Case: R &amp; M Trust Vs. Koramangala Resi.Vigilance Group

the matter as still in discretion of the High Court, and the High Court in us discretion can refuse the issue of a writ because of the laches of the applicant." 30. In the case of Ramana Dayaram Shetty vs. The International Airport Authority of India & Ors. reported in AIR 1979 SC 1628 , even five months delay was considered to be fatal. It was observed as follows: "Moreover, the writ petition was filed by the appellant more than live months after the acceptance of the tender of the 4th respondents and during this period, the 4th respondents incurred considerable expenditure aggregating to about Rs.1.25,000/- in making arrangements for putting up the restaurant and the snack bars and started running the same. It would now be most inequitous to set aside the contract of the 4th respondents at the instance of the appellant. The position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of the 4th respondents but the appellant allowed a period of over five months to elapse during which the 4th respondents started their position. We are, therefore, of the view that this is not a fit case in which we should interfere and grant relief to the appellant in the exercise of our discretion under Article 226 of the Constitution." 31. In the case of Ashok Kumar Mishra & Anr. vs. Collector, Raipur & Ors. reported in AIR 1980 SC 112 , it was observed that when the final electoral roll was published in Nov. 15, 1978 it was notified that the nominations could be filed on and after Nov.25, 1978 and the poll, if necessary, would take place on Dec.31, 1978. After Nov.25, 1978, a large number of nominations were received by the Returning Officer. It was only on Dec.5, 1978 for the first time that a letter was addressed by petitioner to the Collector drawing his attention to the error that had crept into the notice published under Rule 4(1) of the Rules. By that time, the nominations had all been received. The final list of candidates for the election with their symbols was published on Dece.20, 1978. The writ petition itself was filed on Dec.28, 1978 when the poll had to take place on Dec. 31, 1978. In that context. Their Lordships observed as follows: "No satisfactory explanation was given in the course of the petition by the petitioners, ad to why they delayed the filing of the petition till Dec.28, 1978 even though they knew that there was an error in the notice issued under R.4(1) of the Rules in the month of Oct.1978 more than 2 months before the date on which is was filed." Their Lordships dismissed the petition as there was no satisfactory explanation for the delay in preferring it. 32. In the case of State of Maharashtra, vs. Digambar reported in (1995) 4 SCC 683. Their Lordships observed as follows: "the power of the High Court to be exercised under Article 226 of the Constitution, if it is discretionary, its exercise must be judicious and reasonable, admits of no controversy. Persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully the High Court that the facts and circumstances of the case clearly justified the latches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where the High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as latches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State." 33. 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? 34. 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 upto 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. Learned counsel has produced photographs to show that buildings more than three and four floors have been constructed in and around this area. 35. 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. 36. It was also contended by the learned counsel for the Appellant that the appellant had no locus standi to file this petition as the present association is neither representative association nor a registered body. Therefore, the Court should not have entertained the PIL on behalf of; such unregistered and unrecognized body. It is true locus in such Public Interest Litigation is very relevant factor & Court should always inquire into the locus of person before entertaining such petition. We have already observed above that Public Interest Litigation should be entertained in very rare cases. 37. Learned counsel has also invited our attention to Section 11 of the Transfer of Property Act to urge that once absolute right has been conferred on the property then no rider can be put to enjoyment of that property. It is not necessary to go into this question in this case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are primarily concerned with this Act and the Rules, subsequently, this Act of 1945 and Rules of 1964 have been repealed and they have been replaced by the Bangalore Development Authority Act, 1976, and the Bangalore Development Authority (Allotment of Sites) Rules, 1982. The entire controversy centres around these Acts and the Rules. The third Act with which we are concerned is the Karnataka Municipal Corporations Act, 1976.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 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 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 alternate 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 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.e 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 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 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 alternate 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 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.Learned counsel for the respondents has tried to raise certain objections that in the final agreement the expression "apartment" has been used which shows that there cannot be more than one dwelling house.Learned counsel for the respondents has tried to raise certain objections that in the final agreement the expression "apartment" has been used which shows that there cannot be more than one dwellingsacrosanct jurisdiction of Public Interest Litigation should be invoked very sparingly and in favour of vigilant litigant and not for the persons who invoke this jurisdiction for the sake of publicity or for the purpose of serving their private ends.We fully share the views expressed in the aforesaid decision of this Court and reiterate that it should go a warning to the Courts that this extra-ordinary power should be used sparingly and absolutely in necessary matter involving down trodden people.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 presentis true locus in such Public Interest Litigation is very relevant factor & Court should always inquire into the locus of person before entertaining such petition. We have already observed above that Public Interest Litigation should be entertained in very rare cases.