Karnataka High Court
Sri S Rajesh Prasad vs Bruhath Bengaluru on 6 June, 2024
Author: R Devdas
Bench: R Devdas
-1-
NC: 2024:KHC:19621
WP No. 20041 of 2023
C/W WP No. 8557 of 2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 20041 OF 2023 (LB-BMP)
C/W
WRIT PETITION NO. 8557 OF 2024 (LB-BMP)
IN WP NO.20041/2023
BETWEEN:
SRI. RAVISHANKAR S.,
S/O LATE K. SURYANARAYANA RAO,
AGED ABOUT 60 YEARS,
NO.92, B/W 7TH AND 8TH CROSS,
2ND MAIN, CHAMARAJAPET,
BENGALURU-560 018
...PETITIONER
Digitally signed (BY SRI. GANGADHARAIAH A.N., ADVOCATE)
by JUANITA
THEJESWINI AND:
Location: HIGH
COURT OF 1. THE BRUHATH BENGALURU MAHANAGARA PALIKE,
KARNATAKA
N.R. SQUARE,
BENGALURU-560 002
REP. BY ITS COMMISSIONER.
2. THE JOINT DIRECTOR(TOWN PLANNING),
THE BRUHATH BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE,
BENGALURU-560 002.
-2-
NC: 2024:KHC:19621
WP No. 20041 of 2023
C/W WP No. 8557 of 2024
3. THE ASSISTANT DIRECTOR(TOWN PLANNING)
RAJARAJESHWARINAGAR ZONE(2)
BBMP,
BENGALURU-560 098
4. ASSISTANT DIRECTOR OF LAND RECORDS,
BENGALURU SOUTH TALUK,
KANDYA BHAVAN,
1ST FLOOR, K.G. ROAD,
BENGALURU - 560 009.
...RESPONDENTS
(BY SRI. PRASHANTH S.H., ADVOCATE FOR R1 TO R3;
MISS. SPOORTHI V., HCGP FOR R4)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO i) QUASHING
ANNEXURE-H THE ENDORSEMENT DATED 29/08/2023 ISSUED
BY THE R3 BEARING NO. SA.NI(NA.YO)/RA RA NA VA
/P.R/153/23-24 BY ALLOWING THIS WP AND ETC.
IN WP NO.8557/2024
BETWEEN:
SRI. S. RAJESH PRASAD
AGED ABOUT 48 YEARS,
S/O A. SRINIVASA MURTHY,
NO.203, NAVARATHNA KUTIRA,
4TH CROSS, NEAR SEETHA CIRCLE,
SBM COLONY, SRINIVASA NAGARA,
BENGALURU - 560 050
...PETITIONER
(BY SRI. L.M. CHIDANANDAYYA, ADVOCATE)
-3-
NC: 2024:KHC:19621
WP No. 20041 of 2023
C/W WP No. 8557 of 2024
AND:
1. BRUHATH BENGALURU
MAHANAGARA PALIKE,
REP. BY ITS CHIEF COMMISSIONER,
N.R. SQUARE,
BENGALURU-560 002
2. JOINT DIRECTOR (TOWN PLANNING)
BHRUHAT BANGALORE MAHANAGARA PALIKE
RAJARAJESHWARI NAGAR,
BANGALORE - 560 098.
3. ASSISTANT DIRECTOR (TOWN PLANNING)
BHRUHAT BANGALORE MAHANAGARA PALIKE,
RAJARAJESHWARI NAGAR CIRCLE,
BANGALORE - 560 098.
...RESPONDENTS
(BY SRI. MONESH KUMAR K.B., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE RECORDS WHICH ULTIMATELY RESULTED IN NOT
SANCTIONING THE LICENSE PLAN FOR CONSTRUCTION OF
BUILDING ON THE SCHEDULE PROPERTY AND ETC.
THESE PETITIONS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
-4-
NC: 2024:KHC:19621
WP No. 20041 of 2023
C/W WP No. 8557 of 2024
COMMON ORDER
R. DEVDAS J., (ORAL):
These two writ petitions raise a common issue and
the petitioners are aggrieved by the endorsements issued
at the hands of the respondent No.1 - BBMP, either
declining to approve the plan for construction or issue
building license or directing the petitioners to secure a 'No
Objection Certificate' from the Bangalore Development
Authority.
2. Both the learned counsels for the petitioners have
vehemently argued that this Court in the case of
Pavanjeet Singh Sandhu /vs./ Bruhat Bangalore
Mahanagara Palike and others in
W.P.No.15298/2020 and Smt. Sindhu K.M /vs./
Bruhat Bangalore Mahanagara Palike and others in
W.P. No.9508/2023 has dealt with the issue where such
endorsements were issued by the BBMP declining to
NC: 2024:KHC:19621
sanction the plan on the ground that since the property in
question is by the side of a Storm Water Drain and in
terms of the requirement of the RMP-2015 and the zonal
regulations a buffer zone has to be left next to the nala,
the plan cannot be sanctioned.
3. Learned counsel submits that this Court
considered the submissions made on behalf of the
respondent No.1 - BBMP and held that the position of law
is required to be clarified since several such
complaints/petitions are being filed by the citizens of this
city who have been declined approval of plan on the
ground that certain directions are given by the National
Green Tribunal (hereinafter referred to as 'NGT' for short).
In view of the orders passed by the Hon'ble Supreme
Court of India setting aside the directions given by the
NGT, what remained was the implementation of the Zonal
Regulations, RMP-2015 and subsequent revised master
plan. This Court had directed that the requirement of
NC: 2024:KHC:19621
having a buffer zone of 50 metres, 25 metres and 15
metres (depending on the size of the nala) should be
made applicable only to Drains newly identified while
finalizing the RMP-2015 and at any rate, it should not be
made applicable to the drains that were already in
existence prior to finalization of RMP-2015. If layouts are
formed prior to finalization of RMP-2015, the requirement
of setting apart buffer zone as contemplated in the zonal
regulation of RMP-2015 is not applicable.
4. Further, having regard to the fact that the rule
regarding the buffer zone was brought into the RMP-2015
and the zonal regulations, it was held that the requirement
of setting apart buffer zone as contemplated in the zonal
regulations of RMP-2015, is not applicable in respect of
layouts that were formed prior to 2007. The learned
counsels therefore submit that this Court has clearly held
that in respect of layouts that were found prior to the rule
which was brought into force on 22.06.2007, the rule
NC: 2024:KHC:19621
cannot be applied. The learned counsels would therefore
submit that what is required to be seen is whether the
sites in question formed part of the layouts which were
formed prior to 2007. For that purpose, both the learned
counsels point out to the documents available on record
and submit that in W.P. No.20041/2023 at Annexure-A,
the conversion order passed by the competent authority is
found and the land was converted in the year 1997.
Further, long after the layout was formed, the petitioner's
vendor in W.P. No.20041/2023 purchased the residential
site on 18.03.2006. The learned counsel would therefore
submit that there is sufficient proof to show that the
layout itself was formed somewhere around the year 2000
or 2001 and therefore, the decision of this Court in
Pavanjeet Singh Sandhu and Sindhu K.M. stated supra
are squarely applicable to the facts of the case.
5. Similarly in W.P.No.8557/2024, learned counsel
has pointed out to Annexure-A, which is a plan of the
NC: 2024:KHC:19621
layout said to have been approved by the then
Pattanagere Grama Panchayat on 31.03.1994. Learned
counsel for the petitioner submits that in terms of the said
plan, 245 residential sites were formed and majority of the
owners have put up construction. Further, it is submitted
that the khata have been registered in the office of the
BBMP in the name of the petitioners and therefore, the
material available on record would show that the layout
was formed much prior to the implementation of the
provisions in RMP-2015, which came into force in the year
2007 and the layout in question was formed wayback in
the year 1994.
6. Per contra, learned counsels for the respondent
No.1 - BBMP draws the attention of this Court to an
internal communication dated 29.05.2023 made by the
Chief Town Planner, BBMP and submits that it has been
directed that while considering applications for approval of
the sanction plans or issuances of building license, having
NC: 2024:KHC:19621
regard to the judgments passed by this Court in
Pavanjeet Singh Sandhu, it was clarified that sanction
may be accorded in all cases where the 'approved layouts'
were formed prior to 25.06.2007. The learned counsels
would therefore submit that since admittedly the layouts
in question were not approved by any competent
authority, approval cannot be given by the respondent-
BBMP permitting the petitioners to take up construction.
In other words, it is submitted that even if it is a case of a
layout claimed to have been formed prior to 25.06.2007,
nevertheless, such approval can be given only where the
layouts are approved by the competent planning authority.
Learned counsels for the BBMP would vehemently contend
that it would be impossible to ascertain as to whether the
layouts were formed prior to 25.06.2007, if there is no
approval given by a competent planning authority.
7. The question therefore is whether a person who
approaches the respondent - BBMP seeking approval of a
- 10 -
NC: 2024:KHC:19621
plan for putting up construction is required to produce a
sanctioned layout plan which was approved by the
competent authority prior to 25.06.2007 or on failure of
the applicant to produce such a document, whether the
application can be rejected?
8. This Court has discussed the issue in the case of
Pavanjeet Singh Sandhu having noticed the fact that
the National Green Tribunal, Principal Bench, New Delhi in
the case of Forward Foundation and others v/s State
of Karnataka and others had passed an order on
04.05.2016 regarding the requirement of the distance to
be maintained from the Rajakaluves as buffer zone, having
regard to the Zonal Regulations contained in RMV-2015.
In the general conditions at paragraph No.3 it was directed
that the distance in respect of buffer zone specified in the
said judgment shall be made applicable to all the projects
and all the authorities concerned were directed to
incorporate such conditions in the project to whom
- 11 -
NC: 2024:KHC:19621
Environmental Clearance and other permissions granted
not only around Bellandur Lake, Rajakaluves, Agara Lake
but also all other Lakes/wetlands in the city of Bengaluru.
The State of Karnataka which was aggrieved by the orders
passed by the NGT, approached the Hon'ble Supreme
Court and the Hon'ble Supreme Court by order dated
05.03.2019 clarified the orders passed by the NGT. It was
noticed that the learned Advocate General appearing for
the State of Karnataka had submitted before the Hon'ble
Supreme Court that the State of Karnataka is aggrieved by
the order of 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 the buffer zone in respect
of lakes and Rajakaluves. The State was also aggrieved by
the order of NGT directing the authorities to demolish all
the offending constructions raised/built in the buffer zone,
which would result in demolition of 95% of the buildings in
Bengaluru. It was submitted at the hands of the State that
the Revised Master Plan is statutory in nature and NGT has
- 12 -
NC: 2024:KHC:19621
no power, competence or jurisdiction to consider the
validity or vires of any statutory provision/regulation.
9. The Hon'ble Supreme Court by order dated
05.03.2019 allowed the appeals filed by the State of
Karnataka and the directions/condition No.1 in the order
dated 04.05.2016 was set aside except the direction
issued against respondents No.9 and 10 therein who were
the project proponents.
10. Having regard to all these aspects, this Court
came to a conclusion that the requirement of
implementing the buffer zone could be made applicable
only in layouts that were formed subsequent to the rule
being brought into the RMP-2015 and cannot be made
applicable to layouts that were formed prior to the said
date. More particularly regard should be had to the fact
that the authorities are required to find out as to whether
the nala was in existence prior to the rule being brought
into force or was formed subsequently. However, having
- 13 -
NC: 2024:KHC:19621
regard to the submissions made by the learned Counsels
for the respondent-BBMP, this Court finds that the officers
of the BBMP are not insisting that permissions can be
accorded to such applicants only if the layout has been
approved by the competent authority and such benefit will
be denied in all cases where the layout is not approved by
a competent authority.
11. The question is not whether the layout was
approved or not? What was directed to be considered was
whether the nala/storm water drain was formed prior to
2007, when the rule was brought into force. If the stand of
the respondent-BBMP is accepted and permitted to be
implemented, it will lead to an unprecedented chaotic
situation in the city of Bengaluru. This Court can take
judicial note of the fact that there existed thousands of
nalas of various sizes, from time immemorial, and as a
consequence of which there existed more than 1000 lakes
in Bengaluru. Examples of the earliest settlements in
- 14 -
NC: 2024:KHC:19621
Bengaluru, be it, Halasuru, Cantonment (the present
Shivajinagar area), etc., can be taken since large storm
water drains which existed earlier continue to exist in
those areas even today. All along the storm water drains
in such old areas we can find buildings, old and new.
Halasuru, where a huge nala runs through, has an history
of more than 200 years of existence. In fact, such area
cannot be labeled as 'unauthorized' because they were in
existence much prior to the enactment of the Karnataka
Town and Country Planning Act, 1961. If we permit the
officers of the BBMP to implement the internal
communication dated 29.05.2023, it would give rise to an
undesirable situation, where residents of such old areas
viz., Shivajinagar cantonment or Halasuru may not be
accorded a sanction plan or building licence, on the ground
that they are unable to furnish copy of authorized layout
plan. At the same time, no action can be taken in respect
of the buildings already in existence, since the rule
- 15 -
NC: 2024:KHC:19621
brought into effect from 25.06.2007 cannot be operated
retrospectively.
12. Truly this was not the intent of this Court when it
rendered the judgment in the case of Pavanjeet Singh
Sandhu and Sindhu K.M. (supra). It is noticeable that
the learned Advocate General himself had made such
submission before the Hon'ble Supreme Court as noticed
herein above that if the rule is sought to be implemented
in respect of the old layouts which were not approved,
then 95% of the building will have to be demolished in
Bengaluru City. No new construction will be permitted and
people will be forced to reside in old, dilapidated buildings.
This Court takes note of the fact that the word 'Layout' has
been defined in the Bruhat Bengaluru Mahanagara Palike
Act, 2020, as - "Lay-out - means a lay-out formed by an
individual or body of persons, whether incorporated or
not." Therefore, technically, permission cannot be
- 16 -
NC: 2024:KHC:19621
restricted only to authorized layout, since the meaning is
not restricted to authorized layouts alone.
13. This Court is therefore of the opinion that the
internal communication dated 29.05.2023 given by the
Chief Town Planner needs to be clarified while stating that
the approval cannot be restricted to approved layouts
only. Permission will have to be accorded by the BBMP
even in respect of unauthorized layouts, if necessary
information is produced by the applicant to show that the
layout was formed much prior to the year 2007 and the
khathas have been registered in the office of BBMP or the
erstwhile local body. This is because the jurisdiction of the
BBMP has been expanded twice and now the jurisdiction of
BBMP is about 625 sq. kms. By further expansion many of
the areas which were earlier within the jurisdiction of 7
City Municipal Councils, 1 Town Municipal Council and 110
village panchayaths are now brought within the jurisdiction
of BBMP. If earlier the khatas were registered in the
- 17 -
NC: 2024:KHC:19621
erstwhile local bodies and thereafter, the khatas have
been registered in the office of the BBMP on the
jurisdiction being brought under the BBMP, it is a clear
indication that the layouts were formed much prior to
2007 and formation of the residential sites were
recognized by the local bodies and khata were accordingly
registered and property taxes were also collected. In that
view of the matter, the above clarification has been
issued.
14. Consequently, this Court proceeds to pass the
following:
ORDER
(i) The writ petitions are allowed.
(ii) The impugned endorsement dated 29.08.2023
at Annexure-H issued by the third respondent
bearing No.Sa.Ni.(Na.Yo)/RA RA NA
VA/PR/153/23-24 in W.P. No.20041/2023 and
endorsement dated 15.09.2023 at Annexure-
E in WP No.8557/2024 are hereby quashed
and set aside.
- 18 -
NC: 2024:KHC:19621
(iii) Specific directions are given to the competent
officers of the BBMP to consider the
applications filed by the petitioners and
accord approval without insisting on the
petitioners producing Sanctioned layout plans
or seeking 'No Objection Certificate' from the
Bangalore Development Authority.
(iv) The approvals shall be considered as
expeditiously as possible and at any rate
within a period of six weeks from the date of
receipt of a copy of this order.
General directions to the BBMP -
(v) Hereby, directions are given to the competent
Officers of the BBMP to consider all such
applications and accord approval without
insisting on the applicants producing
Sanctioned layout plans or seeking 'No
Objection Certificate' from the Bangalore
Development Authority.
(vi) For the purpose of ascertaining whether the
layout was formed prior to 25.06.2007 or
thereafter, it is sufficient if the applicant
- 19 -
NC: 2024:KHC:19621
seeking sanction plan for putting up
construction tenders a khatha certificate
issued by the local body (BBMP/City Municipal
Council/Town Municipal Council/Grama
Panchayat/HA Sanitary Board/ etc.,)
registered prior to the said date either in the
name of the applicant or the previous owner.
(vii) Any registered instrument transferring rights
in respect of a 'site/property
number/khaneshumari number' prior to
25.06.2007 should also be accepted as
sufficient proof regarding formation of the
layout/site prior to the said date.
Ordered accordingly.
Sd/-
JUDGE
VS
