Karnataka High Court
Richard'S Town Residents Association vs Bruhath Bangalore Mahanagara Palike on 1 August, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO.48423/2013 (BDA) C/W
WRIT PETITION NO.18883/2013 (LB-BMP)
IN WRIT PETITION NO.48423/2013:
BETWEEN:
1. RICHARD'S TOWN RESIDENTS ASSOCIATION (REGD.,)
HAVING ITS REGISTERED OFFICE AT NO.8
CLARKE ROAD, RICHARDS TOWN
BANGALORE - 560 084
REPRESENTED BY ITS PRESIDENT
MR. K.G. SHASHIDHAR.
2. MR. K. ABDUL HAMID KHAN
S/O SRI KALANDAR KHAN
AGED ABOUT 62 YEARS
VIVIANI ROAD, RICHARDS TOWN
BANGALORE-560 005.
3. MR. JOSEPH MENAUD
S/O JAMES ARTHUR MENAUD
AGED ABOUT 69 YEARS
R/AT NO.304, GOLDEN GATE APARTMENTS
NO.15, POTTERY ROAD, RICHARDS TOWN
BANGALORE-560 005.
4. MR. K.G. SHASHIDHAR, S/O GANPAYA K S
AGED ABOUT 68 YEARS
R/AT NO.13, POTTERY ROAD
RICHARDS TOWN
BANGALORE-560 005.
...PETITIONERS
(BY SRI B.N. PRAKASH, ADVOCATE FOR
SRI MANJUNATHA S., ADVOCATE)
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AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY IT'S PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
VIKASA SOUDHA
BANGALORE-560 001.
2. BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020
REPRESENTED BY ITS COMMISSIONER.
3. BRUHATH BANGALORE MAHANAGARA PALIKE
HUDSON CIRCLE
BANGALORE - 560 002
REPRESENTED BY ITS COMMISSIONER.
4. MR. K.S. SETHNA
S/O MR. S.R. SETHNA
AGED ABOUT 50 YEARS
NO.13, KENSINGTON ROAD
ULSOOR, BANGALORE - 560 042.
5. M/S. YOLEE GRANDE
HAVING ITS REGISTERED OFFICE AT YOLEE, NO.14
POTTERY ROAD, (FORMERLY BEARING NO.4)
RICHARDS TOWN
BANGALORE-560 005
REPRESENTED BY ITS MANAGING DIRECTOR.
...RESPONDENTS
(BY SRI R. SRINIVAS GOWDA, AGA FOR R-1;
SRI UNNIKRISHNAN M., ADVOCATE FOR R-2;
SMT. JAYASHEELA S., ADVOCATE FOR R-3;
SRI GIRISH N., ADVOCATE FOR R-4;
SRI L.M. CHIDANANDAYYA, ADVOCATE FOR R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE RESOLUTION DATED 9.5.2005, AT ANNEXURE-C
PASSED BY THE R2 THE ORDER DATED 2.3.2006 AT
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ANNEXURE-D PASSED BY THE R1, THE COMMENCEMENT
CERTIFICATE DATED 5.7.2006 AT ANNEXURE-E ISSUED BY THE
R2, THE SANCTIONED PLAN AT ANNEXURE-F ISSUED BY THE
R3, AND OCCUPANCY CERTIFICATE DATED 6.8.2010 AT
ANNEXURE-G ISSUED BY THE R3.
IN WRIT PETITION NO.18883/2013:
BETWEEN
RICHARD'S TOWN RESIDENTS ASSOCIATION
HAVING ITS REGISTERED OFFICE AT
NO.8, CLARKE ROAD, RICHARDS TOWN
BANGALORE-560 084
REPRESENTED BY ITS PRESIDENT
MR. K.G. SHASHIDHAR. ...PETITIONER
(BY SRI B.N. PRAKASH, ADVOCATE FOR
SRI MANJUNATHA S., ADVOCATE)
AND:
1. BRUHATH BANGALORE MAHANAGARA PALIKE
HUDSON CIRCLE
BANGALORE-560 002
REPRESENTED BY ITS COMMISSIONER.
2. THE APPEALS STANDING COMMITTEE
BRUHATH BENGALURU MAHANAGARA PALIKE
HUDSON CIRCLE, BANGALORE-560 002
REPRESENTED BY ITS CHAIRPERSON.
3. K.S. SETHNA
S/O. MR. S.R. SETHNA
AGED ABOUT 50 YEARS
NO.13, KENSINGTON ROAD, ULSOOR
BANGALORE-560 042.
(R-3 AMENDED VIDE COURT ORDER DATED 24.02.2014)
4. M/S. YOLEE GRANDE,
HAVING ITS REGISTERED OFFICE AT
YOLEE, NO.14
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POTTERY ROAD, (FORMERLY BEARING NO.4)
RICHARDS TOWN
BANGALORE-560 005
REPRESENTED BY ITS MANAGING DIRECTOR.
...RESPONDENTS
(BY SRI S.N. PRASHANTH CHANDRA, ADVOCATE FOR R1 & R2;
SRI GIRISH N., ADVOCATE FOR R3;
SRI L.M. CHIDANANDAYYA, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE TRADE LICENSE DATED 30/1/2013 ISSUED BY THE
R-1 IN FAVOUR OF THE R-3 & 4 UNDER ANNEXURE-AD;
DIRECT THE R-1 TO TAKE AND INITIATE APPROPRIATE ACTION
AGAINST THE R-3 & 4 AND DEMOLISH THE BUILDING
CONSTRUCTED ON THE SCHEDULE PROPERTY FOR VIOLATING
THE BUILDING LICENSE AND APPROVED PLAN ISSUED BY THE
R-1 WITHIN THE TIME TO BE FIXED BY THIS HON'BLE COURT.
THESE WRIT PETITIONS ARE COMING ON FOR FURTHER
DICTATION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The issue involved in both the writ petitions is interlinked and the same are taken up, heard and disposed of by common order.
2. The property bearing No.14 measuring about 21000 sq.ft situated at Richards Town, Pottery Road, Bengaluru City is the subject matter of these writ petitions. The respondent No.4, who is the owner of the subject property, submitted an application under Section 14A of the Karnataka Town and -5- Country Planning Act, 1961 (for short 'Act') for change of use of property from residential to commercial purpose.
3. The 2nd respondent - Bangalore Development Authority, which is the Planning Authority, resolved to grant permission for change of use and accordingly submitted a proposal with the government for according approval for change of use of subject property from residential to commercial purpose. The government by order dated 2.3.2006 accorded approval to the respondent No.4 to change the use of the subject property from residential to commercial purpose subject to certain terms and conditions.
4. In pursuance of the permission granted under Section 14A of the Act, the respondent No.4 submitted an application with the 3rd respondent - Bruhath Bangalore Mahanagara Palike to grant permission for construction of residential complex on the subject property. In pursuance of the same, the commencement certificate was issued by respondent No.2 on 5.7.2006. Thereafter, the respondent No.4 was issued with occupancy certificate by respondent No.3 on 6.8.2010 and the respondent No.4 inducted tenants in the commercial complex and also a hall is situated in the ground floor of the commercial complex.
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5. The petitioner - Association states that it filed objections with the respondent - BBMP for grant of trade license in favour of the respondent No.4 for running a convention center in the commercial complex. However, without considering the objections, trade license was granted in favour of the 4th respondent against which the petitioner has filed WP No.18883/2013. The petitioner submits that the change of use of land from residential to commercial purpose granted in favour of the respondent No.4 came to be known only when the statement of objection was filed by the private respondent, the owner of the subject property, stating that the trade license issued in favour of the 4th respondent is in conformity with the order passed under Section 14A of the Act permitting the 4th respondent to change the use of land from residential to commercial purpose.
6. The petitioner also submits that only on knowing that the 4th respondent has been granted with change of use of land, filed WP No.48423/2013 challenging the order passed by the Government permitting to change the use of land under Section 14A of the Act.
7. The learned counsel appearing for the petitioner submits that the respondent - BDA initially having rejected the -7- application submitted by the petitioner, however, sent a proposal to the government for according approval for change of use of land without inviting objections from the public as specified under Section 14A of the Act. Hence, he submits that the impugned order passed by the respondent No.1 - State granting use of land is contrary to Section 14A of the Act. He further submits that the subject land measures less than 2000 sq. meters and the zonal regulation of revised master plan, 2015 published by the BDA specifies that the convention center can be run only if the extent of site is more than 2000 sq. meters. Hence, he submits that the permission granted to run convention center is contrary to zonal regulation of revised master plan, 2015. He further submits that the petitioner was aware of the grant of change of use of land only when the statement of objection was filed by the owner of the subject land and therefore the writ petition filed by the petitioner is not hit by delay and laches.
8. On the other hand, the learned counsel appearing for the private respondent - owner of the subject property submits that the writ petition filed by the petitioner in the absence of authorization by the Managing Committee of the petitioner - Association is not maintainable. In support, he -8- placed reliance on the decision of the co-ordinate Bench of this Court in the case of B H Inamdar -vs- B F Swamy reported in ILR 1991 KAR 1654.
9. He further submits that the relief sought for in the writ petition is in the nature of public interest litigation and the present writ petition is not maintainable. He further submits that the impugned order was passed on 2.3.2006 by the government permitting to change the use of land and the writ petition is filed after a lapse of more than seven years without offering any plausible explanation for the delay. He further submits that the internal communication of the respondent - BDA cannot be considered as an order of rejecting the application. In support, he placed reliance on the decision of the Hon'ble Supreme Court in the case of Nareshbhai Bhagubhai and others -vs- Union of India and others reported in (2019) 15 SCC 1.
10. He further submits that the plan was sanctioned for construction of "hall/office". He also submits that even accepting that the ground floor is utilised for convention center is not contrary to the regulation of master plan, 2015 since the shortfall is only 55 sq. meters which is negligible. The -9- respondent - BBMP after considering all these aspects has rightly granted the trade license.
11. I have examined the submissions of the learned counsel for the parties.
12. The respondent No.4 who is the owner of the subject land filed an application under Section 14A of the Act, seeking for change of use of land from residential purpose to commercial purpose. By resolution dated 09-05-2005 bearing No.181/2005, 2nd respondent-BDA which is the local planning authority, resolved to grant permission in favour of the respondent No.4 for changing the use of the land from residential to commercial purpose after conducting spot inspection of the said land and taking into account that the subject land is situated on the opposite side of the Bengaluru East Railway Station and also is abutting 18 meters road and the subject land is suitable for commercial purpose and recommended to the Government for according approval in favour of the petitioner (4th respondent).
13. The Government by order dated 02-03-2006, granted permission to the respondent No.4 for change of use of
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subject land from residential purpose to commercial purpose, subject to certain terms and conditions.
14. In pursuance of the change of use of land granted under Section 14A of the Act, respondent No.4 submitted an application to 3rd respondent- BBMP for sanctioning of plan for construction of commercial building consisting of "office/hall". The 3rd respondent-BBMP sanctioned the building plan on 18-1-2007 and in pursuance of the Commencement Certificate dated 5-7-2006, the respondent No.4 put up construction and completed the construction of the commercial building and the Occupancy Certificate was issued on 06-08-2010.
15. The respondent No.4 submitted an application with the respondent-BBMP for granting Trade Licence for the purpose of running a Marriage Hall in the ground floor of the schedule property. The petitioner filed objections to the said application and the respondent- BBMP after conducting an enquiry resolved to grant Trade Licence to respondent No.4 for operating a marriage hall on the ground floor of the subject property. The petitioner challenged the same before the Standing Committee and the Standing Committee confirmed the order passed by the respondent-BBMP granting Trade Licence subject to certain terms and condition.
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16. Though, initially, respondent-BDA had declined to grant permission for change of use of land, however, on the request of 4th respondent conducted the spot inspection and after taking account that the said land was suitable for commercial purposes resolved to grant permission for change of use of land. The initial decision taken by respondent-BDA refusing to grant change of use of land was not communicated to 4th respondent.
17. The Hon'ble Supreme Court in the case of Nareshbhai Bhagubhai and others Vs. Union of India and others reported in (2019) 15 Supreme Court Cases 1, held that notes recorded in the official files, by the officers of the Government at different levels, and even the Ministers, do not become a decision of the Government, unless the same are sanctified and acted upon, by issuing an order in the name of the President or Governor as the case may be, and are communicated to the affected persons.
18. In the present case, 2nd respondent-BDA, initially, resolved not to grant permission for change of use of land, but however, the said decision was not communicated to 4th respondent and has not been acted upon. Under the said circumstances, 4th respondent requested the 2nd respondent-
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BDA to grant permission, after conducting spot inspection so as to verify the suitability of the subject land for commercial purposes. The 2nd Respondent-BDA, after conducting spot inspection and also after verifying the suitability of the said land for operating commercial activities resolved to grant permission to 4th respondent for change of use of land and also recommended to the Government for according approval. Neither the petitioner nor the residents of the locality chose to file any objection to the notice published in the daily newspapers inviting objections from the public if any to permit the 4th respondent to change the use of the land from residential purpose to commercial purposes. The Respondent No.4 has been permitted to change the use of land from residential to commercial purposes in conformity with the provisions of Section 14A of the Act. Hence, the submission of the learned counsel for the petitioner that the order passed by the respondent-State granting approval under Section 14A of the Act is contrary to the provisions of the Act is not acceptable.
19. The Government accorded approval for change of use of land on 2.3.2006 and the commencement certificate was issued by the respondent-BBMP to put up construction on
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5.7.2006 and completion certificate was issued on 6.8.2010. The present petitions were filed in 2013. The petitioners claims to be the residents of the same locality and except for the explanation that they are aware of the order passed by the Government according approval under Section 14A of the Act only when the 4th respondent took a contention in W.P.No.18883/2013 that he has been permitted to change the use of land, the W.P. No.48423/2013 was filed immediately challenging the Government order dated 2.3.2006. The explanation offered is not sufficient to condone the delay in filing the writ petition since the 4th respondent commenced the construction of the building in 2006 and completed the same in 2010 and it cannot be believed that the petitioners were not aware of the order dated 2.3.2006 when they have specifically contended that they are the residents of the same locality. Hence, the challenge to the Government order dated 2.3.2006 is hit by delay and laches.
20. The 4th Respondent has been granted Trade Licence for running a Marriage Hall in the ground floor of the said property. The grievance of the petitioner is that, though 4th respondent has been granted Trade Licence for running a Marriage Hall, however, he is utilising the said property for the
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purpose of Convention Centre which is impermissible in view of the governing regulations of Revised Master Plan, 2015, published by 2nd respondent-BDA which specifies that for running a Convention Centre, the minimum extent of land required is '2000 Sq.M.', but in the present case, the extent of land is '1950 Sq.M.' which is less than the minimum extent of land prescribed in the Regulations. If the 4th respondent is utilising the said property in violation of the conditions imposed in the Trade Licence granted in favour of 4th respondent, it is open for the petitioners to approach 3rd respondent-BBMP to take appropriate action against 4th respondent for allegedly violating the terms and conditions of the Trade licence, if any, by 4th respondent.
21. If such a representation is submitted by petitioner to the 3rd respondent-BBMP, 3rd respondent-BBMP is under an obligation to consider the said representation and pass an appropriate order in accordance with law.
22. With this observation, the writ petitions stand disposed of.
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23. The writ petitions filed by the said petitioners are held to be maintainable. In view of the same, the locus standi of the petitioners for maintaining the petitions would not be gone into.
Sd/-
JUDGE bkm/tsn*