Karnataka High Court
Sri Parvar Jain vs The Commissioner on 19 July, 2023
Author: R Devdas
Bench: R Devdas
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NC: 2023:KHC:25129
WP No. 9077 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 9077 OF 2023 (LB-BMP)
BETWEEN:
1. SRI PARVAR JAIN
SON OF SRI. RAJIV JAIN,
AGED ABOUT 28 YEARS,
RESIDING AT
NO.58-33, VAIBHAV APARTMENT,
GANDHI BAZAR MAIN ROAD,
OPPOSITE TO RAMAKRISHNA AASHRAM,
BASAVANAGUDI,
BENGALURU -560004.
REPRESENTED BY HIS GPA HOLDER,
SMT. ARATI JAIN
WIFE OF SRI. RAJIV JAIN,
Digitally signed
by JUANITA AGED ABOUT 58 YEAR,S
THEJESWINI NO.58-33, VAIBHAV APARTMENT,
Location: HIGH GANDHI BAZAR MAIN ROAD,
COURT OF OPPOSITE TO RAMAKRISHNA AASHRAM,
KARNATAKA
BASAVANAGUDI,
BENGALURU-560004.
...PETITIONER
(BY SRI. T N VISWANATHA., ADVOCATE)
AND:
1. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE,
BENGALURU-560002.
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NC: 2023:KHC:25129
WP No. 9077 of 2023
2. THE JOINT DIRECTOR,
(TOWN PLANNING)
BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE, BENGALURU-560002.
3. THE ASSISTANT DIRECTOR
TOWN PLANNING (SOUTH)
COMMERCIAL COMPLEX BUILDING,
2ND BLOCK, 9TH MAIN ROAD,
9TH CROSS, BENGALURU-560011.
...RESPONDENTS
(BY SRI. KARTHIKEYAN B S., ADVOCATE FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE
ENDORSEMENT DTD 30.01.2023 BEARING NO.AD
.COM/SUT/0620/22-23 ISSUED BY THE R-3 AT ANNX-A AND
DIRECTING THE RESPONDENT TO CONSIDER THE ONLINE
APPLICATION DTD 11.08.2022 AND DOCUMENTS ANNEXED THERETO
AT ANNX-E AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
R.DEVDAS J., (ORAL):
Learned counsel for the petitioner submits that the petitioner is aggrieved of the impugned communication dated 30.01.2023 at Annexure-A, wherein it was directed that the petitioner will have to leave a buffer zone of 25 mtrs. from the centre of the Storm Water Drain abutting the property in question.-3-
NC: 2023:KHC:25129 WP No. 9077 of 2023
2. Learned counsel for the petitioner submits that the issue as to whether the requirement of leaving a buffer zone in terms of the RMP-2015 and the Zonal Regulations in the layout formed prior to the year 2015, is no more res integra, in view of a decision of this Court in the case of Shri. Pavanjeet Singh Sandhu IPS, Vs. Bruhat Bangalore Mahanagara Palike and Others, in W.P.No.15298/2020, dated 06.04.2021. Learned Counsel submits that this Court has considered elaborately the decision of the National Green Tribunal, Principal Bench, New Delhi, in the case of Forward Foundation and others Vs. State of Karnataka and Others, and the general directions given by the Tribunal to set apart 15 meters as buffer zone from the Rajakaluves/storm water drains. The decision of this Court on the contentious issue is summarized in paragraph No.7, which is extracted as follows:
"7. The position of law is required to be clarified since several such complaints/petitions are being filed by the citizens of this city who have been declined approval of plan on the ground that -4- NC: 2023:KHC:25129 WP No. 9077 of 2023 certain directions are given by the NGT. In view of the orders passed by the Hon'ble Supreme Court of India setting aside the directions given by the NGT, what remains is the implementation of the Zonal Regulations, RMP-2015 and subsequent revised master plan, if any has been approved and newly notified. As noticed earlier, the requirement of having a buffer zone of 50 meters, 25 meters and 15 meters should be made applicable only to Drains newly identified while finalizing the RMP-2015 and at any rate it should not be applicable to the drains that were already in existence prior to finalization of RMP- 2015. If layouts are formed prior to finalization of RMP-2015, the requirement of setting apart buffer zone as contemplated in the zonal regulation of RMP-2015 is not applicable."
3. It was noticed that the directions given by the National Green Tribunal on 04.05.2016 was set aside by the Hon'ble Supreme Court by its order dated 05.03.2019. However, in terms of the Zonal Regulations of the RMP- 2015, it is mandated that a buffer zone of 50 meters, 25 meters and 15 meters should be reserved by the side of -5- NC: 2023:KHC:25129 WP No. 9077 of 2023 the storm water drains and therefore, the authorities are required to comply with the said requirements as provided in the RMP-2015.
4. Having regard to the said legal position, this Court finds that the layout was formed much prior to the year 1979. The petitioner's grandfather Sri Rajiv Jain had purchased the property in question under a registered sale deed dated 24.10.1979. The petitioner acquired the property under a registered gift deed dated 29.01.2020. Therefore, it is clear from the material available on record that the layout in which the property in question is situated was formed much prior to the year 1979 and therefore the requirement of leaving the buffer zone next to the storm water drain would not arise in the present context.
5. For the reasons stated above, this Court is convinced that the rejection of the application filed by the petitioner at the hands of the third respondent cannot be sustained.
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NC: 2023:KHC:25129 WP No. 9077 of 2023
6. Consequently, the writ petition is allowed. The impugned endorsement dated 30.01.2023 at Annexure-A, issued by the third respondent is hereby quashed and set aside. The respondent-BBMP authorities are directed to process the application filed by the petitioner. However, since the plan submitted by the petitioner online being rejected, the petitioner is required to submit a fresh proposal for sanction of plan online. As and when the petitioner files the application, the respondent authorities shall consider the same in the light of the orders passed by this Court and process the application as expeditiously as possible and at any rate within a period of six weeks, if all other requirements of law are fulfilled by the petitioner without going into the question of buffer zone.
Ordered accordingly.
Sd/-
JUDGE KLY