IN THE HIGH COURT OF KARNATAKA AT BANGALORE PRESENT THE HON BLE MR.JUSTICE N. KUMAR AND THE HON BLE MR. JUSTICE V.

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1 1 R IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 17 TH DAY OF OCTOBER 2012 PRESENT THE HON BLE MR.JUSTICE N. KUMAR AND THE HON BLE MR. JUSTICE V. SURI APPA RAO WRIT APPEAL NOS OF 2011 (LB-BMP) AND WRIT APPEAL NOS OF 2011 (LB-BMP) BETWEEN: Mrs. KAMINI SRINIVASAN KURPAD, W/o Dr.SHANKAR R.KURPAD, No.20E, ROHINI, 18 TH CROSS, MALLESHWARAM, BANGALORE APPELLANT (BY SRI UDAYA HOLLA, SR. COUNSEL, FOR M/S HOLLA & HOLLA, ADVOCATES) AND: 1. Ms. MALATHI RAU, AGED ABOUT 70 YEARS, W/o LATE SRI P.N.RAU, R/at No.94, 6 TH MAIN ROAD, MALLESHWARAM, BANGALORE

2 2 2. Smt. VANI MURTHY, AGED ABOUT 49 YEARS, W/o SRI H.V.RAMAMURTHY, R/at No.303, REGALIA APARTMENTS, 95, 6 TH MAIN ROAD, MALLESHWARAM, BANGALORE Ms. INDIRA RAMAKANTH, AGED ABOUT 61 YEARS, W/o SRI S.RAMAKANTH, R/a 005, REGALIA APARTMENTS, 95, 6 TH MAIN ROAD, MALLESHWARAM, BANGALORE Ms. KUSUMA NARASIMHAN, AGED ABOUT 72 YEARS, W/o LATE SRI G.L.NARASIMHAN, R/at No.93, 6 TH MAIN ROAD, MALLESHWARAM, BANGALORE SRI H.V.RAMURTHY, AGED ABOUT 57 YEARS, S/o LATE SRI H.V.NANJUNDAYYA, REGALIA APARTMENTS, 95, 6 TH MAIN ROAD, MALLESHWARAM, BANGALORE Mrs. MEERA IYA, AGED ABOUT 80 YEARS, W/o LATE SRI H.V.NANJUNDAYYA, REGALIA APARTMENTS, 95, 6 TH MAIN ROAD, MALLESHWARAM, BANGALORE

3 3 7. Mrs. INDIRA, AGED ABOUT 75 YEARS, W/o Dr.K.S.RAMAN, R/at 42, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE SRI G.K.WARRIOR, AGED ABOUT 87 YEARS, S/o LATE SRI WARRIOR, R/at 3F, HVS HOMES-4, 76/7, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Ms. SARADA WARRIOR, AGED ABOUT 78 YEARS, W/o SRI G.K.WARRIOR, R/at 3F, HVS HOMES-4, 76/7, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Mrs. S.PUSHPALATHA, AGED ABOUT 42 YEARS, W/o SRI MUDDUKRISHNA, R/at 3F, HVS HOMES-4, 76/7, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Mr. MUDDU KRISHNA, AGED ABOUT 50 YEARS, S/o NAGADASAPPA, R/at 73/2, 15 TH CROSS ROAD, 6 TH MAIN ROAD, MALLESHWARAM, BANGALORE

4 4 12. Mr. ARUN KUMAR, AGED ABOUT 45 YEARS, S/o SUBBA RAO, R/at No.73/1, ADITYA, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Ms. PRATHIMA ARUN, AGED ABOUT 39 YEARS, W/o SRI ARUN KUMAR, R/at No.73/1, ADITYA, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Ms. SANDYA PAWAR, AGED ABOUT 59 YEARS, W/o SRI PAWAR, R/at 61, 6 TH MAIN ROAD, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Mr. SUMIT SINGH, AGED ABOUT 42 YEARS, S/o SRI H.P.SINGH, R/at 61, 6 TH MAIN ROAD, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE SRI V.BALASUBRAMANIAM, AGED ABOUT 48 YEARS, S/o SRI VENKATARAMAN, R/at 59, CHATEAU APARTMENTS, 6 TH MAIN ROAD, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE

5 5 17. Mrs. J.RAJYALAKSHMI, AGED ABOUT 50 YEARS, W/o SRI SEETHAPATHI SHARMA, R/at 1B, HVS HOMES-4, 76/7, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Ms. VIJAYALAKSHMI, AGED ABOUT 57 YEARS, D/o SRI M.K.SUBBA RAO, R/at 1A, HVS HOMES-4, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Mrs. SHOBA PRASAD, AGED ABOUT 64 YEARS, W/o SRI BHAVANI PRASAD, R/at 59, CHATEAU APARTMENTS, 6 TH MAIN ROAD, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Mr. J.N.BHAVANI PRASAD, AGED ABOUT 67 YEARS, S/o SRI S.G.NARAYAN RAO, R/at GF-1, 59, CHATEAU APARTMENTS, 6 TH MAIN ROAD, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Mr. SHIV GANESH ATHMANATHAN, AGED ABOUT 39 YEARS, S/o SRI K.ATHMANATHAN, R/at 59, 101, CHATEAU APARTMENTS, 6 TH MAIN ROAD, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE

6 6 22. Mrs. MAHALAKSHMI, AGED ABOUT 45 YEARS, W/o SRI BALASUBRAMANIAM, R/at 102, CHATEAU APARTMENTS, 6 TH MAIN ROAD, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Lt. Col. C.B.RAMESH, AGED ABOUT 77 YEARS, S/o LATE SRI C.BHASKARAYYA, R/at 15, 4 TH MAIN ROAD (Apt 1), MALLESHWARAM, BANGALORE Mr. M.R.SHANKAR, AGED ABOUT 78 YEARS, S/o SRI M.S.RAMASWAMY, R/at 40/2, KAPALI, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Mr. K.S.VASUKI, AGED ABOUT 52 YEARS, S/o SRI SEETHARAM IYENGAR, R/at S-1, SANTHRUPTI APARTMENTS, 6 TH MAIN ROAD, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE Ms. H.S.RADHAMANI, AGED ABOUT 53 YEARS, W/o SRI RAMASHESHAN, R/at S-2, SANTHRUPTI APARTMENTS, 6 TH MAIN ROAD, 15 TH CROSS ROAD, MALLESHWARAM, BANGALORE

7 7 27. THE CHIEF ENGINEER (WEST), BRUHAT BANGALORE MAHANAGARA PALIKE, SAMPIGE ROAD, MALLESHWARAM, BANGALORE THE COMMISSIONER, BRUHAT BANGALORE MAHANAGARA PALIKE, AN AUTHORITY CONSTITUTED UNDER THE KARNATAKA MUNICIPAL CORPORATION ACT, 1976 WITH ITS MAIN OFFICE AT N.R.SQUARE, BANGALORE THE ASSISTANT DIRECTOR (WEST), PLANNING CELL, BRUHAT BANGALORE MAHANAGARA PALIKE, BHASHYAM PART, BANGALORE....RESPONDENTS (BY SRI K.G.RAGHAVAN, SR. COUNSEL FOR R1 26 SRI K.N.PUTTEGOWDA FOR R27 29 R6, R9, R23 ARE SERVED) 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 /2011 DATED THESE WRIT APPEALS ARE COMING ON FOR PRL. HEARING THIS DAY, N.KUMAR J., DELIVERED THE FOLLOWING:

8 8 J U D G M E N T 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, 15 th Cross, Malleswaram, Bangalore 03, measuring 1213 sq.mtrs. The 4 th respondent made an application to the 3 rd 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

9 9 W.P.10931/11 and /11 for a mandamus directing the 2 nd 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 /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

10 10 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 4 th 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

11 11 (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

12 12 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 wellsettled 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

13 13 (Main) and Residential (Mixed) area in Malleswaram is separated by 15 th 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 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 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.

14 14 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;

15 15 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.

16 16 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

17 17 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

18 18 what is mentioned in the Master plan. The Revised Master Plan 2015 came into force from 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

19 19 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; highquality infrastructure for transport and communication; wideranging 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,

20 20 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

21 21 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 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 pedestrianoriented 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

22 22 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 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:

23 23 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, orphanges, old age homes clinics 3 Retail shops & 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

24 24 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 centres 9 Hospitals and specialty hospitals 10 Automobile repair and garage centers, spares and stores 11 All uses of C1 & 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 & 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 & C4 are permitted Chapter 4, provides for regulations for main land use zones. Clause 4.1 and 4.2, deals with Residential, which is again bifurcated into Residential (MAIN) and Residential (MIXED), which reads as under: 4.1 RESIDENTIAL (MAIN) 4.1.1) Description

25 25 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 ) Regulations i) Permissible land uses: Main Land use : R & T1 Ancillary Land use category: C2, I-2 & 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 10.0 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 Above 360 up to 1000 Up to 65 % 2.25 Above 12.0 up to Above 1000 up to 2000 Up to 60 % 2.50 Above 18.0 up to Above 2000 up to 4000 Up to 55 % 3.00 Above 24.0 up to Above 4000 up to Up to 50 % 3.25 Above 30.m

26 26 ii) Notes: 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 ) Parking As applicable vide Table no: 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

27 27 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 ) 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 m C2, I-2,U3,T2 2 Above m C3, I-2,U4,T2 Up to 1000

28 28 Table 12: FAR and Ground Coverage in Residential (Mixed Zone up to 2000 sq.m. Sl.No Ground Coverage. FAR Road width (m). (Max) 1 Up to 70 % 1.75 Up to Up to 65 % 2.25 Above 12.0 up to18.0m 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 16. It is in this background, we have to appreciate the Tables given at 4.1 and 4.2 i.e., Tables 10, 11 and 12. Though in the residential zone the main land use is residential, ancillary land uses are now permitted, subject to fulfilling the conditions mentioned therein. 17. Clause 4.1.2(i) deals with the permissible land use of a plot of land within the residential (main). It states 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.

29 29 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 semipublic 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,

30 30 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 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

31 31 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).

32 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.

33 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.

34 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 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

35 35 cannot be fully used for anything other than residential. Ignoring the said object, 2 nd and 3 rd respondents have permitted the 4 th respondent to use the said property entirely for commercial purpose, which is wholly illegal besides being in violation of the Revised Master Plan 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

36 36 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 nonresidential 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, 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

37 37 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,

38 38 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 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

39 39 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 T 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

40 40 in Revised Plan 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);

41 41 (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 C 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.

42 42 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

43 43 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-à-vis the general public and, two, to have better living conditions and the

44 44 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

45 45 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

46 46 the matter vis-à-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

47 47 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 LJ 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

48 48 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 byelaw 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.

49 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