M/S M K AHMAD SUPER MARKET V. THE COMMISSIONER

WP/32422/2015

AI Insights

The case involves M.K. Ahmad Super Market, which challenged multiple notices issued by the Bruhat Bangalore Mahanagar Palike and the Health Officer, Jayanagar Division, regarding the closure of its commercial activity in a residential area and the cancellation of its trade license. The petitioner argued that the commercial use was permissible under the Revised Master Plan 2015, as the property met specific criteria regarding plot size and road width. The respondents contended that the commercial activity violated zoning regulations and caused public inconvenience, citing a government notification that restricted such activities in residential zones. The court examined whether the notifications could be applied retrospectively and the validity of the zoning regulations at the time the petitioner commenced operations.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 726698 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 22-08-2022
• Assessment Year: misc
• Other Referred Cases: T.Vijayalakshmi v. Town Planning Member [AIR 2007 SC 25], Income Tax Officer, Alleppy v. M.C.Ponnoose [AIR 1970 SC 385], India Sugars and Refineries Ltd. v. State of Mysore [AIR 1960 MYS 326], W.P.Nos.206789-790/2015, Motilal Padampat Sugar Mills Company Limited v. State of Uttar Pradesh [AIR 1979 SC 621], H.H.Builders (Kant) Pvt. Ltd. v. Corpn. of the City of Bangalore [AIR 1990 KAR 56]
• Laws Referred To: Articles 226 and 227 of the Constitution of India, Karnataka Shops and Commercial Establishments Act, 1961, Karnataka Municipal Corporations Act, 1976, Revised Master Plan 2015
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ARAVIND NEGLUR; G R MOHAN
• Assessee Lawyers: B K KUMAR; SURAJ SAMPATH
• Keywords: Commercial activity in residential area; Zoning regulations; Retail shopping complex; Ancillary use
• Section: 321(3)

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST 2022 BEFORE THE HON’BLE MR. JUSTICE R.NATARAJ WRIT PETITION NO.32422 OF 2015 (LB-BMP) BETWEEN: M/S M.K. AHMAD SUPER MARKET NO. 118, 3RD/8TH MAIN ROAD SARAKKI DOLLAR LAYOUT, IV PHASE, J.P. NAGAR, BANGALORE-560078 REPRESENTED BY ITS PARTNER MR. A.P. AHMAD RAFI …PETITIONER (BY SRI. B.K.SAMPATH KUMAR, SENIOR ADVOCATE ALONG WITH SRI. SURAJ SAMPATH, ADVOCATE) AND: 1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGAR PALIKE CORPORATION CIRCLE, HUDSON CIRCLE, BANGALORE-560 002 2. THE HEALTH OFFICER JAYANAGAR DIVISION, BRUHAT BANGALORE MAHANAGARA PALIKE, 1ST FLOOR, JAYANAGAR 4TH BLOCK, BANGALORE-560011. 3. SOMAYAJI K.V.R., S/O LATE VASUDEVA SOMAYAJI, AGED ABOUT 62 YEARS, NO.97, 3RD MAIN, 2ND CROSS, 2 SARAKKI LAYOUT, J.P. NAGAR 4TH PHASE, BANGALORE-560 078. …RESPONDENTS (BY SRI. ARAVIND M. NEGLUR, ADVOCATE FOR RESPONDENT NOS.1 AND 2 SRI. G.R.MOHAN, ADVOCATE FOR RESPONDENT NO.3; CAUSE TITLE IS AMENDED VIDE ORDER DATED 05.01.2016) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTICE DATED 20.07.2015 BEARING REFERENCE NO.A.Y(J.N)/PR/85/2015-16 VIDE ANNEXURE-A ISSUED BY THE 2ND RESPONDENT AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 15.07.2022 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER The petitioner has challenged the notice dated 20.07.2015 issued by the respondent No.2 calling upon it to show cause as to why the commercial activity undertaken by it in a residential area should not be closed. The petitioner has also challenged the notice dated 16.08.2016 to show cause within three days as to why the licence granted to the petitioner to run commercial activity in the premises in question should not be cancelled. He has also challenged a notice dated 16.01.2017 wherein it was stated that the petitioner was conducting commercial 3 activity in a residential zone and that the petitioner had violated the Zoning Regulations notified by the State Government on 20.03.2015 as per the Order passed by this Court in W.P. No.3676/2008. The petitioner was called upon to show cause as to why the commercial activity undertaken by it should not be closed. 2. The petitioner claims that it had taken on lease the property bearing No.118, 3rd / 8th Main Road, Sarakki Dollar Layout, IV Phase, J.P. Nagar, Bengaluru-560 078 (henceforth referred to as ‘the petition schedule property’) from its owners to run a super market. It claimed that the schedule property lay at the corner of the said 3rd and 8th main roads. The petitioner claimed that the 3rd and 8th Main Road were more than 18 m wide and the property lay within a Residential (Mixed) Zone in the Revised Master Plan 2015 for Bangalore. The petitioner claimed that since the plot size was more than 240 sq.m. and the road width was more than 18 m, the ancillary uses, namely, C3, I-2, U4 and T2 were permitted. The petitioner claimed that the 4 owners of the petition schedule property hence submitted a plan for approval to construct a building for retail use. The petitioner further contended that retail shops and hardware shops were permitted activity in a residential zone if the plot size was more than 240 sq.m. and the road width was more than 18 m. The petitioner contends that there were several other commercial establishments in the area which were left untouched. After the petitioner took the premises on lease on 16.12.2009, it started operating a super market after obtaining a trade licence from the respondent No.2 and was registered under the Karnataka Shops and Commercial Establishments Act, 1961. When things stood thus, on 04.10.2012, certain unruly elements filed a public interest litigation in W.P.No.40865/2012 before this Court where they claimed that the petition schedule property should not be used for the purpose of a super market as the building was constructed in violation of the sanctioned plan and a confirmation order dated 03.09.2011 was passed under Section 321(3) of the Karnataka Municipal Corporations Act, 1976 (for short, 'the 5 Act of 1976') to demolish the building. The said writ petition was disposed off on 23.08.2013 reserving liberty to the owners of the petition schedule property to approach the Karnataka Appellate Tribunal (for short, ‘the Tribunal’) following which, the owners have filed an Appeal No.737/2013 where the Tribunal has granted an order of status quo on 23.08.2013. The petitioner alleged that based on the complaint of some busybodies, the respondent No.2 issued a notice dated 20.07.2015 to Mr.A.P. Ahmad Rafi, partner of the petitioner, stating that the State Government had issued a notification dated 11.12.2014 which prohibited commercial activity in residential areas and that the activity undertaken by the petitioner was not permitted under the notification dated 11.12.2014. The petitioner alleged that though it issued a reply on 27.07.2015 stating that as per the Revised Master Plan 2015, it was permitted to use the petition schedule property for commercial activity if the plot size was more than 240 sq. m. and the road width was more than 18 m, the respondent No.2 without considering the 6 same, was persisting to close down the business. Hence, the petitioner has filed this writ petition. During the pendency of this writ petition, further notices dated 16.08.2016 and 16.01.2017 were issued on the same lines which are also challenged in this writ petition. 3. The Writ Petition is opposed by the respondent Nos.1 and 2 who have filed their statement of objections contending that the notification No.UDD 105 MNJ 2008 dated 11.12.2014 issued by the State Government was superseded by another notification No.UDD 105 MNJ 2008 dated 20.03.2015. As per the said notification, permission granted to super markets in residential main zones in Ring No.1 and Ring No.2 was only up to 20% of the total built up area. It is contended that no parking area was provided in the petition schedule property and vehicles were parked on the footpath which caused immense hardship to the footpath and the road users. They contended that in Ring- 3, if the main land use is residential, then ancillary use was permitted up to 30% of the total built-up area. 7 4. The respondent No.3 has also contested the writ petition contending that the petition schedule property where commercial activity is undertaken is located in a residential (Main) area which is evident from the sanctioned plan. In such areas, ancillary use is allowable up to 20% of the total built-up area or 50 sq.m. whichever is higher. He claimed that if the plot size is more than 240 sq.m. and the abutting road is more than 18 m wide, then ancillary use can be used as main use. He claimed that this restriction was in force in the year 2010 itself when the petitioner applied for a trade licence. He contended that since residential area was used for commercial activity, the Division Bench of this Court entertained a public interest litigation in W.P.No.2661/2015 (disposed off on 28.04.2015) and directed the authorities to ensure the compliance of the Zoning Regulations prescribed under the Revised Master Plan 2015 notified in the year 2007. He further contended that the State Government issued a gazette notification dated 20.03.2015 which indicated that the petition schedule property was part of planning district 8 2.10 and lay within Ring-1 where the following restriction applied: “The ancillary usage shall be permitted in residential main and residential mixed zones in Ring No.1 and Ring No.2 up to 20% of the built up area or 50 sq.mtrs whichever is lower provided the width of the road is above 40 feet.” 5. The respondent No.3 further contended that the petitioner had deliberately not filled up the entry in respect of Zonal Classification in the application for trade licence and had hidden the fact that the super market operated by the petitioner lay within the residential (Main) zone. Therefore, he contended that the petitioner is not entitled to any relief in this writ petition. 6. The learned senior counsel representing the petitioner submitted that the Revised Master Plan 2015 came into effect from 22.06.2007 and the Zoning of Land use and Regulations as applicable to Residential (Mixed) permitted the following ancillary uses: 9 Sl. No. Plot size (sq.m) Road Width (Min.) Ancillary Uses permissible as main land use 1 Up to 240 15.0m C2, I-2, U3, T2 2 Above 240 up to 1000 18.0m C3, I-2, U4, T2 7. The learned senior counsel contended that category C3 related to commercial uses which included amongst other things \"retail shopping complexes\". He therefore submitted that since the property in question measures more than 240 sq.m and faced a road which measured more than 18 m wide, it could be used for construction of a retail shopping complex. Hence, he submitted that the respondent Nos.1 and 2 had sanctioned the plan on 16.07.2008 for commercial purposes and therefore, the respondent No.2 could not have issued the notices dated 20.07.2015, 16.08.2016 and 16.01.2017, based on the Government notifications dated 11.12.2014 20.03.2015 as by that time, the construction was already completed. 10 8. The learned senior counsel for the petitioner relied upon the judgment of Hon'ble Supreme Court in T.Vijayalakshmi v. Town Planning Member [AIR 2007 SC 25] and contended that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. He contended that the notification dated 11.12.2014 or the notification bearing No.UDD 105 MNJ 2008 dated 20.03.2015 cannot be given retrospective effect. In this regard he referred to the judgment of the Hon'ble Supreme Court in Income Tax Officer, Alleppy v. M.C.Ponnoose [AIR 1970 SC 385] where it was held in para No.3 as under: “xxx Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with 11 retrospective effect. But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect\". 9. The learned senior counsel also relied upon the judgment of a Division Bench of this Court in India Sugars and Refineries Ltd. v. State of Mysore [AIR 1960 MYS 326]. He also cited a judgment of a coordinate Bench of this Court in W.P.Nos.206789-790/2015 (disposed off on 09.02.2016). Lastly, he relied upon the judgment of the Apex Court in the case of Motilal Padampat Sugar Mills Company Limited v. State of Uttar Pradesh [AIR 1979 SC 621] to contend that once the parties have acted on a set of circumstances, the authorities cannot alter the position to the disadvantage of such party. He further relied upon the judgment of a coordinate bench of this Court in H.H.Builders (Kant) Pvt. Ltd. v. Corpn. of the City of Bangalore [AIR 1990 12 KAR 56] and contends that once a building is complete, the authorities cannot alter the licence. 10. The learned counsel for the respondent Nos.1 and 2 and the learned counsel for respondent No.3 contended that as per the notification dated 20.03.2015 issued by the State Government, the petitioner was not entitled to conduct commercial activity in a residential zone and therefore, the notices issued by the respondent No.2 were justified. Even otherwise, they contended that the petition schedule property is ordered to be demolished under Section 321(3) of the Act of 1976 and therefore, the use of the premises for commercial activity should not be permitted. The learned counsel for the respondent No.3 invited the attention of the Court to the photographs which indicated that the customers of the petitioner had parked their motor vehicles on the footpath. He contends that adequate parking space must have been provided within the petition schedule property. 13 11. I have considered the submissions made by the learned counsel for the parties. 12. It is not in dispute that the petitioner is a mere tenant occupying the premises in question. It is equally not in dispute that the petition schedule property measures more than 240 sq.m. and is bound on two sides by a road. The respondent No.1 has not denied the fact that the roads are more than 18 m wide. The petition schedule property lay within the local planning district 2.10 of the master plan which was reserved for Residential (Main). The extant Zonal Regulations applicable to the petition schedule property was the one framed under the Revised Master Plan 2015 effective from 22.06.2007 which provided that if the main land use category is Residential (Main), the ancillary use is allowable to 20% of the total built up area or 50 sq.m whichever 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 wide, then the entire property could be put to ancillary use. The 14 ancillary use in so far as Residential (Main) is concerned are as provided in categories-C2, I-2 and U3 which correspond amongst other things to, \"retail shops and hardware shops\". The question therefore that requires to be considered is whether the petitioner was a \"retail shop\" categorized under C2 or a \"retail shopping complex\" categorized under C3. If it is treated as a \"retail shopping complex\", then the same is not allowable in Residential (Main) zone. 13. No doubt the building plan in respect of the petition schedule property was sanctioned in the year 2008 and thereafter, proceedings are initiated for construction of the building in violation of the plan which is stated to be challenged before the Tribunal. Be that as it may, since the construction is completed prior to the year 2014 that is much before the State Government issued a notification bearing No.UDD 105 MNJ 2008 dated 11.12.2014 and the notification No.UDD 105 MNJ 2008 dated 20.03.2015, the respondents cannot retrospectively apply the stipulations under the said notifications. 15 14. Since the petitioner has already submitted its reply to the notice dated 20.07.2015 impugned herein, this Writ Petition is allowed in part. The respondent Nos.1 and 2 shall consider the reply in the light of the observations made above and pass appropriate orders within three months from the date of receipt of a certified copy of this Order. While doing so, the respondent Nos.1 and 2 shall ascertain whether the petitioner is running a \"retail shop\" or a \"retail shopping complex\" in the petition schedule property and apply the Zoning Regulations as it stood prior to 11.12.2014 or 20.03.2015. Until the same is considered, the respondents 1 and 2 shall not disturb the establishment of the petitioner. All contentions of the parties are left open. In view of the disposal of this writ petition, pending application, if any, stands disposed off. Sd/- JUDGE sma "