S.N. Chandrashekar
And Anr Vs. State of Karnataka & Ors [2006] Insc 57 (2 February 2006)
S.B.
Sinha & P.K. Balasubramanyan
[Arising
out of SLP (Civil) No.23815 of 2004] S.B. SINHA , J :
Leave
granted.
The
State of Karnataka enacted the Karnataka Town and Country Planning Act, 1961 (for short, 'the Act'). The
Bangalore Development Authority (for short, 'the BDA') had been constituted
under the said Act. A Comprehensive Development Plan was prepared by the BDA.
In Jayanagar which is a residential area in the town of Bangalore, allotment of houses had been made
to individuals for residential purpose only in terms of the said development
plan. Whereas the Appellants were allotted houses bearing nos. 282D and 281D,
one K.V. Ramachandra was allotted Plot No.585. A deed of sale was executed in
his favour on 10.12.1994, inter alia, on the 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 plan approved by the Corporation and providing for parking of vehicles
in the building.
An
objection was raised by the residents of the locality when the said respondent
started a restaurant without obtaining any licence therefor. An application for
grant of licence was submitted by the Respondent No.6 on 17.01.2000. The
Corporation informed the Respondent No.6 that his application would be
considered only upon completion of construction of the building. However, he
made another application on 25.02.2000 for grant of licence. He also filed a
writ application before the Karnataka High Court, marked as W.P. No.11139 of
2000 wherein the Corporation was directed to consider his application for grant
of licence within six weeks. A building licence was granted in his favour on 12.05.2000
and a modified plan was sanctioned on 19.08.2000. He was granted a licence to
run the restaurant till 31.03.2000.
Questioning
the legality and/or validity of the said notification dated 04.08.1999, some of
the residents of the locality filed a public interest litigation being Writ
Petition No.9078 of 2001. In the meanwhile a notice was issued to the
Respondent No. 6 by the Corporation as to why, deviation having been made from
the sanctioned plan, the same should not be directed to be removed. As the
Respondent No.6 failed to remove the deviated portions, the Corporation by its
notice dated 06.01.2002 authorized the Executive Engineer to give effect to the
confirmatory order passed by it by removing the deviated portions. The
Respondent No.6 thereupon approached the Standing Committee by way of appeal whereafter
his hotel licence was renewed. As running of hotel allegedly caused nuisance, a
representation was made by the Ladies Association of the locality on
12.01.2002. A further representation was made on 19.01.2002 by the general
public.
As no
response was made in relation thereto, the Appellants herein filed a writ
petition before the Karnataka High Court, inter alia, praying for the following
relief's :
-
"Issue a writ in the nature of
mandamus or certiorari quashing Order No. UDD 194 BDA 99 Dt. 07.10.1999 passed
by the Under Secretary to Government (Annexure-D);
-
Issue a writ in the nature of
mandamus or certiorari quashing the confirmatory letter No.BDA/DUP/1349/99-2000
Dt. 10.12.1999 (Annexure "E") issued by the Bangalore Development
Authority;
-
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;
-
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,:
-
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;
-
the BDA in its
resolution dated 29.06.1999 held that conversion was in public interest and
permitted the conversion of use from dwelling to commercial (restaurant);
-
as the
Appellants did not file any objection, they were not entitled to any relief;
and
-
number of permissions by the planning authorities had been accorded for change
of land use by invoking Section 14-A of the Act and, thus, there was no reason,
why such permission should not be granted to the Respondent No.1.
Mr.
U.U. Lalit, learned Senior Counsel appearing on behalf of the Appellants,
contended that having regard to the fact that Section 14-A was specifically
introduced in the year 1991, the State of Karnataka as also the BDA acted
illegally and without jurisdiction in granting such permission as the
conditions precedent laid down therefor had not been fulfilled. It was
submitted that while granting such permission, the basic issue that such change
of land use is impermissible in law had not been taken into consideration and
the impugned order was passed upon taking into consideration irrelevant factors
and without considering the relevant ones.
Mr.
S.S. Javali, learned Senior Counsel appearing on behalf of the Respondent No.
6, on the other hand, submitted :
-
From various
provisions of the Act, it would appear that Sections 14 and 15 thereof provide
for a separate scheme which is not governed by Section 14-A of the Act.
-
As in terms of
Sections 14 and 15 of the Act, the power as regard change in user vests in the
Planning Authority, it was not necessary to invoke Section 14-A of the Act.
-
If the
provisions of Section 14-A in a case of this nature is applied, Sections 14(2)
and 15(2) would become otiose.
-
Having regard to
the fact that the Association had given its consent, constructions were
permitted to start a vegetarian restaurant by the Respondent No.6 and the said
restaurant has been running for a period of more than three years; and
-
as the other
persons similarly situated are operating in the area and as the Appellants or
any other person had not taken any objection thereto, it is not a fit case
where this Court should exercise its discretionary jurisdiction under Article
136 of the Constitution of India.
Mr.
S.K. Kulkarni, learned counsel appearing for the BDA, would submit that Section
14, which provides for a prohibitory clause as regard change of user, must be
held 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 sub-division of any land;
(1-d)
"Development plan" means Outline Development Plan or Comprehensive
Development Plan prepared under this Act
-
"Land" includes benefits
arising out of land and things attached to the earth or permanently fastened to
anything attached to the earth;
-
"Land use" means the major
use to which a plot of land is being used on any specified date;
-
"Owner" includes any
person for the time being receiving or entitled to receive, whether on his own
account or as agent, trustee, guardian, manager, or receiver for another
person, or for any religious or charitable purpose, the rents or profits of the
property in connection with which it is used;
-
"Planning Authority"
means, -
-
in the case of
-
the local
planning area comprising the City of Bangalore, the Bangalore Development Authority, and (i-a) the local planning area
comprising any urban area" defined in the Karnataka Urban Development
Authorities Act, 1987, the Urban Development Authority of such urban area
-
any other local
planning area in respect of which the State Government may deem it expedient to
constitute a separate Planning Authority, the Planning Authority constituted
under this Act, (b) in the case of local planning area in respect of which a
Planning Authority is not constituted under this Act, the Town Improvement
Board constituted under any law for the time being in force having jurisdiction
over such local planning area, and where there is no such Town Improvement
Board, the local authority having jurisdiction over such local planning area;
-
"Plot" mean a continuous
portion of land held in one ownership;
Section
12 of the Act, as it then stood, which has since been substituted by Act 1 of
2005, dealt with the contents of Outline Development Plan in the following terms
:
"12.
Contents of Outline Development Plan.-
-
An Outline Development Plan shall generally
indicate the manner in which the development and improvement of the entire
planning area within the jurisdiction of the Planning Authority are to be
carried out and regulated.
In
particular it shall include, -
-
general land use
plan and zoning of land use for residential, commercial, industrial,
agricultural, recreational, educational and other public purposes;
-
proposals for
road and highways; and widening of such roads and highways in congested areas;
-
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;
-
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;
-
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.
-
The following particulars shall be
published and sent to the State Government through the Director along with the
Outline Development Plan, namely :-
-
a report of the
surveys carried out by the Planning Authority before the preparation of such
plan;
-
a report
explaining the provisions of such plan;
-
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;
-
a report of the
stages by which it is proposed to meet the obligations imposed on the Planning
Authority by such plan;
-
an approximate
estimate of the cost involved in the acquisition of lands reserved for public
purposes." Chapter III of the Act deals with preparation of Outline
Development Plan.(now styled as preparation of Master Plan) Chapter IV deals
with the Comprehensive Development Plan (now styled as "Enforcement of
Master Plan"). Outline Development Plan is a one time plan. It could be
superseded under Section 23 of the Act (since repealed). Once the Comprehensive
Development Plan has been prepared for any area, Section 25 (as it then
existed) provided for revision of the Comprehensive Development Plan in every
ten years.
Section
14-A of the Act provides for change of land use from the Outline Development
Plan. Section 14(1) thereof, as it then stood, provided that 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 change in the
land use or development shall be made except with the written permission of the
Planning Authority which shall be contained in the commencement certificate
granted by the Planning Authority in the form prescribed.
It is
furthermore not in dispute that the first Comprehensive Development Plan was
prepared in the year 1984, whereas the second Comprehensive Development Plan
was prepared in the year 1995. The change contemplated thereby is only from one
category of land use to another. The land use indisputably is categorized into
six categories, details whereof would be noticed later.
Sub-section
(2) of Section 15 of the Act, which provides for a deemed grant, refers only to
the change of permitted category. It is furthermore not in dispute that by a
notification dated 05.01.1995, the Comprehensive Development Plan was notified
providing for Zoning of Land Use and Regulations of the BDA. Under the heading
"Residential Zone", two sub clauses were made, viz.
-
uses that are
permissible;
-
uses that are
permissible under special circumstances by the Authority.
Restaurant
does not come within the purview of Annexure II of the said Zoning Regulations
i.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 from the Outline Development Plan is
concerned, the same would be subject to the procedure laid down in Section 14-A
of the Act. Outline Development Plan being a one time Plan, evidently
sub-section (2) of Section 14 had no application. It is only for that purpose
Section 14-A had to be introduced. Section 14-A categorically states that
change in the land use or development from the Outline Development Plan must be
necessitated by :
-
topographical or
cartographical or other errors and omissions;
-
due to failure
to fully indicate the details in the Plan or changes arising out of the
implementation of the proposals in Outline Development Plan; and
-
circumstances
prevailing at any particular time by the enforcement of the Plan.
The
proviso appended to Section 14-A enumerates that :
-
such changes
should be one in public interest;
-
the changes proposed should not contravene any of the provisions of the Act or
any other law governing planning, development or use of land within the local
planning area; and
-
the proposal for
all such changes are published in one or more daily newspapers, having
circulation in the area, inviting objections from the public. Sub-sections (2)
and (3) of Section 14 of the Act are applicable mutatis mutandis to the change
in land use or development from the Outline Development Plan. Sub-section (1)
of Section 15 provides that on receipt of the application for permission under
Section 14, the Planning Authority shall cause an enquiry to be made whereupon
it may either grant or refuse a commencement certificate. Sub-section (2) of
Section 15 raises a legal fiction as regard failure on the part of the Planning
Authority to issue such certificate, as by reason thereof such certificate
would be deemed to have been granted. The proviso appended thereto, however,
provides that such change in land use or development for which such permission
was sought for must be in conformity with the Outline Development Plan and the
regulation finally approved under sub-section (3) of Section 13. The said
proviso applies to both sub-sections (1) and (2). By reason of the said
proviso, it is, therefore, explicitly clear that all such changes in the land
use must conform both with the Outline Development Plan and the regulation
finally approved under sub-section (3) of Section 13, which would in turn mean
the changes which are permissible 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.
JURISDICTION
OF PLANNING AUTHORITY:
The
submission of Mr. Javali that in terms of the explanation appended to Section
15, a power has been conferred upon the Planning Authority as regard change of
user would mean that such a power can be exercised irrespective of the
provisions of Section 14-A of the Act. The said submission cannot be accepted
for more reasons than one.
We may
notice that in Special Deputy Commissioner v. Bhargavi Madhavan [ILR 1987 Kar.
1260], a Division Bench of the Karnataka High Court held that only
intra-category changes need not go to the Government.
However,
in that case Section 14-A could not be noticed as the said provisions was
brought out later.
Yet
again in Sri Krishnapur Mutt, Udipi v. N. Vijayendra Shetty and Another [1992
(3) Kar. L.J. 326], S. Rajendra Babu, as the learned Chief Justice then was, held
:
"In
order to correctly comprehend the contentions advanced on either side, it is
necessary to examine the scheme of the Act. Section 2(1b) defines 'commerce'
and 'commercial' which mean carrying on any trade, business or profession, sale
or exchange of goods of any type whatsoever, the running of, with a view to
make profit, hospitals, nursing homes, infirmaries, sarais, educational
institutions, hotels restaurants, boarding houses not attached to educational
institutions. Section 2(1c) defines 'development' as carrying out of building,
engineering, mining, or other operations in, or, 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 sub-division of any land. Under sub-section (3)
of Section 2 "land-use" is defined to mean the major use to which a
plot of land is being used on any specified date. Under Section 10 of the Act
the Planning Authority is required to publish a declaration in the Official
Gazette of its intention to prepare an outline development plan of an area and
in the present case such a plan has been published and the land in question has
been shown to be a residential one. Section 12 sets out, inter alia, that such
plan shall include a general land-use plan and zoning of land-use for
residential, commercial, industrial, agricultural, recreational, educational
and other public purposes. Thus, the outline development plan will only set out
the nature of the use to which the land is put viz., 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 concept
of material change in the present case." It was further observed :
"The
restrictions imposed in the planning law though in public interest should be
strictly interpreted because they make an inroad into the rights of a private
persons to carry on his business by construction of a suitable building for the
purpose and incidentally may affect his fundamental right if too widely
interpreted.
The
building bye-laws while sanctioning a plan will take care of what parking space
should be provided in the area and whether the building itself would have such
facility" The Planning Authority has no power to permit change in the land
use from the Outline Development Plan and the Regulations. Sub-section (1) of
Section 14, as it then existed, categorically stated, that every change in the
land use, inter alia, must conform to the Outline Development Plan and the
Regulations which would indisputably mean that it must conform to the Zoning
Regulations.
The
provisions of the Act are to be read with the Regulations, and so read, the
construction of Sections 14 and 15 will lead to only one conclusion, namely, such
changes in the land use must be within the Outline Development Plan and the
Zoning Regulations. If running of a hotel or a restaurant was not permissible
both under clauses (a) and (b) of the Zoning Regulations in a residential area,
such change in the land use could not have been permitted under Sections 14
read with 15 of the Act. It is precisely for that reason, Section 14-A was
introduced.
The
words "subject to" used in Section 14 are of some significance.
The
said words must be given full effect to. The meaning of the said words had been
noticed in Ashok Leyland Ltd. vs. State of T.N.
and Another (2004) 3 SCC 1] in the following terms :
92. "Furthermore, the expression
"subject to" must be given effect to.
93. In Black's Law Dictionary, 5th Edn.,
at p. 1278, the expression "subject to" has been defined as under:
"Liable,
subordinate, subservient, inferior, obedient to; governed or affected by;
provided that; provided; answerable for. Homan v. Employers Reinsurance Corpn."
IMPUGNED ORDER OF THE STATE:
The
Comprehensive Development Plan of Bangalore comprises of six categories,
namely,
-
residential;
-
commercial;
-
industrial;
-
parks & open
spaces;
-
public and semi
public; and
-
transportation.
All 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.
-
The revised land
conversion charges shall be obtained by the Authority.
-
To make suitable
conversion as required under Intensive Development Plan.
-
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 commercial purpose in
respect of 2275 sq. ft., in Jayanagar must conform to the provisions of Section
14-A of the Act and not Sections 14 and 15 thereof. A bare perusal of the said
order of sanction would demonstrate that the same did not disclose as to for
what purpose and on what ground the same had been sanctioned. None of the
ingredients contained in Section 14-A of the Act had been referred to. We have
not been shown as to why the BDA recommended and sought the Government approval
for conversion of land use of 2275 sq. ft. in Plot No. 585 from residential to
commercial (restaurant complex). Admittedly, such a change in the land use was
not occasioned owing to topographical, cartographic or other errors or
omissions; or due to failure to fully indicate the details in the Plan or
changes arising out of the implementation of the proposal in Outline
Development Plan. The only submission made before us is that action on the part
of the BDA and the State in granting sanction would come within the purview of
the circumstances prevailing at any particular time. What was the circumstance
necessitating such change of user has not been spelt out in the sanction order.
Furthermore, none of the other requirements of law stated in the proviso
appended thereto had been complied with. We do not know as to what was the
public interest involved in directing such change of land use.
It is
interesting to note that the Commissioner, BDA, while forwarding his
recommendations to the Principal Secretary of Urban Development Department in
terms of his letter dated 29.06.1999 mentioned that on 01.06.1999 the
Commissioner and the Town Planning Member upon examination of the surrounding
areas noticed that the site is located in a prominent place and opined that if
the site is converted to commercial purposes, the volume of traffic may
increase causing parking problem and obstructing the traffic and on the said
premise stated that the application may have to be rejected. It is nowhere
stated in the said letter as to how the Planning Authority intended to tackle
the said problem. Paragraph 4 of the said letter did not reveal as to how the
mind of the Authority was applied having regard to its earlier views that
conversion of the said plot to commercial use may give rise to traffic problem.
It is, therefore, apparent that the objections which were raised and the basic
issues which were 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 :
"Even
a judicial review on facts in certain situations may be available. In Cholan
Roadways Ltd. v. G. Thirugnanasambandam,, this Court observed:
-
" It is now well settled that a
quasi-judicial authority must pose unto itself a correct question so as to
arrive at a correct finding of fact. A wrong question posed leads to a wrong
answer. In this case, furthermore, the misdirection in law committed by the
Industrial Tribunal was apparent insofar as it did not apply the principle of res
ipsa loquitur which was relevant for the purpose of this case and, thus, failed
to take into consideration a relevant factor and furthermore took into
consideration an irrelevant fact not germane for determining the issue, namely,
that the passengers of the bus were mandatorily required to be examined. The
Industrial Tribunal further failed to apply the correct standard of proof in
relation to a domestic enquiry, which is 'preponderance of probability' and
applied the standard of proof required for a criminal trial. A case for
judicial review was, thus, clearly made out.
-
Errors of fact can also be a
subject-matter of judicial review. (See E. v. Secy. of State for the Home
Deptt.14) Reference in this connection may also be made to an interesting
article by Paul P. Craig, Q.C. titled 'Judicial Review, Appeal and Factual
Error' published in 2004 Public Law, p. 788." [See also Sonepat
Cooperative Sugar Mills Ltd. v. Ajit Singh (2005) 3 SCC 232 paras 23 &
24] The order passed by the statutory authority, it is trite, must be judged on
the basis of the contents thereof and not as explained in affidavit [See
Bangalore Development Authority & Others v. R. Hanumaiah & Others [2005
(8) SCALE 80].
In Hanumaiah
(supra), this Court has categorically held that BDA having been constituted for
specific purposes, it may not take any action which would defeat such purpose.
It was observed :
"Bangalore
Development Authority has been constituted for specific purposes. It cannot
take any action which would defeat such purpose. The State also ordinarily
cannot interfere in the day to day functioning of a statutory authority. It can
ordinarily exercise its power under Section 65 of the 1976 Act where a policy
matter is involved. It has not been established that the Chief Minister had the
requisite jurisdiction to issue such a direction. Section 65 of the 1976 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 operating in different fields. It is no doubt true that
Respondent No.6 herein applied for change of user from residential to
commercial on 04.01.1999 whereafter a publication was made in three newspapers
inviting objections from the local residents. It is also true that the
Respondent No.6 herein acted on the basis of the plan sanctioned in this
behalf.
It may
furthermore be true that the Respondent No.6 was accorded permission as far
back as on 20.12.1999, whereas the writ petition was filed on 15.07.2002.
However, we have also noticed that in the meanwhile, the Respondent No.6 committed
some other violations. Had the violation in the matter of change in user from
residential to commercial been a minor one, probably, this Court might not have
interfered but the State of Karnataka and the BDA having committed serious
violation of the Zoning Regulations as also Section 14-A of the Act, we are of
the opinion that the same cannot be sustained.
It may
further be true that the Respondent No.6 had invested a heavy amount but his
investment in the matter of construction of a building would remain as it is.
The Respondent No.6 can utilize the premises held by him within the purview of
the permissible user as contained in the Zoning Regulations referred to
hereinbefore. If he intends to use the same for such a purpose for which the
permission of the BDA is necessary, there is no doubt in our mind, that the BDA
will consider his request sympathetically.
For
the reasons aforementioned, the impugned judgment of the High Court cannot be
sustained. It is set aside accordingly. The appeal is allowed.
However, in the facts and circumstances of the case, there shall be no order as
to costs.
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