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2013 Supreme(Kar) 1016
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Ram Mohan Reddy, J.
N. Gopal —Appellant
Vs.
Bangalore Development Authority and Another —Respondent
Writ Petition No. 3324 of 2013
Decided on : 27-02-2013
Advocate Appeared:
T.P. Vivekananda, for the Appellant
H.I. Narendra Prasad, Additional Government Advocate, Ashwin S. Halady, for the Respondent
The central legal point established in the judgment is that the rights of a landowner to seek development cannot be impinged upon by arbitrary requirements imposed by the planning authority.
Headnote:
Land Use - Karnataka Land Revenue Act, 1964 - Section 95 - Zoning Regulation - Resolution dated 22-5-2012 in Subject No. 139/2012 - Communication dated 17-7-2012 - Regulation 4.12.2(ii) of the Revised Master Plan, 2015 Zoning Regulation
Fact of the Case:
Petitioner sought permission to change land use from (Hi-Tech) (Sensitive) to Industrial (Hi-Tech) and permission for development. BDA declined the application based on a resolution stating that applications for development of lands in the sensitive zone less than 1 acre would not be considered unless landowners pool their land to exceed 1 acre.
Finding of the Court:
The court found that the BDA's resolution impinged upon the petitioner's rights to seek development and was therefore arbitrary, capricious, and illegal. The communication declining the petitioner's application was also held to be illegal.
Issues: The main issue was the validity of the BDA's resolution and communication in declining the petitioner's application for land development.
Ratio Decidendi: The court held that the BDA did not have the authority to impose a requirement for land pooling to exceed 1 acre for development in the sensitive zone. It cited the Karnataka Land Revenue Act and Zoning Regulations to support the petitioner's rights to seek development.
Final Decision: The court quashed the BDA's resolution and communication, and directed the BDA to consider the petitioner's application and pass orders strictly in accordance with the law.
Ram Mohan Reddy, J.—Petitioner having obtained permission to divert 35 guntas of agricultural land in Sy. No. 100/1 of Panathur Village, Varthur Hobli, Bangalore East Taluk for Industrial (Hi-Tech) (Sensitive) by order of the Deputy Commissioner under Section 95 of Karnataka Land Revenue Act, 1964, made an application to the respondent-Bangalore Development Authority (for short, 'BDA') for change of land use from (Hi-Tech) (Sensitive) to Industrial (Hi-Tech) and permission for development. Petitioner's request was responded to by communication dated 17-7-2012 Annexure-F informing him that in terms of a resolution dated 22-5-2012 in Subject No. 139/2012, resolving not to consider applications for development of lands in the sensitive zone if the extent of land is less than 1 acre and that if the land owners file application after pooling the land to and to an extent above 1 acre, accordingly deferred consideration until the petitioner and others pool in and make an application for development of an area exceeding 1 acre. On the request of the petitioner a copy of the resolution dated 22-5-2012 was made available by enclosing the same to the letter dated 27-8-2012 Annexure-G. In the said resolution, the BDA states that areas which are identified as sensitive zone are generally near tanks and canals and if permission is accorded for development of such areas which are less than 1 acre in size without installing Sewage Treatment Plants (STPs), the garbage and waste water would be allowed to flow to the tanks and canals and therefore decided not to consider such applications for development. It was further resolved that if the concerned landlord/applicants join together by pooling their land to increase it to 1 acre and above, such applications would be considered. Hence these petitions for the following reliefs:
(i) issue a writ of certiorari or similar writ or order or direction to quash the resolution passed by the first respondent in Subject No. 139 of 2012, dated 22-5-2012 at enclosure to Annexure-G.
(ii) issue a writ of certiorari or similar writ or order or direction to quash the communication bearing No. BDA/NaYoaSa/CLU-33/2012-13/222172012-13, dated 17-7-2012 at Annexure-F issued by respondent 1.
(iii) issue a writ of mandamus or similar order or direction to reconsider the application filed by the petitioner for grant of change of land use and also for permission to develop the land in question for land use-industrial (Hi-Tech) as contemplated in the Zoning Regulation for Bangalore without any reference to the resolution at Annexure-G.
(iv) grant any other relief or reliefs deemed fit in the circumstances of the case including payment of cost in the interest of justice and equity.
2. On 11-2-2013, this Court passed the following order.--
Learned Counsel for the petitioner files an affidavit undertaking to develop the land in question in accordance with Zonal Regulations and to install a STP in the area reserved for park and open space, etc. The same is taken on record. Respondent-BDA to consider the affidavit of undertaking and to have its say in the matter.
3. Learned Counsel for respondent-BDA submits that the petitioner's application for development would be considered along with the affidavit of undertaking to provide STP and that there is no necessity to quash the resolution Annexure-G, though the land of the petitioner measures 35 guntas and not 1 acre and above.
4. Learned Counsel for the petitioner points to Regulation 4.12.2(ii) of the Revised Master Plan, 2015 Zoning Regulation, to submit that the BDA being the planning authority is vested with the jurisdiction to accord permission in sensitive areas earmarked on the land use plan irrespective of land for which development permission is sought for. According to the learned Counsel, neither the Bangalore Development Authority Act, 1976 nor the Bangalore Development Authority Rules, 1975 framed there under impose a fetter on the power of BDA to accord permission for
