Writ Petition No. 7099 of 2025 · The High Court
Case Details
- 1 - NC: 2025:KHC:13331 WP No. 7099 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE R DEVDAS WRIT PETITION NO. 7099 OF 2025 (LA-BDA) BETWEEN: SRI THIMMEGOWDA S/O.LATE.SRI.MUNIYAPPA, AGED ABOUT 76 YEARS, R/O.NO.55, KENCHANAPURA VILLAGE, KENGERI HOBLI, BENGALURU SOUTH TALUK, BENGALURU URBAN DISTRICT, BENGALURU - 560060. (BY SRI. V.SRINIVAS., ADVOCATE A/W SRI. SUMANTH L BHARADWAJ., ADVOCATE) AND: …PETITIONER Digitally signed by JUANITA THEJESWINI Location: HIGH COURT OF KARNATAKA 1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, M.S.BUILDING, AMBEDKAR VEEDHI, BANGALORE - 560001. 2. THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT, BENGALURU - 560001. 3. THE COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY, BENGALURU-560001. - 2 - NC: 2025:KHC:13331 WP No. 7099 of 2025 4. THE DEPUTY COMMISSIONER, LAND ACQUISITION, BANGALORE DEVELOPMENT AUTHORITY, BENGALURU-560001. 5. THE ASSISTANT DIRECTOR TOWN PLANNING DIVISION, BANGALORE DEVELOPMENT AUTHORITY, BENGALURU-560 001. …RESPONDENTS
Legal Reasoning
(BY SRI. SPOORTHY HEGDE.N., HCGP FOR R1 & R2 SRI. B. VACHAN., ADVOCATE FOR R3 TO R5) THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMUNICATION LETTER DTD 25.01.2025 BEARING NO. BEMAHPRA/NAYOSA/MBC-2805//2386/2024-25 THAT ISSUED BY THE R-5 HEREIN A COPY OF WHICH IS HEREWITH SUBMITTED AS ANNX-A AND DIRECTING THE R-2 TO ALLOW THE APPLICATION FILED BY THE PETITIONER SEEKING CONVERSION OF AGRICULTURE LAND BEARING SURVEY NO. 68/8 MEASURING 35.08 GUNTAS SITUATED AT KENCHNAPURA VILLAGE KENGERE-1 HOBLI BENGALURU SOUTH TAULK BENGALURU URBAN DIST BENGALURU AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC:13331 WP No. 7099 of 2025 CORAM: HON'BLE MR JUSTICE R DEVDAS ORAL ORDER The petitioner had filed an application before the 2nd respondent-Deputy Commissioner, Bengaluru Urban District on 17.01.2025, seeking conversion of 35.08 guntas of land in Sy.No.68/8 of Kenchanapura Village, Kengeri-1 Hobli, Bengaluru South Taluk. However, the Deputy Commissioner sought for the opinion of the Commissioner of Bangalore Development Authority (BDA) as to whether there is any objection on behalf of the authority for conversion of the land. 2. The Assistant Director (Town Planning), BDA has issued the impugned communication dated 25.01.2025 at Annexure-A in response to the opinion sought by the Deputy Commissioner. It is stated in the impugned communication that the authority has forwarded its request on 07.03.2024 to the State Government for acquisition of various lands situated at Kenchanapura Village and therefore, the Deputy Commissioner was - 4 - NC: 2025:KHC:13331 WP No. 7099 of 2025 advised not to entertain the application filed by the petitioner for conversion of the land from agriculture to non-agriculture purposes. 3. In fact, the petitioner has earlier filed a similar application on 19.11.2024 and similar opinion of the BDA was communicated to the Deputy Commissioner on 10.01.2025. The petitioner has filed W.P.No.6234/2025 [W.P.(FR)No.5163/2025] questioning the said communication dated 10.01.2025. However, the said writ petition is still pending consideration. 4. Learned Counsel for the petitioner submits that the Hon’ble Apex Court in the case of T.Vijayalakshmi & Others Vs. Town Planning Member & Another, (2006) 8 SCC 502, has held that right of a person to construct residential houses in residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute, and unless there exists a clear provision, the same cannot be taken away. It is also a trite law that the building plans are required to be dealt - 5 - NC: 2025:KHC:13331 WP No. 7099 of 2025 with in terms of the existing law. Determination of such a question cannot be postponed, far less taken away. Doctrine of legitimate expectation in a case of this nature would have a role to play. 5. Learned Counsel for the respondent-BDA submits that the petitioner himself has stated in the petition that a preliminary notification was issued under Section 17(1) of the Bangalore Development Authority Act, 1976, on 21.05.2008, for formation of the Nadaprabhu Kempegowda Layout. It is also a fact that a portion of the lands in Kenchanapura village has already been acquired as a part of Kempegowda Layout. Final notification was issued in the year 2010 and the layout has been formed. However, the BDA has forwarded the proposal for acquisition of the other lands remaining un-acquired in Kenchanapura village and many other villages for the completion of the Kempegowda layout. That being the position, if the lands are permitted to be converted, it would further cause impediment in the process of - 6 - NC: 2025:KHC:13331 WP No. 7099 of 2025 acquisition of lands for completion of the formation of Kempegowda layout or for its extension. 6. Having heard the learned Counsel for the petitioner, learned Counsel for the respondent-BDA and on perusing the petition papers, this Court is of the considered opinion that the 2nd respondent-Deputy Commissioner could not have sought for such an opinion at the hands of the Commissioner of BDA, at the first place. Every information regarding the acquisition notifications will be available with the Deputy Commissioner. 7. Before proceeding to pass an order of conversion under Section 95 of the Karnataka Land Revenue Act, 1964, the Deputy Commissioner is required to have with him along with the application all such information that are necessary as contemplated in Section 95 of the Act. Clause (ii) of sub-section (2) of Section 95 of the Act, requires the Deputy Commissioner to obtain the opinion of the local authority in cases where the land in question falls - 7 - NC: 2025:KHC:13331 WP No. 7099 of 2025 outside the local planning area for which the Master Plan has not been published. Insofar as the lands falling within the planning area or the Master Plan, in terms of clause (i) sub-section (2), the Deputy Commissioner is required to grant approval or conversion for the purposes for which the land is earmarked in the Master Plan. The opinion of the Survey Department along with the sketch is also contemplated in the provision contained in Section 95. However, no such provision can be found in Section 95 requiring the Deputy Commissioner to seek the opinion of the Commissioner of the BDA or for that matter any other Planning Authority. 8. However, learned AGA would draw the attention of this Court to the format of the application prescribed under Section 95 and more particularly, the Online application, and submits that one of the requirements in terms of the said application would be the recommendations from the Urban Development Department. - 8 - NC: 2025:KHC:13331 WP No. 7099 of 2025 9. If that is the prescription, although it is not found in Section 95, and in that regard, if the opinion has been sought by the Deputy Commissioner at the hands of the Commissioner-BDA, then no fault can be found with the Deputy Commissioner for seeking such an opinion. 10. Nevertheless, having regard to the law laid down by the Hon’ble Supreme Court in the case of T.Vijayalakshmi (supra), it is clear that the right to property of a person would include a right to construct a building. Such a right however, can be restricted by reason of a legislation. The Apex Court has held that the provisions of the Karnataka Town and Country Planning Act and the comprehensive Development plan which prescribes a particular usage of the land having regard to the planned development, there can be no difference of opinion that the competent authority would be bound to ensure the implementation of the provisions of the Act and the Master Plan. However, in the case of T.Vijayalakshmi (supra), the application filed by the - 9 - NC: 2025:KHC:13331 WP No. 7099 of 2025 petitioner therein was rejected on the premise that the property in question falls within the ‘valley zone’ in the proposed comprehensive plan. The Hon’ble Apex Court held that the law applicable as on the date of the application should be implemented. A proposal for any modification in the Master Plan cannot be a ground to reject the application. Therefore, it was held that the rights of the parties cannot be intermeddled with, so long as an appropriate amendment in the legislation is not brought into force. The determination of such a question or consideration of the application cannot be postponed to take away the valuable rights of a party. The Apex Court therefore held, that it is now well settled that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time. Therefore, going by the information provided in the impugned communication, if the BDA had recommended to the State Government on - 10 - NC: 2025:KHC:13331 WP No. 7099 of 2025 07.03.2024, a proposal to acquire the lands in various villages including Kenchanapura Village where the land in question is situated and however, the State Government has not issued any such notification for acquisition, the Deputy Commissioner cannot postpone the decision in the matter of granting permission under Section 95 of the Act. In fact, the prescription in Section 95 is that, in case the Deputy Commissioner fails to give his decision or issue the order within 30 days from the date of receipt of the application, the approval of the diversion for use shall be deemed to have been granted by the Deputy Commissioner and the same shall be certified and issued in such manner as may be prescribed, subject to payment of fee as prescribed under sub-section (7) of the Act. The application has been filed by the petitioner on 17.01.2025. The orders permitting the petitioner should have been passed on or before 15.02.2025. 11. Consequently, the writ petition is allowed. The order of rejection of the application filed by the petitioner - 11 - NC: 2025:KHC:13331 WP No. 7099 of 2025 pursuant to Annexure ‘A’ is hereby quashed and set aside. The second respondent-Deputy Commissioner, Bengaluru Urban District, is hereby directed to pass necessary orders on the application filed by the petitioner seeking conversion, as expeditiously as possible and at any rate within a period of six weeks from the date of receipt of a copy of this order, subject to the petitioner satisfying the other requirements. Ordered accordingly. Sd/- (R DEVDAS) JUDGE DL/JT CT: JL