Karnataka High Court
Smt. Sindhu K M vs Bruhat Bangalore Mahanagara Palike on 9 June, 2023
Author: R Devdas
Bench: R Devdas
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NC: 2023:KHC:19854
WP No. 9508 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 9508 OF 2023 (LB-BMP)
BETWEEN:
SMT. SINDHU K M
AGED ABOUT 31 YEARS
D/O K.N. MOHAN KUMAR,
W/O SRI. RAJKUMAR
RESIDING AT NO.598, A BLOCK
BYATARAYANAPURA, SAHAKARANAGAR
BANGALORE -560 092.
...PETITIONER
(BY SRI. LAKAMAPURMATH CHIDANANDAYYA., ADVOCATE)
AND:
1. BRUHAT BANGALORE MAHANAGARA PALIKE
REPRESENTED BY ITS
Digitally signed CHIEF COMMISSIONER
by
DHARMALINGAM N.R.SQUARE,
Location: HIGH BANGALORE 560 002.
COURT OF
KARNATAKA
2. JOINT DIRECTOR (TOWN PLANNING)
BHRUHAT BANGALORE MAHANAGARA
PALIKE, N.R.SQUARE
BANGALORE 560 002
3. ASSISTANT DIRECTOR (TOWN PLANNING)
BRUHAT BANGALORE MAHANAGARA
PALIKE, N.R.SQUARE
BANGALORE 560 002
...RESPONDENTS
(BY SRI. SATYANAND B S., ADVOCATE)
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NC: 2023:KHC:19854
WP No. 9508 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITTUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS WHICH ULTIMATELY RESULTED IN ISSUING
ENDORSEMENT VIDE ANNEXURE-A DTD 03/04/2023 BEARING
SA.NE.NA.YO-PR/07/23-24 ISSUED BY R-3 REJECTING THE
APPLICATION OF THE PETITIONER FOR SANCTION OF LICENCE
PLAN SEEKING GRANT OF LICENCE PLAN OF THE SCHEDULE
PROPERTY AND ETC.
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
R.DEVDAS J., (ORAL):
The petitioner who is the owner of an immovable property bearing No.2334/3 'C' Block formed in a residential layout is aggrieved by the impugned endorsement dated 03.04.2023, issued by the third respondent-Assistant Director (Town Planning) Bruhat Bengaluru Mahanagara Palike, Bengaluru, (hereinafter referred to as 'BBMP', for short) declining to sanction the plan submitted by the petitioner to put up a residential building.
2. Learned Counsel for the petitioner submits the layout was formed by the Ministry of Communications Employee's Co-operative Housing Society Ltd., in terms of -3- NC: 2023:KHC:19854 WP No. 9508 of 2023 the layout plan sanctioned way back in the year 1998. The sites formed in the layout were allotted to the members of the society and the petitioner's father purchased the property under a registered sale deed dated 04.08.2022. The petitioner's father executed a gift deed dated 16.09.2022 and conveyed the property to the petitioner. The khatha has been registered in the office of the respondent-BBMP. Thereafter, the petitioner made an application along with a plan for approval for putting up a residential building. The third respondent issued the impugned endorsement rejecting the application on the ground that the property in question abuts a drain which, according to the information furnished by the Executive Engineer of the Storm Water Drain Department, is a tertiary drain and in view of the provisions contained in the Revised Master Plan-2015 (RMP-2015), made by the Planning Authority, a distance of 15 meters from the edge of the drain has to be maintained as 'buffer zone' and no buildings shall be permitted to come up within buffer zone. According to the third respondent, the 15 meters buffer -4- NC: 2023:KHC:19854 WP No. 9508 of 2023 that is required to be measured from the edge of the drain would encompasses 80% of the site and therefore, in the remaining extent of 20%, the residential building cannot be put up. Therefore, the application of the petitioner was rejected.
3. Learned Counsel for the petitioner submits the issue as to whether the requirement of leaving a buffer zone of 15 meters in respect of the drains and layouts that were formed much prior to RMP-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 -5- NC: 2023:KHC:19854 WP No. 9508 of 2023 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 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."-6-
NC: 2023:KHC:19854 WP No. 9508 of 2023
4. 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 the storm water drains and therefore, the authorities are required to comply with the said requirements as provided in the RMP-2015.
5. During the course of these proceedings, learned Counsel for the respondent-BBMP was called upon to furnish information as to when the drain in question was formed and what information did the officer have while rejecting the application. Today, the learned Counsel for the respondent-BBMP has filed a memo along with the modified layout plan dated 20.10.2012 and copies of the orders passed in W.P.No.13371/2011 dated 12.12.2011 and photographs of the property in question. When it was pointedly asked as to what information is available with -7- NC: 2023:KHC:19854 WP No. 9508 of 2023 the respondents regarding the formation of the drain; whether the nala that is shown in the sanctioned layout plan was an already existing nala or it was formed in terms of the approved layout plan, no information is available with the respondents. This Court, in the decision of Shri. Pavanjeet Singh Sandhu IPS (supra) has held that if the layouts are formed prior to finalization of RMP-2015, the requirement of setting apart buffer zone as contemplated in the Zonal Regulations of RMP-2015 in such layouts, is not applicable.
6. In that view of the matter, it has to be accepted that the layout in question was initially sanctioned in the year 1988, although a modified layout plan was subsequently sanctioned on 20.10.2012. That being the position, when no material information was available with the third respondent as to when the drain abutting the petitioner's property was formed and whether the drain existed even prior to the formation of the layout or was subsequently formed, the third respondent could not have -8- NC: 2023:KHC:19854 WP No. 9508 of 2023 simply rejected the application on surmises and conjunctures. When this Court made a declaration of law in its decision in the case of Shri. Pavanjeet Singh Sandhu IPS, as noticed hereinabove, the officers of the respondent-BBMP are bound by the said decision.
7. 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.
8. Consequently, the writ petition is allowed. The impugned endorsement dated 03.04.2023 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 -9- NC: 2023:KHC:19854 WP No. 9508 of 2023 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 DL