Case Note & Summary
The State of Karnataka and the Deputy Commissioner of Vijayapura filed a writ appeal against the order of a learned Single Judge in W.P.No.201785/2023 dated 06.07.2023. The respondents, had filed a writ petition aggrieved by the Vijayapura Urban Development Authority's failure to act on their application for approval of a layout plan. The authority had informed them that their lands were included in a scheme proposed under Sections 17(1) and 17(3) of the Karnataka Urban Development Authorities Act, 1987, notified on 13.08.2010 and gazetted on 26.08.2010. The scheme was intended to form a residential layout for the public under Sections 35 and 36 of the Act. The learned Single Judge, relying on earlier orders in W.P.No.201228/2023 dated 23.05.2023 and W.P.No.200570/2017 dated 14.06.2019, declared that the scheme had lapsed and directed the authority to consider the respondents' representation within eight weeks, and the State to communicate the lapsing of the scheme to all concerned authorities. The appellants contended that the Single Judge failed to consider that private interest must be subordinate to public interest, citing M/s. Vinayak Housing Building Co-operative Society Limited v. State of Karnataka. They argued that the scheme was valid under Sections 35 and 36 of the Act and the Rules of 2009, and that lapsing did not bar fresh acquisition. The respondents countered that under Section 27 of the Act, the scheme lapses after five years unless extended, and that a Co-ordinate Bench in W.A.No.100169/2021 had held that no time limit is prescribed for acquisition but the scheme had lapsed. The Division Bench examined the statutory scheme under Sections 15-19 and 27 of the Act. It noted that no declaration under Section 19(1) had been published by the State Government, and only a proposal under Sections 17(1) and 17(3) existed. The court held that lapsing under Section 27 applies only after a Section 19(1) declaration, but even otherwise, nearly 14 years had elapsed since the notification, rendering the scheme stale. The court relied on T. Vijaylakshmi v. Town Planning Member, (2006) 8 SCC 502, holding that the right to construct a building is a valuable right under Article 300A, and the authority must consider the application under the Karnataka Town and Country Planning Act. The court dismissed the appeal, upholding the Single Judge's order and directing the authority to consider the layout plan application within eight weeks.
Headnote
A) Urban Development - Lapsing of Scheme - Section 27 of Karnataka Urban Development Authorities Act, 1987 - The scheme notified under Sections 17(1) and 17(3) of the Act lapses if no declaration under Section 19(1) is published within 5 years - The court held that the scheme proposed in 2010 had lapsed as no Section 19(1) declaration was issued, and the authority could not reject the layout plan application on that ground (Paras 9-11).
B) Right to Property - Building Plan Approval - Article 300A of Constitution of India - The right to construct a building is a valuable right under Article 300A - The court held that the authority must consider the layout plan application in accordance with the Karnataka Town and Country Planning Act, and cannot postpone or deny it based on a lapsed scheme (Para 12).
C) Doctrine of Legitimate Expectation - Application of Doctrine - The court applied the doctrine of legitimate expectation, holding that the landowner had a legitimate expectation that his application would be considered under existing laws, and the authority could not rely on a stale notification to deny approval (Para 12).
Issue of Consideration
Whether the scheme notified under Sections 17(1) and 17(3) of the Karnataka Urban Development Authorities Act, 1987 lapses after 5 years in the absence of a declaration under Section 19(1) of the Act, and whether the landowner's application for layout plan approval can be rejected on the ground of such scheme.
Final Decision
The Division Bench dismissed the writ appeal, upholding the order of the learned Single Judge dated 06.07.2023 in W.P.No.201785/2023. The court directed the Vijayapura Urban Development Authority to consider the respondents' application for layout plan approval in accordance with the Karnataka Town and Country Planning Act within eight weeks from the date of receipt of a copy of the order.
Law Points
- Lapsing of scheme under Section 27 of Karnataka Urban Development Authorities Act
- 1987
- Right to property under Article 300A of Constitution of India
- Doctrine of Legitimate Expectation
- Requirement of Section 19(1) declaration for acquisition
- Rule 3 of Karnataka Urban Development Authorities (Allotment of Sites in Lieu of Compensation for the Land Acquired) Rules
- 2009
Case Details
2024 LawText (KAR) (12) 96
Writ Appeal No.200165 of 2023 (LB-RES)
R. Devdas J. , G. Basavaraja J.
Sri. Malhar Rao K., AAG & Sri. Mallikarjun C. Basareddy, GA for appellants; Sri. Sanganabasava B. Patil for R1 & R2; Sri. S.S. Halalli for R3
The Principal Secretary to Government, Urban Development Department, Bengaluru and The Deputy Commissioner, Vijayapura
Mahaveer S/o Tilokchand Oswal, Anil S/o Dinakar Avale, and The Commissioner, Vijayapura Urban Development Authority
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Nature of Litigation
Intra-court writ appeal against the order of a learned Single Judge directing the Urban Development Authority to consider the respondents' application for layout plan approval, declaring that the scheme notified under Sections 17(1) and 17(3) of the Karnataka Urban Development Authorities Act, 1987 had lapsed.
Remedy Sought
The appellants (State and Deputy Commissioner) sought to set aside the Single Judge's order dated 06.07.2023 in W.P.No.201785/2023.
Filing Reason
The respondents' application for layout plan approval was not acted upon by the Vijayapura Urban Development Authority on the ground that their lands were included in a scheme notified on 13.08.2010 under Sections 17(1) and 17(3) of the Act.
Previous Decisions
The learned Single Judge had earlier in W.P.No.201228/2023 dated 23.05.2023 and W.P.No.200570/2017 dated 14.06.2019 declared that the scheme had lapsed. Also, in W.P.No.205426/2019 dated 27.01.2021, the same Single Judge held that under Section 27 of the Act, the scheme lapses after five years unless extended. A Co-ordinate Bench in W.A.No.100169/2021 dated 02.08.2022 held that sufficient time had lapsed and there was no bar to transfer property in the absence of a Section 19 notification.
Issues
Whether the scheme notified under Sections 17(1) and 17(3) of the Karnataka Urban Development Authorities Act, 1987 lapses after 5 years in the absence of a declaration under Section 19(1) of the Act.
Whether the landowner's application for layout plan approval can be rejected on the ground of such scheme.
Whether the doctrine of legitimate expectation applies to the consideration of the layout plan application.
Submissions/Arguments
Appellants: The learned Single Judge failed to consider that private interest should be subordinate to public interest; the scheme was valid under Sections 35 and 36 of the Act and the Rules of 2009; lapsing of the scheme does not disentitle the authority from acquiring the land afresh.
Respondents: Under Section 27 of the Act, the scheme lapses after five years unless extended; a Co-ordinate Bench in W.A.No.100169/2021 held that sufficient time had lapsed and there was no bar to transfer property in the absence of a Section 19 notification.
Ratio Decidendi
Under Section 27 of the Karnataka Urban Development Authorities Act, 1987, a scheme lapses if not executed substantially within 5 years from the date of publication of a declaration under Section 19(1). In the absence of such declaration, the scheme cannot be used to deny a landowner's application for layout plan approval. The right to construct a building is a valuable right under Article 300A, and the authority must consider the application under existing laws. The doctrine of legitimate expectation applies.
Judgment Excerpts
The lapsing of the scheme as contemplated under Section 27 of the Act, 1987, is completely different from lapsing of the scheme as contemplated in Bangalore Development Authority Act.
The right to property of a person would include a right to construct a building. Such a right flows from the postulates of Article 300A of the Constitution of India.
The Urban Development Authority would get a right to decline such an application only if an acquisition notification is published in accordance with law.
Procedural History
The respondents filed W.P.No.201785/2023 before the High Court of Karnataka, Kalaburagi Bench, seeking direction to the Vijayapura Urban Development Authority to consider their application for layout plan approval. The learned Single Judge allowed the writ petition on 06.07.2023, declaring the scheme lapsed and directing consideration of the application. The State and Deputy Commissioner filed the present intra-court appeal under Section 4 of the Karnataka High Court Act, which was dismissed on 02.12.2024.
Acts & Sections
- Karnataka Urban Development Authorities Act, 1987: Section 15, Section 16, Section 17(1), Section 17(3), Section 18, Section 19(1), Section 27, Section 35, Section 36
- Karnataka Urban Development Authorities (Allotment of Sites in Lieu of Compensation for the Land Acquired) Rules, 2009: Rule 3
- Karnataka Land (Restriction on Transfer) Act, 1991: Section 4
- Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013:
- Constitution of India: Article 300A
- Karnataka Town and Country Planning Act:
