TMI Blog2005 (1) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... and prayed for quashing of the licence and direction to demolish the building already constructed on the site. It was submitted that the residents in the area had acquired sites and built houses on the understanding and under the bona fide belief that the lay out would be developed and maintained in accordance with law. Grievance of the Association was the menace of multi-storeyed and multi-apartments buildings in the Bangalore city particularly in Koramangala lay-out which is considered to be a posh and prestigious lay-out, had been increasing. Many property developers, investors in buildings and speculators in real estate were alleged to have started their activities which are detrimental to the quality of life of the residents of the area. Multi-storeyed buildings and multi-apartment buildings were causing strain on the public amenities. It was alleged that the property developers by using their influence and money are getting licences against the statutory prohibitions. The appellant relied upon the decision given in case of Chandrashekar Hegde v. B.C.C. ILR1988KAR356. (Single Bench) to contend that the Corporation was not empowered to grant licences to the owners of the sites ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icence issued in R-1's No. LP.353/87-88 for putting up a Multi-storyed/Multi-apartment building on Site No. 443, III Cross, III Block, Koramangal, Bangalore - 560 034; (ii) Declare as illegal and void building licence No. LP.353/87-88 issued by R-1 for the construction of a Multi-storyed/Multi-apartment building on Site No. 443, III Cross, III Block, Koramangala, Bangalore - 560 034; (iii) Direct R-1 to demolish the construction already put up on Site No. 443, III Cross, III Block, Koramangala, Bangalore - 560 034 by having recourse to Section 321 of the K.M.C. Act, 1976 (Karnataka Oct. 14 of 1977) and other related provisions of that Act; and (iv) Grant such other or further relief that this Hon'ble Court may deem fit under the circumstances including costs. 4. This was contested by the Respondents and the learned single Judge after hearing the parties held - I have no hesitation to hold that licences granted to Respondent No. 4 in these Writ Petitions are contrary to law in view of the law laid down in the case of Pee Kay Constructions. 5. But the learned Single Judge felt that the petition filed by the Writ Petition suffered from laches and delay and, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was no justifiable reason for such withdrawal. They also explained that the building is permitted to be constructed at Site No. 403 which is a narrow road, the residents of area will be subjected to great inconvenience but without any result. It was also contended that the third party right had not been created. After the grant of permission, the construction proceeded. However, Appellant/Respondent in their turn submitted that the third party interest had already been created because the 4th Respondent has issued shares on 21st May, 1988 and some of the flats have been sold out. However, Division Bench did not accept the plea of the third party interest being created in the matter. The Division Bench observed that when the original files of Corporation were summoned by the Court, it was found that between 4th April, 1988 and 14th February, 1991 nothing transpired. However, the builder on 14th February, 1991 requested for permission to complete the construction mainly on the ground that substantial amount has been spent on purchase of site and on construction of ground with three floor building. This letter was perused by the Deputy Director of Town Planning on 20th March, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egality was committed. 8. All the three appeals Civil Appeal No. 1415 of 1999, Civil Appeal No. 1416 of 1999 and Civil Appeal No. 1417 of 1999 arise against the order passed by the Division Bench. Civil Appeal No. 1417 of 1999 have been filed by bona fide purchasers of flats in the building, whereas CA 1415/99 CA 1416/99 have been filed by builders. 9. Now, in order to appreciate the contention raised by the appellants, it may be necessary to dilate upon some facts of CA 1415/99. Property No. 443, 2nd Cross, 3rd Block, Koramangala Extension, Bangalore, was allotted by the City Improvement Trust Board to Dr. Alice Duraiswamy on 4th March, 1971 and he was also put up in possession of this schedule land. The Bangalore Development Authority, successors in interest of City Improvement Trust Board sold the schedule land in favour of Dr. Alice Duraiswamy under a registered Sale Deed dated 27th March, 1981. Dr. Alice Duraiswamy then sold the land in favour of one M/s Batra Developments under a registered Sale Deed dated 12th June, 1987. The development and planning of the City of Bangalore and construction of the building thereon were governed by the Karnataka Town and Country Plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of law is identical but facts are little different. In this case, on 16th July, 1969, City Improvement Trust Board allotted a site bearing No. 403. Kormangala measuring 80' x 120 (9600 sq.ft.) (Schedule property) to Mr. U.L. Nagraj. On 13th July, 1982, absolute Sale Deed was executed by Bangalore Development Authority in favour of Mr. U.L. Nagraj with following conditions: That the schedule site shall be held by the second party and enjoyed the rents and profits etc. received thereof, be enjoyed subject to the following conditions:- (1) The building to be constructed shall be used whole for human habitation and shall not include any apartments to the building whether attached thereto or not used as a shop or a building of warehouse or building in which manufactory are conducted by mechanical power or otherwise. 11. Thereafter, on 4th March, 1982/16th April, 1987, a Sale Deed executed by Mr. U.L. Nagraj in favour of Mrs. Ratna Lachman Bhojwani. Mrs. Ratna Lachman Bhojwani sold schedule property in favour of the appellant. On 17th August, 1987, the plan was approved for construction of ground plus three upper floors plus mezzanine floor. A licence was issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng construction. That gave rise to present PIL. 13. It is also relevant to mention here that a Special leave Petition was filed against the Pee Kay Constructions Case before this Court and this Court disposed of that S.L.P. without going into the merits of the judgment of the High Court. The order of the High Court was modified in following terms : Leave granted. After hearing counsel for both the parties and giving them sufficient time to obtain instructions, we are of the opinion that, in the circumstances of the case, it is not necessary to go into the merits of the judgment of the High Court but that the judgment of the High Court be modified as set out below. It is a fact that the appellants have constructed two floors of the building : the ground floor and the first floor alongwith the basement. In our opinion, the interests of justice require that they should not be asked to demolish it. It is enough if they are restrained from constructing a second and third floor as originally planned. The High Court has also held that the appellants can have only one residential unit on the site. Counsel for the respondents points out that the appellants have submitted a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The first Act with which we are concerned is the Karnataka Town and Country Planning Act 1961 (hereinafter to be referred to as the Act of 1961). This Act primarily deals with the planned growth of land use and development and for the making and execution of Town Planning Scheme in the State of Karnataka. By this Act the entire planning of State governed and the Town Planning Schemes are made for development of the State. Development plan means Outline Development Plan or Comprehensive Development Plan prepared under this Act. Section 14 of the Act lays down enforcement of the outline development plan and the regulations. It says that from the date when this Act come into force every land use every change in land use and every development in the area covered by the plan shall conform to the provisions of this Act the Outline Development Plan and the regulations. It further stipulates that no such change in land use or development shall be made except with the written permission of the Planning Authority. Therefore, the whole purpose of this Act is the plan development of the State. 17. The next is the City of Bangalore Improvement Act 1945 (hereinafter to be referred to as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions on the agreement executed by him and the Buildings and other bye-laws of the Board for the time being in force. Under sub-rule (6) the allottee has to construct the house within a period of two years and if the building is not constructed within the said period of allotment, the Board reserves the right to revoke the agreement. Sub-rule (7) lays down that the site or the building constructed on the plot shall not be alienated during the period of tenancy. Relevant rules which have bearing on the subject read as under : 17. Conditions of allotment and sale of site.- XX XX- XX (4) After payment under sub-rule (2) is made the Board shall intimate the allottee the actual measurement of the site and the particulars thereof and a lease-cum-sale agreement in Form II shall thereafter be executed by the allottee and the Board and registered by the allottee. If the agreement is not executed within forty-five days after the Board has intimated the actual measurement and particulars of the site to the allottee, the earnest money paid by the allottee may be forfeited, the allotment of the site may be cancelled, and the amount paid by the allottee after deducting the earne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or allowing the Lessee/Purchaser to occupy the property as Lessee until the Payment in lull of the price of the aforesaid site as might be fixed by the Lesser/ Vendor as hereinafter provided; And Whereas the Lessor/Vendor agreed to do so subject to the terms and conditions specified in the City of Bangalore Improvement (Allotment of Sites) Rules. 1964, and the terms and conditions hereinafter contained; And Whereas thus the Lessor/Vendor has agreed to lease the property and the Lessee/Purchaser has agreed to take it on lease subject to the terms and conditions specified in the said Rules and the terms and conditions specified hereunder; Now this indenture witnesseth: 1. The Lessee/Purchaser is hereby put in possession of the property and the Lessee/Purchaser shall occupy the property as a tenant thereof for a period of ten years from (Here enter the date of giving possession)............ or in the event of the lease being determined earlier till the date of such termination. The amount deposited by the Lessee/Purchaser towards the value of the property shall, during the period of tenancy, be held by the Lessor/Vendor as security deposit for the due performance of the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g out such directions will be a breach of conditions of these presents. 10. In the event of the Lessee Purchaser committing default in the payment of rent or committing breach of any of the conditions of this agreement or the provisions of the City of Bangalore improvement (Allotment of Sites) Rules, 1964, the Lessor/ Vendor may determine the tenancy at any time alter giving the Lessee/ Purchaser fifteen days' notice ending with the month of the tenancy, and lake possession of the property. The Lessor/ Vendor may also forfeit twelve and a half percent of the amount treated as security deposit under Clause 1 of these presents. 11. At the end of ten years referred to in Clause 1 the total amount of rent paid by the lessee/ purchaser for the period of the tenancy shall be adjusted towards the balance of the value of the property. 12. If the lessee / Purchaser has performed all the conditions mentioned herein and committed no breach thereof the Lessor/ Vendor shall, at the end of ten years referred to in Clause 1, sell the property to the Lessee/ Purchaser and all attendant expenses in connection with such sale such as stamp duty, registration charges, etc., shall be borne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all attendant expenses in connection with such sale such as stamp duty, registration charges, etc., shall be borne by the Lessee/ Purchaser. Condition No. 13 says that on complying with the terms and conditions of this agreement in the manner stated above but not otherwise the Lessor / Vendor shall be obliged to execute the sale deed in favour of the Lessee/ Purchaser. Therefore, looking to the scheme of the Act, the Rules and the terms and conditions of the lease cum sale agreement, it transpires that once an allotment is made to the lessee and he makes all payments then after the payment the lesser/ vendor shall at the end of ten years sell the property to the lessee/ purchaser and the lessee/ purchaser will get the sale deed registered. Therefore, if all the conditions of the lease agreement are fulfilled, at the end of the stipulated period of ten years then outright agreement of sale shall be executed by the lessor/ vendor with the lessee/ purchaser and the lessee will have absolute right. The lease agreement also says that during the currency of the lease, the lessee/ purchaser shall abide by the terms and conditions of the lease. As per condition 17 (7) reproduced above, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of 1999, an absolute sale deed was executed on 13.7.1982 in favour of U.L. Nagaraj after he constructed the house. The only condition which was incorporated in Clause 2 of the sale deed reads as under: The building to be constructed shall be used wholly for human habitation and shall not include any apartments to the building whether attached thereto or not used as a shop or a building or warehouse or building in which manufactory operations are conducted by mechanical power or otherwise. Therefore, the only condition was that it shall be used for human habitation and it shall not allow any apartments to the building whether attached thereto or not . used as a shop or a building or warehouse or for manufacturing operation. There is no condition that one cannot raise any multi-storeyed building over the schedule property. The condition not to have more than one dwelling house was the condition No. 4 of the lease cum sale agreement but that condition has not been repeated when the absolute sale was made in favour of a party. As such, the condition No. 4 of the lease cum sale agreement survived during the currency of that agreement. As soon as absolute sale is made then proh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstructions case cannot be said to be a good law. 21. Learned counsel for the respondents has tried to raise certain objections that in the final agreement the expression apartment has been used which shows that there cannot be more than one dwelling house. We regret to say that this interpretation does not bear out in the face of the language used in the Clause 2 of the final agreement which says that the building to be constructed shall be used wholly for human habitation and shall not include any apartments to the building whether attached thereto or not for shop or warehouse or manufacturing purposes but that does not make out a case for prohibition of raising of the multi-storeyed building. Once the Municipal Corporation has permuted to raise construction more than three floor then this condition for construction will hold good and they are not contrary to any of the provisions of the Act. Section 505 of the Karnataka Municipal Corporation Act, 1976 only says that the Corporation shall exercise power in conformity with the provisions of the Karnataka Town and Country Planning Act, 1961. Therefore, the Corporation at the time of granting permission has to keep in mind the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. The parameters have already been laid down in a decision of this Court in the case of Balco Employees' Union (Regd.) v. Union of India and Ors. (2002)ILLJ550SC , wherein this Court has issued guidelines as to what kind of public interest litigation should be entertained and all the previous cases were reviewed by this Court. It was observed as under : .......... 77. Public Interest litigation, or PIL as it is more commonly known, entered the Indian Judicial process in 1970. It will not be incorrect to say that it is primarily the Judges who have innovated this type of litigation as there was a dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress were required to be espoused. PIL was not meant to be adversarial in nature and was to be a cooperative and collaborative effort of the parties and the court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to by petitioner and entertained by the Court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and reemphasize the same. 25. In this connection reference may be made to a recent decision given by this Court in the case of Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. AIR2005SC540 S.L.P.(c) No. 26269 of 2004 in which Hon'ble Pasayat J. has also observed as follows: Public Interest Litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented for founded on personal vendetta. 26. We fully share the views expressed in the aforesaid decision of this Court and reiterate that it should go a warn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a writ because of the laches of the applicant. 31. In the case of Ramana Dayaram Shetty v. The International Airport Authority of India and Ors. (1979)IILLJ217SC , even live months delay was considered to be fatal. It was observed as follows: Moreover, the writ petition was filed by the appellant more than five months after the acceptance of the tender of the 4th respondents and during this period, the 4th respondents incurred considerable expenditure aggregating to about ₹ 1,25,000/- in making arrangements for putting, up the restaurant and the snack bars and started running the same. It would now be most inequitous to set aside the contract of the 4th respondents at the instance of the appellant. The position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of the 4th respondents but the appellant allowed a period of over five months to elapse during which the 4th respondents started their position. We are, therefore, of the view that this is not a fit case in which we should interfere and grant relief to the appellant in the exercise of our discretion under Article 226 of the Constitution. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eprivation of his legal right by the State. 34. There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third party interest created on account of delay. Even otherwise also why Court should come to rescue of person who is not vigilant of his rights. 35. We are of the opinion that delay in this case is equally fatal, the construction already started by the appellant in 1987 and building had come up to three floors. Thereafter it was stopped in 1988 and in March, 1991 it resumed after permission was granted. The Writ Petition was filed in November, 1991 meanwhile almost construction was complete. Therefore, delay was fatal in the present case and learned single judge rightly held it. It was also brought to our notice that 46 multi storey buildings have come up in this area. Learned counsel has produced photographs to show that buildings more than three and four floors have been constructed in and around this area. 36. However, we are satisfied that there is no prohibition under the provisions of the Act and Rules putting the ceiling on construction of the multi storey b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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