MANGALYA DEVELOPERS A PARTNERSHIP FIRM Vs. BRUHAT BENGALURU MAHANAGARA PALIKE, CORPORATION OFFICES, THE URBAN DEVELOPMENT DEPT. AND THE JOINT DIRECTOR (PLANNING) BBMP

JUDGEMENT

(1.) THE petitioner is before this Court assailing the endorsement dated 21.8.2012 impugned at Annexure -'Q' to the petition. The petitioner has also sought for issuance of mandamus to direct the respondents to refund the petitioner a sum of Rs. 9,04,000/ - which has been paid by the petitioner under protest. The case in brief is that the petitioner at an earlier instance had sought for issuance of Commencement Certificate to proceed with the construction as per the sanctioned plan which had been obtained by the petitioner. At that juncture, the respondents made the issuance of Commencement Certificate, subject to payment of improvement charges by the petitioner. In that circumstance, the petitioner was before this Court in Writ Petition Nos. 42907 -42911/2011 assailing the action of the respondents in demanding for payment of improvement charges. In the said petitions, this Court by an interim order dated 29.11.2011 had directed the respondents to issue the Commencement Certificate without insisting on payment of improvement charges. Subsequent thereto, the petitioner has made request with the respondents for issuance of Commencement Certificate and also intimated to the respondents that in view of the stay order, he would be entitled to put up the construction without paying the improvement charges. Subsequently, the demands which were made earlier have been set aside by this Court while disposing of batch of Writ Petitions in W.P. No. 18014/2011 and other petitions on 22.4.2012. In any event, the respondents kept on insisting for the payment of penalty of Rs. 9,04,000/ - since the progress in the construction had been continued without issuance of Commencement Certificate. The petitioner has paid the same under protest and presently is seeking refund of the same. Since the action of insisting on payment of improvement charges has been set aside by this Court, the Commencement Certificate, in any event, could not have been denied since the only condition imposed was payment of improvement charges.

(2.) THE learned counsel for the respondents would however seek to justify the action of the respondents. It is contended that mere grant of interim order in favour of the petitioner would not entitle the petitioner to proceed further with the construction since the interim order only specified that Commencement Certificate be issued without insisting upon improvement charges to be paid by the petitioner and therefore the petitioner, in any event, was entitled to secure the Commencement Certificate and only thereafter proceed with the construction. It is therefore contended that the respondents were justified in levying penalty for proceeding with the construction without obtaining the Commencement Certificate. The petitioner having already paid the said amount, is not entitled to seek refund of the same at this juncture and in that view of the matter, the impugned endorsement is sought to be justified. Having noticed the rival contentions, a perusal of the papers would indicate that the only condition which was imposed on the petitioner before issuance of Commencement Certificate is the payment of improvement charges. The said condition imposed, in any event, had been interfered by this Court while passing the interim order dated 29.11.2011. The interim order is specific that the Commencement Certificate be issued to the petitioner without insisting upon payment of improvement charges. It is no doubt true that the petitioner could have insisted for issuance of Commencement Certificate without payment of improvement charges and then proceeded with the construction. Notwithstanding the same, the petitioner has intimated to the respondents that since the Commencement Certificate has not been issued, despite the construction being proceeded. At that stage, the respondents, who had the statutory powers, have not passed any contrary order restraining the petitioner from putting up any further construction nor have they stayed the further construction. This would indicate that the respondents themselves have accepted the interim order granted by this Court and have allowed the petitioner to proceed further with the construction and therefore have conceded to the position that the Commencement Certificate as sought for by the petitioner ought to have been granted. Therefore, in such circumstance, when ultimately this Court has arrived at the conclusion that the improvement charges need not be paid, the petitioner, in any event, was entitled to the Commencement Certificate which has not been issued to the petitioner due to the default of the respondents themselves. Therefore, in a later position, it would not be open for the respondents to levy penalty on the petitioner. Even otherwise, the said amount which has been levied has been paid by the petitioner under protest. Therefore, the prayer seeking for refund was justified and the respondents should have considered the same. In the above circumstances, the impugned endorsement dated 21.8.2012 at Annexure 'Q' is not sustainable and the same is accordingly quashed. A direction is issued to the respondents to refund the amount of Rs. 9,04,000/ - paid by the petitioner as expeditiously as possible, but not later than six weeks from the date of furnishing the certified copy of this order to the respondents. Writ Petition is disposed of with the aforesaid directions.