Judgment:
(Prayer: This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the endorsement dated 13.10.2011 addressed to the petitioner herein issued by R2, vide Annexure – B, etc.)
1. M/s. Walden properties private limited is the owner of the lands bearing Sy. Nos. 15/ to 30/3 of Ramagondanahalli Village and Sy. Nos. 348 and 385 of Ammani Bellandur Khane Village, Varthur Hobli, Bangalore East Taluk, totally measuring 49 acres 8 guntas. The petitioner is a registered Joint Agreement Holder and the Power of Attorney for developing the aforementioned lands. The joint development agreement entered into between the petitioner and M/s. Walden Properties Limited is found at Annexure A to the Writ petition. The lands are converted for residential use pursuant to the order of the Deputy Commissioner, inasmuch as the lands were designated for residential use in the Comprehensive Development Plan (Master Plan) of Bangalore City. Thereafter the petitioner applied for sanction of development plan by filing an application dated 14.1.2011. The second respondent-BDA has considered the request and issued an endorsement at Annexure-B, dated 13.10.2011 intimating the petitioner that the lands in question are proposed to be acquired for formation of D.Devaraj Urs Layout, which has been approved by the first respondent – State of Karnataka and that therefore the application of the petitioner for sanctioning the Layout Development plan cannot be granted at this stage. The said endorsement is called in question in this writ petition.
2. It is not in dispute that the State Government has approved the proposal of the project of the second respondent to form D. Devaraj Urs Layout by utilizing the petition properties along with the other properties as far back as on 28.2.2009. It is also not in dispute that till this day, no notification is issued by the respondents proposing to acquire the lands for formation of D.Devaraj Urs Layout either under the provisions of the Land Acquisition Act or Bangalore Development Act. Based on these undisputed facts, the petitioner has approached this court praying for quashing the endorsement at Annexure – B with a contention that the reasoning assigned by respondent No.2 in the endorsement at Annexure –B, is wholly unjustified, illegal and without authority of law. According to the petitioner, its valuable rights are adversely affected by the arbitrary decision of the second respondent. The petitioner has also sought for a direction to the respondents to sanction the Development plan in respect of the lands owned by it, measuring 49 acres 8 guntas.
3. Sri Srinivas Rao, learned Advocate appearing on behalf of the petitioner argues in support of the averments made in the writ petition by contending that neither acquisition notifications are issued nor scheme is framed or finalized.
4. sri.B.V. Shankaranarayan Rao, learned counsel appearing on behalf of the BDA opposed the writ petition by contending that the housing project to be formed by the petitioner after obtaining sanctioned plan may not fit in the proposed D.Devaraj Urs Layout to be formed by the second respondent, since the formation of D.Devaraj Urs Layout is in the public interest, the petitioner cannot compel the respondents to get his plan sanctioned; that the petitioner has to wait for some more period for the authorities of the State to make arrangements for formation of D.Devaraj Urs Layout. He draws the attention of the court to the provisions of section 32 (6) (iii-a) and section 32 (6) (iv) of the Bangalore Development Authority Act, 1976 (‘BDA Act’ for short) in support of his contention.
5. The question involved in this writ petition is no more res integra inasmuch as the said question is decided in number of judgments of this court including in the case of Gaffar Baig vs. The Bangalore Development Authority in WP. Nos. 21696 and 22027/2009 (BDA disposed of on 11.12.2009 and in the case of M/s. J.R. Housing Developers (P) Limited vs. state of Karnataka in WP. Nos. 33709 -33712 /2011 disposed of on 16.11.2011. In the aforementioned judgments, this court has ruled that the notification is not issued by the BDA proposing to acquire the lands involved therein under section -17 of the BDA Act for the implementation of the project of formation of housing layout by BDA and hence it is not open for the respondents to state that the layout plan/ building plan will not be approved on the ground that they are proposing to form the residential lay-out by utilizing the lands in question. The Apex court in the case of T.Vijayalakshmi and others vs. Town planning member and another, reported in (2006) 8 SCC 502, has ruled that the valuable right of the land owner cannot be denied in the absence of a clear regulatory statutory provision; the right to enjoy the property cannot be postponed, much less taken away; the right to property of a person would include right to develop the land and /or construct the building; such a right, of course can be restricted only by way of legislation. The rights of the parties cannot be intermeddled in the absence of a clear regulating statutory provision.
6. In the matter on hand, there is no proposal to acquire the property at all. Merely because the State Government has accorded permission to the BDA to go ahead with the project, the same cannot be construed as the preliminary notification proposing to acquire the land. AS aforementioned, the State Government has approved the proposal of the BDA to form D. Devaraj Urs layout as far back ass on 28.2.2009. Till this date, the BDA has not even moved a step further. It has not even issued the preliminary acquisition notification under section 17(3) of the BDA Act proposing to acquire the lands including the lands in question.
7. Section 32(6) (iii-a) and (iv) of the BDA Act read thus;
“32. Forming of new extensions or layouts or making new private streets:
(1) xxxx xxxx
(2) xxx xxxx
(6) Such sanction may be refused,-
(1) xxxx xxxxx
(2) xxxx xxxxx
(iii-a) if the proposed extension or layout is on the land which is proposed to be acquired for the purpose of the development scheme under this Act, and in respect of which a notification under sub-section (3) of section 17 is already published; or
(iv) if the layout in the opinion of the Authority cannot be fitted with any existing or proposed expansion or development schemes of the Authority.”
Sub-clause (iii-a) of sub-section (6) of section 32 of the BDA Act specifies that the sanction to proceed with the developmental activity may be refused by the BDA if the proposed extension or layout is on the land which is proposed to be acquired for the purpose of developmental scheme of BDA and in respect of which, a notification under sub-section (3) of section 17 has already been published. In the matter on hand, admittedly such a notification is not published. Hence the BDA cannot refuse sanction to the petitioner.
Clause (iv) of sub-section (6) of section 32 discloses that the sanction may be refused if the layout in the opinion of the Authority cannot be fitted with any existing or proposed expansion or development schemes of the Authority. In the matter on hand, there is nothing on record to show that the layout to be formed by the petitioner cannot be fitted with any existing or proposed expansion or development schemes of the BDA. It is also not in dispute that there is no existing development scheme and consequently there is no question of expanding the development scheme arises. There is no development scheme arises. There is no development scheme as such of the BDA which is finalized involving the petitioners property, till today.
Section 32 (6) (iv) of the BDA Act cannot be pressed into against the petitioner, inasmuch as the proposed expansion or development scheme is not formed in the area in question till this day, by the BDA. It is not in dispute that the properties in question are yet to be acquired. Not even a preliminary notification is issued under section 17(1) of the BDA Act. The development scheme in respect of the proposed D.Devaraju Urs Layout is also not prepared and finalized as contemplated under sections 15,16 and 17 of the BDA Act till this day. The document at Annexure – E, dated 20.12.2011, produced along with the affidavit, by the BDA is resolution passed in Subject No. 403/2011. The same clearly reveals that the preliminary notification is not issued proposing to acquire the lands in question along with the various adjoining lands for formation of D.Devaraj Urs Layout. The same also mentions the understanding by the BDA of the provisions of BDA Act to the effect that unless the preliminary notification is issued, the developmental activities by the land owners cannot be stopped. Said observations of the BDA in the aforementioned resolution are in accordance with law. Where, however a scheme comes into force although it may cause hardship to the individual owners as they may be prevented from making the most profitable use of their rights over property, having regard to the drastic consequences envisaged thereunder, the statute should be considered in such a manner as a result whereof greater hardship is not caused to the citizens than actually contemplated thereby. The courts cannot also be oblivious of the fact that the owners who are subject to the embargos placed under the statute are deprived of their valuable rightful use of the property for a long time. In the matter on hand, as aforementioned, not even a preliminary notification is issued so also the scheme is not finalized as per the statute. The Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted, requires strict construction. An owner of land ordinarily would be entitled to use or develop the same for any purpose unless there exists certain regulation in a statute or statutory rules. In this context, it is relevant to note certain observation at paragraphs-46, 48, 56 and 57, made by the Apex court in the case of Indore Vikas Pradhikaran vs. Pure Industrial Coke and Chemicals Limited and Others, reported in (2007) 8 SCC 705, which are as under:-
“46. Where, however, a scheme comes into force, although it may cause hardship to the individual owners as they may be prevented from making the most profitable use of their rights over property, having regard to the drastic consequences envisaged thereunder, the statute should be considered in such a manner as a result whereof greater hardship is not caused to the citizens than actually contemplated thereby, Whereas an attempt should be made to prevent unplanned and haphazard development but the same would not mean that the court would close its eyes to the blatant illegalities committed by the state and /or the statutory authorities in implementation thereof. Implementation of such land development as also building laws should be in consonance with public welfare and convenience. In United States of America zoning Ordinances enacted pursuant to the Police Power delegated by the state. Although in India the source of such power is not police power but if a zoning classification imposes unreasonable restrictions, it cannot be sustained. The public authority may have general considerations, safety or general welfare in mind, but the same would become irrelevant, as thereby statutory rights of a party cannot be taken away. The courts must make an endeavour to strike a balance between public interest on the one hand and protection of constitutional right to hold property, on the other.
48. The courts cannot also be oblivious of the fact that the owners who are subject to the embargos placed under the statute are deprived of their valuable rightful use of the property for a long time. Although ordinarily when a public authority is asked to perform statutory duties within the time stipulated it is directory in nature but when it involves valuable rights of the citizens and provides for the consequences therefore it would be construed to be mandatory in character.
56. Property while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law.
57. The Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted, requires strict construction. An owner of land ordinarily would be entitled to use or develop the same for any purpose unless there exists certain regulation in a statute or statutory rules. Regulations contained in such statute must be interpreted in such a manner so as to least interfere with the right to property of the owner of such land. Restrictions are made in larger public interest. Such restrictions indisputably must be reasonable ones.”
From the aforementioned, observations, it is clear that the State Government or the Authority of the state cannot restrict the user of the land unless it is specifically barred by the statute. In the matter on hand, there is no bar for the petitioner to develop the land inasmuch as the preliminary notification is not issued and the scheme is not finalized. Therefore, the provisions of sections 32 (6) (iv) of the Act will not come in the way of the petitioner seeking permission of the BDA to develop the land/lands in question.
8. At this stage, Sr. B.V. Shankarnarayana Rao draws the attention of this court to Annexure-F, dated 30.1.2012 produced by the BDA along with the affidavit of the Town Planner Member dated 2.5.2012 that the impugned intimation at Annexure –B is not an order as such passed by the BDA, but merely it is an intimation by Town Planner Member. However, by virtue of Annexure-F, dated 30.1.2012 produced by the BDA along with the affidavit, the BDA has decided to consider the application of the petitioner on merits by verifying as to whether the petitioner is a genuine General Power of Attorney holder of genuine owners of the properties and that as to whether the properties are under litigation or not. Thus, a submission is made on behalf of the BDA that the BDA has not rejected the application filed by the petitioner praying for permission to develop the land as such.
Be that as it may, the impugned endorsement/intimation issued by the BDA vide Annexure-B, dated 13.10.2011 is liable to be quashed as the same is not in accordance with law. It is open for the second respondent to examine as to whether the petitioner is otherwise entitled to the relief as prayed for. The BDA shall verify genuineness of General Power of Attorney. So also, the BDA shall find out as to whether the litigations as such are pending in respect of the properties in question. It is also open for respondent No.2 to consider the case of the petitioner on other points, on merits, except the point decided supra.
9. For the aforementioned reasons, the impugned Endorsement Annexure-B stands quashed. The Respondent No.2 is directed to consider the petitioner’s application for sanction of the layout in respect of the lands bearing Sy.Nos. 15 to 30/3 of Ramagondanahalli Village and Sy.Nos.348 to 385/9 of Ammani Bellandur Khane village, Varthur Hobli, Bangalore East Taluk, totally measuring 49 acres 8 guntas, in accordance with law. It is made clear that the consideration has to be independent of the approval granted by the Government for its development schemes to D.Devaraj Urs layout. Such consideration shall be made keeping in mind the aforementioned observations, within three months from the date of receipt of this order.
Writ petition is disposed of accordingly.