Being one of the
fastest growing cities, Bangalore is experiencing a steady increase in the
population, the main reason being that the rapid growth of Information
Technology, which has earned the titles of “IT Hub of Asia” and “Silicon Valley
of India”. With the view to implement schemes for regulating growth in the field of environmental
exigencies, several legislations have been passed in different states, and one
such act passed by the Karnataka Government is Town and Country Planning Act1961. The role of the Planning Authority constituted under the said act is to
implement schemes relating to public utility places, for developing the city in
the planned manner, which includes public parks, Educational Institutions, etc.
The BDA is
playing a vital role initiating step towards planning for development in
Bangalore and accordingly prepared Comprehensive Development Plan (CDP) as per
the Karnataka Town and Country Planning Act, 1961. The motto behind the
implementation of such development plan is to develop the existing urbanized
areas and extension of the already
developed areas, which will avoid new developments in distant outskirts that
lacks infrastructure and transporting. Added to this, CDP also aims at creating
flexible land use zone, to strengthen and respond to the realistic regulations
and finally to safeguard public interest also.
In the field of
such Development Plans being implemented in various states, the recent Supreme
Court, in its judgement in Raju.S.Jethmalani and others Vs State of Maharashtra
and others, has envisaged certain mandatory procedures to be followed by the competent
authority before initiating any action pertaining to the proposed Development
Plan. However, the judgement mentioned above
in particular pertains to Development Plan undertaken by the Government
of Maharastra under Maharastra Regional and Town Planning Act 1966.
The Latin Maxim
“Salus Populi est Suprema lex” which
means the welfare of the public is the Supreme law, this is one of
the well known law which deals with the public interest , to this maxim all
other maxims of public policy must yield for the object that “
all laws are to promote the general well
being of Society”. In other words “regard for the public welfare is the highestlaw”. “Necesstas Non Habet Legem which
means necessity has no law is the another maxim that has been relied upon by the in the
judgement delivered, which has been discussed in detail below.
Brief facts of
the case referred to above are as follows:
On 18th of
September 1982 draft development plan was prepared under Bombay Town Planning
Act 1954 and Section 26(1) and 37 of the Maharashtra Regional and Town Planning
Act 1966, for developing parks and Plot No. 437 and 438, measuring 2.00 Acres
and 1.5 Acres was earmarked for the purpose of developing a park and was
proposed to be named “Salisbury Garden”. The said plan was finalized and
sanctioned on 5/1/1987.
The present controversy centers around the acquisition of the Plot No.438. In this regard,
the Government issued notification, inviting objections and the Present owners
submitted their objections for de-reserving the same. However, the proposal was
initiated by the Maharashtra Government
for de-reservation of the plot earmarked for development of the park, due to
paucity of funds for acquiring the same and the impugned notification was
challenged by a Public Interest Litigation.
The High Court
suggested for a settlement that instead of quashing the impugned notification,
the implementation of the said notification can be deferred for the period of
two years and if the same could not be carried out within the time specified,
then the notification shall be set aside. However, while delivering this
judgement, burden was laid on the owners of the plot No.437 to provide
necessary area, approximate in size, suitable for the purpose of garden and
park as envisaged in the Development Plan. The said order was not challenged by
the Owners and after the expiry of two years, the impugned notification became
operative and direction was issued to the concerned authority to proceed
accordingly. After such passing of the said order, an application was filed
before the High Court, seeking clarification and the same was also dismissed.
Aggrieved by both the orders, the Owners preferred Special Leave Petitions
before the Hon’ble Supreme Court.
The Hon’ble
Supreme Court held that though the Legislation does not prohibit any Authority
from acquiring land belonging to any private person for implementing the Development
Plan to provide amenities to the residents of the area, such land cannot be
earmarked for development plan without acquiring the land, without which the
right of the Owner to use his land for residential purpose will be deprived. In
the present case, the said plot was earmarked for the purpose of developing a
garden under its development plan of 1966, but no effort was made by the
Municipal Corporation or the Government to acquire this Plot for the purpose
for which it was proposed to be acquired.
However,
suggestion was made to the parties to the PIL asking them to explore the
sources for mustering funds for acquiring the plot, which is the subject matter
of the litigation and since parties confessed their inability for the same, the
Hon’ble Supreme Court passed the order giving six months time to the residents
if they can raise funds for acquisition of the land by the Government and if the same could not be done within the specified period, then the Appellants/Owners can utilize the land for the residential/other purpose in accordance with law. In View of the above discussion, the appeals were allowed
The principles
laid down by the Hon’ble Supreme Court is that though the Legislation does not
prohibit any Authority from acquiring land belonging to any private person for
implementing the Development Plan to provide amenities to the residents of the
area. In case of such land being earmarked for
development plan, then such Authority should first acquire such land, by
following all the procedure envisaged under Law, without which the right of the
Owner to use his land for residential purpose will be deprived.
In regard to the
CDP being implemented by Bangalore Development Authority, the same principles
are required to be followed. However, no final notification has been passed by
the Government for giving legal sanction
for CDP, which has led to lot of chaos
among the public and impediments in its implementation by the competent
authority. keeping in view the Supreme Court decision discussed above, anybody
aggrieved by the act of such authority pertaining to their property being
acquired for development plan can challenge the same in the Court of Law and
the decision passed in this regard is binding on the Competent Authority.
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