Disposed

A Feroz Ahmed S/O a Aziz Ahmed v. the Bangalore Development Authority

Karnataka HC5 Jan 2016WP/15806/2007

Case brief

AI extract

What is this about?

This court declared the Classification of Abshot Layout as Commercial in the Revised Master Plan 2015 to be bad in law and overlooked. The abshot Layout, historically residential since 1970, was treated as residential in the interest of the residents to prevent chaos, leaving the general validity of the Master Plan open.

What did the court decide?

The Abshot Layout is to be treated as Residential; the Master Plan 2015 indicating it as Commercial is declared bad in law and overlooked.

A Feroz Ahmed S/O a Aziz Ahmed Vs the Bangalore… — Land Acquisition | Karnataka HC (2016)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 05^TH DAY OF JANUARY 2016

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BEFORE

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THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION No.15806 OF 2007 (BDA)

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BETWEEN:

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A. Feroz Ahmed, Son of A. Aziz Ahmed, Aged about 49 years, Residing at No.33, Abshot Layout, Sankey Road Cross, Bangalore 560 052.

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G. Balaji Rao, Son of Late G. Shivaram, Aged about 67 years, Residing at No.20, Abshot Layout, Sankey Road Cross, Bangalore 560 052.

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K.S.Bhanu, Son of K. Sheshadri Iyer, Aged about 77 years, Residing at No.26/8, Abshot Layout, Sankey Road Cross,

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Bangalore 560 052. 4. Abshot Layout Residents Association (Regd.) , No.26/11, Abshot Layout, Sankey Road Cross, Bangalore 560 052, Represented by its President, Dr. V. Nichani, Son of Bhawan Das, Aged about 65 years. …PETITIONERS (By Shri K. Sachindra Karanth, Advocate) AND: 1. The Bangalore Development Authority, T. Chowdaiah Road, Kumara Park West, Bangalore 560 020, Represented by its Commissioner. 2. The State of Karnataka, Urban Development Department, Vikasa Soudha, Dr. Ambedkar Veedhi, Bangalore 560 001, Represented by its Secretary. 3. Bangalore Mahanagara Palike, N.R.Square, Hudson Circle, Represented by its Commissioner. …RESPONDENTS

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(By Shri Ravi G Sabhahit, Advocate for Respondent No.1; Shri Venkatesh Dodderi, Additional Government Advocate for Respondent No.2;

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Shri K.N.Puttegowda, Advocate for Respondent No.3 Respondent no.4 deleted vide court order dated 11.12.2015)

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This Writ Petition filed under Article 226 of the Constitution of India, praying to declare that the zoning of land use of Abshot Layout, Bangalore 560 052, as Commercial (Business) in the land use map of Planning District 1.04 in volume 2 of the Revised Master Plan 2015, as per Annexure-G is illegal and unenforceable and etc;

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This Writ Petition coming on for Hearing this day, the court made the following:

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O R D E R

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Heard the learned Counsel for the petitioners and the

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learned Counsel for the respondents.

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Petitioners no.1 to 3 are the residents of a layout in

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Bengaluru called ‘Abshot Layout’. The first petitioner is occupying house no.33 of the layout. Similarly, the second petitioner is occupying house no.20 and the third petitioner is resident of house no.26/8. Petitioner no.4 is an association of the residents of the very layout and it is a body registered under

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the Karnataka Societies Registration Act, 1960. The members of the association are the residents of the said layout, which is situated off Sankey road within Vasanthnagar Division of Bengaluru Mahanagara Palike, though not part of Vasanthnagar.

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The layout, for land use purpose, was classified as residential in the Outline Development Plan - 1972, in the Comprehensive Development Plan - 1984 and in the Revised Comprehensive Development Plan, 1995, which were all prepared and published under the provisions of the Karnataka Town and Country Planning Act, 1961 (Hereinafter referred to as the ‘KTCP Act’, for brevity).

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The erstwhile City Improvement Trust Board, the predecessor of Bangalore Development Authority (BDA) had approved the layout as early as on 22.7.1970. There was no provision in the approved Scheme of the Layout for multistoried buildings. The layout is a small residential area in which there are about 36 residential houses. There is one

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children play ground dedicated for the said purpose at the time of formation of the layout. And the layout is an enclave, landlocked on three sides and the only access being from Sankey Road. The access road is known as Sankey Road Cross, which is 29 feet wide. The ingress and egress to the layout is only through this cross road to the layout.

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There was one instance where in respect of property bearing No.20/1, it was proposed to be converted for commercial purposes and the same was promptly challenged by way of a writ petition to this court and the petition was disposed of before a division bench, ultimately recording the submissions of the owners of the premises that the premises would be used only for residential purposes. Thus, it has been ensured that all the buildings in the layout are retained as residential premises.

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While matters stood thus, the Government had published a Revised Master Plan of 2015 which was duly approved by the Government by order dated 25.6.2007, whereby the

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proposed land use plans for the city are shown. Sankey Road Cross is found in Volume No.2 consisting of proposed land use maps of Planning District 1.04 - Vasanthnagar and the layout is shockingly classified as commercial (business). The land use which was residential eversince the formation of the layout in 1970 is without any ceremony changed to commercial (business). It is this which is sought to be questioned in the present petition.

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Though the writ petition was framed on several grounds, the significant ground which is incorporated by way of amendment is the following, namely, that the Karnataka Municipal Corporations Act, 1976 (Hereinafter referred to as the ‘KMC Act’, for brevity) was amended by Amendment Act No.35/1994. Section 503A was substituted with Sections 503A, 503B and 503C which are extracted hereunder for ready

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reference:

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“503-A. Preparation of development plan. – Every Corporation shall prepare every year a development plan and submit to the District

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Planning Committee constituted under Section 310 of the Karnataka Panchayat Raj Act, 1993, or as the case may be, the Metropolitan Planning Committee constituted under Section 503-B of this Act.

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503-B. Metropolitan Planning Committee.(1) The Government shall constitute a Metropolitan Planning Committee for the Bangalore Metropolitan Area to prepare a draft development plan for such area as a whole.

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Explanation.- For the purpose of this section “Bangalore Metropolitan area” means an area specified by the Governor to be a metropolitan area under clause (c) of Article 24-P of the Constitution of India.

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(2) The Metropolitan Planning Committee shall consist of thirty persons of which.-

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(a) such number of persons, not being less than two-thirds of the members of the committee, as may be specified by the Government shall be elected in the prescribed manner by, and from amongst, the elected members of the Corporations, the Municipal Councils and Town Panchayats, and the Adhyakshas and Upadhyakshas of Zilla Panchayats, Taluk Panchayats and Grama Panchayats in the metropolitan area in proportion to the ratio between the population of the city and other municipal area and that of the areas in the jurisdiction of Zilla Panchayat, Taluk Panchayat and Grama Panchayat;

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(b) such number of representatives of.-

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(i) the Government of India and the State Government as may be determined by the State Government, and nominated by the Government of India or as the case may be, the State Government;

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(ii) such organizations and institutions as may be deemed necessary for carrying out of functions assigned to the committee, nominated by the State Government.

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(3) All the members of the House of the People and the State Legislative Assembly whose constituencies lie within the Metropolitan area and the members of the Council of State and the State Legislative Council who are registered as electors in such area shall be permanent invitees of the committee.

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(4) The Commissioner, Bangalore Development Authority shall be the Secretary of the Committee.

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(5) The Chairman of the Metropolitan Planning Committee shall be chosen in such manner as may be prescribed.

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(6) The Metropolitan Planning Committee shall prepare a draft development plan for the Bangalore Metropolitan area as a whole.

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(7) The Metropolitan Planning Committee shall, in preparing the draft development plan.-

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(a) have regard to.-

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(i) the plans prepared by the local authorities in the Metropolitan area;

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(ii) matters of common interest between the local authorities including coordinated spatial planning of the area, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation;

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(iii) the overall objectives and priorities set by the Government of India and the State Government;

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(iv) the extent and nature of investments likely to be made in the Metropolitan area by agencies of the Government of India and of the State Government and other available resources whether financial or otherwise;

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(b) consult such institutions and organizations as the Governor may, by order, specify.

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(8) The Chairman of the Metropolitan Planning Committee shall forward the development plan, as recommended by such committee, to the State Government.

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503.C. Finance Commission.(1) The Finance Commission constituted under Section 267 of the Karnataka Panchayat Raj Act, 1993 shall also review the financial position of the Corporations and make recommendations to the Governor as to.-

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(a) the principles which should govern.-

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(i) the distribution between the State and Corporations of the net proceeds of the taxes, duties, tolls, and fees leviable by the Government which may be divided between them and allocation between the Corporations their respective shares of such proceeds;

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(ii) the determination of the taxes, duties, tolls, fees which may be assigned to or appropriated by, the Corporations;

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(iii) the grant-in-aid to the Corporations from the consolidated fund of the State;

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(b) the measures needed to improve the financial position of the Corporations;

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(c) any other matter referred to the Finance Commission by the Governor in the interest of sound finances of the Corporation.

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(2) The Governor shall cause every recommendation made by the Commission under this section together with an explanatory memorandum as to the action taken thereon to be laid before both the Houses of the State Legislature.”

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In retrospect, the petitioners had realized that there

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was such an amendment and sought to amend the petition to

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further contend that by virtue of the amendments referred to above, every Corporation should prepare every year a

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development plan and submit it to the Metropolitan Standing Committee constituted under Section 503B of the KMC Act. The Metropolitan Planning Committee for the Bangalore Metropolitan Area was required to prepare Draft Development Plan for such area as a whole. Therefore, with effect from the year 1994, there was a requirement of a Metropolitan Planning Committee being constituted which was vested with the jurisdiction to prepare the development plan for the Bangalore Metropolitan Area every year. This is in keeping with the constitutional Scheme under Article 243W read with Schedule XII to the Constitution of India. The said Article lays down that subject to the provisions of the constitution, the Legislature of the State by law shall endow (a) the municipalities with such powers and authority as may be necessary to enable them to function as institutions of self government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to (i) the preparation

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of plans for economic development and social justice (ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule, (b) the Committees with such powers and authority, as may be necessary, to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule.

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This provision was again incorporated by the Constitution (74^th Amendment) Act, 1992 with effect from 1.6.1993. It is pursuant to this mandate that the KMC Act was amended to incorporate Sections 503A, 503B and 503C. The petitioners therefore had raised a significant ground that it was the Bangalore Metropolitan Committee, which was competent to address the Development Plan, including the Master Plan of 2015, which contemplated change of land use from residential to commercial insofar as the Abshot layout is concerned. Hence, if the procedure followed in sanctioning the Master Plan and thereby the change of land use insofar as the Abshot Layout

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is concerned, is with reference to the provisions of the KTCP Act. And therefore, the basis that it is the Bangalore Development Authority which is the competent planning authority notwithstanding the amendment brought about creating the Metropolitan Planning Committee is concerned was wholly illegal and without jurisdiction.

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It is also to be noticed that it is pursuant to the

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amendment application filed by the petitioners, that the BDA has also woken up to the situation. It is only thereafter that a Metropolitan Planning Committee has been constituted thereby acknowledging the fact that there was need for constitution of a Metropolitan Planning Committee subsequent to the amendment of the KMC Act. The implication of this state of affairs are far reaching. In that, all actions taken by the Planning Authority, the BDA, constituted under the KTCP Act, would be rendered without jurisdiction if strict application of the provisions are to be given effect to.

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This is the primary presumption that would have to be

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drawn. However, without pronouncing on the validity or otherwise of the several actions that the planning authority may have taken in the past and having regard to the serious consequences that would follow if a general finding is now rendered as to the validity or otherwise of the acts of the planning authority, it would suffice if the action pertaining to Abshot Layout and the land use of the layout of which the petitioners are residents, is addressed and if its status is continued to be treated as residential, notwithstanding that the Master Plan of 2015 contemplates that the Abshot layout shall be treated as commercial, in the interest of larger public as well as the residents of the locality. Given the circumstance that if the area is treated as commercial, it would result in utter chaos, which need not be expressed by an expert town planner and it would be obvious to any ordinary person, this court takes the initiative of declaring the Abshot Layout as being treated as

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residential and that the Master Plan of 2015 indicating the same

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to be commercial to be bad in law and to be overlooked.

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With that observation, the petition stands disposed of. This court stops short of considering the validity or otherwise of the acts of the Planning authority having regard to the serious effect it would have on the developments that have taken place, and changes that have been brought about over the years through out the city and it will result in disastrous consequences if any such order is to be passed by this court. But, the question is however left open and the order is restricted to Abshot layout in which the petitioners are residents.

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Sd/JUDGE

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A Feroz Ahmed S/O a Aziz Ahmed v. the Bangalore Development Authority

Case brief

What is this about?

What did the court decide?

A Feroz Ahmed S/O a Aziz Ahmed v. the Bangalore Development Authority

Case brief

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