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2016 Supreme(Kar) 807
IN THE HIGH COURT OF KARNATAKA BENCH AT DHARWAD
H. Billappa, P.S. Dinesh Kumar, JJ.
Gurunath S/O Dyamappa Walikar and Ors. – Appellant
Versus
The Principal Secretary, Government of Karnataka, Urban Development Department and Ors. – Respondents
Writ Appeal Nos.100569-100571 of 2015 (LB-RES)
Decided On : 18-04-2016
For the Appellant :Sri. Shriharsh A.Neelopant, Advocate
For the Respondent:Sri. C.S. Patil, Government Advocate, Sri. R.H. Angadi, Advocate
Headnote:KARNATAKA TOWN AND COUNTRY PLANNING ACT, 1961 [K.A. No. 11/1963] - Sections 5 -14 - Master Plan - It becomes an enforceable document only after approval by State Government.
KARNATAKA TOWN AND COUNTRY PLANNING ACT, 1961 [K.A. No. 11/1963] - Sections 14(a) & 69(2) - Change of and use - Land falling under 'agriculture zone' - Landowner seeking change of land use on ground that their land was not acquired within stipulated time and hence designation deemed to have lapsed - Held, [Per Dinesh Kumar, J]: The appellants filed an application for change of land use contending that by virtue of Section 69(2) of the Karnataka Town and Country Planning Act, 1961 they were entitled for change of land use. The authority examined the proposal in the light of Section 69(2) and rejected the application. Even though the applicant had quoted a wrong provision or understood the implication of a particular statute on a particular manner the 2nd respondent being a Statutory Authority ought to have applied its mind in the right perspective. The request was for a permission to use the land which fell in green belt for residential use. The authority unnecessarily entered into the area of interpretation of Section 69(2) which was wholly irrelevant. The authority ought to have examined the request on its merits considering the feasibility or otherwise of permitting the change in land use.
[Per H. Billappa, J (dissenting)]: The request of the appellants has been rejected on the ground that the land is not earmarked for public purpose and it is designated as agricultural zone. Similarly, the learned single Judge has held that the land specified in Section 12(1)(a) of the Act must be earmarked for public purpose and only then Section 69(2) is attracted. The Authority and the learned single's Judge have failed to notice that the land designated under Section 12(1)(a) of the Act can be acquired for public purpose. If that is not done within five years, the designation lapses as provided under Section 69(2) of the Act. In the present case, the land of the appellants has been designated as agricultural zone which falls under Section 12(1)(a) of the Act. The land is not acquired for any public purpose within five years. Therefore, the designation lapses. The Authority should have considered the request of the appellants for change of land use under Section 14-A of the Act. The request is rejected for wrong reason.
KARNATAKA TOWN AND COUNTRY PLANNING ACT, 1961 [K.A. No. 11/1963] - Section 69(2) - Distinction between designation of land for public purpose and land falling under a particular zone - Held, [Per Dinesh Kumar, J]: The word designate means to mark out or to indicate. In other words, it is to describe distinctly or to qualify something attributable or attached to a person or a thing. Different zones are delineated in the Master Plan and the land use of respective zones is indicated. Once the Master Plan is approved by the Government, every land owner shall be duty bound to bring the land use in conformity with the Master Plan. Therefore, the premise of the appellants that their land was designated as agriculture zone is wholly misconstrued. The correct interpretation is, in the approved Master Plan appellants land fell within a particular zone and the instant case in the agriculture zone or green belt. Consequently, appellants were duty bound in law to bring their land use in conformity with the Master Plan namely agriculture. Acquisition of land designated for certain purposes is governed by Chapter IX of the Act. It provides an option to the Planning Authority to acquire the lands mentioned therein in furtherance of its purpose and intent of the Master Plan. Lands falling within Clause (b) are the pieces and parcel of land earmarked to be used for formation of major and minor roads, highways and traffic circulations. Legislature has exempted these lands from automatic application of deeming provision contained in Section 69(2). Consequently, even if the Government does not acquire these lands within the stipulated period of five years, yet, the designation shall not lapse by operation of deeming fiction. The Planning Authority while exercising the power vested in it under Section 69(1) of the Act may acquire such piece or pieces of land for the public purpose. However, if the Planning Authority fails to exercise its option to acquire such lands falling under Section 12(a) and earmarked or designated for public purposes within the specified period of five years from the date of publication of Master Plan in the Gazette, only then, the deeming provision shall come into play and designation of such lands earmarked for such public purposes/s would lapse. Any other interpretation with regard to application of deeming provision contained in Section 69(2) of the Act to the lands falling in Clause (a) of Section 12 would be incongruous. If it is to be interpreted that planning authority has no obligation to acquire entire area of land in every zone, for a period of five years then, it would lead to a chaotic situation. Planning Authority cannot and shall not saddle every land owner with an obligation of compulsory waiting for five years. As a corollary, the Government or the Planning Authority shall not burden itself with an obligation to acquire every piece of land falling in various zones. The only plausible interpretation is that the Planning Authority shall have an option to acquire only such pieces of land earmarked or designated for a public purpose in zone within a period of five years. If such land is not acquired within the stipulated period of five years, then that land becomes free from the threat of compulsory acquisition and the owner shall be at liberty to enjoy the same by using it as per Zonal regulations or for any purpose after obtaining change of land use.
[Per H. Billappa, J (dissenting)]: Out of the land specified in clause (a) of sub-section (1) of Section 12, for any public purpose the land can be acquired by agreement or under the Land Acquisition Act, 1894. Section 70 of the Act provides that the land needed for the purpose of Town Planning Scheme of Master Plan shall be deemed to be the land needed for a public purpose. In the Master Plan the land of the appellants is designated as agricultural zone. The land use is indicated in zonal regulations. For the purpose indicated in the zonal regulations, the land can be acquired by the Planning Authority within five years as indicated in Section 69(1) of the Act. If the land is not acquired within five years except the land specified in clause (b) of the sub-section (1) of Section 12, the designation lapses in respect of the other lands. In the present case, the appellants land is designated as agricultural zone in the Master Plan. The land is not acquired for any public purpose within five years from the date of publication of the Master plan in gazette. Therefore, the designation lapses under Section 69(2) of the Act. The land owners can request for change of use. It will be subject to Section 14-A of the Act. The application filed by the appellants for change of land use was directed to be considered in accordance with Section 14-A of the Town & Country Planning Act without reference to Section 69 of the Act.
P.S. DINESH KUMAR, J.
1. Appellants in these appeals have challenged the common order dated 27.7.2015, passed by the learned Single Judge, in W.Ps. No. 105400-402/2015 & connected cases.
2. Heard Shri Shriharsh A. Neelopant, learned Counsel for the appellants and Shri C.S. Patil, learned Government Advocate for respondent No. 1 and Shri R.H. Angadi, learned Counsel for respondent No. 2.
3. Appellants are joint owners of agricultural property measuring 4 acres 34 guntas in survey No. 80/2 of Tadasinakoppa village, Dharwad Taluk. The Master Plan under the Karnataka Town and Country Planning Act, 1961 ('the Act' for short) was notified in the official Gazette dated 20.11.2003. In the said Master Plan, appellants' land fell within the 'agricultural zone' (green belt area).
4. Appellants applied to the second respondent for permission to use their land for residential purpose on the ground that the designation of the appellants' land falling under agriculture zone had lapsed in view of section 69(2) of the Act. As the said application was not considered, the appellants presented a Writ Petition No. 84022/2013. This Court vide order dated 20.12.2013, directed the respondents therein to pass appropriate orders within three months therefrom. As no action was taken by the respondents, the appellants moved this Court in C.C.C. No. 100036/2015. The respondents produced an endorsement dated 2.6.2015 stating that the request for change of land use was rejected as the land in question was falling under agricultural zone or green belt area. The said endorsement was challenged in the instant writ petitions. Learned Single Judge by the impugned order dismissed writ petitions. Hence, these appeals.
5. Shri Shriharsh A. Neelopant, learned Counsel appearing for the appellants made following submissions:
(i) under Section 69(1) of the Act, the respondent-planning authority had an option to acquire appellants' land within a period of five years from the date of publication of Master Plan in the Gazette;
(ii) since the planning authority has not chosen to exercise it's option to acquire appellants' land, by operation of law, by virtue of the deemed fiction contained in Section 69(2) of the Act, the designation of the land as 'agricultural land' stood lapsed;
(iii) once the designation stood lapsed, the appellants would be automatically entitled to enjoy the lands as agricultural land and seek conversion under the provisions of the Karnataka Land Revenue Act;
(iv) resultantly, the provisions of Section 14-A of the Act would have no application to the facts of this case. Consequently, the impugned endorsement dated 2.6.2015 is unsustainable in law.
6. In sum and substance, it is contended on behalf of the appellants that their lands were 'designated' as agriculture lands. The said designation lapsed by efflux of time as the Planning Authority failed to acquire the land and therefore, appellants shall be entitled to seek conversion to residential purpose without obtaining permission for change of land use under Sec. 14-A of the Act.
7. Per contra, learned Counsel appearing for the second respondent - Authority made following submissions:-
(i) that contents of Master Plan are defined under Section 12(1) of the Act;
(ii) Section 12(1)(a) deals with zoning of land use for residential and other purposes. Section 12(1)(b) deals with street pattern indicating road and other purposes; Section 12(1)(c) deals with areas reserved for parks, play grounds, etc.; Section 12(1)(d) deals with area earmarked for future development and expansion;
(iii) once the Master Plan is approved by the Government and published in the official gazette, land use and development in the area should be in conformity with the provisions of the Act. Any change of land use can be made only after obtaining necessary permission under Section 14-A;
(iv) under Section 69(1) of the Act, Planning Authority may exercise its option to acquire any land classified in the master plan specified for the p
