C N KUMAR Vs. BANGLORE DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) THIS Writ Petition is filed by the petitioner in public interest praying to declare Section 14 -A of the Karnataka Town and Country Planning Act, 1961 as unconstitutional, illegal and ultra vires and also for issuance of writ of mandamus restraining the State and its officers from enforcing the provisions of said Section 14 -A of the Act. It appears, some other persons have also sought to follow the mandatory constitutional provisions under Article 243ZE of Constitution of India read with the provisions of Karnataka Municipal Corporation Act. Petitioner claiming to be a person having concern for the public said to have redressed the haphazard and unplanned growth of Bangalore City particularly on account of arbitrary change of land use in residential areas that has directly affected the rights of the citizens and residents of Bangalore. In this regard, he has stated that the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as 'the Act' for short) was enacted to regulate the planned growth of land use and development in the State of Karnataka and to create conditions favourable for planning and replanning of the urban and rural areas with a view to provide full civic and social amenities for the people in the State and to stop uncontrolled development of land due to land speculation and profiteering in land, to preserve and improve existing recreational facilities and other amenities contributing towards balanced use of land and to direct the future growth of populated areas in the State with a view to ensuring desirable standards of environmental health and hygiene and creating facilities for the orderly growth of industry and commerce, thereby promoting general standards of living in the State. It is further stated by the petitioner that Bangalore Development Authority is the planning authority within the meaning of Section 4A of the Act for the city of Bangalore. In order to provide for a controlled and scientific development in the city of Bangalore, the Act provides for the preparation of the Outline Development Plan (ODP) and Comprehensive Development Plan (CDP) along with the Zoning Regulations that expressly state the specific usage of areas notified as residential, commercial, industrial etc. As per Section 14 of the Act, every land use is required to be confirmed with the provisions of the Act. It is further stated that the above said fact has been judicially reiterated by the Apex Court in the case of R & M Trust v. Koramangala Residents Vigilance Group and others ( : 2005 SCCL.COM 41) wherein it is held that, the Act primarily deals with the planned growth of land use and development and for the making and execution of Town Planning Scheme in the State of Karnataka. According to Section 14 of the Act, from the date when the Act come into force, every land use, every change in land use and every development in the area covered by the plan shall conform to the provisions of this Act, the Outline Development Plan and the regulations. It further stipulates that no such change in land use or development shall be made except with the written permission of the Planning Authority. Therefore, the whole purpose of this Act is the planned development of the State.

(2.) REFERRING to the aforecited decision, it is submitted that an amendment was also brought in to Section 14 of the Act. The intention behind introducing this Section was that the existing provisions of the Karnataka Town and Country Planning Act, 1961 was not very specific about the circumstances under which the change in land use from one purpose to another purpose under the Outline Development Plan could be permitted. Therefore, Section 14 -A was introduced in order to specify various circumstances under which such change of land use could be permitted. This new Section also prescribes the modalities of bringing a chancre in the land use. Subsequently for better administration of the Act, a new Section has been added as Section 76, 'n' and 'o' to provide power to the State Government to cancel certain resolutions of the Planning Authority and to provide power to the Planning Authority to suspend and revoke licences and permission etc. According to the petitioner, the change in land use is not permissible except in case of public interest and often conversions are permitted in case of land already reserved for public use, which entirely defeats the very purpose of the Act. It is also submitted that Court has to take judicial notice of the violation of the rights of the citizens of Bangalore, including the right to live in a healthy and well planned environment, resulting from gross omissions and commissions of the BDA and the State Government. Accordingly, petitioner has sought for declaration of the provisions of Section 14 -A of the Act as unconstitutional, illegal and Ultra vires as the same suffers from the vice of unbridled power and discretion vested in the BDA and it suffers from excessive delegation of power and Section 14 -A bears no nexus with the objects sought to be achieved by the Act or the Amendment Act of 1991 and hence it is illegal and BDA has given a go by to the circumstances in which change in land use could be permitted and has failed to consider the public interest element involved and the process mandated by law and also it has failed to take into consideration the environmental impact. Accordingly, he has sought a declaration to declare Section 14 -A of the Act as unconstitutional, ultra vires and illegal. He has also sought for writ of mandamus directing the respondents to constitute a Technical Committee comprising such persons as this Court deems fit and in terms of the decision reported in : (2004) 6 SCC 588 as may be applicable, to aid and advise the Bangalore Development Authority in exercise of its powers under Section 14 -A of the Act.

(3.) THE 2nd respondent -Government has filed statement of objection stating that change of land use is done as per the provisions of Section 14 -A of the Act. The amendment to Section 14 of the Act was introduced in the year 1991 and the same clearly indicates the circumstances under which the land use can be changed from approved Master Plan. It is also stated that, as per the approved master plan, after conducting spot inspection and getting report, the change of land use is granted. The Government after receiving proposal from the BDA, if required, obtains opinion from the Director of Town and Country Planning. It is further stated that the change of land use is recommended to Government through committee meeting. The committee consists of members not only from BDA, but several other members of different authorities, Boards and the Corporation. The change of land use is recommended based on the merits of the case, especially looking into the circumstances prevailing. Accordingly, they sought dismissal of the writ petition.