Karnataka High Court
The Residents Forum vs The State Of Karnataka on 25 January, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.4823 OF 2017 (LB-RES)
BETWEEN:
THE RESIDENTS FORUM
(A SOCIETY FORMED UNDER
THE KARNATAKA SOCIETIES ACT, 1960)
P-238, 9TH MAIN, SECTOR-10,
LIC COLONY, JEEVAN BIMA NAGAR,
BENGALURU - 560 075,
REPRESENTED BY ITS SECRETARY.
... PETITIONER
(BY SRI KIRAN B.S., ADVOCATE (PHYSICAL HEARING))
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF HOME AFFAIRS
VIDHANA SOUDHA,
BENGALURU-560 001,
REPRESENTED BY ITS SECRETARY.
2. THE STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
4TH FLOOR, VIKASA SOUDHA,
BENGALURU-560 001,
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY.
2
3. BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD,
KUMARA PARK,
BENGALURU - 560 020,
REPRESENTED BY ITS COMMISSIONER.
4. LIFE INSURANCE CORPORATION OF INDIA
HOUSING CELL, "JEEVAN PRAKASH",
REGIONAL OFFICE, J.C. ROAD,
BENGALURU - 560 002
REPRESENTED BY ITS
MANAGING DIRECTOR.
5. BRUHAT BENGALURU MAHANAGARA PALIKE
NR SQUARE,
BENGALURU-560 002,
REPRESENTED BY ITS COMMISSIONER.
6. MOGAVEERA SANGHA, BANGALORE ®
NO.15, 17TH "F" CROSS,
INDIRANAGAR II STAGE,
BENGALURU-560 038,
REPRESENTED BY ITS PRESIDENT.
7. KODAGU MATHU DAKSHINA KANNADA
GOWDA SAMAJA
GOWDA SAMAJA SADANA,
NO.16/11, 1ST "C" MAIN ROAD,
GANGANAGAR EXTN.,
BENGALURU-560 032,
REPRESENTED BY SECRETARY.
8. HUMBLE CHARITABLE TRUST ®
NO.32, 12TH CROSS,
INDIRANAGAR 1ST STAGE,
BENGALURU-560 038,
REPRESENTED BY ITS PRESIDENT.
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9. ORISSA CULTURAL ASSOCIATION
NO.19, 5TH MAIN, JAYAMAHAL EXTENSION,
BENGALURU - 560 046,
REPRESENTED BY ITS
SRI U. RANJAN MOHATY,
EXECUTIVE COMMITTEE MEMBER.
... RESPONDENTS
(BY SMT.PRATHIMA HONNAPURA, AGA FOR R1 AND R2
(PHYSICAL HEARING)
SRI D.N.NANJUNDA REDDY, SR.ADVOCATE A/W
SRI K.KRISHNA, ADVOCATE FOR R3 (PHYSICAL HEARING)
SRI KAMALESHWARA P., ADVOCATE FOR R4 (PHYSICAL
HEARING)
SRI N.R.JAGADEESHWARA, ADVOCATE FOR R5;
SRI K.SHASHIKIRAN SHETTY, SR.ADVOCATE A/W
SRI KIRAN J., ADVOCATE FOR R6 (VIDEO CONFERENCING)
SMT.SANDHYA D., ADVOCATE FOR 7
R8 SERVED
SMT.SANDHYA JAMADAGNI, ADVOCATE FOR R9)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO a. DIRECT
RESPONDENT TO QUASH THE IMPUGNED ORDER DTD:13.11.2015
VIDE ANNEXURE-AS OF THE URBAN DEVELOPMENT
DEPARTMENT, THE R-2 HEREIN PASSED IN THE MATTER OF THE
LAND USE CHANGE/CONVERSION WITHIN THE SAID "SITE -2P"
AND DIRECT R-1, 2, 3 TO THEREBY RETAIN ALL THE EXTENT OF
LANDS WITHIN THE SAID "SITE 2P" FOR "PARKS AND
PLAYGROUNDS".
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 29.11.2021, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Petitioner is before this Court seeking the following omnibus prayers:
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"a) Issue a Writ, Order or Direction in the nature of Mandamus or Certiorari or any other appropriate Writ, Order or Direction direct Respondents No.to quash the impugned Order No. UDD 283/BBS/2015 dated 13-11 2015 vide (Annexure-AS) of the Urban Development Department, the Respondent No.2 herein, passed in the matter of the land use change/conversion within the said "Site-2P" and direct Respondents No.1, 2 and 3 to thereby retain all the extent of lands within the said "Site-2P" for "parks and playgrounds";
b) Cancel any and all permits and sanctions accorded by Respondents No.3 and 5 to Respondent No.6, consequent to the said Order No. UDD283/BBS/2015 dated 13-11-2015 vide (Annexure-AS), for erection of any structures/buildings;
c) Direct the Respondents No.1, 2 and 3 to retain and restore the said "Site-2P" in the LIC Township/Layout/Colony, Jeevan Bima Nagar, HAL III Stage, Bengaluru-560 075, as an open/lung/green space and to refrain from changing or attempting to change the purpose of the said land use of "Site-
2P";
d) Declare the areas allotted to the Respondents within the said "Site-2P" and elsewhere within the said township/layout/colony, earmarked for open/lung/green spaces, as having devolved onto the Petitioner and its members to be held, owned, possessed and enjoyed jointly for 5 use as parks and/or gardens and/or playgrounds in accordance with the said layout plans and applicable laws.
e) Enjoin the clearance of the said "Site-21" and other areas, reserved for open/lung/green spaces and allotted to the Respondents, within the said LIC Township/Layout/Colony of all unlawful structures and encroachments; and, to restore the said site to a state of conformance with the "Layout Plans" prepared by the architects of Respondent No.4;
f) Instruct Respondent No.5 to take possession of all parks, playgrounds and open spaces in LIC
Township/Layout/Colony and to appropriately maintain and develop them further in accordance with permissible land uses under relevant statutes, rules and regulations;
g) Declare the Lease Agreements executed by Respondent No.3 with Respondents No.6, 7, 8 and 9 as invalid nullities, non-est and void ab initio and cancel the same consequent to and consonant with the quashing of the impugned Order No. UDD 283/BBS/2015 dated 13-11 2015 of Respondent No.2 herein.
h) Quash the approval(s)/sanction(s) accorded, if any, to the other Respondents, or future allottees, for putting up temporary or permanent structures on lands reserved for 6 open/lung/green spaces within the said township/layout/colony, including, but not limited to, the said "Site-2P".
i) Grant any and all other just, equitable and consequential benefits and reliefs to the Petitioner that this Hon'ble Court deems fit and proper in the interest of justice and under the facts and circumstances of this case.
j) Award the cost of this petition to the petitioner."
2. Heard Sri.Kiran.B.S., learned counsel for petitioner, Smt.Prathima Honnapura, learned Additional Government Advocate for respondent Nos.1 and 2, Sri.D.N.Nanjunda Reddy, learned senior counsel for respondent No.3, Sri.Kamaleshwara.P, learned counsel for respondent No.4, Sri.N.R.Jagadeeshwara, learned counsel for respondent No.5, Sri.K.Shashikiran Shetty, learned senior counsel for respondent No.6, Smt.Sandhya.D., learned counsel for respondent No.7 and Smt.Sandhya Jamadagni, learned counsel for respondent No.9. 7
3. Brief facts leading to the filing of the present petition as borne out from the pleadings are as follows:
Petitioner claims to be a Society registered under the Karnataka Societies Registration Act, 1960 whose members are all owners and residents of the LIC Township/Layout/Colony aka "LIC Housing Colony" or "Jeevan Bhima Nagar Colony" and claim to have filed the present petition in public interest.
4. A little walk in the history is germane to be done to address the issue that is brought before the Court. On 12.10.1972 an agreement is executed between the erstwhile City Improvement Trust Board ('CITB' for short) and the Life Insurance Corporation to form a colony/township. In furtherance to the said agreement certain sale deeds were executed conveying some portions of land to the 4th respondent/LIC for formation of the aforesaid layout. The sale deeds were executed on 15.01.1975 and 15.07.1975. A modified layout plan of HAL, III Stage was approved wherein site-2P is shown to be an open space.
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5. Between 04.11.1978 to 22.11.1982 certain other sale deeds were executed. On 12.10.1984 a Comprehensive Development Plan (CDP-1984) was approved and a Government Order was issued in terms of which, the land use for the said site-2P was marked as "public and semi-public" and "parks and open space" and reserved for a primary school with suitable space earmarked for playground. The 3rd respondent - Board which was by then was the Bangalore Development Authority approved the site plan in which site-2P was again marked as open space. A Revised Comprehensive Development Plan - 1995 (RCDP-1995) was approved by the Government, in which the land use of the site-2P was shown as 'residential'. The RCDP- 1995 came into effect from 05.01.1995.
6. All these issues became subject matter of several cases filed before this Court. One such public interest litigation was W.P.5319/1999. This Court while disposing the said PIL held that the plot of land opposite the site-2P to be plot No.10 and reserved for community hall/centre. After the notification of 9 RCDP-1995 and the judgment of this Court dated 4.12.2002, the 3rd respondent executed several lease agreements. The present petitioner also filed W.P.23197/2005 challenging the lease of lands insofar as they pertain to site-2P. Since several writ appeals were pending against the order dated 5.1.2007 in the writ petition, W.A.No.325/2007 and connected cases came to be decided on 23.09.2013. In terms of the judgment, the Division Bench held that the site-2P should not be developed as long it continues to be a green area in the master plan. Any application for change of land use of site-2P should be examined and considered by the authorities strictly in accordance with law and appropriate orders if any to be passed should be only after affording an opportunity to the petitioner-Society.
7. In the light of liberty reserved by the Division Bench (supra), the 3rd respondent/BDA directed acceptance of change of land use in respect of site-2P based on the zoning regulations prevalent at that point in time. It is the case of the petitioner that such change of land use was permitted without affording an 10 opportunity to the petitioner-Society as was directed by the Division Bench of this Court (supra). It is this action of change of land use of site 2P and failure to notify the petitioner as was directed by this Court, the petitioner-Society has knocked the doors of this Court in the present petition seeking the afore- extracted omnibus prayers.
8. The learned counsel appearing for the petitioner would submit that the action of the BDA in permitting change of land use for site-2P is contrary to law and the manner in which it is considered is contrary to the Karnataka Government (Transaction of Business) Rules, 1977. It is the contention that the zoning regulations cannot violate statutory provisions under the Bangalore Development Authority Act, 1976 ('BDA Act' for short) or the Karnataka Town and Country Planning Act, 1961 ('KTCP Act' for short). Procedure stipulated under Section 14-A of the KTCP Act is completely given a go-by is the emphatic submission of the learned counsel appearing for the petitioner. 11 He would place reliance upon the following judgments of the Apex Court:
(i) S.N.Chandrashekar and another vs. State of Karnataka and others [(2006) 3 SCC 208]
(ii) Bangalore Development Authority and others vs. R. Hanumaiah and others [(2005) 12 SCC 508]
(iii) Bangalore Medical Trust vs. B.S.Muddappa and others [(1991) 4 SCC 54]
(iv) Anjuman E Shiate Ali and another vs. Gulmohar Area Societies Welfare Group and others [2020 SCC Online SC 373]
9. On the other hand, the learned Additional Government Advocate appearing for the State, the learned counsel appearing for the respondent No.3/BDA, respondent No.6 would in unison refute the submissions made by the learned counsel appearing for the petitioner.
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10. The learned counsel representing the BDA would submit that the sites in site-2P was of a large extent which is divided into several civil amenity sites. The petitioner had filed W.P.No.23197/2005 seeking a direction to retain civil amenity site No.2 in its entirety to be an open playground. This having been dismissed on 5.1.2007, a W.A.No.325/2007 was filed. The Division Bench after noticing that in the revised master plan the area was shown as 'green area' disposed the writ appeal and the writ petition by directing the respondents to make necessary application for rectification and correction in the master plan or grant change of land use.
11. Pursuant to the direction of the Division Bench, the 6th respondent - Mogaveera Sangha filed an application seeking change of land use and the BDA after hearing all the stakeholders recommended to the Government for correction in the master plan. The Government accorded approval for correction of the mistake which had crept in the master plan. He would submit that the petitioner has no right to question the 13 change of land use granted to the 6th respondent as the area to be shown as a civil amenity site or an open space or a park was a mistake.
12. I have given my anxious consideration to the submission made by the learned counsel for the respective parties and perused the material on record.
13. The afore-narrated facts not being in dispute are not reiterated. For a resolution of the issue in the lis it is necessary to notice the proceedings concerning the very same land before this Court. This Court in W.P.No.5319/1999 - a Public Interest Litigation instituted by the very petitioners held as follows:
"8. LIC next contended that the is land is shown as reserved for public and semi public purpose in the CDP of 199t and therefore it can use the land in question for any public or semi- public purpose. The sanctioned plan showed plot No.10 as reserved for a community centre. Description of the plot as a community centre is a representation by LIC to the purchasers of houses in the layout that the land in plot No.10 would be used for construction of a community centre. While it is true that the original earmarked land use, that is community green 14 area was subsequently altered as public and semi-public use, it does not follow that what is reserved for a community centre could be used for some other purpose. 'Community centre' connotes a Building/structure meant for the benefit of the residents of the locality. Construction of Sales Training Centre (Academic Block & Hostel Block) cannot by any stretch of imagination be considered as community centre.
9. LIC drew our attention to the definition of public and semi-public occurring in the Annexure-II to the notification dated 5-1-1995, relating to CDP of 1995 [Zonal Land Use and Regulations], which reads as under;
"Public and Semi-Public Use:
(a) Uses that are permissible: Government Administrative Centres, district offices, Law Courts, jails, police stations, institutional offices, educational, cultural and religious institution, including libraries, reading rooms and clubs, Medical and Health institutions, cultural institutions like;
community halls, opera houses of non-commercial nature, convention centres, Exhibitions, utilities and services, water supply installation including disposal works, electric power plants, high tension sub- stations, gas installations and gas works, fire fighting stations, banking institutions, filling stations and quarters for essential staff and all uses permitted I parks and play grounds.
Note: Restaurants, Banks, Canteens, quarters not exceeding 240 sq.mts., required for proper maintenance and functioning of public and semi- public uses may be permitted, which are run on non- 15 commercial basis in their own premises as ancillary the respective institution.
(b) Uses that are permissible under special circumstances by the Authority: Government printing press, parking lots, repair shops, stadium, cemeteries, recreational clubs, canteens, libraries, aquaria, planetoria, horticultural nursery and swimming pools."
LIC contended that the construction of a training centre and hostel for the candidates who are trained in the training centre will fall under the category of government administrative centres and institutional offices. As noticed above, the plot in question has been reserved for community centre. The training centre proposed by the LIC agents and hostel for such trainees is not a community centre. Use of the plot for construction of a building for training the LIC agents and for their stay is for the business purpose of LIC and not for the benefit of the community i.e. the residents of the locality. We therefore reject the contention of the LIC that the construction of a Sales Training Centre and hostel building is for a community purpose. In the view we have taken, the question whether constructions of LIC Sales Training Centre is a public and semi-public purpose is not relevant.
10. In the result, we allow this petition in part and the first respondent [LIC] is directed to use Plot No.10 in 16 Jeevan Bhimanagar Layout, Bangalore only for the purpose of a community centre for the benefit of the residents of the layout and not otherwise. Parties to bear their respective costs."
(Emphasis added) A Division Bench of this Court rejected the contention of the present petitioner that the construction of sales training centre and hostel building was for community purpose and allowed the writ petition and directed to use plot No.10 only for the purpose of community centre for the benefit of residents of the layout. It is after the judgment rendered by the Division Bench, the 6th respondent - Mogaveera Sangha filed an application seeking allotment of the said site in Jeevan Bhima Nagar for the development of the fishermen community, pursuant to which, a lease agreement was entered into between the 6th respondent - Sangha and the 3rd respondent. The petitioner had also filed W.P.No.23197/2005 claiming that site- 2P has to be left for the purpose of its development as a park and an open space. This writ petition came to be dismissed. The dismissal was called in question before a Division Bench in 17 W.A.No.325/2007 and other writ petition connected to the issue were brought together before the Division Bench. The Division Bench disposed the writ petition and the writ appeal by the following order:
"5. The basic controversy raised in these matters was whether plot No.2 measuring 1 acre 25 guntas situate between Sector X, XI, 10th Cross Road, LIC Housing colony, Jeevan Bima Nagar, Bangalore (for short 'plot No.2'), was shown/reserved, in the layout formed by Bangalore Development Authority ('BDA' for short) in the year 1975, as civic amenity site or as open lung space. In the course of hearing of these matters, we were taken through several plans/maps by learned counsel appearing for the parties to make their submissions good.
6. Even before we could form prima-facie opinion in respect thereof, we noticed that in the master plan approved under Section 13 of the Karnataka Town and Country Planning Act, 1961 (for short 'Planning Act'), and which is in operation as of today, plot No.2 is shown as 'green area'. The master plan which is in operation as of today, we were informed, was brought into force in July 2007 and will operate till July 2015. Then, we also noticed that in the master plan which was in operation before July 2007, and which was 18 operating since 1995, plot No.2 was shown as 'residential zone'. Once having noticed this, we made a specific query to the learned counsel appearing for the BDA and so also the contesting respondent Nos.4 to 7, whether any one of them has ever approached the Government seeking change of user or rectification of master plan or seeking correction of clerical error, if any, and the answer was in the negative. In other words, none of the respondents ever approached the Government or applied to the Government seeking either rectification of the master plan, or change of user or seeking correction of clerical error, if any, in the master plan under the provisions of the Planning Act. Respondent No.6 claims that they made representation to the Planning Authority viz., BDA seeking appropriate relief. Insofar as, the site allotted to respondent no.6 is concerned, their representation, for whatever reasons, has not been considered/processed thereafter/further. However, fact remains that no application as aforementioned was made to the Government under the provisions of the Planning Act.
7. In this view of the matter, it is clear that none of the respondents-allottees of the sites in plot No.2 can make any development as long as it continues to be green area in the master plan. When we so expressed, learned counsel appearing for respondents fairly stated that respondent Nos.4 19 to 7 shall not develop the sites allotted to them, which are part and parcel of Plot No.2, as long as it continues to be Green area in the Master Plan.
8. In this backdrop, we do not wish to examine whether the Planning Authority-BDA was right in allotting the sites in plot No.2 to respondent Nos.4 to 7 and whether allotments in their favour were legal in view of the admitted fact that plot No.2 was and continues to be green area in the master plan in operation. Similarly, we have also not examined the question whether the Government can either change the user of plot No.2 or rectify the master plan so as to allow respondent Nos.4 to 7 to develop the sites allotted to them. We hope and trust that the Government, in the event of any such application being made, shall examine the same strictly in accordance with law and follow the due procedure contemplated under the Planning Act and the Bangalore Development Authority Act, 1976 (for shot 'BDA Act'). We also hope and trust that the Government while dealing with any such application shall keep in view the requirement of open space/park area/green area under the provisions of the Planning Act and BDA Act. If respondent Nos.4 to 7 or respondent No.1(BDA) approach the Government with any such application, seeking any relief, the Government shall not only follow the due procedure 20 under the Planning Act and BDA Act for either changing the user or for rectifying the master plan, but shall also give notices to the petitioners before passing any order on such application/s. All contentions of the parties on merits and the questions of law are kept open.
We also make it clear that we have not examined rights of respondent Nos.4 to 7 seeking change of user or rectification of the master plan. Before we part, we once again observe as long as plot No.2 in the master plan is shown as green area, respondent Nos.4 to 7 shall not carry out any development whatsoever. Respondent No.2 being the planning Authority and respondent No.3 Corporation shall see to it that no such development is made either by these respondents or any other person on plot No.2. We also make it clear that we have not recorded reasons for passing this order since learned counsel appearing for the parties in all fairness stated that we need not do so. The appeals and the writ petition are accordingly disposed of in terms of this order."
(Emphasis supplied) It is the afore-extracted judgment rendered by the Division Bench on 23.09.2013 which were between the very same parties, that nails the issue in the subject case as well. 21
14. The Division Bench of this Court at paragraph 6 (supra) clearly observes that if the plot No.2 is shown to be a 'green area' in the master plan of 2007, it was earlier shown to be a residential zone in master plan - 1995. It is also observed that no respondent has ever approached the Government or applied to the Government seeking either rectification of master plan, change of user or seeking correction of clerical error. The Division Bench further observes that it would not enter into the examination whether the Planning Authority-BDA was right in allotting the sites in plot No.2 to respondents 4 and 7 therein which is 6th respondent in the present petition or whether the Government could grant change of land use or rectify the master plan. This finding rendered by the Division Bench has become final. The parties to the said judgment are the parties to the present case as well. The petitioner having raised all such available contentions earlier and those having been met in the order passed (supra) are now wanting to re-agitate those issues. 22
15. The que that the petitioner seeks to draw is from the judgment of the Division Bench in W.P.5319/1999 which is earlier in time and did not deal with this issue in particular. Though, it related to consideration of CDP of 1995, the subsequent judgment of the Division Bench is binding on the parties, as it has become final inter-parties and the parties to the present lis are the same in the past lis.
16. The subsequent action is certain requisitions given to all the wings of the Government by the 6th respondent - Sangha for allotment of a site in plot No.2 by considering change of land use. It is on the application, the process was initiated and after hearing the parties the change of land use is permitted and the 6th respondent - Sangha is given possession of the said site - civic amenity site No.2 (part IV) at HAL III stage, Jeevan Bhima Nagar for usage of the 6th respondent - Sangha. This comes about by a communication dated 13.11.2015 by the Government, which reads as follows:
23
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Therefore, both the contentions of the petitioner that procedure had not been followed and the petitioner - Society was not heard prior to grant of change of land use, all have now lost their legal legs to stand.
17. For the aforesaid reasons, I do not find any merit in the writ petition. The same is accordingly dismissed.
In view of dismissal of the petition, I.A.Nos.2/2018 and I.A.No.3/2018 do not survive for consideration. Accordingly, stand disposed.
Sd/-
JUDGE bkp CT:MJ