1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 13TH DAY OF DECEMBER 2016

PRESENT

THE HON’BLE MR. SUBHRO KAMAL MUKHERJEE, CHIEF JUSTICE

AND

THE HON’BLE MR. JUSTICE BUDIHAL R.B.

WRIT PETITION No.8895/2015 (LB-RES-PIL)

C/W

WRIT PETITION Nos.10349-351/2015 (LB-PIL),

WRIT PETITION Nos.14141-142/2015 (GM-RES-PIL),

WRIT PETITION No.15183/2015 (GM-RES),

AND WRIT PETITION No.24579/2015 (PIL)

IN WRIT PETITION No.8895/2015 Citizens Forum for Mangalore Development

204, Rayville Apartments Lower Bender Mangalore-2 Represented by its Joint Co-Ordinator Ms. VidyaDinker. ... PETITIONER

(By Smt Jayna Kothari, Adv.)

R

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AND : 1. The State of Karnataka VidhanSoudha-560 001

Represented by its Chief Secretary. 2. The State Government of Karnataka Urban Development Department Vikasa Soudha

Bangalore-560 001 Represented by its Principal Secretary 3. The Directorate of Town Planning M.S. Building Phase-IV Dr. B.R. Ambedkar Veedhi

Bangalore-560 001 Represented by its Director 4. Mangalore City Corporation M G Road Lalbaug

Mangalore-575 003 Represented by its Commissioner 5. Mangalore Urban Development Authority Kuloor Ferry Road Mangalore-575 003

Represented by its Commissioner. ...RESPONDENTS

(By Sri Madhusudan R Naik, Adv. Gen. A/w Sri R Devdas, Prl. Govt. Adv. for R-1 to R-3 Sri K V Narasimhan, Adv. for R-4 Sri Hareesh Bhandary, Adv. for R-5)

This writ petition is filed under Articles 226 and

227 of the Constitution of India praying to declare

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Section 76FF of the Karnataka Town and Country Planning and Certain Other Laws (Amendment Act), 2004, the amendments made to Section 76 FF pursuant to the Karnataka Town and Country Planning and

Certain Other Laws (Amendment Act), 2013, as ultravires Articles 14 and 21 of the constitution and etc.

IN WRIT PETITION NOS.10349-351/2015

BETWEEN: 1. Citizens’ Action Forum A Society registered under the provisions

of the Karnataka Societies Registration Act, 1960 and having its registered office at No.31/1, 1st floor M K Puttalingaiah Road Padmanabhanagar Bangalore-560 070

Represented by its President Ms. Mahalakshmi Parthasarathy 2. Mr Vijayan Menon S/o Mr TAG Menon Aged about 60 years

R/at No.133, 1st Main S T Bed Layout, Kormangala Bangalore-560 034. 3. Mr C N Kumar S/o Late Mr C S Narayan

Aged about 60 years R/at No.18, 4th Cross 10th C Main, 1st Block Jayanagar, Bangalore-560 011. ... PETITIONERS

(By Smt Jayna Kothari, Adv.)

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AND : 1. The State of Karnataka

Urban Development Department Vidhana Soudha Bangalore-560 001 Represented by its Chief Secretary 2. The Bruhat Bengaluru Mahanagara Palike

N R Square, Bangalore-560 002 Represented by its Commissioner. 3. The Bangalore Development Authority No.20, Kumara Park West Bangalore-560 020

Represented by its Commissioner 4. The Bangalore Metropolitan Development Authority No.1, Ali Askar Road Bangalore-560 052. Represented by its Commissioner.

...RESPONDENTS

(By Sri Madhusudan R Naik, Adv. Gen. A/w Sri R Devdas, Prl. G. A., Adv. for R-1 Sri Sreenidhi V, Adv. for R-2 Sri Udaya Holla, Sr. Advocate for R-3 and R-4 A/w

Sri C R Gopalaswamy, Adv. for R-3 and Sri S G Pandit, Adv. for R-4)

These writ petitions are filed under Articles 226

and 227 of the Constitution of India praying to declare

(i) The Karnataka Town and Country Planning

(Regularisation of Unauthorised Development or

Constructions) Rules, 2014 (At Annex-L); (ii) The

Karnataka Town and Country Planning and certain

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other laws (amendment) Act, 2013 (At Annex-G) (iii) The

Karnataka Town and Country Planning Act and certain

other laws (Amendment) Act, 2009 (At Annex-E) and (iv)

The Karnataka Town and Country Planning act and

certain other laws (Amendment) Act, 2004 (At Annex-B),

as unconstitutional, illegal and ultra vires and etc.

IN WRIT PETITION NOS.14141-142/2015

1. Namma Bengaluru Foundation A Registered Public charitable trust Having its registered office at No.3J, NA Chambers, 7th C Main 3rd Cross, 3rd Block, Koramangala Bangalore-560 034

Represented by its Authorised Signatory Mr. Sridhar Pabbisetty 2. Rajeev Chandrashekar Aged 50 years S/o Air Cdr M.K. Chandrasekhar (Retd.)

R/at No.375, 13th Main 3rd Block, Koramangala Bangalore-560 034. ... PETITIONERS

(By Sri Sajan Poovayya, Sr. Advocate A/w Sri Manu Kulkarni, Adv.)

AND : 1. State of Karnataka Vidhana Soudha Bangalore-560 001

Through its Chief Secretary 2. Urban Development Department Vikasa Soudha

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Bangalore-560 001 Through its Additional Chief Secretary. 3. Directorate of Town and Country Planning

M.S. Building, 4th Stage Dr. B.R. Ambedkar Veedhi Bangalore-560 001. ...RESPONDENTS (By Sri Madhusudan R Naik, Adv. Gen. A/w Sri R Devdas, Prl. Govt. Adv., Adv. for R-1 to R-3)

These writ petitions are filed under Article 226 of

the Constitution of India praying to set aside the

Karnataka Town and Country Planning (Regularisation

of Unauthorised Development or Constructions) Rules

2014 vide Ann-C, for being violative of Article 14 and 21

of the constitution of India.

IN WRIT PETITION NO.15183/2015 Mysore Grahakara Parishat

No.6/1, Vivekananda Road Yadavagiri Mysore-570 020 Rep. by its President. ... PETITIONER

(By Sri C N Manjappa, Adv.)

AND : The State of Karnataka Vidhana Soudha

Ambedkar Veedhi Bangalore-560 001 Rep. by its Chief Secretary. ...RESPONDENT

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(By Sri Madhusudan R Naik, Adv. Gen. A/w Sri R Devdas, Prl. Govt. Adv.)

This writ petition is filed under Articles 226 and

227 of the Constitution of India praying to issue such appropriate writ to annul Section 76FF to the Karnataka Town and Country Planning and certain other laws (Amendment) Act, 2013 (Act 67 of 2013) w.e.f. 19.10.2013 Annex-A and the notification issued, in Part-IV-A of the Karnataka Extraordinary Gazette

dated 31.12.2013 vide Annex-B publicizing the Karnataka Town and Country Planning (Regulation of unauthorised Development or construction) Rules, 2014, w.e.f. 19.10.2013. IN WRIT PETITION NO.24579/2015

1. Federation of J.P. Nagar 7th and 8th Phase Residents’ Welfare Associations (R), No.67, 3rd Cross Gouravnagar, 7th Phase J.P. Nagar Bengaluru-560 078

Rep. by G Jagadish President, Aged 48 years 2. Nava Shreyas Residents’ Welfare Association No.24, 1st Main, Shreyas Colony J.P. Nagar, 7th Phase, Bengaluru-560 076

Rep. by R Aswathnarayana General Secretary Aged 54 years 3. Pavamana Residents’ Welfare Association No.72, Lake View Apartment

Pavamana Nagar, J.P. Nagar

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8th Phase Bengaluru-560 076. Rep. by K Hemanth Kumar Member, Aged 45 years.

4. Gourva Nagar Residents’ Welfare Association No.54, 2nd Main, 6th Cross, Gourva Nagar J.P. Nagar, 8th Phase, Bengaluru-560 076 Rep. by T.S. Aswathnarayana Rao Member, Aged 47 years

5. Sai Enclave Residents’ Welfare Association No.25, Manasa-Madhu Nilaya 2nd Main, Sai Enclave J.P. Nagar, 7th Phase Bengaluru-560 076.

Rep. by Venugopal President Aged 58 years. ... PETITIONERS

(By Sri Dr. R Ramachandran, Adv.)

AND : 1. The State of Karnataka Department of Urban Development M.S. Building Bangalore-560 001

Represented by its Principal Secretary 2. Town Planning Authority Nrupathunga Road Bengaluru-560 001. Rep. by its Director.

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3. Bengaluru Development Authority T Chowdaiah Road Kumara Park West Bangalore-560 020

Represented by its Commissioner 4. Bengaluru Metropolitan Regional Development Authority No.1, Ali Askar Road Bangalore-560 052.

Represented by its Commissioner. 5. Bruhat Bengaluru Mahanagara Palike N.R. Square, Bengaluru-560 052 Represented by its Commissioner.

...RESPONDENTS

(By Sri Madhusudan R Naik, Adv. Gen. A/w Sri R Devdas, Prl. Govt. Adv. for R-1 and R-2 Sri Udaya Holla, Sr. Advocate for R-3 and R-4 A/w Sri C R Gopalaswamy, Adv. for R-3 and Sri S G Pandit, Adv. for R-4 Sri Sreenidhi V, Adv. for R-5)

This writ petition is filed under Articles 226 and

227 of the Constitution of India praying to quash the

impugned notification dated 28.05.2014 vide Annex-A

titled the Karnataka Town and Country Planning

(Regularisation of Unauthorised Development or

Constructions) Rules 2014.

These writ petitions having been heard and

reserved, coming on for pronouncement, this day, Budihal R.B., J., pronounced the following:

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ORDER

All the above writ petitions are filed by way of

public interest litigations.

2. Since common questions of law and facts are

involved in all the above writ petitions, they are taken

up together to dispose of them by this common order, in

order to avoid repetition of facts and law.

3. The sum and substance of the prayers sought

in all the above writ petitions are to declare the

Karnataka Town and Country Planning and Certain

Other Laws (Amendment) Act, 2013; the Karnataka

Town and Country Planning and Certain Other Laws

(Amendment) Act, 2009; the Karnataka Town and

Country Planning Act and Certain Other Laws

(Amendment) Act, 2004; the Karnataka Town and

Country Planning (Regularisation of Unauthorised

Development or Constructions) Rules 2014; Section

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321-A of the Karnataka Municipal Corporation Act,

1976 and Section 187-A of the Karnataka Municipalities

Act, 1964, as unconstitutional, illegal and ultravires

Articles 14 and 21 of the Constitution of India; The

further prayer sought in the writ petitions are to issue

writ of mandamus to respondents and its officials

restraining them from implementing any of the

impugned legislations which are colloquially known as

“Akrama Sakrama” Scheme in any manner whatsoever.

4. The writ petitioners challenged the amendment

to the respective Acts and Rules on various grounds.

The grounds, on which, the constitutional validity of the

proposed amendment is challenged, are as under:

(i) The impugned Section 76FF of the Karnataka

Town and Country Planning and Certain other Laws

(Amendment) Act, 2004, Section 321-A of the Karnataka

Municipal Corporations Act, 1976, Section 187-A of the

Karnataka Municipalities Act, 1964 and the Rules for

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respective Acts, are in gross violation of Articles 14 and

21 of the Constitution of India, as they arbitrarily affect

the constitutional guarantee of ensuring a decent and

planned environment for its citizens. The impugned

Sections and Rules are framed in complete disregard to

the purpose and objectives of the Karnataka Town and

Country Planning Act whose main objectives are for

planned growth and development with a view to improve

environmental health and decent standards of living.

Impugned Sections and the Rules are in violation of

Articles 14 and 21 of the Constitution as they place

unfettered discretion in the hands of the competent

authority for approving regularisation and are in

contravention of the important pronouncements by the

Hon’ble Supreme Court as well as various High Courts.

(ii) When once the respondent State Government

had already enacted a regularisation law in 1991, being

the Karnataka Regularisation of Unauthorised

Construction in Urban Areas Act 1991, this method of

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once again providing for regularisation falls foul of the

entire thinking behind regularisation. If regularisation

is permitted to take place for every 20 years in the

State, virtually, every illegal construction can eventually

be regularized and thus, the urban planning laws and

the master plans would have no meaning. It is clear, in

this case, that the respondents have failed to establish a

case for permitting violators of the law to go scot free by

mere payment of a paltry sum of money termed as ‘fees’

under the impugned Rules.

(iii) The impugned Acts and Rules are in violation

of Article 14, as being arbitrary and unreasonable, as no

reasons or legal basis is provided for fixing the given

penalties for land use and building violations. The sum

of money prescribed as fee to regularize the

constructions violating the building bye-laws, is

extremely low and has been lowered from the fee

prescribed in the 2007 Rules, does not have any

deterrent effect, as it is very economical for developers

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to violate the prescribed bye-laws and then regularize by

paying the meager fee.

(iv) The impugned Acts and the Rules, if allowed,

would amount to dangerous results, especially with

regard to permitting floor area ratio violations to be

regularized. Therefore, if regularisation is permitted on

the basis of floor area ratio violation upto 50% in a

residential complex, and 25% in a commercial building,

then one can even have two extra floors for every four

floors and one extra floor for every six floors in a

commercial building. The impugned Sections are in

violation of Article 14 of the Constitution as they make

an unreasonable classification by treating favourably

those who have blatantly violated the law and

discriminating against those who have strictly adhered

to the building norms and regulations. The impugned

Sections are in violation of Article 14 of the Constitution

as it arbitrarily fixes the percentage of violation of

setback norms to be regularized as 50% in case of

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residential buildings, without giving any reasons for the

same or without any basis for such classification. The

impugned Acts and the Rules are in serious violation of

the Karnataka Town and Country Planning Act, as they

in fact permit the regularisation for construction of

residential and even commercial buildings on

agricultural land.

(v) Under the Amendment Act of 2007, Section

76FFF provides that there will be punishment imposed

on the jurisdictional officers who have failed to prevent

unauthorised constructions and that such punishments

shall be prescribed. However, neither do the 2007

Rules nor do the impugned 2014 Rules prescribe any

punishment for the erring jurisdictional officers, and

hence, under the present scheme, the jurisdictional

officers are left scot free despite having a significant role

in allowing the development of unauthorised

constructions. Hence, for this reason, as well, the

impugned Acts and the Rules deserve to be set aside.

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(vi) The proposed Acts and the Rules have allowed

for regularisation of all unauthorised construction that

has taken place till October 2013, and provide for a time

period of one year for making applications. This time,

the period of one year is completely unreasonable and

arbitrary, as it allows the persons to actually commence

unauthorised constructions without plan approval and

then apply for the regularisation of the same, and is

therefore, encouraging such illegal actions.

(vii) Further, Rule 22 of the 2014 Rules provide

that notwithstanding the repeal of the 2007 Rules, all

the applications, for regularisation, received under the

said 2007 repealed Rules, will also be processed as if

they were filed before the competent authority. Such

provision, in the impugned Rules, is completely

arbitrary and unreasonable and in violation of the

guarantee of equality and non-arbitrariness under

Article 14 and deserves to be set aside.

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(viii) The impugned Sections and the Rules violate

Article 21 of the Constitution inasmuch as the right to a

decent and planned environment would be defeated by

such amendment. The respondent authorities by

allowing for regularisation of violation of setback norms

and floor area ratio and violation of any development,

have acted in a manner detrimental to the interests of

the citizens, including their right to health, safety and

an environment free from congestion. The right to life

under Article 21 includes the right to a clean

environment and the right to a meaningful existence

and not merely an animal existence.

(ix) The amendment made to the plenary

legislation is unconstitutional. It is not only violative of

Articles 14 and 21 of the Constitution but there are

internal violations to the Act and Rules itself. The

proposed amendment is not in consonance with the

estimated cost of development. It gives excessive

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delegation of power to the executive. Hence sought to

allow the writ petitions.

5. The respondent-State objected the petitioner’s

contention by filing the objection statement contending

that writ petitions deserves to be dismissed on the

ground that petitioners knowing fully well that they do

not represent the public at large or the majority of the

public, have taken up themselves a cause by

undermining the popular demand and are becoming a

hindrance to the solution of a problem that has engaged

the attention of successive State Governments and

therefore, on this ground alone, the writ petitions

deserves to be dismissed at the threshold. The problem

of unregulated growth in urban areas and the

consequential unauthorised constructions is not unique

to Mangaluru city or Bengaluru city for that matter.

Though every State in the Union of India has a statute

to regulate town planning, which are based on a model

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circulated by the Union of India, every State in the

Union of India is faced with this problem of

unauthorised constructions, especially in the fast

development cities and towns. The petitioners did not

question the competence of the State legislature in

bringing about the amendments to the statute or

framing the rules. The classification made by the State

Government in treating the persons who have put up

construction in violation of any law governing such

constructions is based on intelligible differentia and the

rationale beyond such classification is to achieve the

objective as expressed in the statement of objects and

reasons in the Karnataka Regularisation of

Unauthorised Construction in Urban Areas Act, 1991.

The statement of objects and reasons reads as under:-

“Bangalore Development Authority and other local bodies have been finding it difficult in their task of meeting the increasing demand for residential sites due

to disproportionately high number of unauthorised constructions on urban land. The unauthorised construction which

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already have come up over the years cannot possibly be demolished and any wholesome demolition would not only amount to wastage of national wealth but in some cases

also create law and order problems. Keeping in view the above points, it is felt necessary to have a comprehensive legislation for regularisation of certain types of unauthorised constructions.”

So long as these two criteria are met, the challenge to

the impugned legislative actions invoking Article 14 of

the Constitution of India should necessarily fail.

6. The invocation of Article 21 of the Constitution

of India should also necessarily fail, since the

respondent-State Government has taken all care and

precaution in providing safety measures and not

compromising on fire safety and structural stability of

the buildings to be regularized. The impugned

provisions do not provide for 100% deviation.

Regularisation of violation of setback norms and

permissible floor area ratio is only up to 25% in cases of

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non-residential buildings and it is 50% only in cases of

residential buildings. Sub-Section 2 of Section 76FF of

the Karnataka Town and Country Planning and Certain

other Laws (Amendment) Act 2013 lists out instances

where regularisation is not permitted. Some of the

instances which would have effect on the environment

and a possible impact on the immediate neighbourhood

and therefore precluded from regularisation are as

mentioned in sub Section 2 of Section 76FF.

7. The allegation of the petitioners that unfettered

discretion is given to the competent authority for

approving regularisation is baseless. The Karnataka

Town and Country Planning (Regularisation of

Unauthorised Development or Constructions) Rules,

2014 specifically provides the conditions for

regularisation, eligibility, violation of change of land use,

conditions for regularisation of unauthorised sub-

division of land, conditions for regularisation of setback

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violations, conditions for regularisation of floor area

violations, persons eligible to apply, documents to

accompany the application for regularisation, procedure

for regularisation, sequences of scrutinizing the

applications, prescribed fees etc.

8. The allegations of the writ petitioners that

the State Government had already enacted a

Regularisation Law in the year 1991 and therefore, the

present action of the State Government would amount

to regularisation for a second time and therefore in

contravention to the dictum of the Hon’ble Supreme

Court in the case of CONSUMER ACTION GROUP AND

ANOTHER VS STATE OF TAMILNADU AND OTHERS

reported in (2000)7 SCC 425, AIR 2000 SC 3060).

The petitioners have not approached this Court with

clean hands. The petitioners very well know that

though the Karnataka Regulation of Unauthorised

Construction in Urban Areas Act, 1991 was

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promulgated and gazetted on 25.9.1991, the Rules were

not framed to carry out the provisions of the Act.

Therefore, though the said Act of 1991 provided for

regularisation of unauthorised construction, the

objective was not achieved and no regularisation took

place in the year 1991 or thereafter.

9. Petitioners further contention is that the fee

fixed for regularisation is extremely low and does not

have a deterring effect on the violators. This Court

while dealing with the Karnataka Town and Country

Planning (Regularisation of Unauthorised Development

or Construction) Rules, 2007 by order dated 11.12.2007

in W.P.Nos.14437 of 2007 and connected matters

(Annexure J in the writ petition) held as under:-

“We are prima facie satisfied that even assuming that the intention of the State legislature and the Government in making the impugned law and formulating the impugned scheme is laudable and bonafide, the object sought to be achieved cannot be

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achieved if the impugned statutory provisions are enforced and the scheme is implemented in its present form. Certain anomalies and irrationalities pointed out by

the petitioners may have to be rectified to achieve the object and to prevent misuse. It would appear that the time granted for submitting applications for regularisation is inadequate and unreasonable. There is considerable force in the contention of the

petitioners in writ petition No.18660 of 2007 that, all the required formalities including the payment of prescribed fee for regularisation, cannot be completed within the stipulated time which will expire on 14th December, 2007. From the submissions of

the learned Advocate General it would appear that the government is also convinced that, certain aspects of the regularisation scheme opposed by the prospective beneficiaries may require review……… . However, we make it clear that

the pendency of these writ petitions will not stand in the way of the government exercising its powers and taking necessary action for addressing the grievances of the people concerned and for amending or modifying the Rules and Regulation

scheme”. Pursuant to these observations, the State Government

had to do a rethinking and reduce the fee for

regularisation. It is also a matter of policy and the State

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Government alone is competent to determine and collect

the fee for permitting regularisation.

10. Similar action of legally permitting

regularisation as a “one time measure” has been

provided for by the State of Tamilnadu and the State of

Gujarat. The Hon’ble Apex Court had the occasion of

dealing with similar provisions enacted by the State of

Tamilnadu in the case of Consumer Action Group and

another Vs. State of Tamilnadu and others. The Hon’ble

Apex Court has opined that the legislative action do not

suffer from vice of excessive delegation of any essential

legislative function. The preamble, objects and reasons

and various provisions of the Act give a clear cut policy

and guidelines to the Government for exercise of its

power. Hence, it is neither unbridled nor without any

guidelines. It is further held in the said case that the

legislation brought by the State of Tamilnadu as a “one

time measure” is a valid piece of legislation and not

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ultra-vires. In similar circumstances, in the case of

Shivalal K Purohit and others Vs. State of Gujarat and

others, the Division Bench of the High Court of Gujarat

has upheld the legislative action of the State of Gujarat

in providing for regularisation of unauthorised

construction and rejected similar contentions of the

petitioners.

11. The objective of the Karnataka Town and

Country Planning Act, 1961 was to achieve a uniform

law for the regulation of planned growth of land use and

development and to make and execute town planning

schemes in the State. The objective of the Act was also

to ensure proper fiscal planning in order to restrict

unmanageable growth of cities, towns and villages in

Karnataka. Thus, the Karnataka Town and Country

Planning Act, 1961 was enacted to solve the town

planning problems.

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12. Despite the best efforts of the respondents,

there were large scale unauthorised development of

buildings in urban areas. In pursuant to the direction

issued by this Court in the above case, the

Commissioner of Bruhath Bengaluru Mahanagara

Palike vide his communication dated 9.4.2014

submitted a report recording statistics and survey of

unauthorised development in the area of Bruhat

Bengaluru Mahanagara Palike to the Secretary to the

Government, Urban Development Department and the

contents of the said report are as under:

“With reference to the subject, letter

of reference (2) and copy of the Hon’ble

High Court interim order dated

19.3.2015, the Hon’ble High Court has

instructed the Government to submit

the statistics whether Bruhat Bengaluru

Mahanagara Palike has conducted the

survey of unauthorised development to

implement The Karnataka Town and

Country Planning (unauthorised

development and construction

regularisation) Rules, 2014. It is further

mentioned that on examination it is

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estimated there are about 16.75 lakhs of

sites/buildings in the jurisdiction of

Bruhat Bengaluru Mahanagara Palike,

out of which, 13.82 lakhs of

sites/properties are coming under tax

collection net. It is also mentioned that

out of 16.75 lakhs sites/buildings for

13.82 lakhs sites/buildings taxes are

being collected and the remaining 2.93

lakhs sites/buildings are estimated as

unauthorised.”

13. As seen from the above, at the present stage,

it has become impossible to correct the unauthorised

development of the buildings without affecting the lives

and livelihood of lakhs of citizens in the urban areas.

Therefore, as a one time measure, the respondent-State

has brought the proposed amendments to regularize the

unauthorised constructions. Hence, the respondent-

State has sought for rejection of all the above petitions

as they are merit less.

14. The proposed amendment to the Acts are as

under:

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“ KARNATAKA ACT NO 1 OF 2007

(First Published in the Karnataka Gazette Extra-ordinary on the sixth day of February, 2007)

THE KARNATAKA TOWN AND COUNTRY PLANNING

AND CERTAIN OTHER LAWS (AMENDMENT) ACT, 2004

(Received the assent of the Governor on

the third day of February, 2007)

An Act further to amend the Karnataka Town and Country Planning Act, 1961, the Karnataka Municipal Corporations Act, 1976 and the Karnataka Municipalities Act, 1964.

Whereas it is expedient further to

amend the Karnataka Town and Country Planning Act, 1961, (Karnataka Act 11 of 1963), the Karnataka Municipal Corporations Act, 1976 (Karnataka Act 14 of

1977) and the Karnataka Municipalities Act, 1964 (Karnataka Act 22 of 1964).

Be it enacted by the Karnataka State

Legislature in the fifty-fifth year of the Republic of India, as follows:-

1. Short title and commencement.-

(1) This Act may be called the Karnataka Town and Country Planning and Certain Other Laws (Amendment) Act, 2004.

(2) It shall come into force on such date as the State Government may, by notification appoint.

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2. Amendment of Karnataka Act 11

of 1963.- In the Karnataka Town and Country Planning Act, 1961 (Karnataka Act

11 of 1963), after section 76F, the following shall be inserted, namely:-

"76 FF. Regularisation of certain

development and change of land use.- (1) Notwithstanding anything contained in this

Act, where any land has been developed or change in land use is made in contravention of section 14, 14A, section 15, section 17 or the regulations or in contravention of commencement certificate granted under section 15, the Planning Authority may

regularise such development and change of land use made prior to the date of commencement of the Karnataka Town and Country Planning and Certain other Laws (Amendment) Act, 2004, subject to such rules as may be prescribed and on payment

of the prescribed amount, which may be different for different purposes, but not exceeding the estimated cost of the development.

(2) No such development or change in

land use referred to in sub-section (1) shall be regularised, if it is made,-

(i) in the land affected by the alignments of any road or of proposed inner ring road, National

High Ways, bypass road, outer ring road or mass rapid transit system (rail) projects;

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(ii) on the land belonging to the State Government or the Central Government or appurtenant to any

building belonging to the State Government or the Central Government; (iii) on the land belonging to an other person over which the former

has no title; (iv) on the land belonging to any Board or Corporation owned or controlled by the Central Government or the State

Government; (v) on the land belonging to, or vested in, any Urban Development Authority or Bangalore Development Authority;

(vi) on the land belonging to, or vested in, a local authority; (vii) on the land abutting to storm water drains, tank bed areas, river

course or beds and canals or below the high tension electric line; (viii) in land reserved for parks, playgrounds, open space or for providing civic amenities.

(3) No development being a special and hazardous industry or an industry

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categorised as "RED" by the Karnataka Pollution Control Board shall be regularised in a nonconforming zone. Even in a conforming zone, it shall be regularised only

with the clearance from the Karnataka Pollution Control Board. (4) No development shall be regularised unless it conforms in respect of clearance from high-tension lines and fire protection

measures. (5) No development shall be regularised in the area covered by the Coastal Zone Regulations of the Ministry Environment and Forest, Government of India.

(6) No development made in basement or usage in contravention of bye law shall be regularized. (7) No development in violation of set back

norms exceeding twenty-five percent in case of non-residential buildings and fifty percent in case of residential buildings shall be regularized. (8) No development shall be regularised

unless the violation in respect of change in land use is first regularised. (9) No development where the violation is in excess of such prescribed limit but not exceeding fifty percent of permissible floor

area ratio in respect of residential buildings and not exceeding twenty five percent of permissible floor area ratio in respect of non-

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residential buildings shall be regularized and different maximum limit may be prescribed in respect of different class of development:

Provided that where such development resulting in violation is in excess of prescribed limit, such development shall not be regularized unless the development resulting in violation is brought down within the regularisable limit under this Act.

(10) Regularisation of violation in respect of change of land use shall be made as far as may be in accordance with section 14A; (11) No development in respect of any

building having more than two floors shall be regularised unless a certificate from a Structural Engineer is produced regarding the structural stability of such building; (12) In case of a owner of the building who

has made unauthorised construction in violation of the norms or zonal regulation and do not apply for regularisation within the prescribed time, the supply of water and electricity to the building shall be liable to be disconnected with prior notice.

(13) Any person seeking regularisation under this section shall make an application to the Planning Authority within three months from the date of commencement of the Karnataka Town and Country Planning and Certain

Other Laws (Amendment) Act, 2004.

34

(14) No unauthorised construction or development made in agricultural zone of approved Master Plan or green belt area declared under Karnataka Land Revenue

Act, 1964 shall be regularized. (15) No person shall be liable to pay fine or fee for regularisation under any other law if he has paid regularisation fee under this Act for the same violations.

(16) All payments made under sub-section (1) shall be credited to a separate fund kept in the concerned Local/Planning Authority called the urban areas infrastructure Development fund which shall be utilized in

such manner, for the development of infrastructure, civic amenities, lighting, parks, drinking water, drainage system and for any other infrastructure, as may be prescribed.

76FFF. Penalty against jurisdictional officer failing to prevent unauthorised deviations or constructions.- The jurisdictional officer who is proved to have failed to prevent unauthorised deviation or construction that have taken place in his

jurisdiction shall be liable for such punishment as may be prescribed." 3. Amendment of Karnataka Act 14 of 1977.- In the Karnataka Municipal Corporations Act, 1976 (Karnataka Act, 14 of

1977), after section 321, the following shall be inserted, namely:-

35

"321-A. Regularisation of certain unlawful buildings.- (1) Notwithstanding anything contained in this Act, when construction of any building is completed in contravention of

the section 300, section 321 and building bye-laws made under section 423, the Commissioner may regularise building constructed prior to the date of commencement of the Karnataka Town and Country Planning and Certain other Laws

(Amendment) Act, 2004 subject to the following restrictions and such rules as may be prescribed and on payment of the amount specified in sub-section (2), namely:- (a) Where the building is built abutting the

neighbouring property or where the set back provided is less than the limit prescribed in bye laws, violation upto twenty-five percent in case of non-residential buildings and fifty percent in case of residential buildings shall be regularized.

(b) No development made in the basement or usage in contravention of bye law shall be regularized. (c) The construction of building shall not be

regularised if it violates the building line specified on any given road unless the owners of such building furnish an undertaking that the space between the building line and the road or footpath or margin will be given up free of cost at any

time when required for the purpose of widening the road in question.

36

(d) The provisions of sub-sections (2) to (14) of section 76 FF of the Karnataka Town and Country Planning Act, 1961, shall apply mutatis mutandis for regularisation of

building under this section and application for regularisation being made to the Commissioner. (2) Regularisation of any construction under this section shall be subject to payment of

the prescribed amount which may be different for different types of contravention of building bye-laws; Provided that the amount so prescribed shall not be less than,-

(i) ten percent of the market value,

determined in accordance with the Karnataka Stamp Act, 1957 and rules made thereunder, of the portion of the building built in violation of the provisions referred to

above, if such violation of set back norms and permissible floor area ratio does not exceed twenty five percent;

(ii) twenty five percent of the market

value, determined in accordance with the

Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio exceeds twenty five percent but does not

exceed fifty percent:

37

Provided further that where the portion of the building is built in violation of the provisions referred to above is being used or meant for non-residential purpose and

amount payable for regularisation of such portion shall be,- (a) twenty five percent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and the rules

made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio does not exceed twelve and a half percent;

(b) forty percent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set

back norms and permissible floor area ratio exceeds twelve and a half percent but does not exceed twenty five percent. (3) No person shall be liable to pay fine or fee for regularisation under any other law if he

has paid regularisation fee under this Act for the same violations. (4) All payments made under sub-section (1) shall be credited to a separate fund kept in the concerned Local/Planning Authority

called the urban areas infrastructure Development fund which shall be utilized in such manner, for the development of

38

infrastructure, civic amenities, lighting, parks, drinking water, drainage system and for any other infrastructure, as may be prescribed.

321B. Penalty against jurisdictional officer failing to prevent unauthorised deviations or constructions.- The jurisdictional officer who is proved to have failed to prevent unauthorised deviation or

construction that have taken place in his jurisdiction shall be liable for such punishment as may be prescribed." 4. Amendment of Karnataka Act 22 of 1964.- In the Karnataka Municipalities Act

(Karnataka Act 22 of 1964), after section 187, the following shall be inserted, namely:- "187-A. Regularisation of certain unlawful building.-(1) Notwithstanding anything contained in this Act, when

construction of any building is completed in contravention of section 187 and building bye-laws, the Municipal Commissioner or the Chief Officer, as the case may be, may regularise building constructed prior to the date of commencement of the Karnataka

Town and Country Planning and Certain other Laws (Amendment) Act, 2004, subject to the following restrictions and such rules as may be prescribed and on payment of the amount specified in sub-section (2), namely:-

(a) Where the building is built abutting the neighbouring property or where the set back provided is less

39

than the limit prescribed in bye laws, violation upto twenty-five percent in case of non-residential buildings and fifty percent in case of residential

buildings shall be regularized. (b) No development made in the

basement or usage in contravention of bye law shall be regularized:

(c) The construction of a building shall not be regularised if it violates the building line specified on any given road unless the owners of such building furnish an undertaking that the space between the building line

and the road or footpath or margin will be given up free of cost at any time when required for the purpose of widening the road in question.

(d) The provisions of sub-sections

(2) to (14) of section 76 FF of the Karnataka Town and Country Planning Act, 1961, shall apply mutatis and mutandis for regularisation of building under this section and the application being made to the Municipal

Commissioner or the Chief Officer, as the case may be. (2) Regularisation of any construction under this section shall be subject to payment of the prescribed amount which may be

different for different types of contravention of building bye-laws;

40

Provided that the amount so prescribed shall not be less than,-

(i) ten percent of the market value,

determined in accordance with the Karnataka Stamp Act, 1957 and rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio does not

exceed twenty five percent; (ii) twenty five percent of the market

value, determined in accordance with the Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the

building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio exceeds twenty five percent but does not exceed fifty percent:

Provided further that where the portion of the building is built in violation of the provisions referred to above is being used or meant for non-residential purpose and amount payable for regularisation of such portion shall be,-

(a) twenty five percent of the market

value, determined in accordance with the Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the building built in violation of the provisions

referred to above, if such violation of set back norms and permissible floor area ratio does not exceed twelve and a half percent;

41

(b) forty percent of the market value,

determined in accordance with the Karnataka Stamp Act, 1957 and the rules

made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio exceeds twelve and a half percent but does not exceed twenty five percent.

(3) No person shall be liable to pay fine

or fee for regularisation under any other law if he has paid regularisation fee under this Act for the same violations.

(4) All payments made under sub-section (1) shall be credited to a separate fund kept in the concerned Local/Planning Authority called the urban areas infrastructure Development fund which shall be utilized in such manner, for the

development of infrastructure, civic amenities, lighting, parks, drinking water drainage system and for any other infrastructure, as may be prescribed.

187B. Penalty against jurisdictional

officer failing to prevent unauthorised deviations or constructions.- The jurisdictional officer who is proved to have failed to prevent unauthorised deviation or construction that have taken place in his jurisdiction shall be liable for such

punishment as may be prescribed.”

42

15. We have heard the arguments of learned

Advocate Smt. Jayna Kothari, learned Senior Advocate

Sri. Sajan Poovaiah, and learned Advocate

Dr.Ramachandran, appearing for the petitioners and

also the arguments of the learned Advocate General

appearing for the respondent State and learned Senior

Advocate Sri.Udaya Holla, appearing for respondent

No.5.

16. The first and foremost contention of the

petitioners in the above petitions is that in Tamil Nadu

and Gujarat cases, the proposed amendments are made

as a one time measure, but in the case on hand, the

State Government, in the year 1991, has already

enacted a regularisation law being the Karnataka

Regularisation of Unauthorised Construction in Urban

Areas Act, 1991, and this method of once again

providing for regularisation falls foul of the entire

43

thinking behind regularisation. The further contention

of the petitioners is that if regularisation is permitted to

take place every 20 years in the State, virtually every

legal construction can eventually be regularized, and,

thus, the urban planning laws and master plan laws

would have no meaning. In this connection, we are

referring to the decision of the Hon’ble Apex Court in

the case of CONSUMER ACTION GROUP AND

ANOTHER VS. STATE OF T.N. AND OTHERS reported

in (2007) 7 SCC 425 wherein it is observed by Their

Lordships at Para Nos.35 and 36 as under:

35. The submission is that this amending Act will greatly prejudice the public safety,

security, fresh air and light and convenience to the public at large. Under Section 113-A the Government is empowered to grant exemption to such person who makes any application for exempting any land or building developed prior to the date of the

commencement of the amending Act from applicability of any of the provisions of this Act and Rules by collecting the regularisation fees, as prescribed. So, this section not only infuses the Government with power to exempt but also lays down the

44

procedure and condition to grant exemption. This covers all buildings or land developed immediately before the date of the commencement of the aforesaid 1998 Act.

Here Legislature lays down everything and does not leave to the absolute direction of the delegatee. So, Section 113-A cannot be challenged that discretion of the delegatee is unbridled or uncanalised as section itself confers full guidelines in this regard. It is

significant also to reproduce the Objects and Reasons for the introduction of this section which is quoted below:

The Statement of Objects and Reasons for

the Amendment Act state that:

As of today in Chennai as well as in other

metropolitan cities of India many aberrations

in the urban development are noticed. Huge

disparities between peoples income and

property value, together tempt the builders

to violate the rules and the buyers to opt for

such properties in the city of Chennai. A

rough estimate of about three lakh buildings

(approximately 50% on total number of

buildings) will be violative of Development

Control Rules or unauthorised structures.

However, according to the Tamil Nadu Town

and Country Planning Act, 1971 (Act 35 of

1972) the demolition action cannot be

pursued on any of them unless a notice was

issued within 3 years of completion. The

Chennai Metropolitan Development

45

Authority has booked five thousand

structures on which demolition action could

be taken. Number of such cases booked by

the Chennai City Municipal Corporation

within its jurisdiction is nearly one

thousand. Administratively also demolition of

such a large number of cases is neither

feasible nor desirable as it will result in

undue hardship to the owners and occupants.

Considering this and the practice followed in

other metropolitan cities of the country to deal

with violated constructions, the State

Government have taken a policy to exempt the

lands and buildings developed immediately

before the date of commencement of the

proposed legislation by collecting

regularisation fee provided that the

development has been made by a person

who has right over such land or buildings.

(emphasis supplied)

36. The Statement of Objects and Reasons

exhibits the change of Legislative policy to regularise all those buildings or lands developed in contravention of the various provisions of the Act and the Rules. Section 113-A read with the Statement of Objects and Reasons clearly indicates Legislatures intent and policy, instead of demolishing

illegal constructions to regularise them by charging regularisation fees. Thus no similar attributable vice could be attached

46

to Section 113-A which was submitted for Section 113. Section 113-A Legislature, itself lays down what is to be done by the Government, while in Section

113 Government is conferred with wide discretion though to act within the channel of the policy. In Section 113-A hardly any discretion is left to the Government while in Section 113 very large discretion is left. Challenge to Section 113 is unguided wide

power to a delegatee, but no such challenge could be made against Legislature. Section 113-A is mandate of the Legislature itself to grant exemption and realise regularisation fees no discretion on the delegatee. Hence we hold Section 113-A as a one time measure is

valid piece of legislation and challenge to its validity has no merit. It is interesting, though a matter of concern, what is recorded in the Statement of Objects and Reasons. It records; (A) A Rough estimate of about three

lakh buildings (Approximately 50% of the total number of buildings) will be violative of Development Control Rules or unauthorised structure. (B) Under the Act demolition action against such structure cannot be pursued

against any of them unless a notice was issued within 3 years of its completion. (C) Chennai Metropolitan Development Authority could book only five thousand such structures and Chennai City Municipal Corporation could book only one thousand

such buildings against which demolition action could be taken.

47

(D) Administratively also demolition of such a large number of cases is neither feasible nor desirable, as it will result in undue hardship to the owners and the

occupants. (E) Considering practice followed in other metropolitan cities of the country, the State Government took a policy decision to exempt buildings and lands by collecting regularisation fees.

We have perused the decision of the High Court of

Gujarat in SHIVLAL K PUROHIT AND OTHERS VS.

STATE OF GUJRAT in Spl. Civil application

No.2865/2012 and the connected matters decided on

06.09.2012

17. In the case on hand, looking to the materials,

it is brought to the notice of this Court by the learned

Senior Advocate appearing for respondent No.5 that,

even earlier also, when the amendment was brought in

the year 1991, and when it was challenged before this

Court, the same was set-aside and subsequently, the

Karnataka State Legislature rectified its mistake and

48

again brought the proposed amendment as the

buildings constructed are contrary to zoning

regulations. Again it was challenged by filing the writ

petition before this Court and the offending portion of

the building namely 6th, 7th and 8th floor of the building

was directed to be demolished, which came to be

affirmed by the Hon’ble Supreme Court. Subsequent

thereto, Bangalore City Planning Area Zonal

Regularisation (Amendment and Validation) Act, 1996,

was enacted by the State Legislature, which resulted in

regularisation of offending portion of the buildings in

question. The validity of the said enactment was

challenged wherein the validity of the Act has been

upheld by the Hon’ble Supreme Court holding that the

building that has deviated the zoning regulations may

be regularised by the State Government as an

authorised construction. Even in the statement of

objections, the respondent State has made it clear about

the earlier amendment brought. It is also contended by

49

the respondent-State that even though the earlier

validity of the amendment has been ultimately upheld

by the Hon’ble Supreme Court, the same was not

implemented since the Rules were not framed. Knowing

this factual aspect fully well, the petitioners herein have

pleaded, in the petitions, that this is the second time

the proposed amendments were brought and hence,

they cannot be construed as one time measure and

cannot be held as valid. In the writ petitions itself, the

petitioners have admitted that the earlier amendments

proposed by the State Legislature were challenged by

filing the writ petition and they obtained stay of

implementation of the said amended provisions and

even mentioned the said writ petition numbers in their

petition. It is well within the knowledge of the

petitioners that earlier amendments proposed were not

implemented by the State Government and the

materials placed on record by both the sides show that

the proposed amendments brought at present are

50

virtually first in time and as one time measure for

regularizsation of unauthorised construction and for

regulation of the development of land and growth of the

cities. Therefore, the contention of the petitioners that

it is not one time measure and repeatedly the

Government of Karnataka is bringing such

amendments, cannot be accepted at all.

18. The further contention of the petitioners is

that in the amendments proposed to be brought in the

amendment Act, there is no preamble, object and

reasons, which is sought to be achieved and therefore,

without having specific preamble, object and reasons,

the proposed amendment cannot be held as valid

amendment and it is liable to be held as

unconstitutional. In this connection, learned Advocate

appearing on behalf of the petitioners, while arguing the

case, submitted that so far as the amendments brought

by Tamil Nadu State, so also, Gujarat State is

51

concerned, the amending Acts were having the

preamble, object and reasons to be achieved by bringing

such proposed amendments. Therefore, that was also

one of the reasons to uphold the State amendments in

both the cases. Hence, it is contended that looking to

the proposed amendments, in the case on hand, it is

very clear, no objects and reasons are forthcoming,

Therefore, the respondent-State cannot take shelter

under the judgments in respect of Tamil Nadu and

Gujarat amendment Acts.

By way of reply to the said contention, it is the

contention of the respondents that the objects and

reasons mentioned to the Statute to be brought by way

of amendment itself is not the sole criteria while

upholding or otherwise of the validity of such

amendments. The Court has to see not only the

preamble portion, object and reasons, but the entire

provisions in the Act to ascertain whether by such

amendments what is going to be achieved is to be

52

ascertained. In this connection, the respondents have

relied upon the decision of the Hon’ble Supreme Court

in the case of BHAIJI VS. SUB-DIVISIONAL OFFICER,

THANDLA AND OTHERS reported in 2003 (1) SCC

692, and the relevant para-11 reads as under:

11. Referring to the Statement of Objects

and reasons is permissible for

understanding the background, the

antecedent state of affairs, the surrounding

circumstances in relation to the Statute, and

the evil which the statute sought to remedy.

The weight of judicial authority leans in

favour of the view that the Statement of

objects and Reasons cannot be utilized for

the purpose of restricting and controlling the

plain meaning of the language employed by

the legislature in drafting the Statute and

excluding from its operation such

transactions which it plainly covers.

In this connection, it is beneficial to refer to

the decision reported in (1986) 2 SCC 237

in the case of Girdhari Lal and Sons v.

53

Balbir Nath Mathur, wherein the Hon’ble

Apex Court held that the Court can by

ascertaining legislative intent place such

construction on a Statute as would advance

its purpose and object. Where the words of

a Statute are plain and unambiguous, effect

must be given to them. The legislature may

be safely presumed to have intended what

the words plainly say. The plain words can

be departed from when reading them as they

are leads to patent injustice, anomaly or

absurdity or invalidation of a law. The Court

permitted the statement of objects and

reasons, parliamentary debates, reports of

Committees and Commissions preceding the

legislation and the legislative history being

referred to for the purpose of gathering the

legislative intent in such cases. The law so

stated does not advance the contention of Sri

Gambhir. The wide scope of transactions

covered by the plain language of Section

170B as enacted in 1980 cannot be scuttled

or narrowed down by reading the Statement

of Object and Reasons.”

54

Therefore, looking to the judgments of the Hon’ble

Supreme Court, in the said decision also, it shows that

the statement of object and reasons are not the only

things that would be looked into, but the entire statute

and the provisions are to be looked into to gather the

correct meaning and the real intent of such provisions.

Therefore, in the case on hand, only on the bare

contention that the Statute, containing the proposed

amendments brought by the Karnataka Government,

has not stated its objects and reasons, cannot be the

reason to set aside the said Statute as contended by the

petitioners.

19. The further contention of the petitioners that

regularisation fee for unauthorised layouts or sites in

corporation areas outside Bengaluru per square meters

is fixed in 2014 Rules as Rs.30 per sq.mt. for land upto

60 sq.mt., Rs.80/- for land between 60-120 Sq.mt. and

Rs.250/- for land above 120 sq.mt. Regularisation fee

55

for setback and Floor Area Violations in residential

buildings, as per 2007 Rules, 10% of the market value

of land for regularisation of violation upto 25% and 25%

of the market value for violations upto 50%, but in 2014

Rules, it is 6% of market value of land for upto 25%

violation and 8% for violation upto 50%. And for set-

back and FAR violations in commercial buildings, as per

2007 Rules, it is 25% of the market value in case of

setback violations upto 12.5% and 40% of the market

value for violations upto 25%, but in 2014 Rules, it is

20% of market value of land for upto 12.5% violation

and 35% for violation upto 25%. On the basis of the

chart and the figures furnished, it is contended by the

petitioners that reducing the fee for regularisation in

2014 Rules as compared to 2007 Rules, is nothing but

giving encouragement to law violators. The ratio fixed

for collection of the said fee for regularisation has no

scientific basis and hence, they are arbitrary in nature.

56

20. The petitioners contended that even the time

for filing applications seeking regularisation has also

been extended from 2007 upto October 19th 2013,

which shows that the violators of the building bye-laws

and regulations were still encouraged to make the

constructions by violating the building bye-laws. But

the said contention cannot be accepted in view of the

direction issued by this Court in the writ petition

No.18660/2007, wherein it has been observed that the

time granted for submitting the applications for

regularisation is inadequate and unreasonable. The

further observation of this Court that there is

considerable force in the contention of the petitioners in

writ petition No.18660/2007 that all the required

formalities including the payment of prescribed fee for

regularisation, cannot be completed within the

stipulated time, which expired on 14.12.2007; from the

submissions of the learned Advocate General it would

appear that the Government is also convinced that

57

certain aspects of regularisation scheme opposed by the

prospective beneficiaries may require review. However,

the Court made it clear that pendency of those writ

petitions will not stand in the way of Government

exercising its power and taking necessary action for

addressing the grievances of the people concerned and

for amendment or modifying the rules and regulation

scheme. Therefore, the extension of time for submitting

the application seeking regularisation is not by the

respondent-Government by its own, but it is because of

direction issued by this Court in the writ proceedings.

21. As per the direction issued by this Court in

W.P.No.8895/2015 filed by Citizens Forum for

Mangalore Development against the State Government

and others, survey was conducted by the

Commissioner, Bruhat Bengaluru Mahanagara Palike,

to ascertain the data regarding the extent of violation in

Benglauru City, percentage of such unauthorised

58

construction, percentage of construction in violation of

building bye-laws as per the random sample survey.

The Commissioner, Bruhat Bengaluru Mahanagara

Palike, submitted report to the Secretary of the State

Government, which reads as under:

“To, The Secretary of Government Urban Development Department Vikasa Soudha Bangalore-560 001.

Dear Sir, Sub: Hon’ble High Court, Bangalore, W.P.No.8895/2015, Citizen Forum for Mangalore Development against State Government and

Others. Ref: 1) Government Letter No.UDD 117 MyApra 2015, dated: 25-03-2015 2) Government Principal Advocate,

Karnataka High Court, Bangalore letter dated: 20.03.2015

* * * * * * * With reference to the subject, letter of referenced (2) and the copy of the Hon’ble High Court Interim Order dated: 19-03-2015

is enclosed for your kind perusal, the Hon’ble High Court has instructed the government to submit the statistics whether

59

Bruhat Bengaluru Mahanagara Palike has conducted the Survey of unauthorised development to implement Karnataka Town and Country Planning (un authorized

development and construction regularisation) Rules 2014. On examination it is estimated that there are about 16.75 Lakhs of sites/buildings in the jurisdiction of Bruhat

Bengaluru Mahanagara Palike out of which 13.82 lakhs of sites/properties are coming under tax collection net. The tax has been collected every year from 13.82 lakhs sites/buildings owners by the BBMP.

The details of 13.82 lakhs properties/buildings are as below.

Sl No.

Usage Percentage Total Nos. of Properties

1 Residential 73.74 10.19 Lakhs

2 Commercial 9.69 1.34 Lakhs

3 Mixed Use 4.41 0.61 Lakh

4 Vacant Sites 12.16 1.68 Lakhs

Out of 16.75 lakhs sites/buildings for 13.82 lakhs sites/buildings taxes are being

collected and the remaining 2.93 lakhs of sites/buildings are estimated as unauthorised. Since the unauthorised developments are huge it was not possible to conduct survey from BBMP. Hence, during the year 2014 Randum Sample Survey was

conducted in BBMP for ward nos 56, 72, 80 and 109. Based on the Random Sample Survey following information is derived.

60

I Empirical data regarding, the extent of violation in Bengaluru City

Properties/buildings/Sites 2,93,000 Nos

II Percentage of such unauthorised construction

2.93,000 x 100 = 17.49 16,75,000

III Percentage of Contruction in violation of building bye-laws

as per RANDOM Sample Survey

Residential 0-50% - 52.5% Above 50% - 47.50%

Non Residential 0-25% - 18.25% Above 25% - 81.75%

IV. Details of approximate fees that could be collected form 1,53,419 properties

Sl. No.

Usage Percentage of Usage

Total No. of

Properties

Regularisation fee per

property

Amount (In

Crores)

1 Residential 73.93 1,13,430 1 lakh 1134.00

2 Commercial 2.85 4,360 2 lakhs 88.00

3 Vacant

Sites

23.22 35,629 0.50 lakh 178.00

Total 1400.00

V. Number of violations that would be eligible for regularisation, under the present scheme

Residential 52.5% i.e. 2,16,058 x 0.525 = 113430 Nos.

Non Residential 18.25% i.e. 28,392 x 0.1825 = 4360 Nos.

Vacant Sites 35629 Nos.

Total 153419 Nos.

Bringing the above information to the notice of the government, since the information is

61

to be submitted to the Hon’ble High Court, submitted for further necessary action.

Sd/- Commissioner Bruhat Bengaluru Mahanagara Palike.”

22. We have also carefully perused the draft rules

of Karnataka Town and Country Planning

(Regularisation of Unauthorised Development or

Constructions) Rules 2013, published in the Karnataka

Gazette dated 28.05.2014; Rule 16 provides for

Regularisation Fees and Rule 17 provides for Fees

prescribed for regularisation of unauthorised

development of buildings, are relevant for the purpose of

consideration. Perusing the said Rules 16 and 17, the

Government on the basis of the report submitted by the

Commissioner, Bruhat Bengaluru Mahanagara Palike,

after conducting the survey, as mentioned above, and

taking into consideration all these aspects, ultimately

fixed the regularisation fees of unauthorised

62

development of buildings when the respondent-

Government has taken into consideration the direction

issued by this Court in the writ proceedings and after

conducting the survey regarding unauthorised

constructions by violating building bye-laws and after

detailed study, framed the rules regarding

regularisation fees.

23. Therefore, looking to these materials placed

on record by the respondent-State, the State has taken

into consideration every aspect of the matter basing on

the statistics as per the survey conducted by the

Commissioner, Bruhat Bengaluru Mahanagara Palike.

Therefore, the contention of the petitioners that the

fixation of the fees and extension of time is arbitrary in

nature and it is without any basis, cannot be accepted

at all.

63

24. It is the contention of the writ petitioners that

the proposed amendments by way of inserting new

Sections to the Acts and the Rules framed are violative

of Articles 14 and 21 of the Constitution of India,

because there is no prior consultation with Bengaluru

Metropolitan Committee, which was constituted under

Section 503-B of the Karnataka Municipal Corporations

Act, 1976. But looking to the materials placed by both

sides and the dates furnished, the question of

consulting the Bengaluru Metropolitan Committee

before bringing such proposed amendments by the

State, does not arise in this case, since Bengaluru

Metropolitan Committee was constituted and notified on

8.1.2014, whereas the draft rules of the Karnataka

Town and Country Planning (Regularisation of

Unauthorised Development or Constructions) Rules,

2013 was published on 31.12.2013 and was gazetted on

the same day, which is much before the constitution of

Bengaluru Metropolitan Committee. Therefore, the

64

contention of the writ petitioners that there ought to

have been consultation with the Bengaluru Metropolitan

Committee cannot be accepted at all.

25. The further contention of the writ petitioners

is that the proposed amendments are contrary to or in

violation of Section 14 and 14-A of the Karnataka Town

and Country Planning Act. We have perused the

proposed Act and the Rules, wherein arrangement has

been made with certain conditions for regularisation of

unauthorised constructions and the amendments are

made by the State Government considering the public

need. Since the proposed amendments are in public

interest, the question of violation of Section 14 or 14-A

of the Karnataka Town and Country Planning Act will

not arise in these cases.

26. The proposed amendments, brought by way of

amending the Karnataka Town and Country Planning

65

and Certain Other Laws (Amendment) Act and the other

enactments, are the policy matters of the Government of

Karnataka. The Government can bring such proposed

amendments and the Court cannot interfere into the

policy matters of the Government. But under the

judicial review, the Court can exercise the power to see

as to whether the proposed amendments are

unconstitutional or arbitrary in nature. It is the

common knowledge of everybody that before passing

such amendments to the respective provisions, the

legislature will have the discussion over the proposed

amendments and then only, the said provisions will be

finalised. In this connection we are referring to the

decision of the Hon’ble Apex Court, in case of

HAMDARD DAWAKHANA AND ANOTHER Vs. THE

UNION OF INDIA AND OTHERS reported in AIR 1960

SC 554. The relevant paragraph for our discussion is

as under:

66

“9. Another principle which has to be borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands

and appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which

they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment. ”

27. There are buildings constructed contrary to

zoning regulations. On a writ before this Hon’ble Court,

the offending portion of the building namely 6th, 7th and

8th floor of the building was directed to be demolished,

which came to be affirmed by the Hon’ble Supreme

Court. Subsequent thereto, Bangalore City planning

area Zonal Regulations (Amendment and Validation)

Act, 1996 was enacted by the State Legislature, which

resulted in regularisation of the offending portion of the

building in question. Validity of the said enactment was

challenged. The Hon’ble Supreme Court, while allowing

67

the appeals, in case of BAKHTAWAR TRUST AND

OTHERS Vs. M.D. NARAYAN AND OTHERS reported in

(2003) 5 SCC 298 has held as under:

“ 30. A perusal of the impugned Act further reveals that the stipulated maximum height upto which a building may be constructed

under the Zonal Regulations, 1972, has been retrospectively modified, thereby allowing a maximum height of any building above 165 feet, as opposed to the earlier permissible maximum height of 55 feet. The legislature has, therefore, not merely negated the effect

of any prior judgment; but it has removed the actual basis upon which the judgment was based and thereafter validated the actions. It would no more be possible for a Court to conclude that the buildings concerned violated the terms of Zonal

Regulations, since the legal basis has now been altered through an enhancement of the maximum permissible height retrospectively. We are, therefore, of the view that the impugned Act is constitutionally valid.

31. It was then urged on behalf of the respondents that a perusal of the Statement of Objects and Reasons for the Validation Act shows that the intention of the legislature was rather to render the decision of the High Court infructuous than to correct

any infirmity in the legal position. For this, reliance was sought to be placed on the Statement of Objects and Reasons of the

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impugned enactment. It is well settled by the decisions of this Court that when a validity of a particular statute is brought into question, a limited reference, but not

reliance, may be made to the Statement of Objects and Reasons. The Statement of Objects and Reasons may, therefore, be employed for the purposes of comprehending the factual background, the prior state of legal affairs, the surrounding circumstances

in respect of the statute and the evil which the statute has sought to remedy. It is manifest that the Statement of Objects and Reasons cannot, therefore, be the exclusive footing upon which a statute is made a nullity through the decision of a Court of

law. 33. It would be pertinent for us to observe at this stage that in view of Section 3(1) of the impugned Act, any building that has deviated from the Zonal Regulations, as

modified, may nonetheless be regularized by the State Government as an authorised construction. It may be seen, then, that the nature of the provision under the Regulation, stipulating a height of 55 feet has thereby undergone a radical change. The provision

that was earlier in the nature of a sine qua non would now be subject to post-construction regularisation to the extent that under Section 3(3) of the impugned Act the authority concerned is empowered to determine a penalty for deviations not

amounting to material deviations.

69

34. It follows that the basis of the decision of the High Court has undergone a change. Earlier, the High Court could not but take the view that construction of a building in

excess of a height of 55 feet was in violation of Zonal Planning Regulations. Now, under the changed law, it would not be permissible for the High Court to take that view. 36. It is true that under Section 13, the

method of framing of the Zonal Regulations is provided under which a maximum height of a building can be provided by the impugned Act. The legislature in its wisdom thought to provide a maximum height of a new building in the statute itself and it is no

longer left to the discretion of the authority to provide a maximum height of a new construction by framing Zonal Regulations under the Act. Now, the Outline Development Plan as prescribed in the Schedule appended to the new Act, cannot

even be amended by the procedure prescribed under Chapter III of the Planning Act. The impugned Act substituted the existing Regulations with a statutory Zonal Regulation to the extent it provided maximum height of a new building. Further,

this is done with retrospective effect i.e. for the entire period during which the Outline Development Plan remained in force i.e. from 1972 to 1984. It is settled law that where a law is retrospectively amended, the consequences of such retrospective

amendment are that all actions have to proceed on the premise that the law, as amended, was always the law in force. In

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that view of the matter there was neither any need for the legislature to modify the maximum height of a new building in the manner provided in the Planning Act nor to

amend the provisions of the Planning Act providing for method of framing the Zonal Regulations. 37. For the aforesaid reasons we are of the view that the impugned Act is

constitutionally valid and the view taken by the High Court in striking down the Act was erroneous. ”

28. The legality of the policy and not the wisdom

or soundness of the policy can be the subject matter of

the judicial review. It is not for the Courts of law to

enquire as to whether a policy is wise, acceptable or

better policy can be evolved as held by the Hon’ble Apex

Court in various pronouncements.

29. As we have already observed above, before

bringing such proposed amendment, the State

Government, as directed by this Court, in the writ

proceedings, conducted survey with regard to

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unauthorised construction in the City of Bengaluru,

through the Commissioner of Bruhat Bengaluru

Mahanagara Palike. After looking to his report and the

statistics in the said report, the legislature discussed

upon the same and brought the proposed amendment.

There is a proper mental application of the legislature

while bringing the proposed amendment to the

abovementioned enactments by way of inserting the new

sections and also by framing the relevant rules for

regularisation of unauthorised construction.

30. We have perused the proposed amendments.

Looking to the amendment of Karnataka Act No.11 of

1963, in the Karnataka Town and Country Planning

Act, 1961 (Karnataka Act 11 of 1963), after Section 76F,

Section 76FF was inserted by way of amendment under

the heading ‘regularisation of certain development and

change of land use’. Perusing clause (2) of Section 76FF,

it reads as under:

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(2) No such development or change in land use referred to in sub-section (1) shall be regularised, if it is made,-

(i) in the land affected by the alignments of any road or of proposed inner ring road, National High Ways, bypass road, outer ring road or mass rapid transit system (rail) projects;

(ii) on the land belonging to the State Government or the Central Government or appurtenant to any building belonging to the State Government or the Central Government;

(iii) on the land belonging to an other person over which the former has no title; (iv) on the land belonging to any Board

or Corporation owned or controlled by the Central Government or the State Government; (v) on the land belonging to, or vested in, any Urban Development Authority

or Bangalore Development Authority; (vi) on the land belonging to, or vested in, a local authority; (vii) on the land abutting to storm

water drains, tank bed areas, river course or beds and canals or below the high tension electric line;

73

(viii) in land reserved for parks, playgrounds, open space or for providing civic amenities.

Another amendment is by way of amendment in

Karnataka Municipal Corporation Act, 1976 (Karnataka

Act 14 of 1977). After Section 321 under the said Act,

Section 321-A was inserted under the heading

‘regularisation of certain unlawful buildings’, wherein

the said provision reads as under:

(1) Notwithstanding anything contained in this Act, when construction of any building is completed in contravention of Section 300, Section 321 and building bye-

laws made under Section 423, the Commissioner may regularise building constructed prior to the date of commencement of the Karnataka Town and Country Planning and Certain other Laws (Amendment) Act, 2004 subject to the

following restrictions and such rules as may be prescribed and on payment of the amount specified in sub-section (2), namely:-

(a) Where the building is built

abutting the neighbouring property or

where the set back provided is less than the limit prescribed in bye laws, violation upto twenty-five percent in

74

case of non-residential buildings and fifty percent in case of residential buildings shall be regularized.

(b) No development made in the basement or usage in contravention of bye law shall be regularized.

(c) The construction of building

shall not be regularised if it violates the

building line specified on any given road unless the owners of such building furnish an undertaking that the space between the building line and the road or footpath or margin will be given up free of cost at any time

when required for the purpose of widening the road in question.

(d) The provisions of sub-sections (2) to (14) of section 76 FF of the Karnataka Town and Country Planning Act, 1961,

shall apply mutatis mutandis for regularisation of building under this section and application for regularisation being made to the Commissioner.

The next amendment is the Amendment of Karnataka

Act 22 of 1964. In the Karnataka Municipalities Act

(Karnataka Act 22 of 1964), after Section 187, Section

187-A was ordered to be inserted under the heading

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‘regularisation of certain unlawful building’ which reads

as under:

(1) Notwithstanding anything contained in this Act, when construction of any building is completed in contravention of section 187 and building bye-laws, the Municipal Commissioner or the Chief Officer, as the case may be, may regularise

building constructed prior to the date of commencement of the Karnataka Town and Country Planning and Certain other Laws (Amendment) Act, 2004, subject to the following restrictions and such rules as may be prescribed and on payment of the

amount specified in sub-section (2), namely:-

(a) Where the building is built abutting the neighbouring property or where the set back provided is less than the limit

prescribed in bye laws, violation upto twenty-five percent in case of non-residential buildings and fifty percent in case of residential buildings shall be regularized.

(b) No development made in the basement or usage in contravention of bye law shall be regularized:

(c) The construction of a building shall not be regularised if it violates the

building line specified on any given road unless the owners of such building furnish an undertaking that

76

the space between the building line and the road or footpath or margin will be given up free of cost at any time when required for the purpose of

widening the road in question. (d) The provisions of sub-sections (2) to (14) of section 76 FF of the Karnataka Town and Country Planning Act, 1961, shall apply mutatis and mutandis for

regularisation of building under this section and the application being made to the Municipal Commissioner or the Chief Officer, as the case may be.

31. Perusal of the Karnataka Town and Country

Planning (Regularisation of Unauthorised Development

or Constructions) Rules, 2014, it is dated 28.5.2014.

Rules 4 to 8 of the said Rules are relevant for the

purpose of our discussion and they read as under:

4. Unauthorised development not eligible for regularisation.- (1) No unauthorised

developments shall be regularised in the following cases, if it is made,– (a) On land abutting to storm water drains, tank bed areas, river course or beds and canals or below the high

tension electric line including the land or building which is falling in the buffer zones of drains, nala, river

77

course etc. as specified in the respective Zonal Regulations; (b) In areas where land uses have been reserved for park, open spaces

and play grounds and public or semi public activities in the respective Master Plans and developments have been made in contravention of the same. (c) on lands earmarked for parks or

Civic Amenity in approved layouts; (d) in basement or usage in contravention of bye law/Zoning regulations; (e) in Violation of parking spaces in contravention of Approved Building

Plan; and (f) In agricultural zone of approved Master Plan or Green Belt area declared under the Karnataka Land Revenue Act, 1964.

Provided that only uses that are permitted under permissible uses and under special circumstances in agricultural zone of respective Master Plan may be regularized. Buildings constructed in such uses in accordance with the norms prescribed for

buildings in Agricultural Zone of respective zoning Regulations may be considered for regularising such buildings violations. (2) Where No Objection Certificate (NOC) or Clearance Certificate from the Department of

Fire and Emergency Services for any building is prescribed in the Zonal Regulations (applicable at the time of

78

approval) fire protections measures as prescribed in the Zoning Regulations shall be provided and a certificate to that effect from the concerned authority shall be

produced. (3) No unauthorised development shall be regularised unless the owner hands over the portion of the plot required for alignment of roads or widening of roads as per the

approved Master Plan, by relinquishment deed. 5. Regularisation of change of Land use.- Regularisation of Development of buildings with Land use violations shall be subject to

the following conditions, namely,- (i) Land use violation shall be examined with reference to the Master Plan as in force at the time of regularisation. (ii) Change of Land use shall not be permitted in lands reserved for parks and

open spaces, roads, agricultural purpose, unless such exemption or specific provision is made in the Master Plan or Zoning Regulations. 6. Conditions for regularisation of unauthorised sub-division of land/plot.- Regulation of unauthorised sub-division of land/plot shall be subject to following condition, namely:- (1) Only individual plot shall be considered, for regularisation which is registered before the date of 19th October,

2013 . (2) No unauthorised subdivision or layout which does not have access to public road shall be regularised.

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7. Conditions for regularisation of setback violations.- (1) The Setback violations against the approved plan but within the

provisions of Zoning Regulations or Building Byelaws or Transfer of Development Rights (TDR) rules may be regularised on payment of difference of prescribed fee under section 18 of the Act.

(2) Setback violations shall be calculated based on the percentage deviations made on each side against approved plan or as prescribed in the Zonal Regulations. (3) The setback violations shall be calculated

except open Chajja or Balcony. Buildings constructed by violating the road widening line (mentioned as building line in certain Zoning 3 Regulations) shall not be considered for regularisation, unless the portion of the building projected beyond the

road widening line is demolished. 8. Conditions for regularisation of floor area violations.- (1) The floor area of the excess built up area constructed against the approved plan /permissible TDR shall be

considered separately for calculating the percentage of violations. Any areas exempted from Floor Area Ratio (hereinafter referred to as FAR) in the approved plan, such areas shall not be taken in to consideration for deriving percentage of violation. (2) FAR

violations against the approved plans but within the provisions of Zoning Regulations or building byelaws may be regularised (on

80

furnishing as built plan and) on payment of difference of prescribed fee under section 18 of the Act subject to limitations specified in section 76FF.

We have also perused Rules 16 and 17 of the

Karnataka Town and Country Planning (Regularisation

of Unauthorised Development or Constructions) Rules,

2014.

32. Perusing the proposed amendment brought

by way of inserting new sections to the respective Acts

and Rules framed there under, reasonable restrictions

are imposed for considering the buildings for

regularisation. If the conditions in the Acts and Rules

are complied with, only such buildings will be

regularized and not each and every buildings

constructed in violation of the building bye-laws.

Therefore, the contention of the petitioners that the

proposed amendment giving excessive power to the

executive, even though the deviation in constructing the

81

buildings are hundred percent, cannot be accepted in

view of the restrictions placed by the State Legislature

while proposing the amendments to the above Acts.

33. Apart from that, we have perused the Bruhat

Bengaluru Mahanagara Palike Building Bye-laws 2003.

Looking to bye-law No.6, the power to regulate was

already provided in the said enactment. It deals with

deviation during construction. (i) Wherever any

construction is in violation/deviation of the sanctioned

plan, the Commissioner may, if he considers that the

violations/deviations are within 5% of (1) the setback to

be provided around the building, (2) plot coverage, (3)

floor area ratio, and (4) height of the building and that

the demolition under Chapter XV of the Act is not

feasible without affecting structural stability, be may

regularize such violations/deviations after recording

detailed reasons for the same. Therefore, it cannot be

said that, for the first time, such a new step was taken

82

by the State Legislature in regularizing the

unauthorised constructions. We have already

mentioned in our above discussion that the competency

of the State Legislature to bring such amendments

cannot be challenged by the petitioners as the Hon’ble

Supreme Court, in the earlier petitions, upheld the

proposed amendment, which was brought in the year

1996. Since, the policy of the Government has been

upheld by the Hon’ble Apex Court by its judgment in

BAKHTAWAR TRUST AND OTHERS Vs. M.D.

NARAYAN AND OTHERS reported in (2003) 5 SCC

298, the petitioners again cannot challenge the

competence of the State Legislature on different

grounds.

34. The problem of unregulated growth in urban

areas not being peculiar either to Mangaluru or

Bengaluru City. Every State and the Union having such

problems require the statute to regulate and address

83

such problems. In view of that the Karnataka State

Government thought it fit to bring about the present

amendments. Much before the present amendments

were effected, the State had enacted the Karnataka

Regularisation of Unauthorised Constructions in Urban

Areas Act, 1991 and had set out in its statement of

objects and reasons that, Bengaluru Development

Authority and the local bodies have been finding it

difficult in their task of meeting the increasing demand

for residential areas due to disproportionately high

number of unauthorised constructions on urban land.

Even looking to the survey conducted by the

Commissioner of Bruhat Bengaluru Mahanagara Palike

and perusing his report submitted to the Secretary to

the Government of Karnataka, he has noticed that

roughly about 1,53,419 buildings/sites are

unauthorised. This is the situation in Bengaluru city

itself. Admittedly, the amended provisions are made

applicable not only to Bengaluru City, but it is also

84

applicable to the entire State. If the buildings are to be

demolished holding that they are constructed in

violation of the building bye-laws, it creates disastrous

consequences. Looking to the number of such

buildings, the figures are not in hundreds or thousands,

but the figures are in lakhs. If all such buildings are

ordered to be demolished, firstly, there is national waste

and secondly, the persons who lost their buildings in

such operation would become homeless and actually,

they will be on streets. The Government is also not in a

position to provide the alternate sites to them in view of

scarcity of the area. Therefore, the persons by investing

their hard earned money when got constructed such

buildings may be in violation of the building bye-laws,

but only on that ground, it is not proper or feasible to

demolish such buildings. Apart from that, the proposed

amendments for regularisation are subject to conditions

and the reasonable restrictions by collecting the

regularisation fee and after complying with the other

85

requirements about which we have already made a

specific reference in the earlier part of this judgment.

Therefore, the demolition process is not the only way of

getting the things done. It would cause undue

hardship to the citizens and also creates law and order

problems. The laws are directed to the problems

manifest by experience. In this connection, we are

referring to the judgment of the Hon’ble Apex Court in

case of SHRI RAM KRISHNA DALMIA VS. SHRI

JUSTICE S R TENDOLKAR AND OTHERS AND ETC.

reported in AIR 1958 SC 538. The relevant paragraph

is para No.11, which reads as under:

“ 11. The principal ground urged in support

of the contention as to the invalidity of the

Act and/or the notification is founded

on Art. 14 of the Constitution. In Budhan

Choudhry v. The State of Bihar [1955] 1

S.C.R. 1045: ((S) AIR 1955 S C 191) (A) a

Constitution Bench of seven Judges of this

Court at pages 1048-49 (of S C R) : (at p.

193 of A I R) explained the true meaning and

scope of Art. 14 as follows:

86

"The provisions of Article 14 of the

Constitution have come up for decision

before this court in a number of cases,

namely, Chiranjit Lal v. Union of

India [1950] S.C.R. 869: (AIR 1951 S C

41)(B), The State, of Bombay v. F. N.Balsara

[1951] S.C.R. 682 : (AIR 1951 S C 318)(C),

The state of west Bengal v. Anwar Ali

Sarkar [1952] S.C.R. 284: (AIR 1952 S C

75)(D), , Kathi Raning -Rawat v. The State of

Saurashtra [1952] S.C.R. 435 : (AIR 1952 S

C 123)(E), , Lachmandas Kewalram Ahuja v.

The State Of Bombay [1952] S.C.R. 710: (AIR

1952 S C 235)(F), , Qasim Razvi v. The State

of Hyderabad [1953] S.C.R. 589 : (AIR 1953

S C 156)(G), and Habeeb Mohamad v. The

State of Hyderabad [1953] S.C.R. 661: (AIR

1953 S C 287)(H), . It is, therefore, not

necessary to enter upon any lengthy

discussion as to the meaning, scope and

effect of the article in question. It is now well

established that while article 14 forbids class

legislation, it does not forbid reasonable

classification for the purposes of legislation.

In order, however, to pass the test of

permissible classification two conditions

must be fulfilled, namely, (i) that the

classification must be founded on an

intelligible differentia which distinguishes

persons or things that are grouped together

from others left out of the group and, (ii) that

87

that differentia must have a rational relation

to the object sought to be achieved by the

statute in question. The classification may

be founded on different bases, namely,

geographical, or according to objects or

occupations or the like. What is necessary is

that there 'Must be a nexus between the

basis of classification and the object of the

Act under consideration. It is also well

established by the decisions of this Court

that article 14 condemns discrimination not

only by a substantive law but by a law of

procedure."

The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish-

(a) that a law may be constitutional even though it relates to a single

individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;

(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him

who attacks it to show that there has been a clear transgression of the constitutional principles;

88

(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems

made manifest by experience and that its discriminations are based on adequate grounds;

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest ;

(e) that in order to sustain the presumption of constitutionality the

Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and

(f)that while good faith and knowledge of the existing conditions on the part of

a Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the

presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain

89

individuals or corporations to hostile or discriminating legislation.

The above principles will have to be constantly borne in mind by the Court when it is called upon to adjudge the constitutionality of any particular law

attacked as discriminatory and violative of the equal protection of the laws. 35. The proposed amendments were made after

adopting the scientific method i.e., after getting the

survey report from the expert. The materials clearly

show that the State Government constituted cabinet

sub-committee to review the regularisation scheme and

self assessment scheme of the Bruhat Bengaluru

Mahanagara Palike, which committee also held number

of meetings and deliberated in detail on the subject.

The materials further go to show that if the buildings

are regularized, the Government can also collect

approximate amount of Rs.1,400.00 crore by way of fee

which amount can be utilized by the Government for its

developmental activities.

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36. After careful perusal of the materials placed

on record, we are of the opinion that, all care and

precautions are taken to see that there is no

compromise with respect to storm water drains, tank

bed areas, river courses, canals, area below high

tension electric lines, parks, play grounds, open space

for providing civic amenities, coastal regulation zones

etc. No development in basement area or usage in

contravention to the bye-laws. Certification from a

structural engineer is also made as compulsory. The

Rules clearly show that no development shall be

regularized unless violation in respect of the change in

land use is first regularized. The State also has not

compromised with regard to the health and safety

measures and the fire security measures, while

implementing the regularisation of unauthorised

buildings. The proposed amendments are made based

on the needs of the people. Therefore, the contention of

91

the petitioners that the proposed amendments are

giving excessive authority to the executive cannot be

accepted. On the contrary, the proposed amendments

are helping the State to have the regularisation of the

unauthorised buildings and to regulate the growth and

development of the cities. If the contention of the

petitioners that the buildings are to be demolished on

the ground that they were constructed in violation of the

building bye-laws, again it is the responsibility of the

State Government to look into the problems of such

persons who lost their properties. Therefore,

considering the materials placed on record, we are

unable to accept the contention of the petitioners that

the proposed amendments are in violation of Articles 14

and 21 of the Constitution of India. The amendments

laid down the criteria for regularisation and the classes

of people who are entitled to such benefits. Therefore,

there is no inequality or want of equal protection of law

among the same class of citizens.

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37. Hence, perusing the materials and in view of

our above discussion, we are of the opinion that there is

no merit in the above writ petitions and accordingly,

they are hereby rejected.

Sd/- CHIEF JUSTICE

Sd/- JUDGE

Cs/Bkp/Bsr/-