Karnataka High Court
Mr Atul Saini vs Bruhat Bengaluru Mahanagara Palike on 17 April, 2013
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
W.P.Nos.38471/2012 & 42704-706/2012 (LB-BMP)
Between:
1. Mr. Atul Saini
S/o Krishna Kant Saini
Aged about 48 years
R/a Villa 12/Extension Plam
Meadows Extension
Varthur Main Road
Bangalore-66
2. Mrs. Anjali Saini
W/o Mr. Atul Saini
Aged about 50 years
R/a Villa 12/Extension Plam
Meadows Extension
Varthur Main Road
Bangalore-66
3. Mrs. Ritu Saini
W/o Ramesh Radhakrishnan
Aged about 39 years
R/a Villa 12/Extension Plam
Meadows Extension
Varthur Main Road
Bangalore-66
4. Mr. Ramesh Radhakrishnan
S/o late Ganapathy Radhakrishnan
Aged about 50 years
R/a Villa 12/Extension Plam
Meadows Extension
Varthur Main Road
Bangalore-66 ...Petitioners
(By Sri Aditya Sondhi, Adv.)
2
And:
1. Bruhat Bengaluru Mahanagara Palike
(BBMP), N.R. Square
Bangalore - 560 002
Rep. by its Commissioner
2. Bangalore Development Authority
T. Chowdaiah Road
Kumara Park West
Bangalore - 560 020
Rep. by its Commissioner
3. Artistes' Repertory Theatre (ART) Foundation
Ramagondanahalli, Varthur Road
Whitefield, Bangalore - 560 066
Rep. by its Director (Development)
Mr. Jagdish Raja
4. Mrs. Arundhati Raja
W/o Mr. Jagdish Raja, Major
R/at 7th Floor, Block-E
Jagriti Apartments
Varthur Main Road
Bangalore - 66
5. Paprika Restaurants and Hotels Pvt. Ltd.
No.708/1, 6th B Cross
3rd Block, Koramangala
Bangalore - 560 034
Rep. by Mr. Mayur Dev. ...Respondents
(By Sri M.R. Shailendra, Adv. for R1
Sri M.B. Prabhakar, Adv. for R2
Sri Dhyam Chinnappa, Adv. for
M/s. Crest Law Partners for R3 & 4
Sri P N Nanja Reddy, Adv. for R5)
These writ petitions are filed under Articles 226 and
227 of the Constitution of India, praying to direct the R1 &
R2 to revoke the licence granted to the R5 to operate the Fat
Chef Restaurant of the Schedule Property as per
representations of the petitioners dated 14.03.2011 at
Ann-L1 and etc.
3
These Writ Petitions are having been reserved for
orders, coming on for pronouncement this day, the Court
pronounced the following:
ORDER
The petitioners are before this Court praying that a mandamus be issued to respondents No.1 and 2 to revoke the licence granted to respondent No.5 to operate 'Fat Chef Restaurant' by considering their representation dated 14.03.2011. Alternatively, the petitioners have sought that the grant of trade licence be declared as illegal. Petitioners have also sought for issue of mandamus to remove the illegal and unauthorized constructions.
2. The brief facts are that the petitioners contend that they are residents in Villa Nos.11 and 12 of Adarsh Palm Meadows (Extn) which is situate on the northern side of the property belonging to respondent No.4, bearing Sy.No.5/2A, Ramagondanahalli, Varthur Main Road, White field, Bangalore wherein respondent No.3 - Trust runs a theatre known as 'Jagriti' for live performance. The petitioners are aggrieved by the action of respondents No.3 and 4 permitting respondent 4 No.5 to run a restaurant known as 'Fat Chef' in the said theatre premises since according to the petitioners, it should not be permitted in a residential area. It is therefore contended that the trade licence issued to respondent No.5 is contrary to law and the same is liable to be revoked and such commercial activity should be stopped. That apart, such commercial activity is causing nuisance and invasion of privacy of the petitioners.
3. The private respondents as well as the statutory respondents have filed their separate objection statements and have sought to justify their action. The sum and substance of the defence is that the property which was earlier agricultural property has been converted to non-agricultural use as per law. Though such conversion was for residential use at that stage, as per the Master plan 2015 and Zoning Regulations 2007, the area is in the 'Hi Tech Zone' and the property bearing Sy.No.5/2A which is abutting Varthur Main Road is situate in the 'Mutation Corridor'. Hence, all the land use as permitted under 'C-4' is permissible 5 which includes a restaurant. It is denied that conversion is required once again in view of the same. The trade licence issued to respondent No.5 is therefore sought to be justified. The private respondents have further denied any contravention of legal requirement and have further contended that the petitioners are not the immediate neighbours but are at a distance which does not cause any inconvenience to them. At an earlier point, when the statutory respondents had issued notice based on the complaint of the petitioners, the generator was shifted and other modifications were made. It is therefore contended that the petitioners cannot have any grievance and the petition is liable to be dismissed.
4. Heard Sri Adithya Sondhi, learned counsel for the petitioners and Sri M.R.Shailendra, Sri M.B.Prabhakar, Sri Dhyan Chinnappa, Sri P.N.Nanja Reddy, learned counsel for the respective respondents and perused the petition papers.
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5. In the light of the contentions urged, the first aspect to be considered is as to whether the respondents No.3 to 5 would be disentitled to use the property in question for any other purpose other than residential since the conversion granted by the order dated 08.02.2002 is from agricultural use to residential use. In this regard, the undisputed fact is that the land bearing Sy.No.5/2A, Ramagondanahalli village was agricultural land earlier and the respondent No.4 had secured conversion of the same for residential use which was accorded by the Deputy Commissioner through the official Memorandum dated 08.02.2002 (Annexure-D). Thereafter the area wherein the land belonging to the respondent No.4 is situate has come within the planning area and the Revised Master Plan 2015 has been published in that regard is evident from the plan produced at Annexure-E to the objection statement of the respondents No.3 and 4. From the said plan and also from the averments in the objection statement of respondents No.1 and 2, it is clear that the 7 property is situate in the 'Hi-Tech Zone' along side the 'Mutation Corridor'.
6. When the position as noticed above is clear, the question is as to whether the contention of the learned counsel for the petitioners that a land which was converted to residential purpose under the provisions of Karnataka Land Revenue Act has to be used only for that purpose unless there is further conversion for commercial purpose can be accepted ? Though stress has been laid on Section 14(2) of the Karnataka Town and Country Planning Act, 1961 (KTCP Act for short) a perusal of Section 9 onwards will indicate that the land use permissible would be as provided in the Master plan as earmarked therein. Section 76M of the KTCP Act would indicate the overriding effect given to the provisions of the Act. However, if in the Master plan prepared by the Planning Authority, any particular area is shown as agricultural land and if such land is to be diverted for non-agricultural purpose, such change of land use will be permitted only after conversion is obtained under the provisions of the Karnataka Land 8 Revenue Act. In respect of other lands, the use would be permissible for the purpose for which it has been indicated in the Master Plan. Any further change of land use than what is provided for in Master Plan can be made only after obtaining conversion as provided under Section 14A of KTCP Act.
7. Therefore, in the instant case, when the land belonging to the respondent No.4 though was converted for residential purpose under the provisions of the Karnataka Land Revenue Act, when it has thereafter been included in the 'Hi Tech Zone' as per the Master Plan, the land in question can be put to the land use which is permissible in that zone as provided under the Zoning Land Use and Regulations, 2007 and the need for seeking further conversion to that extent does not arise. The situation would have been different if, irrespective of such conversion under the Karnataka Land Revenue Act, the land was shown as 'Residential' in the Master plan. In such event, conversion was certainly required to be obtained to use it for other purpose, but even that was not required subject of 9 course to the benefit of 'Mutation Corridor' if available in a particular case which would be discussed herebelow. The effect of the land use as provided by the Planning authority in the CDP has been considered by an Hon'ble Division Bench of this Court in the decision relied on by the learned counsel for the respondents No.3 and 4, in the case of Shanta and another vs. Commissioner, Corporation of City of Bangalore and another (AIR 1987 Kant 48). In the cited case, the Division Bench though found fault with the approval granted by the Corporation authorities to construct a hotel building in a residential area has taken note of the subsequent event that the Comprehensive Development Plan has thereafter shown it as a commercial zone and as such allowed the hotel building to subsist. Hence the contention of the learned counsel for the petitioners in that regard cannot be accepted.
8. Having arrived at the above conclusion, the next aspect that would arise for consideration is, even if that be the position, whether the 5th respondent would be entitled to run a Bar and Restaurant in land in question 10 and whether the first respondent was justified in granting the Trade licence to carry on such business in a 'Hi Tech Zone' ? The further aspect for consideration is, even if that is permissible whether any of the structures put up for carrying on such business is contrary to law. In the backdrop of the above conclusion that the land in question falls in the 'Hi Tech Zone', the permissible land use in such area needs to be noticed at the outset as such use in any event would be permissible without further conversion. Chapter 4 of the Zoning Regulations provides for the same and Chapter 4.8 thereunder provides regarding land use in Industrial (Hi Tech [I(H)]. Apart from the main use of 'I- 3', the ancillary land use: 'R' 'C3' 'T2' and 'U4' is provided. Though eateries such as Darshinis, Tea stalls and take aways are permissible under 'C-3', Restaurants and Hotels are placed under 'C-2' for the purpose of permissible land use. Therefore, the land use specified in 'C-4' would be permissible only if the property of the respondent No.3 and 4 falls within the 11 'Mutation Corridor' as contended and it also satisfies the other eligibility criteria.
9. The learned counsel for the petitioners would contend that 'Mutation Corridor' is different from 'Hi Tech Zone'. As such he contends that when it is the case of the respondents that the property in question is situate in 'Hi Tech Zone' the land use as provided in 'Mutation Corridor' is not automatic and is not interchangeable. The learned counsel would rely on the decision in the case of U.M. Suresh Rao -vs- State of Karnataka and Others (Order dated 03.04.2009 on Misc.W.No.3254/2009 in W.P.No.7527/2009- MANU/KA/0131/2009). The said petition was thereafter disposed of on 15.12.2009 taking note of the order dated 03.04.2009 and allowing the private respondents therein to seek for conversion to commercial use. The learned counsel for the respondents on the other hand have not only sought to distinguish the said case on facts, but would also contend that it is only an interim order and therefore is not binding. The second respondent has further 12 contended that the property in question is situate on Whitefield - Varthur Main Road and as such is in the 'Mutation Corridor' wherein permissible land use is upto 'C-4' under which Hotels and Restaurants can be permitted.
10. Firstly, though the said order dated 03.04.2009 in U. M. Suresh Rao's case is passed while disposing of miscellaneous application, since the relevance of the Regulations relating to land use has been considered in detail and the said order has not been varied, set aside or modified while finally disposing of the main petition, the said order would certainly be relevant and binding to the extent of the legal position that has been decided therein. But, whether it applies to the instant facts is a different matter and the same needs to be analysed. Unlike in the instant case, where the property is situate in the 'Hi Tech Zone', the property in the cited case was admittedly situate in a residential zone shown in the Comprehensive Development Plan and the residential building existing thereon was sought to be used for commercial purpose 13 by contending that the property is situate in the 'Mutation Corridor'. On the facts emerging therein, it was noticed that it did not satisfy the requirements to take advantage of the benefits given to the property situate in 'Mutation Corridor'.
11. In the instant case, the statutory respondents and the private respondents in order to justify the running of a restaurant and the Trade licence being issued in that regard have sought to contend that the property is situate in the 'Mutation Corridor' passing through the 'Hi Tech Zone' and as such it is permissible. In my opinion, the mere location of the property concerned being in the 'Mutation Corridor' by itself is not sufficient to claim the land use as permissible thereunder as 'C-4'. I am of the said opinion for the reason that though 'Mutation Corridor' is provided as a zone in Chapter 4.5 of the Regulations specifying the main land use in respect of such property, there is a marked difference. Hence, in order to qualify thereunder, further requirements are indicated than what is provided in all other zones. Apart from the 14 'Description' and 'Permissible land use' indicated therein like all other Zones, 4.5.2(i) provides for the additional requirements to be eligible to claim benefit of that Zone, even if the property is situate in 'Mutation Corridor'. The eligibility criteria reads as hereunder;
"4.5 'MUTATION CORRIDOR'S 4.5.2) Regulations
i) Eligibility for the zone:
• Plots facing the corridors shall have a minimum frontage of 12m.
• For 'Mutation Corridor', the maximum depth for zone consideration in case of sub divided layout is two property depth (if they are amalgamated), subject to the condition that entry and exit are provided from the front road only (abutting the 'Mutation Corridor'), so that the residential area on the rear side is insulated from the effects of commercial activity. In case the applicant cannot come up with the reconstituted/amalgamated plot, then, only one property depth shall be allowed. Decision of the authority in this regard is final.
• In case of lands that have no plotted development, a maximum of one property depth (as per the document which existed prior to the approval of Revised Master Plan 2015) may be allowed. Decision of the authority in this regard is final.
• For the purpose of claiming benefit under 'Mutation Corridor', if access is provided for the rear property using another property abutting the 15 'Mutation Corridor', then the 'Mutation Corridor' benefits shall not be allowed."
12. Therefore, it would be clear that the property falling under any other Zone described, but also being situate in the 'Mutation Corridor', in order to get the benefit of land use permissible therein, should satisfy the further eligibility criteria noticed and extracted above. If the said conditions are satisfied, the main land use category in such property would be 'C-4' and also the other use - 'R', 'I-3', 'T-3' and 'U-4'. Thus if 'C- 4' becomes permissible, all uses of 'C-1', 'C-2' and 'C-3' also become permissible. In such case, 'C-2' provides for land use as Restaurants and Hotels and such use could be made.
13. In that view, in the instant case, since the petitioners have raised the issue that a Restaurant cannot be permitted in the property belonging to the Respondent No.4 and when on the other hand the Respondents seek to justify the same since the property is situate in the 'Mutation Corridor', whether the consideration relating to eligibility as provided in 4.5.2(i) 16 has been made before issuing the Trade licence needs to be noticed. In that regard, a perusal of the objection statement and additional statement filed on behalf of the first respondent and the file furnished does not indicate that the eligibility to get the benefit of 'Mutation Corridor' has been adverted to before issuing the Trade licence. Instead the additional statement indicates that the first respondent appears to be oblivious to all these requirements and seems to be of the opinion that land use of 'C-4' is permissible merely because the property is situate in 'Hi-Tech Zone' which only indicates that the competent authority is acting without application of mind to the fact situation and is taking decisions contrary to the Regulations.
14. Hence, first and foremost, the first respondent through the sub-ordinate competent Authority is required to examine these aspects of the matter to come to a conclusion as to whether the property belonging to the Respondent No.4 satisfies the eligibility criteria to get benefit of the land use provided for the properties situate in 'Mutation Corridor'. Only if such eligibility 17 criteria provided in 4.5.2(i) of Regulations is satisfied, the land use permissible in respect of 'C-1' to 'C-4' Zone which includes Restaurant can be permitted. Failing which the trade licence if it has been renewed after 31.03.2013 shall be recalled and only the land use permissible in the 'Hi-Tech Zone' shall alone be considered if there is request in that regard.
15. Even under such eventuality of either being eligible for 'C-1' to 'C-4' use or 'Hi-Tech Zone' land use, if the private respondents have put up any constructions or installations outside the area than for which the plan had been obtained and if any set back area has been usurped and if no approval is sought in that regard, the first respondent through the Competent Authority shall secure discontinuance of such usage and secure compliance as per law. In that regard, though it is contended that certain objectionable constructions have been removed and the generator has been shifted, the petitioners have disputed the same and have produced photographs to contend otherwise. The disputed facts relating to existing situation on 18 ground in any event cannot be decided in the writ proceedings. Hence, it will need determination by the competent Authority on making a spot verification in the presence of the rival parties and that too, after the Authority at the outset coming to a decision whether the nature of business is permissible at all on keeping in view the requirements indicated above.
16. Though contention has also been urged stating that the trade licence has been issued without obtaining 'no objection' from the petitioners who are neighbours on the northern side, the said issue need not be adverted to in detail since the objection of the petitioners would receive consideration as the Competent Authority would have to determine the matter in the light of the objection raised by the petitioners. Hence, the representation dated 14.03.2011 would require objective consideration keeping in view the observations made above. Thereafter revocation or otherwise of the licence would depend on the consideration of the representation in accordance with law keeping in perspective the above observations. 19 Needless to mention that on consideration, if the land in question does not qualify for the trade licence as presently issued, it shall be recalled.
17. In the result, the following;
ORDER
(i) The writ petitions are disposed of with a direction to the Joint Commissioner, BBMP to consider and dispose of the representation dated 14.03.2011 (Annexure-L1) in accordance with law keeping in view the above observations.
(ii) The petitioners shall file one more copy of the representation along with supporting documents and a certified copy of this order with the jurisdictional Joint commissioner within two weeks from the date of receipt of a copy of this order.
(iii) The Joint Commissioner, by himself or through a competent sub-ordinate officer shall secure consideration of the 20 representation within six weeks thereafter by providing opportunity to the rival parties.
(iv) All further actions of the competent Authority one way or the other shall depend on the result of such consideration in accordance with law through a well considered speaking order.
(v) Parties to bear their own costs.
Sd/-
JUDGE
akc/bms