Case: Bakhtawar Trust  Vs. M D Narayan

3. In the year 1980 the builders were granted permission to construct eight-storied building eighty feet in height in the locality of 9th Main Road, Rajmahal Vilas Extension, Bangalore by the Karnataka Municipal Corporation, Bangalore (hereinafter referred to as the Corporation).4. The respondent has the property adjoining adjoining to the site where eight-storied buildings were to be constructed. When the builders were about to construct the building, the respondent herein filed a petition challenging the permission granted to the builders to construct eight-storied residential building. In the writ petitions, it was alleged that the aforesaid sanction is in contravention of the Outline Development Plan and the Zonal Regulations framed for the City of Bangalore under the provisions of the Karnataka Town & Country Planning Act, 1965 (hereinafter referred to as the Planning Act). In the writ petition it was prayed that a writ mandamus be issued to the Corporation to issue forthwith a fresh licence to the builders in conformity with the Outline Development Plan and Zonal Regulations appended thereto promulgated under Section 13(4) of the planning Act. Here it is relevant to notice that outline development plan and the Zonal Regulations framed under the Act provided maximum height of new construction as 55 feet, whereas Rule 16 of Bye-laws 38 framed by the Bangalore Municipal Corporation provided maximum height of new building as 80 feet. In the writ petition, the respondent prayed for grant of an interim order. However, the prayer for interim order was refused. The respondent thereafter preferred writ appeal against the refusal of the grant of interim order before the Division Bench of the Karnataka High Court. The Division Bench of the High Court passed an order restraining the builder from constructing the building. Aggrieved, the appellants challenged the aforesaid order by means of a special leave petition before the apex Court. This Court set aside the impugned order subject to the builders furnishing the undertakings to the effect that in the event of the writ petition being decided against them, they would have no objection to the demolition of the portion of the building made by them. It is not disputed that the builders gave undertakings before the High Court in terms of the order of the apex Court. Similarly, every purchaser and occupier of the flats in the aforesaid building also gave individual undertakings before the Court. Subsequently, the writ petition filed by the respondent came up for hearing before a Division Bench of the High Court. The High Court by means by the order and judgment dated dated 11th of June, 1982 allowed the writ petition. The builders thereafter filed appeals before the apex Court, but their appeals were dismissed on 19.1.1987. After dismissal of the civil appeals by this Court, some of the occupants of the premises filed writ petitions challenging the action of the Commissioner in implementing the writ issued by the High Court. However, the said writ petitions were disposed of by an order and judgment dated 29.10.1987. In terms of the directions given by the High Court and after giving opportunity of hearing to all the occupiers of the building, the Commissioner passed an order that 3 floors (6th, 7th and the 8th floors) of the building constructed by the builders be demolished. Thereafter, different proceedings were taken, which are not relevant for the purpose of the present case. However, the respondent filed a contempt petition in the High Court for non-compliance of the order of the High Court. While the matters were pending, the Amending and Validating Act was passed by the Karnataka Legislature, modifying the maximum height of the new building upto above 165 feet and validating the new construction raised in violation of Outline Development Plan and the Zonal Regulations.5. After the impugned Act was passed, the respondent herein filed a petition challenging the constitutional validity of the Act. The State of Karnataka and the builders defended the validity of the Act. Subsequently, the writ petition came up for the hearing before the Division Bench of the Karnataka High Court which allowed the writ petition and struck down the impugned Act holding it to be constitutionally invalid. The High Court was, inter alia, of the view that the impugned Act instead of curing of basis of the decision rendered by the High Court, purported to set at naught the decision given by the High Court which was upheld by the Supreme Court; that the object of the impugned Act was to invalidate the pronouncement of the High Court and not to remove the fact of invalidity on the action taken by the appellant; and that Section 2 of the Act only amends the Zonal Regulations appended to the Outline Development Plan made and framed by the Executive in exercise of the delegated power of legislation vested in it without amending the provisions of the Planning Act.

Reasoning:
36. It is true that under Section 13, the method of framing of Zonal Regulations is provided under which a maximum height of building can be provided by the impugned Act. The legislature in its wisdom thought to provide a maximum height of a new building in the statute itself and it is no longer left to the discretion of the authority to provide a maximum height of a new construction by framing Zonal Regulations under the Act. Now, the Outline Development Plan as prescribed in the Schedule appended to the new Act, cannot even be amended by the procedure prescribed under Chapter III of the Planning Act. The impugned Act substituted the existing Regulations with a statutory Zonal Regulation to the extent it provided maximum height of new building. Further, this is done with retrospective effect i.e. for the entire period during which the Outline Development Plan remained in force i.e. from 1972 to 1984. It is settled law that where a law is retrospectively amended, the consequences of such retrospective amendment are that all actions have to proceed on the premise that the law, as amended, was always the law in force. In that view of the matter there was neither any need for the legislature to modify the maximum height of a new building in the manner provided in the Planning Act nor to amend the provisions of the Planning Act providing for method of framing Zonalare of the view that the impugned Act is constitutionally valid and the view taken by the High Court in striking down the Act was erroneous.