1. On 20.5.1987, a notification under Section 17(1) of the Bangalore Development Authority Act, 1976 (“the BDA Act”) proposing to acquire several lands for the formation of the Jayaprakash Nagar (J.P. Nagar) 7th Stage Layout was issued. The lands bearing Sy. Nos. 44, 45 and 51/1 totally measuring 22 acres in Puttenahalli village of Uttarahalli Hobli, Bangalore South Taluk, which are the subject matter of this writ petition, were also proposed to be acquired under this notification. This notification was followed by a declaration dated 20.05.1995, in which these lands were declared to be needed for the aforesaid purpose.

2. At that stage, on 17.11.1995, the Government through a Government Order (“GO”) came out with a policy permitting a landowner to develop lands which had been notified lands for acquisition for a Group Housing Project, provided the landowner agreed to give up 12% of the built-up area free of cost to the BDA.

3. The landowners took advantage of this GO and made an application through the petitioner, who is a developer, in favour of whom they had executed a GPA proposing to develop a Group Housing Project as provided under the said GO.

4. In the note put up to the BDA for consideration of the petitioner’s application vide Sub. No. 84/1996, it has been recorded as follows:

"h) If area within our property is left for the proposed road as per the revised CDP, it should be treated as Civic Amenity area, and that area should be adjusted against 25% area to be left for Civic Amenities, Parks and Open spaces.

i) At the time of formation of roads as per the revised CDP within our property, certain flexibility to change alignment of roads without affecting the over-all plan of BDA, should be given to the Developer in order to effectively use the land."

5. It is thus clear from the above that the petitioner was clearly aware of the fact that the Comprehensive Development Plan (“CDP”) indicated that certain roads were required to be formed in the area where the proposed Group Housing Project was proposed under the CDP and the petitioner, in fact, wanted certain flexibility to change the alignment of the roads without affecting the overall plan of the BDA, and this was necessary to enable the petitioner to use the land effectively.

6. The Authority, ultimately, on 28.03.1996, passed a resolution directing the office to re-submit the proposal for consideration of the authority in its next meeting.

7. Accordingly, another note was put up for consideration of the Authority in which it was recommended to accord an in-principle approval for the petitioner’s proposal. It may be pertinent that this note indicates that the plan contained an 18-meter road as required under the Zonal Regulations, thereby meaning that the petitioner had proposed an 18-meter road in the very first plan that it had submitted for approval.

8. The Authority accepted the recommendation and on 26.10.1996, accorded an in-principle approval to the proposed development plan of the petitioner. The authority also resolved that on the petitioner submitting a development plan, the same would be put for consideration along with full particulars.

9. It appears, from the note put up before the authority (which is enclosed as Annexure R-5 to the Objections of the BDA), that there were deliberations between the petitioner and the Commissioner of the BDA, and the petitioner was called upon to furnish a draft agreement along with detailed development plans and the petitioner accordingly submitted detailed plans, which were further deliberated upon, and the deficiencies pointed out by the BDA were also rectified. Ultimately, plans were submitted in conformity with the Zonal Regulations.

10. This note also contains the following statement:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

11. As could be seen from the above, the petitioner had submitted a plan which had changed the alignment of the roads as indicated in the CDP, inasmuch as against a 60 ft. road which was to run from East to West in the CDP, the petitioner had proposed to form a 60 ft. road running through the middle of the property. The petitioner had also left space on the northern side of the property to enable formation of a 40 ft. road as against the existing 20 ft. road. Further, on the western side also, the petitioner had left space in his property to enable the widening of the existing 30 ft. road to an 80 ft. road.

12. It is therefore clear, that the petitioner had changed the location of the roads as indicated in the CDP and instead of a road which was to run from East to West, it had proposed the formation of a 60 ft. road in the middle of this property.

13. It is also clearly stated that after deliberation about this change in the alignment of the road, the BDA had consented to this proposal of the petitioner and this indicates that it was indeed the proposal of the petitioner that a 60 ft. road should be formed in the middle of the property, and this road was shown to connect the already two existing public roads situate on the eastern and western side of the land where the housing project was proposed.

14. Ultimately, a recommendation was made to the Authority to take a decision on the grant of approval in respect of four factors, including the grant of approval to the development plan. The Authority, vide Subject No. 322/1997, on 31.12.1997, passed a resolution according approval to the development plan subject to certain conditions. The petitioner also remitted a sum of Rs.38.80 lakhs towards the difference fee that it was required to pay towards the consideration of the application for development plan.

15. In the year 2002, as per the note put up to the Authority (Annexure R-6 to the Objections of the BDA), the petitioner had orally informed the BDA that the land available was only 21 acres 03 guntas, as against the area of 22 acres 19 guntas shown in the development plant and the petitioner had submitted a modified plan seeking approval in which, as against the original proposal to erect 5 residential towers of 21 floors, the petitioner proposed to 5 towers of 15 floors each, a basement and 7 two-storied row houses (in all, 973 residential units). This proposal, basically, reduced the built-up area from 1,13,139 sq. mts. approved in the original plan to 98,105 sq. mts.

16. In this note, the following statement is also made:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

17. As could be seen from the above, the public and semi- public spaces had been earmarked for School, Vocational Training Centre, Community Hall and a Club, and, in respect of the area earmarked for Civic Amenity (“CA”) sites, a proposal had been made for use of the area for Transformer, Health, Post Office, Milk Booth, Police Outpost. The note specially also records that the Zonal Regulations provided for such uses in CA sites.

18. It is also clear from the above that the petitioner was acutely conscious of the fact that this area which had been earmarked as a CA site was to be relinquished in

favour of the BDA and he was requesting them to convey said site to it or, in the alternative, lease the same to it. Similarly, even in respect of the area earmarked as a park, the petitioner had requested them to accord permission to develop a park and also maintain it. It is therefore obvious that the ownership of these areas earmarked as CA site and park to the BDA was clearly conceded by the petitioner.

19. The Authority, thereafter, on 19.03.2002, passed a resolution in the following terms:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

20. As could be seen from the above, the BDA permitted the petitioner to develop and maintain the park as had been requested by the them and in respect of the request to convey or lease the CA site area, the Authority had clearly resolved that after these areas were relinquished, a separate plea in this regard may be made by the petitioner.

21. It is therefore clear that the BDA had specifically stated that the areas earmarked for parks and CA sites were required to be relinquished to it and thereafter, only the development and maintenance of the park was permitted. It may also be pertinent to state here that nowhere in this resolution has the BDA either directly or indirectly even hinted that the CA site area and the park area was meant only for the benefit of the residents of the approved Group Housing Project. In fact, since the petitioner had proposed the formation of a Post Office, Milk Booth and Police Outpost, it is obvious that these facilities would be accessible for the residents of that area and could not have been exclusive to the residents of the approved housing project.

22. The petitioner, thereafter, executed a registered relinquishment deed on 30.04.2002 under which the owners, through a GPA holder who was the Managing Director of the petitioner, relinquished the Civic Amenities area i.e., 10% of the property measuring 8528.77 sq. mts., and the Parks and Open spaces area i.e., 15% of the property measuring 12,793.15 sq. mts.

23. A memo has been filed by the petitioner which shows that the petitioner did make a request for leasing the CA sites to it after it had executed the relinquishment deed, and the BDA has in fact leased the CA site to the petitioner.

24. It may be pertinent that in the approved modified plan, the Open space area has been demarcated as PQRS, while the Civic Amenities area has been demarcated as CDIJ and it is also stated therein that an extent of 1200 sq. mts. had been reserved for a transformer, 2260 sq. mts. for health services and 4028 sq. mts. for “Infrastructure for various facilities like Post Office/Bank/Canteen/Milk Booth/Convenience Stores/Police out post, etc.,”.

25. As already observed above, it has neither been directly nor indirectly stated that this area to provide infrastructure for various utilities was exclusive to the residents of the approved Group Housing project and could not be accessed by the general public.

26. By virtue of this area demarcated as CDIJ in the plan and the uses narrated therein for them, it is clear that this would be a CA site which vested with the BDA and as a consequence, could be dealt with only by the BDA as provided under the Statutory Rules framed for said purposes.

27. The petitioner states that pursuant to the approval accorded to the Group Housing project, construction of the residential towers was completed, and 5 Occupancy certificates were issued between the period 01.08.2005 to 15.05.2007.It is also stated that the formation of a 60 ft. road was also completed, as provided in the plan, at its own cost. The petition averments are reproduced herewith for the sake of clarity:

"7. The Petitioner has provided various internal driveways inside the project Brigade Millennium, keeping in mind the convenience of the residents and patrons, to access from the external main road to the individual apartments and to the other facilities within the complex. The main internal road provided by the Petitioner, named as 'Brigade Millennium Avenue Road', runs through the middle of the project from East to the West of the Complex, connecting Puttenahalli Main Road to 24th Main Road/J.P.Nagar 100 ft Road, The said road is 18mtrs in width and covering an area of 7361.61 sq. mtrs., gated on either side and manned by security guards of the Brigade Millennium complex, more fully described in the Schedule 'B' Property hereunder. The entrance portal including Brigade Millennium and gates continues to be there even now. Photographs showing entrance portal and gates enclosed as ANNEXURE-H. This road is a sixty feet wide internal private road in all measuring 7,361 Sq. Mtrs (out of which, the 2086.26 Sq. Mtrs in Sy. No.44 and 45, falls in the residential zone, and 5293.55 Sq. mtrs in Sy No.51/1 falls under Public and semi-public zone as per land use Pattern) which was built and constructed by the Petitioner at its own cost, for the benefit of the Group Housing Scheme. This road is situated within the boundary/perimeter of the Group Housing Scheme. Brigade Millennium Avenue Road is located in between the apartment blocks and forms a connection from one apartment block to another, from the apartment block to the facilities such as the park, convention centre, school, club etc. Brigade Millennium Avenue is a two way internal road, separated by median strip with land-scaping. The Petitioner has provided pavement on either side of the road for pedestrians to walk and has also provided seats at regular intervals. The Median strip is landscaped and the Petitioner has provided palm trees for shade. The Petitioner has also provided street lights to illuminate the area.

8. It is pertinent to note that the said area of 7,361.61 sq.mtrs where the sixty feet wide road was laid was not surrendered or delivered to Respondent No.1 or Respondent No.2 Corporation and hence even the Respondents or any other governmental authority cannot claim rights over this extent of land over which an internal road (Brigade Millennium Avenue Road) has been constructed. This road measuring 7,361 Sq. Mtrs was used purely as an internal road from the year 2002 when it was formed and was in the possession and enjoyment of the Petitioner as a developer and subsequently purchased by the Petitioner from the previous owners, pursuant to a sale deed dated 04.06.2010, registered as document No.1658/2010-11, Book-I, stored in CD No. JPND70 before the sub registrar, J.P.Nagar, Bangalore, which has been duly described in the Schedule 'B' hereunder. The Petitioner is therefore the sole and absolute owner of the Schedule 'B' Property, by virtue of the Sale Deed dated 04.06.2010, conferring all rights, title and interest from the owners of the Schedule 'B' Property to the Petitioner. A copy of the Sale Deed dated 04.06.2010 is produced herewith as ANNEXURE-J."

28. As could be seen from the above averments, the petitioner basically contends that the road formed by it was a private road and is styled as the main internal road, which it had not relinquished to the BDA, and the BDA thus cannot claim any rights over this road which has not only been formed by the petitioner but is also being maintained by it.

29. It may also be pertinent to notice here that the petitioner admits that it has purchased this road portion from the landowners under a sale deed dated 04.06.2010 i.e., 3 years after the project had been completed and it had obtained the Occupancy certificates. It is significant to note that after the road had been formed in accordance with the approved plan and this Road portion had been purchased by the developer. In other words, after the Group Housing project had been completed and the Road was being admittedly used by the residents of the Group Housing project, the petitioner, who was the developer, had purchased only the road portion under a separate sale deed.

30. It is the further case of the petitioner that this road was a private road, and its access was controlled by it by way of erection of gates and posting of security personnel, who permitted only residents and their visitors to access the road. It is stated that this road was not meant to be a thoroughfare for the public, and the public had no right to access this road. In furtherance of the above, it was also contended that this road could not be used to link the two public roads which existed abutting the housing project. In short, it is the case of the petitioner that the road was meant for the use of only the residents of the Group Housing project and the general public have no right to access this road.

31. The petitioner contends that in the year 2006, the BDA had taken up the repair of the Puttenahalli Main Road wherefore the BDA had requested the petitioner to permit vehicular traffic to ply on this road as a temporary measure only till the road works were completed, and the petitioner, in good faith, had acceded to said request by opening the gates and permitting the general vehicular traffic to use the road. It is their further argument that, however, in 2007, after the repair work was completed, the Traffic Police forcibly opened the gates at both ends of the 60 ft. road despite the protests of the petitioner and, basically, threw open the road for public use, thereby usurping a private road belonging to the petitioner.

32. The petitioner therefore contends that its property has been forcefully acquired and, hence, it would be entitled to compensation in the form of Transfer of Development Rights (“TDR”) or in any other manner known to law. It also contends that it had made a request for grant of TDR to the BBMP but this claim has been refused unlawfully and that it would thus be proper to direct the BBMP to grant the petitioner TDR in respect of the portion of the property on which the 18-metre road has been formed i.e., for an area measuring 1 acre 32.5 guntas.

33. Sri. Srinivas Raghavan, learned Senior counsel appearing for the petitioner also submitted the following citations in support of their contentions:

"(i) Srinivasamurthy T. R. v. the BDA & Ors., W.P.No.1137 of 2019, disposed of on 27.09.2021;

(ii) Dr. Arun Kumar B. C. v. the State of Karnataka & Ors., W.P.No.9408 of 2020 and connected matters, disposed of on 17.01.2022;

(iii) Dr. D. V. Venkateshappa v. the Commissioner, BBMP & Ors., W.P.No.1402 of 2021 and connected matters, disposed of on 05.04.2022; and

(iv) Sri. Vinod Damji Patel v. The Hoskote Yojana Pradhikara & Anr., W.P.No.15103 of 2022, disposed of on 17.04.2022."

34. The BDA opposes this plea of the petitioner on the ground that the petitioner can never claim to be the owner of an area earmarked as a road in the development plan. It also states that a road is always public property and no individual/s—much less a person who had secured an approval for a Group Housing development plan in which a particular area had been earmarked as a road—could claim ownership over the road and claim compensation for the loss of the land. It is also contended that when the open spaces and the CA sites (which constituted 25% of the area) were relinquished to the BDA, the right to access these open spaces or CA sites would be available to the entire group of residents of the area and the petitioner can never be permitted to contend that the area earmarked for a “road” would be the private property of the petitioner.

35. The BDA also contends that the road in question can never be considered as an internal access road intended only for the residents of the group housing residents, primarily because the petitioner had requested the BDA to permit him to change the alignment of the roads indicated in the CDP to enable it to effectively use its land and when this request was acceded to and the alignment of the road was allowed to be changed, the road so formed would continue to be the road as mandated in the CDP and consequentially, be a public road and would, in law, vest in the local authority. It is also contended that the BDA had considered the FAR to the project by taking into consideration the area earmarked for a road and therefore, the petitioner can never contend that the road was a private internal access road.

36. In light of the above submissions, the following questions would arise for determination of this Court:

"(i) Whether an area earmarked for a “road” in a development plan—specifically approved for a Group Housing project and actually utilised for forming the road as per said development plan—can be considered to be a private road meant exclusively for the use of the residents of the approved Group Housing project.

(ii) Whether the area earmarked for a “road” in a development plan approved for a Group Housing project could be sold by the owner to the developer (or any other entity), either before or after the development plan has been approved.

(iii) Whether the petitioner, who is the purchaser of the area over which the road in question has been formed as per the approved development plan, can claim compensation in the form of TDR for the extent of the area utilised for formation of said road."

37. The answer to all these questions would have to be a resounding NO, for the following reasons: AN OVERVIEW OF THE LAW RELATING TO APPROVAL OF DEVELOPMENTPLANS BY THE PLANNING AUTHORITY:

38. The law enacted by the State Legislature which deals with development of lands and buildings in the State is the Karnataka Town and Country Planning Act (“the KTCP Act”), which was enacted in the year 196 (See: Notification No. PLM 60 MNP 63 dated 31.12.1964.) but was enforced from 15.01.19651. The objective of this Act is to provide regulation of planned growth of land use and development. The Act has been divided into 11 Chapters and for the purpose of this case, the provisions of Chapter I which deals with Definitions as well as Chapter III which deals with Outline Development Plan (“ODP”), would be relevant.

39. “Development” (Section 2(1c) – “development” with its grammatical variations, means the carrying out of building, engineering, mining, or other operations in, on, over or under land or the making of any material change in any building or land, or in the use of any building or land and includes sub-division of any land.) is defined in Chapter I as carrying out engineering or other operations in or on or over or under any land or the making of any material change in any land or building or in the use of land and includes the sub-division of any land. Simply put, development of any kind—including the use to which the land is put—is considered as development of the land.

40. “Master Plan” (Section 2(3-b) – “Master Plan” means a plan for the development or redevelopment of the area within the jurisdiction of a planning authority) has been defined in Chapter I as a plan for the development or redevelopment of an area under the Act.

41. Chapter III deals with “Outline Development Plan” and stipulates that a Master Plan is to be prepared under Section 9, which requires the declaration of intention of making an ODP under Section 10.

42. Section 12 enumerates the contents that are required to be specified in the Master Plan and mandates that it shall contain a series of maps and documents, which indicate the manner in which the development and improvement of the entire planning area is to be carried out. It also states it should include 8 proposals, including the proposal which would indicate a complete street pattern, including major and minor roads, national highways, and state highways, and traffic circulation pattern for immediate and future requirements. (Section 12. Contents of Master Plan.- (1)(b) a complete street pattern, indicating major and minor roads, national highways, and state highways, and traffic circulation pattern, for meeting immediate and future requirements with proposals for improvements.) The Planning authority is also required to furnish four particulars which are mentioned in Section 12(2) ((2) The following particulars shall be published and sent to the State Government through the Director along with the masterplan, namely:- (i) a report of the surveys carried out by the Planning Authority before the preparation of such plan; (ii) a report explaining the provisions of the Master Plan; (iii) regulations in respect of each land use zone to enforce the provisions of such plan and explaining the manner in which necessary permission for developing any land can be obtained from the Planning Authority; (iv) a report of the stages by which it is proposed to meet the obligations imposed on the Planning Authority by such plan.).

43. Section 13 states that the Government on receipt of the proposals may require it be modified, if it thinks necessary, and thereafter, return it to the planning authority, which is then required to publish it and call for comments from the general public. On receipt of the comments, the planning authority is required to consider them and resubmit the same to the Government along with its recommendations. The Government could thereafter accord its final approval, upon which the Master Plan and the reports are to be published.

44. Section 14 of the Act declares that on and from the date on which the declaration of the intention to 5(2) The following particulars shall be published and sent to the State Government through the Director along with the masterplan, namely:-

(i) a report of the surveys carried out by the Planning Authority before the preparation of such plan;

(ii) a report explaining the provisions of the Master Plan;

(iii) regulations in respect of each land use zone to enforce the provisions of such plan and explaining the manner in which necessary permission for developing any land can be obtained from the Planning Authority;

(iv) a report of the stages by which it is proposed to meet the obligations imposed on the Planning Authority by such plan. prepare a Master Plan is published under Section 10(1), every land use, every change in land use and every development in the area covered by the plan shall conform to the provisions of the KTCP Act, the Master Plan and the reports (as approved by the State Government). (Section 14. Enforcement of the Master Plan and the Regulations— (1) 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.)

45. Section 14(2) (Section 14. Enforcement of the Master Plan and the Regulations— (2) No such change in land use or development as is referred to in subsection (1) shall be made except with the written permission of the Planning Authority which shall be contained in a commencement certificate granted by the Planning Authority in the form prescribed.) stipulates that no change of land use or development referred to in Section 14(1) shall be made until a commencement certificate is obtained from the planning authority.

46. Section 15(1) (Section 15. Permission for development of building or land.—(1) On receipt of the application for permission under section 14, the Planning Authority shall furnish to the applicant a written acknowledgment of its receipt and after such inquiry as may be necessary either grant or refuse a commencement certificate. Provided that such certificate may be granted subject to such general or special conditions as the State Government may, by order made in this behalf, direct.) of the KTCP Act stipulates that the planning authority, on receipt of an application for permission under Section 14, is required to give an acknowledgment, conduct an inquiry and either grant or refuse permission. Section 15(2) (Section 15. Permission for development of building or land.—(2) If the Planning Authority does not communicate its decision to the applicant within three months from the date of such acknowledgment, such certificate shall be deemed to have been granted to the applicant. Provided that the land use, change in land use or the development for which permission was sought for is in conformity with the outline development plan and the regulation finally approved under sub-section (3) of section 13.) states that if the planning authority does not communicate its decision within three months, the certificate is deemed to have been granted.

47. This deemed approval is, however, subject to the proviso that the land use or change in land use or the development for which permission is sought is in conformity with the outline development plan and the Regulations which are approved under Section 13.

48. To summarise—a Master Plan is required to be published, comments are then to be invited and considered by the Planning Authority and, thereafter, be submitted by the Planning Authority along with its recommendations to the Government for approval. This Master Plan is required to contain the manner in which the development in the area is to be regulated and should contain, amongst other things, a complete street pattern (which would be relevant for this case) and on such approval being granted, every land use or change in land use and every development in the area is to be in conformity with the provisions of the Act, Master Plan and the Report.

49. The law stipulates that no development shall be carried out unless there is a commencement certificate issued by the planning authority and the planning authority is required to consider and communicate its decision on any application received by it within 60 days, failing which a deemed approval is granted. However, even if a deemed approval is granted, the development should be in conformity with the CDP and the regulation approved under Section 13(3) of the Act.

50. Thus, the glaring emphasis laid out in the KTCP Act is that development, if any, in a planning area (even if is to be carried out with a deemed approval) should only be in conformity with the Master Plan and the Regulations approved thereunder. The specific emphasis is that every development after the making of the Master Plan can only be done as delineated in the Master plan, thereby meaning that the development of an area, which has been planned by a body of experts is to be followed meticulously, which would ensure an orderly development.

51. As provided under the KTCP Act, the planning authority for Bangalore is the BDA, and the BDA published the 1st CDP in 1984 for the year 1985, the 2nd CDP in the year 1994 for the year 1995, the 3rd Revised Master Plan (“RMP”) in the year 2005 for the year 2015, and the 4th RMP in the year 2007 for the year 2015. The BDA had also published its 5th RMP in the year 2017, for the year 2031, for which a technical approval was granted but was withdrawn in 2020.

52. For the purposes of this case, the 2nd CDP i.e., the CDP for the year 1995 would be relevant since the approvals were granted under the Zoning of Land Use and Regulations framed under this 2nd CDP which were applicable as on the date of the application of the petitioner and the same has been applied by the BDA.

53. Regulation 3 states that Annexure II appended to the Regulations, which sets out the various uses of land that are permissible and that are permissible under special circumstances would govern the land use and it also states that any land use other than what is permissible should not be permitted by the Authority.

54. Regulation 4 states that the Regulations governing various factors such as setbacks, road widths, number of floors, maximum height of the structures that could be permitted in various zones should be as set out in Annexure II.

55. In this Annexure II, the norms for approval of Group Housing Plan are stated and they read as follows:

"Norms for Approval of Group Housing Plan

The following norms shall be adopted while approving the layout plan for group housing:-

[i]. The boundary roads if any minimum width of 12 mtr. must have a minimum width of 12 mtr.

[ii] The F.A.R. should be considered with reference to the width of the public road abutting the property and the F.A.R. should be calculated after deducting the area reserved for parks, open spaces and civic amenities.

[iii] The set-backs should be provided with reference to depth and width of total plot area.

[iv] The coverage shall be with reference to total area of the layout.

[v] The distance between the buildings should be a minimum of half of the height of the tallest building.

[vi] 25% of the total area be reserved for CA, parks and open spaces, subject to a minimum of 15% for parks and open space.

[vii] The means of access to the building blocks in the area of group housing shall be as follows:-

Access length in mtrs. min. width

a. Less than 100 mtrs. 6 mtrs.

b. 100 - 200 mtrs. 9 mtrs.

c. More than 200 mtrs. 12mtrs.

[vii] The area reserved for Parks & Open spaces, C.A. & roads (other than internal access in each sub- divided plot) shall be handed over free of cost to the B.D.A. through registered relinquishment deed before issue of work order."

TABLE - 25 GROUP HOUSING

The Table showing the maximum plot coverage, FAR, minimum setbacks and minimum road width for Group Housing is given below.

Plot Area

Minimum Road width in mtrs.

Maximum Plot coverage

Minimum Set-backs in Meters

Maximum

FAR Front Rear Left Right

Upto 0.40 12 60% 2.00 5.0 4.5 4.5 5.0

Hectares

Between 0.40 15 60% 2.25 8.0 6.0 6.0 6.0

& 0.80

Hectares

Above 0.80 Hectares 18 60% 2.50 9.0 8.0 8.0 8.0

NOTE: 1) Group housing means more than two buildings on a plot with one or more floors and with one or more dwelling units in each floor. They are connected by an access of not less than 3.5 mtrs. in width, if they are not approachable directly from the existing roads.

2) Where the sital area of group housing exceeds 4000 sq. mtrs. approval of layout showing the general arrangement of residential building blocks, and dimensions of plot ear marked for each building blocks, means of access roads and civic amenity areas, should precede the approval to building plan.

3) In case, the height of group housing building exceeds 9.5m, then set back to be left all-round the premises shall be as per Table 23 or Table 25 which ever is higher."

56. As could be seen from the above, the Boundary roads of a Group Housing project must have a minimum width of 12 mts. but, since in this case the entire land of the project was encompassed by two public roads, this condition became superfluous, and Norm (i) would have no application.

57. As far as Norm (ii) and (iv), the Floor-Area Ratio (“FAR”), in this case, was considered with reference to entire area and after deducting the area reserved for parks, open spaces and civic amenities. Most importantly, the FAR was computed after deducting the entire 60 ft. road area which was proposed to run across the middle of the project.

58. As already stated above, the alignment of the roads as indicated in the RMP was changed to facilitate the effective use of the land by the landowners by shifting the roads as shown in the CDP and consolidating the same into one 60 ft. road. Thus, in deviation from the RMP, a 60 ft. road was permitted to be formed and, in the process, the two roads indicated in the CDP were done away with. To have a clearer understanding of this aspect, an enlarged map indicating the roads as originally indicated in the CDP and the road formed after deviating from the RMP is extracted hereunder.

59. As could be seen from the above, in the original RMP, one Road was to run North to South in the middle of the project area (between the red and yellow area) and one road was to run from West to East in western portion (in the yellow portion) of the project area. If these two roads were to be formed as per the RMP, then the project area would comprise of 3 bits of properties i.e., 3 islands surrounded by the Roads as earmarked in the CDP. One bit of property would be on the western side, one bit of the property on the eastern side and, significantly, one bit of property on north western portion of the project area.

60. It is therefore obvious that the landowners/developer, to avoid this situation, had requested a change in the alignment of the roads by eliminating two roads and, in its place, have only one road. The BDA acquiesced to this request, and understandably so, to ensure effective utilisation of the entire project area, though, strictly speaking, they ought not to have deviated from the RMP, at least insofar as the roads were concerned, since the reservation of the area for roads in the CDP would be forever and would never lapse by virtue of Section 69 of the KTCP Act.

61. The BDA, apart from giving this concession to the petitioner, also gave a further concession to the petitioner by not taking into consideration the 60 ft. road area while calculating the FAR. It may be pertinent to state here that this 60 ft. road area would utilise 2068.26 sq. mts. (22,453 sq. ft.) and the FAR of 2.5 on this area would translate into 5,170.65 sq. mts. (55,656 sq. ft.), which, by any parameters, would be a huge gain for the landowner/developer.

62. As could be noticed from Norm (ii) of the zonal regulations, for the purpose of considering FAR, road area is not excluded and hence, for granting approval to the project, this road area would have to be considered and this would therefore have actually resulted in reduction of the built-up area for the petitioner and the landowners. In fact, the BDA, in its counter, have stated the benefit of excess floor area that the petitioner achieved by the grant of this concession. The said calculation is reproduced as follows:

Total Site area	...85287.69 sq. mtrs.
Out of that Residential area	...41784.33 sq. mtrs.
Area under 60 ft. road inside Residential area	...2068.26 sq. mtrs.
Area under road widening for 80 ft road inside residential area	... 3758.94 sq. mtrs.

Total area under road inside the Residential area	...5827.20 sq. mtrs.
Net Residential area after deducting Area under road	...35957.13 sq. mtrs.
Maximum Floor Area Ratio allowable	...2.5
FAR achieved considering total Residential Area including the road area 98105.88/41784.33 = 2.348	...2.348
Maximum allowable FAR area For the residential area after deducting area under road 35957.13 x 2.5 =89893.25	...89893.25 sq. mtrs.
Floor Area now Achieved	... 98105.88 sq. mtrs.
Floor Area in excess of what is allowed...	...8212.63 sq. mtrs.

63. It is therefore clear that the petitioner gained a significant advantage of 8212.63 sq. mts. (88,400 sq. ft.) in terms of floor area by the grant of this concession. If it is kept in mind that the elimination of two roads and the formation of only one road, in deviation of the RMP, resulted in the elimination of dividing the property into three bits (one of which was an island) and the extent of the road portion was considered to calculate the FAR, the petitioner essentially gained a twin advantage which obviously accrued to its benefit immensely.

64. Norms (iii), (v) and (vi) would not be involved in this case in this case and are hence not being considered.

65. Norm (vii) deals with the means of access to the building blocks in the area of the Group Housing Project and stipulates the minimum width of access, which increases with the distance between the building blocks. It is to be kept in mind that this means of access would only facilitate access between the building blocks and apart from the residents, no one else would have a right of access.

66. Norm (viii) stipulates that the area reserved for Parks and Open spaces, CA and Roads (other than internal access in each sub-divided plot) shall be handed over free of cost to the BDA through a registered relinquishment deed before the issue of a work order. It is not in dispute that this aspect has been complied with by the petitioner and a deed of relinquishment has been executed in favour of the BDA, but in this Deed, the Road has not been relinquished.

67. However, it is this norm which is sought to be pressed into service by the petitioner to support the petitioner’s argument that the 60 ft. road remained the property of the land owners (and thereby that of the petitioner by virtue of its purchase in 2010) and hence, the petitioner is entitled to compensation— either in terms of TDR or in any other manner.

68. Before this contention is considered, it would also be relevant to consider Table 25 of the Zonal Regulations which is in relation to Group Housing Projects. This table states the maximum plot coverage, FAR, minimum setbacks and minimum road width for Group Housing Projects. Since the question involving the road is of importance to this case, only that portion is being considered. This table states that the minimum road width should be 13 metres for plot area upto 0.40 ha, 15 meters for plot area between 0.40 ha and 0.80 ha and for plot area above 0.80 ha, 18 meters. Since, the plot area in this case is more than 0.80 ha, the minimum road width would be 18 meters.

69. There are three Notes appended to this Table and Note 1 would be relevant and are already extracted above. However, the relevant note is reproduced once again for convenience:

"Group Housing means more than two buildings on a plot with one or more floors and with one or more dwelling units in each floor. They are connected by an access of not less than 3.5 mtrs. in width, if they are not approachable directly from existing roads."

70. As could be seen from the above Note, “Group Housing” has been defined to mean a project where there are more than two buildings on a plot of one or more floors with one or more dwelling units. More importantly, this Note states that they are to be connected by an access of not less than 3.5 mts. in width, if they are not approachable directly from the existing roads. Thus, the term access in relation to a Group Housing project would fundamentally mean access to the building blocks, if they are not approachable by existing roads. It follows from this that if there is no access to the buildings directly by the existing roads, means of access between the buildings, which is dependent on the plot area, is required to be provided by the developer.

71. A conjoint reading of the term “internal access” in each subdivided plot in Norm (viii) and the terms “connected by an access of not less than” and “are not approachable directly by existing roads” in Note 1 to Table 25, makes it manifestly clear that there is a clear distinction drawn by the Rule-maker between the meaning of the term “roads” and the term “means of access” and, both have completely different connotations. The term “roads” found in the norms i.e., under Norm (viii) would mean that it is a road which is required to be formed in the plot and the width of the road would be dependent on the size of the plot, the maximum width being 18 mts.

72. The terms internal access or means of access would mean that it is the access required to be provided to different building blocks only and cannot be referred to the road which is required to be formed in the Group Housing Project. It is therefore clear that the road which is to be formed in the Group Housing Project, the width of which would be dependent on the plot area, would have to statutorily be relinquished in favour of the BDA, thereby meaning that the owner or the developer would have no proprietary right over the road.

73. In light of the above norms, it would be of little significance whether a relinquishment deed is actually executed in respect of the road or not, because neither the landowner nor the developer could have retained any proprietary right over this road, and they cannot therefore claim that this road would be a private land. Thus, the arguments that the road portion had not been relinquished under the relinquishment deed and that the road area continued to be the property of the landowner who had secured an approval for the Group Housing Project, would have no merit at all.

74. This question can be considered from another angle also.

75. As noticed above, the landowner/developer is required to set apart 25% of the plot area for CA sites, parks and open spaces and this 25% area is required to be relinquished to the BDA free of cost, thus meaning that 25% of the plot area would be conveyed to the BDA and the BDA would be free to use the said area in which parks, open spaces and CA sites are to be formed. If a park or an open space formed (or to be formed) in the Group Housing Project is the property of the BDA, it is obvious that said amenity so formed would necessarily have to be accessible to any member of the public and its use cannot be confined to a particular group of residents only.

76. It is no doubt true that a park in a particular area is generally used by the residents of the area, but that cannot lead to the inference that persons who are not residents of that area can be denied access. If such kind of segregation and restricting the use of a public space by only a group of residents is permitted, the concept of public and open spaces would be destroyed. This would fundamentally mean that as against achieving the objective of orderly planning and growth, actually a kind of segregation would be perpetuated, which would be a flagrant violation of a constitutionally guaranteed fundamental right.

77. The access to such a park can, obviously, be only by means of the roads formed in the Group Housing Project and, therefore, the roads so formed can never be considered as a private road by any stretch of the imagination. Under the Zonal Regulations, the concept of a gated community i.e., a residential area wherein access is made exclusive or restricted only to residents of that community is an alien concept which is not recognised at all. This would therefore mean that any park or an open space created in any plot where development is permitted by the BDA would always belong to the BDA and consequentially, all members of the public would have a right to access them.

78. In fact, the State has enacted the Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1975 (“the 1975 Act”) with the objective of preservation of certain Government Parks in the State. A “park” is defined under Section 2(g) as a piece of land in which a garden with trees, plants or flower beds is laid out and is maintained for the resort of the public for recreations, air or light. An “open space” is defined under Section 2(f) as any land which is used or meant for the purposes of recreation, air or light or set apart for civic amenity purposes.

79. Section 3 of the Act mandates that the executive authority (defined as the CEO of the local authority under this Act) is required to submit a correct and complete list of all the parks, play fields and open spaces with their correct dimensions and plans for approval to the Government and the Government is required to publish a notification containing the list and the plans, call for representations within 3 months. The Government is thereafter required to consider the representations/objections or suggestions received and it may approve the list under Section 4, which is again required to be published. Section 5 of this Act mandates that the Government may, either suo moto or at the instance of the local authority or any interested person, include new lands in the list.

80. Section 6 of the Act prohibits the use of parks, playfields and open spaces for any purpose other than for which it was used on the date of the commencement of the Act. Section 7 of this Act requires the local authority to maintain the parks, playfields and open spaces belonging to it or vested in it and included in the list published under Section 5 of the 1975 Act. It is therefore clear that every local authority is required to maintain every park, playfield and open space as a statutory obligation.

81. As already noticed above, the parks and open spaces are required to be handed over to the BDA by the landowner/developer who has secured approval for a Group Housing Project and the BDA being a local authority would have ownership rights over the same and would also be under a statutory obligation to maintain them. Since the parks and open spaces are defined to mean piece of lands which are set apart for the resort of the public for recreation, air or light, it is an undeniable fact that they are public spaces and if access to them is by means of a road formed as required in the approval accorded to a Group Housing Project, the road will necessarily have to be a public road.

82. It is therefore clear that the portion of land over which a Road was formed in the Group Housing Project was always a public road and was never considered, directly or by implication, a private road, the entire basis of the petitioner’s claim—that it is their private road and they have a proprietary right which has been acquired forcibly—would have absolutely no substance.

83. It must be pertinent to state here that if the planning authority has permitted the developer to maintain the park that would never take away its public characteristic and would not make it a private space. It must be kept in mind that a planning district is planned keeping in mind the entire district and its inherent benefits to the residents of that planning district and if one portion of a planning district and its residents are permitted to exclude the use of public spaces to all the residents of that planning district, it would be a violation of a fundamental right, i.e., Article 15 (2) (b) of the Constitution of India.

84. Now considering the citations placed before this Court by learned Senior counsel for the petitioner, the following observations are made.

85. The order passed in Srinivasamurthy T. (supra), though dismisses the PIL for having been filed frivolously, has clearly observed the exclusive usage of “parks” and “open spaces” situated inside Group Housing Schemes and Apartments by the residents of said Apartments. In that case, the Division Bench was dealing with the Regulations framed under the RMP 2015 which provided for the parks which were required to be relinquished to the BDA could be handed over the local residents welfare association, if the BDA so desired and in that context it observed that the local residents welfare association referred to in the Regulations could only be referred to that particular group housing scheme and did not include the are residents or the public at large. In this case, the Regulations of 1995 would be applicable and there is no such provision the Group Housing Regulations that the parks can be allowed to be maintained by the local residents' welfare association and therefore the said decision cannot be applicable.

86. Furthermore, in the present case, the dispute concerns a road running across the area developed for a Group Housing Project which can, in no way, be considered as an internal or private road solely for the usage of the residents of said Group Housing Project, especially when the RMP already provided for it. An authorised deviation in the RMP to accommodate the Group Housing Project cannot be used to its advantage unfairly.

87. The judgment rendered in Dr.Arun Kumar BC. (supra), pertained to the construction of a private hospital and the petitioner therein was aggrieved by the endorsement issued by the BBMP to surrender the portion of the land earmarked for the purpose of widening the road. The case at hand does not pertain to widening of the road but concerns the usage of the road developed and used in the area where a Group Housing Project was in place. This judgment, too, would thus not be applicable to the instant case.

88. In the case of Dr.D.V.Venkateshappa (supra) as well, the grievance of the petitioners therein was with respect to grant of TDR for the portion of their lands relinquished for the widening of roads. The properties therein were not a part of Group Housing Project(s) and pertained different parcels of land. The facts and circumstances leading to the decision passed in Dr.D.V.Venkateshappa do not apply to the present case, and the same can thus be of no avail.

89. Regarding the judgment rendered by a Co-ordinate bench of this Court in Vinod Damji Patel (supra), that case related to the demand by the authority to relinquish the area proposed for widening of the road as a condition precedent for granting approval to a development plan. Obviously, this decision would have no application to this case.

90. As already noticed above, the petitioner mischievously claims that it has purchased the exact area over which the road was formed, several years after it had formed the road as required under the approved housing project. The conduct of the petitioner, who is a developer and is well conversant to the Zonal Regulations and the character of a public Road, in purchasing the area over which the public road had already been formed deserves to be deprecated, especially after it is noticed that it had formed a 60 ft. road by securing the consent of the BDA to change the existing alignment of the roads indicated in the RMP, so as to have an effective utilisation of the land.

91. I am thus of the view that there is absolutely no merit in this petition and the same deserved to be dismissed.

92. This petition is accordingly dismissed.