Allowed

M/S Sjr Prime Corporation Pvt. Ltd. v. Bruhat Bengaluru Mahanagara Palike

Karnataka HC6 Oct 2023WP/975/2018

Case brief

AI extract

What is this about?

The High Court allowed two writers petitions filed by a developer and property owners. The court quashed the BBMP order cancelling a building plan and occupancy certificate, ruling it violated principles of natural justice and was contrary to the Supreme Court's direction maintaining a 30-meter buffer zone instead of the NGT's withdrawn 75-meter requirement.

What did the court decide?

The impugned order dated 1.1.2018 cancelling the building plan and occupancy certificate stands quashed. The BBMP is directed to inspect the property within 30 days and submit a report on conformity w

M/S Sjr Prime Corporation Pvt. Ltd. Vs… — Public Procurement and Tenders | Karnataka HC (2023)

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NC: 2023:KHC:36358 WP No. 975 of 2018 C/W WP No. 11126 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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WRIT PETITION NO. 975 OF 2018 (LB-BMP) C/W WRIT PETITION NO. 11126 OF 2022 (LB-BMP)

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IN WRIT PETITION NO.975/2018:

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BETWEEN:

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M/S. SJR PRIME CORPORATION PVT LTD SJR PRIMUS, 7TH FLOOR, #1 INDUSTRIAL LAYOUT, KORAMANGALA 7TH BLOCK, BANGALORE-560 095 REPRESENTED BY ITS MANAGING DIRECTOR, MR. J. VIJAY REDDY.

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...PETITIONER

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(BY SRI. VIVEK HOLLA, ADVOCATE FOR SRI. MAYA HOLLA, ADVOCATE)

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Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA

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AND:

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BRUHAT BENGALURU MAHANAGARA PALIKE N.R. CIRCLE, BANGALORE-560 002, REPRESENTED BY ITS COMMISSIONER.

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THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE, N.R. CIRCLE, BENGALURU-560 002.

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MR. K.S. RAVI S/O SHIVALINGIAH, AGED ABOUT 39 YEARS, R/AT NO.148, 6TH CROSS,

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SARASWATHI NAGAR, VIJAYANAGAR, BENGALURU-560 040.

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(R-3 AMENDED VIDE COURT ORDER DATED 6.6.2022)

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...RESPONDENTS (BY SRI N.R. JAGADEESHWARA, ADVOCATE FOR R1 & R2; SRI H.R. NARAYANA RAO, ADVOCATE FOR R-3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER BEARING NO.BBMP/PSR(A)/783/2017-2018 DATED 1.1.2018 ISSUED BY THE COMISSIONER, BRUHAT BENGALURU MAHANAGARA PALIKE, THE R-2 HEREIN [ANNEXURE-Z] AND ETC.

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IN WRIT PETITION NO.11126/2022:

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BETWEEN:

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SRI K.N. MOHAN S/O LATE NARAYAN REDDY, AGED ABOUT 63 YEARS, R/AT NO.446, 28TH MAIN, 1ST SECTOR, HSR LAYOUT, BANGALORE-560 102.

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SMT. SHARADAMMA W/O LATE SRI K. NARAYANA REDDY, AGED ABOUT 91 YEARS, R/AT FLAT NO.2009, WAMA IBBANI, KASAVANAHALLI MAIN ROAD, KASAVANAHALLI, BENGALURU-560 035.

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...PETITIONERS

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(BY SRI. SUNIL RAO, ADVOCATE)

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AND:

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B.B.M.P REPRESENTED BY ITS HEAD OF LEGAL CELL HAVING OFFICE AT: 5TH FLOOR, LEGAL CELL, N.R. SQUARE, CORPORATION CIRCLE, BANGALORE-560 001.

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THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE, N.R. CIRCLE, BANGALORE-560 002.

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...RESPONDENTS

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(BY SRI SATYANAND B.S., ADVOCATE FOR R-1 & R-2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER BEARING NO.BBMP/PSR(A)/783/2017-18 DATED 01.01.2018 ISSUED BY THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALKE THE R-2 VIDE ANENXURE-A.

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THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED ON 30.09.2022 FOR ORDERS AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING

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ORDER

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The order dated 1.1.2018 passed by the 2^nd respondent, by which, the sanctioned building plan and occupancy certificate issued in favour of the petitioners are cancelled is impugned in these petitions.

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W.P.No.975/2018 is filed by the Developer who constructed the multistoried building on the subject property in terms of the joint development agreement entered with the owners of the subject property.

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W.P.No.11126/2022 is filed by the owners of the subject property and who had entered into joint development agreement with the petitioners in W.P.No.975/2018 for developing the subject property.

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The parties are referred to their respective rankings in W.P.No.975/2018 for the sake of convenience.

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The petitioners state that, after obtaining all necessary clearances from the authorized statutory Authorities, and also sanctioned building plan from the BDA and BBMP, constructed the multistoried apartment complex on the schedule property, and subsequent thereto, the petitioners after obtaining the fire clearance certificate from the Director of Fire Services and Emergency Services approached the BBMP for issuance of occupancy certificate on 17.11.2015. The BBMP after conducting the spot inspection and after having been satisfied that the construction put up is in accordance with law issued the occupancy certificate on 26.11.2016.

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The petitioners state that a show cause notice was issued by the Additional Director, Town Planning, BBMP, calling upon the petitioners, as to why the occupancy certificate should not be withdrawn alleging that the petitioners have not maintained a buffer zone of 75.00 meters from the edge of the lake in terms of the order dated 4.5.2016 passed by the National Green Tribunal (for short `NGT’) in OA No.222/2014, and further called upon the petitioners to furnish reply within three days i.e. 29.12.2017, failing which, action will be taken for cancellation of occupancy certificate.

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The petitioners state that, the show cause notice was suitably replied on 29.12.2017, and on 1.1.2018, the 2^nd respondent passed the impugned order cancelling the building plan dated 29.5.2014 and the occupancy certificate 26.11.2016. Hence, these petitions.

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The learned counsel for the petitioners would make the following submissions:

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a) The 2^nd respondent has not afforded the petitioners an opportunity of hearing before passing the impugned order. In fact the notice and proceedings were conducted post haste with hardly two days being given to the petitioners to respond to the show cause notice.

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b) The 2^nd respondent in the show cause notice called upon the petitioners only to show cause as to why the occupancy certificate granted should not be cancelled/withdrawn as the petitioners had allegedly violated the order dated 4/5/2016 passed by the NGT by not leaving a buffer zone of 75m form the boundary of the tank. But the 2^nd respondent in its order dated 1.1.2018 cancelled the building plan dated 29.5.2014 and the occupancy certificate dated 26.11.2016 issued in favor of the petitioners with immediate effect only on the ground that there is an alleged construction of a driveway and a boundary wall within the 30M buffer zone as stipulated under the Revised Master Plan – 2015 framed under the provisions of the Karnataka Town and Country Planning Act, 1961 and also the NOCs issued by the competent authorities were not in subsistence. Hence the 2^nd respondent travelled beyond the scope of its showcase notice.

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c) The order dated 4.5.2016 passed in OA 222/2014 by the NGT, which formed the basis of the show cause

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notice by the 2^nd respondent was set aside by the Hon’ble Supreme Court of India in (2019) 18 SCC 494. Therefore, when the very basis of the order having been set aside by the Hon’ble Supreme Court, the order passed by the 2^nd respondent is liable to be set aside.

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d) As per the show cause notice issued by Additional Town Planning B.B.M.P, dated 26.12.2017, it was stated that as per the Revised Master Plan 2015 and Building Bye-law 4.12.2(ii) of (iii) the buffer zone from the periphery of the lake was supposed to be 30 meters, therefore the plan was sanctioned to the project proponent in respect of schedule property was sanctioned by leaving the buffer zone or set back as 30 meters.

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e) In-terms of Rule 4.12 of the Zoning of land-use and regulations – Revised Master Plan, 2015, the petitioners are permitted to put up Roads, Pathways etc. Therefore the petitioners have not violated any of the laws of the land.

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f) The order passed by the 1^st respondent is contrary to the show cause notice issued by respondent No.2. The 1st respondent in the impugned order has cancelled the sanctioned plan. Whereas, in the show cause notice issued by the respondents, the petitioners were only asked to show cause as to why the occupancy certificate granted should not be cancelled. Therefore, the petitioners were not even put to notice that the respondents were resorting to cancel the sanction plan.

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g) Having regard to the aforesaid judgment passed by the Hon’ble Supreme Court, the set back of 75 meters from the periphery of the lake which was prescribed by the NGT was set aside and the Hon’ble Supreme Court directed to maintain a buffer of 30 meters from the periphery of the lake. As could be seen from the plan sanctioned and the show cause notice, the petitioners maintained a setback of 30 meters from the periphery of the lake. Therefore, the show cause notice and the order passed by the NGT is illegal and the same cannot be enforced.

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Sri S. N. Bhat, learned Senior Advocate for the respondent No.3 in WP No.975/2018 would make the following submissions:

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a) The impugned order passed by the BBMP cancelling the building license and occupancy rights is in conformity with the order dated 7.5.2015 and 4.5.2016 passed by the National Greens Tribunal wherein it is categorically held that the construction put up by the petitioners within the buffer zone limits of Kaikondarahalli lake is illegal.

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b) The consequential order passed by the BBMP without challenging the order passed by the NGT is not maintainable.

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c) The matter involving the environmental issues should be exclusively instituted and litigated before the NGT. In support, he places reliance on the decision of the Hon'ble Supreme Court in the case Bhopal Gas Peedith Mahila Udyog Sangathan and Others -V- Union of India and Ors , reported in (2012) 8 SCC 326 .

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d) The project in question falls within 30 meters of Kaikondarahalli village. Hence, the construction put up within the buffer zone is impermissible and BBMP has rightly passed the impugned order.

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e) The Kaikondarahalli village is identified as wetland which is evident from the National WetLand Inventory and Assessment, and under the WetLand (Conservation and Management) Rules, 2017, no construction within 50 meters from the High Flood Line of the lake is permissible.

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f) The building license granted in contravention of zonal regulations and the provisions of Karnataka Town and Country Planning Act is void.

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Considered the submissions of the learned counsel for the parties.

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The learned counsel for the BBMP would submit that the construction put by the petitioners is in violation of the sanctioned building plan and also the Regulations contained in the Master Plan - 2015. Hence, the impugned order passed is

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strictly in conformity with the provisions of law and the same does not warrant any interference.

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The points that arise for consideration are as

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follows;

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a) Whether the writ petitions challenging the impugned order passed by the BBMP are maintainable?

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b) Whether the cancellation of the sanctioned building plan and the occupancy certificate issued in favour of the petitioners is in conformity with the provisions of law?

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Since the points raised for consideration are interlinked, they are taken up together.

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The National Green Tribunal, New Delhi, in OA No.222/2014 by order dated 4.5.2016 issued the following general conditions or directions:

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"General Conditions or directions:

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In view of discussion in the main Judgment, we are of the considered view that the fixation of distance from water bodies (lakes and Rajkalewas) suffers from the inbuilt contradiction, legal infirmity and is without any scientific justification. The RMP - 2015 provides 50m from middle of the Rajkalewas as buffer zone in the case of primary Rajkalewas, 25m in the case of secondary Rajkulewas and 15m in the tertiary Rajkulewas in contradiction to the 30m in the case of lake which is

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certainly much bigger water body and its utility as a water body/ wetland is well known certainly part of wetland. Thus, we direct that the distance in the case of Respondents Nos. 9 and 10 from Rajkulewas, Water Bodies and wetlands shall be maintained as below:-

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(i) In the case of Lakes, 75m from the periphery of the water body to be maintained as green belt and buffer zone for all the existing water bodies i.e. lakes/wetlands.

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(ii) 50m from the edge of the primary Rajkulewas.

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(iii) 35m from the edges in the case of secondary Rajkulewas.

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(iv) 25m from the edges in the case of tertiary Rajkulewas.

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This buffer/green zone would be treated as no construction zone for all intent and purposes. This is absolutely essential for the purposes of sustainable development particularly keeping in mind the ecology and environment of the areas in question.

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All the offending constructions raised by Respondents Nos. 9 and 10 of any kind including boundary wall shall be demolished which falls within such areas. Wherever necessary dredging operations are required, the same should be carried out to restore the original capacity of the water spread area and/or

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wetlands. Not only the existing construction would be removed but also none of these Respondents - Project Proponents would be permitted to raise any to construction in this zone.

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The respondent Nos.9 and 10 in OA No.222/2014 challenged the order passed by the NGT before the Hon'ble Supreme Court in Civil Appeal Nos.5016 and 8002-03/2016.

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In the aforesaid appeal, the State of Karnataka contended that it was aggrieved by the order of the NGT to the extent of setting aside the buffer zone in respect of water bodies and drains specified in the RMP 2015, and enlargement of buffer zone in respect of lakes and Rajakaluve.

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The Hon'ble Supreme Court by order dated 5.3.2019 disposed of the appeals with the following observations and directions:

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58 . After elaborately considering this question, the Tribunal has concluded as under : ( Forward Foundation case [ Forward Foundation v. State of Karnataka , 2015 SCC OnLine NGT 5] , SCC OnLine NGT para 51)

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“ 51. … For these reasons, we find no merit in this contention of Respondents 9 and 10. The purpose of the doctrine of res judicata is to provide finality and conclusiveness to the judicial decisions as well as to avoid multiplicity of litigation. In the

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present case, the question of reagitating the issues or agitating similar issues in two different proceedings does not arise. The ambit and scope of jurisdiction is clearly decipherable. The jurisdictions of the Hon'ble High Court of Karnataka and this Tribunal are operating in distinct fields and have no commonality insofar as the issues which are raised directly and substantially in these petitions, as well as the reliefs that have been prayed for before the Hon'ble High Court and the Tribunal are concerned. There is no commonality in parties before the Tribunal and the High Court. The “cause of action” in both proceedings is different and distinct. The matters substantially and materially in issue in one proceeding are not the same in the other proceeding. There is hardly any likelihood of conflicting judgments being pronounced by the Tribunal on the one hand and the High Court on the other. Therefore, we are of the considered view that the present applications are neither hit by the principles of res judicata nor constructive res judicata . We also hold that culmination of proceedings before the Tribunal into a final judgment would not offend the principle of “judicial propriety”, because of the writ petitions pending before the Hon'ble High Court of Karnataka.”

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59. We do not find any error in the aforesaid conclusion of the Tribunal. We are of the view that the Tribunal was

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justified in holding that the objections taken by Respondents 9 and 10 do not satisfy the basic ingredients to attract the application of res judicata or constructive res judicata.

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60. The State of Karnataka is aggrieved by the following offending portion of the order dated 4-5-2016 [ Forward Foundation v. State of Karnataka , 2016 SCC OnLine NGT 1409]: ( Forward Foundation case [ Forward Foundation v. State of Karnataka , 2016 SCC OnLine NGT 1409] , SCC OnLine NGT)

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“ 1 . In view of our discussion in the main judgment, we are of the considered view that the fixation of distance from water bodies (lakes and Rajkalewas) suffers from the inbuilt contradiction, legal infirmity and is without any scientific justification. The RMP 2015 provides 50 m from middle of the Rajkalewas as buffer zone in the case of primary Rajkalewas, 25 m in the case of secondary Rajkulewas and 15 m in the tertiary Rajkulewas in contradiction to the 30 m in the case of lake which is certainly much bigger waterbody and its utility as a waterbody/wetland is well known certainly part of wet land. Thus, we direct that the distance in the case of Respondents 9 and 10 from Rajkulewas, water bodies and wetlands shall be maintained as below—

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( i ) In the case of lakes , 75 m from the periphery of the waterbody to be maintained as green belt and buffer zone for all the existing water bodies i.e. lakes/wetlands.

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( ii ) 50 m from the edge of the primary Rajkulewas.

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( iii ) 35 m from the edges in the case of secondary Rajkulewas.

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( iv ) 25 m from the edges in the case of tertiary Rajkulewas.

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a. This buffer/green zone would be treated as no construction zone for all intent and purposes. This is absolutely essential for the purposes of sustainable development particularly keeping in mind the ecology and environment of the areas in question.

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b. All the offending constructions raised by Respondents 9 and 10 of any kind including boundary wall shall be demolished which falls within such areas. Wherever necessary dredging operations are required, the same should be carried out to restore the original capacity of the water spread area and/or wetlands. Not only the existing construction would be removed but also none of these respondents — project proponents would be permitted to raise any construction in this zone.

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c. All authorities particularly Lake Development Authority shall carry out this operation in respect of all the water bodies/lakes of Bangalore.”

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(emphasis in original)

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61. We have already noticed that Shri Poovayya has no objection to set aside the aforesaid impugned portion of the order insofar as the appellants in all the appeals except the appeals filed by Respondents 9 and 10 are concerned. The aforesaid portion of the order contains not only general directions but also certain directions against Respondents 9 and 10. Therefore, only that portion of the order which does not pertain to Respondents 9 and 10 needs to be quashed.

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62. In the light of the above discussion, we pass the following order:

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62.1. Civil Appeal No. 5016 of 2016 and Civil Appeals Nos. 8002-03 of 2016 filed by the appellantRespondents 9 and 10 are hereby dismissed. The impugned judgment and order insofar as the appellantRespondents 9 and 10 are concerned is sustained.

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62.2. All the other appeals are hereby allowed and Direction/Condition (1) in the order dated 4-5-2016 [ Forward Foundation v. State of Karnataka , 2016 SCC OnLine NGT 1409] is hereby set aside except the direction issued against Respondents 9 and 10.

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63. There will be no order as to costs.

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The Hon'ble Supreme Court has set aside the direction issued by the NGT to maintain 75 meter from the periphery of water body as green belt and buffer zone for all the existing water body i.e. lakes/wetlands except the directions issued to the respondents No.9 and 10 and insofar it relates to other directions, the same were confirmed.

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In light of the directions issued by the NGT, the respondent - BBMP issued a notice dated 26.12.2017 (Annexure-X in WP No.975/2018) calling upon the petitioners as to why possession/occupancy certificate should not be cancelled for having put up construction on the subject property which falls within the 75 meters from the boundary of Kaikondanahalli lake. The petitioners submitted a reply dated 29.12.2017 (Annexure-Y in WP No.975/2018) to the show cause notice stating that the construction put up on the subject property is in accordance with the sanctioned and development plan and the directions issued by the NGT is not applicable to the petitioners' project.

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Though the show cause notice issued by the respondent - BBMP was with reference to construction put up by the petitioners in violation of the directions issued by the NGT prohibiting construction within 75 meter from the boundary of lake/wetlands, the impugned order was passed for the following violations:

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It is stated that the mandatory requirement of the obtaining the NOC From Karnataka State Fire Fighting & Emergency Services for the high rise building including

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the present building in question is not complied with because in the teeth of the above said restraining order passed by the NGT, the NOC dated 12.6.2015 was issued for a period of 2 years.

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Therefore, for this reason also the sanctioning of NOC by the Fire Services department dated 12/6/2015 in GBC(1)141/2010 in non-est, nullity, invalid and inoperative. Moreover, even otherwise as on today the above said NOC has lapsed as on 12.6.2017 and there is no valid NOC as on today for this building in question.

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Also, as per the Karnataka Government Notification dated 7.7.2011 vide No. HD 33 SFB 2011, the relevant clauses are extracted as under-

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Bruhat Bangalore Mahanagara Palike or Local Municipal Authority shall not grant building plans/licenses without obtaining No Objection Certificate from Fire and Emergency Services.

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The owner/Association of all the High Rise Building shall get their building inspected by the agencies empaneled by the Fire and Emergency Services Department to ensure that the fire equipment installed are in good and working condition. An affidavit about the working conditions of the system along with an inspection report shall be submitted to the Fire and

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Emergency Services Department and BBMP or Local Municipal Authority once in every two years.........."

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Therefore, the conditions/provisions in the said notification are also not complied with and it is violated. Hence, the building plan is contrary to law, it is invalid and inoperative.

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07. ZONING REGULATION and/or BUFFER ZONE VIOLATIONS

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Regulation Number 4.12.1(ii) of the Revised Master Plan-2015 (RMP-2015) is as under:-

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"ii) Valley/ drain

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Within the demarcated buffer for the valley the following uses are allowed:

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i. Sewerage Treatment Plants and Water treatment plants

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ii. Roads, pathways, formation of drains, culverts, bridges, etc which will not obstruct the water course, run offs, channels.

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iii. In case of water bodies a 30.0 m buffer of no development zone' is to be maintained around the lake (as per revenue records) with exception of activities associated with the lake and this buffer may be taken into account for reservation of park while sanctioning plans.

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iv. If the valley portion is a part of the layout/ development plan, then that part of the valley zone could be taken into account for reservation of parks and open spaces both in development plan and under subdivision regulations subject to fulfilling section 17 of KTCP Act, 1961 and sec 32 of BDA Act, 1976.

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v. Any land falling within the valley for which permission has been accorded either by the Authority or Government, and then such permission shall be valid irrespective of the land use classification in the RMP 2015. Fresh permissions for developments shall not be accorded in the valley zone.

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NOTE:

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Drains: The drains have been categorized into 3 types namely primary, secondary and tertiary. These drains will have a buffer of 50, 25 and 15m (measured from the centre of the drain) respectively on either side. These classifications have been used for the drains newly identified while finalizing the RMP 2015. In case the buffer has not been marked due to cartographical error for any of the above types of drains, then based on the revenue records buffer shall be insisted in all such cases without referring the land use plan while according approval for building/development/ layout plan. Permissions in sensitive areas earmarked on the land

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use plan shall be considered only by the planning Authority."

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The lands in question are in property number in 3806, Survey Number 68 situated in Kasavanahalli, Marathalli sub-division, Ward No.150, Mahadevapura Zone, Bengaluru, which is situated abutting the Kaikondarahalli Lake and as per the then prevailing law that is the Revised Master Plan-2015 (RMP-2015) the Lake buffer line was 30 meters from the said lake and that this project is partly inside the 30 meters lake buffer zone.

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The building plan indicates that inside the 30 meters lake buffer zone, construction for an 8 meters wide driveway is shown and this is in fact constructed and further next there is boundary wall that is additionally constructed. Hence, it is clear that these constructions inside the lake buffer zone and sanctioning of the building plan and license is contrary to the buffer zone limits stipulated under Zoning Regulation Number 4.12.1(ii) of the Revised Master Plan-2015 (RMP-2015) framed under the provisions of the Karnataka Town and Country Planning Act, 1961 (KT & CP Act).

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08. VIOLATIONS OF THE PROVISIONS OF THE KARNATAKA MUNICIPAL CORPORATIOS ACT, 1976 (in short KMC Act)

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In view of the zoning regulations violations and/or buffer zone violations and consequently non-compliance

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of the provisions of the Karnataka Town and Country Planning Act, 1961, consequently there is violation of Section 505 (ii) of the KMC Act. Section 505 of the KMC Act is extracted as under:-

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"505. Exercise of powers by a corporation to be in conformity with the provisions of the Karnataka Town and Country Planning Act, 1961.Notwithstanding anything contained in this Act, a corporation or any officer or. other authority required by or under this Act to exercise any power, or perform any function or discharge any duty-

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(i) with regard to any matter relating to land use or development as defined in the Explanation to section 14 of the Kamataka Town and Country Planning Act 1961, shall exercise such power, or perform such function or discharge such duty with regard to such land use or development plan or where there is no development plan, with the concurrence of the Planning Authority;

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(u) shall not grant any permission, approval or sanction required by or under this Act to any person if it relates to any matter in respect of which compliance with the provisions of the Karnataka Town and Country Planning Act, 1961 is necessary unless evidence in support of having complied with the provisions of the said Act is produced by such person to the satisfaction of the

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corporation or the officer or other authority, as the case may be."

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Therefore, because of the above said noncompliance and violations of the kaikondarahalli lake buffer zone limit. Cumulatively, there is non-compliance of the provisions of the KT & CP Act, 1961 and zoning regulations. Hence, there is violation of section 505(ii) of the KMC Act and accordingly the permissions, sanction of building plan, license & Occupancy Certificate are invalid, nullity, non-est and inoperative.

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In this context, the directions passed by the NGT in OA No.222/2014 in order dated 4.5.2016 is relevant to also indicate that even boundary wall constructions inside the buffer zone limits amounts to constructions in violation of the buffer zone stipulations, the said directions are as under-

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"General Conditions or directions or Directions:

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…………….All the offending constructions raised by Respondents Nos 9 and 10 of any kind including boundary wall shall be demolished which falls within such areas............"

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In fact, the occupancy certificate for the High Rise residential apartment project situated in the lands in question is issued on 26.11.2016. In this context, the

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directions passed by the National Green Tribunal, Principal Bench, New Delhi in OA No.222/2014 in order dated 4.5.2016 is applicable and it is as under-

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"General Directions:

¶174

The distances in respect of buffer zone specified in this judgment shall be made applicable to all the projects and all the Authorities concerned are directed incorporate such conditions in the projects to whom Environmental Clearances and other permissions are now granted not only around Bellanduru Lake, Rajakaluves, Agara Lake, but also all other Lakes/wetlands in the city of Bengaluru".

¶175

09. NO RENEWAL OF CONSENT UNDER SECTION 25

¶176

OF THE WATER (prevention and control of pollution) Act

¶177

In fact, the project proponent has no mandatory consent for the project since from October 2017, the consent (Consent for Operation/CFO) from the Karnataka State Pollution Control Board for the purpose of operation and running of High Rise residential apartment complex of 529 units.

¶178

The petitioners were not provided with an opportunity to reply as to whether the necessary no objection certificate from the Fire Service Department/consent under Section 25 of the Water (Prevention and Control of Pollution) Act were subsisting or not.

¶179

24 -

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NC: 2023:KHC:36358 WP No. 975 of 2018 C/W WP No. 11126 of 2022

¶181

As on the date, when the occupancy certificate was issued, the No Objection Certificate issued by the Karnataka State Fire Fighting and Emergency Services was in subsistence and also the consent granted by the Karnataka State Pollution Control Board under the Water Act.

¶182

The petitioners were required to maintain a set back of 30 meters from the periphery of the Kaikondanahalli lake in light of the directions issued by the Hon'ble Supreme Court and also RMP-2015.

¶183

The Karnataka State Pollution Control Board vide communicated dated 23.9.2019 addressed to the Registrar, NGT stating that the detailed survey carried out by the Department of Survey, Settlement and Land Records indicates that, the subject land is adjoining Kaikondanahalli lake and rain water harvesting tank, park, tennis Court and part of driveway in 1 acre 17 guntas fall under the buffer zone.

¶184

When this Court opined that the construction put up was within 30 meters from the periphery of Kaikondanahalli lake, the petitioners filed a compliance affidavit dated 26.9.2022 stating that consent is received from the Association for using the driveway only as a walking track/cycling track and as a passage for emergency vehicles only and any other activities permitted under law. The petitioners have further stated that the basketball court and tennis court, which fall within the 30 meters, have been removed and has also

¶185

25 -

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NC: 2023:KHC:36358 WP No. 975 of 2018 C/W WP No. 11126 of 2022

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produced the photographs for having demolished the driveway and the removal of the basketball court and tennis court.

¶188

The petitioners having complied with the Regulations contained in revised master plan, which prohibits construction within 30 meters from the periphery of the lake, and also the direction issued by the Hon'ble Supreme Court in terms of the RMP 2015, the impugned order passed by the respondent - BBMP is not sustainable in law. However, this is subject to inspection to be conducted by the respondent - BBMP to ascertain as to whether the construction is brought in conformity with the RMP 2015 and the direction issued by the Hon'ble Supreme Court.

¶189

The contention of the 3rd respondent is that the Kaikondanahalli lake is notified as a wetland and there can be no construction within 50 meters from the high flood line of the lake under the Wetland (Conservation and Management) Rules, 2017.

¶190

The ecological damage to the area between two lakes viz: Kaikondanahalli lake and Kasavanahalli lake was an issue before the NGT in Appeal No.54/2018 and the same was considered in light of the observations and recommendations made by the III Joint Committee in its report dated 15/16.3.2021 and in the said report, it is observed that as per the provisional inventory submitted by the State Government of Karnataka to the Central Government, the Kaikondanahalli lake has been included in the provisional inventory list of wetlands. However, as of date, this lake has not been notified as a

¶191

26 - NC: 2023:KHC:36358 WP No. 975 of 2018 C/W WP No. 11126 of 2022

¶192

wetland by the State Government. The NGT at para-306 has observed as follows:

¶193

"306. "Kaikondarahalli Lake" is an old lake but dried up on account of unauthorized and illegal construction and encroachment around it. It was rejuvenated as stated by BBMP/BDA in the Year 2011 but now efforts are continuing to occupy its surrounding area by raising constructions which are bound to throttle wetland activities and it would ultimately eat up the entire wetland in question."

¶194

The Hon'ble Supreme Court in the case of M. K. Balakrishna and Union of India by its order dated 8.2.2017 2017 (7) SCC 810 has directed the application of principles of Rule 4 of the Wetland (Conservation and Management) Rules, 2010 to 2,10,503 wet lands that have been mapped and identified by the Union of India with the assistance of the Statement of Government.

¶195

The Hon'ble Supreme Court has not declared that the applicability of Rule 4 of the Rules 2010 is prospective or retrospective. The building plan was sanctioned on 21.9.2010 and the completion certificate was issued on 26.11.2016 much prior to the order passed by the Hon'ble Supreme Court making applicable Rule 4 of the Rules 2010 to all the wetlands that have been mapped and described in the inventories. Therefore, it is for the respondents to seek clarification from the Hon'ble Supreme Court as to whether the Rule 4 is applicable to the subject project.

¶196

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This court has only adjudicated whether the impugned order passed by the Respondent- BBMP in exercise of the power under Karnataka Municipal Corporation Act is in conformity with the RMP-2015 and direction issued by the Hon’ble Supreme Court. The validity of the order passed under the provisions of Water Act or the Wetland Act and Rules and also the order passed by the NGT is not adjudicated nor is the subject matter of these petitions. Therefore, the contention of the Respondent No.3 that the present petitions involving environmental issues is not maintainable is not acceptable.

¶198

In view of the preceding analysis, the impugned order passed by the respondent-BBMP is arbitrary and violates principles of natural justice. Accordingly, I pass the following:

¶199

ORDER

¶200

i) Writ petitions are allowed.

¶201

ii) The impugned order bearing No.BBMP/PSR

¶202

(A)/783/2017-18 dated 1.1.2018 passed by the Commissioner, Bruhat Nagara Palike, stands quashed.

¶203

iii) The respondent BBMP to conduct inspection of the

¶204

subject property and submit a report as to whether the construction put up on the subject property is in conformity with the RMP 2015. The said exercise to be concluded within

¶205

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30 days from the date of receipt of the certified copy of this order, after notifying the petitioners and the respondent No.3.

¶207

iv) The respondent -BBMP is also at liberty to issue notices calling upon the petitioners to furnish the necessary permission granted by the competent Authorities, which are requisite at the time of issuing completion certificate. If the petitioners have obtained completion certificate without necessary permission/s, the respondent - BBMP to proceed in accordance with law.

¶208

List for reporting compliance on 24.11.2023.

¶209

Sd/JUDGE

¶210

BKM

¶211

List No.: 1 Sl No.: 181

M/S Sjr Prime Corporation Pvt. Ltd. v. Bruhat Bengaluru Mahanagara Palike

Case brief

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M/S Sjr Prime Corporation Pvt. Ltd. v. Bruhat Bengaluru Mahanagara Palike

Case brief

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What the court decided

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