Karnataka High Court
M/S. Batavia Developers, vs The Bruhut Bangalore Mahanagara Palike on 12 December, 2012
Bench: Chief Justice, B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 12TH DAY OF DECEMBER, 2012
PRESENT
THE HON'BLE MR. VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.P.No.5957/2010 (LB-BMP).
BETWEEN:
M/S. BATAVIA DEVELOPERS,
HAVING ITS REGISTERED OFFICE AT
"ARIHANT" No.4/2, CRESCENT ROAD,
HIGH GROUNDS, BANGALORE,
REP. BY ITS MANAGING PARTNER
MR. JAYESH.V.BATAVIA. ... PETITIONER
(BY SRI: AMIT MANDGI, ADV. FOR M/S. MANDGI ASSTS.)
AND:
1. THE BRUHUT BANGALORE
MAHANAGARA PALIKE,
N.R.SQUARE, BANGALORE,
REP. BY ITS COMMISSIONER.
2. THE JOINT DIRECTOR OF TOWN PLANNING,
BRUHAT BANGALORE MAHANAGARA PALIKE,
N.R.SQUARE, BANGALORE.
3. THE BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST, BANGALORE,
REP. BY ITS COMMISSIONER.
4. UJVAL DEEP,
S/O DR.A.PARTHASARTHY,
AGE: 43 YEARS,
001 C, SARATHY APARTMENTS,
13TH CROSS, 8TH MAIN,
MALLESHWARAM, BANGALORE.
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5. VIJAYA PRABHA,
W/O DR.A.PARTHASARTHY,
AGE: 63 YEARS,
001 C, SARATHY APARTMENTS,
13TH CROSS, 8TH MAIN,
MALLESHWARAM,
BANGALORE. ... RESPONDENTS
(R4 AND R5 ARE DELETED)
(BY SRI: I.G.GACHCHINAMATH, ADV. FOR R1 AND R2,
SRI.M.B.PRABHAKAR, ADV. FOR R3, R4 AND R5 DELETED)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER DT.8.1.10, VIDE ANN-Y ISSUED BY THE R2.
THIS PETITION BEING RESERVED AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, NAGARATHNA J.,
MADE THE FOLLOWING:
ORDER
NAGARATHNA J., In this writ petition, the petitioner has assailed order dated 08/01/2010 issued by the second respondent - B.B.M.P., rejecting the permission sought to use the existing building constructed at Yelahanka, Bangalore, for commercial purpose and for putting up additional construction. A direction is sought to the -: 3 :- respondents to permit the petitioner to use the scheduled building for commercial use.
2. It is the case of the petitioner, which is a registered partnership firm, engaged in development and construction of the building; that the scheduled property comprising of converted land (Sy.No.12/1), at Amanikere village, Yelahanka Hobli, Bangalore, totally measuring 3.136 sq.mtrs. (hereinafter, referred to as "scheduled property"), has been developed by the petitioner, pursuant to a joint development agreement (in short, "JDA") 27/05/2004. In December, 2005, sanction to commence construction on the scheduled property was obtained from the then City Municipal Corporation, Yelahanka and in September, 2006, commencement certificate was issued. The scheduled property is classified as "Residential Zone" in terms of the Comprehensive Development Plan 1995 (CDP-1995) and the petitioner has put up a residential structure -: 4 :- thereon. However, in the Revised Master Plan - 2015, (RMP-2015), the scheduled property has been designated as "valley", in terms of Regulation 4.12.2.(ii)(v). However, Regulation 3.16(i) of RMP-2015 states that all permissions accorded by the BDA or Government shall be treated as confirming uses irrespective of the classification made in the RMP - 2015. This is to be allowed on a case to case basis only. In October 2009, the petitioner made an application to the first respondent - B.B.M.P. stating that though the Schedule Property has been classified as "valley" in RMP
- 2015 nevertheless, the land be permitted to be used for Commercial purpose in terms of Regulation 3.16(i). If that is so, in terms of Regulation 4.1.2(i), having regard to the plot size exceeding 240 sq. meters, having a frontage of 10 meters and abutting the main road, which exceeds 18 meters, permission be granted to use that ancillary use as main use. In effect, the -: 5 :- change in land user for commercial purpose was sought by the petitioner.
3. The said application was forwarded to the third respondent - BDA for its opinion, which communicated to the effect that such permission would not be granted as the scheduled land falls within the valley zone. Based on the said opinion, the first respondent - B.B.M.P. passed the impugned order rejecting the petitioner's application, which was earlier assailed in a writ petition and on a direction for reconsideration the impugned order is passed.
4. Statement of objections have been filed by the respondents.
5. The third respondent - BDA has stated in its objections that earlier, W.P.No.1256/2009 was filed as a Public Interest Litigation, seeking demolition of the construction on the scheduled property, the said writ -: 6 :- petition was disposed of on 03/11/2011 by a Division Bench of this Court, wherein it has been held that the petitioners herein are no longer in desirous of putting up any additional construction and they only pray for conversion of the use of the building from residential to commercial use and on that basis, the Public Interest Litigation was disposed of and therefore, the present writ petition would not survive for consideration, as the petitioner is now seeking change of user from residential to commercial use in the valley zone, which is impermissible.
6. It is also stated that Regulation No.4.1.2 (i) is applicable only to Residential Zones and not to valley zone and since the scheduled property is in valley zone under RMP - 2015, the petitioner cannot be permitted to convert the scheduled property for commercial use. Therefore, dismissal of the writ petition has been sought.
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7. Respondent Nos. 1 and 2 have also seconded the objections of the third respondent - BDA.
8. We have heard the learned counsel for the parties and perused the material on record.
9. It is contended on behalf of the petitioners that the impugned order contravenes Regulation 3.16(i), 4.1.2, 4.5 and 4.12.2 of the RMP -2015 as under CDP - 1995 the scheduled property was classified as Residential Zone and in terms of Regulation 3.16(i), the classification made under the CDP -1995 is confirmed as residential and therefore, the scheduled property cannot now be classified as valley zone; that all concomitants and Regulations applicable to Residential Zone under RMP -2015 are applicable to the scheduled property. The third respondent has ignored Regulation 3.16(i) of RMP-2015 and has erroneously declined the permission as per Regulation 4.1.1 or 4.2.1; that the petitioner has sought only permission to put to use the -: 8 :- ancillary use as the main use, in terms of Regulation 4.1 or 4.2 as C-2, I-2 or U-3 uses. It is also submitted that the petitioner's land abuts the Mutation Corridor and NH.7, the residential building would therefore, not be conducive for residential occupation but would be better suited for commercial purposes and therefore, the scheduled property could be used for commercial purposes similar to the adjoining properties.
10. Per contra, learned counsel for the respondents adverting to the statement of objections have stated that since the scheduled property is in a valley zone, no change of land or building use is permissible either ancillary or otherwise, the valley interconnects the tanks around the scheduled property and therefore, the valley zone has to remain intact. Hence, they have sought for dismissal of the writ petition.
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11. It is not in dispute that when sanction was obtained for putting up of a construction on the scheduled property, permission was granted to construct residential apartments in terms CDP - 1995. The same has been superseded by RMP -2015 with effect from 25/06/2007. The RMP - 2015 are zoning regulations, whose objects are to safeguard public interest, to be realistic and anticipatory and to be flexible and responsive. Land user has been classified into residential, commercial, industrial etc., and table showing the permissible land use in each classification are given. There are regulations applicable to all zones, which are mentioned in Chapter - III. Regulation 3.16(i) reads thus:-
3.16. General notes:
i) All permissions accorded by BDA or Government shall be treated as conforming uses irrespective of the classification made in the Revised Master Plan 2015. This is to be allowed on a case by case basis only.-: 10 :-
12. Chapter 4 deals with Regulations for Main Land use Zones. Regulation 4.1 pertains to Residential (Main) and Regulation 4.2 deals with Residential (Mixed). While Residential (Main) applies to areas of the city which have predominantly residential land use pattern which includes many old areas of the city of Bangalore, Residential (Mixed) or Mixed Land Use areas are those where employment, shopping and residential land users will be integrated in a compact urban form at higher developmental intensities and will be pedestrian-oriented and highly accessible by public transit by providing focus on community facilities.
13. Regulation 4.12.2 (ii)(v) reads thus:
"4.12.2. Regulations
ii) Valley /drain
v) Any land falling within the valley for which permission has been accorded either by the Authority or Government, and then such permission shall be valid irrespective of the land use classification in the RMP 2015. Fresh -: 11 :- permissions for developments shall not be accorded in valley zone."
14. This provision has to be read in juxtaposition to Regulation 3.16(i), extracted supra. Both these Regulations confirm the land user granted under CDP - 1995 irrespective of the designated land user under RMP - 2015. Therefore, the land user being for residential purpose in the instant case under the CDP - 1995, any change in designation of land user under RMP - 2015 would have no effect. In the instant case, the permission accorded to the petitioner is to put up a residential building under CDP - 1995. Under the RMP - 2015, the scheduled property is classified as a "valley" under Chapter 4 and under Regulation 4.12.2(ii)(v), the permission granted for residential purpose is valid irrespective of the land use classification, as a valley in RMP -2015 insofar as the scheduled property is concerned.
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15. In W.P.1256/2009 the petitioner herein has stated that he is not desirous of putting up any additional construction and that he is only seeking conversion of the use of the building from residential to commercial use.
16. Having regard to the above regulations, the respondents could not have rejected the application filed by the petitioner on the ground that the scheduled property falls in a valley zone and therefore, fresh permission could not be accorded. The same is contrary to Regulation 3.16(i) as well as 4.12.2(ii)(v) extracted supra. The impugned order is therefore, quashed. Having regard to Regulations 3.16(i) and 4.12.2(ii)(v), the respondents are directed to consider petitioner's application under Regulation-4.1.1 or 4.2.1, as the case may be, within a period of two months from the date of the receipt of a copy of this order and accordingly, permit ancillary use as the main use, -: 13 :- having regard to the permissible land users and floor area ratio mentioned therein. The respondents to also take into consideration the fact that the scheduled property abuts the Mutation Corridor and NH.7 and also the fact that adjoining properties are being used for commercial purposes.
17. The writ petition is allowed in the aforesaid terms. Parties to bear their respective costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE *mvs Index: Y/N