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Mohan Ramappa Jadhav Vs. Special Deputy Commissioner - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberW.P. Nos. 8066/1979 and 1540/1980
Judge
Reported inILR1986KAR3265
ActsUrban land (Ceiling and Regulation) Act, 1976 - Sections 2; Karnataka Town and Country Planning Act, 1961 - Sections 12 and 19
AppellantMohan Ramappa Jadhav
RespondentSpecial Deputy Commissioner
Appellant AdvocateS.S. Ujjannavar, Adv.
Respondent AdvocateN. Santosh Hegde, Adv. General for R-1 and 3 and ;Shivashankar Bhat, Central Govt. Standing Counsel for R-4
DispositionPetition dismissed
Excerpt:
.....to land -- entry in revenue or land records as agricultural does not override user as set out in outline development plan.;question arose for consideration as to : whether the outline development plan can be treated as master plan as defined in ul (c & r) act for the purpose of determining the nature of the land and its extent as 'vacant land' ?;'master plan' as defined in section 2(h) of the ceiling act itself states by whatever name it is called if a plan is prepared in accordance with law in force or pursuant to a government order and providing the stages by which such development shall be carried out that shall be treated as a master plan.;the absence of comprehensive development plan or the master plan, as the case may be, will not avoid the applicability of the provisions of..........approved by the planning authority or directed by state government in this regard. along with the plan, planning authority is required to publish (i) report of the surveys carried out before preparation of such plan ; (ii) report explaining the provisions of such plan ; (iii) regulations in respect of each land use zone to enforce the provisions of such plan and explaining the manner in which necessary permission for developing any land can be obtained from the planning authority ; (iv) a report of the stages by which it is proposed to meet the obligations imposed on the planning authority by such plan ; (v) an approximate estimate of the cost involved in the acquisition of lands reserved for public purposes. an outline development plan thus prepared and sent to government for.....
Judgment:
ORDER

Doddakale Gowda, J.

1. The question involved in these Writ Petitions is as to whether the Outline Development Plan of Hubli-Dharwad Municipal Corporation can be treated as Master Plan as defined in Urban Land (Ceiling and Regulation) Act, 1976 for the purpose of determining the nature of the land and its extent as 'vacant land'.

2. It arises thus :--

Properties bearing R. S. Nos. 56/1, 57/1, 58/1, situate at Unkal village. Hubli Taluk, Dharwad District and lands bearing S. Nos. 5, 6 and 8/1 situate at Ayodya village, Hubli Taluk, Dharwad District belonging to petitioners respectively are situate, undisputedly, within Hubli-Dharwad Urban Agglomeration area. Pursuant to declaration made under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the 'Act') Competent Authority by the impugned orders has determined extent of vacant land exceeding ceiling limit. In the first case the determination made by the Competent Authority has been set aside by the Divisional Commissioner in appeal and matter remitted to Competent Authority for fresh disposal. These lands are specified in Outline Development Plan for non-agricultural purposes i.e., timber depot and residential purposes, etc.

3. Contention of both the petitioners is that lands in question are agricultural lands and there was no necessity for them to file any declaration in respect of their agricultural lands as the same is exempted from the provisions of. the Ceiling Act and declaration given by mistake will not confer jurisdiction on Competent Authority to decide their nature as 'vacant land' in the absence of specification of its user as non-agricultural lands in Master Plan.

4. 'Urban land' is defined to mean any land situate Within the limits of an urban agglomeration whether referred to in the Master Plan or otherwise bat does not include land mainly used for agricultural purposes [Section 2(o)]. 'Vacant land' means any land situate within urban agglomeration area but does not include land on which construction of a building is not permissible in accordance with the building regulations in force; land occupied by building constructed or being constructed on the appointed day with the approval of appropriate authority and land appurtenant to such building ; land occupied by any building constructed or is being constructed on the appointed day where there are no building regulations and agricultural land mainly used for agricultural purposes [Section 2(q)]. Clause 'A' of Explanation introduced for the purpose of both Clauses defines 'agriculture' to include horticulture, but does not include raising of grass, dairy farming, poultry farming, breeding of live-stock and such cultivation or the growing of such plant, as may be prescribed. Clause 'B' of this Explanation states that it shall not be deemed to be used mainly for purpose of agriculture if not entered in the revenue or land records before the appointed day as 'for the purpose of agriculture' and proviso to this sub-clause excludes areas occupied by any building other than farm house and land appurtenant thereto. Clause 'C' of the Explanation which is relevant for the decision of these cases reads thus :--

'Notwithstanding anything contained in Clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture.'

Master Plan in relation to the area within urban agglomeration or any part thereof means the Plan (by whatever name called) prepared under any law for the time being in force or pursuant to the Government Order for the development of such area or part thereof and providing for the stages by which such development shall be carried out.

5. The law in force on the subject is the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as the 'Act'). The object of the Act is to provide for the regulation of planned growth of land use and development and for making and execution of town planning schemes in the State. It intends to create conditions favourable for planning and re-planning of the urban and rural areas in the State with a view to providing full civic and social amenities for the people ; to stop uncontrolled development of land due to land speculation and profiteering in land ; to direct future growth of populated areas in the State, with a view to ensuring desirable standards of environmental health and hygiene and creating facilities for the orderly growth of industry and commerce, thereby promoting generally standards of living in the State; and development plan is prepared to ensure the implementation of planning schemes in proper manner and effective execution.

6. Useful reference may be made to provisions which deal with preparation and enforcement of plans and schemes by Planning Authority.

Planning Authority and the Director of Town Planning are the authorities to implement the Act. Every Planning Authority is required to carry out a survey of the area within its jurisdiction within two years from the date of declaration of the local planning area and prepare and publish an Outline Development Plan for such area. Plan is required to he submitted to Government through Director for provisional approval. Plan is kept for inspection by public at the head office of the Planning Authority (Vide Section 9). As per Sub-section (1) of Section 10, Planning Authority has to make a declaration of its intention to prepare such plan for an area lying within its jurisdiction before carrying out a survey inviting suggestion from public through a notification published in Gazettee. Planning Authority is empowered to make necessary modification in the light of suggestions received within the prescribed period before submitting the plan for final approval. Section 11 confers power to enter upon, survey and mark out such land and do all things necessary for the said purpose after giving notice to owner or occupier.

7. Outline Development Plan consists of particulars mentioned in Section 12. According to Section 12, Outline Development Plan shall generally indicate the manner in which the development and improvement of the entire planning area within its jurisdiction are to be carried out and regulated and in particular it shall include-(a) general land-use plan and zoning of land-use for residential, commercial, industrial, agricultural, recreational, educational and other public purposes ; (b) proposals for roads and highways; (c) proposals for the reservation of land for the purposes of the Union, any State, any local authority and such other proposals for public or other purposes as may be approved by the Planning Authority or directed by State Government in this regard. Along with the plan, Planning Authority is required to publish (i) report of the surveys carried out before preparation of such plan ; (ii) report explaining the provisions of such plan ; (iii) regulations in respect of each land use zone to enforce the provisions of such plan and explaining the manner in which necessary permission for developing any land can be obtained from the Planning Authority ; (iv) a report of the stages by which it is proposed to meet the obligations imposed on the Planning Authority by such plan ; (v) an approximate estimate of the cost involved in the acquisition of lands reserved for public purposes. An Outline Development Plan thus prepared and sent to Government for provisional approval is returned to Planning Authority with or without modification or as may be advised by the Director for Publication of Plan and the particulars inviting public comments within one month from the date of such publication. Planning Authority has to re-submit to Government after considering comments, suggestions received through Director with necessary recommendation for such modification in the plan and the Regulations as it considers necessary in the light of public comments received for final approval. Outline Development Plan and Regulations as approved are published in the Official Gazette. On and from the date of the publication of declaration of its intention to prepare Outline Development Plan every land use, every change in land use and every development in the area covered by the plan shall conform to the provisions of the Act, Outline Development Plan and the Regulations as finally approved by the Government. No change in land use or development shall be made except with written permission of the Planning Authority [vide Section 14(1) and (2).]

Sections 15 to 18 deal with procedure to accord permission for development of building or land, consequences of non-adherence of the plan, obligation to purchase land in case the owner feels that it has become incapable of beneficial use ; sanction for sub division of plot, make or lay out a private street on or after the date of publication of its intention to prepare Outline Development Plan.

8. Section 19 provides for preparation of Comprehensive Development Plan. Comprehensive Development Plan consist of series of maps, documents indicating the manner in which the development and improvement of the entire planning area within its jurisdiction are to be carried out and regulated. Such plan include proposals for the following namely :--

(a) Comprehensive zoning of land use for the planning area, together with zoning regulations ;

(b) Complete street pattern indicating major and minor roads ;

(c) Areas reserved for agriculture, parks, playgrounds and other civic amenities etc.

Procedure adopted for obtaining final approval in respect of Outline Development Plan is followed to obtain approval for Comprehensive Development Plan also. On preparation of Comprehensive Development Plan, Outline Development Plan and Regulations published under Section 13 gets superseded. Sections 14, 15 and 16 apply mutatis mutandis for the enforcement of Comprehensive Development Plan.

9. Having adverted to procedure adopted in preparation and publication of different plans such as Outline Development Plan and Comprehensive Development Plan and their connotation, now proceed to examine the merits of the rival contentions urged.

Contention of Sri Ujjannanavar, learned Counsel for petitioners, is that in the absence of Comprehensive Development Plan specifying these lands for non-agricultural purposes Outline Development Plan in which these lands are demarcated for non-agricultural purposes cannot be treated as a Master Plan for the purpose of deciding whether land is a 'vacant land' or an agricultural land and its extent in case it is a vacant land.

Procedure adopted for preparation and finalisation of both Outline Development Plan and Comprehensive Development Plan is the same as set out above. Perusal of Sections 12 and 21 disclose that contents of Outline Development Plan is more or less the same as in Comprehensive Development Plan except Comprehensive Development Plan consists of technique in more details. Object of these two plans as indicated in these two sections is 'to indicate the manner in which development and improvement of the entire zoning area within its jurisdiction are to be carried out and regulated' -Outline Development Plan generally indicates the manner of development and improvement whereas Comprehensive Development Plan consists of series of maps and documents indicating the manner of development and improvement with more details Both provide for land use, zoning of land use regulated by zoning regulations; cover proposal for net work of roads, proposal for reservation for public or other purposes as may be approved by the Planning Authority or directed by the State Government in this behalf. Section 14 specifically states that on and from the date of declaration of its intention to prepare an Outline Development Plan every land use, every change in land use and every development has to conform to the provisions of the Act, Outline Development Plan and Regulations as approved by the Government. Any change in land use or development can be brought about only with written permission of the Planning Authority. Planning Authority entrusted with the task could think ahead and decide as to the extent of land needed and how it should be utilised to build a new town or city, A report of the stages by which development is carried out is appended to plan published. So also Zonal Regulations are published prescribing mode method of laud use, enforcement of plan and form for obtaining permission for Development of land.

10. As per Rule 41 of the Karnataka Planning Authority (Amendment) Rules, 1977, to prepare Comprehensive Development Plan, Planning Authority has to conduct necessary surveys prescribed in Rule 42 and synthesize the data so collected to the proposals in the Plan and work out proposals for various uses to accommodate the future population expected within the time target of 15 to 20 years. So also Town Planning scheme framed for implementation of the schemes in Chapter V gives more details. If Comprehensive Development Plan is prepared, no doubt, Outline Development Plan gets superseded but till Comprehensive Development Plan is prepared specification mentioned in Outline Development Plan will govern its user. Hence, I find no substance in the contention that till Comprehensive Development Plan is prepared specification mentioned or details of development mentioned in Outline Development Plan cannot be given effect to.

11. Town Planning as the name itself indicates includes both civic design and regional planning; may be scientific and architectural Real improvements could be brought about only with greater planning powers. Object of the Act is to make growing fringes of these towns better places to live, work in and more interesting and beautiful to look at. Act empowers the Planning Authority to see that new areas do not become inconvenient or unattractive as they grew. Outline Development Plan as its contents disclose provide for proposal for land use, zoning of land use for residential, commercial, Industrial, agricultural etc., covers road net work, sitting of public amenities such as schools, playgrounds, open spaces, places for cultural activities, industries, plans for re-housing in new towns around, a report of the stages to meet the obligations imposed on the Planning Authority etc. In other words, it achieves what Master Plan intends to achieve.

'Master plan' as defined in Section 2(h) of the Ceiling Act itself states by whatever name it is called if a plan is prepared in accordance with law in force or pursuant to a Government Order and providing the stages by which such development shall be carried out that shall be treated as a Master Plan.

Supreme Court in Union of India v. Valluri Basavaiah Chouwdhary and Ors., : [1979]3SCR802 stated thus :

12. The existence of a master plan within the meaning of Section 2(h) is, therefore, not a sine qua non for the applicability of the Act to an urban agglomeration.'

12. The absence of Comprehensive Development Plan or the Master Plan, as the case may be, will not avoid the applicability of the provisions of the Act to lands in question.

Undisputedly, these lands are earmarked in Outline Development Plan for residential, industrial and other purposes and at any rate they are not earmarked for agricultural purposes. The fact that the entry in the revenue or land records indicate them as agricultural lands will not overwhelm its user as indicated in Outline Development Plan. It is only to avoid such contention Parliament has taken precaution to include Clause 'C' to Explanation, extracted above, which is to the effect that if such a plan specifies that it is for non-agricultural purposes despite entry in revenue or land records that, it is an agricultural land it shall not be deemed to be used for agricultural purposes.

13. Moreover, petitioners themselves have voluntarily given declaration under Section 6 on the basis of which the Competent Authority has adjudicated the extent of holding exceeding the ceiling limit. The absence of Comprehensive Development Plan or the Master Plan cannot be a ground to contend that by mistake they have given declaration under Section 6.

14. Even otherwise, whether the laud is an agricultural land or a vacant land as in. Section 2(q) is a matter for adjudication by the Competent Authority having regard to the relevant materials and such a finding is subject to an appeal. In view of this, I find no merit in the Writ Petitions.

15. For the reasons stated above, these Writ Petitions are dismissed. Rule discharged.


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