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CASE NO.: Appeal (civil)  4555 of 2006

PETITIONER: T. Vijayalakshmi & Ors.

RESPONDENT: Town Planning Member & Anr.

DATE OF JUDGMENT: 19/10/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T

[Arising 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 :

       Leave granted.

       These two appeals involving similar questions of law and fact were  taken  up for hearing together and are being disposed of by this common  judgment.

       We 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.   Appellants 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.   

       Indisputably, 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 2005.   The 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.   

In the aforementioned premise, Appellants filed a writ petition before  the Karnataka High Court.

During 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".   

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The 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 :

"I 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.   When 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 :

"\005It 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\005"    

       Appellants are, thus, before us.

       Keeping 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 these appeals.   

       Mr. 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.

       Mr. Soli 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.

       Mr. 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.

       Town Planning Legislations are regulatory in nature.  The right to

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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.   We 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.

       Nobody 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.   

The 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.   Determination of such a question cannot be postponed far less taken away.   Doctrine of Legitimate Expectation in a case of this nature would have a role  to play.    

       In 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 :

"In 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 :

"\005The context in which the respondent Company claims

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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 \026 2006 (6)  SCALE 588].

For 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.   

For 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 costs.