MALATHI RAU BANGALORE Vs. CHIEF ENGINEER WEST BANGALORE

JUDGEMENT

(1.) In these cases, the Petitioners have sought for quashing the order at Annexure 'A' dated 7.6.2011 whereby the first Respondent has refused to recall the sanction plan bearing L.P. No. (JC)L.P. No. 546/2010-11 dated 16.9.2010 (Annexure 'H') issued by the third Respondent in favour of the fourth Respondent, for quashing the sanction plan at Annexure 'A' and for certain other reliefs.

(2.) The 4th Respondent is the owner of the property bearing No. 41/7. 15th Cross, Malleshwaram, Bangalore-3. She had made an application to the third Respondent for sanction of the plan to put up construction thereon. The third Respondent issued a sanction plan as per Annexure 'H' dated 16.9.2010 in favour of the fourth Respondent permitting her to put up construction of a multistoried(sic) commercial complex comprising of basement, ground and three upper floors and a terrace. The Petitioners filed a representation at Annexure 'J' dated 16.11.2010 contending that the said plan is violative of the Zonal Regulation and requested the second Respondent to cancel the same. Since the said representation was not considered by the second Respondent, the Petitioners filed writ petitions in W.P. Nos. 10931/2011 and 11957 to 12027/2011 for a mandamus directing the second Respondent to consider the same. This Court by order dated 24.3.2011 disposed of the writ petitions by observing that it is for the Commissioner of Bruhat Bangalore Mahanagara Palike ('BBMP' for short) to consider the said representation in accordance with law and in terms of Section 443(3) of the Karnataka Municipal Corporation Act, 1976 (for short 'the Act') as well as under the relevant Regulations. Since the second Respondent did not consider the representation pursuant to the order referred to above, the Petitioners once again filed W.P. Nos. 17567 to 17591/2011 for quashing the impugned sanction plan and for a mandamus directing the second Respondent to consider the representation dated 16.11.2010. This Court passed an order dated 26.5.2011 directing the first Respondent to pass appropriate orders on the representation referred to above after granting the contesting parties an opportunity of being heard. Accordingly, the first Respondent has considered the matter and has passed the order at Annexure 'A' dated 31.5.2011 holding that the sanction plan at Annexure 'H' is in order.

(3.) Sri K.G. Raghavan, learned Senior Counsel appearing for the Petitioners submits that the property in question is situated in the 'Residential (Mixed) Zone' of the Zoning of land use and Regulations of the Revised Master Plan, 2015 (for short 'Zoning Regulations'). The 'Ancillary Use as Main Use' is permissible on the plots of total dimension varying from 240 sq.mtrs. to 1000 sq.mtrs. subject to the property abutting a main road with a minimum width of 18 mtrs. 'Ancillary Use as Main Use' is not permissible in a property, which is in excess of thousand sq.mtrs. in dimension. The object of allowing use of smaller sized properties for Ancillary Use as Main Use is to permit housing small establishments falling under C-3, I-2, U-4 and T2. The permissible land use in these categories clearly indicate that these are meant to house small establishments with a view to obviate those living in the neighbourhood to travel over a long distance to reach these amenities. The use of the property of larger dimension wholly for Ancillary Use defeats the whole object of orderly planning of the city. Such use of property in a 'residential area' for 'non-residential commercial purpose' will cause disturbance to the peace and tranquility for those living in the neighbourhood, cause traffic congestion and burden the public amenities. The properties in excess of one thousand sq.mtrs. located in residential (mixed) zone, cannot be wholly used for anything other than 'residential'. Ignoring the said object, the third Respondent has granted permission to the 4th Respondent to use the said property entirely for commercial purpose, which is wholly illegal besides being in violation of Revised Master Plan, 2015. The first Respondent has erroneously applied the provisions of Chapter 41 (Residential Main) to the instant case when it is apparent that there is no disagreement between the parties that the said property lies within an area classified as 'Residential (Mixed)' Zone and not a 'Residential (Main)' Zone because the property admittedly measures more than thousand sq. mtrs. and it admittedly is situated in residential mixed zone as per Regulation 4.2 of the Zoning Regulations. In support of his contentions, the learned Senior Counsel has relied on the decisions of the Apex Court in K. Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udupi and Ors., 1974 AIR(SC) 2177, B.K. Srinivasan and Ors. v. State of Karnataka and Ors., 1987 AIR(SC) 1059, State of Rajasthan and Anr. v. H. V. Hotels Pvt. Ltd. and Another, 2007 AIR(SC) 1126 and Priyanka Estates International Pvt. Ltd. and Ors. v. State of Assam and Ors., 2010 AIR(SC) 1030. He submits that the Rules, Regulations and bye-laws are made by the development authorities taking in view the larger public interest of the society and it is the bounden duty of the citizens to obey and it is the bounden duty of the Corporation to sanction the plan in accordance with such Rules. If the 4th Respondent is permitted to put up construction in terms of the sanction plan issued by the Corporation, it would amount to nullification of the Rules themselves. The Corporation should act in aid of the building bye-laws. It shall not sanction the plans contrary to the building bye-laws.