IMPORTANT POINT
An application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted.

Headnote:Karnataka Town and Country Planning Act—Section 2(7)—Comprehensive development plan prepared by Planning Authority in 1995 which was valid till 2005 and was extended for another ten years i.e. till 2015—Appellants, owners of agricultural lands, were permitted to use said land for non-agricultural purposes in 2004—Application for approval of building plans was filed before Development Authority—Application was rejected by Authority on premise that property in question fell within the “Valley Zone in proposed comprehensive plan”—Writ challenging the order was allowed by Single Judge—Division Bench set aside the judgment taking the view that Authority had already identified the valley and no construction should be permitted to be raised in said area—Appeal—Amendment to comprehensive development plan as proposed by Authority was yet to be accepted by State—State had called for objections from citizens—Rights of parties could not be intermeddled so long as an appropriate amendment in legislation was not brought into force—Building plans were required to be dealt with in terms of exiting law—Respondent was accordingly liable to be directed to consider the application for grant of sanction/approval at an early date—Impugned judgment was liable to be set aside.
       Held : Town Planning Legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, is ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled so long as an appropriate amendment in the legislation is not brought into force.(Para 12)
       The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that the building plans are required to be dealt with in terms of the existing law. Determination of such a question cannot be postponed far less taken away. Doctrine of Legitimate Expectation in a case of this nature would have a role to play. (Para 14)
       It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time. [See Kuldeep Singh v. Govt. of NCT of Delhi – 2006 (6) SCALE 588]. For the views we have taken, the First Respondent is hereby directed to consider the application for grant of sanction or approval of the building plans submitted before it at an early date but not later than eight weeks in accordance with law. (Paras 17 & 18)

Judgement Key Points

Key Points: - An application for grant of permission for construction of a building must be decided in accordance with the law applicable on the day on which such permission is granted (!) (!) . - The right to property includes a right to construct a building, which can be restricted by legislation but not without clear provision (!) (!) . - A statutory authority must exercise its jurisdiction within a reasonable time (!) (!) .

What is the applicable law for deciding an application for grant of permission for construction of a building?

What are the rights of a person to construct residential houses in a residential area under the Karnataka Town and Country Planning Act?

What is the duty of a statutory authority in deciding an application for sanction of building plans within a reasonable time?

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. These two appeals involving similar questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.

3. We would, however, take note of the factual matrix of the matter from Civil Appeal arising out of Special Leave Petition (Civil) No.4719 of 2006. Appellants herein were owners of agricultural lands. They were permitted to use the said lands for non-agricultural purposes in 2004. The lands are within the residential area and are put to use for residential purposes. An application for approval of building plans was filed before the Bangalore Development Authority (for short, the Authority) on 29.11.2004. Some queries in regard thereto were raised by the Authority to which replies were also furnished.

4. Indisputably, the Authority is the Planning Authority within the meaning of Section 2(7) of the Karnataka Town and Country Planning Act (for short, the Act). They have prepared a comprehensive development plan in the year 1995. In terms of the provisions of the said Act, a development plan remains valid for a period of ten years. The development plan sanctioned by the State of Karnataka was, thus, valid till the year 2005. The plan, however, has since been extended for a period of another ten years i.e. till the year 2015. Before the Authority, Appellants, inter alia, raised a contention that as their applications had not been disposed of within the period specified therefor, commencement certificate, within the meaning of the Act, must be held to have been granted. The officers of the Authority, allegedly obstructed the construction activities carried out by Appellants.

5. In the aforementioned premise, Appellants filed a writ petition before the Karnataka High Court.

6. During the pendency of the said writ petition, the application for grant of sanction of plan was rejected by the Authority in terms of its order contained in a letter dated 15.06.2005 on the premise that property in question fall within the "Valley Zone in the proposed comprehensive plan". The said order dated 15.06.2005 was also questioned by Appellants before the High Court. By a judgment and order dated 26.07.2005, a learned Single Judge allowed the said writ petition, opining :

"I do see some force in the argument advanced by the learned counsel appearing for the petitioners. The Bangalore Development Authority cannot reject the application filed by a party seeking permission to construct a residential building in accordance with law. When such an application is filed, it is the duty of the BDA to consider such application considering the relevant Rules of BDA in granting such permission. The application of the petitioners cold not have been rejected by the BDA"

7. An intra-court appeal was filed by the Bangalore Development Authority. Before the Division Bench of the High Court, it was contended that although the new comprehensive development plan was yet to be notified, but as the proposed construction of Appellants falls within the valley zone, the Authority was justified in rejecting the applications of Appellants herein. The Division Bench of the High Court opined that in view of the fact that the Authority had already identified the valley, no construction should be permitted to be raised in an area which falls within the purview thereof, observing :

"...It is no doubt true that every executive action, if it is to operate to the prejudice of any person must be supported by some legislative authority. But it is equally true that the private interest would always yield place to the public interest and the Court cannot issue any such directions, which will compel the authorities to violate the environmental law..."

Appellants are, thus, before us.

8. Keeping in view the fact that the question as to whether the revised comprehensive development plan proposed by the Bangalore Development Authority would be accepted by the State or not, the State of Karnataka was direc

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2006 Supreme(SC) 978

IMPORTANT POINTAn application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted.

What is the applicable law for deciding an application for grant of permission for construction of a building?

What are the rights of a person to construct residential houses in a residential area under the Karnataka Town and Country Planning Act?

What is the duty of a statutory authority in deciding an application for sanction of building plans within a reasonable time?

Cases Referred (2)

IMPORTANT POINT
An application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted.