IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 10TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.7017 OF 2017 (LB-RES) BETWEEN:
SMT. SIMPAL R SHETTY WIFE OF ROHAN SHETTY AGED ABOUT 34 YEARS 704, CASTLE APARTMENT OPPOSITE CANARA CLUB KADRI, MANGALURU–575 002.
…APPELLANT (BY SRI SANATHKUMAR SHETTY K, ADVOCATE) AND:
1. THE COMMISSIONER MANGALURU URBAN DEVELOPMENT AUTHORITY (MUDA) URVA STORES, ASHOKA NAGAR MANGALURU–575 006.
2. THE SECRETARY URBAN DEVELOPMENT DEPARTMENT GOVERNMENT OF KARNATAKA ROOM No.434, VIKAS SOUDHA BENGALURU–560 001.
3. STATE OF KARNATAKA REPRESENTED BY SECRETARY M S REDDY DEPARTMENT OF URBAN DEVELOPMENT DR.AMBEDKAR VEEDHI BENGALURU-560 001.
…RESPONDENTS (BY SRI. HAREESH BHANDARY T, ADVOCATE FOR RESPONDENT No.1-ABSENT SRI. S.S.MAHENDRA, AGA FOR RESPONDENT Nos.2 AND 3) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 23.11.2017 PASSED IN WRIT PETITION No.47449/2017 PASSED BY THE LEARNED SINGLE JUDGE AND ALLOW THIS WRIT APPEAL WITH COST.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 23.11.2017 passed by the learned Single Judge in W.P.No.47449 of 2017, by which the petition was dismissed, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying to quash Annexure-S dated 11.09.2017 issued by respondent No.1 and to allow the application Annexure-B submitted seeking for change of land use for LPG storage godown. The petitioner states that she was selected for appointment of LPG dealership and she was issued with letter of intent in that regard by the Bharat Petroleum Corporation Limited. The petitioner was required to provide godown for the purpose of storage of 8000 Kg LPG filled cylinders which requires 80 sq.meters of area. The petitioner offered Sy.No.43/3P4 situated at Adyar Village which is in agricultural zone. The petitioner made an application to the first respondent Mangaluru Urban Development Authority (for short ‘MUDA’) seeking change of land use for LPG storage godown. She sought permission to construct the godown for LPG storage in the above said land. It is stated that the plot in question has motorable road and it is conducive for setting up LPG storage godown. In the meanwhile, the first respondent-MUDA had issued endorsement dated NIL/08/2016 stating that action would be taken as per Government Circulars while preparing the master plan on the next occasion. The petitioner had challenged the said endorsement before this Court in W.P.No.55104 of 2016. This Court, by order dated 02.11.2016 quashed the said endorsement and ordered to reconsider the application of the petitioner keeping in view Section 14-A of the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as ‘the KTCP Act’ for short) and circular dated 30.06.2016. The petitioner submitted an application for single site approval in respect of the land in question. Thereafter, the first respondent, by following the procedure prescribed under Section 14-A of the KTCP Act, submitted a proposal to the Director of Town Planning. As the respondents had not taken any decision, the petitioner initiated contempt proceedings. Thereafter, the second respondent directed the first respondent to amend the Zonal Regulations, as per the Circular dated 30.06.2016. Subsequently, by communication dated 11.09.2017, the first respondent rejected the application of the petitioner for change of land use on the ground that the land in question has only 05 meters road, whereas the requirement is that they should have 12 meters road and there should be provision for making it 24 meters road which is a requirement for establishment of godown for storage of LPG cylinders. Aggrieved by the said order, the petitioner filed the present writ petition. The learned Single Judge on consideration of the writ petition dismissed the same as devoid of merit. Hence the petitioner preferred this appeal.
3. Heard the learned counsel for the appellant and learned Additional Government Advocate for respondents No.2 and 3.
4. The learned counsel for the appellant would submit that the learned Single Judge dismissed the writ petition without considering the grounds urged by the petitioner. It is contended that this Court in W.P.No.55104 of 2016 directed the first respondent to reconsider the application keeping in view Section 14-A of the KTCP Act 1961. It is her submission that the respondents have failed to consider her application in accordance with the above directions. It is stated that the Government has given approval for consideration of change of land use for LPG storage Unit in agricultural zone. It is stated that the learned Single Judge misinterpreted Section 14-A of the KTCP Act.
5. Per contra, learned Additional Government Advocate supported the order of the learned Single Judge and submits that the change of land use sought is for construction of godown for the purpose of LPG storage, which requires 12 meters road whereas the petitioner land has only 5 meters road. He submits that, in the said circumstances, the learned Single Judge has rightly dismissed the writ petition.
6. The petitioner was selected for LPG dealership by the Bharat Petroleum Corporation Limited. For the said purpose, the petitioner was required to provide godown for storage of LPG filled cylinders requiring 80 sq.meters. The petitioner offered land in Sy.No.43/3 P4 situated in Adyar village for the said purpose, which is in agricultural zone. In that regard, the petitioner made an application to the first respondent on 12.07.2016 seeking conversion of land from agricultural zone to commercial zone for LPG storage and for permission to construct the godown. The petitioner was issued with an endorsement dated Nil/8/2016 stating that her request in accordance with circular would be considered while preparing the next master plan. The petitioner challenged the same before this Court in W.P.No.55104 of 2016. This Court, while setting aside the said endorsement directed the respondents to reconsider the application of the petitioner in accordance with Section 14-A of the KTCP Act and also circular dated 30.06.2016.
7. Section 14-A of the Act provides for change of land use in the circumstances stated therein which reads as follows:
Section 14-A. Change of land use from the Master Plan: (1) At any time after the date on which the Master Plan for an area comes into operation, the Planning Authority may, with the previous approval of the State Government, allow such changes in the land use or development from the Master Plan as may be necessitated by topographical or cartographical or other errors and omissions, or due to failure to fully indicate the details in the plan or changes arising out of the implementation of the proposals in Master Plan or the circumstances prevailing at any particular time, by the enforcement of the plan:
Provided that. – (a) all changes are in public interest;
(b) the changes proposed do not contravene any of the provisions of this Act or any other law governing planning, development of use of land within the local planning area; and (c) the proposal for all such changes are published in one or more daily newspapers, having circulation in the area, inviting objections from the public within a period of not less than fifteen days from the date of publication as may be specified by the Planning Authority.
(2) The provisions of sub-sections (2) and (3) of section 14 shall apply mutatis mutandis to the change in land use or development from the Master Plan.
(3) Notwithstanding anything contrary contained in the Act, if the change in land use or development is from commercial or industrial to residential or from industrial to commercial and the stipulated fee is paid and the Local Planning Authority is informed prior to effecting the change, the permission for such change of land use or development shall be deemed to have been given.”
8. The above provision provides for change of land use where there is topographical or cartographical or other errors; failure to fully indicate the details in the Master Plan; changes arising out of implementation of the proposed master plan and circumstances prevailing at any time by the enforcement of Master Plan. The change in land use sought shall be in public interest and it should not contravene any of the provisions of the Act. In the case on hand, admittedly the land in question is under agricultural zone. The change of land use is from agricultural zone to commercial zone for the purpose of establishing godown for storage of LPG cylinders. The petitioner has submitted the application for single site approval for the said purpose. The Zonal regulation would indicate that the LPG godown shall be situated in commercial zone with 12 meters wide road with provision to extend the same to 24 meters. But, the land of the petitioner for which, change of land use is sought has only 5 meters wide road and there is no provision for widening of the said road. On examination of the petitioner’s request in accordance with Section 14-A of the Act and the Zonal Regulation, the first respondent rejected the request of the petitioner for change of land use. The learned Single Judge by his reasoned order dismissed the writ petition observing that the Zonal Regulation has taken care of public safety and in cases of any accident at the LPG godown, sufficient space must be available for fire brigade, ambulance etc., to move in. The learned Single Judge was also of the opinion that the petitioner cannot claim the benefit of change of land use as a matter of right. On going through the reasoned order passed by the learned Single Judge, we are of the view that the order of the learned Single Judge do not suffer from any perversity or erroneousness so as to call for interference. No good ground is made out to interfere with the order of the learned Single Judge.
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