Karnataka High Court
Miss K G Nagalaxmi Bai vs The Chief Secretary on 19 October, 2012
Bench: D.V.Shylendra Kumar, H.S.Kempanna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF OCTOBER, 2012
PRESENT
THE HON'BLE MR.JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR.JUSTICE H S KEMPANNA
Writ Petition No.30568 of 2011 [BDA-PIL]
BETWEEN:
MISS K G NAGALAXMI BAI
D/O K.C. GIRIJA NAIK,
AGED ABOUT 47 YEARS,
R/AT NO.8, 4TH CROSS,
S.P. EXTENSION,
MALLESWARAM,
BANGALORE - 560 003 ... PETITIONER
[By M/s A K Subbaiah, A S Ponnanna
and S Doreraju, Advs.]
AND:
1. THE CHIEF SECRETARY
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BANGALORE - 560 001
2. THE PRINCIPAL SECRETARY
URBAN DEVELOPMENT DEPARTMENT,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BANGALORE - 560 001
3. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
BANGALORE.
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4. THE COMMISSIONER OF POLICE
INFANTRY ROAD,
BANGALORE - 560 001
DELETED VIDE COURT
ORDER DATED 11-04-2012.
5. SRI D.V. SADANANDA GOWDA
S/O LATE VENKATAPPA GOWDA,
NO.11-332:1, VASUKI,
RAILWAY QUARTERS ROAD,
PADEELU,
PUTTURU - 574 201
6. BRUHAT BANGALORE MAHANAGARA PALIKE,
N.R. SQUARE,
BANGALORE - 560 002
REP. BY ITS COMMISSIONER
7. SRI D.N. JEEVARAJ
S/O LATE G.T. NARAYANAGOWDA
MEMBER OF THE KARNATAKA
LEGISLATIVE ASSEMBLY
AGED ABOUT 49 YEARS,
R/AT DWARAMAKKI,
B.H. KAIMARA POST,
NARASIMHARAJPURA TALUK,
CHIKKAMAGALORE DISTICT. ... RESPONDENTS
[By Sri E S Indiresh, HCGP for R1 & R2;
Sri K Chandranath Ariga, Adv. for R3;
R4 is deleted vide court order dated 11.04.2012;
Sri Udaya Holla, Sr. Counsel for
Sri G Lakshmeesha Rao, Adv. for R5;
Sri Ashok Haranahalli, Sr. Counsel for
Sri Subramanya R, Adv. for R6;
Sri Manmohan P N, Adv. for R7]
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THE
BUILDING BUILT ON SITE SURVEY NO.12 AND 13 AT YALLAGUNTE
VILLAGE AT HOSUR-SARJAPURA ROAD, 3RD PHASE, MEASURING
24.84 METRES FROM NORTH TO SOUTH AND 15.23 METRES FROM
EAST TO WEST AND BOUNDED EAST BY: ROAD, WEST BY: SITE
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NO.13-B, NORTH BY: SITE NO.1-B AND SOUTH BY: SITE NO. 3-B
DETAILED IN ANNEXURE-B, HAVING BEEN ALLOTTED TO
RESPONDENT NO.5 BY RESPONDENT NO.3 - BDA IS AN ILLEGALLY
CONSTRUCTED BUILDING AND DIRECT THE RESPONDENT NO.3 -
BDA TO RESUME THE SITE ALONG WITH THE BUILDING AND
FORFEIT ANY AMOUNT PAID IN THIS BEHALF TO RESPONDENT BDA
AND ETC.,
THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY,
SHYLENDRA KUMAR.J., MADE THE FOLLOWING:
ORDER
This writ petition styled as 'public interest litigation' petition is by a person who claims that she is a law abiding citizen, having faith in the Constitution of India and the judicial system of the country; that she is very concerned with the proper things happening in the society; that the petitioner believes in espousing and trying to bring about correction in the polity of the country, particularly, by exposing corrupt intentions on the part of the persons at the helm of affairs and seeking for suitable corrective steps at the hands of the judiciary as the system which is corrupted is not capable of correcting itself and calls for correction from outside.
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2. The writ petition pleadings is to the effect that in the matter of allotment of regular or stray sites by the Bangalore Development Authority [for short 'the BDA'] - A public Body established under the Bangalore Development Authority Act, 1976 [for short 'the Act'] for the planned development of Bangalore city and its surroundings while allotting sites in favour of persons who claim eligibility under special category and in particular, as in this case, 'G' category who are persons in public life as may be directed by the Government and some 30% of such available sites being meant for allotment to 'G' Category persons as per circular dated 6.8.1997, there has been irregularities and amongst the allottees figure fifth and seventh respondents to this petition.
3. It is the averment of the writ petitioner that by a thumb rule and more out of practice, this type of allotment is referred to as Chief Minister's discretionary quota and such sites are being allotted as per directions of the Chief Minister; that it is not permissible and it is the further 5 averment in the petition that indiscriminate allotment of sites in this manner in favour of persons said to be in public life does affect other aspirants and diminishes their chances of securing a site; that even after such allotment, many such allottees have misused or abused the allotment; that such allotment of sites had been made in favour of respondents 5 & 7 to this petition respectively.
4. It is the averment in the petition that the fifth respondent as per one such allotment is allotted site No.2B measuring 50' x 80' in HSR Layout, III Sector and likewise seventh respondent has been allotted a site of like dimension and adjacent to the site that had been allotted to fifth respondent bearing site No.13B as per allotment subsequent to the allotment in favour of the fifth respondent.
5. It is the averment that pursuant to such allotment, the third respondent - BDA has executed a lease-cum-sale agreement in favour of fifth respondent on 2.2.2007 and a like lease-cum-sale agreement has been executed in favour 6 of seventh respondent on 21.11.2008 [copies at Annexures- C & L to the writ petition respectively].
6. It is also the averment in the writ petition that at the time of allotment of these sites, there were several conditions imposed on the allottees and the allottees in acknowledgement of the conditions imposed on them have filed what is known as 'affidavit undertakings' before the third respondent - BDA undertaking to abide by the terms of allotment and that a violation of the terms of allotment would result in the allotted site being forfeited in favour of the BDA with its construction, if any, and without any compensation to the allottee.
7. Condition No.4 imposed under the lease-cum-sale agreement, to which attention is drawn, reading as under:
"4. The Lessor/Purchaser shall not sub-divide the property or construct more than one dwelling house on it.
The expression 'dwelling house' means building constructed to be used wholly for human habitation and shall not include any apartments 7 to the building whether attached thereto or not used as a shop or a building of a ware-house or building in which manufactory operations are conducted by mechanical power or otherwise.
[a] The Lessee shall plant at least two trees in the site leased to him."
and the undertaking at paragraph-4 of the affidavit undertaking reading as under:
"4. In the event that any false statements or declarations furnished and sworn to and declared in this Affidavit and in the event that I violate any conditions of site allotment, the Authorities are empowered to resume such building and site without granting any compensation to me and BDA is entitled to and empowered to resume the site for which BDA is authorized and I hereby declare so and I hereby swear accordingly."
are highlighted for reference and examination in the present writ petition.
8. It is the averment in the writ petition that both respondents 5 & 7 are bound by not only condition No.4 of the lease-cum-sale agreement, but are also bound by the affidavit undertaking they have filed before the BDA to abide by the same and any violation in respect of condition No.4 8 automatically attracts enforcement of the undertaking and also for taking action for violation, if any, by the allottees and the present writ petition is presented as to the knowledge and belief of the petitioner, respondents 5 & 7 have committed violation of the terms of the lease-cum-sale agreement and the affidavit undertaking.
9. It is the averment of the petitioner that sites were allotted solely for residential purpose, but a shopping complex is being constructed on the first floor and other floors are sought to be provided for constructing apartments; that the construction as noticed by the writ petitioner at the time of presentation of the petition has gone about five floors and also by amalgamating both sites, a common construction is being put up; that such joint construction on the two site Nos. 2B and 13B is not only in violation of the terms of the allotment, but also that the construction is without a valid plan etc; that inspite of a request for amalgamating the two sites made by the fifth respondent 9 having been rejected by the BDA as per communication dated 24.09.2009 [copy at Annexure-A], nevertheless, in violation and in contravention of this rejection order, two sites have been joined together and a joint construction is put up without a valid plan, without permission and in violation of all relevant rules and regulations; that when under the lease-cum-sale agreement, conditions operate and lease period is for ten years, any construction in violation of the terms of the allotment, automatically attracts forfeiture provision and the fact of violation is writ large and in evidence of the same, petitioner has produced photographs [Annexures-T, U & V to the writ petition] purporting to indicate combined construction and according to the petitioner comprising of five floors.
10. It is urged that by such construction, respondents 5 & 7 have acted in violation of the conditions of allotment; that there is an attempt to convert residential site for commercial use; that inspite of such violations by respondents 5 & 7, the 10 third respondent - BDA which is bound to take action in accordance with the terms of the allotment and which otherwise gets active in the case of other persons, has been quite inactive in the case of respondents 5 & 7 though they have committed violations; that even sixth respondent - Bruhat Bangalore Mahanagara Palike [for short 'the BBMP'] which is one to approve the building plan has also been quite silent, not taking action against respondents 5 & 7 though they have constructed a building clearly in violation of the plan, if any, sanctioned in favour of these respondents by the BBMP; that several politicians had indulged in filing false affidavits before the BDA while seeking allotment and when such false claims and violations were brought into public domain or through a judicial process, some of them have surrendered such sites, but no follow up action has been taken against them for having filed false affidavits etc.; that the BDA is not taking uniform action against all violators; that it is acting in a partisan manner and persons with political patronage are all spared from consequential 11 action of their illegalities; that a perusal of distribution of sites in 'G' category as per the directions of the Chief Ministers during their tenure only indicates that there is considerable patronage and in violation of the Act and Rules sites have been allotted; that no follow up action is being taken to ensure that conditions are all observed by the allottees and in this state of affairs, the writ petition is presented to safeguard public interest and to compel public authority, namely, the BDA by a writ of mandamus to take appropriate action for resuming the sites allotted in favour of respondents 5 & 7 who have committed violation of the terms of allotment and forfeit any amount that they have paid to the BDA and for such purpose, writ petition is filed before this court.
11. This court having directed the petitioner to place material before the court about the petitioner having filed public interest litigation petition earlier and about her credentials, writ petitioner has placed before the court, not 12 only information about the earlier cases, but also about her credentials indicating that she is a social activist actively involved in public life; that she is a Journalist by avocation; that she has been associated with various news dailies at Bangalore and even outside; that she has received good number of awards in recognition of her professional work and accomplishments in public life and has in support, placed copies of such awards photographs showing her participation in such functions etc.
12. This court being satisfied about her bonafides in prosecuting the present writ petition, on examining the petition averments has admitted the writ petition on 10.01.2012 and issued notices to the respondents. Respondent No.7 was not a party to the writ proceedings, but later impleaded as seventh respondent on an application in IA No.1/2012 filed on 11.04.2012 on which notice had been issued to the proposed respondent and ultimately application having been ordered on 25.07.2012. 13
13. The fourth respondent was deleted on the memo filed by counsel for the petitioner to this effect and as per order dated 11.04.2012. All other respondents are represented by counsel. Respondents 1 and 2 are represented by Sri. E.S. Indiresh, learned Government Pleader, third respondent - BDA is represented by Sri. Chandranath Ariga, learned counsel, fifth respondent - one of the allottees of 'G' category site is represented by G. Lakshmeesha Rao, Advocate on record and Sri. Udaya Holla, learned senior counsel has appeared on his behalf, sixth respondent - BBMP is represented by counsel M/s. Ashok Haranahalli Associates, Advocates and Sri. Ashok Haranahalli, learned senior counsel has appeared on their behalf. Sri. Manmohan, Advocate has appeared for seventh respondent.
14. Statement of objections have been filed on behalf of respondent Nos. 3, 5, 6 and 7.
15. Third respondent - BDA on its part has averred that the writ petition cannot be characterized as one in public 14 interest; that the BDA has not committed any violation of any law; that it is a fact, on request by the fifth respondent, a site bearing No.2B had been allotted in his favour and following the same, lease-cum-sale agreement has been entered into on 2.2.2007 [copy at Annexure-C to the writ petition]; that the fifth respondent had made a request for amalgamating this site along with adjacent site bearing No.13B in the same layout as per request dated 4.6.2009 [copy at Annexure-R1 to the statement of objections filed by third respondent], but said request came to be rejected on 24.09.2009 for the reason that it is not possible to grant permission for the same as the allottee was only a lessee and even as per the Zoning Regulations paragraph 6.2.2 of the revised master plan for the year 2015, a request of this nature cannot be considered and therefore request had been rejected. Third respondent has pleaded ignorance of the so called claim of the petitioner that she had exposed several misdeeds wherein the Government funds has either been misplaced or mis spent; that rejection of the request of fifth 15 respondent is in order; that the answering respondent has not permitted fifth respondent to go ahead with the construction of the building contrary to the conditions; that the third respondent has nothing to say about approval of building plans by the sixth respondent - BBMP as it is within their jurisdiction; that no amalgamation is permitted, but it is a fact that fifth respondent does not become the absolute owner of the site till the expiry of the lease period and it is also true that site allotted in favour of the fifth respondent should be used only for the purpose for which it has been allotted and not for any other purposes and contentions urged in the writ petition with regard to allotment of sites in 'G' category is not a matter that can be gone into in this writ petition as it is already subject matter of separate writ petition and with such plea, third respondent has urged for dismissal of the writ petition. 16
16. The fifth respondent on his part has filed detailed statement of objections on 9.4.2012 and has supplemented the same by additional statement filed on 8.8.2012.
17. In the main statement, it is urged that writ petition is without merit, frivolous and one with malafides and therefore it should be dismissed. It is also urged that the property in question is not properly identified; that its description is incorrect; that a declaration in respect of site which is not even described properly or precisely cannot be granted; that even otherwise, the relief of declaration cannot be granted in writ jurisdiction and with the main prayer sought for being not possible of granting in writ jurisdiction, consequential relief sought for also does not survive and therefore writ petition has to be dismissed. Petition averments are all denied as false and incorrect. It is also urged that the petitioner has no locus to approach this court to question the validity or otherwise of the building constructed by the fifth respondent; that the petitioner is 17 more a meddlesome interloper and the petition is without any bonafides; that the petitioner has been set up by other political parties to scuttle the opportunity of the fifth respondent becoming Chief Minister of the State by making false allegations against him; that the time at which the petition is presented by itself provides proof of this inference; that at the time of filing writ petition fifth respondent was to replace the then Chief Minister of the State; that the writ petition being politically motivated and presented in the garb of public interest and with ulterior motives, it is only to be dismissed. The credentials of the writ petitioner is doubted; that the fifth respondent is a very respected person in public life and has many accomplishments to his credit; that he is on the threshold of becoming Chief Minister of the State; that the site in question has been allotted bonafide and in view of his contributions in public life; that the seventh respondent - Jeevaraj has been allotted site measuring 50' x 80' which is lying towards western side of the site allotted in favour of the fifth respondent; that it is incorrect to say that 18 the allotments are in violation of the BDA's rules and objectives; that the fifth respondent after allotment of the site had decided to construct a building along with neighbour's site, namely, site allotted in favour of one Jeevaraj by amalgamating both of their sites lying side by side and in pursuance of the same, respondents 5 & 7 had filed applications to the BDA for amalgamation, but the third respondent - BDA rejected the same; that in the meanwhile, fifth respondent had applied for building licence to construct the building by producing necessary documents before the BBMP and the BBMP being satisfied about the same had issued building licence and sanction plan and had permitted fifth respondent to construct the building; that the fifth respondent has not violated any of the conditions of the lease-cum-sale agreement or any norms of the BDA; that the averments in the petition that two plots have been joined is incorrect; that they have not been joined, buildings are separate and in proof of the same, the fifth respondent has produced as Annexures-R2 & R3 photographs showing the 19 two adjacent buildings being separated by a gap in between; that the sixth respondent - BBMP had sanctioned the plan on 22.07.2011 to construct the building up to two floors and on an application for modification of this plan by the fifth respondent, the BBMP had sanctioned a modified plan to construct basement, ground and three floors and on the strength of the same, the fifth respondent constructed building comprising of basement, ground and three upper floors in accordance with the modified sanction plan and building licence issued by the BBMP and therefore the petition averment that it is construction of fifth floor is contrary to the sanction plan is incorrect and copy of the modified plan is produced as Annexure-R4 to the statement of objections filed by fifth respondent. It is also averred that fifth respondent has not converted the building for any commercial purpose as urged in the writ petition; that however as per the zoning regulations, sixth respondent is empowered to allow 20% of the total built up area for ancillary/commercial use; that the fifth respondent has 20 sought for conversion of 20% total built up area in the ground floor to be used for commercial purpose and on such request, sixth respondent has approved the same as per sanctioned modified plan Annexure-R4. It is denied that the fifth respondent is constructing a shopping complex; that not impleading one Jeevaraj who is owner of the adjacent site is a defect in the petition; that the petitioner has deliberately not impleaded the said person as party to the writ petition and therefore writ petition is to be dismissed on the ground of non joinder of necessary parties; that all other averments are denied and has urged for dismissal of the writ petition with costs etc.
18. In the additional statement of objections placed before this court on 8.8.2012, it is averred that on the advice of the Architect, the fifth respondent for the purpose of increasing floor area has purchased transferable development rights and has loaded that into the building to increase the floor area so as to conform with the zoning regulations and 21 thereafter has obtained modified sanction plan from the sixth respondent - BBMP [wrongly indicated as third respondent].
19. The sixth respondent - BBMP on its part has filed its statement of objections urging for dismissal of the writ petition at the threshold; that the petition is not a bonafide one, but more for seeking publicity in the garb of public interest litigation with oblique motives; that it is also liable to be dismissed for non joinder of parties by not impleading all persons against whom allegations are made in the petition averments; that it is true the sites in question allotted in favour of respondents 5 & 7 is by the BDA, but the sites are within the jurisdiction of the BBMP; that on application filed by fifth respondent for construction of a building, it was sanctioned on 22.07.2011 permitting ground plus two upper floors following the approval dated 3.7.2011; that this plan was modified in the wake of the provisions of revised master plan 2015 and was issued on 3.10.2011 22 permitting construction of basement, ground floor plus three upper floors and a terrace portion; that it was in conformation with the bye law No.4.1.4 of the Bangalore Mahanagara Palike Building Bye-laws, 2003 [for short, the building bye-laws]; that this was a valid modified plan and averments to the contrary in the writ petition are denied as false and incorrect; that the averments that five storeyed building for commercial purpose is being put up is denied as false and on the other hand it is asserted that it is only basement, ground plus three upper floors and construction was still in progress on the date of filing of the statement of objections by sixth respondent; that in view of the fact that construction is not complete and the building not occupied, there cannot be any assumption of violation at this stage and therefore even before issue of completion certificate, there is no occasion for the BBMP to get active by noticing violations; that the allegations and averments made in the writ petition are all denied; that they are bald in nature and against all and sundry and no credence should be placed on 23 such averments in the writ petition and therefore writ petition should be dismissed as one without merit etc.
20. In the additional statement of objections filed by sixth respondent on 9.10.2012, copy of sanction plan dated 22.07.2011 issued by the BBMP is produced as Annexure- R1; that as for the construction, fifth respondent approached BBMP for issue of modified plan in accordance with building bye-law 2003 and on the examination of the application on merits and having regard to the revised master plan 2015, modified plan dated. 3.10.2011 was issued and copy is produced as Annexure-R2; that the fifth respondent having approached BBMP again for issue of another modified plan proposing certain modifications to the on going construction of the building in question, the same was considered by the BBMP and further modified plan dated 22.06.2012 was issued to fifth respondent which is produced as Annexure- R3; that it is indicated while the permissible floor area in the plot is 2.25 and permissible coverage is 65% of the plot area; 24 that the fifth respondent having acquired transferable development rights, is entitled for construction of additional floor area and in this view of the matter, permissible floor area ratio has gone up to 3.60 and both permissible floor area ratio as achieved in the building which is 2.562 and coverage of the area which is 64.03% are well within the permitted limits; that there is no violation on the part of the fifth respondent; that on an inspection by the BBMP authorities, it was noticed that there were some deviations and the said deviations are indicated as per Annexure-R4 to the statement of objections and necessary action may be initiated under the provisions of the Karnataka Municipal Corporations Act, 1976 for correcting the same; that as of now, permission is not for any commercial purpose in terms of the latest revised modified plan as per Annexure-R3. With such averments and developments having been indicated, it is urged for dismissal of the writ petition.
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21. Seventh respondent on his part has filed separate statement of objections denying the averments in the writ petition, but admitting the allotment of 'G' category site adjacent to the site allotted to fifth respondent; that the writ petition does not serve any public purpose nor bonafide one; that it is required to be rejected on the ground of delay and laches for having approched this court at a very belated stage after a lapse of six years of the original allotment; that no worthwhile explanation is forthcoming in the writ petition about the delay; that while answering respondent had obtained sanction plan on 22.07.2011, writ petition filed on 4.8.2011 is hopelessly belated and on the ground of delay itself, writ petition should be dismissed; that the petition is one more for publicity which should not be permitted by the court; that no true public spirit is exhibited in the petition nor sought to be espoused; that the petition only deserves to be dismissed; that no specific relief is sought for against the answering respondent, but nevertheless, sweeping statements without examining the authenticity of the same 26 are made and for this reason also writ petition deserves to be dismissed; that the writ petitioner had not impleaded the answering respondent in the initial stage, but has impleaded the seventh respondent much later, but it is a fact that the answering respondent along with fifth respondent had made a request to the third respondent for amalgamation of the sites, but the same came to be rejected by the third respondent and therefore the question of amalgamation did not arise and averment to the contrary in the petition is incorrect; that the averments about applications made by seventh respondent for sanction of a building plan which are on the very dates as that made by the fifth respondent or on identical terms are also placed before the court by way of pleadings and averments to the contrary made in the writ petition are all denied; that it is urged that the seventh respondent is a Member of Legislative Assembly elected from Sringeri constituency and being in public life and social worker and on account of his professional work was required to visit Bangalore frequently and therefore had sought for 27 allotment of a site in 'G' category and accordingly it has been allotted and contentions to the contrary in the writ petition are all denied as false; that the writ petitioner having not questioned such allotment under the BDA rules, cannot turn around and question allotment made in favour of seventh respondent; that while respondents 5 and 7 have not amalgamated their sites, it is a fact that they have engaged a common contractor for construction of the building and there is nothing illegal or violative of any provision of law in doing so; that the writ petition averments being based more on some newspaper reports, cannot be accepted at face value and petitioner not producing any substantial material to make good petition averments, writ petition averments are all mere pleadings based on hearsay; that there is no merit in the same and has urged for dismissal of the writ petition.
22. We have heard A K Subbaiah, learned counsel for the petitioner, Sri Uday Holla, learned senior counsel appearing for fifth respondent, Sri Ashok Haranahalli, learned senior 28 counsel appearing for sixth respondent, Sri E S Indresh, learned government pleader for respondents 1 and 2, Sri K Chandrakanth Ariga, learned counsel for third respondent- BDA and Manmohan P N, learned counsel for seventh respondent.
23. Learned counsel for the petitioner reiterating the petition averments has submitted that the writ petition is a bona fide petition espousing a public cause, as the petitioner has brought a cause of considerable importance before this court and it is for the court to examine the actions on the part of the respondent-authorities vis-à-vis orders passed and actions taken in favour of respondents 5 and 7 in the matter of allotment of what is known as 'G' category sites in their favour; that the writ petitioner has brought to the notice of the court various violations and irregularities both at the stage of the allotment of those sites and thereafter; that the writ petitioner has also placed materials before the court to make good her credentials as a person to espouse a 29 public cause and therefore this court may examine the cause on its merits and pass suitable orders in writ jurisdiction.
24. Sri Subbaiah submits that the two sites in question, one allotted to the fifth respondent bearing No 2/B and the other one allotted to seventh respondent bearing No 13/B, both of the same dimension of 50' x 80' and located adjacent to each other in HSR Layout, Sector -III, Bangalore are sites allotted to the allottees for the purpose of residence; that condition No 4 of the lease-cum-sale agreement indicates the nature and the manner of user of the site; that the writ petitioner had noticed violations of such conditions and has brought that to the notice of the court and the writ petitioner has filed this petition as a public interest litigation to protect the interest of the residents of the locality and in the larger public interest as persons in whose favour these sites had been allotted and having regard to their social position, there is no guarantee the authorities themselves will become 30 active for suitable corrective action; that the very fact that they had remained inactive is also proof of this kind of attitude on the part of the public authorities viz., BDA and BBMP and therefore writ petition has been presented.
25. The sum and substance of the writ petition averments and the argument is that while respondents 5 and 7 had been enabled to put up a single dwelling unit, as per the conditions of allotment in their respective sites, on the other hand, they have put up a common construction combining the two sites; that the construction as noticed by the petitioner on the eve of presenting this petition upto the level of five floors; that it was clearly in violation of the terms and conditions of allotment as also zoning regulations and without proper plan or with no plan and if allowed will be a testimony to the violation and therefore the authorities were required to take action, but they have not taken any action and therefore the matter is brought to the court for activating them to take suitable action.
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26. In this regard, learned counsel for the petitioner has brought to our attention that though an effort on the part of respondents 5 and 7 to seek permission for the so-called joint development by amalgamating the two sites was made through an application on 4-6-2009, but that application having been rejected on 24-9-2009, nevertheless, these respondents having gone ahead with such construction and on the date of filing of this writ petition i.e. on 4-8-2011, such a construction being in place and as evidenced through photographs at Annexure-T, U and V, it is a standing proof of the persistent violation and the lack of regard on the part of the respondent-allottees to adhere to laws and these respondents though being aware of the rejection of their request for amalgamation have nevertheless proceeded with the construction.
27. It is also submitted that though on the date of filing of writ petition, the building was one cohesive building of five floors, an attempt has been made after filing of this writ 32 petition and in a hasty manner to put up a show as though it was not one cohesive building but two buildings, one on each side and for such purpose, while a gap has been created in between the two buildings, immediately after filing of this writ petition, to create an impression that they are two separate buildings and not one building and in this regard Sri Subbaiah has drawn our attention to clauses-4 and 13 of the lease-cum-sale agreement to submit that not only the condition as per clause-4 of the lease agreement regarding the manner of use of the allotted site, which should be adhered to, but also that the allotment being subject to the rules and regulations that are provided for in the Bangalore Development Authority (Allotment of Sites) Rules 1984 [for short, the allotment Rules], which are incorporated into the lease agreement. He submits that there is violation of both clauses 3 and 13 of the lease conditions and therefore in terms of the affidavit undertaking condition No 4, BDA having been enabled to resume such building and without giving any compensation 33 and the authorities in the BDA having not done so, writ petition is presented for such purpose.
28. It is submitted by the learned counsel for the petitioner that when the initial plan sanctioned on 22-7-2010 in itself was not in conformity with the requirement of law, particularly as BBMP has overlooked the condition No 4 as contained in the lease-cum-sale agreement for approving a construction much more than for a dwelling unit; that the subsequent so-called modified plans are all more attempts to sustain the violation or illegality by calling in aid other provisions and rules and regulations which are not attracted to the case on hand; that the initial plan and modified plans are all clearly violations of the conditions and therefore not valid plans even in terms of the provisions of the Karnataka Municipal Corporations Act, 1976, governing the issue of sanction plans for constructions and therefore submits that this is a fit case for issue of directions to the authorities. 34
29. Learned counsel for the petitioner has also drawn our attention to the statement of objections filed on behalf of sixth respondent BBMP and plan and modified plans produced along with it as annexures to submit that the effort on the part of the BBMP is only to regularize or legalize the violations on the part of respondents 5 and 7, even then, without sanctity in law and the construction in the absence of valid permission cannot be permitted and at any rate being in violation of condition No 4 of the lease agreement, BDA is required to take action in terms of the affidavit undertaking.
30. With particular reference to the statement of objections filed on behalf of the sixth respondent, submission of learned counsel for the petitioner is that an attempt is made by the respondents 5 and 7 to project a picture that there was no violation at all, though such violation by amalgamating the two sites and putting up a combined construction is writ large on the date of filing of the writ 35 petition as per the photographs of the building produced by the petitioner; that the subsequent modified plans are also attempts to either validate or legalize the initial illegal construction and therefore amounts to an attempt on the part of respondents 5 and 7 to create or fabricate evidence subsequent to the event to cover up their misdeeds and to mislead this court and creating such documents i.e. modified building plans during the pendency of the judicial proceedings and using it as evidence to support the version of these respondents attracts provisions of Section 193 IPC; that this is a clear case of creating evidence after the event and sustain the stand and therefore it is necessary for this court to take note of this aspect and to issue directions in terms of Section 340 CrPC for the offence punishable under Section 193 IPC.
31. To make good the submission that putting up of a building which accommodates more than one dwelling unit and which is a construction by amalgamating two sites and 36 also providing for commercial space etc., is a violation of conditions of allotment and a violation of the zoning regulations, learned counsel for the petitioner has placed reliance on the decision of this court PEE KAY CONSTRUCTIONS vs CHANDRASEKHAR HEGDE [ILR 1989 KAR 241]. With reference to this decision, submission is that a condition like the site should be utilized only for construction of one dwelling unit; that such a condition can be imposed by the BDA and that binds the allottee and a violation of such a condition is virtually detriment to the neighbours and therefore action is warranted in such a situation.
32. Reliance is also placed by the learned counsel for the petitioner on another decision of a Division Bench of this court in the case of KORAMANGALA RESIDENTS' VIGILANCE GROUP vs CORPORATION OF CITY OF BANGALORE [199(4) KAR LJ 206]. In the latter decision, the view taken by this court on an earlier decision in PEE 37 KAY CONSTRUCTIONS [supra] has been referred to and followed and applied.
33. With reference to the modified plans, submission of learned counsel for the petitioner is that in the first plan, which is clearly in violation of the terms of the allotment, BBMP could not have overlooked this condition while approving the sanction, as one of the requirements on the part of allottee for seeking approval of the plan is to place before the BBMP the title deeds and in the instant case, respondents 5 and 7 ought to have placed and have placed copies of the lease-cum-sale agreement containing condition No 4 and the authorities in the BBMP should not have sanctioned the building at variance with this condition. It is submitted that the first modified plan, two months after the filing of this writ petition and the second modified plan, which is dated 22-6-2012, a copy of which is produced at Annexure-R3 produced along with the statement of objections filed by respondents 5 and 7 on 9-10-2012, are 38 only efforts to lend credence or legality or validity to the already constructed building, but in violation of the conditions and the earlier plan and therefore are of no consequence to justify the action on the part of respondents 5 and 7, who initially violated the law and later are making efforts to sustain the illegality by having recourse to such modified plans. It is, therefore, a writ should be issued from this court for corrective measures and for compelling the authorities to take action in accordance with law and as per the affidavit undertaking.
34. Appearing on behalf of fifth respondent, Sri Udaya Holla, learned senior counsel has very vehemently urged that the writ petition is not a bona fide ventilation for any public cause; that it is more politically motivated or for the purpose of publicity of the writ petitioner; that the writ petition is also hit by delay and laches, as the petition is filed much later to the construction having been put up and apart from these submissions and without prejudice, Sri 39 Holla also submits that there is absolutely no violation or infraction of any rule or law or the conditions of lease-cum- sale agreement or the undertaking given by the fifth respondent; that even without any such violation, writ petition is filed just to tarnish the image of the fifth respondent and the writ petition deserves to be dismissed.
35. With reference to objections filed on behalf of this respondent, it is asserted that no construction on an amalgamation of two sites has been put up; that the construction is only in terms of the plans and as and when sanctioned; that it is still in the process of completion and therefore at this stage, no action is warranted.
36. With reference to the contentions urged on behalf of the writ petitioner by her counsel to the effect that a violation in the nature of diversion of the site for other use viz., a dwelling unit for the use of multiple residential units or for commercial purpose etc., cannot be taken to be a violation attracting condition No 4; that judgment of this 40 court in the case of KORAMANGALA RESIDENTS' VIGILANCE GROUP [supra] was subject matter of appeal before the Supreme Court in the case of R & M TRUST vs KORAMANGALA RESIDENTS' VIGILANCE GROUP [(2005) 3 SCC 91] and the decision of a Division Bench of this court having been reversed by the Supreme Court by allowing the appeal and setting aside the judgment of this court, the ratio, if any, as contained in the judgment of the Division Bench of this court in KORAMANGALA RESIDENTS' VIGILANCE GROUP [supra] is no more a good law; that on the very reasoning, even the earlier judgment of this court in the case of PEE KAY CONSTRUCTIONS [supra] cannot also be construed as good law any more and therefore reliance placed by the learned counsel for the petitioner on these two decisions to make good the contentions on behalf of the petitioner to submit that there is an illegality committed by respondents 5 and 7 in putting up a building which is either a multi-storeyed building or providing for more than one dwelling unit being no more good law, it cannot be said to be 41 in violation and therefore has submitted that the writ petition has to be straightaway dismissed, particularly, as reliance placed by the learned counsel for the petitioner is on judgments which are no more good law.
37. In this regard, Sri Holla, has drawn our attention to paras 2, 17, 21, 22 and 26 of the judgment of the Supreme Court in the case of R & M TRUST [supra]. Paras 21, 22 and 36, which are relevant, reading as under:
21. Learned counsel for the respondents has tried to raise certain objections that in the final agreement the expression "apartment" has been used which shows that there cannot be more than one dwelling house. We regret to say that this interpretation does not bear out in the face of the language used in clause 2 of the final agreement which says that the building to be constructed shall be used wholly for human habitation and shall not include any apartments to the building whether attached thereto or not for shop or warehouse or manufacturing purposes but that does not make out a case for prohibition of raising of the multi-storeyed building. Once the Municipal Corporation has permitted to raise construction more than three floors then this condition for construction will hold good and they are not contrary to any of the provisions of the Act.
Section 505 of the Karnataka Municipal Corporation Act, 1976 only says that the 42 Corporation shall exercise power in conformity with the provisions of the Karnataka Town and Country Planning Act, 1961. Therefore, the Corporation at the time of granting permission has to keep in mind the provisions of the Karnataka Town and Country Planning Act, 1961. But we have not been able to find any provisions of the Karnataka Municipal Corporation Act or the Karnataka Town and Country Planning Act, 1961 where any ceiling has been applied on the construction of the multi-storeyed building. Therefore, we do not find that the Municipal Corporation has committed any illegality in granting permission to the appellant for raising construction up to third floor.
22. In view of the discussions made above, we are of opinion that permission granted by the Bangalore Municipal Corporation to the appellant for raising the construction up to third floor is not in violation of any of the provisions of the Act and the Rules.
36. However, we are satisfied that there is no prohibition under the provisions of the Act and Rules putting the ceiling on construction of the multi-storey building. We are also satisfied that the delay is also fatal in the present case.
and are specifically referred to and Sri Holla has urged that as the law in PEE KAY CONSTRUCTIONS [supra] is no more good law, as indicated by the Supreme Court in its judgment and also that delay is a very relevant aspect and therefore 43 writ petition deserves to be dismissed on both grounds viz., on merits and also on the ground of delay.
38. Sri Holla has also brought to our notice the provisions of 4.1.4 of the building bye-laws, which enables a person to seek modifications and providing for submission of request for revised or modified plans, reading as under:
4.1.4. Revised Plans -
(i) Where plans have been scrutinised and modifications or objections have been pointed out by the Authority, the applicant shall modify the plans to comply with the modifications or objections raised and resubmit the plans. The plans submitted for approval shall not contain superimposed corrections.
(ii) A plan once sanctioned may be revised or modified by the Authority on payment of additional fee for scrutiny, and additional fee, if any, to be paid, due to the increase in the permissible floor area. If the modified plan is sanctioned after the commencement of work, penalty at the rates prescribed by the Corporation shall be paid by the applicant.
and the present structure being fully in conformity with such revised modified plans, it cannot be characterized as a violation and at the best the sanctioning authority may 44 insist on payment of additional fee, if any, to be paid and penalty, if any, at the rate prescribed by the corporation can be levied on the applicant seeking for modification, but it does not amount to any violation of the plan and in support of the submission has brought to our attention the acquisition of what is known as transferable development rights [TDR], which has enabled fifth respondent to increase his FAR of 3.6 and therefore the present construction being in order, not being illegal or irregular and still within the permissible limits of the building bye-laws and particularly such corrective measures having been enabled under the provisions of Section 14-B of the Karnataka Town and Country Planning Act, 1961, no need for this court to interfere in the matter and urges for dismissal of the writ petition.
39. Sri E S Indiresh, learned government pleader appearing for respondents 1 and 2, submits that the state is a formal party; that no inaction or violation is attributable to 45 the state, but, nevertheless, points out that a relief in the nature of declaratory relief cannot be granted in writ jurisdiction and urges for dismissal of the writ petition.
40. Sri K Chandrakanth Ariga, learned counsel for third respondent BDA has drawn our attention to clause-6.2.2 of the revised zonal regulations as per revised master plan for 2005, which enables amalgamation of sites; that in certain circumstances, it is possible provided such sites are in the ownership of the persons seeking for amalgamating and they are adjacent to one another, but as the sites allotted to respondents 5 and 7 are on lease-cum-sale basis, were still under the lease and a request for amalgamation has been rejected; that BDA on its part has adhered to right action under the law and no blame can be placed at the door of BDA for acting in accordance with law.
41. It is also submitted that no person has brought to the notice of BDA any violation on the part of either fifth respondent or seventh respondent, as averred in the writ 46 petition pointing out to the BDA that inspite of rejection of their request for amalgamating, nevertheless, they have amalgamated the two sites and put up a construction; that possibly if such matter had been brought to the notice of BDA itself, perhaps, there was scope for taking corrective action; that the writ petition having been presented directly to the court, no inaction can be attributed to BDA, on such premise.
42. Sri Manmoham P N, learned counsel for seventh respondent, has firstly contended that this respondent has been impleaded very late; that there are no pleadings making allegations against seventh respondent and the prayer in the writ petition also does not seek any relief as against this respondent, but, nevertheless, this respondent has filed statement of objections contending that writ petition is to be dismissed, as it is without merit and also due to delay and laches. Submission is that in respect of a construction which had been put up, contentions that it is 47 on a site which is illegally allotted site in favour of this respondent is also woefully hit by delay and laches, as the allotment was of the year 2008 and the writ petition is presented only in the year 2011 and the answering respondent himself having been impleaded as a party only as per order dated 27-5-2012, delay swells to about four years and therefore writ petition as against the seventh respondent should be rejected for this reason itself.
43. In support of the submission that no facts have been pleaded and in a petition where facts are not pleaded and they are not proved, then legal contentions cannot be urged in the absence of plea and proof, Sri Manmohan has placed reliance on the decision of the Supreme Court in the case of BHARAT SINGH vs STATE OF HARYANA [AIR 1988 SC 2181-para-13]. In so far as the submission that no proper plea is found in the petition and a relief not based on proper plea cannot be granted, reliance is placed on the decision of the Supreme Court in the case of COMMISSIONER, 48 BANGALORE DEVELOPMENT AUTHORITY vs S VASUDEVA [AIR 2000 SC 767]. Reliance is also placed on the judgment of the Supreme Court in the case of RANI LAXMIBAI KSHETRIYA GRAMEEN BANK vs CHAND BEHARI KAPOOR [(1988) 7 SCC 469] holding that lack of proper plea in a petition disentitles any relief.
44. Sri Udaya Holla, learned senior counsel appearing for the fifth respondent also has also placed before us today an affidavit of fifth respondent undertaking to use the building in question which is put up on the site in question as a single dwelling unit, after obtaining modification of the plan from the BBMP and in the light of such undertaking has urged that the writ petition may be disposed of accordingly without going into further aspects of the matter.
45. It is in this background of pleadings and submissions made at the Bar, we are required to examine the present writ petition.
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46. In so far as the questions of bona fides of the writ petitioner and tenability of the writ petition is concerned, it is by now well settled that examination on the part of the person presenting what is characterized as public interest litigation by the court is only to ensure that relaxation of requirement of locus is not misused or abused by busybodies and persons without bona fides; that persons who have other reasons or axe to grind, persons seeking publicity and such other unconnected considerations, do not misuse or abuse the access to writ jurisdiction in the guise of PIL petition.
47. Writ petitioner has placed her credentials before the court and it is only after this court was satisfied with the same, the petition has been admitted. It is, however, to be reiterated that examination in a writ petition is not of the petitioner, whether as a public spirited person presenting a PIL or a person seeking for relief as a person for himself or herself, but the examination in the exercise of writ 50 jurisdiction is one of judicial review of executive/legislative action. Examination is essentially one of legality, validity or correctness or even constitutionality of the action on the part of the public authority. A writ petitioner only serves as a person who bring the cause before the court for examination and the examination, whether it is in a PIL petition or otherwise, remains on the same parameters such as relevant statutory provisions, rules and regulations etc., and the constitutional provisions, if any, are attracted.
48. In so far as the present writ petition is concerned, it can be said that the petition averments are that there are certain violations committed and because of the personality of the persons who have committed violations, the authorities are inactive, are overlooking such violations and therefore writ petitioner having faith in the judicial system, has approached this court for corrective measures. In a PIL petition, a writ petitioner does not seek any relief for oneself and the prayer is only to direct authorities for 51 corrective action or to quash an illegal action, if any. A PIL petitioner does not stand to gain anything in that sense of the word, though many a times, it may be for publicity or a misuse or abuse of the process of law. PIL petitions are more for examining actions in public domain, for providing relief or succour to persons who may otherwise not be able to seek relief by other means and on such aspects. Ultimately, it is for taking corrective steps in public domain and by judicial interference such petitions are filed and examined.
49. With the increase in the violation of laws, rules and statutory provisions by public authorities and that being the order of the day and such trend being on the rise, and as people gradually lose faith and confidence in the public administration and if approach courts for a judicial review, it cannot be said that it is an undesirable development. It is, no doubt, true that such development may burden the court, but, nevertheless, for retaining public confidence and to 52 inspire the public confidence in the system of administration and for corrective measures through judiciary, so long as such mal-administration goes on, public interest litigation is bound to stay and may also increase in the course of time.
50. In this regard, we may usefully extract a quotation of the words of Justice Brennan, a celebrated human rights activist Judge of the Supreme Court of the United States, as follows:
Nothing rankles more in human heart more than a brooding sense of injustice. Illness we can put up with, but injustice makes us pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued democracy is not imaginary, but very real because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness.
as found at the very beginning of the book titled Public Interest Litigation - In quest of Justice by the author Dr Sonia Hurra, a PIL activist advocate.53
51. When a public spirited litigant looks up to the court for relief, particularly with an averment that because of the powerful position of the personalities who are in public life, politicians or other persons in power and authority, violations of rules and laws by them are overlooked by the enforcing authorities and therefore corrective measures are required to be ensured by intervention of judiciary, this court cannot just throw out or overlook a petition of this nature either on technicality or for other reasons. Writ jurisdiction is not in the nature of an adversary litigation jurisdiction, but more in the matter of public domain. The conventional legal principles as are evolved in the development of adversary system of English litigation cannot be and should not be ipso facto made applicable while examining causes / matters in writ jurisdiction.
52. First contention urged in this petition is regarding delay, as a barrier. The violation is one relating to the construction of a building, which is in violation of the 54 conditions imposed on an allottee under the sale/lease deed executed by BDA and also to be in violation of the building plan. The first sanctioned plan by the sixth respondent - BBMP itself is contended to be in violation of the condition imposed on the allottee, in the sense, the sanctioned plan enables the allottees to violate the conditions of allotment and therefore the plan also becomes bad and law violating. Such is the nature of violation alleged. As to whether a writ petition is hit by delay and laches is a question of fact and has to be examined on the facts and circumstances are obtained in each case. In so far as question of delay alleged by Sri Udaya Holla, learned senior counsel appearing for the fifth respondent, placing considerable reliance on the judgment of the Supreme Court in the case of R & M TRUST [supra] particularly as indicated in para-36 of this judgment, when Supreme Court indicated that it is satisfied that the delay is also fatal in that case is concerned, it is on an examination of facts and circumstances of that case, the Supreme Court noticed that in respect of construction prior 55 to the year 1989, a writ petition which had been filed in the year 1991 and particularly it was noticed by the court that third party interest was likely to be affected because of the delay in approaching the court for correction and such a petition should not be entertained. On facts, we find the situation is not same or identical in the present case. In fact, observations as contained in para-24 of this judgment, which is to be kept in mind by courts and it is exactly in this background we are examining this writ petition, particularly on the question of examination of what is known as PIL petition. Ultimately, it is characterized that it is a weapon of considerable importance, but it should be used with great care and circumspection and pitfalls should be avoided.
53. From the facts pleaded and materials on record and even the averments as contained in the statements of objections filed on behalf of respondents and annexures such as photographs produced by the petitioner and the respondents, it cannot be disputed nor in any manner 56 doubted that a homogenous structure which has been characterized as one plus four floors or otherwise, had been put up and this construction has come up after rejection of a joint request of the fifth and seventh respondents for amalgamating the two sites and putting up a commercial complex or combined structure, is a structure which is flawed from the very beginning and is clearly in contravention of the order passed by BDA rejecting the request of the fifth and seventh respondents for amalgamating the two sites. Apart from enabling provisions of the building byelaws and zonal regulations, which are brought to our attention, which may, perhaps, enable a modification of the plans and a revised plan may be permitted, if all is within the limits of law and not prohibited by a basic law. In the instant case, as is pointed out by the learned counsel for the petitioner, the construction initially was in violation of condition No 4 of the lease-cum-sale agreement and also therefore violating affidavit of undertaking.
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54. Though Sri Udaya Holla, learned senior counsel appearing for fifth respondent, which argument is adopted by the learned counsel for seventh respondent, has urged that the reliance placed by learned counsel for the petitioner in support of the contention that putting up of a structure accommodating more than a dwelling unit and also putting up a multi-storeyed building being based on the judgments of this court, which have been overruled and are no more good law and therefore the argument of Sri A K Subbaiah, learned counsel for the petitioner cannot hold water and is to be rejected outright, on a closer examination of the judgment of the Supreme Court in the case R & M TRUST [supra], we find the Supreme Court, in fact, as submitted by the learned counsel for fifth respondent, did look into condition No 4 of the lease-cum-sale agreement, and has observed in para-19 of this judgment and we quote the same as under:
19. The conditions which have been set out in the lease agreement and which is relevant for our purpose is condition 4. Condition 4 has already 58 been reproduced above which provides that lessee/purchaser shall not subdivide the property or construct more than one dwelling house.
Condition 12 says that if the lessee/purchaser has performed all the conditions mentioned herein and committed no breach thereof the lessor/vendor shall, at the end of ten years referred to in clause 1, sell the property to the lessee/purchaser and all attendant expenses in connection with such sale such as stamp duty, registration charges, etc., shall be borne by the lessee/purchaser. Condition 13 says that on complying with the terms and conditions of this agreement in the manner stated above but not otherwise the lessor/vendor shall be obliged to execute the sale deed in favour of the lessee/purchaser. Therefore, looking to the scheme of the Act, the Rules and the terms and conditions of the lease-cum-sale agreement, it transpires that once an allotment is made to the lessee and he makes all payments then after the payment the lessor/vendor shall at the end of ten years sell the property to the lessee/purchaser and the lessee/purchaser will get the sale deed registered. Therefore, if all the conditions of the lease agreement are fulfilled, at the end of the stipulated period of ten years, then outright agreement of sale shall be executed by the lessor/vendor with the lessee/purchaser and the lessee will have absolute right. The lease agreement also says that during the currency of the lease, the lessee/purchaser shall abide by the terms and conditions of the lease. As per condition 17(7) reproduced above, the lessee/purchaser shall not alienate the property during the period of tenancy. Once all the payments have been fulfilled by the lessee, then the land is registered 59 in favour of the lessee by the lessor and the lessee becomes absolute owner of the land. So long as the building is not constructed under condition 4 of the agreement, the lessee is neither entitled to alienate the property under condition 17(7), nor shall he subdivide the property or construct more than one dwelling house on it. These restrictions are there so long as the complete sale agreement is not executed under condition 12 of the lease- cum-sale agreement. As soon as the lease agreement is executed confirming full title to the lessee, then the conditions of the lease-cum-sale agreement come to an end and the lessee acquires full right to deal with the said property in accordance with the Act and Rules bearing on the subject. After acquiring this full right the lessee has right to alienate the property or whenever either the lessee or his successor wants to construct a building thereon he can do so in accordance with the provisions of law. Condition 4 of the lease agreement was only to survive so long as the lessee continued to be a lessee as his rights of lessee are restricted i.e. he cannot alienate the property nor can he subdivide the property and he has to construct one dwelling house. The moment the lease-cum-sale agreement is executed after following the conditions of the lease as laid down, then there is no further hurdle or condition like not to construct multi-storeyed building or multi-dwelling house. The only condition that he will construct only one dwelling house is contained in condition 4 of the lease-cum- sale agreement and so long as the full rights are not transferred to the lessee-purchaser, this condition would survive and, after the sale is made, this condition will no longer survive and conditions contained in absolute sale deed will 60 govern. If the lessee or his successor wants to raise a construction, then the provisions of the Karnataka Municipal Corporation Act will come into play and he has to obtain prior sanction for construction of the building. As soon as the permission is granted by the Corporation, then he is to abide by those conditions along with the condition laid down in the absolute sale deed. The Supreme Court had noticed in that case that condition No 4 was a condition which operated during the lease-cum- sale agreement period and when once the authority had executed an absolute sale deed, as noticed in para-19 of the judgment, sale deed, without such a condition operating any more on the allottee, relieved the person of this condition because of the execution of the absolute sale deed. It is on this premise, the Supreme Court opined that on the facts of that case that an absolute sale deed having been executed in favour of the lessee on 3-7-1982 itself, the condition that survives on such person was only the condition that the building should be constructed and to be used only as one dwelling unit and shall not include any apartments to the building whether attached thereto or not, for shop or 61 warehouse or manufacturing purposes and accordingly, Supreme Court opined that the only condition that survived was that the building to be constructed thereafter should be for human habitation and putting up of a multi-storeyed building was not a violation any more and at any rate if the construction put up is in conformity with the building byelaws, as per zoning regulations and as per the plan approved by the corporation or authority concerned, then there is no occasion for taking remedial or corrective action and therefore reversed the judgment of the high court on such premise. Supreme Court further observed in para-20 of this judgment that clause 2 of the sale deed relating to the prohibition of using the building or any part of the building for a commercial purpose or manufacturing purpose or as a warehouse continued to operate.
55. But, in the instant case, we notice that it is the undisputed case of the writ petitioner and all respondents that sites in question are governed by the lease-cum-sale 62 agreements as of now and respondents 5 and 7 are still lessees; that no absolute sale deeds have been executed in their favour and therefore as of now condition No 4 very much operates. The judgment of the Supreme Court for reversing the judgment of the High Court, being based on the reasoning that the condition No 4 of the lease-cum-sale agreement did not operate any more, that judgment does not constitute an authority for the present case and on the contrary the very decision rendered in that case by the Supreme Court constitutes an authority to understand that condition No.4 very much operated and a violation of this condition attracts the operation of the corresponding follow up action as per the affidavit undertaking. Therefore it can be said that reliance placed by Sri Holla, learned senior counsel for fifth respondent is of no avail to sustain the undisputed action on the part of respondents 5 and 7 with regard to the initial violation of condition No 4 of the lease- cum-sale agreement and also in defiance of the order of 63 rejection of the request of respondents five and seven for joint construction by amalgamation.
56. It is, however, urged vehemently on behalf of the respondents that subsequent modified plans have enabled sustenance of the present construction and therefore no action is warranted at this stage. Yet another ground urged is that a declaratory relief cannot be granted in writ jurisdiction as sought for in the writ petition and at any rate a relief as against seventh respondent being specifically not sought for nor the petition averments containing commensurate pleadings and proof, no relief can be granted against the seventh respondent.
57. While it is true that a declaratory relief in writ jurisdiction can only be in respect of validity of a legislation and not in other cases, as in all other cases while the relief by issue of any other writ would suffice the purpose, in so far as validity of a legislation is concerned, issue of a writ of certiorari being not possible, as courts cannot invalidate a 64 legislation but only make a declaration about it, a declaratory relief is confined to the cases of examination of validity of a legislation.
58. In so far as other reliefs are concerned, a writ of certiorari or a writ of mandamus would take care of the prayer for grant of commensurate relief and so long as the relief is possible within any of these writs, it can be examined. Though declaration sought for is a prayer in the relief column of the petition, it is only on a finding rendered in the facts and circumstances of a case based on which a commensurate relief can be granted, if it is warranted.
59. We notice that in the present case on the pleadings in the petition and materials placed before the court and on examination of the relevant conditions in the lease-cum-sale agreement and the zonal regulations, as modified in accordance with revised master plan 2015, a construction of a multi-storeyed building with or without a plan is not possible nor can be permitted. No plan was available for 65 such construction. But, it had taken place. It is now sought to be corrected by modified plans. But, the violation had taken place initially and the manner in which the initial violation is sought to be sustained and sought to be regularized, if at all only belies the belated damage control act on the part of respondents 5 and 7 and the supportive action on the part of the respondents 3 and 6 only points towards the position of these respondents and a marked reluctance on the part of the public authorities to take corrective action and on the other hand to protect them as indicated/revealed from the subsequent repeated change/ alteration/modification of the initial plan!
60. Sri Ashok Haranahall, learned senior counsel appearing for BBMP has, in fact, submitted that a plan which is sanctioned by the BBMP for putting up a construction has to necessarily show awareness to the conditions imposed by the allotting authority viz., BDA while the site was allotted to a person and with the requirement of 66 a copy of title deed being placed before the authorities of the BBMP while seeking sanction or approval of the building plan, it cannot be said that BBMP authorities will be oblivious of such a condition and the BBMP cannot overlook such a condition as clause-4, while sanctioning the plan. Submission is fair and proper and assuming that the municipal authorities have given a building plan overlooking that condition, it does not mean that it is a valid plan nor enables the allottee of site from BDA, a public authority, to give a goby to the conditions imposed b y the allotting authority and to claim immunity on the basis of the plan as approved by the municipal authority.
61. The municipal authority, if at all, is only concerned with the building plan being in conformity with the zonal regulations and the building bye-laws. At the same time, conditions that are incorporated in the lease-cum-sale agreement are also to be looked into. The manner in which the initial plan is sanctioned by the municipal authorities 67 approving construction of ground plus two floors in itself indicates that they are overlooking condition No 4 of the lease-cum-sale agreement. Whether this initial plan can be characterized as a valid one or otherwise, it is obviously one overlooking one of the conditions of allotment and therefore the allottees, who are very much aware of the conditions imposed on them by BDA, cannot take advantage of this plan sanctioned by BBMP to sustain their action which is initially flawed and contrary to the terms of allotment to contend that it is based on a valid initial plan and revised plans as permitted in law as per the bye-laws etc.
62. In fact, even in the statements of objections filed by the respondents 5 and 7, there is no indication that the construction as put up earlier was brought in conformity with the requirement of law. Therefore, only question before the court will be as to whether the initial violation is one that is required to be overlooked or can be sought to be validated by subsequent revised plans etc. 68
63. In the matter of examination of conduct of public authorities, individual interest or private interest is not the criterion or focal point. While the principal that any affected person should be provided with an opportunity of being heard and respondents 5 and 7 have been afforded such an opportunity and their contentions are examined as above, we find, nevertheless, the submissions for sustaining the initial violation and for perpetuating the same cannot be overlooked by this court, more so the writ petition itself is on the premise that because of the status of respondents 5 and 7 at the relevant point of time, being member of parliament and member of legislative assembly respectively, cannot be said to be persons of insignificance or of no public influence. In fact, the authorities are very conscious of the same and it is in this background while corrective action is not taken by the authorities by themselves, on the other hand, efforts are made by them to sustain the illegal or invalid acts on the part of respondents 5 and 7. Even on the part of the respondents 5 and 7, initial action is sought to be sustained 69 and as earlier noticed, a violating act or conduct which is committed even in the wake of non-permission is only sought to be sustained throughout.
64. We are of the clear opinion that if such violation or infraction committed by persons occupying high positions, positions capable of wielding influence are overlooked by judiciary even when the matter is brought before the court, public confidence in administration of justice and judicial system will be eroded. While personality of a person is of no consequence before a court and it is only law which speaks, the question is whether this violation or infraction is to be overlooked or the court should direct the authorities to take matters to its logical conclusion in the face of existing infraction.
65. In the facts and circumstances noticed above, we are of the opinion that it is not possible for this court to overlook the infraction but should compel the authorities to take corrective action. We record a finding that the construction of the 70 building initially as a homogeneous one and later attempted to be divided, by a cutting in between and projected as though they are two separate constructions and to validate the construction through revised plans by acquiring additional TDR etc., are all efforts to sustain the initial infraction and cannot be accepted as a bona fide conduct on the part of persons in position and public authority.
66. Though it is contended that the very allotments are bad etc., and being in 'G' category allotment and as it is submitted at the Bar that it is a subject matter of separate litigation, while we would not like to go into that aspect of the matter and even independent of it on the question of violation of the terms of the grant, we find that there is such a violation and the affidavit undertaking operates, particularly for enforcement of clause-4 of the lease-cum- sale agreement/ affidavit undertaking.
67. In so far as pleadings vis-à-vis seventh respondent is concerned, we find that the pleadings are the same as 71 against both fifth and seventh respondents and the developments also having taken place in common and the action of the authorities being identical and simultaneous in respect of both respondents 5 and 7 and at any rate examination being not of the personal rights of either respondent 5 or 7 and the examination being only of the conduct of the public authorities - BDA and BBMP - and if such conduct is not law-conforming, necessary writ for corrective action to be issued to the authority concerned by this court and the persons having been heard and their contentions examined, we find that both requirements of pleadings and making them good in respect of both respondents 5 and 7 are made good, as it is not different in the case of each other and therefore the result in the petition also cannot be different. Reliance placed by Sri Manmohan, learned Counsel for the seventh respondent, on the three judgments of the Supreme Court, noticed by us in the earlier part of this judgement does not advance the case of the seventh respondent and those decisions and the principles 72 enunciated there are not attracted in the present facts and circumstances of this petition.
68. Plan sanctioned by the authorities is initially flawed and the subsequent modifications are only a revision of initial plan and even as contended by learned counsel for the petitioner virtually a new plan etc., which is necessarily to be gone into, but suffice to hold that when the initial plan is flawed, the subsequent plans are also not sustainable.
69. Insofar as submission of Sri. A K Subbaiah, learned counsel for the petitioner that respondents 5 & 7 have fabricated false evidence for the purpose of being used in this proceeding and to support their stand that there is no illegality or violation of the conditions of the lease-cum-sale agreement or undertaking and therefore they are liable to be punished under section 193 of IPC and the provisions of section 340 of Cr.PC should be set into motion, is concerned, we do not find the modified plans brought into existence after filing of the writ petition can be said to be 73 fabrication of false evidence though otherwise it may not be an acceptable piece of evidence because of illegality and violations committed by these respondents.
70. In this regard, submission of Sri. Udaya Holla, learned senior counsel appearing for fifth respondent to the effect that production of such documents does not amount to fabricating false evidence as subsequent plans are neither fabricated nor can be characterized as false evidence therefore merits acceptance. At the best, if the respondents 5 & 7 or even other respondents have brought about development to project as though the structures put up on the two adjacent sites were two separate buildings and not one by cutting and removing the built portion in between the two buildings and as indicated in the photographs that have been produced before the court subsequent to filing of the writ petition, at the best, it may be characterized as an instance causing disappearance of evidence or destroying evidence for the purpose of testing the existence of violation 74 on the date of filing of the writ petition. Assuming that to be so, without going into further aspects of this matter, in our considered opinion, it is not a case which falls within the scope of section 193 of IPC nor the procedure contemplated under section 340 of Cr.PC is required to be pressed into service as section 340 of Cr.PC is a procedure to be followed only in a situation where the offending act is one that comes within the scope of section 193 of IPC and as it is not even the contention of Mr. A K Subbaiah, learned counsel for the petitioner that the present case is one attracting section 193 of IPC. Therefore argument of Sri. A K Subbaiah on this aspect is rejected.
71. The sum and substance of the writ petition averments is that the respondents 5 & 7 who have been allotted 'G' category sites by the BDA and imposing certain conditions and restrictions on the manner of use of these sites as per the lease-cum-sale agreement and allotment rules of the BDA, have violated the conditions, particularly, condition 75 No.4 and the authorities both BDA and BBMP - respondents 3 & 6 respectively, instead of taking action for such violations, have on the other hand, positively enabling the violating respondents to sustain the infractions committed by them and this virtually is either colluding or too conscious of the position of these respondents, to take action against them and therefore the need to file writ petition to direct the authorities to take corrective action has left to themselves they will not take corrective actions.
72. Submission of Sri Udya Holla, learned senior counsel appearing for fifth respondent and Sri Manmohan, learned counsel for seventh respondent, with reference to the provisions of regulation 4.1.4 of the building bye-laws to the effect that the allottees' plans as approved with several modifications by BBMP as per Annexure-3 produced along with their additional statement of objections dated 9-10- 2012 proceeds on the premise that condition No 4 in the lease-cum-sale agreement and the corresponding 76 undertaking are not either tenable or enforceable for binding the allottees of these sites by BDA to put up a single dwelling unit and therefore even a multiple residential unit is permitted.
73. Submission becomes unacceptable, as the Supreme Court in the decision relied upon by the very learned counsel has made a distinction between the operation of the conditions in the lease-cum-sale agreement during its validity and after an absolute sale deed has been executed by BDA. During the validity of the lease period, it is specifically observed that the condition survives and operates and it is only after the expiry of lease period and on execution of a valid sale deed, condition may not operate and it lapses. In the case of both respondents 5 and 7, the condition operates, as the lease period has not come to an end.
74. Further submission of learned counsel for the respondents 5 and 7 that the initial infraction, if any, being 77 minor in nature and now that it has been rectified and there is no need to take a stringent penal action such as forfeiture of the sites and structure thereon, is also not a submission worthy of acceptance for the reason that the infraction even as admitted by these respondents committed at the beginning while attracts condition No 4, the manner of so- called rectification is only to perpetuate the same and not to really purge the violating conduct. The position of the respondents 5 and 7 and the persistence with the construction activity has while prevented BDA and BBMP from taking positive action for enforcement or correction, on the other hand, these authorities acting in a manner supportive of the conduct of respondents 5 and 7 and that being pointed out by the writ petitioner as a discriminatory act vis-à-vis other allottees only due to the positions of respondents 5 and 7, this court cannot overlook the factual position and even otherwise the consequence being well known to the respondents 5 and 7, being aware of the condition No 4 and corresponding undertaking and it is not 78 as though this court by taking any strict view is imposing any penalty by this order. Submission cannot be accepted and on the other hand it is the function of the judiciary to enforce the rule of law, if there is any violation on the part of the executive/administrative authorities and therefore the question of taking a lenient or liberal view does not arise nor the submission on behalf of respondents 5 and 7 merits acceptance.
75. It is, therefore, while a writ of certiorari is issued, quashing the orders sanctioning the building construction plans in favour of respondents 5 and 7 by the sixth respondent for putting up construction as indicated as per the copies of plans which are placed before the court as annexures to the statement and additional statement of objections filed on behalf of the sixth respondent BBMP, we issue a writ in the nature of mandamus directing third respondent-BDA to take action against respondents 5 and 7 in terms of condition No 4 of the lease-cum-sale agreement 79 and as per the affidavit undertaking given by these two respondents before BDA for abiding terms and conditions of both condition No 4 of the lease-cum-sale agreement and the allotment Rules. Such action shall be completed by BDA within a period of three months from today.
76. Writ petition allowed and rule made absolute to the extent indicated above.
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