DHAMMANAGI DEVELOPERS PRIVATE LIMITED Vs. DHAMMANAGI DEVELOPERS PRIVATE LIMITED DIRECTOR (TOWN PLANNING), BRUHAT

JUDGEMENT

(1.) The petitioner has undertaken development and construction of residential apartment in the land bearing Sy. No. 98/3 of Rachenahalli Village, K. R. Puram Hobli, Bangalore East Taluk. The property measures 3,385 sq. mtrs. Petitioner has obtained a building license for the construction of apartment consisting of stilt floor, ground floor plus three floors. Annexure-A is the sanction plan issued on 18.08.2010 by the Bruhat Bangalore Mahanagara Palike, Bangalore (for short. 'BBMP'). According to the petitioner as per the building plan, the coverage area is 59.39% and the floor area ratio is 1.79, as against the entitlement of 65% and 2.25 respectively. It is his case that the height of the building reached by (he petitioner under the plan was only 14.85 mtrs. Me asserts that he is entitled to build up to the height of 18.00 mtrs. and put up another floor i. e. , 4th floor. Hence, the petitioner applied on 13.07.2011 to the BBMP requesting for sanction of the 4th floor by modifying the building plan sanctioned vide Annexure-A. This representation is produced at Annexure-B.

(2.) By an endorsement dated 26.07.2011, the respondent-BBMP through the Additional Director (Town Planning) has rejected the request of the petitioner stating that in view of the opinion of the fire department that buildings above 15 mtrs. had to be treated as high rise buildings, permission for additional floor, in the absence of no objections from the department of fire could not be granted. It is in this background, the petitioner being aggrieved by the endorsement issued, has approached this Court challenging the same seeking a direction to the respondent to sanction the modified plan for the 4th floor in accordance with the Zoning Regulations framed under the Revised Master Plan, 2015.

(3.) The contention of the counsel for the petitioner is that the impugned endorsement suffers from patent illegality in as much as ignoring the Zoning Regulations under the Revised Master Plan 2015 dated 22.06.2007 published vide Government Order No. UDD 540 BEM AA SE 2004, produced at Annexure-D and the definition of high rise building, as contained in the Revised Master Plan, 2015, the respondent has rejected the request for permission to put up 4th floor solely on the basis of the opinion of the Fire Department that buildings above 15 mtrs have been treated as high rise buildings. In other words, the contention of the petitioner is that the definition of high rise building under the Zoning Regulations, duly approved by the Government under the Revised Master Plan 2015 is binding on the BBMP and has precedence over other guidelines and regulations framed by the Fire Department. It is his next contention that based on the prevailing Zoning Regulations under the Revised Master Plan, 2015 dated 22.06.2007 framed by the BDA and approved by the Government, the petitioner had undertaken the business to construct and develop the scheduled property by leaving the required set back and adhering to the floor area prescribed. Therefore, by treating the construction put up by the petitioner as high rise building, he cannot be deprived of his right to put up construction by obtaining sanction for 4th floor. He urges that if the guidelines of the Fire Department are applied with retrospective effect, petitioner will not be in a position to meet the requirements stipulated by the Fire Department, as the petitioner cannot undo what has been done by putting up the ground plus three floors. The counsel for the petitioner invites the attention of the Court to Regulation 3.12(ii) of the Revised Master Plan. 2015. Zoning land use and Regulation dated 22.06.2007, wherein, it is stated that for all buildings with the height of 24 mtrs. and above NOC from Fire Department in addition to Pollution Control Board shall be furnished. He further invites the attention of the Court to Regulations 9.1 and 9.2, which are part of Chapter 9 of the Regulations, providing for fire protection requirements and safety measures against the earthquake. The said Regulations read as under:-