A G BELGAUM Vs. PLANNING AUTHORITY HUBLI DHARWAR

JUDGEMENT

(1.) The petitioner, who is the owner of land survey No.49A of Nagashetty kop village in Hubli taluka, made an application to the first respondent the Planning Authority for Hubil-Dharwar under sub-3. (1) of S.17 of the Karnataka Town and Country Planning Act. 1961 (hereinafter referred to as the Act) for sanction of a lay out of sites for residential purposes. By resolution dated 2-4-1973, the first respondent sanctioned the lay out subject to certain conditions. The provisional approval of the layout was communicated to the petitioner by the Secretary of the Planning Authority by letter dated 21-4-1973 which incorporates 18 conditions imposed for the sanction. The said letter is produced as Ext. 'A' and the plan is produced as Ext, 'B'. It is not disputed that the plan Ext. 'B' and the contents thereof also form the conditions of the sanction granted by the Planning Authority. In the plan, it is noted as follows : "ABCD : Area shown for district centre to be surrendered to the HDMC free of costs." Both the parties are agreed that the 'HDMC' referred to in the plan is Hubli-Dharwar Municipal Corporation. The area comprised in ABCD is an extent of about 2 acres 20 guntas and the same is designated as District Centre. The petitioner, by his letter dated 24-4-1973 written to the first respondent, requested it to delete the condition of surrendering the area marked ABCD in the plan to the Corporation. He has stated that he is not at all liable to surrender the said area to the Corporation for any reason and that if the Corporation intends to have the said piece of land, it may acquire it and get it legally. The request of the petitioner was turned down by the first respondent by its letter dated 25-11-1975 produced in the case as Ext.'D'. By the said letter, the provisional approval granted was renewed for a period of two years. In this writ petition, the petitioner has prayed for the quashing of the condition imposed by the first respondent to the effect that the area shown by the letters ABCD in the plan attached to the provisional approval should be surrendered to the Corporation free of cost.

(2.) It was contended by Shri. Suresh Joshi, learned counsel appearing for the petitioner, that the imposition of the impugned condition is illegal and opposed to the provisions of the Act. It was, however, maintained by Shri H. N. Narayan, learned High Court Government Pleader for the Respondents, that the Planning Authority was well within its rights in imposing the impugned condition under sub-S. (2) of S. 17 of the Act. Sub-S. (1) of S. 17 of the Act proyides that every person who intends to sub-divide his plot or make or lay-out or a private street on or after the date of the publication of the declaration of intention to prepare the Outline Development Plan under sub-S. (1) of S.10, shall submit the lay-out plan together with the prescribed particulars to the Planning Authority for sanction. Sub-S. (2) provides that the Planning Authority may, within the prescribed period, sanction such plan either without modification or subject to such modifications and conditions as it considers expedient or may refuse to give sanction, if the Planning Authority is of opinion that such division or laying out is not in any way consistent with the proposals of the Outline Development Plan. It is not disputed that the sanction in this case was sought under sub-S. (1) of S.10 after the publication of the intention to prepare the Outline Development Plan under sub-S(1) of S.10 of the Act. Shri Narayan also submitted that the Outline Development Plan has been approved by the State Government on 30-11-1974 and the same has been notified on the 2nd of November, 1975. It is clear from sub-S. (2) of S.17 of the Act that sanction prayed for under sub-S. (1) of S. 17 can be refused if the Planning Authority is of the opinion that the lay-out is in any way inconsistent with the proposals of the Outline Development Plan. The Outline Development Plan is made for the purpose of orderly development of the area in question. To achieve that object, the Planning Authority has been empowered to refuse sanction of lay-out if the proposed lay-out is in any way inconsistent with the proposals of the Outline Development Plan. It is, no doubt, true as contended by Shri Narayan, that the Planning Authority has been empowered under sub-sec (2) of the 9.17 to grant sanction either with or without modification or on such conditions as it considers expedient to impose. It is entitled to refuse to give sanction if it is of the opinion that such division or lay out is not in any way consistent with the proposals of the Outline Development Plan. Though all types of conditions which may be imposed under sub-S. (2) of S.17 are not enumerated in that provision, it is clear that no condition can be imposed under that provision inconsistert with the other provisions of the Act. In this case, the Planning Authority has imposible the surrendering of the area marked by the letters ABCD in the provisionally approved plan as a condition for sanction of the layout under sub- S. (1) of S.17 of the Act. If the said condition is opposed to any of the provisions of the Act, it has to be held that that condition is invalid. Shri. Narayan invited my attention to the finally approved Outline Development Plan, from which it is clear that the area marked as ABCD in the provisionally approved plan has been designated is 'District Centre'. It is explained to me that the said area has been designated for being utilised for public purposes. Sub-S. (1) of S.12 of the Act provides that an Outline Development Plan shall generally indicate the manner in which the development and improvement off the entire planning area within the jurisdiction of the Planning Authority are to be carried cut and regulated. It further provides that in particular, it shall include (a) a general land-use plan and zoning of land use for residential, commercial, industrial, agricultural, recreational, educational and other pubic purposes; (b) proposals for roads and high ways; (c) proposals for the reservation of land for the purposes of the Union, any State, any local authority or any other authority established by law in India; (d) proposals for declaring certain areas as areas of special control, development in such areas being subject to such regulations as may be made in regard to building line, height of buildings, floor area ratio, architectural features and such other particulars as may be prescribed; (e) such other proposals for public or other purposes as may from time to time be approved by the Planning Authority or directed by the State Govt in this behalf. It is consistent with sub-sec (1) of S.12 of the Act that in the Outline Development Plan the area ABCD in the provisionally approved plan has been designated as Dist Centre, which according to the Planning Authority, is one of the public purposes. Sub-sec(1) of S-69 of the Act provides that the Planning Authority may acquire any land designated-(i) in an Outline Development Plan for a purpose specified in Cl (b), (c) or (d) of sub- sec (1) of S.12, or for any public purpose out of those specified in Cl(a) of sub-sec(1) of S.12; or (ii) in a comprehensive Development Plan for public purposes, by agreement or under the Land Acquisition Act, 1894 (Central Act, 1894), as in force in the State. If the land is acquired under the Land Acquisition Act, 1894, the provisions of the said Act as amended by S.72 of this Act shall apply to the determination of compensation for the acquisition of such land. Sub-sec(2) provides for a contingency where the land is not acquired as contemplated by sub-sec (1). It is not disputed that the area ABCD shown in the provisionally approved plan has been reserved for a public purpose falling under S.12(1) of the Act. Any area which has been so designated for a public purpose can be acquired by the Planning Authority, either by agreement or by resort to the provisions of the Land Acquisition Act by paying appropriate compensation to the owner of the land. It is, therefore, clear that though in the Outline Development Plah a particular area is designated as an area for any of the public purposes contemplated by sub-sec(1) of S.12 of the Act, the owner of the land does not automatically lose title to the same unless action is taken as contemplated by Section 69(1) of the Act.

(3.) But, in this case, the Planning Authority has imposed a condition that the area ABCD in the provisionally approved plan, which has been designated as Dist Centre should be handed over by the petitioner to the Corporation free of cost. If the Planning Authority cannot itself acquire the area ABCD without paying the price for it in accordance with S.69 of the Act, it is plain that it cannot direct the petitioner to hand over the said area free of cost to another body viz, the Corporation. The Planning Authority was well within its rights in taking the view that no lay out can be permitted on the area marked as ABCD in the provisionally approved plan, inasmuch as the same has been designated in the Outline Development Plan for a public purpose viz, Dist Centre. Though the Planning Authority was right to that extent, it is clear that it was not entitled to impose a further condition that the said area should be given free of cost by the petitioner to the Corporation, inasmuch as the imposition of that condition is clearly opposed to the provisions of S.69 of the Act. I have, therefore, no hesitation in taking the view that the impugned condition imposed by the Planning Authority being opposed to the provisions of the Act is clearly illegal and invalid. If the Planning Authority had correctly understood the provisions of law and had realised that it could not impose the impugned condition, it is reasonable to presume that it would have sanctioned the approval without the impugned condition to the effect that the petitioner should surrender the area ABCD marked in the plan to the Corporation free of cost. Hence, the severable portion of the condition imposed by the Planning Authority can be quashed.