BDA Can Issue Modified Sanction Plan Permitting Construction Of Additional Towers On Land Where Construction Has Already Come Up: Karnataka HC

The Karnataka High Court has held that Bangalore Development Authority (BDA) has the jurisdiction to issue a modified sanction plan for the construction of additional towers subsequent to the development of an Apartment complex and sale of apartments and undivided share in common areas, as per the earlier plan, even when the area is now covered under the City Municipal Corporation limits.

A single-judge bench of Justice M I Arun dismissed a petition filed by the H.M. Tambourine Apartment Owners Association which had questioned the power of the authority to sanction a modified plan based on the maximum floor area ratio (FAR), without taking into consideration the area already sold in favour of the individual apartment owners and further, the property is now within the jurisdiction of Bruhat Bengaluru Mahanagara Palike (BBMP) and BDA does not have the power to sanction the modified plan.

The bench dismissed the petition primarily taking into consideration the statement made by BDA that as the building to be newly constructed is interconnected with the already existing building, it has to be construed as part of the building already existing on the property. BDA has the power to issue the modified plan and not the BBMP.

The petitioners had contended that the plan sanctioned is in violation of law, as the plan permits the construction of a new building altogether by way of additional towers and the distance between the existing towers and the additional towers does not conform to the law and the cantilever joining the building to be newly constructed with that of the existing building does not make it one building.

Further, it was submitted that the consent of individual apartment owners already owning apartments is not taken while granting the modified plan. The modified plan has the effect of infringing upon the rights of the apartment owners over the common areas. It also has the effect of reducing the ownership of the individual apartment owners over the property.

Reliance was placed on a Government Order dated 07.11.2015, which specified that the plan in respect of the properties situated within BBMP limits has to be sanctioned by BBMP.

The developer M/s. Pedigree Constructions Private Limited argued that petitioners have already filed an original suit in the trial Court in respect of the exact extent of ownership that they are entitled to in respect of the property and the same cannot be subject matter of the writ petition.

Moreover, the developer had reserved its rights to develop the property further, in the sale deeds executed in favour of individual apartment owners and hence consent of individual apartment owners is not required by BDA to sanction modified plans.

It was stated that BDA is the planning Authority as contemplated under the Karnataka Town and Country Planning Act, 1961 and it has jurisdiction to issue necessary modified plan and the same has been issued in accordance with law taking into consideration maximum floor area ratio available for construction on the entire property. 

Finally, it was said that the construction of additional buildings does not infringe the rights of already existing apartment owners in the common areas nor has it the effect of reducing their ownership in the property.

In hearing the parties the Court stated that the question as to the extent of land already sold in favour of individual apartment owners in the property and the consequences of it over the right of respondent no.2 to put up additional construction over the property involves a disputed question of facts that has to be determined in the trial court.

It noted that as per Section 2(7)(a)(i) of the Karnataka Town and Country Planning Act, 1961, the Bangalore Development Authority is the planning authority for the area comprising the City of Bengaluru. Admittedly, in the instant case, the BDA has initially sanctioned the plan for construction of the apartment complex.

The same has been constructed and individual apartments have been alienated in favour of several persons including petitioner nos.2 and 3 herein. Along with the said apartments, a portion of the undivided right, title and interest in the property is also alienated in their favour, the Court noted.

Observing that it does not have the necessary expertise to analyse the building plan, the Court directed BDA to file an affidavit of a responsible Officer and state whether the modified plan which has been sanctioned in the instant case has been done in accordance with law or not and whether there is any violation of Clause 3.6 of the Regulations as alleged by the petitioners and also directed the BDA to clarify whether it has the jurisdiction to sanction the modified plan or that it has to be done by BBMP.

Thus the bench said that as the counsel for the BDA has submitted that the Government Order dated 07.11.2015 pertains only to new plan sanction and not to modified plans, the same is construed accordingly by all the authorities concerned and that the building being constructed is part of the already existing building and not a new building, it has to be held that the judgments of the Apex Court relied upon by the petitioners do not apply in the instant case, as it pertained to a case wherein the buildings being constructed were construed as a separate building.

Accordingly, it dismissed the petition.

Appearance: Senior Advocate D.R.Ravishankar for Advocate Rama R Iyer for Petitioners

Advocate N.R. Girish FOR R.1.

Senior Advocate Uday Holla for V B Shivakumar for R2.

Citation No: 2024 LiveLaw (Kar) 182

Case Title: H.M. TAMBOURINE APARTMENT OWNERS ASSOCIATION & Others AND Bangalore Development Authority & ANR

Case No: Writ Petition No 17375 OF 2017

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