V H Ron vs The State Of Karnataka on 11 August, 2010

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Karnataka High Court

V H Ron vs The State Of Karnataka on 11 August, 2010

Bench: Ram Mohan Reddy

IN THE HIGH COURT OF KARNATAKA, BAN GALORE

DATED THIS THE 1 1m DAY OF AUGUST, ..2DT1Q'z

BEFORE

THE HON'BLE MR. JUSTICE  E "

WRIT PETITION No.21294 01-'..2o1O*(EDA}DA-.__ 
8: WRIT PETITION NOS.215 30-553 or 210:l'0"(BDA) 

F..lé........ND. V
MISC.W.7(i8_U/2010. -- 
IN W.P.21294/20 & W,P,2'15'3Q-533',' 2010 (BDA)

BETWEEN

1. VB RON, AGED m_  '_ AV 
S /0 LATE  RON i'
R/AT:'N0,_2.4;  GANGANAGAR,
BANGA.LO--R'E 5600-32.' «.  

2. MAJOR VE1\§E{A'i'AC£5i[&LZ3xIVI
AGED so 'KEAR$,  C SUBBARAYA
R/ATNQ22', _1sT ROAD,
A .GANGAl\IAGAR,BANGALORE 560032

 v  _ 3.   MUEDDAPVPA

 _ AG}33_D.'58 YEARS
V _ ' Rf? Nf).~.2_0_',, 1ST MAIN ROAD,
* ..'V%AGA1\Ic«AI~s;AGAR, BANGALORE 560032

4.  'V1J°AYA REDDY
AGED 55 YEARS

 AA  S/'0 LATE SI-IANKAR REDDY

,_ KR/AT NO.27, 1ST MAIN ROAD,
"A GANGANAGAR. BANGALORE 560032
 PETITIONERS

    COMMON

(By Sri. : ASHOK B PATIL, ADV}



pound

THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA

BANGALORE 560001

2. BANGALORE DEVELOPMENT AUTHORITY. 
BY ITS COMMISSIONER 
KUMARA PARK WEST  -- 
BANGALORE 560020 

3. DR SAROJINI MAHISHI
FORMER UNION MINISTER
10 1, E-BLOCK, ALAKANANEA
APARTMENTS, RAMPUR, ' _ ' _
SOORYANAGAR, ..  --. "

UTTAR PRADESH  I. ' " ~

4. PBMAHISHI   .
CHIEF SECRETARY 

C}OVERN.MEN"If OFKARNATAKA
R'/AT AT GOVT IIOUSE.' '
PALACE ROAD}. 
EANQALORE 56000":
._      RESPONDENTS

COMMON ._ .0 (B30 RANGA ASSOCIATES FOR THE R3 .3: R4} (BY SRI';..JAGAD1SH MUNDARGI, HCGP FOR R1) {B'Y_SR1.~M..N'~1§lANJUNDA REDY, SR. ADVOCATE FOR VISHNU BHAT. FOR R2) PETITIONS FILED UNDER ARTICLE 226 & OF THE CONSTITU"£'1ON OF INDIA PRAYING TO WQLIASH, THE RESOLUTION N0.05/2009, DATED 05.02.2010 PASSED BY THE BANGALORE DEVELOPMENT " ~-'AUTHORITY AT ANNEXURE D AND THE GOVERNMENT M ORDER BANGALORE DATED 19.04.2010 AT ANNEXURE E; AND ETC.

MISC.w FILED UNDER ARTICLE 226 CONS'I'I'I'U'I'ION OF INDIA R/W SECTION CODE OF CIVIL PROCEDURE PRAYING To DIRECT-Rsr. " » R4 To EVICT THE TENANT WHO IS INDUCTfED"-~IN«.TII_E-~l. ' PROPERTY IN QUESTION w.E.F:-'I§.'*/';Io'..AND_lV'v;I_H1CH IS EEING USED BY THE SAID TENIANTllPFORe..COMMERCIA;L PURPOSE AT ONCE AND TOE. DIRECT',_'v_IfifIIE SAID», RESPONDENTS TO KEEP THE._SA1D- PR};_MI.SE$«-vVA.CAN'I'*..' AND NOT TO Us IT FOR COMIVIERCIAL PURPGSEJILL THE FINAL DISPOSAL OF THESE PE1TTIONS"U-&'"- L_M§ISC§'v§f;' ,CO_I\/II1\IG ON FOR PRELIMINARY HEARING '-IR €13" fGRO'U-R. _ THIS DAY THE COURT MADE THE FOLLOW§NCre.;j_V ' :._td3etiti:oIi}:;_rspV be neighbours of the 3rd respondent _ "by her General Power of Attogrney I~lO'lde'r,'1 the 4th respondent, in a locality residential. The facts that the 3rd re'S.pOn'd'en_t fCo'rIstruCted a residential building over a residential plot allotted by the erstwhile City improifement Trust Board, made an application for Aiehange of land use from residential to Commercial invoking Section l4--A of the Karnataka Town 8: Country M Planning Act, 1961 for short KTCP Act, whence the respondent ---- Bangalore Development Authoritj/'«..,»_l'(~for short 'BDA'} resolved to recommend the use, followed by the decision of the tout' permit the change in land use, tired notyinv Consequent upon the vchiange "1r1__ 3"?» respondent put the residential. "fopcommercial use by letting it outuato after carrying out 0 dispute. The peﬂtioners,'Valle_gRing ,":t7>r5:'-lrespondent put to use a reside'ntiai' activity much prior to the changelof alteration of the building, and, that permitting the change of land use, is illegal} h"av_e presented these petitions, calling in .di1estion.0.vv'th,e~resolution of the BDA and order of the State Government accepting the recommendations of

2. Petition is opposed by ﬁling Statement of " "objections dated 10.08.2010 of the 2nd respondent -- M BDA interalia contending that in response to the 3rd respondent's application for change of land us_e;ja«...spot ins ection was conducted b the Tovrn PIannii'i-9' clarify regarding provisions for adherence to set--backs ir1.._jease dot. "of: the"? existing building. The...afﬁdavitA.tdated2 5..'€E3".'2'GOE;-tisworn to by Respondent No.4 No.3 undertaking; .. pp i 'i "from competent authorities' _ existing structure in coInp1ianc'et.i.i}tri_th: rules of the BDA and BBMPvE'\,vas to the BDA, the property in quesﬁon is ._'1oca'ted'- in a mixed residential zone as A it declared inpthe réiiisded Master Plan, 2015 and that the I siteVAis..'suvrrou.nded by both residential and commercial preper.tiest'.§*A It is stated that, after following the procedure contemplated under Section 14-A of the Act, "resolution dated 10.11.2009, an enquiry was i' V' "directed into Whether Vikas Medical Stores and Medical - M Clinic located on the left side of the property in question had the requisite permission. The matter of cliange-V.of land use was placed before the Board on it was resolved to recommend to the4State Cxoillerrirnenit, it for approval, the change of of question from residential t-.o"'~~comrne_rci--al",(offi'c'e' "i,1se).'"

The sanction of then' Gov'e'1z follllowcdis by the payment of the fee respondents, permission that the 431 responderiftllalo'=ds'e'd-. Senior IAS Officer of the ' » S I by filing Statement of objections4°of_VRe.spon_deiits 3 and 4 contending that the property qnestion belongs to the 4th respondent submits that it is the 3"' respondent) out to M/s. Biosena Life Sciences, a ﬁrm under the lease deed dated 15.08.2006 it vfor office purpose being a permissible use, and that tut presently, is occupied by a firm dealing with Accounting on outsource basis. According to the respondents, there are hundreds of residential properties for commercial activity and that no ~.. occasioned by allowing the tens.-iitf to_.'c.o'nti'nu._e occupation of the property in-.. Vquestiori,».._y_VVas.3 manufacturing activity is 'on. that the change of land with Section 14-A of the Act}" _ 'respondent that the BB1\/[pp to tax on commercial the revised Master Plan, in question is in a mixed residentialuytonewipermitted to be used for commercial It is «further stated that the premises in qu'estivo'n,doe'sy.not require permission under Section 14- A. 'of theniict nevertheless an application is field for chcange' ll of land use. The allegation that the 431 ' resplondent being highly inﬂuential might have prevailed ' V' "over the 21%' respondent not to take any action over the 1:4 representation of the petitioners. is denied. The order impugned, it is said, is justified and does not Call for interference.

4. Learned counsel for the petitioner-, reiterating the avernients set in the contends that the action of . the 3i*ire.spond&nt"to use the residential With'orit effecting alterations, cornpliaritlwithfthef Bye--laws, 2003 of the BBMP for coninjercial i_us'e,.'"i:sjVV--.illegal. Learned Counsel i"i4»A5 of the KTCP Act investing. a permit the change in land use or develo'p1nent"diie._ tolffopographical, cartographical or other errors o1'=VoH1_nission and in the circumstances, to ' contenyd in the absence of reasons to permit the 'Changed use, the recommendation of the BDA and th'eg_order of the State, impugned, are illegal.

5. Per contra, learned counsel for the 3rd and 4th respondents seeks to sustain the order impugned as M being we1l--merited, fully justified and not calling for interference.

6. Sri. Nanjunda Reddy, learned Senior . the respondent RBDA, making _1_fefe_r_enc_e"to"thel"'*ecords""

of the BDA, in particular, to the ;"reco_'n1inendationV'the change of land use, that l'7.pi'o.cc;ciure'V.l' contemplated under over Alan... aliplication for change of land With. To a question whether the recommendation" tor the change in land n,se--. the parameters set--out in Section u"l..»"_~4lu--,z'\V, counsel is unable to an.»siiveVrl;' neVertli€.1__¢Ss~ as candid as he always is submits ' that thVe'reeo'1n_mendations does not animate reasons. A 7.' 14--A categorically states that change in land or development from the Outline Development "ii must be necessitated by, M 10

(i) topographical or cartographical or other errors or omissions;

(ii) Due to failure to fully indicate the plan or changes__ " cful implementation of Development [iii] Circumstances 2 at any particular time by plan.

The states that.

1) public interest;

the char-igesl"'propos'ed should not contravene of of the Act or any other law _igoverning___planning, development or use of land the local planning area; and

3) A proposal for all such changes are published fin one or more daily newspapers, having circulation in the area, inviting objections from the public.

M ll

7. In S.N. Chandrasekhar & Another Vs. State of Karnataka and Others (2006) 3 sec 208, they-kpex Court interpreting the Section l4--A of the _ held thus:--

"34. The Authority; the-ref0:e=::,.' unto itself a wrong question.

therefore, was necessaiy:VV:'to be EDA was whether thel"i11§redients contained in Section 14--A"'cci'§' pthlefi:-ct '4\5\?e,I:'e>l'1'.,1ll'1lled and whether the requ.irerri--ent's".l"of"iiie proviso appencIe4d'jr;;there3to If the same had the --requirements of have not been satislﬁeduBill had been no proper appli.cat,ioVn_'.'4V'oI' as regards the 'requireinents of law, the State and the Planning Authority must be held to have S. themselves in law which would it Vitiaigelthe impugned judgment."

" 3 A bare perusal of the resolution AnenXure--'D' of it th.erl3DA does not animate reasons to permit the change land use from residential to commercial, and hence bi-L not in compliance with Section 14--A of the Act. If that is "so, it is improper for the State Government t'o-,ac:cejpt the recommendation and permit the changecf

9. Suffice it to state, that BDA being the Planning «V"._l!'X'uthorityV,i 1 recommended the a land 'U:S€':ﬁ§ without application of mind as to fall within the para.ineters'Vs=et:out--d" 4--A of the Act, the resolutiofng consequence, the order __ oi' . xi: accepting the recoIriIAnendati'oifi-"permitting the change of land use cannot " ﬂ 44 it alt'), Althmigh arguments are advanced over the »A the Revised Master Plan, 2015 in relation to 'perrnisgsibile land uses in residential (mixed) zone, L disentitling the 31*' respondent from making use of the it entire H building for commercial activity, in the circumstances, there is no necessity to advert to the Jﬂx 13 said arguments, since the challenge is restricted to the change of land use.

11. In the result, the petition is al1owed.g«___The resolution No.5 / 2009 dated 5.2.2010 'of the respondent -- Bangalore Development the order dated 19.04.2010 .;

Government are quashed. The lproceedinlgg rerri-itted'--.,p for consideration afresh fromatfie stage_ after lthempaper publication and to orders 'ioniltliee application filed by the 31" respondentisfor strictiy in accordance Witi.1f-iawtgandin the light of the observations made in "s.pN._ AND ANOTHER Vs. . pp s'rAf1:1'ii;si'oi-f KAR.Nm'xu<A AND OTHERSI. 14'4heV"_31'd respondent is directed to put to use 30% ofresidential building for commercial activity, in theilight of the submission made by the learned counsel for the BDA that the property lies in a it ' (2006) 3 sec 208 M mixed zone, subject to veriﬁcation. The 3rd respondent to file an affidavit specifying the details of t11e'..::e;r;§1ct extent the buiiciing put to use for c0mmercia.1§'_:étCEivit:}f. _ Misc.W.7O8O/201015 dismissed asa"11111€i:je;Vr':.ee.;3a1fy..e:" M' x KS

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