Allowed

Sri a Elangovan v. the Mysore Urban Development Authority

Karnataka HC1 Feb 2023WP/18086/2013

Case brief

AI extract

What is this about?

The Karnataka High Court allowed a writ petition challenging the cancellation of a sanctioned layout plan. Holding that the road upgrade was invalid without gazette notification, fixing building lines without notice violated Article 300A, and revoking a completed plan without statutory power was unlawful.

What did the court decide?

The writ petition was allowed and the impugned order dated 29.1.2013 passed by the respondent No.2 was quashed.

Sri a Elangovan Vs the Mysore Urban Development… — Writ and Judicial Review | Karnataka HC (2023)

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1 - WP No. 18086 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR WRIT PETITION NO. 18086 OF 2013 (LB-RES)

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BETWEEN:

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SRI A. ELANGOVAN, AGED ABOUT 50 YEARS, S/O SRI ANNAMALAI, RESIDING AT NO.1027, CH-23 G-5, NISARGA APARTMENT JAYALAKSHMIPURAM LAYOUT CHAMARAJA MOHALLA MYSORE-570 001. …PETITIONER

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(BY SRI. LOKESH K.S., ADVOCATE)

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AND:

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THE MYSORE URBAN DEVELOPMENT AUTHORITY JHANSI LAKSHMIBAI ROAD MYSORE.

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Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

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THE MYSORE URBAN DEVELOPMENT AUTHORITY BY ITS TOWN PLANNING MEMBER JHANSI LAKSHMIBAI ROAD MYSORE-570 001.

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THE DEPARTMENT OF PUBLIC WORKS PORTS AND INLAND WATERWAYS SUB DIVISIONAL, NAZARABAD MYSORE-570 001 BY ITS ASSISTANT EXECUTIVE ENGINEER.

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STATE OF KARNATAKA DEPARTMENT OF PUBLIC WORKS PORT AND INLAND WATER WAYS

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M.S. BUILDING BANGALORE-560 001 BY ITS PRINCIPAL SECRETARY

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(R-4 AMENDED AS PER ORDER DATED 19.4.2013)

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…RESPONDENTS

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(BY SRI. T.P. VIVEKANANDA, ADVOCATE FOR R1 & 2, SRI R. SRINIVAS GOWDA, AGA FOR R3 & R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THE SECTION 7 OF THE KARNATAKA HIGHWAYS ACT IN SO FAR AS IT RELATES TO FIXING BUILDING AND CONTROL LINES WITHOUT PAYMENT OF COMPENSATION VIOLATES ART 13[2] AND ART 31A OF THE CONSTITUTION OF INDIA; SET ASIDE THE ORDER DATED 29.1.13 VIDE ANNEXURE-K AND ETC.

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The land bearing Sy.No.40/2B situated at Chikkahalli, Varana Hobli, Mysore Taluk is the subject matter of this petition. The petitioner was permitted to divert the subject land for residential purposes by the competent Authority under Section 95 of the Karnataka Land Revenue Act.

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Thereafter, the petitioner submitted a plan with the respondent - Planning Authority for sanctioning the formation of a residential layout in the subject land. The plan was sanctioned on 21.6.2009 and in terms of the conditions contained in the sanctioned layout plan, the petitioner executed a deed , relinquishing the open place, park road etc., in favour

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of the respondent No.2. The petitioner's request for release of the sites formed in the subject land was also approved by the 2nd respondent on 14.2.2011.

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Such being the case, the 2nd respondent issued a notice restraining the petitioner from laying a drain within 25 meters of the Kadakola-Chikkahalli Road, in light of the circular issued by respondent No.3. The petitioner replied to the notice. However, the respondent No.2 issued another notice directing the petitioner to obtain a modified plan which was also suitably replied by the petitioner.

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The 2nd respondent passed an order dated 29.1.2013 canceling the sanctioned layout plan and also enclosed the copy of the proposed modified plan to be submitted by the petitioner. Taking exception to the same, this petition is filed.

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The learned counsel appearing for the petitioner would make the following submissions:

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a) The impugned order of cancellation of the sanctioned layout plan was passed in light of the order dated 11.5.1992 passed by the Government of Karnataka, by which the Kadakol-Chikkahalli road was upgraded as District Main Road and there is a restriction imposed in developing the land within 25 meters from the center of the District Road. The order dated 11.5.1992 upgrading the subject road as District Main Road was not notified in the official gazette as specified under Section 3 of the

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Karnataka Highways Act, 1964. Hence, the subject road cannot be construed as a District Main Road so as to impose any restriction in developing the subject land under the provisions of the Karnataka Highways Act, 1964. In support, he places reliance on the decision of the Hon'ble Supreme Court in the case of Union of India - vs- Param Industrial Limited (AIRONLINE 2015 SC 204).

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b) In the absence of any notification issued under Section 15 of the Act, 1964 for acquiring the portion of the land falling within the 25 meters from the center of the district main road and also compensation having not been paid, the impugned order depriving the legitimate right of the petitioner in developing the portion of the subject land is violative Article 300A of the Constitution of India.

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c) In the absence of any power under the provisions of Karnataka Town and Planning Act, or Karnataka Urban Development Authority Act, the impugned order passed canceling or revoking the order sanctioning the plan passed is one without jurisdiction. In support, a reliance is placed on the coordinate Bench of this Court in WP No.34913/2017 (DD 22.10.2020).

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The learned counsel for the respondents No.1 and 2 would make the following submissions:

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a) The subject road was upgraded as district main road vide order dated 11.5.1992 and the said order

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having not been challenged, the petitioner is precluded from developing the portion of the land falling within 25 meters from the center of the road.

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b) The subject road has been upgraded from major district road to State highway under the notification dated 1.9.2020 which is yet to be published in the official gazette. Hence, on this ground also, the petition is not maintainable.

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c) The power to sanction includes the power to add, to amend, vary or rescind the sanction. Hence, the respondent - Planning Authority in exercise of the power under Section 32 of the Karnataka Urban Development Authority has got power to rescind the plan sanctioned under the said provisions. In support, he places reliance on the decision of the Division Bench of this Court in the case of K A Prabhakar -vs- The Bangalore Development Authority and others (1999 (2) KLJ 555).

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d) The portion of the subject land falling within 25 meters from the center of the district road is proposed for widening of the road in future which is meant for public use and is not an acquisition or requisition of the land falling under Entry 42, List 3 of VII Schedule of the Constitution of India.

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e) The use of property can be regulated in the interest of the public at large and the public interest will

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prevail over the private interest. Hence, the condition imposed prohibiting the development of the portion of the subject land cannot be termed as arbitrary or unreasonable. In support, a reliance of the Division Bench of this Court in the case of Yallappa Mudukappa Itiggi and others -vs- The Hubli Dharwar, Urban Development Authority and others (ILR 2007 KAR 755).

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I have considered the submissions of the learned counsel appearing for the parties.

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i) Whether the notification upgrading the subject road as district main roads having not been published in the official gazette can be given effect to.

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ii) Whether the petitioner can be deprived of his legitimate right to develop the portion of the subject land without following due process of law.

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iii) Whether the respondent - Planning Authority having sanctioned the plan can rescind or revoke the same.

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Point No.(i):

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Section 3 of the Act 1964 reads as follows:

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"3. Declaration of roads, ways or lands as highways: The State Government may, by notification in the official Gazette, declare any road, way or land to be a highway and classify it as,-

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(i) a State highway (Special); (ii) a State highway; (iii) a major district road; (v) a village road."

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A plain reading of the said provision specifies that the road can be classified as State Highway or major district road only upon notification in the official gazette. The object of publication in the official gazette is to make known to the public that the subject road has been upgraded to district main road and it becomes operative only upon publication in the official gazette as held by the Hon'ble Supreme Court in the case of Union of India (supra).

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The term notification' is not defined under the Karnataka Highways Act, 1964 and in the absence of the same, this court has to fall back on the term notification' as defined under the Karnataka General Clauses Act.

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The term `notification' is defined under Section - 3(24-b) of the Karnataka General Clauses Act, which means a notification published in the official gazette. Hence, on combined reading of Section 3 of the Karnataka Highways Act, 1964 and Section 3(24-b) of Karnataka General Clauses Act, 1899, it was mandatory to publish the notification in the official gazette declaring the subject road as district main road. In the absence of the said publication, the notification is not binding on the petitioner and also unenforceable.

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Chapter - III of the Karnataka Highways Act, 1964 deals with the restriction of ribbon development. Section 7 of the said Act deals with the power to fix boundaries of a building and control lines of highway. Sub-Section 2 specifies that sixty

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days' notice should be given to the affected person before publishing the notification fixing the building line.

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The term `building line' as defined under Section 2(d) of the Act, 1964 means a line on either side of a highway fixed in respect of such highway or part by a notification under sub-Section 1 of Section 7 of the Act, 1964.

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The upgradation of subject road as district road having not been notified in the official gazette, the restrictions enumerated in Section

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In the instant case, the petitioner was not issued with the notice before publication of the notification fixing the building line i.e. 25 meters from the center of the highway, thus prohibiting the petitioner permanently from carrying out development of his land falling within 25 meters from the center of the highway. Hence, the notification declaring the subject road as district main road and also the notification issued fixing the building line without issuing notice to the petitioner who is an affected person are not binding and enforceable against the petitioner.

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16. Point No.(ii):

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Article 300A of the Constitution of India specifies that no person shall be deprived of his property save by authority of law. To put it simply, the petitioner cannot be prohibited permanently from using his land without compensation.

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The purpose of fixing the building line is for reserving the land from 25 meters from the center of the highway for future expansion.

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Section 15 of the Act, 1964 specifies that if the land is required for the purposes of a highway should be compulsorily acquired by publishing a notification to that effect in the official gazette.

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Chapter-V of the Act, 1964 deals with the compensation. Section 26 of the Act, 1964 deals with the manner of compensation to be paid for acquisition of any land under Section 15 of the Act, 1964 or buildings which are required to be re-erected to bring it outside the building lines, which were erected before the appointed date. A combined reading of Sections 9, 12, 15 of the Act, 1964 and Chapter-V of the Act, 1964 indicates that when a building line is fixed, it is implied that the land falling within 25 meters from the center of district main road is required for the purposes of highway and has to be compulsorily be acquired by publishing a notification in the official gazette and pay compensation for such acquisition.

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The planning authority in the impugned order has also not stated that the petitioner will be entitled for additional developed area in lieu of the prohibition to develop the portion of the land falling within 25 meters from the centre of the subject road. Hence, the impugned order passed is in violation of Article 300A of the Constitution of India.

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22. Point No.(iii):

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There is no express provision under Section 32 of the Karnataka Urban Development Authority Act to rescind, revoke or modify the sanctioned plan. This is ordinarily in the nature of administrative order.

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Section 21 of the Karnataka General Clauses Act, specifies that the power to make an order includes the power to add, to amend, vary or rescind the order. In the instant case, the sanctioned layout plan was issued on 26.12.2009. Thereafter, the layout was formed in accordance with the sanctioned plan and plots were conveyed to various persons. It is only after more than three years and third party rights were created, the respondent - Planning Authority rescinded the sanctioned plan. Having sanctioned plan and in terms of the sanctioned plan, the civic amenities sites, park etc. having vested with the local Authority after it is relinquished by the petitioner, it was not within the power of the Planning Authority to rescind the sanctioned plan and calling upon the petitioner to submit modified plan, and if the impugned order is implemented, the plots formed in the layout have to be realigned which will adversely affect the rights of the purchasers of the plots and this would be impracticable and infeasible.

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The decision of this Court in the case of K A Prabhakar (supra) is not applicable to the present case, since in

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the case of K A Prabhakar, roads, civic amenities sites and open spaces were not relinquished in favour of the Local Authority and in the absence of vesting of the same, the Planning Authority has the power to rescind the sanctioned plan.

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