B R BALIGA Vs. TOWN MUNICIPAL COUNCIL UDUPI

JUDGEMENT

(1.) The petitioners residents of Udupi Town have filed this writ petition by way of public interest litigation, seeking directions of this Court prohibiting the first respondent from constructing of any commercial building in Survey No.115/1A 2A1 of Moodanidambur, Udupi Town and for the removal of the construction already made.

(2.) According to the petitioners, the land measuring 1 Acre 79 Cents is reserved under the Transport and Communication Zone and is situated in the heart of Udupi Town, adjacent to the K.M. Marg leading to the State Highway. As per the approved Outline Development Plan ('ODP' for short) and the Comprehensive Development Plan ('CDP' for short) published by the 2nd respondent Udupi and Malpe Town Plttnning Authority, the width of K.M. Marg is required to be 80' and the existing road available at present is only 20' and hence no fresh licence for construction could be permitted within 40' from the middle of the road. It is further stated that in fact the first respondent rejected the application of the owner of an adjoining site for construction of such a building and no exception could be made in the case of the first respondent who is putting up building in violation of ODP and CDP. It is their further contention that inasmuch as the land is meant for providing a regular bus stand, no commercial building can be constructed. If the building is permitted to be constructed, it will leave only 20' of space between the building and the middle of the road which would cause inconvenience to the travelling public. Repeated representations to the Chief Minister and the representatives of people met with no response. Therefore the petitioners have approached this Court for redress.

(3.) In the objection statement filed by the first respondent-Municipality, the locus standi of the petitioners is questioned. It is further stated that the site in question is owned by the Municipality and is meant for the construction of a bus stand as the existing bus stand is inadequate. A comprehensive plan for the construction of a bus stand and the commercial complex for the purpose of locating shops, canteen etc., was sanctioned and approved by the State Government in the year 1988 and tenders were invited from contractors for executing the work by wide publication. Thereafter funds were raised under the Integrated Development of Small and Medium Town (IDSMG) which is a Central Government sponsored scheme, under which, an amount of Rs. 66.65 lakhs was sanctioned by way of loan and the State Government approved change of land use and permission was granted for taking up construction of the first phase of the project, namely construction of shops in the basement. The work was commenced on 27-12-93 which was widely published and thereafter the first phase of the work costing Rs.19 lakhs is almost nearing completion and the shops are ready for occupation, except for the fixation of rolling shutters and electrification. At this stage, the petitioners have obtained an order of status quo. It is the further case of the first respondent that in the circumstances, the petitioners should be taken to have waived their objections if any and have acquiesced with the action taken by the respondent. The width of the road of K.M. Marg is hardly 20' and at the spot where the construction is being put up, the road width would be more than 30'. The land in question is at a highest level than the road and with road on four sides and instead of building a retaining wall on the side of the K.M. Marg, the first respondent put up shops which substitute for a retaining wall. The area occupied by the shops will not exceed 5% of the total area to be constructed, which is within the norms. Public amenities for travelling public, like canteen, medical shops, space for parking of vehicles etc., is provided. The construction is being made strictly in accordance with the plan sanctioned by the Government. It is not possible or feasible to widen the road to the extent of 80'. The question of first respondent obtaining commencement certificate and the 2nd respondent considering it does not arise as it is not required under law. If the construction is not permitted, it would result in greater hardship to the travelling public as the existing bus stand is totally inadequate as over 350 buses come to the bus stand daily and over 800 trips are undertaken. The loan obtained by the Municipality carries an interest of 9.75% and the delay in completing the construction would result in heavy loss to the Municipality.