Tain Constructions vs The State of Karnataka and Others

B. Veerappa, J.—1. The petitioner in the above writ petition sought a writ in the nature of certiorari to quash the impugned endorsement dated 2.11.2011, 31.1.2012, 20.05.2013 AND 19.11.2014 issued by the 1st respondent - State Government and also a writ of mandamus to direct the respondents to issue an order for change of land use from play ground/open space to residential use in respect of the land bearing No. 50/2, Plot No. 1 + 2 + 3 + 4 + 5 + 7 + 8 + 74 totally measuring 1 acre 1 gunta 8 anas, R.S. No. 50/2, plot No. 11 + 15 totally measuring 8 guntas 4 anas, R.S. No. 50/2, plot No. 6 + 9 + 13 measuring 13 guntas, in all totally measuring 73 guntas, situated at village Kangrali, KH Belagavi.

It is the case of the petitioner that the petitioner being a partnership is engaged in the business of Real Estate Developers and Builders for residential and commercial buildings and also such other allied business in the partnership under a deed of partnership. The petitioner is the owner and in actual possession of the land bearing No. R.S. No. 50/2 totally measuring 73 guntas situated at Kangrali KH Belagavi within the local Planning Area of Belagavi Urban Development Authority, Belagavi. The name of the petitioner is also entered in the record of rights in respect of properties in question. It is the further case of the petitioner that the erstwhile owner of the land bearing R.S. No. 50/2 got the lands converted into non-agricultural use i.e., for residential purpose as per the order passed by the Deputy Commissioner dated 15.4.1969. The revised the Comprehensive Development Plan (for short ''the CDP'') of Belagavi City was approved by the 1st respondent - State Government on 18.11.1993 and the same was published in the Official Gazette on 13.1.1994. As per the revised CDP, the land in question was reserved/designated partly for industrial and partly for playground purpose vide Annexure-B. In terms of Section 69(2) of the Karnataka Town and Country Planning Act, 1961, (for short ''the Act'') the 2nd respondent was required to acquire the said land either by agreement or under the provisions of the Land Acquisition Act, 1894, within 5 years from the date of publication of the revised CDP in the said Gazette. Admittedly 2nd respondent has not acquired the lands in question within the stipulated period of five years from 13.1.1994. Therefore, the designated lands under the revised CDP 1993 has lapsed as contemplated under sub-section (2) of Section 69 of the Act by operation of law.

It is the further case of the petitioner that the lands in question were got converted into non-agricultural use from the Deputy Commissioner much prior to the approval of the revised CDP. The 2nd respondent ought not to have ear marked the above said lands for playground purpose. Therefore, the same is illegal and contrary to the provisions of the Act. The 1st respondent - State Government issued two circulars dated 22.12.2005 and 6.3.2010 wherein it is stated if the authorities failed to acquire the lands reserved/designated for parks, open space, public and semi public use etc., under Section 69(2) of the 1961 Act within five years from the date of such designation, such designation will be lapsed. It is the further case of the petitioners as already stated above, the respondents have not acquired the lands of the petitioners as provided under Section 69(2) of the Act. After receipt of the improvement charges the 2nd respondent passed order on 22.8.2007 thereby permitting the erstwhile owners of the lands in question to utilize the same for residential use and thus the land use in respect of the land in question is changed from playground to residential use in terms of the order dated 22.8.2007 vide Annexures-E, F, G, H and J. Thereafter the petitioner filed a case before the 2nd respondent on 24.1.2011 to develop the lands in question for construction of the residential buildings. The said application was placed before the meeting on 3.5.2011 and in the said meeting it was resolved to send the proposal for its approval regarding change of land use from playground to residential use. Accordingly they submitted proposal to the 1st respondent. The 1st respondent - State has rejected the same by the order dated 2.11.2011 on the ground that the order dated 22.8.2007 issued by the 2nd respondent was without obtaining prior permission from the Government and already some buildings have come up in the lands in question and it has already issued a circular on 30.09.2010 that no proposal for change of land use should be sent to the Government in respect of the lands reserved for play ground and open space. The 1st respondent issued endorsement not to change the lands in question from play ground or open space to residential use, which is arbitrary and illegal. Therefore, the petitioner is before this Court.

The respondents have not filed any objections to the assertions made in the writ petition.

I have heard the learned counsel for the parties to the lis.

Sri F.V. Patil, learned counsel for the petitioner contended that the impugned orders passed by the respondent Nos. 1 and 2 are illegal and contrary to the provisions of the Act. He further submitted that the 2nd respondent has not acquired the land within five years from the date of revised CDP as contemplated under Section 69(2) of the 1961 Act. Therefore the designation of playground assigned to the land was lapsed by the operation of law. Therefore, the 1st respondent ought to have issued order of change of land use from playground/open space to residential use. He further contended that respondent No. 2 having permitted the erstwhile owners of the land in question to use the same for residential purpose by issuing the endorsements as per Annexures E, H and J dated 22.8.2007 after having collected requisite fee, the impugned endorsement issued is contrary to law. In support of his contentions he sought to rely upon the dictum of this Court in the case of BELGAUM URBAN DEVELOPMENT AUTHORITY, BELGAUM Vs. AMIT NITIN SHIRGURKAR AND ANOTHER reported in 2014 (1) KLJ 671 and also the judgment of the Apex Court in the case of HASMUKHRAI V. MEHTA Vs. STATE OF MAHARASHTRA AND OTHERS reported in , 2015 AIR SCW 174.

Per contra, though the respondents have not filed any objections denying specific averments in the writ petition, learned HCGP appearing for the State has contended that the petitioner has not disputed the fact that in view of the provisions of Section 69(2) of the 1961 Act, the lands in question have not been acquired within 5 years. Therefore, the same is lapsed and the petitioner can use the land only in terms of the Master Plan -Zonal Regulation issued by BUDA under the provisions of 1961 Act. He also contended the BUDA 2nd respondent ought not to have permitted the petitioner for change of land use without prior permission of the State Government and the same is contrary to the master plan, therefore sought for dismissal of the writ petition.

Sri M.A. Huliyal, learned counsel for the BUDA contended that all necessary action is taken and submitted a report to the Government, but the Government has not taken any action in this regard. Therefore, he sought to dismiss the writ petition.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused by the records.

It is not in dispute that the petitioner is the owner of the property in question. It is also not in dispute that the lands has been acquired under the revised CDP approved by the 1st respondent on 18.11.1993 and admittedly the said CDP was valid for a period of five years and the authority either the State Government or the 2nd respondent ought to have acquired the lands of the petitioner by initiating necessary action. Admittedly in the present case, either the State Government or the 2nd respondent have not initiated any proceedings within a period of 5 years. Therefore, the lands of the petitioner in the revised CDP plan has lapsed in view of the provisions of Section 69(2) of the Act. Though the learned HCGP contended that the petitioner has to utilize the lands not only in accordance with the Zonal Regulations issued by the BUDA and in terms of the provisions of 1961 Act, admittedly, in the present case, the respondents have not placed any material on record to show that the lands in question were included in the zonal regulations, either in the residential zone or non-residential zone or industrial zone. In the absence of the same, it is very difficult to declare or decide the use of the lands by the petitioner.

This Court while considering Section 12 of the provisions of the Land Acquisition Act in respect of BUDA in the case of BUDA BELGAUM VS. AMIT NITIN SHIRGURKAR AND ANOTHER reported in 2014 (1) KLJ 671 held that the lands shown in the development plan as open space and play ground have not been said to be acquired by initiation of acquisition proceedings or otherwise within a period of five years as contemplated under Section 69(2) of the Act and the designation having lapsed, the lands has become available for development by the owner. The relevant paragraphs reads as under:-

"9. The land in dispute is surrounded by a residential layout. The land owner has sought to use the land for residential purpose. In such circumstances, the construction placed by learned Single Judge on Section 14-A of the Act is not erroneous and is in accordance with the ratio of the decision, in the case of M/s. Girnar Traders Vs. State of Maharashtra and Others.

The land in dispute having been shown in the development plan as "open space'' and the same having not been sought to be acquired by initiation of acquisition proceedings or otherwise within the specified period of five years and the designation having elapsed, the land has became available for development by the owner. There being no dispute that the land in dispute is property for residential use only, after obtaining conversion and payment of development charges, the stand taken by the appellants before the learned Single Judge being contrary to the record of the case and settled principles of the law, the learned Single Judge is justified in allowing the writ petition filed by the owner and consequently, dismissing the writ petition filed by the Deputy Commissioner, Belgaum District. We do not find any justification to interfere with the order passed by the learned Single Judge.

In the result, writ appeals being devoid of merit are dismissed with no order as to costs."

It is stated by the learned counsel for the petitioner that the said judgment of the Division Bench has reached finality.

The Apex Court while considering the similar question in the case of HASMUKHRAI V. MEHTA Vs. STATE OF MAHARASHTRA AND OTHERS reported in , 2015 AIR SCW 174 held that lapsing of reservation of steps not taken by authorities concerned for acquisition of land, neither the land of the petitioner purchased under the purchase notice nor he was allowed to use the land for more than 20 years, land will have to be released from reservation as appellant cannot be deprived from utilizing his property for indefinite period. The Hon''ble Supreme Court has specifically held at paragraph 14 as under:-

"14. In view of the principle of law laid down by this Court, as above, we are of the view that in the present case since neither steps have been taken by the authorities concerned for acquisition of the land nor he is allowed to use the land for last more than twenty years, the land will have to be released as the appellant cannot be deprived from utilizing his property for an indefinite period."

In view of the admitted facts stated above, the respondents have not acquired the lands of the petitioner within five years as contemplated under Section 69(2) of the Act and not produced any material document before the Court with regard to the zonal regulations. In the absence of the same, the respondents cannot deprive the petitioner from utilizing his property for an indefinite period of more than 20 years. Hence, the impugned orders/endorsements passed by respondent No. 1 cannot be sustained in law.

In view of the aforesaid reasons, writ petition is allowed. The impugned endorsements issued by respondent Nos. 1 vide Annexures-N, P, Q and R are quashed and the respondents are directed to re-consider the application of the petitioner for release of land for residential use in terms of the Zonal Regulations and in accordance with law, within a period of three months from the date of receipt of a copy of this order.