Karnataka High Court
The Residents Forum vs The State Of Karnataka on 15 April, 2025
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2025
PRESENT
THE HON'BLE MRS JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT APPEAL NO. 326 OF 2022
BETWEEN
THE RESIDENTS FORUM
(A SOCIETY FORMED UNDER THE KARNATAKA
SOCIETIES REGISTRATION ACT, 1960)
P-238, 9TH MAIN SECTOR 10
LIC COLONY, JEEVAN BHIMA NAGAR
BENGALURU -560 075
REP. BY ITS SECRETARY
...APPELLANT
(BY SMT. JYNA KOTHARI, SENIOR COUNSEL FOR
SRI. KIRAN B.S, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF HOME AFFAIRS
VIDHANA SOUDHA
BANGALORE -560 001
REP. BY ITS SECRETARY
2. THE STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
4TH FLOOR, VIKASA SOUDHA
2
BENGALURU-560 001
REP. BY ITS ADDITIONAL CHIEF SECRETARY
3. BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD, KUMARA PARK
BENGALURU -560 020
REP. BY ITS COMMISSIONER
4. LIFE INSURANCE CORPORATION OF INDIA
HOUSING CELL, 'JEEVAN PRAKASH'
REGIONAL OFFICE, JC ROAD
BENGALURU -560 002
REP. BY ITS MANAGING DIRECTOR
5. BRUHATH BENGALURU MAHANAGARA PALIKE
N.R SQUARE, BENGALURU-560 002
REP. BY ITS COMMISSIONER
6. MOGAVEERA SANGHA BANGALORE
NO.15, 17TH 'F' CROSS
INDIRANAGAR II STAGE
BENGALURU -560 038
REP BY ITS PRESIDENT
7. KODAGU MATHU DAKSHINA KANNADA
GOWDA SAMAJA
GOWDA SAMAJA SADANA
NO.16/11, 1ST 'C' MAIN ROAD
GANGANAGAR EXTENSION
BENGALURU -560 032
REP. BY ITS SECRETARY
8. HUMBLE CHARITABLE TRUST
3
NO.32, 12TH CROSS
INDIRANAGAR 1ST STAGE
BENGALURU -560 038
REP BY ITS PRESIDENT
9. ORISSA CULTURAL ASSOCIATION
NO.19, 5TH MAIN
JAYAMAHAL EXTENSION
BENGALURU -560 046
REP BY ITS EXECUTIVE COMMITTEE
MEMBER, SRI U RANJAN MOHANTY
...RESPONDENTS
(BY SRI. K.N.PHANEENDRA, SENIOR COUNSEL FOR
SRI. KIRAN J & JEEVAN GOPAL, ADVOCATES FOR C/R6,
SRI. A.SAMPATH, ADVOCATE FOR C/R7,
SMT. MAMATHA SHETTY, AGA FOR R1 & R2,
SRI. G.S. KANNUR, SENIOR COUNSEL FOR
SRI. K. KRISHNA, ADVOCATE FOR R3,
SRI. RAJESH SHETTY, ADVOCATE FOR R4,
SRI. N.R. JAGADEESWARA, ADVOCATE FOR R5,
R8 & R9 SERVED & UNREPRESENTED)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO ALLOW THE APPEAL HEREIN AND SET-
ASIDE THE ORDER DATED 25/01/2022 OF THE LEARNED SINGLE
JUDGE IN WP NO.4823/2017 AND GRANT RELIEF AS SOUGHT IN
THE WRIT PETITION BY ALLOWING THE SAID WRIT PETITION.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT THIS DAY, RAJESH RAI K, J.,
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN
and
HON'BLE MR JUSTICE RAJESH RAI K
4
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K) This intra Court appeal is filed by the appellant challenging the order dated 25.01.2022 passed by the learned Single Judge in W.P.No.4823/2017, whereby the learned Single Judge dismissed the writ petition by the appellant herein.
2. The abridged facts of the case are as follows:
The appellant i.e., the Residents' Forum is a registered Society under the Karnataka Societies Registration Act, 1960, (hereinafter referred to as the 'Society') the members are collectively composed of home owners and residents of LIC Township/Layout /Colony (hereinafter referred to as the 'LIC Housing Colony') at HAL III Stage, Jeevan Bheema Nagar, Bangalore. The City Improvement Trust Board (CITB)-the predecessor of the current Bangalore Development Authority (hereinafter referred to as the 'BDA') through it's vide final notification dated 15.07.1971 notified 457 acres 12 guntas of land to form a layout i.e. HAL III Stage Layout. Out of the said total land, 341 acres 3 guntas of land was taken into possession and out of this an extent of 260 acres 20 guntas of land was earmarked to form a layout. Subsequently, on 10.09.1975 the said layout was approved and 15.35% of area was earmarked as Civic Amenity area. Later, the respondent No.4-LIC entered into an agreement 5 with respondent No.3-BDA on 12.10.1972 for the formation of LIC Township to construct residential houses to its Policy Holders. In furtherance of this agreement, four Sale Deeds were executed.
3. Between 04.11.1978 to 22.11.1982 certain other sale deeds were executed. On 12.10.1984 a Comprehensive Development Plan (CDP-1984) was approved and a government order was issued in terms of which, plot-2P was earmarked as "public and semi-public" and "parks and open space" the same was reserved for primary school with suitable space and playground. The respondent No.3-BDA approved the site plan in which plot-2P was once again marked as open space. A Revised Comprehensive Development Plan-1995 (RCDP-1995) was approved by the government, in which plot-2P was shown as 'residential'. The RCDP- 1995 came into effect from 05.01.1995.
4. These myriad issues became a subject matter for multiple civil disputes which came to be filed before this Court. One such Public Interest Litigation was W.P.5319/1999. The Co-ordinate Bench of this Court while disposing the said PIL held that the plot No.10 opposite to the plot-2P be reserved for community hall/centre purpose. Following the notification of RCDP-1995 and the judgment of this Court dated 04.12.2002 respondent No.3-BDA executed multiple lease agreements. The appellant-Society filed W.P.23197/2005 challenging the said lease agreements involving 6 plot-2P. As multiple writ appeals and petitions were pending against the order dated 05.01.2007 in the W.P.23197/2005; W.A.No.325/2007 connected with W.P.3169/2006 came to be decided on 23.09.2013. In terms of the judgment, the Co-ordinate Bench held that plot-2P should not be developed so long as it continues to be green/open area in the master plan. Any application for change of land involving plot-2P should be examined and considered by the authorities strictly in accordance with law and appropriate orders if any to be passed should be done so exclusively after affording an opportunity to the residents and the stakeholders.
5. Meanwhile, on 23.09.2013 the respondent No.6 made an application to respondent No.2-Urban Development Department seeking rectification of mistake in the Revised Master Plan 2015 with respect to CA plot-2P(4). In-turn respondent No.2-Urban Development Department forwarded the said application to the planning authority i.e., respondent No.3-BDA to take necessary steps on the said application. Accordingly, respondent No.3-BDA issued notice to all parties collectively. On the receipt of the said notice the parties filed their statements and supporting documents before the BDA authority. On 20.08.2014, the BDA authority resolved to rectify/modify the land use as Civic Amenity area. Thereafter, the respondent No.3-BDA forwarded the resolution to the State Government for its decision and approval on 17.04.2015. 7 The State Government on seeking clarifications approved respondent No.3-BDA's decision vide order dated 13.11.2015. The said order was challenged by the appellant-Society before the learned Single Judge of this Court in W.P.No.4823/2017, the learned Single Judge on comprehensively perusing the materials on record and by considering the order passed by the Co-ordinate Bench in W.A.No.325/2007 connected with W.P.No.3169/2006 dismissed the writ petition filed by the appellant-Society by its order dated 25.01.2022. Challenge to the same is lis before this Court.
6. We heard the learned Senior counsel Smt.Jayna Kothari for the appellant, learned Senior counsel Sri K.N.Phaneendra for respondent No.6, learned counsel Sri A.Sampath for respondent No.7, learned AGA Smt.Mamatha Shetty for respondents No.1 and 2, learned Senior counsel Sri G.S.Kannur for respondent No.3, learned counsel Sri Rajesh Shetty for respondent No.4 and learned counsel Sri N.R. Jagadeeswara for respondent No.5.
7. The learned senior counsel for the appellant primarily contended that, the State Government failed to comply with the direction issued by the Co-ordinate Bench of this Court in W.A.No.325/2007 connected with W.P No.3169/2006 since there is specific direction that if application filed by the respondents No.6 or others for change of land in the Master Plan, the State Government shall examine the same strictly in accordance with law and follow 8 the due procedure stipulated in the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as 'the Planning Act') and the Bangalore Development Authority Act, 1976 (hereinafter referred to as 'the BDA Act') by issuing notice to the appellant- Society.
8. Despite the said direction, the State Government passed the impugned order dated 13.11.2015 solely on the proposal of respondent No.3-BDA and based on the proceedings held before its authorities. Further, the said order is a non-speaking order without delving into the merits.
9. She further contended that, the State Government and respondent No.3-BDA failed to comply with the provisions stipulated in Section 14-A of the Planning Act in changing the land use from the Master Plan. By emphasizing on Section 14-A of the Planning Act she submitted that, for any changes in the Master Plan the same shall be in public interest and such changes do not contravene any provisions of the Planning Act and such proposal shall be published in one or more daily newspapers. She also contended that, the State Government additionally failed to adhere with the guidelines issued by respondent No.2-Urban Development Department dated 12.10.2012 for change of land use. 9
10. The learned senior counsel by relying on Section 16(1)(d) of the BDA Act submitted that, in every development scheme under Section 15 of the BDA Act, not less than 15% of the total area of layout has to be reserved for public parks and playgrounds; additionally not less than 10% of the total area of the layout shall be reserved for Civic Amenities. According to her Section 19 of the BDA Act stipulates that, before acquiring the land for any purpose, the State Government shall in its Official Gazette declare and state the fact of such sanction and the land proposed to be acquired by the authority for the purpose of the scheme is required for public purpose. Further, as per Section 19(4) of the BDA Act, based on such improvement the alteration shall be subject to the provisions of Sub-Sections 5 and 6 of the BDA Act. The learned senior counsel also drew attention of this Court to Section 38-A of the BDA Act and submitted that, the alteration of user of site is not permissible if the site is reserved for Civic Amenities. Lastly, she contended that, the representation submitted by respondent No.3-BDA to respondent No.2-Urban Development Department categorically established that, under zoning regulation clause 3.16 of the general note (i) and clause 6.1(d)(iv), albeit respondent No.3-BDA used the CA sites for any purpose irrespective of the land use classification in the Revised Master Plan 2015, however, such use shall be based on the need of the locality and the authority has to take a conscious decision in that regard. Such 10 regulation as per the Revised Master Plan 2015, which was approved in 2007 has prospective disposition and applicability and not retrospective, as such the changes cannot be carried by virtue of zonal regulations. In order to buttress her argument she relied on the following judgments:
1. S.N. Chandrashekar And Another v. State Of Karnataka And Others reported in (2006) 3 SCC 308;
2. Bangalore Development Authority v. R. Hanumaiah And Others reported in (2005) 12 SCC 508;
3. Bangalore Medical Trust v. B.S. Muddappa And Others reported in (1991) 4 SCC 54;
4. Anjuman E. Shiate Ali And Another v. Gulmohar Area Societies Welfare Group And Others reported in (2020) 20 SCC 698;
5. Purushottam v. State Of Karnataka And Others reported in (2014) 3 SCC 721;
6. Virender Gaur And Others v. State of Haryana And Others reported in (1995) 2 SCC 577.
11. The learned senior counsel for the respondent No.6-the beneficiary contended that, in the light of the liberty reserved by the Co-ordinate Bench of this Court in W.A.No.325/2007 vide order dated 23.09.2013 made an application to the State Government 11 seeking to rectify the mistake in the Revised Master Plan 2015 with respect to plot No.2p(4). The respondent No.3-BDA issued notices to the appellant-Society and to all other concerned parties directing them to file their objections if any within 15 days on 20.02.2014, 07.08.2014 and 14.08.2014. The appellant-Society was represented by their president i.e., Sri. M.S. Anand, filed their objections on 04.03.2014 and 16.08.2014. As such reasonable opportunity was accorded to all interested parties.
12. Hence, respondent No.3-BDA after following due procedure, in its meeting in Subject No.90/2014, considered the matter that plot No.2P(4) was allotted to respondent.6 as CA plot on 18.04.2002. The Revised Master Plan 2015 came into effect from 25.06.2007 and as stipulated in clauses 3.16 general note (i) and 6.1(d)(iv) of the Zoning Regulation to the Revised Master Plan 2015, the authority resolved to recommend rectification/change of the land use as Civic Amenity area in accordance with law and the order passed in WA.325/2007. Further, the respondent No.3-BDA on 17.04.2015 sent its resolution to the State Government for its approval and on 13.11.2015 the State Government accorded its approval. In view of the same, the respondent No.3-BDA issued a sanction plan and a re-modified sanction plan for the purpose of constructing community hall and medical aid centre. In furtherance, the respondent No.6 spent nearly over 3 crore in 12 excavation and construction of foundation and pillars; basement 2 stood completed and basement 1 remained under-construction. The respondent No.6 commenced construction on obtaining necessary permissions from the concerned authorities/departments following the due process of law. He also contended that, plot No.2P(1) was allotted on 16.09.1981 in favour of the Postal and Telegraph Department for the construction of Post Office has not been disputed and the same was never a subject matter in these multiple litigations. The allotment of plot No.2P(4) in favour of the respondent No.6 herein was never challenged nor sought to be cancelled. Further, in W.P.No.3169/2006, similar reliefs were sought against the respondents No.7 and 8 herein and reliefs sought for in the present case is hit by constructive Res-judicata. With these submissions he prays to dismiss the appeal.
13. The learned senior counsel for respondent No.3-BDA reiterated the contentions of respondent No.6 and submitted that, as per the direction of Co-ordinate Bench of this Court in W.A.No.325/2007 connected with W.P.No.3169/2006 the respondent No.6 made necessary application to the State Government. The State Government in turn forwarded the said application to respondent No.3-BDA to take necessary steps on the said application. Following which, respondent No.3-BDA on complying with the direction of the Co-ordinate Bench and the 13 provisions of the Planning Act and the BDA Act by hearing the parties resolved the matter that the said plot No.2P was approved for CA site and forwarded the said proposal to the State Government; the State Government on due clarification approved the same. According to the learned senior counsel said proposal considered for the reason that plot No.2 in the Revised Comprehensive Development Plan 1995 was in force till July 2007. At the time of allotment of above CA site, the area was a residential area and while publishing the Revised Master Plan 2015 it was wrongly earmarked as open area vide letter dated 13.10.2006. The said mistake was brought to the concerned authorities' knowledge which prepared the Revised Master Plan 2015 seeking rectification stating that it was the CA site in the layout plan. This was allotted prior to the Revised Master Plan 2015 which came into effect on 25.06.2007 as per clauses 3.16 general note (i) and 6.1(d)(iv) of the Zoning Regulation to the Revised Master Plan-2015, respondent No.3-BDA resolved to rectify/change the land use as Civic Amenity area.
14. According to the learned senior counsel, respondent No.3-BDA acted in dual capacity as planning and development authority and issued notice to the respondents on behalf of the State Government; after detailed proceedings and on obtaining clarification by respondent No.3-BDA the State Government 14 approved for change of plot as per respondent No.3-BDA's proposal in consonance with the order passed by the Co-ordinate Bench of this Court. Accordingly, he prays to dismiss the writ appeal.
15. Having heard the learned counsel for the parties, the sole point that arise for our consideration is:
"Whether the learned Single Judge is justified in dismissing the writ petition by upholding the order dated 13.11.2015 passed by the respondent No.2- Urban Development Department?"
16. The challenge laid by the appellant-Society in this case was subject matter of multiple litigations filed before this Court. The case of the appellant-Society is that plot No.2P-the land in question was originally shown to be an open/green/lung space (hereinafter referred to as 'the open space') in the modified layout plan of HAL III Stage Jeevan Bheema Nagar. The said plot 2P was earmarked as public and semi-public for parks and open space as per the Comprehensive Development Plan 1984, approval dated 12.10.1994. Further, as per the Revised Comprehensive Development Plan 1995, which came into effect on 05.09.1995, the plot was shown as residential. This issue raised by the appellant- Society was the subject matter in W.P.No.5319/1999 with regard to plot No.10 which was opposite to plot No.2P. The said Public Interest Litigation was disposed by the Co-ordinate Bench of this 15 Court on 04.12.2002 directing the LIC to use the said plot No.10 for the purpose of community hall/center for the benefit of residents of the layout. Thereafter, respondent No.3-BDA executed multiple lease agreements. Subsequently, the residents also filed a writ petition in W.P.No.23197/2005 challenging the lease deeds insofar as plot No.2P and the said writ petition was dismissed by the learned Single Jude vide order dated 05.01.2007. Against the said order, the residents sought writ appeal in W.A.No.325/2007 and the appellant-Society also filed writ petition in W.P.No.3169/2006 seeking a direction for respondents No.7 and 8 to not construct on CA plot No.2P and to declare them as parks and play grounds. As several writ appeals and petitions were filed involving the same and similar cause of action, the Co-ordinate Bench of this Court clubbed all those writ appeals and writ petitions and passed an order dated 23.09.2013 by making following observation:
"8. In this backdrop, we do not wish to examine whether the Planning Authority-BDA was right in allotting the sites in plot No.2 to respondent Nos.4 to 7 and whether allotments in their favour were legal in view of the admitted fact that plot No.2 was and continues to be green area in the master plan in operation. Similarly, we have also not examined the question whether the Government can either change the user of plot No.2 or rectify the master plan so as to allow respondent Nos.4 to 7 to develop the sites allotted to them. We hope and trust that the Government, in the event of any such application being made, shall examine the same strictly in accordance with law and follow the due procedure contemplated under the Planning Act and the 16 Bangalore Development Authority Act, 1976 (for shot 'BDA Act'). We also hope and trust that the Government while dealing with any such application shall keep in view the requirement of open space/park area/green area under the provisions of the Planning Act and BDA Act. If respondent Nos.4 to 7 or respondent No.1(BDA) approach the Government with any such application, seeking any relief, the Government shall not only follow the due procedure under the Planning Act and BDA Act for either changing the user or for rectifying the master plan, but shall also give notices to the petitioners before passing any order on such application/s. All contentions of the parties on merits and the questions of law are kept open.
We also make it clear that we have not examined rights of respondent Nos.4 to 7 seeking change of user or rectification of the master plan.
Before we part, we once again observe as long as plot No.2 in the master plan is shown as green area, respondent Nos.4 to 7 shall not carry out any development whatsoever. Respondent No.2 being the planning Authority and respondent No.3 Corporation shall see to it that no such development is made either by these respondents or any other person on plot No.2. We also make it clear that we have not recorded reasons for passing this order since learned counsel appearing for the parties in all fairness stated that we need not do so. The appeals and the writ petition are accordingly disposed of in terms of this order."
17. In the light of the liberty reserved by the Co-ordinate Bench of this Court in the above order respondent No.6 made an application on 23.09.2013 to the State Government seeking for rectification of mistake in the Revised Master Plan 2015 with respect to plot No.2P. In pursuance of the same, respondent No.3-BDA 17 issued notice to the appellant-Society and all concerned parties were directed to file objections if any. Accordingly, the appellant- Society appeared before respondent No.3-BDA authority and filed their objections. Additionally, the individual statements were recorded by the authority and after hearing, the respondent No.3- BDA considered the request in allotting plot No.2 to respondent No.6 as CA plot on 18.04.2002. The Revised Master Plan 2015 came into effect from 25.06.2007 and in view of clauses 3.16 general note (i) and 6.1(d)(4) of the Zoning Regulation to the Revised Master Plan 2015, resolved to recommend the State Government for rectification/change of the land use as Civic Amenity area. Subsequently, respondent No.3 BDA on 17.04.2015 sent the said resolution to the State Government for its approval. However, the State Government sought some clarification from the respondent No.3-BDA vide letter dated 03.06.2015. The respondent No.3-BDA rectified such clarification and based on the same, the State Government accorded its approval vide order dated 13.11.2015. In pursuance of the same, respondent No.3-BDA issued sanction plan and a re-modified sanction plan for the purpose of constructing community hall and medical aid center for respondent No.6. Subsequently, respondent No.6 commenced the construction work by obtaining necessary permission from the concerned authorities. The learned Single Judge while dismissing the writ petition, observed in paragraph No.13 to 15 as under:
18
"13. The afore-narrated facts not being in dispute are not reiterated. For a resolution of the issue in the lis it is necessary to notice the proceedings concerning the very same land before this Court. This Court in W.P.No.5319/1999 - a Public Interest Litigation instituted by the very petitioners held as follows:
"8. LIC next contended that the is land is shown as reserved for public and semi public purpose in the CDP of 1996 and therefore it can use the land in question for any public or semipublic purpose. The sanctioned plan showed plot No.10 as reserved for a community centre. Description of the plot as a community centre is a representation by LIC to the purchasers of houses in the layout that the land in plot No.10 would be used for construction of a community centre. While it is true that the original earmarked land use, that is community green area was subsequently altered as public and semi-public use, it does not follow that what is reserved for a community centre could be used for some other purpose. 'Community centre' connotes a Building/structure meant for the benefit of the residents of the locality. Construction of Sales Training Centre (Academic Block & Hostel Block) cannot by any stretch of imagination be considered as community centre.
9. LIC drew our attention to the definition of public and semi-public occurring in the Annexure-II to the notification dated 5-1-1995, relating to CDP of 1995 [Zonal Land Use and Regulations], which reads as under;
"Public and Semi-Public Use:
(a) Uses that are permissible:
Government Administrative Centres, district offices, Law Courts, jails, police stations, institutional offices, educational, cultural and religious institution, including libraries, reading rooms and clubs, Medical and Health institutions, cultural institutions like; community halls, opera houses of non- commercial nature, convention centres, 19 Exhibitions, utilities and services, water supply installation including disposal works, electric power plants, high tension substations, gas installations and gas works, fire fighting stations, banking institutions, filling stations and quarters for essential staff and all uses permitted I parks and play grounds.
Note: Restaurants, Banks, Canteens, quarters not exceeding 240 sq.mts., required for proper maintenance and functioning of public and semipublic uses may be permitted, which are run on non- commercial basis in their own premises as ancillary the respective institution.
(b) Uses that are permissible under special circumstances by the Authority:
Government printing press, parking lots, repair shops, stadium, cemeteries, recreational clubs, canteens, libraries, aquaria, planetoria, horticultural nursery and swimming pools."
LIC contended that the construction of a training centre and hostel for the candidates who are trained in the training centre will fall under the category of government administrative centres and institutional offices. As noticed above, the plot in question has been reserved for community centre. The training centre proposed by the LIC agents and hostel for such trainees is not a community centre. Use of the plot for construction of a building for training the LIC agents and for their stay is for the business purpose of LIC and not for the benefit of the community i.e. the residents of the locality. We therefore reject the contention of the LIC that the construction of a Sales Training Centre and hostel building is for a community purpose. In the view we have taken, the question whether constructions of LIC Sales Training Centre is a public and semi-public purpose is not relevant.20
10. In the result, we allow this petition in part and the first respondent [LIC] is directed to use Plot No.10 in Jeevan Bhimanagar Layout, Bangalore only for the purpose of a community centre for the benefit of the residents of the layout and not otherwise. Parties to bear their respective costs."
(Emphasis added) A Division Bench of this Court rejected the contention of the present petitioner that the construction of sales training centre and hostel building was for community purpose and allowed the writ petition and directed to use plot No.10 only for the purpose of community centre for the benefit of residents of the layout. It is after the judgment rendered by the Division Bench, the 6th respondent - Mogaveera Sangha filed an application seeking allotment of the said site in Jeevan Bhima Nagar for the development of the fishermen community, pursuant to which, a lease agreement was entered into between the 6th respondent - Sangha and the 3rd respondent. The petitioner had also filed W.P.No.23197/2005 claiming that site2P has to be left for the purpose of its development as a park and an open space. This writ petition came to be dismissed. The dismissal was called in question before a Division Bench in W.A.No.325/2007 and other writ petition connected to the issue were brought together before the Division Bench. The Division Bench disposed the writ petition and the writ appeal by the following order:
"5. The basic controversy raised in these matters was whether plot No.2 measuring 1 acre 25 guntas situate between Sector X, XI, 10th Cross Road, LIC Housing colony, Jeevan Bima Nagar, Bangalore (for short 'plot No.2'), was shown/reserved, in the layout formed by Bangalore Development Authority ('BDA' for short) in the year 1975, as civic amenity site or as open lung space. In the course of hearing of these matters, we were taken through several plans/maps by learned counsel appearing for the parties to make their submissions good.21
6. Even before we could form prima- facie opinion in respect thereof, we noticed that in the master plan approved under Section 13 of the Karnataka Town and Country Planning Act, 1961 (for short 'Planning Act'), and which is in operation as of today, plot No.2 is shown as 'green area'. The master plan which is in operation as of today, we were informed, was brought into force in July 2007 and will operate till July 2015. Then, we also noticed that in the master plan which was in operation before July 2007, and which was operating since 1995, plot No.2 was shown as 'residential zone'. Once having noticed this, we made a specific query to the learned counsel appearing for the BDA and so also the contesting respondent Nos.4 to 7, whether any one of them has ever approached the Government seeking change of user or rectification of master plan or seeking correction of clerical error, if any, and the answer was in the negative. In other words, none of the respondents ever approached the Government or applied to the Government seeking either rectification of the master plan, or change of user or seeking correction of clerical error, if any, in the master plan under the provisions of the Planning Act. Respondent No.6 claims that they made representation to the Planning Authority viz., BDA seeking appropriate relief. Insofar as, the site allotted to respondent no.6 is concerned, their representation, for whatever reasons, has not been considered/processed thereafter/further. However, fact remains that no application as aforementioned was made to the Government under the provisions of the Planning Act.
7. In this view of the matter, it is clear that none of the respondents-allottees of the sites in plot No.2 can make any development as long as it continues to be green area in the master plan. When we so expressed, learned counsel appearing for respondents fairly stated that respondent 22 Nos.4 to 7 shall not develop the sites allotted to them, which are part and parcel of Plot No.2, as long as it continues to be Green area in the Master Plan.
8. In this backdrop, we do not wish to examine whether the Planning Authority-BDA was right in allotting the sites in plot No.2 to respondent Nos.4 to 7 and whether allotments in their favour were legal in view of the admitted fact that plot No.2 was and continues to be green area in the master plan in operation. Similarly, we have also not examined the question whether the Government can either change the user of plot No.2 or rectify the master plan so as to allow respondent Nos.4 to 7 to develop the sites allotted to them. We hope and trust that the Government, in the event of any such application being made, shall examine the same strictly in accordance with law and follow the due procedure contemplated under the Planning Act and the Bangalore Development Authority Act, 1976 (for shot 'BDA Act'). We also hope and trust that the Government while dealing with any such application shall keep in view the requirement of open space/park area/green area under the provisions of the Planning Act and BDA Act. If respondent Nos.4 to 7 or respondent No.1(BDA) approach the Government with any such application, seeking any relief, the Government shall not only follow the due procedure under the Planning Act and BDA Act for either changing the user or for rectifying the master plan, but shall also give notices to the petitioners before passing any order on such application/s. All contentions of the parties on merits and the questions of law are kept open.
We also make it clear that we have not examined rights of respondent Nos.4 to 7 seeking change of user or rectification of the master plan. Before we part, we once again observe as long as plot No.2 in the master plan is shown as green area, respondent Nos.4 to 7 shall not carry out any development whatsoever. Respondent No.2 being the planning Authority and respondent No.3 Corporation shall see to it that no such 23 development is made either by these respondents or any other person on plot No.2. We also make it clear that we have not recorded reasons for passing this order since learned counsel appearing for the parties in all fairness stated that we need not do so. The appeals and the writ petition are accordingly disposed of in terms of this order."
(Emphasis supplied) It is the afore-extracted judgment rendered by the Division Bench on 23.09.2013 which were between the very same parties, that nails the issue in the subject case as well.
14. The Division Bench of this Court at paragraph 6 (supra) clearly observes that if the plot No.2 is shown to be a 'green area' in the master plan of 2007, it was earlier shown to be a residential zone in master plan - 1995. It is also observed that no respondent has ever approached the Government or applied to the Government seeking either rectification of master plan, change of user or seeking correction of clerical error. The Division Bench further observes that it would not enter into the examination whether the Planning Authority-BDA was right in allotting the sites in plot No.2 to respondents 4 and 7 therein which is 6th respondent in the present petition or whether the Government could grant change of land use or rectify the master plan. This finding rendered by the Division Bench has become final. The parties to the said judgment are the parties to the present case as well. The petitioner having raised all such available contentions earlier and those having been met in the order passed (supra) are now wanting to re-agitate those issues.
15. The que that the petitioner seeks to draw is from the judgment of the Division Bench in W.P.5319/1999 which is earlier in time and did not deal with this issue in particular. Though, it related to consideration of CDP of 1995, the subsequent judgment of the Division Bench is binding on the parties, as it has become final inter-parties and the parties to the present lis are the same in the past lis."
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18. It is vehemently contended by the learned senior counsel for the appellant-Society that the direction issued by the Co-ordinate Bench of this Court in W.A.No.325/2007 connected with W.P.No.3169/2006 remained un-complied by the State Government while according the sanction to convert the land in question. According to the learned senior counsel Section 14-A of the Planning Act the planning authority can change the land use from the Master Plan with the previous approval of the State Government as may be necessitated by topographical or cartographical or other errors and omissions or due failure to fully indicate the details in the plan or changes arising out of the implementation of the proposals provided all those changes fall within the ambit of public interest. In the instant case, converting the land from open space to Civic Amenity does not amount to public interest and on the contrary it amounts to personal interest. Further, as stipulated under proviso
(c) of Section 14-A of the Planning Act, the proposal seeking such change were not published in one or more daily newspapers. As such, there exists glaring error on part of the State Government and respondent No.3-BDA by not complying the provision stipulated in Section 14-A(c) of the Planning Act.
19. To answer this limb of the argument advanced by the learned senior counsel it is appropriate to delve into the objects and purpose of the BDA Act. As could be gathered from the statement of 25 objects and reasons published in Karnataka Gazette dated 05.02.1976, the objective of establishing the BDA is for the development of Bangalore according to the plan. As such, the BDA functions in a dual capacity as the "development and planning authority". It is admitted fact that the layout in question was initially formed by the City Improvement Trust Board (CITB) the predecessor of the BDA. Subsequently, in the year 1975 the layout was approved by respondent No.3-BDA. Though plot No.2P was shown as open space area in the initial Master Plan, as rightly contended by the senior counsel for respondent No.3-BDA in the year 2006 the member of the Town Planning BDA addressed a letter to the SCE Group of India to rectify the mistake that crept in the master plan with regard to open space and CA Plot[s]. Thereafter, based on the direction of the Co-ordinate Bench of this Court in W.A.No.325/2007, respondent No.6 submitted the application before the State Government for rectification of mistake in Revised Master Plan 2015 and respondent No.3-BDA being the planning authority issued notice to the appellant-Society and other stakeholders and recorded their individual statements following which it resolved to change the Master Plan involving plot No.2P to CA plot. The said proposal was sent to the State Government and the State Government sought some clarifications, the same was furnished by respondent No.3-BDA and finally the said order was approved by the State Government vide order dated 13.11.2015. In 26 such circumstances, we are unable to accept the contention of the learned senior counsel that, the State Government collectively failed to comply with the order passed by the Co-ordinate Bench. At the cost of repetition, the respondent No.3-BDA being the planning and development authority in its dual capacity acted lawfully by issuing notice to the appellant-Society and on obtaining individual objection from the stakeholders passed the resolution. Nevertheless, before resolving respondent No.3-BDA approached the State Government and got its approval by clarifying and absolving their queries. In such circumstances, the respondent No.3-BDA and the State Government collectively after due deliberation has converted the open space to Civic Amenity area based on respondent No.6's request in public interest and also by complying the order passed by the Co-ordinate Bench in W.A.No.325/2007. Against this backdrop, in our considered view the provision stipulated in Section 14-A of the Planning Act has been complied by respondent No.3-BDA in its capacity as planning authority. Further, the land in question was allotted to respondent No.6 based on their multiple requests to the State Government on several occasions exclusively for their use belonging to the fisherman community. Hence, it cannot be considered that the said allotment amounts to private interest and as such the judgments relied by the learned senior counsel is un- applicable to the facts and circumstances of the instant case. 27
20. Next limb of the argument of the learned senior counsel is that, respondent No.3-BDA has failed to comply with the provisions stipulated in Section 16(1)(d) of the BDA Act by reserving 15% of the total area of the layout for public parks. To answer this contention it could be construed that, after the plan approval of the HAL III Stage Layout i.e. on 10.09.1975, 15.35% of the area has been earmarked as Civic Amenity area. Thereafter, a modified plan was approved by respondent No.3-BDA. Further, concerning the compliance of Section 19(4) of the BDA Act, in the instant case as stated supra respondent No.3-BDA being the planning authority, with the consent of State Government made alterations. In such circumstances, it cannot be said that, the alteration is against the provision stipulated in Section 19(4) of the BDA Act.
21. As rightly contended by the learned senior counsel for the respondent No.6, as per the Zoning Regulation in clause 3.16 general note (i) and clause 6.1(d)(iv), all permissions accorded by either respondent No.3-BDA or State Government shall be treated as confirming uses irrespective of the classification made in the Revised Master Plan 2015. Further, CA plots owned by respondent No.3-BDA could be used for any purpose irrespective of land use classification in the Revised Master Plan 2015 subject to the conscious decision of the authority. Further, it could be gathered 28 from records that as per the approved Layout Plan dated 10.09.1975, the plot No.2 in HAL III Stage located in Jeevana Bheema Nagar, LIC Colony was collectively marked as open space. Subsequently the said plot was allotted in year 1976 and divided into five parts i.e., CA plots No.2P(1) to 2P(5). The said CA plots were allotted as follows:
(i) CA plot No 2P(1) measuring 40 mtrs x23 mtrs Allotted to the Post Office vide Authority resolution No.359 dated 16-9-1981.
(ii) CA plot No.2P(2) and 2P(3) were notified for allotment vide notification dated 20-8-2003.
(a) CA plot No.2P(2) measuring 1000 sq. mtrs was allotted on lease basis to the 7th respondent for Community Centre vide allotment letter 19-1-2004, Lease Agreement was executed on 27-9-2004 and possession certificate was issued on 28-9-2004.
(b) CA plot No.2P(3) measuring 1081 sq. mtrs was allotted on lease basis to the 8th respondent for Socio Cultural and educational Centre vide allotment letter 19-1-2004, Lease Agreement was executed on26-5-2004 and possession certificate was issued on 01-06-2004.29
(c) CA plot No.2P(4) measuring 2106 sq. mtrs was allotted on lease basis to the 6th respondent for Community Hall and Medical Aid Centre vide allotment letter 18-4-2002, Lease Agreement was executed on 05-12-2002 and possession certificate was issued on 16-12-2002.
(d) CA plot No.2P(5) measuring1296 sq. mtrs-
Notification was published on 01-05-2002 and allotted on lease basis to the 9th respondent for Residential Welfare Association vide allotment letter 31-12- 2002, Lease Agreement was executed on 23-02-2004 and possession certificate was issued on 23-02-2004.
22. Albeit some of the residents of LIC Colony filed writ petition seeking direction to retain the entire CA plot No.2 as an open space or playground and to not allot the said plot for any purpose, however, the said writ petition was dismissed on 05.01.2007. Subsequently, though a writ appeal was preferred on the said order, some of the CA plot was not challenged by the residents. In such circumstances, the CA plot No.2P(4) alone was not changed from open space to Civic Amenities area but other adjoining plots were also changed for the purpose of Civic Amenity and the same remained unchallenged by the residents. 30
23. As discussed supra respondent No.3-BDA acting in dual capacity as planning and development authority in consonance with the State Government not only complied the direction of the Co-ordinate Bench of this Court but also the provisions stipulated in the Planning Act and BDA Act.
24. In that view of the matter, the learned Single Judge has rightly passed a well reasoned order which does not call for any interference by this Court and accordingly, we answer the point raised above in the affirmative and proceed to pass the following:
ORDER The Writ Appeal is dismissed.
SD/-
(ANU SIVARAMAN) JUDGE SD/-
(RAJESH RAI K) JUDGE HKV