Karnataka High Court
Sri S Rajesh Prasad vs Bruhath Bengaluru on 6 June, 2024
Author: R Devdas
Bench: R Devdas
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NC: 2024:KHC:19621
WP No. 20041 of 2023
C/W WP No. 8557 of 2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 20041 OF 2023 (LB-BMP)
C/W
WRIT PETITION NO. 8557 OF 2024 (LB-BMP)
IN WP NO.20041/2023
BETWEEN:
SRI. RAVISHANKAR S.,
S/O LATE K. SURYANARAYANA RAO,
AGED ABOUT 60 YEARS,
NO.92, B/W 7TH AND 8TH CROSS,
2ND MAIN, CHAMARAJAPET,
BENGALURU-560 018
...PETITIONER
Digitally signed (BY SRI. GANGADHARAIAH A.N., ADVOCATE)
by JUANITA
THEJESWINI AND:
Location: HIGH
COURT OF 1. THE BRUHATH BENGALURU MAHANAGARA PALIKE,
KARNATAKA
N.R. SQUARE,
BENGALURU-560 002
REP. BY ITS COMMISSIONER.
2. THE JOINT DIRECTOR(TOWN PLANNING),
THE BRUHATH BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE,
BENGALURU-560 002.
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WP No. 20041 of 2023
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3. THE ASSISTANT DIRECTOR(TOWN PLANNING)
RAJARAJESHWARINAGAR ZONE(2)
BBMP,
BENGALURU-560 098
4. ASSISTANT DIRECTOR OF LAND RECORDS,
BENGALURU SOUTH TALUK,
KANDYA BHAVAN,
1ST FLOOR, K.G. ROAD,
BENGALURU - 560 009.
...RESPONDENTS
(BY SRI. PRASHANTH S.H., ADVOCATE FOR R1 TO R3;
MISS. SPOORTHI V., HCGP FOR R4)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO i) QUASHING
ANNEXURE-H THE ENDORSEMENT DATED 29/08/2023 ISSUED
BY THE R3 BEARING NO. SA.NI(NA.YO)/RA RA NA VA
/P.R/153/23-24 BY ALLOWING THIS WP AND ETC.
IN WP NO.8557/2024
BETWEEN:
SRI. S. RAJESH PRASAD
AGED ABOUT 48 YEARS,
S/O A. SRINIVASA MURTHY,
NO.203, NAVARATHNA KUTIRA,
4TH CROSS, NEAR SEETHA CIRCLE,
SBM COLONY, SRINIVASA NAGARA,
BENGALURU - 560 050
...PETITIONER
(BY SRI. L.M. CHIDANANDAYYA, ADVOCATE)
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WP No. 20041 of 2023
C/W WP No. 8557 of 2024
AND:
1. BRUHATH BENGALURU
MAHANAGARA PALIKE,
REP. BY ITS CHIEF COMMISSIONER,
N.R. SQUARE,
BENGALURU-560 002
2. JOINT DIRECTOR (TOWN PLANNING)
BHRUHAT BANGALORE MAHANAGARA PALIKE
RAJARAJESHWARI NAGAR,
BANGALORE - 560 098.
3. ASSISTANT DIRECTOR (TOWN PLANNING)
BHRUHAT BANGALORE MAHANAGARA PALIKE,
RAJARAJESHWARI NAGAR CIRCLE,
BANGALORE - 560 098.
...RESPONDENTS
(BY SRI. MONESH KUMAR K.B., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE RECORDS WHICH ULTIMATELY RESULTED IN NOT
SANCTIONING THE LICENSE PLAN FOR CONSTRUCTION OF
BUILDING ON THE SCHEDULE PROPERTY AND ETC.
THESE PETITIONS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:19621
WP No. 20041 of 2023
C/W WP No. 8557 of 2024
COMMON ORDER
R. DEVDAS J., (ORAL):
These two writ petitions raise a common issue and the petitioners are aggrieved by the endorsements issued at the hands of the respondent No.1 - BBMP, either declining to approve the plan for construction or issue building license or directing the petitioners to secure a 'No Objection Certificate' from the Bangalore Development Authority.
2. Both the learned counsels for the petitioners have vehemently argued that this Court in the case of Pavanjeet Singh Sandhu /vs./ Bruhat Bangalore Mahanagara Palike and others in W.P.No.15298/2020 and Smt. Sindhu K.M /vs./ Bruhat Bangalore Mahanagara Palike and others in W.P. No.9508/2023 has dealt with the issue where such endorsements were issued by the BBMP declining to -5- NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 sanction the plan on the ground that since the property in question is by the side of a Storm Water Drain and in terms of the requirement of the RMP-2015 and the zonal regulations a buffer zone has to be left next to the nala, the plan cannot be sanctioned.
3. Learned counsel submits that this Court considered the submissions made on behalf of the respondent No.1 - BBMP and held that the position of law is required to be clarified since several such complaints/petitions are being filed by the citizens of this city who have been declined approval of plan on the ground that certain directions are given by the National Green Tribunal (hereinafter referred to as 'NGT' for short). In view of the orders passed by the Hon'ble Supreme Court of India setting aside the directions given by the NGT, what remained was the implementation of the Zonal Regulations, RMP-2015 and subsequent revised master plan. This Court had directed that the requirement of -6- NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 having a buffer zone of 50 metres, 25 metres and 15 metres (depending on the size of the nala) should be made applicable only to Drains newly identified while finalizing the RMP-2015 and at any rate, it should not be made applicable to the drains that were already in existence prior to finalization of RMP-2015. If layouts are formed prior to finalization of RMP-2015, the requirement of setting apart buffer zone as contemplated in the zonal regulation of RMP-2015 is not applicable.
4. Further, having regard to the fact that the rule regarding the buffer zone was brought into the RMP-2015 and the zonal regulations, it was held that the requirement of setting apart buffer zone as contemplated in the zonal regulations of RMP-2015, is not applicable in respect of layouts that were formed prior to 2007. The learned counsels therefore submit that this Court has clearly held that in respect of layouts that were found prior to the rule which was brought into force on 22.06.2007, the rule -7- NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 cannot be applied. The learned counsels would therefore submit that what is required to be seen is whether the sites in question formed part of the layouts which were formed prior to 2007. For that purpose, both the learned counsels point out to the documents available on record and submit that in W.P. No.20041/2023 at Annexure-A, the conversion order passed by the competent authority is found and the land was converted in the year 1997. Further, long after the layout was formed, the petitioner's vendor in W.P. No.20041/2023 purchased the residential site on 18.03.2006. The learned counsel would therefore submit that there is sufficient proof to show that the layout itself was formed somewhere around the year 2000 or 2001 and therefore, the decision of this Court in Pavanjeet Singh Sandhu and Sindhu K.M. stated supra are squarely applicable to the facts of the case.
5. Similarly in W.P.No.8557/2024, learned counsel has pointed out to Annexure-A, which is a plan of the -8- NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 layout said to have been approved by the then Pattanagere Grama Panchayat on 31.03.1994. Learned counsel for the petitioner submits that in terms of the said plan, 245 residential sites were formed and majority of the owners have put up construction. Further, it is submitted that the khata have been registered in the office of the BBMP in the name of the petitioners and therefore, the material available on record would show that the layout was formed much prior to the implementation of the provisions in RMP-2015, which came into force in the year 2007 and the layout in question was formed wayback in the year 1994.
6. Per contra, learned counsels for the respondent No.1 - BBMP draws the attention of this Court to an internal communication dated 29.05.2023 made by the Chief Town Planner, BBMP and submits that it has been directed that while considering applications for approval of the sanction plans or issuances of building license, having -9- NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 regard to the judgments passed by this Court in Pavanjeet Singh Sandhu, it was clarified that sanction may be accorded in all cases where the 'approved layouts' were formed prior to 25.06.2007. The learned counsels would therefore submit that since admittedly the layouts in question were not approved by any competent authority, approval cannot be given by the respondent- BBMP permitting the petitioners to take up construction. In other words, it is submitted that even if it is a case of a layout claimed to have been formed prior to 25.06.2007, nevertheless, such approval can be given only where the layouts are approved by the competent planning authority. Learned counsels for the BBMP would vehemently contend that it would be impossible to ascertain as to whether the layouts were formed prior to 25.06.2007, if there is no approval given by a competent planning authority.
7. The question therefore is whether a person who approaches the respondent - BBMP seeking approval of a
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NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 plan for putting up construction is required to produce a sanctioned layout plan which was approved by the competent authority prior to 25.06.2007 or on failure of the applicant to produce such a document, whether the application can be rejected?
8. This Court has discussed the issue in the case of Pavanjeet Singh Sandhu having noticed the fact that the National Green Tribunal, Principal Bench, New Delhi in the case of Forward Foundation and others v/s State of Karnataka and others had passed an order on 04.05.2016 regarding the requirement of the distance to be maintained from the Rajakaluves as buffer zone, having regard to the Zonal Regulations contained in RMV-2015. In the general conditions at paragraph No.3 it was directed that the distance in respect of buffer zone specified in the said judgment shall be made applicable to all the projects and all the authorities concerned were directed to incorporate such conditions in the project to whom
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NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 Environmental Clearance and other permissions granted not only around Bellandur Lake, Rajakaluves, Agara Lake but also all other Lakes/wetlands in the city of Bengaluru. The State of Karnataka which was aggrieved by the orders passed by the NGT, approached the Hon'ble Supreme Court and the Hon'ble Supreme Court by order dated 05.03.2019 clarified the orders passed by the NGT. It was noticed that the learned Advocate General appearing for the State of Karnataka had submitted before the Hon'ble Supreme Court that the State of Karnataka is aggrieved by the order of NGT to the extent of setting aside the buffer zone in respect of water bodies and drains specified in the RMP-2015 and enlargement of the buffer zone in respect of lakes and Rajakaluves. The State was also aggrieved by the order of NGT directing the authorities to demolish all the offending constructions raised/built in the buffer zone, which would result in demolition of 95% of the buildings in Bengaluru. It was submitted at the hands of the State that the Revised Master Plan is statutory in nature and NGT has
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NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 no power, competence or jurisdiction to consider the validity or vires of any statutory provision/regulation.
9. The Hon'ble Supreme Court by order dated 05.03.2019 allowed the appeals filed by the State of Karnataka and the directions/condition No.1 in the order dated 04.05.2016 was set aside except the direction issued against respondents No.9 and 10 therein who were the project proponents.
10. Having regard to all these aspects, this Court came to a conclusion that the requirement of implementing the buffer zone could be made applicable only in layouts that were formed subsequent to the rule being brought into the RMP-2015 and cannot be made applicable to layouts that were formed prior to the said date. More particularly regard should be had to the fact that the authorities are required to find out as to whether the nala was in existence prior to the rule being brought into force or was formed subsequently. However, having
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NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 regard to the submissions made by the learned Counsels for the respondent-BBMP, this Court finds that the officers of the BBMP are not insisting that permissions can be accorded to such applicants only if the layout has been approved by the competent authority and such benefit will be denied in all cases where the layout is not approved by a competent authority.
11. The question is not whether the layout was approved or not? What was directed to be considered was whether the nala/storm water drain was formed prior to 2007, when the rule was brought into force. If the stand of the respondent-BBMP is accepted and permitted to be implemented, it will lead to an unprecedented chaotic situation in the city of Bengaluru. This Court can take judicial note of the fact that there existed thousands of nalas of various sizes, from time immemorial, and as a consequence of which there existed more than 1000 lakes in Bengaluru. Examples of the earliest settlements in
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NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 Bengaluru, be it, Halasuru, Cantonment (the present Shivajinagar area), etc., can be taken since large storm water drains which existed earlier continue to exist in those areas even today. All along the storm water drains in such old areas we can find buildings, old and new. Halasuru, where a huge nala runs through, has an history of more than 200 years of existence. In fact, such area cannot be labeled as 'unauthorized' because they were in existence much prior to the enactment of the Karnataka Town and Country Planning Act, 1961. If we permit the officers of the BBMP to implement the internal communication dated 29.05.2023, it would give rise to an undesirable situation, where residents of such old areas viz., Shivajinagar cantonment or Halasuru may not be accorded a sanction plan or building licence, on the ground that they are unable to furnish copy of authorized layout plan. At the same time, no action can be taken in respect of the buildings already in existence, since the rule
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NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 brought into effect from 25.06.2007 cannot be operated retrospectively.
12. Truly this was not the intent of this Court when it rendered the judgment in the case of Pavanjeet Singh Sandhu and Sindhu K.M. (supra). It is noticeable that the learned Advocate General himself had made such submission before the Hon'ble Supreme Court as noticed herein above that if the rule is sought to be implemented in respect of the old layouts which were not approved, then 95% of the building will have to be demolished in Bengaluru City. No new construction will be permitted and people will be forced to reside in old, dilapidated buildings. This Court takes note of the fact that the word 'Layout' has been defined in the Bruhat Bengaluru Mahanagara Palike Act, 2020, as - "Lay-out - means a lay-out formed by an individual or body of persons, whether incorporated or not." Therefore, technically, permission cannot be
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NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 restricted only to authorized layout, since the meaning is not restricted to authorized layouts alone.
13. This Court is therefore of the opinion that the internal communication dated 29.05.2023 given by the Chief Town Planner needs to be clarified while stating that the approval cannot be restricted to approved layouts only. Permission will have to be accorded by the BBMP even in respect of unauthorized layouts, if necessary information is produced by the applicant to show that the layout was formed much prior to the year 2007 and the khathas have been registered in the office of BBMP or the erstwhile local body. This is because the jurisdiction of the BBMP has been expanded twice and now the jurisdiction of BBMP is about 625 sq. kms. By further expansion many of the areas which were earlier within the jurisdiction of 7 City Municipal Councils, 1 Town Municipal Council and 110 village panchayaths are now brought within the jurisdiction of BBMP. If earlier the khatas were registered in the
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NC: 2024:KHC:19621 WP No. 20041 of 2023 C/W WP No. 8557 of 2024 erstwhile local bodies and thereafter, the khatas have been registered in the office of the BBMP on the jurisdiction being brought under the BBMP, it is a clear indication that the layouts were formed much prior to 2007 and formation of the residential sites were recognized by the local bodies and khata were accordingly registered and property taxes were also collected. In that view of the matter, the above clarification has been issued.
14. Consequently, this Court proceeds to pass the following:
ORDER
(i) The writ petitions are allowed.
(ii) The impugned endorsement dated 29.08.2023 at Annexure-H issued by the third respondent bearing No.Sa.Ni.(Na.Yo)/RA RA NA VA/PR/153/23-24 in W.P. No.20041/2023 and endorsement dated 15.09.2023 at Annexure-
E in WP No.8557/2024 are hereby quashed and set aside.
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(iii) Specific directions are given to the competent officers of the BBMP to consider the applications filed by the petitioners and accord approval without insisting on the petitioners producing Sanctioned layout plans or seeking 'No Objection Certificate' from the Bangalore Development Authority.
(iv) The approvals shall be considered as expeditiously as possible and at any rate within a period of six weeks from the date of receipt of a copy of this order.
General directions to the BBMP -
(v) Hereby, directions are given to the competent Officers of the BBMP to consider all such applications and accord approval without insisting on the applicants producing Sanctioned layout plans or seeking 'No Objection Certificate' from the Bangalore Development Authority.
(vi) For the purpose of ascertaining whether the layout was formed prior to 25.06.2007 or thereafter, it is sufficient if the applicant
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C/W WP No. 8557 of 2024
seeking sanction plan for putting up
construction tenders a khatha certificate
issued by the local body (BBMP/City Municipal Council/Town Municipal Council/Grama Panchayat/HA Sanitary Board/ etc.,) registered prior to the said date either in the name of the applicant or the previous owner.
(vii) Any registered instrument transferring rights in respect of a 'site/property number/khaneshumari number' prior to 25.06.2007 should also be accepted as sufficient proof regarding formation of the layout/site prior to the said date.
Ordered accordingly.
Sd/-
JUDGE VS