Karnataka High Court
Floriana Estate Apartment Owners vs The Commissioner on 16 March, 2021
Bench: Alok Aradhe, Nataraj Rangaswamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 16TH DAY OF MARCH 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
W.A. NO.3070 OF 2018 (LB-BMP)
IN
W.P. NO.13214 OF 2018 (LB-BMP)
BETWEEN:
FLORIANA ESTATE APARTMENT OWNERS
WELFARE ASSOCIATION
(REG.NO.154/05-06)
#53, SARJAPURA ROAD
KORAMANGALA 3RD BLOCK
BENGALURU-560034
REP. BY ITS AUTHORISED SIGNATORY.
... APPELLANT
(BY MR. VIVEK S. REDDY, SR. COUNSEL A/W
MR. DILLI RAJAN, ADV., FOR
MR. K.N. SUBBA REDDY, ADV.,)
AND:
1. THE COMMISSIONER
BENGALURU DEVELOPMENT AUTHORITY
BENGALURU.
2. THE COMMISSIONER
BBMP, BENGALURU.
3. THE JOINT DIRECTOR OF TOWN PLANNING-SOUTH
(PREVIOUSLY JOINT DIRECTOR OF TOWN PLANNING)
B.B.M.P., BENGALURU.
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4. THE ASSISTANT DIRECTOR OF TOWN PLANNING
BANGALORE SOUTH
B.B.M.P, BENGALURU.
5. M/S KOLTE PATIL DEVELOPERS LIMITED
BEING A COMPANY INCORPORATED UNDER THE
COMPANIES ACT 1956, HAVING ITS
REGISTERED OFFICE AT NAVIPETH
DISTRICT JALAGAON
MAHARASHTRA 048.
REPRESENTED BY ITS DIRECTOR
SRI. NARESH PATIL
AGED ABOUT 54 YEARS
HAVING THE ABOVE SAID ADDRESS
AS MENTIONED IN THE CAUSE TITLE.
CORPORATE OFFICE AT:
#121, 10TH FLOOR
THE ESTATE, DICKENSON ROAD
BESIDE MANIPAL CENTRE
BENGALURU-560001.
6. M/S. ANKIT ENTERPRISES
(A REGISTERED PARTNERSHIP FIRM)
HAVING OFFICE AT # 121, 10TH FLOOR
THE ESTATE, DICKENSON ROAD
BESIDE MANIPAL CENTRE
BENGALURU-560001.
REPRESENTED BY ITS PARTNERS
SRI. RAJESH PATIL
AND SRI. NARESH PATIL
AGED ABOUT 54 YEARS
HAVING THE ABOVE SAID ADDRESS
AS MENTIONED IN THE CAUSE TITLE.
... RESPONDENTS
(BY MR. K.N. PUTTEGOWDA, ADV., FOR R2-R4
MR. K. KRISHNA, ADV., FOR R1
MR. G.L. VISHWANATH, ADV., FOR R5 & R6
MR. ASHOK HARANAHALLI, SR. COUNSEL A/W
MR. VINAYAKA B, ADV., FOR R5)
---
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THIS W.A. IS FILED UNDER SECTION 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED
25.9.2018 IN WP 13214/2018 (LB-BBMP) AND ALLOW THE WRIT
PETITION AS PRAYED FOR.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, ALOK ARADHE J., DELIVERED THE
FOLLOWING:
JUDGMENT
In this intra court appeal under Section 4 of the Karnataka High Court Act, 1961 the appellants have assailed the validity of the order dated 25.09.2018 passed by the learned Single Judge by which writ petition preferred by the appellant has been dismissed with cost of Rs.1 Lakh. In order to appreciate the appellant's challenge to the impugned order, few facts need mention, which are stated infra:
2. The appellant is an Association of Apartment Owners viz., M/s Flourina Estate Apartment Owners Welfare Association. The respondent No.5 is a builder (hereinafter referred to as 'the builder' for short) whereas, respondent No.6 is a partnership firm 4 (hereinafter referred to as 'the firm' for short), which deals in real estate business. One Smt.Rukmini Devi Prasad was the owner of land bearing Sy.No.53/1 measuring 5607.22 square meters and land bearing Sy.No.53/2 measuring 5953.05 square meters, situate at Jakkasandra, Koramangala, Bangalore. The aforesaid Smt.Rukmini Devi Prasad applied for change of land use and permission to change the land use was granted on 19.09.1994 in respect of land bearing Sy.No.53/1 and Sy.No.53/2 from industrial sector to residential purpose under Section 15(1) of the Karnataka Town and Country Planning Act, 1961 for Group Housing Scheme.
Thereafter, the builder applied for sanction of a Group Housing Scheme which was approved by Joint Director, Town and Country Planning vide order dated 16.02.2001. The aforesaid sanction plan was approved in respect of land bearing Sy.No.53/2 with two approach roads which were to be used as exit and entry points which were of 6 meters in width. The Builder thereafter 5 constructed a residential complex viz., M/s Flourina Estate Apartment Owners Welfare Association and on completion of the construction, occupancy certificates were issued by Joint Director of Town and Country Planning on 19.01.2004 and 22.11.2004 respectively. Thereafter, the Khata was bifurcated by the Assistant Revenue Officer, Koramangala by which the land bearing Sy.No.53/1 and Sy.No.53/2 was sub divided on 26.09.2005. Thereafter the builder obtained sanction for a separate building plan from Joint Director, Town and Country Planning for construction of commercial complex in front of land bearing Sy.No.53/1. A sale deed was executed by the owner of Sy.No.53/1 and Sy.No.53/2 viz., Smt.Rukmini Devi Prasad Verma and Mr.C.A.Joseph in favour of respondent No.6 viz., partnership firm and in the aforesaid sale deed, the respondent No.5, builder was a consenting party to the sale deed.
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3. One of the resident's of M/s Flourina Estate Apartment Owners Welfare Association viz., Ashok Kumar Pati challenged the sanction plan dated 26.09.2005 in a writ petition viz., W.P.No.18396/2006. In the aforesaid writ petition, the builder filed a memo and furnished an undertaking that it would not raise any construction according to the building plan, which was under challenge on 28.08.2009. Thereafter, by a communication dated 24.05.2010, the Joint Director, Town and Country Planning, Bruhat Bangalore Mahanagara Palike (hereinafter referred to as 'the BBMP' for short) asking whether the bifurcation certificate is required to be obtained from Bangalore Development Authority (hereinafter referred to as 'the Authority' for short) before issuance of sanction plan. A reply was sent on 21.06.2010 to the aforesaid query by the Town Planning member of Authority stating that prior order of bifurcation of site is necessary in accordance with Bangalore Development Authority bye laws but as the 7 possession has already been granted, the opinion was withheld. Another communication was sent by the Joint Director, Town and Country Planning, BBMP on 30.07.2010 in which a query was raised whether sanction plan can bee issued on based on special notice for bifurcation of Khatha issued on 26.02.2005. Thereafter, sanction to the building plan by the Assistant Director, Town Planning , BBMP to construct club house, which was later on withdrawn and occupancy certificate was denied based on objections of the appellant. Thereafter, the Commissioner, BBMP and Joint Director, BBMP sanctioned yet another building plan on 23.03.2011 to construct commercial building in front of portion bearing Sy.No.53/1.
4. Another writ petition was filed viz., W.P.No.49732/2012 by some of the residents viz., Amith Bannerjee and 16 others in which challenge was made to the sanction plan dated 23.03.2011. The aforesaid writ petition was decided by the learned Single 8 Judge by an order dated 26.03.2013 and following directions were issued:
(i) Though I see no reason to quash the impugned NOC and the sanction plan, the third respondent is directed to reconsider the compliance regarding means of access by re-
visiting item-10B(1) of the NOC dated 23.01.2009 by recording satisfaction with regard to width of the abutting road by adopting the method for determination as discussed and indicated in paragraphs 24 to 27 of this order.
(ii) On such determination, if the
requirement is satisfied, the NOC dated
23.01.2009 granted shall be reaffirmed or else necessary reasoned order be passed in that regard.
(iii) The said exercise shall be completed by the third respondent within two weeks from the date of receipt of a copy of this order.
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(iv) Until the said exercise is completed by the third respondent, the respondents No.4 to 6 shall not proceed with the construction.
(v) if the NOC is re-affirmed by the third respondent, the respondent Nos.1 and 2 shall thereafter ensure that the construction is proceeded only in accordance with the requirements of the NOC and sanction plan.
(vi) The petitions are disposed of with the above directions.
5. The Department of Fire and Emergency Services of BBMP sent a communication dated 09.04.2014 recommending the acceptance of change of width of the road on the eastern side of the property from 6 meters to 9 meters. The firm applied for sanction of a building plan, which was approved by Joint Director, Town and Country Planning, BBMP on 21.09.2016 for construction of front portion on Sy.No.53/1. In response to the application filed by member of the appellant 10 Association under the provisions of Right to Information Act, 2005 the Joint Director, Town and Country Planning, BBMP stated that no fresh or modified plan was issued to the builder in respect of Sy.No.53/1 and Sy.No.53/2. The aforesaid sanction plan was challenged by the appellant in a writ petition before the learned Single Judge viz., W.P.No.13214/2018. The said writ petition was dismissed by the learned Single Judge vide order dated 25.09.2018 on the ground that the appellant Association is out to misuse and abuse the process of law by launching spree of litigation against the builders. It was further held that at every stage, the appellant has invoked the writ jurisdiction of this court to ensure that construction being raised under a duly sanctioned plan is hampered one way or other. It was also held that not only two writ petitions were filed by appellant and were disposed of by this court but also two civil suits are pending trial. It was also held that BBMP has already considered the entire matter and has 11 sanctioned the building plan in accordance with bye laws and Rules and the practices adopted by the appellant deserves to strongly deprecated and put down with iron hands of justice. Accordingly, the writ petition was dismissed with exemplary cost of Rs.1 Lakh to be deposited by the appellant. In the aforesaid factual background, this appeal has been filed.
6. Learned Senior counsel for the appellant submitted that Sy.No.53/1 and Sy.No.53/2 measuring 11,560 square meters of Jakkasandra Village, Begur Hobli, Sarjapur Road, Koramangala comprises composite property. It is pointed out while referring to Annexure-C to the writ petition that the builder developed the said property and in the year 2001, obtained composite plan for both survey numbers and constructed a residential apartment on land bearing property No.53/1 and sold the same to 103 members of the appellant Association. It is also pointed out that occupancy certificate was granted in respect of property No.53/1 and 53/2 on 12 16.01.2004 and 22.11.2004 by which ingress and aggress was provided by way of roads measuring 6 feet in width on the property on either side. It is also urged that in the year 2016, the firm by suppressing the fact of the sanction plan obtained on 16.02.2001, once again the got a plan sanctioned on 21.09.2016. It is further submitted that the aforesaid sanction plan was issued in violation of Section 17 of the Town and Country Planning Act, as well as building bye laws and zoning regulations. It is also urged that without seeking modification of the whole sanction plan BBMP could not have accorded sanction to the new plan in the year 2016. It is also pointed out that the partners in the firm are the same who were directors in the builder.
7. It is further submitted that the subsequent building plan issued on 21.09.2016 has been obtained by suppression of facts and by playing fraud. It is further submitted that ingress and aggress which was provided by roads of 6 meters in width has been taken 13 away by the new plan and therefore, sanction plan constitutes violation of the old plan and Regulations of the BBMP Bye laws. It is submitted that there is no bifurcation under Section 17 of the Act and in statement of objections filed in writ petition No.7807/2019 pertaining to same sanction plan, the BBMP has admitted the aforesaid facts. It is also pointed out that new master plan Regulation of 2015 stipulates that there must be minimum road of 30 meters width for developing plot of the size of 4000 to 20000 square meters and such a big size requires 30 meters road in width compulsorily and the same cannot be developed without adherence to section 17 of the Town and Country Planning Act, 1961. it is further submitted that the firm has unjustly enriched itself by obtaining the plan and has converted the excess road area to its development land which effectively means that it has been granted 3.2 width FAR and has sold the earlier road to the purchaser.
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8. It is also urged that no right to register Khata can arise until and unless a plot has been sub divided under Section 17 of the Town and Country Planning Act, 1961 and a Khata cannot be secured without adherence to Section 17 of the Act. It is also urged that from perusal of Clause 3.2.10 of the Bangalore Mahanagara Palike Building Bye Laws, it is evident that Section 17 of the Act applies to the plot as well and is not confined in its operation to layout alone. It is also pointed out that aforesaid clause mentions the documents, which are required to be obtained from the applicant who seeks sanction of the plan. Reference has also been made to clause 3.8 of the Revised Master Plan, 2015 and it has been contended that means of access to high rise building has to be provided on a thorough fare of 12 meters in width and this road has to be approved by the Authority and maintained by the local Authority. It is also submitted that the firm has illegally developing the front portion and has thereby diminished the rights of 15 the residents in hind portion of the property viz., land bearing property No.53/1. It is further submitted that right to develop the land is a constitutional right as guaranteed under Article 300A of the Constitution of India. In support of aforesaid submissions, reliance has been placed on decisions in DIPAK KUMAR MUKHERJEE VS. KOLKATA MUNICIPAL CORPORATION AND OTHERS, (2013) 5 SCC 336, T.VIJAYALAKSHMI AND OTHERS VS. TOWN PLANNING MEMBER AND ANOTHER, (2006) 8 SCC 502, DECISION OF ALLAHABAD HIGH COURT IN EMERALD COURT OWNER RESIDENT WELFARE ASSOCIATION VS. STATE OF U.P. THRU SECY. AND OTHERS, AND DECISION OF THIS COURT IN J.VENKATESH VS. COMMISSIONER, B.B.M.P., 2016 SCC ONLINE KAR 8293, SMT.NEHA VS. THE COMMISSIONER AND OTHERS, W.P.NO.27012/12 DATED 23.08.2012.
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9. On the other hand, learned counsel for respondent No.6 - firm submitted that respondent No.6 is the absolute owner and is in possession of land of Sy.No.53/1 situated Jakkasandra Village, Begur Hobli, Bangalore South Taluk. It is further submitted that the aforesaid land has been purchased by the firm vide registered sale deed dated 31.1.2007 and the khata in respect of said property is in the name of the firm. It is pointed out that the firm is constructing a residential apartment as per the plan sanctioned on 21.09.2016. It is also submitted that the firm has constructed 5 floors and has registered the project with Real Estate Regulatory Authority. It is also urged that appellant has no locus standi to question the sanction plan as the Apartment complex in respect of which appellant has claimed right is situated on Sy.No.53/2 and its residents have undivided share in Sy.No.53/2. It is pointed out from the record that land has been sanctioned in favour of the firm in respect of land bearing Sy.No.53/1 and 17 land bearing Sy.No.53/1 and Sy.No.53/2 are distinct parcels of land having been bifurcated in the year 2004 and challenge made by the appellant to the bifurcation has not been successful and appellant is in no way aggrieved with the issuance of the plan dated 29.9.2016 sanctioned in favour of the firm. It is also urged that writ of certiorari cannot be invoked to quash the permission granted by the Corporation as the same can be issued against action of judicial or quasi judicial bodies for exercise of quasi judicial power. It is contended that issuance of sanction plan is permission / licence granted by the BBMP under Section 299 of the Karnataka Municipal Corporation Act which is in the nature of administrative power of BBMP. Therefore, the writ of certiorari cannot be issued to quash the sanction plan.
10. It is also contended that the appellant has not exhausted the alternative remedy as the appellant has not made any complaint to the BBMP before 18 approaching this Court. It is also pointed out that BBMP has the power to issue notice under Section 308 and 321 of the Karnataka Municipal Corporation Act to the person putting up such a construction if it deems fit and such matters have to be contested before Karnataka Appellate Tribunal or by way of a civil suit. It is also pointed that during the pendency of this writ appeal the appellant has made a representation before the BBMP in the year 2019 in which grievance was made with regard to the sanction plan which has been questioned before the learned Single Judge. The BBMP has, on the basis of the complaint, made by the appellant, has issued notice to the firm to stop construction. The aforesaid communication is subject matter of W.P.No.7807/2019 and is pending before the learned Single Judge, therefore, this appeal is prematured. It is also urged that the appellant is in the habit of filing frivolous petitions to ensure that the firm does not put up 19 construction on the property and the appellant is meddlesome interloper without any genuine grievance.
11. It is also pointed out that the appellant had challenged the sanction plan dated 16.02.2001 in W.P.No.49732/2012 on the ground that apartment complex provided for 6 meter drive way for entry from Sarjapur Road and a separate 6 meter exit drive way but entry and exit to the apartment is only through a single drive way of 9 meters, the aforesaid drive way did not comply with fire safety norms and therefore NOC issued by Fire Force Department is invalid. The said writ petition was dismissed on 26.03.2013, wherein learned Single Judge of this court held that there is no reason to quash the sanctioned plan and directed the Fire Force Department to ensure compliance regarding NOC by re visiting the property and to re affirm the NOC if the same is satisfactory. The Fire Force Department has re affirmed the NOC issued vide letter dated 26.04.2014 and therefore, the challenge to the plan dated 20 26.02.2001 has been failed. It is also pointed out that in W.P.No.24071/2017 Association sought a writ of mandamus to adhere to the sanction plan dated 26.02.2001 and to direct the builder to complete the construction of the retention wall in Sy.No.53/1 an Sy.No.53/2. The aforesaid writ petition was disposed of by learned Single Judge of this court vide order dated 10.01.2018 holding that retention wall has been constructed by builder and the same is subject matter of challenge in W.A.No.769/2018. It is also submitted that O.s.No.2926/2018 against the Association for a permanent injunction is pending restraining it from interfering with the said property as well as O.S.no.2552/2018 which is a suit filed by the appellant seeking the relief of permanent injunction which pertains to Sy.No.53/2 only and fortifies the fact that Sy.No.53/1 and 53/2 are distinct parcels of land.
12. It is submitted that total sital area of 53/1 and 53/2 prior to bifurcation was 11560.27 square 21 meters and the apartment complex is constructed only on a total erstwhile sital area and remaining portion of the erstwhile 53/1 and 53/2 is lying south of the area on which apartment complex has been constructed have been further bifurcated and assigned new No.53/1. The area on which apartment has been constructed is 5953.05 square meters and has been assigned new No.53/2. The bifurcation has come into force on 01.10.2004. It is also pointed out that the apartment complex has been constructed and the site has been bifurcated and assigned new number 53/1 has been stated in the sale deed executed in favour of the members of the appellant Association. It is also pointed out that the bifurcation was called in question by the appellant and the challenge was repelled by the joint commissioner some time in the year 2015 and 2016 and it has attained finality. It is further submitted that belated challenge to bifurcation is not permissible at this stage. It is also argued that the appellant has not 22 demonstrated any prejudice which has caused to it on account of bifurcation of the remaining land over which it does not have any right.
13. It is also contended that there has never been two drive ways of 6 meters each to approach the apartment complex and there has always been a drive way of 9 meters from the eastern side of the apartment. The learned Single Judge has refused to quash the sanction plan and the order passed by the learned Single Judge in W.P.No.49732/2012 dated 26.02.2013 has attained finality. It is also argued that there is drive way of 9 meters which means that the owners of the apartment complex have an access to the main road i.e., Sarjapur Road and FAR is determined on the basis of public road available to approach the apartment complex and not the means of access of 9 meters. It is submitted that the builder has constructed the apartment complex as per the sanction plan dated 16.02.2001 and therefore, the contention of the 23 appellant that the firm has suppressed the sanction plan dated 16.02.2001 to secure the impugned plan is wholly untenable. It is also submitted that it is incorrect to state that firm was created only to develop the property and to secure the plan. It is lastly urged that the writ appeal deserves to be dismissed with exemplary cost. It is also pointed out that the decision of the Allahabad High court relied upon by learned Senior counsel for the appellant has been stayed by the Supreme Court vide order dated 05.05.2014 passed in SLP (CC) No.6754/2014 (DHIRENDER SHARMA AND ORS. VS. EMERALD COURT OWNERS RES. WEL. ASSOC. AND ORS.). In support of aforesaid submissions, reliance has been placed on decision of the Supreme Court in GREATER KAILASH II WELFARE ASSOCIATION VS. DLF UNIVERSAL LTD. AIR 2007 SC 1938 AND A DECISION OF THE DIVISION BENCH OF THE DELHI HIGH COURT IN DLF 24 UNIVERSAL LTD. VS. GREATER KAILASH II WELFARE ASSOCIATION, 127 (2006) DLT 131.
14. We have considered the submissions made on both sides and perused the record. Before proceeding further we may refer to the well settled legal principles. The law recognizes the right of person to construct residential houses in the residential area subject to the terms and conditions of the statute governing the same. The Town Planning legislations are regulatory in nature. The right to property of a person would include right to construct a building. An illegal and unauthorized construction of building and other structures not only violate the municipal laws and the concept of land development of the particular area but also affect fundamental rights and constitutional rights of other persons. In Dipak Kumar Mukherjee supra, the Supreme Court has taken note of menace of illegal and unauthorized construction of buildings and other structures in different parts of the country and has held 25 that such an activity has acquired monstrous proportion. It is well settled proposition that in administrative matter the court should ordinarily defer the decision to the administrators unless decision is clearly illegal and shockingly arbitrary and the court cannot sit in appeal over the decision of the executive. The doctrine of Res Judicata and Constructive Res Judicata as enshrined in section 11 of the Code of Civil Procedure applies to the writ proceeding as well.
15. After having noticed the legal position we may advert to the facts of the case in hand. The issues which arise for consideration in this appeal in view of submissions made at the bar are as follows:
i) Whether a composite plan was prepared in respect of lands situate in survey no. 53/1 and 53/2 which show the exit and entry road of six meters each?
ii) Whether the plan which was sanctioned on 21.09.2016 was obtained by 26 suppression of earlier sanctioned plan dated 16.02.2001?
iii) Whether the sanctioned plan dated 21.09.2016 has been issued in violation of section 17 of Karnataka Town and Country Planning Act, 1961, the building bye laws, and zoning regulations?
iv) Whether there has been a bifurcation of the plot under section 17 of the Act?
v) Whether the writ petition filed by the association was barred on the principles of Constructive Res Judicata and Res Judicata?
vi) Whether this court can examine the validity of the sanction plan in this proceeding which emanates from an order passed by the learned single judge in exercise of powers under article 226 of the Constitution?
16. The learned single judge has dismissed the writ petition and has assigned the following reasons for dismissing the writ petition preferred by the appellant: 27
8. Having heard the learned counsel for the parties, this court is of the considered opinion that the petitioner-Association seems to be out to misuse and abuse the process of law by launching of spree of litigation against these private Respondents-Builders. At every stage, they have ensured by invoking the Court jurisdiction that the construction being raised under a duly sanctioned plan is hampered one way or the other. Not only two writ petitions came to be filed by them and were disposed of by this Court, but the two civil suits are also pending trial and the issue remains. One, namely, the construction being raised by Respondent No.5-M/s Kolte Patil Developers Limited. The competent public body namely BBMP has already considered the entire matter and sanctioned the building plan in accordance with the bye laws and Rules and at least once, upon the specific direction of the learned Single Judge of this Court.
17. Thus from perusal of para 8 as well as the order passed by the learned single judge it is evident that learned single judge without adverting to the issues 28 raised by the appellant has dismissed the writ petition. In other words, there is no finding on merits of the issues raised by the appellant.
[
18. It has rightly been contended by learned counsel for respondent no. 6, while referring to division bench decision of Delhi High Court in DLF Universal Limited supra, which has been affirmed by the Supreme Court in Greater Kailash Part II Welfare Association and Ors., this court cannot sit in an appeal over the decision by an executive authority and the decision in administrative matters should be referred to the judgment of the administrators. We may refer to relevant extract of para 76 of the order passed by the division bench of Delhi High Court in DLF Universal Limited supra which was referred to by learned counsel for respondent no. 6 which reads as under:
"In administrative matters the Court should Therefore ordinarily defer to the judgment of 29 the administrators unless the decision is clearly illegal or shockingly arbitrary".
19. We are aware of the fact that the power of remand has to be exercised sparingly, rarest of rare cases and when the writ petition has not been heard on merits [See: 'TOWN HOUSE BUILDING CO-
OPERATIVE SOCIETY LTD. V. SPECIAL DEPUTY COMMISSIONER, AIR 1988 KARNATAKA 312 (FB)]. Even though prima facie we find the submission made by learned counsel for respondent No.6 that the controversy raised by association has to be put to rest, however in peculiar facts and circumstances of the fact we are unable to do so as the learned single judge has not dealt with matter on merits and we cannot sit in appeal in respect of a decision taken by an administrative authority with regard to sanction of a map, particularly when determination of aforesaid issue requires factual adjudication which cannot be done in this summary proceeding. So far as issue No.5 whether 30 the writ petition filed by the association was barred on the principles of res judicata or constructive res judicata, suffice it to say that in the earlier writ petition, the subsequent building plan was not in question and the appellant was informed by communications dated 20.03.2017 and 24.05.2017 by the Joint Director of Town Planning, BBMP that in reply to the application under the Right to Information Act, 2005 that no fresh or modified plan was issued to the builder. Therefore, it appears that the fact of issuance of the subsequent plan on 21.09.2016 was not in the knowledge of the appellant in previous round of litigation. Therefore, the we hold that the writ petition was not barred by either on the principles of res judicata or constructive res judicata. In the peculiar facts of the case since the issues referred to supra namely issue nos. (i) to (iv) and
(vi) involve factual adjudication, we cannot deal with the issue of validity of the sanction plan dated 21.09.2016. 31
20. We may hasten to add here that the appellant has a remedy under Section 308 and 321 of the Karnataka Municipal Corporation Act, 1976. Section 308 and 321 of the Act read as under:
"308. Power of Commissioner to require alteration of work.- (1) If the Commissioner finds that the work,-
(a) is otherwise than in accordance with the plans or specifications which have been approved; or
(b) contravenes any of the provisions of this Act or any rule, bye-law, order or declaration made under this Act, he may by notice require the owner of the building within a period state either,-
(i) to show cause why such alterations should not be made; or
(ii) to make such alterations as may be specified in the said notice with the object of bringing the work into conformity with the said plans, specifications or provisions.32
(2) If the owner does not show cause as aforesaid he shall be bound to make the alterations specified in such notice.
(3) If the owner shows cause as aforesaid the Commissioner shall by an order cancel the notice issued under sub-section(1) or confirm the same subject to such modifications as he may think fit.
"321. Demolition or alteration of buildings or well work unlawfully commenced, carried on or completed.- (1) If the Commissioner is satisfied,-
(i) that the construction or re-construction of any building or hut or well,-
(a) has been commenced without obtaining his permission or where an appeal or reference has been made to the standing committee, in contravention of any order passed by the standing committee; or
(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or 33
(c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or
(ii) that any alternation required by any notice issued under Section 308, have not been duly made; or
(iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of Section 320, he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to brig the work into conformity with the Ac, rules, bye-laws, directions or requisitions as aforesaid, or 34 with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut.
(2) The Commissioner shall serve a copy of the provisional order made under sub-section(1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.
(3) If the owner or builder fails to
show cause o the satisfaction of the
Commissioner, the Commissioner may
confirm the order, with any modification he may think fit and such order shall then be binding on the owner.
(4) If the construction or reconstruction of any building or hut is commenced contrary to the provisions of Section 300 or 314 and the Commissioner is of the opinion that immediate action should 35 be taken, then notwithstanding anything contained in this Act, a notice to be given under sub-Section (2) shall not be of less duration than twenty-four hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the near such building or hut accompanied by beat of drum, and upon such affixation and publication, all persons concerned shall be deemed, to have been duly informed of the matters stated therein."
21. In the obtaining factual matrix of the case and in view of preceding analysis, we quash the order dated 25.09.2018 passed by the learned single judge and relegate the appellant to take recourse to remedy provided to it under section 308 and 321 of the Act, if not already availed of. It is made clear that this court has not expressed any opinion on merit of the case. At this stage, the undertaking furnished by respondent No.6 with regard to the construction during the pendency of the appeal on 30.04.2019 is worth mentioning the relevant extract, which reads as under: 36
Per contra, Sri.G.L.Vishwanath,
learned counsel for respondent No.6
contended that the construction is being made by respondent No.6 strictly in accordance with the sanctioned plan issued by the BBMP on 21.09.2016. He further contended that there were several litigations pending between the parties and two suits filed by them are also pending and the present petitioners had earlier filed W.P.No.48732/2012 and connected petitions to quash the sanctioned plan dated 23.03.2011 issued by BBMP and also the NOC dated 23.01.2009. The learned Single Judge by an order dated 26.03.2013, disposed of the writ petitions with certain observations. The said order passed by the learned Single Judge has reached finality. Therefore, he opposed the interim prayer.
22. Since, we have relegated the appellant to the statutory remedy, it is directed that construction if any made by the respondent no. 6 on the land in question shall be at the risk and consequences of respondent No. 6 and it shall also not be entitled to claim equity in 37 respect of construction made by it from 30.04.2019 till the decision is taken by the competent authority under section 308 and 321 of the Act. Needless to state that the appellant shall raise a grievance if any before the competent authority under section 308 and 321 of the Karnataka Municipal Corporation Act, 1976 within a period of two weeks from the date of receipt of certified copy of this order and the competent authority after affording an opportunity of hearing to the parties shall decide the issues which may be raised by the appellants without being influenced by any of the observations contained in this order within three months therefrom.
In the result, the appeal is disposed of.
Sd/-
JUDGE Sd/-
JUDGE SS