- 1 - NC: 2025:KHC:17853 WP No. 11727 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 11727 OF 2019 (LB-RES) BETWEEN: UDUPI YOUTH MINISTRY J.J. BUILDING, L.M.H ROAD UDUPI. REPRSENTED BY: MANAHING TRUSTEE MR. GLADSON D. KARKADA AGED ABOUT 51 YEARS S/O MR. JOSEPH KARKADA NEAR U.B.M JUBLIEE CHURCH MISSION COMPOUND, UDUPI-576 101. …PETITIONER (BY SRI. NOVA BETHANIA .S, ADVOCATE) AND: 1 . COMMISSIONER URBAN DEVELOPMENT AUTHORITY ADHI UDUPI, UDUPI-576 103. 2 . STATE OF KARNATAKA RURAL DEVELOPMENT AND PANCHAYAT RAJ VIKAS SOUDHA, BANGALORE-560 001. REP. BY ITS SECRETARY 3 . STATE OF KARNATAKA Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:17853 WP No. 11727 of 2019 CITY IMPROVEMENT DEPARTMENT VIKAS SOUDHA, BANGALORE-560 001. REP. BY ITS ADDL. SECRETARY 4 . STATE OF KARNATAKA REP. BY PRINCIPAL SECRETARY OFFICIAL URBAN DEPARTMENT DEPT., 4TH FLOOR, ROOM NO.428 VIKAS SOUDHA BANGALORE-560 001. …RESPONDENTS (BYSRI. K. PRASAD HEGDE, ADVOCATE FOR R1; SMT. PRATHIMA HONNAPURA, AAG ALONG WITH SRI. V. SHIVA REDDY, AGA FOR R2 TO R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R-1 TO GRANT THE LICENSE FOR THE CONSTRUCT CHURCH AT PROPERTY SY.No.76/35 SITUATED AT BADAGUGETTU VILLAGE, UDUPI, AS PRAYED IN ANNEXURE-A DATED 19.12.2018 AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 09.04.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MR JUSTICE N S SANJAY GOWDA CAV ORDER 1. The petitioner is before this Court challenging the Resolution passed by the Urban Development Authority, Udupi, whereby it has refused to grant licence to the petitioner to construct a prayer hall - 3 - NC: 2025:KHC:17853 WP No. 11727 of 2019 and consequently, for directing them to grant a licence to construct a Church/prayer hall. 2. The petitioner, by way of an amendment, has also challenged the Circular dated 19.09.2009 by which the Government has directed all the Planning Authorities to cause the publication of a public notice calling for objections from the public whenever a request is made for constructing a structure to be used for religious purposes or for school and colleges. 3. It is the case of the petitioner that it is a Trust which is conducting Christian prayers at a rented building and the Trust had acquired the property bearing No.76/6A of Badagabhettu village, Udupi, under a registered document dated 02.02.2015. The petitioner contends the Trust applied for sanction of a plan for construction of a prayer hall and the Udupi Urban Development Authority called upon them to make payment of Rs.15,000/- towards cost of paper - 4 - NC: 2025:KHC:17853 WP No. 11727 of 2019 publication and a paper publication was published calling for objections, if any. 4. It is stated that pursuant to the publication of the public notice, objections were received, and the police are stated to have sent a report that the prayer hall should not be permitted and consequently, their claim has been rejected. 5. As stated above, the petitioner is aggrieved by the refusal of this approval and hence, he is before this Court. 6. The fact that the petitioner Trust is the owner of the property is not in dispute. It is also not in dispute that for the town of Udupi, a Master Plan has been approved by the Government and the Zoning Regulations formed a part of the Master Plan for Udupi-Malpe Local Planning Area-2021. 7. It is not in dispute that the land purchased by the petitioner falls under the residential zone. The use of - 5 - NC: 2025:KHC:17853 WP No. 11727 of 2019 the land that is permitted in a residential zone, as per the Zoning Regulations, which is as follows: “ANNEXURE – I For the purpose of these regulations, the planning area of the town is divided into following use zones. 1. Residential; 2. Commercial (Retail and Wholesale); 3. Industrial (Light, Medium, Heavy & Service); 4. Public and Semi-Public; 5. Public Utilities; 6. Open Spaces, Parks, Playgrounds, Buffer along River and Burial Ground; 7. Transport and Communication; 8. Agricultural Use; Uses of land that are permitted and those that may be permitted under special circumstances by the Udupi Urban Development Authority in different zones of the local planning area shall be as follows. 1. RESIDENTIAL ZONE a.Uses permitted: Dwellings, hostels including working women and gents hostels, old age homes, orphanages, places of public worship, schools offering higher primary school - 6 - NC: 2025:KHC:17853 WP No. 11727 of 2019 courses, (with a minimum sital area of 500 sq. mtrs for nursery schools, 1000 sq. mtrs for lower primary schools and 2000 sq. mtrs for higher primary schools) public libraries, post and telegraph offices, telephone exchange, Karnataka Power Transmission Corporation Limited counters, milk booths, HOPCOM centres, STD booths, mobile phone service repairs, computer institutes and Neighbourhood shops not exceeding 20Sq.mt. b.Uses that are permitted under special circumstances by the Authority: Municipal, State and Central Government offices, public utility buildings, cemeteries, golf clubs, banks, nursing homes, hospitals for human care, (with a minimum sital area of 750 sq. mtrs and the site is abutting a road of minimum 12 mtr width), philanthropic uses, fuel storage depots, filling stations (excluding Petrol bunks, Gas filling), service industries with power up to 10 HP (for all the above industries and those as per the list given in Schedule-I, power required for air conditioning, lifts and computers are excluded from HP specified - 7 - NC: 2025:KHC:17853 WP No. 11727 of 2019 above), power loom for silk twisting (up to 10 HP) provided the noise generated shall be within the limit prescribed by the Ministry of Environment and Forest, Government of India., gas cylinder storage provided it satisfies all required norms of safety, hard and software computer offices and information technology related activities provided the site is abutting a road of minimum 12 m width, chat / café centres, doctors consulting room, office of advocates, other profession in public interest not exceeding 20 sq m. provided the applicant himself is a professional, pay & use toilets and Service apartments, vehicle parking including multilevel car parking. In Multi- storeyed Residential Apartments, shops & General stores of 10% the Total carpet area of the building. Note: Diesel generators equivalent to the quantity of power supplied by the Karnataka Power Transmission Corporation Limited (KPTCL) may be permitted as substitute to power cut and power failures in any zone after obtaining information on the quantity of power - 8 - NC: 2025:KHC:17853 WP No. 11727 of 2019 supplied to a premises and the capacity of generator required from KPTCL. However, in residential zone installation of diesel generators be discouraged and shall be given in exceptional cases after spot verification and obtaining No Objection Certificate from the people living within a distance of 100 m from the location point of generator.” (underlined by me) 8. It is therefore clear that if a property is situated in the residential zone, the law enables the owner of the property to use that particular property for constructing places of public worship. 9. It cannot be in dispute that the provisions of the Karnataka Town and Country Planning Act, 1961 (for short, ‘the Act’) statutorily determine the manner in which a land situated in a planning area can be used.It is under the provisions of this Act, the planning area is declared, and a Master Plan is also - 9 - NC: 2025:KHC:17853 WP No. 11727 of 2019 prepared indicating the uses that thelands falling within the said planning area can be utilized. 10. The objective of a Master Plan is essentially to ensure an orderly development, and the zoning of the land is fundamentally to ensure that in a particular zone, the pain uses to which the land can be put to use is declared and all the necessary amenities relatable to the main use are also permitted to established and made available for the residents of that area. 11. The provisions of the Act mandates, on and from the date of publication of the Master Plan, the land uses shall be governed only as per the revised Master Plan. Thus, in law, the use of the land can only be for the purpose mentioned in the master plan and it would be unlawful if the land is used for a different purpose. 12. It must be borne in mind that the Master Plan, being a result of exercise of a statutory power, itconfers a - 10 - NC: 2025:KHC:17853 WP No. 11727 of 2019 statutory right on the persons, who own lands situated in the Master Plan to use their land for the purposes permitted in the Master Plan. 13. Thus, whenever a particular use is permitted in a particular zone, the use of that particular property for the permitted purposes by the land owner cannot be denied at all. The only requirement of the persons who owns the property is to obtain an approval of the building plan from the Municipal authority and so long as the building plan is approved and the building that has to be constructed conforms with the use in that particular zone, the said building can never be said to be an illegal structure. 14. Consequently, the claim of the petitioner to use his property for the use that is permitted in the Residential Zone i.e., places of public worship, cannot be denied. - 11 - NC: 2025:KHC:17853 WP No. 11727 of 2019 15. However, the State seeks to place reliance on its Circular issued on 19.09.2009, which reads as follows: “PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀASÉå: £ÀCE 237 ¨ÉªÀÄ¥Áæ 2009 PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ «PÁ¸À¸ËzsÀ, ¨ÉAUÀ¼ÀÆgÀÄ,¢£ÁAPÀ:19-09-2009. ¸ÀÄvÉÆÛÃ¯É «µÀAiÀÄ: £ÀUÀgÁ©üªÀÈ¢Þ ¥Áæ¢üPÁgÀUÀ¼ÀÄ, AiÉÆÃd£Á ¥Áæ¢üPÁgÀUÀ¼ÀÄ ºÁUÀÆ ¸ÀܽÃAiÀÄ ¸ÀA¸ÉÜUÀ¼ÀÄ zsÁ«ÄðPÀ G¥ÀAiÉÆÃUÀzÀ ªÀÄvÀÄÛ ±Á¯Á PÁ¯ÉÃdÄ PÀlÖqÀUÀ¼À£ÀÄß C£ÀĪÀÄw¸ÀĪÁUÀ C£ÀĸÀj¸ÀĪÀ PÀæªÀÄzÀ §UÉÎ. ****** gÁdåzÀ £ÀUÀgÀ/ ¥ÀlÖtUÀ¼À C£ÀĪÉÆâvÀ ªÀĺÁAiÉÆÃd£ÉUÀ¼À ªÀ®AiÀÄ ¤AiÀĪÀiÁªÀ½UÀ£ÀéAiÀÄ ««zsÀ ªÀ®AiÀÄUÀ¼À°è zsÁ«ÄðPÀ G¥ÀAiÉÆÃUÀzÀ ºÁUÀÆ ±Á¯Á PÁ¯ÉÃdÄ PÀlÖqÀUÀ¼À£ÀÄß C£ÀĪÀÄw¸À®Ä ¸ÁªÀiÁ£Àå CxÀªÁ «±ÉõÀ ¸ÀAzÀ¨sÀðUÀ¼À°è ¥Áæ¢üPÀgÀPÉÌ CªÀPÁ±À«zÀÝgÀÆ ¸ÀºÀ, CAvÀºÀ G¥ÀAiÉÆÃUÀUÀ½UÉ C£ÀĪÀÄw ¤ÃqÀĪÁUÀ ¥Àæ²ßvÀ ¤ªÉñÀ£ÀUÀ½gÀĪÀ ¥ÀæzÉñÀzÀ ¸ÀÆPÀëªÀÄvÉAiÀÄ£ÀÄß ¸ÀºÀ ¥ÀjUÀt¸ÀĪÀÅzÀÄ CªÀ±ÀåPÀªÁVzÉ. EAvÀºÀ C£ÀĪÀÄw ¤ÃrzÀ PÉ®ªÀÅ ¥ÀæPÀgÀtUÀ¼ÀÄ PÉÆêÀÄÄ UÀ®¨sÉUÉ PÁgÀtªÁVgÀĪÀÅzÀÄ ¸ÀPÁðgÀzÀ UÀªÀÄ£ÀPÉÌ §A¢gÀÄvÀÛzÉ. £ÀUÀgÁ©üªÀÈ¢Þ ¥Áæ¢üPÁgÀUÀ¼ÀÄ, AiÉÆÃd£Á ¥Áæ¢üPÁgÀUÀ¼ÀÄ, ¥ÀÄgÀ¸À¨sÁ AiÉÆÃd£Á ¥Áæ¢üPÁgÀUÀ¼ÀÄ ºÁUÀÆ ¸ÀܽÃAiÀÄ ¸ÀA¸ÉÜUÀ¼ÀÄ EAvÀºÀ ¸ÀAzÀ¨sÀðUÀ¼À°è dªÁ¨ÁÝjAiÀÄÄvÀ PÀæªÀÄ PÉÊUÉƼÀÄîªÀÅzÀÄ CªÀ±ÀåPÀªÁVgÀÄvÀÛzÉ. CAvÀºÀ PÀlÖqÀUÀ¼À£ÀÄß ¤«Äð¸À®Ä C£ÀĪÀÄw ¤ÃqÀĪÀ ªÉÆzÀ®Ä PÀ¤µÀ× 15 ¢ªÀ¸ÀUÀ¼À PÁ¯ÁªÀPÁ±À ¤Ãr, ¸ÀܽÃAiÀÄ 2 ¢£À¥ÀwæPÉUÀ¼À°è ¸ÁªÀðd¤PÀgÀ ªÀiÁ»wUÁV ¥ÀæPÀluÉ ¤ÃqÀĪÀÅzÀÄ ºÁUÀÆ - 12 - NC: 2025:KHC:17853 WP No. 11727 of 2019 CzÉà ¸ÀªÀÄAiÀÄzÀ°è ¥Àæ²ßvÀ ¤ªÉñÀ£ÀzÀ°è GzÉÝòvÀ PÀlÖqÀ ¤ªÀiÁðtzÀ §UÉÎ ¥sÀ®PÀ ºÁPÀvÀPÀÌzÀÄÝ, £ÀAvÀgÀ ¸ÁªÀðd¤PÀjAzÀ ¹éÃPÀj¹zÀ ¥ÀæwQæAiÉÄAiÉÆA¢UÉ ¸ÀA§AzsÀ¥ÀlÖ ¥Áæ¢üPÁgÀ/Pˤì¯ï£À ªÀÄÄAzÉ ¥Àæ¸ÁÛªÀ£É vÀAzÀÄ ¸À¨sÉAiÀÄÄ PÉÊUÉƼÀÄîªÀ ¤tðAiÀÄPÉÌ C£ÀÄUÀÄtªÁV PÀæªÀÄ dgÀÄV¸À®Ä F ªÀÄÆ®PÀ w½AiÀÄ¥Àr¹zÉ. ¸À»/- (¹.n.£ÁgÁAiÀÄt¸Áé«Ä) ¸ÀPÁðgÀzÀ C¢üãÀ PÀDAiÀÄðzÀ²ð £ÀUÀgÁ©üªÀÈ¢Þ E¯ÁSÉ UÉ, 1) £ÀUÀgÀ ªÀÄvÀÄÛ UÁæªÀiÁAvÀgÀ AiÉÆÃd£Á ¤zÉÃð±ÀPÀgÀÄ, £ÀUÀgÀ AiÉÆÃd£Á E¯ÁSÉ, ¨ÉAUÀ¼ÀÆgÀÄ 2) ¤zÉÃð±ÀPÀgÀÄ, ¥ËgÁqÀ½vÀ ¤zÉÃð±À£Á®ÄAiÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ, 3) J¯Áè f¯Áè¢üPÁjUÀ½UÉ, 4) J¯Áè DAiÀÄÄPÀÛgÀÄ, £ÀUÀgÁ©üªÀÈ¢Þ ¥Áæ¢üPÁgÀUÀ½UÉ 5) J¯Áè ¸ÀzÀ¸Àå PÁAiÀÄðzÀ²ðUÀ¼ÀÄ, ¸ÀܽÃAiÀÄ AiÉÆÃd£Á ¥Áæ¢üPÁgÀUÀ¼ÀÄ/ ¥ÀÄgÀ¸À¨sÉ AiÉÆÃd£Á ¥Áæ¢üPÁgÀUÀ¼ÀÄ 6) J¯Áè £ÀUÀgÀ ªÀÄvÀÄÛ UÁæªÀiÁAvÀgÀ AiÉÆÃd£Á ¸ÀºÁAiÀÄPÀ ¤zÉÃð±ÀPÀgÀÄ, ±ÁSÁ PÀbÉÃjUÀ¼ÀÄ 7) ±ÁSÁ gÀPÁë PÀqÀvÀ 8) ºÉZÀÄѪÀj ¥ÀæwUÀ¼ÀÄ.” 16. As could be seen from the said Circular, the State Government does not relate the power to issue this Circular to any statutory provision in the Circular and the Circular is essentially a general circular issued to all the Planning Authorities. 17. It is the stated objective in the Circular that the State in order to ensure that the establishing of a - 13 - NC: 2025:KHC:17853 WP No. 11727 of 2019 religious structure does not result in communal disturbances, the Circular was being issued. 18. If the public objections are called for before the approval of grant, fundamentally, this Circular would impeach the right of the owner of the property to use the land for a lawful purpose and that too, a purpose which is permitted under the provisions of the Act and the Master Plan prepared thereunder. 19. The impugned circular issued by the Government in exercise of its administrative power cannot have the effect of over-riding a statutory Master Plan. The Master Plan is created by a body of experts taking into consideration several factors and it is designed to ensure that the entire planning area is developed in an orderly manner for the ultimate benefit of the residents. 20. If the Master Plan provides for zoning of land and categorically states that in a particular zone, a - 14 - NC: 2025:KHC:17853 WP No. 11727 of 2019 building can be put up for a particular purpose, the impugned Circular of the Government cannot act as an impediment to the permitted use. 21. The learned Additional Advocate General, Smt.Pratima Honnapura, however, seeks to place reliance on Section 76-K of the Act, which reads as follows: “76K. Control by the State Government.—(1) Every Planning Authority shall carry out such directions as may be issued from time to time by the State Government for the efficient administration of this Act. (2) If in, or in connection with, the exercise of its powers and discharge of its functions by any Planning Authority under this Act, any dispute arises between the Planning Authority, and a local authority, the decision of the State Government on such dispute shall be final.” 22. As could be seen from Sub-section (1) of Section 76- K of the Act, the Planning Authority is required to - 15 - NC: 2025:KHC:17853 WP No. 11727 of 2019 carry out such directions as may be issued from time to time by the State Government for the efficient administration of the Act. This would therefore mean that every direction will have to be in support of the manner in which the Act is to be administered. If the Act itself provides for the creation of a Master Plan, and for delineating the lands coming under that particular land for a particular use, the State Government in exercise of powers under Section 76- K of the Act cannot amend the Master Plan, which is statutory in nature, by issuance of a direction. In other words, a direction by the State Government cannot be to disregard the land use specified in a Master Plan. 23. The power reserved to the State Government to issue administrative instructions for the implementation of the provisions of the Act, cannot be utilized by the State Government to amend the Zoning Regulations. - 16 - NC: 2025:KHC:17853 WP No. 11727 of 2019 24. The Zoning Regulations (Master Plan) are prepared by a body of experts and after calling for objections from the general public at large. On consideration of the objections, the Planning Authority is required to make recommendations to the State Government and the State Government would thereafter take those recommendations into consideration and approve the Master Plan and the Regulations framed thereunder. 25. Once the Master Plan is approved by the State Government, it assumes a statutory character and the use of the land can only be in terms of the Master Plan and the Zoning Regulations framed thereunder. Such a statutory plan cannot be defeated by placing reliance on the power to issue administrative directions under Section 76-K of the Act. 26. There is yet another aspect to be kept in mind. A right of the owner of the property to use the land - 17 - NC: 2025:KHC:17853 WP No. 11727 of 2019 cannot be subject to the view or opinions of the residents of that particular area. 27. If a citizen owns a property, he has the right to enjoy the same so long as the usage is in accordance with the law.Once the law enables the lawful owner of the property to utilize the same in a particular manner, this right cannot be made subject to the views or opinions of the general public. Merely because the building that is to be constructed would have an element of public character, that cannot entitle the Government to insist that the owner of the property should get concurrence of the residents of the area or the general public. 28. It is essentially for this purpose that a draft Master plan is prepared, objections are called for and on consideration of the objections, the Master Plan is finally approved. - 18 - NC: 2025:KHC:17853 WP No. 11727 of 2019 29. An approved Master Plan cannot be tinkered with or modified with, except as provided under the provisions of the Act. The provisions of the Act do not permit the Government to amend the Master Plan or the Zoning Regulations except in the manner provided under the provisions of the KTCP Act.In that view of the matter, it is clear that the Master Plan cannot be amended by virtue of issuance of an administrative direction under Section 76-K of the Act. 30. It must also be kept in mind that Article 25 of the Constitution of India confers a fundamental right on all the citizens of India to profess and propagate his/her religion freely but subject to public order, morality and health. 31. If there is a fundamental right to profess a religion and the person who owns the property, decides to establish a prayer hall or a religious structure to the promote and propagate his religion in accordance - 19 - NC: 2025:KHC:17853 WP No. 11727 of 2019 with the Zoning Regulations and with the valid approval of the Municipal Authorities, the same cannot affect public order of morality and this right to profess re-election freely by one citizen cannot questioned by any other citizen. The right to practice, profess and propagate one’s faith within the confines of a structure erected on a land on which such purpose is permitted would be a fundamental right and cannot be impeded by the issuance of a circular containing administrative directions. 32. It is therefore clear that the impugned Circular dated 19.09.2009 as at Annexure ‘K’ issued by the State Government cannot be sustained as it virtually amounts to amending the Master Plan, which is already approved by the State Government in the Zoning Regulations. 33. Consequently, the impugned Circular dated 19.09.2009 as at Annexure ‘K’ issued by the State Government is quashed. - 20 - NC: 2025:KHC:17853 WP No. 11727 of 2019 34. As a result, the writ petition has to succeed and the impugned Resolution passed by Udupi Planning Authority on the basis of the impugned Circular dated 19.09.2009 will also have to be quashed. Accordingly, the resolution dated 01.12.2018 as per Annexure ‘B’ is quashed and the Udupi Planning Authority is directed to consider the application for sanctioning the building plan/licence submitted by the petitioner without reference to the said Circular and pass appropriate order within a period of 4weeks from the date of receipt of a copy of this order. 35. The writ petition is accordingly allowed. 36. In view of the disposal of the petition, all pending interlocutory applications, if any, stand disposed of. Sd/- (N S SANJAY GOWDA) JUDGE RK List No.: 1 Sl No.: 131