Karnataka High Court
K. Ananda Mohan And Another vs The Corporation Of The City Of Bangalore ... on 1 July, 1998
Equivalent citations: 1999(1)KARLJ507
ORDER
1. The respondents 3 and 4 after obtaining the license and getting the plan approved constructed the building on premises bearing Nos. 37 and 37/1 at Richmond Road, Bangalore-560025. Since the construction put up by the respondents 3 and 4 is contrary to the approved plan and the building regulations, the proceedings were initiated by the Corporation as against the respondents 3 and 4. Ultimately, the Corporation found the respondents 3 and 4 have put up construction contrary to the approved plan and the building regulations accordingly ordered for demolition to the extent of deviation in the construction. This order was challenged by the respondents 3 and 4 by way of appeal before the Standing Committee. The Standing Committee regularised the deviation estimating the said deviation at 16.85%. This order is under challenge by the petitioners in this writ petition.
2. Sri L. Govindaraju, learned Counsel for the petitioners submitted that on an earlier occasion in the very proceedings this Court observed as follows:
"If the Standing Committee had found that the deviation was more than 5% it could not have regularised the deviation beyond 5 per cent in view of the Bye-law 5.6.1 of the Bye-laws".
Contrary to this observation made by this Court the Standing Committee has regularised the deviation estimating at 16.85%. This shows the Standing Committee has not applied its mind to the facts of the case and with a total disregard to the observation made by this Court and also the bye-laws have regularised the unauthorised construction which is admittedly beyond 5% which in my opinion is not correct.
3. Learned Counsel for the Corporation Sri Ashok Harnahalli submitted that the Standing Committee pursuant to the Government Circular dated 14th June, 1996 regularised the unauthorised construction even though it is beyond 5% since the Government Circular permits regularisation upto 25%. Section 295 of the Karnataka Municipal Corporations Act provides for framing of the bye-laws. Under this section Corporation may frame bye-laws in order to regulate construction of the building with the approval of the Government. In exercise of this power Corporation has framed bye-law with the approval of the State Government which provides for regulating erection of the building in the City of Bangalore. Bye-law 5.6.1 of the City of Bangalore Municipal Corporation Building Bye-laws, 1983 reads as follows:--
"5.6.1 Wherever any construction is in violation/deviation of the sanctioned plan, the Commissioner may, if he considers that the violation/deviations are minor viz., only when the deviation/violation is within 5% of (1) the minimum set back to be left around the building, (2) the maximum plot coverage, (3) permissible floor area ration and maximum height of the building and that the demolition under Chapter XV of the Act is not feasible without affecting the structural stability, then he may regularise such violations/deviations by sanctioning of a modified plan with a levy of a suitable fee to be prescribed. The Commissioner shall come to such conclusion only after recording detailed reasons for the same. Violations/deviations under the provision shall not include the buildings which are constructed without obtaining any sanctioned plan whatsoever and also the violations/deviations which are made in spite of the same being specifically deleted or rejected in the sanctioned plan".
From a reading of the abovesaid bye-law it is clear that the Corporation may regularise the unauthorised construction only to the extent of 5% and not beyond. The circular issued by the Government authorising the Corporation to regularise the construction upto 25% is inconsistent with the bye-law. Therefore the circular is to be ignored, as the bye-law prevails over the circular. Hence, the Standing Committee was not right in regularising the construction contrary to building bye-laws.
4. It is an admitted fact that the deviation in the construction is estimated at 16.85%. Under the bye-law referred to above, the Corporation has the power to regularise only upto 5%. Therefore, I will restrict the order of regularisation made by the Standing Committee to the extent of 5% only. The remaining unauthorised portion is required to be demolished by the respondents 3 and 4. In the event if the respondents 3 and 4 fail to demolish the building beyond 5% as indicated above the Corporation shall take immediate steps to demolish the same. In the result, I pass the following order:
Writ petition is allowed. The order of regularisation passed by the Standing Committee is modified and the regularisation is restricted only to the extent of 5%. The respondents 3 and 4 are directed to demolish the portion of unauthorised construction beyond 5% within three months from today. If in the event the respondents 3 and 4 fail to demolish the building as directed above within the period specified, the Corporation is directed to demolish immediately thereafter and recover the cost incurred by the Corporation for demolition. Since the Standing Committee has regularised the construction upto 16.85% ignoring the observation made by this Court and has decided the case contrary to the building bye-laws, the Corporation shall pay a sum of Rs. 10,000/- as cost to the petitioner. However it is open for the Corporation to recover the said amount from the persons who passed the order in ignorance of the observation of this Court and the building bye-laws.