- 1 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR JUSTICE V KAMESWAR RAO AND THE HON'BLE MR JUSTICE T.M.NADAF WRIT APPEAL NO.505 OF 2024 (LB-BMP) BETWEEN: 1. M/S ANUGRAHA HOSPITALITY SERVICES OFFICE AT #228/A, 9TH MAIN 10TH CROSS, KSRTC LAYOUT, JP NAGAR 2ND PHASE BENGALURU – 560 078 REPRESENTED BY ITS PARTNER SRI UDAY KUMAR M SHETTY, S/O SRI MARIYANNA SHETTY, AGED ABOUT 56 YEARS 2. M/S SHRI HEGDEKERE ENTERPRISES OFFICE AT 316/2(7), FIRST G CROSS, SUBBANNA GARDEN, VIJAYANAGAR, BENGALURU NORTH, BENGALURU – 560 040 REPRESENTED BY ITS PARTNER, SMT SUBEDA U SHETTY, D/O KORAGAYYA SHETTY, AGED ABOUT 47 YEARS …APPELLANTS (BY SRI. RAMESH CHANDRA, ADVOCATE) Digitally signed by MADHUSHREE H Location: High Court of Karnataka - 2 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 AND: 1. THE COMMISSIONER BBMP N.R.ROAD, BENGALURU – 560 002 2. JOINT COMMISSIONER BBMP RAJARAJESHWARI NAGAR, SUB DIVISION, BENGALURU – 560 098 3. MEDICAL HEALTH OFFICER RAJARAJESHWARI NAGAR RANGE BBMP, BENGALURU – 560 098 …RESPONDENTS (BY SRI.B.S.SATYANAND, ADVOCATE FOR C/R1; R2 & R3 SERVED AND REPRESENTED) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE IN WP NO.28108/2023 DATED 28/02/2023 AND ALLOW THE WRIT APPEAL IN THE INTEREST OF JUSTICE. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO and HON'BLE MR JUSTICE T.M.NADAF - 3 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 ORAL JUDGMENT (PER: HON'BLE MR JUSTICE T.M.NADAF) Assailing the order dated 28.02.2024, passed by the learned Single Judge in Writ Petition No.28108/2024, the petitioners / appellants are before this Court, seeking for the following reliefs: “Wherefore, the appellant prays that this Hon’ble Court be pleased to allow the appeal and set-aside order of the Learned Single Judge in W.P. 28108 of 2023 dated 28.02.2024 (wrongly mentioned as ‘2023’) and allow the writ appeal in the interest of justice.” 2. The parties are referred to as per their rankings before the learned Single Judge for easy reference. 3. Succinctly, the facts leading to the present appeal are as follows: The petitioners No.1 and 2 claim to be tenants of premises bearing No.1221, in Survey No.37/1, B-Block, Uttarahalli Hobli, Channasandra Village, Bangalore South Taluk. Petitioner No.1 claimed to be running a Restaurant in the ground floor of the said building and petitioner No.2 - 4 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 claimed to be running a Pub on the 1st floor of the said building after having obtained trade licenses in respect of the aforesaid business. 4. The petitioners approached the learned Single Judge in writ petition seeking to quash Annexures-A, A1 and A2, dated 06.12.2023 and 22.11.2023 respectively, where under the petitioners were directed by the respondents to close down the restaurant and pub on the ground that the petitioners are using a residentially sanctioned building for commercial purpose. 5. The case of the petitioners before the learned Single Judge was that since the plan, which has been sanctioned by the respondents is for commercial purpose, in view of the same, there is no embargo to be imposed on the petitioners for using the property for commercial purpose. Further, the respondents having already issued a trade licenses to run a restaurant and pub, are now estopped from contending otherwise. - 5 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 6. On the other hand, the case of the respondents put forth before the learned Single Judge was that the entire building was not sanctioned for commercial purpose. It is only to an extent of 46.96 sq.mtr., that usage for commercial purpose is allowed, leaving the remaining space of the building for usage for residential purpose i.e., hostel. Therefore, the petitioner no.1 is entitled to use only to an extent of 46.96 sq.mtr., i.e., a small portion on the ground floor for commercial purpose. On the contrary, petitioner no.1 used the entire ground floor for running a restaurant. Likewise, petitioner no.2 has used the entire first floor for running a pub, which is not sanctioned under the sanction plan. It is further the case of the respondents that though the trade license was issued and renewed, but the same shall not give a right to the petitioners to run the business, contrary to the law applicable to the said area. 7. The learned Single Judge upon hearing both sides held that, the usage of the entire building is contrary to the law applicable and dismissed the writ petition. The - 6 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 reasons for the order passed by the learned Single Judge are in paragraph No.7 onwards, of the impugned order, which reads as follows: “7. The sanction plan having been produced by the petitioner is not in dispute which indicates that the plot area is 552 sq.mts. In terms of the sanction plan an extent of 46.96 sq.mtr. of constructed area could be used for commercial purposes and the balance for residential purposes. A hostel coming at Sl.No.3 to category-R i.e., residential main usage of premises is permitted. Thus, usage for a purpose of hostel cannot be said to be commercial as contended by learned counsel for the petitioner but can only be a residential usage as per the zonal regulations. 8. The plan sanctioned though indicates has been granted for commercial purposes, the plan that has been submitted by the landlord of the petitioners is not for commercial purpose in its entirety but is restricted to a portion thereof i.e., 46.96 sq.mts balance being for a residential hostel building. This would necessarily indicate that the entire plan has not been sanctioned for commercial purposes, but the plan sanction is granted for commercial purposes only to an extent of 46.96 sq.mtr. - 7 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 9. If at all, the landlord or the petitioner No.1 could have made use of 46.96 sq.mtr. situated on the ground floor for commercial purposes and nothing more than that. As can be seen from the lease deed which has been produced by the petitioners themselves, in so far as the ground floor is concerned an extent of 3700 sq.ft. has been leased and used for restaurant purposes and the 1st floor is concerned 4200 sq.ft. is leased and used for running of a pub which is much more that 46.96 sq.mts. permitted for usage of commercial purposes. Thus, the usage of the petitioners being more than that permitted cannot be said to be in terms of the applicable law. As such, the notice which has been issued by the corporation cannot be found fault with. 10. The said notice cannot also be found fault with on one other ground even though the subject property comes under Ring-3 of the zonal regulations, the permissibility in terms of regulation 4.1.2.(ii), the main use permitted is R & T1 and ancillary use permitted is C2, 1-2 & U3, if the plot size is more than 1000 sq.mtr. having a frontage of 10 mts abutting a road more than 18 mtrs, then the ancillary use can be used as a main use. 11. In the present case, though the other terms are satisfied, the plot area is less than 1000 sq. mtr. and as such the benefit thereof cannot be enjoyed by - 8 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 the petitioner. Hence, the usage for ancillary purposes can only be restricted to 30% of the constructed area. The petitioners having used an area more than 30% for commercial purposes that to without sanction of plan for commercial purposes in terms of regulation 4.1.2.(ii) the usage cannot to be said to be permitted or legal. 12. As regard the trade license which has been issued, I’am of the considered opinion that when a property could not be used for commercial purposes as detailed above, the respondents and/or officers more particularly respondent No.3 could not have issued a trade license in a residential zone for running a commercial business activity. Though learned counsel for respondent submits that the said license has been issued and renewed by inadvertence, I am unable to accept the said submission, since there is a duty cast on the Corporation more particularly respondent No.3 to ensure that the zonal regulations are duly complied with. Hence, before issuance of such trade licence all aspects relevant thereto ought to have been checked and verified to be in accordance with the applicable law. 13. xxx 14. xxx - 9 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 15. xxx 16. In view of the above, I pass the following: ORDER i. The writ petition is dismissed. ii. The respondent-Corporation is directed to refund the pro rata amount collected for issuance of trade license for the balance remaining period of the trade licence to the petitioner. iii. Though the above petition is disposed, re-list on 26.3.2024 at 2.30 pm to place the new format for trade license as also the circular issued in that regards on record.” 8. That apart, the learned Single Judge has expressed concern, the way in which the BBMP issued trade license, which is contrary to the law applicable. The concern has been expressed by the learned Single Judge in the following words, more particularly, in paragraph No.13 which runs as follows: “13. If the BBMP itself were to issue a trade license in a residential area for carrying out non-residential business then the same would be akin to the fence eating the crop and it would make available - 10 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 arguments for persons situated like petitioner to contend that trade license would regularize or legalize their trade activities even though the same is not permitted under the zonal regulations.” (Emphasis Supplied By Me) 9. In the facts and circumstances supra, the learned Single Judge also issued guidelines reasoning the same in paragraphs No.14 and 15. 10. Assailing the order passed by the learned Single Judge, the present appeal is filed mainly on the same grounds as urged before the Learned Single Judge. 11. Sri.Ramesh Chandra, learned counsel appearing for the petitioners/appellants would submit that the plan having been sanctioned for commercial purpose, the same cannot now be restricted. The building could be used for commercial purpose not only to the extent of 46.96 sq.mtrs., but to the extent of plan sanctioned. The area in which the building is situated, on either side of the road called as Uttarahalli Main Road, several buildings have - 11 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 come up making it as a commercial area though as per Zonal Regulations it is a residential area. As such, the respondents are not right in issuing Notices to the petitioners, to close down the restaurant and pub on the ground floor and 1st floor, that the residentially sanctioned building being used for commercial purpose, in excess of permitted usage. The respondents for the reasons best known to them have targeted the appellants. As such, the action is violative of Article–14 of the Constitution of India as there being no reasonable classification. 12. The learned counsel further asserts that the learned Single Judge erred in holding that the hostel usage is a residential usage. It is a commercial use permitted in residential area and it is not the case of the respondents that there are no hotels, pubs / bar in the said area. In view of the same, setting up of hotel cannot be faulted with. Further, the trade license has been issued after compliance of all formalities, as such the notices impugned - 12 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 in the writ petition are violative of Articles – 14 and 21 of the Constitution of India. 13. The learned counsel appearing for the petitioners / appellants has filed a memo in the Registry of this Court on 20.12.2024, seeking to produce an internal office order issued by the respondent No.1 herein dated 13.01.2020. The English translation of the same has been produced by the appellants, which reads as under: “Order It has been ordered to grant licenses only if the entrepreneurs / business in commercial areas have paid the rent / lease agreement with the owner, electricity bills along with the required fee and if the electricity bill, rent / lease agreement with the owner and consent letters of the neighbours to be submitted for food related business in residential areas with a width of 40 feet on roads as per zoning classification.” 14. On this, the learned counsel would urge and contend that, if the width of the road is 40 feet, even in residential area, the license could be granted to run a - 13 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 commercial venture in the whole of the building. With all these, he submits that the order of the learned Single Judge needs to be set-aside and the appeal be allowed, quashing the impugned orders issued against the petitioners in the writ petition. 15. Refuting the contentions of the learned counsel appearing for the appellants, the learned counsel for the respondent – authorities, Shri.Sathyananda B.S., vehemently urges that the plan sanctioned for commercial purpose is 46.96 sq.mtrs., and balance is sanctioned for residential purpose for usage of hostel. What could be used for the commercial purpose is to the extent stated supra and not more than that. However, the petitioners/appellants are using the entire ground floor, as well as first floor for running restaurant and pub, which is beyond permissible limit. Though the trade license has been issued beyond the permissible area, the same will not create a right in favour of the appellants as the law is contrary to what is being claimed by the petitioners. - 14 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 16. Heard the learned counsel for the parties and perused the record. Suffice to state, the learned Single Judge has clearly held in the impugned order at paragraph Nos.10 and 11 as extracted above by us, that the plot area in the present case is less than 1000 sq.mtrs., and as such, the benefit cannot be enjoyed by the petitioners – appellants. Any usage for auxiliary purpose is required to be restricted to 30% of the constructed area. The petitioners having used area more than 30% for commercial purpose that too without sanction plan is clearly in violation of Regulation 4.1.2.(ii) of the Zonal Regulations. In the said circumstances, the usage cannot be said to be permitted usage. Though an attempt has been made by the learned counsel for the appellants by citing an order dated 13.01.2020, which though was not produced before the learned Single Judge, we have carefully gone through the said order, which stipulates about issuance of license in respect of food related business in commercial area and in the case of residential - 15 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 area where the width of road is 40 feet. However, the said order cannot be read in isolation and contrary to the Zonal Regulations, which is a creation of law under the provisions of Karnataka Town And Country Planning Act, 1961. Mere issuance of license cannot be read as a right to use the building in a residential area more than the permissible limit, under the provisions stated supra. The usage of the building by the appellants is more than the permissible limit under the Zonal Regulations. In the sanction plan, the usage is shown to the extent of 46.96 sq.mtrs., for commercial purpose and the balance for residential purpose including usage as a hostel. In these circumstances, the arguments urged by the learned counsel for the petitioners/appellants cannot be countenanced. 17. The learned Single Judge has extensively considered the matter and also issued the guidelines which are necessarily to be adopted while issuing the trade - 16 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 licenses, in order to encounter any kind of situations, like the one which is noticed in the present case. 18. We are in full agreement with the reasons given by the learned Single Judge while passing the order impugned herein which have been extracted by us, above. The contentions urged by the petitioners – appellants sans acceptance. We find no merit in the appeal. In these circumstances, the appeal fails and requires to be dismissed, as devoid of merits. 19. Accordingly, we pass the following: ORDER i) Writ Appeal filed challenging the order dated 28.02.2024, passed by the learned Single Judge W.P.No.28108/2023 is hereby Dismissed, as devoid of merits. ii) The order passed by the learned Single Judge supra is hereby confirmed. - 17 - NC: 2025:KHC:9311-DB WA No. 505 of 2024 iii) In the facts and circumstances of the case, cost made easy. Sd/- (V KAMESWAR RAO) JUDGE Sd/- (T.M.NADAF) JUDGE JJ List No.: 1 Sl No.: 12