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16. The learned Arbitrator has also noted that as per Ex.R.1, construction was to be completed within 30 months plus 3 months grace period from the date of obtaining sanction plan and noted that the sanction plan was obtained on 26/9/2009 and construction was not completed within the CT 1390_Com.A.S.244-2018_Judgment.doc said period and the claimant has not handed over 25% share of the apartment building as agreed by the claimant to the respondent and he has not communicated the completion of construction of building in writing. The learned Arbitrator has also noted the submission that the commercial activities will be allowed even in the residential main and residential mixed zones by relying on notification and has observed that the said notification has no application to present case as sanction plan was obtained for residential purpose and not for the commercial building, which is 100% deviation of the sanctioned plan, which neither come within the amended regulation Nos.1 to 3 nor within the permissible user limits. The learned Arbitrator has held that contention of the claimant that completion of the building was intimated to the respondent is not acceptable as there was no written communication sent by the claimant to the respondent informing about completion of the residential apartment. The email relied by the claimant at Ex.P.20 is found to have not been sent by claimant's firm to the respondent. By considering all these aspects, tribunal has held these issues 3, 5 and 6 in favour of the respondent and held that the building constructed in the property is for commercial purpose and not for residential purpose and it is not in conformity with the sanction plan, JDA and GPA.

17. In issue No.4 the learned Arbitrator has held that the restoration of the occupancy certificate is not binding on the respondent. The learned Arbitrator has noted that the CT 1390_Com.A.S.244-2018_Judgment.doc occupancy certificate Ex.R.17 dated 16/3/2017 was granted in favour of the claimant on the assumption that the building is residential apartment constructed on the part of the schedule property of JDA, though the construction made by the claimant is the commercial building and is unauthorized. The deviation of less than 5% is erroneously observed and the same is said to be against the building bye-laws and the Zonal Regulations of the BBMP. The learned Arbitrator has also considered the report of the Court Commissioner in A.A.No.167/2016 before the City Civil Court, which was submitted in the matter between the same parties, wherein construction of the building is said to be not in accordance with the BBMP Bye-Laws and Zonal Regulations and that claimant has violated the regulations and made construction for commercial purpose, to run it as a lodge which is against sanction plan given for residential purpose and it is not as per the terms of supplemental agreement Ex.R.13. The learned Arbitrator has also noted that as per the bye-law No.2057 of BBMP bye-law 2003 dwelling unit means an independent housing unit for separate facility for living, cooking and sanitary requirement and noted that this construction is not conformity with this bye-law and the units constructed cannot be taken as dwelling unit and even it cannot be called as service apartment, as for service apartment there should be room with kitchen which is intended to be used on rental basis and this requirement is not found in these units. The learned Arbitrator has also noted that for any violation of CT 1390_Com.A.S.244-2018_Judgment.doc sanction plan, licensing authority is entitled to pull down and demolish the structure which is constructed by the claimant. The learned Arbitrator by considering that construction of the building is not in accordance with the sanction plan and claimant proceeded to give constructed building for running the hotel and by considering the evidence of RW.1 and 3 that claimant has given building for running a hotel and by considering the commissioner's report along with photographs, showing that the requirement of dwelling unit is not found, has held that the occupancy certificate given is without considering the nature of building. This occupancy certificate was challenged by the respondent and the same was canceled and the occupancy certificate was restored by the standing committee by resolution dated 15/2/2018 as per Ex.P.8. As the respondent was not party to this proceeding, the learned Arbitrator has held that this occupancy certificate is not binding on the respondent. Moreover, the occupancy certificate is given on the assumption that the building constructed is of residential apartment, though it is a commercial building constructed by claimant in violation of sanction plan. The learned Arbitrator has also noted that the commercial building constructed in violation of sanction plan has been given on license as per Ex.P.13 for running hotel and the licensee has been using the premises for lodging and boarding purpose. By considering these aspects, learned arbitrator has answered issue No. 4 in favour of the respondent.

44. By considering Ex.P.9 and also the Forensic Report Ex.R47, the learned arbitrator has held that the GPA in favour of PW.1 on the basis of which application for sanction plan was given are not valid and the sanction plan obtained on the basis of invalid Ex.P9 is not legally sustainable. The learned arbitrator by considering the evidence including Ex.P28 report of the Court commissioner given in Arbitration Application between the same parties and also the evidence of CT 1390_Com.A.S.244-2018_Judgment.doc RW.3, found that the construction made by the plaintiff is of a commercial structure and therefore construction is illegal. The learned arbitrator has noted that even electricity connection was obtained to the building for commercial use and the building after construction has been used for lodging purpose. By considering all these facts, learned arbitrator has held that the plaintiff has violated the terms of JDA as per which, building was to be constructed by obtaining proper license, permission and in accordance with law. Learned arbitrator has also held that from the stage of obtaining sanction plan there is illegality and even the construction is not in accordance with sanction plan and accordingly held that the construction is illegal. Though occupancy certificate was obtained by claimant, as construction made was of the commercial structure by obtaining sanction for construction of residential building, learned arbitrator found that construction made is 100% deviation from the sanction plan and as such this occupancy certificate do not regularize the illegal construction made. These findings of the learned arbitrator based on facts that have come out in the evidence both oral and documentary. The learned arbitrator has also noted that the constructed building has been given for running a lodging and the license agreement is also produced.