IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION Nos. 53352 - 53384/2017 (BDA) Between:
1. Smt G.Roopa, Aged about 38 years, Wife of G.Mallikarjuna, Residing at # 400, 2nd Cross, 5th Block, BSK 3rd Stage, Bengaluru-560 085 Karnataka.
2. Sri. A.Narasimhalu, Aged about 77 years Son of A.Changamma, Residing at #17/14, 7th Cross, 30th Main, BSK 3rd Stage, Bengaluru-560 085 Karnataka.
3. Sri. V.Ramesh, Aged about 49 years, Son of late G.Venkataswamy, Residing at #18, Canara Bank Colony, Behind Shanthi Sagar, Uttarahalli Main Road, Bengaluru-560 085 Karnataka.
4. Sri. Sidda Reddy, Aged about 63 years, Son of Peddi Reddy, Residing at # 39, 30th Main, 6th Cross, BSK 3rd Stage, Bengaluru-560 085 Karnataka.
5. Sri. G.Danda Pani, Aged about 43 years, Son of M.Govinaraju, Residing at #28, 9th Cross, N.R.Colony, Bengaluru-560 004 Karnataka.
6. Sri. Venkateshalu, Aged about 55 years, Son of Subramanyam, Residing at #26, 2nd Cross, A.G.R.C. Layout, Chikkallasandra, Bengaluru-560 004 Karnataka.
7. Smt. Chitralekha, Aged about 40 years, Daughter of Nagaraj, Residing at #70, 4th Cross, 3rd Main, Katriguppe, BSK 3rd Stage, Bengaluru-560 085 Karnataka.
8. Sri. Giridhar AG, Aged about 46 years, Son of Govindaswamy Naidu, Residing at #26, 2nd Cross, A.G.R.C. Layout, Chikkallasandra, Bengaluru-560 070 Karnatakaa.
9. Sri. Lakshmi Aged about 45 years, Daughter of Smt.Rajamma, Residing at # 128, 2nd Phase, Mahalakshmi Layout, Bengaluru-560 086 Karnataka.
10. Sri. Govindaswamy, Aged about 74 years, Son of Narasimhulu, Residing at #1410, 4th Cross, L.N.Colony, Yeshwanthpura, Bengaluru-560 022, Karnataka.
11. Smt. Alamelu, Aged about 49 years, Daughter of Ballaiah, Residing at #11, 5th Main, BSK 3rd Stage, Bengaluru-560 085 Karnataka.
12. Sri. Srikanth Reddy, Aged about 29 years, Son of Sadasiva Reddy, Residing at #1, Sourabha, Navarathan Garden Road, 1st Block, Narayanagar, Kanakapura Main Road, Bengaluru-560 062 Karnataka.
13. Sri. M.Bhaskar Reddy, Aged about 51 years, Son of Late M.Narayana Reddy, Residing at #14, 3rd Main, 1st Cross, 3rd Phase, JP Nagar, Bengaluru-560 078 Karnataka.
14. Sri.K.Bhaskar Reddy, Aged about 66 years, Son late K.Reddeppa Reddy, Residing at #721, 22nd Cross, K.R.Road, 7th Block, Jayanagar, BSK 2nd Stage, Bengaluru-560 070 Karnataka.
15. Sri. Y.Raja Reddy Aged about 84 years, Son of Sami Reddy, Residing at #1265, 7th Cross, 1st Phase, JP Nagar, Bengaluru-560 078, Karnataka.
16. Sri.T.Prabhakar Aged about 56 years, Son of Chinnabba, Residing at #19, 4th Cross, 4th Block, 5th Phase, BSK 3rd Stage, Bengaluru-560 085 Karnataka.
17. Smt.D.C.Bharathi, Aged about 40 years, Wife of Shankara Narayana Shetty, Residing at #38/56 Surveyor Street, Basavanagudi, Bengaluru-560 004 Karnataka.
18. Sri.D.V.Chandra Kumar, Aged about 45 years. Son of D.R.Vishwanath, Residing at #6, National High School, V.V.Puram, Bengaluru-560 004 Karnataka.
19. Sri.P.H.Bhaskar, Aged about 41 years, Son of Huchanna, Residing at #16/12, 4th A Main Road, Vijayanagar, Bengaluru-560 040 Karnataka.
20. Smt.Sasikala, Aged about 56 years, Wife of Munirathnam, R/at #294/295 6th A Cross, 50ft Road, 2nd Block, BSK 1st Stage, Srinivasa Nagar, Bengaluru-560 050 Karnataka.
21. Sri.J.Devarajulu, Aged about 53 years, Son of Govindaswamy Naidu, Residing at #37, Southend Road, Basavanagudi, Bengaluru-560 004 Karnataka.
22. Smt.J.Nirmala, Aged about 47 years, Daughter of Doraiswamy Naidu, Residing at #30, 3rd Cross, 7th Main, 7th Block, 4th Phase, SBI Colony, BSK 3rd Stage, Bengaluru-560 085 Karnataka.
23. Sri.J.Mouli, Aged about 32 years, Son of J.Devarajulu, Residing at #15, Kanakapura Main Road, Yediyur, Bengaluru-560 004 Karnataka.
24. Sri.D.Surendra Babu Aged about 56 years, Son of D.Subba Naidu, Residing at #7, 1st Main Road, 2nd Block, Thyagarajanagar, Bengaluru-560 028 Karnataka.
25. Smt.Bindu Kumar, Aged about 39 years, Daughter of R.Kumar, Residing at #27, 2nd cross, R.C.Layout, Padmanabhanagar, Bengaluru-560 070 Karnataka.
26. Smt.S.Rani Aged about 41 years, Wife of Ramalingappa, Residing at #17, HIG, KHB Quarters, 2nd Stage, Basaveswar Nagar, Bengaluru-560 079 Karnataka.
27. Sri. T.Rama Murthy, Aged about 50 years, Son of T.Doraiswamy, Residing at Chikkapapaiah Garden, New Hanumagiri Nagar, Bengaluru-560 061 Karnataka.
28. Sri.K.P.Krishnamurthy, Aged about 61 years, Son of Pullaiah, Residing at #38, 7th Block, Banagirinagar, Bengaluru-560 085 Karnataka.
29. Smt.Padmavathamma, Aged about 93 years, Wife of Late Pullaiah, Residing at # 142/1, Sree Rama Road, 2nd Block Thyagarajanagar, Bengaluru-560 028 Karnataka.
30. Sri. Narasaiah, Aged about 58 years, Son of Palahalli Mudiya, Residing at #64/2, 4th Cross, 3rd Main, BSK 3rd Stage, Bengaluru-560 085 Karnataka.
31. Smt.Yashodha Thimmappa Aged about 54 years, Wife of Sri.Thimmappa, Residing at #136, Shankari Nilaya, 6th Cross, Shastry Nagar, Bengaluru-560 028 Karnataka.
32. Smt. Saraswathi, Aged about 62 years, Daughter of Late Pullaiah, Residing at #16, Banagirinagar, BSK 3rd Stage, Bengaluru-560 085 Karnataka.
33. Bhavani Housing Co Operative Society Limited ® #27, Rama Mandir Road, Kaverinagar, Banasankari 3rd Stage, Bengaluru-560 085 Represented by its President.
… Petitioners (By Sri. N.S.Sanjay Gowda, Advocate) And 1. The Bangalore Development Authority T.Chowdaiah Road, Kumara Park West, Bengaluru-560 020 Karnataka By its Commissisoner.
2. The Town Planning Member The Bangalore Development Authority T.Chowdaiah Road, KP West, Bengaluru-560 020 Karnataka. ... Respondents (By Sri.M.N.Sudev Hegde, Advocate) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 05.06.2017 passed by the R-2 [Annexure-F]. Direct the respondents accord approval to the modified layout plan as requested by the petitioners vide Annexures-D and E and etc.
These Writ Petitions coming on for Preliminary Hearing in B Group this day, the court made the following:-
ORDER In these writ petitions, the Cooperative Housing Society and its Members are grieving against the endorsement dated 05.06.2017 issued by the second respondent whereby Society’s request for the grant of approval to its proposed modified layout plan has been rejected mainly on the ground that the amended Rules in question enhancing the sital area to 55% from the earlier 50% are prospective in operation.
2. After service of notice, the respondent BDA having entered appearance through its counsel submits that the Zoning Regulations of Master Plan of Bangalore (Revision – II) as amended by the Notification No. UDD 494 MNJ 2004 dated 16.05.2006 at Annexure-A by very nature is prospective in effect and therefore, the layouts formed with the approval granted prior to such amendment cannot have the modified layout plan.
3. The learned Panel Counsel for the respondents further submits that prior to the amendment in question, the Regulations permitted user of 50% of the land developed by way of layout for the formation of the residential sites whereas petitioner being the law breaker has formed the residential sites in 55% of the land which obviously has squeezed the Civic Amenity Area from 50% to 45% and therefore, no relief can be granted to the petitioners.
4. I have heard the learned counsel for the petitioners and the learned Panel counsel for the respondents. I have perused the writ petition papers.
5. The Regulations in question have been amended vide Notification dated 16.05.2006 at Annexure- A whereby the residential sital area is enhanced from 50% to 55% and thereby the Civic Amenity Area stands reduced to 45%. The then Under Secretary (Mr. V.R.Ilkkal), has issued Letter No. NaAI/494 BDA/2004, Bangalore dated 06.06.2006 at Annexure-B to the writ petitions to the effect that the cases that were pending for consideration of approval before the amendment in question could be considered under the amendment on the payment of the penalty. Whether this Letter addressed to the Commissioner, BDA constitutes a Government Order needs consideration at the hands of the respondents. This aspect having not been considered, the impugned order is vitiated.
6. The contention advanced on behalf of the respondents that the layout having been developed in the land in question in the ratio of 55% (sital area) is to 45% (Civic Amenity and other Area) in violation of the prescribed ratio of 50:50 before amendment, the petitioners are not entitled to any relief is a bit difficult to accept at this stage inasmuch as the impugned order is not grounded on that reason. This aspect of the matter now being into pressed into service also needs consideration at the hands of the respondents.
7. In the above circumstances, these writ petitions succeed in part; a Writ of Certiorari issues quashing the impugned order dated 05.06.2017 made by the second respondent herein at Annexure-F; the matter is remitted to the respondents for consideration afresh within an outer limit of three months after hearing the petitioner – Society.
It is needless to mention that, the respondents may solicit any information or documents as are required for due consideration of the matter afresh. However, in that guise, no delay shall be brooked.
Sd/- JUDGE DS/-