RAND M TRUST Vs. KORAMANGALA RESIDENTS VIGILANCE GROUP

JUDGEMENT

(1.) 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 multistoreyed/multi-apartments on Site Nos. 403 and 443 in IInd and IIIrd "Cross in III Hock, 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 layout 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 3561, (Single Bench) to contend that the Corporation was not empowered to grant licences to the owners of the sites to build multi-storeyed and mutti 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 mutii-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.) 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 not suffer from any delay or laches nor any third party interest was created. However, the respondents contested this Writ Appeal, they did not file the appeal against the aforesaid order but submitted that the law laid down in Pee Kay Constructions case (Supra) was not a good law and the learned Single Judge was not justified in holding that licence granted to respondents was contrary to law. The Division Bench after hearing the parties observed that the law laid down In Chandrashekar Hegde Vs. B.C.C. [ILR 1988 Karnataka 356] and Pee Kay Constructions case (Supra) is correct law. Thereafter, the Division Bench examined the question of delay and laches. After reviewing the facts the Division Bench held that there is no delay and laches in preferring the writ petition. It was held that building licence was issued in favour of appellant-builder on 19th August, 1987 and on 3rd October, 1987. The Commencement Certificate was issued on 13th October, 1987 and 23rd November, 1987 and the Chandra Shekhar Hegde's Case was decided on 14/15/16th December, 1987 wherein it was held that the Corporation was not justified in granting licence to the owners of the sites to put up multi-storeyed/multi-family dwelling units and the appeal was dismissed on 14th December, 1988. On 4th April, 1988, the Respondent- Corporation issued a letter to the builders directing them to stop construction. The construction remained suspended upto 26th March, 1991, when letter was issued to builder revoking to stop construction order, permitting them to proceed with the construction. This Writ Petition was filed in the first week of November, 1991, as public interest litigation. The explanation for the delay was that the office bearers made enquiries from the office of Corporation the reasons for withdrawing of direction to stop work but in vain, met the authorities of Corporation Respondent No.3 cm several occasions and then by a letter dated 7th October, 1991, requested to furnish the copies of certificate but the copies were not furnished. They protested that there was no justifiable reason for such withdrawal. They also explained that the building is permitted to be constructed at Site Mo. 403; which is a narrow road, the residents of area will be subjected to great inconvenience but without any result. It was also contended that the third party right had not been created. After the grant of permission, the construction proceeded. However, Appellant/Respondent in their turn submitted that the third party interest had already been created because the 4th Respondent has issued shares on 21st May, 1988 and some of the flats have been sold out. However, Division Bench did not accept the plea of the third party interest being created in the matter. The Division Bench observed that when the original files of Corporation were summoned by the Court, it was found that between 4th April, 1988 and 14th February, 1991 nothing transpired. However, the builder on 14th February, 1991 requested for permission to complete the construction mainly on the ground that substantial amount has been spent on purchase of site and on construction of ground with three floor building. This letter was perused by the Deputy Director of Town Planning on 20th March, 1991 which was submitted to Commissioner on 21st March, 1991. ft was observed that all similar cases be put up where building is completed with full structural work as per sanctioned plan prior to Judgment. It was found that there was no note by the Deputy Director regarding Appellant/Respondent. Thereafter on 25th March, 1991, the order was passed by the Commissioner that he perused the note and discuss the matter with CE and the DDTP and considered the matter, he directed that the notice be withdrawn and permission be accorded to complete the building as per sanctioned plan. The Division Bench observed that these notes clearly show nonapplication of mind and that the action of the respondent was not in accordance with law and was passed without giving any reasons. Thereafter, the Division Bench concluded that the view taken by the learned Single Judge is right that the licence granted in favour of Respondent Nos. 4 and 5 is contrary to law and liable to be quashed. The Division Bench further held that they did not agree with the view taken by the learned Single Judge that the Writ Petition suffered from delay and laches and accordingly, allowed the Writ Appeal, set aside the order of learned Single Judge dismissing the same on the ground of delay and laches and affirmed the finding that the licence granted in favour of Respondent Nos. 4 and 5 is illegal and quashed the licence issued in favour of Respondent-builder, and also quashed the order of Respondent Corporation dated 26th March, 1991 allowing Respondent-builder to continue with the construction and directed Respondent No.1 to demolish the illegal construction put up on Site Nos. 403 and 443. It was further directed that the construction as raised by them is illegal and they were liable to bear the expenses for demolition of the construction and Respondent Nos. 1 and 3 are liable to pay costs to the writ petitioner.