1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE25H DAY OF NOVEMBER, 2021 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.4729 OF2020(LB-RES) BETWEEN: KARNATAKA RAJYA MANDAVYA GRUHA NRIMANA SAHAKARA SANGHA SRI VIJAYALAKSHMI BUILDING1T FLOOR, 100FT. ROAD, HOSAHALLI CIRCLE, MANDYA57140 REPRESENTED BY ITS DIRECTOR AND AUTHORISED SIGNATORY SHRI B. SIDDARAJU SON OF SHRI BASAVAIAH ... PETITIONER (BY SRI B.M.ARUN, ADVOCATE (PHYSICAL HEARING)) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF REVENUE MULTISTORIED BUILDING BENGALURU560001.
2. MANDYA URBAN DEVELOPMENT AUTHORITY BANNUR ROAD, NEXT TO PUMP HOUSE MANDYA57140 RERPESENTED BY ITS COMMISSIONER. 2
3. STATE OF KARNATAKA REPRESENTED BY PRINCIPAL SECRETARY DEPARTMENT OF URBAN DEVELOPMENT BENGALURU - 560 001. ... RESPONDENTS (BY SRI NITHYANANDDA K.R., AGA FOR R1 AND R3 (PHYSICAL HEARING); SRI T.P.VIVEKANANDA, ADVOCATE FOR R2 (PHYSICAL HEARING)) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE COMMUNICATION DATED139.2019 ISSUED BY THE R-2 MUDA VIDE ANNEXURE-A AND CONSEQUENTLY AND ETC., THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON1911.2021, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING :-
ORDERThe petitioner/Karnataka Rajya Mandavya Gruha Nirmana Sahakara Sangha calls in question a communication dated 13.09.2019 issued by the Mandya Urban Development Authority (‘MUDA’ for short) turning down the application of the petitioner for approval of the layout plan on the score that the lands where the layout is sought to be formed will have to undergo a change of land use in terms of Section 14 of the Karnataka Town and Country Planning Act, 1961 (‘the KTCP Act’ for short) and 3 proceedings in terms of Section 14A of the KTCP Act will have to be initiated by the petitioner.
2. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows: The petitioner is a House Building Co-operative Society registered under the provisions of the Karnataka Co-operative Societies Act, 1959. The petitioner seeking to form a layout in several survey numbers of Kyathangere village, Kothathi Hobli, Mandya Taluk and District applied for permission to purchase agricultural lands under Section 109 of the Karnataka Land Reforms Act, 1961 (‘the Land Reforms Act’ for short). Pursuant to the application submitted by the petitioner to the Government, MUDA issued an endorsement granting approval for purchase of lands in the said survey numbers. After the aforesaid procedure, the 1st respondent issued a Notification on 27-04-2012 granting approval for purchase of said lands.
3. In furtherance of the approval and permission granted by the State, the petitioner purchased lands in several survey 4 numbers in the aforesaid village on 14-05-2012 from the respective land owners. The survey numbers are described in the petition and would be hereinafter referred to as the 'subject lands'. Pursuant to the said purchase of the subject lands, the petitioner made a representation to the Deputy Commissioner, Mandya seeking conversion of lands from agriculture to non- agricultural purposes. The said representation of the petitioner for such conversion was forwarded by the Deputy Commissioner to the 2nd respondent/MUDA by his letter dated 20-02-2013 seeking no objection from the hands of MUDA. MUDA in reply to the said communication informs the Deputy Commissioner, Mandya District that the lands are coming under the proposed Development of formation of a housing layout and, therefore, permission cannot be granted. Pursuant to the said communication of MUDA, an endorsement is issued by the Deputy Commissioner keeping the application of the petitioner for conversion pending on the ground that lands would come within the proposed development activity of the Planning Authority. 5
4. This is called in question by the petitioner before this Court in Writ Petition No.15976 of 2017. This Court by its order dated 07-09-2017 quashed the endorsement and directed the Deputy Commissioner to consider the case of the petitioner for conversion. It is thereafter, the Deputy Commissioner granted conversion of lands from agriculture to non-agricultural purposes by an Official Memorandum dated 03-02-2018. On the strength of such conversion the petitioner also obtains a No objection from the hands of the Grama Panchayat for the development of the said lands, and submits a layout plan for approval to the planning authority. MUDA by communication dated 13.09.2019 informs the petitioner that part of the subject land is still under the Master Plan and therefore, a change of land use in terms of Section 14A of the KTCP Act will have to be made by the petitioner initiating such process, unless that is done the approval for layout cannot be considered. It is calling in question the said communication dated 13-09-2019 the petitioner is before this Court. 6
5. Heard Sri B.M. Arun, learned counsel for the petitioner, Sri K.R. Nithyananda, learned Additional Government Advocate for respondents 1 and 3 and Sri T.P.Vivekananda, learned counsel for respondent No.2.
6. The learned counsel appearing for the petitioner Sri B.M. Arun would vehemently argue and contend that direction by MUDA to invoke under Section 14 of the KTCP Act is illegal, as once Government grants permission to purchase lands and the Deputy Commissioner grants conversion of lands under the scheme of the KTCP Act, MUDA has no authority to decline approval of the layout. It has become a constant harassment is what the learned counsel submits as MUDA does not approve and the project of the kind of the petitioner is languishing due to erroneous interpretation of the provisions of law. In this regard he would place reliance upon two judgments of the Apex Court: (i) STATE OF PUNJAB AND OTHERS v. GAMDOOR SINGH – (1998) 8 SCC366and 7 (ii) PAIARA LAL v. STATE OF PUNJAB AND ANOTHER – (1997) 6 SCC771 7. On the other hand, the learned counsel appearing for MUDA taking this Court through the statement of objections would contend that once lands come within the ambit of the Planning Authority and continue to remain as agricultural lands, unless change of land use happens, the plan submitted by the petitioner cannot be approved. The very act of the Deputy Commissioner granting conversion of lands which are still within the ambit of the Planning Authority by itself is contrary to law and it can only be after Government grants change of land use under Section 14 of the KTCP Act for usage of lands from agriculture to non-agricultural purposes, the Planning Authority can approve. The conversion granted by the Deputy Commissioner is altogether different and change of land use to be granted by the Government is again a different procedure as the lands still vest with the Planning Authority under the Master Plan. He would place reliance upon the judgment of this Court 8 in M/s BABA DEVELOPERS PVT.LTD. AND OTHERS v. BANGALORE INTERNATIONAL AIRPORT AND OTHERS – 2011 (2) AIR Kar R248- paragraphs 9 and 11.
8. The learned Additional Government Advocate would also toe the lines of the learned counsel appearing for the 2nd respondent/MUDA.
9. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
10. The dispute in the case at hand is tripartite – the petitioner, the State and the MUDA. The petitioner, a House Building Co-operative Society in furtherance of its object of formation of a layout seeks permission under Section 109 of the Land Reforms Act to purchase agricultural lands in various survey numbers supra. Section 109 of the Land Reforms Act reads as follows:
9. “109. Certain lands to be exempt from certain provisions.—(1) Subject to such rules as may be prescribed and the provisions of the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963), the State Government may, by notification, exempt, any land in any area from the provisions of sections 63, 79A, 79B or 80 to be used for,— (i) industrial development, the extent of which shall not exceed twenty units; (ii) educational institutions recognised by the State or Central Government to be used for non-agricultural purpose the extent of which shall not exceed four units; (iii) places of worship to be specified by Government by notification which are established or constructed by a recognised or registered body for non-agricultural purpose, the extent of which shall not exceed one unit; (iv) a housing project, approved by the State Government the extent of which shall not exceed ten units; (v) the purpose of horticulture including floriculture and agro based industries the extent of which shall not exceed twenty units: Provided that the Deputy Commissioner may also exercise the powers of the State Government under this sub-section, subject to the restrictions and in the manner specified therein, in respect of the land to be used for,- (i) industrial development, the extent of which shall not exceed ten units; (ii) educational institutions recognised by the State or Central Government to be used for non-agricultural purpose the extent of which shall not exceed two units; 10 (iii) places of worship to be specified by Government by notification which are established or constructed by a recognised or a registered body for non-agricultural purpose, the extent of which shall not exceed one fourth of a unit; (iv) a housing project, approved by the State Government the extent of which shall not exceed ten units; (v) the purpose of horticulture including floriculture and agro based industries the extent of which shall not exceed ten units. (1A) Notwithstanding anything contained in sub- section (1), the State Government may in public interest and for reasons to be recorded in writing, by notification and subject to the provisions of the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963) and such restrictions and conditions as may be specified by it, exempt any extent of land from the provisions of sections 63, 79A, 79B or 80 for any specific purpose. Provided that the Deputy Commissioner other than the Deputy Commissioner of Bangalore Rural District and the Deputy Commissioner of Bangalore District, may subject to the restrictions and the manner specified in this sub-section exercise the power of the State Government to grant exemptions to an extent not exceeding half hectare of land. (2) Where any condition or restriction specified in the notification under sub-section (1), has been contravened, the State Government or as the case may be, the Deputy Commissioner may after holding an enquiry as it or he deems fit, cancel the exemption granted under that sub- section and the land in respect of which such cancellation has been made, shall, as penalty be forfeited to and vest in 11 the State Government free from all encumbrances. No amount is payable therefor.” (Emphasis supplied) Section 109 mandates that subject to such Rules as may be prescribed under the provisions of the Act, the State Government may by notification exempt any land in any area from certain provisions of the Land Reforms Act, if such exemption is also available for development of a housing project.
11. The application submitted by the petitioner seeking such permission was forwarded to MUDA, and MUDA also accorded its no objection for purchase of said lands. It is thereafter, as required under Section 109 of the Land Reforms Act, a Notification is issued granting permission to the petitioner for purchase of aforesaid lands. It is in this manner the petitioner becomes the owner of lands in the aforesaid survey numbers with a purpose to set up a housing layout. 12
12. The petitioner then applies for conversion from the hands of the Deputy Commissioner under Section 95 of the Karnataka Land Revenue Act, 1964 (‘the Land Revenue Act’ for short). Section 95 of the Land Revenue Act reads as follows: “95. Uses of agricultural land and the procedure for use of agricultural land for other purpose.—(1) Subject to any law for the time being in force regarding erection of buildings or construction of wells or tanks, an occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land or its more convenient use for the purpose aforesaid. Provided that the farm Building or farm House so erected shall not be more than ten percent of his holding subject to maximum of such extent of land as may be prescribed. Explanation.- For the purpose of this sub-section “Farm Buildings” or "Farm house" means a house attached to a farm and constructed in a portion of an agricultural land, used for the residence of the agriculturist or used for the purpose of keeping agricultural equipments and tethering cattle. The house shall be used by farmer for his own use and it shall not be let out for commercial activities to any individual or agency. (2) If any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, he shall notwithstanding anything contained in any law for the time being in force apply for permission to the Deputy Commissioner who may, subject to the provisions of this section and the rules made under 13 this Act, refuse permission or grant it on such conditions as he may think fit. Provided that in case of any agricultural land assessed or held for the purpose of agriculture, falling within the Local Planning Area for which the Master Plan has been duly published under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963) and such land and such diversion is in accordance with the purpose of land use specified in such Master plan. The permission therefore shall be deemed to have been granted subject to payment of fine prescribed under sub- section (7). Provided further that in Dakshina Kannada District, subject to any law for the time being in force regarding erection of buildings or the construction of wells or tanks, an occupant of dry (punja) land, wet land or garden land who is not,— (a) a person registered or liable to be registered as an occupant of such land under section 48A of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962); or (b) a grantee of such land under section 77 of the said Act, may, without obtaining the permission required under this sub-section and notwithstanding anything contained therein, divert such land or part thereof to any other purpose after sending a prior notice in that behalf, in the prescribed form to the Tahsildar and paying in the prescribed manner, the fine prescribed under sub-section (7). (2A) Where any occupant of land assessed or held for the purpose of agriculture has diverted such land or part thereof to residential purpose without obtaining the permission of Deputy Commissioner under sub-section (2), prior to 31st day of December 2008 and desirous to get 14 such diversion be regularised, shall, apply within the period of one year from the date of commencement of the Karnataka Land Revenue (Amendment) Act, 2011 in such form, along with such fee and penalty, as may be prescribed, to the Deputy Commissioner. On receipt of such application, the Deputy Commissioner may, notwithstanding anything contained in this Act, but subject to the provisions of any other law for the time being in force and subject to such conditions and in such manner as may be prescribed, on production of such evidence as he may require it to be necessary and after an enquiry, regularise or refuse to regularize except where such land,- (i) lies in the line of natural drains or course of valley; (ii) belongs to the State Government or an authority owned or controlled by the State Government or any local Authority; (iii) coming in the way of existing or proposed roads, inner or outer ring roads, national high ways, by pass over ring roads including those proposed for widening and railway lines, tram ways, mass rapid transit system projects, communications and other civic facilities or public utilities; (iv) is a forest land; (v) belonging to another person over which the applicant has no title; (vi) is reserved for parks, play grounds, open places or for providing any civic amenities; (vii) or building is abutting to neighbouring property, storm water drains, tank bed areas, river course or beds and canals or below the high tension electric line; 15 (viii) use is against height restrictions specified in zoning regulations for heritage monuments, aerodrums and Defense Regulations; (ix) not conforms to any clearance from high- tension lines or fire protection measures; (x) is in the area covered by the Coastal Zone Regulations of the Ministry Environment and Forest, Government of India; (xi) regularisation of violation in respect of change of land use shall be made as far as may be in accordance with section 14A of the Karnataka Town and Country Planning Act, 1961; (xii) or development in respect of any building having more than two floors shall be regularisedunless,- (a) a certificate from a Structural Engineer is produced regarding the structural stability of such building; (b) a No Objection Certificate is obtained from the Fire Force Department. (xiii) or unauthorised development or construction made in agricultural zone of approved Master Plan or green belt area declared under Karnataka Land Revenue Act, 1964; and (xiv) is covered under any other prohibition as may be prescribed: (2AA) Burden of proving that the diversion or change of land use was made for residential purpose prior to 31st day of December 2008 shall lie on the applicant who seeks regularisation of such unauthorised diversion or change of land use. 16 (2AAA) All such diversions or change of land use which are not regularised or where applicant does not apply within the time specified in sub-section (2A) shall be liable to be demolished or brought back to their earlier use and expenses incurred thereon shall be collected from such person as arrears of land revenue. (3) Permission to divert may be refused by the Deputy Commissioner on the ground that the diversion is likely to defeat the provisions of any law for the time being in force or that it is likely to cause a public nuisance].5 or that it is not in the interests of the general public or that the occupant is unable or unwilling to comply with the conditions that may be imposed under subsection (4). (4) Conditions may be imposed on diversion in order to secure the health, safety and convenience, and in the case of land which is to be used as building sites, in order to secure in addition that the dimensions, arrangement and accessibility of the sites are adequate for the health and convenience of occupiers or are suitable to the locality and do not contravene the provisions of any law relating to town and country planning or the erection of buildings. (5) Where the Deputy Commissioner fails to inform the applicant of his decision on the application made under sub-section (2) within a period of four months, from the date of receipt of the application, the permission applied for shall be deemed to have been granted. (6) Unless the Deputy Commissioner shall, in any particular instance otherwise direct, no application under sub-section (2) shall be recognised unless it is made by the occupant. (6a) In Dakshina Kannada District, Kodagu District, and Kollegal Taluk of Mysore District where any land assessed or held for purposes of agriculture has been diverted or used for any other purposes, before the date of commencement of the Karnataka Land Revenue 17 (Amendment) Act, 1981, the land so used together with the land appurtenant to any building (other than a farm house) therein, not exceeding three times the built area of such building, shall with effect from such date be deemed to have been permitted to be used for purposes other than agriculture. (7) When any land assessed or held for the purpose of agriculture is permitted under sub-section (2) 3 [or is diverted under the provisos to the said sub-section or is deemed to have been permitted under sub-section (5) or sub-section (6a), to be used for any purpose unconnected with agriculture, the Deputy Commissioner may, subject to such rules as may be made by the State Government in this behalf, require the payment of a fine. No assessment shall be leviable on such land thereafter except under subsection (2) of section 83. (8) The permission for diversion of agricultural land for industrial development, educational institutions, Places of worship a Housing Project approved by the State Government, or for purpose of Horticulture under this section shall be deemed to have been granted when permission for purchase of agricultural land is accorded under section 109 of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962) for industrial development, educational institutions, Places of worship, a Housing Project approved by the State Government, or for purpose of Horticulture as the case may be subject to the payment of fineas may be prescribed. Explanation.—For the purpose of this section, “occupant” includes a mulgeni tenant or a permanent tenant. (9) whenever any occupant of land assessed or held for purpose of agriculture wishes to divert such land or any part thereof for the purpose of quarrying of minor minerals, whether specified or non specified in accordance with the 18 rules governing quarrying of minor minerals or stone crushing activity under the Karnataka regulation of stone crushers Act, 2011 (Karnataka Act 8 of 2012), shall make an application along with the fine applicable to the Deputy Commissioner for diversion of such land. On such application, the permission for diversion of such land shall be deemed to have been granted subject to obtaining lease or licence or working permission under the said enactments. (10) If any occupant of any agriculture land assessed or held for the purpose of agriculture wishes to divert such land or part thereof for the purpose of setting up of solar power generation in accordance with Karnataka Solar Policy 2014-21 issued in G.O EN21VSC2014dated 22.05.2014 which has been approved by State and Central Government and which has been approved by the Competent Authority, the permission applied for conversion of such land shall be deemed to have been granted for that purpose so long as they use for purpose for which permission is granted subject to payment of the conversion fine and all such other fees payable if any, in this regard."
(Emphasis supplied) Section 95(2) mandates that if any occupant of the land assessed or held for the purpose of agriculture wishes to divert such land for any other purpose shall make an application. The proviso mandates that if the land would be falling under the local planning area for which the Master Plan has been duly published under the KTCP Act, such diversion shall be in accordance with sub-section (7). 19
13. The petitioner makes an application to the Deputy Commissioner. The Deputy Commissioner, in turn, communicates it to MUDA seeking its prior approval for grant of such conversion, as lands were earmarked to be within the Planning Authority, in the Master Plan as notified in terms of the KTCP Act. This is replied to by MUDA on 06-10-2016 clearly indicating as to why MUDA is not in a position to accord any approval for conversion of lands from agriculture to non- agricultural purposes. The said communication dated 06-10-2016 reads as follows:
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5) gÀ ¥ÀvÀæzÀ°è ¸À.£ÀA.27 gÀ°è 01J- 11- 04 UÀÄAmÉ ºÁUÀÆ 01J- 00- 00 UÀÄAmÉ ªÀ¸Àw ªÀ®AiÀÄzÀ°èzÉ JAzÀÄ »A§gÀºÀ ¤ÃqÀ¯ÁVgÀÄvÀÛzÉ. DzÀÝjAzÀ ¸ÀzÀj d«ÄãÀ£ÀÄß ¨sÀÆ- ¥ÀjªÀvÀð£É ªÀÄAdÆgÁw ¤ÃqÀĪÀ ¸ÀA§AzsÀ ¸À°è¹gÀĪÀ ªÀgÀ¢ ºÁUÀÄ G¯ÉèÃTvÀ ¥ÀvÀæUÀ¼À°è CfðzÁgÀjUÉ ¤ÃrgÀĪÀ »A§gÀºÀzÀ°è£À ªÀgÀ¢ F JgÀqÀÄ ªÀgÀ¢AiÀÄ°è AiÀiÁªÀÅzÀ£ÀÄß ¥ÀjUÀt¹ ¨sÀÆ- ¥ÀjªÀvÀð£ÉUÀ ªÀÄAdÆgÁw ¤ÃqÀ¨ÉÃPÀÄ JA§ «µÀAiÀÄzÀ°è ¸ÀáµÀÖ ªÀgÀ¢AiÀÄ£ÀÄß ¸À°è¸ÀĪÀAvÉ ¸ÀÆa¸À¯ÁVzÉ. F ¸ÀA§AzsÀ zÁR¯ÁwUÀ¼À£ÀÄß ¥Àj²Ã°¸À®V, ªÀÄAqÀå ¸ÀܽÃAiÀÄ AiÉÆÃd£Á ¥ÀæzÉñÀPÉÌ ¸ÀPÁðgÀ¢AzÀ C£ÀĪÉÆÃzÀ£ÉAiÀiÁVgÀĪÀ ªÀĺÁAiÉÆÃd£ÉAiÀÄ£ÀéAiÀÄ ¥Àæ¸ÁÛ«vÀ d«ÄãÀÄUÀ¼ÀÄ ªÀ¸Àw, ªÀåªÀ¸ÁAiÀÄ ºÁUÀÆ ¸ÁjUÉ ªÀÄvÀÄÛ ¸ÀA¥ÀPÀð ªÀ®AiÀÄPÉÌ UÀÄgÀÄw¸À¯ÁVzÀÄÝ, ¥Àæ¸ÁÛ«vÀ d«ÄãÀÄUÀ¼À ¨sÀÆ G¥ÀAiÉÆÃUÀ «ªÀgÀ F PɼÀPÀqÀAwzÉ. ¸À.£ÀA. ªÀ¸Àw ªÀ®AiÀÄ ªÀåªÀ¸ÁAiÀÄ ¸ÁjUÉ ªÀÄvÀÄÛ MlÄÖ ªÀ®AiÀÄ ¸ÀA¥ÀPÀð (Bye J-UÀÄA-Dt J-UÀÄA-Dt J-UÀÄA-Dt Pass Road) ªÀ®AiÀÄ J-UÀÄA-Dt 27 01- 11- 04 00- 11- 12 00- 12- 00 01-35- 00 34 - 01- 38- 08 - 01-38- 08 116 01- 00- 00 00- 20- 00 00- 09- 00 01-29- 00 MlÄÖ 02- 11- 04 02- 30- 04 00- 21- 00 05-22- 08 21 ªÉÄîÌAqÀ ¸ÀªÉð £ÀA§gïUÀ¼ÀÄ ¥Áæ¢üPÁgÀªÀÅ GzÉÝò¹gÀĪÀ ªÀ¸Àw AiÉÆÃd£ÉAiÀÄ ªÁå¦ÛAiÀÄ°è §gÀÄwÛzÀÄÝ, ¥Áæ¢üPÁgÀªÀÅ ºÉƸÀ §qÁªÀuÉ ¤ªÀiÁðt ªÀiÁqÀ®Ä GzÉÝò¹gÀĪÀ AiÉÆÃd£ÉUÀ¼À ªÁå¦ÛAiÀÄ°è §gÀĪÀ d«ÄãÀÄUÀ¼À£ÀÄß ºÉÆgÀvÀÄ ¥Àr¹ G½zÀ d«ÄãÀÄUÀ½UÉ ¤AiÀiÁªÀiÁ£ÀĸÁgÀ ¥Àj²Ã°¹ C£ÀåPÁæAvÀ / gÀÆ¥ÀÄgÉÃSÉ £ÀPÉëUÉ C£ÀĪÀÄw¸ÀĪÀAvÉ G¯ÉèÃR (2) gÀ ¸ÀPÁðgÀzÀ ¥ÀvÀæ ªÀÄvÀÄÛ G¯ÉèÃR (3) gÀ°è f¯Áè¢üPÁjUÀ¼ÀÄ, ªÀÄAqÀå gÀªÀgÀÄ ¸ÀÆa¹gÀĪÀ£ÀéAiÀÄ ºÁUÀÆ ¸ÀzÀj d«ÄãÀÄUÀ¼ÀÄ ¥Áæ¢üPÁgÀªÀÅ GzÉÝò¹gÀĪÀ ªÀ¸Àw AiÉÆÃd£ÉAiÀÄ ªÁå¦ÛAiÀÄ°è §gÀĪÀÅzÀjAzÀ, ¥Àæ²ßvÀ d«ÄãÀÄUÀ¼À£ÀÄß ªÀ¸Àw GzÉÝñÀzÀ ¨sÀÆ¥ÀjªÀvÀð£ÉUÉ ¥ÀjUÀt¸ÀĪÀÅzÀÄ ¸ÀÆPÀÛªÀ®è JA§ C©ü¥ÁæAiÀĪÀ£ÀÄß ªÀÄvÉÆÛªÉÄä vÀªÀÄä CªÀUÁºÀ£É ºÁUÀÆ ªÀÄÄA¢£À PÀæªÀÄPÁÌV ¸À°è¸À¯ÁVzÉ."
vÀªÀÄä «±Áé¹, ¸À»/- DAiÀÄÄPÀÛgÀÄ £ÀUÀgÁ©üªÀÈ¢Þ ¥Áæ¢üPÁgÀ, ªÀÄAqÀå."
The moment this communication is received from the hands of MUDA, the Deputy Commissioner issues an endorsement to the petitioner that the lands come within the planning area of MUDA and therefore, the application of the petitioner would be kept pending. The endorsement dated 25-11-2016 reads as follows:
"»A§gÀºÀ «µÀAiÀÄ: ªÀÄAqÀå vÁ®ÆèPÀÄ, PÉÆvÀÛwÛ ºÉÆç½, PÁåvÀAUÉgÉ UÁæªÀÄzÀ ¸À.£ÀA.27gÀ 01- 35-00 UÀÄAmÉ ªÀÄvÀÄÛ ¸À.£ÀA.166 gÀ°è 01-29-00 JPÀgÉ MlÄÖ 03-24- 00 JPÀgÉ ¥ÀæzÉñÀzÀ°è PÀ£ÁðlPÀ gÁdå ªÀiÁAqÀªÀå UÀȺÀ ¤ªÀiÁðt ¸ÀºÀPÁgÀ ¸ÀAWÀ ¤AiÀÄ«ÄvÀ ªÀÄAqÀågÀªÀgÀÄ ¸ÀAWÀzÀ ¸ÀzÀ¸ÀågÀÄUÀ½UÉ ªÁ¸ÀzÀ ªÀÄ£É ¤«Äð¸ÀĪÀ GzÉÝñÀPÉÌ ¤ªÉñÀ£ÀºÀAZÀ®Ä ¨sÀÆ¥ÀjªÀvÀð£É PÉÆÃjgÀĪÀ §UÉÎ. G¯ÉèÃR: DAiÀÄÄPÀÛgÀÄ, ªÀÄAqÀå £ÀUÀgÁ©üªÀÈ¢Ý ¥Áæ¢üPÁgÀ, ªÀÄAqÀå gÀªÀgÀ ¥ÀvÀæ ¸ÀASÉå: ªÀÄA£À¥Áæ/¨sÀÆ.¥À/ªÀ.AiÉÆÃ/48/2016-17/503(02) ¢£ÁAPÀ:06.10.2016. **** 22 ¤ÃªÀÅ ªÀÄAqÀå vÁ®ÆèPÀÄ, PÉÆvÀÛwÛ ºÉÆç½, PÁåvÀAUÉgÉ UÁæªÀÄzÀ ¸À.£ÀA.27 gÀ 01-35-00 UÀÄAmÉ ªÀÄvÀÄÛ ¸À.£ÀA.166 gÀ°è 01-29-00 JPÀgÉ MlÄÖ 03-24-00 JPÀgÉ ¥ÀæzÉñÀzÀ°è PÀ£ÁðlPÀ gÁdå ªÀiÁAqÀªÀå UÀȺÀ ¤ªÀiÁðt ¸ÀºÀPÁgÀ ¸ÀAWÀ ¤AiÀÄ«ÄvÀ ªÀÄAqÀågÀªÀgÀÄ ¸ÀAWÀzÀ ¸ÀzÀ¸ÀågÀÄUÀ½UÉ ªÁ¸ÀzÀ ªÀÄ£É ¤«Äð¸ÀĪÀ GzÉÝñÀPÁÌV ¨sÀÆ ¥ÀjªÀvÀð£É PÉÆÃjgÀĪÀ «ZÁgÀzÀ°è G¯ÉèÃTvÀ ªÀgÀ¢AiÀÄ°è ¸ÀzÀj d«ÄãÀÄUÀ¼ÀÄ ¥Áæ¢üPÁgÀªÀÅ GzÉÝò¹gÀĪÀ ªÀ¸Àw AiÉÆÃd£ÉAiÀÄ ªÁå¦ÛAiÀÄ°è §gÀĪÀÅzÀjAzÀ ¥Àæ²ßvÀ d«ÄãÀÄUÀ¼À£ÀÄß ªÀ¸Àw GzÉÝñÀzÀ ¨sÀÆ ¥ÀjªÀvÀð£ÉUÉ ¥ÀjUÀt¸ÀĪÀÅzÀÄ ¸ÀÆPÀÛªÀ®è JAzÀÄ ªÀgÀ¢ ¸À°è¹gÀÄvÁÛgÉ. DzÀÄzÀjAzÀ ªÉÄîÌAqÀ »£É߯ÉAiÀÄ°è ¤ªÀÄä CfðAiÀÄ£ÀÄß «¯Éà EqÀ¯ÁVzÉAiÉÄAzÀÄ w½AiÀÄ¥Àr¹zÉ. (PÀ.l.f.C.ªÉÄÃ) ¸À»/- C¥ÀgÀ f¯Áè¢üPÁj ªÀÄAqÀå f¯Éè, ªÀÄAqÀå."
The aforesaid endorsement issued by the Deputy Commissioner is called in question before this Court in Writ Petition No.15976 of 2017 by the petitioner without arraigning MUDA as a party respondent. This Court disposed of the writ petition by an order dated 7.09.2017 directing consideration of the application of the petitioner for conversion of lands. This Court disposed of the writ petition observing thus: “4. I have heard the learned counsel for petitioner and the learned Additional Government Advocate. Impugned endorsement is issued based on the report/letter of the Commissioner, Mandya Urban Development Authority, Mandya, that it intended to utilize 23 the lands in question for the purpose of forming a residential lay-out. There is no material to show that the lands belonging to petitioner have been acquired for the said purpose. Merely because the Commissioner, Mandya Urban Development Authority, has certain scheme in his mind to make use of the lands in question for residential purpose, legitimate request made by petitioner seeking conversion of lands cannot be deferred or rejected. It is the duty of the Deputy Commissioner to consider the applications filed by petitioner on merits in accordance with law.
5. Therefore, impugned endorsement issued deserves to be set aside. Accordingly, the same is set aside. A direction is issued to the Deputy Commissioner to consider applications – Annexures G and G1 filed by petitioner seeking conversion of lands in question within two months from the date of receipt of a copy of this order. The Deputy Commissioner is directed to also take note of all relevant documents including the Government Notification dated 27-04-2012 produced by petitioner at Annexure-C”. (Emphasis supplied) In terms of the directions, the Deputy Commissioner issues an Official Memorandum granting conversion of lands from agriculture to non-agricultural purposes. On the strength of grant of conversion in terms of Section 95 of the Land Revenue Act, the petitioner then submits an application for approval of layout plan to form a layout to MUDA, after obtaining all necessary approvals from the Gram Panchayat. MUDA by communication dated 13-09-2019 declines to grant such 24 approval reiterating its stand as was communicated to the Deputy Commissioner on 6.10.2016. The impugned communication to the petitioner by MUDA reads as follows:
"«µÀAiÀÄ: ªÀÄAqÀå vÁ®ÆèPÀÄ, PÉÆvÀÛwÛ ºÉÆç½, PÁåvÀAUÉgÉ UÁæªÀÄzÀ ¸À.£ÀA.27gÀ°è 01J-35- 00 UÀÄAmÉ ªÀÄvÀÄÛ ¸À.£ÀA.34/1 gÀ°è 01J-38-08 UÀÄAmÉ ªÀÄvÀÄÛ ¸À.£ÀA.116 gÀ°è 01J- 29- 00 UÀÄAmÉ MlÄÖ 05J-22-08 UÀÄAmÉ ¥ÀæzÉñÀPÉÌ ªÀ¸Àw GzÉÝñÀzÀ «£Áå¸À £ÀPÉë C£ÀĪÉÆÃzÀ£É PÉÆÃjgÀĪÀ §UÉÎ. G¯ÉèÃR:
1. ¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀA:£ÀJ/157/ªÉÄÊC¥Áæ/2007 ¢£ÁAPÀ:02.06.2007.
2. ¥Áæ¢üPÁgÀzÀ ¥ÀvÀæ ¸ÀA:ªÀÄA£À¥Áæ/zsÀÆ¥À/ªÀAiÉÆÃ/48/2016- 17 ¢£ÁAPÀ:22.12.2017..
3. ªÀiÁ£Àå f¯Áè¢üPÁjUÀ¼ÀÄ, ªÀÄAqÀå gÀªÀgÀ C¢üPÀÈvÀ YÁÕ¥À£À ¥ÀvÀæ ¸ÀA:: J.J¯ï.J£ï(1)66/2012- 13, ¢£ÁAPÀ:03-02-2018.
4. ¥ÀAZÁ¬Äw C©üªÀÈ¢Þ C¢üPÁj, ¨Éë£ÀºÀ½î UÁæªÀÄ ¥ÀAZÁ¬Äw PÁAiÀiÁð®AiÀÄ, ¨Éë£ÀºÀ½î EªÀgÀ ¥ÀvÀæ ¸ÀASÉå:¨ÉÃUÁæ¥ÀA/2018- 19 ¢£ÁAPÀ:18.05.2018.(¹éÃPÀÈw ¢£ÁAPÀ:18.05.2018).
5. ¥Áæ¢üPÁgÀzÀ ¥ÀvÀæ ¸ÀA:£À¥ÁæªÀÄA/«.£À.C/PÁåvÀAUÉgÉ/01/2018- 19 ¢£ÁAPÀ:24.07.2018.
6. vÀªÀÄä ªÀÄ£À« ¢£ÁAPÀ:06.08.2019.
7. PÀ£ÁðlPÀ £ÀUÀgÀ ªÀÄvÀÄÛ UÁæªÀiÁAvÀgÀ AiÉÆÃd£Á PÁAiÉÄÝ - 1961 gÀ PÀ®A (17) ªÀÄvÀÄÛ PÀ£ÁðlPÀ £ÀUÀgÁ©üªÀÈ¢Þ ¥Áæ¢üPÁgÀUÀ¼À PÁAiÉÄÝ - 1987 gÀ PÀ®A (32) ***** «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ G¯ÉèÃR (6)gÀ vÀªÀÄä ¥ÀvÀæzÀ°,è ªÀÄAqÀå vÁ®ÆèPÀÄ, PÉÆvÀÛwÛ ºÉÆç½, PÁåvÀAUÉgÉ UÁæªÀÄzÀ ¸À.£ÀA.27gÀ°è 01J-35-00 UÀÄAmÉ ªÀÄvÀÄÛ ¸À.£ÀA.34/1 gÀ°è 01J-38-08 UÀÄAmÉ ªÀÄvÀÄÛ ¸À.£ÀA.116 gÀ°è 01J- 29- 00 UÀÄAmÉ MlÄÖ 05J-22-08 UÀÄAmÉ «¹ÛÃtðzÀ ¥ÀæzÉñÀPÉÌ ªÀ¸Àw GzÉÝñÀzÀ «£Áå¸À £ÀPÉë C£ÀĪÉÆÃzÀ£É ¤ÃqÀĪÀAvÉ PÉÆÃgÀ¯ÁVzÀÄÝ, ¥Àj²Ã°¸À¯ÁV G¯ÉèÃR (2) gÀ ¥Áæ¢üPÁgÀzÀ ¥ÀvÀæzÀ°è ªÀiÁ£Àå f¯Áè¢üPÁjUÀ½UÉ ¨sÀÆ ¥ÀjªÀvÀð£É ¸ÀA§AzsÀ PÉ®ªÀÅ vÁAwæPÀ «µÀAiÀÄUÀ¼ÉÆA¢UÉ F ¸ÀAzÀ¨sÀðzÀ°è ¨sÀÆ ¥ÀjªÀvÀð£ÉUÉ ¸ÀÆPÀÛªÀ®èªÉA§ C©ü¥ÁæAiÀĪÀ£ÀÄß ªÀåPÀÛ¥Àr¸À¯ÁVgÀÄvÀÛzÉ. DzÁUÀÆå G¯ÉèÃR (3) gÀ°è ¥Àæ¸ÁÛ«vÀ d«ÄäUÉ ªÀ¸Àw GzÉÝñÀPÁÌV ¨sÀÆ ¥ÀjªÀvÀð£ÉUÉƽ¸À¯ÁVgÀĪÀAxÉ G¯ÉèÃR25(1) gÀ ¸ÀPÁðgÀ¢AzÀ C£ÀĪÉÆâvÀ ªÀĺÁAiÉÆÃd£ÉAiÀÄAvÉ ¥Àæ¸ÁÛ«vÀ d«ÄãÀÄUÀ¼À ¨sÀÆ G¥ÀAiÉÆÃUÀ «ªÀgÀ F PɼÀPÀAqÀAvÉ UÀÄgÀÄvÀÄUÉƼÀÄîªÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ. ¸À.£ÀA. ªÀ¸Àw ªÀ®AiÀÄ ªÀåªÀ¸ÁAiÀÄ ¸ÁjUÉ ªÀÄvÀÄÛ MlÄÖ ªÀ®AiÀÄ ¸ÀA¥ÀPÀð (Bye J-UÀÄA-Dt J-UÀÄA-Dt J-UÀÄA-Dt Pass Road) ªÀ®AiÀÄ J-UÀÄA-Dt 27 01- 11- 04 00- 11- 12 00- 12- 00 01-35- 00 34 - 01- 38- 08 - 01-38- 08 116 01- 00- 00 00- 20- 00 00- 09- 00 01-29- 00 MlÄÖ 02- 11- 04 02- 30- 04 00- 21- 00 05-22- 08 ¥Àæ¸ÁÛ«vÀ d«ÄãÀÄUÀ¼À ¥ÉÊQ02- 30- 04 UÀÄAmÉ «¹ÛÃtðzÀ d«ÄãÀÄ ªÀåªÀ¸ÁAiÀÄ ªÀ®AiÀÄzÀ°è UÀÄgÀÄvÀÄUÉƼÀÄîwÛzÀÄÝ, ¸ÀzÀj ªÀåªÀ¸ÁAiÀÄ ªÀ®AiÀÄzÀ d«ÄäUÉ PÀ£ÁðlPÀ £ÀUÀgÀ ªÀÄvÀÄÛ UÁæªÀiÁAvÀgÀ AiÉÆÃd£Á PÁAiÉÄÝ PÀ®A(14) gÀ£ÀéAiÀÄ ¨sÀÆ G¥ÀAiÉÆÃUÀ §zÀ¯ÁªÀuÉUÉ PÀæªÀĪÀ»¹, ¸ÀPÁðgÀ¢AzÀ C£ÀĪÉÆÃzÀ£É ¥ÀqÉzÀÄ ªÀÄÄA¢£À PÀæªÀĪÀ»¸À¨ÉÃPÁVgÀÄvÀÛzÉ. F »£À߯ÉAiÀÄ°è ¸ÀzÀj ¥Àæ¸ÁÛ«vÀ ªÀåªÀ¸ÁAiÀÄ ªÀ®AiÀÄzÀ°è UÀÄgÀÄw¸À¯ÁzÀ d«Ää£À «¹ÛÃtð 02J- 30- 04 UÀÄAmÉUÉ PÀ£ÁðlPÀ £ÀgÀ ªÀÄvÀÄÛ UÁæªÀiÁAvÀgÀ AiÉÆÃd£Á PÁAiÉÄÝ PÀ®A (14)(J) gÀAvÉ ¸ÀPÁðgÀzÀ ªÀÄlÖzÀ°è, PÀæªÀĪÀ»¸À¯ÁVgÀĪÀ §UÉÎ ªÀiÁ»w / zÁR¯ÁwUÀ¼ÀÄ PÀAqÀÄ §A¢gÀzÉà EgÀĪÀÅzÀjAzÀ PÀ£ÁðlPÀ £ÀUÀgÀ ªÀÄvÀÄÛ UÁæªÀiÁAvÀgÀ AiÉÆÃd£Á PÁAiÉÄÝ PÀ®A (14)(J) PÀæªÀÄ ¨ÁQ JAzÀÄ C©ü¥Áæ¬Ä¹ MlÄÖ «¹ÛÃtðPÉÌ «£Áå¸À £ÀPÉë C£ÀĪÉÆÃzÀ£É ¤ÃqÀ®Ä ªÀ®AiÀÄ ¤AiÀĪÀiÁªÀ½UÀ½UÉ ªÀåwjPÀÛªÁVgÀĪÀÅzÀjAzÀ EAxÀºÀ ¸ÀAzÀ¨sÀðzÀ°è «£Áå¸À £ÀPÉëUÉ C£ÀĪÉÆÃzÀ£É ¤ÃqÀĪÀÅzÀÄ ¸ÀÆPÀÛªÀ®èªÉAzÀÄ C©ü¥Áæ¬Ä¹zÉ. vÀªÀÄä «±Áé¹, ¸À»/- DAiÀÄÄPÀÛgÀÄ £ÀUÀgÁ©üªÀÈ¢Þ ¥Áæ¢üPÁgÀ, ªÀÄAqÀå."
26 The stand of MUDA in the communication is that the lands are still under the Master Plan and comes within the Planning Area as notified by MUDA. Unless change of land use is granted under Section 14A of the KTCP Act, the approval for layout cannot be granted. It is here the KTCP Act comes into operation.
14. Certain provisions of the KTCP Act are germane to be noticed and are extracted hereunder for the purpose of quick reference. Section 10 deals with declaration of making a Master Plan and reads as follows: “10. Declaration of intention of making outline development plan.— (1) A Planning Authority, before carrying out a survey of the area under its jurisdiction under sub-section (1) of section 9, for the purpose of preparing a Master Plan for such area, shall make a declaration of its intention to prepare such plan and shall despatch a copy of such resolution with a copy of plan showing only boundary of the entire area proposed to be included in the master plan to the State Government. The planning authority shall publish a notice of such declaration in the Official Gazette and also in one or more local newspaper in the prescribed manner calling suggestions from the public within a period of sixty days: Provided that no such declaration of intention need be made when the master plan is prepared and published by the Director under sub-section (2) of section 9 (2) If within two months from the date of publication of the declaration under sub-section (1) any member of the 27 public communicates in writing to the Planning Authority any suggestion relating to such plan, the Planning Authority shall consider such suggestion and may, at any time, before sending the Plan to the State Government make such modification in the plan as it thinks fit. (3) A copy of the plan showing the boundaries of the area included in the master plan shall be opened to public at all reasonable hours at the office of the Planning Authority or Local Authority."
The Planning Authority is empowered under Section 10 of the KTCP Act to declare a particular area of its intention to prepare such plan by publication of such declaration in the Official Gazette. It is not in dispute that the Planning Authority/MUDA has notified the master plan for the Mandya City in terms of Section 10 of the KTCP Act. Section 13 deals with approval of the master plan submitted by the Planning Authority at the hands of the State Government and reads as follows:
"13. Approval of the Master Plan.- (1) On receipt of the Master Plan with the reports referred to in section 12 from the Planning Authority under sub-section (1) of section 9, or after such plan and reports are prepared and published under sub-section (2) of section 9, the State Government after making such modifications as it deems fit or as may be advised by the Director, shall return through the Director, the plan and the reports to 28 the Planning Authority, which shall thereupon publish, by notification, the plan and the reports inviting public comments within sixty days of such publication. (2) If within sixty days of the publication under sub-section (1), any member of the public communicates in writing to the Planning Authority any comments on the plan and the reports, the Planning authority shall consider such comments and resubmit the plan and the reports to the State Government, through the Director with recommendations for such modifications in the plan and reports as it considers necessary in the light of the public comments made on the plan and reports. (3) The State Government, after receiving the plan and the reports and the recommendations for modifications from the Planning Authority, shall, in consultation with the Director, give its final approval to the plan and the reports with such modifications as the Director may advice in the light of the comments and the recommendations of the Planning authority or otherwise. (4) The Planning Authority shall then publish in the prescribed manner the Master Plan and the reports as finally approved by the State Government. The plan and the reports shall be permanently displayed in the offices of the Director and the Planning Authority and a copy shall be kept available for inspection of the public at the office of the Planning Authority. Section 14 deals with enforcement of master plan and regulations and reads as follows:
"14. Enforcement of the Master Plan and the Regulations.—(1) On and from the date on which a declaration of intention to prepare a Master Plan is published under sub-section (1) of section 10, every land use, every change in land use and every development in 29 the area covered by the plan subject to section 14-A shall conform to the provisions of this Act, the Master Plan and the Report, as finally approved by the State Government under sub-section (3) of section 13. (2) no such change in land use or development as is referred to in sub-section (1) shall be made except with the written permission of the Planning Authority which shall be contained in a commencement certificate granted by the Planning Authority in the form prescribed. Provided that where the use or change of land use under this section needs the diversion of agricultural land to non-agricultural purposes, such use or change of use shall not be permitted unless permission is obtained in accordance with the provisions of the Karnataka Land Revenue Act, 1964 for such diversion. Explanation.— For the purpose of this section,— (a)the expression “development” means the carrying out of building or other operation in or over or under any land or the making of any material change in the use of any building or other land; (b)the following operations or uses of land shall not be deemed to involve a development of any building or land, namely:— (i) the carrying out of works for maintenance, improvement or other alteration of any building, being works which affect only the interior of the building or which do not materially affect the external appearance of the building; (ii) and (iii) omitted (iv) the use of any building or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such; 30 (v) when the normal use of land which was being temporarily used for any other purpose on the day on which the declaration of intention to prepare the outline development plan is published under sub-section (1) of section 10 is resumed; (vi) when land was normally used for one purpose and also on occasions for any other purpose, the use of the land for that other purpose on similar occasions. (3) Every application for permission under sub- section (2) shall be accompanied by a plan, drawn to scale showing the actual dimensions of the plot of land in respect of which permission is asked, the size of the building to be erected and the position of the building upon the plot and such other information as may be required in this behalf by the Planning Authority."
Section 14 mandates that from the date on which the declaration of master plan is published in terms of Section 10 every change of land use and every development in the area covered by the plan subject to Section 14A shall be in conformity with the Master Plan as finally approved by the State Government. Proviso to Section 14 provides that where use or change of land use under the section needs diversion of agricultural land to non-agricultural purposes such use or change of use shall not be permitted unless permission is obtained in accordance with the Land Revenue Act. 31 Section 14A deals with change of land use of those lands coming under the Master Plan and reads as follows:
"14A. Change of land use from the outline development plan.—(1) At any time after the date on which the outline development plan for an area comes into operation, the Planning Authority may, with the previous approval of the State Government, allow such changes in the land use or development from the outline development plan as may be necessitated by topographical cartographical or other errors and omissions, or due to failure to fully indicate the details in the plan or changes arising out of the implementation of the proposals in outline development plan or the circumstances prevailing at any particular time, by the enforcement of the plan: Provided that,— (a) all changes are in public interest; (b) the changes proposed do not contravene any of the provisions of this Act or any other law governing planning, development or use of land within the local planning area; and (c) the proposal for all such changes are published in one or more daily newspapers, having circulation in the area, inviting objections from the public within a period of not less than fifteen days from the date of publication as may be specified by the Planning Authority. (2) The provisions of sub-section (2) and (3) of section 14 shall apply mutatis mutandis to the change in land use or development from the outline development plan. 32 (3) Notwithstanding anything contrary contained in the Act, if the change in land use or development is from commercial or industrial to residential or from industrial to commercial and the stipulated fee is paid and the Local Planning Authority is informed prior to effecting the change, the permission for such change of land use or development shall be deemed to have been given. Section 14A mandates that after the Master Plan for an area comes into operation, the planning authority may allow such changes in the land use or development from the Master Plan as may be necessitated. Therefore, it is the power of planning authority and the Government to grant change of land use of the land coming within the ambit of the Master Plan under Section 14A. Section 17 deals with sanction of plan for a layout and reads as follows:
17. Sanction for sub-division of plot or lay-out of private street.—(1) Every person who intends to sub- divide his plot or make or lay-out a private street on or after the date of the publication of the declaration of intention to prepare the outline development plan under sub-section (1) of section 10, shall submit the lay-out plan together with the prescribed particulars to the Planning Authority for sanction. (2) 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. 33 (3) No compensation shall be payable for the refusal or the insertion, imposition or modification or conditions in the grant of sanction. (4) If any person does any work in contravention of sub-section (1) or in contravention of the modifications and conditions of the sanction granted under sub-section (2) or despite refusal for the sanction under the said subsection (2), the Planning Authority may direct such person by notice in writing to stop any work in progress and after making an inquiry in the prescribed manner, remove or pull down any work or restore the land to its original condition. (5) Any expenses incurred by the Planning Authority under sub-section (4) shall be a sum due to the Planning Authority under this Act from the person in default. (6) Any person aggrieved by the decision of the Planning Authority under sub-section (2) or sub-section (4) may, within thirty days from the date of such decision appeal to such authority as may be prescribed. (7) The prescribed authority may after giving a reasonable opportunity of being heard to the appellant and the Planning Authority, pass such order as it deems fit, as far as may be, within four months from the date of receipt of the appeal.” Section 17 inter alia deals with sanction for a sub-division or a layout. It is here the application of the petitioner was required to be considered, as it was for the formation of a layout. Section 17 mandates that the Planning Authority may within the prescribed 34 period sanction a plan either without modification or subject to such modification and conditions as it considers necessary or may refuse sanction if the Planning Authority is of the opinion that such planning is not in any way consistent with the proposals of the Master Plan. Therefore, on a conjoint reading of all the provisions extracted above of the KTCP Act and the Land Reforms Act, the following unmistakable inferences emerge. A Housing Society applies seeking permission for purchase of lands under Section 109 of the Land Reforms Act; Section 109 mandates grant of permission subject to the provisions of the Act for purchase of lands; Conversion under Section 95(2) again observes that the lands should be free from the area of the Master Plan and the provisions of the KTCP Act; The KTCP Act regulates the manner in which the Master Plan is notified, change of land use is sought and granted and layout plans are approved. If on the touchstone of the aforesaid provisions, the facts obtaining in the case are noticed, it becomes unmistakably clear that no fault can be laid at the hands of MUDA for issuing the impugned communication directing the petitioner to seek 35 change of land use in terms of Section 14A of the KTCP Act. It is for the reason that the lands which the petitioner is seeking to form a layout are, without doubt, coming under the Master Plan; as submitted portions of it are still lands which are agriculture in nature and are part of the Master Plan. An application under Section 14A is to be made in the manner prevalent seeking change of land use of such land which comes within the Master Plan. It is later the Planning Authority will consider the application and submit its proposal for change of land use to the Government and the Government would issue a notification under Section 14A of the KTCP Act. It is then the procedure of change of land use would be complete.
15. Once the change of land use is granted, the provisions under Section 17, with particular reference to Section 17(2) would come into play. Section 17(2) empowers the Planning Authority to sanction or refuse sanction for formation of a layout, if the layout plan is not in any way consistent with the proposals in the Master Plan. As on date the proposal in the 36 Master Plan, as notified by MUDA, is still in existence and few of the lands are still with the petitioner which are still agriculture in nature for which change of land use is to be granted. Grant of conversion from agriculture to non-agricultural purposes by the Deputy Commissioner will not mean that change of land use under Section 14A is granted, deemed to be granted or automatically granted, if the land still vests with the Planning Authority and comes within the Master Plan.
16. The provisions of law as noticed hereinabove though deal with a single subject matter, operate in different fields. A land may be a single subject matter in any case, but the permissions that are to be granted are under different enactments. A permission that is granted by the Deputy Commissioner under Section 95(2) or deemed permission under Section 95(5) cannot mean that no change of land use need be granted by the Government under Section 14A of the KTCP Act. This is only if the land for which the Deputy Commissioner orders conversion comes within the Master Plan. Therefore, the 37 very fact that the land still coming under the Master Plan, Section 14A application ought to have been made by the petitioner. It is now brought to the notice of this Court that the petitioner has in fact knocked the doors of authority under Section 14A by making an application for such change of land use for the purpose for which it is sought for. Above all the aforesaid consideration, what is to be noticed is the effect of the provisions of the KTCP Act prevailing over any other law in terms of Section 76M of the KTCP Act. Section 76M of the KTCP Act reads as follows: “76-M. Effect of other Laws.—(1) Save as provided in this Act, the provisions of this Act and the rules, regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law. (2) Notwithstanding anything contained in any such other law,— (a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained; 38 (b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained. (Emphasis supplied) Section 76M directs that the provisions of the KTCP Act and the Rules and Regulations made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law and notwithstanding anything contained in any other law. Section 76(2) (a) & (b) mandates importance of the KTCP Act and the permission being taken from the hands of the Planning Authority. This provision of law is considered and upheld by the Apex Court in its latest judgment in the case of BANGALORE INTERNATIONAL AIRPORT AREA PLANNING AUTHORITY v. BIRLAS UPER BULK TERMINAL1 wherein the Apex Court considering Section 76M albeit for a different reason holds that the KTCP Act and the provisions of the KTCP Act will 1 (2019) 12 SCC57239 prevail in view of non-obstante clause with which it commences. The Apex Court has held as follows:
"21. The non obstante clause in Section 76-M of the KTCP Act reads as under: “76-M. Effect of other laws.—(1) Save as provided in this Act, the provisions of this Act and the Rules, Regulations and Bye-laws made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law. (2) Notwithstanding anything contained in any such other law— (a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained; (b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained.
30. Section 14 read with Section 18 of the KTCP Act clearly connotes that the Planning Authority is entrusted with the function of granting licence to put up construction on the land including the land acquired and allotted by the Board under the KIAD Act. This is also clear from the provisions contained in the non obstante clause in Section 76-M of the KTCP Act which declares that the provisions of the said Act and the Rules, Regulations and Bye-laws made thereunder shall have effect notwithstanding anything inconsistent contained in any other law. There is nothing in the provisions of this 40 Act to exclude or exempt the lands which are covered by the KIAD Act."
Therefore, the submissions that are made to the contrary that once the land is converted by the Deputy Commissioner one need not seek for a change of land use under Section 14A of the KTCP Act is unacceptable, as all the provisions considered hereinabove of the KTCP Act are intertwined with a singular object of concurrence of the Planning Authority, importance of the Zoning Regulations and the Master Plan that is drawn.
17. In the case at hand, the very application filed by the petitioner, for purchase of lands, to the Government under Section 109 of the Land Reforms Act, mandates that it is subject to such Rules as may be prescribed and the provisions of the KTCP Act. Therefore, the very provision of law under which the petitioner gets permission to purchase agricultural land is hedged with a condition that it is subject to provisions of the KTCP Act. Once it is held to be ‘subject to’ it would mean that is subservient to. Reference to what the Apex Court holds 41 interpreting the words ‘subject to’ in a provision of law in the case of S.N. CHANDRASHEKAR AND ANOTHER v. STATE OF KARNATAKA AND OTHRS2, in the circumstances is apposite, the Apex Court holds as follows:
"29. The words “subject to” used in Section 14 are of some significance. The said words must be given full effect to. The meaning of the said words had been noticed in Ashok Leyland Ltd. v. State of T.N. [(2004) 3 SCC1 in the following terms: (SCC p. 38, paras 92-93) “92. Furthermore, the expression ‘subject to’ must be given effect to.
93. In Black's Law Dictionary, 5th Edn., at p. 1278, the expression ‘subject to’ has been defined as under: ‘Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for. Homan v. Employers Reinsurance Corpn.[345 Mo 650, 136 SW2 289, 302].' ” (Emphasis supplied) Therefore, in the light of the aforesaid interpretation of the words ‘subject to’ the very grant of permission for purchase of agricultural lands was subject to the provisions of the KTCP Act.
18. The property of the petitioner, no doubt, belongs to it and it has a right to develop the said property. Such 2 (2006) 3 SCC20842 development activity, if comes within the ambit of the Planning Authority i.e., if the land that the petitioner wants to develop comes within the Master Plan or the Zoning Regulations, such acts of private parties can be regulated under a legislation. The KTCP Act is one such legislation and this power of regulating the property through the KTCP Act has been recognized by the Apex Court in the case of T.VIJAYALAKSHMI v. TOWN PLANNING MEMBER AND ANOTHER3, wherein it is held as follows:
"13. Town Planning legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, are ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. 3 (2006) 8 SCC50243 We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled with so long as an appropriate amendment in the legislation is not brought into force. … … … … 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."
Therefore, in the light of the afore-narrated consideration of the provisions of the KTCP Act and the KTCP Act having overriding effect on all other laws, what would unmistakably emerge is that the petitioner will have to seek change of land use under Section 14A of the KTCP Act. As observed hereinabove, the petitioner has already filed its application before the Planning Authority under Section 14A of the KTCP Act. Therefore, the Planning Authority shall now consider the same expeditiously and generate further proceedings as indicated hereinabove. 44
19. The other submission that is made by the learned counsel appearing for the petitioner is MUDA practices discrimination as, if under Section 15 an application is made for construction of an apartment, immediately sanction is accorded and it is only for layouts MUDA acts in the manner as afore narrated. This submission again is unacceptable, as there can be no obfuscation about the clear compartmentalization of all specific provisions of the aforesaid enactments. Section 15 of the KTCP Act reads as follows:
"15. Permission for development of building or land.— (1) On receipt of the application for permission under section 14, the Planning Authority shall furnish to the applicant a written acknowledgment of its receipt and after such inquiry as may be necessary either grant or refuse a commencement certificate: Provided that such certificate may be granted subject to such general or special conditions as the State Government may, by order made in this behalf, direct. (2) If the Planning Authority does not communicate its decision to the applicant within three months from the date of such acknowledgment, such certificate shall be deemed to have been granted to the applicant. Provided that the land use, change in land use or the development for which permission was sought for is in conformity with the outline development plan and the 45 regulation finally approved under sub-section (3) of section 13. (3) Subject to the provisions of section 16, no compensation shall be payable for the refusal of or the insertion or imposition of conditions in the commencement certificate. (4) If any person does any work on, or makes any use of, any property in contravention of section 14 or of sub-section (1) of this section, the Planning Authority may direct such person by notice in writing, to stop any such work in progress or discontinue any such use; and may, after making an inquiry in the prescribed manner, remove or pull down any such work and restore the land to its original condition or, as the case may be, take any measure to stop such use. (5) Any expenses incurred by the Planning Authority under sub-section (4) shall be a sum due to such Authority under this Act from the person in default or from the owner of the land. Explanation.—The power to grant necessary permission under this section for a change of user of land shall include the power to grant permission for the retention on land of any building or work constructed or carried out thereon before the date of the publication of the declaration of intention to prepare an outline development plan under sub-section (1) of section 10 or for the continuance of any use of land instituted before the said date. (6) Any person aggrieved by the decision of the Planning Authority under sub-section (1) or sub-section (4) may, within thirty days from the date of such decision, appeal to such authority as may be prescribed. (7) The prescribed authority may, after giving a reasonable opportunity of being heard to the appellant and 46 the Planning Authority, pass such orders as it deems fit, as far as may be, within four months from the date of receipt of the appeal."
(Emphasis supplied) In terms of Section 15 what is mandated by MUDA is permission of development of building or land and it is on receipt of permission under Section 14 which would pre-suppose that there is a change of land use already in place as only when the land is converted to residential purposes by grant of change of land use, Section 15 can come into play by granting commencement certificate for development of the land. Therefore, the submission of the learned counsel that MUDA is practicing invidious discrimination is unfounded. But, if MUDA or any Planning Authority is practicing otherwise as is alleged, it needs to set its house in order to bring its actions within the conditions stipulated under the KTCP Act.
20. It is apposite to refer to the judgment of the Co- ordinate Bench in the case of BABA DEVELOPERS PVT.LTD. (supra) rendered in identical circumstances wherein this Court holds as follows:- 47 “9. It is no doubt true that conversion orders are passed in favour of the petitioners permitting the petitioners to convert the land for non-agricultural purpose i.e., for residential purposes as per Annexures-E1 to E6 after publishing of the declaration under Section 10(1) of the Planning Act. Merely because the conversion orders are issued by the Revenue Authority under Section 95 of the Karnataka Land Revenue Act, the petitioners cannot claim that the Planning Authority i.e., BIAAPA should permit them to form the layout pursuant to the conversion orders. The Planning Authority has to strictly proceed as per he provisions of the Planning Act and the Master Plan. The Planning Act provides for regulation of planned growth of land use and development for making and execution of the town planning schemes of the State Government. Having felt it necessary and expedient to create conditions which are favourable for planning and replanning of the urban and rural areas in the State, with a view to provide full civic and social amenities for the people in the State, 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, and thereby promoting general standards of living in the State, has brought at the planning Enactment. Separate Planning Authority is created for Bangalore International Airport Area in order to regulate the development in the said area keeping in mind the health, security and safety of the air traffic. The Planning Authority in its wisdom has earmarked or designated certain of the areas for agricultural purposes and certain of the areas for residential purposes etc. This Court while dealing with the writ petition cannot act as an Appellate Authority to reconsider the decision of the Planning Authority to come to a different conclusion. The experts in the field have prepared the Master Plan keeping 48 in mind the object with which the Enactment is made. Hence, no motives can be attached to the respondents. … … … … 11. Moreover, sub-section (1) of Section 14 of the Planning Act makes it amply clear that, on and from the date on which the declaration of intention to prepare the Master Plan is published under sub-section (1) of Section 10 of the Planning Act, every land use, every change in the land use and every development in the area covered by the plan shall conform to the provisions of the Planning Act, Master and the report as finally approved by the State Government. Thus, it is amply clear that the every development and every change in land use made in between the period between the provisional Master Plan and the final Master Plan, shall confirm not only to the provisions of the Planning Act, but also to the final Master Plan. Meaning thereby, if the change in land use made in favour of the petitioners is contrary to the final Master Plan, such conversion orders cannot be made use of by the petitioners, inasmuch as, the Planning Authority will not allow any development contrary to the Maste4r Plan finally approved.” It is this judgment that is relied on by the learned counsel appearing for the respondent/MUDA which would be applicable to the case at hand.
21. Insofar as the judgments relied on by the learned counsel appearing for the petitioner, the judgments were interpreting proviso of certain Service Rules of the State of Punjab and importance of consideration of the proviso. There 49 can be no qualm about the principles enunciated therein, but those are inapplicable to the facts of the case at hand. Therefore, the judgments relied on by the learned counsel appearing for the petitioner in the cases of GAMDOOR SINGH and PAIARA LAL, in my considered view, would not lend any support to the petitioner, in the facts obtaining in the case at hand.
22. Therefore, on a coalesce of the preceding analysis, in my considered view, no fault can be laid at the hands of MUDA for having issued the impugned communication. However, the MUDA is directed to consider the application submitted by the petitioner under Section 14A of the KTCP Act and communicate its proposal/decision to the Government. The Government on receipt of the communication from MUDA in terms of the application submitted by the petitioner under Section 14A of the KTCP Act issue such orders/notification in terms of Section 14A of the KTCP Act and MUDA thereafter, shall pass appropriate orders in terms of Section 17 of the KTCP Act. The Government 50 shall on receipt of the communication consider the same and issue orders/notification within two months from the date of receipt of the communication from MUDA, in turn, MUDA shall pass appropriate orders under Section 17 of the KTCP Act, within six weeks after receipt of the orders from the hands of the Government. With the aforesaid observations, while declining to interfere with the impugned communication dated 13.09.2019 issued by the 2nd respondent- MUDA, the Writ Petition stands disposed. Sd/- JUDGE bkp CT:MJ