Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1264 (KAR)

M. Shankar Rao v. State of Karnataka

2019-06-14

S.SUNIL DUTT YADAV

body2019
JUDGMENT : S. Sunil Dutt Yadav, J. The petitioner has called in question the 'Communication' at Annexure-H dated 23.06.2010 whereby, the respondent No.1 had cancelled the resolution of the respondent No.2 permitting modification of layout plans and exchange of park area. A further direction has been sought against respondent No.1 to accept the proposal for change of plan by taking note of the resolution of the respondent No.2 at Annexure-K dated 22.07.2010. 2. The petitioner has made an application seeking approval for the proposal to form layout in land situated at Survey Nos.58, 59/3, 60, 61, 62 and 63 totally measuring 25 acres 32 guntas as situated at Kallahalli Village, Shivamogga Taluk, which came to be approved by respondent No.2-Shivamogga Urban Development Authority on 27.12.1999. Subsequently, on 07.12.2007, the petitioner had submitted an application for formation of layout in an extent of 1 acre 23 guntas in Survey No.8/2 situated at Bommanakatte Village, Shivamogga Taluk, which land was adjacent to the earlier layout approved at Kallahalli Village. The said layout also came to be approved by the respondent No.2 on 19.04.2008. 3. The petitioner had made a request to the respondent No.2 to modify the approved layout plans at Kallahalli Village and Bommanakatte Village and permit the consolidation of park area as approved in both the layouts into a larger park in the layout situated at Bommanakatte Village. 4. The respondent No.2 had approved the said proposal by a resolution at 27.10.2009. However, the said resolution had come to be cancelled purportedly in exercise of power under Section 67 of the Karnataka Urban Development Authorities Act, 1987 ('KUDA Act' for brevity) by respondent No.1. 5. The respondent No.2, by its resolution dated 22.07.2010 had sought for a re-consideration of the said decision by respondent No.1 in exercise of the power under Section 67(4) of the KUDA Act. 6. The petitioner pointing out that the Government had not taken any decision on the requisition of the respondent No.2 has filed the present petition contending that the petitioner is entitled to be heard before the Government takes a decision on the recommendation of the respondent No.2. 7. The petitioner contends that the extent of park area would not be reduced and as the park area not been developed, no prejudice as such would be caused nor was there any prohibition in law to consider such application by the Authority. 8. 7. The petitioner contends that the extent of park area would not be reduced and as the park area not been developed, no prejudice as such would be caused nor was there any prohibition in law to consider such application by the Authority. 8. It has been pointed out by the learned counsel for the respondent No.2 that the petitioner had executed a Deed of Surrender (unregistered) on 23.12.1999 with an undertaking executed in favour of the respondent No.2 that the layout would be executed strictly in accordance with the layout plan. However, the petitioner asserts that there has been no delivery of possession nor any 'relinquishment deed' had been executed. 9. It is also pointed out by the learned counsel for respondent No.2 that the Government of Karnataka has notified the park in the layout formed in Sy. Nos.58, 59/3, 60, 61, 62 and 63 at Kallahalli Village, under the provisions of The Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985. 10. It is further stated that the respondent No.2 has reconsidered the entire issue in the light of the present writ and had resolved to reject the proposal of the petition as per their resolution on 14.09.2016. Copy of which has been produced as Annexure-R-12 along with the application for additional documents. 11. The applications filed for production of additional documents are allowed, as the documents sought to be produced relate to the matters in controversy and some of the documents relate to developments subsequent to filing of the writ petition. 12. The respondent No.1 - Urban Development Department has filed the statement of objections and has contended that the proposed 'swapping' is not permissible under the provisions of the Act, that approval of the layout was given about 10 years back and under Section 39 of the KUDA Act, the land earmarked as a park cannot be diverted. It is further contended that interests of prospective residents cannot be affected and that decision has been taken to cancel the resolution of respondent No.2 and the petitioner's request has also been rejected and the same has been communicated to the petitioner as per the letter dated 13.06.2011. 13. Learned counsel on both the sides have been heard and they reiterate their contentions. 14. 13. Learned counsel on both the sides have been heard and they reiterate their contentions. 14. At the outset, it must be noted that the petitioner's proposal for a modified layout plan with the consolidation of park area is made on 04.12.2008, whereas the layout at Kallahalli Village had been approved way back on 27.12.1999 (Provisional approval). It is also a part of the record that the petitioner had undertaken by way of execution of an undertaking that he would transfer when called upon the common areas including parks to the Authority (Annexure R-2 11.06.1998). Subsequently, on 23.12.1999 (Annexure R-3), the petitioner has executed a document styled as possession certificate evidencing the handing over of possession of the park area to respondent No.2 in terms of the approved layout plans. 15. It is also to be noted that under Section 32(5) of the Karnataka Urban Development Authority Act, 1987, when the approval for the layout is granted, the Authority can call upon the applicant to transfer ownership of parks and open spaces to the Authority. In fact, in terms of the provisions of the Karnataka Parks Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985, the Government has notified in exercise of power under Section 4(3) of the Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985, in the Gazette dated 23.12.2013 at Sl.No.39 extent of 4856.32 sq. mtrs. at Kallahalli Village as a park and the notification further clarifies that park has been handed over to the Local Municipal Authority. 16. The statutory mandate under Section 30(2) of the KUDA Act also requires transferring of parks for their maintenance to the Local Municipal Authority. The further mandate under Section 6 of the Karnataka Parks Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985, is that once a park has been specified in the list published, under Section 4 of the Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985, Act, such land cannot be diverted for any other purpose. 17. It is also noticed that objections were called from the prior to notifying from the public by way of Gazette notification on 21.05.2010 and 12.01.2011 as is referred in the Gazette notification dated 23.02.2013. If all such developments have taken place even prior to filing of the writ petition, the said aspect is required to be kept in mind. 17. It is also noticed that objections were called from the prior to notifying from the public by way of Gazette notification on 21.05.2010 and 12.01.2011 as is referred in the Gazette notification dated 23.02.2013. If all such developments have taken place even prior to filing of the writ petition, the said aspect is required to be kept in mind. The Gazette notification also refers to the park as finding a mention in the Annual Returns for the period from January 1985 to end of July 2010. 18. In the light of the above said facts, for the petitioner to still insist on consolidation of plans and "swapping" of the park area can no longer be a subject matter for reconsideration. In fact, the Government in its communication on 13.06.2011 to the respondent No.2 had intimated regarding the rejection of the representation of the petitioner. 19. Though the petitioner seeks to make out a case that he would be an affected party, as civil consequences would visit him, if any decision is taken regarding his request, the facts of the case however would not justify affording any opportunity of personal hearing. 20. The respondent No.2 having forwarded its resolution accepting the proposal of the petitioner for modification of the plan at the first instance, the State Government in exercise of the power under Section 67(4) of the KUDA Act has rejected the proposal of the respondent No.2. Though there has been a subsequent reiteration by the respondent No.2, calling upon the Government to reconsider by its resolution dated 22.07.2010, the further resolution by the respondent No.2 dated 14.09.2016 after reconsidering all aspects has crystallized the stand of the Development Authority to the effect that question of consideration of the petitioner's request would not be permissible. In light of the requirement under law that all resolutions of the Authority would be sent to the Government, the latest resolution dated 14.09.2016 would have the effect of superceding the earlier resolution of the respondent No.2 dated 22.07.2010. If that were to be the position, the question of issuing any direction to the Government in the nature of writ of mandamus to consider the proposal for modification submitted by the petitioner in terms of the resolution dated 22.07.2010, has for all purposes been rendered in-fructuous. 21. If that were to be the position, the question of issuing any direction to the Government in the nature of writ of mandamus to consider the proposal for modification submitted by the petitioner in terms of the resolution dated 22.07.2010, has for all purposes been rendered in-fructuous. 21. It is to be noticed that the power under Section 67(4) of the KUDA Act which is available to the Government, is the power in the nature of superintendence that is exercised by the Government over the decisions taken by the local Authority. When the local Authority itself by its resolution dated 12.08.2016 has in effect overruled its earlier resolution dated 22.07.2010, the question of the Government taking any decision does not arise. If at all, petitioner has any legal grievance, it is with respect to the resolution of the Authority dated 12.08.2016. 22. As regards the contention of the petitioner that he is an affected party and ought to have to be heard before any decision was taken by the Government under Section 67 of the KUDA Act, it must be noted that the scope of power exercised under Section 67 of the KUDA Act being one which is supervisory provides for affording show-cause to the Authority as per Section 67(2) of the KUDA Act. The consideration guiding exercise of power under Section 67 KUDA Act is as to whether the municipal/local authority is doing an act in excess of power conferred under the Act, etc., as stipulated under Section 67(2) of the KUDA Act and in such exercise by the Government, question of hearing the developer normally would not arise. No doubt, as pointed out by the petitioner even where the statute remains silent, the principles of natural justice could be afforded to the affected party. 23. However, in the present case, the petitioner being bound by the undertaking furnished to surrender the park area, which now has been notified as a park under the Provisions of the Karnataka Parks, Play-Field and Open Spaces (Preservation and Regulation) Act, 1985, the question of the petitioner being an affected party and entitled to be heard does not arise. 23. However, in the present case, the petitioner being bound by the undertaking furnished to surrender the park area, which now has been notified as a park under the Provisions of the Karnataka Parks, Play-Field and Open Spaces (Preservation and Regulation) Act, 1985, the question of the petitioner being an affected party and entitled to be heard does not arise. It is to be noticed that the provisional approval of the layout plan having been made on 27.12.1999, the question of seeking modification of the said layout plan by way of an petition on 04.12.2008, would be impermissible at such a belated point of time. The conduct of the petitioner in having executed an undertaking on 11.06.1998 that he would hand over possession of the park area and subsequently trying to wriggle out of such undertaking by taking hypertechnical pleas regarding non-development of park area cannot be countenanced. 24. It is also to be noted that statutory requirements of planning are based on guidelines, which are tested and well settled and such planning processes ought not to be interfered with by creating exceptions unless expressly permitted in the statute itself. The planning processes cannot be interfered with merely to accommodate convenience of the developer, as many interests, including that of persons not before the Court are involved. Further, the planning processes cannot give way to conveniences and practical considerations, as the same would be an anti thesis to the concept of planning itself. 25. In light of the subsequent developments, including the resolution by the respondent No.2 on 14.09.2016, which has settled the stand of the respondent No.2, the question of considering the relief sought for by the petitioner does not arise. Accordingly, the petition is dismissed. 26. Now that the writ petition itself is dismissed, nothing survives for consideration of I.A.No.1/2018 for early hearing. It is dismissed as having become redundant.