IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS. 25530-25532 OF 2019 (LB-RES) AND WRIT PETITION NOS. 25866-25878 OF 2019 AND WRIT PETITION NO. 25879 OF 2019 BETWEEN:
1. SRI. M.N. PRIYA DATTA S/O LATE M NARAYANA DAS AGED ABOUT 55 YEARS, R/AT NO.6/67, 47TH CROSS, 8TH BLOCK, JAYANAGAR, BANGALORE-560082.
2. MS M P PRIYANKA D/O M N PRIYA DATTA, AGED ABOUT 25 YEARS, R/AT NO.6/67, 47TH CROSS, 8TH BLOCK, JAYANAGAR, BANGALORE-560082.
3. SRI M P PRAKRUTH S/O M N PRIYA DATTA AGED ABOUT 22 YEARS, R/AT NO 6/67, 47TH CROSS, 8TH BLOCK, JAYANAGAR, BANGALORE-560082.
(BY SRI. V B SHIVAKUMAR, ADVOCATE) AND:
1. STATE OF KARNATAKA, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, VIDHANA SOUDHA, VIDHANA VEEDHI, BANGALORE-560001.
BY ITS SECRETARY.
... PETITIONERS 2. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT VIKASA SOUDHA, VIDHANA VEEDHI, BANGALORE-560001.
BY ITS UNDER SECRETARY.
3. THE MEMBER SECRETARY AND JOINT DIRECTOR KANAKAPURA PLANNING AUHTORITY, KANAKAPURA, KANAKAPURA TALUK, RAMANAGARA DISTRICT-562 2117.
4. THE DEPUTY DIRECTOR KANAKAPURA PLANNING AUTHORITY, KANAKAPURA, KANAKAPURA TALUK, RAMANAGARA DISTRICT-562117.
5. THE ASSISTANT DIRECTOR, KANAKAPURA PLANNING AUTHORITY, KANAKAPURA, KANAKAPURA TALUK, RAMANAGARA DISTRICT-562 117.
6. THE COMMISSIONER B.M.R.D.A. (S.T.R.R.) NO.1 ALI ASKER ROAD, BANGALORE-560052 7. THE MEMBER SECRETARY AND JOINT DIRECTOR B.M.R.D.A. (S.T.R.R.) PLANNING AUTHORITY NO.1 ALI ASKER ROAD, BANGALORE-560052 ... RESPONDENTS (BY SMT. H R ANITHA, HCGP FOR R1 & R2;
SRI. YOGESH NAIK, ADVOCATE FOR R3 TO R7) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 30.05.2019 ISSUED BY THE KANAKAPURA PLANNING AUTHORITY THE R-3 AT ANNEXURE-A; AND ETC., THESE PETITIONS COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners being the owners of the subject agricultural lands are invoking the writ jurisdiction of this Court for assailing the order dated 30.05.2019, a copy whereof is at Annexure-A, whereby the 3rd respondent- Planning Authority has rejected their claim for change of land user u/s.14(A) of the Karnataka Town & Country Act, 1961. After service of notice, the official respondents 1 & 2 are represented by learned Govt. Pleader Smt.Anitha, and the answering respondents 3 to 7 are represented by their panel counsel Sri Yogesh Naik.
2. Learned counsel for the petitioners argues that the impugned order is unsustainable inasmuch as it proceeds on a wrong premise that the subject lands do not have a public approach road which is a precondition for such change being sanctioned; the google map and other evidentiary material undeniably establish that there exists of such a road; this aspect having not been duly considered by the answering respondents, there is error apparent on the face of the record warranting indulgence of this Court, for setting the injustice at naught. He also complains about violation of principles of natural justice.
3. Per contra, learned Govt. Pleader and the learned Panel Counsel contend that there is absolutely no material to show that there exists a public approach road which is a pre-condition for favouring the request for change of land user in terms of the Guidelines dated 12.10.2012 promulgated by the Government at Annexure-R2 to their Statement of Objections; the Panel Counsel draws attention of this Court to and stresses on the text of para 10 therein; so contending they seek dismissal of the writ petitions.
4. Having heard the learned counsel for the parties and having perused the petition papers, reprieve needs to be granted to the petitioners for the following reasons:
(a) whether there exists an approach road, or not, is a matter to be ascertained with the aid of Report to be submitted by the jurisdictional Tahsildar who is in a better position to state; the decision of the answering respondent that there does not exist a public approach road, is taken unilaterally in the sense the same was not put to the petitioners before arriving at a conclusion; thus there is a violation of principles of natural justice as rightly contended by the petitioners;
(b) Para 10 of the Guidelines for Change of Land Use dated 12.10.2012 reads as under:
“10. Only properties having approach from existing public road (NH/SH/MDR or roads belonging to local bodies) shall be submitted to Govt. In addition, if adequate access is provided to an arterial road, such cases also may be submitted to Government”.
The first part of this paragraph, true it is, speaks of a public approach road; however, the 2nd part obviously mentions of “an adequate access to an arterial road” and thus it is in the nature of an exception to the first part of the paragraph; this aspect also having not been adverted to by the answering respondents, there is an error of law apparent on the face of the record; and, (c) the justice of the case requires that the impugned order be quashed and matter be remitted for fresh consideration after obtaining a report from the jurisdictional Tahsildar as to the existence of the road, as pleaded by the petitioners; it hardly needs to be stated that the petitioners and the answering respondents shall be permitted to participate in the exercise to be undertaken by the jurisdictional Tahsildar, in a time bound way; and, (d) the other reasons on which the impugned order is founded, are unsustainable since they do not stand a bare legal scrutiny.
In the above circumstances, these writ petitions succeed; the impugned orders are set at naught; the matter is remitted to the answering respondents for consideration afresh after obtaining the report from the jurisdictional Tahsildar as to the existence of adequate access to the arterial road or a public approach road.
The entire exercise shall be accomplished within a period of three months. All contentions of the parties are kept open.
Sd/- JUDGE Snb/