KRISHNAPUR MUTT UDUPI Vs. N VIJAYENDRA SHETTY

JUDGEMENT

(1.) respondent No. 1 has a site measuring about 5 cents and bearing survey number 113/15 of shivalli in udupi town while the petitioner owns an adjacent site in survey number 113/14. The first respondent has obtained a commencement certificate under Section 15 of the Karnataka town and country planning Act, 1961 (hereinafter referred to as the act) for the construction of a shop building with a plinth area of 127.78 square metres with two floors of identical measurements and permission was granted under Section 15(1) of the act for construction of a shop building and it was made clear that the premises shall be used for the specific purpose of shop (commercial). It was made clear that grant of permission will not constitute sanction of construction of a building and other statutory formalities will have to be complied with,before doing so.thereafter, the 1st respondent has sought for revision. This pennission was granted on 19-9-1979 and a municipal licence was obtained on 10-10-1979. Thereafter a revised plan was filed on 13-12-1982 and sanction was accorded on 18-1-1983. Again one more revised plan was submitted to the municipal council on 1-4-1984 for extension of commercial building. The same was sanctioned by majority of the members present in the meeting of the second respondent-authority inasmuch as when the subject was put to vote a consensus opinion emerged with all the members except for the chairman, favouring grant of commencement certificate of imposing penalty of rs, 3,000/- for the deviations from the approved plan. However, the chairman recorded his dissent subsequently.

(2.) challenging the said resolution of the town planning authority it is contended before this court now that the ground floor in the said building for which approval had been given earlier is to be a shop which is now converted into a restaurant and two floors were put with two halls for commercial use for office accommodation and the third floor now constructed is without prior permission of the planning authority and the deviations have been accomplished first and thereafter ex-post facto sanction was obtained. It is urged that the use of the ground floor for a restaurant and the use of the other floors constructed thereon would necessarily lead to certain number of vehicles being parked in the roadside in front of the building as there is no other parking space provided for the same at the building, the authority would have certainly insisted upon provision for parking space and lisp would give rise to severe problems of sanitation and drainage and contended that the resolution of the planning authority is therefore invalid.

(3.) it is urged on behalf of the first respondent that the bar under Section 14(2) of the act is only to prevent change of land-user or a building from one use to another contrary to the outline development plan and in the present case although the area had been originally noted as residential many commercial buildings in the area have come up; that the planning authority authorised the construction of a commercial building by its permission dated 19-9-1979 communicated to the first respondent. Consequently that bar stood lifted. Once the bar is lifted it is submitted that putting the building to any other use which is within the commercial use or development plan which does not materially or substantially alter the nature of the use, does not call for a fresh commencement certificate at all. Even though the first respondent has applied for such a certificate or permission it is only by way of abundant caution and not by way of a legal obligation. Consequently it is submitted that it is wholly unnecessary for the first respondent to obtain further permission from the authority concerned. All that he needs to comply with was when he wanted to deviate from the original plan, to comply with the municipal bye-laws which in the present case has been complied with and the same is not in challenge before the court. It is, therefore, submitted that this petition filed jong after the permission was granted on 19-9-1979 itself is belated and particularly after the construction had been completed equities should be adjusted in favour of the first respondent thereby rejecting this petition without examining the matter any further in detail.