BANGALORE DEVELOPMENT AUTHORITY Vs. UNIQUE ENTERPRISES

JUDGEMENT

(1.) This Regular First Appeal is by the defendant in O.S. No.681/1984 on the file of the VIII Additional City Civil Judge, Bangalore, directed against the Decree dated 19-4-1984 decreeing the suit brought by the plaintiff for a declaration that the plaintiff has the benefit of the deemed commencement certificate/change in land use certificate from public and semi-public use to commercial use in respect of the plaint schedule property and also for a permanent injunction restraining the defendant, its officers, workmen, or anyone claiming under it from enforcing the endorsement dated 25/31-5-1982 issued by the defendant calling upon the plaintiff to pay a sum of Rs. 5 lakhs by way of penalty.

(2.) The case of the plaintiff as set out in the plaint, briefly stated, is as follows : The plaintiff, a partnership concern, became the owner of the suit schedule property having purchased the same from its previous owner under a registred sale deed dated 5-3-1980. The vendor of the plaintiff had proposed to put up certain constructions for commercial purpose on the suit schedule property. In that connection, he had obtained a licence and sanctioned plan from the Bangalore City Corporation (hereinafter referred to as the 'Corporation'). The plaintiff, during the course of the construction of the building in accordance with the licence and the sanctioned plan obtained by its vendor from the Corporation, wanted to modify the plan and pursuant to which the plaintiff submitted modified plans to the Corporation for sanction. Despite the earlier sanction for commercial purpose, the Corporation issued endorsements dated 20-12-1982 and 22-1-1983 directing the plaintiff to produce commencement certificate/change in land use certificate from public and semi-public use to commercial use from the defendant. Any change in the land use can be allowed by the defendant on an application under Section 14(2) of the Karnataka Town and Country Planning Act, 1961 (for short the 'Act'). The plaintiff had in fact applied to the defendant through its application/dated 16-2-1981 seeking commencement certificate/change in land use certificate under the Act. The defendant is statutorily obliged to grant or refuse such certificate within three months from the date of receipt of such application. The defendant, inspite of receipt of the plaintiff's application dated 16-2-1981, has not issued any endorsement either granting or refusing the commencement certificate change in land use certificate within the statutory period of three months. As no such decision was communicated to the plaintiff within the statutory period of three months from the date of the plaintiff's application, the plaintiff has deemed certificate for change in the land use/commencement certificate in view of the mandatory provisions contained in Section 15(2) of the Act. Thus the plaintiff has deemed certificate for change in the land use/commencement certificate for putting up the commercial building in the plaint schedule property. In spite of the vested deemed certificate for change in the land use/commencement certificate the Corporation Authorities are refusing to act on the said basis and sanction the modified plan. They continued to insist that the plaintiff should produce an express commencement, certificate/change in the land use certificate from the defendant. The plantiff approached the defendant several times and sought for the commencement certificate. The defendant neither issued the commencement certificate nor rejected the application filed by the plaintiff. Instead, the defendant has issued an endorsement dated 25/31-5-1982 for the first time informing the plaintiff that the defendant-Authority has levied a penalty of Rs. 5 lakhs as a condition precedent for the grant of the commencement certificate/change in the land use certificate. The plaintiff sent a reply dated 26-7-1982 to the said endorsement. The defendant instead of recognising unequivocal position of law, has been trying to act contrary to the vested commencement certificate under the mandatory provisions of the Act. The acts of the defendant are highhanded, illegal and contrary to law. In view of the unassailable position of law as declared by this Court in the decision reported in 1931 (2) Kar. L.J. 5631 the defendant-Authority under the Act has no jurisdiction whatsoever to annul, modify or otherwise act after the deemed consent gets vested in the plaintiff by fiction of law, under the mandatory provisions of the Act. Since the defendant refused to recognise the vested deemed commencement certificate/change inland use certificate for putting up a commercial building by the plaintiff on the plaint schedule property and also in view of holding out threats for taking further action against the plaintiff ignoring the mandatory provisions of the law, the plaintiff brought the suit for necessary reliefs.

(3.) The defendant in its written statement has stated as follows : The defendant is not aware that the plaintiff is the absolute owner in peaceful possession and enjoyment of 1. Asst Commissioner and Competent Authority, Urban Land Ceiling v. IBM World Trade Corporation, I.L.R. Karnataka 1982 (1) Page 204 plaint schedule property having purchased the same under a registered sale deed dated 5-3-1980, that the plaintiff's vendor wanted to put up some construction, that he applied for and got the sanctioned plan from the Corporation, that the plaintiff came to submit modified plan to the Corporation and that the Corporation issued endorsements as stated in the plaint. The plaintiff is put to strict proof of the same. It is not necessary to meet the averments made in the plaint regarding the relevant provisions of the Act. It is true that the plaintiff has submitted an application to the defendant on 16-2-1981 requesting for a land use certificate for submitting the same to the Corporation. In the said application, it is mentioned that the Corporation has sanctioned a plan for commercial building in respect of the suit schedule premises. The defendant is not aware that despite the alleged vested deemed certificate, the authorities of the Corporation are refusing to act upon the same. It is true that the defendant has issued on endorsement dated 31-9-1982 (obviously a mistake for the endorsement dated 25/31-5-1982) to the plaintiff after the subject was considered by the Board in its meeting dated 15-4-1983 (ought to be 1982) and later confirmed in the next meeting. It is false that the defendant is acting contrary to the mandatory provisions of the Act. The decision reported in 1981 (2) Kar. L.J. 5631 does not ensure to the benefit of the plaintiff. The apprehension of the plaintiff averred in para 7 of the plaint is not well-founded. The defendant being a statutory body is not interested in prejudicing the rights of the plaintiff, if any, except in accordance with law. On these grounds, the defendant prayed for the dismissal of the suit.