| SooperKanoon Citation | sooperkanoon.com/953040 |
| Court | Karnataka High Court |
| Decided On | Oct-17-2012 |
| Case Number | Writ Appeal Nos.16532-533 of 2011 (LB-BMP) And Writ Appeal Nos.17248-273 of 2011 (LB-BMP) |
| Judge | THE HONOURABLE MR.JUSTICE N. KUMAR & V. SURI APPA RAO |
| Appellant | Mrs. Kamini Srinivasan Kurpad |
| Respondent | Ms. Malathi Rau and Others |
(These Writ Appeals are filed under Section 4 of the Karnataka High Court Act praying to set aside the order passed in the Writ Petition No.21472-497/2011 dated 30.08.2011.)
N. Kumar, J.
These appeals are preferred against the order of the Learned Single Judge who has quashed the sanction plan dated 16/9/2010 granted to the appellant by the Bangalore City Corporation for construction of office accommodation in her site. For the purpose of convenience, the parties are referred to as they are referred to in the writ petition.
2. The subject-matter of this proceeding is a property bearing No.41/7, 15th Cross, Malleswaram, Bangalore – 03, measuring 1213 sq.mtrs. The 4th respondent made an application to the 3rd respondent for sanction of the plan to put up construction there on. A sanctioned plan was issued on 16/9/2010 for putting up construction of a multi-storied commercial complex comprising basement, ground and 3 upper floors and a terrace. On coming to know of the said sanction, the petitioners filed representation before the corporation authorities contending that the said sanction is in violation of Zoning Regulations and requested for its cancellation. When their representations did not yield any result, they filed W.P.10931/11 and 11957-12027/11 for a mandamus directing the 2nd respondent to consider their representation. By an order dated 24/3/2011, the said writ petitions came to be dismissed on the ground that the petitioners cannot prosecute parallel remedy and therefore they were directed to pursue their remedy before the Commissioner. It was made clear that, dismissal of the writ petitions would not come in the way of the Corporation considering the said representation. In spite of the said order being brought to the notice of the authorities, their representation was not considered. Therefore petitioners were constrained to file W.P.17567-591/11 for quashing the impugned sanction plan and for a mandamus to consider their representation. The said writ petitions were allowed and a direction was issued to the authorities to consider their representation after giving an opportunity to the petitioners. After considering their representation and hearing of the parties, the Corporation passed an order dated 7/6/2011 holding that the plan which they have sanctioned, is strictly in accordance with the bye-laws and therefore no case for cancellation of the plan was made out. Aggrieved by the said order, petitioners preferred writ petition before this court. The said writ petition, after contest, came to be allowed on 30/8/2011 by the impugned order, upholding the contention of the petitioners that the sanction plan was in violation of the building bye-laws. Aggrieved by the said order, the 4th respondent has preferred these appeals.
3. Sri Udaya Holla, learned Sr. Counsel appearing for the appellant contended, the property in question is situated within the residential zone. No doubt in the Zoning Regulations of Revised Master Plan 2015, a distinction is made between Residential (Main) and Residential (Mixed). In both the cases without obtaining change of land use, a particular extent of the property could be used for commercial purpose. If the property is situated in residential (Main), 20% of the total built up area or 50 sq.mtrs. could be used for commercial use, whereas 30% of the total built up area could be used for commercial use if the property is within the Residential (Mixed). However if the frontage is 10 mtrs. or more in the case of Residential (Main) and 15 mtrs. in the case of Residential (Mixed), if the plot size is up to 360 sq.mtrs., or up to 240 sq.mtrs., respectively, the entire area could be used for commercial use. At the same time if the road width is 18 mtrs., then the entire area could be used for commercial use. Even though in Table No.11 dealing with Residential (Mixed), plot size is mentioned as above 240 sq.mtrs., up to 1000 sq. mtrs., road width is 18 mtrs., if the plot size is above 1000, then Table No.10 applies and the entire area could be used for commercial purpose. Therefore the authorities keeping in mind the object with which these Zonal Regulations are made and taking note of Table No.10, Table No.11 and also Table No.12, rightly sanctioned plan for putting up a commercial complex in the entire site which is valid and legal. The Learned Single Judge has placed a literal interpretation on these Regulations and committed an error in quashing the sanctioned plan. Therefore he submits that the impugned order requires to be set aside.
4. Per contra, Sri K G Raghavan learned Sr. Counsel appearing for the petitioners submitted that, Clause 4.1 deals with Residential (Main) and 4.2 deals with Residential (Mixed); only parts of Malleswaram falls within Residential (Main), whereas the remaining part falls within Residential (Mixed) which is clearly demarcated in the sketch prepared, which is a part of the Revised Master Plan. When the specific provisions are made under law for Residential (Main) and Residential (Mixed) areas, they have to be interpreted separately. The provisions contained in clause 4.1 Residential (Main) cannot be read into clause 4.2 Residential (Mixed). The object behind permitting commercial activity in a plot which is up to 1000 sq.mtrs., and not permitting commercial activities in a plot more than 1000 sq.mtrs., is to be kept in mind. In that view of the matter, the sanction of the plan is illegal and the Learned Single Judge was justified in setting aside the plan. Therefore he submits no case for interference is made out with the well-settled order passed by the Learned Single Judge.
5. Sri. K N Puttegowda, learned Counsel appearing for the Bangalore City Corporation, submits that admittedly the plot in question is situated in residential zone. The Residential (Main) and Residential (Mixed) area in Malleswaram is separated by 15th Cross Road. In Table No.11 they have dealt with only 2 plot sizes, up to 240 sq.mtrs., and above 240 sq.mtrs., up to 1000 sq.mtrs., whereas in Table No.10, the plot sizes up to 20000 sq.mtrs., is dealt with. The principle underlining both these two provisions is, in the case of Residential (Main), if the plot is less than 240 sq.mtrs., 20% of the total built up area could be used for commercial use without an order of change of land use, but if the plot area is more than 240 sq.mtrs. and the frontage is 10 mtrs. Or more and the width of the road is 18 mtrs., then the ancillary use ie., commercial use, a land could be used for the entire area up to 20000 sq. feet, though in respect of Residential (Mixed) only 2 categories are mentioned in case of plots more than 1000 sq.mtrs., Table No.10 is applicable. That is how they have understood and they have sanctioned the plan and in their view, the plan which is sanctioned by them is strictly in accordance with the bye-laws and the Learned Single Judge was not justified in quashing the said sanctioned plan.
6. In the light of the aforesaid facts and the rival contentions, the point that arises for our consideration is as under:
In respect of a plot situated in a residential (mixed) area, if the plot size is more than 1000 sq.mtrs., whether the entire site could be used for putting up a commercial complex without there being an order for change of land use?
7. The Karnataka Town and Country Planning Act, 1961 (for short hereinafter referred to as ‘the Act’) was enacted to provide for the Regulation of planned growth of land use and development and for the making and execution of Town Planning Scheme in the State of Karnataka. The main object of the said enactment was
i) to create conditions favourably for planning and re-planning of the Urban and Rural areas in the State of Karnataka and with a view to providing full and civic and social amenities for the people in the State;
ii) To stop uncontrolled development of land due to land speculation and profiteering in land;
iii) To preserve and improve existing recreational facilities and other amenities contributing towards balanced use of land; and
iv) To direct the future growth of populated areas in the State, with a view to ensuring desirable standards of environmental health and hygiene, and creating facilities for the orderly growth of industry and commerce, thereby promoting general standards of living in the State.
Section 2(3-b) defines Master Plan means a plan for the development or redevelopment of the area within the jurisdiction of a planning authority. Planning area means any area declared to be or included in a local planning area under this Act. For the city of Bangalore, the Bangalore Development Authority is the Planning Authority.
8. Section 13 speaks about the approval of the Master Plan, interim Master Plan, Preparation of Master Plan for Additional Area, Revision of Master Plan. Section 14 of the Act deals with Enforcement of the master plan and the regulations. Sub-Section (1) of Section 14 provides 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 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 this Act, the master plan and the report, as finally approved by the State Government under Sub-Section (3) of Section 13. Sub-Section (2) provides that 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 commencement certificate granted by the Planning Authority in the form prescribed.
9. Section 14-A provides for change of land use from the master plan 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 failure to fully indicate the details in the plan or changes arising out of the implementation of the proposals in the outline development plan or the circumstances prevailing at any particular time, by the enforcement of the plan. The Master Plan/Outline Development Plan specifically provides for the use of land for residential purposes, commercial purposes, industrial purposes and other purposes as mentioned therein.
10. Therefore, the owner of a plot of a land falling within the Master plan has to use the said land for the purpose for which it is meant as prescribed in the Master plan. If he wants to change the land use, he has to make an application under Section 14-A of the Act and only after obtaining such permission he can use the land for the purpose other than what is mentioned in the Master plan. The Revised Master Plan 2015 came into force from 25.06.2007. The Master Plan consists of Zoning of land use for residential, commercial, industrial, agricultural, recreational and other purposes together with zoning regulations. The zoning regulations 2015 is prospective in operation. Chapter I Clause 1.2 deals with land use zone categories. 1.2 B – refers to Classification of Land use zones. Chapter 2 deals with List of land use categories permissible in various Zones. Table 1 contains permissible land uses in residential category. Table 2 contains permissible land uses in commercial category. It is again further sub-divided into C-1, C-2, C-3, C-4, C-5. Chapter 3 deals with Regulations applicable to all zones such as setbacks, FAR or Floor Area ratio, width of the road, ground coverage, garage, basement, means of access, ramps, Projections, No objection certificates, Security Deposit, etc. Chapter 4 deals with Regulations for main land use zones. It categorizes the residential into two classes; Residential (main) and Residential (mixed). It provides that the areas of the city which have predominantly residential land use pattern which is considered for the Residential (Main) zone, which includes many old areas of the city such as Parts of Malleswaram, Richmond Town, Vasant Nagar, Jayanagar, Vijayanagar, Visveswarapura, Rajajinagar, R.T. Nagar, etc.
11. In the Vision document of Revised Master Plan 2015, it is stated that the Master Plan was developed to address the overall vision for the City. Bangalore’s Vision for the year 2015 as developed during the City Development Plant (CDP) preparation process and adopted by the city’s local self government Institutions (LSGIs) is to retain its per-eminent position as a City of the Future through its cosmopolitan character and global presence, and to enable and empower its citizens with: growth opportunities to promote innovation and economic prosperity; a clean and green environment; high-quality infrastructure for transport and communication; wide-ranging services aimed at improving the quality of life for all; conservation of its heritage and diverse culture; and responsive and efficient governance. City growth, economic development, environment and energy, people and well being, leisure, art, culture and sports formed the basis for translating the growth scenario and vision into urban space.
12. One of the significant change brought about in the Master plan is the concept of mixed use. The Master Plan advocates mixed use of land. The policy under the Plan, therefore, follows a differentiated approach based on the character of the identified regions subject to the socio-economic status of neighborhoods and their preference to have commercial activities within the neighborhood. In promoting mixed use of land in designated parts of the city, the Master Plan makes adequate provision for meeting community needs, mitigating environmental impacts and providing for safe and convenient circulation and parking. It further clarifies the mixed use of land in specific areas under use. Zonal Regulations (Volume -3) provide details on the identified regions, while mixed use provides for non-residential activity in residential premises. It aims to balance the socio-economic need for such activity and the environmental impact of the said activity in residential areas. Mixed use allows access to commercial activities in the proximity of the residences and reduces the need for commuting across zones in the city. At the same time, mixed use needs to be regulated in order to manage and mitigate the associated adverse impact related to congestion, increased traffic and increased pressure on civic amenities. In promoting mixed use of land in designated parts of the city, the Master Plan makes adequate provision for meeting community needs, mitigating environmental impacts and providing for safe and convenient circulation and parking.
13. Therefore, this concept of mixed use is introduced for the first time in the revised Master Plan 2015. This concept is introduced in the residential zone. Clause 4.2 deals with this aspect of the matter. The main features of the ‘Mixed Land Use’ areas are those where employment, shopping and residential land uses will be integrated in a compact urban form, at higher development intensities and will be pedestrian-oriented and highly accessible by public transit. The Mixed use areas will foster community interaction by providing focus on community facilities. The design and development of mixed use activity areas provide opportunities to create and/or maintain a special community identity and a focal point for a variety of city wide, community and neighborhood functions. Mixed activity areas address the demand for employment, shopping and residential areas within the city.
14. From the aforesaid provisions, it is clear that, a differentiated approach based on the character of the identified regions subject to the socio-economic status of neighborhoods and their preference to have commercial activities within the neighborhood is permitted, which was not the position prior to 2005. Therefore, in a residential zone, commercial use of the land is permissible without there being an order for change of land use under Section 14A of the Act.
15. Table 2 deals with permissible land uses in Commercial Category. In the said Table, the said land users are divided into five categories:
| C1 | Commercial Uses |
| 1 | Petty shops, Newspaper, Stationery and milk booth, vulcanizing shops |
| 2 | Tutorial centers not exceeding 50 sq.m |
| 3 | STD/FAX/Internet centre/ATM centers |
| 4 | Hair dressing and beauty parlors |
| 5 | Offices/clinics belonging to “Professional services” category and self owned not exceeding 50 sq.m |
| 6 | Tailoring, dry cleaners |
| 7 | Bakery and sweetmeat shop |
| 8 | Pathological labs |
| 9 | Recreational Clubs as per Table.7 provisions |
| C2 | Commercial Uses |
| 1 | Eateries such as darshinis, tea stalls, and takeaways |
| 2 | Gyms, orphanages, old age homes clinics |
| 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 home and ply clinics/dispensaries/lab subject to minimum 300 sq.m plot size and NOC from pollution control board after 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 |
| C3 | Commercial Uses |
| 1 | Commercial and corporate offices |
| 2 | Retail Shopping complexes |
| 3 | Restaurants and Hotels |
| 4 | Convention centers and banquet halls |
| 5 | Financial Institutions |
| 6 | Cinema and Multiplexes |
| 7 | Places of assembly, exhibitions centers |
| 8 | Entertainment and amusement centers |
| 9 | Hospitals and specialty hospitals |
| 10 | Automobile repair and garage centers, spares and stores |
| 11 | All uses of C1 and C2 are permitted |
| C4 | Commercial Uses |
| 1 | Sale of second hand junk goods, junk yards |
| 2 | Warehouses and storage areas for goods |
| 3 | Whole sale and trading |
| 4 | All uses of C1, C2 and C3 are permitted |
| C5 | Commercial Uses |
| 1 | Wholesale and warehouses – business |
| 2 | Agro Mandis |
| 3 | Heavy goods markets |
| 4 | All uses of C1, C2, C3 and C4 are permitted |
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 and T1
□ Ancillary Land use category: C2, I-2 and 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 10.00 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. No. | Plot size (sq.m) | Ground Coverage. (Max) | FAR | Road width (m) |
| 1 | Up to 360 | Up to 75% | 1.75 | Up to 12.0 |
| 2 | Above 360 up to 1000 | Up to 65% | 2.25 | Above 12.0 up to 18.0 |
| 3 | Above 1000 up to 2000 | Up to 60% | 2.50 | Above 18.0 up to 24.0 |
| 4 | Above 2000 up to 4000 | Up to 55% | 3.00 | Above 24.0 up to 30.0 |
| 5 | Above 4000 up to 20000 | Up to 50% | 3.25 | Above 30.m |
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.
4.1.3) Parking
As applicable vide Table no: 23
4.2 RESIDENTIAL (MIXED)
4.2.1) Description
Main features of ‘Mixed Land Use’ areas are those where employment, shopping and residential land uses will be integrated in a compact urban form, at higher development intensities and will be pedestrian-oriented and highly accessible by public transit. Mixed use areas will foster community interaction by providing focus on community facilities.
● The design and development of mixed use activity areas provide opportunities to create and/or maintain a special community identity and a focal point for a variety of city wide, community and neighbourhood functions.
● Mixed activity areas address the demand for employment, shopping and residential areas within the city.
4.2.2) Regulations
i) Permissible land uses:
● Main land use category: R
● Ancillary land use category: C3, I-2, T2 and U4
● Ancillary land use is permissible up to 30 % of the total built up area
If the Plot size is abutting a road as specified below, the ancillary uses can be used as main use. Space standards as at Table no 7 are applicable.
Table 11: Plot Size and Ancillary uses permissible in Residential (Mixed)
| Sl. No. | Plot size (sq.m) | Road width (Min) | Ancillary Uses permissible as main land use |
| 1 | Up to 240 | 15.0 m | C2, I-2, U3, T2 |
| 2 | Above 240 Up to 1000 | 18.0 m | C3, I-2, U4, T2 |
| Sl. No. | Ground Coverage. (Max) | FAR | Road width (m) |
| 1 | Up to 70% | 1.75 | Up to 12.0 |
| 2 | Up to 65% | 2.25 | Above 12.0 up to 18.0m |
| 3 | Up to 60% | 2.50 | Above 18.0 up to 24.0m |
| 4 | Up to 55% | 3.00 | Above 24.0 m up to 30m |
| 5 | Up to 50% | 3.25 | Above 30m |
17. Clause 4.1.2(i) deals with the permissible land use of a plot of land within the residential (main). It status that the main land use is R and T1, which means residential and transportation. Ancillary land use permitted are as mentioned in category: C2, I-2 and U3. Ancillary use is allowable up to 20% of the total built up area or 50 sq.m. whichever is higher. In other words, if a plot of land is situate in a residential (Main), the main land use is for residential purpose and for transport. By virtue of this new regulation 20% of the total built up area to be constructed on such lands or 50 sq. meters whichever is higher could be used for commercial, industrial, public and semi-public purpose. Prior to 2005 such users were not permitted. If a land has to be put to use for a purpose other than residential, change of land use under Section 14-A was a must. With this Regulations, without such an order for change of land use, 20% of the built up area in a residential (main) could be used for the said purposes. Further, it makes it clear that, if the plot size is more than 240 sq. meters having a frontage of 10 meters or more and abutting road is more than 18 meters in width, then the entire plot could be used for commercial C-2, Industrial I-2 and urban public and semi-public U-3 purposes. In other words, without an order for change of land use under Section 14-A of the Act, the plot which is situated in a residential (main) zone can be used for the aforesaid non-residential purposes, including commercial use as mentioned in C2. Then in Table No.10 the plot size, Ground Coverage, FAR and road width in metres are clearly set out. Therefore, it is clear that, though the plot is situated in a residential (Main) Zone, and the permissible land use is only residential, in the revised Master Plan 2015 for the first time, 20% of the total built up area or 50 sq.mtrs., which ever is higher, is permitted to be used for commercial purposes as set down in C1 and C2 uses. However, if the plot size is more than 240 sq.mtrs., having a frontage of 10 mtrs., or more and the said plot is abutting the road, which is more than 18 mtrs., in width, then the entire plot could be used for commercial use, as stipulated in C1 and C2, if the plot size up to 20,000 sq. mtrs., subject to other conditions stipulated in the Table 10 are complied with, without the permission under Section 14A of the Act.
18. Chapter 4.2.2 of the Regulations specifically mention that even in Residential (Mixed) the main land use is residential only. However, the ancillary land use permitted are as stipulated in category C3, I-2, T2 and U4. In other words, if in residential (main) areas, ancillary land use is C2, I2 and U3 and in residential (Mixed), in addition to the said ancillary land use, ancillary land use such as C3, I-2, T2 and U4 are also provided. In respect of a plot situated in residential (Mixed), if the plot size is up to 240 sq. mtrs., and the road width is 15 mtrs., as against 18 mtrs., stipulated in residential (Main), the said plot could be used for putting up construction as contemplated in C3, I-2, U3 and T2, to the extent of 30% of the total built up area. However, if the plot size is above 240 sq. mtrs., up to 1000 sq. mtrs., and if the road width is 18 mtrs., then the ancillary use is permissible as main land use as stipulated in C3, I-2, U4 and T2. Such a land use is not permissible if the plot is within the residential (Main) zone. If the plot size is more than 1000 square meters, the entire plot cannot be used for ancillary purpose. The ancillary use has to be restricted to 1000 square meters. Table 12 deals with F.A.R. and ground coverage in residential (mixed zone up to 2000 square meters).
19. It is clear under the Table 2, C2, apart from uses mentioned therein, all the uses of C1 are permitted. Similarly in C3 apart from specific use which are enumerated therein, all uses of C1 and C2 are also permitted. If it is a case of putting the land to the ancillary use of constructing C2, I-2 and U3, what is applicable is Table 10 and not Table 11. If it is to put the land to ancillary use in a residential (Mixed) zone for C3, I-2, U4 and T2 uses, then Table 11 along with Table 12 is attracted. Residential (Main) and residential (Mixed) cannot be read disjunctively. They have to be read conjunctively. Because, both the provisions are dealing with residential zone only. Depending on the density of the residential use in the residential zone, a further bifurcation is made into residential (main) and residential (mixed). It is in this context in residential (mixed) zone, more commercial activity is permitted as mentioned in C3. It does not mean that what is permitted in residential (main) is not permitted in residential (mixed). All the ancillary use permitted in residential (main) is permitted in residential (mixed). In addition to that use, the ancillary use mentioned in C3 is also permitted.
20. In a plot which is situated in residential (main), the said land cannot be used for the purpose mentioned in C3 category. It is completely prohibited. However, the land which is situated in a residential (mixed) can be used for C3 category subject to the condition that the plot of the land should be 240 up to 1000 sq. mtrs., and the road width should be 18 mtrs., If the plot size is more than 1000 sq. mtrs., then also the entire land cannot be used for the ancillary use of C3 category. Therefore, it is the nature of construction to be put up in a residential zone, whether it is “Main or Mixed” which is crucial. As is clear from Table C3 which includes C1 and C2 in a residential (Mixed) the said plot of land can be used for putting up construction in the category C1 and C2 also. If the construction to be put up falls under Category C2 then it is Table 10 which is attracted and not Table 11. Table 11 is attracted only if the construction to be put up is of the category as mentioned in C3.
21. In order to achieve the object of the differentiated approach which is introduced for the first time in the Revised Master Plan 2015, the learned Single Judge was of the view that the philosophy/object in allowing mixed use in a residential area has been clearly explained in Regulation 4.2 of the Zoning of Land Use and Regulation under the Revised Master Plan 2015. The object of allowing use of similar size properties for ancillary use as main use is to permit housing, smaller shops falling under C-3, I-2, U-4, T-2 (inclusive of C1 and C2). In other words, the permissible land use in these categories clearly indicates that these are meant to house small shops with a view to obviate those living in the neighbourhood to travel a long distance to reach these amenities. The use of the property by larger dimensions wholly for ancillary use defeats the whole object of orderly planning of the city. Such use of property in a residential area for non residential commercial purpose will cause disturbance to the peace and tranquility for those living in the neighbourhood, cause traffic congestion and burden the public amenities. The properties in excess of 1000 sq.mtrs., located in residential (mixed) zone cannot be fully used for anything other than residential. Ignoring the said object, 2nd and 3rd respondents have permitted the 4th respondent to use the said property entirely for commercial purpose, which is wholly illegal besides being in violation of the Revised Master Plan 2015. Further he held, the zones have been classified in Regulation 1.2. Residential zone has been further classified as Residential Main and Residential (Mixed) under Regulation 4.1 and 4.2 respectively. First of all, when the property lies within the residential (mixed zone), application of residential (main) zone for land use does not arise. For a higher category of zoning of land use is included with the lower category of land use, unless it is specifically provided for, the very object of Zoning Regulations will be defeated. The courts cannot by interpretive process violate the object of the Zoning Regulations. He further held, the Zoning Regulations are made taking in view the larger public interest of the society and it is the bounden duty of the citizen to obey and the Corporation to sanction the plan in accordance with the said Regulations. The Corporation should always act in aid of the building bye-laws. Relaxation of the Regulations would mean the nullification of the Rules themselves and the object sought to be achieved by the Regulations and the need to have planned development of the cities and towns in the interest of posterity. Such use of property in a residential area for non-residential commercial purpose will cause disturbance to the peace and tranquility for those living in the neighbourhood, cause traffic congestion and burden the public amenities. The properties in excess of 1000 sq. mtrs., located in residential (mixed) zones, cannot be wholly used for anything other than residential. According to him, ignoring the said object, the second and third respondents in the writ petitions have permitted the fourth respondent to use the said property entirely for commercial purpose, which is wholly illegal besides being in violation of the Revised Master Plan, 2015. Further, he has held when the property lies within the residential (Mixed) zone, application of residential (Main) zone for land use does not arise. If a higher category of zoning of land use is included with the lower category of land use, unless it is specifically provided for, the very object of Zoning Regulations will be defeated. The Zoning Regulations are made taking in view the larger public interest of the society and it is the bounden duty of the citizen to obey and the Corporation to sanction the plan in accordance with the said Regulations. Therefore, he was of the view that the sanctioned plan is illegal and therefore, he has quashed it.
22. The said reasoning of the learned Judge runs counter to what is contained in 4.1 residential (main) zone. If the intention was not to permit non-residential use of a residential property, Table 10 would be opposed to the said object. Under Table 10 in a residential (main) zone, even in a plot which measures 20,000 sq.mtrs., if it has a frontage of 10 mtrs., or more and abutting a road which is 18 mtrs., in width, the said property could be used to put up constructions which are mentioned in C1 and C2. As set out above, C2 includes commercial uses for eateries such as darshinis, Tea stalls, takeaways, retail shops, hardware shops, banks, ATMs, insurance, consulting and business offices, Mutton, poultry stalls, cold storages, uses for small repair centers-electronic, mechanical, automobile etc. Therefore, the land could be put to commercial uses to the fullest extent of 20,000 sq.mtrs., Therefore, the reasoning of the learned Single Judge that other use of property in a residential area for a non-residential commercial purpose will cause disturbance to the peace and tranquility for those living in the neighborhood, causes traffic congestion and burden the public amenities is contrary to law and the concept of mixed use advocated in the Revised Master Plan 2015.
23. However, when the differentiated approach between the residential (Main) and residential (Mixed) in a plot situated in a residential (Mixed) again if the plot size is up to 240 sq.mtrs., the concession shown is only reduction in the road width i.e., 15 mtrs., as against 18 mtrs., found in residential (main) zone. With such a plot, again it is permissible to have the land used as mentioned in C2, I-2, U3 and T2. But if in the residential (Mixed) zone, commercial use as stipulated in C-3 is to be put up, the plot size should be 240 sq.mtrs., up to 1000 sq. mtrs., and the road width should be 18 mtrs., that is the minimum requirement and above 1000 sq. mtrs., plot, if the plot is in a residential (mixed) zone, the said land cannot be put to use as stipulated in C3, I-2, U4 and T2.
24. Residential (main) is more residential in density than the residential (mixed). In other words the residential (mixed), already has lost the characteristics of residential area, as portion of it is already used for non-residential purpose including commercial. That is the difference between the two areas in residential zone. If the conditions mentioned in Table 10 is satisfied, in a plot area to the extent of 20,000 square meters, it could be used to put up constructions as mentioned in C2 which includes office accommodation. Such a use of the property in a residential area for a commercial purpose will not cause any disturbance to the peace and tranquility for those living in the neighbourhood, cause traffic congestion and burden the public amenities. It is permitted in law. It is for their benefit as is clear from the policy document as contained in Revised Plan 2015. Residential (mixed) is less residential than residential (main). What is permitted in Residential (main) is also permitted in residential (mixed). By such permitted user of the land in residential (mixed) it cannot be said that it would cause disturbance to the peace and tranquility for those living in the neighbourhood, cause traffic congestion and burden the public amenities. In fact the people residing in Residential (mixed) are already exposed to such an environment as compared to people residing in the Residential (main). That is the reason for the differentiation and division of Residential zone into Residential (main) and Residential (mixed). Therefore in Residential (mixed) the land is permitted to be used for commercial purpose enumerated in C3, which is not permissible in Residential (main). In the Residential zone,
(a) if the land is to be used for commercial purpose as mentioned in C3, it has to satisfy two conditions. They are:
(1) The land has to be situated in Residential (mixed);
(2) The conditions stipulated in Table 11 has to be fulfilled.
(b) If the land is to be used for commercial purpose as mentioned in C2, Table 11 is not attracted. It is Table 10 which is applicable.
(c) In the residential mixed zone, all ancillary use which is provided in residential main zone are permitted. In other words, when C3 includes C1 and C2, therefore in residential mixed zone the land owner can construct for commercial purposes as mentioned in C1, C2 and C3.
25. The Apex Court in the case of BHIKHUBHAI VITHLABHAI PATEL AND OTHERS VS. STATE OF GUJARAT AND ANOTHER reported in (2008) 4 SCC 144 dealing with the power of the Government or planning authorities to restrict the enjoyment of the land by the owner held that the power, to restrict the use of land by the owners thereof, is a drastic power. The designation or reservation of the land and its use results in severe abridgement of the right to property. Statutory provisions enabling the State or its authorities to impose restrictions on the right to use one’s own land are required to be construed strictly.
26. The Apex Court in the case of KAILASH CHAND AND ANOTHER VS. DHARAM DASS reported in (2005) 5 SCC 375 has held as under:
“xxxx The legislature is incapable of contemplating all possible situations which may arise in future litigation and in myriad circumstances. The scope is always there for the court to interpret the law with pragmatism and consistently with the demands of varying situations. The construction placed by the court on statutory provisions has to be meaningful. The legislative intent has to be found out and effectuated.
“Law is part of the social reality.”
(See Law in the Scientific Era by Justice Markandey Katju, 2000 Edn., P.33)
“Though law and justice are not synonymous terms they have a close relationship, as pointed out by the American jurist Rawls. Since one of the aims of the law is to provide order and peace in society, and since order and peace cannot last long if it is based on injustice, it follows that a legal system that cannot meet the demands of justice will not survive long. As Rawl says: ‘Laws and institutions no matter how efficient and well arranged, must be reformed or abolished if they are unjust.’”
Clearly, law cannot be so interpreted as would cause oppression or be unjust.
13. Life is not static and so the law cannot afford to be static.
27. The Supreme Court in the case of CHAIRMAN, INDORE VIKAS PRADHIKARAN VS. PURE INDUSTRIAL COKE AND CHEMICALS LTD. AND OTHERS reported in (2007) 8 SCC 705 dealing with town planning development general principles need to balance public and private interest held as under:
“43. There are two competing interests viz., one, the interest of the State vis-Ã -vis the general public and, two, to have better living conditions and the right of property of an individual which although is not a fundamental right but is a constitutional and human right.
44. Before we embark upon the questions involved in these appeals, we would like to make some general observations.
45. Town and country planning involving land development of the cities which are sought to be achieved through the process of land use, zoning plan and regulating building activities must receive due attention of all concerned. We are furthermore not oblivious of the fact that such planning involving highly complex cities depends upon scientific research, study and experience and, thus, deserves due reverence.
46. Where, however, a scheme comes into force, although it may cause hardship to the individual owners as they may be prevented from making the most profitable use of their rights over property, having regard to the drastic consequences envisaged thereunder, the statute should be considered in such a manner as a result whereof greater hardship is not caused to the citizens than actually contemplated thereby. Whereas an attempt should be made to prevent unplanned and haphazard development but the same would not mean that the court would close its eyes to the blatant illegalities committed by the State and/or the statutory authorities in implementation thereof. Implementation of such land development as also building laws should be in consonance with public welfare and convenience. In United States of America zoning ordinances are enacted pursuant to the police power delegated by the State. Although in India the source of such power is not police power but if a zoning classification imposes unreasonable restrictions, it cannot be sustained. The public authority may have general considerations, safety or general welfare in mind, but the same would become irrelevant, as thereby statutory rights of a party cannot be taken away. The courts must make an endeavour to strike a balance between public interest on the one hand and protection of a constitutional right to hold property, on the other.
47. For the aforementioned purpose, an endeavour should be made to find out as to whether the statute takes care of public interest in the matter vis-Ã -vis the private interest, on the one hand, and the effect of lapse and/or positive inaction on the part of the State and other planning authorities, on the other.
48. The courts cannot also be oblivious of the fact that the owners who are subject to the embargos placed under the statute are deprived of their valuable rightful use of the property for a long time. Although ordinarily when a public authority is asked to perform statutory duties within the time stipulated it is directory in nature but when it involves valuable rights of the citizens and provides for the consequences therefor it would be construed to be mandatory in character.
57. The Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted, requires strict construction. An owner of land ordinarily would be entitled to use or develop the same for any purpose unless there exists certain regulation in a statute or a statutory rules. Regulations contained in such statute must be interpreted in such a manner so as to least interfere with the right to property of the owner of such land. Restrictions are made in larger public interest. Such restrictions, indisputably must be reasonable ones. (See Balram Kumawat v. Union of India (2003) 7 CC 628, Krishi Utpadan Mandi Samiti v. Pilibhit Pantnagar Beej Ltd. (2004) 1 SCC 391 and Union of India v. West Coast Paper Mills Ltd., (2004) 2 SCC 747). The statutory scheme contemplates that a person and owner of land should not ordinarily be deprived from the user thereof by way of reservation or designation.
59. xxxxxxxxx Rajendra Babu, J. (as the learned Chief Justice then was) in Sri. Krishnapur Mutt v. N. Vijayendra Shetty (1992) 3 Kar L J 326 observed: (Kar LJ p.329. para 8)
“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.”
28. The Apex Court in the case of K.Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and others reported in AIR 1974 SC 2177 at para-27 held as under:
“xxxx The Municipality acts for the public benefit in enforcing the Scheme. Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringers or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative.”
29. The right to build on his own land is a right incidental to the ownership of that land. Within the city the exercise of that right has been regulated in the interest of the community residing within the limits of the city. Town and country planning involving land development of the cities which are sought to be achieved through the process of land use, zoning plan and regulating building activities must receive due attention of all concerned. The power, to restrict the use of land by the owners thereof, is a drastic power. The designation or reservation of the land and its use results in severe abridgement of the right to property. Statutory provisions enabling the State or its authorities to impose restrictions on the right to use one’s own land are required to be construed strictly. The courts cannot also be oblivious of the fact that the owners who are subject to the embargos placed under the statute are deprived of their valuable rightful use of the property for a long time. 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 Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted and requires strict construction. The construction placed by the court on statutory provisions has to be meaningful. The legislative intent has to be found out and effectuated. There are two competing interests viz., one, the interest of the State vis-Ã -vis the general public and, two, to have better living conditions and the right of property of an individual which although is not a fundamental right but is a constitutional and human right. Life is not static and so the law cannot afford to be static. Law cannot be so interpreted as would cause oppression or be unjust. The courts must make an endeavour to strike a balance between public interest on the one hand and protection of a constitutional right to hold property, on the other.
30. In the instant case, admittedly the total size of the plot is 1213.284 sq.mtrs., It is situated in residential (mixed) zone. The said plot is situated in Malleshwaram area. In Malleshwaram area, part of it is in residential (Main) and another part is in residential (Mixed). In the plan, 15th Cross Road bifurcates the residential (Main) from the residential (Mixed) area. The width of the said road is 20.8 mtrs., The residential (Main) zone lies to the North of the said road, whereas the residential (Mixed) zone lies to the south. The sanctioned plan is for putting up office accommodation, which falls under C2 category. As the construction sought to be put up is for the purposes as mentioned in category C2 and the plot measures more than 1000 sq.mtrs., but less than 2000 sq.mtrs., and when admittedly, the road width is 18 mtrs. And above, in the said plot in the entire extent of land, the ancillary use as mentioned in C2 can be put up. If the said plot was situated within Residential (main) it is not disputed that the plan sanctioned would be valid. The argument is, as the said plot is situated in Residential (mixed) the plan is not valid. This is absurd. If such a construction is not causing any disturbance to the peace and tranquility for those living in the neighbourhood, cause traffic congestion and burden the public amenity to the residents who are living in Residential (Main), which is predominantly a residential zone, we fail to understand how the same could cause hardship to the residents in Residential (Mixed), who are already used to such inconvenience. Because the Residential (Mixed) has lost the characteristics of a residential zone, now the law provides for more commercial activity as mentioned in table C3, which is not permitted in residential (main), as they want to preserve the dominant characteristics of residential in the said area. As is clear from the material on record as well as from the plan when the area residential (Main) and residential (Mixed) is separated by 15th cross Road, when in the residential (Mixed) zone, the commercial activity as contemplated in C3 is permissible, it cannot be said permitting such commercial activity as contemplated in C3 would be harmful to the interest of the residents of the said locality. It is permitted in law and as is clear from the policy document it is for their benefit. It is to prevent them from travelling to distant places. Now for the first time in this Revised Plan 2015 without an order of change of land use under Section 14A of the Act in a residential area, commercial activity is permitted subject to the conditions stipulated therein being satisfied. Therefore, though the property is situated in residential (mixed) zone and the plot is more than 1000 sq. mtrs., though the fourth respondent in the writ petition was entitled to use the land for purposes mentioned in C3 as she has chosen to use the land only for the purpose of C2, then once she has satisfied the requirement viz., the width of the road should be more than 18 mtrs., and the frontage should be 10 mtrs., or more, up to the land area of 2000 sq. mtrs., the entire plot could be used for ancillary use as stipulated in C2.
31. The argument is, in Table 11 at Sl.No.2 as against plot size of above 240 sq. mtrs., Up to 1000 sq. mtrs., if the road width is 18 mtrs., the ancillary use of C3 is permitted as the main land use. If the plot is more than 1000 sq. mtrs., then the ancillary use cannot be the main use of such a plot of land and therefore, the sanctioned plan in the instant case, is illegal. If the sanctioned plan was for putting up construction for commercial purposes as mentioned in C3 category as the plot size is more than 1000 sq. mtrs., it would be illegal. But as the sanctioned plan is for putting up construction as mentioned in C2, Sl.No.2 has no application. Then we have to fall back upon Table 10 though the plot is situated in a residential (Mixed) zone. Therefore, the contention that once there are separate tables as contained in Tables 10 and 11 one cannot be read into another, is not correct. In respect of ancillary use as stipulated in C3 in a plot situate in residential (mixed) zone Sl.No.2 at Table 11 is applicable. If in respect of any plot which is situated in a residential (mixed) zone, the construction to be put up the land use is as provided in C2 then it is Table 10 which has to be looked into and Sl.No.2 in Table-11 has no application. In other words, the ancillary use to which the plot of land is put to use is the deciding factor. Depending upon the said ancillary use the Tables have to be applied. That is how the Corporation has understood and on that basis they have sanctioned the plan. After directions from this Court to consider the objections of the petitioners again they have re-examined the entire case on merits, looked into the Chapters 4.1 and 4.2 of the Regulations. They have taken note of the change in the policy of the Government, the object with which these amendments were brought about and have rightly rejected the objections of the petitioners. The learned Single Judge read these two provisions disjunctively and has come to the conclusion which runs counter to the spirit behind the said provisions. The differentiated approach is the basis for this change in the policy. As stated earlier, the residential zone includes residential (Main) and residential (Mixed) and Chapters 4.1 and 4.2 of the Regulations have to be read together harmoniously and see that the object sought to be achieved by introducing these provisions are achieved. Therefore, the order passed by the learned Single Judge is unsustainable. Accordingly, it is hereby set aside.
32. Hence, we pass the following:
ORDER
i) The appeals are allowed.
ii) The impugned order passed by the learned Single Judge is hereby set aside.
iii) The plan sanctioned by the Bruhat Bengaluru Mahanagara Palike, Bangalore, is valid and legal.
Parties to bear their own costs.