IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL *W.P.Nos.41191/2016 & 41755/2016, 41775/2016 (BDA) BETWEEN:
1.MR.ALEEMULLA KHAN @ MUSHTAQ PASHA S/O.LATE MR.C.M.ABDUL SATTAR KHAN AGED ABOUT 71 YEARS, RESIDING AT KHAN VILLA, NO.10, LENOARD LANE RICHMOND TOWN, BENGALURU-560025, REPRESENTED BY HIS GENERAL POWER OF ATTORNEY AGENT:PRESTIGE ESTATES PROJECTS LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT: THE FALCON HOUSE NO.1, MAIN GUARD CROSS ROAD BENGALURU-560 001, REPRESENTED BY ITS AUTHORIZED SIGNATORY MR.T.ARVIND PAI, EXECUTIVE DIRECTOR 2. PRESTIGE ESTATES PROJECTS LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT: THE FALCON HOUSE NO.1, MAIN GUARD CROSS ROAD BENGALURU-560 001, REPRESENTED *Corrected vide Chamber Order dated 09.01.2018 BY ITS AUTHORIZED SIGNATORY MR.T.ARVIND PAI, EXECUTIVE DIRECTOR.
… PETITIONERS (BY SRI.UDAYA HOLLA, SENIOR ADVOCATE FOR SRI.GANPATI HEGDE, ADVS) AND:
1.BANGALORE DEVELOPMENT AUTHORITY REPRESENTED BY ITS COMMISSIONER HAVING OFFICE AT: T.CHOWDAIAH ROAD KUMARAPARK WEST BENGALURU-560 020.
2.ENGINEER OFFICER-2 BANALORE DEVELOPMENT AUTHORITY HAVING OFFICE AT T.CHOWDAIAH ROAD KUMARAPARK WEST BENGALURU-560 020.
… RESPONDENTS (BY SRI.M.N.SUDEV HEGDE, ADV. FOR R1 AND R2) +++++ THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE LETTER DATED 21-07-2016 ISSUED BY R-2 AT ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R In these writ petitions filed under Articles 226 and 227 of the Constitution of India, petitioners are aggrieved by Communication dated 21-07-2016 issued by the second respondent-Engineer Officer-2, Bangalore Development Authority (hereinafter referred to as ‘the BDA’ for short), Bangalore, vide Annexure-A thereby revoking the building plan sanctioned by BDA for constructions of Golf Course together with ancillary uses such as Guest Houses and a Club House in Sy.Nos.27 to 42 and Sy.No.56 of Vaderahalli village, Bidarahalli Hobli, Bengaluru East Taluk with a further direction to the petitioners to immediately stop further work on the structures pertaining to Guest Houses and also to remove the structures already constructed.
2. The facts leading to these writ petitions, briefly stated are that:
First petitioner is the owner of the lands bearing Sy.Nos.27 to 42 and Sy.No.56 of Vaderahalli village, Bidarahalli Hobli, Bengaluru East Taluk admeasuring 101 acres 29 guntas. Petitioners applied for conversion of these lands for non-agricultural purpose. The Deputy Commissioner, Bangalore District, Bangalore passed an order dated 17-10-2012 permitting conversion of the lands for non-agricultural uses. The said order is produced at Annexure-B. One of the conditions stipulated in the order of conversion as could be seen from Clause 5 is that petitioners shall not put up any construction without obtaining sanctioned plan from the competent authority.
3. The petitioners applied to the Bangalore Development Authority seeking to establish a Golf Course and put up construction of Guest houses and a Club house in the lands in question. In pursuance thereof, as per the Resolution bearing No.17/2013 dated 17-01-2013 and 21-01-2013, the BDA resolved to grant permission for establishing Golf Course along with Ancillary uses like construction of Administrative office, guest rooms/guest houses and dining facilities up to maximum 20% of the sital area subject to building heights of G+1. Copy of this resolution is placed for perusal of the Court along with a memo dated 03-10-2017.
4. Pursuant to the said resolution, BDA issued Work Order dated 24-06-2013 in favour of the petitioners permitting them to commence the work on the same conditions, viz., in the agricultural zone Golf Course along with ancillary uses was permitted to subject the land use for non-residential purposes.
5. The building plan was sanctioned vide Communication dated 27-12-2013 as per Annexure-G by the BDA imposing certain conditions. Petitioners were permitted to put up construction of 460 guest houses and a club house in the lands in question after obtaining No Objection from various authorities including the State Level Environment Impact Assessment Authority, Karnataka. However, after the construction was almost completed and when the petitioners were intending to dispose off some of the guest houses, the second respondent Engineer Officer-2 of the BDA issued the impugned communication dated 21-07-2016 alleging that petitioners had violated the conditions imposed while sanctioning the development plan by attempting to sell the guest houses constructed in the lands in question to the prospective buyers. It was further alleged by the second respondent that General Power of Attorney had been entered into by the owner of the lands with the Developer subsequent to approval of the Development Plan which resulted in altering the scope of Development Plan. The building plan sanctioned by BDA was sought to be cancelled with a further direction to the petitioners to stop the work and to remove the structures so far constructed. Petitioners are aggrieved by this action of the second respondent.
6. Sri.Udaya Holla, learned Senior Counsel appearing for petitioners contends that there has been no violation of the building plan sanctioned or the order of conversion by the petitioners, hence, action of the second respondent was illegal and out side the scope and ambit of his authority. It is his further submission that nature of use of lands for the purpose of constructing Golf Course and for other ancillary use is not at all violated in any manner by the petitioners since they were attempting to dispose of the guest houses in favour of the intending members for use as such; the guest houses being an ancillary use for the members of Club transfer the same in favour of such members was not prohibited and could not be prohibited. It is further submitted that the second respondent could not have cancelled the building plan sanctioned after the construction work was almost completed on the alleged ground that there was violation of conditions of the order of conversion.
7. Sri.Udaya Holla has placed strong reliance on the judgment of the Apex Court in the case of CHAIRMAN, INDORE VIKAS PRADHIKARAN v/s PURE INDUSTRIAL COKE & CHEMICALS LTD. AND OTHERS (2007)8 SCC 705 in support of the contention that an owner of land ordinarily would be entitled to use or develop the same for any purpose unless there exists certain regulation in a statute or a statutory rules; that such regulations contained in the statute must be interpreted in such a manner so as to least interfere with the right of property of the owner of such land. He further contends that the owner of the land should not ordinarily be deprived of the user thereof by way of reservation or designation.
8. Sri.Sudev Hegde, learned counsel appearing for the respondents submits that in the guise of constructing guest houses for the benefit of the members of the Golf club, petitioners had resorted to disposal of guest houses constructed which would tantamount to converting the land use to residential purpose which was not permissible. In this regard he invites attention of the court to Clause 5 of the order of conversion issued by the Deputy Commissioner and the Revised Master Plan 2015 whereunder; as per regulation 4.13.2-Permissible land use in agricultural zone is only for Golf Course along with ancillary use like, administrative office, guest rooms/guest houses and dining facilities. It is his submission that guest rooms and guest houses have to be necessarily owned by Golf Club and it is not permissible for the owner of the Club to alienate the property in favour of somebody else.
9. Upon hearing the learned counsel for the parties and on careful consideration of the entire materials on record it emerges that petitioners have obtained an order of conversion from the Deputy Commissioner whereunder, lands in question have been permitted to be used for non- agricultural purpose. The condition imposed in clause 5 of the Conversion Order states that without obtaining permission from the concerned authority or without approved plan, lay outs formed and buildings constructed shall not be registered with the registering authorities or the Sub-Registrars. However, if petitioners intend to sell the entire land, the condition imposed would not come in the way of the petitioners.
10. In the instant case, after obtaining the order of conversion, petitioners have applied to BDA for obtaining sanctioned plan to put up construction of Golf Course along with 460 guest houses and a club house. The BDA permitted the petitioners to construct Golf Course and also permitted the petitioners to use the land for any other ancillary purpose including construction of guest houses/administrative building/rest houses, etc., but on condition that the building plan approved was for non- residential development Project. In the letter dated 27-12-2013 issued by the BDA while approving the building plan, BDA had imposed condition No.4 stating that on completion of building before bringing it for residential use, petitioners shall obtain Fitness Certificate for residential use of the building.
11. Based on this letter, it is contended by the learned Senior Counsel that intention of the BDA was not to impose a condition that it should not be used by the petitioners in whatever manner but overall intention was to ensure that the lands were not used for regular residential purpose, but only as ancillary to the Golf course. In this context, it is submitted by Sri.Udaya Holla, learned Senior Counsel that only a person who is enrolled as a member of the Golf course would be entitled to purchase the guest house and make use of the same as an ancillary use because the dominant purpose is to enable him to exercise his right as a member of the Golf Club. In this context, if the resolution passed on 17th and 21st January 2013 is carefully construed it becomes very clear that a decision is taken to grant permission to the petitioners to establish golf course and to use the land for other ancillary uses like administrative office/guest rooms/guest houses, dining facilities up to maximum 20% of the sital area subject to building height of G + 1. Based on this resolution passed by the BDA, building Plan has been sanctioned. There is no prohibition imposed either in the resolution or in the building plan sanctioned that petitioners shall not dispose of the guest houses in favour of the members who would make use of the same as ancillary use as long as the main usage was for the purpose of Golf course and its membership.
12. The apprehension expressed by the learned counsel for the BDA that once petitioners are permitted to sell the guest houses in favour of the third parties, the very nature of usage will get converted into residential use is not well founded. As contended by the petitioners, the guest houses are constructed for the enjoyment of the members of Golf Course and that no other third parties would be permitted to occupy the guest houses to stay there. The order of conversion does not impose any prohibition or restriction on the right of the petitioners to dispose of the constructed guest houses. The condition imposed requires the petitioners to obtain permission from the competent authority. This cannot be construed as authorizing the competent authority to deny permission for sale of guest houses in favour of members of the Golf course. As long as the purpose contemplated under the Zoning Regulations particularly under the Revised Master Plan 2015 is not violated, the BDA is not entitled to contend that petitioners are debarred from disposing of the guest houses constructed in the lands in question in favour of the members of Golf Course. Permissible land user enumerated in clause 4.13.2 of the Revised Master Plan, 2015 states that ‘when the land is more than 40 hectares in extent, Golf course along with ancillary uses like administrative office, guest rooms/guest houses and dining facilities are permissible’. This cannot be construed to impose a condition that such guest rooms/guest houses cannot be alienated or sold in favour of the members of Golf Course.
13. As rightly contended by the learned Senior Counsel Sri.Holla, such Regulations which imposes restriction of use of land or to develop the same for any purpose have to be strictly construed. Unless they impose a clear prohibition or bar regarding usage of the land and its development, the regulations shall not be construed to deprive the property right of the owner of such land. Therefore, keeping in mind the public interest which is sought to be achieved by imposing certain restrictions with regard to indiscriminate usage of the land for residential purpose, it can only be stated that petitioners are entitled to make use of the lands for establishing Golf course with ancillary use including putting up of construction of guest rooms/guest houses, so as to enable the members of the Golf Course/Club to make use of the same.
14. The interpretation sought to be laid by the respondents on the said regulations to read into them a further prohibition regarding alienation of guest houses constructed in favour of the members cannot be accepted.
15. It is also not clear as to under what authority, the second respondent has issued the impugned communication ordering for revocation of the building plan sanctioned along with a direction to the petitioners to stop construction and to remove the construction already put up. Therefore, the contentions urged by the learned Senior counsel for petitioners that the action taken is without any authority of law also deserves to be accepted. Particularly because it is the BDA, which has sanctioned the building plan preceded by resolution passed by the BDA. Action of the Engineer of the BDA exercising such extreme power without tracing it to any of the provisions or Rules or Regulations framed under the BDA Act cannot be sustained. Hence, the impugned action is illegal and without authority of law.
16. For all the reasons stated above, all these writ petitions are allowed. Impugned communication is set aside. No costs.
Sd/- JUDGE mpk/-*