Karnataka High Court
M/S. M.M. Developers vs The Commissioner Bbmp on 29 March, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
W P NO.24/2014 C/W W P No.1066/2014 (LB-BMP)
W P No.24/2014:
Between:
M/S.M M Developers
No.2, 1 Cross, M.R.C.R. Layout
st
Govindarajanagar, Bangalore-560079
GPA Holder - G Sharathreddy. ...Petitioner
(By Sri A Venkatswamy, Advocate)
And:
1. The Commissioner
Bruhat Bangalore Mahanagara Palike
N R Square, Bangalore-560 002.
2. The Joint Director
Town Planning (Squad)
Bruhat Bangalore Mahanagara Palike
N R Square, Bangalore-560 002. ...Respondents
(By Sri K N Puttegowda, Advocate)
This writ petition is filed under Article 226 and 227 of the
Constitution of India praying to quash the impugned
endorsement dated 2.7.2013 passed by the R2 - Joint Director,
Town Planning (Squad) BBMP, Bangalore vide Annexure-F and
direct the R1 & R2 to refund the security deposit amount of
Rs.15,60,000/- together with interest thereon at 2% per month
from 17.7.2008 (date of deposit) till the date of refund of the
amount.
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W P No.1066/2014:
Between:
M/s. VARS Builders Pvt. Ltd.,
A Company Registered under the
Companies Act, and having its
Office at Flat No.01, VARS ALL
SEASONS Apartments, Off Old
Airport Road, 4 Main
th
Konenaagrahara, Bangalore-560017
Represented by its Managing Director
Mr.V Venkata Krishna Reddy. ...Petitioner
(By Sri A. Madhusudhana Rao, Advocate)
And:
1. Bhruath Bangalore Mahanagara Palike
Hudson Circle, Bangalore-560002
Represented by its Commissioner.
2. The Joint Commissioner
Bhruath Bangalore Mahanagara Palike
Mahadevapura Zone,
Bangalore-560002.
3. The Assistant Director
Town Planning
Bhruath Bangalore Mahanagara Palike
Mahadevapura Zone,
Bangalore-560002. ..Respondents
(By Sri S J Puranik, Advocate)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the impugned condition
found at Sl.No.6 in the occupancy certificate dated 13.3.2013
issued by respondent No.3 vide Annexure-G forfeiting the
security deposit and also direct the respondents to refund the
security deposit of Rs.6,12,700/- paid by the petitioner to
respondents in respect of sanction of the building plan issued to
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the petitioner in respect of BBMP Khatha No.543, Kundalahalli
village, Krishnarajapura Hobli, Bangalore.
These writ petitions having been heard and reserved on
19.1.2022 for order and coming on for pronouncement of order,
this day, made the following:
ORDER
Since the issue involved in these writ petitions is similar, the same are taken up together and disposed of by common order.
W P No.24/2014:
The petitioner submitted an application with the respondent - BBMP for sanctioning of plan for construction of residential apartment in the property bearing No.2, 1st Cross, MRCR Layout, Govindaraj Nagar, Bengaluru. The said plan was sanctioned on 17.7.2008 and the commencement certificate was issued on 18.6.2009. At the time of applying for grant of license and sanctioned plan, the petitioner had deposited a sum of Rs.15,60,000/- with respondent - BBMP which was refundable within three years or within thirty days from the date of production of completion certificate, whichever was earlier. The condition specified for refund of security deposit was that the building should be constructed without any deviation.4
2. In pursuance of the sanctioned plan and the commencement certificate issued in favour of the petitioner, the petitioner constructed the residential apartment building on the property in question. Thereafter, the petitioner submitted an application with the respondent - BBMP to issue occupancy certificate. The respondent - BBMP upon inspection of the building, found that there was some deviation in the construction which was within the permissible limit.
3. Since the deviation in the construction of the building was within the permissible limit, the said deviation was regularized in terms of the Building Bye laws 2003 by imposing a penalty of Rs.9,14,000/-. The respondent - BBMP having regularized the deviation which was within the permissible limits, after imposing penalty issued an occupancy certificate subject to certain terms and conditions and one of the terms specified was that the security deposit is forfeited since the construction put up by the petitioner was in deviation of the sanctioned building plan.
4. The petitioner through its counsel issued a notice dated 26.4.2013 calling upon the respondent - BBMP to refund the security deposit of Rs.15,60,000/- together with interest, 5 failing which, appropriate action would be taken. In turn, the respondent - BBMP issued a communication dated 2.7.2013 stating that the petitioner is not entitled for refund of security deposit since the construction put up by the petitioner was in deviation from the sanctioned plan. Taking exception to the same, this petition is filed.
WP No.1066/2014:
5. On an application submitted by the petitioner for sanctioning of building plan for construction of residential apartment complex in land bearing Sy.No.19/2 of Kudalahalli village, Krishnarajapura Hobli, Benglauru, the respondent - BBMP issued a notice calling upon the petitioner to pay a sum of Rs.21,48,441/- which included the security deposit of Rs.6,12,700/-. In pursuance of the same, the petitioner deposited a sum of Rs.6,12,700/- and the petitioner was granted the sanctioned building plan and also the commencement certificate.
6. After completing the construction of the building, the petitioner submitted an application with the respondent - BBMP so as to issue occupancy certificate. The respondent - BBMP upon inspection of the building found that there was deviation of 6 4.80% in the net built up area when compared to the sanctioned plan. The deviation made by the petitioner which was within the permissible limits was regularized upon payment of penalty of Rs.9,46,800/-. Thereafter, the respondent - BBMP issued the occupancy certificate but forfeited the security deposit since the construction put up was in deviation from the sanctioned plan.
7. The petitioner represented the respondent - BBMP so as to refund the security deposit. The petitioner's grievance is that the forfeiture of security deposit is without authority of law. Hence, this petition.
8. Learned counsel appearing for the petitioners submits that the construction put up by the petitioners was not in deviation of the sanctioned plan since the respondent - BBMP has regularized the deviation which was within the permissible limits by sanctioning the modified plan as specified under the Clause - 6 of the Building Bye laws upon imposing penalty. Hence, the forfeiture Clause cannot be invoked stating that the buildings were constructed in deviation from the sanctioned plan. It is further submitted that the demand for depositing of security deposit as a condition precedent for sanctioning of 7 building plan is held to be without authority of law by the coordinate Bench of this Court in WP No.4061/2020.
9. Learned counsel for the respondent - BBMP submits that though the deviation which was within the permissible limits and was regularized by imposing penalty, it cannot be construed that the construction put up by the petitioners was not in deviation of the sanctioned plan. Having accepted the condition that the security deposit will be forfeited if the building is constructed in deviation from the sanctioned plan, the petitioners cannot now turn around and claim that they are entitled for refund of security deposit since the deviation which was within the permissible limits was regularized.
10. I have examined the submissions of the learned counsel for the parties.
11. The deviation in the construction of the building by the petitioners was within the permissible limits i.e. 5%. The Clause-6 of the BBMP Building Bye laws, 2003 which provides for regularization of deviation up to 5% upon payment of penalty, the deviation made by the petitioners within the permissible limits was regularized by imposing penalty. 8
12. When such being the case, the respondent - BBMP forfeited the security deposit of the petitioners stating that the constructions put up by the petitioners was in deviation from the sanctioned plan. Clause - 6 of the Bengaluru Mahanagara Palike Building Byelaws, 2003 reads thus:
"6.0 Deviations during Construction
i) Wherever any construction is in violation/deviation of the sanctioned plan, the Commissioner may, if he considers that the violations / deviations are within 5% of (1) the set back to be provided around the building, (2) plot coverage (3) floor area ratio and (4) height of the building and that the demolition under chapter XV of the Act is not feasible without affecting structural stability, he may regularise such violations/deviations after recording detailed reasons for the same.
ii) Violation/deviation as at 6.0 (i) above may be regularised only after sanctioning the modified plan recording thereon the violations/deviations and after the levy of fee prescribed by the Corporation from time to time.
iii) Regularisation of violations / deviations under this provision are not applicable to the buildings which are constructed without obtaining any sanctioned plan whatsoever and also the violations / deviations which are made inspite of the same being specifically deleted or rejected in the sanctioned plan. "9
13. A reading of Clause-6 indicates that any person who puts up construction in deviation from the sanctioned building plan and if such deviation is within 5% of the sanctioned building plan, on a modified plan submitted by such person, the Commissioner may regularize the said deviation after the levy of fee prescribed by the Corporation from time to time.
14. Normally the buildings are constructed in deviation of sanctioned plan and for the said reason, Clause-6 of the Building Bye laws 2003 is incorporated so as to regularize deviation if they are within 5% of the sanctioned building plan. The said deviation is regularized by levying compounding fees. The construction put up by the petitioners in deviation of the original sanctioned plan was regularized by sanctioning the modified building plan. The modified building plan means any modification made to the original building plan. Hence, the construction put up by the petitioners is not in deviation from the sanctioned building plans and as such, the forfeiture of security deposits is arbitrary and contrary to Clause-6 of the Building Byelaws.
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15. The coordinate Bench of this Court in WP No.4601/2020 at para-30 has held as follows:
"30. Therefore, there is no power under Act to impose the impugned levies i.e., ground rent, licence fee, building licence fee, scrutiny fee and security deposit. It is trite that fee can be imposed only if there is quid pro quo. Quid pro quo in legal parlance is that `fee' that can be imposed for a service that is rendered. The principle of quid pro quo or a fee chargeable for a service rendered as considered by the Apex Court (supra), wherein the Apex Court has held that there should be reasonable co-relation for imposition/collection of a fee, apart from the fact that it should be with authority of law."
16. The coordinate Bench having held that the Byelaws under which security deposits are collected are held to be ultra vires of the Act and are resultantly rendered unenforceable, the forfeiture of security deposits is also held to be one without authority of law.
17. In view of the preceding analysis, I am of the considered view that the deviation in construction put up by the petitioners having been regularized by sanctioning the modified plan, the forfeiture of security deposits on the premise that the construction put up by the petitioners is in violation of the sanctioned building plants is arbitrary and contrary to Clause-6 of the Building Bye Law, 2003 and in view of the decision of the 11 coordinate Bench of this Court in WP No.4601/2020, the forfeiture of security deposits is held to be one without authority of law. Accordingly, I pass the following:
ORDER
i) Writ petitions stand allowed;
ii) The impugned endorsement 2.7.2013 issued by the 2 nd respondent - Joint Director, Town Planning (Squad) BBMP, Bangalore in WP No.24/2014 at Annexure-F and the impugned condition at Sl.No.6 in the Occupancy Certificate/communication dated 13.3.2013 issued by the 3 rd respondent - BBMP in WP No.1066/2014 at Annexure-G and in so far as it relates to forfeiting the security deposit are hereby quashed.
iii) The respondents - BBMP are directed to refund the security deposits of Rs.15,60,000/- to the petitioner in WP No.24/2014 and Rs.6,12,700/- to the petitioner in WP No.1066/2014 together with interest at the rate of 6% p.a. Sd/-
JUDGE BKM