ALLIANCE BUSINESS ACADEMY BANGALORE Vs. H JAYARAM REDDY

JUDGEMENT

(1.) ALL these appeals are directed against the order of a learned Single judge of this Court dated 28th May, 2003 passed in Writ Petition Nos. 39079 and 39344 of 2002 (Dr. H. Jayaram Reddy and Another v bangalore Mahanagara Palike and Others1 ). Writ Appeal Nos. 5211 and 5212 of 2003 are preferred by M/s. Alliance Business Academy-4th respondent in the writ petitions. Writ Appeal Nos. 4980 and 5596 of 2003 are preferred by Sri Gundappa B. Angoor, 3rd respondent in the writ petitions. Writ Appeal Nos. 5488 and 5489 of 2003 are preferred by m/s. H. Jayaram Reddy and Vinod Kumar Bansal who are the writ petitioners. Inasmuch as the questions of law and that of facts arising for decision in these writ appeals are common and since all the writ appeals are directed against the same common judgment of the learned single Judge, all these writ appeals were clubbed and heard together and they are being disposed of by this common judgment.

(2.) FOR the purpose of convenience, the parties are referred to as they are arrayed in the writ petitions. The petitioners in Writ Petition Nos. 39079 and 39344 of 2002 are residents of Dollar Scheme Layout in madiwala, Bangalore and they, in the writ petitions, sought for a writ of mandamus to the Bangalore Mahanagara Palike (BMP) and Bangalore development Authority (BDA) for revoking the sanctioned plan and for a direction to demolish the building constructed in the two sites owned by the 3rd respondent. The petitioners subsequently sought for auashing of the 'special permission' granted by the BDA to establish a college vide its Resolution dated 19-10-2002 by amending the prayer. It was contended by the petitioners that the Dollar Scheme Layout in madiwala is a residential colony notified as such by the BDA in the comprehensive Development Plan ('cdf for short ). The petitioners stated that they have constructed two residential houses in premises nos. 4 and 5-A at 36th Main, II Cross, BTM I Stage, Bangalore. The adjacent two sites bearing Nos. 2 and 3 which were allotted by the BDA purely for purposes of constructing residential houses by the allottees, were purchased by the 3rd respondent from the allottees. Subsequently, the 3rd respondent amalgamated the two sites into one and obtained a sanctioned plan from BMP for constructing a school building. On coming to know of the same, the residents of the layout objected to the same before the BMP. The BMP authorities, realising their mistake, directed the 3rd respondent not to proceed with the construction without obtaining prior permission for 'change of land use' as required under the provisions of the Karnataka Town and Country Planning Act, 1961 (for short, the 'planning Act' ). On being told so by the BMP authorities, the respondent 3 made an application to the BDA for 'change of land use' in that regard. The application was taken on file by the BDA authorities and objections were invited from the residents of the locality by issuing a notice in the local daily, Annexure-E. Objections were received from the residents of the locality. The BDA, after considering the objections, granted permission to the 3rd respondent vide its Resolution No. 188 of 2002, dated 19-10-2002 marked as Annexure-H to the writ petitions, to build and establish a college. The petitioners contended that annexure-H was issued by the BDA without notice to them and without recourse to the provisions of the Planning Act, Zonal Regulations, building bye-laws and prejudicial to the interest of the residents of the locality.

(3.) WHEN those writ petitions were pending, the 4th respondent made an application to implead itself as a party respondent to the writ petitions claiming that it is a long-term lessee of site Nos. 2 and 3 and they have put up the building for running a college and, in fact, they are running classes in computer training. The BDA, in response to rule nisi, put in appearance and defended its action in granting permission to the 3rd respondent to establish a college under 'special circumstances'. The bda, in its statement of objections, pointed out that though the 3rd respondent initially made an application for 'change of land use', subsequently made an application, when the earlier application was pending, stating that his application may be treated as the one for grant of permission under 'special circumstances' as provided in the Zonal regulations for establishing a college and that in consideration of the said request and in exercise of the power under the Zonal Regulations, annexure-H was issued and, therefore, there was neither any irregularity nor any illegality in the impugned action. The respondent 3 and the impleaded respondent 4 have also filed detailed statements of objections supporting the impugned action of the BDA. In the statement of objections filed by the 3rd respondent, it was pointed out that the 3rd respondent had made an application for grant of permission for 'change of land use' under Section 14-A of the Planning Act and when that application was pending, the 3rd respondent realised that the Zonal regulations permit for establishing colleges in the residential zone under 'special circumstances' and in that view of the matter, the 3rd respondent abandoned his application for 'change of land use' and invoked the power of the BDA for granting permission under 'special circumstances' under the Zonal Regulations. It was contended by the 3rd respondent as well as by the 4th respondent that the impugned resolution of the BDA, Annexure-H is in accordance with law. It was also contended that none of the rights of the petitioners have been affected and, therefore, there was no need for the BDA to issue notice and hear the petitioners before it passed the resolution at Annexure-H. It was also contended by the 3rd respondent that the writ petitions are filed with a mala fide intention to avenge the act of the 3rd respondent in complaining to the BMP against the petitioners about their encroachment of a BMP's property. Further, it was contended that when the building was being constructed, though the petitioners were aware of the construction, they did not approach the Court in time and they approached the Court only after the building was complete and, therefore, the writ petitions were liable to be dismissed on the ground of delay and laches also. The 4th respondent, apart from other contentions raised in the statement of objections, has also contended that they established the college and they have been conducting classes in computer training.