Bangalore District Court
Shubh Enclave Site Owners vs Mr. K.Venkatasubramanian on 22 April, 2022
1
O.S.No. 1795/2020
KABC010068612020
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE,
AT BENGALURU
Dated this the 22nd day of April, 2022.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.1795/2020
PLAINTIFF : Shubh Enclave Site Owners
Association
having its office at:
gate No.1, Shubh enclave
Haralur road,
Bangalore - 560102.
rep. by its secretary, Ms.Adity Roy
(By B.S.S., Advocate)
VS.
DEFENDANTS: 1. Mr. K.Venkatasubramanian,
2
O.S.No. 1795/2020
S/o Sri. V.S.Kannan,
aged 60 year,
No. 98/1, 29th main, 2nd cross,
BTM 1st stage, Bengaluru- 560068
2. M/s Saikam Developers,
A partnership firm bearing
reg. No. SJN-F886-2018-19
Having its office at:
Villa 309, Adarsh Palm Retreat,
Devarabeesanahalli, Near RMZ Eco
World, Bangalore- 560103.
Rep. by its Managing Partner,
Mr. Sivachiatanya Saikam,
aged 33 years,
S/o Sri.S.Jayachandra Reddy.
3. BBMP
N.R.Square,
Bengaluru- 560001
Rep. by its Commissioner
4. The Assistant Executive
Engineer,
BBMP, Town planning,
Mahadevapura range,
Bengaluru- 560048.
(Defendants No. 1 & 2 S.S.,
Advocate, defendants No. 3 & 4
B.V.K., Advocate)
Date of Institution of the suit : 06-03-2020
Nature of the suit : INJUNCTION SUIT
Date of commencement of : 30-09-2021
recording of the evidence
3
O.S.No. 1795/2020
Date on which the Judgment : 22-04-2022
was pronounced
Total Duration Years Months Days
02 01 16
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
The plaintiff is before the court to obtain decree of permanent injunction against the defendant Nos. 1 & 2 and their agents and servants, restraining them from constructing the commercial building in the suit schedule property.
Directing the defendant Nos.3 & 4 to cancel / withdraw the sanctioned plan L.P.No. LP/0184/12-18 dated 20-09-2018 in respect of suit schedule property, cost and such other reliefs.
2. The brief facts of the plaintiff case is that, plaintiff being an association, registered under Karnataka Societies Registration Act, represented by its 4 O.S.No. 1795/2020 Secretary, Ms. Adity Roy, who is duly authorized to file the present suit, in the meeting of the officer bearers of the plaintiff association, held on 29-02-2020.
3. That, the owners of several parcels of lands consisting of 120 acres, bearing Sy.No. 21 & 22, of Ambalipura village, Sy.Nos. 67/1, 67/2, 69/1, 69/2, 67/1, 67/2, 66, 65, 64, 63(P), 57, 56, 51, & 46(P), of Kasavanahalli village, and Sy.Nos. 34, of Junnasandra village, all these villages forming part of Varthur Hobli, Bellandur Grama panchayyath, Banglore South Taluk. Bangalore District, Bangalore with an intention to form residential layout, have secured the conversion of their respective lands from agricultural use to non agricultural residential use. Subsequently, the said owners approached the grama panchayath and got the residential layout plan sanctioned in the name and style of Shubh Enclave, and sold their respective sites to the intending purchasers. The said original land owners 5 O.S.No. 1795/2020 joined with one Mr.K.Satish Kumar, who was the developer of the entire Shubh Enclave layout, and in whose name the plan was sanctioned. The said K.Satish Kumar also marked the sites. Plots to various purchasers in the Shubh Enclave Residential Layout.
4. Pursuant thereto, the site owners/ sites purchasers in Shubh Enclave residential layout, formed an association under the Karnataka Societies Registration Act 1960, in the name and style of Shubh Enclave Site Owners Association which is the plaintiff herein.
5. The plaintiff further submits that, when the land owners sold the sites to the purchasers, the Shubh Enclave Layout was not fully developed and / or completed by the developer, and as such the sites in the layout were in the form of barren land with stones indicating site numbers, and nothing beyond that, and the jurisdiction of BBMP was also not extended to the 6 O.S.No. 1795/2020 said layout during the year 1992-93, and therefore, there was no hope that the site owners would get any civic amenities. Under such difficult circumstances, the plaintiff association was formed and the first thing the plaintiff undertook to form, construct and provide for, was the civic amenities like, - several entry points, gates, security sheds, the roads, pathway, drains, overhead tank, underground cabling pipers, security, water tanks, tree lined avenues etc., when all the civic amenities were made available, the individual site owners started construction of residential houses in their respective sites, and started residing there.
6. When the things stood thus, the defendant No.1, purchased two residential sites, one bearing plot/site No.1, ad-measuring 6390 sq.ft., (593.63 sq.mtrs) being a part/ portion of the converted land comprised in Sy.No. 46 and another part/ portion of the land admeasuring 3210 sq.ft., (298.20 sq.mtrs) being a 7 O.S.No. 1795/2020 portion of the converted land comprised in Sy.No. 51, both the survey numbers are situated at Kasavanahalli village, Varthur hobli, Bangalore south taluk, Bangalore District. Both parts of the lands stated above, forming one single site No.1, in Shubh Enclave Layout, has been purchased by the defendant No.1 under a registered sale deed dated 03-07-1997, vide document No. 2652/97-98, Book -I, of volume No. 4343, at pages 83-90 in the office of Sub-Registrar, Bangalore South Taluk, which is suit schedule property.
7. That, the suit schedule property is part and parcel of the Sy.Nos. 46 & 51 of Kasavanahalli village, initially owned by K.Vijaya Kumar and K.Raja Reddy Respectively. Mr. Vijaya Kumar got his land converted from agricultural use to non agricultural/ residential use vide official memorandum No. B.DIS.ALN.SR(SA) 202:96- 97 dated 04-11-1996 and No.B.DIS.ALN.SR(SA) 156:94- 95 dated 23-05-1995. Mr. K.Raja Reddy got his plot of 8 O.S.No. 1795/2020 land converted from agricultural to non agricultural residential use vide official memorandum No.B.DIS.ALN.SR(S) 201/96-97 dated 10-09-1996. The said initial owners have sold the suit schedule property to Mr. K.Venkatasubramanian, who is defendant No.1 herein.
8. That the defendant No.1 had been holding the property without constructing any residential dwelling thereon. However, on 22-10-2018, the defendant No.1 entered into a JDA with defendant No.2 herein, for development of residential / commercial complex in the suit schedule property under a JDA dated 22-10-2018 vide document No. 3964/2018-19, Book - I In the office of the Sub-registrar, Ulsoor, Shivaji Nagar, Bangalore.
9. That, pursuant thereto, the defendant Nos. 1 & 2 have made an application to the defendant Nos. 3 and 4, who , without having any regard to the residential area, and (a) in contradiction of the land conversion 9 O.S.No. 1795/2020 orders issued by the DC, (b) in contradiction of RMP 2015 as it stood suitably amended by virtue of the notification No. UDD 105 MNJ 2008, Bangalore, dated 20-03-2015, (c) in contradiction of proposed RMP 2031, provisionally approved by the Government, bearing G.O.No. Na.Aa.Ee:516:BEM Aa Se Bengalur dated 22-11- 2017 (d) direction of Hon'ble High Court of Karnataka in the case of citizen action forum, have issued a building sanction plan for construction of commercial building bearing LP No. LP/0184/12-18 dated 20/09/2018 for stilt + ground floor + 3 floors. Accordingly, the defendant Nos. 1 & 2 are in the process of construction of the commercial building in the suit schedule property coming within the boundaries of Shubh Enclave Residential Layout, which is purely a residential area and it is kind of gated community layout.
10. That the land conversion order expressly mandated that the land must be used for the specific non 10 O.S.No. 1795/2020 agricultural/ Residential purposes, only for setting up of dwelling houses. Any violation of this order would not only render the land conversion order null and void but also the land will stand forfeited to the state. Thereby, not only defendant Nos. 1 & 2 will be affected but also all the other site owners/ site purchasers will also get affected.
11. That Section 14A of the Karnataka Town and County Planning Act, requires that there should be harmony between the conversion order and the land use. In the event of a conflict between the conversion order and land use as defined by the C.D.P., then a change of land use permission is required to be obtained from the DC before putting the land to commercial use. However, the defendant Nos. 3 & 4 have ignored these requirements and have sanctioned the commercial building plan, without application of mind, in an arbitrary manner.
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O.S.No. 1795/2020
12. That, the Government of Karnataka, has amended the RMP -2015 on 20-03-2015 by virtue of the notification dated 20-03-2015. As per the amended RMP 2015, the Bangalore Metropolitan Areas, for the purpose of constructions and development, have been divided into three rings- Ring - I, Ring - II, Ring - III, and any person seeking development of lands forming part of the rings should satisfy certain criteria stated therein. The suit schedule property is forming part of rign - III, and as such no commercial building could have allowed to be constructed, unless the site area is 1000 sq.mts or more, and the road width is 60 feet or more. However, the suit schedule property is having only 800 sq.mtrs and the road width is max 40 feet. In view of the above disparity, the commercial building plan approved by the BBMP is illegal, and such illegal activities are necessarily required to be stayed.
13. That, as per the proposed RMP 2031, as 12 O.S.No. 1795/2020 provisionally approved by the Government vide G.O.No. Na Aa Ee: 516: BEM Aa Se, Bengaluru dated 22-11-2017, where ever fresh permissions for development are to be sought, such developments shall be governed by the provisions of RMP 2031. The building plan was sanctioned by the defendant Nos. 3 & 4, on 20-09-2018, which is contravention of the RMP 2031.
14. That the rempant use of residential sites for commercial use has to be stopped or stayed with iron hands, as mandated by the High Court in Citizen Action Forum Vs. State of Karnataka.
15. That the Shubh Enclave Site Owners Association, having collected that funds from all the site owners/ site purchasers, have developed the civic amenities in the Shubh Enclave Residential Layout and thereby the plaintiff has been vested with the right to stop any site owner from violating the right of the other site owners or from depriving them of their right of 13 O.S.No. 1795/2020 privacy and peaceful living. The defendant Nos. 1 & 2, cannot construct the commercial building as per the sanction plan which is illegal. If the defendant Nos. 1 & 2 constructs the commercial building in the residential area, the adjoining owners through plaintiff have the right to ask for an injunction, because there is an intervention of right to the enjoyment of property by illegal construction, and the defendants owe an obligation to the plaintiff by obeying the law.
16. That the very construction of commercial building in the residential area would cause nuisance and hardship to all the residents residing therein, who had purchased their respective sites in Shubh Enclave Residential Layout to live in a peaceful environment in a purely residential area only, away from the hustle and bustle surrounding a commercial complex. The erection of a commercial complex in the residential layout will certainly increase the vehicular traffic, thereby resulting 14 O.S.No. 1795/2020 in a situation where the roads of the residential layout are clogged and congested, eventually resulting in public nuisance. It is noteworthy that the nuisance so caused will not come to a half here, it will have myriad effects on the residents of the layout. It will accentuate noise pollution, and the high voltage lights that will be installed, will penetrate the houses of the neighboring residents, and deprive them of their good night sleep. Such disastrous effects of the construction of the commercial building will certainly result in public nuisance. This court has full powers to adjudicate over public nuisance under Section 91 & Section 151 of CPC, 1908, to restrain the persons causing such nuisance.
17. That the public nuisance so occasioned by such construction, would also impinge on the right of the residents of Shubh Enclave Residential Layout. This court has full powers and authority, to do justice as per the law of equity and the law of equity provides that, even 15 O.S.No. 1795/2020 if the evidence is conflicting, and the injury to the public is doubtful, still it will give birth to a ground for granting permanent injunction against perpetrators of public nuisance.
18. That, it is not out of context to state that the inconvenience, annoyance, and substantial physical discomfort caused by the constant noise cannot be adequately estimated in terms of money. A man/ citizen/resident in residential area is entitled to the comfortable enjoyment of his house and to engage in an ordinary conversation in that house without substantial interruption from any abnormal noise.
19. That, the residents of Koramangala and Indiranagar, Bangalore are already suffering from the nuisance of vehicular traffic, noise and light pollution created by the commercialization of residential sites, which was permitted by the defendant No. 3 & 4. This ongoing hardship and nuisance compelled the said 16 O.S.No. 1795/2020 residents to go on strike demanding cancellation of commercial building licenses granted to residential site, on account of their inexplicable ordeal. The same has been agitated before the High Court of Karnataka in matter of Citizen Action Forum and Others Vs. State of Karnataka and others in W.P.No. 3676/2008. If the defendant Nos. 1 & 2 are not stopped at this stage, there will be other site owners who will follow suit, and convert their respective units into commercial buildings as well with a view to earn profit, and the entire area will become a commercial hub, which will deprive other residents of Shubh Enclave from their right of peaceful cohabitation. Hence, this suit for permanent injunction, restraining the defendant Nos. 1 & 2 from construction of commercial building in the suit schedule property.
20. The cause of action arose on various dates, especially when the defendant No.3 & 4 have sanctioned the commercial building plan dated 20-09-2018 and 17 O.S.No. 1795/2020 subsequently when the defendant Nos. 1 & 2 started construction in the suit schedule property. With these contentions seeks to decree the suit.
21. After service of summons the defendant No.1 has filed the written statement to oppose the suit wherein it is contended that, the suit filed by the plaintiff is false, frivolous, vexatious and not maintainable either in law or on facts. Hence the same is liable to be dismissed in limine.
22. There is no cause of action for the plaintiff to file the suit. The plaintiff has filed the suit with false and frivolous averments and by suppressing the material facts.
23. It is contended that, the very prayers sought by the plaintiff are without there being any cause of action and the said prayers are redundant prayers, considering the facts and circumstances of the case.
24. That, 1st defendant is the owner of the suit 18 O.S.No. 1795/2020 schedule plots and the 2nd defendant being the registered joint development agreement holder, has constructed the building in the suit schedule property in accordance with license and sanctioned plan. After completion of the building, the BBMP officials have inspected the building and after satisfying about the construction made, have issued occupancy certificate dated 21-01-2021 in respect of the building constructed. Therefore the prayer No.(a) sought by the plaintiff has become infructuous and the plaintiff is not entitle for the said relief. Further prayer No. (b) sought by the plaintiff is devoid of merits and the plaintiff cannot seek such a prayer before this court, as the said prayer is beyond the scope and jurisdiction of this court. The plaintiff is fully aware of all these factual aspects. However it has filed the suit only with an intention to harass the defendant Nos.1 & 2.
25. That, in the revised master plan 2015 issued by the BDA the suit schedule property is notified/ 19 O.S.No. 1795/2020 earmarked in Industrial Hi-tech Zone (the revised master plan 2015 was/ is applicable to the notified area i.e., is the suit schedule property). The construction of building for establishment of commercial and IT-BT company/ business, etc., is permissible in the said zone. Considering the said legal and factual aspect, BBMP has issued license and plan for construction of commercial and IT-BT building comprising of BF+GF+FF+SF+TF+ Terrace floors, in the suit schedule property. Therefore the plaintiff cannot find any fault with the issuance of license and plan by the BBMP and further the construction of building by the defendant Nos. 1 & 2. Under the circumstances, viewing from any angle the present suit filed by the plaintiff is devoid of merits and plaintiff is not entitle for any relief, much less the relief sought in the suit.
26. 1St defendant is not a member of the alleged plaintiff association. So called association has no locus 20 O.S.No. 1795/2020 standi to file a suit of this nature. Moreover the establishment of the said association itself is doubtful and plaintiff is put to strict proof of the same. Hence present suit is not maintainable and liable to be dismissed.
27. That, the plaintiff being an association registered under Karnataka Societies Registration Act, represented by its Secretary Ms. Adity Roy, who is duly authorized to filed the present suit in the meeting of the office bearers of the plaintiff association held on 27-02- 2020 etc., The alleged association has not furnished any records to 1st defendant and 1st defendant has not been notified while forming the said association.
28. That, it is denied that, the owners of several parcels of land consisting of 120 acres bearing Sy.No. 21 & 22 of Ambalipura village, Sy.Nos. 67/1, 67/2, 69/1, 69/2, 67/1, 67/2, 66, 65, 64, 63(P), 57, 56, 51 & 46(P) of Kasavanahalli village and Sy.No. 34 of Junnasandra 21 O.S.No. 1795/2020 village, all these villages forming part of Varthur hobli, Bellandur Gramapanchayat, Bangalore South Taluk, Bangalore District, with an intention to form residential layout, have secured conversion of their respective lands from agricultural use to non agricultural residential use, subsequently the said owners approached the grama panchayath and to the residential layout plan sanctioned in the name and style of Shubh Enclave and sold their respective sites to the intending purchasers and that the said original land owners joined with one Mr.K.Satish Kumar, who was the developer of the entire Shubh Enclave layout, and in whose name the plan was sanctioned, the said K.Satish Kumar also marketed the sites/ plots to various purchasers in the Shubh Enclave Layout, etc., Plaintiff has not produced any record to establish the averments made by it. Even the so called approved layout plan is also not produced.
29. It is denied that the site owners/ sites 22 O.S.No. 1795/2020 purchasers in Shubh Enclave Residential Layout formed an association under the Karnataka Societies Registration Act 1960, in the name and style of Shubh Enclave Site Owners Association.
30. That the averments, when the land owners sold the sites to the purchasers, the Shubh Enclave Residential Layout was not fully developed and / or completed by the developer, and as such the sites in the layout were in the form of barren land with stones indicating number and nothing beyond that and the jurisdiction of BBMP was also not extended to the said layout during the year 1992-93 and therefore there was no hope that the site owners would get any civic amenities and under such difficult circumstances, the plaintiff association was formed and the first thing the plaintiff undertook to form, construct and provide for, was the civic amenities like, several entry points, gates, security sheds, the roads, pathway, drains, overhead 23 O.S.No. 1795/2020 tank, underground cabling pipes, security water tanks, tree and avenues etc., and when all the civic amenities were made available, the individual site owners started construction of residential houses in their respective sites and started residing there, etc., are totally unwarranted statements and the same are nothing to do with 1st defendant.
31. That the sites purchased by the 1 st defendant is situated in industrial Hi-tech Zone as per revised master plan 2015 issued by the Bangalore Development Authority, wherein construction of commercial and IT-BT building is permitted.
32. That the suit schedule property is part and parcel of Sy.Nos. 46 & 51 of Kasavanahalli village, initially owned by K.Vijay Kumar and K.Raja Reddy, respectively, Mr.K.Vijay Kumar got his land converted from agricultural use to non agricultural / residential use etc., are matter of record. Anything contrary to the 24 O.S.No. 1795/2020 record are hereby denied as false. That the 1 st defendant has purchased suit schedule property.
33. That the defendant No.1 had been holding the property without constructing any residential dwellings thereon, on 22-10-2018 the defendant No.1 entered into a JDA with defendant No.2 herein for development of residential / commercial complex in the suit schedule property under a JDA dated 22-10-2018 etc., are is matter of record.
34. That pursuant thereto the defendant Nos. 1 & 2 have made an application to the defendant Nos. 3 & 4 who without having any regard to the residential area and (a) in contradiction of the land conversion orders issued by the Deputy Commissioner, (b) in contradiction of RMP 2015 as it stood suitably amended by virtue of the notification No. UDD 105 MNJ 2008, Bangalore dated 20-03-2015, (c) in contradiction of proposed RMP 2013 etc., have issued a building sanction plan for 25 O.S.No. 1795/2020 construction of commercial building bearing LP.No. LP/0184/12-18 dated 20-09-2018 for stilt+ground floor+3 floors, etc., are in correct statements. The 3 rd and 4th defendants have sanctioned the plan by following procedures. Therefore the plaintiff cannot find fault with the action of the authorities. The plaintiff has stated that Shubh Enclave Residential Layout is a gated community layout. The said averment of the plaintiff is contrary to the well-established law.
35. It is denied that, the land conversion order expressly mandated that the land must be used for the specific non-agricultural/ residential purposes, only for setting up of dwelling houses, any violation of this order would not only render the land conversion order null and void, but also the land will stand forfeited to the state, etc.,
36. That Section 14A of the Karnataka Town and Country Planning Act, requires that there should be 26 O.S.No. 1795/2020 harmony between the conversion order and the land use, in the event of a conflict between the conversion order and land use as defined by the C.D.P., then a change of land use permission is required to be obtained from the Deputy Commissioner (under the land revenue act) before putting the land to commercial use etc., are incorrect statements for the present case. The plaintiff has made the statement without understanding the procedures adopted by the concerned authorities in terms of enacted laws. It may please by noted that when the suit schedule property is situated in the notified area of the C.D.P. the owner of the property is entitled to approach the competent authority for sanction of plan based on the C.D.P. notification. The C.D.P. supersedes the order of conversion while according sanctioned plan for construction of building in a particular zone. In the present case though the order of land conversion is for the residential purpose, since the suit schedule property 27 O.S.No. 1795/2020 is situated within High - Tech Zone, the competent authority has sanctioned the plan and subsequently issued occupancy certificate after completion of construction of building, by following then existed procedure. Therefore plaintiff cannot find fault with the procedure followed by the competent authorities.
37. It is denied that, the Government of Karnataka has amended the RMP-2015 on 20-03-2015 by virtue of the notification dated 20-03-2015, as per the amended RMP 2015, the Bangalore Metropolitan Areas, for th purpose of constructions and development, have been divided into three rings - Ring I, Ring - II and Ring - III and any person seeking development of lands forming part of the rings should satisfy certain criteria stated therein. Further it is denied that the suit schedule property is forming part of Ring III and as such no commercial building could have allowed to be constructed, unless the site area is 1000 sq.mtrs. or 28 O.S.No. 1795/2020 more and the road width is 60 feet or more, however the suit schedule property is having only 800 sq.mtrs. And the road width is max 40 feet, in view of the above disparity the commercial building plan approved by the BBMP is illegal and such illegal activities are necessarily required to be stayed etc.,
38. That as per the proposed RMP 2031, as provisionally approved by the Government vide G.O.No. Na.Aa.Ee./516/BEM Aa Se, Bengaluru dated 22-11- 2017, whenever fresh permissions for development are to be sought, such developments shall be governed by the provisions of RMP 2031, etc., are not applicable for the present case. The said proposed RMP 2031 has not at all come into existence and later on it was withdrawn by the Government of Karnataka.
39. It is denied that, the Shubh Enclave Site Owners Association, having collected the funds from all the site owners/ site purchasers, have developed the civic 29 O.S.No. 1795/2020 amenities in the Shubh Enclave Residential Layout and thereby the plaintiff has been vested with the right to stop any site owner from violating the right of the other site owners or from depriving them of their right of privacy and peaceful living, etc., It is denied that the defendant No.1 & 2 cannot construct the commercial building as per the sanction plan which is illegal, if the defendant Nos. 1 & 2 construct the commercial building in the residential area, the adjoining owners through plaintiff have the right to ask for an injunction, because there is a intervention of right to the enjoyment of property by illegal construction and the defendants owe an obligation to the plaintiff by obeying the law, etc.,
40. It is denied that, the very construction of commercial building in residential area would cause nuisance and hardship to all the residents residing therein, who had purchased their respective sites in Shubh Enclave Residential Layout to live in a peaceful 30 O.S.No. 1795/2020 environment in a purely residential area only, away from the hustle and bustle surrounding a commercial complex etc., are incorrect statements. That erection of a commercial complex in the residential layout will certainly increase the vehicular traffic, thereby resulting in a situation where the roads of the residential layout are clogged and congested, eventually resulting in public nuisance, etc.,
41. It is denied that, the public nuisance so occasioned by such construction would also impinge on the right of the residents of Shubh Enclave Residential Layout, this court has full power and authority to do justice as per the law of equity and the law of equity provides that even if the evidence is conflicting and the injury to the public is doubtful, still it will give birth to a ground for granting permanent injunction against perpetrators of public nuisance, etc.,
42. It is denied that, the inconvenience, annoyance 31 O.S.No. 1795/2020 and substantial physical discomfort caused by the constant noise cannot be adequately estimated in terms of money and a man/ citizen/ resident in residential area is entitled to the comfortable enjoyment of his house and to engage in an ordinary conversation in that house without substantial interruption from any abnormal noise, etc.,
43. There is no cause of action for the plaintiff to file this suit.
With these contentions seeks to dismiss the suit.
44. Defendant No.2 who has appeared before the court has filed written statement in the same line of defendant No.1.
45. Defendant Nos. 3 & 4 who have appeared before the court have filed written statement by contending that, the suit is not maintainable either in law or on facts, hence the same is liable to be dismissed.
46. That, the suit filed by the plaintiff in respect of 32 O.S.No. 1795/2020 schedule property is wholly false, frivolous and vexatious and same is not maintainable either in law or on facts. The suit has been filed with an intention to harass the defendant Nos. 3 & 4 and to coerce them to terms, the suit lacks bonafides and hence the same is liable to be dismissed.
47. That, the plaintiff has suppressed all the real facts and misrepresented the same before this Hon'ble Court, and the plaintiff has no subsisting legal right to file a suit for permanent injunction in respect of suit schedule property, on these grounds also the suit is not maintainable and liable to be dismissed in limine.
48. That, the plaintiff has not issued the statutory notice as required under Section 482 of KMC Act, before filing the suit. No dispensation can be granted as there is no urgency in the matter. Hence suit is liable to be dismissed for non compliance of statutory notice as required under Section 482 of KMC Act.
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49. The BBMP authority approved a sanction plan for defendants No. 1 & 2 to construct BF+GF+F+SF+TF+ Terrace floors in the suit schedule property.
50. That, the BBMP authorities issued a sanitation plan to defendants No. 1 & 2 in accordance with the revised master plan 2015 hence, the question of whether the sanction plan was issued illegally does not arise at all. Therefore, the plaintiff cannot find any fault with the issuance of license and plan by the BBMP. Under the circumstances, viewing from any angle the present suit filed by the plaintiff is devoid of merits and plaintiff is not entitle for any relief, much less the relief sought in the suit.
51. That, in the revised master plan 2015 issued by the BDA, the suit schedule property is notified. In the industrial Hi-tech zone of the revised master plan, 2015. The construction of building for establishment of IT-BT company is permissible in the said zone. Considering the 34 O.S.No. 1795/2020 said legal and factual aspect, the BBMP has issued license and plan for construction of commercial and the BBMP has issued license and plan for construction of commercial and IT-BT building, in the suit schedule property. Therefore the plaintiff cannot find any fault with the issuance of license and plan by the BBMP.
52. The defendant Nos. 3 & 4 denied all the averments made in the plaint and seeks to dismiss the suit.
53. On the basis of the above pleadings the following issues are framed.
1) Whether the plaintiff proves that, the suit schedule property is in residential zone?
2) Whether the plaintiff proves that, the defendant Nos. 1 & 2 have constructed the commercial building in the residential zone?
3) Whether the plaintiff proves that, the building constructed in the suit schedule property is illegal and unauthorised?35
O.S.No. 1795/2020
4) What order or decree?
54. To substantiate plaint averment Secretary of plaintiff company Adity Roy is examined as P.W.1 and Ex.P.1 to 21 are marked. Ex.P.1 is Resolution dated 29.02.2020, Ex.P.2 is Certified copy of Sale deed dated 03.07.1997, Ex.P.3 is Conversion order dated 04.11.1996, Ex.P.4 is Conversion order dated 23.05.1995, Ex.P.5 is Conversion order dated 10.09.1996, Ex.P.6 is Certified copy of Joint development agreement dated 20.02.2018, Ex.P.7 is Revised master plan 2015, Ex.P.8 is Revised master plan 2015 Map, Ex.P.9 is Gazette notification dated 23.03.2015, Ex.P.10 is Shubh enclave layout Map, Ex.P.11 is Revised Master plan for Bangalore Development authority for the year 2031, Ex.P.12 is Letter dated 11.10.2021 issued by BBMP, Ex.P.13 is Copy of the notice dated 02.05.2020 issued to Defendant by the BBMP U/s 308 of KMC Act, 36 O.S.No. 1795/2020 Ex.P.14 is Copy of the notice dated 25.09.2020 issued to Defendant by the BBMP U/s 321(3) of KMC Act, Ex.P.15 is Copy of the notice dated 19.06.2020 issued to Defendant by the BBMP U/s 321(1) of KMC Act, Ex.P.16 is Copy of the notice dated 19.06.2020 issued to Defendant by the BBMP U/s 321(2) of KMC Act, Ex.P.17 is Net extract of Karnataka Gazette dated 23.11.2017, Ex.P.18 is Net extract of revised master plan maps of Bangalore development authority local planning area 2031, Ex.P.19 is Certificate U/s 65(b) of Indian Evidence Act, Ex.P.20 is Copy of the registration certificate of Plaintiff's association, Ex.P.21 is Net extract of case status in revision appeal No.12/2021 before KAT, Bangalore.
55. From defendant side Managing partner of defendant No. 2 Mr. Saikam Sivachaitanya Reddy is examined as D.W.1 and Ex.D.1 to 26 documents are marked. Ex.D.1 is Original Joint development agreement 37 O.S.No. 1795/2020 dated 22-10-2018, Ex.D.2 is Original GPA dated 22-10- 2018, Ex.D.3 is Original Plan Dated 20-09-2018 in LP No.0184/17-18, Ex.D.4 is Original Occupancy Certificate Dated 21-01-2021, Ex.D.5 is Letter issued by BDA dated 07-12-2021, Ex.D.6 is Copy of GO dated 22-06-2020 obtained under RTI, Ex.D.7 is Copy of the letter date 22-06-2020 obtained Under RTI, Ex.D.8 is Copy of the gazette notification dated 09-07-2020 obtained under RTI. Ex.D.9 to 22 are 14 Photographs, Ex.D.23 is Pendrive, Ex.D.24 is Original Building licence dated 20-09-2018, Ex.D.25 is Revised mater plan 2015, Ex.D.26 is Certificate U/s 65B of Indian Evidence Act.
56. Heard the arguments and perused the records.
57. My finding on the above issues are :-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: As per final order, for the following:-38
O.S.No. 1795/2020 REASONS 58 . Issue Nos. 1 to 3: Issue No.1 to 3 are taken together in order to avoid the repetition of discussion and also as all these issues are interlinked.
59. The plaintiff association is before the court for the relief of permanent injunction to restrain the defendant No.1 & 2 from constructing the commercial building in the suit schedule property and to direct the defendant No. 3 & 4 to cancel/withdraw the sanctioned plan LP.No.0184/12-18 dated 20/9/2018 and such other reliefs.
60. The above said reliefs have been sought by the plaintiff association on the ground that the suit schedule property is within the Shubh Enclave Layout, which is formed in total 120 acres of land in Sy.No.21, 22 of Amabalipura, Sy.No.67/1, 67/2, 69/1, 69/2, 67/1, 67/2, 66, 65, 64, 63(p), 57, 56, 51, 46(p) of Kasuvanahalli and Sy.No.34 of Jannasandra. The shubh 39 O.S.No. 1795/2020 enclave layout is purely residential area and in that the defendants No.1 & 2 are constructing the commercial building, as per the license/permission granted by the defendant No.3 & 4. And it is further contended that the intended building is in violation to land conversion order, RMP 2015, proposed RMP 2031, and direction given in the citizen action forum by the hon'ble High court of Karnataka, hence seeks to decree the suit. 61. On the other hand the defendants No.1 & 2
who have appeared before the court have contended that, the building is in accordance with the plan/license granted by the defendant No.3 & 4 and there is no any violation whatsoever and questioned the very locus standi of the plaintiff in filing the suit.
62. And the defendants No.3 & 4 who have filed the written statement, have denied that the building license or plan is issued in violation of any rules/laws and justified their action in granting the license and 40 O.S.No. 1795/2020 thereby sought to dismiss the suit.
63. Learned counsel for the plaintiff fairly conceded that first prayer become infructuous as the building is already completed, but stressed upon the prayer (b) to cancel/withdrawal of the license granted by the defendant No.3 & 4 to the defendant No.1 & 2 to construct the building.
64. This court on 1.6.2021 passed the order by dismissing the I.A.No.2 filed by the plaintiff, against which the plaintiff filed the MFA.No.2414/2021 (CPC) before the Hon'ble High Court of Karnataka, and the same has been disposed of on 1/7/2021 with some directions to this court, and (vi) direction reads thus;
"It is further directed that in the event the trial court comes to the conclusion that the building put-up by the defendants No.1 and 2 on the suit schedule property, is illegal and unauthorized, the respondent No.3 & 4 / 41 O.S.No. 1795/2020 defendant No.3 & 4 - BBMP shall immediately take steps forthwith against the defendant No.1 & 2 in respect of the schedule property in accordance with law including withdrawal of the sanctioned plan and license as well as occupancy certificate issued in favor of respondent No.1 and 2 and also take steps to demolish the building put-up on the suit schedule property".
65. Now this court is to dispose of the suit in the light of the above direction issued by the Hon'ble High Court, while answering the issues involved in the suit.
66. There is no any dispute that the suit schedule property is part and parcel of the Sy.No.46, 51 of Kasavanahalli village, the same were converted from agricultural usage to non-agricultural usage as per the order dated 4.11.96 and 10.9.96 respectively by the deputy commissioner, which are produced at Ex.P. 3 to 5. 42
O.S.No. 1795/2020 The earlier owners of the said lands Mr. Vijayakumar and K.Rajareddy, after conversion have sold the suit schedule property through their GPA holder Mr. K.Sathish Kumar under the registered sale deed dated 3.7.1997.
67. It is also not in dispute that the defendant No.1 and 2 have entered the joint development as per Ex.P.6 dated 22.10.2018 for construction of the disputed building.
68. Construction of any building anywhere by any person pre-supposes the approved plan and license by the concerned competent authority. Here it is not the case of the plaintiff that the defendants No.1 & 2 have erected the building without license and plan illegally, it is their case that the defendants No.1 and 2 have constructed the commercial building in the residential area, in this back drop their allegation is to be considered. If the Kasuvanahalli village is not within the residential zone and if the commercial building 43 O.S.No. 1795/2020 constructed with license and approved plan, then the plaintiff has no case at all.
69. In this regard let me first consider Ex.P.8, which is the Revised Master Plan-2015 (RMP-2015), in this document Kasavanahalli village is shown as Industrial & Hitech zone, in which the suit schedule property is situating. The plaintiff has given mush stress upon Revised Master Plan 2031 (RMP-2031) which is at Ex.P.11, in which Sy.No.46 & 51 are in residential zone, but the said document is only a draft, which is not yet finally approved by the Karnataka government, moreover the same has been withdrawn by the Karnataka government on 22.6.2020 as per the Ex.D.6, 7 and the withdrawal of the said draft RMP is also published in the gazette as per Ex.D.8. learned counsel for the plaintiff has vehemently argued that, the license was issued on 20.9.2018, and draft RMP 3031 was withdrawn on 22.6.2020 and hence as on the date of the license the 44 O.S.No. 1795/2020 said RMP-2031 was in force, but the said submission cannot be accepted for the simple reason that the same was only a draft and not finally approved by the government and final approval pre-supposes the publication of the master plan and display of the same in the offices of the director and planning authority and a copy shall be kept available for inspection of the public at the office of the planning authority as required under the section 13(4) of Karnataka country and town planning Act. but the same is not done in this case in respect of the draft RMP-2031. And every plan and license has to be approved and issued according to existing law/rules/master plan and not according to the intended rule/master plan.
70. Now let me consider the building plan (blue print) of the disputed building, which is produced by the defendant No. 1 & 2 at Ex.D.3. on plain reading of the said plan it appears that, the said plan is approved by 45 O.S.No. 1795/2020 the Asst director of town planning, BBMP, Mahadevapura zone and Executive engineer, town planning, Mahadevapura zone on 20/9/2018. And it is clearly mentioned in the said document that, Plot use commercial Location Ring-II Land use zone Industrial-I(H) (HI-Tech) When the concerned authority and its officers themselves have held that the suit property is within the industrial zone, then the question of saying by the plaintiff that the suit property is within the residential zone does not arise at all. Learned counsel for plaintiff contended that the Ex.D.3 is the defendants No.1 & 2's document, and mentioning of the location as Ring II in that document cannot be considered, but his submissions cannot be accepted because it is not contended/pleaded in the plaint that the defendants by wrongly showing the location of the property in Ring II have obtained/filed the blue print i.e., Ex.D.3, apart from 46 O.S.No. 1795/2020 that the license issued by the defendant No.3 & 4 as per Ex.D.24 is consonance with Ex.D.3 to say that the suit schedule property is in industrial zone. The plaintiff has no authority to say that the suit property is in the residential zone without any strong documentary evidence, if really the suit property is in Ring III then plaintiff should have taken some pain in producing some document obtained from the BDA &/or BBMP under the RTI whether the suit schedule property falls under the Ring II or Ring III, but has not done anything in this regard except orally asserting that the suit property is in Ring II. During the course of arguments learned counsel for plaintiff made all efforts to convince this court by taking the assistance of the RMP 2015 map and RMP 2031 map, but in those maps nowhere it is mentioned with specific words which are areas falls under the ring I, II, & III. The concerned authorities if mentioned the areas which are falling under the Ring I, II, III by encircling the 47 O.S.No. 1795/2020 areas, then his arguments would have been accepted, but there is no such thing, hence cannot be considered. Apart from that the plaintiff has never contended that the defendant No.3 & 4 by wrongly mentioning the suit schedule property is in industrial zone have issued license and plan.
71. Now let me consider the building license issued by the defendant No. 3 & 4 which is produced by the defendant No.1 & 4 at Ex.D.24, in the said document it is mentioned thus;
ನವವವಶನದ ಅಳತವ 892.19
ಕಟಟಡದ ಅಅತಸಸಸಗಳಳ ತಳ+ ನವಲ + ೧ ನವವ + ೨ ನವವ + ೩
ನವವ ಅಅತಸಸಸ
ಕಟಟಡದ ಉಪಯವಗ ವವಣಜಜ ಮತಸಸ ಐ.ಟ. ಮತಸಸ ಬ.ಟ.
ಕಟಟಡ
ಒಟಸಟ ಕಟಟಡದ ವಸಸವರರ 2473.73
From this also it is clear that, the defendant No.3 & 4 have issued the license for commercial building. From conjoint reading of the Ex.P.8, Ex.D3, and Ex.D.24 it appears that the suit property is falls within the 48 O.S.No. 1795/2020 industrial zone, by considering the same the defendant No.3 & 4 have issued the license by approving the plan.
72. Apart from these let me consider the admission on pleading by the defendant No.3 & 4. The defendants No. 3 & 4 have filed the written statement and in the written statement it is specifically admitted that, "17. It is submitted that, the BBMP authority approved a sanction plan for defendants No.1 and 2 to construct BF+GF+FF+SF+TF+ Terrace floor in the suit schedule property.
18. it is submitted that, the BBMP authorities issued a sanction plan to the defendants No.1 and 2 in accordance with the revised master plan-2015 (zoning regulations) hence, the question of whether the sanction plan issued illegally does not arise at all. 49
O.S.No. 1795/2020 Therefore, the plaintiff cannot find any fault with the issuance of license and plan by the BBMP. Under the circumstances, viewing from any angle the present suit filed by the plaintiff is devoid of merits and plaintiff is not entitle for any relief, much less the relief sought in the suit.
19. it is further submitted, in the revised master plan 2015 issued by the Bangalore development authority, the suit schedule property is notified in the industrial Hi-tech zone (the sanction plan issued as per Bye-laws No.4.4, 4.7, 4.7.2(1) and 4.8. and 4.8.(2)(1) of the revised master plan, 2015). The construction of the building for establishment of IT-BT company is permissible in the said zone. Considering the said legal and factual aspect the BBMP has issued license and plan for 50 O.S.No. 1795/2020 construction of commercial and IT-BT building, in the suit schedule property. therefore, the plaintiff cannot find any fault with the issuance of license and plan by the BBMP."
Apart from these admissions on pleadings, the BBMP who is the party in the MFA.No.2414/2021, has stated before the hon'ble high court which is reflected in the order dated 1.7.2021 at para No.5, "Sri K.N.Puttegowda, learned counsel for respondent No.3 & 4 submits that the construction of commercial building on the suit schedule property is perfectly legal and valid and in accordance with law as well as sanctioned plan and license".
By appreciating these it is very much clear that the suit property is within the industrial zone and commercial building constructed by the defendants No.1 & 2 with the approval of plan and license is in 51 O.S.No. 1795/2020 accordance with the law.
73. Now let me consider Ex.P.7, which is RMP- 2015, because the learned counsel for plaintiff, while giving more emphasis on the said document, has submitted that even according to the said RMP-2015 is also the building in dispute is not in accordance with the RMP-2015.
As per the terminology at 23 at page No.3 "
High density development: this includes star hotels, shopping malls, multiplexes, commercial complexes, IT and BT"
As per chapter 2.0: list of the land use categories permissible in various zones. Various land uses permissible within each zone are listed below.
Land uses are grouped according to the nature and intensity of use in an ascending manners. For e.g:
C-4 indicates C= commercial and 4 order with the 52 O.S.No. 1795/2020 category. The C-4 list includes all land uses permissible specific to C-4 and lower order uses of C-3, C-2 and C-1 unless specifically mentioned. Various codes used include:
R: Residential C: commercial: C-1 to C-6 I: industrial I-1 to I-4 T: transportation T-1 to T-4 U: public and semi-public U-1 to U-4 So, the disputed building is constructed for IT-BT is comes under Table-3, I-2, which reads thus;
I-2 Service industries
1 R&D labs, test centres, IT, BT, BPA
activities
2 All uses included in the I.1 category
So it is very much clear the disputed building which is constructed in the industrial zone is well with in the RMP-2015.
74. The learned counsel for plaintiff while stressing the point that the suit schedule property is well within the residential zone, has contended even then 53 O.S.No. 1795/2020 also it can be used for commercial purpose only if the requirements as mentioned in the RMP-2015 are met out, and further submitted that the disputed building does not met out the said requirement. But his contention cannot be accepted for simple reasons that the Kasuvanahalli is in the industrial zone as per the RMP-2015.
75. That apart, even if we assume that the suit schedule property is in residential zone as contended by the plaintiff, then also it is permissible under RMP-2015, because at 4.1 at page No.27 of the Ex.P.7 reads thus; '4.1.2) regulations
i) Permissible land uses:
Main land uses: R & T1 Ancillary land use category: C2, I-2, & U3 Ancillary use is allowable to 20% of the total build up area or 50 sq.m whichever is higher If the plot size is more than 240 sq.m, having a frontage of 10.0 m or more, and the abutting road is more than 18.0 m width, then ancillary 54 O.S.No. 1795/2020 uses can be used as main use.' So, from plain reading the above provision it makes it clear that, even if the arguments of the plaintiff that the suit schedule property is in residential area, then as per this provision the same can be used as ancillary to the main use, and IT-BT comes under I-2, and further if the plot size more than 240 sq.m having a frontage of 10.0 m or more, and the abutting road is more than 18.0 m width, then ancillary uses can be used as main use.
Herein this case plot size 892.19, which can be used an ancillary, the question of road width arises only when the same is to be as main usage for commercial. But this property squarely under the industrial zone considering all these aspects of ancillary usage does not arise. Hence the contention of the plaintiff does not survive.
76. And regarding the submission of the plaintiff counsel on Ex.P.9 gazette notification after the citizen action forum judgment, in my humble opinion that the 55 O.S.No. 1795/2020 same is not applicable because the property in dispute squarely falls within the industrial zone as per the RMP- 2015, and the said gazette notification is applicable to the ancillary usage under the residential and residential mixed zone, hence it will not help the plaintiff.
77. Now coming the submission made by the plaintiff regarding the citizen action forum judgment of the Hon'ble High Court of Karnataka, The Writ petitions No.3676/2008 & 43472- 43474/2011 were initially filed before the hon'ble High court of Karnataka by the Citizen action forum and others against state of Karnataka, BDA, BBMP & others, assailing the RMP 2015. In these writ petitions Hon'ble High Court of Karnataka was passed an interim order dated 25.1.2012, which reads thus;
" we have heard the learned counsel for the parties. On 17.11.2011,we had permitted the objections to be filed on behalf of the 56 O.S.No. 1795/2020 respondent No.1 within two weeks , subject to payment of costs, objections are not on the record. Learned counsel for the petitioners has drawn out attention to the report of the committee chaired by Dr.A.Ravindra. the first paragraph of the highlights reads as follows;
'change of land use has been curtailed for small properties on small roads. The notation of the ancillary use of a property has also been done away with. These two provisions have caused much pain to communities, by mixing up commercial development in what should be the residential areas only' It will be relevant to mention here that Dr.A.Ravindra committee was constituted by the respondent government itself vide order dated 4.12.2009. our attention has been drawn to revised master plan-2015, Bangalore volume-III 57 O.S.No. 1795/2020 chapter-II of the revised zoning of land use and regulations deals with regulations for classification of different land uses. As a first step, as partial acceptance of the report, we direct that in the following areas of the city i.e. malleshwaram, Richmond town, vasanthnagar, Jayanagar, Vijayanagar, Viveshwarapura, Rajajinagar, R.T.Nagar etc., classified in the zoning regulations. Which corresponds to the areas wherein purely residential user is permitted, no further permission shall be granted for re-development and re-construction except for residential user. Hon'ble High Court in the very same judgment at para No.2 further held that, 'subsequently on 13.12.2012, another interim order was passed which was in fact an order clarifying the earlier interim order dated 58 O.S.No. 1795/2020 25.01.2012, the same reads thus:
"we have heard the learned counsel for the parties. Although we find that there is no ambiguity in the order dated 25.1.2012, we think it expedient to make further clarification. We direct that the BBMP shall not permit or grant any change of land user in the following areas i.e. Malleshawaram, Richmond town, Vasanthanagar, Jayanagar, Vijayanagar, Vishweshwarapura, Rajajinagar and R.T.Nagar. in addition thereto, the residential areas mentioned and shown in CDP 1995, regardless of whether they are subsequently depicted as residential main or residential mixed are also included. This order shall also apply to other residential areas regardless of the nomenclature used in the revised master plan of 2015. Any building plans that have been sanctioned or 59 O.S.No. 1795/2020 trade licenses or change of land user that has been allowed subsequent to our order dated 25.1.2012 shall be recalled. Renotify on 6.2.2013' By highlighting this order learned counsel for the plaintiff vehemently contended that Kasavanahalli village was shown as residential zone in the CDP-1995, hence now also it is be treated as residential zone and in that no commercial building can be erected, but the said contention cannot be accepted for the simple reasons that the said orders dated 25.1.2012 & 13.12.2012 are interim orders only. Later on an affidavit was filed by the BDA before the Hon'ble High Court in the very same writ petition, the same was accepted by the Hon'ble High Court of Karnataka passed the order which is in para 8 of the said judgment which reads as under;
'8. In the circumstances, we take the affidavit filed by the commissioner, BDA on 60 O.S.No. 1795/2020 record. As stated in the affidavit, the BDA shall forward the amendment to the zoning regulation to the state government for its approval. The state government shall consider the same and notify the proposed amendment within a period of three months from the date of BDA forwards the proposal to it. Till proposed amendments are notified, the interim order dated 25.1.2012 as well as 13.12.2012 shall continue. BBMP shall also abide by the orders of this court as well as the contents of its affidavit extracted supra. Having regard to the contents of the affidavit filed on behalf of the BBMP and pending notification of the amendment to the zoning regulations, the interim orders dated 25.1.2012 and 13.12.2012 are continued. All other contentions which are raised in these writ petitions on both sides are 61 O.S.No. 1795/2020 left open to agitated in any other appropriate matter'.
As per the undertaking of the BDA, zoning regulations was published in the gazette, which is produced at Ex.P.9. for the better understanding some portion of the same is extracted which is as below;-
" NOTIFICATION As the matter has come for hearing before the hon'ble High court wherein was observed that the above mentioned notification No.UDD 105 MNJ 2008 dated 11/12/2014 is not in conformity with the affidavit filed by the BDA on 19.2.2014 and as such, in the light of the W.P.2661/2015 (PIL) being filed on the above issue, the notification issued earlier is hereby withdrawn with immediate effect with a condition that all the proposals approved consequent to the notification stand canceled. 62
O.S.No. 1795/2020 As per the affidavit filed by the BDA, the zoning regulations of the Bengaluru in the revised master plan 2015 and amendments, regulations 2014 are amended as below:
1) No commercial activity of whatsoever nature shall be allowed in the residential main and residential mixed zones in the three rings viz., Ring No.1, Ring No.2 and Ring No.3 if road width is less than 40 feet.
2) The ancillary usage shall be permitted in residential main and residential mixed zones is Ring No.1 and Ring No.2 up to 20% of the built area or 50 sq mtrs whichever is lower provided the width of the road is above 40 feet.
3) In ring No.3, the ancillary usages may be permitted as main use in residential main and in residential mixed zones if the plot 63 O.S.No. 1795/2020 size is more than 1000 sq mtrs, having frontage of 10 mtrs or more and if the width of the road is more than 60 ft
4) The ancillary usages are shown in the table below (separate table is given)"
On careful reading of this, it appears that 4.1.2 regulations of Ex.P.7 is in accordance with this gazette notification. These are only applicable for permission of ancillary usage of land in the case residential and residential mix zones. Undoubtedly the suit property is not in residential or residential mixed zone, because there is no any document on the record to show that the suit property is in residential or residential mixed zone. If for the moment the arguments of the learned counsel for the plaintiff is to be accepted that the Kasuvanahalli is in residential zone as per CDP 1995, then showing the same in RMP 2015 in industrial zone is against to the interim order of the hon'ble High court in citizens forum decision. 64
O.S.No. 1795/2020 Then without challenging the RMP 2015 map produced at Ex.P.8 before the competent court of law, merely asserting that Kasuvanahalli is in residential zone cannot be accepted. And moreover the said interim orders were applicable only till the gazette notification as ordered by the Hon'ble High court that " Till proposed amendments are notified, the interim order dated 25.1.2012 as well as 13.12.2012 shall continue" , and the notification is made as per Ex.P.9 gazette Hence the said decision is not applicable to the facts on hand, and moreover that the property is in industrial zone.
78. Much is argued by the learned counsel for plaintiff regarding the violation of FAR by pressing into the service of blue print. But there is no pleading in this regard. It is not the case of the plaintiff that merely because there is violation in FAR the building is illegal, but plaintiff's basic case it that, the building is illegal and unauthorised as the same is constructed in the 65 O.S.No. 1795/2020 residential zone. But this court already noticed that the Kasavanahalli village where the building is constructed is falls within the industrial zone and hence the said submissions cannot be accepted. If the FAR is violated then there is different forum to agitate the same and merely because there is violation in FAR the entire building will not become illegal and unauthorised. In this regard it is very much necessary to consider the occupancy certificate issued by the BBMP dated 21.01.2021 which is produced as per Ex.D.4, which is as under;
'the building plan was sanctioned for the construction of commercial and IT-BT building comprising of BF+GF+FF+SF+TF+ Terrance floor constructed on the land located at property khatha No.3069/2867/1/1, Kasuvanahalli village, Varthur hobli, Bangalore east with on line 66 O.S.No. 1795/2020 LP.No.Ad.Com/MDP/0184/2017-18 Dt.20/09/2018.
The commercial and IT-BT building was inspected on dt.11/01/2021 with reference to the sanctioned plan and as built drawing for the issue of occupancy certificate. At the time of inspection it is observed that the commercial IT-BT building constructed is comprising of BF+GF+FF+SF+TF+ Terrance floor only. On inspection it is also observed that there is deviation in built up area when compared to sanctioned plan which is well within the regularization limits of 5% by levying fine which works out to Rs 8,08,948/- (Rs. Eight lakh, eight thousand, nine hundred and eighty four only/-). The applicant has paid the total compounding fine of Rs. 8,08,948=00 vide DD.No.585002, Dt 19/01/2021, union bank of 67 O.S.No. 1795/2020 India. DD has been remitted to account No.8401132000014 (CANARA BANK) of commissioner BBMP vide receipt No.RE- ifms366-TP/000115, Dt.21/01/2021." And the decision relied upon by the plaintiff reported in ILR 1987 KAR 1570, is not helpful the plaintiff as there is no basic pleadings regarding violation of the FAR and moreover the issue is not the violation of FAR but basic issue is construction of commercial building in residential area.
By reading this it appears that even if there is violation in construction of the building then the same is curable defect, when there is curable defect then it cannot be said that the whole building itself illegal and unauthorised.
Another important aspect of the plaintiff is that, the land is converted only for the residential usage, but the commercial building has been constructed as against the 68 O.S.No. 1795/2020 conversion order. Plaintiff has produced the conversion order at Ex.P.3 to 5. while stress on the condition No.2 of the said order at Ex.P.3 is given during the course of the arguments, which is as follows;-
2) ಈ ಭಭ ಪರವತರನವ ಜಮವನನಸನ ವವಸದ ಉದವದವಶಕವಕಗ ಮವತತ ಉಪಯವಗಸಕವಭಳಳತಕಕದಸದ ಮತಸಸ ಸದರ ಜಮವನನಸನ ಈ ಆದವವಶದ ದನದಅದ ಎರಡಸ ವರರಗಳ ಒಳಗವಗ ಉಪಯವಗಸಕವಭಳಳತಕಕದಸದ, ತಪಪದಲಲ ಸದರ ಭಭ ಪರವತರನವ ಆದವವಶವನಸನ ವಜವಮವಡ ಜಮವನನಸನ ಕಕಷ ಜಮವನವಅದಸ ಪರಗಣಸಲವಗಸವವದಸ. ಈ ಜಮವನನಸನ ಬವವರವ ಉದವದವಶಕವಕಗ ಉಪಯವಗಸಕವಭಳಳಬವರದಸ"
But in the same document is at condition No.10 it is specifically mentioned that, "ಮಸಅದನ ದನಗಳಲಲ ಈ ಜಮವನನ ಸಸತಸಮಸತಸ ಪವತಧಕವರವವ ಅಭವಕದದ ಪಡಸಬಹಸದವದ ಬಡವವಣವಯ ರಭಪವರವವಷವ ಯವಜನವಗವ ಅನಸಗಸರವವಗ ಈ ಭಭ ಪರವತರನವ ಜಮವನನ ಬಡವವಣವ ನಕವ ಮತಸಸ ಕಟಟಡ ನಕವಯನಸನ ಬದಲವಯಸಕವಭಳಳತಕಕದಸದ"
This condition clarifies that the said conversion order is subject to future development plan of the 69 O.S.No. 1795/2020 development authorities. And moreover, there is no any law or rule that once the land is converted from agricultural to non-agricultural, then it must be used only for the residential use and there is no law that, from residential usage to commercial usage again the same has to be converted. In such situation the contention of the plaintiff cannot be accepted.
Others contentions that the raised in the plaint that, it is against to the RMP 2015 and RMP-2031 has been already addressed by this court, by holding that the as per RMP-2015 the building area is in industrial zone and it is in accordance with the RMP-2015, and RMP- 2031 is only a draft and hence the same cannot be considered.
79. Further learned counsel for plaintiff has submitted that, the government earlier proposed to form the hi-tech city in the area of the suit schedule property, later it was canceled and there is a order by the Hon'ble 70 O.S.No. 1795/2020 High court of Karnataka in W.P.10800/2005 dated 30/7/2008, and there by contended that defendant No.1 & 2 cannot construct the IT-BT building, these submissions made taking aid of the sections 69, 70 and 71 of the Karnataka town and country planning Act. but the said submission of the plaintiff cannot be considered mainly because there is no pleading in the plaint regarding these facts. Apart from that, section 69 of the KT&CP Act authorizes the planning authority to acquire the land designated for 'public purpose' as per the existing law for acquisition of land. And section 70 says that the land acquisition is for public purpose and section 71 authorizes state government to acquire the lands included in a town planning scheme. The state government was intended to form a high-tech city, later on the same was dropped because of various technical issues and also orders of the Hon'ble High court, merely because once the said area where the suit property is 71 O.S.No. 1795/2020 situating was notified by the government for formation of high-tech city, now plaintiff cannot contend that defendants cannot construct the IT- BT building in his property, no law/rule prohibits the defendants No.1 & 2 from constructing the IT-BT building. Constructing the IT-BT building means constructing the building to suit the needs of the IT-BT and that does not mean that it is parallel to the failed project of the government. If the defendants No.1 & 2 were not allowed to construct the IT-BT building the government agency i.e., BBMP and BDA should not have issued the building license for construction of the IT-BT building. And there is no any support of any provision of law or rule to this contention of the plaintiff. hence the said submissions also cannot be accepted.
80. In view of the above discussions, I am of the clear and firm opinion that issues No. 1 to 3 needs to be answered in negative, hence answered accordingly. 72
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81. Issue.No.4:- For the above said reasons, I proceed to pass the following;
ORDER Suit of the plaintiff is dismissed with cost. Draw decree accordingly.
(Dictated to the Stenographer on computer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 22 nd day of April, 2022.) ( SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY SCHEDULE PROPERTY ITEM No.1 All that piece and parcel of the residentially converted plot No. 1, now bearing portion of BBMP Khatha No. 3069/2867/1/1, carved out of converted Sy.No. 46 (converted vide the memo bearing No. B.DIS.ALN.SR(SA)202/1996-97 dated 04-11-1996, issued by the Special Deputy Commissioner, Bangalore District & memo bearing No.B.Dis.ALN:SR(SA)156/1994- 73 O.S.No. 1795/2020 95 dated 23-05-1995, issued by the Special Deputy Commissioner, Bangalore District) measuring on the North 71'0" (21.64 mtrs); on the south 35'6" (10.82 mtrs); on the east 120'0" (36.57 mtrs) and on the west 125'0"
(38.10 mtrs), admeasuring 6390 sq.ft (593.63 sq.mtrs), situated at Kasavanahalli village, Varthur hobli, Bangalore east taluk and bounded on the : East by: Property No.2, carved out of Sy.No. 46
West by: Property No.1, carved out of Sy.No. 51, North by: Road, South by: Property No. 16 ITEM No.2 All that piece and parcel of the residentially converted plot No.1, now bearing portion of BBMP khatha No. 3069/2867/1/1, carved out of converted Sy.No. 51(converted vide the memo bearing No.B.DIS.ALN.SR(SA)201/1996-97 dated 10-09-1996, issued by the Special Deputy Commissioner, Bangalore 74 O.S.No. 1795/2020 District) measuring on the north 9'0" (2.74 mtrs); on the south 44'6" (13.56 mtrs); on the east 125' 0" (38.10 mtrs) and on the west 120'0" (36.57 mtrs), admeasuring 3210 sq.ft (298.20 sq.mtrs), situated at Kasavanahalli village, Varthur hobli, Bangalore east taluk and bounded on the: East by: Property No.1, carved out of Sy.No. 46
West by: Property No.2, carved out of Sy.No. 51, North by: Road, South by: Property No. 4 ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Adity Roy
(b) Defendant's side :
D.W.1: Saikam Sivachaitanya
Reddy
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1 Resolution dated 29.02.2020 75 O.S.No. 1795/2020 Ex.P.2 Certified copy of Sale deed dated 03.07.1997 Ex.P.3 Conversion order dated 04.11.1996 Ex.P.4 Conversion order dated 23.05.1995 Ex.P.5 Conversion order dated 10.09.1996 Ex.P.6 Certified copy of Joint development agreement dated 20.02.2018 Ex.P.7 Revised master plan 2015 Ex.P.8 Revised master plan 2015 Map Ex.P.9 Gazette notification dated 23.03.2015 Ex.P.10 Shubh enclave layout Map Ex.P.11 Revised Master plan for Bangalore Development authority for the year 2031 76 O.S.No. 1795/2020 Ex.P.12 Letter dated 11.10.2021 issued by BBMP Ex.P.13 Copy of the notice dated 02.05.2020 issued to Defendant by the BBMP U/s 308 of KMC Act Ex.P.14 Copy of the notice dated 25.09.2020 issued to Defendant by the BBMP U/s 321(3) of KMC Act Ex.P.15 Copy of the notice dated 19.06.2020 issued to Defendant by the BBMP U/s 321(1) of KMC Act Ex.P.16 Copy of the notice dated 19.06.2020 issued to Defendant by the BBMP U/s 321(2) of KMC Act Ex.P.17 Net extract of Karnataka Gazette dated 23.11.2017 Ex.P.18 Net extract of revised master plan maps of Bangalore development authority local planning area 77 O.S.No. 1795/2020 2031 Ex.P.19 Certificate U/s 65(b) of Indian Evidence Act Ex.P.20 Copy of the registration certificate of Plaintiff's association Ex.P.21 Net extract of case status in revision appeal No.12/2021 before KAT, Bangalore
(b) Defendants side :
Ex.D.1 Original Joint development
agreement dated 22-10-2018.
Ex.D. 2 Original GPA dated 22-10-2018
Ex.D. 3 Original Plan Dated 20-09-2018 in
LP No.0184/17-18
Ex.D. 4 Original Occupancy Certificate
Dated 21-01-2021.
Ex.D. 5 Letter issued by BDA dated
07-12-2021.
Ex.D. 6 Copy of GO dated 22-06-2020
78
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obtained under RTI.
Ex.D. 7 Copy of the letter date 22-06-2020 obtained Under RTI.
Ex.D. 8 Copy of the gazette notification dated 09-07-2020 obtained under RTI.
Ex.D. 9 14 Photographs.
to 22 Ex.D 23 Pendrive Ex.D. 24 Original Building license dated 20-09-2018.
Ex.D. 25 Revised mater plan 2015.
Ex.D. 26 Certificate U/s 65B of Indian Evidence Act.
XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.