Sri L K Prabakar vs The Union Of India on 24 January, 2011

[Cites 1, Cited by 0]

Karnataka High Court

Sri L K Prabakar vs The Union Of India on 24 January, 2011

Bench: A.S.Bopanna

 1. The§;L}vnE'0n of Vindiia

;
IN THE HIGH COURT OF KARNATAKA AT BANGALQRE
mvrem THIS THE 24?" DAY OF JANUARY 2011

PRESENT

THE i-£ON'BLE MR. 3.5. KHEHAR, CHIEF Jt;s";j1_t1:éﬁ{j.f"j«_fy

AND

THE HONBLE MR. JUsTIcE;A".'s;-«BQr3AI\;N:AV1~   

WRIT PETITION No.10298/2368- = "

BETWEEN:

Sri LK. Prabakar

Son of IZ3.L. Kannan,

Aged about 54 years, _t -     _
Residing at No.3G4, Six CQ_n A~partmen'ts,  ., 
Egipura Main Rovayrj," 't/_ive§<ana'g~au' .P0.sft.,V_ . "
Bangaiore~56O 047)." V    " .V,.§'~¥3'E--TI'TIONER

(By Sri I,a'n"VLév;t_;:v',V A¢X,f;) 
AND:

 ATfee"M?inistrry of Ciy'i'i"'Aviation
» VRa}'iv .Ga.ne€yVhi*-Bhawan

  'Syafr3*a.rj'u_ng 'Ai_r;;o rt

'--Ne--w' Delﬁi-._1i;0O03
Re4pre$,e.nft'e.U" by its Secretary

 The Aivrﬁort Authority Caf India,
 "Rna--§._iuv Gandhi Bhawan
"  Safdarjung Airport

"New Deihi 110003

   ___Represented by its Genera! Manager (NOC)

no

.""'{"he Survey of India
Dehra Dun 248001
Represented by the Surveyor Genera! of India



 _  V _S'r"i. A'n§yan«Jo:seph, Adv. for R-1;

.1.

. The Karnataka Geo--Spatial Data Centre

Sarjapura Road

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Mr; G ov i n d a raga n V

. The Bangalore Devel,

orarnangala 1}: Block
angalore 560034
epreserited by its Director

The State of Karnataka

eoartment of Housing and Urban Development
uiti--Storeyed Building

r. Ambedkar Road

angalore S6000:

eprersented by its Secretary

. The Bangalore Metropolitan RegidnmDevel"o_pn*len_tR«._V 

uthorlty, LRDE Buiiding

li Asker Road

angalore 560052   V _ 
epresented by its Metropoiitan'=€omrnissl'on_er 
o'p.rnentd'Au'thoriyty._

ankev Road  " I   

angaiore 560020 V V ~ 
epresented byits Coi'i'n"niSslo*nyeir V

/s Shriramii5Proo'ei*tie's»ttimitedw

3~4'4/10a 2, izlitviC':-lags'sl,igV8i*? Main,

MV Extension, 'Sad_as.tji"vna~gar,

angaiore 560 080; = V 

ep_resnet"er.l by_l'.t-s \'iice'"'President/Secretary

I  RESPONDENTS

Siri Eiaisavairaj Kareddy, Pri. Government Adv. For R--S;

~. "iv_'ij'sV'i3i.fn§__ Associates for R2;
' .Sri Vy..S. Hegde, Adv. for R»-«1 to R-3;

Sri S--.gG."Pandit, Adv. for R~6;
Sr"i_M'i;I. Aron, Adv. for R-7;
..Srl Ananth Mandagi, senior counsei for R-8)

  I it This Writ Petition is filed under Articies 226 and 227 of
  
 Distance Certificate dated 23.3.2004 issued by the 4"'
«~ resp

Constitution of }india praying to quash the Horizontal

ondent vide Annexiire~«E and to quash the NOC dated

20.8.2004 issued by the 2"" respondent vide Anne><ure--D

et<:.,



 

 :t922_;,' " 

This Writ Petition coming on for orders this day,
CHIEF JUSTICE made the foiiowing.

ORDER

3.5. KHEHAR, C.J. (Ora!) :

The petitioner ciaims that 9 acres 4 gu_'nta~s_:"'-of agricuiturai iand aiongwith 4 guntas of "phat (barren ianci) was purchased by,'£hE'_'i3€§Ei¢):iié.;f'»f<;'M'g,ii§ii'3d%f father in Thubarahaiii viiiage, \/artt:i'!;ir'~'9vhoiszii, South taiuk in 1922. After'i9t_he..V_deathofthe 'p_et'ivtiiio'ner's"ii' grand--father in 1943, the reve,nuVe"vre'Co'rds were, nfziiiitated to enter the names of '''the;- repf_reAs%en,tatives of the petitioner's grandefatheriiiiin ' i99:1-.f:~__"i"he«,r:ontroversy raised in the pertains to the aforesaid land which was'--i,_purchas.ed' petitioner's grand~father in it 2,v»'AM/spviﬂﬁhriram Properties Limited, Respondent no.8 1i.'i&rv'iii~f--i_i'j'i, V"a'p'f;:iiie9:;d""'ior Consent from the Karnataka State 9 . Poiiti'tiori----V:Con'troi Board for putting up a high»-rise apartment «the aforesaid iand, eariier owned by the petitioner's .'<_jra'nci:~father. Dissatisfied with the said venture of "Respondent no.8, the petitioner filed objections thereto.

Additionaiiy, the petitioner filed a writ petition bearing i\io.3403/2008 wherein the petitioner assaiied the very 4 consideration of the aforesaid application for consent filed by Respondent no.8, despite the fact that said application was stated to be still pending consideration. Accordging to the averments made in the instant writ petgiti'7oVn';-fuftdhie. aforesaid writ petition is still pending consideration=.bel'oi*e"_f this Court.

3. Prior to the filing of 'ii.rfiliitPetitieh' *Ngor::3V?i:?j'3'/'2bD8, i' the petitioner, as well as';.__othelr'"'m.ernh"eirs ofﬁhiis"fa'r:niiy filed o.s. No.7/2005 wherein t'he.y'V's'ouigiit a:_:de_'r:.la'rjation of title as absolute owners'off--thei_'AVawgri,:ciuitura"ij_~~_lVa:n'cisV:Vowned by their gra:'id~fathei=? in the opening paragravphii'ofi,.:':vthe:'::?in'st:a'ngt"'ord.e'r';"§ The plaintiffs in the aforesaicl.lsui.t aiso':V:.é§iS_ai.lVeAdllthiehsale deed executed by one Arnbarish R'eiridy._i_nAA'--res~p1ect of the same land dated al;egihg~~-~ti'1at, the aforesaid saie deed was piaintiffs also assailed the subsequent coinleeiohgenes dated 26.3.1999 and 23.10.2003 which be'en":obtained by subsequent owners of the aforestated "'-agr_icLi_'ttirai iands, as unsustainabie. A prayer for the grant ofﬁa permanent injunction was also sought, against other authorities including the Bangalore Metropolitan Regionai Development Authority and the Bangalore Development 2' i~ques'ti'on:,_,*€in «.126. 1 2'0 Authority from granting any "No Objection Certificate" to the subsequent owners. It is riot a matter of dispute, that the aforesaid suit was dismissed on 22.4.2006 by the I Additionai Civil Judge, Bangalore Rurai District, Bangalore. An appeal preferred against the order passed by Court was also dismissed on 23.1.2007 by Judge, Fast Track Court--Ii, Bangiaiore controversy raised in the civii suit filled his other famiiy members, is to be now "p.en'diinjg in " 2 this Court as RFA No.15-#32/200,7-r'.28-_

4. When petitioner ,:'ca?m,e V-tci.,.x'V"i'<now, that the Bangaiore iii-u__tl1.ovri'tyshadisanctioned buiiding plans --i--l-fiesponidventi no.8, ailowing him permission toconstruct,alresidentiai complex on the land in ""'\!1 04, he decided to chaiienge the same petitioner, the same was in clear vioiation v€_'ilc"'i':<'..:}.V.\«'ii;:. In this behalf, it is sought to be pointed that:. the sanction pian approved by the Bangaiore d§.'eve.i'o«pment Authority ailows Respondent no.8 to construct basement floor, a ground floor and nine upper floors. u,f'The aforesaid sanction authorises the Respondent no.8 to construct a high--rise buiiding up to the height of 34.85 6 meters (116.16 feet) above ground level. To authenticate the aforesald factual position, the petitioner has placed the pian sanction letter dated 16.11.2004 and the commencement certificate letter dated 10.8.2005 issued by the Bangalore Development Authority, on the record"of[:'--this case as Annexures "B" and "C" respectively.

5. The sole contention advanced. on Vol'-Tthveig '3- petitioner, while assailing the sanction granted Bangalore Development Auth'o.r:i't=,r is,' t..hat.theiﬂplroplosedit building for which Revspondeint=.no.V8».._ﬁhastAbeen'; granted clearance, is,..n.ot thevvlbangalore Airport, but the sarne~_is' and take-off funnel of Bangalore _/'«irAp,'ori:.«._,f'Alt'i«1.o'uvg_h-- it is acknowledged that a "No Objection Certifica-te""'.Vhas"b.e'en granted to Respondent no.8, by "Airport of Endia (Respondent no.2 herein), submitted, that if aforesaid "No Objection been granted to Respondent rid.8 by V . the ""Airp»'ort"A;uthority of India, the 8angalore Development A8°"i44"'V..,Ac:tth.orlty.would not have sanctioned the building plan .8 sub'm'i'tted by Respondent no.8, allowing him to construct a 8 "h'Egh~rise residential complex, up to a height of 34.85 meters above ground level, on the land in question. it is also the assertion of the petitioner, that the sole 7' consideration which had weighed with the Airport Authority of India, while granting the aforesaid "No Objection Certificate" to Respondent no.8 was, that the "Hori--z"ontal Distance Certificate" issued to Respondent 23.3.2004, by a Centre of the Survey of Bangaiore) affirming that the hori2o"ntal« it3et'vv§eexn". the proposed buildings and the Bangaiore kilometers. It is however'"~»sLit)mitted.,_V if said V certificate issued by that gigrvey"'of'"i_.1jli'sl"ia,_is inco'rre"ct, as the actual distance between and the Bangalore In order to authenticate'Hthe_:ﬂ"iVnistanti'j'.-:s'u'i':>ri}iiis's.i:on, the petitioner has placedfaim"Diis'tancéfVif'Ce'rtificate_""issued by M/s Guideline Surveys,-.a' private'i'»Mappi:n'g.18¢ Surveying Consuitant on the record of this case';as'=Ann'exure--"F". It wouid be relevant "V.t,o at the *** instant juncture, that the principai in the instant writ petition is, whether th'e.__4"distvanc:e_'ilbetween the proposed buiidings and the "V..,Bangai'Qvr:e Airport is 6 kilometers, or is merely 3.4 "'"iVi;ivi.o_nn"eters, as is the assertion at the hands of the petitioner.

6. Based on the "Distance Certificate" issued by M/s Guideline Surveys referred to in the foregoing paragraph, 9 departments. By this you are only presenting wrong picture and are misieading them.

7. I hope, the clarifications stated as above wiiiciear the misconceptions regarding the issue of "Distance Certificate" referred by you. "

A perusai of the text of the aforesaid ietter'~..Vre'p:ifed_uce'di above reveais, that the distance of India was from the "centre'_' of"the..Airpori;,.A'"whe'reas,V"~~r the distance caicuiated by th"e:"petitioneriwasVzfrioim the «runway end" of the Airport. withvthevvvresponse received by him; the two further representationééd':i'§ié'ted::A__ 3.11.2007 to Respondenti. reiterating the stance petitioner in contesting the "Horizonxtaii (Anne><ure--E) issued by Resp0Vndenti"noV;3w_toA'=Res'pondent no.8. Yet again, .---.,.,Resi;§o'i'id:ent~i.nno.3i"dre'p'iVied to the petitioner through a

8.1.2008 (Annexure-i<3). The entire te>'<t,__:of An\ni:eVx'are--K3, on which emphatic reiiance was if'-..«,_"vpiaced 'b_y°i-the learned counsei for the petitioner during the "'c'oarse}of hearing, is being reproduced hereunder:

"Piease refer your application dated 3.11.2007 addressed to the undersigned on the above subiect. It is to inform you that the matter was carefiiiiy considered by the concerned ministry. The Director, Karnataka GDC, Eiangaiore is being asked to modify the distance certificate issued earlier to M/s Shriram i 0 Properties Ltd. in the subject matter. Since the variation is rnarginai, hence as per ministry's decision, the case has been cioseci. This is for your information, piease."

7. Thereafter the petitioner strenuousiy pressing its ciaim before the Airport Authoritywof "

weii, by addressing sirniiar represen'ta*tions., to.'the_ Aivrpori,' Authority of India. The contentionQoi'---th'e that the "Height Clearance", C5bj.ection. C-erti'fic:ate'' '' ' issued to respondent no.5 shoruid:tibia'bcaynceiéiieci-.i Esiince the petitioner received no sinc'e:,.v"'Respondent no.8 commenced co.n3t:ructic;nV'i'and in question, the petitioner'appr'o"aI'g_h:e:¢:,:.r,his bps,-" the instant writ Detition; """ .

8. Asanotviced "i'i.ere:i"'nabove, the controversy raised by the p§e't'itioner is, that the buiiding sought to be constru_cite.d.,;onV the land in question, wouid be unsafe for itiiigvh-tn.ope:r'atio'n's"'at the Bangalore Airport. It is apparent, V . that""the*-.V:re'piy to the issues canvassed at the hands of the .3,/"'1.,,'_:petiiti_one"r., submitted to this Court on behalf of the Airport .' }5x.uth'ority of India (Respondent no.2 herein) is most "'i*nateriai for the determination of the present controversy. Statements of objections have separateiy been filed by different respondents in the instant writ petition. A E3 technicalities for determining the safe distance/height in its statement of objections, by asserting as under:

"Mode of caiculation of maximum permissible height under DARA Circuiar

9. Under the DARA Circular, there are differentgtcltilteria for determining the maximum permissibie he_ig'ht"-for construction of buildings within the 20 kms r_a'di'uSj~o_f th_..e< airport. The criteria are based on divisionViof'-ai'e'a'5 " )_ surrounding the airport into different _avre.afs., Htiaving' "

regard to the facts of this case; the following cri--teri"a would be applicable:

i) Approach Surface __

ii) Inner Horizontai Surface 'Area ?"*9, 5 Approach Surface:

10. The Approach surface is-..measur.ecl.from the starting point of the y.runway.....y_'Th'a_t R.,gpo'i'n.t "the runway is colloquially .re--ferr_ed izto ,asV..:Ru)nw'_a.y T hreshoid. In the entire sur_round'i'ln_g _area_ of the "runway threshold, any building that_'4-co'rr.e__s up-~._wou:'tl 'ii.a=x(e' to be of a particuiar dimension», 'The tabie..indicat'ing the dimensions is shown beiow':""~ . ' '*2.

o1MENs'Io.Ns A_:iVyf.D*s(Lo«.r#l'Es OF APPROACH suREAcEs:

R'Lii\iW'A.Y INSTRUMENT Noi\i--1NstRUMENT RUNWAY MWWRUNVJAY 0' ( *cob(E.'''~i,,engt'h RADIUS HEIGHT RADIUS HEIGHT M;lﬁ;Q".mMM;§§ijm§:EWgr) (METRE) (METRE) (METRE) (METRE) 1-~ «£800 M§§00 45 2000 45 2 800 to 3500 45 2500 45 " MJ___ 0 1200 to 4000 45 4000 45 gig; < 1800 mm 4 1800 4000 45 4000 45 and above E4

11. Applying the criteria to the facts of this case, it can been seen that if the length of the runway is more than 1800 meters (which is applicable to the airport in this case), then serial No.4 would be applicable. in the case of HAL Airport, it is an instrument runway. Hence the second column would be applicable. In the instant case, the distance from the runway is 355 kms. Applying the criteria, for the first 3000 meters, the slope (i.ve';'--.,the height of the building) permissible is 2%. the maximum height for first 3000 meters is 60 meters;r-'jFo'r,_ the next 550 meters, it is 2.5% which amou~i'i--ts to feet. So the total permissible height would. b_ei-73.75 feet.

permissible height, the Airport'uA*l_.l:t'ilority 'o.tl'htli-a iii: its reply re~affirmed, that the heig.ht c_.~f.'t'hte':'bLii»lid~.i,ng proposed to be constructed by Respondent'i'no.iS'_,'V' within the norms specified. Tiieaitporty AuitiiaeyjistMia, then took upon itself the resporihisibiliity»tjotresgp-o.rid'é'ijo'the contentions of the petitionerpandv to that»-- the averments made in the statennerit of objections filed on behalf of Respondent no.2 ate.,beEnigi.extzriac'ted hereunder:

._ ".._:"'ReVE"_v.Contentions of the Fetitioner "l'h=e first contention of the petitioner is that the . horizontal distance certification is incorrect and that 'A the 4"' Respondent ought to have estimated the ._ "distance from the end of the runway and not from the 'A centre of the airport. It is submitted that the distance between the ARP and the RT is 2.25 Kms. Therefore, the 2" Respondent has deducted the distance of 2.25 Kms from the distance certification while calculating the permissibie height. It is also pertinent to note the 2" Respondent does not depend entirety on the horizontal distance certification of the 4"' Respondent

10. Based on the pre.scribe4d---A'mode off.:calcul'ati'ng'*i., é®*:»¢"t/"V:%§(?'°"\ii 1 'Jr for the purpose of determining the horizontal distance. The iongitudes and latitutudes provided in the certificate of the 4"' Respondent is cross~verified with that of BSl\li.'s certificate and the distance is mapped accordingly. As per the caicuiationsfofg the 2"" Respondent which is evident from the c_aicVi'ilat~i.on sheet at Annexure R-4, the distance froi'n...t_heV AiRVP"is taken as 5.75 kins and distance from the----i§un"vv'Ei'y._peir:.d' l.

is taken as 3.3 kms. In light of thegabjove, the contention of the Petitioner that the."Z"'j~--fRes'p.ondent""

has reiied on the certificateof the g_4.§" Respo_nden't is erroneous. In such circumstainces,'=,all "the,"'iothi;r contentions of the Petitioner'-_regardi.ng . the Respondents action fail' f-lat an'ci,_it' is evidentthat the._> NOC is issued in accordan.ce..with iaw;

11. Despite facts narrated hereinabove, thesole co,ntéri:t.io'n.iVAaf;'the..'h:a.nd'Vs of the learned counsel for distance between the by Respondent no.8 and i3aAngla_iQ_ijeVA9iAirplort' isj the mere 3.4 kilometers, whereas th~e4__'i"li\iotiertificate" has been granted to Respondent no."8.,ﬂv_under the belief, that the aforesaid distance'is.V64V.i<~i,lometers. The entire sequence of events as ha.s"l.--beeVni'éVn_~a__rrated hereinabove was painstakingly brought . to at the hands of the iearned counsel for the V' ' A --.rival pa rties.

12. We have given our thoughtfui consideration to élfthe submissions acivanced by the rival parties during the course of hearing. We are astounded at the persistence of 16 the petitioner to press the instant writ petition, inspite of the pleadings filed on behalf of the respondents. In fact we are of the view, that the instant writ petition oughtfnot to have been filed at ail in view of the fact of the pet~it'i,one_r".had., been clearly informed by the Survey of 1hd_ia:','--..thr.ofbgie communication dated 3.11.2006 extract whereof has been reproduced.An'e.reina,bov'e) that reference point for measuringllvthjeidigstarice issue in hand, is from the aridnot from the "runway end" of the Be.iore':v>»a.pproaching this Court, the petiti'oh§§'r' shitﬂuid obtained material to demonstrate;,4""'fitwhat basis of measuring the distancevlldlepietfed addressed by the Survey of indie was incorrect. Be that as it may, _ .h_aving" a:Vpp.roac"neVd': this Court, the petitioner was o.f~.th'e,,Adetailéd"'statement of objections filed by the isirpuolrtr India (respondent No.2), in response to the made in the writ petition, wherein, the l"-.-e.__"Airportﬁtiithority of India had painstakingly provided detaiis regulations issued by the Directorate of Air Routes Aerodromes, under Section~9A of the Aircrafts Act cleariy depicting, that the aerodrome reference point, which is liable to be taken into consideration for determining the 17 horizontai distance between proposed buildings and Airports, is the "geometric centre" of the runway, and not the "runway end". Reference has separately been made to the mode of caiculating the maximum permissmieér under the regulations framed by the Directorateof Routes and Aerodromes, yet again i'con_c'l'=_idingw,_':'t.h~a:t"tAhe' building plan sanctioned in favour of 'Respondenvt 'nof18."by"g the Bangalore Deveiopment the aforestated norms. cont,e'n.tions'raised at the hands of the petitioner?':'ha_ve'."_'aieso.-'i..bee,_nz_'separately and exciusively ':.f5es'PiAi::t:'1e'i.V'"th.e.:V.7aforesaid, without repudiating corjtained in the statement of objejitioinstr of..'l2"esVpondent no.2, and even withoutvfilirig an'yV,V_rej:_oinde«r"ai°i*'idavit, the instant writ petition has been argued at'.'--so'inei"length on behaif of the petitioner. .--_.,iNe :5-atisfied, 'thatthe plea raised by the petitioner was coinprehensive,.l:y'_j.refuted in the statement of objections filed onbehaif. ofﬁespondent no.2, and there was no basis for T"-..«,_'V-pressingthe petition any further before this Court, without "'r_epudAi,atiiig, the pieadings filed on behalf of Respondent Without doing so, the petitioner for reasons best known to him, has strenuousiy pressed his claim before this Court. We are of the view, that in View of the 18 Lznrefuted position depicted in the statement of objections fiied on behaif of Respondent no.2, aii that has been done at the hands of the petitioner, is to waste preciouscourt tirne. We are afraid that this attitude at iitigants is whoiiy unacceptable, and needMs__'to,:.been-ciurbeti__v' with a strong hand, since preciousAbVCourtttirhe.:_.c'a.n.not'u:ioe aiiowed to be wasted, without anyvicause or justiyfiicatio-n;"v, it

13. In view of the~..,abQv'e,_ in mind the averrnents made in thesta',te'rnen«tVCii.:'V.oibj~ections filed on behaif of Resp.o'ntie'nt i.satEstied that there is absoiuteiy no V'p:eti'tion and the same is iiabie accordingiy. For having wasted the ciear and unrefuted position dep'i'ct_ed~.in t'he°statement of objections, we are 'sh'"vsa'tisiii"edi..,'that,the 'costsquantified as Rs.2S,OO0/~ shouid be petitioner. Ordered accordingiy. The afoiiesiaid,.cos:tsV'shaii be deposited by the petitioner, with the

7..«_'*AdvocateVs?' Weifare Fund, managed and maintained by the "'ii§{_arna't'aka State Bar Council, within three months from the 'date of disposai of the instant writ petition, and the receipt thereof shaii be piaced on the record of this case, within the time specified hereinabove, faiiing which, the Registry of i'?

this Court is directed to re--iist this case for motion hearing, for the recovery of the aforesaid costs. Disposed of accordéngiy.

gsisf "I_.n'o_e.x:iAY/'fN_A *

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