Karnataka High Court
M/S Sjr Prime Corporation Pvt Ltd vs Bruhat Bengaluru Mahanagara ... on 6 October, 2023
Bench: Hemant Chandangoudar
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WP No. 975 of 2018
C/W WP No. 11126 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 975 OF 2018 (LB-BMP)
C/W
WRIT PETITION NO. 11126 OF 2022 (LB-BMP)
IN WRIT PETITION NO.975/2018:
BETWEEN:
M/S. SJR PRIME CORPORATION PVT LTD
SJR PRIMUS,
7TH FLOOR, #1 INDUSTRIAL LAYOUT,
KORAMANGALA 7TH BLOCK,
BANGALORE-560 095
REPRESENTED BY ITS MANAGING DIRECTOR,
MR. J. VIJAY REDDY.
...PETITIONER
(BY SRI. VIVEK HOLLA, ADVOCATE FOR
SRI. MAYA HOLLA, ADVOCATE)
Digitally signed by B AND:
K
MAHENDRAKUMAR
Location: HIGH 1. BRUHAT BENGALURU MAHANAGARA PALIKE
COURT OF
KARNATAKA N.R. CIRCLE,
BANGALORE-560 002,
REPRESENTED BY ITS COMMISSIONER.
2. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R. CIRCLE,
BENGALURU-560 002.
3. MR. K.S. RAVI
S/O SHIVALINGIAH,
AGED ABOUT 39 YEARS,
R/AT NO.148, 6TH CROSS,
-2-
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SARASWATHI NAGAR, VIJAYANAGAR,
BENGALURU-560 040.
(R-3 AMENDED VIDE COURT ORDER DATED 6.6.2022)
...RESPONDENTS
(BY SRI N.R. JAGADEESHWARA, ADVOCATE FOR R1 & R2;
SRI H.R. NARAYANA RAO, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
BEARING NO.BBMP/PSR(A)/783/2017-2018 DATED 1.1.2018 ISSUED
BY THE COMISSIONER, BRUHAT BENGALURU MAHANAGARA PALIKE,
THE R-2 HEREIN [ANNEXURE-Z] AND ETC.
IN WRIT PETITION NO.11126/2022:
BETWEEN:
1. SRI K.N. MOHAN
S/O LATE NARAYAN REDDY,
AGED ABOUT 63 YEARS,
R/AT NO.446, 28TH MAIN,
1ST SECTOR, HSR LAYOUT,
BANGALORE-560 102.
2. SMT. SHARADAMMA
W/O LATE SRI K. NARAYANA REDDY,
AGED ABOUT 91 YEARS,
R/AT FLAT NO.2009,
WAMA IBBANI,
KASAVANAHALLI MAIN ROAD,
KASAVANAHALLI,
BENGALURU-560 035.
...PETITIONERS
(BY SRI. SUNIL RAO, ADVOCATE)
AND:
1. B.B.M.P
REPRESENTED BY ITS HEAD OF LEGAL CELL
HAVING OFFICE AT:
5TH FLOOR, LEGAL CELL,
N.R. SQUARE, CORPORATION CIRCLE,
BANGALORE-560 001.
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2. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R. CIRCLE,
BANGALORE-560 002.
...RESPONDENTS
(BY SRI SATYANAND B.S., ADVOCATE FOR R-1 & R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
BEARING NO.BBMP/PSR(A)/783/2017-18 DATED 01.01.2018 ISSUED
BY THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALKE
THE R-2 VIDE ANENXURE-A.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED
ON 30.09.2022 FOR ORDERS AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING
ORDER
The order dated 1.1.2018 passed by the 2 respondent,
nd
by which, the sanctioned building plan and occupancy
certificate issued in favour of the petitioners are cancelled is
impugned in these petitions.
2. W.P.No.975/2018 is filed by the Developer who
constructed the multistoried building on the subject property in
terms of the joint development agreement entered with the
owners of the subject property.
3. W.P.No.11126/2022 is filed by the owners of the
subject property and who had entered into joint development
agreement with the petitioners in W.P.No.975/2018 for
developing the subject property.
4. The parties are referred to their respective rankings
in W.P.No.975/2018 for the sake of convenience.
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5. The petitioners state that, after obtaining all
necessary clearances from the authorized statutory Authorities,
and also sanctioned building plan from the BDA and BBMP,
constructed the multistoried apartment complex on the
schedule property, and subsequent thereto, the petitioners
after obtaining the fire clearance certificate from the Director of
Fire Services and Emergency Services approached the BBMP for
issuance of occupancy certificate on 17.11.2015. The BBMP
after conducting the spot inspection and after having been
satisfied that the construction put up is in accordance with law
issued the occupancy certificate on 26.11.2016.
6. The petitioners state that a show cause notice was
issued by the Additional Director, Town Planning, BBMP, calling
upon the petitioners, as to why the occupancy certificate should
not be withdrawn alleging that the petitioners have not
maintained a buffer zone of 75.00 meters from the edge of the
lake in terms of the order dated 4.5.2016 passed by the
National Green Tribunal (for short `NGT') in OA No.222/2014,
and further called upon the petitioners to furnish reply within
three days i.e. 29.12.2017, failing which, action will be taken
for cancellation of occupancy certificate.
7. The petitioners state that, the show cause notice
was suitably replied on 29.12.2017, and on 1.1.2018, the
2 nd
respondent passed the impugned order cancelling the
building plan dated 29.5.2014 and the occupancy certificate
26.11.2016. Hence, these petitions.
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8. The learned counsel for the petitioners would make
the following submissions:
a) The 2 respondent has not afforded the petitioners
nd
an opportunity of hearing before passing the impugned
order. In fact the notice and proceedings were conducted
post haste with hardly two days being given to the
petitioners to respond to the show cause notice.
b) The 2 respondent in the show cause notice called
nd
upon the petitioners only to show cause as to why the
occupancy certificate granted should not be
cancelled/withdrawn as the petitioners had allegedly
violated the order dated 4/5/2016 passed by the NGT by
not leaving a buffer zone of 75m form the boundary of
the tank. But the 2 nd
respondent in its order dated
1.1.2018 cancelled the building plan dated 29.5.2014 and
the occupancy certificate dated 26.11.2016 issued in
favor of the petitioners with immediate effect only on the
ground that there is an alleged construction of a driveway
and a boundary wall within the 30M buffer zone as
stipulated under the Revised Master Plan - 2015 framed
under the provisions of the Karnataka Town and Country
Planning Act, 1961 and also the NOCs issued by the
competent authorities were not in subsistence. Hence the
2 respondent travelled beyond the scope of its showcase
nd
notice.
c) The order dated 4.5.2016 passed in OA 222/2014
by the NGT, which formed the basis of the show cause
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notice by the 2 respondent was set aside by the Hon'ble
nd
Supreme Court of India in (2019) 18 SCC 494. Therefore,
when the very basis of the order having been set aside by
the Hon'ble Supreme Court, the order passed by the 2 nd
respondent is liable to be set aside.
d) As per the show cause notice issued by Additional
Town Planning B.B.M.P, dated 26.12.2017, it was stated
that as per the Revised Master Plan 2015 and Building
Bye-law 4.12.2(ii) of (iii) the buffer zone from the
periphery of the lake was supposed to be 30 meters,
therefore the plan was sanctioned to the project
proponent in respect of schedule property was sanctioned
by leaving the buffer zone or set back as 30 meters.
e) In-terms of Rule 4.12 of the Zoning of land-use and
regulations - Revised Master Plan, 2015, the petitioners
are permitted to put up Roads, Pathways etc. Therefore
the petitioners have not violated any of the laws of the
land.
f) The order passed by the 1 respondent is contrary
st
to the show cause notice issued by respondent No.2. The
1st respondent in the impugned order has cancelled the
sanctioned plan. Whereas, in the show cause notice
issued by the respondents, the petitioners were only
asked to show cause as to why the occupancy certificate
granted should not be cancelled. Therefore, the
petitioners were not even put to notice that the
respondents were resorting to cancel the sanction plan.
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g) Having regard to the aforesaid judgment passed by
the Hon'ble Supreme Court, the set back of 75 meters
from the periphery of the lake which was prescribed by
the NGT was set aside and the Hon'ble Supreme Court
directed to maintain a buffer of 30 meters from the
periphery of the lake. As could be seen from the plan
sanctioned and the show cause notice, the petitioners
maintained a setback of 30 meters from the periphery of
the lake. Therefore, the show cause notice and the order
passed by the NGT is illegal and the same cannot be
enforced.
9. Sri S. N. Bhat, learned Senior Advocate for the
respondent No.3 in WP No.975/2018 would make the following
submissions:
a) The impugned order passed by the BBMP cancelling
the building license and occupancy rights is in conformity
with the order dated 7.5.2015 and 4.5.2016 passed by
the National Greens Tribunal wherein it is categorically
held that the construction put up by the petitioners within
the buffer zone limits of Kaikondarahalli lake is illegal.
b) The consequential order passed by the BBMP
without challenging the order passed by the NGT is not
maintainable.
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c) The matter involving the environmental issues
should be exclusively instituted and litigated before the
NGT. In support, he places reliance on the decision of the
Hon'ble Supreme Court in the case Bhopal Gas Peedith
Mahila Udyog Sangathan and Others -V- Union of
India and Ors, reported in (2012) 8 SCC 326.
d) The project in question falls within 30 meters of
Kaikondarahalli village. Hence, the construction put up
within the buffer zone is impermissible and BBMP has
rightly passed the impugned order.
e) The Kaikondarahalli village is identified as wetland
which is evident from the National WetLand Inventory and
Assessment, and under the WetLand (Conservation and
Management) Rules, 2017, no construction within 50
meters from the High Flood Line of the lake is
permissible.
f) The building license granted in contravention of
zonal regulations and the provisions of Karnataka Town
and Country Planning Act is void.
10. Considered the submissions of the learned counsel
for the parties.
11. The learned counsel for the BBMP would submit that
the construction put by the petitioners is in violation of the
sanctioned building plan and also the Regulations contained in
the Master Plan - 2015. Hence, the impugned order passed is
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strictly in conformity with the provisions of law and the same
does not warrant any interference.
12. The points that arise for consideration are as
follows;
a) Whether the writ petitions challenging the impugned
order passed by the BBMP are maintainable?
b) Whether the cancellation of the sanctioned building
plan and the occupancy certificate issued in favour of the
petitioners is in conformity with the provisions of law?
13. Since the points raised for consideration are
interlinked, they are taken up together.
14. The National Green Tribunal, New Delhi, in OA
No.222/2014 by order dated 4.5.2016 issued the following
general conditions or directions:
"General Conditions or directions:
1. In view of discussion in the main Judgment, we
are of the considered view that the fixation of distance
from water bodies (lakes and Rajkalewas) suffers from
the inbuilt contradiction, legal infirmity and is without
any scientific justification. The RMP - 2015 provides 50m
from middle of the Rajkalewas as buffer zone in the case
of primary Rajkalewas, 25m in the case of secondary
Rajkulewas and 15m in the tertiary Rajkulewas in
contradiction to the 30m in the case of lake which is
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certainly much bigger water body and its utility as a
water body/ wetland is well known certainly part of
wetland. Thus, we direct that the distance in the case of
Respondents Nos. 9 and 10 from Rajkulewas, Water
Bodies and wetlands shall be maintained as below:-
(i) In the case of Lakes, 75m from the periphery
of the water body to be maintained as green belt
and buffer zone for all the existing water bodies
i.e. lakes/wetlands.
(ii) 50m from the edge of the primary
Rajkulewas.
(iii) 35m from the edges in the case of secondary
Rajkulewas.
(iv) 25m from the edges in the case of tertiary
Rajkulewas.
This buffer/green zone would be treated as no
construction zone for all intent and purposes. This is
absolutely essential for the purposes of sustainable
development particularly keeping in mind the ecology
and environment of the areas in question.
All the offending constructions raised by
Respondents Nos. 9 and 10 of any kind including
boundary wall shall be demolished which falls within
such areas. Wherever necessary dredging operations are
required, the same should be carried out to restore the
original capacity of the water spread area and/or
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wetlands. Not only the existing construction would be
removed but also none of these Respondents - Project
Proponents would be permitted to raise any to
construction in this zone.
15. The respondent Nos.9 and 10 in OA No.222/2014
challenged the order passed by the NGT before the Hon'ble
Supreme Court in Civil Appeal Nos.5016 and 8002-03/2016.
16. In the aforesaid appeal, the State of Karnataka
contended that it was aggrieved by the order of the NGT to the
extent of setting aside the buffer zone in respect of water
bodies and drains specified in the RMP 2015, and enlargement
of buffer zone in respect of lakes and Rajakaluve.
17. The Hon'ble Supreme Court by order dated
5.3.2019 disposed of the appeals with the following
observations and directions:
58. After elaborately considering this question, the
Tribunal has concluded as under : (Forward Foundation
case [Forward Foundation v. State of Karnataka, 2015
SCC OnLine NGT 5] , SCC OnLine NGT para 51)
"51. ... For these reasons, we find no merit in this
contention of Respondents 9 and 10. The purpose
of the doctrine of res judicata is to provide finality
and conclusiveness to the judicial decisions as
well as to avoid multiplicity of litigation. In the
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present case, the question of reagitating the
issues or agitating similar issues in two different
proceedings does not arise. The ambit and scope
of jurisdiction is clearly decipherable. The
jurisdictions of the Hon'ble High Court of
Karnataka and this Tribunal are operating in
distinct fields and have no commonality insofar as
the issues which are raised directly and
substantially in these petitions, as well as the
reliefs that have been prayed for before the
Hon'ble High Court and the Tribunal are
concerned. There is no commonality in parties
before the Tribunal and the High Court. The
"cause of action" in both proceedings is different
and distinct. The matters substantially and
materially in issue in one proceeding are not the
same in the other proceeding. There is hardly any
likelihood of conflicting judgments being
pronounced by the Tribunal on the one hand and
the High Court on the other. Therefore, we are of
the considered view that the present applications
are neither hit by the principles of res
judicata nor constructive res judicata. We also
hold that culmination of proceedings before the
Tribunal into a final judgment would not offend
the principle of "judicial propriety", because of the
writ petitions pending before the Hon'ble High
Court of Karnataka."
59. We do not find any error in the aforesaid conclusion
of the Tribunal. We are of the view that the Tribunal was
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justified in holding that the objections taken by
Respondents 9 and 10 do not satisfy the basic
ingredients to attract the application of res judicata or
constructive res judicata.
60. The State of Karnataka is aggrieved by the following
offending portion of the order dated 4-5-2016 [Forward
Foundation v. State of Karnataka, 2016 SCC OnLine NGT
1409]: (Forward Foundation case [Forward
Foundation v. State of Karnataka, 2016 SCC OnLine NGT
1409] , SCC OnLine NGT)
"1. In view of our discussion in the main
judgment, we are of the considered view that the
fixation of distance from water bodies (lakes and
Rajkalewas) suffers from the inbuilt contradiction,
legal infirmity and is without any scientific
justification. The RMP 2015 provides 50 m from
middle of the Rajkalewas as buffer zone in the
case of primary Rajkalewas, 25 m in the case of
secondary Rajkulewas and 15 m in the tertiary
Rajkulewas in contradiction to the 30 m in the
case of lake which is certainly much bigger
waterbody and its utility as a waterbody/wetland
is well known certainly part of wet land. Thus, we
direct that the distance in the case of
Respondents 9 and 10 from Rajkulewas, water
bodies and wetlands shall be maintained as
below--
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(i) In the case of lakes, 75 m from the periphery
of the waterbody to be maintained as green belt
and buffer zone for all the existing water bodies
i.e. lakes/wetlands.
(ii) 50 m from the edge of the primary
Rajkulewas.
(iii) 35 m from the edges in the case of secondary
Rajkulewas.
(iv) 25 m from the edges in the case of tertiary
Rajkulewas.
a. This buffer/green zone would be treated as no
construction zone for all intent and purposes. This
is absolutely essential for the purposes of
sustainable development particularly keeping in
mind the ecology and environment of the areas in
question.
b. All the offending constructions raised by
Respondents 9 and 10 of any kind including
boundary wall shall be demolished which falls
within such areas. Wherever necessary dredging
operations are required, the same should be
carried out to restore the original capacity of the
water spread area and/or wetlands. Not only the
existing construction would be removed but also
none of these respondents -- project proponents
would be permitted to raise any construction in
this zone.
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c. All authorities particularly Lake Development
Authority shall carry out this operation in respect
of all the water bodies/lakes of Bangalore."
(emphasis in original)
61. We have already noticed that Shri Poovayya has no
objection to set aside the aforesaid impugned portion of
the order insofar as the appellants in all the appeals
except the appeals filed by Respondents 9 and 10 are
concerned. The aforesaid portion of the order contains
not only general directions but also certain directions
against Respondents 9 and 10. Therefore, only that
portion of the order which does not pertain to
Respondents 9 and 10 needs to be quashed.
62. In the light of the above discussion, we pass the
following order:
62.1. Civil Appeal No. 5016 of 2016 and Civil Appeals
Nos. 8002-03 of 2016 filed by the appellant-
Respondents 9 and 10 are hereby dismissed. The
impugned judgment and order insofar as the appellant-
Respondents 9 and 10 are concerned is sustained.
62.2. All the other appeals are hereby allowed and
Direction/Condition (1) in the order dated 4-5-2016
[Forward Foundation v. State of Karnataka, 2016 SCC
OnLine NGT 1409] is hereby set aside except the
direction issued against Respondents 9 and 10.
63. There will be no order as to costs.
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18. The Hon'ble Supreme Court has set aside the
direction issued by the NGT to maintain 75 meter from the
periphery of water body as green belt and buffer zone for all the
existing water body i.e. lakes/wetlands except the directions
issued to the respondents No.9 and 10 and insofar it relates to
other directions, the same were confirmed.
19. In light of the directions issued by the NGT, the
respondent - BBMP issued a notice dated 26.12.2017
(Annexure-X in WP No.975/2018) calling upon the petitioners
as to why possession/occupancy certificate should not be
cancelled for having put up construction on the subject property
which falls within the 75 meters from the boundary of
Kaikondanahalli lake. The petitioners submitted a reply dated
29.12.2017 (Annexure-Y in WP No.975/2018) to the show
cause notice stating that the construction put up on the subject
property is in accordance with the sanctioned and development
plan and the directions issued by the NGT is not applicable to
the petitioners' project.
20. Though the show cause notice issued by the
respondent - BBMP was with reference to construction put up by
the petitioners in violation of the directions issued by the NGT
prohibiting construction within 75 meter from the boundary of
lake/wetlands, the impugned order was passed for the following
violations:
04. It is stated that the mandatory requirement of the
obtaining the NOC From Karnataka State Fire Fighting &
Emergency Services for the high rise building including
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the present building in question is not complied with
because in the teeth of the above said restraining order
passed by the NGT, the NOC dated 12.6.2015 was
issued for a period of 2 years.
05. Therefore, for this reason also the sanctioning of
NOC by the Fire Services department dated 12/6/2015
in GBC(1)141/2010 in non-est, nullity, invalid and
inoperative. Moreover, even otherwise as on today the
above said NOC has lapsed as on 12.6.2017 and there is
no valid NOC as on today for this building in question.
06. Also, as per the Karnataka Government
Notification dated 7.7.2011 vide No. HD 33 SFB 2011,
the relevant clauses are extracted as under-
1) Bruhat Bangalore Mahanagara Palike or Local
Municipal Authority shall not grant building
plans/licenses without obtaining No Objection
Certificate from Fire and Emergency Services.
5) The owner/Association of all the High Rise
Building shall get their building inspected by the
agencies empaneled by the Fire and Emergency
Services Department to ensure that the fire
equipment installed are in good and working
condition. An affidavit about the working
conditions of the system along with an inspection
report shall be submitted to the Fire and
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Emergency Services Department and BBMP or
Local Municipal Authority once in every two
years.........."
Therefore, the conditions/provisions in the said
notification are also not complied with and it is violated.
Hence, the building plan is contrary to law, it is invalid
and inoperative.
07. ZONING REGULATION and/or BUFFER ZONE
VIOLATIONS
Regulation Number 4.12.1(ii) of the Revised Master
Plan-2015 (RMP-2015) is as under:-
"ii) Valley/ drain
Within the demarcated buffer for the valley the following
uses are allowed:
i. Sewerage Treatment Plants and Water
treatment plants
ii. Roads, pathways, formation of drains, culverts,
bridges, etc which will not obstruct the water
course, run offs, channels.
iii. In case of water bodies a 30.0 m buffer of no
development zone' is to be maintained around the
lake (as per revenue records) with exception of
activities associated with the lake and this buffer
may be taken into account for reservation of park
while sanctioning plans.
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iv. If the valley portion is a part of the layout/
development plan, then that part of the valley
zone could be taken into account for reservation
of parks and open spaces both in development
plan and under subdivision regulations subject to
fulfilling section 17 of KTCP Act, 1961 and sec 32
of BDA Act, 1976.
v. Any land falling within the valley for which
permission has been accorded either by the
Authority or Government, and then such
permission shall be valid irrespective of the land
use classification in the RMP 2015. Fresh
permissions for developments shall not be
accorded in the valley zone.
NOTE:
Drains: The drains have been categorized into 3 types
namely primary, secondary and tertiary. These drains
will have a buffer of 50, 25 and 15m (measured from
the centre of the drain) respectively on either side.
These classifications have been used for the drains
newly identified while finalizing the RMP 2015. In case
the buffer has not been marked due to cartographical
error for any of the above types of drains, then based on
the revenue records buffer shall be insisted in all such
cases without referring the land use plan while according
approval for building/development/ layout plan.
Permissions in sensitive areas earmarked on the land
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use plan shall be considered only by the planning
Authority."
9. The lands in question are in property number in 3806,
Survey Number 68 situated in Kasavanahalli, Marathalli
sub-division, Ward No.150, Mahadevapura Zone,
Bengaluru, which is situated abutting the
Kaikondarahalli Lake and as per the then prevailing law
that is the Revised Master Plan-2015 (RMP-2015) the
Lake buffer line was 30 meters from the said lake and
that this project is partly inside the 30 meters lake
buffer zone.
10. The building plan indicates that inside the 30 meters
lake buffer zone, construction for an 8 meters wide
driveway is shown and this is in fact constructed and
further next there is boundary wall that is additionally
constructed. Hence, it is clear that these constructions
inside the lake buffer zone and sanctioning of the
building plan and license is contrary to the buffer zone
limits stipulated under Zoning Regulation Number
4.12.1(ii) of the Revised Master Plan-2015 (RMP-2015)
framed under the provisions of the Karnataka Town and
Country Planning Act, 1961 (KT & CP Act).
08. VIOLATIONS OF THE PROVISIONS OF THE
KARNATAKA MUNICIPAL CORPORATIOS ACT, 1976 (in
short KMC Act)
11. In view of the zoning regulations violations and/or
buffer zone violations and consequently non-compliance
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of the provisions of the Karnataka Town and Country
Planning Act, 1961, consequently there is violation of
Section 505 (ii) of the KMC Act. Section 505 of the KMC
Act is extracted as under:-
"505. Exercise of powers by a corporation to be in
conformity with the provisions of the Karnataka
Town and Country Planning Act, 1961.-
Notwithstanding anything contained in this Act, a
corporation or any officer or. other authority
required by or under this Act to exercise any
power, or perform any function or discharge any
duty-
(i) with regard to any matter relating to land use
or development as defined in the Explanation to
section 14 of the Kamataka Town and Country
Planning Act 1961, shall exercise such power, or
perform such function or discharge such duty with
regard to such land use or development plan or
where there is no development plan, with the
concurrence of the Planning Authority;
(u) shall not grant any permission, approval or
sanction required by or under this Act to any
person if it relates to any matter in respect of
which compliance with the provisions of the
Karnataka Town and Country Planning Act, 1961
is necessary unless evidence in support of having
complied with the provisions of the said Act is
produced by such person to the satisfaction of the
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corporation or the officer or other authority, as
the case may be."
12. Therefore, because of the above said non-
compliance and violations of the kaikondarahalli lake
buffer zone limit. Cumulatively, there is non-compliance
of the provisions of the KT & CP Act, 1961 and zoning
regulations. Hence, there is violation of section 505(ii) of
the KMC Act and accordingly the permissions, sanction
of building plan, license & Occupancy Certificate are
invalid, nullity, non-est and inoperative.
13. In this context, the directions passed by the NGT in
OA No.222/2014 in order dated 4.5.2016 is relevant to
also indicate that even boundary wall constructions
inside the buffer zone limits amounts to constructions in
violation of the buffer zone stipulations, the said
directions are as under-
"General Conditions or directions or Directions:
1. ................All the offending constructions raised by
Respondents Nos 9 and 10 of any kind including
boundary wall shall be demolished which falls within
such areas............"
14. In fact, the occupancy certificate for the High Rise
residential apartment project situated in the lands in
question is issued on 26.11.2016. In this context, the
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directions passed by the National Green Tribunal,
Principal Bench, New Delhi in OA No.222/2014 in order
dated 4.5.2016 is applicable and it is as under-
"General Directions:
1. The distances in respect of buffer zone specified in
this judgment shall be made applicable to all the
projects and all the Authorities concerned are directed
incorporate such conditions in the projects to whom
Environmental Clearances and other permissions are
now granted not only around Bellanduru Lake,
Rajakaluves, Agara Lake, but also all other
Lakes/wetlands in the city of Bengaluru".
09. NO RENEWAL OF CONSENT UNDER SECTION 25
OF THE WATER (prevention and control of
pollution) Act
15. In fact, the project proponent has no mandatory
consent for the project since from October 2017, the
consent (Consent for Operation/CFO) from the
Karnataka State Pollution Control Board for the purpose
of operation and running of High Rise residential
apartment complex of 529 units.
21. The petitioners were not provided with an
opportunity to reply as to whether the necessary no objection
certificate from the Fire Service Department/consent under
Section 25 of the Water (Prevention and Control of Pollution)
Act were subsisting or not.
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22. As on the date, when the occupancy certificate was
issued, the No Objection Certificate issued by the Karnataka
State Fire Fighting and Emergency Services was in subsistence
and also the consent granted by the Karnataka State Pollution
Control Board under the Water Act.
23. The petitioners were required to maintain a set back
of 30 meters from the periphery of the Kaikondanahalli lake in
light of the directions issued by the Hon'ble Supreme Court and
also RMP-2015.
24. The Karnataka State Pollution Control Board vide
communicated dated 23.9.2019 addressed to the Registrar,
NGT stating that the detailed survey carried out by the
Department of Survey, Settlement and Land Records indicates
that, the subject land is adjoining Kaikondanahalli lake and rain
water harvesting tank, park, tennis Court and part of driveway
in 1 acre 17 guntas fall under the buffer zone.
25. When this Court opined that the construction put up
was within 30 meters from the periphery of Kaikondanahalli
lake, the petitioners filed a compliance affidavit dated
26.9.2022 stating that consent is received from the Association
for using the driveway only as a walking track/cycling track and
as a passage for emergency vehicles only and any other
activities permitted under law. The petitioners have further
stated that the basketball court and tennis court, which fall
within the 30 meters, have been removed and has also
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produced the photographs for having demolished the driveway
and the removal of the basketball court and tennis court.
26. The petitioners having complied with the
Regulations contained in revised master plan, which prohibits
construction within 30 meters from the periphery of the lake,
and also the direction issued by the Hon'ble Supreme Court in
terms of the RMP 2015, the impugned order passed by the
respondent - BBMP is not sustainable in law. However, this is
subject to inspection to be conducted by the respondent - BBMP
to ascertain as to whether the construction is brought in
conformity with the RMP 2015 and the direction issued by the
Hon'ble Supreme Court.
27. The contention of the 3rd respondent is that the
Kaikondanahalli lake is notified as a wetland and there can be
no construction within 50 meters from the high flood line of the
lake under the Wetland (Conservation and Management) Rules,
2017.
28. The ecological damage to the area between two
lakes viz: Kaikondanahalli lake and Kasavanahalli lake was an
issue before the NGT in Appeal No.54/2018 and the same was
considered in light of the observations and recommendations
made by the III Joint Committee in its report dated
15/16.3.2021 and in the said report, it is observed that as per
the provisional inventory submitted by the State Government of
Karnataka to the Central Government, the Kaikondanahalli lake
has been included in the provisional inventory list of wetlands.
However, as of date, this lake has not been notified as a
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wetland by the State Government. The NGT at para-306 has
observed as follows:
"306. "Kaikondarahalli Lake" is an old lake but dried up
on account of unauthorized and illegal construction and
encroachment around it. It was rejuvenated as stated
by BBMP/BDA in the Year 2011 but now efforts are
continuing to occupy its surrounding area by raising
constructions which are bound to throttle wetland
activities and it would ultimately eat up the entire
wetland in question."
29. The Hon'ble Supreme Court in the case of
M. K. Balakrishna and Union of India by its order dated
8.2.2017 2017 (7) SCC 810 has directed the application of
principles of Rule 4 of the Wetland (Conservation and
Management) Rules, 2010 to 2,10,503 wet lands that have
been mapped and identified by the Union of India with the
assistance of the Statement of Government.
30. The Hon'ble Supreme Court has not declared that
the applicability of Rule 4 of the Rules 2010 is prospective or
retrospective. The building plan was sanctioned on 21.9.2010
and the completion certificate was issued on 26.11.2016 much
prior to the order passed by the Hon'ble Supreme Court making
applicable Rule 4 of the Rules 2010 to all the wetlands that
have been mapped and described in the inventories.
Therefore, it is for the respondents to seek clarification from
the Hon'ble Supreme Court as to whether the Rule 4 is
applicable to the subject project.
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31. This court has only adjudicated whether the
impugned order passed by the Respondent- BBMP in exercise of
the power under Karnataka Municipal Corporation Act is in
conformity with the RMP-2015 and direction issued by the
Hon'ble Supreme Court. The validity of the order passed under
the provisions of Water Act or the Wetland Act and Rules and
also the order passed by the NGT is not adjudicated nor is the
subject matter of these petitions. Therefore, the contention of
the Respondent No.3 that the present petitions involving
environmental issues is not maintainable is not acceptable.
32. In view of the preceding analysis, the impugned
order passed by the respondent-BBMP is arbitrary and violates
principles of natural justice. Accordingly, I pass the following:
ORDER
i) Writ petitions are allowed.
ii) The impugned order bearing No.BBMP/PSR
(A)/783/2017-18 dated 1.1.2018 passed by the Commissioner,
Bruhat Nagara Palike, stands quashed.
iii) The respondent BBMP to conduct inspection of the
subject property and submit a report as to whether the
construction put up on the subject property is in conformity
with the RMP 2015. The said exercise to be concluded within
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30 days from the date of receipt of the certified copy of this
order, after notifying the petitioners and the respondent No.3.
iv) The respondent -BBMP is also at liberty to issue
notices calling upon the petitioners to furnish the necessary
permission granted by the competent Authorities, which are
requisite at the time of issuing completion certificate. If the
petitioners have obtained completion certificate without
necessary permission/s, the respondent - BBMP to proceed in
accordance with law.
List for reporting compliance on 24.11.2023.
Sd/-
JUDGE
BKM
