Being
one of the fastest growing cities, Bangalore
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
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 Maharastra under Maharastra 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
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.
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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