TMI Blog2015 (11) TMI 1798X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is substantiated, it can be said at best, that they have acted contrary to the letter dated 24th September, 2009 but there is no breach or violation of condition No. 4 of the lease-cum-sale agreement. The effect, if any, of acting contrary to the letter dated 24th September, 2009 has not been canvassed or agitated. In any event, the case set up by Nagalaxmi Bai is not of a violation of the letter dated 24th September, 2009 but of a violation of condition No. 4 of the lease-cum-sale agreement - Under these circumstances, frankly, we fail to understand how it has been found by the High Court that amalgamation of the two plots (assuming it to be so) is a breach or violation of the lease-cum-sale agreement. Be that as it may, factually there is no subdivision of the plots and to that extent there is no violation of condition No. 4 of the lease-cum-sale agreement. If more than one building is constructed thereon for the purposes of human habitation - If an apartment whether attached to the building or not is used as a shop or a warehouse etc. - HELD THAT:- It is nobody's case that more than one building has been constructed on either of the plots or that the building or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a multi-storeyed residential building on the plots allotted to them. The alternative question is whether the construction made by them is contrary to the plan sanctioned by the Bruhat Bangalore Mahanagara Palike (for short 'the BBMP') and thereby violated the lease-cum-sale agreement with the BDA. The term of the lease-cum-sale agreement alleged to have been violated is Clause 4 which reads as follows: 4. The Lessee/Purchaser shall not sub-divide the property or construct more than one dwelling house in it. The expression 'dwelling house' means building constructed to 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 of warehouse or building in which manufactory operations are conducted by mechanical power or otherwise. (a) The Lessee shall plant at least two trees in the site leased to him. 3. In our opinion, both the questions are required to be answered in the negative. There has been no violation of the lease-cum-sale agreement or the sanction plan for construction such as to violate the lease-cum-sale agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no dispute or doubt with regard to the validity of the reasons for turning down the proposal for amalgamation. 7. Thereafter, both Sadananda Gowda and Jeevaraj made separate applications for sanction of a building plan to the BBMP. The building plans were for the construction of a ground/stilt floor and two upper floors. The plans were considered by the BBMP and sanctioned on 22nd July, 2010. At this stage, it may be noted that there was some confusion with regard to the sanctioned construction but during the course of hearing it was clarified that the sanction was for a ground/stilt floor and two upper floors. 8. Based on the sanction so granted, the construction of the buildings began on the plots owned by Sadananda Gowda and Jeevaraj. 9. On 2nd August, 2011 the Bangalore Mirror newspaper carried a story alleging that Sadananda Gowda was making an illegal construction on the plot allotted to him and Jeevaraj by amalgamating the two plots. The newspaper carried photographs of the construction which showed one composite building under construction on the two plots and it was alleged that the building under construction was a five storeyed buil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , ground floor and three upper floors on each plot. After admission of the writ petition, the modified building plan was further modified on the request of Sadananda Gowda and Jeevaraj and construction was permitted by the BBMP on 12th June/22nd June, 2012 for a building having a basement, ground floor and three upper floors entirely for residential purposes. Responses in the High Court 15. In response to the writ petition, affidavits were filed by the BDA, the BBMP, Sadananda Gowda and Jeevaraj. 16. The BDA denied that the two plots in question had been amalgamated and it also stated that it had no role in the sanctioning of building plans. The BBMP stated that the allegation that a five storeyed building had been constructed was not correct nor was it correct that the building was being used for commercial purposes. In fact, it was submitted that the construction had not been completed and so it could not be assumed that the building was in violation of the sanctioned building plans or was to be used for commercial purposes. Attention was drawn to Section 310 of the Karnataka Municipal Corporations Act, 1976 Section 310-Completion certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferable development rights, he is entitled to a floor area ratio of 3.60 and permissible coverage is 82.5%. The BBMP gave a chart of the permissible floor area ratio, the permissible coverage area and what has been achieved in the modified sanctioned plan. This is as follows: S.No. details As per the modified plan Achieved as against the modified plan 1. modified plan floor area ratio 3.60 2.562 2. modified plan coverable area 82.50%% 64.03 It was specifically stated by the BBMP that The modified plan now sanctioned is purely for residential purpose. The BBMP further stated that an inspection of the building was carried out by the Assistant Director, Town Planning and Assistant Executive Engineer of the BBMP with reference to the sanctioned plan. During the inspection, certain deviations were noticed and appropriate action would be taken in that re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven the averments as contained in the statements of objections filed on behalf of Respondents and annexures such as photographs produced by the Petitioner and the Respondents, it cannot be disputed nor in any manner doubted that a homogenous structure which has been characterized as one plus four floors or otherwise, had been put up and this construction has come up after rejection of a joint request of the fifth and seventh Respondents for amalgamating the two sites and putting up a commercial complex or combined structure, is a structure which is flawed from the very beginning and is clearly in contravention of the order passed by BDA rejecting the request of the fifth and seventh Respondents for amalgamating the two sites. Apart from enabling provisions of the building byelaws and zonal Regulations, which are brought to our attention, which may, perhaps, enable a modification of the plans and a revised plan may be permitted, if all is within the limits of law and not prohibited by a basic law. In the instant case, as is pointed out by the learned Counsel for the Petitioner, the construction initially was in violation of condition No. 4 of the lease-cum-sale agreement and also th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cum-sale agreement. Under these circumstances, frankly, we fail to understand how it has been found by the High Court that amalgamation of the two plots (assuming it to be so) is a breach or violation of the lease-cum-sale agreement. Be that as it may, factually there is no subdivision of the plots and to that extent there is no violation of condition No. 4 of the lease-cum-sale agreement. 24. As regards the second and third circumstance, it is nobody's case that more than one building has been constructed on either of the plots or that the building or any part thereof is used as a shop or warehouse etc. Therefore, this need not detain us any further, more particularly since the buildings are not yet completely constructed. 25. The grievance of Nagalaxmi Bai is that the photographs of the building indicate that the construction on the two plots is actually a composite or a combined or a homogenous structure and that construction is per se in violation of condition No. 4 of the lease-cum-sale agreement. It is her further grievance that after the writ petition was filed both Sadananda Gowda and Jeevaraj made some changes and demolished a part of the stru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case is concerned, which is that to bring the construction in conformity with the building Regulations, a part of the building was demolished by Sadananda Gowda and Jeevaraj. The stage at which the modifications are made is not of any consequence, as long as they are made before the occupancy certificate or a completion certificate is granted. 28. Nagalaxmi Bai is also aggrieved that multi-storeyed constructions have come up on the two plots. Like it or not, condition No. 4 of the lease-cum-sale agreement does not prohibit the construction of a multi-storeyed building on the plot as long as the construction is of a dwelling house which is used wholly for human habitation and not as a shop or a warehouse or for other commercial purposes. As long as the building conforms to the terms of the lease-cum-sale agreement and the building Regulations and bye-laws, no objection can be taken to the construction, however large or ungainly it might be. In this regard, the BDA is on record to specifically say that there is no violation of the lease-cum-sale agreement and the BBMP is on record to say that there is no violation of the sanctioned plan, except for some deviations. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ex facie and egregious violation of condition No. 4 of the lease-cum-sale agreement. It is difficult to accept such a blanket and freewheeling submission, particularly in the absence of any material on record. That apart, it may be recalled that even when Sadananda Gowda applied for amalgamation of his plot with that of Jeevaraj, he was an influential politician in Karnataka being the Deputy Leader of the Opposition. Notwithstanding this, the BDA rejected the request of amalgamating his plot with that Jeevaraj's plot. Additionally, even while Nagalaxmi Bai's writ petition was pending in the High Court and Sadananda Gowda was the Chief Minister of Karnataka, an inspection of the premises was carried out by the Assistant Director, Town Planning and the Assistant Executive Engineer of the BBMP. They pointed out certain deviations in the construction and the BBMP did state on affidavit that appropriate action would be taken in this regard and that an occupancy certificate would be issued only after the BBMP is satisfied that the construction is in accordance with law. It is difficult to assume, under these circumstances, that Sadananda Gowda exercised his influence as the Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept to say that in issues pertaining to good governance, the courts ought to be somewhat more liberal in entertaining public interest litigation. However, in matters that may not be of moment or a litigation essentially directed against one organization or individual (such as the present litigation which was directed only against Sadananda Gowda and later Jeevaraj was impleaded) ought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies. 37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra (2004) 2 SCC 150 that: Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that are not within the purview of public interest litigation. Exercise of discretion 40. Learned Counsel for Sadananda Gowda and Jeevaraj also addressed us on the issue that the High Court had exceeded its jurisdiction in questioning the sanctioning of the building plans by the BBMP and further mandating the BDA to take action against Sadananda Gowda and Jeevaraj in terms of condition No. 4 of the lease-cum-sale agreement and the affidavit undertaking given by them, thereby effectively requiring the BDA to forfeit the lease. 41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High Court has virtually taken over the function of the BDA by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the lease-cum-sale agreement gives discretion to the BDA to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease-cum-sale agreement or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive to a right . In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion. 43. To this we may add that if a court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the court to by-pass the statutory authority can always be set aside. If the reasons are cogent, then in an exceptional case, the court may take a decision without leaving it to the statutory authority to do so. However, we must caution that if the court were to take over the decision taking power of the statutory authority it must only be in exceptional circumstances and not as a routine. Insofar as the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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