Sri Ravishankar C Sarnaik vs State Of Karnataka
2023 Latest Caselaw 6425 Kant

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                                                           NC: 2023:KHC:32972
                                                         WP No. 27586 of 2014




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 11TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                          THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ

                          WRIT PETITION NO. 27586 OF 2014 (LB-RES)

                   BETWEEN:

                   1.    SRI RAVISHANKAR C. SARNAIK
                         S/O C S SARNAIK
                         AGED ABOUT 66 YEARS
                         R/AT NO.217, STERLING ARCHERS
                         FLAT NO.101, 5TH CROSS
                         C V RAMAN ROAD,
                         RMV 1ST STAGE
                         BANGALORE 560 094
                                                                 ...PETITIONER
                   (BY SRI. BIPIN HEGDE., ADVOCATE)
                   AND:

                   1.    STATE OF KARNATAKA
Digitally signed
by                       REPRESENTED BY ITS SECRETARY
NARAYANAPPA              DEPT OF URBAN DEVELOPMENT
LAKSHMAMMA               M S BUILDING
Location: HIGH           BANGALORE 560001.
COURT OF
KARNATAKA          2.    THE JOINT DIRECTOR & MEMBER SECRETARY
                         BANGALORE INTERNATIONAL AIRPORT AREA
                         PLANNING AUTHORITY
                         NO.333/1, V J COMPLEX
                         1ST FLOOR, SHANTHINAGAR
                         SULIBELE ROAD, DEVANAHALLI TALUK
                         BANGALORE RURAL DISTRICT 562 110.
                                                            ...RESPONDENTS
                   (BY SMT. SARITA KULKARNI, HCGP FOR R1;
                   SRI YOGESH D. NAIK, ADVOCATE FOR R2)
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                                              NC: 2023:KHC:32972
                                           WP No. 27586 of 2014




     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 29.4.2013 PASSED BY THE R-2
REJECTING    THE   PETITIONER'S   APPLICATION   FOR
ENHANCEMENT OF THE RESIDENTIAL SITAL AREA FROM 50%
TO 55% VIDE ANNEX-E ETC.

     THIS WRIT PETITION COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 22.08.2023, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:

                            ORDER

1. The petitioner is before this Court seeking for the

following reliefs:

i. Issue a Writ in nature of Certiorari quashing the order dated 29.4.2013 bearing No. BIAAPA/TP/ALAO/111/507 passed by the 2nd respondent rejecting the petitioners application for enhancement of the residential sital area from 50% to 55% vide Annexure-E

ii. Issue a writ in the nature of mandamus directing the 2nd respondent to issue a revised/modified layout plan already submitted by the petitioner increasing the residential sital area from 50% to 55% by considering the representations at Annexure-F & G dated 25.3.2013 and 22.02.2014

iii. Issue such other writ or pass such other orders as this Hon'ble Court deems fit and proper in the circumstances of the case in the interest of justice and equity.

2. The petitioner was the owner of the land covered

under Sy.No.128/2, 127 and 18/2 of

Navarathnaagrahara Village, Jalahobli, Bangalore

NC: 2023:KHC:32972 WP No. 27586 of 2014

North Taluk measuring 21 acres 23 guntas. The

petitioner, after obtaining conversion of the said

land, obtained a sanction for formation of the

residential layout by subdivision of the said land from

respondent No.2.

3. At the said time of sanction, the petitioner has also

executed a Relinquishment Deed in respect of parks

and open spaces prescribed in the said layout. The

petitioner has earmarked 49.99% for residential

purposes, 30.13% for roads and another 19.88% for

the purpose of parks and playgrounds. Contending

that the Rules permitting 55% for development of

residential plots and balance 45% for the purpose of

road and civic amenities, the petitioner made an

application for modification of earlier plan seeking

permission to make use of 5% of the area reserved

for parks and playgrounds for the purpose of

formation of residential sites and sale thereof, which

came to be rejected by respondent No.2 and it is in

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that background, the petitioner is before this Court

seeking for the aforesaid reliefs.

4. Sri.Bipin Hegde, learned counsel for the petitioner,

would submit that:

4.1. Even at the time when the petitioner has

submitted the application for layout plan

sanction, the petitioner was entitled to 55% for

residential plots. Even as on the date on which

the petitioner has submitted his plan for

approval, the petitioner was entitled for 55% of

residential development.

4.2. By inadvertence the petitioner relying on the

earlier law applicable prior to 06.06.2006 had

submitted a plan detailing out 49.99% for

residential development and the balance for

roads, parks and civic amenities and as such,

the entitlement of the petitioner being

recognized under law even as on the date on

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which the application was filed, the subsequent

modification being in accordance with such

entitlement ought to have been permitted by

respondent No.2 and it is on that basis that he

submits that the endorsement issued by

respondent No.2 needs to be quashed and the

directions be issued to respondent No.2 to

reconsider the request made by the petitioner.

5. Sri.Yogesh D.Naik, learned counsel for respondent

No.2 would submit that:

5.1. On the plan having been sanctioned, the

petitioner has formed the layout and already

sold more than 100 sites to third parties. The

area marked as parks and civic amenities to an

extent of 19.88% has already been relinquished

in favour of respondent No.2.

5.2. The area demarcated for road will be used for

formation of the road and in the event of the

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petitioner's request for modification being

allowed, then the extent of land relinquished

towards parks and playgrounds would have to

be transferred back to the petitioner, which is

not permissible since at present respondent

No.2 is not the owner thereof.

5.3. In this regard, he relies upon a Circular dated

30.07.2007 issued by the Urban Development

Department which had clarified that any

modification of a plan already submitted can

only be considered prior to relinquishment of

parks and open spaces and not thereafter.

5.4. He further relies upon the decision of the

Hon'ble Apex Court in the case of Madhya

Pradesh Housing and Infrastructure

Development Board and anr. vs. Vijay

Bodana and ors.1 more particularly Paras 5

AIR 2020 SC 2163

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and 7 thereof which are reproduced hereunder

for easy reference:

5. The impugned judgment allows the writ petition, which was preferred by the first and second respondents after nearly seven years in 2015, inter alia holding that the Adhiniyam stands enacted with the object to prevent unplanned and haphazard development and that layout plans for residential schemes are prepared to provide for open spaces for various purposes like roads, gardens, playgrounds and facilities like schools, hospitals, community centres, shopping complex etc. Developers like the appellant- board charge extra money for plots at preferential locations adjacent to or facing public amenities such as parks, roads, water body, shopping complex, etc. The allottees accordingly pay extra/higher charges at the time of purchase with an expectation to avail and enjoy the advantages of such amenities. Therefore, the developer cannot be permitted to change the status of land to 'deceive' the allottees. Applying the principle of promissory estoppel, it has been held that the appellant-board must develop the land according to the original plan shown to the allottees at the time of purchase. Further, Ujjain Municipal Corporation was not heard and had no opportunity to represent the case as to the change in the layout plan.

7. On facts and justification for change of land use from commercial to residential, the impugned judgment ignores and glances over the earlier position that the area was earmarked for development and for construction of a shopping complex with 131 shops and not earmarked as an open area, park or playground. It notices the contention of the appellant-board that as per Rule 49 of the Madhya Pradesh Bhumi Vikas Rules, 1984, the area required to be earmarked for commercial

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purposes is 0.4 hectares whereas the area reserved in the original layout plan was 1.52 hectares. It is an undisputed position the land earmarked for the shopping complex had not found demand and takers despite efforts. The area was lying idle for more than 20 years, albeit more than 150 shops had already come up in the residential area. As per the appellant- board, construction of 131 shops would have caused congestion and would have adversely impacted the density of people living and using the area. We have highlighted these aspects and facts which are vastly distinct, for the courts normally frown upon, adversely comment and do strike down changes in the land use from residential to commercial or industrial use for obvious reasons.

5.5. By relying on the above, he submits that the

purchaser of nearly 100 sites have purchased

the same on the basis of the representation

held out that there would be a certain extent of

land earmarked for parks and open spaces as

also play grounds and as such, their interest

would be adversely affected if any modification

is made. The plan having been sanctioned in

the year 2007, the application having been

made by the petitioner in the year 2013 and

there being a delay, the same was rejected.

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6. In reply, Sri.Bipin Hegde, learned counsel for the

petitioner would submit that Circular dated

30.07.2007 cannot override the provision of

Karnataka Town and Country Planning Act, 1961 (for

short, 'KTCP Act Act') inasmuch as there is no

embargo on modification of the plan once sanctioned

under Section 17 of KTCP Act.

7. In this regard, he also relies upon the decision of

Hon'ble Apex Court in the case of Commissioner of

Central Excise, Bolpur vs. M/s.Ratan Melting

and Wire Industries2 more particularly Para 6

thereof which is reproduced hereunder for easy

reference:-

6. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State

2008 AIR SCW 7963

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Government are concerned they represent merely their understanding of the statutory provisions.

They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law.

8. Heard Sri.Bipin Hegde, learned counsel for the

petitioner, Smt.Sarita Kulkarni, learned HCGP for

respondent No.1 and Sri.Yogesh D.Naik, learned

counsel for respondent No.2 and perused the papers.

9. A short question which would arise for consideration

by this Court is whether a developer of a layout can

be permitted to seek for modification of the plan

after relinquishment of parks and open spaces and

sale of residential sites to third parties?

10. The initial application for sanction of layout plan was

made in the year 2007. The relinquishment deed

came to be executed on 24.12.2007. On 27.02.2008

vide Government Circular dated 26.05.2005, BIAAPA

ordered for 60% of the sites to be released to the

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petitioner as per which 76 sites were released. The

remaining 40% of the sites were to be released after

the petitioner completed the requisite works for the

layout. The contention of Sri.Bipin Hegde, learned

counsel for the petitioner is that even in the year

2007, the petitioner was entitled to 55% of sital

area. However, by mistake, the petitioner had

submitted a plan showing nearly 49.99% for

residential purpose and the balance reserved for

roads, parks and playgrounds. His submission is that

even on the date on which the layout plan sanction

was sought for, the petitioner could have submitted a

plan earmarking 55% for residential purpose and

balance 45% for roads, parks and playgrounds. It is

on that basis he contends that the application filed

by the petitioner in the year 2013 for modification

ought to have been allowed.

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11. Section 17 of the Karnataka Town and Country

Planning Act as it stood in the year 2007 is

reproduced hereunder for easy reference:

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 Master 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 Master Plan.

(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 sub-section (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

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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.

12. A perusal of the above would indicate that whoever

intends to subdivide his plot or make a layout shall

submit a layout plan together with the prescribed

particulars to the Planning Authority for sanction in

terms of sub-Section (1) of Section 17 of KTCP Act.

One of the conditions for said sanction is

relinquishment of the area demarcated for roads,

parks, civic amenities and playgrounds. Thus, on an

application having been made by the petitioner,

respondent No.2 - BIAAPA had sanctioned a layout

plan after the relinquishment deed was executed.

The relinquishment deed being executed on

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24.12.2007, plan was sanctioned on 26.12.2007.

Thus, it is on the basis of the execution of the

relinquishment deed that the petitioner derives the

benefit of the sanction of the layout plan.

13. It is in pursuance of the same that 76 sites were

released and sold to third parties. The layout having

been completed, the balance sites were also released

and sold to third parties. It is only thereafter, in the

year 2013, an application has been made for

modification.

14. I am of the considered view that when third party

rights have been created on the sites formed in the

said layout and the purchasers having been in

possession of the said sites, they having purchased

the property on the basis of layout plan sanction

which indicated the area reserved for parks, open

spaces, civic amenities, playgrounds etc., the

petitioner cannot unilaterally after such sale seek for

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modification to reduce the area denoted for such

amenities which enure to the benefit of the

purchasers. In the event of the request of the

petitioner being accepted then the area reserved for

amenities as aforesaid would stand reduced

impacting such purchasers.

15. An option was given to the petitioner on 27.02.2023

for the petitioner to implead the purchasers or to

produce 'no objection' from the said purchasers for

modification of the plan. Subsequently, no action

was taken to either implead the said purchasers nor

has 'no objection' being produced. During the course

of the arguments, when on enquiry, learned counsel

for the petitioner submits that the petitioner is

unable to secure 'no objection' from the said

purchasers.

16. In view of the above and the fact that the purchasers

would be the persons who would be adversely

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affected by any modification of the plan by reducing

the area reserved for amenities, I am of the

considered opinion that the petitioner - developer

cannot unilaterally seek for such modification and

apart from the reasons mentioned by respondent

No.2 in its letter dated 29.04.2013, for the reasons

above mentioned, the rejection for modification is

proper and valid. No grounds having been made out

in the present petition, I pass the following:

ORDER

i. The Writ Petition stands dismissed.

Sd/-

JUDGE

PRS