TMI Blog2006 (2) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... e condition that the same would be exclusively used for residential purpose only. The Respondent No. 6 purchased the said premises from the said K.V. Ramachandra by a registered deed of sale dated 24.08.1998. He intended to convert the land use from residential to commercial wherefor an application was made before the BDA. The said application was treated to be one under Section 14-A of the Act. The Jayanagar 5th Block Residents' Welfare Association filed its objections thereto on 27.03.1999. It, however, later on issued a no objection certificate, stating : The Association has no objection for conversion of the site for commercial purpose for the use of a vegetarian restaurant. The premises is a corner site and you must arrange separate parking without obstructing the movement of vehicles. Inspections of the plot in question by two senior officers of BDA were made thereafter. Upon completion of the requisite formalities, sanction for change of land use was issued on or about 07.10.1999. Pursuant to the order of sanction granted by the State of Karnataka, the BDA issued a confirmatory letter dated 10.12.1999 subject to the condition of obtaining necessary building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) Declare that the proceedings of the Standing Committee Dt. 16.03.2002 in subject No. Aa. Stha. Sa(Aa) 798-01-02 (produced as Annexure N ) to the extent the said proceedings grants renewal of hotel licence in favour of Respondent No.6 as null void and beyond the competence of the Standing Committee; 4) Issue a writ in the nature of mandamus directing the Respondents 1 to 5 to take immediate steps to prevent Respondent No.6 from using the premises No.585, 10th Main Road, V Block, Jayanagar, Bangalore for running a hotel and to ensure that the said premises is used only for residential purposes; In his counter affidavit, the Respondent No.6 herein, inter alia, contended that the Residential Welfare Association, gave its consent by letter dated 13.04.1999 for change of user of the property and for establishing a vegetarian restaurant at Plot No.585. The High Court dismissed the writ petition filed by the Appellants herein holding, inter alia,: (i) when objections were called for, wherefor notices were published in several newspapers, only Jayanagar 5th Block Residents' Welfare Association filed an objection and later on withdrew the same; (ii) the BDA in its resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld to be excluded by Section 14-A of the Act. The learned counsel urged that Section 14-A interdicts the application of Section 14 in relation to change in the land user; as prior to Section 14-A, no power was vested in the BDA for grant of such permission in the change of Master Plan, and, thus, the same is required to conform to the provisions thereto. However, in view of the fact that the procedures have been followed in granting such permission upon taking into consideration the reports submitted by the two senior officers, even if any error has been committed, this Court should not exercise its discretionary jurisdiction under Article 136 of the Constitution of India. STATUTORY PROVISIONS: The Act was enacted to consolidate and amend the law relating to town planning, some of the relevant provisions of the Act are as under : 2. In this Act, as it then stood, unless the context otherwise requires,- (1-c) Development with its grammatical variations, means the carrying out of building, engineering, mining, or other operations in, on, over or under land or the making of any material change in any building or land, or in the use of any building or land and includes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed areas; (c) proposals for the reservation of land for the purposes of the Union, any State, any local authority or any other authority established by law in India; (d) proposals for declaring certain areas as areas of special control, development in such areas being subject to such regulations as may be made in regard to building line, height of buildings, floor area ratio, architectural features and such other particulars as may be prescribed; (e) such other proposal for public or other purposes as may from time to time be approved by the Planning Authority or directed by the State Government in this behalf. Explanation.- Building line means the line up to which the plinth of a building adjoining a street may lawfully extend and includes the lines prescribed, if any, in any scheme. (2) The following particulars shall be published and sent to the State Government through the Director along with the Outline Development Plan, namely :- (i) a report of the surveys carried out by the Planning Authority before the preparation of such plan; (ii) a report explaining the provisions of such plan; (iii) regulations in respect of each land use zone to enforce the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. in either of the aforementioned categories. Schedule I thereof sets out a list of service industries that are permissible in Residential Zone (as a part of Residential building)/Retails Business Zone. The Regulations framed were approved by the Government under Section 13(1) of the Act. ANALYSIS OF THE STATUTORY PROVISIONS: The Act prior to coming into force of Section 14-A of the Act contained two provisions for enabling change in land use. The definition of 'land use' indisputably will have to be read with the Zoning Regulations. Section 14(1), as it then stood, of the Act provided that every change in land use and every development in the area covered by the Plan subject to Section 14A shall conform to the provisions of the Act. Section 14(2), however, provides that no such change in land use or development shall be made except with the written permission of the Planning Authority which shall be contained in a commencement certificate in the form prescribed. Section 15 provides for the procedure required to be followed where the Planning Authority is required to pass an order in terms of Section 14 of the Act. So far as changes of land use or development fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for which no prior permission is required and the changes which are permissible upon obtaining the requisite sanction therefor. CHANGES OF USER: We have noticed hereinbefore that so far as running of a hotel in a residential zone is concerned, having regard to the Zoning Regulations, the same is not permissible. The Zoning Regulations provide for use of land that are permitted and may be permitted under special circumstances by the authority in the local planning area of Bangalore. Thus, even for the purpose of invoking clause (b) of the Regulations affecting residential zone must be referable to the special circumstances which were obtaining. We may, at this stage take note of explanation appended to Section 15. In terms of the said explanation, the power to grant necessary permission under Section 15 for a change of user of land would include the power to grant permission for retention on land of any building or work constructed or carried out thereon before the date of the publication of the declaration of intention to prepare an Outline Development Plan under sub-section (1) of Section 10 or for the continuance of any use of land instituted before the said date. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., residential, commercial or industrial or any other purpose. In the present case the same had been shown to be residential although on 19.9.1979 the nature of the land-use was allowed to be changed to commercial for construction of a shop. Section 14(2) requires that change in the land-use or development referred to in sub- section (1) thereof shall be made only with the permission of the Planning Authority. The expression 'development' in this context means the same as defined in Section 2(1c) of the Act referred to earlier. Inasmuch as in the present case there is no dispute as to the change of land-use permitted on 19.9.1979 the question to be considered now is whether the first respondent could have utilized the land for the purpose of construction of a restaurant and a lodging house by altering the building from a shop and an office premises and by putting up additional floors. The concept of development provided in the explanation to sub-section (2) of Section 14 does not refer to every change but refers only to building activity carried on or any material change in the use of building and other land. Therefore, attention will have to be revetted and confined to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the six categories of land have been distinctly delineated therein. Each category of the lands, however, contains several sub-categories. Change of user from one sub-category to another within the category is permitted in terms of regulations. Plot No.585 where the Respondent No.6 is running a restaurant is indisputably within a residential zone and abutting a park. The order issued by the State of Karnataka dated 11.10.1999 reads as under : After considering the proposal under Section 14A(1)(a) of the Karnataka Urban Rural Planning Act, 1961, the Government has accorded permission for conversion of the land area measuring 2275 sft. Site No.585, 5th Block, 10th Main, Jayanagar, Bangalore from residential purposes to commercial (restaturant/complex) purposes, subject to the following conditions. 1) The revised land conversion charges shall be obtained by the Authority. 2) To make suitable conversion as required under Intensive Development Plan. 3) Conditions imposed by the Authority. The Respondent No.6, the Development Authority and the State of Karnataka, therefore, understood in no uncertain terms that the change in the land use from residential purpose to com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re required to be dealt with by the said Authority did not receive serious consideration. JUDICIAL REVIEW: It is now well-known that the concept of error of law includes the giving of reasons that are bad in law or (where there is a duty to give reason) inconsistent, unintelligible or substantially inadequate. [See De Smith's Judicial Review of Administrative Action, 5th Edn. p. 286] The Authority, therefore, posed unto itself a wrong question. What, therefore, was necessary to be considered by the BDA was whether the ingredients contained in Section 14-A of the Act were fulfilled and whether the requirements of the proviso appended thereto are satisfied. If the same had not been satisfied, the requirements of the law must be held to have not been satisfied. If there had been no proper application of mind as regard the requirements of law, the State and the Planning Authority must be held to have misdirected themselves in law which would vitiate the impugned judgment. In Hindustan Petroleum Corpn Ltd. v. Darius Shapur Chenai Ors. [(2005) 7 SCC 627 = 2005 (7) SCALE 386], this Court referring to Cholan Roadways Ltd. v. G. Thirugnanasambandam [(2005) 3 SCC 241], held : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act contemplates an order by the State. Such an order must conform to the provisions of Article 166 of the Constitution of India. It was further observed : Directions issued by the Chief Minister in the present case would not be to carry out the purpose of the Act rather it would be to destroy the same. Such a direction would not have the sanctity of law. Directions to release the lands would be opposed to the statute as the purpose of the Act and object of constituting the BDA is for the development of the city and improve the lives of the persons living therein. The authority vested with the power has to act reasonably and rationally and in accordance with law to carry out the legislative intent and not to destroy it. Direction issued by the Chief Minister run counter to and are destructive of the purpose for which the BDA was created. It is opposed to the object of the Act and therefore, bad in law CONCLUSION: We are for the foregoing reasons unable to accept the submission of Mr. Javali that the Act provides for two different schemes, one contained in Sections 14 and 15 and another under Section 14-A of the Act. We are of the opinion that both the provisions are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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