R
& M Trust Vs. Koramangala Resi. Vigilance Group & Ors [2005] Insc 48 (19 January 2005)
Ashok
Bhan & A.K. Mathur
WITHCivil
Appeal No. 1416 of 1999 Civil Appeal No. 1417 of 1999 A.K. MATHUR, J.
This
appeal and connected appeals were filed against the order passed by the
Division Bench of the Karnataka High Court dated 2nd July, 1998 whereby the Division Bench disposed of Writ Appeal No. 1955
of 1993 alongwith Writ Appeal No. 777 of 1993.
Facts
which are necessary for disposal of these appeals are the Respondent
Association Koramangala Residents Vigilance Group filed a Public Interest
petition challenging the building licence issued for construction of multi-storeyed/
multi-apartments on Site Nos. 403 and 443 in IInd and IIIrd Cross in III Block,
Koramangala Layout, Bangalore, on the ground that it is illegal, void 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 [ILR 1988 Karnataka 356], (Single
Bench) to contend that the Corporation was not empowered to grant licences to
the owners of the sites to build multi-storeyed and multi-family dwelling
units. It was alleged that the scheme under the City of Bangalore Improvement Act, 1945 and Bangalore Development
Authority Act, 1976 provided for construction of residential houses and not for
exploitation of those sites for construction of buildings in violation of law
and with the object of inflating the money market of the builders. It was
alleged that in Writ Petition No. 7599 of 1987, the Karnataka High Court
directed the Corporation not to issue licences to any third party for putting
up multi-storeyed and multi-family dwelling apartments in the sites allotted by
the B.D.A. It was further alleged that after the judgment in December, 1987,
one of the appellants represented to Respondent Nos.1 and 2 to re-examine the licences
already issued for putting up multi-storeyed building and multi-family
apartments in the light of the law laid down by the Karnataka High Court. In
response to that, respondent sent communications to all the licensees to stop
further construction. The Writ Appeal No. 306 of 1988 filed against the order
of the learned Single Judge was dismissed by the Division Bench on 14th Chandrashekar
Hegde, [ILR 1989 Karnataka, 241].
In
this background, the present Public Interest Litigation was filed which came up
before a single Judge. In this petition, the building licence No. LP 169/87-88
issued in favour of Respondent No.4 i.e. M/s R&M Trust by Respondent No.1 -
the Corporation of the City of Bangalore, for
construction of multi-storey building was stopped by letter dated 4.4.1988.
This
letter was withdrawn by Respondent No.3 i.e. Deputy Director of Town Planning
Corporation of the City of Bangalore, by
its letter dated 26th
March, 1991. On
receipt of this letter, Appellant /Respondent No.4 resumed the construction.
This action of the Respondent No.3 permitting the Appellant /Respondent No.4 to
proceed with the construction was challenged to be arbitrary, illegal,
unjustified and violative of Article 14 of the Constitution besides being in
violation of law, by the Respondent Association, alleging that issue of licence
in favour of Appellant/ Respondent No.4 is illegal and without jurisdiction.
The following prayers were made in the Writ Petition which reads as under:
(i)
Call for records from Respondents 1 to 3 pertaining to building licence 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,
1973 (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."
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." But the
learned Single Judge felt that the petition filed by the Writ Petitioner
suffered from laches and delay and, therefore, dismissed the Writ Petition on
the grounds of delay and laches. It was observed that the dismissal of Writ
Petitions will not prevent the Corporation from taking any action permissible
under the law. Aggrieved against the present order passed by the learned Single
Judge, the present Writ Appeal was filed and it was alleged that the Writ
Petition does not suffer from any delay or laches nor any third party interest
was created. However, the respondents contested this Writ Appeal, they did not
file the appeal against the aforesaid order but submitted that the law laid
down in Pee Kay Constructions case (Supra) was not a good law and the learned
Single Judge was not justified in holding that licence granted to respondents
was contrary to law. The Division Bench after hearing the parties observed
Karnataka 356] and Pee Kay Constructions case (Supra) is correct law.
Thereafter,
the Division Bench examined the question of delay and laches.
After
reviewing the facts the Division Bench held that there is no delay and laches
in preferring the writ petition. It was held that building licence was issued
in favour of appellant-builder on 19th August, 1987 and on 3rd October, 1987. The Commencement Certificate was issued on 13th October,
1987 and 23rd November, 1987 and the Chandra Shekhar Hegde's Case was decided
on 14/15/16th December, 1987 wherein it was held that the Corporation was not
justified in granting licence to the owners of the sites to put up multi-storyed/multi-family
dwelling units and the appeal was dismissed on 14th December, 1988. On 4th April, 1988, the Respondent Corporation issued
a letter to the builders directing them to stop construction. The construction
remained suspended upto 26th
March, 1991, when
letter was issued to builder revoking to stop construction order, permitting
them to proceed with the construction. This Writ Petition was filed in the
first week of November, 1991, as public interest litigation. The explanation
for the delay was that the office bearers made enquiries from the office of
Corporation the reasons for withdrawing of direction to stop work but in vain,
met the authorities of Corporation Respondent No.3 on several occasions and
then by a letter dated 7th October, 1991, requested to furnish the copies of
certificate but the copies were not furnished. They protested that 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, 1991 which was submitted to Commissioner
on 21st March, 1991. It was observed that all similar
cases be put up where building is completed with full structural work as per
sanctioned plan prior to judgment. It was found that there was no note by the
Deputy Director regarding Appellant/Respondent. Thereafter on 25th March, 1991, the order was passed by the
Commissioner that he perused the note and discuss the matter with CE and the
DDTP and considered the matter, he directed that the notice be withdrawn and
permission be accorded to complete the building as per sanctioned plan. The
Division Bench observed that these notes clearly show non-application of mind and
that the action of the respondent was not in accordance with law and was passed
without giving any reasons. Thereafter, the Division Bench concluded that the
view taken by the learned Single Judge is right that the licence granted in favour
of Respondent Nos. 4 and 5 is contrary to law and liable to be quashed. The
Division Bench further held that they did not agree with the view taken by the
learned Single Judge that the Writ Petition suffered from delay and laches and
accordingly, allowed the Writ Appeal, set aside the order of learned Single
Judge dismissing the same on the ground of delay and laches and affirmed the
finding that the licence granted in favour of Respondent Nos. 4 and 5 is
illegal and quashed the licence issued in favour of Repondent-builder, and also
quashed the order of Respondent Corporation dated 26th March, 1991 allowing
Respondent-builder to continue with the construction and directed Respondent
No.1 to demolish the illegal construction put up on Site Nos. 403 and 443. It
was further directed that the construction as raised by them is illegal and
they were liable to bear the expenses for demolition of the construction and
Respondent Nos. 1 and 3 are liable to pay costs to the writ petitioner.
Aggrieved
by this order, the present special leave petitions were filed and leave was
granted and operation of the order was stayed.
The
learned counsel for the appellant has seriously raised the objection of
entertaining this belated Public Interest Litigation and he submitted that this
was nothing but abuse of the process of the Court.
Secondly,
he submitted that the licence which had been granted for construction by the
Respondent-Corporation was fully justified and no illegality was committed.
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..
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 Duraisamy 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 Planning Act,
the Outline Development Plan and the Comprehensive Development Plan as well as
the Zoning Regulations framed thereunder. The Corporation of the City of Bangalore
also framed Bye-Laws in conformity with the Development Plan and the Zoning
Regulations. In accordance, therewith, M/s Batra Developments applied for and
obtained licence from the Corporation of the City of Bangalore for construction
of basement, ground and three upper floors on 3rd October, 1987. And
thereafter, the construction commenced and by 3rd April, 1988, the basement and
ground floor of the building had been completed. On 4th April, 1988, the
construction was stopped on the basis of the decision of the Karnataka High
Court in Pee Kay Constructions Case. Thereafter, the High Court of Karnataka in
a case known as Happy Home Builders Case held that when once a licence is
granted by the Corporation Authorities, the Corporation cannot stop construction
of building. M/s Batra Developments thereafter made a representation to the
Corporation Authorities and submitted that the substantial portion of the
building has been completed and considerable investment have been made and the licence
granted thereof is in accordance with the Building Plan and therefore, they may
be permitted to complete the construction. The Corporation Authorities after
taking into consideration the representation, permitted M/s Batra Developments
to proceed with the construction. M/s Batra Development entered into an
agreement of sale with M/s Raj Trust on 16th June, 1989. Consequent to the said
agreement under the Development Agreement dated 8th May, 1991 between M/s Raj
Trust and the appellant, the construction proceeded. When the building was
practically completed during November, 1991, the present Writ Petition was
filed challenging the very licence issued on 3rd October, 1987. The learned
Single Judge dismissed the Writ Petition on the ground of laches. It was
pointed out that the building was occupied by 12 families and the grant of licence
has been declared to be invalid after 11 years, but the Division Bench did not
agree and directed demolition of building on the basis of Pee Kay Constructions
case. Therefore, the question now arises for our consideration is whether the
issue of licence on 3rd October, 1987 by Corporation was valid or not.
Similarly,
in the another Civil Appeal No. 1416 of 1999, the 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." 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 by the Corporation of City of
Bangalore. The plan was sanctioned for a period of two years as per orders of
the Commissioner from 17th August, 1987 to 16th August, 1989. One of the
conditions was that the construction should be done within two years. The
appellant started the construction immediately. On 13th October, 1987, the
Commencement Certificate was issued, as per Building Bye-Laws. On 21st May,
1988, a share certificate was issued entitled them to ownership of flats..
Then, on 4th April, 1988 the B.C.C. asked the respondent to stop the work in
the light of Pee Kay Constructions case. It was alleged by appellant that the
entire building except the terrace of last floor had been completed. On 29th
March, 1989, another decision was given by the Karnataka high Court in the case
of Happy Home Builders wherein it was held that the construction have been
carried out in pursuance of the sanction given by the B.C.C. and Corporation is
estopped from stopping such construction. This order of learned Single Judge
was affirmed by Division Bench which reads as under :
"Delay
of 14 days in filing W.A.Nos. 1145 to 1151 of 1989 and 18 days in filing of
W.A. No. 1182/89 is condoned as sufficient cause is shown.
2. We
have heard the learned counsel and find that in the circumstances of this case,
without going into the question of the powers of the authorities to grant licence
contrary to section 505 of the Karnataka Municipal Corporation Act, the
judgment of the learned Single Judge can be sustained on the ground that there
has been an unexplained delay on the part of the Corporation in taking timely
action against the builders/owners. The Corporation is estopped from taking any
action in view of its own conduct in allowing the builders to raise
construction on the basis of the licences which were granted in contravention
of the provisions of Section 505 and in allowing the building to be occupied.
3. In
this view of the matter, we find that the judgment of the learned Single judge,
without expressing any opinion on the question of law, does not call for
interference.
Consequently
the appeals are dismissed. However time is granted to the Corporation for
compliance of the judgment of the learned Single Judge upto 5th August,
1989." On the basis of this judgment a representation was made by
appellant & Corporation revoked their letter of stopping construction. That
gave rise to present PIL.
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 revised plan to the Corporation, subsequent to the judgment of the
High Court, by which they seek approval of the construction of a single
residential unit on the ground floor and a single residential unit on the first
floor, and that, in the circumstances, they will not object to this revised
plan being approved. On the other hand, counsel for the appellant requests that
he may be allowed to construct three residential units on the ground floor and
the first floor as originally planned. After hearing both sides at some length,
we are of the opinion that the appellants may be permitted to have two (not
three) residential units on each of the two floors. There should however be no
construction above and beyond the first floor of the property and the property
should not be used for any purpose other than residential purpose. We direct
accordingly. This is an arrangement broadly agreed to by both the parties.
The
appeal is disposed of accordingly. There will be no order as to costs.
We
direct that the revised plan submitted to the Corporation by the appellants
subsequent to the decision of the High Court but modified so as to have two
flats or apartments on each of the floors instead of one be approved by the
Corporation and the authorities.
Constructions
on the site will stand otherwise restricted on the lines already indicated
above." The S.L.P. was accordingly disposed of but the ratio laid down in
the Pee Kay Constructions case was not examined by this Court on merit. In
fact, the S.L.P. was disposed of with the agreement of both the parties.
And
the third C.A. No. 1417 of 1999 was filed by Motor Industries Company Limited
who have purchased two flats in this building for about Rs. 21.1 lakhs on
21.2.1994 and the same are in occupation of its employees. It is alleged that
the petitioner who had bought these flats, was neither aware of the controversy
pertaining to the building nor about any order by any court. It was also
alleged that the number of persons has purchased flats in this residential
building and they are facing the similar predicament. Hence, these three
appeals are before us for the final disposal.
Before
we address to the questions raised with regard to the maintainability of the
present public interest litigation and the delay in filing the same, we may
examine necessary provisions of law bearing on the subject. 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.
The
next is the City of Bangalore Improvement Act, 1945 (hereinafter to be referred
to as the `Act of 1945`) and the Rules framed therein with which we are
concerned, are known as the City of Bangalore Improvement (Allotment of Sites)
Rules, 1964 (hereinafter to be referred to as the `Rules of 1964 `). We are
primarily concerned with this Act and the Rules, subsequently this Act of 1945
and Rules of 1964 have been repealed and they have been replaced by the
Bangalore Development Authority Act, 1976, and the Bangalore Development
Authority (Allotment of Sites ) Rules, 1982. The entire controversy centres around
these Acts and the Rules. The third Act with which we are concerned is the
Karnataka Municipal Corporations Act, 1976. Under this Act the Bangalore
Municipal Corporation granted permission to the appellant for raising one plus
three floors. As per the Act of 1945 , allotment was to be made with conditions
that they will have to deposit certain amount and then they will construct and
complete the building in the manner provided. As per the Act of 1945 schemes
are prepared by the Board and after preparation of the scheme and obtaining
necessary approval from the Government, allotments are made as per the Rules
and Bye-laws. The sites are allotted as per Rule 5 of the Rules of 1964. The allottees
are treated as lessee under Rule 6. Rule 7 deals with the applications for
allotment in Form I and after completion of necessary deposits those who are
eligible for allotment, sites are allotted to them under Rule 10. Rule 17 deals
with the conditions of allotment and sale of site. Under sub-rule (4), after
all other formalities have been made i.e.
payment
of the lease money, allottee is intimated about the actual measurement of the
site and particulars thereof and a lease-cum-sale agreement in Form II is
executed by the allottee and the Board and the same is required to be
registered by the allottee after constructing the building on the site in
accordance with the plans and designs approved by the Board. It further
stipulates that in case it is considered necessary to add any additional
conditions in the agreement the Board may make such additions. It also lays
down that the approval of the City of Bangalore Municipal Corporation for the plans and designs shall be necessary
when the lay-out in which the site is situated is transferred to the control of
the said Corporation. Sub-rule (5) of Rule 17 says that the allottee shall
comply with the 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 earnest money refunded to him.
Every allottee
shall construct a building on the site in accordance with the plans and designs
approved by the Board. If in any case it is considered necessary to add any
additional conditions in the agreement the Board may make such additions.
Approval of the City of Bangalore
Municipal Corporation
for the plans and designs shall be necessary when the lay-out in which the site
is situated is transferred to the control of the said Corporation.
(5)
The allottee shall comply with the conditions on the agreement executed by him
and the Buildings and other bye-laws of the Board for the time being in force.
(6)
The allottee shall construct a building within a period of two years from the
date of execution of the agreement or such extended period as the Board may in
any specified case by written order permit. If the building is not constructed
within the said period the allotment may be cancelled, the agreement revoked,
the lease determined and the allottee evicted from the site by the Board, and
after forfeiting twelve and a half per cent of the value of the site paid by
the allottee, the Board shall refund the balance to the allottee.
(7)
The site or the building constructed thereon shall not be alienated during the
period of the tenancy." The lease agreement is required to be executed in
Form II. This lease agreement is called Lease-cum-sale agreement. Form II of
the lease agreement reads as under :
"FORM
NO.II [See rule.] LEASE-cum-SALE AGREEMENT An Agreement made this.day of. 196
BETWEEN the City of Bangalore
Improvement Trust Board,
Bangalore, hereinafter called the Lessor/Vendor
which term shall wherever the context so permits, mean and include its
successors in interest and assigns of the ONE PART and..hereinafter called
Lessee/Purchaser (which term shall wherever the context so permits mean and
include his/ her heirs, executors, administrators and legal representatives) of
the Other PART;
Whereas
the City of Bangalore
Improvement Trust Board
advertised for sale building sites inExtension;
And Whereas
one of such building site is Site No more fully described in the Schedule
hereunder and referred to as Property;
And
Whereas there were negotiation between the Lessee/ Purchaser on the one and the
Lessor/Vendor on the other for allowing the Lessee/ Purchaser to occupy the
property as Lessee until the Payment in full 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 terms and conditions of these presents.
"2.
The lessee /purchaser shall pay a sum of rupees..per year as rent on or before.commencing
from"
3. The
Lessee/ Purchaser shall construct a building in the property as per plans,
designs and conditions to be approved by the Lessee/ Vendor and in conformity
with the provisions of the City of Bangalore Municipal Corporation Act, 1949, and the bye-laws made there
under within two years from the date of this agreement:
Provided
that where the Lessor/ Vendor for sufficient reasons extends in any particular
case the time for construction of such building, the Lessee/ Purchaser shall
construct the building within such extended period.
4. The
Lessee/ Purchaser shall not sub-divide the property or construct more than one
dwelling house on it;
The
expression "dwelling house" means a 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.
5. The
Lessee/ Purchaser shall not alienate the site or the building that may be
constructed thereon during the period of the tenancy. The Lessor/ Vendor may,
however, permit the mortgage of the right, title and interest of the Lessee/
Purchaser in favour of the Government of Mysore, the Central Government or
bodies corporation like the Mysore Housing Board of the Life Insurance
Corporation of India, Housing Co- operative Societies or Banks to secure moneys
advanced by such Governments or bodies for the construction of the building
6. The
Lessee/ Purchaser agrees that the Lessor/ Vendor may take over possession of
the property with the structure thereon if there is any misrepresentation in
the application for allotment of site.
7. The
property shall not be put to any use except as a residential building without
the consent in writing of Lessor/ Vendor.
8. The
Lessee/ Purchaser shall be liable to pay all outgoings with reference to the
property including taxes due to the Government and the Municipal Corporation of
Bangalore.
9. On
matters not specifically stipulated in these presents the Lessor/ Vendor shall
be entitled to give directions to the Lessee/ Purchaser which the Lessee/
Purchaser shall carry out and default in carrying out such direct5ions 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 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 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 by the Lessee/ Purchaser.
13. 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.
14.
The Lessee/ Purchaser hereby also confirms that this agreement shall be subject
to the terms and conditions specified in the City of Bangalore Improvement
(Allotment of Sites) Rules, 1964, and agreed to by the Lessee/ Purchaser in
his/ her application for allotment of the site.
15. In
case the Lessee/ Purchaser is evicted under clause 9 he shall not be entitled
to claim from the Lessor/ Vendor any compensation towards the value of the
improvements or the superstructure erected by him on the scheduled property by
virtue of and in pursuance of these presents.
16. It
is also agreed between the parties hereto that Rs (Rupees..) in the hands of
the Lesser/ Vendor received by them from the Lessee / Purchaser shall be held
by them as security for any loss or expense that the Lessor/ Vendor may be put
to in connection with any legal proceedings including eviction proceedings that
may be taken against the Lessee/ Purchaser and all such expenses shall be
appropriated by the Lessor/ Vendor from and out of the moneys of the Lessee/
Purchaser held in their hands.
THE
SCHEDULE SITE No formed by the City of Bangalore Improvement Trust Board in Block Noin the ..Extension.
Site
bounded on East by:
West
by:
North
by:
South by
:
And
measuring east to west. North to south..
In all
measuring Square Feet.
In
witness whereof the parties have affixed their signatures to this Agreement.
Chairman
The City of Bangalore Improvement Trust Board Witnesses:
1.
2.
Lessee/
Purchaser Witnesses:
1.
2.
." The conditions which have been set out in the lease agreement and which
is relevant for our purpose is condition No.4. Condition No.4 has already been
reproduced above which provides that lessee/purchaser shall not sub-divide the
property or construct more than one dwelling house.
Condition
No.12 says 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 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 lessee/ purchaser shall not alienate the
property during the period of tenancy. Once all the payments have been fulfilled
by the lessee, then the land is registered in favour of the lessee by the lessor
and the lessee becomes absolute owner of the land. So long as the \building is
not constructed under condition No.4 of the agreement the lessee is neither
entitled to alienate the property under condition 17 (7), nor shall be
sub-divide the property or construct more than one dwelling house on it. These
restrictions are there so long as the complete sale agreement is not executed
under condition No.12 of the lease-cum-sale agreement. As soon as the lease
agreement is executed conforming full title to the lessee, then the conditions
of the lease cum sale agreement come to an end and the lessee acquires full
right to deal with the said property in accordance with the Act and the Rules
bearing on the subject. After acquiring this full right the lessee has right to
alienate the property or whenever either lessee or his successor wants to
construct a building thereon he can do so in accordance with the provisions of
law. Condition No.4 of the lease agreement was only to survive so long as the
lessee continued to be lessee as his rights of lessee are restricted i.e. he
cannot alienate the property nor can he subdivide the property and he has to
construct one dwelling house. The moment the lease cum sale agreement is
executed after following the conditions of the lease as laid down, then there
is no further hurdle or condition like not to construct multi-storeyed building
or multi-dwelling house. The only condition that he will construct only one
dwelling house is contained in Condition No.4 of the lease cum sale agreement
and so long as the full rights are not transferred to the lessee-purchaser,
this condition would survive and after the sale is made, this condition will no
longer survive and conditions contained in absolute sale deed will govern. If
the lessee or his successor wants to raise a construction, then the provisions
of the Karnataka Municipal Corporation Act will come into play and he has to
obtain prior sanction for construction of the building. As soon as the
permission is granted by the Corporation, then he is to abide by those
conditions along with the condition laid down in absolute sale deed.
Now,
adverting to the facts in C.A.No.1416 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 prohibition comes to an end.
The lease cum sale agreement was to continue for a period of ten years or till
all the conditions are fulfilled. The moment the conditions laid down in the
lease cum sale agreement are fulfilled i.e. the entire money is paid and the
registration is done and thereafter final absolute sale agreement is executed
then the so called lease cum sale agreement comes to an end and the condition
No.4 cannot subsequently guide the sale purchase agreement.
The
sale purchase agreement has its own terms and conditions and the condition as
reproduced above, only 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 used as a shop or a building or
warehouse or used for manufactory operations by mechanical power. Therefore, in
this final agreement which has come to be executed and which has been
registered the condition is that the building has to be used for human
habitation and there is no prohibition contained therein that it cannot raise
multi-storeyed building. In this connection, much emphasis was laid on the
decision in Pee Kay Constructions case. With respect we do not see any
condition under the provisions of the Act and the Rules which prohibits raising
of multi-storeyed building after final sale agreement has been executed. This
condition was to remain in force so long as the absolute agreement has not been
executed. The condition to construct one dwelling house was only so long as the
other conditions laid down in the lease agreement were not complied and final
sale agreement has not been executed. Therefore condition 17(4) lays down that
within 10 years the lessee-purchaser has to complete all the formalities or
earlier than 10 years , then in that case, the final agreement for absolute
purchase could be executed. Once the final agreement is executed then the
lessee- purchaser becomes absolute owner of the schedule property and he has to
abide by the conditions of the final agreement for sale and other provisions
bearing on the subject. The final agreement only contains the condition that
the lessee purchaser should use the schedule property for human dwelling
purpose and it will not be used in apartment of that building for purpose of
shop or for warehouse or for manufacturing process, therefore, the view taken
in Pee Kay Constructions case cannot be said to be a good law.
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 permitted 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 provisions of the Karnataka Town and Country Planning Act, 1961. But we have not been able
to find any provisions of the Karnataka Municipal Corporation Act or Karnataka Town and Country Planning Act, 1961 where any ceiling has been
applied on the construction of the multi-storeyed building. Therefore, we do
not find that the Municipal Corporation has committed any illegality in
granting permission to the appellant for raising construction up to third
floor.
In
view of the discussions made above, we are of opinion that permission granted
by the Bangalore Municipal Corporation to the appellant for raising the construction
up to third floor is not in violation of any of the provisions of the Act and
the Rules.
Next
question is whether such Public Interest Litigation should at all be
entertained & laches thereon. This sacrosanct jurisdiction of Public
Interest Litigation should be invoked very sparingly and in favour of vigilant
litigant and not for the persons who invoke this jurisdiction for the sake of
publicity or for the purpose of serving their private ends.
Public
Interest Litigation is no doubt a very useful handle for redressing the
grievances of the people but unfortunately lately it has been abused by some
interested persons and it has brought very bad name. Courts should be very very
slow in entertaining petitions involving public interest in a very rare cases
where public at large stand to suffer. This jurisdiction is meant for the
purpose of coming to the rescue of the down trodden and not for the purpose of
serving private ends. It has now become common for unscrupulous people to serve
their private ends and jeopardize the rights of innocent people so as to wreak
vengeance for their personal ends. This has become very handy to the developers
and in matters of public contracts. In order to serve their professional
rivalry they utilize the service of the innocent people or organization in
filing public interest litigation. The Courts are sometimes persuaded to issue
certain directions without understanding implication and giving a handle in the
hands of the authorities to misuse it. Therefore, the courts should not
exercise this jurisdiction lightly but should exercise in a very rare and few
cases involving public interest of large number of people who cannot afford
litigation and are made to suffer at the hands of the authorities. 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 &
Ors. reported in (2002) 2 SCC 333, 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 ".
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 means nothing more than what words
themselves said viz. "litigation in the interest of the public".
78.While
PIL initially was invoked mostly in cases connected with the relief to the
people and the weaker sections of the society and in areas where there was
violation of human rights under Article 21, but with the passage of time,
petitions have been entertained in other spheres, Prof. S.B. Sathe has summarized
the extent of the jurisdiction which has now been exercised in the following
words::
"PIL
may, therefore, be described as satisfying one or more of the following
parameters. These are not exclusive but merely descriptive;
-
Where the concerns underlying a petition are not individualist but are shared
widely by a large number of people (bonded labour, undertrial prisoners, prison
inmates.) - Where the affected persons belong to the disadvantaged sections of
society (women, children, bonded labour, unorganized labour, etc.) - Where
judicial law making is necessary to avoid exploitation (inter-country adoption,
the education of the children, bonded labour, unorganized labour, etc.) - Where
judicial law making is necessary to avoid exploitation (inter-country adoption,
the education of the children of the prostitutes).
-
Where judicial intervention is necessary for the protection of the sanctity of
democratic institutions (independence of the judiciary, existence of grievances
redressal forums.) - Where administrative decisions related to development are
harmful to the environment and jeopardize people's right to natural resources
such as air or water."
79.
There is, in recent years, a feeling which is not without any foundation that
public interest litigation is now tending to become publicity interest
litigation or private interest litigation and has a tendency to be
counterproductive.
80.
PIL is not a pill or a panacea for all wrongs. It was essentially meant to
protect basic human rights of the weak and the disadvantaged and was a
procedure which was innovated where a public spirited person files a petition
in effect on behalf of such persons who on account of poverty, helplessness or
economic and social disabilities could not approach the Court for relief. There
has been in recent times, increasingly instances of abuse of PIL.
Therefore,
there is a need ;to reemphasize the parameters within which PIL can be resorted
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." In this connection reference may be made to a
recent decision State of Maharashtra & Ors. (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 or founded on personal
vendetta." We fully share the views expressed in the aforesaid decision of
this Court and reiterate that it should go a warning to the Courts that this
extra-ordinary power should be used sparingly and absolutely in necessary
matter involving down trodden people.
In
this connection learned counsel has rightly pointed out that delay is very
material. He has invited our attention to a number of decisions of this Court
where this Court has declined to interfere on account of delay.
In the
case of State of Madhya Pradesh & Anr. v. Bhailal Bhai & Ors. reported
in AIR 1964 SC 1006, it was observed as follows:
"The
provisions of the Limitation Act do not as such apply to the granting of relief
under Art. 226.
However,
the maximum period fixed by the Legislature as the time within which the relief
by a suit in a civil court must be brought may ordinarily be taken to be a
reasonable standard by which delay in seeking remedy under Art.226 can be
measured.
The
Court may consider the delay unreasonable even if it is less than the period of
limitation prescribed for a civil action for the remedy but where the delay is
more than this period, it will almost always be proper for the Court to hold
that it is unreasonable." In the case of Rabindra Nath Bose & Ors. v. Union of India &
ors. reported in AIR 1970 SC 470. it was observed as follows:
"No
relief can be given to petitioners who, without any reasonable explanation,
approach Supreme Court under Art. 32 of the Constitution after inordinate
delay. The highest Court in this land has been given Original Jurisdiction to
entertain petitions under Article 32 of the Constitution. It could not have been
the intention that the Supreme Court would go into stale demands after a lapse
of years. Though Article 32 is itself a guaranteed right, it does not follow
from this that it was the intentionof the Constitution makers that Supreme
Court should discard all principles and grant relief in petitions filed after
in ordinate delay." In the case of Durga Prasad v. The Chief Controller of
Imports and Exports & Ors. reported in AIR 1970 SC 769 Their Lordships
observed as follows:
"
Where an applicant for an Import licence in 1959 received a licence only for a
fraction of the amount for which he had asked for, chooses to wait and comes to
a Court in 1964 requesting for a writ of mandamus even if his fundamental
rights are involved, the matter is still in the discretion of the High Court,
and the High Court in its discretion can refuse the issue of a writ because of
the laches of the applicant." In the case of Ramana Dayaram Shetty v. The International Airport Authority of India & Ors. reported in AIR 1979 SC 1628,
even five 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 Rs.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 duringwhich
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." In the case of Ashok Kumar Mishra & Anr.v. Collector, Raipur
& Ors. reported in AIR 1980 SC 112, it was observed that when the final
electoral roll was published in Nov. 15, 1978 it was notified that the
nominations could be filed on and after Nov.25,1978 and the poll , if
necessary, would take place on Dec.31,1978. After Nov. 25, 1978, a large number of nominations were received by the
Returning Officer. It was only on Dec.5,1978 for the first time that a letter
was addressed by petitioner to the Collector drawing his attention to the error
that had crept into the notice published under Rule 4(1) of the Rules. By that
time, the nominations had all been received. The final list of candidates for
the election with their symbols was published on Dec.20,1978. The writ petition
itself was filed on Dec.28,1978 when the poll had to take place on Dec. 31,1978.
In
that context, Their Lordships observed as follows:
"No
satisfactory explanation was given in the course of the petition by the
petitioners, as to why they delayed the filing of the petition till Dec.28,1978
even though they knew that there was an error in the notice issued under R.4(1)
of the Rules in the month of Oct.1978 more than 2 months before the date on
which it was filed." Their Lordships dismissed the petition as there was
no satisfactory explanation for the delay in preferring it.
In the
case of State of Maharashtra v. Digambar reported in (1995) 4
SCC 683, Their Lordships observed as follows:
"The
power of the High Court to be exercised under Article 226 of the Constitution,
if it is discretionary, its exercise must be judicious and reasonable, admits
of no controversy. Persons seeking relief against the State under Article 226
of the Constitution, be they citizens or otherwise, cannot get discretionary
relief obtainable thereunder unless they fully satisfy the High Court that the
facts and circumstances of the case clearly justified the latches or undue
delay on their part in approaching the Court for grant of such discretionary
relief. Therefore, where the High Court grants relief to a citizen or any other
person under Article 226 of the Constitution against any person including the
State without considering his blameworthy conduct, such as latches or undue
delay, acquiescence or waiver, the relief so granted becomes unsustainable even
if the relief was granted in respect of alleged deprivation of his legal right
by the State." 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 ? We are of the opinion that delay in this case is equally fatal,
the construction already started by the appellants 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.
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 building. We
are also satisfied that the delay is also fatal in the present case.
It was
also contended by the learned counsel for the Appellant that the appellant had
no locus standi to file this petition as the present association is neither
representative association nor a registered body.
Therefore,
the Court should not have entertained the PIL on behalf of ; such unregistered
and unrecognized body. It is true locus in such Public Interest Litigation is
very relevant factor & Court should always inquire into the locus of person
before entertaining such petition. We have already observed above that Public
Interest Litigation should be entertained in very rare cases.
Learned
counsel has also invited our attention to Section 11 of the Transfer of
Property Act to urge that once absolute right has conferred on the property
then no rider can be put to enjoyment of that property. It is not necessary to
go into this question in this case.
As a
result of our above discussion, we set aside the judgment of the Division Bench
of the High Court and allow the appeal i.e. C.A.No.1416 of 1999. The facts of
C.A.No.1415 of 1999 are identical with that of C.A.No.1416 of 1999. Therefore,
this appeal is also allowed for the reasons mentioned aforesaid. C.A.No.1417 of
1999, has been filed by persons who have already purchased the flats and they
are living in the said flats of the multi-storeyed buildings.
Therefore,
third party interest has already been created. As such this appeal is also
allowed for the reasons mentioned above. However, there will be no order as to
costs.
Back