Allowed

A B Mallikarjun v. the Commissioner

Karnataka HC28 Aug 2024WP/18553/2023

Case brief

AI extract

What is this about?

Owners of a building with a sanctioned plan for a Dharmashala were denied an online Trade Licence and issued a notice for contravention of the CDP-2015 residential zoning. Petitioner filed an affidavit undertaking no commercial use. Holding the notice redundant, the court allowed the writ petition and directed consideration of the Trade Licence application within two months.

What did the court decide?

Impugned notice held redundant; respondents directed to consider Trade Licence application in accordance with law within two months.

A B Mallikarjun Vs the Commissioner — Municipal and Town Planning | Karnataka HC (2024)

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1 - NC: 2024:KHC:34724 WP No. 18553 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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WRIT PETITION NO. 18553 OF 2023 (LB-BMP)

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BETWEEN:

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A B MALLIKARJUN S/O A M BASAVEGOWDA, AGED ABOUT 72 YEARS, R/AT NO 396, 12^TH MAIN, RMV EXTENSION, BENGALURU 560080

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SMT A S SUCHITHRA W/O SRI A B SUDARSHAN, AGED ABOUT 65 YEARS, R/O THIPPANAHALLI ESTATE, PO BOX NO 160, CHIKKAMAGALUR - 577145

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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A B RAVISHANKAR S/O A M BASAVEGOWDA, AGED ABOUT 67 YEARS, R/O THIPPANAHALLI ESTATE, PO BOX NO 160, CHIKKAMAGALUR - 577145

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…PETITIONERS

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(BY SRI. SHASHIDHAR BELAGUMBA., ADVOCATE)

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AND:

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THE COMMISSIONER BRUHATH BENGALURU MAHANAGARA PALIKE, N R SQUARE, BENGALURU 560002

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2 - NC: 2024:KHC:34724 WP No. 18553 of 2023

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THE ASSISTANT REVENUE OFFICER HEBBAL SUB DIVISION, MUNIREDDYPALYA MAIN ROAD, BENGALURU - 560 024

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MEDICAL OFFICER HEBBAL DIVISION, A BLOCK, NEAR BASAVANNA TEMPLE, B.B.M.P. HEBBALA, BENGALURU - 560 024

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THE ASSISTANT DIRECTOR OFFICE OF THE TOWN PLANNING (EAST), UTILITY BUILDING, MAYOHALL, 22^ND FLOOR, M G ROAD, BENGALURU- 560 025.

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…RESPONDENTS

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(BY SRI. JAGADEESWARA N R., ADVOCATE FOR R1 TO R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTICE AAY(HE)/PR/90/2023-24 DTD 12.07.2023 ISSUED BY THE R-3 VIDE ANNX-H AND ISSUE A WRIT IN THE NATURE OF THE MANDAMUS TO ACCEPT THE APPLICATION FOR THE PETITIONER FOR TRADE LICENSE THROUGH ONLINE.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL ORDER

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The petitioners filed this writ petition seeking quashing of Annexure-H dated 12.07.2023 and sought for

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mandamus directing the respondents to accept the

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3 - NC: 2024:KHC:34724 WP No. 18553 of 2023

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application of the petitioners for Trade License through online.

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Brief facts leading rise to filing of this writ petition are as under:

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The petitioners are the absolute owners of the sites in question. The petitioners have purchased the same under the registered sale deed dated 28.08.1991 for a valid sale consideration. The properties of the petitioners was amalgamated into a single unit vide order dated 18.08.2022. The BBMP issued a sanctioned the plan on 09.03.2023 to the petitioners for the construction of Dharmashala and also issued a building license in favour of the petitioners. The petitioners made an application on 26.08.2022 for a Trade License. Respondent No.3 issued impugned notice dated 12.07.2023 stating that the petitioners contravention of the CDP-2015 which provided for running Dharmashala. In reply to the notice, the petitioners submitted their reply dated 25.07.2023. It is submitted that petitioners were not able to upload

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NC: 2024:KHC:34724 WP No. 18553 of 2023

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application for Trade License for running Dharmashala in their property. Hence, the petitioners have challenged impugned notice and sought for mandamus directing the respondents to accept the application of the petitioners for Trade License through online.

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The respondents filed statement of objections contending that the petitioners had obtained a construction permission for construction of Dharmashala, but the petitioners are not using it for Dharmashala, on the contrary using it for commercial purpose. Hence, the petitioners have violated the sanction plan and it is also contended that an Public Interest litigation was filed in W.P.No.3676/2008 by the Citizens Action Forum and others for quashing Revised Master Plan 2015 against the usage of the premises for commercial activities in the residential zone against the zoning Regulations and sanctioned building plan for residential buildings. Hence, on these grounds, prays to dismiss the writ petition.

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5 - NC: 2024:KHC:34724 WP No. 18553 of 2023

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Heard the learned counsel for the petitioners

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and also learned counsel for the respondents.

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Learned counsel for the petitioners submits that the petitioners have obtained a sanction plan for construction of Dharmashala and he submits that the petitioners will utilize the said building with free of cost only for free hostel facility, free education facility, religious functions permitting under the law except marriage and other permitted items under Dharmashala's concept and undertakes not to conduct any commercial activities or functions in the above said Dharmashala. Petitioner No.1 filed an affidavit and in view of the same, prays to allow the writ petition.

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Per contra, learned counsel for the respondents submits that the petitioners are using the said building for commercial activities and they are carrying out commercial activities in the property in question and the said activity of the petitioners are contrary to the building bye laws. He submits that the petitioners have undertaken to use the

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6 - NC: 2024:KHC:34724 WP No. 18553 of 2023

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said premises for Dharmashala. Hence, prays to dispose of the writ petition.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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It is not in dispute that the petitioners are the absolute owners of the site in question and the same was purchased by them under the registered sale deed dated 28.08.1991. Thereafter, properties of the petitioners was amalgamated into a single unit vide order dated 18.08.2022, thereafter the petitioners have applied for approval of sanction plan. The BBMP issued a sanction plan on 09.03.2023. The petitioners have undertaken construction in the portion and thereafter the petitioners have applied for issuing a Trade License. The respondents issued impugned notice to the petitioners contending that the petitioners are using the said premises for commercial activities and it is stated in the CDP that the area has been earmarked as residential area and the petitioners cannot carryout any commercial activity in the residential area.

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7 - NC: 2024:KHC:34724 WP No. 18553 of 2023

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Today, petitioner No.1 has filed an affidavit stating that petitioners will not carryout any commercial activity in the said premises except free hostel facility, free education facility, religious function permitting under the law with free of cost, as the petitioners have undertaken that the petitioners will not carryout any commercial activity. In

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view of the same, notice issued by the respondents become redundant.

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Accordingly, I proceed to pass the following:

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ORDER

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The writ petition is allowed.

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The respondents are directed to consider the application of the petitioners for issuing Trade License in accordance with law within a period of 2 months from the date of receipt of copy of this order.

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Sd/(ASHOK S.KINAGI) JUDGE

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SKS

A B Mallikarjun v. the Commissioner

Case brief

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A B Mallikarjun v. the Commissioner

Case brief

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