Judgment:
ORDER
Ram Mohan Reddy, J.
1. This application is by the 5th respondent to vacate or modify the interim order dated 26-3-2009.
2. By the interim order, the applicant is directed not to put to use the property No 370, 11th main, 3rd block, Koramangala, Bangalore for any purpose other than residential
3. The petitioner claims to be the owner in occupation of the residential building bearing No 369, Koramangala, opposite to the property in question, in an area classified as residential, in the Comprehensive Development Plan, under The Karnataka Town and Country Development Act 1961, for short KTCP Act. The property, in question, being a corner plot had no opening on the Sarjapur Road but entrance from the 11th, main, opposite the petitioner's residence. The 4th respondeat, the owner of the said property, obtained a sanction of a building plan and having erected a residential building, put to use the same for a residence.
4. The revised Master Plan 2015, and the Zonal Regulations 2007, for short regulations, introduced a new concept known as Mutation Corridor, denning certain areas of Bangalore city to be put to permissible use. The properly in question and that of the petitioner's fail within the said corridor, permitting its use for commercial activity subject to eligibility criteria, such as a minimum frontage of 12 Mts.; entry and exit to be provided from the main load so as to insulate the residential area on the rear side from the effects of commercial activity; set back as set out in Tables 8 and 9; and parking facilities as in Table 23.
5. It is the allegation of the petitioner that the residential building on the property in question does not adhere to the requirements of the Revised Master Plan and the regulations, so as to permit its use for commercial activity. The request of the 4th respondent for a 'No objection' for change of land use, when declined by the petitioner was followed by filing written objections with the Planning Authority, who confirmed that the property could be put to use only for residential purpose and that there was no request for change of land use. It is the further allegation of the petitioner that the 5th respondent without authority of law and in gross violation of Rule of Law has put up a signage to put to use the property in question for a fitness center (GYM).
6. In the affidavit, accompanying the application, the deponent states that the property in question is taken on lease from the 4th respondent under a registered lease deed dated 13-6-2008 Annexure R1 to set up a fitness centre, to cater to the needs of the residents of the locality, as has been done in five other centres in the city and sixty branches all over the country. The leased property falls within the Mutation Corridor under the Regulations, permitting land use for a Gym. The property complies with the eligibility criteria and the petitioner's allegation, in the absence of specifics, is but a bald allegation. It is stated that the access to and from the property is from the Sarjapur main road and the earlier opening on the eastern side opposite the petitioner's residence is since closed.
7. According to the applicant, there is no requirement of law to apply for change of land use, since setting up of a fitness centre, Gym is a permissible land use and that the reference to Tables 8, 9 and 23 are irrelevant, in the context of the fact that the building elected is strictly in accordance with the sanctioned plan.
8. The 5th respondent states that it has obtained registration certificate under the Karnataka Shops and Commercial Establishments Act; sanction for supply of electricity; paid property tax at commercial tariff, etc., to set up the fitness centre by investing Rupees three crores by securing financial assistance from Axis Bank. The running of the fitness club, no inconvenience or hardship will be caused to the petitioner or the locals according to the applicant. It is claimed that a number of commercial establishments are existing in the locality and the petitioner having kept quite all the while, the writ petition filed at the enth moment, that too, when the gym was to be opened on 23-3-2009, the petitioner is not entitled to any relief.
9. Learned Counsel for the applicant while pointing out to the provisions of the regulations, contends that the permissible use of the land in question includes the building also in view of the definition of the term 'land' in Sub-section (2) of Section 3 of the KTCP Act. The regulations having made no exception to existing buildings it cannot be said that permissible use of such buildings are excluded. The applicant having taken steps to close the gate opening to the 11th main; fixing the timings of the fitness centre from 6-30 am to 9-30 pm; the entire building being air conditioned; providing parking facilities for customers and other such steps, the petitioner cannot be heard to contend that it affects his quality of life or peaceful living. Lastly, it is contended that the balance of convenience lies in favour of the applicant and if the interim order is not vacated, it would cause greater hardship to the applicant which cannot be compensated in terms of money.
10. Per contra, Learned Senior counsel for the opponent points out to the regulations to contend that the permissible use of land for commercial activity cannot be read as permissible use of the existing residential building, since the set back specification for buildings in all the/onus are not the very same as are existing in the present building. To buttress the submission reference is made to the building plan Annexure R2 sanctioned on 19-10-1987 to erect residential building, with a floor area of 7539 sq.ft. with one garage, as against the requirement of eight car parking spaces for the very floor area in terms of table 23 of the regulations. Even otherwise, it is contended that the applicant having not secured a permission of the Planning Aauthority cannot put to use the building for commercial activity. To hold that residential buildings on the date of coming into force of the regulations would be deemed to be regulation compliant so as to suit the change of land use, the regulations signifying safety, privacy, meaningful living etc., would be rendered nugatory.
11. The KTCP Act was promulgated to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. The Local Planning authority for the City of Bangalore and its periphery is the Bangalore Development Authority constituted under the Bangalore Development authority Act, empowered to exercise the powers, perform the sanction and discharge the duties under the KTCP Act The Planning Authority, devised - Comprehensive Development Plan, 1985, and thereafter 1995 for the City of Bangalore, declaring the property in question and that of the petitioner to be put to residential use.
12. The 4th respondent owner of the property in question, applied for, secured a sanction of Building Flan - Annexure-R2 and put up a building for residential use, in conformity with the building byelaws for residential building, of the Corporation of the City of Bangalore, under the Karnataka Municipal Corporation Act, 1976.
13. The Planning Authority, in compliance with Section 13D of the KTCP Act. revised the existing CDP of 1995, and submitted to the State Government a Master Plan', which was given effect to in the year 2007. The said Master Plan provided for Zonal Regulations 2007, for short Regulations, devising, amongst others, a new zone known as 'MUTATION CORRIDOR,' defining and de-alienating a determined area of Bangalore City, which includes the property in question, for land use and Regulation, providing for the 'permissible land use', of the said property for commercial purposes, including a 'Gym', subject to the restrictions over ground coverage, set back and parking. Thus the property in question which was hither to put to use, predominantly, for residential purpose, was eligible to be put to use for commercial purpose by the Regulation of 2007, since the property has a frontage of 23 mts, confirming to the eligibility criteria that the plot facing corridor should have a minimum frontage of 12 mts. Clause 4-5 of the Regulation relating to Mutation corridor, imposes certain restrictions in the matter of development of the land more appropriately table 15 providing for Ground (Coverage of 55% and Floor Area Ratio (FAR) of 2.75 for plots facing. Road width upto 30 mts. and 50% with FAR of 3.25 for a road width of above 30 mts, while the set back to comply with tables 8 and 9, depending upon the height of the building aft-well as plot size, as well as table 23 for parking.
14. Chapter 3.0 relating to Regulation applicable to all zones amongst others, provides set backs for building height upto 11.5 mts and plot size upto 4000 sq.mts; while table 9 provides for all round set backs for building above 11.5 mts height. Parking requirements and norms are provided for in chapter 8.0, enumerating the parking requirements for various uses. Chapier 9 provides for fire protection requirements and safety measures against earthquakes, white Table 24 the width and number of exists for various occupancies including, at SI. No. 6, 'Business and Industrial.
15. The term 'Land' is defined under Sub-sections (2) of Section 3 of the KTCP Act, to include benefits arising out of land and things attached to the earth or permanently fastened to anything attached to the earth, while the definition of land use' under Sub-section (3) means, the major use to which a plot of land is being used on any specified date. The term Development' is defined in Sub-section (1C) thus: with its grammatical Variations, means the carrying out of building, engineering, mining or other operations, in, on, over or under land or the making of any material change in any building or land, or in the use of any building or land and includes sub-division of any land.
16. The enforcement of the Master Plan and the regulations is provided for in Section 14 of the KTCP Act. Sub-section (1) states that 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 cliange in land use and every development in the area covered by the plan subject to Section 14A, confirm to the provisions of the Act, the Master Plan and the report, as finally approved by the State Government, under Sub-section (3) of Section 13. Sub-section (2) makes it clear that no such change in land use or development as is referred to in Sub-section (1) shall be made except with the written permissions of the Planning Authority, which shall be contained in a commencement certificate granted by the Planning Authority in the form prescribed. For the purpose of the said Section, the explanation defines 'Development' to mean the carrying out of building or other operation in on over or under any land or the making of any material change in the use of any building or ether land. Sub-section (3) provides for making an application for permission under Sub-section (2) to be accompanied by a plan, drawn to scale showing the actual dimension 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 that behalf by the Planning Authority.
17. Thus land and land use, includes the building on the land in question and the change in land use from residential to commercial is permissible under the Regulations 2007, being a part of the Master Plan, which when sought to be enforced, amounts to 'development' requiring the applicant to make an application under Sub-section (3) of Section 14 to the Planning Authority, which would permit the said land use, on issue of a written permission as a commencement certificate in the form prescribed
18. The contention of the applicant that the existing residential building, put to use for residential purpose on the date of coining into force of the Master Plan and Regulation, though not complaint with the building requirements, under the regulations to be put to use for commercial activity, is permitted under the chapter 'Mutation Corridor,' is but a specious plea. The definition of the term 'development' in the explanation under Sub-section (2) of Section 14 of KTCP Act, makes it abundantly clear that it includes the change in the use of any building or other land, requiring the written permission of the planning authority under Sub-section (2), on an application filed under Sub-section (3) of Section 14. The use of the phrase 'permissible land use' at items (ii) in 4.5.2. under the nomenclature 'Mutation Corridor' in the Regulations, cannot be understood to mean that a residential building complaint with the building byelaws applicable to such a building, is deemed to be complaint with chapter 3 of the Regulations relating to setbacks etc, on the coming into force of the Master Plan, so as to put to use the building for commercial activity, if that is so, it would negate the very purpose of regulating building to be put to use for commercial activity, leading to an anomalous situation of different types of building, deviating from the regulations.
19. In the instant case, apparently the floor area of the residential building is 7539 sq.ft. with a garage, sought to be put to use for a Gym, a commercial activity; without adequate parking facilities for motor vehicles, more so since the entry and exit, as appears, in the positive photographs Annexure-E series, does not provide for movement of vehicles. In other words the motor vehicles have to be parked on the streets i.e. the Sarjapur Main Road, blocking free flow of traffic on the road or on the 11th Main, to the same effect and in addition to the detriment of peaceful living in the petitioner's residence.. It must be understood that Roads in a metropolis are not meant to serve as parking facilities to be enjoyed by commercial establishments and that is the reason why Table 23 in the Regulation is devised by the planning authority. So also having regard to the norms relating to setbacks, fire, exits, privacy peace, tranquility, and other safety features in the Regulations for commercial building, it cannot be again said that the existing building belonging to the 4th respondent, could be straight away, without any 'development', be put to use for commercial activity. Understanding the Regulation in an other manner, would render it nugatory, which is not what the legislature intended.
20. The claim of the applicant to have invested Rupees three crores and a term loan from ads bank since serviced, to set up the fitness, centre (Gym), is but a bald assertion benefit of material particulars. Even otherwise, the investment of huge sums of money cannot be justification for violation of Rule of Law'.
21. Prima facie the writ petitions having made out a case for interference, there are no valid legal grounds to either vacate or modify the interim order dated 26.03.2009.
The misc. writ is without merit and is accordingly rejected.