Background and Introduction
The Karnataka Government promulgated the Karnataka Land Reforms (Amendment) Ordinance, 2020 [hereinafter ‘the Ordinance’] in July 2020[1] whereby Sections 79-A, 79-B and 79-C of the Karnataka Land Reforms Act, 1961[2] were omitted thereby permitting non-agriculturists to purchase agricultural land without any limitations under law. Considering that agricultural land was significantly cheaper than land within a metropolitan city, purchasing land outside the city becomes more economically viable in comparison to purchasing property within the city. The lifting of these restrictions could result in a spurt of residential dwellings outside the city in the form of high-rise apartments, villas, etc., Bangalore is witness to a trend where people living in the city are choosing to relocate to the city’s outskirts and surrounding rural areas. This rapid counter-urbanisation is attributable to various factors such as high urban population density, overcrowding, rise in pollution and establishment of prominent schools outside the city. This article seeks to address a legal vacuum that exists regarding utilisation of agricultural land for the purposes of residence in the form of farm houses. However, construction of any sort on land that has been converted from an agricultural land use to non-agricultural land use is not within the ambit of this write-up.
Present Legal Position
Development of layouts, high-rises and other residential buildings is regulated by Local Planning Authorities constituted under the Karnataka Town and Country Planning Act, 1961[3]. The Local Planning Authorities promulgate various comprehensive development plans and regulations under the Act. The zoning regulations are fairly comprehensive in classification of land use, building regulations and other construction codes. Further, Section 76-M contains an overriding clause that is reproduced as under:
76-M. Effect of other Laws—(1) Save as provided in this Act, the provisions of this Act and the rules, regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law.
(2) Notwithstanding anything contained in any such other law,-
(a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained;
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained.
The effect of the above section was therefore that no other legislation could prevail over the provisions, rules, bye-laws and regulations formulated under the Karnataka Town and Country Planning Act, 1961. Therefore, the Comprehensive Development Plans promulgated by the Local Planning Authorities would prevail over any other enactments promulgated by the Legislature.
Additionally, the modalities and procedure regarding grant of sanctioned plans, building licence permits are also governed by the local municipal bodies under the Karnataka Municipal Corporations Act, 1977[4], the Karnataka Municipalities Act, 1964[5] in urban areas and the Karnataka Panchayat Raj Act, 1993[6] in areas falling under Gram Panchayats. These local bodies are free to promulgate their own bye-laws and rules regarding the procedure for grant of sanctioned plans/license permits. However, the local bodies cannot promulgate any rules or regulations that run afoul of the zoning regulations and comprehensive development plan issued by the Local Planning Authorities. This position was clarified by the Karnataka High Court in Yashodha Rao v. Bruhat Bangalore Mahanagara Palike[7] viz.
“11. At the outset, to determine which of the Regulations is applicable it is to be noticed that the Bye-laws, 2003 relied on by the learned counsel for the petitioner would indicate that the same was framed on 24-4-2004, keeping in view the earlier Zoning Regulations which was published with the approval of the State Government on 5-1-1995 under the provisions of the KTCP Act. The said Bye-law came into force in supersession of the Bye-laws, 1983. These aspects would indicate that the Bye-law to be framed by the Mahanagara Palike is dependent on the Master Plan which would be prepared by the BDA which is the Planning Authority in the instant case. On approval of the Revised Master Plan, the Bye-laws would have to be framed in conformity with the Revised Master Plan. Presently, though the Revised Master Plan, 2015 and the Zoning Regulations, 2007 has come into force with the approval of the State Government on 25-6-2007, the Mahanagara Palike has not yet framed the Bye-laws in conformity with the same. Though that is the position, the Mahanagara Palike cannot continue to approve the construction plan under the Bye-laws, 2003 itself insofar as the specifications as it would be contrary to the Master Plan and Regulations prepared by the Planning Authority which has the jurisdiction to plan and specify regarding the development and constructions in the area. That has to be regulated and implemented by the Local Authority i.e. the BBMP in the instant case.”
The Karnataka High Court also upheld the supremacy of the Zoning Regulations under the Karnataka Town and Country Planning, 1961 against any other provisions in Dhammangi Developers Pvt. Ltd. v. Additional Director (Town Planning), Bruhat Bangalore Mahanagara Palike[8], the Court held as under:
“13. As rightly contended by the counsel for the petitioner, as per Section 76-M of the Karnataka Town and Country Planning Act, 1961, the provisions of the Act and the rules, regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law. The Revised Master Plan, 2015, and the Zoning of Land use and Regulations are the result of the power exercised by the State Government under the provisions of the Karnataka Town and Country Planning Act, 1961. Therefore, Section 76-M gives precedence to these regulations. Even if there are other regulations framed by the State Government or even if there are building bye-laws of the BBMP defining high rise building as height of 15 m and above requiring clearance of Director of Fire Services, without impinging on the rules and regulations framed in exercise of the powers conferred under the Karnataka Town and Country Planning Act, 1961, the same can be enforced. It is also necessary to notice here that as per Section 505 of the Karnataka Municipal Corporations Act, 1976, the Corporation or its authorities are precluded from doing anything against the provisions contained in the Karnataka Town and Country Planning Act, 1961, and the Regulations framed therein. In the light of the above, the inescapable conclusion is, that while the petitioner is required to abide by all the fire safety measures that can be incorporated in the building constructed by him and the portion to be constructed by seeking necessary permission by the BBMP, he cannot be asked to follow such measures which may render impossible any additional construction by the petitioner. This is because at the time he obtained permission, there was no such rigor and the permission was granted after following the rules and regulations applicable at that time.”
As on the date of this article, many local authorities have not promulgated any bye-laws governing the grant of building licence and continue to utilise the provisions of the Zoning Regulations issued by the Local Planning Authorities. Although the zoning regulations are comprehensive regarding residential, industrial, commercial and public buildings, the regulations promulgated by the Local Planning Authorities do not adequately address constructions under the classification of ‘farm houses’.
In 2015, Local Planning Authorities in Karnataka promulgated similar zoning regulations for their respective zones. Most of these regulations only stipulate that a farm house shall be limited to 200 sq m or 250 sq m in size depending on the total extent of land holding. The only other condition common to the zoning regulations is that the farm house shall be utilised by the farmer for his dwelling and shall not be utilised for any commercial purpose. It would be fair to assume that any person erecting a farm house would do so in a significantly large parcel of land and the stringent requirements governing buildings within city limits would be unnecessary and therefore, the zoning regulations are reasonably silent on additional rules regarding erection of farm houses.
Change in the legal position viz. legislative amendments
However, when the legal position stood as detailed above, the Karnataka Government promulgated the Karnataka Land Revenue (Amendment) Act, 2015[9] which amended Section 95-A of the Karnataka Land Revenue Act, 1961[10] which governed uses of agricultural land and inserted the following explanation;:
“… Provided that the farm building or farm house so erected shall not be more than ten percent of his holding subject to maximum of such extend of land as maybe prescribed.
Explanation. – For the purpose of this sub-section “Farm Buildings” or “farm house” means a house attached to a farm and constructed in a portion of an agricultural land, used for the residence of the agriculturist or used for the purpose of keeping agricultural equipments and tethering cattle. The house shall be used by farmer for his own use and it shall not be let out for commercial activities to any individual or agency.”
The above amendment came into effect from 13th August, 2015 and in essence superseded the limitations of 200/250 sq m that was stipulated in the Zoning Regulations. The amendment would indicate that an ‘agriculturist/farmer’ can erect a farm building or structure that can be up to ten per cent of the size of the land held by him. This could theoretically mean that a farmer who owns ten acres of land could erect a building that is 43,000 sq ft without falling foul of the zoning regulations.
Thereafter, the Urban Development Department of Karnataka Government also promulgated a draft ‘Common Zonal Regulations, 2017’ that sought to replace all other zoning regulations formulated by the Local Planning Authorities. The draft common zoning regulations reduced the permissible construction area of a farm house to 100/150 sq m.[11] However, the said draft regulations were stayed by an order of the Karnataka High Court and the matter is presently pending before the High Court of Karnataka.[12]
Analysis of judicial pronouncements vis-à-vis the change in law
The Karnataka High Court considered the effect of the 2015 amendment to the Karnataka Land Revenue Act, 1961 in G.S. Siddaraju v. State of Karnataka[13] and held as under:
“11. It is thus clear that an agriculturist can erect building in his agricultural land for its more convenient use or better cultivation, provided such farm building or farm house so erected is not more than 10% of his holding subject to maximum of such extent of land as may be prescribed. No rule prescribing any maximum extent of land on which such building can be erected is brought to the notice of the Court. Therefore, the proviso which says that the farm building or farm house so erected shall not be more than 10% of his holding has to be kept in mind while examining whether the house constructed is in the nature of a farm house or it loses its characteristic feature of a farm house. In other words, if the farmer has got 10 acres of land, he cannot be found fault with for putting up construction utilising a bigger area in his agricultural land, say up to 1 acre provided he uses such construction for his own residence for the purpose of agricultural operations, tethering of cattle or for storing agricultural implements or products including for residence of himself and his family members, his servants and dependents.
* * *
- Merely because the construction put up is a bigger one, it cannot be held that the construction loses the characteristic of a farm building unless it falls within the mischief of proviso to sub-section (1) of Section 95 of the Act which states that such farm building or farm house erected shall not be more than 10% of his holding or that it does not satisfy the explanation appended to sub-section (1) of Section 95 of the Act which states that farm building or a farm house means a house attached to a farm and construction made in a portion of agricultural land, used for the residence of the agriculturist or used for the purpose of keeping agricultural equipments and tethering cattle or that the house shall be used by farmer for his own use and shall not be let out for commercial activities to any individual or agency.”
An analysis of this judgment demonstrates that the Court has applied the provisions of the Karnataka Land Revenue Act, 1961 enabling construction of farm houses to the extent of ten per cent of the land holding, even though the said provisions were in conflict with the zoning regulations that limited the size of construction of farm houses to only 200/250 sq m. In G.S. Siddaraju[14], the Karnataka High Court did not dwell into a discussion or analysis of the overruling clause that can be found in Section 76-M of the Karnataka Town and Country Planning Act, 1961. These judicial pronouncements therefore lead to a question as to whether Section 76-M of the Karnataka Town and Country Planning Act, 1961 operated only till the time when such provision was inserted or whether the provision continues to accord superiority to any and all further enactments promulgated by the Legislature after the dated on which Section 76-M was inserted into the Karnataka Town and Country Planning Act, 1961. The scope of operation of Section 76-M was considered by the Karnataka High Court in 1976 in H.G. Kulkarni v. Assistant Commissioner, Belgaum[15] wherein the Court observed:
“17. We now turn to the only remaining contention of the petitioner, which has been outlined earlier. This contention turns on the over-riding effect given to the provisions of the Mysore (now Karnataka) Town and Country Planning Act, 1961 by Section 76-M therein, the relevant portion whereof reads:
“Effect of other Laws—(1) Save as provided in this Act, the provisions of this Act and the rules, regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent herewith contained in any other law.
(2) * * *”
(emphasis supplied)
A similar provision is also to be found in the Act with which we are here concerned. It is Section 47 which reads:
“Effect of provisions inconsistent with other laws.—The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.”
(emphasis supplied)
- The question is which of the above two provisions should prevail. The relevant principle governing the effect to be given to two such conflicting provisions has been stated in Craics on Statute Law, Sixth Edn. at p. 349, thus:
“….And it appears to be a constitutional necessity as well as an established rule of construction that the last utterances of the legislature should prevail over earlier statutes inconsistent with it;….”
- Viewed in the light of the above principle, it would be clear that the provisions of Section 47 of the Act must be given overriding effect vis- à-vis the provisions of the Karnataka Town and Country Planning Act, as the former Act being of the year 1966, was later than the other Act which was of the year 1961. But it was faintly suggested that when the legislature enacted Section 76-M of the Town and Country Planning Act, it had intended that it should have effect over all future legislation also. This contention is without substance as a legislature cannot impose fetters on itself in regard to the exercise of its legislative power in future, and even if it does, it would not be binding on it. Hence all the contentions fail.”
Therefore, the law regarding interpretation of statutes is clear to the extent that the last iteration of the legislature should prevail over earlier statutes that are inconsistent with it.
However, this position and the judgment in H.G. Kulkarni[16] was not directly considered by the Karnataka High Court whilst pronouncing the judgment in Dhammangi Developers Pvt. Ltd.[17] since no direct conflict with Section 76-M of the Karnataka Town and Country Planning Act emerged. In Dhammangi Developers[18], the Court observed that on the basis of the facts in that case, since the regulations under the Fire Force Act, 1964 were made applicable only after the sanctioned plan was granted to the petitioner, Section 76-M would prevail over any further regulation. It could therefore be construed that Section 76-M would prevail over any inconsistencies to the zoning regulations. However, principles of statutory interpretation indicate that a later enactment must take precedence over any previous enactments in the event of any direct conflict. It is therefore a logical conclusion that a farm house can be constructed without any regulations subject to the total area being within ten per cent of the total land holdings.
Conclusions and ground realities
The evolution of the law in this regard reveals an unresolved conflict between the provisions of the Town and Country Planning Act, 1961 and the Karnataka Land Revenue Act, 1961. The zoning regulations framed thereunder do not adequately regulate any constructions on farm lands. Since the limitation on non-agriculturists purchasing farmlands has been lifted through the Karnataka Land Reforms (Amendment) Ordinance, 2020, the instances of farm lands being utilised to erect large structures will increase, resulting in disproportionate growth outside the city. The legal vacuum thus created will also have a detrimental effect of fertile agricultural lands being utilised to erect large residential structures. The Gram Panchayats governing the rural areas on the outskirts of the city do not have any formal mechanism where a building permit is granted for construction of a farm house. The Gram Panchayats generally issue a NOC on the basis of a simple sketch provided for construction of farm house. History reveals that when land use is unregulated, the citizens seek to construct buildings on every inch of usable space without having any regard to the use of land, environmental factor and other ramifications of large constructions. The situation requires immediate legislative correction in the form of specific regulations to address constructions on unconverted agricultural land and any such regulation must endeavour the misuse of agricultural lands in a nation that is primarily agricultural.
*Advocate, GDroit, Advocates, Bangalore. Author can be reached at gautamaditya@gdroit.com
[1] The Karnataka Land Reforms (Amendment) Ordinance, 2020; (Karnataka Ordinance No. 13 of 2020)
[2] The Karnataka Land Reforms Act, 1961 (Karnataka Act No. 10 of 1962)
[3] The Karnataka Town and Country Planning Act, 1961 (Karnataka Act No. 11 of 1963)
[4] The Karnataka Municipal Corporations Act, 1977( Karnataka Act No. 14 of 1977)
[5] The Karnataka Municipalities Act, 1964 (Karnataka Act No. 22 of 1964)
[6] The Karnataka Panchayat Raj Act, 1993 (Karnataka Act No. 14 of 1993)
[7]Yashodha Rao v. Bruhat Bangalore Mahanagara Palike, 2012 SCC OnLine Kar 8891
[8]Dhammangi Developers Pvt. Ltd. v. Additional Director (Town Planning), Bruhat Bangalore Mahanagara Palike; 2012 SCC OnLine Kar 9081
[9] The Karnataka Land Revenue (Amendment Act), 2015( Karnataka Act No. 31 of 2015)
[10] The Karnataka Land Revenue Act, 1964 (Karnataka Act No. 12 of 1964)
[11] Regulation 3.1.8(a)(G) of the Common Zonal Regulations for all Local Planning Areas, 2017 available at http://www.dtcp.gov.in/sites/dtcp.gov.in/files/pdfs/czr_draft_gazettee_notification.pdf
[12] Citizens Action Forum v. The State of Karnataka, WP No. 38165 of 2017, order dated 7-9-2020
[13]G.S. Siddaraju v. State of Karnataka; 2016 SCC OnLine Kar 8430
[14]Ibid
[15]H.G. Kulkarni v. Assistant Commissioner, Belgaum, 1976 SCC OnLine Kar 15
[16]Ibid
[17]Id. at Note 8
[18] Id.