Property Classified As ‘Commercial Axes’ Can Be Used For Commercial Purposes Even If It Is Situated In A Residential Layout: Karnataka HC
The Karnataka High Court has held that the property which has been classified as ‘commercial axes’ can be used for the construction of commercial and corporate office even if the property is situated in a residential layout.
The Court held thus in a writ petition filed seeking setting aside of the endorsement passed by the Mysore Urban Development Authority to accord sanction to the building license to the petitioner to put up commercial building over the petition’s schedule property.
A Single Bench of Justice Suraj Govindaraj observed, “The very first use permitted is for commercial and corporate offices. Thus, the property which is owned by the petitioner being classified as a commercial axes property being entitled to the benefits under Regulation 6 can be made use of for construction of commercial and corporate office in terms of the Development Control Regulations approved by the State Government on 12.01.2016. This Development Control Regulations which is issued in furtherance of Master Plan-II - 2031 permits the property of the petitioner in a residential layout to be used for commercial purposes as commercial axes and such permission having granted under the Master Plan-II - 2031 and the Development Control Regulations, the grant of sanction of plan in my considered opinion would not amount to Change of Land Use within the purview of the judgment of Hon’ble Apex Court in the case of M/s.Vinayak House Building Cooperative Society Ltd., vs. The State of Karnataka (Civil Appeal No.3600/2011) wherein at Para 42.”
Advocate A.V. Nishanth appeared for the petitioner while AGA B.P. Radha, Advocates Poonam Patil and G.M. Ananda appeared for the respondents.
Facts of the Case -
The respondent No.2 - Mysuru Urban Development Authority (MUDA) had notified various sites for sale by way of public auction under the Karnataka Urban Development Authorities (Disposal of Corner Sites and Commercial Sites) Rules, 1991 (for short, ‘Rules, 1991’). The petitioner having participated in the said public auction was declared to be the highest bidder for site No.3165 for an amount of Rs. 2,59,82,000/-. In pursuance thereof, a registered sale deed was registered in favour of the petitioner. The katha of the property having been transferred in the name of the petitioner, the petitioner has made the payment of necessary taxes in relation thereto. The petitioner by taking advantage of the classification of the land as commercial axes under Regulation 6.6.1(2) of the Development Control Regulations (DCR) issued by the said authority had applied for sanction of plan on the said property for construction of a commercial office space.
The same came to be rejected by the respondent No.2 vide its endorsement for the reason that the Apex Court in the case of M/s. Vinayak House Building Cooperative Society Ltd. v. The State of Karnataka 2019 INSC 952 (Civil Appeal No.3600/2011) had observed that any Planning or Development Authorities in the State of Karnataka including BDA shall not permit change of land use of any particular property designated for a particular purpose in the layout plan which has been sanctioned and as such, contending that use of a site in a residential layout for commercial office building would come within the purview of the said judgment refused the plan sanction. Challenging the same, the petitioner was before the Court.
The High Court in view of the above facts noted, “… once a layout plan has been sanctioned, the development authorities, planning authorities including the BDA cannot permit change of land use which necessarily would have to be on an application made under Section 14 of KTCP Act and the said paragraph would not apply when no such application is required to be made under Section 14 of KTCP Act for change of land use.”
The Court further said that the designation of the property as commercial axes and usage being permitted in terms of C-3 would not come within the ambit of Para 42 of the judgment of the Apex Court but would be covered by the Master Plan already issued by the State and the Development Control Regulations formulated thereunder.
It, therefore, held that sanction of plan submitted by the petitioner would not come within the purview of Para 42 of the judgment of the Apex Court and as such, the petitioner would be entitled for sanction of the said plan in terms of Regulation 6.6 of the Development Control Regulations.
Accordingly, the High Court allowed the petition and quashed the endorsement.
Cause Title- Sunanda Narasegowda v. The State of Karnataka (Neutral Citation: 2023:KHC:38091)
