Karnataka High Court
Koramangala Residents' Vigilance ... vs Corporation Of The City Of Bangalore And ... on 2 July, 1998
Equivalent citations: 1999(4)KARLJ206
Bench: R.P. Sethi, K.R. Prasad Rao
JUDGMENT
1. Contending that the building licence issued for construction of multistoreyed/multi-apartments on Site Nos. 403 and 443 in II and III cross in III Block, Koramangala Layout, Bangalore, was illegal and void, the petitioners, an association of the residents of the area, had prayed for quashing of the licence and for issuance of directions to respondent 1 to demolish the construction already put up on the sites by exercising the powers vested in it under Section 321 of the Karnataka Municipal Corporations Act, 1976 (hereinafter called the 'Act'). It was submitted that the residents in the area had acquired sites and built houses upon being made to understand and under the bona fide belief that the layout would be developed and maintained in accordance with law. According to them, the menace of multistoreyed and multi-apartment buildings in the Bangalore City particularly in Koramangala layout which is considered to be a posh and prestigious layout has been increasing. Many property developers, investors in buildings and speculators in real estate were alleged to have started their activities which were detrimental to the quality of life of the residents of the area. Multistoreyed/multi- apartment buildings were alleged to be causing strain on the public amenities. The property developers were alleged to be in a better position to obtain such building licences by using their influence and money notwithstanding the statutory prohibitions. Licence in controversy was also stated to be the outcome of such an exercise by the developers. Relying upon the judgment of this Court in Chandrashekar Hegde v Bangalore City Corporation , petitioners allege that the Corporation was not empowered to grant licences to the owners of the sites to put up multistoreyed/multi-family dwelling units. The scheme under the CITE Act and BDA Act provided for the construction of residential houses and not for exploitation of those sites for construction of buildings, in violation of law and with the object of inflating the money market of the builders, real estate owners and the property dealers. It was alleged that this Court had directed the Corporation to ensure that the builders did not proceed with the construction in violation of the statutory provisions. In Writ Petition No. 7599 of 1987 this Court directed the Corporation not to issue licences to any third party for putting up multistoreyed and multi-family dwelling apartments in the sites allotted by the BDA. After the judgment in December, 1987 one of the petitioners represented to respondents 1 and 2 to re-examine the licences already issued for putting up multistoreyed/multi-family apartments in the light of the law laid down by the High Court. In response, the 1st respondent is stated to have sent communications to all the licensees to stop further construction. Writ Appeal No. 306 of 1988 filed against the order of the learned Single Judge was dismissed by the Division Bench on 14th December, 1988 which was titled Pee Kay Constructions v K. Chandrashekar Hegde.
2. Building licence No. LP 169 of 1987-88 was issued in favour of respondent 4 as noted hereinabove. However, respondent 1 vide its letter dated 4-4-1988 directed respondent 4 to stop all further construction. Such letter was withdrawn by respondent 3 vide its letter dated 26-3-1991. Upon receipt of the letter giving direction to respondent 4 to proceed with the construction, the work was resumed. The withdrawal of the earlier directions stopping construction work was termed by the petitioners as arbitrary, illegal and unjustified. The action of respondents 1 to 3 in allowing construction of the work of multi-storeyed/multi-dwelling units was termed to be arbitrary, illegal and violative of Article 14 of the Constitution of India besides being violative of the relevant provisions of law applicable in the case. Respondent 1 was alleged to be not empowered to grant licence to put up such buildings, The licence issued in favour of respondent 4 was alleged to be without jurisdiction. It was submitted that the scheme under the BDA Act provided for construction of residential houses by the owners of the sites and not for exploitation of those sites for construction of multistoreyed/multi-family apartments for a commercial purpose. The sites meant for single dwelling houses could not be used to put up multi-dwelling houses in the guise of construction of a single building containing different flats or housing units. As the licence was stated to be in contravention with the directions of this Court, the same was prayed to be quashed.
3. After referring to the pleadings of the parties, various provisions of law and the judgments of this Court referred to herein above, the learned Single Judge concluded--"I have no hesitation to hold that licences granted to respondent 4 in these writ petitions are contrary to law in view of the law laid down in the case of Pee Kay Constructions, supra". However, feeling that the writ petitions suffered from laches and delay, the learned Single Judge dismissed the writ petitions vide the orders impugned in these appeals. While dismissing the writ petitions, the learned Single Judge observed that the dismissal of the writ petitions shall not be understood as preventing the Corporation from taking any action permissible under law.
4. Not satisfied with the order of the learned Single Judge, the present appeals have been filed on similar grounds that were raised in the writ petitions with the submission that the learned Single Judge was not justified in dismissing the writ petitions. According to the appellants, the writ petition did not suffer from any delay or laches and that in fact no third party right had been created which could warrant the dismissal of the writ petitions despite the finding that the licences were illegal being against the provisions of law.
5. It has to be noticed that none of the respondents have filed appeals against any part of the judgment of the learned Single Judge. However, the learned Counsel appearing for them tried to justify the conclusions of the learned Single Judge despite the findings of law returned against them insofar as the legality of the grant of licence is concerned.
6. The learned Counsel for the respondents vehemently argued that the law laid down in Pee Kay Constructions case, supra, was no good law and that the learned Single Judge was not justified in holding that the licences granted to respondent 4 in the writ petitions was contrary to law. We have perused the judgments of this Court in Chandrashekar Hegde's case, supra and Pee Kay Constructions case, supra, and are of the opinion that the law laid down in the aforesaid judgments does not require any re- consideration. We fully agree with the conclusions arrived by the Division Bench in Pee Kay Constructions case, supra, holding:
"28. These decisions establish the following principles:
(i) The City Corporation is bound by the reservation of the sites for particular purposes under the statutory schemes;
(ii) Sanction of the building plan by the Corporation, by itself, will not legalise the construction, if the construction is otherwise opposed to the scheme governing the area;
(iii) The residents of the area have a valid interest in the preservation of the area in the manner contemplated by the scheme or the plan governing the area;
(iv) The restriction as to the use of a particular land (or the site) is a beneficial covenant attached to other proximate sites and hence latter site owner can prevent the change of the land use by anyone putting up constructions which are not contemplated by the scheme or plan governing the area; and
(v) A site meant for a single dwelling house, cannot be used to put up multiple dwelling houses, in the guise of constructing a single building containing different flats or housing units."
7. The only question to be considered in these appeals is as to whether on account of the alleged delay, the appellants were entitled to any relief or not? It is admitted position of law that Article 226 of the Constitution of India does not prescribe any period of limitation for invoking the jurisdiction of the High Court, but the extraordinary remedy cannot be availed of unless it is resorted to soon after the rights, which are to be protected, are infringed. The party approaching the Court must be shown to have approached with clean hands and without wasting any time. The question of delay and laches has to be decided in each case according to the facts pleaded for which no hard and fast rule can be prescribed. The party approaching the Court must be shown to he vigilant in seeking the relief. If satisfactory explanation for the delay is put forth, the same has to be examined and the approach in deciding the question of delay would naturally he liberal where the petition filed is in public interest. There is a distinction between laches and negligence. The delay which could be explained satisfactorily does not amount to laches, but laches is such negligence or omission to assert a right as, taken in conjunction with the lapse of time, more or less grave, and other circumstances causing prejudice to an adverse party. In some of the cases, it has been held that the period fixed by the Limitation Act within which a suit in a Civil Court must be brought, can be taken as reasonable standard by which delay in seeking the remedy under Article 226 can be measured. Delay, admittedly, is no bar in the exercise of the writ jurisdiction. It is a question of precaution to be kept in mind in the exercise of the discretionary powers under Article 226. While exercising its extraordinary jurisdiction, the High Court has to keep in mind the conduct of the petitioner in approaching the Court without any further delay. In a writ petition where the violation of fundamental rights is alleged, question of limitation is of no significance. The Supreme Court in Moon Mills Limited v M.R. Meher, President, Industrial Court, Bombay and Others, held that issue of a writ of certiorari was legally a matter of Court's discretion and that such writ will not be granted if there was such negligence or omission on the part of the applicant to assert his right, as, taken in conjunction with the lapse of time and other circumstances, causing prejudice to the adverse party. The Court also approved the view of the Court of Chancery in the case of Lindsay Petroleum Company v Prosper Armstrong Hurd and Others, as follows:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in sucb cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
In Moon Mills case, supra, the Supreme Court further held that the Court could not be precluded from rectifying the grave injustice simply because the petitioner had not moved the matter earlier. The Court may be inclined to refuse relief under Article 226 of the Constitution of India on the ground of laches where it is found that on account of the delay the opposite side has been innocently induced to alter his position, other interests had been created or where a suit, if brought on the same cause of action, would have been barred by limitation. The real test to determine the effect of delay is that the petitioner should have come to the Court before any parallel right is created and that the lapse of time was not attributable to his negligence. Various circumstances which allegedly prevent the petitioner in approaching the Court have to be kept in mind.
8. The learned Counsel appearing for respondent 4 has submitted that as in many similar matters this Court has already held that the Corporation was estopped from taking any action in view of its own conduct in allowing the builders to raise construction on the basis of the licences granted in contravention of the provisions of law, the present appeals are also to be dismissed. Specific reference has been made to the judgment rendered in W.A. Nos. 1145 to 1151 of 1989 and connected matter, decided on 25th July, 1989.
In those cases, without laying down any law on the point, the Court had observed--"We have heard the learned Counsel and find that in the circumstances of this case, without going into the question of the powers of the authorities to grant licence....". The pleas raised before us obviously have not been adjudicated and thus the judgment relied upon cannot be held to be laying down any principle of law. The learned Counsel thereafter relied upon host of authorities to submit that the writ petitions were rightly dismissed on the ground of delay and laches. The judgments relied upon by the learned Counsel do not lay down any proposition of law different than what we have noted herein above. In State of Madhya Pradesh v Bhailal Bhai, the Court had held that delay more than the period oflimitation for filing a civil suit could be considered as fatal for granting the relief in exercise of the writ jurisdiction. In Rabindra Nath Base and Others v Union of India and Others, the Court held that no relief could be granted to a party under Article 32 if the alleged inordinate delay is not explained. In Tilokchand Motichand and Others v Commissioner of Sales Tax, Bombay and Another, it was held that writ ought not to be entertained if a suit would have been barred by limitation, at the time when the remedy under Article 226 of the Constitution of India is sought. Acquiescence and inordinate delay and laches are grounds for dismissal of writ as held in Kamini Kumar Das Choud-hury v State of West Bengal and Others. Similarly, in State of Madhya Pradesh and Others v Nandlal Jaiswal and Others, the Court held that when due to delay and laches third party rights had intervened, no relief should be granted to the petitioner.
9. After referring to the various judgments, some of which have been noted herein above, the learned Single Judge concluded that as the petitioners had failed to explain the delay which amounted to laches, they were not entitled to the grant of relief. The admitted position in the case is that building licences, impugned in the writ petitions, were issued in favour of respondents-builders on 19th August, 1987 and 3rd October, 1987. Commencement certificates were issued on 13th October, 1987 and 23rd November, 1987. The writ petition in Chandrashekar Hegde's case, supra, was decided on 14/15/16th December, 1987 wherein it was held that the Corporation was not justified to grant licences to the owners of the sites in the area in question to put up multistoreyed/multi-family dwelling units. The writ appeal filed against the order of the learned Single Judge was dismissed on 14th December, 1988 (Pee Kay Constructions case, supra). On 4th April, 1988 the respondent 1-Corpo-ration had issued a letter to the builders directing them to stop construction, Constructions obviously remained suspended upto 26th March, 1991 when a letter was issued by respondent 3 directing to proceed with the construction. The writ petitions are shown to have been filed in the first week of November, 1991. Delay of few months in filing the writ petitions in public interest was explained by the appellants stating:--
"6. The office bearers of the 1st petitioner made enquiries in the office of respondent 1 to ascertain the reasons for withdrawing the direction to stop work, but in vain. They also met respondent 3 on several occasions. By a letter dated 7-10-1991, the 1st petitioner requested respondent 3 to furnish copies of sanctioned building plan and commencement certificate issued in respect of Site No. 403. The said letter is shown as Annexure-B. The said documents have not been furnished. The petitioners understand that there is no justifiable reason at all for such withdrawal, and withdrawal has been ordered arbitrarily and for questionable considerations. The building licence granted to respondent 4 for putting up multistoreyed/multi-apartment building (ground + 3 floors) on Site No. 403 is illegal and void. Respondent 3's letter dated 26-3-1991 (Annexure-A) is also illegal and void. The direction to stop further construction issued earlier by respondent 1's letter dated 4-4-1988 ought to continue. If a multistoreyed/multi-apartnient building comes up on Site No. 403 on 2nd cross which is a narrow road, the residents of that area will be subjected to very great inconvenience and hardship. Civil work of construction of ground + 3 floors is in progress. It appears that enquiries are being invited from prospective buyers of flats in "Milford Terrace" ".
10. The so-called third party rights could not be created before the completion of the building. It was contended on behalf of the respondents that on 11-10-1991, No Objection Certificate was issued by the Income-tax Authorities to purchasers and sellers of flats in the building. There was nothing on the record to show that the construction of the building had been completed in October/November, 1991. The learned Single Judge appears to be not justified in holding that the multistoreyed building had been completed during the period from 19th August, 1987 and 3rd October, 1987 to 4th April, 1988 or within four months after the 3rd respondent directed the 4th respondent to complete the construction. It is also on record that during the pendency of the writ petitions this Court had directed the Corporation not to issue the occupancy certificate to the tenements under construction till the disposal of the writ petitions. The photographs produced by the builders could not be made a basis for holding that the buildings had been completed before filing of the writ petitions. The construction of multistoreyed buildings could not be a fiat or the work of magic. The admitted position is that after the commencement certificate was issued, the work could not be immediately started which was admittedly stopped on 4th April, 1988. There is no denial of the fact that the buildings in dispute were incomplete till 26th March, 1991. It is also admitted that the position of law with respect to the construction of multistoreyed/multi-family dwelling units had not changed by that time. What persuaded the 3rd respondent to direct the 4th respondent to complete the construction is a mystery shrouded with doubts which are not sought to be cleared by the respondents. If the respondents had chosen to continue with the construction work despite their knowledge of the existing position of law, they could not be rewarded by dismissing the writ petitions which ultimately amounted to ratifying their illegal action. To justify the plea of creation of third party rights, the 4th respondent in its objection had stated that the company had issued 14990 shares on 21st May, 1988, admittedly, at a time when the construction had been stopped by the Corporation vide its order dated 4-4-1988. Such an action could not be made a justification for holding the creation of third party rights which were apparently illegal and intended only to be a camouflage in future. Nothing was placed on record regarding the creation of third party rights except the issuance of NOC with respect to one of the flats as noted earlier. As the law expects the petitioners to come to the Court with clean hands, clean heart and clean mind, similar obligation is cast upon the respondents seeking dismissal of the claim on the ground of creation of third party rights. If such rights are created ostensibly with the object of raising the objection for frustrating the claim of the writ petitioners, the same cannot be accepted. Allowing such a course would amount to permitting a party not only to defeat the ends of justice, but also to frustrate the public confidence in the institution of judiciary. In order to reject a petition on the ground of creation of third party rights, it is obligatory for the party raising such a plea to place on record all relevant documents to show his bona fides and the circumstances which negativate all suspicions with respect to creation of such rights.
11. There is another aspect of the matter which is required to be seriously taken note of. The then Commissioner of the Corporation vide his order dated 4-4-1988 had stopped the construction of the work in view of the judgment of this Court in Chandrashekar Hegde's case, supra. The file of the Corporation produced before us show that between 4-4-1988 and 14-2-1991 nothing transpired and the 4th respondent remained content. However, the builder vide letter dated 14-2-1991 requested for permission to complete the construction mainly on the ground that substantial amount had been spent on purchase of site and on construction of ground plus three floor building. The aforesaid letter/application is shown to have been perused by the Deputy Director of Town Planning on 20-3-1991 which was submitted to the Commissioner on 21-3-1991. The Deputy Director of Town Planning has only reproduced the letter of respondent 4 in his note with the observation that--"in all the similar cases put up the building is completed with full structural work as per sanctioned plan prior to judgment". The Deputy Director did not state as to whether the facts stated in the application of respondent 4 were correct or not. No spot inspection appears to have been made. No document or information appears to have been sought from the 4th respondent in support of his averments made in his application. The said note appears to have been considered by the Commissioner on 25th March, 1991. Without assigning any reason, the Commissioner has stated:
"I have perused the note as also I have discussed with the CE and the DDTP. I have carefully considered the request of the applicant. I hereby order that the notice be withdrawn and they be accorded permission to complete the building as per sanctioned plan.
Issue permission."
The aforesaid two 'notes' clearly reflect the non-application of mind of the authorities concerned and shows the casual manner in which they have dealt with such a sensitive matter which affected not only the parties concerned, but also the atmosphere and the beauty of the city which was intended to be protected and preserved by making the laws and development plans. Statutory authorities are not expected to work in a casual manner as has been done in the instant case. Statutory powers are required to be exercised only in accordance with the provisions of law and within the parameters permissible under the statute.
None of the authorities have noted any change in the circumstances between 4-4-1988 to 26-3-1991 which could, even by assumption be deemed to be a good ground, to permit respondent 4 for completing the construction or withdrawing the notice earlier issued. Action of the respondents-authorities being not in accordance with law and admittedly being without reasons is depricable on account of the exercise of the powers not vested in the authority.
12. We are, therefore, of the opinion that the learned Single Judge had rightly held that the licences granted to respondents 4 and 5 herein were contrary to law and liable to be quashed. We, however, do not agree with the findings of the learned Single Judge that the writ petitions filed by the appellants suffered from delay and laches and therefore liable to be rejected. In view of what we have noticed herein above, the writ petitions filed by the appellants were liable to be allowed.
13. Under the circumstances, the writ appeals are allowed and the order of the learned Single Judge insofar as it rejected the writ petitions on the ground of delay and laches is set aside. Rule issued in the writ petitions is made absolute. Impugned licences issued in favour of respondents-builders being illegal and void, are quashed. The order of respondent 3 dated 26th March, 1991 allowing respondents-builders to continue with the construction is set aside. A direction is issued to respondent 1 to demolish the illegal construction put up on Site Nos. 403 and 443 in II and III Cross in III Block, Koramangala Layout, Bangalore. As we have found that the completion of the work has been facilitated by the authorities of respondent 1, they are held liable to bear the expenses of the demolition of illegal construction, respondents 1 and 3 are also held liable to pay costs to the petitioners assessed at Rs. 10,000/-.