The Chief Commissioner vs Smt Bhavani Yellappa Palyagar
2023 Latest Caselaw 3068 Kant

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                                              NC: 2023:KHC:19764-DB
                                                    WA No. 643 of 2023




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 9TH DAY OF JUNE, 2023

                                    PRESENT
             THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
                                        AND
                       THE HON'BLE MR JUSTICE M.G.S. KAMAL
                      WRIT APPEAL NO. 643 OF 2023 (LB-BMP)


             BETWEEN:

             1.    THE CHIEF COMMISSIONER

             2.    THE JOINT DIRECTOR OF
                   TOWN PLANNING
                   (TOWN PLANNING NORTH)

                   BOTH OFFICE AT
                   BRUHAT BENGALURU MAHANAGARA PALIKE
                   N R SQUARE
Digitally          BENGALURU-560 002.
signed by
SUMA B N
             3.    THE ASSISTANT
Location:          EXECUTIVE ENGINEER
High Court
of                 WARD NO.150, BBMP
Karnataka          MAHADEVAPURA ZONE
                   BENGALURU-560 048.
                                                         ...APPELLANTS
             (BY SRI. MONESH KUMAR K B., ADVOCATE)

             AND:

             1.    SMT BHAVANI YELLAPPA PALYAGAR
                   W/O SRI SHANTHA KUMAR PUSHPARAJAN
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                                 NC: 2023:KHC:19764-DB
                                       WA No. 643 of 2023




     AGED ABOUT 62 YEARS
     R/AT SHANTHI NIVAS, I CROSS
     VIVEKNAGAR
     BENGALURU-560 047.
     REP. BY HER GPA HOLDER
     MAARQ SPACES PRIVATE LIMITED
     OFFICE AT NO.73, II MAIN ROAD
     PALACE GUTTAHALLI
     BENGALURU-560 003.

2.   MAARQ SPACES PRIVATE LIMITED
     OFFICE AT NO.73, II MAIN ROAD
     PALACE GUTTAHALLI
     BENGALURU-560 003
     REP. BY THEIR DIRECTOR
     SRI. BALAKRISHNA KUDIGRAM

3.   STATE OF KARNATAKA
     DEPARTMENT OF URBAN DEVELOPMENT
     VIKAS SOUDHA
     DR AMBEDKAR VEEDHI
     BENGALURU-560 001
     REP. BY ITS SECRETARY

4.   BENGALURU DEVELOPMENT AUTHORITY
     T CHOWDAIAH ROAD
     KUMARA PARK (W)
     BENGALURU-560 001
     REP. BY ITS COMMISSIONER.

                                          ...RESPONDENTS
(BY SRI. S.S. MAHENDRA AGA FOR R3)

      THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO a). CALL FOR
RECORDS IN WP No. 24206 OF 2022 (LB-BMP) AND BE
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                                           NC: 2023:KHC:19764-DB
                                                     WA No. 643 of 2023




PLEASED TO SET ASIDE THE ORDER PASSED BY THE LEARNED
SINGLE JUDGE IN WP No.24206 OF 2022 DATED 19.04.2023
AND BE FURTHER PLEASED TO DISMISS THE WRIT PETITION,
b). PASS SUCH OTHER ORDER/s DIRECTIONS AS THIS HONBLE
COURT MAY DEEM FIT JUST AND PROPER CONSIDERING THE
FACTS AND CIRCUMSTANCES OF THE CASE TOGETHER AS TO
EXEMPLARY COSTS TO SERVE THE COSTS TO SERVE THE ENDS
OF JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, M.G.S.KAMAL J., DELIVERED THE FOLLOWING:

                            JUDGMENT

This writ appeal is against the order dated

19.04.2023 passed in W.P.No.24206/2022 by which this

Court while allowing the writ petition filed by the

respondents 1 and 2 quashing the endorsement dated

22.08.2022 issued by the appellant No.2 herein, further

directed the appellant No.2 herein to process the

application of the respondents 1 and 2 for issuance of

occupancy certificate and to grant the same if the

construction is put up in accordance with the sanctioned

NC: 2023:KHC:19764-DB WA No. 643 of 2023

plan and after examining all applicable rules therein within

a period of five weeks.

2. Respondent No.1 claiming to be the owner of

converted property in Sy.No.153/3 measuring 1 acre and

24 guntas situated in Doddakannahalli Village, Varthur

Hobli, Bangalore South Taluk having entered into Joint

Development Agreement with respondent No.2 for the

purpose of construction of apartment complex thereon had

applied for sanction plan which was issued by appellant

No.2 on 19.01.2018 on compliance with all the

requirements. A building license was also issued. That

the respondents 1 and 2 had obtained no objection

certificates from all the concerned authorities and a

commencement certificate was also issued on 28.02.2019

by appellant No.2, pursuant to which construction was

commenced, continued and completed. The respondents 1

and 2 thereafter filed application on 26.05.2022 seeking

issuance of an occupancy certificate. In response to which

respondent No.2 declined to issue the occupancy

NC: 2023:KHC:19764-DB WA No. 643 of 2023

certificate on the premise that there was a proposed road

measuring 18 meters running through the property of

respondents 1 and 2 in terms of RMP 2015 and that

respondents 1 and 2 had encroached upon the said

proposed road. Aggrieved by the same the present writ

petition was filed by the respondents 1 and 2 contending

that the Master Plan 2031 had been issued on 23.11.2017

in which there was no proposed road. That the sanction

plan was issued on 19.01.2018 taking into consideration

the provisional master plan 2031. That the respondents

commenced and completed the construction as per the

sanction plan on 26.05.2022. The withdrawal of the

provisional RMP 2031 on 20.06.2022 cannot be a ground

to deny the issuance of occupancy certificate.

3. Taking into consideration of the aforesaid factual

aspect of the matter the aforesaid writ petition was

allowed granting the relief as noted above. Aggrieved by

the same, appellant-authorities are before this Court.

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4. Sri.Monesh Kumar K.B., learned counsel

appearing for the appellants reiterating the grounds urged

in the memorandum of appeal submitted that the

respondents 1 and 2 had not disclosed the correct facts

with regard to subsistence of correct position of RMP 2031.

That the plan sanction, issuance of commencement

certificate did not have reference to RMP 2015. That the

RMP 2031 was never in existence and was only an

informal document inasmuch as it was provisionally

published and later withdrawn. That the Bruhat Bengaluru

Mahanagara Palike discovered that the construction made

by the respondents 1 and 2 was on 18 meters proposed

road when the said road was being formed by the Bruhat

Bengaluru Mahanagara Palike. Therefore, the respondents

1 and 2 were called upon to remove the construction and

to pave way for the formation of 18 meters road. As such,

question of issuance of occupancy certificate would not

arise. Thus, he submits that it was the obligation on the

part of the respondents 1 and 2 to have disclosed the

existence of road as mentioned in RMP 2015 wherein

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18 meters road was disclosed before obtaining the

sanction plan. Hence, seeks for allowing of the appeal by

setting aside the impugned order.

5. Heard the learned counsel for the appellants.

Perused the records.

6. We are unable to accept the aforesaid contention

of the appellants. Needless to mention that it is statutory

duty and obligation on the part of the appellant-authorities

to examine all the prevalent Laws, Rules, Regulations and

Guidelines before issuing any permission/plan for

construction. As the facts indicate RMP 2015 has come

into force on 25.06.2007 wherein proposed 18 meters

wide road is shown. However, provisional Master Plan

2031 has been issued on 23.11.2017 in which Bengaluru

Development Authority appears to have given up the said

proposed 18 meters wide road. The sanction plan has

been issued in favour of the respondents 1 and 2

subsequent to issuance of notification regarding

provisional Master Plan 2031. It is on record that the

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respondents 1 and 2 had obtained no objection certificates

from the concerned statutory authorities which were

considered by Bruhat Bengaluru Mahanagara Palike while

sanctioning the plan. Bruhat Bengaluru Mahanagara

Palike has also admittedly issued commencement

certificate on 28.02.2019 after verification with regard to

foundation of footings, walls and columns and has certified

that the construction was in accordance with the sanction

plan. The construction having been completed, the

respondents have sought for issuance of occupancy

certificate by filing application on 26.05.2022 and upon

inspection no deviation has been found during construction

either. It is necessary to note when the application for

issuance of occupancy certificate was made provisional

Master Plan 2031 was still in force and it was only stated

to have been withdrawn subsequently i.e., on 20.06.2022.

7. In the aforesaid factual aspects of the matter as

rightly observed by learned Single Judge that only on the

ground of withdrawal of RMP 2031 by the State

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Government on 20.06.2022 refusal of issuance of

occupancy certificate cannot be justified. The appellant-

authorities have issued sanction plan, commencement

certificate and having allowed the respondents 1 and 2 to

commence, continue and complete the construction cannot

find any fault with the respondents 1 and 2 on the ground

of subsequent change in the position of master plan.

In view of the above, no grounds are made out

warranting interference with the order passed by the

learned Single Judge in allowing the writ petition and

issuing direction as noted above. Consequently writ

appeal is dismissed.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

SBN