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CASE NO.: Appeal (civil)  938 of 2006

PETITIONER: S.N. Chandrashekar and Anr.

RESPONDENT: State of Karnataka and Ors.

DATE OF JUDGMENT: 02/02/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [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 :

"\005The 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

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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 :

"1)     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);

2)      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;

3)      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;

4)      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,: (i)  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; (ii) the BDA in its resolution dated 29.06.1999 held that conversion

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was in public interest and permitted the conversion of use from dwelling to  commercial (restaurant);  (iii) as the Appellants did not file any objection,  they were not entitled to any relief; and (iv) 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 : (i) 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. (ii) 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.  (iii) If the provisions of Section 14-A in a  case of this nature is applied, Sections 14(2) and 15(2) would become otiose.  (iv) 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 (v) 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

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(2)     "Land" includes benefits arising out of land and  things attached to the earth or permanently  fastened to anything attached to the earth;

(3)     "Land use" means the major use to which a plot  of land is being used on any specified date;

(5)     "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;

(7)     "Planning Authority" means, -

(a)     in the case of \026

(i)     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

(ii)    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;

(8)     "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.-  (1) 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, -

(a)     a general land use plan and zoning of land use for  residential, commercial, industrial, agricultural,  recreational, educational and other public  purposes; (b)     proposals for road and highways; and widening of  such roads and highways in congested areas;

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(c)     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;

(d)     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;

(e)      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.

(2) The following particulars shall be published  and sent to the State Government through the Director  along with the Outline Development Plan, namely :-

(i)     a report of the surveys carried out by the Planning  Authority before the preparation of such plan;

(ii)    a 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."            

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

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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. (a) uses that are permissible; (b)  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 : (i)  topographical or  cartographical or other errors and omissions; (ii) 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 (iii) circumstances  prevailing at any particular time by the enforcement of the Plan.   

The proviso appended to Section 14-A enumerates that : (i) such  changes  should be one in public interest;  (ii) 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 (iii)  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

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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

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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\005"

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

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(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, (i) residential; (ii) commercial; (iii)  industrial; (iv) parks  & open spaces; (v) public and semi public; and (vi) 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.

1)      The revised land conversion charges shall be  obtained by the Authority.

2)      To make suitable conversion as required  under Intensive Development Plan.          3)      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

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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:  "34. \005 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. 35. 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."

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[See also Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh \026 (2005) 3  SCC 232 \026 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\005"  

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

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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.