Karnataka High Court
S.K. Sharma vs Corporaion Of The City Of Bangalore on 18 July, 1986
Equivalent citations: ILR1986KAR2536
ORDER Rama Jois, J.
1. The Petitioner presented this Writ Petition questioning the legality of the license granted by the Corporation of the City of Bangalore for construction of a multi-storeyed commercial building in favour of respondent-3, on the ground that it was violative of the provisions of the Municipal Corporation Act, 1976 ('the Act' for short).
2. Facts of the case are these : (1) The property bearing Municipal No. 812/1 on the Old Taluk Cutchery Road, popularly known as O. T. C. Road, Chickpet, Bangalore City, which is the hub of commercial activity in the City of Bangalore, belongs to the Government, The lease of the land, on which a Government Primary School was being run, was granted in favour of respondent-3 by the Government by its order dated 20-12-1979. The validity of the grant of the lease itself has been the subject matter of large number of proceedings before this Court.
(ii) The entire history of the case relating to the grant have been set out in greater detail in our order in Writ Petition No. 33040 of 1982, Dr. H. L. Thimmegowda v. Deputy Commissioner -- DD. 8-5-1986. For the reasons set out in the said order, we have declined to interfere with the grant of lease, but we have directed that the monthly rent payable by respondent-3 shall be Rs. 25.000/- per month instead of Rs. 16,350/- on the ground that the order of the Government had resulted in loss to the exchequer. We did not interfere with the grant and direct the Government to dispose of the land afresh by open competition in view of the situation created by the parties who challenged the grant, which rendered the making of such an order impracticable.
(iii) Even as those proceedings referred to in our order made in Writ Petition No. 33040 of 1982, Dr. H. L. Thimmegowda v. Deputy Commissioner -- DD. 8-5-1986 were pending, respondent-3 applied to the Corporation for the grant of licence for construction of a multi-storeyed commercial complex on the site in question. The Corporation appears to have granted the license on 22-2-1980. But in view of the interim orders granted by this Court in several proceedings, the construction of the building was not taken up immediately after the issue of the licence. Apprehending that respondent-3 might undertake construction of the building on the basis of the license which according to the petitioner was in contravention of the provisions of the Act, he filed the Writ Petition on 7-8-1981. In the Petition the petitioner prayed for an interim order inter alia directing respondent-3 not to proceed with the construction of the building. Rule Nisi was issued on the Writ Petition on 7-8-1981 and an interim order was granted as prayed for. On 22-9-1981 the learned Counsel appearing for the parties requested that the matter may be heard on merits. The case was being adjourned from time to time. Arguments were heard in part on 9-8-1982 by a learned Single Judge. However, on 19-8-1982, the case was released from part heard category. Thereafter, the case was not posted for hearing.
(iv) At this stage, respondent No. 3 filed I.A. V for vacating the stay order. That application was posted before the Court on 4-10-1982 and, according to the order sheet, it was adjourned to next week. It is not recorded as at whose instance the matter was adjourned. On 11-10-1982, when the matter again came up before the Court, there was a direction to post the case along with connected cases. The next date on which the case was posted was only on 17-5-1983 for order on I.A. No. VI.
(v) It appears that respondent-3 commenced construction of the building some time in July 1982 though the interim order granted by this Court had not been vacated. At that Stage, an application I. A. No. VI was filed by the petitioner praying for the issue of a direction to the Circle Inspector of Police, Chickpet, Bangalore, to prevent respondent-3 from constructing the building in disobedience to the interim order. That application was rejected by a learned Single Judge on 17-5-1983 on the ground that it was not expedient |to give such a direction to the Police Inspector.
(vi) In the meanwhile, it appears, the Corporation also realised that the licence granted to respondent-3 on 22-10-1980 was in violation of the mandatory provisions of the Zoning Regulations promulgated under the provisions of the Karnataka. Country and Town Planning Act, and further that as the period of licence was only for two years, the same had expired and as respondent-3 had not secured renewal of the licence, the undertaking of construction by respondent-3 was unlawful. Accordingly a notice was issued to respondent-3 informing him that the construction carried on by respondent-3 was unlawful. The third respondent replied to the Corporation starting that he bad applied for renewal of the licence and as the said renewal application was not disposed of within the statutory period, the renewal must be deemed to have been granted. In his reply, respondent-3 also referred to he interim orders issued by this Court in various proceedings restraining him from constructing the building and said that it was because of the interim orders, he had not undertaken the construction within the period of licence. The Administrator accepted the plea of the respondent that though the provisions regarding deemed grant of licence were not expressly made applicable to the applications for renewal, on the facts and circumstances of this case, those provisions must be held be applicable and the renewal must be deemed to have been granted. He, however, made it clear that if the licence granted was found to be in contravention of the provisions of the Law, action may be taken for cancelling the licence.
This order of the Administrator was made on 23-12-1982 (Annexure-'C'). Operative part of the order reads :
" 12. Under the above circumstances and as the party claims that he has deemed licence under Section 302(2) of the KMC Act, we cannot very well rebut his claim as we have done nothing so far to disabuse him of his undertaking except the last two notices issued after he started the construction.
13. In these circumstances, I have to hold that the PO. and CO. Notices issued by the commissioner asking appellant to desist from the construction and to demolish the constructed portion on the ground that he is building without licence, are not properly based and as such I held the notices as invalid.
14. However, this does not prevent the Commissioner from examining as to whether the construction being done is strictly as per the provisions of the Act, Rules and Bye-laws as provided in Section 302(2) of the Act and if they are found to be at variance to take action under Section 321(1) and (2). "
Thereafter, as several illegalities regarding the construction of the building were noticed and that plan sanctioned originally was in violation of the Zoning Regulations, a notice was issued by the Commissioner to respondent-3 pointing out to the illegalities in the undertaking of the construction of the building by respondent-3 on the site in question. Respondent filed his reply to the said notice.
(vii) At this stage, the petitioner filed LA. VII for raising additional pleas in support of the prayer made in the Writ Petition producing a copy of the notice issued by the Corporation, the reply of respondent-3, the order of the Administrator and the subsequent notice issued by the Commissioner and the reply thereto furnished by respondent-3, The main points made out in the notice issued to respondent-3 by the Commissioner after the order of the Administrator, which were also the additional grounds sought to be urged in support of the Writ Petition were :
(1) Though the area of the site granted by way of lease by the Government to respondent-3 was 12,000 Sq. Ft. in his application to the Corporation for licence and the plan, the third respondent had shown the area as 15,765 Sq. Ft. and the area sought to be covered, having regard to the actual area leased to respondent-3 violated the floor area prescribed in the Zoning Regulations.
(2) The securing of the commencement certificate from the Town Planning Authorities, namely, the BDA under Section 14 of the Country and Town Planning Act was mandatory and as the third respondent had commenced the work without taking such certificate, the construction was illegal.
3. Having regard to the width of the road, namely, OTC Road, maximum height of the building according to the Zoning Regulations could only be 55 Ft. and the maximum number of floors permitted to be constructed were five floors but nevertheless respondent-3 was proceeding to construct a 8 storeyed building of 71 Ft. height in plain contravention of the Zoning Regulations.
(viii) The petitioner also filed I. A. No. VIII in view of the order on I. A. No. VII declining to enforce the earlier order of injunction dated 7-8-1981. Relevant portion of this application reads :
"2. That on 7-8-1981, this Hon'ble Court was pleased to pass an interim order directing the 3rd Respondent not to proceed with the construction of the building, the licence for which is impugned in the Writ Petition.
3. Though the matter was part-heard on various dates and the Court was not moved to vacate the said order as the 3rd Respondent had wanted the Writ Petition itself to be disposed of in the proceedings of the Corporation and the Annexure, the 3rd Respondent has asserted that he has commenced construction on 30-7-1982. At that time, the injunction granted by this Hon'ble Court was in full force. It is only on 16-6-1982 that is nearly after 14 months that he man's an application for vacating the interim injunction which, by reason of the fact that the 3rd Respondent did not press for its being disposed of as he preferred to have the Writ Petition itself heard. has not been disposed of by this Hon'ble Court. As such in law the interim injunction is still in force. However, the 3rd Respondent is wrongly relying on Article 226 Sub-clause (3) to contend that interim injunction has been automatically vacated. The petitioner submits that this is not correct and that the injunction subsists.
4. the petitioner submits that the circumstances for grant of an injunction are now stronger in view of the subsequent events and in view of the fact that the Corporation itself has noticed very grave irregularities and the Corporation itself has issued proceedings for treating the licence as void abinitio. It is therefore, necessary in the interest of justice that the 3rd Respondent be restrained by a fresh ad interim injunction from proceeding further with the construction of the building No. 812/1, O. T. C. Road. Chickpet, Bangalore, and that the Circle Inspector of Police, Chickpet, Bangalore, be directed to act in aid of the injunction that may be granted by this Hon'ble Court to ensure compliance, in view of the past contumacious conduct of the 3rd Respondent."
(Underlining by us) On 4-3-1983, after hearing the Counsel for the parties, this Court directed that I.A. No. VII will be considered along with the main Petition. Thereafter, by an order dated 15-7-1983, the Writ Petition was referred to a Division Bench under Section 9 of the Karnataka High Court Act. As the parties gave an undertaking before the Court to argue the matter on 16-8-1983, the same was recorded and in view of this no order was passed on I.A. No. VIII. However, it so happened, the matter was not heard, but the construction continued. In view of this, the petitioner also filed I.A. No. IX on 19-12-1983 praying for urging additional grounds and amendment of the petition praying for the issue of a direction for demolition of the building constructed in contravention of law during the pendency of the petition. That application came up for order before the Division Bench on 2-2-1984. The Division Bench ordered that I.A. No. IX be considered at the time of hearing. Respondent-3 has filed his reply and along with it, he has produced a copy of the order of the Commissioner dropping the proceedings and permitting Respondent-3 to proceed with the construction in accordance with the sanctioned plan.
3. We have heard the main Writ Petition along with the application for amendment. Shri H. B. Datar, Learned Counsel for the petitioner addressed arguments both regarding the main petition and with reference to the amendment sought for. Shri K.R.D. Karanth, Learned Counsel for Respondent-3 has addressed arguments on the main petition as also to the maintainability of the application for amendment as also on the merits of the amendment, if the amendments sought for were to be allowed by this Court.
4. On behalf of the Corporation, no statement of objection has been filed to the petition. Sri R. C. Castelin, Learned Counsel appearing for the Corporation submitted that the construction in question was in contravention of the Zoning Regulations as indicated in the notice issued by the then Commissioner Sri Patnaik dated 1/10-3-1983 and that in the absence of any reason given by the subsequent Commissioner Sri Rangappa for his order dated 30-6-1983 in which he dropped the proceedings and permitted respondent No. 3 to proceed with the construction, he was unable to support the order of the Commissioner. He also submitted that no note had been put up on the reply furnished by respondent No. 3 by the office as usual but the then Commissioner Sri K. Rangappa had passed the order dropping action pursuant to the show cause notice.
5. In order to verify as to whether the order of the Commissioner dated 30-6-1983 dropping action pursuant to the notice dated 10-3-1983 and allowing respondent-3 to proceed with the construction was or was not in conformity with the Zoning Regulations, we called upon the Commissioner to have the width of the road measured and to file the said information before this Court. Accordingly, the Commissioner has got the road measured through the Assistant Engineer and Executive Engineer of the Corporation and has filed the said information before this Court. According to the measurement as indicated in the said report, the width of Chickpet road in front of the building constructed by respondent-3 is just 30 feet. After the above information was filed on behalf of the Corporation, the third respondent has filed an additional statement. Along with it, he has also produced the measurement figures regarding the width of the road as measured by an Architect at the request of respondent-3.
6. As regards the ascertaining of the width of the road for the purpose of determining the height of number of floors of a building, according to the old building regulations of the Corporation which were then in force, it is common ground that the width of the road has to be measured at the two extreme points and an average has to be taken. This is the method adopted by the Engineers of the Corporation who measured the road width as directed by this Court. There is also no dispute that according to the new Building Regulations, which came into force on 27-4-1984, the width of the road has to be measured at the centre of the building at right angle. According to respondent No. 3, if the width of the road is taken at two extreme points and its average the width is. little more than 30 feet and if it is measured according to the new regulations, the width is 36 feet.
7. There is, however, no dispute that whatever method is adopted, the width of the road of Chickpet is less than 40 feet.
8. Learned Counsel for respondent-3, however, raised a serious objection for the allowing of the amendments, Learned Counsel submitted that allowing of the amendment would entirely change the character of the Writ Petition and therefore cannot be permitted. As against this, Learned Counsel for the petitioner submitted that what was challenged originally in the Writ Petition was the license granted to respondent-3 on the ground that it was violative of the provisions of the Municipal Corporation Act and in I. A. Nos. VII and VIII the petitioner has produced additional material in support of the above prayer and that too only on the basis of the indisputable documents, namely, the order of the Administrator, the notices issued by the Commissioner thereafter, and the reply of respondent-3 himself, and, therefore, there was no substance in the contention urged for respondent-3 that the amendment changes the character of the Writ Petition.
9. We see no force in the objection raised by Respondent-3. The substance of the prayer made in the Writ Petition is for cancellation of the licence granted to Respondent-3 as was made clear as early as on 15-7-1983 in the order of the Learned Single Judge while referring the petition to Division Bench, In the Writ Petition, the petitioner had stated that the licence granted was in contravention of the provisions of the Act. He had also pleaded that the Corporation was under a duty to ensure that public did not suffer by unlawful constructions. The notices issued by the Corporation, in particular, the last notice issued by the Commissioner alleged that the construction of the building on the site in question was in plain contravention of the Zonal Regulations framed under the Country and Town Planning Act. Section 505 of the Corporation Act reads :
"Exercise of powers by a Corporation to be in conformity with the provisions of the Karnataka Town and Country Planning Act, 1961. Notwithstanding anything contained in this Act, a Corporation or any officer or other authority required by or under this Act to exercise any power, or perform any function or discharge any duty.--
(i with regard to any matter relating to land use or development as defined in the Explanation to Section - 14 of the Karnataka Town and Country Planning Act, 1961, shall exercise such power, or perform such function or discharge such duty with regard to such land use or development plan or where there is no development plan, with the concurrence of the Planning Authority ;
(ii) shall not grant any permission, approval or sanction required by or under this Act to any person if it relates to any matter in respect of which compliance with the provisions of the Karnataka Town and Country Planning Act, 1961 is necessary unless evidence in support of having complied with the provisions of the said Act is produced by such person to the satisfaction of the Corporation or the officer or other authority, as the case may be."
Thus, it may be seen, no authority of the Corporation has the power to grant any licence or permission in contravention of the provisions of the Country and Town Planning Act and the Zoning Regulations framed thereunder. Therefore, the violation of the Zoning Regulations is ipso facto also violation of the provisions of the Corporation Act.
It is also relevant to state that during the pendency of this Writ Petition, the question as to whether the Zoning Regulations had been properly promulgated or not in respect of which some doubt had been created, was cleared by this. Court in the case of M. D. Narayana v. State & anr., 1982 (2) KLJ Sh. N. 35 (D.D. 11-6-1982) In the said Judgment, a Division Bench of this Court held that the Zoning Regulations had been properly promulgated and in view of Section 505, of the Corporation Act, obedience to Zoning Regulations was mandatory and the Corporation or any of its authorities had no authority to grant any licence or permission in contravention of the Zoning Regulations. Relevant part of the Judgment reads :
" XXX XXX XXX XXX
23. For the aforesaid reasons, we are of the view that the ODP including the Zonal Regulations prepared under the provisions of the Act are valid and enforceable, and in view of Section 505 of the Corporation Act, the Corporation had no authority to grant a licence in contravention of the Zonal Regulations appended to the ODP.
XXX XXX XXX XXX A long list of such cases have also been filed by the Learned Counsel for the Builders. While we are deeply distressed by the facts disclosed, we are least impressed by the submission. If the facts disclosed by the builders are true as indeed the material placed before us prima facie indicate they betray a disturbing state of affairs in the matter of grant of building licences by the Corporation, is that the Corporation, which is entrusted with the duty of protecting the interests of the citizens of the City, has committed a serious breach of duty by its failure to conform to the ODP, the obedience to which by it is obligatory in view of Section 505 of the Corporation Act and calls for an inquiry by its Administrator and the Government, and stern follow up action to prevent such blatant violation of the ODP by the Licensing Authority, which brings the provisions of the Act to public ridicule and undermines the respect for law. It would be another travesty of law, if we were to uphold the validity of the impugned licences on the ground that several such illegal licences have been or deemed to have been granted.
XXX XXX XXX XXX The fact that the Corporation had granted the licence would constitute no excuse as to the application of Respondents 6 and 7 for grant of licence for an eight floor residential building as well as the licence granted were in violation of the ODP and Section 14 of the Act and the law was as much binding on the Corporation as on Respondents 6 and 7."
The Zoning Regulations were promulgated on 22-5-1972. On that view of the matter, in Narayana's Case, 1982 (2) KLJ Sh. N. 35 the Division Bench held that the licence granted for construction of a residential building beyond 5 floors was invalid and the Corporation was directed to amend the licence and also to take action in accordance with law in respect of construction beyond five floors by the respondent therein. The above Judgment received wide publicity and, therefore, every one proposing to construct multi-storeyed buildings became fully aware of the Zoning Regulations.
10. Obviously, after the pronouncement of the Judgment, the Commissioner issued the notice as he was in duty bound to do so, in view of the law declared by this Court in the said case in view of the provisions of Section 505 of the Act. It is also significant to point out that at the time when the notice was issued, Respondent-3 had not completed the construction as is evident from the reply to the show cause notice. In the circumstances, there is no substance in the objection raised by respondent to the amendments to the effect that the petitioner by these applications is seeking to make out entirely a different case. He is only urging additional grounds with an appropriate prayer based upon undisputed documents which have come into existence during the pendency of this petition as also the decision of this Court rendered during the pendency of the petition.
Further, Respondent-3 started construction of the building in July 1982, even when an interim injunction was operating against him as alleged by the petitioner in l.A-VIII, in which he asked for a fresh injunction, contents of which are extracted earlier. No orders were passed on the interlocutory application as the parties agreed to argue the matter on 16-8-1983. But it so happened that the construction has taken place but not the hearing of the case. Respondent-3 constructed the building taking the view that the interim injunction stood automatically vacated as his application for vacating the injunction was not disposed of within two weeks, in view of Clause (3) of Article 226 of the Constitution. It is on account of such construction made by Respondent-3 during the pendency of the Petition, which is alleged to be in violation of the Zoning Regulations, the notices were issued by the Commissioner and the placing of additional information/material about the building became necessary. Therefore, there is no substance in the objection of Respondent-3 to the amendment application. We allow the application and treat the pleadings therein and the documents produced along with the application, as part of the Writ Petition.
11. The next preliminary objection raised by Respondent-3 was as to the locus standi of the petitioner to present the Petition. Elaborating the point Learned Counsel submitted as follows : The building constructed by respondent-3 is in Chickpet. The petitioner was a resident of Visveswarapuram, an extension situated at a distance. In the case of M.D. Narayana, this Court held that the petitioners therein had the locus standi to question the construction of multi-storeyed building in contravention of the Zoning Regulations as they were the residents of the locality. Applying that test, it should be held that as the petitioner was not a resident of the locality, he had no locus standi to question the legality of the licence granted to respondent-3 or the construction undertaken by him. Learned Counsel also submitted that the Petition was not bona fide as the petitioner had been set up by one D.P. Sharma who is entertaining grouse against Respondent-3 on account of personal animosity and ill-will.
12. As far as the first point is concerned, in our opinion, the objection regarding locus standi to challenge the construction of the building of the type in question by a citizen and resident of the City is beyond doubt. In the case of Ramdas Shenoy v. Municipal Council, Udupi, the Supreme Court held that granting licence to construct a cinema building in contravention of the Town Planning Scheme prepared under an Act of Legislature could be challenged by a resident of the town. Following the said decision, it was held by a Division Bench of this Court in M.D. Narayana's Case, 1982 (2) KLJ Sh. N. 35 that a resident of the locality in the City had the locus standi to challenge the construction of a building in contravention of the Zoning Regulations. The said decision, in bur opinion, is an authority in favour of holding that the petitioner has the locus standi and not that he has not. It is true that in the said case, the plea of the petitioners therein was that they being residents "of the locality, their interests would be affected by the construction of a multi-storeyed residential building in the locality and, therefore, they had the locus standi to challenge, and, their locus standi was upheld, In the present case, the construction of a building undertaken by respondent-3 is a commercial building. It is situated in Chickpet, which is known to be the most busiest business centre in the City and also a densely populated residential locality. A primary school has to be and is located in the second floor of the building constructed by Respondent-3. As regards the locality and other relevant factors, the petitioner has stated thus :
"Apart from other things, the petitioner begs to submit that the area where the schedule property is situated is a residential-cum-business area and is greatly crowded and congested and the roads are narrow and the vehicular traffic is difficult and there is very little moving space in the area. The area is over-crowded by the people who visit the area for transacting their business- Further, it is learnt that 15 rooms are proposed to be completed in the 2nd and 3rd floors, and handed over for the purpose of running the middle school, which was being run in the old demolished building on the said premises. The construction of multi-storeyed complex with narrow lanes and road would pose a traffic congestion and traffic hazards not only in the vicinity of the schedule property but in the whole locality.
However, the petitioner learns that in case of fire and other hazards the building is very unsafe. The fire hazards in respect of the building are tremendous and in case of fire in the building breaking out, it will be fatal not only to the occupants in the building, but also to the persons staying in and carrying on business in the vicinity of the said building and also the persons visiting the area Further, the lives of the children studying in the middle school, proposed to be housed in the second and third floors, will be fully exposed to the danger in case of fire, breaking out accidentally. It is under these circumstances, that the action should be taken against respondent-3 by respondent-5. The petitioner submits that it would be appropriate for him to mention the fate of the building by name Gopal Towers in Delhi which caught fire and which acted as a death trap to all the occupants, and would have resulted in greater loss of lives, but for the miraculous escape facilities that were provided for and the stringent action taken by the Delhi Development Authorities and the Delhi Corporation, regarding safty measures in respect of the multi-storeyed buildings, in case of fire hazards."
Every resident of the City has sufficient interest to ensure, that the buildings constructed in such a locality are safe and do not result in over-crowding, traffic hazard etc. Therefore; in the nature of things, everyone of the residents of the City of Bangalore is as much interested as the residents of the locality to ensure that the construction of building in the said locality is not undertaken in violation of the Zoning Regulations, as a result of which the already over-crowded locality becomes more over-crowded and would result in greater number of persons entering the locality resulting in increase in traffic hazard and the like and greater calamity in case of any fire or other accidents. Therefore, every resident of the City has sufficient interest to question the unlawful construction of this magnitude in the locality. We find no merit in the objection to the locus standi of the petitioner.
13. As regards the submission that the Writ Petition is not bona fide, but has been presented at the instance of another person by name D. P. Sharma, who is said to be inimically disposed towards respondent-3, except a bald assertion made by respondent-3, there is no material to hold thai the petition is not bona fide. The only material on which Learned Counsel for respondent-3 relied to say that the petition was not bona fide was a suit (Original Suit No. 703 of 1983), which is said to have been filed by some other person under Order I Rule 8 of the Code of Civil Procedure pointing out that the grounds urged in the plaint were similar to those in the notices issued by the Corporation. He also submitted that not only the Writ Petition but also the notices issued by the then Commissioner were also at the instigation of the said D.P. Sharma.
As pointed out earlier, taking of action against all constructions of multi-storeyed buildings in contravention of the Zoning Regulations was inevitable by the then Commissioner in view of the criticism of the administration of the Corporation by this Court in M.D. Narayana's Case, 1982 (2) KLJ Sh. N. 35 against granting of licences in violation of the Zoning Regulations, as can be seen from the extract of the Judgment incorporated earlier. He was in duty bound to do so. In fact, in spite of the said order, if the Commissioner had failed to take action against alleged unauthorised construction by respondents, his inaction would have been lacking in bona fide. As regards the finding of the similarities of the grounds as to the illegalities of the construction of the building by respondent-3 in the notice and those raised in the plaint, as they are legal grounds, based on the judgment in Narayana's Case, 1982 (2) KLJ Sh. N. 35 there could not be any difference between the grounds raised in any proceedings raised against respondent-3 or in the notices issued by the Commissioner. Further, the notice was dated 1-3-1983, though served on respondent-3 on 10-3-1983, and the suit was filed a week subsequent to the date on which the notice was signed by the Commissioner.
14. Apart from this, we may point out that the entire file regarding the construction of the building in question has been placed before us and in the file we find that there are a few responsible citizens of Bangalore who have made representation to the Corporation and the Government that the construction undertaken by the third respondent was illegal and high-handed. They are as follows :
(1) Vatal Nagaraj, Leader of Kannada Chaluvali, had issued a press note making serious allegations about the the construction and the Chief Minister addressed letter dated 18-11-1983 to the Commissioner Shri Prakash to look into the matter at once.
(2) A letter dated 24-10-1983 was addressed by D. H. Krishna, Corporator of 25th Division, in which the building was being constructed, complaining that 4th floor was being constructed illegally.
(3) Another Corporator, K. C. Vijaya Kumar had addressed letter dated 18-10-1983 on the same point.
(4) One V. Shankar has complained to the Government about the unlawful construction by Respondent-3 and the Government called for the file by letter dated 3-5-1985. The relevant portion of the letter reads :
" * * * Sub : Petition from Shri V. Shankar --serious irregularities and unlawful activities of Messrs Rajatha Enterprises.
With reference to your letter No. LP. 5048/79-80 dated 21-3-1985 on the subject cited above, l am directed to request you kindly to send the connected file to Government immediately, as the letter dated 30-6-1983 does not disclose the reasons for dropping the further course of action.
* * *"
Therefore, we find no merit either in the objection regarding the locus standi or about the bona fides of the petitioner in presenting the petition.
15. Learned Counsel for Respondent-3 raised another preliminary objection. That was, that a suit in a representative capacity has been filed under Order I Rule 8 of the Code of Civil Procedure against Respondent-3 for removing unauthorised construction and, therefore, this Court should riot entertain the Writ Petition as the very questions required to be decided in the Writ Petition and the relief to be granted constitute the subject matter of the suit. In support of this submission, Learned Counsel for Respondent-3 referred to the prayer made in the suit (Original suit No. 703 of 1983 on the file of the City Civil Court), seeking an injunction against Respondent-3 not to construct the building in violation of the Zoning Regulations and relied on a Division Bench Judgment of this Court in A. Lakshmisagar v. State of Karnataka,3 by which the Writ Petition regarding the challenge to the grant made in favour of Respondent-3 was dismissed on the ground that a suit for similar relief was pending before the City Civil Court. It may be seen from the order made in that petition that the three grounds on the basis of which the Writ Petition was dismissed were :
(1) One of the Writ-Petitioner himself was the plaintiff in the suit.
(2) The relief sought for in the suit was the same as in the Writ Petition.
(3) The suit was instituted earlier to the Writ Petition.
16. In the present case, all the three grounds are not available. First, it is not the petitioner who has filed the suit before the City Civil Court. Secondly, nature of the relief sought for is entirely different. What is challenged in the Writ Petition is not only the licence granted by the Corporation in violation of the Zoning Regulations but there is also a complaint of breach of public duty by the then Commissioner in dropping the proceedings and allowing respondent-3 to construct the buliding. The relief sought for in the suit is not the issue of a direction to the Corporation to ensure obedience to the law, by issuing a Writ of Mandamus to discharge its statutory obligations, which can be granted only by this Court, Thirdly the suit is instituted long after the filing of this Writ Petition. No person can render a Writ Petition, filed before this Court, not maintainable by instituting a suit before a Civil Court subsequently. If such objection were to be upheld, every public interest petition could be got dismissed by the respondent in the Writ Petition by getting a suit for similar relief instituted by some one subsequently. Hence, we find no substance in this objection also.
17. Now, coming to the merits of the case, it is necessary to refer to the provisions of the Country and Town Planning Act. Section 13(3) of (he Town Planning Act, provides for the publication of the Outline Development Plan, including Zoning Regulations. Section 14 provides that every land in the area covered by O.D P. must conform to the Zoning Regulations. These Regulations are to be in force until a Comprehensive Development Plan is prepared and published. They have also been published during the pendency of this petition. The conditions prescribed thereunder are more rigorous. However, as far as this case is concerned, the Zoning Regulation has to be applied, as at the time when the petitioner is said to have secured deemed licence for construction of the building the Zoning Regulations were in force. Whether the non-taking of a commencement certificate under Section 14 of the Planning Act is fatal or not to the construction, there can be no doubt that in view of M. D. Narayana's case, 1982 (2) KLJ Sh. N. 35 any construction of a building in contravention of the provisions of the Zoning Regulations is unlawful and cannot be allowed to stand.
18. It is for this reason, the show cause notice was issued by the then Commissioner Sri Patnaik to respondent-3. The relevant portion of it reads :
"(3) that considering the road width in front as per Zoning Regulations, F.A.R. and the height of the building should have been restricted to 1.5 and five floors (55' height) only, whereas the plan LP. 5048/79.80 now sanctioned is with plot coverage 86.25 percent, FAR 3.86 and basement floor -- ground floor -- six floors (71 feet height) is in violation of the Zoning Regulation."
The reply furnished by respondent No. 3 in so far it relates to the above objection reads :
"5. On the question of Floor Area Ratio (FAR), I state that so far there has been no violation of the F.A.R. and hence, the question of future violation cannot be considered at all in anticipation. Only if and when violation takes place, the authorities can act. It is also not admitted that what is sanctioned under L.P. 5048/79-80 is not in accordance with Zoning Regulations. If, according to the Commissioner, the Licence and Plan have lapsed, what has lapsed cannot be revoked because it is no longer in force."
It is significant to note that what respondent-3 staled was that on the date when the show cause notice was issued as also the date on which he was replying, he had not made any construction in violation of the Zoning Regulations. The objection raised by the Corporation was that even on the basis that the renewal of the license applied for by respondent-3 was deemed to have been granted, he had no authority to construct any building in contravention of the Zoning Regulations. Learned Counsel for respondent-3 could not and did not dispute that the provisions contained in Section 302(2) of the Corporation Act to the effect that license for construction of a building applied for, if not rejected within the specified time, should be deemed to have been granted, did not have the effect of permitting construction in contravention of the Planning Actor the Zoning Regulations framed thereunder or in violation of the building bye-laws, for, the very sub-section expressly provides that the applicant may proceed to execute the work without contravening the provisions of the Act or Rules or bye-laws made under the Act. Therefore, in view of Section 505 of the Act, even in a case where there is deemed license, a party can make construction only in conformity with the Zoning Regulations promulgated under the Town Planning Act. The citizens are as much bound by law as the authorities are. Therefore, when the attention of the third respondent was brought to the provisions of the Zoning Regulations, he should have given a reply stating the reasons as to how the construction was in accordance with law. Instead of doing so, he made a bold denial that the license granted by the Commissioner was not in violation of the Zoning Regulations and further said that the construction made by him till then was not violative of the Zoning Regulations which implied that subsequent construction might come into conflict with the Zoning Regulations.
Strangely, the Commissioner K. Rangappa, who succeeded Sri Patnaik, in the instant case, made and communicated the order dated 30-6-1983 to Respondent-3. It reads :
"CORPORATION OF THE CITY OF BANGALORE NO. LP (A) 120/82-83 Office of the Commissioner, Corporation Offices, Bangalore, Dated : 30th June 1983 To Sri K.V. Shivakumar, Partner, Rajatha Enterprises, No. 495, Avenue Road, BANGALORE Sub : Revocation of licence granted for construction of building under L.P. No. 5048/79-80 Ref : (1) Letter No. LA (A) 120/82-83 dated 1-3-8/10-3-83 from the Commissioner, B.C.C. (2) Your reply letter No. Nil dated 24-3-1983.
After going through your reply cited at Sl. No. 2 above, you are permitted to proceed with the construction strictly in accordance with the sanctioned plan.
Sd/-
COMMISSIONER BANGALORE CITY CORPORATION."
The Petitioner contends that this order is patently illegal and not bona fide as it was made without recording a statement that the plan was not violative of Zoning Regulations.
19. Sri K.R.D. Karanth, Learned Counsel for respondent-3, however, submitted that in the Zoning Regulations printed and published by the Corporation, in the table regarding floor area ratio, height of the building etc., which are part of the Zoning Regulations, in respect of residential buildings, the words 'less than' had been printed as against the column regarding minimum width of the road, but the same had not been printed in respect of the tables regarding non-residential buildings and if those words were also there in the table concerning non-residential buildings, respondent No. 3 had not violated the Rules either regarding number of floors or regarding the height of the building. The two tables concerning the residential and non-residential buildings read :
F.A.R. Height of building percentage coverage of plot and the road widths for different site areas for commercial buildings.
Intensely developed areas Sl. No. Area of plots in Sq. metres Max No. of floors Max. percentage coverage FAR Max. of Buildings in Min. Rd. width in mtrs.
ft.
mtrs.
ft.
1.
Upto 90 (upto 1000) Sft.
3 851.0 11 35' 7.00 24' 3 85 1.5 11 35' 7.00 24'
2. 90-185 (1000--2000) ,, 5 85 1.5 17 55' 9.00 30'
3. 185-280 (2000--3000) ,, 7 80 2.0 22 75' 12.00 40'
4. 290-370 (3000--4000) 9 75 2.5 30 100' 12.00 40' ** ** ** Floor : 1. Excluding staircase, Lift rooms and water tanks etc.
2. When sites do not face roads of required widths noted against each, the F.A.R. and the maximum No. of floors applicable to other categories of site facing corresponding widths of roads, shall apply.
A. F.A.R. Height of Buildings, P.C. coverage of plot and the road widths for different sites areas for Residential buildings.
Intensely developed areas Sl. No. Area of plots in sq.Meters.
No. of floors % coverage (Max.) F.A.R. Max. ht. of buildings in Min. road width in No. of families S.D. Mtrs.
Ft.
Mtrs.
Ft.
Less than Less than
1. 90-185 (1, 000-2,000) Sft.
3 701.0 11 35' 5.5 18' SDM 3 70 1.5 11 35' 5.5 18' SD
2. 185-280 (2,000-3,000) 3 65 2.00 11 35' 7.0 24' M ** ** ** Note: S-Single Family D-Double Family M-Multiple Family
1. Floor : Excluding staircase, lift room, water tanks etc.
2. When site does not face roads of required width noted against each, the F. A. R. & the maximum No. of floors applicable to other categories of sites facing corresponding width of road, shall apply.
3. Lifts should be provided when more than 4 floors are built.
20. The learned Counsel submitted that the words 'less' than' has been printed in respect of the table concerning the non-residential buildings as against the column 'width of the road' as published by the Bangalore Development Authority and if that was the correct position, as the width of Chickpet road was more than 30 feet and less than 40 feet, the construction upto seven floors or nine floors, as the case may be, depending upon the area of the site as indicated in the table is permitted.
21. In view of the aforesaid crucial difference in the Zoning Regulations printed by the Corporation and the Bangalore Development Authority, we directed the Government Advocate to produce the original records of the Government concerning the according of approval to the Zoning Regulations. They were produced. The records disclosed that the publication by the Bangalore Development Authority is correct. It is unfortunate that in respect of such an important matter 'Printers Devil' has crept into the publication of the Corporation. Such mistakes must be avoided in the official publication of public authorities.
22. Learned Counsel for the petitioner, however, submitted that apart from the number of floors and the height, there has been grave violation of Zoning Regulations. In a statement filed by the petitioner, the violations are indicated. They read :
"3. The petitioner submits that considering the road width in front of the building constructed, the height of the building cannot be more than 55'. The petitioner submits that the site area granted to the petitioner by the Government was 12,000 Sq. Ft. (Approx.) but the constructed area on the entire site is of 15380 Sq. Ft. Thus the land upon which the construction has taken place is more than the land leased to the third respondent.
4. The petitioner is herewith producing the copy of the sanctioned plan dated 1-3-1982, If will be seen therefrom that the 3rd respondent was sanctioned the following area for construction :
Sanctioned Built Area Extra/Excess Area used Sq. ft.
Sq. ft.
Sq. ft (Approx.) (Approx.) 1 2 3 4 Cellar floor 5343 6800 1457 Ground floor 9875 13500 3625 Second floor 9875 13500 3625 Third floor 3700 6000 2300 Fourth floor 3700 6000 2300 Fifth floor 3700 6000 2300 Sixth floor 3700 6000 2300 Total :
49768 71300 21532 (Approx.) The total height of the building at present is 92'.
5. The petitioner submits that in view of what is stated above, it is clear that the construction of the building is in clear violation of the license, sanctioned plan besides being in transgression of Zonal Regulations in particular the floor-area ratio (FAR).
6. The petitioner is also advised to submit that the 3rd respondent has constructed in violation of the interim orders passed in this case itself.
7. Basement cannot be used for parking of vehicles because it is 7' below the road level, The petitioner submits that the 3rd respondent has leased out the Cellar area to one Sri N. N. Ravi for Rs. 1.000/- p.m. Sri N. N. Ravi has filed an original suit in O.S. No. 2763/85 and obtained an injunction against the 3rd respondent from interfering with his peaceful possession and enjoyment of the plaint schedule property until further orders. The above injunction order was passed by the 5th Additional City Civil Judge, Bangalore, on 17-9-85. Thus the 3rd Respondent is not in a position to take the vacant possession from N. N. Ravi in whose favour the Cellar portion has already been leased.
8. It is submitted that near Kamath Hotel in OTC Road, the road width is 28 1/2 only. The said Kamath Hotel is situated adjacent to Rajatha Complex. In view of the fact that the road width is only 28 1/2 the question raised in the memo filed on 29-4-1986 does not arise. The petitioner further submits that since the Cellar Floor is 7' below the ground level, it is impossible to use the said floor for car parking, as it is impossible to reach the said Cellar for parking the vehicles either from the front side of the cellar or back side of the Cellar."
23. The above allegations are denied by respondent-3 in his counter statement. Relevant portion of the same reads:
"1. The present additional statement is not maintainable and has been filed after noticing that the Outline Development Plan permits the petitioner to put up a minimum 7 floors. Therefore, the same is not bona fide and ought not to be permitted by this Hon'ble Court.
xxx xxx xxx
4. Para 2 of the Additional Statement :
The averments herein that the height of the building cannot be more than 55' is not true. Under the Zonal Regulations, the permissible height is one hundred feet for this site. The height of the building put up by this respondent from the ground floor level is about 73'. The averment that the built area is over 12000 Sq. Ft is patently false. The built area as per the sanctioned plan is only 9875 Sq. Ft. The other averments in this para have already been traversed while filing statement of objections to the several I As. filed by the petitioner.
5. Para 4 of the Additional Statement :
The averments herein are not true and are hereby denied. The allegation that construction in excess of the sanctioned plan has been made is false to the knowledge of the deponent. This respondent submits that the construction has been made in accordance with the sanctioned plan and the variance if any do not affect the built-up area and are not in violation of the Corporation Act, the Corporation Rules and bye-laws of the Zonal Regulations. This respondent denies that the height of the building is 92 feet.
6. Para 5 of the Additional statement :
The allegations herein that the construction is in violation of the license, sanctioned plan and the FAR is hereby denied. Under the Zonal Regulations, for the purpose of calculating FAR the basement floor and garages as also the area for staircase, lift room, water tanks etc., have to be excluded. Therefore, the FAR built by the 3rd respondent would be within the permissible Zonal Regulations then in force. It may also be seen that under the Zonal Regulations, the FAR for the plot having an area measuring 10000 Sq. Ft. to 20000 Sq. Ft. the number of floors permitted is 13 floors and an FAR of 3.0 is permitted. However, this respondent submits that excluding the basement which is used for car parking, the staircase area, the lift area, the common utility area etc., the FAR would not exceed the limits prescribed.
xxx xxx xxx
8. Para 7 of the Additional statement :
The averments herein are denied as being totally false. The basement is used only for car parking and not for any other purpose. Sri N.N. Ravi, referred to therein has been given the contract for car parking arid not for carrying on any business. This Respondent further submits that the suit is in relation to the license granted to him for car parking and nothing more.
9. Para 8 of the Additional statement :
This Respondent has already filed the sketch indicating the width of the road which is 36' in front of the proposed building. Hence, the averment that it is only 28 1/2' is false and has been made in order to mislead this Hon'ble Court.
10. The Corporation of Bangalore (Respondent No. 1) after an inspection of the same and being satisfied that the same is in accordance with the Zonal Regulations and this license has granted occupancy certificate in respect of 3 floors. In regard to the other floors, the same was then under completion."
23A. In our opinion, it is unnecessary to consider the above submissions, as we are of the view that the dropping of further proceedings and permitting respondent-3 to proceed with the construction according to the 'sanctioned plan' without recording his findings as to whether the plan itself was violative of the Zoning Regulations as pointed out in the show cause notice, was correct or not, was a clear case of breach of public duty by the then Commissioner entrusted to him under the Corporation Act read with the provisions of the Town Planning Act. Obviously for this reason, the respondent Corporation has not been able to make any submission in support of the said order.
24. In the circumstances, it is necessary to set aside the said order dated 30-6-1983 of the Commissioner and direct the Corporation to lake a decision in respect of the show cause notice dated 10-3-1983 (Annexure-R) issued by the then Commissioner having due regard to the provisions of the Municipal Corporation Act and the provisions of the Country and Town Planning Act and the Zoning Regulations made thereunder, and the reply furnished by Respondent-3 after giving further opportunity to respondent-3 to put forward such additional reasons as he desires to put forward.
25. Learned Counsel for Respondent-3 urged an alternative contention to the effect that the provisions of the Act regarding taking of licenses themselves were not applicable to the present case in view of Section 342 of the Act. Elaborating this submission, Learned Counsel submitted that the land in question belonged to the State Government and Clause No. 9 of the lease granted in favour of Respondent-3 expressly permitted Respondent-3 to undertake construction in accordance with the plan submitted by him to the Government along with the, tender. Section 342(1) of the Corporation Act on which the Learned Counsel relied, reads :
"Exemptions : (1) Nothing in this Act or in any rule or bye-law made theseunder shall be construed as requiring the taking out of any license or the obtaining of any permission under this Act or any such rule or bye-law in respect of any place in the occupation or under the control of the Central Government or the State Government or in respect of any property of the Central Government or the State Government."
In our view, the contention is untenable. The language of the Section is clear and unambiguous. It only exempts the State and Central Government in respect of land and buildings under their occupation, from taking of licences from the Corporation Authorities. Once the land is leased by the Government in favour of a private party like Respondent-3 and he is required to construct a building on the said land, the land ceases to be under the occupation of the Government. It is Respondent-3, as a private party, who is undertaking construction of the building. Therefore, he is bound by the provisions of the Zoning Regulations.
26. It is not clear as to whether Respondent-3 had submitted any plan along with the tender. We will proceed on the basis that he had submitted a plan and Clause (9) in the agreement entered into between the Government and Respondent-3 permitted him to construct the building in accordance with the plan. The said condition in an agreement cannot prevail over the provisions of the Municipal Corporation Act and the Town Planning Act, for, as held in M.D. Narayana's case, 1982 (2) KLJ Sh. N. 35 the Zoning Regulations are mandatory.
27. One other question canvassed by respondent-3 was that in counting the maximum number of floors in respect of a non-residential building, the basement floor, when it is exclusively used for car-parking, should be excluded. In support of this submission, learned Counsel relied on the following portions in the Zoning Regulations :
"(2) Basement Floors and garages when permitted in commercial and industrial areas need not be considered while calculating the total floor area. 50 per cent mezzanine floors should be taken into account while calculating floor area ratio."
The wording of the above clauses shows that in respect of a non-residential building when basement floor is used for car parking, it has got to be excluded for computing floor area ratio and not for computing the number of floors permitted.
28. Further, we are constrained to say that after going through the records, we found that in making the above sub? mission, Respondent-3 has failed to disclose before this Court that he had tried to convert basement floor also as a shopping complex and he had even made an application to the Commissioner in that behalf and the same had not been acceded to and notices had been issued to him to dismantle the rolling shutters etc., and to allow the basement floor only for car parking. The application made by respondent-3 found in the file reads :
"xx xx xx xx April 9, 1985 The Commissioner Corporation of City of Bangalore Bangalore - 560 002.
Dear Sir, Reg : Plan sanctioned under LP No. 5048/79-80 dated 26-2-1980 for constructing Kannada Girls Middle School and Commercial Complex, Chickpet Road, Bangalore - 560 053.
We refer to the plan sanctioned under LP No. 5048/79-80 as stated above :-
In the Cellar floor we had proposed to construct shops as per plan submitted by us, but this has been shown as car parking area in the sanctioned plan. We submit in this connection that the slope and level of the cellar floor do not permit to provide Car Parking. We therefore, propose to construct a conference Hall-cum-Restaurant as per revised plan herewith enclosed.
We request you to kindly consider this proposal and sanction the revised plan.
Thanking you, Yours faithfully, xxx"
The reply issued by the Commissioner to respondent-3 in this behalf reads :
"LP 5048/79-80 Dated 8-5-1985
To
Shri K. V, Shivakumar,
495, Rajatha Enterprises,
Avenue Road, Bangalore
Sir,
Sub : LP. 5048/79-80 of Rajatha Enterprises, No. 495, Avenue Road, Bangalore - Reg. modified plan for BF Ref: Your letter dated 9/11-4-1985 I am desired to inform you that your request for sanction of the modified plan for conversion of basement into shop-cum-restaurant cannot be considered since the basement was sanctioned only for the purpose of car parking and it should be reserved for the same. Otherwise, this would violate the provisions of Zoning Regulations and bye-laws.
Yours faithfully xx"
Thus, it may be seen that the third respondent was advancing a contention before this Court on the basis that the basement floor was being exclusively used for car parking though it is contrary to what he himself had stated in the application before the Commissioner, extracted above. Regarding the exclusion of basement floor for counting the number of floors, the Counsel for the respondent submitted that he received support from the Judgment of the Supreme Court in Express Newspaper v. Union of India, . In our view, even in the light of the ratio of that Judgment, the question whether the construction of the building in question is unlawful or not should depend on the provisions of the Zoning Regulations applicable to this case.
29. Learned Counsel for respondent No. 3, however, categorically submitted before us that the basement floor would be reserved exclusively for car parking. We place this statement on record. Therefore, we do not consider it necessary to pursue this matter as the Commissioner has to look into this aspect also before passing the fresh order.
30. Before concluding, we should consider and answer two important questions, which arise for consideration in this petition. At paragraph 2(iii), we have stated that in this Writ Petition on 7-8-1981 an interim order was issued directing respondent-3 not to construct the building. There has been no order of this Court vacating the said interim order. But the construction has been completed by respondent-3! The construction is within a few yards from the Chickpet Police Station. Startling indeed ! We asked the Learned Counsel for the petitioner, how this happened ? He submitted that the petitioner had filed an application LA-VI, seeking direction to the Chickpet Police to ensure obedience to the interim order of this Court. But that application was dismissed as misconceived by a learned Single Judge of this Court and that an appeal against that order was also dismissed on the ground that respondent-3 disputed the existence of the interim order. It appears that respondent-3 undertook the construction on the presumption that the interim order must be deemed to have been vacated as his application I.A-V for vacating the interim order was not disposed of by this Court within two weeks, in view of Clause (3) of Article 226 of the Constitution.
31. On the facts and circumstances of this case, two important questions arise for consideration :
(i) When an application for vacating an interim injunction or stay granted by this Court comes up before the Court and the Court passes an order that the case be posted for hearing without expressly stating whether the application is allowed or rejected and the matter is not heard within two weeks, whether the interim injunction or stay granted stands automatically vacated with effect from the date on which two weeks expire from the date on which the application was made, in view of Clause (3) of Article 226 of the Constitution?
(ii) Whether the Police Authorities are under a duty to ensure that nothing is done in contravention of the interim order issued by this Court in a petition under Article 226 of the Constitution and if so, if they fail to ensure obedience to such order, a direction can issue to the Police to ensure obedience to such order ?
32. There is no dispute that an interim injunction restraining respondent No. 3 from constructing the building had been issued in this Writ Petition on 7-8-1981. There is also no dispute that it has not been vacated, by any express order of this Court. The case had been posted for hearing It was part heard. On 19-8-1982, the petition was released from part heard category with a direction to post before appropriate Bench after obtaining the order of the Hon'ble The Chief Justice, Thereafter, an application I. A--V was filed by respondent No. 3. for vacating the interim order. The case was posted before the Court on 4-10-1982. According to the order-sheet, it was adjourned to 11-10-1982. On that day, the order made by the Court was that the case be posted along with connected petitions, to be furnished in a memo to be filed by the Counsel for the petitioner. Thereafter, for some reason or the other, the matter was not heard. The third respondent proceeded to construct the building on the assumption that the interim injunction stood vacated on the basis that, this Court failed to dispose of the application with in two weeks from the date of presentation of the application for vacating it in view of Clause (3) of Article 226 of the Constitution.
33. In our opinion, on the day when the application for vacating the injunction came up before the Court and the Court made an order that the case be posted along with connected petition, the clear implication of such an order is that the Court did not consider expedient to vacate the interim injunction, but considered expedient to dispose of the matter finally along with other petitions. It is true that an express order continuing the injunction or rejecting the application for vacating the interim injunction was not made. On several occasions, it so happens that when the application for vacating the interim injunction or stay is posted for orders, the Learned Counsel for the parties submit that they are prepared to argue the main case finally or that a few connected cases have already been listed for hearing and this case also may be posted along with it and the Court grants the request and posts the case for hearing and there would be no order expressly stating that the interim order is continued till the disposal of the case. In our view when on the date when the application for vacating the interim order is posted the Court passes an order to the effect that the main matter be heard, that should be taken as the order made on the application for vacating the injunction and therefore (he application stands disposed of by that order. Further such an order made by the Court in the presence of the party, whose application for vacating the injunction or stay had come up before the Court for orders, means that in the light of the order made by the Court for early hearing of the main case, he does not press the application. In such a case, Clause (3) of Article 226 cannot be invoked to say that the interim order is vacated. This is our answer to the first question. Therefore, in this case when the Court made an order on 11-10-1982, on which day the application filed by respondent No. 3 for vacating the injunction had been posted, that the case be posted along with connected cases, that was the order on the application and it meant that the interim injunction would continue till the disposal of the Writ Petition or until further orders.
34. Coming to the second question, we were told that on the ground that the interim injunction was continuing, an application-I.A - VI was filed by the petitioner to direct the Chickpet Police to prevent respondent-3 from proceeding with the construction in disobedience to the interim injunction issued by this Court. That application was dismissed by the Learned Single Judge on 17-5-1983 as misconceived on the ground that no such direction could be issued to the Police Authorities and not on the ground that the interim injunction was not in force. In our view when an interim injunction/order is issued by this Court and the party against whom the injunction/order issued proceeds to act in contravention of the injunction/order and such contravention is brought to the notice of the Police Authorities, they are in duty-bound to prevent such contravention. In this behalf, it is appropriate to refer to Article 144 of the Constitution, It reads :
"All authorities, civil and judicial in the territory of India shall act in aid of the Supreme Court."
In view of this Article, the Police are bound to ensure obedience to the orders of the Supreme Court. It is true that there is no similar Article in respect of the High Courts. Even without any such specific Article, from the very fact that under the scheme of the Constitution the High Court is the Apex Court in each State with plenary powers conferred on it under Articles 215, 226 and 227 of the Constitution, it follows that every civil authority in the State concerned is bound to act in aid of the High Court.
35. In this behalf, it is appropriate to refer as to what the Supreme Court said while rejecting the contention that in the absence of a provision similar to Article 141 of the Constitution, the ratio of the decision of the High Court was not a law binding on the administrative authorities in the concerned States, in the case of East India Commercial Co. Ltd. v. Collector of Customs, AIR 1962 SC 1898. The relevant portion of the Judgment reads :
"(29).... This raises the question whether an administrative tribunal can ignore the law declared by the highest court in the State and initiate proceedings in direct violation of the Jaw so declared. Under Article 215, every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself. Under Article 226 it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government, within its territorial jurisdiction, Under Article 227 it has jurisdiction over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a Tribunal over which the High Court has superintendence can ignore the law declared by that Court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate Courts can equally do so, for there is no specific provision, just like in the case of Supreme Court making the law declared by the High Court binding on subordinate Courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working, otherwise, there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest Court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either by initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction,"
(Underlining by us) On the same analogy the principle underlying the mandate incorporated in Article 144 of the Constitution applies in respect of the High Courts and therefore every civil authority in the State is under a duty to act in aid of the High Court. From this it follows that whenever a disobedience to the orders of this Court is brought to the notice of the concerned Police Authorities, the Police Authorities are in duty bound to take action to ensure obedience to such order. If they fail to do so, an application made before this Court to compel the police authorities concerned by a specific order to ensure obedience to the interim injunction or order of this Court, is maintainable. Further, if the Court finds that the Police Authorities have failed in their duty, to ensure obedience to the injunction or order issued by this Court against a party, it is appropriate for this Court to issue necessary directions to ensure obedience to the orders of this Court. Taking action for disobedience under the Contempt of Courts Act is entirely different. The former is preventive and the latter is punitive. The question of taking punitive action arises after a person has acted in disobedience to the order, but that is no ground for not taking preventive action when there is an attempt to disobey the orders of this Court is complained of. Otherwise, the protection afforded to safeguard public interest or the interest of an individual by any injunction or order granted by this Court would be on paper only bringing the orders of this Court and the Rule of Law to ridicule. In certain cases the injury caused by such violation might be irreparable. To illustrate, if in a given Petition there is an order directing the respondent not to demolish the building belonging to the petitioner and nevertheless the respondent attempts to demolish the building, the Police cannot be silent spectators on the ground that for disobedience the party would be punished. If Police are aware of the order or a complaint is made in time, it is the duty of the Police to prevent the demolition and if they do not respond, an appropriate direction to the Police can and has to be issued by this Court.
36. We are aware of the view expressed by Govinda Bhat, CJ, in the case of Narasimhappa v. Hanumanthappa, 1976 (2) K. L. J. S.N. 33, Item 40 that it is not right for the Court to direct the Police Authorities to implement the order of temporary injunction as there is appropriate provision in the C.P.C. for taking action against the person violating the order of the Court. The learned Single Judge, who dismissed the application -I.A.VI of the petitioner seeking a direction to the Chickpet Police to prevent Respondent-3 from constructing the building in contravention of the injunction as misconceived, appears to have followed that view.
37. A similar question has been considered by a Division Bench of the Andhra Pradesh High Court in the case of Satyanarayana v. S. H. O.P.S. Santhoshnagar, with reference to legality of a direction issued by the Civil Court to the Police to ensure obedience to the injunction issued by the Civil Court. Relevant part of the Judgment reads :
"6. Mr. Jagannadha Rao, Learned Counsel, however, contended that the said decision is an authority for the position that the Civil Courts can under inherent powers, grant such directions under Section 151 CPC but a Writ of Mandamus does not lie. We are unable to agree with this contention. Section 151 CPC reserves the inherent powers of the Court. Article 226 of the Constitution goes a step further and vests extra-ordinary jurisdiction in the High Court of a State to issue not only a writ of Mandamus but also appropriate Writs, Directions or Orders for the enforcement of any of the right conferred by Part III and for any other purpose. As held by the Supreme Court in Calcutta Gas Company (prop) Ltd. v. State of W.B. 'any other purpose' means 'the enforcement of any legal right and the performance of any legal duty.' A legal right, of course, means any legally enforceable right, Nothing more can be a higher purpose than the enforcement of the orders of the Civil -Court and that of the High Court which confirms or recognises the rights of a party. By any interpretation of the provisions of CPC the power of the High Court under Article 226 of the Constitution of India to enforce its own orders or the orders of the Civil Court cannot be curtailed. As observed by the Supreme Court in T. C. Basappa v. T. Nagappa the High Court, in issuing directions, orders and writs under. Article 226 can travel beyond the contents of the writs which are normally issued as writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, provided the broad and fundamental principles that regulate the exercise :of jurisdiction in the matter of granting such writs in English Law, are not transgressed. The Supreme Court also observed that in the very language of Article 226, our High Courts need not feel oppressed by the procedural technicalities of the English Writ. The article empowers the High Court to grant appropriate relief and also to modify the form of relief according to the exigences of each case without being obsessed by the limitation of the prerogative writs.
7. In Satyanarayan v. Mallikarjun the Supreme Court reiterated this principle and went a step further that for doing justice between the parties, the High Court has absolute jurisdiction to issue such directions and orders as it may deem fit to do justice between the parties and enforce the law of the land. The only limitations on the wide powers conferred on the High Court and exercisable by it in the matter of issuing writs are (1) that the power is to be exercised throughout the territories in relation to which it exercises jurisdiction and (2) that the person or authority to whom the writ is issued, is within the territories over which the respective High Courts exercise jurisdiction. None of these limitations come in the way of the High Court issuing appropriate direction to further secure the right determined and recognised by the Civil Court. The power which a Civil Court has under Section 151 CPC, the High Court has in much larger measure under Article 216 of the Constitution. We have therefore no hesitation in concluding that this Court has ample jurisdiction, to issue a writ or direction to all the authorities including the Police within the State to enforce the orders of the Civil Court as confirmed by the High Court in a Civil Revision Petition and maintain the rule of law. The police authorities are therefore bound to give all assistance to the appellant to enforce and see that the orders of this Court as confirmed in CRP No. 3258/81 are implemented and any enquiry or report of any other authority, revenue or police cannot be put as an excuse for not rendering the required help to the appellant to maintain his possession. This order will be subject only to the final orders of the Civil Court in OS 3770/80.
8. We therefore allow the writ appeal, set aside the order of the Learned Single Judge and issue the direction as referred to above."
(underlining by us) We respectfully agree with the view expressed by the Division Bench of the Andhra Pradesh High Court and respectfully disagree with the view expressed by Govinda Bhat, CJ. in Narasimhappa's case, 1976 (2) K. L. J. S.N. 33, Item 40 for the reasons set out earlier.
38. In the result, in answer to the second question, we hold that if it is brought to the notice of the Police that an order or injunction issued by this Court is being disregarded by the party against whom such order is made, it is the duty of the Police to ensure obedience to the order and if they fail to do so, a specific direction to the Police could be issued to prevent the party concerned from acting in violation of the Order of this Court.
39. As far as this case is concerned, as Respondent-3 has already constructed the building on the assumption that the interim injunction stood dissolved in view of Clause (3) of Article 226 of the Constitution, the only direction which we consider appropriate to issue to the Corporation is to examine as to whether the construction conforms to the Zoning Regulations.
40. In the result, we make the following order :
i) The Writ Petition is partly allowed.
ii) The Order of the Commissioner dated 30-6-1983 (Annexure-R) dropping further proceedings is set aside.
iii) A Writ of Mandamus shall issue to the respondent-Commissioner :
(a) To pass fresh orders recording his findings on the objections raised in the show cause notice dated 1-3-1983 and 10-3-1983 (Annexures-D and E respectively) after considering the reply dated 24-3-1983 furnished by Respondent-3 and the additional pleas taken by Respondent-3 before this Court in reply to the objections raised by the petitioner referred to in this order and after causing spot inspection and taking actual measurements with due notice to Respondent-3 and the petitioner and after giving an opportunity of hearing to the petitioner and Respondent-3, in accordance with law.
(b) The Commissioner is further directed to pass appropriate orders in accordance with law, in the light of his findings.