Karnataka High Court

M/S Valmark Developers vs Bangalore Development Authority on 5 June, 2023

Bench: Krishna S.Dixitpresided Byksdj

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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

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

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

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:

                                        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.

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

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

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 2023

6 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.

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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WP No. 8121 of 2023

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 2023

tertiary. The said Note Items being in the colloquial, have

the following text:

"F CA±ÀUÀ¼À£ÀÄß ¥ÀjUÀtÂ¹ ªÉÄÃ°£À ¸ÀªÉð £ÀA.5, 6 ºÁUÀÆ 9 gÀ°ègÀÄªÀ ¤ÃgÀÄUÁ®ÄªÉUÀ¼ÀÄ ¥ÉæöÊªÀÄj, ¸ÉPÉAqÀj ºÁUÀÆ mÉjµÀj £Á¯ÁUÀ¼À ªÀUÀðzÀ ªÁå¦ÛUÉ §gÀÄªÀÅ¢®èªÉAzÀÄ EªÀÅUÀ¼À£ÀÄß PÉÆgÀPÀ®Ä ºÀ¼ÀîUÀ¼ÀÄ JAzÀÄ C©ü¥Áæ¬Ä¸À¯ÁVzÉ.

DA±À (2) gÀ°è w½¹gÀÄªÀAvÉ PÀAzÁAiÀÄ E¯ÁSÉ¬ÄAzÀ ¸ÀªÉð ªÀiÁr ¤ÃrgÀÄªÀ ZÀAzÀæ±ÉÃRgÀ¥ÀÄgÀ ¸ÀªÉð £ÀPÉëAiÀÄ°è vÉÆÃjgÀÄªÀAvÉ ¸ÀªÉð £ÀA.5 gÀ°è 01 UÀÄAmÉ ¸ÀªÉð £ÀA. 06 gÀ°è 02 UÀÄAmÉ ªÀÄvÀÄÛ ¸ÀªÉð £ÀA.09 gÀ°è 04 UÀÄAmÉ RgÁ§Ä ¥ÀæzÉÃ±ÀªÀ£ÀÄß ºÁUÀÆ ¤ÃgÀÄUÁ®ÄªÉAiÀÄ£ÀÄß ¸ÀÜ¼ÀzÀ°è UÀÄgÀÄw¹ ¸ÀÜ¼ÀªÀ£ÀÄß PÁ¬ÄÝj¹PÉÆAqÀÄ ªÀÄÄA¢£À PÀæªÀÄPÉÊUÉÆ¼Àî§ºÀÄzÁVzÉ 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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WP No. 8121 of 2023

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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WP No. 8121 of 2023

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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WP No. 8121 of 2023

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.