Karnataka High Court
Dr Virendra Sheth vs National Education Trust on 30 June, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 27740 OF 2010 (GM-RES)
BETWEEN
1. DR VIRENDRA SHETH
S/O LATE RATHILAL SHETH,
AGED ABOUT 78 YEARS,
RESIDING AT NO. 3367/G,
13TH MAIN,HAL II STAGE,
BANGALORE 560008
2. SHRI. GOVIND AGARWAL
S/O KISHORILAL AGARWAL
AGED ABOUT 49 YEARS,
RESIDING AT NO. 3367/G,
13TH MAIN,HAL II STAGE,
BANGALORE 560008
3. SHRI ROGER BINNY
S/O SHRI. TERENCE BINNY
AGED ABOUT 55 YEARS,
Digitally signed R/AT NO.3373/G, 13TH MAIN,
by SHWETHA HAL II STAGE,BANGALORE-560008
RAGHAVENDRA
Location: HIGH
COURT OF 4. SHRI. H.NIRMAL KUMAR
KARNATAKA AGED ABOUT 55 YEARS,
R/AT NO.3373/G, 13TH MAIN,
HAL II STAGE,BANGALORE-560008
5. DR. I.DEVENDIRAN I.A.S. (RETD)
AGED ABOUT 55 YEARS,
R/AT NO.3373/G, 13TH MAIN,
HAL II STAGE,BANGALORE-560008
6. SHRI S.N.S.MURTHY I.P.S. (RETD)
AGED ABOUT 55 YEARS,
RESIDING AT NO.3373/G, 13TH MAIN
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HAL II STAGE,BANGALORE-560008
7. SHRI P.P.R. NAIR I.P.S. (RETD)
AGED ABOUT 55 YEARS,
RESIDING AT NO.3373/G,
13TH MAIN HAL II STAGE,
BANGALORE-560008
8. SHRI. MATHAI YOHANAN
AGED ABOUT 55 YEARS,
RESIDING AT NO.3373/G, 13TH MAIN
HAL II STAGE,BANGALORE-560008
9. MRS.MADHAVI NAIR
AGED ABOUT 55 YEARS,
RESIDING AT NO.3373/G, 13TH MAIN
HAL II STAGE,BANGALORE-560008
10.SHRI. S. JANARDHAN
AGED ABOUT 55 YEARS,
RESIDING AT NO.3373/G, 13TH MAIN
HAL II STAGE,BANGALORE-560008
...PETITIONERS
(BY SRI. S.S. NAGANAND SR. ADVOCATE FOR
SMT. JAYASREE NARASIMHAN., ADVOCATE)
AND
1. NATIONAL EDUCATION TRUST
NATIONAL PUBLIC SCHOOL,
12TH MAIN HAL II STAGE,
BANGALORE 560008,
REP. BY ITS CHIEF TRUSTEE
SHRI K. GOPALAKRISHNA
2. THE STATE OF KARNATAKA
DEKPARTMENT OF URBAN DEVELOPMENT
GOVERNMENT OF KARNATAKA,
DR. AMBEDKAR VEEDHI,
BANGALORE 560001,
REPRESENTED BY ITS
SECRETARY TO GOVERNMNET
3. BRUHAT BANGALORE MAHANAGARA PALIKE
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J.C.ROAD, BANGALORE-560002
REPRESENTED BY ITS COMMISSIONER
4. THE BANGALORE DEVELOPMENT AUTHORITY
BELLARY ROAD, KUMARA PARK WEST
BANGALORE-560021
REPRESENTED BY ITS COMMISSIONER
5. THE COMMISSIONER OF POLICE FOR BANGALORE CITY
INFANTRY ROAD
BANGALORE-560001
6. THE PRINCIPAL SECRETARY TO GOVT.
PRIMARY AND SECONDARY EDUCATION
ROOM NO. 641, M.S. BUILDINGS,
GATE NO. 2, VIDHANA VEEDHI,
BANGALORE-560001
.... RESPONDENTS
(BY SRI.S.M. CHANDRASHEKAR., SR. ADVOCATE FOR
SRI. H.M. VISHWANATHA., ADVOCATE FOR R1;
SRI. MAHANTESH SHETTAR., AGA FOR R2, R5 & R8
SRI. B.V.KRISHNA, ADV., FOR SRI.H.N. PRASHANTH
CHANDRA., ADVOCATE FOR R3;
SRI. SACHIN B.S., ADVOCATE FOR R4;
V/O DATED 16.03.2022 R6, R7, R9 & R8 ARE DELETED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE AN APPROPRIATE
WRIT, ORDER OR DIRECTION TO CANCEL THE SANCTIONED PLAN
AND ALL PERMISSIONS GRANTED TO THE FIRST RESPONDENT TO
CONSTRUCT AND RUN A SCHOOL AT PLOT NOS. 3376/H AND 3367/I,
13TH MAIN, HAL II STAGE, BANGALORE-560008 (ANNEXURE- A, B
,O,P & Q) AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 16.04.2025, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
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CAV ORDER
1. The Petitioners originally had approached this Court
seeking for the following reliefs:
a. Issue a appropriate writ, order or direction to cancel
the sanctioned plan and all permissions granted to
the First Respondent to construct and run a School
at Plot No.3367/H and 3367/I, 13th Main, HAL II
stage, Bangalore-560008 (Annexure-A & B)
b. Direct the First Respondent to cease and desist from
anymore running any classes above primary School
at its facility now existing between 12-A Main and
13th Main, HAL II Stage, Bangalore-560008;
c. Grant such other or further relief or reliefs as this
Hon'ble Court may deem fit in the circumstances of
the case.
2. Subsequently, an amendment application having
been filed, a challenge to Annexures-O, P and Q was
allowed, vide order dated 14-6-2019. The Petitioner,
also gave up Prayer (b) above. This is, after
amendment, the prayers which are required to be
considered are as under:
a. Issue a appropriate writ, order or direction to cancel
the sanctioned plan and all permissions granted to
the First Respondent to construct and run a School
at Plot No.3367/H and 3367/I, 13th Main, HAL II
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stage, Bangalore-560008 (Annexure-A, B, O, P &
Q)
b. Grant such other or further relief or reliefs as this
Hon'ble Court may deem fit in the circumstances of
the case.
3. The Petitioners claim to be residents in and around
13th Main, HAL 2nd Stage, Bangalore- 560 008.
Petitioner No.1 claimed to be a doctor, who expired
during the pendency of the above proceedings;
Petitioner No.2 claimed to be a businessman who
also expired during the pendency of the above
proceedings; Petitioner No.3 is an accomplished
sportsman; Petitioner No.4 is a retired businessman;
Petitioner No.5 is a retired IAS officer. Petitioner
No.6 and 7 are retired IPS officers; Petitioner No.8 is
a retired Telecom Manager; Petitioner No.9 claimed
to be a housewife, who also expired during the
pendency of the above proceedings and Petitioner
No.10 is stated to be an Assistant Director of the
National Aerospace Laboratory.
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4. Respondent No.1 - National Education Trust (for
brevity, hereinafter referred to as 'NET'). NET was
allotted a Civic Amenity Site measuring about 16,000
square feet by Respondent No.4 - Bangalore
Development Authority (hereinafter referred to as
'BDA'), in December 1989.
5. Though there have been several allegations made in
the petition as regards such allotment of a civic
amenity site (for short, 'CA site'), there is no relief
which has been sought for in relation thereto, nor are
any arguments advanced in relation thereto. As such,
the allotment of the civic amenity site to NET is not
in question before this Court. The CA site having
been allotted to NET, NET put up construction of a
school building and started running a School.
6. The said premises not being sufficient, NET acquired
the residential site bearing No.2989/J on 12th 'A'
Main Road and subsequently Site No.2990/E on 12th
'A' Main Road, which also not being sufficient, NET
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acquired two more residential sites bearing
No.3367/H and 3367/I which are adjacent to each
other on 13th Main Road. NET demolished the
residential buildings therein, and construction activity
was to commence thereon to set up a nursery School
to house between 800 and 1000 students and staff
over four floors of the building to be constructed
thereon.
7. The Petitioners contend that the plan relating to the
said building was secured by the Petitioners from the
contractor. A perusal of which indicated that there
were no lifts, nor was there a provision for fire safety
equipment to be installed thereon. The NET, having
established a School in the CA site, which has been
successful, has been in the process of acquiring sites
in and around the said School for further
development and expansion, and has been making
lucrative proposals to all the owners of the sites
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thereon. Many of the residents have sold their sites
to NET.
8. NET, being affiliated to the Central Board of
Secondary Education (hereinafter referred to as
'CBSE'), follows a 10 + 2 education pattern and at
the time of filing of the Writ Petition had three
buildings. The Main building for Classes 4 to 10,
computer and science labs, library, Main office,
Principal and Vice-Principal's office, being a four-
storeyed building. The Montessori block is a five-
storeyed building which houses the Montessori and
kindergarten sections from Classes 1 to 3, art room,
theatre, workshop and auditorium. The Senior
Secondary Block houses Classes 11 and 12, a maths
lab, and an OHP room.
9. It is claimed that there are a large number of
students who come to the said School for their
education. Many of them are dropped by School
buses, private bus operators, auto rickshaws, private
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cars, etc., all of which park in the 12th and 13th Main
Road for the students to disembark in the morning
and to embark in the evening, thereby creating a lot
of noise pollution, traffic congestion, resulting in
spoiling the peace of mind of the residents of the
area. There are no vehicles which are permitted into
the School; there are no adequate arrangements
which have been made for parking in the School,
thus resulting in all the vehicles being parked in the
public streets, during which time, the residents
cannot get out of their house, cannot remove their
vehicles, since most of the third party vehicles are
parked in front of the gates of the residents.
10. The Road width of 13th Main Road, including from
footpath to footpath, is less than 40 feet. The 8th
Cross Road, which joins the 12th Main and 13th Main,
is also a very small Road. The 12th 'A' Main Road is
barely 30 feet wide, resulting in huge congestion on
all these Roads.
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11. There are more than 2,000 students and staff who
come to the said School. The Roads around the
School are not catered to or designed to, handle such
a large number of students and traffic. A large
number of private vehicles, auto rickshaws, etc.,
being parked on these Roads also causes a security
risk to the residents of the area. They, being senior
citizens, children and women, neither can they walk
on the said Road in the morning nor in the evening.
The Roads are being entirely taken up by the tempo
travellers, buses, mini buses, auto rickshaws,
transport vehicles, etc. The drivers who come and
park the vehicles are loitering around the area,
talking in loud voices, chewing paan masala,
smoking, speaking in vulgar language and answering
calls of nature in the open, there being no toilet
facilities which have been provided by NET. NET has
also now taken on large number of residential houses
where daycare and nursery School is being run,
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which has resulted in severe congestion all around
the place.
12. It is in that background that the proposed new
construction on Sites No.3367/H and 3367/I on 13th
Main Road is claimed would result in more nuisance
and it is challenging the said proposal that the
Petitioners had approached this Court, initially
challenging the plan granted in respect of Sites
No.3367/H, 3367/I and the construction drawing in
relation thereto at Annexures-A and B. Though the
resolution of the BDA dated 6-6-2019 recommending
change of land use from residential to education had
been produced at Annexure-O; letter dated 30-6-
2009 of the BDA to the Principal Secretary of the
Urban Development Department providing a
rationale for the resolution dated 6-6-2009 had been
produced at Annexure-P and the order of the Urban
Development Department dated 7-9-2009 allowing
the change of land use was produced at Annexure-Q.
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The same was not challenged when the writ petition
was filed. As indicated above, it is only by way of
amendment that those three orders were challenged.
13. Sri S. S. Naganand, learned Senior Counsel
appearing for the Petitioners, submitted that:
13.1. The entire area being residential area, though
the Petitioners have no objection as regards the
School being run in the C.A.site, NET now
buying out land and or plots which are
residential in nature, demolishing the houses
built thereon, putting up construction of
buildings to run Montessori, Nursery, etc. is not
permissible. Residential sites cannot be used for
running commercial businesses or Schools. The
authorities have not imposed sufficient
conditions on NET to provide suitable parking
for the vehicles, which has resulted in all the
vehicles being parked on the public Road,
causing severe inconvenience to the residents.
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13.2. The drivers of the vehicles have not been
provided with toilet facilities, resulting in the
said drivers attending to calls of nature in
public, which is not only a nuisance but also a
health hazard for the residents.
13.3. The school starts early in the morning and ends
in the evening; the said Roads are not capable
of being used by the residents, both in the
morning and early evening, thus depriving the
residents of usage of the said Roads. There is a
security risk on account of such huge number of
vehicles being parked in the said Roads. At the
time when the petition was filed, it had been
contended that the construction of large
buildings in a residential area would adversely
affect the residents. However, during the
pendency of the above matter, on the basis of
an undertaking given by Respondent No.1, that
Respondent No.1 will not claim any equities,
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the construction was permitted to go on and
has been subsequently completed.
13.4. His submission is that though the Civic amenity
sites could be allotted for educational purposes,
such purposes are for the benefit of the
residents, since the C.A. site has been carved
out of the layout of that particular area. NET,
having obtained the allotment of the CA site,
has put up construction of commercial
buildings, thus turning the allotment of a C.A.
site into a commercial venture, which has
reduced the quality of life of the Petitioners and
the persons residing in and around the said
area. NET has violated all Zoning Regulations,
has not put up construction in accordance with
the bylaws. There is a large-scale violation of
the construction which has been put up, which
is not in accordance with the sanctioned plan.
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13.5. In the Zoning Regulations for RMP 2015, which
is applicable to the present property, which
came into force in the year 2007, RMP 2015
envisages a balance in urban growth. The
Regulations do not permit the usage of the
property for the establishment and running of a
School. The Zoning Regulations, having
denoted and demarked the concerned property
to be residential in nature, no change in land
use could have been recommended by the BDA
and granted by the State Government.
13.6. It is only a residential building which can be put
up in the residential zone. A School building
cannot be put up in a residential zone as the
Main use. It can only be an ancillary use to a
limited extent. The width of the Road being less
than 30 feet, no such change of land use could
have been recommended by the BDA and
sanctioned by the State Government. Any
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usage of the land will have to be circumscribed
by the width of the Road and space standards,
which have not been adhered to by NET. The
setbacks which are required to be maintained
as per Zoning Regulations have not been so
maintained by NET. The Road width requiring
the use of the land for a purpose other than
residential, namely a commercial educational
facility, could not be so sanctioned without the
Road width being 18 metres. These aspects
have not been taken into consideration by the
authorities concerned.
13.7. The authorities concerned have acted at the
behest of NET. The said officers have derived
benefits by way of School admission for their
children or their near and dear ones. The action
taken by the BDA and its officers, and the
action taken by the BBMP and its officers, are
contrary to law. The Pollution Control Board has
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not taken any action as regards the pollution
which has been caused, both in terms of noise
as also in terms of air pollution. There is no
public interest which is served by the
establishment of a private School in a
residential area. Thus, the change in land use,
which has been recommended, even if it were
to be assumed, is to be in the public interest.
There is no such public interest, let alone a
compelling public interest. The amenity of a
School has become a bane in the area. Even if
an amenity were to be provided, it would have
to be in accordance with the applicable law. In
the present case, all the applicable laws have
been violated by the NET, requiring this Court
to take necessary action against the NET.
13.8. There is a violation of the RMP 2015, the
change in land use is granted in violation of
Section 14A of the Karnataka Town and
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Country Planning Act, (hereinafter referred to
as KTCP Act). An occupancy certificate has
been granted in violation of Section 310 of the
then-applicable Karnataka Municipal
Corporations Act to the subject property
inasmuch as the construction is not in
accordance with the building plan and there is a
large-scale violation of the building plan. There
is a violation of the fire safety requirements and
guidelines laid down by the Hon'ble Apex Court
in Avinash Mehrotra vs. Union of India1. He
expounds and expands the same by making the
following submissions:
13.9. NET had purchased two residential sites bearing
Nos.3367/H and 3367/I on 13th Main Road,
demolished the residential buildings and started
construction of a nursery School which is not
permitted under the RMP. He refers to Chapter
1
(2009) 6 SCC 398
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4 of the RMP more particularly Chapter 4.1
dealing with Permissible Land Use in Residential
Main Zone.
13.10. The land use zone categories are Residential
(R), Commercial (C), Industrial (I), Public and
Semi-Public (P & SP), Traffic and Transportation
(T&T), Public Utilities (PU), Park and Open
Space (P), Unclassified (UC), Agriculture Land
(AG). There is no land use zone classified as
education. Hence, the question of change of
land use being recommended from residential
to educational purposes is not contemplated
under the Zoning Regulations of RMP 2015.
13.11. Insofar as Residential Zone is concerned, he
submits that the Permissible Land Uses in a
Residential category are Plotted Residential
developments; Villas, semi-detached houses;
Apartments, Hostels, Dharmashala; Multi-
Dwelling Housing, Service Apartments and
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Group Housing. Education is not one of the
permissible land uses under the residential
category.
13.12. By referring to Chapter 4.1 of the RMP, he
submits that the Main Use for Residential Land
can only be that as enumerated under 'R' and
'T1' categories. 'R' category being as indicated
supra, 'T1' standing for Transportation Zone. It
is only Bus bays, Auto stand, Bus shelters,
Information kiosk, Metro stations, Parking
areas, multi-level car parking, Filling stations,
service stations which could be established.
Education is not a use coming under either 'R'
or T1.
13.13. Ancillary land use category provided is C2, I2
and U3. C2, I2 and U3 are reproduced here
under for easy reference:
C2 Commercial Uses
1 Eateries such as darshinis, tea stalls and take
aways
2 Gyms, Orphanages, old age homes clinics
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3 Retail Shops and Hardware Shops
4 Banks, ATMS, Insurance and Consulting and
business offices
5 Mutton and Poultry Stalls, cold storages
6 Job Typing/computer training institutes,
cyber café, internet browsing
7 Uses for small repair centers-electronic,
mechanical, automobile, etc.
8 Photo Studio
9 Nursing homes and poly
clinics/dispensaries/labs subject to minimum
300 sq.m plot size and NOC from pollution
control board and adequate parking facility is
provided
10 Fuel stations and pumps, LPG storage ( as
per Table 7)
11 Kalyana mantaps as per Table 7
12 All the uses of C1 are permitted.
I-2 Service Industries
1 R & D labs, Test Centres, IT, BT, BPO
activities
2 All uses included in the I-I category
U3 Urban amenities
1 All uses of U1 and U2 are permissible
2 Higher primary schools, Integrated
Residential Schools
3 Health centers and Hospital
4 Research institutions, subject to the size
5 Government buildings, auditoriums, cultural
complexes,
6 Educational Institutions, Colleges
13.14. He submits that it is under 'U3' that `higher
primary and integrated residential school,
educational institution, colleges are permitted.
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However, insofar as 'residential main' is
concerned, use of 'U3' is only as an ancillary
land use. Ancillary land use is allowable only up
to 20% of the total built-up area or 50 square
meters, whichever is higher. Thus, he submits
that it is only 20% of the building in a
residential area which could be put to ancillary
use of 'U3' as an educational facility. It is only if
the plot size is more than 240 square meters,
having a frontage of 10 meters or more, and
the abutting Road is more than 80 meters, then
the ancillary use can be used as a main use. 18
meters wide Road would mean 60 feet width
Road. What is available in front of the
concerned properties is between 30 to 40 feet.
It is not 18 meters, and therefore the ancillary
use cannot be made use of as a main use.
13.15. He further submits that the FAR is as per Table-
10. The Road width being 12 meters, the
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maximum FAR permissible is 1.75, and the
ground coverage is permitted up to 75%. His
submission is that the FAR which has been
utilized for subject property is more than 1.75.
Therefore, there is a violation of Table-10 of the
Zonal Regulations. His submission is also that
the setbacks are not in accordance with Table-8
or Table-9 and the said Table-8 and Table-9 are
reproduced hereunder for easy reference:
Table 8: Setbacks for building Height upto 11.5m
& Plot size of up to 4000 sq.m.
Width of Site Depth of site
Width/Depth Right Left Front Rear
of site(m) Side Side Side Side
Upto 6.0 1.0m 0 1.0m 0
Above 6.0 up 1.0 m on all sides
to 9.0
Above 9.0 m 8% 8% 12% 8%
Table 9: All around setbacks for buildings above
11.5 m height
Sl.No Height of the bldg.(m) Front, rear and
side set backs
(Min in m)
1 Above 11.5m up to 15m 5.00
2 Above 15m up to 18.0m 6.00
3 Above 18.0 up to 21.0m 7.00
4 Above 21 up to 24m 8.00
5 Above 24.0m up to 9.00
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27.0m
6 Above 27 up to 30.0 m 10.00
7 Above 30 up to 35.0 m 11.00
8 Above 35 up to 40.0 m 12.00
9 Above 40 up to 45.0 m 13.00
10 Above 45 up to 50.0 m 14.00
11 Above 50.0m 16.00
13.16. He therefore submits that this violation has also
not been taken into consideration by either the
BDA or the BBMP. He therefore submits that
there being a violation of the Zonal Regulations,
necessary action ought to have been taken.
13.17. Insofar as a change in land use, he submits that
there is no land use pattern recognised for
educational purposes. Any change of land use
could have been made as per the land use
patterns, which are recognised under Clause
1.2 of the Zonal Regulations, which is
reproduced hereunder for easy reference:
1.2 LAND USE ZONE CATEGORIES
A. The entire Local Planning Area is conceptually
organized into three main Rings for consideration of
Zoning and regulations.
• Areas coming within the Core Ring Road:
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Ring I
• Areas coming between the Core Ring road and
the Outer Ring Road: Ring II
• Areas coming beyond the Outer Ring Road and
within the LPA: Ring III
• The above rings are equivalent to Zone-A,
Zone-B and Zone-C for TDR purposes.
B. Classification of Land use zones:
RESIDENTIAL (R)
COMMERCIAL (C)
INDUSTRIAL (I)
PUBLIC AND SEMI PUBLIC (P&SP)
TRAFFIC AND TRANSPORTATION (T &
T)
PUBLIC UTILITIES (PU)
PARK AND OPEN SPACE (P)
UNCLASSIFEID (UC)
AGRICULTURE LAND (AG)
13.18. Any change of land use would have to be made
in terms of the classification above. There being
no classification provided for education
purposes, no such change could be made.
13.19. 'U3' category coming under the public and
semi-public category of Table-6, the change of
land use from residential could have been made
only to public and semi-public and thereafter,
under 'U3', so as to enable the setting of an
educational institution. For an educational
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institution to be set up, the classification of the
land has to be public and semi-public. Without
doing so, the recommendation made by the
BDA for a change of land use from residential
main to educational purposes is not
permissible. Even as regards change of land
use, he submits that the change of land use
could only be in terms of Clause 4.1 inasmuch
as when Clause 4.1.2 requires the plot size to
be more than 240 square meters with a
frontage of 10 meters and abutting a Road
which is more than 18 meters in width unless
there was an 18 meter width road available, the
question of change of land use from residential
to educational purposes is not permissible. This,
he submits that on account of the residential
area to be maintained in a sacrosanct manner
and a residential area not being permitted to be
used for purposes other than residences,
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change of land use, he submits, can only be
made in exceptional circumstances and not as a
matter of course as done in the present matter
where the entire action on part of the
Respondents was completed within a short
period of time.
13.20. By referring to the application at Annexure-J,
he submits that NET has purposely not given
the width of the Road and has misled the
Respondents by indicating that the said
property has access from a 100-foot and 80-
foot Road. When, in fact, the Road abutting the
property is the 13th Main Road, which connects
the 100 feet and 80 feet roads. The property
being situated on 13th Main Road, which is
between 30 to 40 feet, the information provided
at Row No.6 of Annexure-J is a false statement.
13.21. Insofar as the information at Row No.10 is
concerned, he submits that the said information
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is also completely wrong, and a self-serving
statement, where it is stated that the site is
suitable for a School, as there is a large
population in Indiranagar, and it is difficult to
get admission for children in the existing
Schools.
13.22. The further statement that "also the area along
this Road connecting 100 feet Road to 80 feet
Road has a number of non-residential uses and
will not affect residential use. Also the Schools
are permissible in residential zones" is a
completely misconceived statement. Schools
are permissible only up to 20% of the
constructed area, not the entire building.
13.23. This application is based on completely false
statements made by NET, which have not been
properly considered by the authorities. The
authorities, having come to a conclusion that
both the properties are two different properties,
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had also called upon NET for amalgamation,
vide its letter dated 20-10-2008, as regards
which the Respondent No.1 responded by
stating that BBMP has issued a single katha,
and therefore it is a single property and that
may be considered by the BDA in order to save
time vide its reply letter dated 22-10-2008
which is also surprising.
13.24. It is this reply which was taken into
consideration, and the BBMP's single katha was
accepted. NET was directed to make payment
of betterment charges on certain conditions,
which were imposed vide order dated 18-2-
2009.
13.25. The BDA, in its resolution dated 6.6.2009,
though took note of the fact that the site in
question has a Road which is less than 18
meters as per rules and regulations, the
proposal was accepted and the
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recommendation was made to the Government.
He submits that the reason for such
acceptance, when it is not in accordance with
the rules, has not been provided in the said
note and order. The authorities have blindly
recommended the same.
13.26. The Member, Town Planning, vide its letter
dated 30-6-2009 stating that spot inspection
was conducted, the road measures 40 feet,
there being residential development in the
surrounding, ancillary land use being C2, I2 and
U3, if the site is measuring more than 240
square feet, frontage of 10 meters or more,
and the road adjacent to the site is more than
18 meters, ancillary land use can be used as
Main land use.
13.27. In the present case, the measurement of the
site is 1003.34 square metres (10,800 square
feet), frontage is 36.56 metres, and the Road
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width is 12 metres. Thereafter, the proposal
was submitted in the special meeting of the
authority held on 6.6.2009. After discussion
that the Road adjacent to the site in question is
less than 18 metres, the proposal for change of
land use of the total area was accepted and
decided to recommend to the Government.
13.28. It is on the basis of the said resolution/order
and the letter of the Member, Town Planning,
BDA, that the BDA called upon NET to make
payment of certain amounts as betterment
charges and inspection charges and a
Government Order had been passed on 7-9-
2009, in furtherance of which, a
commencement letter came to be issued by the
Commissioner of the BDA on 28-10-2009,
permitting the change of land use from
residential use to educational, (nursery and
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primary School) with various conditions as
under:
1. To get approved building plan from the
concerned authority for construction of the
proposed school building.
2. To provide necessary parking place as per
rules, for the proposed school building, in the
applicant's area only.
3. To get no objection certificate with regard to
the proposal as per the notification No.
S.O.No.810 (E), dated 27.07.2004, of the
Karnataka Forest and Environment Department,
Indian Government.
4. To follow the terms of the letter of Karnataka
Pollution Control Board, dated 9/17.08.2004 and
to make arrangements for rain water harvesting.
5. To know that, in case any wrong information;
documents are given in respect of the proposal,
the applicant will be held responsible and the
conversion order will be cancelled.
6. To follow the other conditions imposed by
Bangalore Development authority/concerned
authority.
(Draft has been approved
By the Commissioner)
Sd/-
For the Commissioner,
BDA, Bangalore.
13.29. He submits that, firstly, there is no category of
education for the change of land use. Secondly,
there is no subcategory of nursery and primary
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school under education for the change of land
use. He further submits that all the parking was
to be made available within the school building,
which has not been done. The public roads are
being used for parking. No objection from the
Environment Department has not been
obtained by NET. There is no consent which has
been obtained from the Pollution Control Board.
The entire action taken by the authorities,
being misled, is not proper. The authorities,
having identified that the abutting Road is less
than 18 meters, and this having been flagged
by all of them, ought to have rejected the
application for change of land use. The same
not having been done would require this Court's
intervention by allowing the Writ Petition.
13.30. In this regard, he relies upon the decision of the
Hon'ble Apex Court in the case of
S.N.Chandrashekhar and another vs. State
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of Karnataka2, more particularly Paras 20, 21,
27, 28, 31, 32, 34, 39 and 40 thereof, which
are reproduced hereunder for easy reference:
20. Section 14(1), as it then stood, of the Act provided that
every change in land use and every development in the
area covered by the plan subject to Section 14-A shall
conform to the provisions of the Act. Section 14(2),
however, provides that no such change in land use or
development shall be made except with the written
permission of the Planning Authority which shall be
contained in a commencement certificate in the form
prescribed. Section 15 provides for the procedure required
to be followed where the Planning Authority is required to
pass an order in terms of Section 14 of the Act. So far as
changes of land use or development from the Outline
Development Plan is concerned, the same would be subject
to the procedure laid down in Section 14-A of the Act.
Outline Development Plan being a one-time plan, evidently
sub-section (2) of Section 14 had no application. It is only
for that purpose Section 14-A had to be introduced. Section
14-A categorically states that change in the land use or
development from the Outline Development Plan must be
necessitated by: (i) topographical or cartographical or other
errors and omissions; (ii) due to failure to fully indicate the
details in the plan or changes arising out of the
implementation of the proposals in Outline Development
Plan; and (iii) circumstances prevailing at any particular
time by the enforcement of the plan.
21. The proviso appended to Section 14-A enumerates
that: (i) such changes should be ones in public interest; (ii)
the changes proposed should not contravene any of the
provisions of the Act or any other law governing planning,
development or use of land within the local planning area;
and (iii) the proposal for all such changes are published in
one or more daily newspapers, having circulation in the
2
(2006) 3 SCC 208
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area, inviting objections from the public. Sub-sections (2)
and (3) of Section 14 of the Act are applicable mutatis
mutandis to the change in land use or development from
the Outline Development Plan. Sub-section (1) of Section
15 provides that on receipt of the application for permission
under Section 14, the Planning Authority shall cause an
enquiry to be made whereupon it may either grant or
refuse a commencement certificate. Sub-section (2) of
Section 15 raises a legal fiction as regards failure on the
part of the Planning Authority to issue such certificate, as
by reason thereof such certificate would be deemed to have
been granted. The proviso appended thereto, however,
provides that such change in land use or development for
which such permission was sought for must be in
conformity with the Outline Development Plan and the
regulation finally approved under sub-section (3) of Section
13. The said proviso applies to both sub-sections (1) and
(2). By reason of the said proviso, it is, therefore, explicitly
clear that all such changes in the land use must conform
both with the Outline Development Plan and the regulation
finally approved under sub-section (3) of Section 13, which
would in turn mean the changes which are permissible for
which no prior permission is required and the changes
which are permissible upon obtaining the requisite sanction
therefor.
27. The Planning Authority has no power to permit change
in the land use from the Outline Development Plan and the
Regulations. Sub-section (1) of Section 14, as it then
existed, categorically stated, that every change in the land
use, inter alia, must conform to the Outline Development
Plan and the Regulations which would indisputably mean
that it must conform to the Zoning Regulations.
28. The provisions of the Act are to be read with the
Regulations, and so read, the construction of Sections 14
and 15 will lead to only one conclusion, namely, such
changes in the land use must be within the Outline
Development Plan and the Zoning Regulations. If running of
a hotel or a restaurant was not permissible both under
clauses (a) and (b) of the Zoning Regulations in a
residential area, such change in the land use could not
have been permitted under Section 14 read with Section 15
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of the Act. It is precisely for that reason, Section 14-A was
introduced.
31. Respondent 6, the Development Authority and the
State of Karnataka, therefore, understood in no uncertain
terms that the change in the land use from residential
purpose to commercial purpose in respect of 2275 sq ft in
Jayanagar must conform to the provisions of Section 14-A
of the Act and not Sections 14 and 15 thereof. A bare
perusal of the said order of sanction would demonstrate
that the same did not disclose as to for what purpose and
on what ground the same had been sanctioned. None of the
ingredients contained in Section 14-A of the Act had been
referred to. We have not been shown as to why BDA
recommended and sought the government approval for
conversion of land use of 2275 sq ft in Plot No. 585 from
residential to commercial (restaurant complex). Admittedly,
such a change in the land use was not occasioned owing to
topographical, cartographic or other errors or omissions; or
due to failure to fully indicate the details in the plan or
changes arising out of the implementation of the proposal
in Outline Development Plan. The only submission made
before us is that action on the part of BDA and the State in
granting sanction would come within the purview of the
circumstances prevailing at any particular time. What was
the circumstance necessitating such change of user has not
been spelt out in the sanction order. Furthermore, none of
the other requirements of law stated in the proviso
appended thereto had been complied with. We do not know
as to what was the public interest involved in directing such
change of land use.
32. It is interesting to note that the Commissioner, BDA,
while forwarding his recommendations to the Principal
Secretary of Urban Development Department in terms of
his letter dated 29-6-1999 mentioned that on 1-6-1999 the
Commissioner and the Town Planning Member upon
examination of the surrounding areas noticed that the site
is located in a prominent place and opined that if the site is
converted to commercial purposes, the volume of traffic
may increase causing parking problem and obstructing the
traffic and on the said premise stated that the application
may have to be rejected. It is nowhere stated in the said
letter as to how the Planning Authority intended to tackle
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the said problem. Para 4 of the said letter did not reveal as
to how the mind of the Authority was applied having regard
to its earlier views that conversion of the said plot to
commercial use may give rise to traffic problem. It is,
therefore, apparent that the objections which were raised
and the basic issues which were required to be dealt with
by the said Authority did not receive serious consideration.
34. The Authority, therefore, posed unto itself a wrong
question. What, therefore, was necessary to be considered
by BDA was whether the ingredients contained in Section
14-A of the Act were fulfilled and whether the requirements
of the proviso appended thereto are satisfied. If the same
had not been satisfied, the requirements of the law must be
held to have not been satisfied. If there had been no proper
application of mind as regards the requirements of law, the
State and the Planning Authority must be held to have
misdirected themselves in law which would vitiate the
impugned judgment.
39. It may furthermore be true that Respondent 6 was
accorded permission as far back as on 10-12-1999,
whereas the writ petition was filed on 15-7-2002. However,
we have also noticed that in the meanwhile, Respondent 6
committed some other violations. Had the violation in the
matter of change in user from residential to commercial
been a minor one, probably, this Court might not have
interfered but the State of Karnataka and BDA having
committed serious violation of the Zoning Regulations as
also Section 14-A of the Act, we are of the opinion that the
same cannot be sustained.
40. It may further be true that Respondent 6 had invested
a heavy amount but his investment in the matter of
construction of a building would remain as it is. Respondent
6 can utilise the premises held by him within the purview of
the permissible user as contained in the Zoning Regulations
referred to hereinbefore. If he intends to use the same for
such a purpose for which the permission of BDA is
necessary, there is no doubt in our mind, that BDA will
consider his request sympathetically.
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13.31. His submission, by relying on SN
Chandrashekhar's case, is that any change in
land use has to be in the public interest. The
change of land use should not contravene any
of the provisions of the Act or any other law
governing the planning, development or use of
the land. This being the basic requirements in
the present case, all of them being violated, the
Respondents could not have
sanctioned/recommended the change of land
use.
13.32. He relies on the judgment of the Hon'ble Apex
Court in the case of Prakash Chandra vs. The
Commissioner, Bruhat Bangalore
Mahanagara Palike, Bangalore and others3
more particularly Paras 29, 36, 37, 38, 41, 42,
3
2014 SCC Online Karnataka 12593
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43, 44, 45, 46, 47 thereof which are
reproduced hereunder for easy reference:
29. Petitioner, being a neighbour having suffered the wrath
of unauthorised construction erected by his neighbour, the
4th respondent, a nuisance, justifiably informed
respondents 1 to 3 over such illegal construction, although
respondents 1 to 3 are statutorily invested with the
jurisdiction to prevent construction of a building contrary to
the building plan sanction, the building bye-laws, Karnataka
Town and Country Planning Act, 1961 and the KMC Act.
Thus respondents 1 to 3 permitted the 4th respondent to
put up construction, hence guilty of non-performance of
duties statutorily imposed upon them under the KMC Act.
36. In the light of the observations of the Apex Court in
Dipak Kumar Mukherjee v. Kolkata Municipal Corporation
[AIR 2013 SC 927 : (2013) 5 SCC 336 : 2012 AIR SCW
5463] , Petitioner being the immediate neighbour of the 4th
respondent and a 'rate payer', has a legal right to demand
compliance by respondents 1 to 3 of their statutory duties.
The Apex Court extracting its earlier decision in K. Ramadas
Shenoy v. Chief Officers, Town Municipal Council, Udipi
[AIR 1974 SC 2177 : (1974) 2 SCC 506] observed thus:
"The Court enforces the performance of statutory duty by
public bodies as obligation to rate payers who have a legal
right to demand compliance by a local authority with its
duty to observe statutory rights alone. The Scheme here is
for the benefit of the public. There is special interest in the
performance of the duty. All the residents in the area have
their personal interest in the performance of the duty. The
special and substantial interest of the residents in the area
is injured by the illegal construction".
37. The provisions of the KMC Act invests jurisdiction in
respondents 1 to 3 to perform duties to ensure planned
development of the City of Bangalore, more appropriately
in the construction of buildings to adhere to the laws in
force. The Apex Court in The Municipal Corporation for
Greater Bombay v. The Advance Builders (India) Private
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Limited [AIR 1972 SC 793 : (1971) 3 SCC 381] , at
paragraph 12 observed thus:
"12. It is clear, therefore, on a consideration of the
provisions of the Bombay Town Planning Act, 1954 and
especially the sections of that Act referred to above, that
the Corporation is exclusively entrusted with the duty of
framing and implementation of the Planning Scheme arid,
to that end, has been invested with almost plenary powers.
Since development and planning is primarily for the benefit
of the public, the, Corporation is under an obligation to
perform its duty in accordance with the provisions of the
Act. It has, been long held that, where a statute imposes a
duty the performance or non-performance of which is not a
matter of discretion, a mandamus may be granted ordering
that to be done which the statute requires to be done (See
Halsbury's Laws of England, Third Edition, Volume II, page
90)".
38. A Division Bench of this Court in Smt. Shanta v.
Commissioner, Corporation of the City of Bangalore [ILR
1986 KAR 1037 (DB) : AIR 1987 Kant. 48 (DB)] , observed
thus:
"7. It must be emphasised that the Development Plan
prepared under the Planning Act, 1961 would be for the
benefit of the public. The Corporation authorities who are
the trustees of the public interest, must strictly observe the
norms and conditions of the Development Plan. The
authorities owe a duty to rate payers to; protect the
interest of the public while administering the planning law.
They cannot afford to ignore the social responsibilities
underlining the planning law. They shall not favour an
individual at the cost of the general public and to the
detriment of their interest. They shall never issue licence to
construct buildings contrary to the Zoning Regulations. If
they give licence to construct a building contrary to the
permitted land use or contrary to the prevailing zoning
regulations, they should be held responsible for their
lapses. Indeed, they are accountable to the public when
they act against the interest of the public. In such cases,
when the ratepayers approach the Court complaining about
the misuse or abuse of powers by public authorities, the
Court cannot drive them away on technical grounds. It
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would be the duty of Courts to enforce the rule of law
enacted for the benefit of the public. It would be the duty
of Courts to protect the ratepayers interests preserved
under the planning law.
.............
10. In the light of these principles it would be futile to
contend that the appellants should be denied relief under
Article 226 of the Constitution. Respondent 2 has no right
to construct the building contrary to the planning law. Nor
the Planning Authority could permit him to construct a
building to the prejudice of the public and impairing their
civic rights”.
41. Having regard to the large number of illegal and
unauthorised construction in Cuttak as observed in Friends
Colony Development Committee v. State of Orissa [AIR
2005 SC 1 : 2004 AIR SCW 5923 : (2004) 8 SCC 733] ,
extracted the relevant portion of the opinion which reads
thus:
“5. In Friends Colony Development Committee v. State of
Orissa, (2004) 8 SCC 733 : AIR 2005 SC 1, this Court
noted that large number of illegal and unauthorised
constructions were being raised in the city of Cu track and
made the following significant observations:
“…….. Builders violate with impunity the sanctioned building
plans and indulge in deviations much to the prejudice of the
planned development of the city and at the peril of the
occupants of the premises constructed or of the inhabitants
of the city at large. Serious threat is posed to ecology and
environment and, at the same time, the infrastructure
consisting of water supply, sewerage and traffic movement
facilities suffer unbearable burden and are often thrown out
of gear. Unwary purchasers in search of roof over their
heads and purchasing flats/apartments from builders, find
themselves having fallen prey and become victims to the
design of unscrupulous builders. The builder conveniently
walks away having pocketed the money leaving behind the
unfortunate occupants to face the music in the event of
unauthorised constructions being detected or exposed and
threatened with demolition. Though the local authorities
have the staff consisting of Engineers and Inspectors whose
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duty is to keep a watch on building activities and to
promptly stop the illegal constructions or deviations coming
up, they often fail in discharging their duty. Either they
don’t act or do not act promptly or do connive at such
activities apparently for illegitimate considerations. If such
activities are to stop, some stringent actions are required to
be taken by ruthlessly demolishing the illegal constructions
and non-compoundable deviations. The unwary purchasers
who shall be the sufferers must be adequately
compensated by the builder. The arms of the law must
stretch to catch hold of such unscrupulous builders…………..
In all developed and developing countries there is emphasis
on planned development of cities which is sought to be
achieved by zoning, planning and regulating building
construction activity. Such planning, though highly
complex, is a matter based on scientific research, study
and experience leading to rationalisation of laws by way of
legislative enactments and rides and regulations framed
thereunder. Zoning and planning do result in hardship to
individual property owners as their freedom to use their
property in the way they like, is subjected to regulation and
control. The private owners are to some extent prevented
from making the most profitable use of their property. But
for this reason alone the controlling regulations cannot be
termed as arbitrary or unreasonable the private interest
stands subordinated to the public good. It can be stated in
a way that power to plan development of city and to
regulate the building activity therein flows from the police
power of the State. The exercise of such governmental
power is justified on account of it being reasonably
necessary for the public health, safety, morals or general
welfare and ecological considerations; though an
unnecessary or unreasonable inter-meddling with the
private ownership of the property may not be justified.
The municipal laws regulating the building construction
activity may provide for regulations as to floor area, the
number of floors, the extent of height rise and the nature
of use to which a built-up property may be subjected in any
particular area. The individuals as property owners have to
pay some price for securing peace, good order, dignity,
protection and comfort and safety of the community. Not
only filth, stench and unhealthy places have to be
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eliminated, but the layout helps in achieving family values,
youth Values, seclusion and clean air to make the locality a
better place to Jive. Building regulations also help in
reduction or elimination of fire hazards, the avoidance of
traffic dangers and the lessening of prevention of traffic
congestion in the streets and roads. Zoning and building
regulations are also legitimised from the point of view of
the control of community development, the prevention of
overcrowding of land, the furnishing of recreational facilities
dike parks and playgrounds and the availability of adequate
water, sewerage and other governmental or utility services.
Structural and lot area regulations authorise the municipal
authorities to regulate and restrict the Height, number of
storeys and other structures; the percentage of a plot that
may, be occupied; the size of yards, Courts and open
spaces; the density of population; and the location and use
of buildings and structures. All these have in our view and
do achieve the larger purpose of the public health, safety or
general welfare. So are front setback provisions, average
alignments and structural alterations. Any violation of
zoning and regulation laws takes the toll in terms of public
welfare and convenience being sacrificed apart from the
risk, inconvenience and hardship which is posed to the
occupants of the building”.
(emphasis supplied)
42. In the very same judgment, the Apex Court further
extracted its earlier opinion in Shanti Sports Club v. Union
of India [AIR 2010 SC 433 : (2009) 15 SCC 705] , which
reads thus:
“6. In Shanti Sports Club v. Union of India, (2009) 15 SCC
705 : AIR 2010 SC 433, this Court approved the order of
the Delhi High Court which had declared the construction of
sports complex by the appellant on the land acquired for
planned development of Delhi to be illegal and observed:
“In the last four decades, almost all cities, big or small,
have seen unplanned growth. In the 21st century, the
menace of illegal and unauthorised constructions and
encroachments has acquired monstrous proportions and
everyone has been paying heavy price for the same.
Economically affluent people and those having support of
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the political and executive apparatus of the State have
constructed buildings, commercial complexes, multiplexes,
malls, etc., in blatant violation of the municipal and town
planning laws, master plans, zonal development plans and
even the sanctioned building plans. In most of the cases of
illegal or unauthorised constructions, the officers of the
municipal and other regulatory bodies turn blind eye either
due to the influence of higher functionaries of the State or
other extraneous reasons. Those who construct buildings in
violation of the relevant statutory provisions, master plan,
etc. and those who directly or indirectly abet such
violations are totally unmindful of the grave consequences
of their actions and/or omissions on the present as well as
future generations of the country which will be forced to
live in unplanned cities and urban areas. The people
belonging to this class do not realise that the constructions
made in violation of the relevant laws, master plan or zonal
development plan or sanctioned building plan or the
building is used for a purpose other than the one specified
in the relevant statute or the master plan, etc., such
constructions put unbearable burden on the public
facilities/amenities like water, electricity, sewerage, etc.
apart from creating chaos on the roads. The pollution
caused due to traffic congestion affects the health of the
road users. The pedestrians and people belonging to
weaker sections of the society, who cannot afford the
luxury of air-conditioned cars, are the worst victims of
pollution. They suffer from skin diseases of different types,
asthma, allergies and even more dreaded diseases like
cancer. It can only be a matter of imagination how much
the Government has to spend on the treatment of such
persons and also for controlling pollution and adverse
impact on the environment due to traffic congestion on the
roads and chaotic conditions created due to illegal and
unauthorised constructions. This Court has, from time to
time, taken cognizance of buildings constructed in violation
of municipal and other laws and emphasised that no
compromise should be made with the town planning
scheme and no relief should be given to the violator of the
Town Planning Scheme, etc., on the ground that he has
spent substantial amount on construction of the buildings,
etc. Unfortunately, despite repeated judgments by this
Court and the High Courts, the builders and other affluent
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people engaged in the construction activities, who have,
over the years shown scant respect for regulatory
mechanism envisaged in the municipal and other similar
laws, as also the master plans, zonal development plans,
sanctioned plans, etc., have receivedencouragement and support from the State apparatus. As
and when the Courts have passed orders or the officers of
local and other bodies have taken action for ensuring
rigorous compliance with laws relating to planned
development of the cities and urban areas and issued
directions for demolition of the illegal/unauthorised
constructions those in power have come forward to protect
the wrongdoers either by issuing administrative orders or
enacting laws for regularisation of illegal and unauthorised
constructions in the name of compassion and hardship.
Such actions have done irreparable harm to the concept of
planned development of the cities and urban areas. It is
high time that the executive and political apparatus of the
State take serious view of the menace of illegal and
unauthorised constructions and stop their support to the
lobbies of affluent class of builders and others, else even
the rural areas of the country will soon witness similar
chaotic conditions”.
43. Yet again, the Apex Court extracted its earlier
observations in Priyanka Estates International Private
Limited v. State of Assam [AIR 2010 SC 1030 : (2010) 2
SCC 27 : 2010 AIR SCW 1374] , in the matter of refusal to
order regularisation of illegal construction raised by the
appellant therein, which runs thus:
“7. In Priyanka Estates International Private Limited v.
State of Assam, (2010) 2 SCC 27 : AIR 2010 SC 1030, this
Court refused to order regularisation of the illegal
construction raised by the appellant and observed:
“It is a matter of common knowledge that illegal and
unauthorised constructions beyond the sanctioned plans
are on rise, may be due to paucity of land in big cities.
Such activities are required to be dealt with by firm hands
otherwise builders/colonisers would continue to build or
construct beyond the sanctioned and approved plans and
would still go scot-free. Ultimately, it is the flat owners who
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fall prey to such activities as the ultimate desire of a
common man is to have a shelter of his own. Such unlawful
constructions are definitely against the public interest and
hazardous to the safety of occupiers and residents of multi
storeyed buildings. To some extent both parties can be said
to be equally responsible for this.. Still the greater loss
would be of those flat owners whose flats are to be
demolished as compared to the builder”..
44. In the light of the aforesaid observations, the Apex
Court in Dipak Kumar Mukhcrjee’s case held thus:
“8. What needs to be emphasised is that illegal and
unauthorised constructions of buildings and other structure
not only violate the municipal laws and the concept of
planned development of the particular area but also affect
various fundamental and constitutional rights of other
persons. The common man feels cheated when he finds
that those making illegal and unauthorised constructions
are supported by the people entrusted with the duty of
preparing and executing master plan/development
plan/zonal plan. The reports of demolition of hutments and
jhuggi jhopris belonging to poor and disadvantaged section
of the society frequently appear in the print media but one
seldom gets to read about demolition of
illegally/unauthorisedly constructed multi-storeyed
structure raised by economically affluent people. The failure
of the State apparatus to take prompt action to demolish
such illegal constructions has convinced the citizens that
planning laws are enforced only against poor and all
compromises are made by the State machinery when it is
required to deal with those who have money power or
unholy nexus with the power corridors”.
45. A Division Bench in Leena Fernandes v. Planning
Authority, Mangalore [1992 (3) Kar. L.J. 355 (DB) : ILR
1992 KAR 3068 (DB)] , while dealing with protection of
self-interest and treated it as protection of special right and
special interest of citizens, particularly, in matters of
complaints regarding unauthorised construction of buildings
observed thus:
“If eternal vigilance is the price for liberty, equally it is so,
to attain orderliness and planned developments. We are of
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the view that in the absence of a clear and manifestly
vicious attitude on the part of the Petitioners being
established, as the motivation for filing the writ petitions,
Court should not non-suit them, as otherwise, the much
needed public action in this field of public litigation may get
discouraged. A mere suspicion that the action initiated by
the Petitioners may be due to some ulterior motive is not
sufficient to throw out their action. There is every need to
prevent the public bodies from overstepping their
limitations; there is also a need to see that the inaction on
the part of the Governmental Authority and the local bodies
does not contribute to the contraventions of the statutory
schemes like ODP, which are evolved for the public good.
The valuable right of the tax payers and the special interest
of the residents should normally be accepted as sufficient
to recognise their locus standi to invoke the jurisdiction, to
safeguard this right or the special interest”.
46. The Apex Court in M.I. Builders Private Limited v.
Radhey Shyam Sahu [AIR 1999 SC 2468 : (1999) 6 SCC
464] , observed thus:
“73. The High Court has directed dismantling of the whole
project and for restoration of the park to its original
condition. This Court in numerous decisions has held that
no consideration should be shown to the builder or any
other person where construction is unauthorised. This dicta
is now almost bordering rule of law. Stress was laid by the
appellant and the prospective allottees of the shops to
exercise judicial discretion in moulding the relief. Such
discretion cannot be exercised which encourages illegality
or perpetuates an illegality. Unauthorised construction, if it
is illegal and cannot be compounded, has to be demolished.
There is no way out. Judicial discretion cannot be guided by
expediency. Courts are not free from statutory fetters.
Justice is to be rendered in accordance with law. Judges are
not entitled to exercise discretion wearing robes of judicial
discretion and pass orders based solely on their personal
predilections and peculiar dispositions. Judicial discretion
wherever it is required to be exercised has to be in
accordance with law and set legal principles. As will be seen
in moulding the relief in the present case and allowing one
of the blocks meant for parking to stand we have been
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guided by the obligatory duties of the Mahapalika to
construct and maintain parking lots”.
47. In M.C. Mehta v. Union of India [AIR 2006 SC 1325 :
(2006) 3 SCC 399 : 2006 AIR SCW 979] , observed thus:
“61. Despite passing of the laws and repeated orders of the
High Court and this Court, the enforcement of the laws and
the implementation of the orders are utterly lacking. If the
laws are not enforced and the orders of the Courts to
enforce and implement the laws are ignored, the result can
only be total lawlessness. It is, therefore/necessary to also
identify and take appropriate action against officers
responsible for this state of affairs. Such blatant misuse of
properties at large scale cannot take place without
connivance of the officers concerned It is also a source of
corruption. Therefore, action is also necessary to check
corruption, nepotism and total apathy towards the rights of
the citizens. Those who own the properties that are
misused have also implied responsibility towards the
hardship, inconvenience, suffering caused to the residents
of the locality and injuries to third parties. It is, therefore,
not only the question of stopping the misuser but also
making the owners at default accountable for the injuries
caused to others. Similar would also be the accountability
of errant officers as well since, prima facie, such large scale
misuser, in violation of laws, cannot take place without the
active connivance of the officers. It would be for the
officers to show what effective steps were taken to stop the
misuser”.
13.33. By relying on Prakash Chandra’s case, he
submits that the neighbours like the Petitioners
have a locus to challenge any violation of the
Building Bylaws and or the KTCP Act. The duty
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cast upon the BDA and the State Government is
to comply with the applicable laws. In the
present case, they have not complied with the
same, resulting in a wrong order for change of
land use, which is required to be set aside by
this Court.
13.34. He relies on the decision of the Hon’ble Apex
Court in the case of Dilip James vs. Bruhat
Bengaluru Mahanagara Palike4, more
particularly Paras 1, 2 and 4 thereof, which are
reproduced hereunder for easy reference:
1. This petition is filed by the Petitioners being aggrieved
by the inaction on the Part of the 1st and 2nd respondent
authorities in not taking any steps against the illegal setting
up of commercial activity by the 3rd respondent at the
premises bearing No. 347, Outer Circle, Whitefield,
Bengaluru. The said premises is specifically within the
residential Main Zone in the Comprehensive Development
Plan and can be used only for residential use. The 3rd
respondent is a company which is setting up a franchise of
a play school/preschool that is for children up to the UKG
class, which is not permitted under the residential zone
activities.
2. Despite this, in complete violation of the same, the 3rd
and 4th respondents are making arrangements to open the
said school where the road width is only 24 feet and the
respondent Nos. 1 & 2, BBMP has not taken any steps to4
2016 SCC Online Karnataka 5981
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prevent such commercial activity from being commenced.
Such action would not only be in violation of the law but
also a risk to the health and safety of the Petitioners who
are the neighbours and they are directly affected and it is a
violation of their right to life, clean air and clean
environment envisaged under Article 21 of the Constitution.
Hence, this petition.
4. Further he submitted that the Petitioners are presently
concerned with the proposed unauthorized and illegal use
of an adjoining residential property for the purpose of a
pre-school by the respondent No. 3. This property has been
taken on lease by the respondent No. 3/company that has
since February 2016, started renovating the same and
making modifications to the building which was an old
residential villa. The respondent No. 3 has been converting
the same to use it as a play school and pre-primary school
for children up to the age of 5 and half years. The signage
on the property was displayed and announced the opening
of an international school called “Safari Kid”. This is a
complete violation of the zoning regulations which do not
permit a creche and play school in the residential main
zone.
13.35. By referring to Dilip James‘s case, he submits
that this Court, taking into consideration that
the Road width was only 24 feet and a play
school/Pre-school could not be set up, the same
being illegal and in violation of the Zoning
Regulation, had directed the Corporation to
pass appropriate orders. He submits that the
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said order of the Coordinate Bench of this Court
could be equally applicable to the present
matter.
13.36. He submits that there is a violation of Section
310 of the KMC Act, inasmuch as there is no
occupancy certificate which has been issued,
and without such occupancy certificate, the said
building has been occupied and in this regard,
he relies upon the decision of this Court in the
case of Bangalore Housing Development
and Investments vs. Bruhat Bangalore
Mahanagara Palike & others5, more
particularly Paras 10, 11, 12 and 13 thereof,
which are reproduced hereunder for easy
reference:
10. If the building is partly constructed, then an Occupancy
Certificate in terms of Bye-Law 5.6 cannot be granted.
However, a POC can be granted to a part of the building, in
terms of Bye-Law-5.7, which reads as follows.
“5.7 Occupancy or letting of the new buildings.- No person
shall occupy or allow any other person to occupy any new
building or part of a new building for any purpose5
ILR 2014 KAR 2863
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whatsoever until occupancy certificate to such buildings or
part thereof has been granted by an officer authorized to
give such certificate, if in his opinion in every respect the
building is completed according to the sanctioned plans and
fit for the use for which it is erected. The Authority may in
exceptional cases (after recording reasons) allow partial
occupancy for different floors of a building.”
11. Bye-law-5.7 postulates various requirements. The first
is that no person shall occupy or let-in any other person to
the building or part thereof, until an Occupancy Certificate
to such a building or part thereof has been granted.
Therefore, until and unless an Occupancy Certificate is
granted, no building or part of it, can be occupied.
Secondly, the grant of Occupancy Certificate shall be only
after the opinion of the officer is to the effect that in every
respect, the building or part thereof is complete, according
to the plan sanction and that it is fit for use for which it was
erected.
12. (a) The first part of Bye-law 5.7 clearly narrates that
no person can occupy the building or part thereof without
an Occupancy Certificate. Admittedly persons have been
inducted prior to grant of POC. It is contrary to law. The
occupation of the building or part thereof is opposed to law.
No person can be inducted in any manner whatsoever,
without an Occupancy Certificate by the Corporation.
Therefore, all such persons who have been inducted prior
to the grant of POC, are in illegal occupation.
(b) The second part of Bye-law-5.7 is to the effect that the
concerned officer has to opine, that the Occupancy
Certificate sought for the building or the part thereof is
complete in terms of the sanction plan. Therefore, if the
building or the part thereof, is not completed in terms of
the plan sanction, no such Occupancy Certificate can be
granted. Even otherwise, the authorized officer should
opine that the building or part thereof is completed.
Therefore, until the building or the part thereof is
completed in terms of plan sanction and the Authorized
Officer has so opined, with regard to the same, no
Occupancy Certificate can be granted.
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13. (a) Therefore, firstly no person can occupy or allow any
other person to occupy the building or a part thereof, for
any purpose whatsoever, until an Occupancy Certificate to
such a building or a part thereof, is granted by the
Authorised Officer. Therefore, it narrates that no person
shall occupy the building until an Occupancy Certificate is
granted. It also states that no person shall occupy or that
such a person shall allow any other person to occupy.
Secondly, such occupation of the building cannot take place
for any purpose whatsoever. It would imply, that whatever
may be the reason, whatever may be the circumstance, no
person shall occupy the premises. The language used is
that no persons ‘shall’. Therefore, it is mandatory. ‘Shall’ is
a compulsion. Therefore, compliance is a must.
(b) That occupation cannot take place until and unless an
Occupancy Certificate to such a building is granted.
Admittedly, persons have been allowed to occupy portions
of the buildings. Therefore, in view of the admitted
position, there has been a violation of Law. Persons have
been allowed to occupy the premises without a POC.
The Learned Counsel for the builder contends that these
persons have been in occupation in terms of the deeming
provisions vide Section-310 of the KMC Act. However, on
arguing the issue for sometime, he submits that he would
not press the contention under Section-310 of the KMC Act.
He submits that persons have been inducted, not on the
basis of Section-310 of the KMC Act, but the induction
would be governed only by the POC. The submission on this
issue is noted. Consequently, in view of the admitted
position of induction of persons without an Occupancy
Certificate, there has been a violation of the first part of
Bye-law 5.7 itself.
(c) The second part of the bye-law would narrate that a
POC can be granted, if in his opinion, namely, the
Authorised Officer’s opinion, the building is complete in
accordance with the sanctioned plan in every respect and
fit for the use for which it is erected. Therefore, what it
postulates is that in terms of the sanctioned plan, the
building must be complete in every respect. ‘In every
respect’ means, complete adherence to the sanctioned
plan.
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(d) If it is not in accordance with the sanctioned plan in
every respect, no POC can be granted. It is herein that
reference to the provisions of Bye-law 5.6.1 becomes
necessary. It clarifies that not only the building should be
complete in all respect, but that the authority after due
physical inspection of the building and as to whether
commencement certificate under Section-300 of the KMC
Act is obtained, that there is compliance with regard to
production of documents including clearance from the Fire
Department, that such an order can be passed. That there
should be a certificate issued by the Architect as per
Schedule-VIII. It is also clarified therein that physical
inspection means that, the authority shall find out that the
building has been constructed in all respect to the
sanctioned plan and building bye-laws and includes
inspection by the Fire Service Department wherever
necessary. While seeking for an Occupancy Certificate
under Bye-law 5.6, the same should be accompanied by a
certificate under Schedule-VIII by the registered
Architect/Engineer/Supervisor, to the effect of such
completion of the building. Therefore, it has to be certified
by him that the building has been constructed as per the
plan sanction. Thereafter, the Corporation would do the
needful and may issue an Occupancy Certificate in the form
given in Schedule-IX, provided the building is in accordance
with the plan sanction. However, these two issues are
absent in Bye-law 5.7. Under Bye-law 5.7, there is no
requirement of any such certificate by an Architect, etc.
There is no specified form to issue an Occupancy
Certificate. Therefore under Bye-law 5.7, the burden is cast
on the Authorised Officer in this regard. It is he who has to
opine that the building is complete in every respect
according to the plan sanction. Hence, the responsibility is
only on the Corporation so far as the grant of a POC in
terms of Bye-law 5.7 is concerned.
(e) Therefore, this means that the building should be
completed in every respect according to the sanctioned
plan. Therefore, the Authorised Officer should opine that
such a building is complete according to the sanctioned
plan in every respect. Firstly, is the fact that the very
imposition of conditions is alien to the provisions of Bye-law
5.7. A POC can be granted under Bye-law 5.7, only if in the
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opinion of the Authorised Officer, the building is complete in
every respect as per the sanctioned plan. Therefore, if it is
not complete, no POC can be granted. The question of
grant of POC by imposing conditions is alien to Bye-law 5.7.
The grant of POC with conditions is therefore illegal and
unsustainable in Law.
(f) The imposition of conditions while granting the POC
being alien to Bye-law 5.7, vitiates the POC. The absence of
an opinion of the Authorised Officer would also vitiate the
POC. It is mandatory that the Authorized Officer opines that
the building is complete in all respect. Firstly, there is no
opinion of the Authorised Officer and secondly, the very
fact of imposition of the conditions is beyond law.
(g) The Learned Counsel for the Corporation has procured
the records. Even on a specific question being asked, he is
unable to show the opinion of the Authorized Officer before
issuing the POC. There is no such opinion. There are only
file notings with regard to the deviations, communications,
etc. Since the opinion of the Authorized Officer is
mandatory in terms of Bye-law 5.7 and even the
Corporation has failed to show that such an opinion has
been formed, the POC is vitiated.
13.37. Further, relying on Bangalore Housing
Development and Investments’ judgment,
he submits that in terms of Building Bylaw No.5
and 7, it is required that no person shall occupy
any building without an occupancy certificate.
He further submits that insofar as the
Petitioners are aware, no occupancy certificate
has been issued till date.
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13.38. By relying on the decision of the Hon’ble Apex
Court in the case of Avinash Mehrotra vs.
Union of India6, more particularly Paras 20,
21, 22, 40, 41, 47, which are reproduced
hereunder for easy reference:
20. While we applaud the States’ efforts to improve
schools, we find that States have done too little, too late.
With the guidance of the National Building Code and
affidavits in this case, we view Mr Gonsalves’ brief as
crystallising a minimum set of safety standards for schools.
By their own admission, States have not met these
standards and they have welcomed this Court’s guidance in
achieving improvement. We will consider in more detail the
exact standards required and relief sought later in this
view.
21. It is clearly borne out from the affidavits filed by the
respondents that even the basic fire extinguishing
equipments have not been installed in most of the schools.
Majority of the schools do not have emergency exits. The
schools must realise and properly comprehend the
importance of the fire safety equipments, but unfortunately
most of the schools do not have fire extinguishing
equipments and consequently, the schools are not following
the minimum safety standards prescribed by the Building
Code of the Bureau of Indian Standards.
22. Despite best intentions and frequent agreements, these
building codes and safety standards rarely bind builders in
law or practice. The State or local Governments must enact
building codes before any may have the force of law. Some
building codes exist in law, but few States or municipalities
have enacted a standard as rigorous as the National
Building Code. Weak enforcement often then moots the
enacted code’s effectiveness, no matter the code’s intent,
6
(2009) 6 SCC 398
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whether fire safety officials routinely speak to the need for
meaningful standards with real enforcement.
40. In view of what has happened in Lord Krishna Middle
School in District Kumbakonam and other incidents which
have been enumerated in the preceding paragraphs, it has
become imperative that each school must follow the bare
minimum safety standards, in addition to the compliance
with the National Building Code of India, 2005, in particular
Part IV — Fire & Life Safety, and the Code of Practice of
Fire Safety in Educational Institutions (IS 14435:1997) of
the Bureau of Indian Standards.
41. The said safety standards are enumerated hereinbelow:
3.1. Fire safety measures in schools:
(i) Provision of adequate capacity and numbers of fire
extinguishers of ISI mark to be provided in eye-catching
spots in each block of the school.
(ii) First aid kits and necessary medicines should be readily
available in the school.
(iii) Provision of water tank and separate piping from the
tank with hose reel to the ground floor and first floor.
(iv) Fire-fighting training to all teachers and students from
Xth to XIIth standards.
(v) Fire task force in every school comprising of head of the
institution, two teachers/staff members and one member
from the Fire and Rescue Department should be
constituted. The Fire and Rescue Department member shall
monitor and make fire safety plan and conduct inspections
once in every three months.
(vi) Display of emergency telephone numbers and list of
persons to be contacted on the notice board and other
prominent places.
(vii) Mock drills to be conducted regularly. Fire alarm to be
provided on each floor and for rural schools separate long
bell arrangement in case of emergency.
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(viii) All old electrical wiring and equipment shall be
replaced with ISI mark equipments and routine
maintenance conducted by the school management in
consultation with the Fire and Rescue Department.
(ix) No high tension lines should run inside or in close
proximity to the school. Steps must be taken to shift them
if they are already there.
(x) The Fire and Rescue Department shall frame guidelines
with dos and donts for schools and issue a fitness
certificate, which shall be renewed periodically.
3.2. Training of school teachers and other staff:
(i) The teachers along with other staff shall be trained to
handle safety equipment, initiate emergency evacuations
and protect their students in the event of fire and other
emergencies by the Fire and Rescue Department.
(ii) They shall also be trained in providing emergency first-
aid treatment.
(iii) There shall be a School Safety Advisory Committee and
an emergency response plan drafted by the Committee in
approval and consultation with the Fire and Rescue
Department concerned.
(iv) Emergency response drills conducted at regular
intervals to train the students as well as the school staff.
(v) All schools to observe fire safety day on 14th of April
every year with awareness programs and fire safety drills in
collaboration with the Fire and Rescue Department.
3.3. School building specifications:
(i) The school buildings shall preferably be a A Class
construction with brick/stone masonry walls with RCC
roofing. Where it is not possible to provide RCC roofing only
non-combustible fireproof heat resistant materials should
be used.
(ii) The nursery and elementary schools should be housed
in single-storeyed buildings and the maximum number of
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floors in school buildings shall be restricted to three
including the ground floor.
(iii) The school building shall be free from inflammable and
toxic materials, which if necessary, should be stored away
from the school building.
(iv) The staircases, which act as exits or escape routes,
shall adhere to provisions specified in the National Building
Code of India, 2005 to ensure quick evacuation of children.
(v) The orientation of the buildings shall be in such a way
that proper air circulation and lighting is available with
open space all round the building as far as possible.
(vi) Existing school buildings shall be provided with
additional doors in the main entrances as well as the
classrooms if required. The size of the main exit and
classroom doors shall be enlarged if found inadequate.
(vii) School buildings have to be insured against fire and
natural calamities with group insurance of school pupils.
(viii) Kitchen and other activities involving use of fire shall
be carried out in a secure and safe location away from the
main school building.
(ix) All schools shall have water storage tanks.
3.4. Clearances and certificates:
(i) Every school shall have a mandatory fire safety
inspection by the Fire and Rescue Services Department
followed by issuance of a ‘no-objection certificate’ to the
school as a mandatory requirement for granting permission
for establishing or continuation of a school.
(ii) An inspection team consisting of experts like a civil
engineer, a health officer, a Revenue Officer, a
psychologist, a fire officer, a local body officer and a
development officer besides the educational authorities
shall carry inspection and assessment of infrastructural
facilities before the commencement of each academic year.
The team shall submit its inspection report to the District
Chief Educational Officer concerned.
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(iii) The building plans for schools shall be prepared only by
a Government-certified engineer and the PWD Executive
Engineer concerned should inspect the building and award
a structural stability certificate. Stability certificates shall be
issued by the State or Central Government engineers only
and shall be mandatory for granting permission for
establishing or continuation of a school.
(iv) In every district, one Recognition Committee headed by
a retired Judge shall be constituted. Officials from the
Revenue Department, Public Works Department, Fire
Service, Electricity Board, Health and Education
Department and a reputed NGO shall be members. They
shall visit the schools periodically or at least the erring
institutions as listed by the Chief Education Officer.
(v) Conditional recognition/approval shall never be resorted
to for any school.
47. In view of what happened in Lord Krishna Middle
School in District Kumbakonam where 93 children were
burnt alive and several similar incidences had happened in
the past, therefore, it has become imperative to direct that
safety measures as prescribed by the National Building
Code of India, 2005 be implemented by all government and
private schools functioning in our country. We direct that:
(i) Before granting recognition or affiliation, the State
Governments and Union Territories concerned are directed
to ensure that the buildings are safe and secure from every
angle and they are constructed according to the safety
norms incorporated in the National Building Code of India.
(ii) All existing government and private schools shall install
fire extinguishing equipments within a period of six months.
(iii) The school buildings be kept free from inflammable and
toxic material. If storage is inevitable, they should be
stored safely.
(iv) Evaluation of structural aspect of the school may be
carried out periodically. We direct that the engineers and
officials concerned must strictly follow the National Building
Code. The safety certificate be issued only after proper
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inspection. Dereliction in duty must attract immediate
disciplinary action against the officials concerned.
(v) Necessary training be imparted to the staff and other
officials of the school to use the fire extinguishing
equipments.
13.39. By relying on Avinash Mehrotra‘s case, he
submits that the minimum safety standards
required for a School have not been complied
with. The School, having been established after
the decision in Avinash Mehrotra‘s case, it was
only required for NET to have complied with all
the requirements. The requirements of the
National Building Code, more so when there are
children who would be making use of the said
building. In this regard, he relies upon
Annexure-U being the reply to an RTI
application where it is stated that the proper
setbacks have not been provided so as to
provide fire preventive, fire fighting and
evacuation measures to the School building.
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13.40. He also relies on Annexure-B being another
reply to the RTI application dated 1-6-2011,
wherein it has been categorically stated that no
objection certificate from the Fire Department
has not been obtained. He submits that the writ
petition is not a public interest litigation, though
it espouses the cause of the public also, the
same has been filed to cater to the interest of
the Petitioners, who are the neighbours of the
building. The authorities have given a go-by to
all the applicable laws to favour the NET, and it
is for that reason that this Court ought to come
to the rescue of the Petitioners and take
necessary action against such violations by the
NET, by allowing the petition.
14. Sri.S.M.Chandrasekhar, learned Senior Counsel
appearing for Respondent No.1, would submit as
under:
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14.1. The petition as filed is more in the nature of a
public interest litigation, and as such is not
maintainable. The petition has been filed due to
certain enmity which has developed between
Petitioners Nos . 5 and 6, on the one hand and
the Chairman of NET on the other. They
specifically allege that Petitioners No.5 and 6,
after retirement, are using the government
machinery to harass NET and its administration.
They having failed to secure admission for their
friends and relatives, NET not having accepted
their requests, they have sought to destroy the
infrastructure and goodwill of NET. A serious
allegation has been made by the NET that the
sites allotted in favour of many of the
Petitioners were C.A. sites. Those C.A. sites
have been allotted as plots. It is for that reason
that the site numbers are not sequential and
have alphabets after the site number. There are
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various other commercial establishments,
convention centres, which have been
established on the 13th Main Road, as regards
which no complaint has been raised. It is NET
alone that has been targeted by the Petitioners.
14.2. Personal allegations are made against Petitioner
No.6, who is a former Director General of
Police, it is alleged that Petitioner No.6 has
lodged 500 complaints against Chairman of NET
and used his position as Police Officer to
prevent the School staff, students and their
parents to enter the School premises and he
continues to harass the Chairman of NET, with
the help of his subordinate police officers who
are still in service.
14.3. The C.A.site having been allotted to NET, NET
had put up the construction of a School, and it’s
only thereafter that the Petitioners had put up
construction of their respective houses. The
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construction of the Petitioners being
subsequent to that of NET, the Petitioners
cannot claim any equity on that account, and
now allege that the establishment of the School
by NET is causing inconvenience to the
Petitioners.
14.4. The School is not concerned with the vehicles
which are parked on the Road by third parties.
These are not vehicles which are parked by the
School or the staff of the School. The School,
therefore, cannot be held responsible for such
parking of vehicles. Apart from that, he submits
that there is a Kalyanamantapam, an Ayurvedic
hospital, as well as a telephone exchange, the
visitors of which park on the said Roads and
therefore, the School is not responsible for
those vehicles which are parked.
14.5. Only 10 persons have filed the above petition.
The said area has thousands of residents who
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have no complaint against NET. On the basis of
complaint of 10 Petitioners, the establishment
of School by NET cannot be found fault with.
The children of many of the Petitioners have
also studied at the School of NET. Therefore,
they could not maintain the present petitions,
having availed the benefit of the School.
14.6. The KTCP Act came into force on 28-3-1963, as
regards which various amendments were
carried out, and provides for favourable
conditions for planning and re-planning of the
urban areas. The BDA was initially required to
prepare a development plan, i.e. an Outline
Development Plan, or a Comprehensive
Development Plan, (ODP/CDP). The Act being
supreme, the Zoning Regulations cannot
override the Act and the Rules. The Zoning
Regulations being approved by the Government
based on the recommendation of the Planning
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Authority cannot be given more precedence
than the Act and the Rules. Therefore, the
reliance on the Zoning Regulations by the
Petitioners is completely misplaced.
14.7. The change of land use which is granted under
Section 14A of the Act is an action taken by the
Government under the Statute, which is
protected by the Statute. The Zoning
Regulation cannot override the powers of the
Government to pass orders of change of land
use under Section 14A. Indiranagar being a
large area, there is a shortage of schools in the
area. This has been taken into consideration by
the BDA while coming up with the Zonal
Regulations. While dealing with urban amenities
in Indira Nagar, the BDA has categorically
indicated that the education infrastructure is
lacking. The average being 1 for 2500 in
respect of Primary Schools is 0.61, for Higher
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Primary Schools being 1 for 5,000 is 1.12, the
average being 1 for 15,000 for High Schools is
2.67. Though the average ratio of all three
kinds of Schools is 1.47, the ratio with respect
to Primary Schools is 0.61, which is less than
what is required. What is established by the
NET is the primary School which caters to the
requirements of the Indiranagar area, and as
such, cannot be found at fault. The change of
land use, which has been granted, is in the
public interest for the establishment of more
primary Schools.
14.8. His submission is that the plots which have
been allotted to the Petitioners are out of the
civic amenity plots as reserved. If those civic
amenity sites had been allotted for the purpose
of civic amenities, the Petitioners would not
have got the sites allotted in their favour, and
therefore could not have made the allegations
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and taken up the contentions as done in the
present petition.
14.9. He submits that ancillary uses are permitted as
per the Zoning Regulation. The ancillary use
permitted in respect of the present property,
being for educational purposes, the change of
land use that has been granted for educational
purposes is proper and correct. It is not that
the property cannot be used for educational
purposes at all. A portion of the property could
have been used for educational purposes before
the change of land use. After the change of
land use, the entire property is being used for
educational purposes. It is in that view of the
matter that NET purchased the sites bearing
No.3367/H and 3367/I, which are adjacent to
each other and within 40 feet of the existing
School compound, for locating the pre-primary
classes by amalgamating the said two sites.
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Thereafter, the necessary procedure has been
followed.
14.10. The BDA has levied a betterment fee, which has
been paid, and following the due procedure, the
BDA has recommended the change of land use,
which has been approved by the State
Government, and as such, no fault can be
found therewith. Even without the change of
land use, the plot area being 1003.3 square
meters, the Road width being 41 feet, and the
FAR of 2.25 meters is available, which would
entitle NET to construct 2256.75 square
metres, out of which 20% could be used for
educational purposes, amounting to 451.35
square metres. Thus, the usage of the said
constructed building for education is not
prohibited; it is a permitted activity.
14.11. He submits that in the C.A. site, a building of
14,400 square metres has been constructed.
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What is now constructed in the present site is
only 2,106 square metres, which is situated
opposite the C.A. site. Thus, the contention of
the Petitioners is that on the very same Road,
for the civic amenity site to be used for the
purpose of construction of the school is
permissible, whereas on the plots it is not
permissible, is not tenable. The requirement of
the construction of additional pre-primary and
primary classes was necessitated on account of
the new educational policy of the Government
of India. It is for that reason that in the existing
School, laboratories are to be provided,
requiring the pre-primary and primary School
to be shifted, which has been shifted to the
current plots and the labs provided in the
school constructed on the civic amenity site.
14.12. The Board of Governors of NET has considered
all these aspects and has taken the best
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possible decision in the interest of the students
in the area concerned. He submits that NET is
one of the well-recognised Schools in the State
of Karnataka, running nearly nine institutions,
is placed at the fifth place in the national level,
has a high reputation, which is sought to be
damaged by the Petitioners. NET has validly
purchased the two plots by paying due
consideration to the concerned owners. Such a
purchase cannot be faulted with. Both
properties have been assessed under a single
katha issued by the BBMP, as regards which
necessary taxes are being paid by NET. In
2018, a change of land use application having
been filed, a Paper publication was taken out by
the BDA inviting objections. However, no
objection was received. Thereafter, the BDA
proceeded with recommending a change in land
use. It is after the State Government approved
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the change of land use that the present petition
has been filed, challenging the said
construction.
14.13. The change of land use by itself was challenged
much subsequently by way of amendment, and
not when the petition was filed. Thus, he
submits that the challenge made to the change
of land use is completely belated, suffers from
delay and laches, and on this ground, the
petition is also required to be dismissed. NET
has applied for and obtained a change of land
use by making the payment of the due
amounts. The plan sanction has been applied
for and obtained by making payment of the due
amounts. The construction is in accordance with
the change of land use and the sanction plan,
as regards which no fault can be found.
14.14. The change of land use, which has been
granted from a change of residential plot to an
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educational purpose, cannot be faulted with.
Educational institution is permitted to be
constructed in the subject premises. He submits
that the construction is in accordance with the
plan sanction. There is no violation of the plan
sanction which has been committed by NET as
alleged or otherwise. All the facilities which are
required to be provided have been provided,
including fire safety requirements. There are
nearly 800 to 1000 students who are now
studying in the pre-primary and primary School
established by NET. If any order were to be
passed by this Court holding the change of land
use to be illegal or otherwise, the said 800 to
1000 students will be left with nowhere to go,
and their lives and interests would be adversely
affected.
14.15. The construction of the new building for pre-
primary and primary does not in any manner
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affect the Petitioners personally, nor is their
privacy affected. He denies that the Petitioners’
right to life is affected. Therefore, he submits
that the allegations made against NET are
completely false.
14.16. His submission is also that the Writ Petition
having been filed in the year 2010, now in the
year 2025, the same cannot be disturbed. The
school having been running for the last 15
years, this Court ought not to grant the reliefs
which are sought for by the Petitioners. This
without prejudice to his contention that the
petition itself was belated and subsequent
challenge to the change of land use made by
way of amendment, suffers from acquiescence
delay and latches. In that regard, he relies
upon the decision of the Hon’ble Apex Court in
the case of Union of India & anr., vs.
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N.Murugesan & ors.,7 more particularly Paras
20 to 25 thereof, which are reproduced
hereunder for easy reference:
20. The principles governing delay, laches, and
acquiescence are overlapping and interconnected on many
occasions. However, they have their distinct characters and
distinct elements. One can say that delay is the genus to
which laches and acquiescence are species. Similarly,
laches might be called a genus to a species by name
acquiescence. However, there may be a case where
acquiescence is involved, but not laches. These principles
are common law principles, and perhaps one could identify
that these principles find place in various statutes which
restrict the period of limitation and create non-
consideration of condonation in certain circumstances. They
are bound to be applied by way of practice requiring
prudence of the court than of a strict application of law. The
underlying principle governing these concepts would be one
of estoppel. The question of prejudice is also an important
issue to be taken note of by the court.
21. The word “laches” is derived from the French language
meaning “remissness and slackness”. It thus involves
unreasonable delay or negligence in pursuing a claim
involving an equitable relief while causing prejudice to the
other party. It is neglect on the part of a party to do an act
which law requires while asserting a right, and therefore,
must stand in the way of the party getting relief or remedy.
22. Two essential factors to be seen are the length of the
delay and the nature of acts done during the interval. As
stated, it would also involve acquiescence on the part of the
party approaching the court apart from the change in
position in the interregnum. Therefore, it would be
unjustifiable for a Court of Equity to confer a remedy on a
party who knocks its doors when his acts would indicate a
waiver of such a right. By his conduct, he has put the other
party in a particular position, and therefore, it would be
7
(2022) 2 SCC 25
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unreasonable to facilitate a challenge before the court.
Thus, a man responsible for his conduct on equity is not
expected to be allowed to avail a remedy.
23. A defence of laches can only be allowed when there is
no statutory bar. The question as to whether there exists a
clear case of laches on the part of a person seeking a
remedy is one of fact and so also that of prejudice. The said
principle may not have any application when the existence
of fraud is pleaded and proved by the other side. To
determine the difference between the concept of laches and
acquiescence is that, in a case involving mere laches, the
principle of estoppel would apply to all the defences that
are available to a party. Therefore, a defendant can
succeed on the various grounds raised by the plaintiff,
while an issue concerned alone would be amenable to
acquiescence.
24. We have already discussed the relationship between
acquiescence on the one hand and delay and laches on the
other.
25. Acquiescence would mean a tacit or passive
acceptance. It is implied and reluctant consent to an act. In
other words, such an action would qualify a passive assent.
Thus, when acquiescence takes place, it presupposes
knowledge against a particular act. From the knowledge
comes passive acceptance, therefore instead of taking any
action against any alleged refusal to perform the original
contract, despite adequate knowledge of its terms, and
instead being allowed to continue by consciously ignoring it
and thereafter proceeding further, acquiescence does take
place. As a consequence, it reintroduces a new implied
agreement between the parties. Once such a situation
arises, it is not open to the party that acquiesced itself to
insist upon the compliance of the original terms. Hence,
what is essential, is the conduct of the parties. We only
dealt with the distinction involving a mere acquiescence.
When acquiescence is followed by delay, it may become
laches. Here again, we are inclined to hold that the concept
of acquiescence is to be seen on a case-to-case basis.
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14.17. By relying on Murugesan’s case, he submits
that, although the principles governing delay,
laches, and acquiescence overlap, they have
distinct characteristics. Laches would involve
unreasonable delay or negligence in pursuing a
claim involving an equitable relief while causing
prejudice to the other party. Such neglect on
the part of the party to act lawfully within time
would stand in the way of the party getting
relief or remedy. The length of delay and nature
of acts which have been performed in the
meanwhile, namely, the construction of the
school, the admission of the students, the
education facility being provided to the
students, would come to the rescue of NET,
disentitling the Petitioners from any equitable
relief.
14.18. Insofar as acquiescence is concerned, he
submits that there is a tacit or a passive
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acceptance on the part of the Petitioners insofar
as the change of land use is concerned. The
Petitioners had not objected to the paper
publication, which had been taken out by the
BDA. The said publication is to the knowledge
of one and all. Even after the change of land
use was granted, the same was not challenged
until the amendment application was filed.
Therefore, until the amendment application was
filed, it is deemed that the Petitioners
acquiesced to the change of land use. The
amendment application, being belated,
suffering from laches and delay, would amount
to acquiescence. Thereafter, the Petitioners
cannot claim the reliefs which had been sought
for.
14.19. He submits that the Petitioners also have an
alternative efficacious remedy in terms of
challenging the plan sanction before the
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appropriate authority of the BBMP. A writ
petition is not the remedy which is available to
the Petitioners. The Petitioners, not having
exhausted the alternative efficacious remedy as
provided under the Statute or the Municipal
Corporation Act, cannot maintain the present
Writ Petition. In this regard, he relies upon the
decision of the Hon’ble Apex Court in the case
of Titaghur Paper Mills Co. Ltd., vs. State of
Orissa & anr.,8 more particularly Paras 6 and
11 thereof, which are reproduced hereunder for
easy reference:
6. We are constrained to dismiss these petitions on the
short ground that the Petitioners have an equally
efficacious alternative remedy by way of an appeal to the
Prescribed Authority under sub-section (1) of Section 23 of
the Act, then a second appeal to the Tribunal under sub-
section (3)(a) thereof, and thereafter in the event the
Petitioners get no relief, to have the case stated to the
High Court under Section 24 of the Act. In Raleigh
Investment Company Limited v. Governor-General in
Council [AIR 1947 PC 78 : (1947) 74 IA 50 : 231 IC 1]
Lord Uthwatt, J. in delivering the judgment of the Board
observed that in the provenance of tax where the Act
provided for a complete machinery which enabled an
assessee to effectively raise in the courts the question of
8
(1983) 2 SCC 433
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the validity of an assessment denied an alternative
jurisdiction to the High Court to interfere. It is true that
the decision of the Privy Council in Raleigh Investment
Company case [AIR 1947 PC 78 : (1947) 74 IA 50 : 231
IC 1] was in relation to a suit brought for a declaration
that an assessment made by the Income Tax Officer was a
nullity, and it was held by the Privy Council that an
assessment made under the machinery provided by the
Act, even if based on a provision subsequently held to be
ultra vires, was not a nullity like an order of a court lacking
jurisdiction and that Section 67 of the Income Tax Act,
1922 operated as a bar to the maintainability of such a
suit. In dealing with the question whether Section 67
operated as a bar to a suit to set aside or modify an
assessment made under a provision of the Act which is
ultra vires, the Privy Council observed:
“In construing the section it is pertinent, in their Lordships’
opinion, to ascertain whether the Act contains machinery
which enables an assessee effectively to raise in the courts
the question whether a particular provision of the Income
Tax Act bearing on the assessment made is or is not ultra
vires. The presence of such machinery, though by no
means conclusive, marches with a construction of the
section which denies an alternative jurisdiction to inquire
into the same subject-matter.”
11. Under the scheme of the Act, there is a hierarchy of
authorities before which the Petitioners can get adequate
redress against the wrongful acts complained of. The
Petitioners have the right to prefer an appeal before the
Prescribed Authority under sub-section (1) of Section 23 of
the Act. If the Petitioners are dissatisfied with the decision
in the appeal, they can prefer a further appeal to the
Tribunal under sub-section (3) of Section 23 of the Act,
and then ask for a case to be stated upon a question of
law for the opinion of the High Court under Section 24 of
the Act. The Act provides for a complete machinery to
challenge an order of assessment, and the impugned
orders of assessment can only be challenged by the mode
prescribed by the Act and not by a petition under Article
226 of the Constitution. It is now well recognised that
where a right or liability is created by a statute which
gives a special remedy for enforcing it, the remedy
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provided by that statute only must be availed of. This rule
was stated with great clarity by Willes, J. in
Wolverhampton New Waterworks Co. v. Hawkesford
[(1859) 6 CBNS 336, 356 : 28 LJCP 242 : 141 ER 486 : 7
WR 464] in the following passage:
“There are three classes of cases in which a liability may
be established founded upon statute. . . . But there is a
third class, viz. where a liability not existing at common
law is created by a statute which at the same time gives a
special and particular remedy for enforcing it. . .the
remedy provided by the statute must be followed, and it is
not competent to the party to pursue the course applicable
to cases of the second class. The form given by the statute
must be adopted and adhered to.”
The rule laid down in this passage was approved by the
House of Lords in Neville v. London Express Newspapers
Ltd. [1919 AC 368 : 1919 All ER Rep 61 : 88 LJKB 282 :
120 LT 299] and has been reaffirmed by the Privy Council
in Attorney-General of Trinidad and Tobago v. Gordon
Grant & Co. Ltd. [1935 AC 532 : 104 LJ PC 82 : 153 LT
441 (PC)] and Secretary of State v. Mask & Co. [AIR 1940
PC 105 : 67 IA 222 : 188 IC 231] It has also been held to
be equally applicable to enforcement of rights, and has
been followed by this Court throughout. The High Court
was therefore justified in dismissing the writ petitions in
limine.
14.20. By relying on the Titaghur Paper Mills case,
he submits that when an alternative efficacious
remedy is available, the Petitioners cannot
approach this Court. The alternative and
efficacious remedy would have to be exhausted
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before the Petitioners were to approach this
Court.
14.21. He also relies on the judgment of this Court in
the case of Parameswaran vs. Bangalore
Mahanagar Palike9 more particularly Paras 9,
20, 21 and 22 thereof, which are reproduced
hereunder for easy reference:
9. I have applied my mind to the contentions of the learned
Counsel for the parties. As regards the maintainability of
the Writ Petition, the Petitioner’s grievance is primarily
against the dwellers in those hutments or constructions,
which the Petitioner alleges to be unauthorised and which
are alleged to have been made on the pavement. The
Petitioner has not shown how he has come to know and in
what manner they are unauthorised constructions. The
persons who have raised those constructions have also not
been impleaded in the case. Whether those persons have
been raised unauthorised constructions or not, that is the
question which requires to be tried and investigated in the
light of the evidence and it is only after giving opportunity
to those persons. The Petitioner, in the Writ Petition, has
stated that, he is suffering special injury because of those
hutments.
20. The observation of Their Lordships of the Supreme
Court interpreting Section 314 of the Bombay Municipal
Corporation Act are applicable to the interpretation of
Section 288D of the Karnataka Municipal Corporations Act,
1976. In that light, it can well be held that Section 288D is
an enabling provision. It is not compulsive in character. It
is a discretionary power of the Commissioner to cause an
encroachment removed either with or without notice or in a
case where circumstances do not require its removal, he9
ILR 1994 KAR 2972
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may not order removal even. So, this Section does not
impose a compulsive duty to remove. Where it appears
firstly that the construction is an unauthorised one and the
Commissioner considered that the circumstances warrant
its removal, he may direct removal. But, when the
circumstances are such that removal may cause greater
injury, the Commissioner may not exercise that power and
he cannot be compelled therein. When the person has got
discretionary powers and in case where discretion is
rational one, one way or the other, there is no question of
exercise of jurisdiction. Here, in the present case, it has
been alleged that he had made a complaint to the police as
well as the complaint to the Corporation authorities, but
neither the police have taken any action on the complaint
nor the Municipal Corporation. No copy of the complaint has
been annexed at all and when the complaints are not
annexed, I am not going to take notice of such a thing and
particularly when it is in discretionary matter. In this view
of the matter, unless it is proved by their having filed the
copy of the complaint, it cannot be assumed that the
complaints have been made as even the date of making the
complaints has not been stated or indicated in the Petition.
I may observe, at this stage, while filing the Writ Petition,
the Petitioner has not indicated as to when the complaint
has been made or the application has been moved.
21. Having thus considered, in my opinion, this Writ
Petition is entitled to be dismissed as it has got no force for
the following reasons:–
(a) that the Petitioner has got alternative remedy,
(b) that there is the power conferred is discretionary and
not mandatory or compulsive under Section 288-D of the
Act on the Commissioner,
(c) that the Petitioner does not show as to when and on
what date the complaint has been produced so it cannot be
assumed that Petitioner did approach at any time the
Corporation Authorities asking them to exercise their
powers under Section 288-D of the Act and unless the
Petitioner establishes that he did approach opposite party
to exercise its powers under Section 288-D of the Act
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against specified person alleged to be unauthorised
occupants no Writ of Mandamus can be issued in his favour.
22. Thus, the Writ petition is hereby dismissed on the
above grounds. Interim relief application, as mentioned
earlier is also devoid of force in view of the observations
made in the case of Assistant Collector of Central Excise,
Chandan Nagar, West Bengal v. Dunlop India Ltd. [(1985)
1 SCC 260 : AIR 1985 SC 330.] . So, the same is also
rejected.
14.22. By relying on Parameswaran‘s case, he
submits that even if unauthorised constructions
were to be made, it is for the statutory
authorities to take necessary action. It was for
the Petitioners to have approached the
concerned authorities under Section 288D of
the KMC Act. Not having done so, the present
petition is not maintainable.
14.23. Section 288D is reproduced hereunder for easy
reference:-
288D. Commissioner may without notice
remove encroachment.-
Notwithstanding anything contained in this Act, the
Commissioner may, without notice, cause to be
removed,-
(a) any wall, fence, rail, step, booth or other
structure or fixture which is erected or set up in
contravention of the provisions of section 288A;
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(b) any stall, chair, bench, box, ladder, bale, or any
other thing whatsoever, placed or deposited in
contravention of section 288B;
(c) any article, whatsoever, hawked or exposed for
sale in any public place or in any public street in
contravention of section 288C and any vehicle,
package, box, board, shelf or any other thing in or
on which such
article is placed, or kept for the purpose of sale.]
14.24. He relies on the judgment of this Court in the
case of Alliance Business Academy vs.
Dr.Jayaram Reddy10, more particularly Paras
12 to 20 thereof, which are reproduced
hereunder for easy reference:
12. Although these writ appeals were heard quite
extensively, in our considered opinion, the main question
that arises for decision falls within a short compass. The
question is whether Clause (b) of ‘Residential Zone’ which
deals with the uses that are permissible under ‘special
circumstances’ empowers the Planning Authority to allow
establishment of any of the amenities specified therein
while planning only or that Clause (b) also empowers the
Planning Authority to allow conversion of a site meant for a
particular amenity into another amenity if both the
amenities are specified amenities therein?
13. In order to appreciate the point raised before us, it will
be beneficial for us to briefly refer to the provisions of the
Planning Act. The Planning Act was enacted by the
Karnataka State Legislature for regulating planned growth
of land use and its development and for making and10
ILR 2005 Karnataka 450
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execution of town planning schemes in the State of
Karnataka with a view to provide civic and social amenities
for the people in the State, to preserve and improve the
existing recreational facilities and other amenities thereby
contributing towards balanced use of the land and to
provide for healthy environment, hygiene and general
standard of living. In order to achieve the aforementioned
laudable objectives, the Planning Act has created the
“Planning Authority” which is given the power first to
conduct a survey, locate the area for development by
declaring it as a planning area. Under Section 9 of the
Planning Act, the Planning Authority is required to prepare
an ODP for such planning area. Section 12 of the Planning
Act deals with what an ODP should contain. The ODP
prepared under Section 9 of the Act is required to be
forwarded to the State Government under Section 13 by
the Planning Authority. The same is required to be
published for general information by inviting objections or
comments. The State Government, after applying its mind
to the contents of the ODP and objections submitted if any
is required to accord its approval. If the Government
accords approval, it is required to be published on the
Notice Board for information of the general public and then
only it becomes final and enforceable under Section 14 of
the Act. Section 14 of the Planning Act deals with
enforcement of the ODP and the Regulations. A careful
reading of Section 14 makes it clear that on and from the
date on which ODP has been published, every owner of
land shall use/should develop his land strictly in accordance
with the permitted use. However, if he wants to use the
land for a different purpose than what is mentioned in the
ODP, he has to apply and obtain permission from the
Planning Authority under Section 14-A of the Planning Act.
Section 14-A of the Act reads:
“14. A Change of land use from the outline
Development Plan (1) At any time after the date on
which the Outline Development Plan for an area comes into
operation, the Planning Authority may, with the previous
approval of the State Government, allow such changes in
the land use or development from the outline Development
plan as may be necessitated by topographical or
cartographical or other errors and omissions, or due to
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failure to fully indicate the details in the plan or changes
arising out of the implementation of the proposals in
Outline Development Plan or the circumstances prevailing
at any particular time, by the enforcement of the plan;
Provided that-
(a) all changes are in public interest;
(b) the changes proposed do not contravene any of the
provisions of this Act or any other law governing planning,
development or use of land within the local planning area;
and
(c)the proposal for all such changes are published in one or
more daily newspapers, having circulation in the area,
inviting objections from the public within a period of not
less than fifteen days from the date of publication as may
be specified by the Planning Authority.
(2) The provisions of sub-sections (2) and (3) of Section 14
shall apply mutatis mutandis to the change in use or
development from the Outline Development Plan.
14. The Government of Karnataka has framed the rules
called the Karnataka Planning Authority Rules, 1965
(“Planning Rules” for short) in exercise of the powers
conferred under Section 74 of the Planning Act. Rule 30
deals with as to what a map prepared by the Planning
Authority should contain. It has divided the areas and the
uses in the map under the headings, residential,
commercial, industrial, transport and communication,
public utilities, public and semi-public uses, open spaces
and agricultural land. In the instant case, the CDP has been
published under Government Order No. HUD 139 MNJ 94
dated 5th January, 1995. The object of the CDP as stated in
the Notification is to promote among other things, general
social welfare of the community and to put reasonable
limitation on the use of the land for the said purpose. The
Notification has divided the entire Bangalore city into
residential, commercial, industrial, public and semi-public
zones. Annexure I to the above Government order
establishes zones, land zoning maps, whereas Annexure-II
classifies the land use of the zones into 8 categories under
the heads; residential commercial (retail and wholesale
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business), industrial (light and service industries, medium
and heavy industries), pubic and semi-public utilities and
services, parks and open spaces and playgrounds (including
recreational area) transportation and communication,
agricultural land and watersheds. The Notification also
provides for the uses that may be permitted by the BDA
under different zones. As regards residential zone, the
permissible uses are classified under two categories (a)
uses that are permissible and (b) uses that are permissible
under ‘special permission’ of the authority. Categories (a)
and (b) are extracted herebelow for ready reference.
“Residential zone
(a) Uses that are permissible dwellings, hostels including
working women and gents hostels, Dharmashalas, places of
public worship, schools offering general education course
upto secondary education, public libraries, post and
telegraph offices, KEB counters, BWSSB counters, Clubs,
Semi-public recreational uses, milk booths and
neighbourhood or convenience shops, occupying a floor
area not exceeding 2000 sq. mets. doctor’s consulting
rooms, offices of Advocates, other professions in public
interest not exceeding 2000 sq. mts. of floor area in a
building.
(b) Uses that are permissible under “special circumstances”
by the Authority.
Municipal, Statutory Authorities, State and Central
Government Offices, Banks, Public Utility Buildings,
Colleges. Cemeteries, golf clubs, tailoring, laundry,
hospitals for human care except those meant for mental
treatment, nursing homes, philanthropic uses, fuel storage
depots, filling stations, huller and floor mills, coffee
grindings machines including service industries, with a
maximum power up to 5 HP for all the industries as per the
list given in Schedule 1 and 10 HP in case of huller and
floor mills. The power required for air conditioners, lifts and
computers shall be excluded while calculating the horse
power specified above.
15. Zoning Regulations are statutory instruments, and,
therefore, in interpreting those regulations, it is well
settled, the Courts should give content and meaning to
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every word of the regulations. The Courts cannot by
interpretative processes reduce a term or word in the
regulations as surplusage or otiose or redundant.
Admittedly, the sites in which the building is constructed to
run the college fall within the residential zone. It is trite,
the use of the building for running a college comes within
the uses which can be permitted under ‘special
circumstances’. Therefore, it cannot be held that the use of
the land under such ‘special circumstances’ should have
been specified in the CDP itself even before it was
sanctioned by the State Government. Regarding each zone,
the Zonal Regulations prescribe the normal use as also the
uses under ‘special circumstances’. In the CDP, the area
where the land has to be used in the normal circumstance
and the area where the land has to be used under ‘special
circumstances’ are never indicated nor is it practicable nor
expedient to indicate the same. In effect, both category of
uses are permitted by the Zonal Regulations. However, in
the case of use coming under ‘special circumstances’, a
separate permission from the Planning Authority is needed.
In the instant case, a separate permission envisaged in
clause (b) has been obtained by respondents 3 and 4 to
use site Nos. 2 and 3 for construction of a building to house
a college to impart computer training. We do not find any
merit in the contention that Section 14-A of the Planning
Act is attracted, because, question of ‘change of land use’
or change of zoning would not arise since the property in
question continues to be in residential zone and under the
zonal Regulations, two categories of uses, viz., (i) ordinary
use, and (ii) use under ‘special circumstances’ are
permitted and since ‘special permission’ is obtained from
the BDA, the impugned resolution of the BDA cannot be
faulted. The opinion of this Court in Sri Krishnapur Mutt,
Udupi v. N. Vijayendra Shetty [1992 (3) Kar LJ 326.]
supports our view. In that judgment, this Court has held:
“7. When the first respondent had obtained permission or
commencement certificate for the construction of a
commercial building the nature of the building remained the
same, namely, “commercial” as contemplated under
Section 12 of the Act and it continued to be so even when
the 1st respondent wanted to run a restaurant or a boarding
and lodging house. The concept of commercial use of a
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building includes not only activities where a shop premises
is located, it also covers a restaurant or a lodging house
and the classification of the important or main purposes of
land-use under Section 12 is commercial, residential,
industrial and so on and not each sub-purposes have been
entered in the definition. Each one of the purposes
mentioned while defining the expression commercial cannot
be stated to be a different purpose. It falls within the same
genus and each purpose will only indicate the specie of the
same genus. When a building is utilized for different
purposes within the same genus of purpose it cannot be
said that there has been a material change in the use of
building or the land. Therefore, in the present case just
because the Planning Authority had given a commencement
certificate for construction of a commercial building on the
land in question, the further requirement of another
commencement certificate being granted to the first
respondent to put up a boarding and lodging house in the
upper floors does not result in any material change and the
resolution passed by the Town Planning Authority in this
regard, called in question in this proceeding becomes
superfluous or irrelevant.
8. The restrictions imposed in the planning law though in
public interest should be strictly interpreted because they
make an inroad into the rights of a private person to carry
on his business by construction of a suitable building for the
purpose and incidentally may affect his fundamental right if
too widely interpreted. The building bye-laws while
sanctioning a plan will take care of what parking space
should be provided in the area and whether the building
itself would have such facility. But under the planning laws
what we are required to see is whether there is any change
in the use of land or building from the one which was
originally granted and whether such change is a material
change or not for the purposes of the Act. As stated by me
earlier, a material change occurs only when there is
alteration of building from one major head to another major
head not in other circumstances. The purpose of the
enactment is only the orderly growth of a city and it
regulates each area of the city with regard to the nature of
buildings that could be put up, namely, commercial,
industrial or residential. When that aspect is taken care of,
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rest of the matters should be left to the municipal
authorities and other licensing authorities who regulate the
trade or other activities.
16. The above observations were made by this Court
speaking through S. Rajendra Babu J. (as His lordship then
was) while rejecting the contention of the Petitioner therein
that Section 14 of the planning Act contemplates that every
land-use, every change in the land-use and every
development in the area should conform to the provisions
of the planning Act and should be in compliance with the
ODP and that any change in the land-use or development
thereof should be with the permission of the planning
Authority; therefore, each time where there is a change in
the user of land or where there is any development altering
the nature of the building or use thereof requires a fresh
commencement certificate.
17. We also do not find any merit in the contention of Sri.
L. Govindaraj that the Petitioners and the similarly
circumstanced residents of the locality ought to have been
heard in the matter before the impugned resolution was
passed by the BDA. None of the legal rights of the
Petitioners or similarly circumstanced other residents of the
locality have been violated or impaired by the permission
granted by the BDA. Therefore, the Petitioners could not
insist that they have a right to be heard as a matter of law.
If the BDA has accorded permission in terms of the Zoning
Regulations and exercising power conferred upon it under
those Regulations and if the impugned resolution has no
effect of affecting any of the legal rights of the Petitioners,
the resolution cannot be faulted simply because no notices
were issued to the Petitioners and they were not heard in
the matter before the resolution was passed.
18. The other contention of Sri L. Govindaraj directed
against the amalgamation of two sites into one for the
purpose of construction of a building to house a college is
also not acceptable to us. The rationale of our opinion is
that if a site could be permitted to be used for an amenity
other than the amenities for which it was originally allotted
by the Planning Authority, in terms of law, simply because
two sites were permitted to be used for establishing a
permissible amenity in accordance with the Zonal
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Regulations, that fact itself would not vitiate the action of
the Planning Authority. The question to be addressed is
whether the sites in question individually or together could
be allowed to be used for establishing amenity or amenities
which is/are different from the amenity/amenities for which
the site/sites was /were originally allotted in terms of the
Zoning Regulations. Clause(b) of Zoning Regulations
undeniably empowers the Planning Authority to permit an
allottee of a site in a residential zone to use that site for
establishing a college. Even in such case, if the allottee
were to resort to the procedure envisaged under Section
14-A Planning Act, Clause (b), which is a statutory
provision, would be rendered otiose in other words a
deadletter. The judgments of this Court in Jayanagar 4th T.
Block Residents Association [ILR 1995 Kar 461.] (supra)
and Pee Kay Construction [ILR 1989 Kar 241.] (supra) cited
by Sri L. Govindaraj in support of his contention that
amalgamation of two residential sites into one is
impermissible, are of no help to sustain his argument
inasmuch as they could be distinguished on facts. In the
above judgments, the Court was not called upon to
interpret clause(b) of residential Zone in Annexure-II
appended to the Zonal Regulations.
19. It is true that the 3rd respondent, initially, under an
erroneous impression of law, applied to the BDA for grant
of permission for ‘change of land use’ under Section 14-A of
the Planning Act without realising that he should have
applied for permission of the BDA to use the building for
running a college under ‘special circumstances’ as provided
in the Zonal Regulations. When the said application filed
under Section 14-A of the Planning Act was being
processed, the 3rd respondent having realised that in his
case, question of obtaining permission for ‘change of land
use’ contemplated by Section 14-A of the Planning Act
would not arise, but, that he has to obtain permission from
the BDA for use of the building for running a college which
use falls under the ‘uses under special circumstances;
abandoned his application filed under Section 14-A of the
Act and, instead, sought permission of the BDA to run a
college in the building already put up in the property under
the ‘special circumstances’. The BDA, on consideration of
the relevant materials placed before it, passed a resolution
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on 19.10.2002 granting permission to the 3rd respondent
to run a college in the building under ‘special
circumstances’. The 3rd respondent remitted the entire
development fee on the order of the 4 BDA on 25.10.2002.
Admittedly, the college began to function from 26.10.2002.
When the matter stood thus. Writ Petitions were filed only
on 29.10.2002. The fact that the BDA had permitted the
use of the premises for running a college as per its
resolution dated 19.10.2002 was not disclosed in the Writ
Petitions. The above resolution of the BDA was also not
challenged in the Writ Petitions as initially presented.
However, during the pendency of the Writ Petitions, the
Writ Petitions were amended so as to include the prayer
seeking quashing of the resolution of the BDA dated
19.10.2002. There is no satisfactory explanation from the
Petitioners as to why they kept silent while the 3rd
respondent was constructing the building. The Petitioners
being neighbours of the property in which the building was
constructed, could not possibly plead and in fact did not
plead that they were not aware of the construction of the
building. Looking from that angle also, the equities of the
case are not in favour of the Writ Petitioners, but, in favour
of respondents 3 and 4.
20. In conclusion, with respect, we cannot sustain the
order of the learned single judge. We, therefore, allow Writ
Appeal Nos. 5211-5212 of 2003 and Writ Appeal Nos. 4980
and 5596 of 2003 and set aside the order of the learned
Single Judge dated 28th May, 2003 and dismiss Writ
Petition Nos. 39079 and 39344 of 2002. Consequently, Writ
Appeal Nos. 5488-5489 of 2003 are liable to be dismissed
and, we, accordingly dismiss those Writ Appeals. In the
facts and circumstances of the case, we direct the parties
to bear their respective costs in the Writ Petitions as well as
in the Writ appeals.
14.25. By relying on Alliance Business Academy’s
case, he submits that the Planning Authority is
empowered to permit the establishment of
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amenities even in residential areas under
special circumstances. While interpreting the
Zoning Regulations, the Court should give
context and meaning to every word of the
Regulations. The usage of the land in special
circumstances is important. Special
circumstances like the present for educational
purposes need not be enumerated in the zonal
regulations. Special circumstances would
enable the authorities to permit the usage of
the land for purposes other than those that
have been enumerated in the Zonal
Regulations. Thus, even if education is not a
zone specified in the Zonal Regulation, the
State can permit the usage of any particular
land for educational purposes, even though
situated in the residential zone.
14.26. He relies on the judgment of the Hon’ble Apex
Court in the case of Jayanagar 4th T Block
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Residents Association vs. Gnana Mandir
Trust11 more particularly Paras 12 to 18
thereof, which are reproduced hereunder for
easy reference:
12. There is another Sanskrit Shloka from Uttar Geetha
and Lord Krishna says:–
Aahar Nidra Bhaya Maithhunancha
Samaanamethat Pashubhinaraanamm
Jnaanam Naraanamadhike Visheshh
Jnaanaviheenah Pashoobhissamaanaha;
13. Means – food, sleep, fear and sex are common to
animals, birds and to man. There is no difference in the
enjoyment of pleasures. What is special to man is Jnanam
i.e., learning and knowledge that directed towards attaining
the supreme being. One who is devoid of learning and
knowledge (Jnanam) is at par or is equivalent to an animal.
14. Such is the role of education in the building and dignity
of human character. Therefore the need of the time is no
doubt to expand the sphere of education and learning in
the proper sense, which may inculcate in one the traits of
humanity, the character and a sense of honour, apart from
training the one for worldly life. It has the great effect in
the building up of the character. So it is beyond doubt the
need of educational institutions and establishments thereof
in the areas which are inhabited by human beings or near
the areas of human habitation where children, including
those belonging to the down trodden classes or the poor
men also may be able to attend schooling.
15. Thus considering this aspect of the matter, in my
opinion, ordinarily at least educational institutions11
1994 SCC Online Karnataka 227
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imparting general education cannot be required to be
established at places far off distances and beyond the place
of human habitation. A look to the provisions of Section 12
of the Karnataka Town and Country Planning Act, indicates
the manner in which the development and improvement
work of entire Planning Area is to be carried out and
regulated, is to be indicated by the Outline Development
Plan and that the illustrations are given. Clause (a)
provides for a general land-use plan and zoning of the land-
use for residential, commercial, industrial, agricultural,
recreational, educational and other public purposes. It
further provides that along with the Outline Development
Plan, certain other particulars have also got to be published
and clause (iii) of Section 12(2) provides that Regulations
in respect of each land use zone to enforce the provisions
of such Plan and explains the manner in which necessary
permission for developing any land can be obtained from
the Planning Authority. Appendix-I to B.D.A., Zonal
Regulations and in particular Annexure-I to regulations
dealing with zonal boundaries provides under head
“Residential Zones”, under head – 1.2.1. – which reads as
under:–
“1.2.1. Residential Zones.– Uses that may be permitted:–
Dwellings, hostels including working women and gents
hostels, dharmashala, places of public worship, schools
offering general educational courses, Libraries, post and
telegraph offices, KEB counters, BWSSB counters, non-
profit clubs and semi-public recreational uses, milk booths
and doctors’ consulting rooms, offices of advocates and
other professionals”.
16. A reading of this Regulation per se shows that in the
Residential Zone user can be permitted for the purpose of
establishing places of public worship or schools of general
education. A reading of this Regulation per se shows that
as regards the schools or running of the schools, where
general education is imparted can be established. It means
schools running educational classes commencing from
Nursery to High School classes may be permissible in every
case. In the present case the Institution that is being run
consists of a School with Nursery, Primary and thereafter
up to High School are being run. In this case I also find that
the requisite permission of the Planning Authority under
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Section 14(2) read with Section 15 of the Karnataka Town
and Country Planning Act, has also been granted. Annexure
R3 dated April 13, 1993 is a photostat copy of that
Commencement Certificate, which says permission is
hereby granted under sub-section (1) of Section 15 of the
Karnataka Town & Country Planning Act, 1961 read with
Rule 35 of the Karnataka Planning Authority Rules, 1965 to
Smt. Hema Narayan, Managing Trustee and Principal,
Gnyana Mandir Trust (Regd)., No. 163/D 6th Main Road,
2nd Cross, J.P. Nagar, III Phase, Bangalore-78, for
construction of school building at premises No. 1163, 26th
‘A’ Main, 4th ‘T’ Block, Jayanagar, Bangalore measuring
4,050 sq. ft., subject to the conditions mentioned in the
Annexure. That being the position, the user of the building
or the land for the purpose of running the school by the
respondents cannot be said to be a change in user, under
the provisions of law. Instead, it stands in conformity with
the provisions of law, when such changes have been made
after obtaining the permission of the concerned authority.
When I so hold, I find support for my above view from the
Decision of this Court in the case of S. Vijaya Shankar v.
Corporation of the City of Bangalore [ W.P. No. 12285 of
1985, DD: 7-8-1986.] . Learned Single Judge, after having
quoted Section 14(2) of the Act, has been pleased to
observe as under:–
“From the very expression used and the reference made to
sub-section (1) of Section 14 of the Act, the meaning of
sub-section (2) of Section 14 of the Act becomes clear. The
Planning Authority may permit change in land use or
development provided such permission is in writing and in a
Commencement Certificate that shall be in the prescribed
form, the prescription necessarily being by the Rules
framed under the Act”.
17. After making reference to sub-section (1) of Section 15
of the Act, His Lordship further observed as under:–
“Strangely enough, sub-section (2) of Section 15 of the
Act, which has been extracted above, is in conformity with
the normal practice of the draftsman that if such
permission prayed for in an application is not granted nor
refused within three months from the date of such
application, it shall be deemed to have been granted. That
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itself points to the extent of relaxation that is possible in
the scheme of the Act to reduce the rigour of the
prohibition imposed under sub-section (1) of Section 14 of
the Act.”
18. Thus, once the permission has been granted, the rigour
of the bar to Section 14(1) has been reduced and as such it
can be said that allottee or transferee from him i.e., the
present respondents when they did construct the School or
when they are constructing the School building, by the act
of constructing the building for running the School to
impart general education, they have not committed any
illegality or breach of Municipal Law and as such the
present Petition, the reliefs claimed therein cannot be
granted nor can respondents 3 to 5 be directed to demolish
the building standing on B.D.A., sites 1163 to 1166, 26th
‘A’ Main, 4th ‘T’ Block, Jayanagar, Bangalore which is in
possession and enjoyment of respondents 1 and 2. Children
are the future of the Nation. None should have any grudge
with the education and with educational institutions and
establishments, which really impart education to them to
make them perfect citizens, full of character and
knowledge. If the Petitioners have any other grievance of
the personal nature, it is open to them to have recourse to
the remedies in the civil Court, for suitable directions to
minimise rigour of their trouble or of interference if any,
with their peaceful living, in the form of some injunction
order.
14.27. By relying on Gnana Mandir’s case, he
submits that educational institutions imparting
general education cannot be required to be
established at distant places. Schools offering
general educational courses, libraries, post and
telegraph offices, KEB counters, BWSSB
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counters, etc. are required to be as close to the
residential area as possible. Once a change of
land use is permitted, the usage of the land as
per the changed land use would be in
conformity with the Zoning Regulation. It
cannot be said to be contrary to the Zoning
Regulations. The rigour or bar under Section 14
would not apply to the said property once
change of land use has been granted. He
theretofore submits that the change of land use
has been granted in a proper manner by
following the regulations due procedure cannot
be found fault with.
15. Learned AGA appearing for Respondents No.2, 5 and
8 would submit that:
15.1. The procedure under Section 14A of the KTCP
Act has been followed by the Government. At
any time after the date on which the master
plan comes into operation, the Planning
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Authority may, with the previous approval of
the State Government, allow a change of land
use. The Planning Authority, in this case, had
recommended the change of land use, which
was approved by the State Government, and
thereafter, the Planning Authority allowed the
change of land use. In the present case, the
change of land use has been granted in the
public interest, there being a requirement to
establish an educational institution. The
proposal for change of land use had been
published in Samyuktha Karnataka and the
Indian Express, having circulation in the area.
No objection was received in relation thereto.
Thereafter, the Government, considering the
recommendation of the BDA, has approved the
same.
15.2. Newspaper publication having been taken out
on 22-04-2009, no objections had been
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received. On 6-06-2009, a recommendation
was made for a change of land use, and a
Government Order was passed on 7-09-2009,
after considering all the relevant factors.
Therefore, neither the recommendation made
nor the sanction permitted is in violation of any
particular law.
15.3. He submits that despite several attempts being
made to regulate the traffic, since there are
buses and transport vehicles which have been
used by the students to be dropped at the
School, it has become difficult for the traffic
police to control the same.
16. Sri.B.S.Sachin, learned counsel for the BDA would
submit that:
16.1. The BDA has acted in conformity with the Zonal
Regulation and the KTCP Act. It is submitted
that the traffic problem is not the obligation of
the BDA. The same is required to be taken care
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of by the BBMP and the traffic police. The
sanction granted to the new building, insofar as
the BDA is concerned, is proper and correct.
16.2. As regards the fire clearance, etc., the same
would come under the purview of the BBMP.
The BDA is only concerned with the sanctioning
of change of land use, which has been properly
done by the BDA.
16.3. The application filed by NET has been
considered and a resolution passed by the BDA
on 6-6-2009, which came to be approved by
the Government on 7-9-2009. Accordingly, the
order has been passed by the BDA on 28-10-
2009, allowing the change of land use. All the
aspects being considered by the BDA and the
State Government, the Petitioners cannot find
fault with the orders passed.
16.4. He also reiterates that no objection having been
received to the publication in Samyukta
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Karnataka and Indian Express from the
Petitioners or anybody else, the matter was
proceeded with. The restrictions and or
limitations imposed on Zoning Regulation,
2007, and Revised Master Plan 2015 have no
application to the present facts.
16.5. The ancillary usage in terms of Chapter 4.1.2 (i)
permits the running of the School in a
residential area. Thus, he also reiterates that
the establishment of a School in a residential
area is permitted and no one can claim to the
contrary, more so the Petitioners.
16.6. Section 14A of the KTCP Act is an independent
provision and the same is not controlled by any
provision of the Zoning Regulations. The
change of land use, therefore, granted by the
BDA is proper and correct. If there is any
violation of the sanctioned plan, it is the BBMP’s
responsibility to take the necessary action.
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16.7. He relies upon the decision of this Court in the
case of Sri.Nagendra Rao R Teradal vs.
State of Karnataka & others12 more
particularly Para 4 thereof, which is reproduced
hereunder for easy reference:
4. In the considered opinion of this Court, there was
no need for the Petitioner to have approached the
Deputy Commissioner, seeking change of land use.
As noticed hereinabove, such powers are vested
with the Urban Development Authority which is the
Planning Authority under the provisions of the
Karnataka Town and Country Planning Act, 1961, to
permit any change in the user of the land contrary
to what has been reserved in the Master Plan.
16.8. He submits that the change of land use comes
exclusively under the purview of the authorities
under the KTCP Act. The Deputy Commissioner
would not have any role to play therewith.
Hence, there is no conversion which is required
to be obtained as contended by the Petitioners.
16.9. He also relies upon the decision in Alliance
Business Academy‘s case which has been
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relied upon by Shri S. M. Chandrasekhar for the
very same purposes.
16.10. He relies upon the decision of the Hon’ble Apex
Court in the case of State of Rajasthan &
Ors., vs. D.R.Laxmi & ors.,13 more
particularly Para 10 thereof, which is
reproduced hereunder for easy reference:
10. The order or action, if ultra vires the power, it becomes
void and it does not confer any right. But the action need
not necessarily set at naught in all events. Though the order
may be void, if the party does not approach the Court within
reasonable time, which is always a question of fact and have
the order invalidated or acquiesced or waived, the discretion
of the Court has to be exercised in a reasonable manner.
When the discretion has been conferred on the Court, the
Court may in appropriate case decline to grant the relief,
even if it holds that the order was void. The net result is
that extraordinary jurisdiction of the Court may not be
exercised in such circumstances. It is seen that the
acquisition has become final and not only possession had
already been taken but reference was also sought for ; the
award of the Court under Section 26 enhancing the
compensation was accepted. The order of the appellate
court had also become final. The order of the appellate court
had also become final. Under those circumstances, the
acquisition proceedings having become final and the
compensation determined also having become final, the
High Court was highly unjustified in interfering with and in
quashing the notification under Section 4 [1] and declaration
under Section 6.
13
(1996) 7 Supreme 753
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16.11. By relying on D.R.Laxmi‘s case, he submits
that even if an order is void, the aspect of delay
and latches would have to be taken into
consideration. The party does not approach the
Court within a reasonable time, which is always
a question of fact to have the order invalidated;
it is the discretion of the Court whether to
invalidate it or not. The Court can, when there
is a delay, decline to grant the relief, even if the
order was void.
16.12. The change of land use, having been granted
way back in the year 2009, was challenged only
by way of amendment in the year 2019. This
delay of nearly 10 years in challenging the
same, even though the present petition was
pending, it would enure to the benefit of the
BDA and the private Respondent. On account of
the delay, the petition is required to be
dismissed.
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17. Sri. Krishna B.V., learned counsel for the BBMP would
submit that:
17.1. The plan sanctioned by the BBMP is in
accordance with the change of land use
permitted by the BDA, taking into consideration
the requirements of building bylaws. The BBMP
is not concerned with the operation of the
building plan and or the sanction of change of
land use.
17.2. Insofar as the traffic problems are concerned,
the same is for the Traffic Department to
consider and address, and not for the BBMP.
The BBMP, taking into consideration the
applicable Building Bylaws, taking into
consideration the setbacks required, the FAR
are applicable, and the car parks required, has
approved the plan. The construction carried out
by NET is in accordance with law, there being
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no infirmity in the same, the above Writ Petition
is required to be dismissed.
18. Faced with the above situation, learned counsel for
NET has filed an affidavit of the Principal of the
School – NET stating that she has advised her staff,
students and the respective parents to refrain from
parking their vehicles on 12th ‘A’ Main and 13th Main
Road. She has also undertaken to notify her staff,
students and parents of the students through the
NPS App and telephonic messages, apart from fixing
a notification on the notice board. The children will
be dropped off from 7.45 am to 8.30 am and picked
up between 2.15 pm to 2.45 pm. Between 8.30 am
to 2.15 pm, there will be no vehicle which will be
parked on the said Roads.
19. Respondent No.6 – Chairman of the Karnataka State
Pollution Control Board, Respondent No.7 – Deputy
Secretary, Central Board of Secondary Education,
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Respondent No.9 – Bangalore Water Supply Board,
and Respondent No.10, Bangalore Electricity Supply
Company Limited have been deleted vide Order
dated 16-3-2022 of this Court.
20. Heard Sri.S.S.Naganand, learned Senior Counsel for
Petitioners, Sri.S.M.Chandrashekar, learned Senior
Counsel for Respondent No.1, Sri.Mahantesh Shettar,
learned AGA for Respondents No.2, 5 and 8,
Sri.Krishna B.V., for Sri.H.N.Prashanth Chandra.,
learned counsel for Respondent No.3, Sri.B.S.Sachin,
learned counsel for Respondent No.4 and perused
papers.
21. The points that would arise for the consideration of
this Court are:
1) Whether a residential plot situated in a
residential area can be made use of for
running of a School? If so, to what extent?
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2) Whether on account of the fact that a plot
in a residential area can be used for
running an educational institution, can a
change of land use be permitted changing
the user of land from residential to
educational purposes?
3) Whether the procedure followed by the
BDA and the State Government in
approving the change of land use in the
present matter is proper and correct?
4) Whether there is any delay, laches and
acquiescence on part of the Petitioners,
disentitling the Petitioners from grant of
reliefs as contended by the Respondents?
5) Whether the Petitioner has an alternative
efficacious remedy and non-availment of
the said alternative efficacious remedy
disentitles the consideration of the reliefs
sought for in the present petition?
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6) What order?
22. Answer to Point No.1: Whether a residential
plot situated in a residential area can be made
use of for running of a School? If so, to what
extent?
22.1. Submission of Sri.S.S.Naganand, learned Senior
counsel appearing for the Petitioners, is that
the entire area where NET has established its
school is a residential area. Initially, NET had
been allotted a CA site for the purpose of
construction of a school, the same being a civic
Amenity Site. Subsequently for the purpose of
expansion of the school, NET started buying out
plot after plot around the CA Site to establish
its offices, ancillary activities and insofar as the
present petition is concerned, NET bought Sites
No.3367/H and 3367/I in 13th Main Road for the
purpose of construction and running of a
Montessori, Nursery and Primary School.
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Residential houses which were situated on the
opposite plot were demolished, and a plan
sanction was applied for in respect of the
above. His submission is that, since there were
residential houses situated on those plots and
the said plots were classified in the residential
zone, no school could be constructed and run
on the said sites.
22.2. Insofar as the Civic Amenity site is concerned,
the Petitioners have no objection since the
school is a Civic Amenity. An allotment could be
made by the BDA of a Civic Amenity site for the
purpose of construction of a school. His
submission and objection are to that of
construction of a school building in a residential
plot, which is contrary to the Zoning
Regulations.
22.3. By referring to Chapter 4.1, the submission is
that education is not one of the permissible
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land uses under the residential category. The
main use of the property being residential, it is
only the activities which are classified under
‘T1’ category and ‘R’ category for which the plot
could be made use of as a main purpose and
ancillary uses could only be in respect of ‘C2’,
‘I2’, ‘U3’. The ancillary use is restricted to 20%
of the total built up area or 50 square meters,
whichever is higher. Thus, the submission is
that insofar as the present plots are concerned,
the size being 1003.34 square meters that is
10,800 square feet, the frontage being 36.50
square meters and the road width being 12
meters, it is only 20% of 1,003.34 square
meters of land which could be used for the
ancillary purposes amounting to 200.668
square meters or 2160 square feet.
22.4. It is only on account of change of land use
which has been obtained that a contention has
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been taken up that the entire land could be
used for the purpose of education by
construction of a school.
22.5. Per contra, the submission of
Sri.S.M.Chandrasekhar, learned senior counsel
appearing for NET is that there is no blanket
prohibition for usage of the land for educational
purposes. Education being permissible as
ancillary use, change of land use is permissible
and as such, what has to be considered is the
usage of the land post the change of land use.
22.6. What I propose to address in answer to the
present point is as regards usage of the
property dehors a change of land use. The
aspect of change of land use will be considered
subsequently.
22.7. Insofar as usage of the aforesaid property
situated in a Residential Main Zone is
concerned, the same is as indicated and
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covered by Regulation 4.1, which is reproduced
hereunder for reference:
4.1 RESIDENTIAL (MAIN)
4.1.1) Description
The areas of the city which have predominantly
residential land use pattern is considered for the
Residential (Main) zone. This includes many old
areas of the city such as Parts of Malleswaram,
Richmond Town, Vasant Nagar, Jayanagar,
Vijayanagar, Visveswarapura, Rajajinagar, RT
Nagar etc.
4.1.2) Regulations
i) Permissible land uses:
Main Land use: R & T1
Ancillary Land use category: C2, I-2 & U3
Ancillary use is allowable to 20% of the
total built up area or 50 sq.m. which ever is
higher.
If the Plot size is more than 240 sq.m,
having a frontage of 10.0 m or more, and the
abutting road is more than 18.0 m width, then
ancillary uses can be used as main use.
Table 10: FAR and Ground Coverage in Residential
(Main)Sl. Plot size (sq.m) Ground FAR Road width
No. Coverage (m)
(Max)1 Up to 360 Up to 75 % 1.75 Up to 12.0
2 Above 360 up Up to 65 % 2.25 Above 12.0
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to 1000 up to 18.0
3 Above 1000 up Up to 60 % 2.50 Above 18.0
to 2000 up to 24.0
4 Above 2000 up Up to 55 % 3.00 Above 24.0
to 4000 up to 30.0
5 Above 4000 up Up to 50 % 3.25 Above
to 20000 30.m
ii) Notes:
a) Setbacks shall be in accordance with Table.8
or Table.9 depending on the height of
proposed building and the plot size.
b) If the road width is less than 9.0 m, then the
maximum height is restricted to 11.5 meters
or stilt +GF+2 floors (whichever is less)
irrespective of the FAR permissible.
c) Multi dwelling units (Apartments) shall be
allowed only on plot sizes of above 360 sq.m
in the I and II Ring and on plots above 750
sq.m in the III Ring. In both cases, the road
width shall be more than 9.0m.
d) TDR is applicable as per rules.”
22.8. A perusal of Regulation 4.1 would indicate that
any property situated in a Residential Zone
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could be put to use for purposes as detailed in
the Zonal Regulation for residential main use,
which would include plotted residential
developments, villas, semi-detached houses,
apartments, hostels, dharmashala, multi-
dwelling houses, service apartment and group
housing. These being the permissible uses in ‘R’
category of land, the said land cannot be used
for any other purposes as a main use.
22.9. However, in terms of Regulation 4.1, ancillary
usage of the said land situated in residential
zone is permitted for the purposes described in
categories ‘C2’, ‘I2’ and ‘U3’, which have been
reproduced hereinabove. Insofar as the present
lis is concerned, ‘C2’ and ‘I2’ would not be
attracted. What would have to be considered is
the category ‘U3’ which permits the land to be
used as ancillary purpose for ‘U1’, ‘U2’ and ‘U3’.
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The said categories ‘U1’, ‘U2’ and ‘U3’ are
reproduced hereunder for easy reference:
Table 6: Permissible land uses in Public and Semi Public
category:
U1 Urban amenities
1 Sub offices of utilities up to 50 sq.m
2 Police stations, post offices
3 Primary schools subject to space standards
5 Parks, Play grounds and Maidans
6 Telecommunication /microwave under special
case
7 Nursery crèches
8 Spastic Rehabilitation centers, Orphanages,
Govt dispensaries
9 Public distribution system shops
10 Fire stations
11 Bill collection centers
12 Traffic and Transport related facilities
13 Places of worship, Dharmashala, hostels
14 Dhobi Ghat
15 Broadcasting and Transmission stations
16 Public library
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U2 Urban amenities
1 All uses of U 1 are permissible.
2 Burial grounds, crematorium under special
circumstances.
3 Nursery school subject to a plot size of min
300 sq.
4 Places of congregation
U3 Urban amenities
1 All uses of U1 and U2 are permissible
2 Higher primary schools, Integrated Residential
Schools
3 Health centers and Hospital
4 Research institutions subject to the size
5 Government buildings, auditoriums, cultural
complexes,
6 Educational Institutions, Colleges
22.10. A perusal of above Regulation would indicate
that the land which comes under the
Residential Main Zone, the Permissible Main
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Land uses are ‘R’ and ‘T1’ and the Ancillary
Land use is as per category ‘C2’, ‘I2’ and ‘U3’
with the ancillary use allowable to 20% of total
built up area or 50 square meters whichever is
higher. If the plot size were to be more than
240 square meters, having a frontage of 10
meters or more, and the abutting road is more
than 18 meters wide, then the ancillary use can
be used as a main use.
22.11. As per the Notes indicated above, if the road
width is less than 9 meters, then the maximum
height would be restricted to 11.5 meters. If
the road width were to be up to 12 meters, the
FAR available would be 1.75 with a ground
coverage of up to 75%. Though the current
property is 1,003.34 square meters, the road
width being 12 meters, the FAR, which would
be available, would be 1.75. The plot area
being 1,003.34 square meters, FAR being
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1.75., construction which could have been put
up would be 1,755.845 square meters. Out of
which 20% could be used for an ancillary
purpose, that is a school amounting to 351.169
sq mtrs or 3,779.95 sq feet.
22.12. This Regulation 4.1 was amended in the year
2014, which, after the amendment, reads as
under:
4.1 RESIDENTIAL (MAIN)
4.1.1) Description
The areas of the city which have predominantly
residential land use pattern is considered for the
Residential (Main) zone. This includes many old
areas of the city such as Parts of Malleswaram,
Richmond Town, Vasant Nagar, Jayanagar,
Vijayanagar, Visveswarapura, Rajajinagar, RT
Nagar etc.22.13. After amendment, Clause 4.1.2 reads as under:
4.1.2) Regulations
i) Permissible land uses:
• Main land use category: R & T1
• Ancillary land use category: C2, I-2 & U3
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• Ancillary use is allowable upto 20% of the
total built up area or 50 sq.m. whichever is
lower, only in plots abutting to roads
having width 12m or more.
• In Ring II, if the plot size is more than 1000
sq.m. having a frontage of 10m or more
and the abutting road is more than 18m
width, then ancillary uses can be used as
main. use.
(b) in Ring III:
• Main land use category: R & T1
• Ancillary land use category: C2, I-2 & U3
• Ancillary land use is allowable upto 20% of
total built up area or 50 sq.m. whichever is
lower, only in plots abutting roads having
width 12m or more.
• If the plot size is more than 1000 sq.m,
having a frontage of 10m or more and
abutting road is more than 18m width, then
ancillary uses can be used as main use.
Note: Space Standards as at Table 7 are
applicable.
Table 10: FAR and Ground Coverage in Residential
(Main)Sl. Plot size (sq.m) Ground FAR Road width
No. Coverage (m)
(Max)1 Up to 360 Up to 75 % 1.75 Up to 12.0
2 Above 360 up Up to 65 % 2.25 Above 12.0
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to 1000 up to 18.0
3 Above 1000 up Up to 60 % 2.50 Above 18.0
to 2000 up to 24.0
4 Above 2000 up Up to 55 % 3.00 Above 24.0
to 4000 up to 30.0
5 Above 4000 up Up to 50 % 3.25 Above
to 20000 30.m
ii) Notes:
a) Setbacks shall be in accordance with Table.8
or Table.9 depending on the height of
proposed building and the plot size.
b) If the road width is less than 9.0 m, then the
maximum height is restricted to 11.5 meters
or Stilt+GF+2 floors (whichever is less)
irrespective of the FAR permissible.
c) Multi dwelling units (Apartments) shall be
allowed only on plot sizes of above 360 sq.m
in the I and II Ring and on plots above 750
sq.m in the III Ring. In both cases, the road
width shall be more than 9.0m.
d) TDR is applicable as per rules.”
22.14. There is a further classification of the land as
Ring I, Ring II and Ring III under Clause 4.1.2.
Ancillary use is not permissible under Ring I. It
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is permitted insofar as Ring II and Ring III are
concerned.
22.15. In Ring II, if the plot size is more than 1000
square meters, with a frontage of 10 meters or
more, and the abutting road is more than 18
meters, then the ancillary use can be used as
the main use. The ancillary use as indicated
above is in respect of ‘C2’, ‘I2’, and ‘U3’, and
such use is allowable up to 20% of the total
built-up area or 50 square meters, whichever is
lower, in plots abutting roads having a width of
12 meters or more. That is to say, unless the
plot has a road width of 12 meters or more,
even the ancillary use is not permissible and if
land is situated in Ring II, if the plot is more
than 1000 square meters, having a frontage of
10 meters, abutting a road having a width of 18
meters, then the ancillary use can be permitted
as a main use.
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22.16. In Ring III, again the ancillary use is allowable
upto 20% total built up area or 50 square
meters, whichever is lower. Only in plots,
abutting roads having 12 meters or more,
which is similar to Ring II above and if the plot
size is more than 1000 square meters, having a
frontage of 10 meters or more and the abutting
road is more than 18 meters wide, then the
ancillary uses can be used as a main use.
22.17. Thus, in respect of both Ring II and Ring III,
there is no difference as such. Without change
of land use, a plot falling under residential main
can only be used for the usages indicated under
a ‘residential category’ and, ‘T1’ category which
are reproduced hereunder for easy reference:
Table 1: Permissible Land uses in Residential
categoryR Residential land uses
1 Plotted residential developments2 Villas, semi detached houses
3 Apartments, Hostels, Dharmashala
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4 Multi Dwelling Housing, Service Apartments
65 Group Housing (Development Plans)
Table 5: Permissible Land uses in Transportation
Category
T1 Transportation zone
1 Bus bays, Auto stand, Bus shelters,
information kiosk
2 Metro stations, parking areas
3 Multi level car parking
4 Filling stations, service stations
22.18. The ancillary use as indicated above is for ‘C2’,
‘I2’ and ‘U3’ and such ancillary use is restricted
to 20% of the total built-up area or 50 square
meters, whichever is lower, provided the plots
are abutting roads having a width of 12 meters
or more. As indicated supra, if the plots are
abutting a road with less than 12 meters in
width, then no ancillary use is permissible.
22.19. The Zonal Regulations were amended in 2014.
Since the subject matter of the present
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proceedings is with regard to the change of
land use in the year 2009-10, it is the
Regulation as on that date which should be
required to be applied to the present case.
22.20. Hence, I answer Point No.1 by holding that a
plot situated in residential area can be used for
running of a school only as an ancillary
purpose:
22.20.1. Prior to the amendment in the year 2014,
to an extent of 20% of the total built-up
area or 50 square meters, whichever is
higher, and nothing more than that. There
being no restriction on size of the plot or
the width of road abutting the property. If
the Plot size is more than 240 sq.m,
having a frontage of 10.0 m or more, and
the abutting road is more than 18.0 m
width, then ancillary uses can be used as
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main use, without a change of user of
land being obtained.
22.20.2. Post the amendment in the year 2014 to
an extent of 20% of the total built-up area
or 50 square meters, whichever is lower,
so long as the plot abuts a road having a
width of 12 meters or more, there being
no restriction as regards the size of the
Plot. If the plot were to be more than
1000 square meters, having a frontage of
10 meters or more, and the abutting road
is more than 18 meters wide, then the
ancillary use can be used as a main use,
without a change in user of land being
obtained.
23. Answer to Point No.2: Whether on account of
the fact that a plot in a residential area can be
used for running an educational institution, can
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a change of land use be permitted changing the
user of land from residential to educational
purposes?
23.1. The submission of Sri.S.M.Chandrashekhar,
learned senior counsel appearing for NET is that
the ancillary use being permitted to be ‘U3’,
‘U3’ providing for usage of the property for
higher primary schools, integrated residential
schools, educational institutions, colleges, it
also providing for usage as permitted on ‘U1’
and ‘U2’. ‘U2’ enabling the use of the property
for the establishment of a nursery school,
subject to a plot size of a minimum of 300
square meters, and ‘U1’ permitting the usage of
the land for primary schools, subject to space
standards. Under ‘U1’, ‘U2’ and ‘U3’, a property
in a residential area being capable of being
used for educational purposes as an ancillary
use, NET has applied for a change of land use,
which has been granted, and such a change of
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land use cannot be questioned by the
Petitioners.
23.2. The submission of Sri.S.S.Naganand, learned
senior counsel for the Petitioners to the Contra,
is that the officers of the respondents have
acted in great haste and permitted the change
of land use within a short period of time to
facilitate NET. The land being situated in the
residential main zone, the user of the said land
could not be permitted to be changed to
educational purposes. The submission is also
that education purpose not being a category of
zone, a change of land use cannot be made as
regards a particular use but could only be made
as a particular zone. It is these contentions
which are required to be considered by me to
answer the above point.
23.3. It is not in dispute that the concerned plots are
situated in residential areas. It is also not in
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dispute that the said plots have been used for
the purpose of the construction of a Montessori
Nursery and Primary School, which is used for
educational purposes. Such usage has been
made after obtaining a change of land use from
the BDA, from residential to educational
purposes.
23.4. Though the submission of Sri.S.S.Naganand,
learned senior counsel, is that change of land
use can only be made as regards a change of
zone, it is Section 14 and Section 14A of the
KTCP Act, 1961, which would have to be
required to be considered in this regard.
23.5. Section 14 and Section 14A of the KTCP Act,
1961 is reproduced hereunder for easy
reference:
14. Enforcement of the Master Plan and the
Regulations–1[(1) On and from the date on
which a declaration of intention to prepare a
Master Plan is published under sub-section (1)
of section 10, every land use, every change in
land use and every development in the area
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covered by the plan subject to Section 14-A
shall conform to the provisions of this Act, the
Master Plan and the report, as finally approved
by the State Government under sub-section (3)
of section 13.
(2)[x x x], No such change in land use or
development as is referred to in sub-section (1)
shall be made except with the written
permission of the Planning Authority which shall
be contained in a commencement certificate
granted by the Planning Authority in the form
prescribed:
[Provided that where the use or change of land
use under this section needs the diversion of
agricultural land to non-agricultural purposes,
such use or change of use shall not be
permitted, unless permission is obtained in
accordance with the provisions of the Karnataka
Land Revenue Act, 1964 for such diversion.
Explanation.– For the purpose of this section,–
(a) the expression “development” means the
carrying out of building or other operation in or
over or under any land or the making of any
material change in the use of any building or
other land;
(b) the following operations or uses of land shall
not be deemed to involve a development of any
building or land, namely:–
(i) the carrying out of works for maintenance,
improvement or other alteration of any building,
being works which affect only the interior of the
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building or which do not materially affect the
external appearance of the building;
(ii) x x x x x
(iii) x x x x x
(iv) the use of any building or other land within
the curtilage of a dwelling house for any purpose
incidental to the enjoyment of the dwelling
house as such;
(v) when the normal use of land which was
being temporarily used for any other purpose on
the day on which the declaration of intention to
prepare the [Master Plan] is published under
sub-section (1) of section 10 is resumed;
(vi) when land was normally used for one
purpose and also on occasions for any other
purpose, the use of the land for that other
purpose on similar occasions.
(3) Every application for permission under sub-
section (2) shall be accompanied by a plan,
drawn to scale showing the actual dimensions of
the plot of land in respect of which permission is
asked, the size of the building to be erected and
the position of the building upon the plot and
such other information as may be required in
this behalf by the Planning Authority.
14A. Change of land use from the [Master Plan]:
(1) At any time after the date on which the
[Master Plan] for an area comes into operation,
the Planning Authority may, with the previous
approval of the State Government, allow such
changes in the land use or development from
the [Master Plan] as may be necessitated by
topographical cartographical or other errors and
omissions, or due to failure to fully indicate the
details in the plan or changes arising out of the
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implementation of the proposals in [Master Plan]
or the circumstances prevailing at any particular
time, by the enforcement of the plan:
Provided that,–
(a) all changes are in public interest;
(b) the changes proposed do not contravene any
of the provisions of this Act or any other law
governing planning, development or use of land
within the local planning area; and
(c) the proposal for all such changes are
published in one or more daily newspapers,
having circulation in the area, inviting objections
from the public within a period of not less than
fifteen days from the date of publication as may
be specified by the Planning Authority.
(2) The provisions of sub-section (2) and (3) of
section 14 shall apply mutatis mutandis to the
change in land use or development from the
[Master Plan].
(3) x x x x x”
23.6. A perusal of Sub-Section (2) of Section 14
would indicate that no change of land use or
development shall be made except with the
written permission of the planning authority,
which shall be contained in a commencement
certificate granted by the planning authority.
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23.7. A perusal of sub-Section (1) of Section 14A
would indicate that any time after the date on
which the Master Plan for an area comes into
operation, the Planning Authority may with
previous approval of the State Government
allow such changes in the land use or
development from the Master Plan as may be
necessitated by topographical or cartological or
other errors and omissions or due to failure to
fully indicate the details in the plan or changes
arising out of the implementation of the
proposals in the Master Plan or circumstance
prevailing at any particular time by the
enforcement of the plan provided that all such
changes are in public interest do not come or
do not contribute any of the problems of the act
or any other law governing planning
development or use of land and the proposal.
Such changes are published in one or more
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daily newspapers that are in circulation in the
area, inviting objections from the general
public.
23.8. The change of land use which is contemplated
under sub-Section (1) of Section 14A, is to
allow such changes in land use or development
from the Master Plan. Therefore, what is
contemplated is a change of land use or the
development to which the land could be put to.
The same has no relevance to Zoning. It has
only relevance to the user.
23.9. The Zoning of land, as indicated supra, is in
terms of Clause (b) of Regulation 1.2, which
classifies the land use zones as Residential (R),
Commercial (C), Industrial (I), Public and semi-
public (P and SP), Traffic and Transportation, (T
and T), Public Utilities (PU), Park and Open
Spaces (P), Unclassified (UC), Agricultural Land
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(AG). The land use permitted is further
categorised by various codes for Residential as
‘R’, for Commercial as C1 to C6 and I1 to I4, for
Transportation as T1 to T4, and Public and
semi-Public as U1 to U4.
23.10. What we are concerned with, in the present
matter, is a land which is zoned as residential
and the uses to which it may be permitted. A
land zoned as residential is denoted with the
letter ‘R’. It is Regulation 4.1 which would be
applicable. Regulation 4.1, as it stood from
2007 to 2014, provided for the main land use
to be ‘R’ and ‘T1’ and the ancillary land use
category to be ‘C2’, ‘I2’ and ‘U3’.
23.11. In the present matter, we are not concerned
with the main land use since the property has
not been used for residential or transportation.
We are also not concerned with ‘C2’ and ‘I2’
being the ancillary land use. What we are
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concerned is the ancillary land use of ‘U3’. The
usage of the land under ‘U3’ also permits the
same usage as under ‘U1’ and ‘U2’, which have
been reproduced hereinabove.
23.12. A perusal of such usage would indicate that
such usage has been expanded under the
categories ‘U1’, ‘U2’ and ‘U3’. It is not restricted
to a mere zoning of public and semi-public, but
provides for urban amenities. As described in
detail in the aforesaid table at ‘U1’, ‘U2’ and
‘U3’. While segregating the same, in the Zonal
Regulation, what has been mentioned is
permissible land use in the public and semi-
public categories. It does not refer to zones in
the public and semi-public categories, but
refers to permissible land use.
23.13. Juxtaposing the permissible land use with the
change of land use contemplated under Section
14A, it can be seen that what Section 14A
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permits is changes in the land use or
development that is to say changes from land
use from residential or land use or development
from residential to any other purpose and not
zoning.
23.14. In the present case, we are concerned with a
change of the user of land from residential to
educational purposes. ‘U1’ as indicated supra
provides for the land to be used as primary
schools subject to space standards, ‘U2’
provides for usage as a nursery school subject
to a plot size of minimum 300 square meters,
‘U3’ provides for usage of land as higher
primary school, integrated residential schools,
educational institutions and colleges.
23.15. Thus, the ancillary use under ‘U3’ would include
all the above uses under ‘U1’ and ‘U2’ and in
terms of Regulation 4.1.2, the ancillary use is
allowable to 20% of total built-up area or 50
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square meters, whichever is higher. In that
view of the matter, as rightly contended by
Sri.S.M.Chandrasekhar, learned senior counsel
for NET, the land in a residential area is
permitted to be used for educational purposes
as detailed hereinabove, subject to a maximum
of 20% for the total built-up area or 50 square
metres, whichever is higher and if the plot size
is more than 240 square metres having a
frontage of 10 metres or more and the abutting
road is more than 18 metres width, then the
ancillary use can be used as a main use.
Though in the present case, the plot size is
1003.34 square metres and has a frontage of
36.56 metres, it does not have a road abutting
more than 18 metres, since admittedly the said
road width is 12 metres. Therefore, this
provision, permitting a plot measuring more
than 240 square meters, having frontage of 10
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meters or more, abutting a road which is more
than 18 meters in width, permitting the
ancillary use as main use, would not be
applicable.
23.16. In that view of the matter, unless there is a
change of land use under Section 14A, the said
land could not be used for educational purposes
in its entirety. Of course, without change of
land use, the said property could be used to an
extent of 20% for the aforesaid educational
purposes under ‘U1’, ‘U2’ and ‘U3’. The usage
for educational purposes being permitted, the
reference made to change of land use or
development from the Master Plan is not zoning
change of land zone but is a change of land use
from residential purposes to the purposes
mentioned in ‘U1’, ‘U2’ and ‘U3’, which could be
broadly classified insofar as the present case is
concerned for educational purpose.
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23.17. The decision relied upon by Sri. S.M.
Chandrashekhar, learned Senior Counsel on
Alliance Business Academy‘s case, was one
relating to change of land use under the CDP
1995 and not RMP 2015, which came into force
on 25th June 2007. That insofar as the present
matter is concerned, where the change of land
use has occurred in the year 2009-10, the
decision in Alliance Business Academy’s
case would not be applicable. The same did not
deal with CDP 2015. Similar is the situation as
regards Gnana Mandir Trust’s case relied
upon by him. In both those cases, the Courts
had considered special circumstances, present
for educational purposes and or the like, and
being of the considered opinion that the
circumstances warranted a change of land use
for educational purposes, such change of land
use was upheld. Be that as it may, I have dealt
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with the applicability of Section 14 and the
Zoning Regulations as contained in RMP 2015
up to the year 2014, as also the applicability of
Section 14A relating to change of land use,
meaning change of usage as contemplated in
various categories indicated supra. As such,
though the decisions in Alliance Academy and
Gnana Mandir’s cases are not applicable to
the present case, I am of the considered
opinion that change of land use is permissible
for the uses enumerated as ancillary uses for
residential purposes, subject to the applicable
rules being followed.
23.18. Hence, I answer Point No.2 by holding that
since the plots in question, though situated in a
residential area, can be used for educational
purposes under ‘U1’, ‘U2’ and ‘U3’ as ancillary
use and even as a main use, subject to the
road width being 18 meters. There would be no
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bar for such a landowner to seek a change of
land use from residential to any of the other
uses permitted as ancillary use, and, in this
case, there is no bar for NET to seek a change
of land use from residential to educational
purposes.
24. Answer to Point No.3: Whether the procedure
followed by the BDA and the State Government
in approving the change of land use in the
present matter is proper and correct?
24.1. The contention of Sri.S.S.Naganand, learned
Senior counsel for the Petitioner is that the BDA
and the concerned authorities have thrown all
the procedure to the wind and have tried to
help out NET in expeditiously obtaining change
of land use, where the contention of
Sri.S.M.Chandrashekar, learned Senior Counsel
is that all the procedure as required have been
followed. Apart from the aspect of the
procedure being followed, the submission of
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Sri.S.S.Naganand, learned Senior counsel, is
that the impact of such a change of land use
has not been considered.
24.2. It was but required for the Planning Authority to
consider the total number of students who
would be educated in the said building, the
total number of persons who will be using the
said building, the vehicles that would be
required to transport such persons, the impact
on water and sanitary resources, parking, etc.,
have not been considered. In this regard,
Sri.S.S.Naganand, learned senior counsel, has
contended that the various tempo travellers,
auto rickshaws and the like are parked on the
road providing access to the school, which is
causing severe harm and injury to the
residents, affecting their privacy, etc. Insofar as
this aspect is concerned, the affidavit of the
Principal of the school has been filed, where she
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has categorically stated that she has advised
her staff and the respective parents to refrain
from parking their vehicle on 12th ‘A’ Main and
13th Main Road. She has further stated that the
children will be dropped off from 7.45 a.m. to
8.30 a.m. and picked up between 2.15 p.m. to
2.45 p.m. Between 8.30 a.m. and 2:15 p.m.,
there will be no vehicles which will be parked
on the said roads. In my considered opinion,
the said instruction issued by the Principal is
required to be believed, and it is further
required to be believed that the Principal would
implement the said instructions. In the event of
the said instructions not being implemented, it
will always be available for the jurisdictional
police to seize any vehicle which is found
parked in the said roads/area prior to 7.45 a.m.
between 8.30 a.m. to 2.15 p.m. or after 2.45
p.m. The jurisdictional traffic police can be
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directed to put up boards in and around the
area indicating the above and indicating that
the same would be a tow-away zone between
the times indicated. The jurisdictional traffic
police would be entitled to tow away the said
vehicles, impose such fines as may be
permissible when vehicles are found parked
contrary to the affidavit of the Principal of NET,
which has been filed.
24.3. As regards the procedure which has been
followed in grant of change of land use, the
contention of Sri.S.S.Naganand, learned senior
counsel is that, in Annexure-J application, NET
has purposely not given the width of the road
and has misled the respondents by indicating
that the said property has an access from 100
feet as also 80 feet road. When in fact it only
has a 12-meter road or a road between 30 and
40 feet in access. In my considered opinion the
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fact that NET made an application for change of
land use would itself categorically indicate that
there is no suppression of the width of the road
inasmuch as if the width of the road was either
100 feet or 80 feet then the same would have
been in excess of 18 meters and in terms of
Regulation 4.1.2 as indicated supra, if the plot
size were to be more than 240 square meters,
having a frontage of 10 meters or more, and
abutting a road more than 18 meters in width,
the ancillary use could be the main use. It is
only due to the plot size in the present matter
being 1003.34, the frontage being 36.56
meters, the abutting road width being less than
18 meters, that the application for change of
land use was made. If it was more than 18
meters, there was no requirement to make an
application for change of land use, since the
ancillary use under ‘U1’, ‘U2’ and ‘U3’ as
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indicated supra would have enabled NET to use
the entire property for the ancillary use under
‘U1’, ‘U2’ and ‘U3’.
24.4. As regards the contention of Sri.S.S.Naganand,
learned Senior Counsel that there is a false
information given by NET that the property is
suitable for running a school also cannot be
accepted since the said property is situated
opposite an existing school. What better
property would be available for usage for a
school if not this property? This aspect has
been expounded upon by
Sri.S.M.Chandrashekhar, learned Senior
Counsel for NET, who has by referring to the
data analysis made, has indicated that number
of schools available in Indira Nagar for primary
students is less than a ratio of 1. Thus, the
need for such a primary school is also
categorically established by such data analysis.
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24.5. Insofar as establishment of Montessori, Nursery
and Primary schools are concerned, this Court
can also take judicial notice of the fact that the
children who were to use such facilities are very
young at age, and it would be advisable that
schools for such children are not established at
a far distance but as close to their residence as
possible. The aspect in the present matter is
only in relation to the establishment of
Montessori, Nursery and Primary and not
relating to higher classes, which have been
established in the Civic Amenity property, as
regards which there is no dispute. As such, that
is not adverted to or considered in the present
matter.
24.6. The further contention of Sri.S.S.Naganand,
learned senior Counsel for the Petitioner is that
there is no single katha which is available for
the property, despite which change of land use
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has been granted. While making an application,
NET has mentioned both the plot numbers and
has provided details of the assessment made by
the BBMP of the entire plot as one PID number.
The aspect of amalgamation of both plots is not
one of the preconditions for the grant of change
of land use. The BBMP having issued a single
katha for both the plots and a clarification
having been issued by the BBMP to the BDA
that both the plots can be considered to be a
single plot, the BDA has considered it to be so
and as such no fault could be found in relation
thereto.
24.7. The further argument of Sri.S.S.Naganand,
learned senior counsel that the authorities took
note of the fact that the road width is less than
18 meters but inspite of which the approval was
granted also cannot be countenanced inasmuch
as, as held above if the road width was 18
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meters or more, then there was no question of
requirement of change of land use to be
obtained. The spot inspection report indicating
that the road width was 40 feet and as such, a
change of land use could not be granted also
cannot be countenanced inasmuch as if the
road width was 18 meters that is 60 feet or
above, then there would have been no
requirement for obtaining of change of land
use. The decision in Sri.S.M.Chandrasekhar’s
case was one which dealt with CDP 1995 and
not RMP 2015.
24.8. In that case, running of a hotel or restaurant
was not permissible in the concerned property.
In the present case, educational institutions are
permitted to be established and run in the
subject property. Hence, in my considered
opinion S.M.Chandrashekhar‘s case would not
be applicable to the present matter.
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24.9. The decision in Prakash Chandra’s case relied
upon by the learned senior counsel for the
Petitioner was one relating to illegal and
unauthorized construction and not relating to
change of land use per se. In the present case,
NET has obtained due permissions from the
concerned authorities. Therefore, the said
construction cannot be said to be illegal or
unauthorised.
24.10. The decision in Dilip James‘ case was a
situation where a school was being run in a
property having a 24-foot-wide road without
obtaining a change of land use. The dicta in
Dilip James‘ case would not be applicable to
the present case when NET has obtained
change of land use.
24.11. The decision in Bangalore Housing
Development and Investments‘ case was
one relating to the occupation of premises
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without an occupancy certificate having been
granted. Sri.B.V.Krishna, learned counsel
appearing for the BBMP has categorically stated
that, an Occupancy Certificate has been
granted. Therefore, the said decision would not
be applicable.
24.12. Insofar as the decision in Avinash Mehrotra’s
case, it is for the Education Department to
apply and implement the same. The same does
not have a bearing as regards change of land
use, as such, if a representation were to be
made by the Petitioners to the concerned
education department for verification if the
guidelines issued under Avinash Mehrotra’s
case have been complied with or not, it would
be required for the concerned officers of the
education department to cause an inquiry and
take necessary action, it not being in dispute
that the guidelines laid down in Avinash
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Mehrotra’s case would be applicable to NET,
since the decision in Avinash Mehrotra‘s case
was rendered in the year 2009, whereas the
school by NET was established post-2010.
24.13. In that regard, I answer Point No.3 by holding
that there can be no default found with the
procedure followed by BDA and the State
Government in approving the change of land
use in the present matter. The same is proper
and correct.
24.14. Insofar as the applicability of the guidelines laid
down in Avinash Mehrotra‘s case, liberty is
reserved to the Petitioners to approach the
appropriate authorities and the education
department for implementation thereof. The
concerned officers of the Education department
can also take suo motto action in relation to the
same, cause an inspection of the schools and
ascertain if the guidelines have been followed
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by NET, it being the bounden duty of NET to
implement the directions and guidelines laid
down by the Hon’ble Apex Court in Avinash
Mehrotra‘s case.
25. Answer to Point No.4: Whether there is any
delay, laches and acquiescence on part of the
Petitioners, disentitling the Petitioners from
grant of reliefs as contended by the
Respondents?
25.1. The Writ Petition was filed in 2010, initially
challenging only the sanctioned plan and the
permission granted (Annexure-A, B).
25.2. It is only in the year 2019 that an application
for amendment was filed seeking to challenge
the recommendation for and grant of change of
land use granted to NET (Annexure- O, P &
Q).
25.3. From the year 2010 to 2019, the grant of
change of land use was not challenged by the
Petitioners. Though the Writ Petition was
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pending, averments have been made as
regards change of land use, documents have
been filed in relation thereto, and the
Petitioners have chosen not to challenge the
change of land use. It is only in the year 2019
that they woke up to challenge the change of
land use and it is for the first time that a relief
in respect to the change of land use was sought
for in the present petition.
25.4. Though the submission of Sri.S.S.Naganand,
learned Senior Counsel is that since the petition
had been filed in the year 2010 and
amendments had been made in relation
thereto, there is no delay, I am unable to
accept the said submission. What is required to
be considered is delay, laches and
acquiescence. Irrespective of the petition
having been filed, if the necessary reliefs are
not sought for within time, such reliefs cannot
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be granted. There are vested rights which are
created on account of the delay by such a party
approaching the Court. NET having put up the
construction, the property being used for
educational purposes, there being more than
800 students who are using the said facility,
who are stated to be residents of areas in and
around Indranagar, on the basis of a belated
claim, by the Petitioners, the change of land
use, if were to be cancelled, would result in the
said school being shut down, putting to
inconvenience the said students and their
parents, which is not permissible after such a
long period of time.
25.5. As held by the Hon’ble Apex Court, in
N.Murugesan’s case, the principles governing
delay, laches and acquiescence are overlapping.
If there is an unreasonable delay or negligence
in pursuing a claim, the relief would not be
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granted if prejudice would be caused to the
other party. The neglect of the Petitioners in
not seeking the reliefs within a reasonable
period of time has resulted in NET putting up
construction, admitting students, hiring
teachers, and establishing facilities, closure of
which would cause prejudice to NET and the
students and their parents. The delay caused
by the Petitioners defeats the reliefs which have
been sought for. It was for the Petitioners to
have approached the Court challenging the
same as early as possible, which they have not
done. Though the construction was permitted to
be carried on without NET being eligible to
claim any equities, what would have to be
considered is that when such an order was
passed and permission granted, there was no
challenge made to Change of Land use and the
order passed would have to be considered with
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reference to the reliefs sought for as on that
date. The restrictions on not claiming any
equities cannot be considered with reference to
the amendment carried out and the reliefs
sought for by way of such amendment.
25.6. In that view of the matter, I answer Point No.4
by holding that the delay, laches and
acquiescence are on part of the Petitioners
disentitles the Petitioners from grant of reliefs,
which have been sought for by way of an
amendment in the year 2019 though the Writ
Petitions were filed in the year 2010.
26. Answer to Point No.5: Whether the Petitioner
has an alternative efficacious remedy and non-
availment of the said alternative efficacious
remedy disentitles the consideration of the
reliefs sought for in the present petition?
26.1. Though several contentions have been urged by
Sri.S.M.Chandrashekhar, learned Senior
Counsel as regards alternative efficacious
remedy, which has also been reiterated by
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learned AGA and Sri.B.S.Sachin, learned
Counsel appearing for BDA, the same has been
rendered academic inasmuch as, having
considered the merits of the matter, I have
categorically come to a conclusion that there is
no default on part of the respondents-
officers/officials and the actions taken by them
are proper and correct. Hence, there will be no
requirement for this Court to consider whether
there is an alternative efficacious remedy
available for the Petitioners or not. This
question is left open to be considered in an
appropriate proceeding.
27. Answer to Point No.6: What order?
27.1. In view of my answers to Points No.1 to 5
above, having come to a conclusion that the
change of land use granted by the respondents-
officials is proper and correct, there is delay,
laches and acquisitions on part of the
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Petitioners in approaching the Court, the
change of land use being proper and correct, no
grounds are made out for any interference. The
Writ Petition stands dismissed.
27.2. This Court has dealt with compliances required
to be made by the Education Department and
schools as regard various enactments, circulars,
notifications etc. in its order dated 2.12.2024 in
W.P. No.23653/2024 [Organisations for
Unaided Recognised Schools (R) and
others -v- State of Karnataka and
another.] This Court has directed the
establishment of a web portal for details of all
such compliances to be uploaded by the
concerned schools, inspections reports of the
concerned authorities, the
circular/s/notifications issued by the authorities,
etc. The said direction would also apply to the
schools run by NET and these compliances and
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inspections report would have to be uploaded
from time to time on the said web portal.
27.3. Though the above matter is disposed, to report
compliance with the uploading of all
compliances and inspection reports, relist on
29.07.2025 at 2.30 p.m.
SD/-
(SURAJ GOVINDARAJ)
JUDGE
PRS
List No.: 1 Sl No.: 60