& Ors Vs. Town Planning Member & Anr  Insc 680 (19 October 2006)
Sinha & Dalveer Bhandari
out of SLP (Civil) No.4719 of 2006] WITH
CIVIL APPEAL NO. 4556 OF 2006 [Arising out of SLP (Civil) No.10383 of 2006]
S.B. SINHA, J :
two appeals involving similar questions of law and fact were taken up for
hearing together and are being disposed of by this common judgment.
would, however, take note of the factual matrix of the matter from Civil Appeal
arising out of Special Leave Petition (Civil) No.4719 of 2006.
herein were owners of agricultural lands. They were permitted to use the said
lands for non-agricultural purposes in 2004. The lands are within the
residential area and are put to use for residential purposes. An application
for approval of building plans was filed before the Bangalore Development
Authority (for short, 'the Authority') on 29.11.2004. Some queries in regard
thereto were raised by the Authority to which replies were also furnished.
the Authority is the Planning Authority within the meaning of Section 2(7) of
the Karnataka Town and Country Planning Act (for short, 'the Act'). They have
prepared a comprehensive development plan in the year 1995. In terms of the
provisions of the said Act, a development plan remains valid for a period of
ten years. The development plan sanctioned by the State of Karnataka was, thus, valid till the year
plan, however, has since been extended for a period of another ten years i.e.
till the year 2015. Before the Authority, Appellants, inter alia, raised a
contention that as their applications had not been disposed of within the
period specified therefor, commencement certificate, within the meaning of the
Act, must be held to have been granted. The officers of the Authority,
allegedly obstructed the construction activities carried out by Appellants.
aforementioned premise, Appellants filed a writ petition before the Karnataka
the pendency of the said writ petition, the application for grant of sanction
of plan was rejected by the Authority in terms of its order contained in a
letter dated 15.06.2005 on the premise that property in question fall within
the "Valley Zone in the proposed comprehensive plan".
said order dated 15.06.2005 was also questioned by Appellants before the High
Court. By a judgment and order dated 26.07.2005, a learned Single Judge allowed
the said writ petition, opining :
do see some force in the argument advanced by the learned counsel appearing for
the petitioners. The Bangalore Development Authority cannot reject the
application filed by a party seeking permission to construct a residential
building in accordance with law.
such an application is filed, it is the duty of the BDA to consider such
application considering the relevant Rules of BDA in granting such permission.
The application of the petitioners cold not have been rejected by the BDA"
An intra-court appeal was filed by the Bangalore Development Authority. Before
the Division Bench of the High Court, it was contended that although the new
comprehensive development plan was yet to be notified, but as the proposed
construction of Appellants falls within the 'valley zone', the Authority was
justified in rejecting the applications of Appellants herein. The Division
Bench of the High Court opined that in view of the fact that the Authority had
already identified the valley, no construction should be permitted to be raised
in an area which falls within the purview thereof, observing :
is no doubt true that every executive action, if it is to operate to the
prejudice of any person must be supported by some legislative authority. But it
is equally true that the private interest would always yield place to the
public interest and the Court cannot issue any such directions, which will
compel the authorities to violate the environmental law" Appellants are,
thus, before us.
in view the fact that the question as to whether the revised comprehensive development
plan proposed by the Bangalore Development Authority would be accepted by the
State or not, the State of Karnataka was directed to be impleaded as a party in
Sanjay R. Hegde, the learned counsel appearing on behalf of the State of Karnataka stated that notices have been
issued by the State calling for objections to the said comprehensive
development plan and a final decision therein is still awaited.
J. Sorabjee, the learned Senior Counsel appearing on behalf of Appellants,
submitted that as no new plan has yet been brought into force, and thus there
being no impediment and prohibition in the matter of construction of building
on the lands in question, which is situated within a residential area, the
impugned judgment cannot be sustained.
S.K. Kulkarni, the learned counsel appearing on behalf of the Authority, on the
other hand, submitted that as the matter relating to revision of the
comprehensive development plan is pending consideration before the State
Government, the impugned judgment should not be interfered with.
Planning Legislations are regulatory in nature. 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. In terms of the provisions of the
Karnataka Town and Country Planning Act, a comprehensive development plan
was prepared. It indisputably is still in force. Whether the amendments to the
said comprehensive development plan as proposed by the Authority would
ultimately be accepted by the State or not is uncertain. It is yet to apply its
mind. Amendments to a development plan must conform to the provisions of the
Act. As noticed hereinbefore, the State has called for objection from the
citizens. Ecological balance no doubt is required to be maintained and the
courts while interpreting a statute should bestow serious consideration in this
behalf, but ecological aspects, it is trite, is ordinarily a part of the town
planning legislation. If in the legislation itself or in the statute governing
the field, ecological aspects have not been taken into consideration keeping in
view the future need, the State and the Authority must take the blame therefor.
must assume that these aspects of the matter were taken into consideration by
the Authority and the State. But the rights of the parties cannot be
intermeddled so long as an appropriate amendment in the legislation is not
brought into force.
questioned the validity of the existing law. The High Court has not held that
the existing laws are ultra vires. It merely proceeded on the assumption that
the law which may be brought into the state book would be more eco-friendly.
law in this behalf is explicit. Right of a person to construct residential houses
in the residential area is a valuable right. The said right can only be
regulated in terms of a regulatory statute but 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 with in terms of the existing law.
of such a question cannot be postponed far less taken away.
of Legitimate Expectation in a case of this nature would have a role to play.
Director of Public Works and Another v. HO PO Sang and Others [(1961) AC 901],
interpreting the provisions of the Landlord and Tenant Ordinance, 1947, it was held
summary, the application of the second appellant for a rebuilding certificate
conferred no right on him which was preserved after the repeal of sections
3A-E, but merely conferred hope or expectation that the Governor in Council
would exercise his executive or ministerial discretion in his favour and the
first appellant would thereafter issue a certificate. Similarly, the issue by
the first appellant of notice of intention to grant a rebuilding certificate
conferred no right on the second appellant which was preserved after the
repeal, but merely instituted a procedure whereby the matter could be referred
to the Governor in Council. The repeal disentitled the first appellant from
thereafter issuing any rebuilding certificate where the matter had been
referred by petition to the Governor in Council but had not been determined by
the Governor." The question came up directly for consideration in Howrah
Municipal Corporation and Others v. Ganges Rope Co. Ltd. and Others [(2004) 1
SCC 663], wherein it was held :
context in which the respondent Company claims a vested right for sanction and
which has been accepted by the Division Bench of the High Court, is not a right
in relation to "ownership or possession of any property" for which
the expression "vest" is generally used. What we can understand from
the claim of a "vested right" set up by the respondent Company is
that on the basis of the Building Rules, as applicable to their case on the
date of making an application for sanction and the fixed period allotted by the
Court for its consideration, it had a "legitimate" or "settled
expectation" to obtain the sanction. In our considered opinion, such
"settled expectation", if any, did not create any vested right to
obtain sanction. True it is, that the respondent Company which can have no
control over the manner of processing of application for sanction by the
Corporation cannot be blamed for delay but during pendency of its application
for sanction, if the State Government, in exercise of its rule-making power,
amended the Building Rules and imposed restrictions on the heights of buildings
on G.T. Road and other wards, such "settled expectation" has been
rendered impossible of fulfilment due to change in law. The claim based on the
alleged "vested right" or "settled expectation" cannot be
set up against statutory provisions which were brought into force by the State
Government by amending the Building Rules and not by the Corporation against
whom such "vested right" or "settled expectation" is being
sought to be enforced. The "vested right" or "settled
expectation" has been nullified not only by the Corporation but also by
the State by amending the Building Rules. Besides this, such a "settled
expectation" or the so-called "vested right" cannot be
countenanced against public interest and convenience which are sought to be
served by amendment of the Building Rules and the resolution of the Corporation
issued thereupon." It is, thus, now well-settled law 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. [See Kuldeep Singh v. Govt. of NCT of Delhi 2006 (6)
the views we have taken, the First Respondent is hereby directed to consider
the application for grant of sanction or approval of the building plans
submitted before it at an early date but not later than eight weeks in
accordance with law.
the reasons aforementioned, the impugned judgment of the Division Bench cannot
be sustained, which is set aside accordingly. The appeals are allowed. In the
facts and circumstances of the case, however, there would be no order as to