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2013 DIGILAW 245 (KAR)

N. Gopal v. Bangalore Development Authority

2013-02-27

RAM MOHAN REDDY

body2013
ORDER 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 development of land measuring less than 1 acre and therefore the Board constituted under the Act cannot impose a fetter on itself over exercise of jurisdiction over land measuring less than 1 acre. Even otherwise it is submitted that the Regulatory provisions of the BDA Act do not vest a jurisdiction in the BDA to decline to accord permission for development of land measuring less than 1 acre, nor can the BDA call upon the applicant seeking permission to develop land less than 40 guntas in extent to pool in with the adjacent landowner and present a joint application for development of land in excess of 1 acre. 5. 5. There is force in the submission of the learned Counsel for the petitioner. Undoubtedly, the rights of a landowner to develop his lands, would be impinged upon if called to pool land along with the lands belonging to his neighbour, who may or may not part with his land, to secure permission for development. By the resolution impugned, the rights of the petitioner to seek development cannot be impinged upon and therefore the resolution is arbitrary, capricious and illegal. Reference may be made to the observations of the Apex Court in AIR 2007 SC 25 : AIR 2007 SC 25 : (2006) 8 SCC 502 : 2006 AIR SCW 5375 at paragraph 15 which reads thus: 15. 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. 6. Sequentially, it cannot but be held illegal the communication dated 17-7-2012 Annexure-F declining to consider the petitioner's application for development of land measuring 35 guntas until he ensures pooling of land along with other landowners so as to increase the extent of land i.e., excess of one acre. In the result, this petition is allowed. Resolution dated 22-5-2012 in Subject No. 139/2012 Annexure-G and the communication dated 17-7-2012 Annexure-F of the BDA are quashed. A writ of mandamus shall ensue to the respondent-BDA to consider the petitioner's application dated 14-5-2012 Annexure-E and pass orders strictly in accordance with law and in the light of observations made supra. Compliance by 15-3-2013.