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 legislation have been passed in different states, and one
such act passed by the Karnataka Government is Town and Country Planning Act
1961.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.
Supreme Court Judgement:
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 Maharashtra
under Maharashtra Regional and Town Planning Act 1966.
Welfare of the Public:
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 highest
law”. “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:
Raju.S.Jethmalani and others V/S.
State of Maharashtra and others (Order dated 5/5/2005)
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 on 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 Honorable Supreme Court.
The Honorable 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
Honorable 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 lay down by the Honorable 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.
C.D.P. in Bangalore:
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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