Kanakasree House Building Co-operative Society Ltd. vs Bangalore Development Authority

H.G. Ramesh, J.—Petitioner-society has sought for issuance of writ of certiorari to quash the decision/resolution passed by the 1st respondent-BDA on Subject No. 46/2014 dated 31.1.2014 whereunder it was decided to reject the application filed by the petitioner for approval of modified layout plan vide Annexure-D as arbitrary, illegal and unjust; to issue directions to quash the endorsement/reply dated 19.2.2014 vide Annexure-E and also to issue directions to the BDA to approve the modified layout plan submitted by the petitioner-Society vide Annexure-B in relation to the layout formed in the converted lands comprised in Survey No. 39/1, 43(P), 44(P) and 45(P) of Kyalasanahalli village, K.R. Puram Hobli, Bangalore East Taluk, measuring 10 acres 12 guntas.

According to the petitioner, it is a House Building Co-operative Society. It purchased Survey Nos. 39/1, 43(P), 44(P) and 45(P) of Kyalasanahalli village, K.R. Puram Hobli, Bangalore East Taluk, measuring about 10 acres 12 guntas, after conversion from various owners. Thereafter, it applied for approval of layout plan to the respondent BDA. The BDA by resolution No. 192/2011 dated 8.9.2011, issued work order in respect of the layout on 14.2.2012 after the required Relinquishment Deed was duly executed by the petitioner-society in favour of BDA in respect of roads, park and CA sites/open spaces reserved in the layout. As per the approved plan, title deeds and revenue records, the total area is 10 acres 20 guntas with 8 guntas kharab. Thus, the net area considered for the comprehensive layout is 10 acres 12 guntas or 41682.62 sq.mtrs. The kharab is a B kharab which runs through the Survey Nos. 39/1, 44/2 and 45 and is a footpath (kalu dari). As such, petitioner was called upon by the BDA to submit the plan for approval by notifying that the footpath/kalu dari runs in these survey numbers and the same is being reserved for parks. The petitioner has faithfully followed the dictate of the BDA as the BDA informed the petitioner that unless and until they reserve this footpath/B kharab land for the purpose of park or other public purpose i.e., other than its usage for residential purpose, the plan would not be approved. According to the petitioner, as per the revised Master Plan-2015, under Clause 6.1(b), 55% of the total land area in a layout could be reserved for residential development. As is rendered by this Court and Apex Court from time to time, the petitioner prepared revised/modified plan and applied for approval of the same. However, the Commissioner for BDA and Town Planning Member in the meeting on Subject No. 46/2014, dated 31.1.2014, while confirming the fact that in respect of various other lands, BDA has approved such modified plan, and that by taking into consideration the judgment passed by this Court in Soba Developers'' case and as the modified plan which was submitted for approval was well within the prescribed limits, matter was placed before the Committee for decision, but the same was rejected on the ground that first layout plan was approved on 14.2.2011 and that three years period had not yet lapsed from the date of sanction of the first plan and therefore, it is not appropriate to consider the request for approval of the modified plan.

According to the learned counsel for the petitioner, merely because three years time has not lapsed from the date of sanction of the earlier layout plan, it cannot be said that the modified plan cannot be approved and hence the decision taken by the BDA is arbitrary and illegal and accordingly, prayed for the aforesaid relief.

According to the learned counsel for respondent-BDA, petitioner has submitted the revised/modified plan within the period of three years and taking note of deviation of footpath (kalu dari) shown in the modified plan and the provisions of Land Revenue Act, the same came to be rejected. It is submitted that, earlier residential area provided under the approved plan was 51.23% and now if the modified plan is considered, it comes to 52.74%.

According to the learned counsel for the petitioner, so far as kalu dari is concerned, as per the provisions of Land Revenue Act, the same can be provided for making it straight road in some other adjacent place so that the character of kalu dari could be retained. It is also submitted that they have prepared the plan in such a way that instead of retaining the kalu dari/footpath in the same place, it was shifted to a parallel road so as to make it as a continuity. It is also stated that once regular road is formed, this footpath/kalu dari merges with the regular road and shifting of this kalu dari to a parallel road is very much necessary as the area will be utilized for residential purpose. Accordingly, he sought to contend that earlier the approved residential area was 51.23% and as per the revised plan, the area reserved for residential purpose will come to only 52.74% and not beyond that i.e., below 55% and most of the area is being taken by the BDA for development of civic amenities, including roads, park etc.

In view of the submission made above, there may not be any impediment for the respondent-BDA to consider the case of the petitioner for approval of revised/modified plan. Further, as per the submission made, since the reasoning given by the BDA to reject the revised master plan is on the ground of delay, but according to the submission of the learned counsel for the petitioner, there appears to be a representation well within time, as such, it is for the BDA to consider the case of the petitioner.

In that view of the matter, the impugned resolution and endorsement vide Annexures-D & E respectively are quashed. It is for the respondent-BDA to consider the case of the petitioner for approval of revised/modified plan in accordance with law and rules.

Writ Petitions are allowed accordingly.