Karnataka High Court
Sri. H. Veeraiah vs The Commissioner on 9 November, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2023:KHC:40339
WP No. 20926 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.20926 OF 2010 (LB-BMP)
BETWEEN:
1. SRI. H. VEERAIAH
S/O MANCHEGOWDA
DECEASED BY HIS LR.
1(a) SRI. M.V. KESHAVMURTHY
S/O H. VEERAIAH
AGED ABOUT 61 YEARS
Digitally signed by
NARAYANAPPA R/AT. NO.634, 19TH MAIN ROAD
LAKSHMAMMA
Location: HIGH
24TH CROSS, BANASHANKARI 2ND STAGE
COURT OF
KARNATAKA
BANGALORE-560070.
2. DR. M.V. RAJESHWARI
D/O H. VEERAIAH
AGED ABOUT 42 YEARS
R/AT NO.634, 19TH MAIN ROAD
24TH CROSS, BANASHANKARI II STAGE,
BANGALORE-560070.
...PETITIONERS
(BY SRI. S. MAHESH, ADVOCATE AND
SRI. S.R. HEGDE HUDLAMANE, ADVOCATE)
AND:
1. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
N R SQUARE, BANGALORE-560002.
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NC: 2023:KHC:40339
WP No. 20926 of 2010
2. THE ENGINEER IN CHIEF
BRUHAT BANGALORE MAHANAGARA PALIKE
N R SQUARE, BANGALORE-560002.
3. THE CHIEF ENGINEER(SOUTH)
BRUHAT BANGALORE MAHANAGARA PALIKE
2ND BLOCK, JAYANAGAR
BANGALORE-560011.
4. THE ASSISTANT DIRECTOR OF
TOWN PLANNING (SOUTH)
BRUHAT BANGALORE MAHANAGARA PALIKE
2ND BLOCK, JAYANAGAR
BANGALORE-560011.
5. THE DEPUTY COMMISSIONER(SOUTH)
BRUHAT BANGALORE MAHANAGARA PALIKE
2ND BLOCK, JAYANAGAR
BANGALORE-560011.
6. THE INSPECTOR OF GENERAL OF POLICE
TASK FORCE
BRUHAT BANGALORE MAHANAGARA PALIKE
N R SQUARE, BANGALORE-560002.
7. M.G. CHETHAN
MAJOR
S/O B. GANGANNA.
8. B. GANGANNA
MAJOR
S/O BYRE GOWDA
WORKING AS JOINT CONTROLLER OF FINANCE
ACHIEF ACCOUNTS OFFICER
BRUHAT BANGALORE MAHANAGARA PALIKE
(PRESENTLY UNDER SUSPENSION FACING
LOKAUYKTHA ENQUIRY).
BOTH THE RESPONDENT NOS.7 & 8 ARE
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NC: 2023:KHC:40339
WP No. 20926 of 2010
R/AT NO. 153, 10TH MAIN
BCC LAYOUT, 2ND STAGE
BANGALROE-560040.
9. THE JOINT CONTROLLR OF FINANCE &
CHIEF ACOUNTS OFFICER
BRUHAT BANGALORE MAHANAGARA PALIKE
N R SQUARE, BANGALORE-560002.
10. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
BANGALORE.
11. THE ASSISTANT REVENUE OFFICER
BRUHAT BANGALORE MAHANAGARA PALIKE
PADMANABHANAGAR ZONE
BANGALORE.
...RESPONDENTS
(BY SRI. B.V. KRISHNA, ADVOCATE AND
SMT. NAMITHA MAHESH, ADVOCATE FOR
SRI. S.N. PRASHANTH CHANDRA, ADVOCATE FOR
R1 TO R6, R9 & R11
SRI. C.R. GOPALASWAMY, SR. ADVOCATE FOR
SRI. K.M. SOMASHEKARA, ADVOCATE FOR R7 & R8
SRI. M.V. CHARATI, ADVOCATE FOR R10)
THIS W.P. IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT
THE SANCTIONED PLAN DATED 20.06.2009 ISSUED BY
THE RESPONDENT NO.4 UNDER VALID UPTO 19.06.2011,
VIDE ANNEXURE K, ANNEXED TO THE WRIT PETITION, TO
BE ILLEGAL AND INOPERATIVE AND CONTRARY TO LAW.
QUASH THE SANCTIONED PLAN DATED 20.06.2009
ISSUED BY THE RESPONDENT NO.4 UNDER VALID UPTO
19.06.2011 VIDE ANNEXURE-K IN FAVOUR OF
RESPONDENT NO.7 & ETC.
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NC: 2023:KHC:40339
WP No. 20926 of 2010
THIS WRIT PETITION COMING ON FOR FURTHER
HEARING AND HAVING BEEN RESERVED FOR ORDERS ON
05.09.2023, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
i) Issue a writ in nature of certiorari or any other writ or order or orders or directions declaring that the sanctioned plan dated 20.06.2009 issued by the respondent No.4 under L.P. No.Ad.C(S) 2P-62/09-10 valid upto 19.06.2011, vide Annexure-K, annexed to the writ petition, to be illegal and inoperative and contrary to law.
ii) To quash the sanctioned plan dated 20.06.2009 issued by the respondent No.4 under L.P. No.Ad.C(S) 2P-62/09-10 valid upto 19.06.2011 vide Annexure-K in favour of Respondent No.7.
iii) To issue a writ in the nature of writ of mandamus or any other writ or order or direction directing the Respondent Nos. 1 to 6 to take action/to remove the foundation and to demolish the pillars or columns and other structures under construction on site No.633, 19th main, BSK II stage, Bangalore, which has been in possession and enjoyment of respondent No.7.
iv) To issue an order or direction directing the respondent Nos.7 and 8 to fill up the site which is dug on the site No.633 and make the place plot to the road level.
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NC: 2023:KHC:40339 WP No. 20926 of 2010
v) Direct the respondent No.7 to make good the loss suffered by the petitioners by reconstructing the compound wall of the petitioner.
vi) Issue a writ of mandamus to the respondent Nos. 1 to 5 to retain the site No.633 situated at 19th main, BSK II Stage, Bangalore as residential site instead of commercial site as was stood in the earlier Comprehensive Development Plan prior to 25.06.2007 vide Annexure J.
vii) Issue any other appropriate writ or order or direction to the respondents deemed fit in the circumstances of the case including payment of cost in the interest of justice and equity."
2. Petitioner No.2 is stated to be the owner, in possession of the property bearing No. 634 situated at No.19, main road, 24th cross, Banashankari II Stage, Bangalore, having acquired the same under registered sale deed dated 25.01.1996 and thereafter constructed a residential building and she is living with her family members since last 13 years (at the time of filing of the Petition) including petitioner No.1 who is her father. Petitioner No.1 is -6- NC: 2023:KHC:40339 WP No. 20926 of 2010 stated to be a retired government servant, petitioner No.2 is a doctor by profession.
3. It is stated that City Improvement Trust Board [CITB] had formed the aforesaid layout viz., Banashankari II Stage. It is further stated that site No.633 is located on the southern side of the petitioners' property was initially allotted to one Ramegowda and a lease-cum-sale agreement was executed on 24.06.1987 which was followed by a registered sale deed dated 8.11.2002.
4. At the time of formation of the layout, the erstwhile CITB also constructed a commercial complex between 19th and 21st Main Road in the interest of General Public which has been transferred to the BDA and is now known as BDA complex. It is contended that in order to maintain peace and quiet between such commercial complex and the site of the petitioners and others, a small park has been formed so as to retain the residential character of the -7- NC: 2023:KHC:40339 WP No. 20926 of 2010 petitioners' property and around it. In the year 2002, respondent No.8 and his wife are stated to have purchased site No.633 on 16.12.2002, but it is alleged that the name of the father-in-law of respondent No.8 and his wife, mother-in-law of respondent No.8 were shown as purchasers and subsequently, the said property was gifted to respondent No.7 under a gift deed dated 20.10.2004.
5. Respondent No.7 being son of respondent No.8, respondent No.7 in December 2004 started excavating the property to put up a commercial complex, while doing so, damaged the property of the petitioner requiring the petitioners to expend huge amounts of money for rectification. The petitioners in order to take action against respondent No.7 had visited the offices of BBMP seeking a copy of the sanction plan and other documents, which despite follow up were not issued and the matter was dodged by the Officers of BBMP for the reason that -8- NC: 2023:KHC:40339 WP No. 20926 of 2010 respondent No.8 was a high ranking official in the BBMP. The petitioners also submitted various complaints which were not acted upon, but, however respondent No.7 stopped further construction activities until 2009.
6. In 2009, once again, construction activities were taken up. This time relying upon the Revised Master Plan, which came into force on 25.06.2007. Respondent No.7 apparently got modification of the plan which was earlier granted for residential purposes into commercial purposes, which modification has also been granted on account of respondent No.8 holding high office in BBMP. It is in pursuance thereof that a commercial construction has been put up and the said construction is leased for commercial purposes and it is aggrieved by the same that the petitioners are before this Court seeking for the aforesaid reliefs. -9-
NC: 2023:KHC:40339 WP No. 20926 of 2010
7. Sri.A.Mahesha, learned counsel for the petitioner, would submit that, 7.1. The zoning of the land where the sites of petitioners and respondent No.8 are located is that of residential and as such, commercial area cannot be constructed thereon and only residential building could be constructed. A property can be used for commercial axis only if the road width is 15 mtrs and minimum size of the plot is 240 sq.mtrs in terms of Regulation 4.6.2 of the Zoning Regulations. In the present case, the road width is 30 ft which is less than 15 mtrs and furthermore, the site measurement being is 60.3 ft x 39.9 ft, in all measuring 2405.97 sq.ft i.e. 223 sq.mtrs, which is less than the requirement of 240 sq.mtr and as such on both these grounds, the property could not be put to commercial use.
7.2. In order to get over the aspect of the extent of the plot, respondent No.7 has purchased an
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NC: 2023:KHC:40339 WP No. 20926 of 2010 extent of 3ft x 30 ft in plot No.632 and added the same to plot No.633 to make the property meet the requirement of 240 sq.mtrs. There is no extent of 3 ft x 30 ft which is available in site No.632 since the entire construction has been put up and it is on the basis of a notional or a fraudulent sale deed that certain non- existent land is stated to have been conveyed in favour of respondent No.7 to form a larger plot. As such, special notice was issued by the Asst. Revenue Officer, Padmanabhanagar on 28.08.2008 amalgamating this strip of land measuring 3 ft x 30 ft without sanction of law and as such, the amalgamation is bad. 7.3. That the sale deed of 3 x 30 ft has also been executed by one Sanjeevamma who is the mother-in-law of respondent No.8 and Kempamma, mother respondent No.8. This is only to facilitate respondent No.7 to obtain
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NC: 2023:KHC:40339 WP No. 20926 of 2010 modification of plan sanction for commercial purpose. The grand mothers of respondent No.7 have executed a false document even though there is no such area available for transfer in favour of respondent No.7 and no such land has xxxxx been transferred. 7.4. The Asst. Revenue Officer has no power for bifurcation or amalgamation of site inasmuch as the said power can only be exercised under Section 32 of Bangalore Development Act, 1976 and Section 17 of the Karnataka Town and Country Planning Act, 1961 by respondent No.10-the Commissioner. Thus, he submits that the officers of the BBMP have indulged in malpractice, created false documents to help the son of an officer of BBMP and the said officers of BBMP have exceeded their authority. 7.5. The site bearing No.633 belonging to respondent No.7 continues to be residential in
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NC: 2023:KHC:40339 WP No. 20926 of 2010 nature, there is no change of land use obtained in relation thereto and as such, said site cannot be put to commercial use. The plan which has been sanctioned is contrary to Zoning Regulations and as such, the plan is required to be quashed and the construction demolished. 7.6. On these grounds, he submits that the above writ petition is required to be allowed by granting the aforesaid reliefs.
8. Sri.C.R.Gopala Swamy, learned Senior counsel submits that, 8.1. The above writ petition has been filed to spite respondent No.8, the allegations made in the petition against respondent No.8 are personal in nature and it is in that background, it is contended that the allegations of the petitioner being mischievous, the petition is required to be dismissed.
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NC: 2023:KHC:40339 WP No. 20926 of 2010 8.2. Further submission is that the method of acquisition of the property by respondent No.7 is in terms of the applicable law, the petitioners cannot have any grievance in relation thereto and the allegations made by the petitioners are completely unfounded.
8.3. In terms of the Revised Master Plan 2015 the properties on the road in which the petitioners and site of respondent No.7 located are included in commercial axes zone. The benefit that is available to respondent No.7 is also available to the petitioners. Without challenging the Revised Master Plan, there is no locus on part of the petitioners to challenge the classification of the property of respondent No.7.
8.4. In terms of Regulation 4.6.2(i) if the plot size is more than 240 sq. mtrs and faces the road
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NC: 2023:KHC:40339 WP No. 20926 of 2010 width of 15 mtrs or above, it is permitted to be used as commercial area. The petitioner's site measures 223 sq.mtrs and the road measures 15.9 mtrs in width and as such, there is compliance with the aforesaid regulation. Hence, it cannot be contended that there is any violation of Comprehensive Development Plan [CDP] as alleged or otherwise.
8.5. The allegation that the CDP applicable to the property of respondent No.7 has got modified in collusion with respondent No.10 is highly imaginary. Site No.632/A is also within the commercial access zone and a portion of the said property measuring 3 x 30 fts has been transferred to respondent No.7 is amalgamated the same with the existing area by a valid order passed by Asst. Revenue Officer and therefore there is no violation as alleged or otherwise.
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NC: 2023:KHC:40339 WP No. 20926 of 2010 8.6. The property of respondent No.7 satisfying the requirement of commercial axes can be put to commercial use which cannot be found fault with.
8.7. It is Municipal authorities or the BBMP who can grant sanction of amalgamation, bifurcation, effect katha, transfer of katha, etc. and the contention of the petitioner that it is only the Town Planning Authority who could so do is not supported by the applicable law. 8.8. Respondent No.8 has nothing to do with the litigation, he has been unnecessarily made a party to the proceedings. Respondent No.7 has duly followed the applicable law, obtained a plan sanction for commercial complex construction the same after availing loan of Rs.50 lakhs from Bharat Cooperative Bank. The petition is filed only to harass respondents No.7 and 8.
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NC: 2023:KHC:40339 WP No. 20926 of 2010 8.9. On all these grounds, he submits that the petition is required to be dismissed.
9. In reply, Sri.S.Mahesha, learned counsel for the petitioner would submit that the property of respondent No.7 without amalgamation measures only 223 sq.mtrs which is less than 240 sq.mtrs, road width is 9.4 mtrs and not 15.9 mtrs and as such the benefits of commercial access cannot be made use of by respondent No.7. The law does not recognise sale of portion of property measuring 3 x 30 ft and amalgamation thereof, since amalgamation can only be of plots. A property measuring 3 x 30 ft cannot be regarded to be a plot and further be amalgamated with another plot. The said land is a fraction, for a property to be classified as a site/plot, it has to satisfy the requirement of a plot which would include numbering of the same as a plot and treating the said property as a plot in the records of the Corporation, the same not having been done and
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NC: 2023:KHC:40339 WP No. 20926 of 2010 the sale of 3 x 30 ft of land being made without bifurcation, there could be no question of amalgamation. The property continues to be residential in nature and as such, cannot be used for commercial purposes.
10. Sri.B.V.Krishna, learned counsel for respondents No.1 to 5-Corporation, would submit that, 10.1. The challenge being to the commercial use of properties, the other person who would be affected by the litigation were required to be made as party, the same not having been done, any order passed by this Court being likely to adversely affect those persons, the petition is required to be dismissed.
10.2. The claim and contentions of the petitioners are more in the nature of PIL and as such, there cannot be said any personal lis in the matter in respect of sanction of plan to respondent No.7.
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NC: 2023:KHC:40339 WP No. 20926 of 2010 10.3. The Corporation has acted in terms of the applicable Rules and the CDP, the property being capable of being put to non-residential use plan sanction has been granted which cannot be faulted with and as such, the petition is liable to be dismissed.
11. When the matter was pending, this court vide order dated 31.3.2022 had directed the Asst. Director of Town Planning to inspect the building and to furnish a report as regards whether the same is constructed as per the sanction plan or not. A report has been submitted on 31.03.2022 which reads as under:
§ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ¸ÀA:¸À.¤.£À.AiÉÆÃ(zÀ)/f.J¯ï/376/2021-22 ¸ÀºÁAiÀÄPÀ ¤zÉÃð±ÀPÀgÄÀ £ÀUÀgÀ AiÉÆÃd£É (zÀQët) ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ªÁtÂdå ¸ÀAQÃtð PÀlÖqÀ 9£Éà CqÀØgÀ¸ÛÉ, 9£Éà ªÀÄÄRågÀ¸ÛÉ, 2£Éà ¨ÁèPï dAiÀÄ£ÀUÀgÀ, ¨ÉAUÀ¼ÆÀ gÀÄ - 560 011 ¢£ÁAPÀ: 31/03/2022 gÀªÀjUÉ:-
²æÃ. ¥Àæ±ÁAvï ZÀAzÀæ (ªÀQîgÀÄ) §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ¨ÉAUÀ¼ÀÆgÀÄ.
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NC: 2023:KHC:40339 WP No. 20926 of 2010 ªÀiÁ£ÀågÉÃ, «µÀAiÀÄ:- PÀlÖqÀ £ÀPÉë ªÀÄAdÆgÁwAiÀÄ ªÀåwjPÀÛvÉAiÀÄ «ªÀgÀ. H¯ÉèÃR:- WÀ£À £ÁåAiÀiÁ®AiÀÄzÀ ¥ÀæPÀgÀt ¸ÀASÉå: W.P.:20926/2010 **** ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ªÀÄvÀÄÛ G¯ÉèÃRPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, ¸ÀéwÛ£À ¸ÀASÉå:633, 19£Éà ªÀÄÄRågÀ¸ÉÛ §£À±ÀAPÀj 2£Éà ºÀAvÀ, ¨ÉAUÀ¼Æ À gÀÄ F ¸ÀéwÛUÉ ¸ÀA§A¢ü¹zÀAvÉ WÀ£À GZÀÒ £ÁåAiÀiÁ®AiÀÄzÀ ¥ÀæPÀgÀt ¸ÀASÉå:W.P.:20926/2010 gÀ «ZÁgÀuÉ ¸ÀAzÀ¨sÀðzÀ°è WÀ£À £ÁåAiÀiÁ®AiÀĪÀÅ ¸ÀzÀj PÀlÖqÀzÀ £ÀPëÉ ªÀÄAdÆgÁw G®ètWÀ£É PÀÄjvÀAvÉ ¸ÀܼÀ ¥Àj«ÃPÀëuÉ ªÀiÁr vÀÄvÁðV ªÀgÀ¢ ¤ÃqÀĪÀAvÉ ¸ÀÆa¹gÀĪÀ ªÉÄÃgÉUÉ ¸ÀzÀj «µÀAiÀĪÁV ¸ÀܼÀ ªÀĺÀdgÀÄ ºÁUÀÆ G®èAWÀ£É PÀÄjvÀÄ ªÀgÀ¢ ºÁUÀÆ £ÀPëÉAiÀÄ£ÀÄß vÀAiÀiÁj¹ ¸À°è¸À®Ä §ÈºÀvï ¨ÉAU¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉÉAiÀÄ PÁ£ÀÆ£ÀÄ PÉÆñÀzÀ ªÀÄÄRå¸ÀÜgÄÀ gÀªÀgÄÀ zÀÆgÀªÁt ªÀÄÄSÉãÀ ¸ÀÆa¹zÀÝgÀ »£ÉßïÉAiÀÄ°è ¸ÀºÁAiÀÄPÀ ¤zÉÃð±ÀPÀgÄÀ (£ÀUÀgÀ AiÉÆÃd£É) gÀªÀgÀ ¤zÉÃð±À£ÀzÀ ªÉÄÃgÉUÉ ¸ÀܽÃAiÀÄ ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÉÆA¢UÉ ºÁUÀÆ PÀlÖqÀzÀ°è ªÁ¸ÀªÁVgÀĪÀ ªÀåQÛUÀ¼À ¸ÀªÄÀ ÄäRzÀ°è ¥Àæ¸ÁÛ¦vÀ ¸ÀéwÛ£À PÀlÖqÀzÀ C¼ÀvÉUÀ¼À£ÀÄß ªÀÄdgï ªÀiÁr ªÀÄAdÆgÁw £ÀPëÉAiÀÄ£ÀĸÁgÀ vÁ¼É ªÀiÁr £ÀPÉë G®èAWÀ£É PÀÄjvÀAvÉ ¥ÀnÖAiÀÄ°è ªÀiÁr £ÀPëÉAiÀÄ£ÀÄß vÀAiÀiÁj¹ ®UÀwÛ¹ WÀ£À £ÁåAiÀiÁ®AiÀÄzÀ DzÀå CªÀUÁºÀ£ÉUÉ F ªÀÄÆ®PÀ ¸À°è¸À¯ÁVzÉ.
Area statement Site Area 240.42 sq.mt. Actual Site area As Per Sanction 226.50 Sq.mt. as on Date: 31/03/2022 Floor Built up Area Floor Built up Deviati Percentage Remarks Details As Per details as Area ons of as per Sanction per Actual Total As (Sqm) Deviation( Sanction (Sqm) per %) Actual (Sqm) Basement 18.01 Basement 18.01 0.00 Floor Floor Stilt 158.89 Ground 158.86 0.00 Floor Floor Ground 158.89 First Floor 158.86 0.00 Floor
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NC: 2023:KHC:40339 WP No. 20926 of 2010 First 158.89 Second 158.86 0.00 -
Floor Floor
Second 146.52 Third Floor 158.86 12.34 8.42%
Floor
Terrace (25.50+ Terrace - - -
(OHT) 25.50)=51
Total 692.20 653.45 12.34
ªÀÄAdÆgÁw £ÀPÉëAiÉÆA¢UÉ PÀlÖqÀzÀ ªÁ¸ÀÛªÀ ¸Émï ¨ÁåPï C¼ÀvÉUÀ¼À ªÀåvÁå¸ÀzÀ «ªÀgÀ.
ªÀÄAdÆgÁw PÀlÖqÀzÀ ªÀÄAdÆgÁw £ÀPëÉUÉ ±ÉÃPÀqÀªÁgÀÄ µÀgÁ
PÀæ.¸ÀA. «ªÀgÀUÀ¼ÀÄ £ÀPëÉ ¥ÀæPÁgÀ ªÁ¸ÀÛªÀ ªÀåwjPÀÛªÁVgÀĪÀ ªÀåwjPÀÛ
(«ÄÃ) C¼ÀvÉ ¤ªÀiÁðt («ÄÃ) ¤ªÀiÁðt
(«ÄÃ) (%)
1 £ÀqÀÄeÁUÀ 2.29 2.16 0.13 5.68%
1) ªÀÄÄA¨sÁUÀ
2) JqÀ¨sÁUÀ 1.05 0.78 0.27 25.71%
3) »A¨sÁUÀ 1.53 1.30 0.23 15.03%
4) §® ¨sÁUÀ 1.05 0.90 0.15 14.28%
2 DªÀj¸ÀÄ«PÉ 66.08 70.14 4.06 6.14%
(Coverage)
3 PÀlÖqÀzÀ JvÀÛgÀ 11.40 12.12 0.72 6.31%
Total Floors B+S+G+F+ B+G+F Building completed
S+T +S+T+T
vÀªÄÀ ä «±Áé¹,
¸À»/-
¸ÀºÁAiÀÄPÀ ¤zÉÃð±ÀPÀgÄÀ , £ÀUÀgÀ AiÉÆÃd£É (zÀQët) §ÈºÀvï ¨ÉAUÀ¼ÆÀ gÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ
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NC: 2023:KHC:40339 WP No. 20926 of 2010
12. Subsequent to the submission of the above report on 1.4.2022 a submission was made by Sri.C.R.Gopalaswamy, learned counsel that the area shown as 226.50 sq. mtr is not correct and it is 240.42 sq.mtrs. on account of amalgamation of plot of 3 x 30 sq.ft as regards which a katha has been issued to an extent of 2590 sq.ft equivalent to 240.7 sq.mtrs. This Court on 17.06.2022 on the basis of the submission made by Sri.C.R.Gopalaswamy, learned counsel that inspection was done in his absence, he could not bring it to the notice of the engineer the purchase of 3 x 30 sq.ft in order to clear the air of suspicion had directed the BBMP to again visit the property to carry out inspection on 2.07.2022 and submit a report by 11.07.2022. It is in furtherance to that a report had been submitted on 19.07.2022 indicating that on the left side of the property which is situate to the north, the set back is 1.05, set back in front of the property on the eastern
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NC: 2023:KHC:40339 WP No. 20926 of 2010 side is 2.29, on the back of the property situate towards east, setback is 1.53, the set back on right side of property situate to the south is 1.05 and the property also bears an offset after 9.14 which relates to the additional property purchased measuring 3 x 30 ft., since the area had not been enclosed, the BBMP filed a memo dated 19.07.2022 under the cover of letter dated 2.07.2022, the same reads under:
" ೕಲ ಂಡ ಷಯ ಮತು ಉ ೇಖ ೆ ಸಂಬಂ ದಂ ೆ, ಸ ನ ಸಂ ೆ :633, 19 ೇ ಮುಖ ರ"ೆ, ಬನಶಂಕ% 2 ೇ ಹಂತ, 'ೆಂಗಳ*ರು ಈ ಸ ,ೆ ಸಂಬಂ ದಂ ೆ ಘನ ಉಚ/ ಾ 1ಾಲಯದ ಪ3ಕರಣ ಸಂ ೆ :W.P:20926/2010 5ಾರ6ೆ ಸಂದಭ8ದ9 ಘನ ಾ 1ಾಲಯವ; ಸದ% ಕಟ=ಡದ ನ>ೆ ಮಂಜೂAಾ ಉಲಂಘ ೆ ಕು%ತಂ ೆ ¢£ÁAPÀ:
02/07/2022 gÀAzÀÄ 11:00 WÀAmÉUÉ 7 ªÀÄvÀÄÛ 8 ¸ÀªÀÄÄäRzÀ°è ಸCಳ ಪ% ೕD6ೆ EಾF ತು ಾ8G ವರH Iೕಡುವಂ ೆ ಸೂJ ರುವ ೕAೆ,ೆ ¸ÀºÁAiÀÄPÀ ¤zÉÃð±ÀPÀgÀÄ (£ÀUÀgÀ AiÉÆÃd£É (zÀQët) DzÀ £Á£ÀÄ ¥Àæ¸ÁÛ¦vÀ ¸ÀéwÛ£À PÀlÖqÀzÀ C¼ÀvÉUÀ¼À£ÀÄß ªÀĺÀdgï ªÀiÁr ನ>ೆಯನುK ತ1ಾ% , ಲಗ ಘನ ಾ 1ಾಲಯದ ಆದ ಅವ,ಾಹ ೆ,ೆ ಈ ಮೂಲಕ ಸ9ಸ ಾGNೆ.
Area statement
Site area: 237.39 sqm
Site Area 240.42 Actual Site area 226.50
sq.mt. As Per Sq.mt. as on Date:
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NC: 2023:KHC:40339
WP No. 20926 of 2010
Sanction 02/07/2022
Floor Built up Area Floor details Built up Deviations Percenta Remark
Details As Per as per Actual Area Total (Sqm) ge of s
as per Sanction As per Deviation
Sanction (Sqm) Actual (%)
(Sqm)
Baseme 18.01 Basement 18.01 0.00
nt floor floor
Stilt 158.89 Ground Floor 159.74 0.85 0.53%
Floor
Ground 158.89 First floor 159.74 0.85 0.53%
floor
First 158.89 Second floor 159.74 0.85 0.53%
floor
Second 146.52 Third floor 159.74 13.22 9.02%
floor
Terrace( (25.50+25.5 Terrace 51.00 0.00 Tempar
OHT) 0)=51 ary
steel
structur
e
Erection
&
Corner
Partial
RCC
Coloum
n
Constru
ction is
Stopped
(83.88)
ªÀÄAdÆgÁw £ÀPÉëAiÉÆA¢UÉ PÀlÖqÀzÀ ªÁ¸ÀÛªÀ ¸Émï ¨ÁåPï C¼ÀvÉUÀ¼À ªÀåvÁå¸ÀzÀ «ªÀgÀ.
PÀæªÀÄ. «ªÀgÀUÀ¼ÀÄ ªÀÄAdÆgÁw £ÀPëÉ PÀlÖqÀzÀ ªÀÄAdÆgÁw ±ÉÃPÀqÀªÁgÀÄ µÀgÁ
¸ÀA. ¥ÀæPÁgÀ («ÄÃ) ªÁ¸ÀÛªÀ £ÀPÉëUÉ ªÀåwjPÀÛ
C¼ÀvÉ ªÀåwjPÀÛªÁVgÀĪÀ ¤ªÀiÁðt
(«ÄÃ) ¤ªÀiÁðt (%)
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NC: 2023:KHC:40339
WP No. 20926 of 2010
(«ÄÃ)
1 £ÀqÀÄeÁUÀ 2.29 2.17 0.12 5.24%
1)
ªÀÄÄA¨sÁUÀ
2) 1.05 0.78 0.27 25.71%
JqÀ¨sÁUÀ
3) »A¨sÁUÀ 1.53 1.30 0.23 15.03%
4) §® 1.05 0.90 0.15 14.28%
¨sÁUÀ
2 DªÀj¸ÀÄ«PÉ 66.08 67.29 1.21 1.83%
(Coverage)
3 PÀlÖqÀzÀ 11.40 12.12 0.72 6.31%
JvÀÛgÀ
Total B+S+G+F+S+T B+S+G Building completed
Floors +F+S+T
13. Along with the said report, a sketch has also been enclosed which is signed by Asst. Director of Town Planning which indicates that 19th Main road which was situate in front of the property of respondents No. 7 and 8 measures 9.55 mtrs in width. The sketch indicates that there is no construction carried out in terms of the offset as indicated in the sanction plan and the extent of 3 x 30 ft. is neither part of the setback nor is a part of construction and has not
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NC: 2023:KHC:40339 WP No. 20926 of 2010 been made part of plot of respondent No.7 and has remained with the adjoining property.
14. It is in the background of the above that the disputes in the above matter would have to be considered. On the basis of the submissions made by counsel for the petitioner and respondents, the points that would arise for determination are:
i. Whether portion of a plot/site can be sold to the neighbour without bifurcation thereof? whether such portion of the plot could be amalgamated with the neighbouring property?
ii. Whether the benefit of commercial axes in the Comprehensive Development Plan would be available to a plot measuring less than 240 sq. mtrs?
iii. Whether in the present case, the plan sanction granted by the Corporation is proper and valid? or in the event of plan sanction being invalid, would entail demolition of the entire commercial building situate in a residential area?
iv. What order?
15. I answer the above points as under:
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NC: 2023:KHC:40339 WP No. 20926 of 2010
16. ANSWER TO POINT NO.1: Whether portion of a plot/site can be sold to the neighbour without bifurcation thereof? whether such portion of the plot could be amalgamated with the neighbouring property?
16.1. The submission is that for amalgamation of two properties, both of them have to be plots, recognized in law to be plots and a fragment cannot be amalgamated.
16.2. Amalgamation in the definitions of the Zoning Regulations has been mentioned as combining of two or more plots as a single plot. Thus, there is substance in the submission made by Sri.A.S.Mahesha, learned counsel for petitioner that for amalgamation there has to be land recognized as plots. In the present case, the offset portion of 3 x 30 ft is supposed to have been purchased by respondent No.7 and amalgamated with its existing plot. The said fragment of 3 x 30 ft, in my considered opinion, cannot be said to be a land which comes within
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NC: 2023:KHC:40339 WP No. 20926 of 2010 the definition of a plot entitling amalgamation of that fragment. If that were to be permitted it would lead to a chaotic situation where different portions of a plot can be bifurcated and amalgamated at the whims and fancies of the owners thereof.
16.3. The very purpose of formation of a layout after approval from the Town Planning Authority is to enable orderly development. If bifurcation of a fragment of 3 x 30 ft is permitted and consequently amalgamation of the said 3 x 30 ft. fragment is permitted, then there would be no sanctity in the meaning of a plot and the very definition of a plot would be rendered redundant. In the present case, firstly there has been no bifurcation of this 3 x 30 ft, there is no new Municipal number allotted to the said land nor has it been assessed to tax. It is only on the basis of a sale deed said to have been executed in favour of respondent No.7 that an
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NC: 2023:KHC:40339 WP No. 20926 of 2010 amalgamation has been sought for with the existing plot of the petitioner. 16.4. The said 3 x 30 ft can neither be considered as plot or a site, therefore, in my considered opinion, there could be neither bifurcation nor amalgamation of the said fragment. 16.5. Hence, I answer Point No.1 by holding that a fragment of a site/plot cannot be bifurcated and sold and even if sold without bifurcation, the same cannot be amalgamated with a neighbouring property to make such neighbouring property a bigger property.
17. ANSWER TO POINT NO.2: Whether the benefit of commercial axes in the Comprehensive Development Plan would be available to a plot measuring less than 240 sq. mtrs? 17.1. It is not in dispute that the plot which has been gifted to respondent No.7 measures East to West 60.3 ft and North to South 39.9 ft. i.e. 2405.97 sq.ft i.e. 223 sq.mtrs. It is further not in dispute that the said plot bears No.633 and
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NC: 2023:KHC:40339 WP No. 20926 of 2010 is situate in 19th Main, 24th cross, Banashankari II Stage Bangalore.
17.2. The contention of Sri.C.R.Gopalaswamy, learned counsel for respondent No.7 is that though the said plot did not qualify the requirements of Regulation 4.6.2, respondent No.7 purchased property measuring 3 x 30 ft making the plot size 42.9 ft from North to South with an offset at 30 ft. On that basis he submits that the extent of land 2586.87 sq.ft, i.e. 240.32 sq.mtr thereby complying with the requirements of Regulation 4.6.2. His further submission is that the road width is 15 mtrs and thus satisfies the requirement of commercial axes. Regulation 4.6.2 relating to commercial axes is reproduced hereunder for easy reference:
4.6.2) Regulations
i) Permissible land use category:
If the plot size is more than 240 sq.m and faces a road width up to 15.0 m, C2, I-2 & T2 uses in addition to uses allowable in the respective zone
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NC: 2023:KHC:40339 WP No. 20926 of 2010 are permissible. If the plot size is more than 240 sq.m and faces a road width 15.0 m and above, C3, T2 and I-2 uses in addition to uses allowable in the respective zone are permissible.
ii) FAR and Ground Coverage The FAR and Ground Coverage Regulations for the Commercial Axes will be same as that of the table for the surrounding zone that it passes through e.g. a Commercial Axes passing through a Residential (Main) Zone shall avail FAR and Ground Coverage of a Residential (Main) Zone.
iii) Note; a) Setbacks shall be in accordance with Table.8 or Table.9 depending on the height of the proposed building and the plot size. b) TDR is applicable as per rules.
17.3. A perusal of Regulation 4.6.1 would indicate that all major and minor roads which have commercial activity along with them are recognized has commercial axes and in terms of Clause (1) of Regulation 4.6.2 the permissible land use for a plot which is more than 240 sq. mtrs and faces the road width up to 15 mtrs C2, I2 and T2 and the plot size is more 240 sq. mtrs and faces the road width upto 15 mtrs and above, the permissible use is C3, T2 and I2.
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NC: 2023:KHC:40339 WP No. 20926 of 2010 17.4. Though the contention of Sri.C.R.Gopalaswamy, learned counsel for respondent No.7 is that the road measures more than 15 mtrs in width, the report which has been submitted by the Commissioner appointed would indicate that the road width is 9.55 mtrs. There is nothing which has been produced and or placed on record by respondent No.7 to indicate otherwise and as such, the road would have to be taken to be 9.55 mtrs. Therefore, the road width being less than 15 mtrs, the permissible usage are C2, I2 and T2.
17.5. Thus, the said premises could be used for eateries, such as Darshinis, tea stall, takeaways which is what has been used for by respondent No.7 inasmuch as the property used for a restaurant which is so permitted. 17.6. The Submission of learned counsel for the petitioner on the other hand is that site itself
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NC: 2023:KHC:40339 WP No. 20926 of 2010 has to measure more than 240 sq.mtrs and if the same does not then it cannot be so used as a commercial axes property.
17.7. As per the report which has been submitted on 2.07.2022 the actual site area is stated to be 226.50 sq.mtrs though in terms of the sanction plan, it is shown as 240.42 sq.mtrs. This makes it clear that though there was an amalgamation which is claimed to have been made to an extent of 3 x 30 ft, same has remained on paper and has not translated amalgamation on the ground and the sital measurement has remained 226.50 sq.mtrs, 240 sq.mtrs which is required under Regulation 4.6.2. The sital area being less than 240 sq.mtrs and road width being less than 15 mtrs, what is to be seen is whether a site less than 240 sq.mtrs can be treated as commercial access.
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NC: 2023:KHC:40339 WP No. 20926 of 2010 17.8. Perusal of Regulation 4.6.2 reproduced hereinabove would indicate that in both the situation dealt with therein the plot size is to be more than 240 sq. mtrs. The usage would however vary depending on the road width being less than 15 mtrs or more than 15 mtrs. However, minimum requirement under the said Regulation is that the plot size has to be more than 240 sq. mtrs. Thus, if the plot is less than 240 sq. mtrs, the benefit under Regulation 4.6, more particularly, Regulation 4.6.2 would not be available to respondent No.7, in fact the designation of that area as commercial axes in the Revised Master Plan could only be availed of by respondent No.7 if the plot area is more than 240 sq.mtrs.
17.9. Respondent No.7 has tried all kind of permutations and combination including an alleged amalgamation of plot of 3 x 30 ft to make the property more than 240 sq.mtrs and
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NC: 2023:KHC:40339 WP No. 20926 of 2010 contending that the amalgamation of the land has happened, has applied for plan sanction showing the area of the plot to be 240.42 sq.mtrs. The whole aspect of amalgamation and application being made for plan sanction was with full knowledge that the minimum requirement is 240 sq.mtrs. However, in actuality and on ground there is no such amalgamation which has happened inasmuch as the land area of 3 x 30 ft has not been made part of the property of the petitioner and construction is being put up without taking into consideration the said 3 x 30 ft. Thus, it is clear that the plot of the petitioner even if the amalgamation is taken into consideration it cannot be so done in view of my answer to Point No.1 does not measure more than 240 sq.mtrs at ground level since the amalgamation has not given effect to. Thus, respondent No.7 is not eligible for the entitlement of regarding
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NC: 2023:KHC:40339 WP No. 20926 of 2010 his property as commercial access and availing the benefit therefrom.
17.10. Hence, I answer Point No.2 by holding that benefit of commercial axes in the Comprehensive Development Plan 2015 cannot be made available to a plot measuring less than 240 sq. mtrs.
18. ANWER TO POINT NO.3: Whether in the present case, the plan sanction granted by the Corporation is proper and valid? or in the event of plan sanction being invalid, would entail demolition of the entire commercial building situate in a residential area?
18.1. In view of answer to point Nos. 1 and 2, the Corporation could not have sanctioned a plan taking into consideration the amalgamation wrongly granted by the Asst. Revenue Officer, there is complete dereliction of duty on the part of the concerned officers of the Corporation while granting such a plan.
18.2. It would therefore be required for the Chief Commissioner to initiate such action against the
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NC: 2023:KHC:40339 WP No. 20926 of 2010 concerned officers as may be required under law, firstly for amalgamating a property which could not have been so amalgamated, the same not being a site or plot. Secondly, on that basis for having sanctioned a plan for commercial purpose when it could not be so sanctioned. Thirdly, for having issued trade licence for running of a restaurant when the road width was less than 15 mtrs not entitling the property to be used as a restaurant.
18.3. The plan sanction being invalid for commercial purpose, there would be no purpose served by ordering demolition of the building constructed. It is for this reason that the petitioner is granted liberty to submit a fresh plan sanction for residential purposes as regards the said building so as to make use of the said building for residential purpose so long as all the requirements are satisfied. Needless to say that
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NC: 2023:KHC:40339 WP No. 20926 of 2010 the building shall not be used for any commercial purpose.
18.4. Once a plan is submitted by respondent No.7 for sanction of a residential building plan, the same to be considered by the concerned Authority in terms of the applicable Building byelaws and sanction the same, as also carry out inspection of the property to ascertain any violation or deviation from the plan to be sanctioned for residential purposes, inform the respondent No.7 of the same granting 90 days time to respondent No.7 to bring the construction in conformity with the plan sanctioned for residential purposes. If the same were not to be done within a period of 90 days, then the Zonal Commissioner of the Corporation would be at liberty to cause the demolition of the entire construction since respondent No.7 apparently does not want to
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NC: 2023:KHC:40339 WP No. 20926 of 2010 take advantage of the leniency shown to respondent No.7.
19. ANSWER TO POINT NO.4: What order ?
19.1. The petition is partly allowed, a certiorari is issued. The sanction plan dated 20.06.2019 issued by respondent No.4 under L.P.No.Ad.C(S) 2P-62/09-10 at Annexure-K is quashed.
19.2. Respondent No.7 is permitted to submit an application for plan sanction for residential purpose in terms of the applicable Building Byelaw within a period of 30 days from the date of receipt of copy of this order, the said plan shall also be accompanied by the as built drawing of the building in question. The said application for plan sanction shall be considered by the concerned Authority within a period of 60 days of such submission and sanction in terms of the applicable Building Byelaws. The concerned authority shall within 15 days of such sanction of plan for residential purposes inspect the building in question and demarcate the deviations from such sanctioned plan and make known to Respondent No. 7 the deviation
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NC: 2023:KHC:40339 WP No. 20926 of 2010 to be removed by demarcating the deviation on the as-built drawing.
19.3. Respondent No.7 is granted 90 days thereafter to remove the deviation. In the event of the said deviation not being removed, the Zonal Commissioner of the Corporation is directed to demolish the entire construction put up by respondent No.7.
Sd/-
JUDGE LN List No.: 1 Sl No.: 106