M/S M K Ahmad Super Market vs The Commissioner
2022 Latest Caselaw 11465 Kant

                           1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 22ND DAY OF AUGUST 2022

                        BEFORE

         THE HON'BLE MR. JUSTICE R.NATARAJ

     WRIT PETITION NO.32422 OF 2015 (LB-BMP)

BETWEEN:

M/S M.K. AHMAD SUPER MARKET
NO. 118, 3RD/8TH MAIN ROAD
SARAKKI DOLLAR LAYOUT,
IV PHASE, J.P. NAGAR,
BANGALORE-560078
REPRESENTED BY ITS PARTNER
MR. A.P. AHMAD RAFI
                               ...PETITIONER

(BY SRI. B.K.SAMPATH KUMAR, SENIOR ADVOCATE ALONG
WITH SRI. SURAJ SAMPATH, ADVOCATE)

AND:

1.     THE COMMISSIONER
       BRUHAT BANGALORE MAHANAGAR PALIKE
       CORPORATION CIRCLE,
       HUDSON CIRCLE,
       BANGALORE-560 002

2.     THE HEALTH OFFICER
       JAYANAGAR DIVISION,
       BRUHAT BANGALORE MAHANAGARA PALIKE,
       1ST FLOOR, JAYANAGAR 4TH BLOCK,
       BANGALORE-560011.

3.     SOMAYAJI K.V.R.,
       S/O LATE VASUDEVA SOMAYAJI,
       AGED ABOUT 62 YEARS,
       NO.97, 3RD MAIN, 2ND CROSS,
                                 2


      SARAKKI LAYOUT, J.P. NAGAR 4TH PHASE,
      BANGALORE-560 078.
                                     ...RESPONDENTS

(BY SRI. ARAVIND M. NEGLUR, ADVOCATE FOR RESPONDENT
NOS.1 AND 2
SRI. G.R.MOHAN, ADVOCATE FOR RESPONDENT NO.3;
CAUSE TITLE IS AMENDED VIDE ORDER DATED 05.01.2016)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED NOTICE DATED 20.07.2015 BEARING
REFERENCE NO.A.Y(J.N)/PR/85/2015-16 VIDE ANNEXURE-A
ISSUED BY THE 2ND RESPONDENT AND ETC.

     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 15.07.2022 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:-

                              ORDER

The petitioner has challenged the notice dated

20.07.2015 issued by the respondent No.2 calling upon it

to show cause as to why the commercial activity

undertaken by it in a residential area should not be closed.

The petitioner has also challenged the notice dated

16.08.2016 to show cause within three days as to why the

licence granted to the petitioner to run commercial activity

in the premises in question should not be cancelled. He

has also challenged a notice dated 16.01.2017 wherein it

was stated that the petitioner was conducting commercial

activity in a residential zone and that the petitioner had

violated the Zoning Regulations notified by the State

Government on 20.03.2015 as per the Order passed by

this Court in W.P. No.3676/2008. The petitioner was

called upon to show cause as to why the commercial

activity undertaken by it should not be closed.

2. The petitioner claims that it had taken on lease

the property bearing No.118, 3rd / 8th Main Road, Sarakki

Dollar Layout, IV Phase, J.P. Nagar, Bengaluru-560 078

(henceforth referred to as 'the petition schedule property')

from its owners to run a super market. It claimed that the

schedule property lay at the corner of the said 3rd and 8th

main roads. The petitioner claimed that the 3rd and 8th

Main Road were more than 18 m wide and the property lay

within a Residential (Mixed) Zone in the Revised Master

Plan 2015 for Bangalore. The petitioner claimed that since

the plot size was more than 240 sq.m. and the road width

was more than 18 m, the ancillary uses, namely, C3, I-2,

U4 and T2 were permitted. The petitioner claimed that the

owners of the petition schedule property hence submitted

a plan for approval to construct a building for retail use.

The petitioner further contended that retail shops and

hardware shops were permitted activity in a residential

zone if the plot size was more than 240 sq.m. and the road

width was more than 18 m. The petitioner contends that

there were several other commercial establishments in the

area which were left untouched. After the petitioner took

the premises on lease on 16.12.2009, it started operating

a super market after obtaining a trade licence from the

respondent No.2 and was registered under the Karnataka

Shops and Commercial Establishments Act, 1961. When

things stood thus, on 04.10.2012, certain unruly elements

filed a public interest litigation in W.P.No.40865/2012

before this Court where they claimed that the petition

schedule property should not be used for the purpose of a

super market as the building was constructed in violation

of the sanctioned plan and a confirmation order dated

03.09.2011 was passed under Section 321(3) of the

Karnataka Municipal Corporations Act, 1976 (for short, 'the

Act of 1976') to demolish the building. The said writ

petition was disposed off on 23.08.2013 reserving liberty

to the owners of the petition schedule property to

approach the Karnataka Appellate Tribunal (for short, 'the

Tribunal') following which, the owners have filed an Appeal

No.737/2013 where the Tribunal has granted an order of

status quo on 23.08.2013. The petitioner alleged that

based on the complaint of some busybodies, the

respondent No.2 issued a notice dated 20.07.2015 to

Mr.A.P. Ahmad Rafi, partner of the petitioner, stating that

the State Government had issued a notification dated

11.12.2014 which prohibited commercial activity in

residential areas and that the activity undertaken by the

petitioner was not permitted under the notification dated

11.12.2014. The petitioner alleged that though it issued a

reply on 27.07.2015 stating that as per the Revised

Master Plan 2015, it was permitted to use the petition

schedule property for commercial activity if the plot size

was more than 240 sq. m. and the road width was more

than 18 m, the respondent No.2 without considering the

same, was persisting to close down the business. Hence,

the petitioner has filed this writ petition. During the

pendency of this writ petition, further notices dated

16.08.2016 and 16.01.2017 were issued on the same lines

which are also challenged in this writ petition.

3. The Writ Petition is opposed by the respondent

Nos.1 and 2 who have filed their statement of objections

contending that the notification No.UDD 105 MNJ 2008

dated 11.12.2014 issued by the State Government was

superseded by another notification No.UDD 105 MNJ 2008

dated 20.03.2015. As per the said notification, permission

granted to super markets in residential main zones in Ring

No.1 and Ring No.2 was only up to 20% of the total built

up area. It is contended that no parking area was provided

in the petition schedule property and vehicles were parked

on the footpath which caused immense hardship to the

footpath and the road users. They contended that in Ring-

3, if the main land use is residential, then ancillary use was

permitted up to 30% of the total built-up area.

4. The respondent No.3 has also contested the

writ petition contending that the petition schedule property

where commercial activity is undertaken is located in a

residential (Main) area which is evident from the

sanctioned plan. In such areas, ancillary use is allowable

up to 20% of the total built-up area or 50 sq.m. whichever

is higher. He claimed that if the plot size is more than 240

sq.m. and the abutting road is more than 18 m wide, then

ancillary use can be used as main use. He claimed that this

restriction was in force in the year 2010 itself when the

petitioner applied for a trade licence. He contended that

since residential area was used for commercial activity, the

Division Bench of this Court entertained a public interest

litigation in W.P.No.2661/2015 (disposed off on

28.04.2015) and directed the authorities to ensure the

compliance of the Zoning Regulations prescribed under the

Revised Master Plan 2015 notified in the year 2007. He

further contended that the State Government issued a

gazette notification dated 20.03.2015 which indicated that

the petition schedule property was part of planning district

2.10 and lay within Ring-1 where the following restriction

applied:

"The ancillary usage shall be permitted in residential main and residential mixed zones in Ring No.1 and Ring No.2 up to 20% of the built up area or 50 sq.mtrs whichever is lower provided the width of the road is above 40 feet."

5. The respondent No.3 further contended that

the petitioner had deliberately not filled up the entry in

respect of Zonal Classification in the application for trade

licence and had hidden the fact that the super market

operated by the petitioner lay within the residential (Main)

zone. Therefore, he contended that the petitioner is not

entitled to any relief in this writ petition.

6. The learned senior counsel representing the

petitioner submitted that the Revised Master Plan 2015

came into effect from 22.06.2007 and the Zoning of Land

use and Regulations as applicable to Residential (Mixed)

permitted the following ancillary uses:

Sl.          Plot size            Road     Ancillary Uses
No.           (sq.m)             Width     permissible as
                                 (Min.)    main land use
 1    Up to 240                  15.0m    C2, I-2, U3, T2
 2    Above 240 up to 1000       18.0m    C3, I-2, U4, T2

7. The learned senior counsel contended that

category C3 related to commercial uses which included

amongst other things "retail shopping complexes". He

therefore submitted that since the property in question

measures more than 240 sq.m and faced a road which

measured more than 18 m wide, it could be used for

construction of a retail shopping complex. Hence, he

submitted that the respondent Nos.1 and 2 had sanctioned

the plan on 16.07.2008 for commercial purposes and

therefore, the respondent No.2 could not have issued the

notices dated 20.07.2015, 16.08.2016 and 16.01.2017,

based on the Government notifications dated 11.12.2014

20.03.2015 as by that time, the construction was already

completed.

8. The learned senior counsel for the petitioner

relied upon the judgment of Hon'ble Supreme Court in

T.Vijayalakshmi v. Town Planning Member [AIR 2007

SC 25] and contended that an application for grant of

permission for construction of a building is required to be

decided in accordance with law applicable on the day on

which such permission is granted. He contended that the

notification dated 11.12.2014 or the notification bearing

No.UDD 105 MNJ 2008 dated 20.03.2015 cannot be given

retrospective effect. In this regard he referred to the

judgment of the Hon'ble Supreme Court in Income Tax

Officer, Alleppy v. M.C.Ponnoose [AIR 1970 SC 385]

where it was held in para No.3 as under:

"xxx Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with

retrospective effect. But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect".

9. The learned senior counsel also relied upon the

judgment of a Division Bench of this Court in India

Sugars and Refineries Ltd. v. State of Mysore [AIR

1960 MYS 326]. He also cited a judgment of a coordinate

Bench of this Court in W.P.Nos.206789-790/2015

(disposed off on 09.02.2016). Lastly, he relied upon the

judgment of the Apex Court in the case of Motilal

Padampat Sugar Mills Company Limited v. State of

Uttar Pradesh [AIR 1979 SC 621] to contend that once

the parties have acted on a set of circumstances, the

authorities cannot alter the position to the disadvantage of

such party. He further relied upon the judgment of a

coordinate bench of this Court in H.H.Builders (Kant)

Pvt. Ltd. v. Corpn. of the City of Bangalore [AIR 1990

KAR 56] and contends that once a building is complete,

the authorities cannot alter the licence.

10. The learned counsel for the respondent Nos.1

and 2 and the learned counsel for respondent No.3

contended that as per the notification dated 20.03.2015

issued by the State Government, the petitioner was not

entitled to conduct commercial activity in a residential

zone and therefore, the notices issued by the respondent

No.2 were justified. Even otherwise, they contended that

the petition schedule property is ordered to be demolished

under Section 321(3) of the Act of 1976 and therefore, the

use of the premises for commercial activity should not be

permitted. The learned counsel for the respondent No.3

invited the attention of the Court to the photographs which

indicated that the customers of the petitioner had parked

their motor vehicles on the footpath. He contends that

adequate parking space must have been provided within

the petition schedule property.

11. I have considered the submissions made by

the learned counsel for the parties.

12. It is not in dispute that the petitioner is a mere

tenant occupying the premises in question. It is equally not

in dispute that the petition schedule property measures

more than 240 sq.m. and is bound on two sides by a road.

The respondent No.1 has not denied the fact that the

roads are more than 18 m wide. The petition schedule

property lay within the local planning district 2.10 of the

master plan which was reserved for Residential (Main). The

extant Zonal Regulations applicable to the petition

schedule property was the one framed under the Revised

Master Plan 2015 effective from 22.06.2007 which

provided that if the main land use category is Residential

(Main), the ancillary use is allowable to 20% of the total

built up area or 50 sq.m whichever is higher. If the plot

size is more than 240 sq.m, having a frontage of 10.0 m or

more, and the abutting road is more than 18.0 m wide,

then the entire property could be put to ancillary use. The

ancillary use in so far as Residential (Main) is concerned

are as provided in categories-C2, I-2 and U3 which

correspond amongst other things to, "retail shops and

hardware shops". The question therefore that requires to

be considered is whether the petitioner was a "retail shop"

categorized under C2 or a "retail shopping complex"

categorized under C3. If it is treated as a "retail shopping

complex", then the same is not allowable in Residential

(Main) zone.

13. No doubt the building plan in respect of the

petition schedule property was sanctioned in the year 2008

and thereafter, proceedings are initiated for construction of

the building in violation of the plan which is stated to be

challenged before the Tribunal. Be that as it may, since the

construction is completed prior to the year 2014 that is

much before the State Government issued a notification

bearing No.UDD 105 MNJ 2008 dated 11.12.2014 and the

notification No.UDD 105 MNJ 2008 dated 20.03.2015, the

respondents cannot retrospectively apply the stipulations

under the said notifications.

14. Since the petitioner has already submitted its

reply to the notice dated 20.07.2015 impugned herein, this

Writ Petition is allowed in part. The respondent Nos.1

and 2 shall consider the reply in the light of the

observations made above and pass appropriate orders

within three months from the date of receipt of a certified

copy of this Order. While doing so, the respondent Nos.1

and 2 shall ascertain whether the petitioner is running a

"retail shop" or a "retail shopping complex" in the petition

schedule property and apply the Zoning Regulations as it

stood prior to 11.12.2014 or 20.03.2015. Until the same is

considered, the respondents 1 and 2 shall not disturb the

establishment of the petitioner.

All contentions of the parties are left open.

In view of the disposal of this writ petition, pending

application, if any, stands disposed off.

Sd/-

JUDGE sma