Karnataka High Court
M/S Sude Engineering Corporation vs Bruhath Bengaluru Mahanagara Palike on 20 April, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 3119 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 3119 OF 2023 (LB-BMP)
BETWEEN:
M/S SUDE ENGINEERING CORPORATION
REPRESENTED BY ITS PROPRIETOR
ASHA KIRAN DEVDAS SHETTY
W/O DEVDAS R SHETTY
AGED ABOUT 55 YEARS
R/AT NO 1106, 10TH MAIN
NEAR HAMPINAGAR BUS STAND
HAMPINAGAR, VIJAYANAGAR
BANGALORE 560040
...PETITIONER
(BY SRI. R.S. RAVI SR. ADVOCATE FOR
SRI. PRASAD HEGDE K B.,ADVOCATE)
AND:
1. BRUHATH BENGALURU MAHANAGARA PALIKE
Digitally signed HEAD OFFICE, NR SQAURE
by
NARAYANAPPA BANGALORE 560001
LAKSHMAMMA BY ITS CHIEF COMMISSIONER
Location: HIGH
COURT OF 2. HEALTH OFFICER
KARNATAKA BRUHAT BENGALURU MAHANAGARA PALIKE
VIJAYANAGAR DIVISON
1ST MAIN, MANUVANA, VIJAYANAGAR
BANGALORE 560040
3. DR. PUTTARAJA
S/O LATEE N. DYAVEGOWDA,
AGED ABOUT 74 YEARS,
R/AT NO. 1384/2, 10TH MAIN,
HAMPINAGAR, VIJAYNAGAR
BANGALORE-560040.
(AMENDED AS PER COURT ORDER DATED 8/2/2023)
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WP No. 3119 of 2023
...RESPONDENTS
(BY SRI. B V MURALIDHAR.,ADVOCATE FOR R1 & R2;
SRI. G.L. VISHWANATH., SENIOR ADVOCATE FOR
SRI. JOSEPH ANTHONY, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE AN ORDER
WRIT IN NATURE OF CERTIORARI TO QUASH THE NOTICE DATED
30/01/2023 ISSUED BY THE R-2 IN NO.AA.VY(VIN)PR/391/2022-23
AS PER ANNEXURE-A AND ETC.
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a. Issue an order writ in the nature of certiorari to quash the notice dated 30.01.2023 issued by the 2nd respondent in No. AA.VY(VIN)PR/391/2022-23 as per Annexure-A;
b. Grant such other relief or reliefs as this Hon'ble Court deems fit in the circumstances of the case including cost of this writ petition.
2. The petitioner claims to be a small-scale manufacturer of automated valves and Dampers for ventilating systems and oxygen cylinders at its factory at Pune and having its corporate office in Bangalore at Plot No.1106, 10th Main, Near Hampinagar Bus Stand, Vijayanagar which is the -3- WP No. 3119 of 2023 subject property in the petition. The petitioner claims to be running an office in a small portion of the aforesaid premises. By way of Annexure-A dated 30.01.2023, respondent No.2 had directed the petitioner to close down the office of the petitioner within seven days. It is aggrieved by the same that the petitioner is before this Court.
3. Sri.R.S.Ravi, learned Senior counsel for the petitioner would submit that the petitioner being a MSME is not required to obtain a trade licence, therefore the petitioner carrying on its business of corporate office in the premises in question would not require any permission from the Corporation in terms of the trade licence. Secondly, he submits that the property of the petitioner having been assessed on the basis of commercial use and the petitioner making payment of property taxes at commercial rate, the petitioner would be entitled to make use of the premises in question for its office and no fault can be found thereof. Thirdly, he submits that on -4- WP No. 3119 of 2023 receipt of a notice, the same having been challenged before this Court, this Court had vide its order dated 13.12.2022 clubbing the petition filed by the petitioner as also that by respondent No.3, directed the respondent No.2 to consider the representation given by both of them within a period of four weeks. In pursuance thereto, a representation having been submitted by the petitioner detailing out all the above, the same has not been considered in the impugned order at Annexure-A dated 30.01.2023. He refers to Annexure-2 to the Zoning of Land Use and Regulations of BDA/BBMP 1995 ['Zoning Regulations' for short] to contend that in the residential zone, the following uses are permissible:
ANNEXURE II Classification of land uses and the uses or developments that are permissible Classification of land into various use zones
(a) Residential -5- WP No. 3119 of 2023
(b) Commercial (retail and whole sale business) (c) Industrial (light and service industries, medium industries and heavy industries)
(d) Public and Semi-public
(e) Utilities and Services
(f) Parks and Open space and Playgrounds (including public recreational area)
(g) Transportation and Communication
(h) Agricultural land, water sheet (Green belt) Uses of land that are permitted and that may be permitted under special circumstances by the Bangalore Development Authority which is the Planning Authority for the local planning area of Bangalore shall be as detailed hereunder.
Residential Zone:
(a) Uses that are permissible.-Dwellings, Hostels including working women's and gents hostels, Dharmasalas, Places of public worship, Schools offering general education course up to secondary education, Public libraries, Post and Telegraph Offices, KEB counters, BWSSB counters, clubs, Semi-public recreational uses, milk booths and neighbourhood or convenience shops, occupying a floor area not exceeding 20.00 sq. mts., Doctor's consulting rooms, Offices of Advocates, other professions in public interest not exceeding 20.00 sq. mts. of floor area in a building.
(b) Uses that are permissible under special circumstances by the Authority.-Municipal, Statutory Authorities, State and Central Government Offices, Banks, Public Unity Buildings, Colleges, Cemeteries, Golf Clubs, Tailoring, Laundry, Hospitals for human care except those meant for mental treatment, Nursing Homes, Philanthropic uses, fuel storage depots, filling stations, huller and flour mills.
Coffee grinding machines including service industries, with a maximum power upto 5 HP for all the industries as per the in list given in Schedule I and 10 HP in case of Huller and flour mills.
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The power required for air conditioners, lifts and computers shall be excluded while calculating the Horse- power specified above.
4. By referring to clause (b) above, he submits that a property in a residential zone could be used for hospitals for human care, Nursing Homes, the petitioner manufacturing valves for oxygen cylinders and ventilators, the same being a medical requirement, the petitioner can therefore under clause (b) carry out its business having a corporate office in the premise in question.
5. Lastly he submits that in the impugned notice/order dated 30.01.2023, none of the submissions made by the petitioner have been considered and as such, the same is an order without any reasons and principles of natural justice has not been followed by affording an opportunity of hearing to the petitioner. On these -7- WP No. 3119 of 2023 grounds, he submits that the above petition is required to be allowed.
6. Sri.G.L.Vishwanath, learned Senior counsel for respondent No.3 submits that the petitioner has been making use of the entire premises for commercial activity inasmuch as there are several employees of the petitioner who are working in said premises. There is also movement of heavy transport vehicles, boxes containing the valves manufactured by the petitioner inasmuch as those valves are stocked in the premise in question and thereafter from there were supplied to various purchasers. Thus, in the residential area even this stocking or warehousing of these equipment would amount to industrial activity and not a residential activity.
7. He submits that the Division Bench of this Court in W.A. No.3676/2008 and connected matters vide Judgment dated 19.02.2014 has categorically stated that no commercial activity whatsoever nature would be allowed to be carried on in a residential area. The -8- WP No. 3119 of 2023 BBMP having also coming up with the amendment to the Zoning Regulation stating that unless the road width is 40 ft, no commercial activity could be carried on. In the present case, the road width being 30 ft, any commercial activity is prohibited and therefore he submits that respondent No.2 has rightly passed the order dated 30.01.2023, as such the above petition is required to be dismissed.
8. Sri.B.V.Muralidhar, learned counsel for respondents No.1 and 2 submits that 1995 Zoning Regulations are not applicable and what is applicable is Zoning Regulation and CDP 2015, more particularly clause (4.1) thereof and in terms of Regulation (4.1) property in a residential zone can be used only for residential purposes, ancillary purposes could be used to an extent of 20% or 50 sq.mtr. whichever is higher for purposes of C2, I2 and U3. In the present matter, the petitioner using the premises for activities which come under the category C2, the -9- WP No. 3119 of 2023 maximum that could be used is 20% of the area and not the entire building.
9. If the property had to be used for commercial purposes, the road width had to be atleast 40 ft. In the present case, the road width being 30 ft., the same could not be so used by the petitioner and these factors having been taken into consideration by the respondent No.2 in the order dated 30.01.2023, it cannot be said that the same is unreasoned order or that principles of natural justice have not been followed and the petition requires to be dismissed.
10. Heard Sri.R.S.Ravi, learned Senior counsel for Sri.Prasad Hegde.K.B, learned counsel for the petitioner, Sri.B.V.Muralidhar, learned counsel for respondents No.1 and 2 and Sri.G.L.Vishwanath, Senior counsel for Sri.Joseph Anthony, learned counsel for respondent No.3. Perused papers.
11. Though various arguments have been advanced, the short question that would arise for consideration in the present matter is, whether the user of the
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WP No. 3119 of 2023property put to by the petitioner is in compliance with CDP 2015 and as a consequence, whether the order dated 30.01.2023 at Annexure-A is proper and correct?
12. Admittedly, the property is situated in a residential area in terms of CDP 2015, admittedly, the petitioner is carrying on the business of its corporate office in the present property. Though there are certain issues raised as regards manufacturing or otherwise, the fact remains that the petitioner is running its office in the premises in question and has employed several persons who work in the said premises. The premises being used for commercial activity, therefore not being in dispute and as also not raised as a dispute in the representation dated 24.01.2023 given by the petitioner in answer to the notice issued, the only question is whether the said user is permissible under the CDP 2015. Regulation 4.1 of the Zonal Regulations is reproduced hereunder for easy reference:
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RESIDENTIAL (MAIN) 4.1.1) Description The areas of the city which have predominantly residential land use pattern considered for the Residential (Main) zone. This includes many old areas of the city such as Parts of Malleswaram, Richmond Town, Vasant Nagar, Jayanagar, Vijayanagar, Visveswarapura, Rajajinagar, RT Nagar, etc. 4.1.2) Regulations
(i) Permissible land uses:
• Main land use category: R and T1. • Ancillary land use category: C2, 1-2 and U3. • Ancillary use in allowable upto 20% of the total built-up area or 50 sq. whichever is lower, only in plots abutting to roads having width 12m or more. • In Ring II, if the plot size is more than 1000 sq. m. having a frontage of 10m or more and the abutting road is more than 18m width, then ancillary uses can be used as main use.
(b) in Ring III:
• Main land use category: R and T1.
• Ancillary land use category: C2, 1-2 and U3.
• Ancillary land use is allowable upto 20% of total built-up area or 50 sq.m. whichever is lower, only in plots abutting roads having width 12m or more.
• If the plot size is more than 1000 sq. m. having a frontage of 10m or more and abutting road is more than 18m width, then ancillary uses can be used as main use.
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13. A perusal of the same would indicate that the permissible land use in an area designated as residential under P1 and ancilliary use for C2, I2 and U3. We are not concerned with I2 and U3 in the present matter. The claimed user of the premises is C2 by the petitioner. For the usage of office under C2, a condition to an extent of 20% of the built up area or 50 sq.mtr whichever is higher is prescribed. The contention of the petitioner is that property being measuring 2000 sq.ft, the petitioner could make use of 400 sq.ft for commercial purposes. But in the present case, the petitioner is using the entire ground floor for commercial purpose.
14. On an earlier occasion when the BBMP was asked to inspect the property and submit a report, the said property was inspected on 3.02.2023 and report submitted on 14.03.2023. A perusal thereof would indicate that the entire ground floor has been used as an administrative office and in the first floor there
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WP No. 3119 of 2023are chairs and table but no kitchen. It is also observed that there were cubicles, closets for storing the files and other furniture for running the office but no manufacturing activity was conducted in the premises.
15. The said report as also the representation submitted by the petitioner itself would clearly indicate that the premises has been used for commercial purposes more than that permitted for anicilliary purpose as permitted in regulation 4.1.2 extracted above. There being an admission on part of the petitioner itself of said usage and the usage being more than 20% of the built up area, rather entire built up area being used, the petitioner cannot now contend that the user is permissible and or that because it is an MSME, the entire premise could be used for such purposes or that it is supplying health care equipment to come under exception clause (b) of Zonal Regulations.
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WP No. 3119 of 2023
16. As regards clause (b) of Zonal Regulations referred to by Sri.R.S.Ravi, learned Senior counsel, the same being relatable to CDP of 1995 and not relating to RMP of 2015 which is in question, the same is not required to be considered.
17. In view of the above, respondent No.2 has considered these aspects and considered the usage of the premises put to by the petitioner having directed the petitioner to vacate the premises or stop user of the premises for commercial purposes is proper and correct and does not require any interference at the hands of this Court. Hence, no grounds having been made out, the petition stands dismissed.
18. The Corporation is free to take such action as may be necessary in furtherance of the order at Annexure-A. Sd/-
JUDGE LN List No.: 1 Sl No.: 27