Karnataka High Court
R. Veeranna S/O Late B. Rudraiah vs State Of Karnataka Represented By Home ... on 18 August, 2006
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
ORDER Mohan Shantanagoudar, J.
1. Petitioner has sought for quashing the endorsements dated 4.2.2003 and 18.3.2003 vide Annexures-D' & 'E' respectively issued by the 3rd respondent - Bangalore Development Authority (BDA) and the notice dated 27.6.2003 vide Annexure-'C' issued by the 2nd respondent-District Magistrate, Bangalore Urban District.
2. Heard the learned advocates appearing on behalf of both the parties and perused the material on record.
3. Petitioner is the owner of 20 guntas of land forming part of Survey No. 54/2A of Nagadevanahalti village, Kengeri Hobli, Bangalore South Taluk. The said land is converted for the use of non-agricultural purposes under Section 95 of the Karnataka Land Revenue Act, 1964. Petitioner applied for grant of No Objection Certificate for constructing Permanent Cinema Theatre on 12.2.1992. Thereafter petitioner filed an application before the 2nd respondent-District Magistrate on 17.8.2001 seeking permission or No Objection Certificate for locating permanent cinema theatre. The second respondent invited for the opinion of the authorities viz., The Executive Engineer, P/W.D., Bangalore Rural, Health Officer, Bangalore District, the Superintendent of Police, Bangalore Urban District and the Kengeri Municipal Council. AD these authorities gave their no objection to the 2nd respondent for granting licence to the petitioner for the purpose of construction of cinema theatre over the aforesaid property. Thereafter, the Deputy Commissioner directed the petitioner to obtain an order from the appropriate authority with regard to change of land use i.e,, from residential to commercial purpose by issuing notice as per Annexure-C dated 27.6.2003. Even prior to that date, the petitioner had filed applications on 5.3.2001 and on 10.1.2002 before the Planning Authority (Bangalore Development Authority) for grant of an order relating to change of user of land. The said application was rejected by the Planning Authority (BDA) as per Annexure-'D' dated 4.2.2003 on the ground that the land in question is situated in a predominantly residential area and if the commercial activities are permitted to be carried on in such residential area, it may create serious problems to the residential zone. However, one more application is filed by the petitioner requesting the Planning Authority to reconsider its earlier stand. The said application is also rejected by the Planning Authority as per Annexure-'E' dated 18.3.2003. Therefore, this writ petition is filed assailing the correctness of the notice vide Annexure-'C' dated 27.6.2003 and the endorsements issued at Annexures-'D' & 'E'.
4. Sri P.D. Surana, learned Counsel appearing on behalf of the petitioner vehemently contended that:
(a) the petitioner filed application praying for change of land use on 10.1.2002 as could be seen from Annexure-D and that the said application is rejected by the Planning Authority on 4.2.2003. Thus, as the application is disposed of by the Planning Authority beyond 90 days, the permission is deemed to have been granted by the Planning Authority under Section 15(2) of the Town & Country Planning Act for change in land use.
(b) That under Section 11(2) of the Karnataka Cinemas (Regulation) Act, 1964, no provision contained in any other enactment for the time being in force regulating the erection or construction of buildings, shall apply to an application filed for construction of the buildings for exhibition of Cinematograph films or for obtaining the permission of the licensing authority for exhibiting the Cinematograph films under Section 11(1) of the said Act Thus, the petitioner is not obliged to get No Objection Certificate from the authority under the provisions of the Karnataka Town & Country Planning Act The learned Counsel for the petitioner relied upon the judgments of this Court in the case of Parvathi Bai v. State of Karnataka, reported in ILR 1986 (4) Kar 3258, and in the case of Bangalore Development Authority v. Unique Enterprises, reported in ILR 1984 (2) KAR 1289, in support of his contentions.
5. The writ petition is opposed by Sri T.A. Ramachandraiah, learned Government Pleader appearing on behalf of State and Sri U. Abdul Khader, learned Counsel appearing for the BDA. Sri Abdul Khader, learned Counsel for BDA submits that the application filed by the petitioner for permission to change the land use cannot be treated as an application at all, inasmuch as, the same is not in conformity with Section 14(3) of the Karnataka Town And Country Planning Act, 1961 (hereinafter referred to as the Planning Act' for short); that the area in question is demarcated as a residential zone in Outline Development Plan and that therefore, the change of land use for commercial purpose cannot be granted; that the petitioner intends to construct the cinema theatre on the site situated in a predominantly residential area and that therefore, permission was rightly refused by the Planning Authority for change of land use. He relies upon the judgment of the Apex Court in the case of S.N. Chandrashekar and Anr. v. State of Karnataka and Ors. ILR 2006 Kar 1409 in support of his submissions.
6. It is relevant to note the provisions of Section 15(1) & (2) of the Planning Act, which read thus:
"Section 15 : Permission for development of building or land.- (1) On receipt of the application for permission under Section 14, the Planning Authority shall furnish to the applicant a written acknowledgement of its receipt and after such inquiry as may be necessary either grant or refuse a commencement certificate;
Provided that such certificate may be granted subject to such general or special conditions as the State Government may, by order made in this behalf, direct.
(2) If the Planning Authority does not communicate its decision to the applicant within three months from the date of such acknowledgement, such certificate shall be deemed to have been granted to the applicant.
Provided that the land use, change in land use or the development for which permission was sought for is in conformity with the Outline Development Plan and the regulation finally approved under Sub-section (3) of Section 13.
(Proviso to Section 15(2) is inserted by Act No. 17 of 1991 w.e..f. 19.4.1991)"
It is clear from Section 15(2) of the Planning Act that if the Planning Authority does not communicate its decision to the applicant within three months from the date of written acknowledgement of receipt of the application, such certificate shall be deemed to have been granted to the applicant
7. Re: Contention No. 1 : As aforesaid, Sri P.D. Surana, learned Counsel appearing for the petitioner has relied upon the judgment of this Court in the case of Bangalore Development Authority v. Unique Enterprises, reported in ILR 1984 (2) Kar 1289, in support of his contention that if the Planning Authority does not convey his decision within three months, the certificate for change of land use is deemed to have been granted, In the aforesaid judgment, this Court no doubt has held that if the Planning Authority does not communicate its decision within three months from the date of receipt of the application, the certificate for change of land use is deemed to have been granted to the applicant. It is also held in the said judgment that, it must be presumed that every condition necessary for grant of such permission must be deemed to have been fulfilled. But the said judgment may not be helpful to the case of petitioner, inasmuch as, the said judgment is rendered by this Court in the month of July 1984. Subsequently, the proviso to Section 15(2) of the Planning Act is inserted by Act No. 17 of 1991 with effect from 19.4.1991. The aforesaid mentioned proviso makes all the difference. The proviso to Section. 15(2) of the Planning Act makes it clear that the change of land use or the development for which the permission is sought for should be in conformity with the Outline Development Plan and the regulations finally approved under Section 13(3) of Town & Country Planning Act. Thus, it is mandatory that the application filed by the petitioner should be in conformity with the Outline Development Plan. In other words, only if the application filed by the petitioner for change of land use is in conformity with the Outline Development Plan, the authority is bound to consider the same in accordance with law. Thus in view of the proviso inserted with effect from 19.4.2001, the aforecited judgment in the case of BDA v. Unique Enterprises, reported in ILR 1984 (2) KAR 1289 will not he of any help to the petitioner, in as much as the application filed by the petitioner for change of land use is not in accordance with Section. 14(3) of the Planning Act.
The application of the petitioner was also not accompanied by the plan drawn to scale showing the actual dimension of the plot of land, size of the building to be erected and the position of the building upon the plot etc. The records of BDA confirm the same.
9. There cannot be any dispute that the petitioner has sought for permission for change of land use for the purpose of constructing a cinema theatre in a predominantly residential area. Such a change in land use cannot be permitted under Sections 14 or 15 of the Planning Act. The zoning regulations also do not permit the construction and running of a cinema theatre in a predominantly residential zone. According to the Zoning Regulations, the cinema theatre will have to be constructed in a commercial (retail business) zone. The construction of cinema theatre does not come within the purview of the Zoning Regulations which provide for use of land in a residential area even under special circumstances. The Planning Authority has no power to permit for change in the land use for the purposes other than as provided in the Outline Development Plan and in the Zoning Regulations. Section 14 of the Planning Act makes it clear that every change in the land use must conform to the Outline Development Plan and the Zoning Regulations. If running of a cinema theatre is not permissible under the O D P and Zoning Regulations in the residential area, such change in the land use to construct cinema theatre i.e., to use it for commercial purposes cannot be permitted under Sections 14 & 15 of the Planning Act. In view of the proviso to Section 15(2) of the Planning Act, as the application filed by the petitioner is not in accordance with the Outline Development Plan or the Zonal Regulations, the deeming provision contained in Section 15(2) of the Planning Act cannot be made use of by the petitioner. Thus, it cannot be said that such certificate for change of land use is deemed to have been granted to the petitioner. In this connection, it is relevant to note the observations made by the Apex Court in the case of S.N. Chandrashekar and Anr. v. State of Karnataka and Ors. (ILR 2006 KAR 1409), which read thus :
Para 28: The Planning Authority has no power to permit change in the land use from the Outline Development Plan and the Regulations. Sub-section (1) of Section 14, as it then existed, categorically stated, that every change in the land use, inter alia, must conform to the Outline Development Plan and the Regulations which would indisputably mean that it must conform to the Zoning Regulations.
Para 29 : The provisions of the Act are to be read with the Regulations, and so read, the construction of Sections 14 and 15 will lead to only one conclusion, namely, such changes in the land use must be within the Outline Development Plan and the Zoning Regulations. If running of a hotel or a restaurant was not permissible both under Clauses (a) and (b) of the Zoning Regulations in a residential area, such change in the land use could not have been permitted under Sections 14 read with 15 of the Act.
Thus, in view of subsequent insertion of proviso to Section 15(2) of the Planning Act, the judgment of this Court in the case of BDA v. Unique Enterprises reported in ILR 1984 (2) KAR 1289 is not applicable to the facts of the case.
10. Re: second contention : It is argued by Sri. P.D. Surana, learned Counsel appearing for the petitioner that in view of provisions of Section 11(2) of the Karnataka Cinemas (Regulation) Act, 1964, the petitioner is not obliged to take permission from the Planning Authority for constructing the cinema theatre, inasmuch as, no provision contained in any other law for the time being in force regarding erection and construction of the buildings would apply to an application filed praying for permission to construct and run the cinema theatre. In support of his contention, he relied upon the judgment of this Court reported in the case of Parvathi Bai v. State of Karnataka (ILR 1986 (4) KAR 3258).
11. In this connection, it is relevant to note the provision of Section 11 of the Karnataka Cinemas (Regulation) Act, 1964, which reads thus :
" Section 11 : Construction or reconstruction of buildings or use of places for exhibition of cinematograph films only to be made after obtaining permission of licensing authority.
(1) Any person, who intends .-
(a) to use any place for the exhibition of cinematograph films; or
(b) to use any site for constructing a building thereon for the exhibition of cinematograph films; or
(c) to construct or reconstruct any building for such exhibition; or
(d) to instal any machinery in any place where cinematograph exhibitions are proposed to be given;
shall make an application in writing to the licensing authority for permission therefor, together with such particulars as may be prescribed.
(2) No provision contained in the enactments specified in the Schedule or any other law for the time being in force regulating the erection or construction of buildings, or in the rules or bye-laws made under any such enactment or law shall apply to an application under Sub-section (1) in so far as such provision relates to any of the matters specified in the said sub-section.
(3) The Licensing Authority shall, thereupon, after consulting such authority or officer as may be prescribed, grant or refuse permission and the provisions of Section 6, Section 8 and Section 10 relating to licences shall, so far as may be, apply to permission under this section.
In the aforecited judgment reported in ILR 1986 (1) KAR 3258 (Parvathi Bai v. State of Karnataka), it is observed thus:
"Para 6: Section 11 of the Act, makes it abundantly clear that application of the provisions of the Karnataka Municipal Corporations Act, relating to construction of buildings are not applicable to the construction of building for running touring cinema. The word "place", occurring in Sub-section (1) of Section 11 of the Act, is defined as including a house, building, tent, enclosure and any description of transport whether by water or air. Thus, the construction of a building for touring cinema also falls under Sub-section (1) of Section 11 of the Ad. Consequently, as per the provisions contained in Sub-section (2) of Section 11, the provisions relating to construction of buildings of the Karnataka Municipal Corporations Act, are not applicable to erection or construction of building for a touring cinema. The result is, the aforesaid enunciation made by a Division Bench of this Court in Writ Appeal No. 1515/85, on 30th August, 1985 also applies to touring cinemas. Thai being so, the power under Section 321 of the Karnatkaa Municipal Corporations Act, cannot be exercised by the Corporation or its authorities in respect of construction or reconstruction of a building for running a touring cinema, as such buildings, or constructions, are exempted from the purview of the relevant provisions of the karnataka Municipal Corporations Act including Section 321 thereof, Rules and bye-laws regulating the erection or construction of buildings, by Section 11(2) of the Act. Though this contention has not been raised in the Writ petition, it is allowed to be urged because it is a pure question of law and goes to the very root of the matter."
12. In the said case, it has been held by this Court that the provisions of Karnataka Municipal Corporations Act relating to construction of the buildings are not applicable to the construction of the building for running touring cinema. In the said matter, this Court has considered the effect of Section 11(2) of the Karnataka Cinemas (Regulation) Act But, the effect of Rules 26 & 27 of the Karnataka Cinemas (Regulation) Rules, 1971, which deal with the conditions for grant of No Objection Certificate by the licensing authority is not considered. Rule 27(1)(b) of the Karnataka Cinemas (Regulation) Rules, 1971, reads thus :
"Rule 27 : Conditions for the grunt of No Objection Certificate. - (1) No Objection Certificate shall not be granted under this chapter in respect of any cinema unless . -
xxx xxx xxx xxx
(b) (i) : the cinema site is situated in a predominantly commercial area or in the proposed commercial zone in any outline Development Plan or Comprehensive Development Plan prepared for the area by a Competent Authority under Section 4(c) of the Mysore Town and Country Planning Act, 1961 or the Local Authority concerned: Provided that where an outline or Comprehensive Development Plan has not been prepared, existing predominantly commercial areas shall be taken into consideration.
The aforesaid Rule makes it clear that no objection certificate cannot be granted to a cinema theatre unless the cinema site is situated in a predominantly commercial area or in the proposed commercial zone in any outline Development Plan or Comprehensive Development Plan prepared for the area by a competent authority under Section 4(c) of the Planning Act, In this case, admittedly the proposed cinema site is situated in a predominantly residential area. Under such circumstances, No Objection Certification cannot be granted to the petitioner.
13. Under Rule 26 of the Karnataka Cinemas (Regulation) Rules, 1971, the licensing authority, on receipt of the application for construction of permanent cinema theatre, shall not only invite objections from public, but also simultaneously forward copies of the application, with its accompaniments furnished by the applicant to the Director of Town Planning, Director of Health and Family Planning Services, concerned local authority, Executive Engineer and the Superintendent of Police/Commissioner of Police, as the case may be, for the purpose of ascertaining their views regarding suitability or otherwise of the proposed site for the location of a permanent cinema theatre. Thus, it is clear from Rule 26 of the Cinemas Rules that it is mandatory on the part of the licensing authority to get the views of Director of Town Planning also. As the views of Director of Town Planning are mandatorily to be sought for by the Licensing Authority, the Planning Authority will have to furnish its genuine opinion on the subject. In this case, as aforesaid the Planning Authority has by the impugned orders vide Annexures-'D' & 'E' objected to the prayer of the petitioner by stating that the cinema site is situated in a predominantly residential area and that therefore, No Objection Certificate cannot be granted.
14. If Section 11(2) of the Karnataka Cinemas (Regulation) Act and Rules 26 (1) & 27(1)(b)(i) of the Karnataka Cinemas (Regulation) Rules are read together harmoniously, it is amply clear that the Planning Authority shall also to he consulted at the time of grant of licence to construct the permanent cinema theatre. Thus, even if the provisions of Karnataka Town & Country Planning Act are not applicable for the purpose of consideration of the application for constructing the cinema theatre under Section 11(2) of the Karnataka Cinemas (Regulation) Act, the Licensing Authority is bound to have the views of the Planning Authority also under Rule 26(1) of the Karnataka Cinemas (Regulation) Rules. Therefore, the second contention of the petitioner also fails.
15. The cinema theatre to be established as a place of entertainment should not become nuisance or cause inconvenience to the residents of the area who use such area. The Planning Authority by the impugned orders has specifically stated that the site in question is in a predominantly residential area and if permission is granted for commercial development, it would cause inconvenience or nuisance in the area. Moreover, as aforesaid change of land use cannot be permitted contrary to outline and comprehensive development plans and the zoning regulations. It is mandatory on the part of the Licensing Authority to get the opinion of the Planning Authority also under Rule 26(1) of the Karnataka Cinemas (Regulation) Rules. In view of the same, I do not find any ground to interfere in the impugned orders and notice.
Writ petition is accordingly dismissed.