Karnataka High Court
M/S Sangam Enterprises vs Sri Tushar Girinath Ias on 15 October, 2025
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WA No. 73 of 2025
C/W CCC No.1332 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER, 2025
PRESENT
THE HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE C M JOSHI
WRIT APPEAL NO. 73 OF 2025 (LB-BMP)
C/W
CIVIL CONTEMPT PETITION NO. 1332 OF 2024
IN W.A. NO. 73 OF 2025
BETWEEN:
1. THE BRUHATH BENGALURU MAHANAGARA PALIKE
REP. BY ITS CHIEF COMMISSIONER
N.R. SQUARE
BENGALURU - 560 002.
2. THE JOINT DIRECTOR OF TOWN PLANNING
BBMP, N.R. SQUARE
BENGALURU - 560 002.
Digitally ...APPELLANTS
signed by
SRIDEVI S (BY SRI MONESH KUMAR K.B., ADVOCATE)
Location:
High Court AND:
of Karnataka
1. M/S. SANGAM ENTERPRISES
NO.15, DHANAVANTHRI ROAD
MAJESTIC, BENGALURU-560009
REP. BY ITS MANAGING PARTNER
R CHANDRU.
2. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
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WA No. 73 of 2025
C/W CCC No.1332 of 2024
URBAN DEVELOPMENT DEPARTMENT
VIKAS SOUDHA
BENGALURU - 01.
...RESPONDENTS
(BY SRI DHYAN CHINNAPPA, SENIOR ADVOCATE A/W
SRI VIJAYKUMAR, ADVOCATE FOR R-1 &
SRI K.S. HARISH, GOVERNMENT ADVOCATE FOR R-2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN
W.P.No.80/2023 (LB-BMP) DATED 29.05.2024 AND BE
FURTHER PLEASED TO DISMISS THE SAME & ETC.
IN CCC NO. 1332 OF 2024
BETWEEN:
1. M/S. SANGAM ENTERPRISES
REPRESENTED BY ITS MANAGING PARTNER,
SRI. R CHANDRU
AGED ABOUT 54 YEARS
NO.15, DHANVANTRI ROAD
MAJESTIC, BENGALURU - 560 009.
...COMPLAINANT
(BY SRI DHYAN CHINNAPPA, SENIOR ADVOCATE A/W
SRI VIJAYKUMAR, ADVOCATE)
AND:
1. SRI TUSHAR GIRINATH (IAS)
CHIEF COMMISSIONER,
BRUHAT BENGALURU MAHANAGARA PALIKE
BENGALURU - 560 002.
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WA No. 73 of 2025
C/W CCC No.1332 of 2024
2. SMT. SAVITHRI PATIL
JOINT DIRECTOR TOWN PLANNING
BRUHAT BENGALURU
MAHANAGARA PALIKE
N.R SQUARE
BENGALURU - 560 002.
...ACCUSED
3. THE STATE OF KARNATAKA
REP BY PRINCIPAL SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
BANGALORE 560001
...PRO FORMA RESPONDENT
(BY SRI K.B. MONESH KUMAR, ADVOCATE)
THIS CCC IS FILED UNDER SECTION 11 AND 12 OF THE
CONTEMPT OF COURTS ACT, 1971, PRAYING TO INITIATE
CONTEMPT OF COURT PROCEEDINGS AGAINST THE
ACCUSED FOR HAVING COMMITTED CONTEMPT OF COURT
IN NOT IMPLEMENTING THE DIRECTION ISSUED BY THIS
HON'BLE COURT DATED 29.05.2024 IN W.P. NO.80/2023 AND
PUNISH THE ACCUSED IN ACCORDANCE WITH LAW.
THIS WRIT APPEAL AND CCC, HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT THIS DAY, JUDGMENT WAS
PRONOUNCED AS UNDER:
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WA No. 73 of 2025
C/W CCC No.1332 of 2024
CORAM: HON'BLE MR. VIBHU BAKHRU ,CHIEF JUSTICE
and
HON'BLE MR. JUSTICE C M JOSHI
CAV JUDGMENT
(PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE)
1. For the reasons stated in the application - I.A.1/2025, the
same is allowed. The delay in filing the appeal is condoned.
2. The appellants - Bruhath Bengaluru Mahanagara Palike
[hereinafter BBMP] - have filed the present appeal impugning an
order dated 29.05.2024, passed by the learned Single Judge in
W.P.No.80/2023 (LB-BBMP) captioned M/s. Sangam Enterprises v.
The State of Karnataka and others, whereby the said writ petition
was allowed. Respondent No.1, a partnership firm, had filed the
aforementioned writ petition praying that directions be issued to
BBMP to consider approving the Modified Plan submitted by it on
28.03.2014 [Modified Plan] in terms of the Rules that existed on
the date of filing the Modified Plan. The writ petitioner also sought
directions to be issued to BBMP for considering the representations
submitted by the petitioner in this regard.
3. The Modified Plan is not in accordance with the Karnataka
Town and Country Planning (Benefit of Development Rights)
Rules, 2016, which were notified on 04.03.2017. Notwithstanding
the same, the petitioner claims that the Modified Plan is required to
be approved as the same is in accordance with the Rules that
existed on the date of the application, that is, as on 28.03.2014.
BBMP contends to the contrary.
4. The controversy arises in the context of loading of
Transferable Development Rights [TDR] and the provisions for
relaxation of the set back requirements under the applicable Rules.
5. The learned Single Judge had accepted the writ petitioner's
contention that the Rules as in force on the date when the approval
of Modified Plan was sought, are applicable. The learned Single
Judge reasoned that the statutory amendment of Section 14B of
the Karnataka Town and Country Planning Act, 1961 [KTCP Act]
and the Rules as notified on 04.03.2017 did not have any
retrospective operation. Thus, the principal question that requires
to be addressed in the present appeal is whether the approval of
the Modified Plan is required to be considered in accordance with
the KTCP Act and the relevant Rules that were in operation on the
day of the application of the Modified Plan or on the date of
sanction.
Prefatory facts
6. The writ petitioner holds lease hold rights in respect of the
properties bearing the address No.15, Dhanvanthri Road,
Bengaluru and No.13/3, Subedar Chatram Road (both adjacent
properties) measuring 5630.30 square meters.
7. The writ petitioner furnished a plan for construction of a
building comprising of a basement, ground floor, first floor, second
floor, third floor and terrace conforming to the height of 15 meters.
It proposed constructing the building for commercial complex and a
multiplex. The said building plan for construction of the commercial
complex was sanctioned by BBMP on 16.04.2013.
8. The writ petitioner proposed to raise additional construction
with the intermittent height up to 29.60 metres, with relaxation of
the set back norms. Accordingly, it entered into an agreement with
one M/s. Aishwarya Heights Infra Private Limited for purchasing
development Rights [TDR] on 15.11.2013. The writ petitioner
claims that it also made advance payment of Rs.1.00 crore for
purchasing the said TDRs. In addition, the writ petitioner also
purchased TDRs from one Smt. Aanemma, wife of late Aaneppa,
measuring 7477.06 square meters.
9. Thereafter, the writ petitioner furnished the Modified Plan for
construction of additional floor by loading the TDRs. The Modified
Plan also entailed relaxation of set backs in accordance with the
Circular dated 23.11.2009 issued by BBMP, which was applicable
at the material time. The Modified Plan was not accepted and
appellant No. 2 issued an endorsement (order) directing the writ
petitioner to secure and furnish an NOC from the Fire Service
Department.
10. In view of the said endorsement, the writ petitioner applied
for NOC with regard to the Modified Plan, to the Fire Service
Department. The Fire Service Department inspected the site and
issued an endorsement dated 08.05.2017, inter alia stating that it
was not accepting plans that entail relaxation of set backs.
11. The writ petitioner being aggrieved by the endorsement
dated 08.05.2017, filed a writ petition being WP.No.25321/2017.
The said petition was disposed of on 22.06.2017 with a direction to
the concerned department to dispose of the writ petitioner's
application for NOC as expeditiously as possible and in any event
with an outer limit of two weeks from the date of the said order.
The learned Single Judge also held that "the consideration of the
petitioner's application shall date back to 22.02.2017, on which
date the petitioner first submitted the application for issuance of
NOC".
12. In compliance with the said directions, the Karnataka Fire
Service Department issued NOC dated 07.10.2017. Thereafter, on
13.10.2017, the writ petitioner submitted a representation to the
BBMP to approve the Modified Plan, which was submitted on
28.03.2014 as per the Rules existing on that date. Similar
representations were also made on 04.07.2018 23.01.2019
22.02.2021, 24.11.2021 and 19.10.2022. However, The said
representations did not elicit any response. In the aforesaid
context, the writ petitioner filed a writ petition being WP.No.80/2023
(LB-BMP), which was disposed of in terms of the impugned order.
The Controversy
13. The Bangalore Development Authority [BDA] issued the
Revised Master Plan 2015 on 22.06.2007. Thereafter on
12.07.2019, BBMP had issued a Circular providing for relaxation of
set backs for sanctioning of building plans.
14. The KTCP Act was amended by Act No.23 of 2004 with
effect from 03.06.1994. The amendments included insertion of
Section 14B, which contained provisions for providing benefit on
development rights [TDRs] in the KTCP Act. The relevant extract of
Section 14B of the KTCP Act as introduced with effect from
03.06.2004 is set out below:
"14-B. Benefit of development rights: Where any area
within a local planning area is required by a Planning
Authority or local authority for a public purpose and the
owner of any site or land which comprises such area
surrenders if free of cost and hands over possession of
the same to the planning authority or the local authority
free of encumbrances, the planning authority or the
local authority, as the case may be, may
notwithstanding anything contained in this Act or the
regulations but subject to such restrictions or conditions
as may be specified by notification by the State
Government, permit development rights in the form of
additional floor area which shall be equal to one and
half times of the area of land surrendered. The
development right so permitted may be utilised either at
the remaining portion of the of the area after the
surrender or anywhere in the local planning area, either
by himself or by transfer to any other person, as may be
prescribed. The area remaining after surrender shall
have the same floor area which was available before
surrender for the original site or land as per regulations.
Explanation: For the purpose of this section,-
(a) "Public purpose" means,-
(i) widening of an existing road or formation
of a new road;
(ii) providing for parks, playgrounds and
open spaces or any other civic amenities;
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(iii) maintaining or improving heritage
building or precincts notified by the
State Government. '
(iv) Any other purpose notified by the State
Government from time to time.
(b) "Development right" means the right to carry out
development or to develop land or building or both."
15. The scheme entails providing for development rights in the
form of additional floor area equal to one and a half times the area
surrendered by an owner of any site or land, which is required for
any public purpose, such as widening of the roads, parks etc. The
development rights could be utilized for additional construction in
the portion of the area remaining with the owner after the
surrender of part of the site or land for public purposes, free of cost.
Additionally, the right holder could also transfer these rights to
another person for utilizing the same.
16. Paragraph 10 of Chapter X of the Revised Plan also
permitted relaxation of the set back area upto a maximum extent of
50%, in cases where the permissible floor area ratio would not be
achieved after utilizing the TDRs. Paragraph 10 of the Revised
Master Plan, 2015, is set out below:
"10. The Authority may consider relaxing set backs,
and coverage to a maximum extent of fifty percent,
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when the permissible Floor Area Ratio cannot be
achieved, in case of D.R.C. arising out of land
surrendered free of cost for road widening. This
relaxation is also permissible in the receiving plot or in
the same plot left over after surrender. When plot
generating the TDR utlises the DRC as the receiving
plot, then the incremental parking need not be
insisted. No relaxation can be given for area required
for parking in receiving plot. While exercising the
above power, the Authority shall finalise the building
line for the entire road taken up for widening keeping
in view the developments existing, feasibility and
smooth flow of traffic and notify the same. No
construction shall be allowed in violation of such
notified building line".
17. On 23.11.2009, BBMP issued a Circular holding that "50%
discount is allowed in the areas and median spaces".
18. The writ petitioner seeks benefit of the relaxation to the
extent of 50% of set backs as per the policy that was in vogue prior
to the notification of the Rules on 04.03.2017.
19. Section 14B of the KTCP Act was substituted by virtue of Act
No. 38 of 2015 with effect from 10.09.2015. Sub-section (12), (13)
and (14) of Section 14B of the KTCP Act as introduced are relevant
and are set out below:
Section 14.
*** *** ***
Section 14-B
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*** *** ***
(12) The Development Rights so issued shall be utilised
within the same Local Planning Area to which it is
issued.
[(13) The Development rights may be utilised within the
same plot or in other area in the same Local Planning
area or as notified by the Government, by the owner or
the owner of such Development Rights may transfer the
Development rights to a transferee as Transferable
Development Rights which may be sold or utilised in
any area as prescribed within the Local Planning Area
or as notified by the Government.]
(14) The utilisation of Development Rights at the
receiving plot shall be subject to limitations, as
may be prescribed.
20. Thereafter, the Karnataka Town and Country Planning
(Benefit of Development Rights) Rules, 2016 [The Rules] were
framed under the KTCP Act and were notified on 04.03.2017. The
said Rules provided for set back relaxations. Sub-Rule (8) of Rule 4
of the Rules is relevant and set out below:
"4. Terms and Conditions for grant of Development
Rights:-
*** *** ***
(8) Setback relaxation:
(a) In Originating plots
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(1) With building below 15.0 m. height - In the
originating plot where there is no option for increasing
the setback area in case of loading of the Development
Rights on the existing building, the available existing
side and rear setbacks shall be considered as the
permitted back in case of the final height of the building
is below 15.0 m. after loading of the development rights.
In case of road widening the available front
setback shall be the permitted setback after road
widening
(ii) With building above 15.0m. In case the
height of the building is 15.0m and above, due to
utilization of Development Rights on the existing
building, setbacks shall be followed as under,-
(a) Relaxation in setback and coverage in the remaining
plot after surrender shall not exceed beyond twenty five
percent of the prescribed setback proportionate to the
quantum of the Development Rights utilized as
explained below:
Example (1) ********
Example : (2) ********
(b) For buildings with 15 Meters and above height the
No objection Certificate from Fire Force Department
shall be produced.
(c) In case of Road widening the available front setback
shall be treated as the permitted setback after road
widening.
(iii) On vacant land: When the originating plot itself
becomes the receiving plot the terms and conditions
applicable to the plot size after deducting the
surrendered area and the setback relaxation shall be as
per sub-rule (8)(b).
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(b) Transfer of Development Rights at Receiving
Plots,-
(i) The Development Rights shall be utilized over and
above the ordinarily permissible Floor Area Ratio at the
receiving plot which is either vacant or has an existing
building. In case if the applicant utilizes Floor Area Ratio
less than the permissible Floor Area Ratio to avail the
benefit of relaxation of set back by utilizing the
Transferable Development Rights, in such cases the
additional Floor Area Ratio shall be 0.6 times the actual
Floor Area Ratio utilized within the permissible Floor
Area Ratio.
(ii) Relaxation in setback and coverage may be
permitted for the buildings in the receiving plots utilizing
Transferable Development Rights and this relaxation
shall be proportionate to the quantum of the
Transferable Development rights utilized and in any
case shall not exceed beyond twenty five percent of the
prescribed setback as explained below:
Example: (1) **************
Example:(2) ***************
Note. A Transferable Development Right when utilized
in respect of an existing building, the existing all round
setbacks shall be in compliance with the requirements
for the additional Floor Area Ratio and the additional
height of the building due to loading of Development
Rights / Transferable Development Right".
21. It is apparent from the above, that the relaxation of setbacks
is permissible upto the maximum extent of 25%. Concededly, the
Modified Plan does not conform to the said set back norms. In the
aforesaid context, the point in issue is whether the policy/Rules as
existing at the time of filing the application for sanction of the
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Modified Plan or as in force on the date when the approval is
granted, is applicable.
Impugned Orders
22. As noted above, the learned Single Judge accepted the
contention that the rules as applicable on the date when the
application for approval of Modified Plan was made is applicable.
23. The learned Single Judge referred to the decision of this
court in the case of M/s. Aishwarya Heights Infra Private Limited
v. State of Karnataka and others: WP.No.2618/2016 (LB-BBMP)
decided on 24.03.2016. In that case the court had allowed the writ
petition and directed BBMP to consider approval of modified plans,
which were submitted on 28.07.2014 in accordance with the bye-
laws as on the date of the application and in terms of the Circular
dated 23.07.2009. The learned Single Judge held that the Section
14B as amended with effect from 10.09.2015 would have no
application since the approval for the re-modified plan was
furnished prior to the substituted Section 14B coming into effect.
24. The impugned order was passed following the decision in
M/s. Aishwarya Heights Infra Private Limited (supra).
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Reasons and Conclusions
25. The decision in M/s. Aishwarya Heights Infra Private
Limited (supra) is founded on the premise that filing an application
for sanction of building plan results in vesting of an absolute or
indefensible right with the applicant. Thus, application would
require to be considered on the basis of the Rules as on that date.
The relevant extract of the decision in M/s. Aishwarya Heights
Infra Private Limited (supra) is set out below.
"11. Section 14-B of the Act has been amended w.e.f.
10.9.2015 by Karnataka Act No.38/2015. It is evident
that this amendment has prospective effect. It is no
doubt true that Rules have not been framed under
Section 14-B of the amended Act. However, this
amendment has no application to the instant case.
12. It is settled position that when a particular provision
of an Act is in force when particular transaction was
effected, then, the subsequent repeal of the statute will
not affect the merits, rights or liabilities of the parties on
the date of that transaction. A statute affecting vested
rights is prima facie prospective unless it expressly or
by necessary implication indicates to the contrary. The
Legislature has full power to make a law retrospective
so as to destroy a right or a remedy altogether but this
must be expressly laid down or this result must flow by
necessary implication.
13. The word 'vest' is normally used where an
immediate fixed right in present or future enjoyment in
respect of a property is created. The Hon'ble Supreme
Court in J.S.YADAV's case (supra), has explained the
meaning of the expression 'vested right' as under:
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"21. The word 'vest' is normally used where
an immediate fixed right in present or future
enjoyment in respect of a property is created.
With the long usage the said word 'vest' has
also acquired a meaning as 'an absolute or
indefeasible right'. It had a 'legitimate' or
'settled expectation' to obtain right to enjoy
the property, etc. Such 'settled expectation'
can be rendered impossible of fulfillment due
to change in law by the legislature. Besides
this, such a 'settled expectation' or the so-
called 'vested right' cannot be countenanced
against public interest and convenience
which are sought to be served by
amendment of the law (vide Howrah
Municipal Corporation Vs. Ganges Rope Co.
Ltd. - (2004) 1 SCC 663).
22. Thus, 'vested right' is a right independent
of any contingency. Such a right can arise
from a contract, statute or by operation of
law. A vested right can be taken away only if
the law specifically or by necessary
implication provides for such a course."
(emphasis supplied by me)
14. Section 6 of the Karnataka General Clauses Act
states that repeal of the Act shall not affect any right or
privilege accrued or acquired under an enactment so
repealed, unless a different intention appears. This
Section does not profess to preserve an abstract right
accrued under a repealed statute. It would apply to
specific rights given to a party consequent on
happening of one or the other event as specified in the
statute.
15. In VIDEOCON INTERNATIONAL LIMITED's case
(supra), the Hon'ble Supreme Court has held that the
amendment of a statute, which is not retrospective in
operation, does not affect pending proceedings, except
where the amending provision expressly or by
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necessary intendment provides otherwise. Pending
proceedings are to continue as if the un-amended
provision is still in force. When a lis commences, all
rights and obligations of the parties get crystallized on
that date and the mandate of Section 6 of the General
Clauses Act simply ensures that pending proceedings
under the un-amended provision remain unaffected.
16. Section 14-B of the Act was amended by Karnataka
Act No.38/2015, which has come into effect from
10.9.2015 is not retrospective in operation either
expressly or by necessary implication. Therefore, the
rights accrued under the repealed enactment are saved
and the old procedure will subsist for enforcement of the
rights accrued under the repealed enactment. The
amended Act does not affect any right, privilege,
obligations or liability acquired or incurred under the
repealed enactments In fact with an intention to secure
certain relaxation in the set back and to increase the
number of multiplexes from 3 to 5 along with
incremental height to 29.63 meters, petitioner
purchased development right from B.S.Leelavathy. The
TDR certificates dated 23.7.2010 are at Annexure-H
series. The petitioner was also granted loan in principle
on the project by the Syndicate Bank, which is evident
from the communication at Annexure-J dated
17.6.2014. Having secured the financial assistance from
the Nationalised Bank, subject to sanction of the re-
modified plan to be submitted to the 2nd respondent,
the petitioner applied for sanction of the re-modified
plan after loading the TDRs seeking relaxation of the set
backs as per the circular at Annexure 'D' dated
23.11.2009.
17. It is also to be stated here that the Deputy
Commissioner, Bengaluru District under the Cinema
Regulations has granted approval for construction of
five screen multiplex in 6th and 7th floor under
Regulation 31(3) of the Regulations as per Annexure 'R'
dated 14.12.2015. During the pendency of the
petitioner's application for grant of re- modified plan,
Section 14-B was amended w.e.f. 10.9.2015 prescribing
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certain restrictions regarding relaxation in the set backs,
which has no application to the instant case. In my
opinion, the 2nd respondent has to consider approval of
the re-modified plan submitted on 28.7.2014 in terms of
the existing bye-laws as on the date of the application in
terms of the circular at Annexure-D dated 23.11.2009".
26. In our view, the question whether the building plan has to be
sanctioned on the basis of the Rules and bye-laws prevailing on
the date of the application or on the date when the sanction is
accorded, is no longer res integra. It is also material to note that in
M/s. Aishwarya Heights Infra Private Limited (supra), the
learned Single Judge had set out paragraph 21 of the decision of
the Supreme Court in J.S. Yadav v. State of Uttar Pradesh and
another : 2011 6 SCC 570, which in turn referred to the decision in
the case of Howrah Municipal Corporation and others v.
Ganges Rope Co. Ltd., and Others: (2004) 1 SCC 663.
However, the learned Single Judge had erred in not considering
the import of that decision.
27. In Howrah Municipal Corporation (supra), the Supreme
Court considered an appeal arising out of the decision of the
Division Bench of the Kolkata High Court directing grant of sanction
for construction of three additional floors in a multi storey complex.
The said complex was constructed upto four floors and the
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sanction of a modified plan for constructing the additional floors
was denied by the Howrah Municipal Corporation. In that case, the
respondent company (Ganges Rope Co. Ltd.) had applied for
sanction for construction of a complex upto seven floors on
06.07.1992. The said sanction was not accorded within a period of
sixty days as required under the applicable Building Rules.
27.1. In the given circumstances the said company had
approached the Calcutta High Court by filing a writ petition, which
was disposed of on 26.04.1993 with a direction to the Howrah
Municipal Corporation to consider the application for grant of
sanction of a building plan submitted on 06.07.1992 in accordance
with the Howrah Municipal Corporation Act and Building Rules.
However, the Corporation neither granted nor refused to grant
sanction within the stipulated period. This led the respondent to
once again approach the Calcutta High Court on 23.12.1993. The
Court disposed of the application by directing Howrah Municipal
Corporation to grant sanction to the respondent's plan upto fourth
floor level if all requirements were duly complied with. The Court
further directed the Howrah Municipal Corporation to grant the
sanction within a period of one month from the date of
communication of the order. Additionally, the Court clarified that
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the order would not prevent the writ petitioners from applying for
further sanction, if the same is permissible, at a later date.
27.2. The writ petitioner completed the building complex up to the
fourth floor level and in view of the liberty granted by the Calcutta
High Court applied for sanction to construct additional three floors
beyond the fourth floor by a letter dated 27.05.1994. The Howrah
Municipal Corporation did not entertain the said application.
Aggrieved by the same, the writ petitioner once again approached
the Calcutta High Court. The Court observed that the right of the
writ petitioner to apply for sanction of further floors was explicitly
reserved under the order dated 23.12.1993 and therefore directed
the Corporation to pass appropriate orders regarding sanction for
construction of the additional three floors within a period of four
weeks.
27.3. The writ petitioner sent a letter dated 28.06.1994 seeking
sanction for construction of additional three floors. In response to
the said letter, the Corporation called upon the writ petitioner to
furnish fresh plans. Thereafter, the Corporation sent another letter
dated 19.09.1994 calling upon the writ petitioner to submit requisite
number of prints of the proposal, tax clearing certificate, previous
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sanction plan, indemnity bond for deep foundation work, approval
of the Fire Services Authority and documents showing permission
for change of user. The writ petitioner complied with the said
directions.
27.4. While the petitioner's application for sanction of additional
floors was pending, the Government of West Bengal issued a
notification dated 15.07.1994 amending the Building Rules,
whereby the height of the high rise buildings was restricted to a
prescribed level depending on the width of the street on which the
building is proposed to be constructed.
27.5. In view of the amended Building Rules restricting the height
of the buildings commensurate to the width of the road, the writ
petitioner's proposal for constructing additional floors was
cancelled. The learned Single Judge declined to interfere with the
said decision. The writ petitioner appealed the said decision before
the Division Bench of the Calcutta High Court, which reversed the
judgment passed by the learned Single Judge.
27.6. The Division Bench reasoned that the writ petitioner's
application seeking sanction for additional construction was
governed by the amended rules and regulations as in force on the
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date of submission of the applications and the amendment of the
Building Rules could not take away the vested rights. At this stage,
we may note that this is precisely the reasoning on which the
decision in M/s. Aishwarya Heights Infra Private Limited (supra)
rests.
27.7. In view of the above, one of the questions that fell for
consideration of the Supreme court was whether the application
filed by the writ petitioner in Ganges Rope Co. Ltd. had resulted in
a vested right for the same to be construed in accordance with the
law as was in force on the date of the application. In this regard,
the Supreme Court held as under.
"37. The argument advanced on the basis of so-called
creation of vested right for obtaining sanction on the
basis of the Building Rules (unamended) as they were
on the date of submission of the application and the
order of the High Court fixing a period for decision of
the same, is misconceived. The word "vest" is
normally used where an immediate fixed right in
present or future enjoyment in respect of a property is
created. With the long usage the said word "vest" has
also acquired a meaning as "an absolute or
indefeasible right" [see K.J. Aiyer's Judicial Dictionary
(A Complete Law Lexicon), 13th Edn.].
The context in which the respondent Company claims
a vested right for sanction and which has been
accepted by the Division Bench of the High Court, is
not a right in relation to "ownership or possession of
any property" for which the expression "vest" is
generally used. What we can understand from the
claim of a "vested right' set up by the respondent
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Company is that on the basis of the Building Rules, as
applicable to their case on the date of making an
application for sanction and the fixed period allotted by
the Court for its consideration, it had a "legitimate" or
"settled expectation" to obtain the sanction. In our
considered opinion, such "settled expectation", if any,
did not create any vested right to obtain sanction. True
it is, that the respondent Company which can have no
control over the manner of processing of application
for sanction by the Corporation cannot be blamed for
delay but during pendency of its application for
sanction, if the State Government, in f exercise of its
rule-making power, amended the Building Rules and
imposed restrictions on the heights of buildings on
G.T. Road and other wards, such "settled expectation"
has been rendered impossible of fulfilment due to
change in law. The claim based on the alleged "vested
right" or "settled expectation" cannot be set up against
statutory provisions which were brought into force by
the State Government by amending the Building Rules
g and not by the Corporation against whom such
"vested right" or "settled expectation" is being sought
to be enforced. The "vested right" or "settled
expectation" has been nullified not only by the
Corporation but also by the State by amending the
Building Rules. Besides this, such a "settled
expectation" or the so-called "vested right" cannot be
countenanced against public interest and convenience
which are sought to be served by amendment of the
Building Rules and the resolution of the Corporation
issued thereupon".
28. In M/s. Aishwarya Heights Infra Private Limited (supra),
the learned Single Judge had set out an extract from the decision
of the Supreme Court referring to the decision in the Howrah
Municipal Corporation (supra). But the decision M/s. Aishwarya
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Heights Infra Private Limited (supra) is quite contrary to the
principles as explained in the said decision.
29. In Howrah Municipal Corporation (supra), the Supreme
Court had also referred to the decision in the case of Usman Gani
J. Khatri v. Cantonment Board : (1992) 3 SCC 455. The following
observations of the Supreme Court in that case are equally
instructive:
"In any case, the High Court is right in taking the view
that the building plans can only be sanctioned
according to the building regulations prevailing at the
time of sanctioning of such building plans. At present
the statutory bye-laws published on 30-4-1988 are in
force and the fresh building plans to be submitted by
the petitioners, if any, shall now be governed by these
bye-laws and not by any other bye-laws or schemes
which are no longer in force now. If we consider a
reverse case where building regulations are amended
more favourably to the builders before sanctioning of
building plans already submitted, the builders would
certainly claim and get the advantage of the
regulations amended to their benefit."
30. In New Delhi Municipal Council and others v. M/s. Tanvi
Trading and Credit Private Limited and others : Civil Appeal
Nos.5292/2008 and 5293/2008 decided on 28.08.2008, the
Supreme Court reiterated the view as expressed in Usman Gani J.
Khatri (supra). We consider it apposite to set out the following
extract from the said decision.
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"11. It is well settled that the law for approval of the
building plan would be the date on which the approval is
granted and not the date on which the plans are
submitted. This is so in view of paragraph 24 of the
decision of this Court in Usman Gani J. Khatri of
Bombay vs. Cantonment Board and others etc. etc.
(1992) 3 SCC 455. It would not be out of place to
mention that on February 7, 2007, the Master Plan 2021
has been approved in which the LBZ guidelines have
been incorporated and since plan submitted by the
respondents were not approved up to the date of
coming into force of Master Plan of 2021, the LBZ
guidelines will apply with full force to the plan submitted
by the respondents and the plan which is contrary to the
LBZ guidelines could not have been directed
to be sanctioned".
31. The decision in the case of M/s. Aishwarya Heights Infra
Private Limited (supra) is contrary to the law as settled by the
Supreme Court in Howrah Municipal Corporation and others v.
Ganges Rope Co., Ltd., and others; Usman Gani J. Khatri v.
Cantonment Board; as well as the decision of the Supreme Court
in NDMC and others v. Tanvi Trading and Credit Private
Limited and others. The said decision is accordingly overruled.
32. Coming to the facts of the present case, the writ petitioner
filed an application for seeking NOC for the Modified Plan from the
Karnataka Fire Service Department on 22.02.2017. However, as on
that date, Section 14B of the KTCP Act had been amended and the
Rules had been notified. In terms of the Rules, the set back
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relaxation is confined to 25%. Admittedly, the Modified Plan is not
in conformity with the said norms. Accordingly, no directions could
be issued for sanction of the Modified Plan. Thus, the impugned
order directing the appellants to sanction the Modified Plan,
permitting the petitioner to utilize the TDR certificate dated
18.04.2015, cannot be sustained.
33. Before concluding, we may also note that Mr. Chinnappa,
learned Senior Counsel had during the course of his arguments
referred to paragraph 10 of Chapter X of the Revised Master Plan,
2015 and submitted that in terms of paragraph 10, the BBMP was
required to consider relaxing of set backs and coverage to a
maximum extent of 50% and therefore, the writ petitioner was
entitled to such relaxation. This was countered by the learned
counsel for the BBMP. He submitted that the paragraph 10 of the
Revised Master Plan is applicable only where the permissible floor
area ratio cannot be achieved. He submitted that in the present
case the said condition was not satisfied.
34. We are not persuaded to accept that the writ petitioner can
draw any benefit from paragraph 10 of the Master Plan. It is clear
from the plain language of paragraph 10 of the Revised Plan that
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the same enables the concerned authority to consider relaxing set
backs up to a maximum extent of 50%. It does not mandate that
relaxation to 50% set backs is required to be granted. BBMP has
framed Rules regarding the permissibility of the norms relating to
set backs and cannot sanction a plan contrary to the Rules.
35. In view of the above, the present appeal is allowed and the
impugned judgment is set aside.
36. The Contempt petition - CCC.No.1332/2024 - which alleges
wilful disobedience of the order impugned in the appeal
(WA.No.73/2025) is, accordingly, closed.
37. Pending application stands disposed of.
Sd/-
(VIBHU BAKHRU)
CHIEF JUSTICE
Sd/-
(C M JOSHI)
JUDGE
SD
