Karnataka High Court
The Residents Forum vs The State Of Karnataka on 25 January, 2022
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.4823 OF 2017 (LB-RES)
BETWEEN:
THE RESIDENTS FORUM
(A SOCIETY FORMED UNDER
THE KARNATAKA SOCIETIES ACT, 1960)
P-238, 9TH MAIN, SECTOR-10,
LIC COLONY, JEEVAN BIMA NAGAR,
BENGALURU - 560 075,
REPRESENTED BY ITS SECRETARY.
... PETITIONER
(BY SRI KIRAN B.S., ADVOCATE (PHYSICAL HEARING))
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF HOME AFFAIRS
VIDHANA SOUDHA,
BENGALURU-560 001,
REPRESENTED BY ITS SECRETARY.
2. THE STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
4TH FLOOR, VIKASA SOUDHA,
BENGALURU-560 001,
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY.
2
3. BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD,
KUMARA PARK,
BENGALURU - 560 020,
REPRESENTED BY ITS COMMISSIONER.
4. LIFE INSURANCE CORPORATION OF INDIA
HOUSING CELL, "JEEVAN PRAKASH",
REGIONAL OFFICE, J.C. ROAD,
BENGALURU - 560 002
REPRESENTED BY ITS
MANAGING DIRECTOR.
5. BRUHAT BENGALURU MAHANAGARA PALIKE
NR SQUARE,
BENGALURU-560 002,
REPRESENTED BY ITS COMMISSIONER.
6. MOGAVEERA SANGHA, BANGALORE ®
NO.15, 17TH "F" CROSS,
INDIRANAGAR II STAGE,
BENGALURU-560 038,
REPRESENTED BY ITS PRESIDENT.
7. KODAGU MATHU DAKSHINA KANNADA
GOWDA SAMAJA
GOWDA SAMAJA SADANA,
NO.16/11, 1ST "C" MAIN ROAD,
GANGANAGAR EXTN.,
BENGALURU-560 032,
REPRESENTED BY SECRETARY.
8. HUMBLE CHARITABLE TRUST ®
NO.32, 12TH CROSS,
INDIRANAGAR 1ST STAGE,
BENGALURU-560 038,
REPRESENTED BY ITS PRESIDENT.
3
9. ORISSA CULTURAL ASSOCIATION
NO.19, 5TH MAIN, JAYAMAHAL EXTENSION,
BENGALURU - 560 046,
REPRESENTED BY ITS
SRI U. RANJAN MOHATY,
EXECUTIVE COMMITTEE MEMBER.
... RESPONDENTS
(BY SMT.PRATHIMA HONNAPURA, AGA FOR R1 AND R2
(PHYSICAL HEARING)
SRI D.N.NANJUNDA REDDY, SR.ADVOCATE A/W
SRI K.KRISHNA, ADVOCATE FOR R3 (PHYSICAL HEARING)
SRI KAMALESHWARA P., ADVOCATE FOR R4 (PHYSICAL
HEARING)
SRI N.R.JAGADEESHWARA, ADVOCATE FOR R5;
SRI K.SHASHIKIRAN SHETTY, SR.ADVOCATE A/W
SRI KIRAN J., ADVOCATE FOR R6 (VIDEO CONFERENCING)
SMT.SANDHYA D., ADVOCATE FOR 7
R8 SERVED
SMT.SANDHYA JAMADAGNI, ADVOCATE FOR R9)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO a. DIRECT
RESPONDENT TO QUASH THE IMPUGNED ORDER DTD:13.11.2015
VIDE ANNEXURE-AS OF THE URBAN DEVELOPMENT
DEPARTMENT, THE R-2 HEREIN PASSED IN THE MATTER OF THE
LAND USE CHANGE/CONVERSION WITHIN THE SAID "SITE -2P"
AND DIRECT R-1, 2, 3 TO THEREBY RETAIN ALL THE EXTENT OF
LANDS WITHIN THE SAID "SITE 2P" FOR "PARKS AND
PLAYGROUNDS".
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 29.11.2021, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Petitioner is before this Court seeking the following
omnibus prayers:
"a) Issue a Writ, Order or Direction in the nature of
Mandamus or Certiorari or any other appropriate Writ, Order
or Direction direct Respondents No.to quash the impugned
Order No. UDD 283/BBS/2015 dated 13-11 2015 vide
(Annexure-AS) of the Urban Development Department, the
Respondent No.2 herein, passed in the matter of the land use
change/conversion within the said "Site-2P" and direct
Respondents No.1, 2 and 3 to thereby retain all the extent of
lands within the said "Site-2P" for "parks and playgrounds";
b) Cancel any and all permits and sanctions accorded by
Respondents No.3 and 5 to Respondent No.6, consequent to
the said Order No. UDD283/BBS/2015 dated 13-11-2015
vide (Annexure-AS), for erection of any structures/buildings;
c) Direct the Respondents No.1, 2 and 3 to retain and
restore the said "Site-2P" in the LIC Township/Layout/Colony,
Jeevan Bima Nagar, HAL III Stage, Bengaluru-560 075, as an
open/lung/green space and to refrain from changing or
attempting to change the purpose of the said land use of "Site-
2P";
d) Declare the areas allotted to the Respondents within
the said "Site-2P" and elsewhere within the said
township/layout/colony, earmarked for open/lung/green
spaces, as having devolved onto the Petitioner and its
members to be held, owned, possessed and enjoyed jointly for
use as parks and/or gardens and/or playgrounds in
accordance with the said layout plans and applicable laws.
e) Enjoin the clearance of the said "Site-21" and other
areas, reserved for open/lung/green spaces and allotted to
the Respondents, within the said LIC
Township/Layout/Colony of all unlawful structures and
encroachments; and, to restore the said site to a state of
conformance with the "Layout Plans" prepared by the
architects of Respondent No.4;
f) Instruct Respondent No.5 to take possession of all
parks, playgrounds and open spaces in LIC
Township/Layout/Colony and to appropriately maintain and
develop them further in accordance with permissible land
uses under relevant statutes, rules and regulations;
g) Declare the Lease Agreements executed by
Respondent No.3 with Respondents No.6, 7, 8 and 9 as
invalid nullities, non-est and void ab initio and cancel the
same consequent to and consonant with the quashing of the
impugned Order No. UDD 283/BBS/2015 dated 13-11 2015
of Respondent No.2 herein.
h) Quash the approval(s)/sanction(s) accorded, if any, to
the other Respondents, or future allottees, for putting up
temporary or permanent structures on lands reserved for
open/lung/green spaces within the said
township/layout/colony, including, but not limited to, the said
"Site-2P".
i) Grant any and all other just, equitable and
consequential benefits and reliefs to the Petitioner that this
Hon'ble Court deems fit and proper in the interest of justice
and under the facts and circumstances of this case.
j) Award the cost of this petition to the petitioner."
2. Heard Sri.Kiran.B.S., learned counsel for petitioner,
Smt.Prathima Honnapura, learned Additional Government
Advocate for respondent Nos.1 and 2, Sri.D.N.Nanjunda Reddy,
learned senior counsel for respondent No.3,
Sri.Kamaleshwara.P, learned counsel for respondent No.4,
Sri.N.R.Jagadeeshwara, learned counsel for respondent No.5,
Sri.K.Shashikiran Shetty, learned senior counsel for respondent
No.6, Smt.Sandhya.D., learned counsel for respondent No.7 and
Smt.Sandhya Jamadagni, learned counsel for respondent No.9.
3. Brief facts leading to the filing of the present petition as
borne out from the pleadings are as follows:
Petitioner claims to be a Society registered under the
Karnataka Societies Registration Act, 1960 whose members are
all owners and residents of the LIC Township/Layout/Colony
aka "LIC Housing Colony" or "Jeevan Bhima Nagar Colony" and
claim to have filed the present petition in public interest.
4. A little walk in the history is germane to be done to
address the issue that is brought before the Court. On
12.10.1972 an agreement is executed between the erstwhile City
Improvement Trust Board ('CITB' for short) and the Life
Insurance Corporation to form a colony/township. In
furtherance to the said agreement certain sale deeds were
executed conveying some portions of land to the 4th
respondent/LIC for formation of the aforesaid layout. The sale
deeds were executed on 15.01.1975 and 15.07.1975. A modified
layout plan of HAL, III Stage was approved wherein site-2P is
shown to be an open space.
5. Between 04.11.1978 to 22.11.1982 certain other sale
deeds were executed. On 12.10.1984 a Comprehensive
Development Plan (CDP-1984) was approved and a Government
Order was issued in terms of which, the land use for the said
site-2P was marked as "public and semi-public" and "parks and
open space" and reserved for a primary school with suitable
space earmarked for playground. The 3rd respondent - Board
which was by then was the Bangalore Development Authority
approved the site plan in which site-2P was again marked as
open space. A Revised Comprehensive Development Plan - 1995
(RCDP-1995) was approved by the Government, in which the
land use of the site-2P was shown as 'residential'. The RCDP-
1995 came into effect from 05.01.1995.
6. All these issues became subject matter of several
cases filed before this Court. One such public interest litigation
was W.P.5319/1999. This Court while disposing the said PIL
held that the plot of land opposite the site-2P to be plot No.10
and reserved for community hall/centre. After the notification of
RCDP-1995 and the judgment of this Court dated 4.12.2002, the
3rd respondent executed several lease agreements. The present
petitioner also filed W.P.23197/2005 challenging the lease of
lands insofar as they pertain to site-2P. Since several writ
appeals were pending against the order dated 5.1.2007 in the
writ petition, W.A.No.325/2007 and connected cases came to be
decided on 23.09.2013. In terms of the judgment, the Division
Bench held that the site-2P should not be developed as long it
continues to be a green area in the master plan. Any application
for change of land use of site-2P should be examined and
considered by the authorities strictly in accordance with law and
appropriate orders if any to be passed should be only after
affording an opportunity to the petitioner-Society.
7. In the light of liberty reserved by the Division Bench
(supra), the 3rd respondent/BDA directed acceptance of change
of land use in respect of site-2P based on the zoning regulations
prevalent at that point in time. It is the case of the petitioner
that such change of land use was permitted without affording an
opportunity to the petitioner-Society as was directed by the
Division Bench of this Court (supra). It is this action of change
of land use of site 2P and failure to notify the petitioner as was
directed by this Court, the petitioner-Society has knocked the
doors of this Court in the present petition seeking the afore-
extracted omnibus prayers.
8. The learned counsel appearing for the petitioner would
submit that the action of the BDA in permitting change of land
use for site-2P is contrary to law and the manner in which it is
considered is contrary to the Karnataka Government
(Transaction of Business) Rules, 1977. It is the contention that
the zoning regulations cannot violate statutory provisions under
the Bangalore Development Authority Act, 1976 ('BDA Act' for
short) or the Karnataka Town and Country Planning Act, 1961
('KTCP Act' for short). Procedure stipulated under Section 14-A
of the KTCP Act is completely given a go-by is the emphatic
submission of the learned counsel appearing for the petitioner.
He would place reliance upon the following judgments of the
Apex Court:
(i) S.N.Chandrashekar and another vs. State of Karnataka
and others [(2006) 3 SCC 208]
(ii) Bangalore Development Authority and others vs. R.
Hanumaiah and others [(2005) 12 SCC 508]
(iii) Bangalore Medical Trust vs. B.S.Muddappa and others
[(1991) 4 SCC 54]
(iv) Anjuman E Shiate Ali and another vs. Gulmohar Area
Societies Welfare Group and others [2020 SCC Online SC
373]
9. On the other hand, the learned Additional Government
Advocate appearing for the State, the learned counsel appearing
for the respondent No.3/BDA, respondent No.6 would in unison
refute the submissions made by the learned counsel appearing
for the petitioner.
10. The learned counsel representing the BDA would
submit that the sites in site-2P was of a large extent which is
divided into several civil amenity sites. The petitioner had filed
W.P.No.23197/2005 seeking a direction to retain civil amenity
site No.2 in its entirety to be an open playground. This having
been dismissed on 5.1.2007, a W.A.No.325/2007 was filed. The
Division Bench after noticing that in the revised master plan the
area was shown as 'green area' disposed the writ appeal and the
writ petition by directing the respondents to make necessary
application for rectification and correction in the master plan or
grant change of land use.
11. Pursuant to the direction of the Division Bench, the 6th
respondent - Mogaveera Sangha filed an application seeking
change of land use and the BDA after hearing all the
stakeholders recommended to the Government for correction in
the master plan. The Government accorded approval for
correction of the mistake which had crept in the master plan.
He would submit that the petitioner has no right to question the
change of land use granted to the 6th respondent as the area to
be shown as a civil amenity site or an open space or a park was
a mistake.
12. I have given my anxious consideration to the
submission made by the learned counsel for the respective
parties and perused the material on record.
13. The afore-narrated facts not being in dispute are not
reiterated. For a resolution of the issue in the lis it is necessary
to notice the proceedings concerning the very same land before
this Court. This Court in W.P.No.5319/1999 - a Public Interest
Litigation instituted by the very petitioners held as follows:
"8. LIC next contended that the is land is shown as reserved
for public and semi public purpose in the CDP of 199t and
therefore it can use the land in question for any public or semi-
public purpose. The sanctioned plan showed plot No.10 as
reserved for a community centre. Description of the plot as a
community centre is a representation by LIC to the purchasers
of houses in the layout that the land in plot No.10 would be
used for construction of a community centre. While it is true
that the original earmarked land use, that is community green
area was subsequently altered as public and semi-public use,
it does not follow that what is reserved for a community centre
could be used for some other purpose. 'Community centre'
connotes a Building/structure meant for the benefit of the
residents of the locality. Construction of Sales Training Centre
(Academic Block & Hostel Block) cannot by any stretch of
imagination be considered as community centre.
9. LIC drew our attention to the definition of public and
semi-public occurring in the Annexure-II to the notification
dated 5-1-1995, relating to CDP of 1995 [Zonal Land Use and
Regulations], which reads as under;
"Public and Semi-Public Use:
(a) Uses that are permissible: Government
Administrative Centres, district offices, Law Courts,
jails, police stations, institutional offices,
educational, cultural and religious institution,
including libraries, reading rooms and clubs, Medical
and Health institutions, cultural institutions like;
community halls, opera houses of non-commercial
nature, convention centres, Exhibitions, utilities and
services, water supply installation including disposal
works, electric power plants, high tension sub-
stations, gas installations and gas works, fire
fighting stations, banking institutions, filling stations
and quarters for essential staff and all uses
permitted I parks and play grounds.
Note: Restaurants, Banks, Canteens, quarters not
exceeding 240 sq.mts., required for proper
maintenance and functioning of public and semi-
public uses may be permitted, which are run on non-
commercial basis in their own premises as ancillary
the respective institution.
(b) Uses that are permissible under special
circumstances by the Authority: Government printing
press, parking lots, repair shops, stadium,
cemeteries, recreational clubs, canteens, libraries,
aquaria, planetoria, horticultural nursery and
swimming pools."
LIC contended that the construction of a training centre and
hostel for the candidates who are trained in the training
centre will fall under the category of government
administrative centres and institutional offices. As noticed
above, the plot in question has been reserved for community
centre. The training centre proposed by the LIC agents
and hostel for such trainees is not a community centre.
Use of the plot for construction of a building for
training the LIC agents and for their stay is for the
business purpose of LIC and not for the benefit of the
community i.e. the residents of the locality. We
therefore reject the contention of the LIC that the
construction of a Sales Training Centre and hostel
building is for a community purpose. In the view we
have taken, the question whether constructions of LIC
Sales Training Centre is a public and semi-public
purpose is not relevant.
10. In the result, we allow this petition in part and
the first respondent [LIC] is directed to use Plot No.10 in
Jeevan Bhimanagar Layout, Bangalore only for the
purpose of a community centre for the benefit of the
residents of the layout and not otherwise. Parties to
bear their respective costs."
(Emphasis added)
A Division Bench of this Court rejected the contention of
the present petitioner that the construction of sales training
centre and hostel building was for community purpose and
allowed the writ petition and directed to use plot No.10 only for
the purpose of community centre for the benefit of residents of
the layout. It is after the judgment rendered by the Division
Bench, the 6th respondent - Mogaveera Sangha filed an
application seeking allotment of the said site in Jeevan Bhima
Nagar for the development of the fishermen community,
pursuant to which, a lease agreement was entered into between
the 6th respondent - Sangha and the 3rd respondent. The
petitioner had also filed W.P.No.23197/2005 claiming that site-
2P has to be left for the purpose of its development as a park
and an open space. This writ petition came to be dismissed.
The dismissal was called in question before a Division Bench in
W.A.No.325/2007 and other writ petition connected to the issue
were brought together before the Division Bench. The Division
Bench disposed the writ petition and the writ appeal by the
following order:
"5. The basic controversy raised in these matters was
whether plot No.2 measuring 1 acre 25 guntas situate
between Sector X, XI, 10th Cross Road, LIC Housing colony,
Jeevan Bima Nagar, Bangalore (for short 'plot No.2'), was
shown/reserved, in the layout formed by Bangalore
Development Authority ('BDA' for short) in the year 1975, as
civic amenity site or as open lung space. In the course of
hearing of these matters, we were taken through several
plans/maps by learned counsel appearing for the parties to
make their submissions good.
6. Even before we could form prima-facie opinion in
respect thereof, we noticed that in the master plan
approved under Section 13 of the Karnataka Town and
Country Planning Act, 1961 (for short 'Planning Act'),
and which is in operation as of today, plot No.2 is
shown as 'green area'. The master plan which is in
operation as of today, we were informed, was brought
into force in July 2007 and will operate till July 2015.
Then, we also noticed that in the master plan which
was in operation before July 2007, and which was
operating since 1995, plot No.2 was shown as
'residential zone'. Once having noticed this, we made a
specific query to the learned counsel appearing for the
BDA and so also the contesting respondent Nos.4 to 7,
whether any one of them has ever approached the
Government seeking change of user or rectification of
master plan or seeking correction of clerical error, if
any, and the answer was in the negative. In other
words, none of the respondents ever approached the
Government or applied to the Government seeking either
rectification of the master plan, or change of user or
seeking correction of clerical error, if any, in the
master plan under the provisions of the Planning Act.
Respondent No.6 claims that they made representation
to the Planning Authority viz., BDA seeking appropriate
relief. Insofar as, the site allotted to respondent no.6 is
concerned, their representation, for whatever reasons,
has not been considered/processed thereafter/further.
However, fact remains that no application as
aforementioned was made to the Government under the
provisions of the Planning Act.
7. In this view of the matter, it is clear that none of the
respondents-allottees of the sites in plot No.2 can make any
development as long as it continues to be green area in the
master plan. When we so expressed, learned counsel
appearing for respondents fairly stated that respondent Nos.4
to 7 shall not develop the sites allotted to them, which are part
and parcel of Plot No.2, as long as it continues to be Green
area in the Master Plan.
8. In this backdrop, we do not wish to examine
whether the Planning Authority-BDA was right in
allotting the sites in plot No.2 to respondent Nos.4 to 7
and whether allotments in their favour were legal in
view of the admitted fact that plot No.2 was and
continues to be green area in the master plan in
operation. Similarly, we have also not examined the
question whether the Government can either change the
user of plot No.2 or rectify the master plan so as to
allow respondent Nos.4 to 7 to develop the sites allotted
to them. We hope and trust that the Government, in the
event of any such application being made, shall
examine the same strictly in accordance with law and
follow the due procedure contemplated under the
Planning Act and the Bangalore Development Authority
Act, 1976 (for shot 'BDA Act'). We also hope and trust
that the Government while dealing with any such
application shall keep in view the requirement of open
space/park area/green area under the provisions of the
Planning Act and BDA Act. If respondent Nos.4 to 7 or
respondent No.1(BDA) approach the Government with
any such application, seeking any relief, the
Government shall not only follow the due procedure
under the Planning Act and BDA Act for either changing
the user or for rectifying the master plan, but shall also
give notices to the petitioners before passing any order
on such application/s. All contentions of the parties on
merits and the questions of law are kept open.
We also make it clear that we have not examined
rights of respondent Nos.4 to 7 seeking change of user
or rectification of the master plan. Before we part, we
once again observe as long as plot No.2 in the master
plan is shown as green area, respondent Nos.4 to 7
shall not carry out any development whatsoever.
Respondent No.2 being the planning Authority and
respondent No.3 Corporation shall see to it that no such
development is made either by these respondents or any
other person on plot No.2. We also make it clear that we
have not recorded reasons for passing this order since
learned counsel appearing for the parties in all
fairness stated that we need not do so. The appeals and
the writ petition are accordingly disposed of in terms of
this order."
(Emphasis supplied)
It is the afore-extracted judgment rendered by the Division
Bench on 23.09.2013 which were between the very same parties,
that nails the issue in the subject case as well.
14. The Division Bench of this Court at paragraph 6
(supra) clearly observes that if the plot No.2 is shown to be a
'green area' in the master plan of 2007, it was earlier shown to
be a residential zone in master plan - 1995. It is also observed
that no respondent has ever approached the Government or
applied to the Government seeking either rectification of master
plan, change of user or seeking correction of clerical error. The
Division Bench further observes that it would not enter into the
examination whether the Planning Authority-BDA was right in
allotting the sites in plot No.2 to respondents 4 and 7 therein
which is 6th respondent in the present petition or whether the
Government could grant change of land use or rectify the master
plan. This finding rendered by the Division Bench has become
final. The parties to the said judgment are the parties to the
present case as well. The petitioner having raised all such
available contentions earlier and those having been met in the
order passed (supra) are now wanting to re-agitate those issues.
15. The que that the petitioner seeks to draw is from the
judgment of the Division Bench in W.P.5319/1999 which is
earlier in time and did not deal with this issue in particular.
Though, it related to consideration of CDP of 1995, the
subsequent judgment of the Division Bench is binding on the
parties, as it has become final inter-parties and the parties to
the present lis are the same in the past lis.
16. The subsequent action is certain requisitions given to
all the wings of the Government by the 6th respondent - Sangha
for allotment of a site in plot No.2 by considering change of land
use. It is on the application, the process was initiated and after
hearing the parties the change of land use is permitted and the
6th respondent - Sangha is given possession of the said site -
civic amenity site No.2 (part IV) at HAL III stage, Jeevan Bhima
Nagar for usage of the 6th respondent - Sangha. This comes
about by a communication dated 13.11.2015 by the
Government, which reads as follows:
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Therefore, both the contentions of the petitioner that
procedure had not been followed and the petitioner - Society was
not heard prior to grant of change of land use, all have now lost
their legal legs to stand.
17. For the aforesaid reasons, I do not find any merit in the
writ petition. The same is accordingly dismissed.
In view of dismissal of the petition, I.A.Nos.2/2018 and
I.A.No.3/2018 do not survive for consideration. Accordingly,
stand disposed.
Sd/-
JUDGE
bkp
CT:MJ
