- 1 - WP NO.14903 OF 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH WRIT PETITION NO.14903 OF 2022 (BDA) BETWEEN: 1. MARIGOLD TRUST A REGISTERED TRUST HAVING ITS PRINCIPAL OFFICE AT: ‘MARIGOLD SQUARE’, NO.17, ITI LAYOUT, SARAKKI 30TH MAIN ROAD, BENGALURU – 560 078. REP. BY ITS SETTLOR AND TRUSTEE DR. UJWALA NAGARAJA RAO JAGDALE W/O DR. SHUDHINDRA DAMODAR RAO AGED ABOUT 42 YEARS. 2. RAJDISLE PRIVATE LIMITED A COMPANY WITH THE MEANING OF COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT: NO.17, ‘MARIGOLD SQUARE’, 9TH CROSS, J.P. NAGAR, 1ST PHASE, BENGALURU – 560 078. REP. BY ITS MANAGING DIRECTOR DR. UJWALA NAGARAJA RAO JAGDALE W/O DR. SUDHINDRA DAMODHAR RAO AGED ABOUT 42 YEARS. 3. DR. UJWALA NAGARAJA RAO JAGDALE W/O DR. SUDHINDRA DAMODHAR RAO AGED ABOUT 42 YEARS, R/AT NO.608, 15TH CROSS, J.P. NAGAR, 1ST PHASE, BENGALURU – 560 078. …PETITIONERS (BY SRI. MANU PRABHAKAR KULKARINI, ADVOCATE) V N BADIGER Digitally signed by V N BADIGER Date: 2025.01.16 13:03:12 +0530 - 2 - WP NO.14903 OF 2022 AND: 1. BANGALORE DEVELOPMENT AUTHORITY REP. BY ITS COMMISSIONER, KUMARA PARK WEST, T. CHOWDAIAH ROAD, BENGALURU – 560 020. 2. TOWN PLANNING MEMBER, BANGALORE DEVELOPMENT AUTHORITY KUMAR PARK WEST, T. CHOWDAIAH ROAD, BENGALURU – 560 020. …RESPONDENTS (BY SRI. S. LAKSHMEESH RAO, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE COMMUNICATIONS DATED 02ND JUNE, 2020 VIDE ANNEXURE-L, 28TH JULY, 2020 VIDE ANNEXURE-P, 29TH JANUARY, 2021 VIDE ANNEXURE-S, 11TH JANUARY, 2022 VIDE ANNEXURE-U ISSUED BY THE RESPONDENT-BDA TO THE PETITIONERS; DIRECT THE RESPONDENTS TO APPROVE THE CHANGE IN LAND USE OF THE SCHEDULE PROPERTY FROM INDUSTRIAL TO EDUCATIONAL/PUBLIC AND SEMI-PUBLIC PURPOSE; AND ETC. THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDERS, COMING FOR PRONOUNCEMENT OF ORDERS, THIS DAY, E.S. INDIRESH J., MADE THE FOLLOWING:. CORAM: THE HON'BLE MR. JUSTICE E.S. INDIRESH - 3 - WP NO.14903 OF 2022 CAV ORDER In this Writ Petition, petitioners are challenging the letters dated 02nd June, 2020 (Annexure-L), 28th July, 2020 (Annexure-P), 29th January, 2021 (Annexure-S), 11th January, 2022 (Annexure-U) and 22nd August, 2023 (Annexure-AE) issued by the respondent-Bangalore Development Authority to the petitioners; inter alia sought for a direction to the respondent-Bangalore Development Authority to approve the schedule property for conversion from industrial to educational/public and semi-public purpose and to approve the sanction plan for construction of the school building in the schedule property. 2. It is the case of the petitioners that the petitioner No.1-Trust was formed by the petitioner No.3 with an object of imparting education in the State of Karnataka as per the object mentioned in the Trust Deed produced at Annexure-D to the writ petition. It is stated that the petitioner No.1-Trust was formed as a partnership firm named as “RJU Industrial Company” and the said company was converted into a private limited company on 01st December, 2009. It is also stated in - 4 - WP NO.14903 OF 2022 the writ petition that the land bearing Survey Nos.31/2 and 32/3 situate at Challaghatta Village, Kengeri Hobli, Bengaluru South Taluk measuring 2 acres each was leased by the petitioner No.2 to the petitioner No.1-Trust to enable and facilitate for opening of School by the petitioner No.1-Trust. It is further stated in the writ petition that the aforementioned lands have been categorised for ‘industrial purpose’ as per the Revised Master Plan-2015 approved under the Karnataka Town and Country Planning Act, 1961 (for short, hereinafter referred to as ‘KTCP Act’). In this connection, petitioners have made an application to the respondent-Bangalore Development Authority and sought for grant of commencement certificate for the proposed School building to be constructed on the schedule property as well as at land bearing Survey No.49/2 at Kambipura Village and accordingly, submitted the Development Plan for the proposed school building to be constructed in the schedule property as per Annexures ‘G’ and ‘H’ respectively. The respondent-Bangalore Development Authority issued letters dated 07th August, 2019 (Annexure-J) and 16th August, 2019 (Annexure-J1), directing the petitioners to provide certain documents to conduct spot inspection for considering the case - 5 - WP NO.14903 OF 2022 of the petitioners for change of use of land from industrial use to construct the school building. 3. It is also stated in the petition that the petitioners have commenced the work of clearance of Trees and Plants situate at schedule land and dismantling of the old factory building and further took steps for construction of compound wall and foundation work in the schedule property with an intention to construct a building of Ground + 7 floors and as such, entrusted the work for more than 400 workers. However, at that stage, due to COVID-19 Pandemic, the Government had imposed Lockdown restrictions and accordingly, transport restrictions were imposed, due to which, there was no means for the labourers for returning to their homes and also to ensure basic food and shelter to such workers and as such, the petitioners did not abandoned the labourers and approached the respondent-Bangalore Development Authority as per letter dated 08th May, 2020 (Annexure-K) with relevant documents to enable the respondent-Bangalore Development Authority to take decision in the matter. In response to the same, the respondent-Bangalore Development Authority had issued impugned letter dated 02nd June, 2020 (Annexure-L), stating - 6 - WP NO.14903 OF 2022 that, as per Revised Master Plan-2015, both the Survey Nos.31 and 32 have been categorised for industrial purpose and accordingly, rejected the request made by the petitioners to start the educational institution. It is also stated that the reply made by the respondent-Bangalore Development Authority that the utilisation of entire area of 7 acre 33 guntas for educational purpose cannot be permitted as the same has to be utilised for the industrial use subject to 10% of the total area be used for ancillary purpose and accordingly, rejected the claim made by the petitioners for utilisation of entire extent of land for ancillary purpose. In furtherance of the same, the petitioners addressed letter dated 12th June, 2020 (Annexure-M) stating that, 10% of the entire extent would be utilised for the construction of the School for the children of industrial area. 4. It is also stated that in the petition that the officers of the Government had inspected the Site and the area in which the labourers were living. It is further averred in the writ petition that, no construction has been carried out in Survey No.49/2 in Kambipura Village. In furtherance of the same, the petitioners have addressed letter dated 29th August, 2020 (Annexure-Q) to the respondent-Bangalore Development - 7 - WP NO.14903 OF 2022 Authority and undertook to make construction as per Revised Master Plan-2015. It is stated in the letter that the petitioners have constructed Ground + 3 Floors and the petitioners have filed declaration as well as affidavit for consideration of conversion of the land in question and pursuant to the same, the respondent-Bangalore Development Authority had issued endorsement/letter dated 29th January, 2021 (Annexure-S), rejecting the claim made by the petitioners for conversion of the land from industrial purpose to construction of the school building. It is further stated that the petitioner No.1 has made a representation dated 24th November, 2021 (Annexure-T) to the respondent-Bangalore Development Authority to consider the case of the petitioners as a special case in view of the factual aspects on record and also referred to chapter 4.7.2 of Revised Master Plan-2015, wherein 10% of the land may be utilised to ancillary use as per letter produced at Annexure-T. It is the grievance of the petitioners that the respondent- Bangalore Development Authority, had not considered the representation made by the petitioners, however, finally by letter dated 08th July, 2021 (Annexure-Z) the Executive Engineer, Public Works Department, Bengaluru Division stated that the construction made by the petitioners is structurally - 8 - WP NO.14903 OF 2022 stable. In the backdrop of these aspects, the petitioners have presented this writ petition. 5. Heard Sri. Manu Prabhakar Kulkarni, learned counsel for the petitioners and Sri. S. Lakshmesh Rao, learned counsel for respondents. 6. Sri. Manu Prabhakar Kulkarni, learned counsel appearing for petitioners argued that the petitioners have constructed Ground + 3 floors School building to facilitate the children of labourers in the locality and the petitioner No.1 being a Trust, is imparting education to the rural masses and therefore, contended that the building was constructed to protect the interests of the labourers during COVID-19 Pandemic and in view of the provisions contained under Section 72 of the Disaster Management Act, 2005, the impugned letters issued by the respondent–Bangalore Development Authority, denying the relief to the petitioners cannot be accepted. Further, it is submitted by the learned counsel appearing for petitioners that the petitioners were compelled to make use of exceptional situation during COVID-19 Pandemic, wherein essential services were provided to the people at home itself and the petitioners have allowed the labourers to construct the - 9 - WP NO.14903 OF 2022 School building to protect the interest of more than 400 labourers in terms of the order dated 20th March, 2023, issued by the Union Ministry of Labour and Employment. It is also contended by the learned counsel appearing for the petitioners that the refusal to regularise the construction of school building and failing to provide change of land use on account of the construction activities undertaken during the COVID-19 Pandemic, would affect the fundamental rights of the petitioners under Article 14, 19(1)(g), 21 and 300-A of Constitution of India. It is also contended by the learned counsel for the petitioners that the construction activities were undertaken for public interest as per Section 14-A of KTCP Act. It is also argued that the provisions under the said Act, provide for regularizing the construction made without prior sanction plan/commencement certificate/change of land use and accordingly, invited the attention of the Court to provision contained under Section 95(2A)(xi) of the Land Revenue Act, 1964, which provides for regularization of the land and as such the respondent-Bangalore Development Authority ought to have permitted the petitioners to carry out of educational activities in the schedule property. He further contended that the petitioners are entitled for relief of deemed approval of the - 10 - WP NO.14903 OF 2022 sanction plan and as such, he invited the attention of the Court to Section 15(2) of KTCP Act and argued that, as the petitioners have completed the building in the schedule property and as such, the same is required to be regularized by setting aside the impugned letters/endorsement issued by the respondent-Bangalore Development Authority. In order to buttress his arguments, he referred to the judgment of High Court of Kerala in the case of M.H. VIJAYAN vs. STATE OF KERALA AND OTHERS made in WP(C) No.11060/2020 and in the case of PRANEETH K. AND OTHERS Vs. UNIVERSITY GRANTS COMMISSION (UGC) AND OTHERS reported in (2021) 14 SCC 241 and argued that the provisions under Disaster Management Act, 2005 prevail over the KTCP Act, being a special enactment. Accordingly, he sought for interference of this Court. 7. Per contra, Sri. G. Lakshmesh Rao, learned counsel appearing for the respondent-Bangalore Development Authority submitted that the schedule property and the land in Survey No.49/2 of Kambipura Village are categorized for industrial purpose as per Revised Master Plan-2015 and therefore, the said land cannot be utilized for running school. It is also - 11 - WP NO.14903 OF 2022 submitted by the learned counsel appearing for the respondent- Bangalore Development Authority that, an enquiry has been conducted by the respondent–Bangalore Development Authority and rejected the applications of the petitioners on the ground that, as per Revised Master Plan-2015, the land is categorised for the ‘industrial use’ and only an extent of 10% of the land could be used for ‘ancillary use’ for public and semi- public category which includes educational purpose and as in the present case, construction activities have been undertaken by the petitioners, which is contrary to KTCP Act and Zonal regulations and therefore, no sympathy could be extended to the petitioners in the circumstances of the case as the petitioners are taking advantage of COVID-19 Pandemic. 8. It is also the principal submission of Sri. G. Lakshmesh Rao, learned counsel appearing for the respondent- Bangalore Development Authority that the petitioners, after having constructed the building in violation of law, have sought for change of land used from industrial purpose to run educational institution, which cannot be accepted by over looking the pre-requisite approvals of the statutory bodies. Accordingly, he contended that the petitioners have scant - 12 - WP NO.14903 OF 2022 respect for law and by ignoring the mandate of law, have constructed the building in question. 9. It is also the contention of learned counsel appearing for the respondent-Bangalore Development Authority that the Government Notifications issued under the provisions of Disaster Management Act, 2005, will not restrict the powers of statutory authority in respect of granting permission/license and even during the said period, KTCP Act was not suspended and therefore, regularising the illegal construction, cannot be approved by exercising jurisdiction under Article 226 of the Constitution of India. In this regard he refers to the judgment of Hon’ble Supreme Court in the case of BANGALORE INTERNATIONAL AIRPORT AREA PLANNING AUTHORITY vs. BIRLA SUPER BULK TERMINAL (NOW A UNIT OF ULTRA TECH CEMENT LIMITED) AND OTHERS reported in (2019) 12 SCC 572 and accordingly, sought for dismissal of the writ petition. 10. In the light of the submission made by the learned counsel appearing for the parties, the core question to be answered in this writ petition as to whether the petitioners are entitled for regularising the construction made to run school in - 13 - WP NO.14903 OF 2022 the schedule property. It is not in dispute that the petitioners are the owners in possession of the land bearing Survey Nos.31/2, 32/3 and 32/2 of Challagatta village, Kengeri Hobli, Bengaluru. Perusal of the writ petition would indicate that the petitioner-Trust intends to construct school building in the schedule property and in this regard made an application to the respondent-Bangalore Development Authority to change the land use and also to confer sanction to use the land for the purpose of imparting education in the locality. It is the case of the respondent-Bangalore Development Authority that, since the land in question is covered under Revised Master Plan-2015 as ‘industrial area’ and therefore, only an extent of 10% of the land could b be utilized for ancillary use and as such, the plea made by the petitioners cannot be accepted to confer post facto license/sanction for change of use in land. It is stated in the writ petition that the building in question was constructed during Covid-19 Pandemic and the Government had issued several notifications under Disaster Management Act, 2005. It is urged by the petitioners that the provisions contained under Disaster Management Act, 2005 prevail over the provisions under KTCP Act. In this aspect of the matter, I have examined the reasons assigned by the respondent-Bangalore - 14 - WP NO.14903 OF 2022 Development Authority in the impugned letters. On careful examination of the reasons assigned at letter dated 29th January, 2021 (Annexure-S) with regard to the representation dated 24th September, 2020, the respondent-Authorities have not considered the reasons said to have been made by the petitioners, seeking regularization of the land in question in detail. The respondent-Bangalore Development Authority, without passing speaking order and solely based on the Revised Master Plan-2015, rejected the claim made by the petitioners. 11. On Perusal of the statement made in the letter dated 08th July, 2021 (Annexure-Z) would indicate that the Executive Engineer, Public Works Department, Bengaluru accorded ‘No objection Certificate’ after conducting inspection about the feasibility of the building and held that the building is ‘structurally stable’. However, the said aspect of the matter has not been considered by the respondent-Bangalore Development Authority in the light of provisions contained under KTCP Act. It is also to be noted that, as per letter 07th August, 2019 (Annexure-J) and letter dated 16th August, 2019 (Annexure- J1), the respondent-Bangalore Development Authority sought for certain documents from the petitioners for considering the - 15 - WP NO.14903 OF 2022 case for regularization and sanctioning the plan and in furtherance of the same the petitioners have made representation dated 08th May, 2020 (Annexure-K). In that view of the matter, I am of the opinion that the respondent- Bangalore Development Authority had not considered the case of the petitioners in the right perspective and solely on the pretext that the school building has been constructed without sanction, had rejected the claim of the petitioners. Therefore, I am of the view that the learned counsel appearing for the petitioners have made out a case for interference by this Court. 12. It is also to be noted that during COVID-19 Pandemic, several notifications have been issued by the Government to protect the interests of larger section of people including the labourers and Section 72 of Disaster Management Act, 2005 provides for overriding effect against any other law enforced therein. Though the learned counsel appearing for the respondent-Bangalore Development Authority places reliance on the judgment of Hon’ble Supreme Court in the case of BANGALORE INTERNATIONAL AIRPORT AREA PLANNING AUTHORITY (supra), however the question before the Hon’ble Supreme Court in the said case was with regard to the - 16 - WP NO.14903 OF 2022 provisions under Karnataka Industrial Areas Development Act, 1966 and KTCP Act and as such it was held that, both the enactments are operating on different field and the provision under these two enactments have to be read harmoniously. It is also to be noted that Section 72 of the Disaster Management Act, 2005, being special enactment to provide for effective management of disasters and for matters connected therewith or incidental thereto, to ensure measures to be taken by the Government to mitigate the effects of disasters and therefore the Hon’ble Supreme Court in the case of MUNICIPAL CORPORATION OF DELHI, DELHI Vs. ASSOCIATION OF VICTIMS OF UPHAAR TRAGEDY AND OTHERS reported (2011) 14 SCC 481, had held that, it is necessitated for prompt enforcement of the provisions of the Disaster Management Act, including alertness and preparedness at all times, for efficient disaster management. In the light of the aforementioned aspects of the matter, it is expedient for the respondent-Bangalore Development Authority to reconsider the case of the petitioners in accordance with law taking into account the factors urged by the petitioners for construction of school building. Therefore, I am of the view that the respondent-Bangalore Development Authority is required to - 17 - WP NO.14903 OF 2022 reconsider the issue afresh and pass appropriate orders taking into account the observation made above. Accordingly, I pass the following; O R D E R (1) Writ petition is allowed; (2) Letters dated 02nd June, 2020 (Annexure- L), 28th July, 2020 (Annexure-P), 29th January, 2021 (Annexure-S), 11th January, 2022 (Annexure-U) and 22nd August, 2023 (Annexure-AE) issued by the respondent- Bangalore Development Authority are hereby set-aside and matter is remitted to respondent-Bangalore Development Authority to reconsider the case of the petitioners afresh after providing an opportunity of hearing to the petitioners; (3) It is also open for the petitioners to make one more representation to the respondent- Bangalore comprehensive Development Authority along with necessary documents to enable the respondent-Bangalore Development Authority to take decision in the matter in accordance with law and if such representation is made by the petitioners within three weeks from the date - 18 - WP NO.14903 OF 2022 of receipt of this order, the respondent- Bangalore Development Authority shall consider the same and take decision in the matter, within an outer limit of four months from the date of receipt of such representation, by providing an opportunity of personal hearing to the petitioners. (4) All contentions of the parties are kept open. Sd/- (E.S. INDIRESH) JUDGE ARK