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TMI Blog2015 (11) TMI 1798X X X X Extracts X X X X X X X X Extracts X X X X ..... ulti-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 agreement with the BDA. The facts 4. On or about 5th Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after, 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 building. It was also alleged that a part of the building was to be used for commercial purposes although the allotment was for a residential purpose. 10. Appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 certificate and permission to occupy or use (1) Every person shall, within one month after the completion of the erection of a building or the execution of any such work, deliver or send or cause to be delivered or sent to the Commissioner at his office notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 regard under the Karnataka Municipal Corporations Act and that an occupancy certificate would be issued only after the BBMP is satisfied that the construction meets the requirements of law. 18. Sadananda Gowda also filed an affidavit in the High Court in which he denied any violation of the lease-cum-sale agreement or the sanctioned building plan. He denied that a five storeyed building was constructed or that the two plots in question were amalgamated. He submitted that an area of 20% could be earmarked for commercial activity and that he had not violated the sanctioned building plan. Jeevaraj also filed a more or less similar affidavit empha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... malgamating 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 therefore violating affidavit of undertaking. Paragraph 61 of the decision of the High Court reads as follows: 61. The municipal authority, if at all, is only concerned with the building plan being in conformity with the zonal Regulations and the building bye-laws. At the same time, conditions that are incorporated in the lease-cum-sale agreement are also to be looked into. The manner in which the initial plan is sanctioned by the municipal authorities approving construction of ground plus two floors in itself indicates that they are overlooking condition No. 4 of the lease-cum-sale agreement. Whether this initial plan can be characterized as a valid one or otherwise, it is obviously one overlooking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 structure by way of damage control so that it appears that there is a separate building on each plot. It is submitted that once the condition of the lease-cum-sale agreement is breached, the demolition of a part of the combined or composite or homogenous structure cannot undo or remedy the violation that has already occurred. 26. We are not in agreement with the contention advanced on behalf of Nagalaxmi Bai in this regard. The writ petition was filed by her at a time when the construction was in progress-in fact, it is still not complete. It is true that substantial progress was made in the construction but nevertheless Sadananda Gowda and Jeevaraj could make changes therein until the grant of an occupancy certificate by the BBMP. It would be a bit farfetched to assume, in a case such as the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. The BBMP is also on record to say that unless the buildings are in conformity with the sanctioned plan and the building Regulations, no occupancy certificate will be granted to Sadananda Gowda and Jeevaraj. The matter should rest at that. 29. In our opinion, the High Court was in error in coming to the conclusion that the buildings constructed on the two plots were not in accordance with the sanctioned plan. The buildings were and are still under construction and it is too early to say that there has been a violation of the sanctioned plan. No doubt there are some deviations as pointed out by the BBMP but that is a matter that can certainly be attended to by Sadananda Gowda and Jeevaraj on the one hand and the BBMP on the other. The mere existence of some deviations in the buildings does not lead to any definite conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Chief Minister of Karnataka to arm-twist the BBMP since the inspection report was not entirely in his favour. 32. This is not to say that in no circumstance can a statutory body not be influenced by a politician who has considerable clout. A lot depends on the facts of each case and the surrounding circumstances. Insofar as the present case is concerned, in spite of the clout that Sadananda Gowda may have wielded in Karnataka, his actions relating to the construction of the building on his plot of land do not suggest any abuse, as mentioned above. Undoubtedly, there are some deviations in the construction which will surely be taken care of by the BBMP which has categorically stated on affidavit that an occupancy certificate will be given only if the building constructed conforms to the sanctioned plan and the building bye-laws. 33. In view of the above, we find no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;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 against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted. 38. A salutary principle or a well recognized rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India (1974) 2 SCC 630 in the following words: The powers of the High Court Under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he event of a default in payment of rent or committing breach of the conditions of the lease-cum-sale agreement or the provisions of law. In the event of the Lessee/Purchaser committing default in the payment of rent or committing breach of any conditions of this agreement or the provisions of the Bangalore Development Authority, (Allotment of Sites) Rules, the Lessor/Vendor may determine the tenancy at any time after giving the Lessee/Purchaser fifteen days notice ending with the month of the tenancy, and take possession of the property. The Lessor/Vendor may also forfeit twelve and a half per cent of the amounts treated as security deposit under clause of these presents. This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By taking over the functions of the BDA in this regard, the High Court has given a complete go-bye to the procedural requirements and has mandated a particular course of action to be taken by the BDA. It is quite possible that if the BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be pre-empted by the direction g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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