IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No. 34055 /2016 (LB-BMP) Between:
V. Ramalinga Reddy S/o. Late Venkata Reddy Aged about 74 years R/at No.92, 3rd West Main Road ITI Layout, Katriguppe BSK-III Stage Bangalore – 560 085. ... Petitioner (Senior citizenship benefit not claimed) (By Sri. M.S. Varadarajan . Advocate) And:
1. The Bruhat Bengaluru Mahanagara Palike N.R. Square, Bangalore – 560 002. Rep. by its Commissioner 2. The Asst. Revenue Officer BBMP Vidyapeeta BSK-III Stage Bangalore – 560 085.
3. The Medical Officer for Health BBMP – Basavangudi C.T. Bed Main Road T.R. Nagar Bangalore – 560 028.
4. The Deputy Health Officer South Zone, BBMP Bangalore – 560 004.
5. The Commissioner of Police Infantry Road Bangalore – 560 052.
6. The Sub-Inspector of Police C.K. Acchukattu Police Station BSK-III Stage Bangalore – 560 085.
7. The Karnataka State Pollution Control Board 1st Floor, Nisarga Bhavana 7th ‘D’ Main Road, Thimmaiah Road Sanegurvanahalli, Shivanagar Bangalore – 560 010 By its Regional Environment Officer 8. Spoorthi School of Dance No.91/B, 2nd Floor 3rd West Main Road ITI Layout, Katriguppe Bangalore – 560 085. Rep. by its owner Smt. Suma Aged about 45 years ... Respondents (By Smt. B. P. Radha, AGA for R5 & 6;
Sri. B. V. Muralidhar, Adv. for R1 to 4; Sri. Gururaj Joshi, Adv. for R7;
Sri. S. Vasanth Madhavan, Adv. F8) This Writ Petition is filed under Article 226 of the Constitution of India praying to direct the Respondent Nos.1 to 6 to take appropriate steps to shift the dance school that the Respondent No.8 is running in premises bearing 91/B, 2nd Floor, 3rd West Main Road, ITI Layout, Katriguppe, Bangalore – 560 085 to any commercial location and etc.
This Writ Petition coming on for Orders this day, the Court made the following:
ORDER The petitioner who is the senior citizen and has retired as Professor of Head Department of Mathematics has filed the petition seeking for issuance of writ of mandamus directing respondent Nos.1 to 6 to take appropriate steps to shift the dance school being run by respondent No.8.
2. The petitioner claims that respondent No.8 is running a dance school and that the premises is being used by respondent No.8 for dance classes for batches 25 to 30 students and musical instruments are used and the sound that emanates is beyond the prescribed decibel level.
3. It is also contended that the premises used for running the dance class is in a residential locality and that activity of respondent No.8 is impermissible.
4. This Court after having issued notice and after taking note of the report filed by respondent No.7 that the noise levels measured exceeded the limit prescribed for residential area and noticing that the same was disputed by respondent No.8, directed the Officer of respondent No.7 to visit the spot in the presence of respondent No.8, after issuing due notice to the concerned parties to measure the noise level. Accordingly, necessary inspection has been made and report has been submitted pursuant to the order of this Court.
5. Learned counsel for respondent No.8 disputes the contents of the report and further contends that the purpose for which the building is being used by respondent No.8 for conducting of dance classes is not for profit purpose and cannot be termed to be a commercial activity and also contends that as per the reports of the Pollution Control Board, even otherwise, the decibel levels when the dance class is not conducted is already beyond the permissible limit and hence contends that this Court ought not to exercise power of the judicial review.
6. It is further submitted that respondent No.8 must be permitted to function as larger public interests are served, by its existence and functioning.
7. Having heard the learned counsel on both the sides, the matter is taken up for final disposal with the consent of both the parties.
8. The contentions as regards the location of the building in which respondent No.8 is conducting a class does not fall within the commercial zone but residential zone, comes out from the statement of objections filed by respondent Nos.1 to 4 wherein the respondent–BBMP states that the property of respondent No.8 is located in the residential main zone.
9. The averment in para No.3 of the statement of objections filed on 30/11/2018 is clear and unambiguous. The notification dated 20/03/2015 which contains the amendments carried out to the Zoning Regulations provides that no commercial activity of any nature shall be allowed in residential main and residential mixed zone in ring 1, ring 2, ring 3 if the road is less than 40 feet. It is submitted that the width of the road in question is 30 feet.
10. Learned counsel for respondent Nos.1 to 4 points out that the permissible use in residential category are found in the table of the notification dated 20/03/2015 and the said table is exhaustive. It is further submitted, as per the notification dated 20.03.2015 the permissible use in the residential category does not include the present activity of running a dance school.
11. It is not in dispute that the property in question wherein respondent No.8 is running a dance school is within the residential main. Copy of the extract of the Revised Master Plan of 2015 is enclosed at Annexure-R1 and the marking on the said extract indicates that the property falls within residential main. Learned counsel for respondent Nos.1 to 4 also files a Map of Banashankari (2.11) of the Revised Master Plan of 2015 with the legend by showing zonal classification which indicates residential main in Yellow colour.
12. In fact, learned counsel for respondent Nos.1 to 4 states that on the basis of the complaint that was received as regards Spoorthi School of Dance, a notice had been issued on 17.07.2017 to the effect that the school was being run in a residential area as classified under the Zoning Regulations as per the Revised Master Plan of 2015 and that such non-residential activity not being permitted, the petitioner was asked to voluntarily stop conducting such activity failing which, action would be taken.
13. The only contention of the petitioner as regards the aspect of conducting non-residential activity i.e., running of the dance school in the area classified as residential main is that there is no profit motive as regards the said activity and that it could not be construed that running of a dance school would amount to conducting a non-residential or commercial activity.
14. Learned counsel for respondent No.8 relies on the decision reported in (2012) 2 SCC 232 (R.K. Mittal and others vs. State of Uttar Pradesh and others) to contend that the Apex Court has made certain observations as regards use of property for clinics/offices and while dealing with the contention whether a Doctor or a Lawyer or an Architect runs their office in residential areas and whether such activities could be permitted, the Apex Court while considering the Regulations in question and the Master Plan, has observed that 30% of the ground floor area could be used for office of an Architect, Lawyer and for Clinic run by a Doctor. The Apex Court also observes that environmental impact and convenience of the residents while deciding such an issue ought to be taken note of. The Apex Court at paragraph No.74 observes regarding permissible and impermissible activities. However, it is to be noted that the judgment passed in Mittal’s case (supra) was in the context of the Regulations of the Authority in the particular case, it cannot be extended to the present facts in light of the notification dated 20.03.2015.
15. The intention or purpose for which activity is being conducted would not in any way change the yardstick for judging the permissibility of the activity as residential or non-residential. There is no ambiguity in the notification dated 20.03.2015. It is also pointed out by the learned counsel for respondent Nos.1 to 4 that the road abutting the property of respondent No.8 being less than 30 feet, the question of permitting ancillary usage in the said notification does not arise. As is clear, the permissibility of ancillary usage could be considered only where the width of the road is beyond 40 feet. Accordingly, as regards the permissibility of carrying of non-residential activity i.e., activity of conducting a dance school by respondent No.8 in an area classified as residential main is concerned, it is clear that such activity is impermissible.
16. As regards, the contention of petitioner that there has been noise pollution as a result of which petitioner’s rights have been infringed to lead a peaceful life free from noise pollution, it is to be noted that the material on record in the form of the Status Report dated 02.07.2018 has been placed before the Court and at paragraph No.12 of the said Status Report, there is a clear observation that the noise level is higher than the permissible levels as prescribed under the Noise Pollution (Regulation and Control) Rules, 2000 and the report has been submitted at Annexure-R7H. The said report at Annexure-R7H clearly opines that the noise level exceeds permissible level. The relevant extract of the said report is reproduced below:
“The noise levels were measured at the following place of the complainant house;
The background noise level at the dining hall was Min 44.8 dB(A), Max 49.7 dB(A) and Average noise level was Leq 48.11. These noise levels was measured from 6.15 PM to 6.25 PM.
The noise levels measured at the dining hall when the dance class were going on. These noise levels were Min 72.0 dB(A), Max 80.5 dB(A) and the average noise level was Leq 76.44. These noise levels was measured from 6.30 PM to 6.40 PM.
Opinion: The noise levels measured during dance class conducted are exceeding the limit prescribed for residential area i.e., 55 dB(A) during day time (6.00 AM to 10.00 PM) and 45 dB(A) during night time (10.00 PM to 6.00 AM). These exceeded noise levels can interfere with the peaceful life of Petitioner (Complainant) and his family members.”
17. Subsequent to placing of said Status Report, this Court, pursuant to the order of this Court for conducting other inspection and furnishing a report in the presence of all persons including respondent No.8 by order dated 09.07.2018 has ordered for a fresh inspection to be conducted and another Status Report came to be submitted on 23.07.2018. The said report filed by the learned counsel for respondent No.7 contains the inspection report at page Nos.3 to 5 and the relevant extract would also indicate that the noise level measured are exceeding the limit prescribed for residential area. The relevant extract of the said report is reproduced herein.
“A. Back Ground Noise levels: When dance classes was not conducted (From 5.55 PM to 6.40 PM).
B. Noise Level measured when the dance class was conducted (from 6:45 PM to 7:10 PM)
The following Points were observed at the time of inspection and noise measurement.
1. The dance class was not conducted in full fledged manner.
2. There were only 16 students in the age group of 10- 12 years.
3. No musical aids like Tabala, Tala were not used.
Opinion:-
The dance school authorities not conducted dance classes in full fledged manner. Only 16 students in the age group of 10-12 were participated in the dance training class. Further, no musical aids like tabala, Tala were not used. However, the noise levels measured are exceeding the limit prescribed for residential area.”
18. The learned counsel for respondent No.8 vehemently opposes the petition by contending that the noise levels recorded even when the dance classes were not conducted, revealed that the noise level was beyond the permissible limit, hence, it is contended that once the permissible noise level was beyond the limit prescribed even in the absence of the said activity, the petitioner could not contend that he is affected by activity which merely adds to the high levels of noise pollution that already exists. Such a contention cannot be accepted as running of the dance class would add to the existing noise pollution and merely because existing noise levels are beyond the permissible limits, there is no reason to permit any activity which would result in further violation. This Court cannot permit to breach perpetuating illegality or encourage violation of any Rule or Law only on the ground that the Rule or Law even otherwise, has already been breached.
19. The Court is also reluctant to enter into the correctness of the findings recorded by Competent Experts and that no grounds being made to impute motives as regards the reports furnished, there is no reason to disagree with the findings recorded by the said Authorities.
20. As regards the other contention of the learned counsel for respondent No.8 that equitable considerations ought to be taken and taking note of the nature of activity of respondent No.8, which according to the said respondent, contributes to the society’s well being and promotion of cultural activity and Court ought not to intervene in this matter, the said contention requires consideration. This is not a case where equitable considerations could be taken note of so as to permit clear breach of existing Law and Rules relating to permissibility of use of property as well as breach of permissible noise levels. The petitioner’s right to a healthy environment, free of noise pollution as well as right as regards the right to enjoy a neighbourhood free from activities in violation of Zonal Regulations also requires to be upheld. Impermissibility of the activity being established in light of material and stand taken by learned counsel for respondent Nos.1 to 4, this Court cannot permit for continuation of such activity.
21. Taking note of the fact that the respondent No.8 continues to run the dance school, in the interest of justice, it would be appropriate to provide time of one month to enable respondent No.8 to voluntarily stop running dance school and to make alternative arrangements. On the expiry of period of one month, respondent Nos.1 to 4 to take action as permissible in accordance with law as regards violation as pointed out. In so far as respondent No.7 is concerned, if found necessary that there is continuing actionable wrong and if complaint is made, respondent No.7 to consider the same and take forward the complaint in accordance with law.
Accordingly, petition is disposed of in light of the observations made above.
In view of disposal of the petition, I.A.No.1/2018 stands disposed of.
Sd/- JUDGE SJK/SN