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

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 issue 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 building 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 stream 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 Chandrashekhar Hegde vs. B.C.C. (ILR 1988 Karnataka 356 ) (Single Bench) to contended that the Corporation was not empowered to grant licences to the owners of the sites to build multi-storyed 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 multi-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. Chandrashekar 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 the Respondent Association, alleging that issue of licence in favour of Appellant Respondent No.4 is illegal and without jurisdiction. The following prayers were made in the Writ Petition which reads asCall for records from Respondents 1 to 3 pertaining to building licence issued in R-1s No. LP.353/87-88 for putting up a Multi-storyed/Multi-apartment building on Site No. 443, III Cross, III Block, Koramangal, Bangalore-560 034;(ii) Declare as illegal and void building licence No. LP 353/87-88 issued by R-1 for the construction of a Multi-storyed/Multi-apartment building on Site No. 443, III Cross, III Block, Koramangala, Bangalore-360 034;(iii) Direct R-1 to demolish the construction already put up on Site No. 443, III Cross, III Block, Koramangala, Bangalore - 560 034 by having recourse to Section 321 of the K.M.C. Act 1973 (Karnataka Oct 14 of 1977) and other related provisions of that Act, and(iv) Grant such other or further relief that this Honble Court may deem fit under the circumstances including costs.This was contested by the Respondents and the learned single Judge after hearing the parties held - "I have no hesitation to hold that licences granted to Respondent No.4 in these Writ Petitions are contrary to law in view of the law laid down in the case of Pee Kay Constructions."5. But the learned Single Judge felt that the petition filed by the Writ Petitioner suffered from laches and delay and therefore, dismissed the Writ Petition on the grounds of delay and laches. It was observed that the dismissal of Writ Petitions will not prevent the Corporation from taking any action permissible under the law. Aggrieved against the present order passed by the learned Single Judge, the present Writ Appeal was filed and it was alleged that the Writ Petition does notFacts 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 issue 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 building 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 stream 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 Chandrashekhar Hegde vs. B.C.C. (ILR 1988 Karnataka 356 ) (Single Bench) to contended that the Corporation was not empowered to grant licences to the owners of the sites to build multi-storyed 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 multi-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. Chandrashekar 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 the Respondent Association, alleging that issue of licence in favour of Appellant Respondent No.4 is illegal and without jurisdiction. The following prayers were made in the Writ Petition which reads asl for records from Respondents 1 to 3 pertaining to building licence issued in R-1s No. LP.353/87-88 for putting up a Multi-storyed/Multi-apartment building on Site No. 443, III Cross, III Block, Koramangal, Bangalore-560 034;(ii) Declare as illegal and void building licence No. LP 353/87-88 issued by R-1 for the construction of a Multi-storyed/Multi-apartment building on Site No. 443, III Cross, III Block, Koramangala, Bangalore-360 034;(iii) Direct R-1 to demolish the construction already put up on Site No. 443, III Cross, III Block, Koramangala, Bangalore - 560 034 by having recourse to Section 321 of the K.M.C. Act 1973 (Karnataka Oct 14 of 1977) and other related provisions of that Act, and(iv) Grant such other or further relief that this Honble Court may deem fit under the circumstances including costs.s was contested by the Respondents and the learned single Judge after hearing the parties held - "I have no hesitation to hold that licences granted to Respondent No.4 in these Writ Petitions are contrary to law in view of the law laid down in the case of Pee Kay Constructions."5. But the learned Single Judge felt that the petition filed by the Writ Petitioner suffered from laches and delay and therefore, dismissed the Writ Petition on the grounds of delay and laches. It was observed that the dismissal of Writ Petitions will not prevent the Corporation from taking any action permissible under the law. Aggrieved against the present order passed by the learned Single Judge, the present Writ Appeal was filed and it was alleged that the Writ Petition does notNow, in order to appreciate the contention raised by the appellants, it may be necessary to dilate upon some facts of CA 1415/99. Property No. 443, 2nd Cross, 3rd Block, Koramangala Extension, Bangalore, was allotted by the City Improvement Trust Board to Dr. Alice Duraiswamy on 4th March, 1971 and he was also put up in possession of this schedule land. The Bangalore Development Authority, successors in interest of City Improvement Trust Board sold the schedule laid in favour of Dr. Alice Duraiswamy under a registered Sale Deed dated 27th March, 1981. Dr. Alice Duraiswamy then sold the land in favour of one M/s. Batra Developments under a registered Sale Deed dated 12th June, 1987. The development and planning of the City of Bangalore and construction of the building thereon were governed by the Karnataka Town and Country Planning Act, the Outline Development Plan and the Comprehensive Development Plan as well as the Zoning Regulations framed thereunder. The Corporation of the City of Bangalore also framed Bye-Laws in conformity with the Development Plan and the Zoning Regulations. In accordance, therewith, M/s. Batra Developments applied for and obtained licence from the Corporation of the City of Bangalore for construction of basement, ground and three upper floors on 3rd October, 1987. And thereafter, the construction commenced and by 3rd April, 1988, the basement and ground floor of the building had been completed. On 4th April, 1988 the construction was stopped on the basis of the decision of the Karnataka High Court in Pee Kay Constructions Case. Thereafter, the High Court of Karnataka in a case known as Happy Home Builders Case held that when once a licence is granted by the Corporation Authorities, the Corporation cannot stop construction of building. M/s. Batra Developments thereafter made a representation to the Corporation Authorities and submitted that the substantial portion of the building has been completed and considerable investment have been made and the licence granted thereof is in accordance with the Building Plan and therefore, they may be permitted to complete the construction. The Corporation Authorities after taking into consideration the representation, permitted M/s. Batra Developments to proceed with the construction, M/s. Batra Development entered into an agreement of sale with M/s. Raj Trust on 16th June, 1989. Consequent to the said agreement under the Development Agreement dated 8th May, 1991 between M/s. Raj Trust and the appellant, the construction proceeded. When the building was practically completed during November, 1991, the present Writ Petition was filed challenging the very licence issued on 3rd October, 1987. The learned Single Judge dismissed the Writ Petition on the ground of laches. It was pointed out that the building was occupied by 12 families and the grant of licence has been declared to be invalid after 11 years, but the Division Bench did not agree and directed demolition of building on the basis of Pee Kay Constructions

Reasoning:
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.