Karnataka High Court
M/S Valmark Developers vs Bangalore Development Authority on 5 June, 2023
Author: Krishna S Dixit
Bench: Krishna S Dixit
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WP No. 8121 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 8121 OF 2023 (BDA)
BETWEEN:
M/S VALMARK DEVELOPERS
PRIVATE LIMITED.,
HAVING ITS REGISTERED OFFICE
AT THE RESIDENCY,
19TH FLOOR, NO.133/1, RESIDENCY ROAD,
BANGALORE - 560 025.
REPRESENTED BY ITS MANAGING DIRECTOR
SRI.RATAN LATH,
REGISTERED UNDER COMPANIES ACT, 1956.
...PETITIONER
(BY SRI. VIVEKANANDA T P.,ADVOCATE)
AND:
Digitally signed 1. BANGALORE DEVELOPMENT AUTHORITY,
by SHARADA T CHOWDAIAH ROAD, KUMARA PARK WEST,
VANI B BANGALORE - 560 020.
Location: HIGH REPRESENTED BY ITS COMMISSIONER.
COURT OF
KARNATAKA
2. BRUHAT BANGALORE MAHANAGARA PALIKE,
N R SQUARE, BANGALORE - 560 001.
REPRESENTED BY ITS CHIEF COMMISSIONER.
3. THE JOINT DIRECTOR,
(TOWN PLANNING SOUTH)
BBMP, N R SQUARE, BANGALORE - 560 001.
4. STATE OF KARNATAKA,
REVENUE DEPARTMENT,
VIDHANA SOUDHA, BANGALORE - 560 001.
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WP No. 8121 of 2023
REPRESENTED BY ITS SECRETARY.
AMENDED V.C.O DATED 20.04.2023
...RESPONDENTS
(BY SRI. K KRISHNA., ADVOCATE FOR R1;
SMT. M R SINCHANA., ADVOCATE FOR R2 & R3;
SRI. B V KRISHNA., AGA FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO DIRECTION TO R1
TO FORTHWITH RELEASE THE MODIFIED DEVELOPMENT PLAN
IN RESPECT OF THE SCHEDULE PROPERTY AS DIRECTED BY
THIS HONBLE COURT IN WA NO.1226/2021 DATED 06.07.2022
ART ANNX-D AND PURSUANT TO THE RESOLUTION DATED
07.12.2022 IN SUBJECT NO.5.4.1/2022 PASSED BY THE R-1 AS
PER ANNX-H AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
Petitioner-Company is before the Writ Court with the following three principal prayers:
(i) issue a writ of mandamus or similar writ or order or direction to respondent No.1 to forthwith release the modified development plan in respect of the schedule property as directed by this Hon'ble Court in WA No.1226/2021 dated 06.07.2022 at Annexure-D and pursuant to the resolution dated 17.12.2022 in Subject No.5.4.1/2022 passed by the first respondent as per Annexure-H;
(ii) issue a writ of mandamus or similar writ or order or direction declaring that the karab land (Korakalu Karab) situated in Sy.Nos.5 and 6 of Chandrashekarapura Village does not require a -3- WP No. 8121 of 2023 buffer in terms of the definition ("Drains") as per Zoning Regulation of 2015 as the same is a 'land locked kharab' land as reflected in Annexure-T & V dtd:31.10.2008 & 1.12.2008.;
(iii) issue writ of Mandamus to 2nd and 3rd respondent to issue building plan and license in respect of Villament in terms of the Development Plan dated 07.10.2015 at Annexure-B by considering the online application dated 06.03.2023 at 023 at Annexure-N.
2. Learned counsel for the Petitioner submitted that the refusal to grant Modified Development Plan is founded on an untenable reason namely the assumed applicability of Buffer Zone Norms as evolved by the National Green Tribunal and therefore, the prayers as sought for in the Petition need to be granted, with a reprimand to the faulty officials of the BDA & BBMP. He drew attention of the court to the Division Bench judgment dated 6.7.2022 rendered in Petitioners' W.A.No.1226/2021 (BDA) and clarification issued by Asst. Executive Engineer of BBMP. He also pointed out the affidavit filed by his client on 20.4.2023 to the effect that the subject land in all admeasuring 4 guntas i.e., 1 gunta in Sy.No.5 and 3 guntas in Sy.No.6 would be retained as the Nala Kharab -4- WP No. 8121 of 2023 without any interference or encroachment. So arguing, he sought for the grant of relief as prayed in the Petition.
3. After service of notice, the BDA is represented by its Sr. Panel Counsel; the BBMP is represented by its Panel Advocate and State is represented by the learned AGA. The BBMP Panel Counsel has filed a Memo dated 20.4.2023 along with his brief Note accompanied by as many as eight documents at Annexures-R1 to R8, opposing the Petition. The Panel Advocate appearing for the BBMP has filed the Statement of Objections on 31.5.2023 in principle contending that if the BDA issues the approved Development Plan and the Petitioner submits a detailed Building Plan prepared in accordance with the Zonal Regulations of RMP 2015 & byelaws, 'the BBMP shall approve the building plan in accordance with law'. All they made submission resisting the Writ Petition and justifying the stand of their clients in not issuing the Modified Development Plan. Learned Panel Counsel appearing for the BDA vehemently contended that as per the survey -5- WP No. 8121 of 2023 records, there is a Nala in Sy.Nos.5, 6 & 9 and therefore, Petitioner has to incorporate the Nalas as per the survey records and provide a 15.0 meter buffer on either side of the Nalas. If he does it, the approval of the Modified Development Plan would be considered on a war footing. He also told the court that it is desirable to have a clarification from the survey officials in this regard. So contending, learned advocates appearing for the Respondents had sought for dismissal of the Writ Petition.
4. Having heard the learned counsel appearing for the parties and having perused the Petition Papers, a short question in the established fact matrix of the case arises as to whether the developer of the adjoining land has to leave a buffer in terms of Zonal Regulations of RMP 2015, a fortiori when the Revenue Records or such other public documents mention about the existence of Naala/Halla/drain.
A. AS TO EARLIER LITIGATIONS:
-6-WP No. 8121 of 2023 Petitioner-Company is a registered builder and it has been in the business of land development, is not in dispute. In a relative fact matrix, Petitioner has secured a favourable judgment at the hands of a Division Bench of this Court in W.A.No.1226/2021 disposed off on 6.7.2022 (Annexure-D); since all relevant facts have been stated therein, their reproduction as it is, may not be warranted. The Division Bench granted the relief as under:
"13. It is also pertinent to note that in the Master Plan-2015 land bearing Survey No.4 measuring 3 Acres and 16 Guntas has been shown to be reserved for residential purposes. For the aforementioned reasons, there appears to be no justification for the Authority to contend that the land in question is a lake and the appellant is required to set apart a buffer zone of 30 meters and to obtain a modified development plan. The impugned communication dated 16.10.2020 and communication dated 17.02.2017 are hereby quashed. The Authority is directed to approve the modified development plan, treating land bearing Survey No.4 measuring 3 Acres and 16 Guntas to be a land earmarked for the purposes of a tree park. The BBMP shall issue a building plan and the license."
This judgment has attained finality, no further challenge having been laid thereto, is not in dispute. -7- WP No. 8121 of 2023
B. AS TO PROPERTY RIGHTS AS CONSTITUTIONALLY GUARANTEED:
It hardly needs to be stated that ownership is a bundle of rights which essentially include the right to make use of the property as the owner desires subject to statutory restrictions. Right to property though, no longer a Fundamental Right after the 44th Amendment to our Constitution, it is nevertheless guaranteed under Article 300A as discussed by the Apex Court in K.T.PLANTATION PRIVATE LIMITED vs. STATE OF KARNATAKA, (2011) 9 SCC 1. Asking a person to do or not to do certain things in respect of his property, therefore, needs authority of law. Court has to examine under what authority the respondent-BDA & BBMP are insisting upon a 15 mtr buffer being left on either side of Naalas. The BDA says this arguably in terms of Zonal Regulations RMP 2015. What kinds of Naala require buffer, is pure question of law since answer thereto is to be found by turning the pages of statute book namely the subject Zonal Regulations. Some -8- WP No. 8121 of 2023 aspects of this is already discussed by the Division Bench in its judgment supra; be that as it may.
C. AS TO MEANING OF DRAINS & BUFFER:
(a) The idea of buffer is intricately associated with the drains and therefore, one has to ascertain what the drains really mean. The word 'DRAINS' is described in the Zonal Regulations as under:
'DRAINS: The drains have been categorized into three types viz., primary, secondary and tertiary. These drains will have a buffer of 50, 25 and 15 Mtrs (measured from the Centre of the drain) respectively on either side. These classifications has been issued for the drains newly identified while finalizing the RMP 2015.' In view of this statutory description, in order to attract the mandatory requirement of buffer, the Naalas should be of such nature & characteristics that would make them fall in any one of the three classifications i.e., primary, secondary or tertiary drains, as rightly argued by the Petitioner's counsel. It is not the Policy of the State that each and every Lillyput Naala or a broken drain (Korakalu halla) that runs within the confines of a small piece of land -9- WP No. 8121 of 2023 would make the subject Zonal Regulations prescribing buffer, at once applicable. The drain should be of the description as given above. A contention to the contrary cannot be countenanced without transcending if not offending the description of drainage given by the statute.
If what meaning the BDA officials intend to place upon the description/definition of drain, the language of the Regulations would have been much different. Where certain action touches the constitutional guarantees to property rights, the authorities have to confine themselves to the contours of law.
(b) In the light of what has been discussed in the immediately preceding sub-paragraphs, let me examine the facts further: the lands in Sy.Nos.5 & 6 of Chandrashekarapura village have been converted to non- agricultural (residential) user under Sections 95(2), 95(4) & 95(7) of the Karnataka Land Revenue Act, 1964 vide Deputy Commissioner's orders dated 31.10.2008 and 1.12.2008, respectively at Annexures-T & V; these orders take note of 1 gunta & 3 guntas respectively in Sy.Nos.5 &
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WP No. 8121 of 20236 being B kharab that belong to the ownership of government. Pursuant to a direction issued by a Division Bench of this Court in W.P.No.31394/2009 (PIL), huge lands including the subject survey numbers were inspected & surveyed by a Committee of four officials namely the Tahasildar of Bangalore South Taluka, Asst. Executive Engineer of BBMP, Supervisors & Land Surveyor. In the Encroachment Map prepared by the Committee at Annexure-R, it is specifically stated that the subject Naalas running within these lands have not been encroached and that they are intact.
(c) The Petitioner too has filed an affidavit on 20.4.2023 wherein paragraphs 3, 4, 6 & 7 read as under:
"I submit that there is B Karab land measuring 01 gunta in Sy.No.5 and 03 guntas in Sy.No.6. The said kharab is a nala kharab as per the revenue records and width of the said kharab is 1.20 mtrs and length is 44.40 mtrs in Sy.No.5. Similarly the width of the kharab is 1.20 mtrs and length is 135.80 mtrs in Sy.No.6... I submit that the aforesaid kharab has been identified and shown in the Development Plan approved on 07.10.2015 and as per the said approval the petitioner has retained the Nala Kharab and constructed the box drain in order to retain the
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Kharab land intact and ease out free flow of rain water. The petitioner has not encroached any portion of Kharab land identified in the Development plan and hereby undertake to retain the same... I submit that in respect of the nature of Kharab which is situated in the land in question no buffer is prescribed under the Land Revenue Act, KTCP Act, BDA Act and the Zoning of Land use and regulations 2015. I submit that in the absence specific stipulation in the Zoning Regulation as regards the buffer, the Respondents are not justified in withholding the modified development plan... I submit that there is no mechanism in the Zonal Regulation for classification by means of measurement of Nala/Drains such as Primary, Secondary and Tertiary depending upon its width and length. In the absence of such prescription, the Respondents cannot insist the petitioner to provide buffer on either side of the Kharab land in question."
(d) It is relevant to mention that the BBMP Note Sheet at Item Nos.158 & 159 endorsed by the Asst. Executive Engineer and approved by the Executive Engineer, specifically states that these Naalas being fragmented drains, korakalu halla run within Sy.Nos.5, 6 & 9; they do not answer the description of any of the three specified classes of drains viz., primary, secondary &
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WP No. 8121 of 2023tertiary. The said Note Items being in the colloquial, have the following text:
"F CA±ÀUÀ¼À£ÀÄß ¥ÀjUÀt¹ ªÉÄð£À ¸ÀªÉð £ÀA.5, 6 ºÁUÀÆ 9 gÀ°ègÀĪÀ ¤ÃgÀÄUÁ®ÄªÉUÀ¼ÀÄ ¥ÉæöʪÀÄj, ¸ÉPÉAqÀj ºÁUÀÆ mÉjµÀj £Á¯ÁUÀ¼À ªÀUÀðzÀ ªÁå¦ÛUÉ §gÀĪÀÅ¢®èªÉAzÀÄ EªÀÅUÀ¼À£ÀÄß PÉÆgÀPÀ®Ä ºÀ¼ÀîUÀ¼ÀÄ JAzÀÄ C©ü¥Áæ¬Ä¸À¯ÁVzÉ.
DA±À (2) gÀ°è w½¹gÀĪÀAvÉ PÀAzÁAiÀÄ E¯ÁSɬÄAzÀ ¸ÀªÉð ªÀiÁr ¤ÃrgÀĪÀ ZÀAzÀæ±ÉÃRgÀ¥ÀÄgÀ ¸ÀªÉð £ÀPÉëAiÀÄ°è vÉÆÃjgÀĪÀAvÉ ¸ÀªÉð £ÀA.5 gÀ°è 01 UÀÄAmÉ ¸ÀªÉð £ÀA. 06 gÀ°è 02 UÀÄAmÉ ªÀÄvÀÄÛ ¸ÀªÉð £ÀA.09 gÀ°è 04 UÀÄAmÉ RgÁ§Ä ¥ÀæzÉñÀªÀ£ÀÄß ºÁUÀÆ ¤ÃgÀÄUÁ®ÄªÉAiÀÄ£ÀÄß ¸ÀܼÀzÀ°è UÀÄgÀÄw¹ ¸ÀܼÀªÀ£ÀÄß PÁ¬ÄÝj¹PÉÆAqÀÄ ªÀÄÄA¢£À PÀæªÀÄPÉÊUÉƼÀÀÄzÁVzÉ JAzÀÄ vÀªÀÄä°è ªÀÄAr¹zÉ."
D. AS TO UNTENABLE STAND OF BDA & BBMP:
(a) The above being the position, learned Panel
Counsel appearing for the BDA is not justified in
contending that the clarification having been sought for vide letter dated 8.3.2023 at Annexure-M, the Deputy Director of Survey & Land Records, Bangalore, is yet to furnish his opinion and therefore, BDA is helpless. There is already sufficient material on record as to the nature of subject Naalas and also as to non-requirement of leaving any buffer by the developer. The Town Planning Member
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of BDA, presumably because of possible criticism at the hands of unscrupulous RTI Activists, has sought for some clarification, which cannot be much faltered. Bonafide act of a public official even if erroneous, that per se would not justify any adverse remark being made against him. Same equally applies to the officials of BBMP namely Mr.V.Rakesh Kumar (Joint Director) & Mr.Mohan Kumar (Assistant Engineer), as well. That being said, this court hastens to add that the public servants soliciting opinion after opinion, would not augur well to a constitutionally ordained Welfare State, unless the statute requires otherwise. More is not necessary to specify and less is insufficient to leave it unsaid.
(b) Learned Panel Advocate appearing for the BBMP assisted by the officials mentioned above, makes it clear that the application of the Petitioner has not been rejected as such and the plea in the Statement of Objections and entries in the accompanying Annexures thereto speaking to the contra, should be accordingly construed. In other words, Petitioner's subject application should be deemed
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to be pending for consideration till after the grant of approval to the Modified Development Plan at the hands of BDA. In fact, at paragraph 6 of the Statement of Objections, it is has stated as under:
'It is submitted that the BBMP has learnt that the Petitioner has now applied for Modified Development Plan before the Bengaluru Development Authority. It is submitted that once the Modified Development Plan is approved by the Bengaluru Development Authority, if the Petitioner submits the detailed Building Plan prepared in accordance with the Approved Modified Development Plan and also as per Zonal Regulations of RMP-2015 and Building Byelaws, the BBMP shall approve the Building Plan in accordance with law.' E. AS TO WHAT RELIEF TO BE GRANTED AND REASONS FOR THAT:
(a) Learned counsel appearing for the Petitioner argued that the denial of approval to the Modified Development Plan is only on the ground of the alleged requirement of buffer zone being left and, the same being found unsustainable now, again directing the BDA to reconsider its decision would not serve cause of justice and therefore, a specific direction to grant approval be
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issued, years having gone by with consequential escalation of expenditure. Learned Advocates appearing for the BDA & BBMP opposed the same. Ordinarily, in matters like this, courts would ask the authorities to consider the claim of citizens afresh, once impugned action of the kind is set at naught. In earlier round of litigation i.e., W.A.No.1226/2021, a Division Bench of this Court vide order dated 6.7.2022 quashed the impugned action and directed the BDA to approve the Modified Development Plan. It also directed the BBMP to issue the Building Plan & License. That being the position, this court drawing wisdom from the said judgment, agrees with the submission of learned counsel appearing for the Petitioner, who in the fitness of things expressed some apprehension as to what would happen if again an open remand is made for the consideration afresh at the hands of authorities.
(b) It hardly needs to be stated that the power of a Writ Court is coextensive with that of the authorities whose actions are being judicially reviewed, subject to all just exceptions vide S.P.JAIN vs. KALINGA TUBES LTD,
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WP No. 8121 of 2023AIR 1965 SC 1535. Remand after remand is not a healthy sign of judicial process. Aggrieved litigants come to courts claiming justice and with abundant hope of getting it; certainly, they do not ring the bells of justice just to secure paper decrees/orders; sending them back to the same authorities for working out redressal to their complaint, would disillusion them with adjudicatory process, to say the least. The only ground for denying approval to the Modified Development Plan is the requirement of leaving the buffer. Neither in the objections nor in the arguments, the learned Panel Advocates appearing for the authorities have mentioned about any other ground. Of course, they could not, because of the law declared by the Apex Court in MOHINDER SINGH GILL vs. CHIEF ELECTION COMMISSIONER, AIR 1978 SC 851 wherein, it is observed that the validity of orders passed by statutory authorities should be examined on the basis of the grounds stated in the very same orders and not on some grounds brought de hors them.
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WP No. 8121 of 2023In the above circumstances, a Writ of Mandamus issues to the respondent-BDA to forthwith approve & release the Modified Development Plan in question in terms of Resolution dated 17.12.2022 vide Subject No.5.4.1 of 2022 at Annexure-H, within an outer limit of four weeks. A Writ of Mandamus also issues to the respondent-BBMP to grant the Building Plan & the Building License in terms of Modified Development Plan within next four weeks following the approval to be granted by the BDA. Both the BDA & the BBMP officials concerned are put to warning that delay if brooked in reporting compliance would be viewed seriously.
Costs made easy.
Sd/-
JUDGE Snb/