Karnataka High Court
U.M.Suresh Rao vs State Of Karnataka on 3 April, 2009
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
m THE HIGH come': 0:? KARNATAKA,
DATED THIS THE aw?» DAYUE5' APR£1; ,a j2;§:)'{;f§
BEFoREz *z
THE HONBLE MR.JUSTI*€;ERAM 1*a21{)I<IJxiNVV':é}§1i§3:§&'
MISC. yvgrr NO. 'A3:;S4,:.A2009"
IN WRIT PETIT}L£),N_ Na.'r5;2'i¢2Qo9{LB--BM?)
BETWEEN . '
U.IV;I.SURESH
S/O LATE B,.A'i.M;§;DA.*mA3*A «.
AGE 6ErYEA_RS V _
R/AT 2310 36525.1 1f1'1%=I4,1\aA_1N.Vfzc)AD
31213 BLOCK, 'KORk%MANGALA
13ANGALOR'E~34.».. V "
PEYTYTIONER
(By NA€}}§--N[§I§3_D., Sr. COUNSEL FOR
V. 'ws."%--(JusT LAW~S ---- SRIRANGA, ADV )
1 S'1'A'f'I§ OF KARNATAKA
'DEPARTMENT OF HOUSE AND URBAN
.. , DEVELOPMENT, VIDHANA SOUBHA
_ KBANGALORE
' REPRESENTED HEREIN BY PRINCIPAL
SECRETARY.
u BANGALORE SEVELOFMENT AUTHORITY
T CHC}W{)AIA¥i ROAD
KUMARA PARK WEST
BANGALORE--20 "K
05.}
REPRESENTED HEREIN BY COMMISSEONER
3 BRUHUT BANGALORE MAHANAGARA PAJ;;ik§i'V'.',j' *'
HUDSON CIRCLE, BANGALORE 'A F'
REPRESENTED HEREIN BY I'§'$ coM1Mia§§j;QN§iRV u 2
4 V M M TRUST
NO 370. 11'I'I~1 MAIN ,
3RD BLOCK, KORAMANGALA "
BANGALOREJ34 ' .
5 TALWALKARS BE-'I"I'ER F!Ai.U'E 'EKTNESS' LTD
NO 364, AsHwA'1fH._LA:<M; ,MA:§SION
4TH '1' BLOCK, 16'i"'H
35TH CROSS, JAYANAGAR:
BANGALc::%E--4::A"" - V. ' -
Q1:f1%fI(:1::%"m?:.;:§.1_Q 3.?*0.;:"i}:1>ié:';s._4r;;N, 3123 mocx
ZKQRAMANGAM, 'ee.'r:GALoRE«34.
_ -- ' - RESPONDENTS
(By Sri Q K G» RAc;H;s$z'Ai~é"---Si.'. COUNSEL
_ FOR L"!}SVHW'.AN;'£TI~i, ADV )
MI§C.W--.------«F'ILED UNDER SECTION 15: OF THE
CFC PR'_r?§Yi_N!3f TO VACATE AND/' OR MODIFY THE INTERIM
' 0Ram2.V' '=.{)AfrED 26.03.09 GRANTED IN THE w.1:=~.
A 'I'_his. W. coming on for orders this day, the
' cot.:.jt"i.. made the fofiowing:
ORDER
This application is by the 5*'? res-poncient to vacate or Wmociify the interim order dated 26--3--20€}9.
2. By the interim order, the applicant is put ' to use the property No I3v.'I«'f3v',»«-1&1"? Koxegala, Bangalore for xesidential.
3. The peizitioner in occupation of the xesidential Koramangala, opposite to area classified as residential: E)eveIopment Piaxa, under The Development Act 1961, for shore in question, being a comer plot 'no 01$ the Satjapur Road but entrance from zxgaip, opposite the petitioner's residence. The 4'11 W owner of the said property, obtam' ed a safne_fio3:1~ of f)ufldiI1g plan and having erected a nesidential '-»»l:§11ildi:i::gV,A':'1:a11t to use the same for a residence.
4. The revised Master Plan 2O15,a11d the Zonal Regulations H2007', for short regulations, introduced a new concept krwwn as Mutation Corridor, defining certain areas U'?
of Bangalore city to be put to permissible in question and that of the petitioiie19's« {ea corridor, permitting its use for co1eu1__ei'eje1 eligbility criteria, such as at V sMts.; Vt eratry and exit to be fl '1'-oavzivj so as to insulate the msidential the efiects of commercial aifliszity; Tables 8 and 9; and It -t of the petitioner that the in question does not adhere" to} the regti§zefii~ents of the Revised Master Plan and so as to permit its use for oommercial ieqzéest of the 4"' respondent for a"No objection"
foi' lend use, when declined by the petitioner was V*fo1Iowe.ci,__A«t)y filing Written objections with the Planning who eonfixmed that the property could be put to V' only for residentiai purpose anti that there was no request for change of land use. It is the further allegation of the petitioner that the 5*' respondent without authority of M;
law and in gross violation of Rule of Law ll sigage to put to use the propeIT5?MiEti"qz1e$;ttio;u _23:_fiijt1eS's center (GYM).
6. In the afiidavig the 'applieiation, the deponent states that is taken cm.
lease from the regletemd lease deed dated a fimess centre, to cater the locality, as has been
done five the city and sixty branches all over promrty falls within the Mutgificg V' ufider the Regulations, permitting land The property complies with the eligibility pefifionefis allegation, in the absence of specifics; a bald allegation. It is stated that the access
- and the property is fi'om the Saxjapur main road and earlier openhzg on the eastern. side opposite the V' péfitionefs residence is since closed. } K -7- if : Learned counsel for the applicant to the provisions of the regulations, permissible use of the land in que:§fiofi also in View of the definition of thefland'. sub~se,ci':'io1V1'x L (2) of Section 3 of the T]ae---- Whaving V' made no exception to it be said that pexmissible use of 'S1_;.c1i' The applicant tiflegate opening to the 113' of the fitness centre from 6-30 am to being air conditioned;
pxovfédincg Vfaciffiities for customers and other such fpefitioner cannot be heard to contend that it .. " of fife or peaceful living. Lastly, it is comgendveci the balance of convenience lies in favour of
- Mthe apjzfiigiant and if the iI1t€I'iI11 order is not vacated, it would greater haxdship to the applicant which cannot be compensated in terms of money. i Q 3 3. Per contra, Learned Senior counsel foefdze points out to the regulations to centend ' that b use of land. for commercial acfivity. cannetét be «.re.3d..vva:s_ permissible use of the eycisténgifesidential the" V set back specification fer _a1l.'t.}31'evv243r_u':§s are not the very same as building. To buttress the s11L:=.::eission":iefi;Ience__is.V'.1neide'$to the building plan ijenuidié-10~ 198'? to erect zesidenfinld of '?539 sq.ft. with one as sgfeinsfi'.d1e.:'_'ie.q'ui15ement of eight car parking spaces A'fi;1_'L"the in terms of table 23 of the 1'egu_latiQ11s.uE\{en'1ofi1erwise, it is contended that: the . V Aapj":v1i{eai:itt Haying at pexmission of the Plenum' g 1}): put to use the building for commercial ec that residential buildings on the date of comingvihmto force of the regulations would be deemed to be V'_1*egbd1"{a.tion compliant: so as to suit the change of land use, tee regulations signifym g safety, prifiacy, meaningful I1v1n' ' g u e$e., would be renciexed nugatozy. K 3 J J/' i 1 . The KTCP Act was promtflgategiytoii the regulation of planned ' :;f'4._1a2nd_f deveiopment and for the exeet-§;tjyoné'of *' planning schemes in the Local Planning authority ._ and its periphexy is the Authority constituted authority Act, xjoowers, perform the under the KTCP Act.
The devised --~ Comprehensive Deveioggmentfiflan, #11985, and thereafter 1995 for the .. <. ' "'ff/~'~~«i}£LC'[°-"""V'" LT' "City of Baizgalore, the property in question
-:"petitionor to be put to residential use. _ The 4th respondent owner of the property in (}_ne3'tion, applied for, secured a sanction of Buiidmg
----- Am1ex11re--R2 and put up a building' for residenfiai use, in conformity with the building byeiaws for residential building, of the Corporation of the City of M Bangalore, under the Karnataka Act, 1976.
13. The PIan:J1':n.g with Section 13-13 of the 'thevvexisting cm of 1995, and a 'Master A to in the year 2007. Vprovided for Zonal Reguiations, devising, 0f.1;1{31'S., hone known as 'MUTATION ooeizleoegssedermngg and de--a]ienating a determined ' '~ _ 31-¢g,~,:.oEf'E which inciudes the property in use and Regulation, providing for the "}§er1nissii3,¥el3nd use", of the said property for :"'comm.ereial purposes, inciuciing 2: 'Gym', subject to the resizrfctions over ground coverage, set back and parking. \.r' 'N
-~'}'hus the property in question which haé hither to put to use, predominantly, for residentiai purpose, was eligibie to be put to use for commercial purpose by the Le?
the parking requirements for various uses; provides for fee protection measures against. earthquakes, Table-"--i2;§:the §5fidtij"~ s and number of exists for occiipa;f1cles.'1:§.1oiuding, at Si.Ne.6, "susmessziiééind V' Sub--~Seotions (2) of to include benefits sttached to the earth or permzlfieptly attached to the earth, Whilefljle elefitgition of 'land use' under Sub-Sect::ion(3) to which a, plot of land is being I date. The term 'Development' is defiI2eci°ih$1ib~Section (10) thus: " with its gammatical vaxsiaeosis, means the t::aI'ryiI;1g out of building, ' "'eIi1gi:i1eeI'iI1g, mining or other omrations, in, on, over or Wincier land or the making of any material change in any building or ianci, or in the use of any building or land and includes sub~ciivisio1r1 of any land}? M
-13 16 The enforcement of the Master regulations is provided for in Sfieetion V 'Act. sub-section (1) states t1:a{t.,oi§,Jai1c2TT on which a declaration of irxteiitjon "to. prep"are--,e{'Master V' Plan is published unoer s1,3b'4Sefef,ioz1_ (1}'o:"'Se'etion 10, every land use, ever}? 'rise and every deve1opment_.,the area, the plan subject to Secticrfro the Verovisions of the Act, the Masterflfflran, as finaliy approved by the State {':overr1rr1e1'1t, finder Sub-Section (3) of Section 13. __(2) it clear that no such change in tiexfelopment as is referred to in Sub~Seetion (1) 'eha§_i' ileériade except Wit;h the written permissions of ,V,»"'the_.Pler1r1i11g Authority, which shall be contamed in a 'eomiheneement certificate granted by the Piarming
-*'ATt1t:hor*ity in the form prescribed. For the purmse of the said Section, the expianation defines 'Deveiopment' to mean the carrying out of buikiirlg or other operation in \p,«"?\'\K ~14 on over or under any land or the maidng cf change in the use of any buiidizlger a Section (3) provides for an permission under Sub~Se(,i:_i_en.V'(2) to by" i a plan, drawn to scaie sho§vingflie.LAaci:né1-dimiension of the plot of land in respeet is asked, the size of the the position of the building' other information as by the Planning ; '1fh12s'ieJ1_<3__and land use, includes the building V" ex} question and the change in land use from 1:ep""eon:1mercia1 is permissible under the _ Re§1"1Iati.ens";2O07, being a part: of the Master Plan, _":w.ha§eh Vwhen seught to be enforced, amounts to ' 'tieveiepment' requiring the applicant to make an
-apipiication unéer SLIb*SCCti():{l (3) of Section 14 to the i " Pianning Authority, which would permit the said iand M ~18 "€39. The claim of the appiicant tQ__fia$(e:.A_Tj11§eSted. Rupees three erores am} a tezfrn since serviced, ta set up the fimes.e'eent1fe'(Gy 1I£), 'bu1::" e. 3/'.
a bald assertion befieffi of Even otherwise, the Hef moriey cannot be justifxcafiefg of Law'. 2;}. having made out a case Veee no valid legal grounds to eit1¥ e':_ 'vaeate the interim order dated
26.Q3;:2g)e9Z _ "
Ernie is without merit and is aecorfiingly rejeetecifi ' 2 * sa/§_ Iudqe aib