Important pointThere is no prohibition under the provisions of the Karnataka Municipal Corporation Act and Rules putting the ceiling on construction of the multi storey building.

Headnote:Karnataka Municipal Corporation Act, 1973—Sections 321 and 505—Karnataka Town and Country Planning Act, 1961—Section 14—Bangalore Development Authority Act, 1976—Bangalore Development Authority (Allotment of Sites) Rules, 1982—Bangalore Municipal Corporation granted permission to appellant for raising one plus three floors—No ceiling has been applied on construction of multi-storeyed building—Permission granted to appellant held not in violation of any of the provisions of the Act and the Rules—Public Interest Litigation filed by respondents, Residents Association challenging the building licence issued for construction of multi storeyed/multi apartments—It was submitted that residents in the area had acquired sites and built houses under the bonafide belief that lay out would be developed and maintained in accordance with law—It was alleged that property developers by using their influence and money are getting licences against the statutory prohibitions—Whether the Corporation was empowered to grant licences to owners of sites to build multi-storeyed and multi family dwelling units—(Yes)—Delay in filing petition held fatal—Construction already started by appellant in 1987—Building had come up to three floors when it was stopped in 1988—It was stopped in 1988—In March 1999 it resumed after permission was granted—Writ Petition filed in November 1991—Delay was fatal.
       Held : The conditions which have been set out in the lease agreement and which is relevant for our purpose is condition No. 4. Condition No.4 has already been reproduced above which provides that lessee/purchaser shall not sub-divide the property or construct more than one dwelling house. Condition No.12 says 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 No. 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 lesser/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 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 No.4 of the agreement the lessee is neither entitled to alienate the property under condition 17(7), nor shall be sub-divide 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 No. 12 of the lease-cum-sale agreement. As soon as the lease agreement is executed conforming 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 the Rules bearing on the subject. After acquiring this full right the lessee has right to alienate the property or whenever either lessee or his successor wants to construct a building thereon he can do so in accordance with the provisions of law. Condition No. 4 of the lease agreement was only to survive so long as the lessee continued to be 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 No. 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 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 absolute sale deed. (Para 19)
       Therefore, the only condition was that it shall be used for human habitation and it shall not allow any apartments to the building whether attached thereto or not, used as a shop or a building or warehouse or for manufacturing operation. There is no condition that one cannot raise any multi-storeyed building over the schedule property. The condition not to have more than one dwelling house was the condition No.4 of the lease cum sale agreement but that condition has not been repeated when the absolute sale was made in favour of a party. As such, the condition No.4 of the lease cum sale agreement survived during the currency of that agreement. As soon as absolute sale is made then prohibition comes to an end. The lease cum sale agreement was to continue for a period of ten years or till all the conditions are fulfilled. The moment the conditions laid down in the lease cum sale agreement are fulfilled i.e. the entire money is paid and the registration is done and thereafter final absolute sale agreement is executed then the so called lease cum sale agreement comes to an end and the condition No.4 cannot subsequently guide the sale purchase agreement. The sale purchase agreement has its own terms and conditions and the condition as reproduced above, only 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 used as a shop or a building or wharehouse or used for manufactory operations by mechanical power. Therefore, in this final agreement which has come to be executed and which has been registered the condition is that the building has to be used for human habitation and there is no prohibition contained therein that it cannot raise multi-storeyed building. (Para 20)
       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. (Para 22)
       There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third party interest created on account of delay. Even otherwise also why Court should come to rescue of person who is not vigilant of his rights? We are of the opinion that delay in this case is equally fatal, the construction already started by the appellant in 1987 and building had come up to three floors. Thereafter it was stopped in 1988 and in March, 1991 it resumed after permission was granted. The Writ Petition was filed in November, 1991 meanwhile almost construction was complete. Therefore, delay was fatal in the present case and learned single judge rightly held it. It was also brought to our notice that 46 multi storey buildings have come up in this area. (Paras 33 & 34)
       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. (Para 35)
       (ii) Constitution of India—Articles 32 and 226—Public Interest Litigation —Maintainability—Delay in filing petition—Whether fatal—(Yes)—Delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution—Court cannot disturb the third party interest created on account of delay.
       Held : Public Interest Litigation is no doubt a very useful handle for redressing the grievances of the people but unfortunately lately it has been abused by some interested persons and it has brought very bad name. Courts should be very very slow in entertaining petitions involving public interest in a very rare cases where public at large stand to suffer. This jurisdiction is meant for the purpose of coming to the rescue of the down trodden and not for the purpose of serving private ends. It has now become common for unscrupulous people to serve their private ends and jeopardize the rights of innocent people so as to wreak vengeance for their personal ends. This has become very handy to the developers and in matters of public contracts. In order to serve their professional rivalry they utilize the service of the innocent people or organization in filing public interest litigation. The Courts are sometimes persuaded to issue certain directions without understanding implication and giving a handle in the hands of the authorities to misuse it. Therefore, the courts should not exercise this jurisdiction lightly but should exercise in a very rare and few cases involving public interest of large number of people who cannot afford litigation and are made to suffer at the hands of the authorities. (Para 24)

Judgment

A.K. Mathur, J.—This appeal and connected appeals were filed against the order passed by the Division Bench of the Karnataka High Court dated 2nd July, 1998 whereby the Division Bench disposed of Writ Appeal No. 1955 of 1993 alongwith Writ Appeal No. 777 of 1993.

2. Facts which are necessary for disposal of these appeals are – the Respondent Association Koramangala Residents Vigilance Group filed a Public Interest petition challenging the building licence issued for construction of multi-storeyed/multi-apartments on Site Nos. 403 and 443 in IInd and IIIrd Cross in III Block, Koramangala Layout, Bangalore, on the ground that it is illegal, void and prayed for quashing of the licence and direction to demolish the building already constructed on the site. It was submitted that the residents in the area had acquired sites and built houses on the understanding and under the bona fide belief that the lay out would be developed and maintained in accordance with law. Grievance of the Association was, the menace of multi-storeyed and multi-apartments buildings in the Bangalore city particularly in Koramangala lay-out which is considered to be a posh and prestigious lay-out, had been increasing. Many property developers, investors in buildings and speculators in real estate were alleged to have started their activities which are detrimental to the quality of life of the residents of the area. Multi-storeyed buildings and multi-apartment buildings were causing strain on the public amenities. It was alleged that the property developers by using their influence and money are getting licences against the statutory prohibitions. The appellant relied upon the decision given in case of Chandrashekar Hegde Vs. B.C.C. [ILR 1988 Karnataka 356], (Single Bench) to contend that the Corporation was not empowered to grant licences to the owners of the sites to build multi-storeyed and multi-family dwelling units. It was alleged that the scheme under the City of Bangalore Improvement Act, 1945 and Bangalore Development Authority Act, 1976 provided for construction of residential houses and not for exploitation of those sites for construction of buildings in violation of law and with the object of inflating the money market of the builders. It was alleged that in Writ Petition No. 7599 of 1987, the Karnataka High Court directed the Corporation not to issue licences to any third party for putting up mutli-storeyed and multi-family dwelling apartments in the sites allotted by the B.D.A. It was further alleged that after the judgment in December, 1987, one of the appellants represented to Respondent Nos. 1 and 2 to re-examine the licences already issued for putting up multi-storeyed building and multi-family apartments in the light of the law laid down by the Karnataka High Court. In response to that, respondent sent communications to all the licensees to stop further construction. The Writ Appeal No. 306 of 1988 filed against the order of the learned Single Judge was dismissed by the Division Bench on 14th December, 1988 which is noted as Pee Kay Constructions Vs. Chandrashekhar Hegde, [ILR 1989 Karnataka, 241].

3. In this background, the present Public Interest Litigation was filed which came up before a single Judge. In this petition, the building licence No. L.P. 169/87-88 issued in favour of Respondent No. 4 i.e. M/s R&M Trust by Respondent No.1– the Corporation of the City of Bangalore, for construction of multi-storey building was stopped by letter dated 4.4.1988. This letter was withdrawn by Respondent No.3 i.e. Deputy Director of Town Planning Corporation of the City of Bangalore, by its letter dated 26th March, 1991. On receipt of this letter, Appellant/Respondent No.4 resumed the construction. This action of the Respondent No.3 permitting the Appellant/Respondent No.4 to proceed with the construction was challenged to be arbitrary, illegal, unjustified and violative of Article 14 of the Constitution besides being in violation of law, by t

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2005 Supreme(SC) 108

Important pointThere is no prohibition under the provisions of the Karnataka Municipal Corporation Act and Rules putting the ceiling on construction of the multi storey building.

Cases Referred (7)