KAMINI SRINIVASAN KURPAD Vs. MALATHI RAU

JUDGEMENT

(1.) These appeals are preferred against the order of the Learned Single Judge who has quashed the sanction plan dated 16/9/2010 granted to the appellant by the Bangalore City Corporation for construction of office accommodation in her site. For the purpose of convenience, the parties are referred to as they are referred to in the writ petition. The subject-matter of this proceeding is a property bearing No. 41/7, 15th Cross, Malleswaram, Bangalore-03, measuring 1213 sq. mtrs. The 4th respondent made an application to the 3rd respondent for sanction of the plan to put up construction there on. A sanctioned plan was issued on 16/9/2010 for putting up construction of a multi-storied commercial complex comprising basement, ground and 3 upper floors and a terrace. On coming to know of the said sanction, the petitioners filed representation before the corporation authorities contending that the said sanction is in violation of Zoning Regulations and requested for its cancellation. When their representations did not yield any result, they filed W.P. 10931/11 and 11957-12027/11 for a mandamus directing the 2nd respondent to consider their representation. By an order dated 24/3/2011, the said writ petitions came to be dismissed on the ground that the petitioners cannot prosecute parallel remedy and therefore they were directed to pursue their remedy before the Commissioner. It was made clear that, dismissal of the writ petitions would not come in the way of the Corporation considering the said representation. In spite of the said order being brought to the notice of the authorities, their representation was not considered. Therefore petitioners were constrained to file W.P. 17567-591/11 for quashing the impugned sanction plan and for a mandamus to consider their representation. The said writ petitions were allowed and a direction was issued to the authorities to consider their representation after giving an opportunity to the petitioners. After considering their representation and hearing of the parties, the Corporation passed an order dated 7/6/2011 holding that the plan which they have sanctioned, is strictly in accordance with the bye-laws and therefore no case for cancellation of the plan was made out. Aggrieved by the said order, petitioners preferred writ petition before this court. The said writ petition, after contest, came to be allowed on 30/8/2011 by the impugned order, upholding the contention of the petitioners that the sanction plan was in violation of the building bye-laws. Aggrieved by the said order, the 4th respondent has preferred these appeals.

(2.) Sri Udaya Holla, learned Sr. Counsel appearing for the appellant contended, the property in question is situated within the residential zone. No doubt in the Zoning Regulations of Revised Master Plan 2015, a distinction is made between Residential (Main) and Residential (Mixed). In both the cases without obtaining change of land use, a particular extent of the property could be used for commercial purpose. If the property is situated in residential (Main), 20% of the total built up area or 50 sq. mtrs. could be used for commercial use, whereas 30% of the total built up area could be used for commercial use if the property is within the Residential (Mixed). However if the frontage is 10 mtrs. or more in the case of Residential (Main) and 15 mtrs. in the case of Residential (Mixed), if the plot size is up to 360 sq. mtrs., or up to 240 sq. mtrs., respectively, the entire area could be used for commercial use. At the same time if the road width is 18 mtrs., then the entire area could be used for commercial use. Even though in Table No. 11 dealing with Residential (Mixed), plot size is mentioned as above 240 sq. mtrs., up to 1000 sq. mtrs., road width is 18 mtrs., if the plot size is above 1000, then Table No. 10 applies and the entire area could be used for commercial purpose. Therefore the authorities keeping in mind the object with which these Zonal Regulations are made and taking note of Table No. 10, Table No. 11 and also Table No. 12, rightly sanctioned plan for putting up a commercial complex in the entire site which is valid and legal. The Learned Single Judge has placed a literal interpretation on these Regulations and committed an error in quashing the sanctioned plan. Therefore he submits that the impugned order requires to be set aside.

(3.) Per contra, Sri K G Raghavan learned Sr. Counsel appearing for the petitioners submitted that, Clause 4.1 deals with Residential (Main) and 4.2 deals with Residential (Mixed); only parts of Malleswaram falls within Residential (Main), whereas the remaining part falls within Residential (Mixed) which is clearly demarcated in the sketch prepared, which is a part of the Revised Master Plan. When the specific provisions are made under law for Residential (Main) and Residential (Mixed) areas, they have to be interpreted separately. The provisions contained in clause 4.1 Residential (Main) cannot be read into clause 4.2 Residential (Mixed). The object behind permitting commercial activity in a plot which is up to 1000 sq. mtrs., and not permitting commercial activities in a plot more than 1000 sq. mtrs., is to be kept in mind. In that view of the matter, the sanction of the plan is illegal and the Learned Single Judge was justified in setting aside the plan. Therefore he submits no case for interference is made out with the well-settled order passed by the Learned Single Judge.