report of the stages by which it is proposed to meet the obligations imposed on the Planning Authority by such plan.

(3) Master Plan shall indicate "Heritage Buildings" and "Heritage Precincts" and shall include the regulations made therein for conservation of the same.

14.(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 14A 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) 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 charge 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, 1984 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 alternation 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) x x x x x (iii) x x x x x (iv) the use of any building or other land within the cartilage of a dwelling house for any purpose 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 (Master 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.

Based on the mandate of Section 12 extracted herein-above, it is the submission of the learned Counsel for the Petitioner, that R.S. No. 219 of Jakkeri Honda, Belgaum, was earmarked as a public open place, the same therefore falls (in so far as the master plan is concerned) u/s 12(1)(c) of the 1961 Act. It is the submission of the learned Counsel for the Petitioner, that once an area has been earmarked as public open space in the master plan, it cannot be used for any other purpose whatsoever. In order to substantiate the instant contention, learned Counsel has also placed reliance on clause(d) of Section 12(1), which provides, areas earmarked for future development and expansion. It is submitted, that the contemplated activity could only have been, carried out in land falling u/s 12(1)(d) of the 1961 Act. The project under reference emerging out of the impugned orders dated 12.12.2006 and 24.07.2008, according to the learned Counsel for the Petitioner, being in the nature of future development and expansion, refer to use of land for the said purpose could be only out of such land, as had been earmarked u/s 12(1)(d) of the 1961 of the Act.

In so far as reliance of the Petitioner on Section 14 of the 1961 Act is concerned, it is the submission of the learned Counsel for the Petitioner, that the master plan has to be enforced as it is, specially when, there has been no change thereto. Accordingly, on a collective reading of Sections 12 and 14 of the 1961 Act, it is asserted at the hands of the learned Counsel for the Petitioner, that R.S. No. 219 having been earmarked as public open space, cannot now be used either for construction of houses by the Karnataka Housing Board or for the development of residential quarters for the staff belonging to the Revenue Department.

We have given our thoughtful consideration, to the solitary contention advanced by the learned Counsel for the Petitioner. The submissions advanced by the learned Counsel for the Petitioner have to be examined in the background of Section 14A of the 1961 Act. Section 14A of the aforesaid Act is being reproduced hereunder;

14-A, Change of land use from the (Master Plan).-

(1) At any time after the date on which (Master Plan) for an area comes into operation, the Planning Authority may, with the previous approval of the State Government, allow such changes in the land use or development from the (Master Plan) as may be necessitated by topographical or cartographical or other errors and omissions, or due to failure to fully indicate the details in the plan or changes arising out of the implementation of the proposals in (Master 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 objections 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 (Master Plan).

(3) Notwithstanding anything contrary contained in the Act, if the change in land use or development is from commercial or industrial to residential or from industrial to commercial and the stipulated fee is paid and the Local Planning Authority is informed prior to effecting the change, the permission for such change of land use or development shall be deemed to have been given.

It is apparent from Section 14A, that it is open to the State Government, to allow changes in land use or development by adopting measures, different from those earmarked in the original master plan.

From the record of the case, learned Counsel for Respondent No. 1 has invited our attention to the Government order dated 17.07.2006 (Annexure-R.4). Relevant part of the aforesaid order is being extracted hereunder;

With reference to the subject and reference cited above, I am directed to convey the sanction of government for transfer of 2.10 acres of land in Sy. No. 210 in Belgaum to Karnataka Housing Board for the construction of Staff Quarters subject to the following conditions.

Deputy Commissioner with the Executive Engineer, Karnataka Housing Board, Belgaum shall prepare and send detailed layout plan for 98010 sq feet area clearly demarcating.

a) 62010 sq feet reserved for Karnataka Housing Board.

b) 3600 sq feet reserved for Revenue Department quarters.

c) Number of each type of houses, which arc-proposed to be built on the area, reserved for Revenue Department.

d) Type designs and site plan.

e) Cost of each house and total cost all inclusive (including escalation, if any).

f) Completion period not more than 18 months from the date of land transfer (or handing over).

g) No payment of any kind in any manner for any item of cost shall be payable by the Revenue Department/Government of Karnataka to Housing Board.

Based on the Government Order dated 17.07.2006, it is the contention of the learned Counsel for the Respondents, that the State Government, has, in exercise of the power vested in it, u/s 14A of the 1961 Act, approved change in land use, from the one contemplated in the original master plan. It is submitted, that even though R.S. No. 219 was earlier earmarked as public open space, the same could be changed and altered u/s 14A by the State Government. The aforesaid change had indeed been ordered by the State Government on 17 07.2006. The order passed by the State Government has already been extracted herein-above. It is submitted, that the Petitioner having not assailed the order dated 17.07.2006, has no right to challenge the consequential orders, impugned through this petition.

We have no hesitation in accepting the contention of the learned Counsel for Respondent No. 1, on the basis of the Government order dated 17.07.2006, extracted herein-above. The State Government sanctioned the transfer of 2.10 acre of land in Sy. Mo.210 (R.S. No. 219) in Jakkeri Honda, Belgaum, to the Karnataka Housing Board for construction of staff quarters. Out of the aforesaid land, 62010 Sq.ft. have been earmarked for a housing project to be constructed by the Karnataka Housing Board, whereas, 3600 Sq.ft has been reserved for construction of quarters for the staff of the Revenue Department.

Thus viewed, we are satisfied, that there is no infirmity in the determination rendered by the Respondents, for the use of the land in R.S. No. 219 for the purpose mentioned in the order dated 17.07.2006. It is the aforesaid determination of the State Government, which was sought to be implemented through the impugned orders dated 12.12.2006 and 24.07.2008. In sum and substance, the orders dated 12.12.2006 and 24.07.2008 are merely consequential orders of the Government, order dated 17.07.2006. Since we have already arrived at the conclusion, that the order dated 17.07.2006 passed by the State Government was legal, as the same was permissible u/s 14A of the 1961 Act, it necessarily emerges, that the consequential orders based thereon are also valid and legal. Moreover, the order dated 17.07.2006 having not been assailed by the Petitioner, there is really no basis to assail the consequential order.

For the reasons recorded herein-above, we find no merit in this petition and the same is accordingly dismissed.