Karnataka High Court
Godrej K. Divecha And Ors. vs Corporation Of City Of Bangalore And ... on 5 August, 1995
Equivalent citations: ILR1997KAR7
ORDER G.P. Shivaprakash, J.
1 The petitioners who belong to the same family claim to be the owners of a certain apartment in a building known as 'Ahuja Palace' bearing No. 96, Richmond Road, Bangalore. The said building was constructed by respondents 2 and 3 after obtaining necessary plan and licence dated 29.2.1991 from the first respondent-Corporation. Under the said plan and licence, respondents 2 and 3 could construct a multi-storeyed, multi-apartment building consisting of basement, ground, first and second floors with a provision for eighteen apartments - six apartments in each floor. The petitioners have narrated in detail in the petition the circumstances under which they purchased the apartment. They have stated that they purchased the apartment on the representation of respondents 2 and 3 that the building would consist of only 18 apartments. According to them, they were also told that there would be a basement with prevision for covered car parking, and that there would be two lifts and two stairways, for each wing of the building, and that the building would be provided with other facilities/amenities.
2. It appears the construction of the building was completed in September 1994, after which respondents 2 and 3 wrote letters to all the apartment purchasers, that the apartments were ready for occupation and that they could take possession of the same after payment of the balance consideration amount in terms of the agreements.
3. From the recitals in the petition, it seems the petitioners have certain grievances against respondents 2 and 3 regarding the registration of the sale agreements, payment of maintenance charges, formation of the apartment owners association etc. Their main grievance in this petition, however, is against sanction of plan by the first respondent under LP No. 174/95-96 dated 31.8.1995 for constructing one more floor on the existing building thus adding six more apartments.
4. The petitioners have stated that the total sital area on which the building is constructed is about 23,388 sq. feet. Under the provision of the Zonal Regulations framed by the Bangalore development Authority, as Planning Authority, and the Building Bye-laws, the total floor area permissible is approximately 40,929 sq. feet i.e., 1.75 FAR, since the building is situated in a zone classified as area 'B'- moderately developed.
5. The Zoning regulations for Bangalore Local Planning area are prepared under Clause (iii) of Sub-section (2) of Sections 12 and 21 of the Karnataka Town and country Planning Act. The Zonal Regulations governing plot coverage, set-backs and floor area ratio (maximum floor area permissible) with reference to the road width and the area in which the plot is situated are contained in Table 22, 23 and 24 found in the official publication of the Comprehensive Development Plan (Revised), Bangalore, published by the Bangalore Development Authority.
6. The controversy regarding the legality and validity of the sanctioned plan is with reference to Zonal regulation No. 9 of Part II of Annexure-III. The said Regulation is set out below:
"9. Means of Access: The means of exclusive access which would be other than through public roads and streets, shall not be of more than 30 metres length from the existing public roads and streets. The minimum width of such access shall be 3.5. mtr. FAR and height of buildings coming up on such plots shall be regulated according to the width of public street or road. If the means of access exceeds 30.0 mtr in length, FAR shall be regulated with reference to the width of such access road. Construction of buildings on plots with common access/lanes from the public road/street shall be regulated according to width of such common access roads/lanes."
7. In the instant case the building in question is situated off Richmond Road. The entry to the said building is through a passage which runs over a length of 187 feet 8 inches. The width of the said passage is about 17 feet, as stated in the statement of objections of respondent-2. It appears there is no dispute as regards the sital area, or length or width of the passage. According to respondents 2 and 3, width of Richmond Road would determine the percentage coverage of plot and the FAR (Floor Area Ratio) in accordance with table No. 24.
8. In the instant case since the building in question is for residential purpose and is situated in Area - 'B', the relevent table applicable to the building in question would be table 24 of the Zonal Regulations which prescribes the maximum extent of plot coverage, floor area ratio with reference to the width of the road. Since the access to the building in question is through a passage with a length of more than 30 metres, in terms of Regulation No. 9, set out above, it was contended by the learned Counsel for the petitioners Sri S. Shiva Swamy that the permissible FAR depends on the width of the access road i.e., the passage providing entry to the building. From a plain reading of the aforesaid Regulation there cannot be any doubt whatsoever that if the "Means of Access" exceeds 30 metres in length, the floor area ratio will have to be determined only with reference to the width of such access road and not with reference to the width of the main public road. In the instant case, the "Means of Access" is an exclusive access to only one building i.e., Ahuja Palace. Therefore, the width of Richmond Road is of no relevance whatsoever for determining the parameters prescribed under the Zonal Regulations.
9. The learned Senior Counsel Sriyuths S. Vijayashankar, in the first instance, and R.N. Narasimha Murthy, following him, submitted that the "Means of Access" contemplated under Regulation No. 9 cannot be construed to mean a private road owned by the parties themselves, but it could only refer to such "Means of Access" which is subject to certain easementary rights. The learned Counsel submitted that in the instant case the "Means of Access" is a private road exclusively meant for the user of the occupants of the apartments in the building and therefore the provisions of Regulation No. 9 are not applicable to determine the FAR of the building in question.
10. I do not see anywhere in the Regulation any reference to any easementary rights. The Regulation is in simple language and in simple terms. It provides that if the "Means of Access" to the building, is other than through public roads or streets, it shall not be of more than 30 meters length from the public roads or streets. However, if the "Means of Access" exceeds 30 meters in length, in that event the width of the access road shall determine the various parameters prescribed under the Regulations. If the "Means of Access" exceeds 30 meters in length, the Zonal Regulations clearly provide it shall be regulated with reference to the width of such access road and not with reference to the public road.
11. The respondent-Corporation, however, has sanctioned the impugned plan on the basis of the width of Richmond Road, providing for an additional floor to the existing building which is certainly in violation of the Zonal Regulations. Time and again this Court has ruled that the respondent-Corporation, a Public Authority, is bound to sanction plans only in. accordance with the Zonal Regulations. However, in several matters it has come to the notice of this Court that the respondent-Corporation has been sanctioning plants in violation of the Zonal Regulations in contumacious disregard of the law laid down by this Court.
12. Almost at the conclusion of the hearing of this case, the parties have come to terms and have filed three memos. In the first memo dated 26.7.1996 filed by respondents 2 and 3, it is stated that they would undertake not to put up any construction above third floor and terrace/irrespective of the availability of the additional FAR in respect of the petition property and that they have stated that the terrace belongs to all the 24 flat owners as also the owners of the office premises. The joint memo dated 26.7.1996 reads as hereunder:
Joint Memo "The petitioners and the respondents in the above case have entered into a settlement in respect of the subject matter in dispute and pray that an order be made in accordance therewith.
1. That in view of the fact that third floor has been put up by respondents 2 and 3 and the same has already been completed, the petitioners and the respondents 2 and 3 submit that it would be inequitable to seek a direction that the third floor should be brought down.
2. That the petitioners and the respondents 2 and 3 also submit that dismantiling of the construction is likely to jeopardise the ground, first and second floors. In the circumstances, it is not proper to persuade the Hon'ble Court for an order of demolition of the construction.
3. In terms of the settlement the petitioners and the respondents state that notwithstanding the availability of any additional FAR in future, no construction would be put up above the third floor and that the terrace above the third floor would belong to all the 24 flat owners and owners of the office premises. The terrace shall be handed over to the flat owners after the third floor is complete in all respects and flats are sold.
4. Wherefore the petitioners and the respondents herein pray that this Hon'ble Court may be pleased to make an order recording the above settlement in the interest of justice and equity."
13. By another memo, petitioners 1 to 4 seek leave of the Court to withdraw the petition and pray that the same may be dismissed as withdrawn.
14. By the time this petition was taken up for hearing, the impugned third floor had already been completed. It is a matter of common knowledge that in most of these cases the builders put up construction from the money given by the intending purchasers on the faith of the plan sanctioned by the respondent-Corporation and the representations made by the builders.
15. In view of the settlement between the parties, and the circumstances of this case, the petition is disposed of without issuing any further direction.
16. Issue show cause notice to the Commissioner, Corporation of the City of Bangalore; the Chief Engineer, Corporation of the City of Bangalore; and the Town Planning Officer, Corporation of the City of Bangalore, requiring them to show cause why contempt proceedings should not be instituted for their conduct in issuing licence and sanctioning plan in LP No. 174/95-96 dated 31.8.1995 contrary to the law laid down by this Court, giving the date for their appearance in Court on 21st instant.
17. Writ Petition disposed off. All interim orders granted in these proceedings stand discharged.