The main legal point established in the judgment is the jurisdiction of the BDA to issue the modified plan sanction and the interpretation of building bye laws in determining the status of the new building being constructed.

Headnote:
BDA/EM/EO-1/TA-2/T-457/2017-18 - Apartment Complex Construction - The court dismissed the writ petition challenging the modified plan sanctioned by BDA for the construction of an additional building in an apartment complex, holding that the BDA had the jurisdiction to issue the modified plan and that the new building being constructed was considered as part of the existing building.
Fact of the Case:

The petitioners, an apartment owners' association and individual owners, challenged the modified plan sanctioned by BDA for the construction of an additional building in an apartment complex, alleging violations of law and infringement of their rights.
Finding of the Court:

The court dismissed the writ petition, stating that the extent of land already sold to individual apartment owners and the consequences of it over the right of respondent no.2 to put up additional construction involves disputed questions of facts that must be determined in the trial court. The court held that the only question for consideration was whether BDA had the jurisdiction to issue the modified plan sanction and whether it was in accordance with the law.
Issues: The disputed questions of facts regarding the extent of land already sold to individual apartment owners and the consequences of it over the right of respondent no.2 to put up additional construction. The main issue for consideration in the writ petition was whether BDA had the jurisdiction to issue the modified plan sanction and whether it was in accordance with the law.
Ratio Decidendi: The court relied on Section 2(7)(a)(i) of the Karnataka Town and Country Planning Act, 1961, to establish that BDA is the planning authority for the area comprising the City of Bengaluru. The court also considered the jurisdiction of BDA to issue the modified plan and the interpretation of building bye laws in determining whether the new building being constructed was considered as part of the existing building.
Final Decision: The writ petition was dismissed, with the court clarifying that the dismissal would not prevent the petitioners from agitating their rights in respect of the property before the Civil Court, and if successful, taking action in accordance with the law. Pending I.As., if any, were disposed of.

ORDER

BEARING BDA/EM/EO-1/TA-2/T-457/2017-18 DATED 08.01.2018 (ANNEXURE-N) ISSUED BY THE RESPONDENT NO.1 BY ISSUING A WRIT IN THE NATURE OF CERTIORARI, ETC.

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.02.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THROUGH PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

1. Petitioner No.1 is an apartment owners' association consisting of owners of different apartments in H.M.Tambourine apartment complex and petitioner Nos.2 and 3 are individual owners in the said apartment complex. Respondent No.2 has got the said apartment complex constructed.

2. The case of the petitioners is that the apartment complex is constructed on Sy.No.28, Kanakapura Road, Jaraganahalli Village, Uttarahalli Hobli, Bangalore-560 078 and the property measures about 3 acres 18 guntas. The same is hereinafter referred to as 'property'. It is further submitted that after development of the apartment complex as per the earlier plan sanctioned by the Bangalore Development Authority (BDA), individual apartments have been sold in favour of several persons and apart from the ownership over a particular apartment, a portion of the undivided right, title and interest over the property is also sold in favour of each of the apartment owners and though respondent No.2 is entitled to put up additional construction, it can be only in respect of the extent which is not already sold and that the modified plan has been sanctioned based on the maximum floor area ratio (FAR) permissible as of now for the entire property 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. It is also contended that even if it is presumed that the BDA has the necessary powers, the plan sanctioned is in violation of law, as the plan permits 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. It is further submitted that the consent of individual apartment owners already owning apartments is not taken while granting the modified plan. It is also submitted that the modified plan has the effect of infringing upon the rights of the apartment owners over the common areas. It is also submitted that it also has the effect of reducing the ownership of the individual apartment owners over the property. For the said reasons, it is prayed that the modified sanctioned plan be set aside along with the endorsement issued by BDA to the representation of the petitioners.

3. Per contra, the case of respondent no.2 is that the 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. It is further contended that respondent No.2 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 plan and upon respondent no.2

approaching the BDA, it has sanctioned the modified plan in accordance with law. It is further contended that the 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 of 3 acres 18 guntas and that the apartment complex being constructed as

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