T. VIJAYALAKSHMI AND ORS.versusTOWN PLANNING MEMBER AND ANR.

A                          T. VIJA YALAKSHMI AND ORS.
                                            V.

                     TOWN PLANNING MEMBER AND ANR.

                                  OCTOBER 19, 2006

B                  [S.B. SINHA AND DALVEER BHANDARI. JJ.]


          Urban Development:

           Karnataka Town and Country Planning Act-Sanction of plan to
C   construct residential building in residential area under existing plan during
    pendency of proposed amendments-Rejection, on the ground that the
    property fell within 'Valley Zone in proposed comprehensive plan'-
    Sustainability of-Held: Right of a person to construct a building is valuable
    right, regulated by regulatory statute-Building plans are to be dealt with
                                                                                        -
D   in terms of existing law-Right could be taken awiry by a clear provision or
    by appropriate amendment-Comprehensive development plan, prepared in
    terms of the Act was still in force and State was yet to approve the proposed
    plan-Thus, application for approval of building plans to be decided as per
    the law existing when permission was granted-Doctrine of legitimate
    expectation would apply-Doctrines.
E
          Bangalore Development Authority prepared a comprehensive
    development plan in 1995 which was valid for ten years. The plan was further
    extended for another ten years. Appellants filed application seeking permission
    for approval of plan to construct residential building in residential area on
F   29.11.2004. Applications were not disposed of within the period specified and
    as such appellants assuming that commencement certificate must be held to
    have been granted, started construction activities. The Authority obstructed
    the construction and also rejected the application for grant of sanction of plan
    on the ground that property fell within the "Valley Zone in the proposed
    comprehensive plan". Appellants challenged the order. Single Judge of High
G   Court held that the application could not have been rejected. Thereafter, though
    a new comprehensive development plan proposed by the Development Authority
    was yet to be notified, Authority filed an appeal challenging the order of Single
    Judge which was allowed. Hence the present appeal.


H
          Allowing the appeal, the Court
                                          534                                           -
             T. Vl.IAYALAKSHMI v. TOWN PLANNING MEMBER                        535
       HELD: 1.1. Town Planning Legislations are regulatory in nature. The           A
right to property of a person would include a right to construct a residential
building in the residential area. It is a valuable right which can only be
regulated in terms of a regulatory statute but unless there exists a clear
provision the same cannot be taken away. The building plans arc required to
be dealt with in terms of the existing law. Determination of such a question         B
cannot be postponed far less taken away. Doctrine of legitimate expectation
in a case of this nature would have a role to play.1538-D; 539-A-CI

       1.2. In terms of the provisions of the Karnataka Town and Country
Planning Act, a comprehensive development plan was prepared. It is still in
force. High Court has not held that the existing laws were ultra vires. With         C
regard to the acceptance of amendments to the said comprehensive development
plan as proposed by the Authority, the State is yet to apply its mind. It has
called for objection from the citizens. Amendments to a development plan must
conform to the provisions of the Act. But the rights of the parties cannot be
intermeddled so long as an appropriate amendment in the legislation is not
brought into force.1538-D-F; 538-GI                                                  D
       1.3. An application for gr.int 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. Therefore, first respondent is directed
to consider the application for grant of sanction or approval of the building        E
plans. (540-D-FI

       Director of Public Works and Anr. v. HO PO Sang and Ors., (1961) AC
901; Howrah Municipal Corporation and Ors. v. Ganges Rope Co. ltd. and
Ors., (2004( I SCC 663 and Kuldeep Singh v. Govt of NCT of Delhi, (2006) 6           F
SCALE 588, referre~ to.

      2. Ecological b~lance is required to be maintained and the courts while
interpreting a statute should bestow serious consideration in this behalf, but
ecological aspects, is ordinarily a part of the town planning legislation. If in
the legislation or in the statute governing the field, ecological aspects have       G
not been taken into consideration keeping in view the future need, State and
the Authority must take the blame therefor. It is assumed that these aspects
of the matter were taken into consideration by the Authority and the State.
                                                                     (538-F-G(

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4555 of2006.                   H
    536                     SUPREM[ COURT REPORTS [2006] SUPP. 7 S.C.R.

A        From the Judgment dated 3.1.2006 of the High Court of Karnataka at
    Bangalore in Writ Appeal No. 3301/2005/BDA.

                                         WITH

          C.A. No. 4556 of2006.
B
         Soli J. Sorabjee, Varun Thakur. A.S. Bhasme, lndu Malhotra, Vikram
    Mehta, Malika Chaudhari and Vikas Mehta for the Appellants.

          S.K. Kulkarni, Vijay Kumar and Sanjay R. Hegde for the Respondents.

C         The Judgment of the Court was delivered by

          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
D   judgment.

          We would, however, take note of the factual m;;trix 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
E   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
F   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 tenns 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
G   been extended for a period of another ten years i.e. till the year 20 l 5. Before
    the Authority, Appellants, inter a!ia, 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.
H
      T. VJ.IA YALAKSHMI v. TOWN PLANNING MEMBER [SINHA. J.]                537
     In the aforementioned premise. Appellants filed a writ petition before         A
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          B
order dated I 5.06.2005 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 C
       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 BOA in
       granting such permission. The application of the petitioners could not D
       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 E
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 pe1mitted
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   F
       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 ... "
                                                                                    G
     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 H
    538                      SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.

A 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.
B
          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
C   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.
D         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
E   amendments to the said comprehensive <fevelopment 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
F   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
G   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
H   assumption that the law which may be brought into the state book would be
       T. VI.JAY ALAKSHMI v. TOWN PLANNING MEMBER [SINHA . .I]                 539

more eco-friendly.                                                                     A
      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        B
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 Anr. v. HO PO Sang and Ors., ( 1961)
AC 90 I, interpreting the provisions of the Landlord and Tenant Ordinance,             C
1947, it was held :

        "In summary, the applic<!tion 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            D
        discretion in his favour and the first appellant wou Id 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           E
        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 crune up directly for consideration in Howrah Municipal              F
Corporation and Ors. v. Ganges Rope Co. Ltd. and Ors., [2004] I SCC 663,
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       G
       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.          H
    540                      SUPREME COCRT REPORTS [2006] SUPP. 7 S.C.R.

A           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 he
            blamed for delay but during pendency of its application for sanction,
            if the State Government, in exercise of its rule-making power, amended
B           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
c           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
D           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
E 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
    Ku/deep Singh v. Govt. of NCT of Delhi, (2006) (6) SCALE 588].

           For the views we have taken, the First Respondent is hereby directed
p 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
G   allowed. In the facts and circumstances of the case, however, there would be
    no order as to costs.

    N.J.                                                             Appeals allowed.