Karnataka High Court
Dr. M. Srinivas vs Corporation Of The City Of Bangalore on 2 March, 1989
Equivalent citations: ILR1989KAR1166, 1989(1)KARLJ357
ORDER Balakrishna, J.
1. This is a Writ Petition of an Opthalmologist whose wife is also a medical practitioner. The petitioner proposed to construct a nursing home for the benefit of the citizens of the locality on site No. 161, 18th Cross, Magadi Cross Road, Vijayanagar, Bangalore and obtained a licence from the respondent-Corporation which sanctioned the plan and granted licence on 28-9-1985 in LP. No. 2668/84-85. After obtaining the approved plan and licence, the petitioner commenced construction of the front portion of the building according to the sanctioned plan on the northern and western side. According to the petitioner he had already spent a sum of Rs. 10,000,00/- for completion of the basement and ground-floor. He completed the construction work in July 1986. It is stated that flooring, plastering, white washing and other works have already been carried out and that rolling shutters have also been fixed to the ground-floor portion. The petitioner thereafter applied to the Karnataka Electricity Board for supply of electricity and also approached the respondent for permission to cut the road. Having obtained the road cutting permission, the Electricity Board provided electricity connection to the petitioner's premises.
2. When the petitioner was getting ready to set up the Nursing Home, he was surprised by a letter dated 9-8-1986, being a notice issued by the respondent to the petitioner stating that he had violated the Bye-laws of the Corporation in the matter of regulating the setback. However, it is pointed out by the petitioner that the notice does not specify any encroachment of the set-back and that the notice was rather ambiguous.
3. The petitioner received one more notice dated 18-9-1986 threatening action under Section 462 or under Section 463 of the Karnataka Municipal Corporation Act. However, according to the petitioner, this notice also did not clarify the area in respect of which the petitioner had violated the Bye-laws or constructed contrary to the Bye-laws. The petitioner gave a petition to the Building Sub-Committee, and on receipt of it, the sub-Committee granted an order of stay on 20th August, 1986 pending consideration of the petition. On 21-10-1986, the petitioner was duly informed that his petition will be taken up for hearing on 23-10-1986 and he was called upon to appear before the Town-Planning and Development Committee on the said date. On 23-10-1986, the petitioner appeared before the Committee on the said date. On 23-10-1986, the petitioner appeared before the Committee and requested for spot-inspection and also asked the Committee to show where the encroachment had taken place. But the sub-Committee by Resolution No. 9(29) decided that the building was not in accordance with the plan and demolition had to be carried out as desired by the Corporation. On 12-11-1986, it is stated that a Corporator made a representation on behalf of the petitioner to the Mayor to compound the offence under Section 27 of the Karnataka Municipal Corporation Act but it was unsuccessful.
4. Aggrieved by the action of the Corporation under Annexures 'C' arid 'G' for want of alternative remedy, the petitioner approached this Court.
5. The short point for consideration is, whether Annexures C and G are liable to be quashed as being contrary to law and being devoid of justification.
6. There 's no doubt about the fact that the deviation complained of by the Corporation (respondent) is hardly 155.75 sq.mts. In other words, the deviation which is open to question is in excess of the permissible limit by 155.75 sq.mts. It is this deviation which is the source of mischief on the basis of which the respondent has taken exception.
7. It is no doubt true that the controversy is only between an individual rate payer and the Corporation of the City of Bangalore and that it is not a public interest litigation by any means. What is involved in this Writ Petition is the legal right of the petitioner to be free from interference from the respondent in the matter of construction and enjoyment of his legal right which arose out of the approved plan and licence granted by the respondent itself for the construction of a Nursing Home and for carrying on public dispensation of nursing service by the petitioner.
8. There is also no dispute about the fact that if the deviation did not exceed 5 per cent of the permissible limit, the respondent would not object to such a deviation, provided, the deviation was compounded in accordance with the regulation of the Corporation. Compounding beyond 5 per cent limit is beyond the scope of compounding under the Regulations The question is narrowed down only to the deviation of 155.75 sq.mts. beyond the compounding limit and what has to be considered is whether this extent of deviation would be inconsistent with the requirements of reasonableness for the purpose of being compounded if the petitioner is willing to have it compounded and also if the respondent is agreeable to extend the concession of compounding.
9. The only reason given by the respondent leading to the impugned action is, that the deviation exceeds 5 percent which means that if it had not exceeded 5 per cent, the Corporation would not have issued orders which are Impugned in this Writ Petition.
10. Taking into account the objectionable excess of 155.75 sq.mts. it is difficult to say that the extent of deviation is so unreasonable that it would not be unfair to repudiate the privilege to compound it. In other words, if this Court were to reach the conclusion that the alleged excess area is not so significant as to be regarded as unreasonably excessive, there should be no hesitation in granting relief to the petitioner. Such a determination would fall within the pale of judicial discretion and that is exactly what was recognised and acted upon in the case of RAJATHA ENTERPRISES v. S.K. SHARMA AND ORS.. The relevant portion of the ruling of the Supreme Court is excerpted:
"We have perused the records and considered the arguments on both sides. We not hot satisfied that, on the facts and in the circumstances of this case, the learned Judges of the Division Bench of the High Court were justified in permitting and much less directing the demolition of the 6th floor. On the facts found, there is neither justice nor equity in authorising the demolition. The total site area being 15517 sq. ft. as found by the High Court, and the permissible FAR in relation to the site area being 38792 sq.ft., as against the determined area of 45974 odd sq, ft., the excess FAR is only 7182 sq.ft., when an area of 4500 sq.ft., occupied by the school is excluded from the excess area of 7182 sq.ft., by reason of the school having vested in the Government upon the completion of the building the actual excess area in the possession and enjoyment of the appellant is only 2682 sq.ft. The permissible limit of compounding being 5 per cent of the permissible FAR, which works out to 1940 sq.ft., the actual area of deviation outside the permissible compounding limit seems to be not larger than 742 sq.ft. In the circumstances, in the light of what the Commissioner says about the practice of the Corporation in regard to the commencement certificate and in the absence of any evidence of public safety being in any manner endangered or the public or a section of the public being in any manner inconvenienced by reason of the construction of the building, whatever may be the personal grievance of the 1st respondent, the High court was not justified, at the instance of the 1st respondent claiming himself to be a champion of the public cause, in ordering the demolition of any part of the building, particularly when there is no evidence whatsoever of dishonesty or fraud or negligence on the part of the builder. See the principle stated by SABYASACHI MUKHARJI J. in RAMSHARAN AUTYANUPPSI AND ANR. v. UNION OF INDIA (1988(2) SCALE 1399 and by KHALID J. in S. PANDEY AND ANR. v. STATE OF WEST BENGAL. AND ORS. AIR 1987 SC 1109. Accordingly, we set aside the impugned order of the High, Court in so far as it permits or directs the demolition of the 6th floor, and affirm the rest of the order."
11. I may hasten to add that in the instant case there are no allegations of any public inconvenience by reason of deviation nor even a demur by any citizen or rate-payer living in the vicinity of the building in question. Whereas, in the decision rendered by the Supreme Court, the actual area of deviation outside the permissible compounding limit was not larger than 742 sq.ft., In the instant case, it is still smaller being, 155.75 sq.mts.
12. In a situation like this, it would be both unfair and unreasonable if the respondent is allowed to go ahead with the implementation of the threatened action under Annexures C and G. Applying the ratio of the decision in the case decided by the Supreme Court as mentioned above, I allow this Writ Petition and direct the respondent to apply the principle of compounding to the alleged excess area of 155.75 sq.mts. and permit the petitioner to complete the construction in accordance with the licence and the approved plan.
13. The Writ Petition is therefore allowed and Annexures 'C' and 'G' are hereby quashed. In the circumstances, there will be no order as to costs.