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Judgment
Vikramajit Sen, C.J
The appellants who were the petitioners have constructed a building of 17 upper floors, 3 basement floors and a ground floor at a 7,ost of almost 500 cores (unaudited). They have approached the Court because of a proposal of the BBMP to allot separate Khata numbers in place of single khata on which the sanctioned plans have been based. It is not in dispute that a storm water drain runs across the northern side of the property. According to the respondents, the law insists that in such a situation two separate khata numbers shouid have been allotted to the land; one for the land on which the building is constructed and the other for the small portion of land which stands segregated due to the existence of the storm water drain, So far as the sanctioned plans are concerned, the area of the storm water drain has not been taken into contemplation for the calculation of the FAR. The petitioners apprehend that if two khata numbers are allotted, the respondents may enter into an exercise of re-calculating the FAR by disallowing the acreage of the detached land. The writ petition is full of grievances against the legal propriety, according to the petitioner, the BBMP has been instigated to make this change in order to cause harassment to the petitioners. The Writ Petition stands dismissed by the learned Single Judge who noticed that a storm water drain is in existence; and therefore, a unified or an amalgamated or single or composite khata should not have been allowed; that two separate khata for the two properties that fall on either side of the storm water drain would have been the proper course to adopt. The writ petition was dismissed by the learned Single Judge on the premise that the bifurcation of khata would not affect the petitioner''s rights in any way since it is only a fiscal entry enabling the calculation of levy and recovery of property tax.
On the previous date of hearing, we had asked the learned Sr.Counsel appearing for BBMP whether the allotment of two khata numbers would affect the FAR or the plan already sanctioned, on the basis of which, construction has already been carried out. Learned Sr.Counsel confirms that if two khata numbers are allotted, the segregated parcel of land will not be taken into contemplation for calculation of FAR and therefore, the FAR would perforce be reduced in the sanctioned plan.
We reiterate that there is no allegation that the construction is deviated from the plan or is in excess of it. This writ petition does not concern with that aspect and therefore, we should not be understood to give clearance to the building in that regard. If there are any deviations or excess coverage the BBMP shall be entitled to proceed in accordance with Law.
In these circumstances, we direct, that the storm water drain in question shall not be appropriated in any manner by the petitioners; its dimensions shall not be reduced without due permission from the respondents. However, we place on record the fact that the respondents have already sanctioned the construction of a box type drain, on a study being prepared by their consultants STUP Consultants and this exercise has already been completed. On instructions, learned Sr.Counsel states that the petitioners shall meticulously abide by the permission/clearance with regard to the drain and shall not put up any construction on the storm water drain.
Since the segregated portion to the North of the building was always treated as an open area, no construction shall be carried by the petitioners there on Land Scaping of both areas i.e. Storm Water Drain as well as the segregated land shall be permitted since this will enure to the benefit of all concerned. Without prejudice to any action that may be taken for any irregularity, deviation or excess coverage, contrary to the sanctioned plan the structure shall not be demolished. If occupancy certificates are permitted in law, they shall be granted. Subject to the above, BBMP shall be competent to allot separate khata numbers provided, it does not for this reason, impact on the sanctioned plans of the building. The order of the learned Single Judge is accordingly set aside. The Writ appeals are allowed.