Karnataka High Court
Mrs Bhavani Yellappa Palyagar vs The Chief Commissioner on 19 April, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 24206 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 19TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 24206 OF 2022 (LB-BMP)
BETWEEN:
1. MRS. BHAVANI YELLAPPA PALYAGAR,
W/O. MR. SHANTHA KUMAR PUSHPARAJAN,
AGED ABOUT 62 YEARS,
R/AT. SHANTHI NIVAS,
1ST CROSS, VIVEKNAGAR,
BENGALORE - 560 047.
REPRESENTED BY HER GPA HOLDER,
MAARQ SPACES PRIVATE LIMITED,
(FORMERLY KNOWN AS CV ADVISORS PRIVATE LIMITED),
OFFICE AT.NO.73, 2ND MAIN ROAD,
PALACE GUTTAHALLI,
BENGALURU - 560 003.
REPRESENTED BY ITS DIRECTOR,
MR. BALAKRISHNA KUDIGRAM.
Digitally signed by
NARAYANAPPA 2. MAARQ SPACES PRIVATE LIMITED,
LAKSHMAMMA (FORMERLY KNOWN AS CV ADVISORS PRIVATE LIMITED),
Location: HIGH OFFICE AT.NO.73,
COURT OF 2ND MAIN ROAD,
KARNATAKA
PALACE GUTTAHALLI,
BENGALURU -560 003.
REPRESENTED BY ITS DIRECTOR,
MR. BALAKRISHNA KUDIGRAM.
...PETITIONERS
(BY SRI. K S HARISH., ADVOCATE)
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WP No. 24206 of 2022
AND:
1. THE CHIEF COMMISSIONER,
BRUHAT BENGALURU MAHANAGARA PALIKE,
N. R. SQUARE, BENGALURU - 560 002.
2. THE JOINT DIRECTOR (TOWN PLANNING-NORTH)
BURHAT BENGALURU MAHANAGARA PALIKE,
N R SQUARE, BENGALURU - 560 002.
3. THE ASSISTANT EXECUTIVE ENGINEER,
WARD NO.150, MAHADEVAPURA ZONE,
BENGALURU - 560 048.
4. STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
VIKASA SOUDHA,
DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
5. BANGALORE DEVELOPMENT AUTHORITY,
T.CHOWDAIAH ROAD,
KUMARA PARK (W),
BANGALORE-560020
REPRESENTED BY ITS COMMISSIONER.
...RESPONDENTS
(BY SRI. VIKRAM HUILGOL., SENIOR ADVOCATE FOR
SRI. V G BHANU PRAKASH., ADVOCATE FOR R1 TO R3;
SRI. NITYANANDA K R., AGA FOR R4;
SRI. K KRISHNA., ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO SETTING ASIDE THE
IMPUGNED ENDORSEMENT DATED 22.08.2022 ISSUED BY THE R2 AT
ANNEXURE-Q AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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WP No. 24206 of 2022
ORDER
1. The petitioners is before this Court seeking for the following reliefs:
1.1. "Issue a writ in nature of certiorari setting aside or quashing the impugned endorsement No. dA.¤.£À.AiÉÆÃ(G)/¦.Dgï/2022-
ÆÃ(G)/¦.Dgï/2022-23 dated 22.08.2022 issued by the respondent No.2 at Annexure-Q; 1.2. Issue a writ of mandamus directing the respondent No.2 to issue occupancy certificate to the petitioners as sought in their application dated 26.05.2022 at Annexure-P;
1.3. Issue such other writ, order of direction that this Hon'ble Court deems fit in the interest of justice and equity."
2. Petitioner No.1 is the absolute owner of the converted property bearing Sy. No. 153/3, measuring 1 acre and 24 guntas, situated in Doddakannahalli Village, Varthur Hobli, Bengaluru South Taluk. Petitioner No.2 is a developer who is involved in to business of real estate development. Petitioner Nos.1 and 2 entered into a joint development agreement on 20.12.2016 for the purpose of construction of apartment complex. In furtherance of which, the petitioners applied for sanction of building plan to respondent No.2-Joint Director(Town Planning) BBMP. In furtherance of which, a demand was made for deposit -4- WP No. 24206 of 2022 of plan sanction fee on 28.11.2017 and on compliance thereof, the plan came to be sanctioned on 19.01.2018 and a building license was issued.
3. Before putting up such a construction, the petitioners obtained No Objection Certificate from BWSSB, Karnataka Pollution Control Board, etc.,. The petitioners in furtherance of the same, commenced construction of an apartment complex. A commencement certificate came to be issued on 28.02.2019 in pursuance thereof, the construction was continued and completed.
4. On completion, the petitioners applied for and obtained a consent for operation from KSBCB as also electricity connection from BESCOM and made an application on 26.05.2022 for issuance of an occupancy certificate to respondent No.2.
5. It is at this stage that respondent No.2 took up a contention that there was a proposed road, measuring 18 mtrs going through the property of the petitioners in terms of RMP 2015 and therefore, refused to grant the occupancy certificate. On the ground that, the petitioners -5- WP No. 24206 of 2022 have allegedly encroached upon the said proposed RMP road and that the petitioners could not have put up construction on the said proposed RMP road.
6. The petitioners therefore, submitted a representation placing on record events which transpired as also submitting that the petitioners have put up construction in accordance with the sanctioned plan there being no deviation which had been pointed out, the ground now urged by respondent No.2 is not sustainable, and as such, the occupancy certificate ought to be issued to the petitioners, No action being taken thereon, the petitioners are before this Court seeking for the aforesaid reliefs:
7. Sri.Harish, learned counsel for the petitioners would submit that 7.1. a master plan 2031 having been issued on 23.11.2017, there is no road proposed or otherwise shown in the said master plan 2031.
7.2. It is on the basis of the said proposed or provisional master plan 2031 that the plan of the petitioners -6- WP No. 24206 of 2022 has been considered and sanctioned on 19.01.2018.
7.3. Merely because the said 2131 master plan was withdrawn on 20.06.2022 it cannot now be contended that the earlier master plan 2015 is brought back into force and thereby contend that the proposal for establishing an 18 mtr road would come back into operation having an impact on the plan already sanctioned.
7.4. The petitioners acted upon the plan sanctioned in the year 2019 completed the same by 26.05.2022 and an application for an occupancy certificate has been made on that day, the BBMP cannot now rely upon the withdrawal of the provisional RMP 2031 on 20.06.2022 to deny the occupancy certificate to the petitioners. It is in that background that he submits that the petition is required to be allowed.
8. Sri.Vikram Huilgol, learned Senior Counsel appearing for respondent Nos.1 to 3 would submit that -7- WP No. 24206 of 2022 8.1. when the application for the occupancy certificate submitted by the petitioners was being considered, the State Government had withdrawn RMP 2031 on 20.06.2022 thereby, RMP 2015 would automatically come back into force.
8.2. The corporation had no option but to consider the said application in the light of the revised master plan RMP 2015, which indicated the proposal to form a 18 mtr wide road in the property of the petitioners, and it is in that background that the corporation, having no option, had refused the issuance of Occupancy certificate.
9. Sri.K.Krishna, learned counsel for the respondent-BDA would submit that the BDA has nothing to do with the matter, inasmuch as it is State Government who has withdrawn the provisional RMP 2031 and that the plan has been sanctioned by BBMP, BDA has nothing to do with.
10. Heard Sri.K.S.Harish, learned counsel for the petitioners, Sri.Vikram Huilgol, learned Senior counsel for respondent -8- WP No. 24206 of 2022 Nos.1 to 3, Sri.K.Krishna, learned counsel for respondent No.5 and perused the petition papers.
11. The points that would arise for consideration by this Court are, 11.1. Whether merely because a provisional revised master plan 2031 was withdrawn by the State Government would all actions taken in pursuance thereto be negatived and have to be considered in terms of the revised master plan 2015?
11.2. Whether the petitioners in the present case are entitled for occupancy certificate at the hands of respondent Nos.1 to 3?
11.3. What Order?
12. I answer the above points as under:
13. Answer to Point No. 1: Whether merely because a provisional revised master plan 2031 was withdrawn by the State Government would all actions taken in pursuance thereto be negatived and have to be considered in terms of the revised master plan 2015?
13.1. RMP 2015 which come into force on 25.06.2007 indicated the existence of the proposed 18 mtr wide road in the property of the petitioners. However, the provisional master plan 2031 issued on 23.11.2017, the proposed 18 mtr wide road was -9- WP No. 24206 of 2022 given up by the BDA and the said RMP 2031 did not reflect any such proposal.
13.2. It is subsequent to the provisional master plan 2031 having been notified that on 19.01.2018 a plan came to be sanctioned in favour the petitioners which included construction to be put up in the area where the proposed 18 mtr road was shown in RMP 2015.
13.3. At this stage, many of the no objections required from statutory authorities was also obtained by the petitioners it was considered by the BBMP while sanctioning the building plan. The construction which had been put upto the plinth level having been examined. A commencement certificate also came to be issued by the BBMP on 28.02.2019, in terms of building byelaw No.5.2 and while doing so the construction which has already been put up was verified to ascertain the foundation of footings, walls and columns and certified that the same was in accordance with the plan sanctioned.
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WP No. 24206 of 202213.4. When the said commencement certificate was issued on 28.02.2019, construction of the columns by the petitioners was also made in the location where the 18 mtr wide proposed road was situate in terms of RMP 2015. Thus, not only was the plan sanction issued by the BBMP but also a commencement certificate certifying the construction to be in accordance with the sanctioned plan was issued on 28.02.2019. 13.5. The construction having been completed an application for occupancy certificate was made on 26.05.2022, the property was inspected and no deviation was found in the said construction from the plan sanctioned in other words the construction put up was as per and in accordance with the plan sanctioned.
13.6. The only ground on which the occupancy certificate has been refused is on account of State Government having withdrawn RMP 2031 on 20.06.2022.
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WP No. 24206 of 202213.7. The said rejection in my considered opinion it is bad on two counts. Inasmuch as the application has been made on 26.05.2022, the provisional master plan 2031 was still in force and as such the said application ought to have been considered in terms thereof and not on the basis of the subsequent withdrawal by the State Government of RMP 2031 on 20.06.2022.
13.8. Secondly, the BBMP having issued the plan sanction, commencement certificate the petitioners having acted on the plan sanctioned and put up construction by investing its monies, the petitioners cannot be deprived of the usufructs of the same merely on account of the State Government withdrawing RMP 2031 when all the authorities have proceeded with on the basis of provisional master plan 2031 by issuing a plan sanction and commencement certificate. There is no allegation as against the petitioners as regards having constructed illegally, without plan sanction or having deviated from the plan sanctioned.
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WP No. 24206 of 202213.9. The petitioners has acted upon plan which has been sanctioned by respondent No.2. Thus, I am of the considered opinion on this ground also, the BBMP cannot now on the basis of withdrawal of the RMP 2031 by the State Government deprive the petitioners of the occupancy certificate. 13.10. As such, I answer point No.1 by holding that merely because the provisional revised master plan 2031 was withdrawn by the State Government it would not negate all actions taken in pursuance thereto, the actions taken in pursuance of the provisional revised master plan 2031 must be given due effect, the withdrawal thereof would not make the revised master plan 2015 applicable thereto.
14. Answer to Point No.2. Whether the petitioners in the present case are entitled for occupancy certificate at the hands of respondent Nos.1 to 3?
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WP No. 24206 of 202214.1. In view of my answer to point No.1, the refusal of the granting of an occupancy certificate to the petitioners is not sustainable. The BBMP, having taken into consideration the Provisional Master Plan 2031 while sanctioning the plan, is now estopped from contending otherwise. It is not the case of the BBMP that the plan sanction was wrong, the case of the BBMP is that due to the withdrawal of the proposed Master Plan 2031 the application for occupancy certificate was to be considered as per the earlier master plan namely Revised Master Plan 2015. The petitioners having acted in terms of the plan sanction granted as per the applicable law and complied with the applicable provision including that of the sanctioned plan an occupancy certificate is required to issued to the petitioners. Hence, I pass the following:
ORDER i. The petition is allowed, a certiorari issued quashing the endorsement dated 22.08.2022 at Annexure-Q,
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ii. a mandamus is issued directing respondent No.2 to process the application of the petitioners for occupancy certificate dated 26.05.2022 and grant the same, if construction put up is in accordance with the sanctioned plan and after examining all applicable rules therein within a period of five weeks from today at any rate before 31.5.2023.
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JUDGE rv List No.: 1 Sl No.: 102 CT:STK