The High Court of Karnataka rejected a writ petition challenging a modification sanctioning a single-site industrial layout. The court held that the urban authority had power to modify the plan under Section 32 of the 1987 Act and Section 21 of the General Clauses Act.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MAY, 2023
BEFORE
THE HON’BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.55494/2013 (LB-RES)
BETWEEN;
Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA
SMT.MALATHI W/O MARUTHI KURDEKA, AGED ABOUT 44 YEARS, R/AT 0.1077, LAKSHMI NARAYANA NILAYA, 1ST MAIN, 5TH CROSS, VINOBHANAGAR, DAVANAGERE-577 002.
...PETITIONER
(BY SRI KALEEMULLAH SHERIFF, ADV.)
AND:
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4 . SMT.KALPANA.P W/O ASHOK, AGED ABOUT 50 YEARS, R/AT NO.1507/2, 10TH MAIN, 5TH CROSS, M.C.C. ‘B’ BLOCK, DAVANAGERE-577 002.
…RESPONDENTS
(BY SRI M.B. SANTOSH KUMAR, HCGP FOR R1 & R2 SMT. NALINI VENKATESH, ADV. FOR R3 (VC) SRI K ANANDARAMA AND SRI PRASHANTH KUMAR D., ADVS. FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS; QUASH THE IMPUGNED ORDER DATED 16.07.2013 PASSED BY THE R-3, VIDE ANNX-T BY ISSUING A WRIT OF CERTIORARI.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 21/02/2023 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
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O R D E R
The petitioner, owner of land in Sy.No.11/2A3 to
an extent of 0.30 guntas of Karuru village, Davanagere
Taluk is before this Court under Article 226 of the Constitution of India, calling in question the correctness and legality of order bearing No. zÁºÀ£À¥Áæ:AiÉÆë:¥ÀK¤«:837:2001-02 dated 16.07.2013 (Annexure-T) passed by the 3rd respondentCommissioner, Davanagere Urban Development Authority, by which, modified Single Site Industrial Layout Plan is granted on certain terms and conditions.
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3. Learned counsel for the petitioner would
submit that the petitioner is the owner of 0.30 guntas of land in Sy.No.11/2A3, whereas respondent No.4 is the owner of 0.20 guntas of land in Sy.No.11/1A 1B of Karuru village, Davanagere. Learned counsel for the petitioner submits that at the request of respondent No.4, second respondent-Deputy Commissioner by order dated 13.09.2002 granted conversion of the land in question i.e., 0.20 guntas of land in Sy.No.11/1A 1B from agricultural to non-agricultural industrial purpose. The Respondent No.4 thereafter submitted an application to the 3rd respondent, Davanagere Urban Development Authority (for short “Authority”) requesting
for sanction of Single Site Industrial Layout Plan. Respondent No.3 by order dated 15.11.2002 approved the Single Site Industrial Layout Plan on certain terms and conditions. Learned counsel for the petitioner would submit that on approval of Single Site Industrial Layout
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Plan, the respondent No.4 relinquished 40 x 164 feet
road on the western side of the Industrial Plot under Annexure-F undertaking dated 19.10.2002. Long thereafter, 4th respondent said to have made an application to the 3rd respondent in the year 2007 for modification of
the plan canceling 40 feet road and to include the said land in the industrial plot. Learned counsel Sri.Kaleemullah Sheriff would bring to the notice of this Court Annexure-H wherein the third respondentCommissioner informed the second respondent-Deputy Commissioner that the road relinquished by 4th respondent is in use and as such 40 feet road cannot be cancelled by modifying the sanction plan. The 4th respondent submitted one more representation in terms of Annexure-J in the year 2007 and as the 3rd respondent failed to consider the said representation, the 4th respondent was before this Court in W.P.No.22510/2010. The said writ petition was disposed of on 12.08.2010, when
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the 3rd respondent brought to the notice of the Court that request of the 4th respondent for modified plan has already been rejected under endorsement dated 24/26.09.2007. Respondent No.4 filed W.P.No.32073/2010 challenging the said endorsement dated 24/26.09.2007 wherein request for modified plan was rejected. The fourth respondent withdrew the said writ petition under order dated 29.11.2011 with liberty to approach the competent authority. Thereafter, respondent No.4 submitted one more representation on 18.02.2012 in terms of Annexure-Q1. The 3rd respondent considered the representation of 4th respondent and issued Annexure-T modified plan on 16.07.2013 including the road in the industrial plot.
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15.11.2002, the 3rd respondent could not have modified
the plan under Annexure-T impugned order. Learned counsel would contend that the impugned modified sanction plan is without jurisdiction and he submits that when once the sanction plan is issued, there is no provision to modify the said sanction plan. Learned counsel would also submit that 4th respondent’s request for issuance of modified plan was also rejected under endorsement dated 24/26.09.2007. He submits that when once the request of 4th respondent was rejected, subsequently ignoring the said rejection, exercising power to modify the plan is without jurisdiction.
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relinquished road in favour of 3rd respondent-authority, the 3rd respondent could not have cancelled the road portion to modify the plan under impugned order at Annexure-T. Further, learned counsel would submit that the petitioner has no other approach road, except the road which is now cancelled under the impugned modified plan to reach his property in Sy.No.11/2A3.
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conditions of the first sanction plan and modified plan to say that the terms and conditions would not require respondent No.4 to hand over or relinquish the right over the road. Learned counsel would point out that the terms and conditions of first sanction plan as well as modified plan would only require maintenance of park and parking area by the owner of the industrial plot. She also invites attention of this Court to subsequent affidavit filed by the Commissioner dated 11.03.2022, wherein the Commissioner stated that as per the Master Plan approved by the State Government vide order dated 25.07.2008, 40 feet road continued to be reserved. Learned counsel would pray for passing appropriate order.
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15.11.2002 (Annexure-R5) and would point out that the
said order would not require the 4th respondent to relinquish any area i.e. either park or road to the 3rd respondent. He would also submit that undertaking by the Power of Attorney Holder of 4th respondent, in terms of Annexure-F dated 19.10.2002 cannot be considered as deed of relinquishment. Learned counsel Sri.Anandaram referring to Section 17 of Karnataka Town and County Planning Act, 1961 (for short KTCP Act’) would submit that a person could relinquish his right over road and civic amenity area only through registered relinquishment deed and not in any other form or deed. Thus, he submits that the 4th respondent
has not relinquished the road as contended by the petitioner in favour of 3rd respondent. Learned counsel would also submit that in the plan, road was shown only for the use or utilization of respondent No.4 and not for use of public. Learned counsel also places reliance on
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Master Plan of the area, to demonstrate that no
portion of 0.20 guntas of land of respondent No.4 is shown as road as stated in the affidavit of
Commissioner dated 11.03.2022. Learned counsel would also submit that when respondent No.4 was before this Court in W.P.No.32073/2010 challenging endorsement dated 24/26.09.2007, the said writ petition was withdrawn with liberty to approach the competent authority. Therefore, he justifies the consideration of 4th respondent’s application for modified plan by 3rd respondent. Learned counsel placed reliance on the decision of the Division Bench of this Court reported in ILR 2012 KAR 2411 in the case of M/S. L & T KOMATSU LTD., v/s ALL INDIA TRADE UNION CONGRESS, KARNATAKA STATE COMMITTEE AND OTHERS
and Section 21 of General Clauses Act to submit that the authority which is conferred power to
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grant or approve or to do certain acts would also possess power to modify or withdraw the order. Learned counsel would also submit that even though there is no specific provision conferring power on the 3rd respondent to modify or withdraw the sanction granted under Section 32 of the Karnataka Urban Development Authorities Act, 1987 (for short 1987 Act), under Section 21 of General Clauses Act, the Authority could exercise its power to modify. Thus, he submits that consideration of respondent No.4’s representation to modify the sanction plan is within the power of 3rd respondent. Learned counsel would also submit that the petitioner has no locus-standi to question the modified plan as it would not affect in any way the rights of the petitioner, since the petitioner is provided with road which the petitioner is using from the beginning. It is also submitted that the petitioner is not an immediate neighbor of respondent No.4 and her land
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is situated on the southern side of respondent No.4’s property after 30 feet road. Thus, he prays for dismissal of the writ petition.
parties and on perusal of the writ petition papers, the
following points would arise for consideration:
The answer to the above points would be in the Affirmative and Negative respectively for the following reasons:
The KTCP Act is enacted with an object to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Section 15
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provides for granting permission for development of building or land. Section 17 provides for sanction for single plot or sub-division of plot or layout of private street. The sanction of plan shall be in consonance with the proposals of the Master Plan. If the Master Plans are not finally approved, in such cases the Planning Authority may sanction the layout plan as per the guidelines issued by the Government from time to time. If the Authority decides to sanction the layout plan, Subsection (2-A) of Section 17 of KTCP Act requires the owner to relinquish the roads, parks and playground to the Local Authority and Civic Amenity Areas to the Planning Authority through registered relinquishment deed free of cost without claiming any compensation. In other words, once the layout is sanctioned, relinquishment of roads, parks and civic amenity areas shall be by registered relinquishment deed only and it cannot be relinquished by any other mode.
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provide for the establishment of Urban Development Authorities for the planned development of major and important urban areas in the State and the areas adjacent thereto. Section 32 of 1987 Act provides for formation of new extension or layouts or making new private streets with the sanction of the Authority. Subsection (4) of Section 32 requires consideration of application within six months from the date of receipt of application seeking permission to form an extension or layout. Sub-section (5) requires the owner to transfer the ownership of the roads, drains, water supply mains, parks, open spaces, civic amenity areas to the Authority, permanently without claiming any
compensation thereof.
for the petitioner is that once the layout plan is
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sanctioned, the Authority has no power or jurisdiction to modify sanctioned layout plan. No doubt, there is no specific provision in the KTCP Act or 1987 Act to consider and approve modification of the approved or sanctioned layout plan. In the instant case, single site layout plan was sanctioned to the fourth respondent under Section 32 of 1987 Act. The sanction plan dated 15.11.2002 was on certain terms and conditions. Entire scheme of 1987 Act would not provide for modification of sanction plan. Normally, the power to sanction includes power to modify or to rescind or to withdraw the sanction. When a power is conferred in an Authority to do a particular act, it includes the power to withdraw, modify, amend or cancel. In that regard, it would be useful to refer to Section 21 of the General Clauses Act, which is to be read into Section 32 of 1987 Act.
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reported in 1999 (2) Kar.L.J 555 (K.A.PRABHAKAR V/S. THE BANGALORE DEVELOPMENT AUTHORITY, BANGALORE AND OTHERS) was considering Section 32 of Bangalore Development Authority Act, 1976 which provides for sanction of layout. The Court was examining as to whether in the absence of specific provision for approval of modified plan, the BDA could approve or sanction modified plan. This Court held that in the absence of specific provision in the BDA Act expressly conferring power to sanction modification, provisions of General Clauses Act are attracted, whereunder power to sanction includes power to add, to amend, vary or rescind sanction. Relevant paragraphs 9 and 10 of the above decision reads as follows:
“9. I have applied my mind to the contentions made by learned Counsel for the parties. As regards the first question, whether the modification sought in the scheme by respondent 2 had been approved or not, there is
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no dispute that no order had been communicated from the BDA, to the society, either granting or rejecting the application. There is no dispute that the application seeking approval of the modification of the scheme and seeking permission to change the user of the land from road to building site had not been made according to law. It has not been contended by any party that application seeking approval under Section 32 of the Act of the modification in the scheme had been made according to law, complying with all the requirements of law. When there is no dispute about the factual position, only question of law remains to be considered, whether approval had been granted or could be deemed to have been granted. As regards the first question whether the authority had got power to modify or permit modification of the scheme, of the layout no doubt there is no specific provision expressed in the Act, authorising the authority to consider and to approve the modification in the layout scheme. This is ordinarily in the nature of administrative order. Section 21 of the Karnataka General Clauses Act, provides power to make an order includes power to add, to amend, vary or rescind
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the order. Section 21 of the Karnataka General Clauses Act, 1899 reads:
“ 21. Power to make order includes power to add, to amend, vary or rescind notifications, orders, rules or bye-laws. —
Where, by any enactment, a power to issue notifications, orders, rules or bye-laws is conferred, then that power, includes a power exercisable in the like manner and subject to like sanction and conditions if any, to add, to amend, vary or rescind any notifications, orders, rules or bye-laws so issued”.
10. In view of Section 21 of the Karnataka General Clauses Act, 1899, read with Section 32 of the Bangalore Development Authority Act, 1976, it can be said that the layout plan once BDA, sanctions, it has also got power to amend it by addition etc., therein, as well as it has got power to rescind. But it is exercisable in the same manner and subject to same conditions and procedure as provided under law. It means that application for modification, if it is made for addition or alteration in the layout scheme, the BDA, has to consider according to the provisions of the Act and to dispose of within a period of 6
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months from the date of application or at least from the date of furnishing of the necessary material information by the applicant to the authority and if this is not done, then, will follow, deeming clause which is contained in sub-section (8) of Section 32. As mentioned earlier, it is no body's case that application which has been moved for seeking approval of the modification of layout scheme, that is application made by respondent 2 had been dismissed or disposed, nor is anybody's case that any order has been passed thereon. In such circumstances in my opinion, the same has to be deemed to have been allowed and alteration has been sanctioned. That is changing of the user of that land which was shown as road on the Northern side of Site No. 11, which is in between Site Nos. 10 and 11, into residential site was sanctioned or it was deemed to have been sanctioned. When it is to be deemed to have been sanctioned, and particularly in the circumstances as pointed out by learned Counsel for the BDA, that the Engineer had also recommended for sanction, I have to take it that it had been sanctioned in the eye of law under Section 32, sub-section (8) of the Act. Learned Counsel contended that once
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this original layout plan has been sanctioned, the applicant when had submitted the layout plan of the society was required to deposit certain sums for expenditure for development of the road and also to agree to transfer the ownership of the roads, drains, water supply mains and open spaces laid out by him, to the authority or to say Corporation, appellant did as required as such. It should be taken that land was transferred stood transferred and vested in the Authority or Corporation immediately and therefore, the authority had got no jurisdiction to permit any alteration of that land which was marked for road in the site land.”
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Government issued notification dated 11.04.1997 under Section 10(1) of 1970 Act which was unsuccessfully challenged up to Hon’ble Supreme Court. But subsequently, on the representation of Managements, the notification dated 11.04.1997 issued under Section 10(1) of 1970 Act was rescinded by notification dated 01.08.2001. In the above facts and circumstances, the Division Bench of this Court placing reliance on catena of decisions of the Hon’ble Apex Court at paragraphs 38 and 39, held as follows:
“ 38. From the aforesaid discussion it is clear that Section 21 of the General Clauses Act applies only when in an enactment there is no specific provision providing for what is provided in Section 21 of the Act. In order to find out whether such a provision exists, the scheme of the Act is to be scrutinized. If there is no indication of any such power expressly or by implication then Section 21 of the General Clauses Act has to be read into the said enactment. If an order is passed under a particular statute and if it is given effect to, acted
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upon, consequential further steps are taken in accordance with law, and third party interests are created, then rescinding or revoking such an order, at that stage, would have serious consequences. Then in those circumstances it cannot be said that the power to issue notification includes the power to rescind or revoke. In the absence of a specific provision providing for such recession or revocation and an express or implied bar for such recession or revocation, Section 21 of the General Clauses Act applies, and such a power is to be read into such enactment. Otherwise, the very object of enacting this piece of Legislation becomes redundant. Ultimately the applicability of Section 21 of the Act depends on the scheme of the Act, the nature of power conferred, the object sought to be achieved and the language employed in the said provision. Broadly stated, Section 21 of the Act, applies as a rule, non application is an exception. To exclude the application of the general rule, there must be an exceptional circumstance. Section 21 is based on the principle that power to create includes the power to destroy and also the power to alter what is created. The power to rescind a notification is
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inherent in the power to issue the notification without any limitations or conditions. Section 21 embodies a rule of construction. The nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification. When a power is conferred on an authority to do a particular act, such power can be exercised from time to time and carries with it the power to withdraw, modify, amend or cancel the notifications earlier issued, to be exercised in the like manner and subject to like conditions, if any, attached with the exercise of the power. This legal position is in no way denuded merely because the notification issued under an enactment was the subject matter of a litigation and the validity of such notification has been upheld by a Court.
39. In the instant case, in the earlier round of litigation the notification issued by the Government was challenged. The Government defended the notification and the Government was successful throughout. It is not a case where the notification rescinding the earlier notification is issued because the Government lost the battle in the Court. It is not to undermine the authority
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of law. It is not to invalidate a judgment rendered by the Court. Therefore, the Government which defended the notification earlier, after it reached finality, on a second thought being convinced that the said notification is not in public interest, rescinded the said notification for good reasons. It cannot be said that it had no power to rescind the contract. It is yet another thing to say that the said power is not properly exercised or it is mala fide exercise of power. But, it would not be a case of want of authority to issue such notification. In fact, the Learned Single Judge has rightly held that Section 21 of the General Clauses Act empowers the Government to issue a notification rescinding the earlier notification notwithstanding the fact that the earlier notification was upheld by the Apex Court after challenge. Therefore, in the light of the discussions above and the clear enunciation of law by the Apex Court and this Court in various decisions referred to supra, in the facts of this case, in the scheme of the Act, when there is no specific provision empowering the Government to rescind the notification issued under Section 10(1), the notification issued by the Government under Section 10(1) read with
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Section 21 of the General Clauses Act rescinding the earlier notification issued under Section 10(1) cannot be said to be without the authority of law. As such, the point is held in favour of the employers.”
the above two decisions, I have no hesitation to hold that the power to sanction Layout Plan under Section 32 of 1987 Act includes power to modify the sanction plan.
plan was approved on 15.11.2002. The plan showed 40 x 160 feet road on the western side of the approved layout plan. Apparently, it was for the use of the fourth respondent and it was not shown as public road. Perusal of sanction order dated 15.11.2002 (Annexure-R4-5) would not require relinquishment of road in favour of Local Authority or Planning Authority. The condition required the fourth respondent to maintain park and parking place. The undertaking at Annexure-F cannot be
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considered as relinquishment of road portion, since relinquishment of road could be only by way of registered relinquishment deed. Sub-section (2-A) of Section 17 of 1961 Act makes it clear that on sanction of layout plan, relinquishment could be only by registered relinquishment deed. As there is no condition to relinquish the road portion and as the relinquishment is not by registered relinquishment deed, there is no relinquishment of road portion as contended by the petitioner.
to be considered in terms of Section 32 of 1987 Act. All criteria or conditions applicable to sanction of plan under Section 32 would apply to application for modification of approved plan. Modification also shall be in conformity with the provisions of the Approved Master Plan or guidelines laid down by the State Government. The petitioner initially in the approved plan had showed a
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portion as road and subsequently in the modified plan, the petitioner intended to use the road portion for industrial purpose, which the third respondent approved. It is not the case of the petitioner that the modified plan is contrary to approved master plan or contrary to guidelines approved by the State Government. The fourth respondent has placed on record Davanagere City Master Plan of 2008 and the third respondent failed to show the 40 feet road said to have been reserved in the Master Plan as stated in the affidavit of the Commissioner.
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of respondent No.4. The disputed fact as to whether the petitioner has proper ingress or aggress cannot be gone into under Article 226 of the Constitution of India. It is open for the petitioner to approach Civil Court for appropriate relief.
For the reasons recorded above, the writ petition stands rejected.
Sd/JUDGE
mpk /-* CT:bms
2 issues framed by the court
Whether the authority could modify the sanction plan under Section 32 of the 1987 Act read with Section 21 of the General Clauses Act?
Whether the impugned order modifying the Single Site Industrial Layout Plan requires interference under Article 226?
Colour shows how this judgement treated each authority
K.A. Prabhakar v/s. The Bangalore Development Authority, Bangalore and OthersRelied on¶80
1999 (2) Kar.L.J 555
5 provisions across 4 enactments
Smt. Malati W/o Maruthi Kurdeka
State of Karnataka
Deputy Commissioner Davanagere District
Commissioner Davanagere Urban Development Authority
Smt. Kalpana P
S.G. Pandit
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
