SUPREME COURT OF INDIA
T. Vijayalakshmi and Others
Vs
Town Planning Member and Another
Appeal (Civil) 4555 of 2006 (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 and Dalveer Bhandari, JJ)
19.10.2006
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". 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:
"It 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.
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 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 Indlaw PC 8, 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 who 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 4, wherein it was held:
"The 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) 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.