AMITA NITIN SHIRGURKAR Vs. BELGAUM URBAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) The petitioner in Writ Petition No. 68630 of 2011 is the owner of the land bearing Sy. No. 116/1 measuring 36 guntas situated at Belgaum. The Comprehensive Development Plan ('CDP' for short) in respect of Belgaum City was published by the concerned planning authority in the Official Gazette on 13-1-1994. In the CDP, the land in question was earmarked and designated as open space. The said open space was not acquired for a period of five years from the date of publication of the CDP. The petitioner made an application before the Planning Authority for permission to utilise the land for residential purpose. The Planning Authority acting under Section 69(2) of the Karnataka Town and Country Planning Act, 1961 ('the Act' for short) permitted the petitioner to utilise the land bearing Sy. No. 116/1 for residential purpose since the designation assigned to the land in question has lapsed after five years. Thereafter the petitioner made an application before the Deputy Commissioner for conversion of the land for residential purpose. The said application came to be rejected by the Deputy Commissioner by the order dated 23-12-2008. The petitioner filed Appeal No. 134 of 2009 before the Karnataka Appellate Tribunal questioning the order dated 23-12-2008 passed by the Deputy Commissioner rejecting the application praying for conversion. The Karnataka Appellate Tribunal passed the order in favour of the petitioner as per Annexure-C, dated 19-10-2010 (in W.P. No. 68630 of 2011) and directed respondent 2 to accept the conversion fee from the petitioner and grant the order of conversion. The said order of Karnataka Appellate Tribunal is questioned by the State in Writ Petition No. 66968 of 2011.

(2.) Admittedly, the petitioner is the owner of the property in question. It is also not in dispute that the land in question was designated as open area in the CDP by the Planning Authority as per Section 12(3) of the Act. It is also not in dispute that the said property is not acquired within the period of five years from the date of designation. The records reveal that the designation has come into force with effect from 13-1-1994, on which date the CDP was gazetted. From the above, it is clear that the petitioner is entitled to take benefit of the provisions of Section 69(1) of the Act after give years from 13-1-1994. It is relevant to note the provisions of Section 69(1) and 69(2) of the Act, which read thus:

(3.) A bare reading of the provision contained in Section 69(2) of the Act makes it clear that if the designated land is not acquired by agreement within five years from the date, the master plan is published in the gazette under sub-section (4) of Section 13 or if the proceedings under the Land Acquisition Act are not commenced within such period, the designation shall be deemed to have been lapsed. So the lapsing of designation is automatic after the lapse of five years. In the matter on hand, there is neither agreement between the parties for acquisition of the land in question nor the proceeding had taken place under the provisions of the Land Acquisition Act to acquire the land. Therefore, the designation lapses after a period of five years. If it is so, it is open for the petitioner to utilise the said land for the residential purpose, the purpose for which the neighbouring lands are earmarked in the Master Plan. Undisputedly, the neighbouring lands are in the residential zone. Since the designation has lapsed, it is open for the petitioner to utilise the same for the residential purpose.