Rama Jois, J.
1. These four Writ Petitions have been referred to Division Bench under Section 9 of the Karnataka High Court Act. In the first three petitions, the petitioners who are residents of the City of Bangalore have questioned the legality of the licence issued to respondent No. 3 for construction of a commercial building consisting of a basement, ground, first, second and third floors, on the ground that it was in plain contravention of the Outline Development Plan ('the ODP' for short) and the Zoning Regulations as also the Comprehensive Development Plan ('the CDP' for short) and the Zoning Regulations annexed thereto which replaced the ODP, both promulgated under the provisions of the Karnataka Town and Country Planning Act, 1961 ('the Planning Act' for short) and for consequential orders. Writ Petition No. 18351 of 1986 is presented by respondent No. 3 in the aforesaid Writ Petitions praying for a declaration that permission for construction of fourth, fifth and sixth floors to the very building covered by the licence challenged in the first three Writ Petitions, must be deemed to have been granted to them and for consequential orders restraining the Corporation from preventing them from constructing the additional three floors.
2. As both these Petitions concerns the legality of the construction of the same building with reference to the ODP, the CDP, and the Zoning Regulations, they were heard together. After hearing Sri Vijaya Shankar, the Learned Counsel for the petitioners in the first three Petitions, Sri H. B. Datar, the Learned Counsel for Respondent No. 3, Sri K. L. Manjunath, the Learned Counsel for the Corporation, Sri B. S. Keshava lyengar. the Learned Counsel for the petitioner in W. P. No. 18351 of 1986 and Sri G. S. Bhat, the Learned Counsel for the six persons who are applicants in 1.A-II for impleading them as respondents in W.P. No. 18351/1986, whose public interest Petitions, similar to the first three Petitions, are pending before a Learned Single Judge, who was allowed to intervene, orders were reserved. These petitions are disposed of by this common order.
3. The facts of the case, in these three Writ Petitions are as follow: The Corporation of the City of Bangalore accorded permission to respondent No. 3 for construction of a building vide licence bearing L. P.No. 2611/80-81 on 25-10-1980. The licence granted was for construction of a multi-storied commercial building on premises bearing Municipal Corporation Nos. 771 to 774, O.T C. Road, Chickpet, Bangalore. The total area of the site is 4650 Sq.ft. According to the plan sanctioned the floor area of each of the floors permitted to be constructed were, basement floor-3937 1/2 Sq.ft., ground, first, second and third floors - 3701 1/2 Sq.ft. each. The total area permitted for construction comes to 1874 1/2 Sq.ft. The width of the road facing this building is 31 ft. There is no dispute that the site is situate in an area described as intensively developed area under the Zoning Regulations forming part of the ODP promulgated under the Planning Act on 22-5-1972. The relevant portion of the ODP, as published by the Planning Authority is as below :
'F.A.R. Height of building P.C. Coverage of plot and the road widths for different site areas for commercial buildings.
Sl.NoArea of plots in Sq. Mts.Intenselydeveloped areas* Max. No. of floorsMax. % coverageFARMax.ht. of buildings in Mtrs. Min. road width in meters
Less thanLess than1.Upto 90(upto 1000 sft)3851.01135'7.024' 3851.51135'7.024'2.90-185(1000-2000) sft.5851.51755'3.024'3,185-280(2000-3000 sft).7802.0227512.040'4.280=370 (3000-4000 sft).9752.53010012.040'5.370-465(4000-5000 sft.) 11702.53612018.060'
*Floor. 1. Exchange staircase, lift room and water tank etc.
2. When sites do not face roads of required width noted against each, the F.A.R. and the maximum No. of floors applicable to other categories of sites facing corresponding width of roads, shall apply.'
There has been a grievous error in the Zoning Regulations as printed by the Corporation in that the words 'less than' at the column relating to the minimum width of the road was omitted (See: pages 2560, 2561 and 2562 of ILR 1986 KAR of the report commencing at p.2536, : ILR1986KAR2536 ). Though the area of the site of respondent No. 3 is 4650 Sq.ft., as it faces the O.T.C. road, whose width at the point is 31 feet, the maximum plot coverage and F.A.R. applicable are those at Serial No. 4 of the table. Therefore, the maximum plot coverage permitted is 75 percent and the floor area, ratio, that is the ratio between the total area of the site to the total floor area of all the floors permitted to be constructed put together excluding stair-case and lift room was 1:2.5. In other words, the total area of all the floors excluding stair-case, lift room could not exceed 4650 Sq Ft. multiplied by 2.5, which comes to 11625 Sq.ft. However, under the sanctioned plan, plot coverage was 79 % and the ratio between the area of the site and the total floor area of the building was 1:4 including stair-case, lift room etc., and therefore prima facie, there was violation of the provisions of the Planning Act and the O.D.P. and the Zoning Regulations. Therefore, they have sought for a declaration that the licence granted by the Corporation is illegal and for appropriate direction to the Corporation to take action to bring the building in conformity with the Zoning Regulations.
4. The matter is not resintegra both on the right of the residents to question as to the legality of the licence granted by the Corporation in Contravention of the ODP and the Zoning Regulations framed under the Planning Ad in view of Section 14 of the Planning Act and Section 505 of the Karnataka Municipal Corporation Act, 1976 ('the Municipal Acs', for short), which prohibits Corporation authorities from granting permission in contravention of the provisions of the Planning Act and on the question of granting such a relief in a Petition by the residents of the City under Article 226 of the Constitution. It is covered by a Division Bench decision of this Court in M.D.Narayana v. State of Karnataka, 1982-2 KLJ Sh. N No. 35, which decision has been confirmed by the Supreme Court in the case of B.K. Srinivasan v. State of Karnataka, CA Nos. 2780-81 of 1982, DD 19-1-1987. Further, the matter with reference to the construction of a commercial building in the O.T.C. Road, Chickpet, itself having due regard to the provisions of the ODP and the Zoning Regulations applicable thereto, has been decided by a Division Bench of this Court in S.K. Sharma v. Corporation of the City of Bangalore, : ILR1986KAR2536 . There is also another Division Bench decision upholding the mandatory character of the Zoning Regulations, Shanta v. Commissioner, Corpn. of City of Bangalore - : AIR1987Kant48 . In these decisions after elaborate consideration of the provisions of the Corporation Act and the Planning Act, it has been held that the provisions of the Planning Act have overriding effect and in view of Section 505 of the Corporation Act, there is no power in any of the authorities of the Corporation of the City of Bangalore to grant a licence or permission for construction of a building contrary to the ODP and the Zoning Regulations promulgated under the Planning Act and consequently they are in duty-bound to modify the licence granted in contravention thereof so as to bring it in conformity with the provisions of the ODP and the Zoning Regulations.
5. From the decision in Narayan's case, 1982-2 KLJ Sh. N No. 35 it may be seen that by and large existence of ODP and the Zoning Regulations were ignored and it has been the plea of the builders that they had not come into force which was found to be incorrect. As the licence to Respondent-3 was issued in 1980 before that Judgment, the conditions and restrictions imposed by the ODP and the Zoning Regulations might have been overlooked. In fact in the statement of objection filed by the Corporation the fact that the sanctioned plan, in certain respects, violated the Zoning Regulations is admitted. Such violation is not seriously disputed by respondent No. 3, though he takes the stand that the violations are not much and that similar violations were permitted by the Corporation in other cases. Sri Manjunath, the Learned Counsel submitted that under the bye-law marginal violations upto five per cent could be compounded, but not more. In the circumstances, the appropriate course for us is to make an order directing the Corporation to examine the matter with reference to the O.D.P. and the reply of Respondent-3 as had been done in the case of S K. Sharma, : ILR1986KAR2536 and to take action in the light of the findings. Learned Counsel for the Corporation also agreed that, that should be the appropriate order to be passed in the case.
6. Learned Counsel for Respondent No. 3, however, contended that the three petitions do not deserve to be allowed on the following grounds :
(1) The petitions are barred by res judicata as a similar public interest petition filed by some other residents had been dismissed and even a Writ Appeal presented against that order had been dismissed by a Division Bench of this Court;
(2) The petitions are not bona fide, in that the petitioners have not presented these petitions in public interest, but only at the instance of a third party, who has a grouse against Respondent-3;
(3) There has been in ordinance ate delay in presentation of the petitions,
In support of the first contention, the third respondent has produced the order made by a Learned Single Judge of this Court in Writ Petition No. 6238 of 1986, in which two persons challenged the legality of the very licence granted in favour of Respondent-3 and the undertaking of the construction of the building by Respondent-3. The order reads :
'Aggrieved by the construction of the second respondent contrary to the bye-laws and the provisions of the Karnataka Municipal Corporation Act 1976, this Writ Petition is filed by the petitioner.
2. It is alleged that the licence obtained by the second respondent has now expired and therefore, he cannot take up construction work of the building at Old Taluk Kacheri Road, Chickpet, Bangalore.
3. Second respondent who bad entered caveat has brought to the notice of this Court an endorsement bearing No AEE (C)/OC/528/85-86 dated 17-12-1985 by which it is clear that the licence granted in L.P No. 2611/80-81 sanctioned on 25-10-1980 is held to be current and he is instructed to carry out the work as per sanction The reasons are also given as to why the building construction had not been completed. There is a reference also to the proceedings in Court under the Rent Control Act in which the concerned Court has given directions in regard to the construction. The argument that the licence has expired for the construction should not merit consideration by this Court.
4. It was next urged by Sri H. K. Vasudeva Reddy that the construction is not in accordance with the bye-laws inasmuch as the road which is only about 35' cannot have more than 3 floors. But it is submitted by the caveat or second respondent that the petitioners themselves had constructed building on that road which has about 8 floors admittedly Therefore, one law breaker cannot blame the other law breaker
5 This Court sitting in writ jurisdiction without examining the correctness or otherwise of the argument based on the relevant bye-laws, cannot go into the question whether the construction is in accordance with the bye-laws or not.
Therefore, the petition is dismissed.'
(Underlining by us)
The Learned Counsel for Resppndent-3 submitted that as the grounds urged in the said Writ Petition were also that the construction was contrary to law, and the Writ Petition was rejected by this Court, on the same cause of action, no second public interest petition would lie and it would be barred by the principle of res judicata in view of Explanation IV to Section 11 of the Code of Civil Procedure. He also invited our attention to the order made in Writ Appeal No. 823 of 1986, in which a Division Bench of this Court dismissed the Writ Appeal with the following words: 'Heard Rejected.' In support of his submission, the Learned Counsel for Respondent-3 relied on the following decisions : The Virudhanagar S.R. Mills v. Madras Governmant, : [1968]70ITR726(SC) , Union of India v. Nanak Singh, : (1970)ILLJ10SC , State of U.P v. Nawab Hussain, : [1977]3SCR428 , Forward construction Co. v. Prabhat Mandal, : AIR1986SC391 .
7. Sri S. Vijayashankar, the Learned Counsel for the petitioners did not dispute that if a proper and bona fide presented public interest petition was rejected on merits by the Court another petition by some other persons based on the same cause of action, would be barred. He also agreed that such dismissal of the petition even by a short order stating that there was no substance in any, of the contentions raised or even without assigning any reason might operate as res judicata. But, in the present case, the Learned Counsel submitted that the petition was dismissed without expressing any (opinion on the grounds urged in the petition on the ground that as the petitioners in the said case themselves had undertaken constriction contrary to law they could not be permitted to challenge the legality of the construction undertaken by another.
8. Among the decisions on which the Learned Counsel relied, the latest i.e. the case of Forward construction Co, : AIR1986SC391 . is the most apposite to this case as it relates to a public interest petition. In that case what had happened was an earlier public interest petition was dismissed both on merits and also on the ground that the petition was not bona fide. When a second petition was presented on the same cause of action, though a Single Judge dismissed it as barred by res judicata, the Division Bench of the Bombay High Court held that the case was not barred by res judicata on two grounds. In appeal, the Supreme Court held that the first reason was bad, whereas the second was good. The relevant portion of the Judgment reads :
'19. The second question for consideration is whether the present Writ Petition is barred by res judicata. This plea has been negatived by the High Court for two reasons : (1) that in the earlier Writ Petition the Validity of the permission granted under Rule 4(a)(i) of the Development Control Rules was not in issue ; and (2) that the earlier Writ Petition filed by Shri Thakkar was not a bona fide one inasmuch as he was put up by some disgruntled builder, namely, Western Builders.
20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present Petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11, CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.
21. The second reason given by the High Court, however, holds good. Explanation VI to Section 11 provides :
'Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right, shall, for the purposes of this Section be deemed to claim under the persons so litigating.'But it is only when the conditions of Explanation VI are satisfied that a decision in the litigation will bind all persons interested in the right litigated and the onus of proving the want of bona fides in respect of the previous litigation is on the party seeking to avoid the decision. The words 'public right' have been added in Explanation VI in view of the new Section 91 CPC and to prevent multiplicity of litigation in respect of public right. In view of Explanation VI it Cannot be disputed that Section 11 applies to public interest litigation, not by way of a private grievance. It has to be a bona fide litigation in respect of a right which is common and is agitated in common with others.'
The above decision is a complete answer to the contention of the third respondent. A reading of the order of the learned Single Judge, in particular the portion of the order underlined by us, would show that the learned Judge dismissed the, petition on the ground that the petitioners themselves had not come with clean hands and they themselves being law breakers, did not deserve the assistance of the Court under Article 226 of the Constitution and consequently did not examine the validity of any of the contentions regarding the licence being contrary to the provision of the bye-law and/or the ODP or Zoning Regulations. The Appellate Bench also, without going into the merits, rejected the appeal. Therefore, we find no substance in the first contention raised on behalf of the third respondent.
9. As regards the second question, the allegation made by respondent 3 is that these petitioners have been instigated by one Shivkumar, who has himself constructed a building in the same road contrary to the ODP and the Zoning Regulations, on account of personal vengeance against Respondent-3. The Learned Counsel for Respon-dent-3 relied on the decision of the Supreme Court in R.D. Shetty v. I.A. Authority, : (1979)IILLJ217SC and in S.P. Gupta v. President of India, : [1982]2SCR365 . He also invited our attention to the Judgment of the Supreme Court and the observations of Khalid. J, in S. Pandurang v. State of West Bengal. He produced a photostat copy of that judgment. The observations are :
'To-day public spirited litigants rush to Court to file cases in profusion under this attractive name. They must inspire confidence in Courts and among the public. They must be above suspicion.'
There is no doubt about the proposition that public interest Petition presented by persons lacking in bona fides and acting for personal and political gain cannot be entertained. But in these cases, there is no material or circumstance placed before the Court to show as to why these petitioners should have played into the hands of Shivkumar, even assuming that there is rivalry between respondent-3 and Shivkumar. The Learned Counsel for the petitioners submitted that the allegation was baseless. Apart from this, Sri G.S. Bhat, Learned Counsel appearing for the applicants in I.A- II for impleading in the connected W.P. No. 1835J/1986 who are (he residents of the City doing business in the locality, submitted that they have filed another public interest petition in W P. No. 977/1987 in which they have questioned the legality of this very licence as also further construction undertaken by respcndent-3 even going beyond the licence granted. In that Writ Petition, Rule Nisi has been issued and is pending before the learned Single Judge. Apart from the six other residents challenging the legality of the construction undertaken by respondent-3, in the records of the Corporation, produced by the learned Counsel for the Corporation, there is a letter dated 9th March 1986 written by the Minister for Municipal Administration to the then Commissioner of the Corporation of the City of Bangalore. The said letter reads :
'Prof. A. Lakshmisagar.
Minister for Urban Development,
Law and Parliament Affairs.
Vidhana Soudha,
Bangalore-l.
Dated : 9-3 1986
Dear Sri Prakash,
Today, I inspected the Chickpet area. During inspection I have observed that a building is under construction at the junction of Armugam Mudaliar Street, opposite to Anand Bhavan, Chickpet. This area comes under 'A' Zone where you have allowed cellar floor which is not permissible as per bye-law. They have removed the street name board of Armugam Muda-liar Street and kept aside.
In the mean while, it is directed to take steps to stop further construction pending taking final decision in this behalf. Mr. B.Basavalingappa, MLA and former Municipal Administration Minister has given notice to raise this matter on the floor of the Assembly besides his telephonic talk to me about the sanction of the L.P. in question is in flagrant violation of the building bye-laws. It is a matter of regret that in the heart of the City, the construction has commenced and considerable progress is also made by the applicant. I should like to know whether or not he has obtained commencement certificate from the concerned officer of the Corporation. This may be treated on top priority basis.
Further, observed that the covering slabs on the S/side of Chickpet road has dislodged which requires immediate attention.
Thanking you,
Yours sincerely,
Sd/ - A. Lakshmi Sagar.'
Pursuant to the aforesaid directions, a note was put up on 12-3-1986 by the Superintending Engineer (East), Corporation of City of Bangalore, in which it is specifically stated that the construction referred to in the letter of the Minister is the construction undertaken by respondent-3, and that in certain respects the sanctioned plan was in violation of the ODP and the Zoning Regulations. On the very same day, a notice was issued to respondent-3 by the Commissioner. The notice reads :
'CORPORATION OF THE CITY OF BANGALORE
No. SE/E/PS414/ 85-86. Office of the Commissioner,Bangalore City Corporation,Bangalore, Dated : 12-3-1986. 1. Sri D. P. Sharma,
Partner,
Vinayaka Investment Pvt. Ltd.,
No- 771, 772, 773 & 774,
Taluk Cuchery Road (Chickpet),
Bangalore.
2. Sri Ramakrishna Rao,
Partner.
Vinayaka Investment Pvt. Ltd.,
No. 771, 772, 773 & 774,
Taluk Cuchery Road (Chickpet)
Bangalore.
Sir,
Sub : L. P. No. 2611/80-81 dt. 25-10-80.
Pursuant to the application filed by you seeking permission to construct the building on site No. 771, 772, 773 and 774, permission was granted by this office in Letter No. LP No 2611/80-81 dated 25-10-1980.
The licence granted to yon for the construction of the building on the site in question under LP No. 2611/80-81 dated 25-10-80 is no? in accordance with the provisions of the Town Planning Act 1961 and the regulations framed thereunder, the building bye-laws and zoning regulations pertaining to building even at the time of sanction of plan for the following reasons :
1. The road width is 31 feet. Therefore, the permissible FAR is 1.5, whereas the FAR in the sanctioned plan is 2.56.
2. The car parking should have been provided for 22 cars. Provision for this is not given in the sanctioned plan.
In view of the above violations, the plan sanctioned is contrary to the then prevailing bye-laws and zoning regulations at the time of sanction and it is not in accordance with the provisions of Town and Country Planning Act 1961, and the regulations framed thereunder, and therefore if any licence was given by any of the Corporation authorities in contravention of the provisions of the Town and Country Planning Act, or Zoning Regulations framed thereunder, it becomes invalid and such license should be cancelled as there was no authority to give any such licence.
Therefore, in exercise of the powers vested in me under Section 505 of the Karnataka Municipal Corporations Act 1976, I hereby call upon you to show cause within 3 days as to why the L.P. No. 2611/80-81, should not be revoked immediately and pending your showing cause, you are directed to stop further construction of the building, failing which, action as contemplated under the provisions of Section 461 of the K.M.C. Act 76, will be taken and you will also render yourself liable for all consequences in the event of proceeding with further construction inspite of service of this notice.
Yours faithfully,
Sd/- Commissioner.'
Respondent No. 3 filed a detailed reply on 18-3-1986. If the Corporation was allowed to decide the matter, the public interest petitions would have become unnecessary. But respondent No 3 having sent a reply to the show cause notice filed a Civil Suit before the City Civil Court in O. S. No. 1118 of 1986 and sought for temporary injunction against the Corporation restraining it from taking any further action pursuant to the aforesaid notice. The learned City Civil Judge by order dated 25-3-1986 granted the temporary injunction as prayed for, inter alia, on the ground that in view of the ratio of the decision of this Court in D. Achaiah Setty v. Corporation of City of Bangalore, 1972(1) Mys. L.J. 186, there was no power given to the authorities of the Corporation under any of the provisions of the Act to cancel the licence once granted irrespective of its illegality. In the course of the order, the learned Judge also set out the actual floor area of the building as sanctioned in the plan vide paragraph 28 and 29, which read :
'28. As can be seen from the Annexure-B, the plan the total area permitted for construction is at 3937/2 Sq. ft. over the basement and 3701 1/2 sq. ft. each over the ground floor, first to third floors. Thus the total area permitted for construction over the plot over these entire 5 floors is at 3937 1/2 plus 3701 1/4 plus 3701 1/4 plus 3701 1/4 plus 3701 1/4 = 18742 1/2. No doubt it is true that while calculating the total floor area, the basement floor need not be considered as stated in at page 19 of the Regulations even if we add it for the purpose of total area it does not come in the way to find out the area earmarked for staircase etc.
29. Thus the plaintiff was allowed to construct in all the 5 floors totally measuring at 1874 1/4 Sq. Ft. Thus the average construction permitted per floor is at 3748.50 Sq. Ft.'
Applying the F.A.R. at 2.5, the learned Judge easily explained away the excess as follows :
'Thus under the licence and plan sanctioned in favour of plaintiff, the plaintiff is compelled to reserve 1936 Sq. ft. in average in each of the floors for staircase, lift rooms, water tanks etc.'
He did not ascertain as to what was the area of the staircase and lift room in each floor as provided for in the licence and he did not explain how area of lift room and stair case could be as large as 1936 Sq. ft. in each floor. He did not even visualise how there could be water tank in each of the floors and did not say factually it was provided for. The Miscellaneous Appeal No. 723 of 1986 presented by the Corporation, was, however, dismissed by a learned Judge of this Court solely on the ground that the Corporation had no power to cancel or modify a building licence after its issue even if it was contrary to Zoning Regulations. Relevant part of the Judgment reads :
'3. The contention raised by the Learned Counsel for the appellant-defendant was that the Trial Court should not have ignored the position that the appellant had power under Section 505 of the Karnataka Municipal Corporation Act, 1976 (for short 'the Act'), to revoke a licence granted earlier for construction of a building or to withdraw the approval of plan granted earlier for such construction of building. In support of his contention, the Learned Counsel sought to place reliance on the decisions of this Court in Shanta v. Commissioner, Corporation of the City of Bangalore : AIR1987Kant48 ; S. K. Sharma v. Corporation of the City of Bangalore (W.P. No. 15996/1981 DD 18-7-1986) and the decision of the Supreme Court in K. Ramadas Shenoy v. The Chief Officer, Town Municipal Council : [1975]1SCR680 .
4. Sri H.B. Datar, Learned Counsel appearing for the respondent-plaintiff submitted that no power is conferred under Section 505 of the Act on the Commissioner to revoke any licence granted earlier for construction of a building or to withdraw the approval of a building plan with reference to which licence for construction of a building had been issued. It was his further submission that the contention raised on behalf of the appellant, is no longer res integra, in that, it has been concluded by the decisions of this Court in Achaiah Setty v. the City Bangalore Municipal Corporation, Bangalore (1972-1 Mys. L.J. 186) Abdul Lathif v. Corporation of the City of Bangalore (1930-1 Kar. L.J. 172) and Premchand v. Corporation of City of Bangalore (1981-1 Kar L.J. 300). He sought to Distinguish the cases relied upon by the Learned Counsel for the appellant on the basis that those are the cases where either neighbours or the residents of the locality have sought to impugn the licences or the sanctioned plans obtained by certain persons on the ground that those licenses had not been granted and the plans had not been approved either according to the Zonal Regulations or other bye-laws of the Corporation.
5. The Learned Counsel appearing for the appellant-defendant could not dispute the position that the cases relied upon by him were not those in which the Municipal Corporation itself or its Commissioner had sought to revoke the licences earlier issued or withdraw the approval granted respecting building plans. It was also not disputed by the Learned Counsel for the appellant that the decisions of this Court relied upon by the Learned Counsel for the respondent conclusively hold against the contention advanced by him. Further as I am not shown any good ground to disagree with the reasonings adopted in those decisions to negative the contention similar to-one now advanced on behalf of the appellant. I have no option but to follow them and dismiss this appeal.'
The learned Judge also held that while it was open to the residents to challenge the legality of the licence and get it set aside, the Corporation authorities had no power. It is in this situation the residents, having no other alternative, shortly after the grant of injunction, by the City Civil Court, presented the petitions on 25-4-1986. In view of the facts and circumstances, we are convinced that the petitions have been presented in public interest and there is no substance in the allegation that they have been presented at the instigation of the third party.
10. There is also no substance in the contention that the petitions are liable to be dismissed on the ground of delay and laches in presenting the petitions. The main ground on which respondent-3 raised this plea was that the licence had been granted in the year 1980 and the construction was started by respondent-3 as early as in the year 1982, but the Writ Petitions were presented in the year 1986. It is true that respondent-3 secured the licence in the year 1980 and the Writ Petitions were presented on 25-4-1986. The very facts stated by respondent-3 while raising this plea are sufficient to reject the plea. The relevant portion of the statement of objection in which this plea is raised reads :
'This Writ Petition is filed before this Hon'ble Court only on 25-4-1986 nearly 6 years after the grant of the licence and several months after the construction of the building has gone on, and if as the petitioners claim that they are carrying on the business in the locality, they would have seen these con struction and approached the Court without delay. By the time the petitioners filed before this Hon'ble Court, the respondent-3 had already completed the basement, ground and the first floor, and now even the first and second floors are fully completed.'
(Underlining by us)
Even according to respondent-3 though they started construction work some time in 1982, they could not undertake construction of the building as the old premises had to be demolished which were in occupation of the tenants and the premises were vacated pursuant to the orders passed in Rent Control Cases and original suits only some time between December 1985 and March 1986. This is also evidenced from one of the documents produced by respondent-3 himself. It reads :
'No. AEE(C)/cc 528/85-86. Office of the AEE.Bangalore City Corporation BangaloreDated 17-12-85.ENDORSEMENT
Sub : L. P. No. 2611/80-81 sanctioned on 25-10-1980 commencement certificate.
Ref : Letter No. 6 of Vinayaka Investment, 771/74, Chickpet Main Road, Opp : Bombay AnandBhavan, Bangalore.
The premises No. 771 to 774 in O.T.C. Road, Chickpet in Division No. 25 was inspected on 16-12-85 and found the two R.C.C. columns are already existing on the north eastern portion of the proposed building. With reference to the building plan sanctioned by the Bangalore City Corporation in L.P. No. 2611/80-81 and it is also found that the same is as per the sanctioned plan. It is also learnt that these columns were cast during October 1982 itself. The other portion of the building work was not commenced due to some legal complication with the tenants. Now, the Court has issued directions to the tenants to vacate and to construct with reasonable time in accordance to the plan approved by BCC in L.P. No. 2611/80-81 dated 25-10-1980, vide Court order H.R.C. No. 1746/1980.
i. The work should be carried out strictly as per the sanctioned plan without deviation or violation of rule or byelaws.
ii. When the work has reached the completion of foundation or footing/column fixed BCC shall be intimated regarding programme of work.
Sd/- AEE, Bangalore
City Corporation, Chickpet
Sub-Division, Bangalore.'
(Underlining by us)
It is clear that till December 1985 except putting up two R.C.C. Columns, respondent No. 3 had not undertaken any construction. Therefore, even before respondent-3 crossed the permitted limits under ODP and the Zoning Regulations in the construction of the building, the petitions were presented.
In this context, it is also necessary to observe that in the case of M. D. Narayan, 1982-2 KLJ Sh. N No. 35 the attention of this Court was invited to large number of illegal licences issued by the Corporation authorities in plain contravention of the Zoning Regulations and this Court made the following observations in the said case :
'It was submitted that the Corporation had granted licence for construction of many such high-rise residential apartments in contravention of the ODP and in several other cases, the application for grant of such licences were not disposed of within the maximum period fixed under Sections 301 and 302 of the Corporation Act, licences were deemed to have been granted as provided in Section 302(2) of the Corporation Act, and therefore there was no justification to interfere with the licence granted to the builders. A long list of such cases have also been filed by the Learned Counsel for the builders. While we are deeply distressed by the facts disclosed, we are least impressed by the submission. If the facts disclosed by the builders are true as indeed the material placed before us prima facie indicate they betray a disturbing state of affairs in the matter of grant of building licences by the Corporation, in that the Corporation, which is entrusted with the duty of protecting the interests of the citizens of the City has committed a serious breach of duty by its failure to conform to the ODP, the obedience to which by it is obligatory in view of Section 505 of the Corporation Act and calls for, an inquiry by its Administrator and the Government, and stern follow up action to prevent such blatant violation of the ODP by the licensing authority, which brings the provisions of the Act to public ridicule and undermines the respect for law. It would be another travesty of law, if we were to uphold the validity of the impugned licences on the ground that several such illegal licences have been or deemed to have been granted.'
The judgment in the case of M. D. Narayan, 1982-2 KLJ Sh. N No. 35 was delivered on 11-6-1982 and in view of the observations, it was the duty of the Corporation authorities to take action to modify the licences and plans already sanctioned so as to bring them in conformity with ODP and the Zoning Regulations. The Corporation authorities have failed in their duty to do so. It was only after the D.O. letter of the Minister to the Commissioner of the Corporation, action was initiated against respondent-3 which they were required to take much earlier in view of the Division Bench decision which has since been confirmed by the Supreme Court. But, as stated earlier, respondent 3 secured an injunction order against the Corporation from the City Civil Court from taking further action and as that order was also confirmed in Miscellaneous Appeal by a learned Single Judge of this Court on the ground that in view of the earlier decisions of this Court, the Corporation authorities had no power to modify a licence, however, illegal it might be, the petitioners have presented these petitions shortly thereafter. Hence, we find no substance in the contention urged on the ground of delay.
11. We are also convinced that the contention of respondent-3 that once the licence is issued, the authorities of the Corporation are powerless to rectify it even if the licence was found to be plainly and substantially contrary to the ODP or the C P or the Zoning Regulations. In this behalf, it is necessary to clarify certain aspects regarding the three decisions of this Court, which are made the basis to say that there is no power vested in the authorities of the Corporation to cancel or modify a building licence, once issued however illegal it might be and whatever be its contravention and under any circumstance.
At the outset, we should make it clear that in the light of the Division Bench Judgment in M. D. Narayan's case, 1982-2 KLJ Sh. N No. 35, the Corporation authorities have not only the power but are under a duty to modify the licences granted in contravention of the ODP or the CDP and the Zoning Regulations as they have no power to issue a licence contrary to them and the earlier three decisions could no longer continue the basis for holding that the Corporation have no authority to do so.
The first case is D. Achaiah Setty, 1972(1) Mys. L.J. 186. That case was under the provisions of the City of Bangalore Municipal Corporation Act, 1949. In the said case the building licence granted was sought to be cancelled on the ground that there was a mistake in granting the licence. In the said case, a Division Bench of this Court held that the cancellation of licence was without authority of law. In that very case at paragraph 4, the Division Bench stated thus :
'That there is no specific provision of the Statute empowering a withdrawal of the licence of the nature concerned in this case is not disputed nor is disputable There is power for cancellation in the event of any breach of any of the conditions of the licence, vide Sub-section (4) of Section 385 of the Act'
Section 385(4) of the 1949 Act reads :
'385. GENERAL PROVISIONS REGARDING LICEN-CES, REGISTRATIONS AND PERMISSIONS :
(4) Subject to the special provisions in Chapter X and XII regarding buildings and private markets and subject to such sanction as may be required for the refusal of a licence or permission, any licence or permission granted under this Act or any rule or bye-law made under it may at any time be suspended or revoked by the Commissioner, if any of its restrictions, limitations or Conditions is evaded or infringed by the grantee, or if the grantee is convicted of a breach of any of the provisions of this Act or of any rule, bye-law, or regulation made under it in any matter to which such licence or permission relates or if the grantee has obtained the same by misrepresentation or fraud.'
Therefore, from the underlined portion of the Division Bench Judgment, it is clear that a licence granted for construction of a building could be cancelled on one or more of the grounds specified in Section 385(4) of the Act. It is no doubt true that in the earlier sentence and at paragraph 9 of the same Judgment, the Division Bench stated that there was no provision in the statute or any power expressly conferred on the Commissioner or even on the Corporation to withdraw a licence already issued. But the said sentences cannot be read in isolation, when the Division Bench has expressly stated that there is power for cancellation of the licence in the event of any breach of any of the conditions of licence under Sub-section (4) of Section 385 of the Act. Sub-section (4) of Section 443 of the Karnataka Municipal Corporations Act, 1976, which replaced the 1949 Act is similarly worded.
In the case of Abdul Lathif v. Corporation of City of Bangalore, 1980(1) KLJ 172, Puttaswamy, J, held that as Sub-section (4) of Section 443 of 1976 Act was in pari materia with Section 385(4) of the Act, in view of the decision in Achaiah Setty's case, 1972(1) Mys. L.J. 186, it should be held that there was no power vested in the Commissioner to revoke or cancel a licence under any circumstances.
In the case of Premchand v. Corporation of the City of Bangalore, J981(1) KLJ 300, Sabhahit, J, concurred with the view expressed in Abdul Lathif's case, 1980(1) KLJ 172. In both these cases, the aforesaid sentence in the Division Bench decision has gone unnoticed. In the case of Premchand, J981(1) KLJ 300, the learned Judge further held that in view of the opening words of Section 443(4), that is, 'subject to the provisions of Chapter-IV regarding buildings' the said sub-section was not applicable to building licences. The correctness of this view is doubtful. However, obviously in view of this Judgment the Section has been amended by the 1986 Amendment incorporating a non obstante clause in place of the opening words of the sub-section. Therefore, all the three decisions do not hold the field. Though this amendment came into force on 17th June 1986, it was not brought to the notice of the learned Single Judge who decided the Miscellaneous Appeal on 29-7-1986.
12. Apart from this, it should be pointed out that Achaiah Setty's case, 1972(1) Mys. L.J. 186 arose under the old Act and there was no provision similar to Section 505 of the 1976 Act, and in the two subsequent decisions, Section 505 was not noticed or invoked. But in M.D.Narayan's case, 1982-2 KLJ Sh. N No. 35, this Court pointed out to the effect of Section 505 of the Act on the licence granted in contravention of the ODP. In order to appreciate the full scope of Section 505, it is necessary to set out Section 14 and 76M of the Planning Act and Section 505 of the Municipal Corporation Act, 1976.
'14. ENFORCEMENT OF THE OUTLINE DEVELOPMENT PLAN AND THE REGULATIONS : (1) On and from the date on which a declaration of intention to prepare an outline is published under Sub-section (1) of Section 10 every land use, every change in land use and every development in the area covered by the plan shall conform to the provisions of this Act, the Outline Development Plan and the regulations, as finally approved by the State Government under Sub-section (3) of Section 13.
(2) No such change in land use or development as is referred to in Sub-section (1) shall be made except with the written permission of the Planning Authority which shall be contained in a commencement certificate granted by the Planning Authority in the form prescribed.
76M. EFFECT OF OTHER LAWS : (1) Save as provided in this Act, the provisions of this Act and the rules, regulations and bye-laws made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law.
(2) Notwithstanding anything contained in any such other law--
(a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained ;
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained.'
505. EXERCISE OF POWERS BY A CORPORATION TO BE IN CONFORMITY WITH THE PROVISIONS OF THE KARNATAKA TOWN AND COUNTRY PLANNING ACT, 1961 - Notwithstanding anything contained in this Act, a corporation or any officer or other authority required by or under this Act to exercise any power or perform any function or discharge any duty--
(i) with regard to any matter relating to land use or development as defined in the Explanation to Section 14 of the Karnataka Town and Country Planning Act, 1961, shall exercise such power, or perform such function or discharge such duty with regard to such land use or development plan or where there is no development plan, with the concurrence of the Planning Authority ;
(ii) shall not grant any permission, approval or sanction required by or under this Act to any person if it relates to any matter in respect of which compliance with the provisions of the Karnataka Town and Country Planning Act, 1961, is necessary unless evidence in support of having complied with the provisions of the said Act is produced by such person to the satisfaction of the corporation or the officer or other authority, as the case may be.'
The combined effect of these provisions is that any licence or permission accorded in contravention of the ODP or the CDP, the Zoning Regulations would be void and no permission in the eye of law, and from this it follows that if a licence had been issued in contravention of the ODP or the CDP, it confers no right on the person who had secured the licence and consequently the authorities have not only the power but are under a duty to rectify it or issue a fresh licence so as to bring it in conformity with the ODP and the Zoning Regulation.
Apart from this, it is also necessary to refer to Sections 307 and 308 of the 1976 Act, which reads :
'307. INSPECTION BY COMMISSIONER -- The Commissioner may inspect any building during the construction or reconstruction thereof or within one month from the date of receipt of the notice given under Section 115.
308. POWER OF COMMISSIONER TO REQUIRE ALTERATION OF WORK-- (1) If the Commissioner finds that the work--
(a) is otherwise than in accordance with the plans or specifications which have been approved, or
(b) contravenes any of the provisions of this Act or any rule, bye-laws, order or declaration made under this Act he may by notice require the owner of the building within a period stated, either--
(i) to show cause why such alterations should not be made, or
(ii) to make such alterations as may be specified in the said notice with the object of bringing the work into conformity with the said plans, specifications or provisions.
(2) If the owner does not show cause as aforesaid he shall be bound to make the alterations specified in such notice.
(3) If the owner shows cause as aforesaid, the Commissioner shall by an order cancel the notice issued under Subsection (1) or confirm the same subject to such modifications as he may think fit.'
These provisions expressly confer power on the Commissioner not only to ensure that constructions are made in conformity with the sanctioned plan, but also so make modifications in the sanctioned plans already granted so as to bring [he sanctioned plan in conformity with the provisions of the Act or any rule or bye-law. Therefore, if in a case if it comes to the notice of the Commissioner any sanctioned plan, was for any reason, in plain contravention of the provision of the ODP or the CDP, even without cancelling it, the Commissioner has the power to make alterations in the plan so as to bring it in conformity with law and communicate to the party concerned and thereafter he is bound to conform to the alterations so made by the Commissioner. Therefore, there is no substance in the contention of respondent No. 3 that once the licence is sanctioned, however illegal it may be, there is no power vested in the authorities of the Corporation to cancel or modify the licence so granted. It is needless to say that the exercise of powers under all these provisions must be reasonable and within a reasonable time. On the facts of this case, the action initiated was reasonable and was within a reasonable time as admittedly, by the time the show cause notice was issued on 12-3-1986, Respondent-3 had not constructed beyond the first floor and that was the position even by the time these Writ petitions were filed as stated by Respondent-3 itself in the statement of objection.
13. Before concluding these three petitions, it is necessary to refer to another submission made by the learned Counsel for the petitioners. Their contention has been that actually Respondent-3 could not and did not commence construction before the expiry of two years from the date of licence as the premises was in occupation of several tenants and pursuant to the orders of the Court they vacated the premises only between December 1985 and February 1986 and consequently the licence granted earlier stood expired and Respondent-3 therefore was required to take a fresh licence and such licence shall have to be in conformity with the CDP under which the conditions imposed are more stringent. In support of this contention, the Learned Counsel for the petitioners relied on Section 306 of the Act. It reads :
'306. Lapse of permission if not acted upon within two years :- If the construction or re-construction of a building is not commenced within two years after the date on which permission was given to execute the work, the work shall not be commenced until a fresh application has been made and a fresh permission granted under this Chapter.'
There can be no doubt if Respondent-3 had not commenced construction under the licence granted in the year 1980 he could undertake construction only under a fresh licence, and for such fresh licence the provisions of the CDP promulgated on 18-10-1984 would be attracted.
14. As stated earlier, the 3rd respondent has stated that he commenced construction in the year 1982. This is also supported by the endorsement issued by an Engineer of the Corporation extracted earlier. The Learned Counsel for Respondent-3 also invited our attention to the deposition of Respondent-3 in the eviction case in which he had stated that he had commenced the construction in the year 1982. The Learned Counsel for the petitioners, however, doubted the veracity of the statement made by the Engineer as it was made in the endorsement of December 1985. He further submitted that when the time was given to the tenants to vacate the premises till March 1986 and they vacated some time between December, 1985 and March 1986, it was impossible for Respondent-3 to have undertaken the construction in the year 1982 as it could be undertaken only after demolition of old building. The Learned Counsel for Respondent-3, however, submitted that a part of the building was not in occupation of the tenant and in that portion Respondent-3 had put up two pillars in 1982 and thereby commenced the work in 1982. On the material placed before us it is difficult to conclude that Respondent-3 had not commenced construction in the year 1982,. Therefore, we consider safe to proceed on the basis that Respondent-3 had started construction, to whatever little extent it might be, in 1982 and therefore in view of Section 306 of the Act itself it was not necessary for Respondent-3 to secure a fresh licence and therefore the validity of the licence granted to Respondent-3 in the year 1980 has to be tested only with reference to the provisions of the ODP and Zoning Regulations annexed thereto.
15. In the result, we hold that these three petitions are entitled to succeed and we should make an order on lines similar to the one made in S.K. Sharma's case, : ILR1986KAR2536 .
16 We, however, once again invite the attention of the Corporation regarding the mistake in printing the Zoning Regulations pointed out at pages 2560-2562 in S.K. Sharma's case, : ILR1986KAR2536 to which we have referred to earlier. In the show cause notice dated 12-3-1986 issued to Respondent-3 obviously on account of that mistake, the Corporation proceeded on the basis that FAR applicable to the site of Respondent-3 was 1.5, but it should be 2.5 as the width of the road is not less than 30 feet but it is less than 40 feet. The Corporation should also examine as to the basis on which it was said in the notice dated 12-3-1986 that FAR according to sanctioned plan was 2.56. As admittedly the area of the site is 4650 sq. ft. and the total floor area as set out at paras 28 and 29 of the order made by the City Civil Court is, 18742 1/2 sq. ft. The ratio between the area of the plot and the total floor area therefore works out to 1 : 4. It is true that the total floor area includes area covered by stair-case and lift. The Corporation no doubt admits in its statement of objections that there has been violation of FAR in the sanctioned plan. Therefore, it should correctly ascertain the extent of violation before issuing notice pursuant to this order.
Re. W.P. No. 18351 of 1986 :
17. This Writ Petition is by respondent-3 in W.P. Nos. 7628 to 7630 of 1986. The petitioner as stated earlier, secured a licence on 25-10-1980 for construction of a multi-storied commercial building at premises Nos. 771 to 774, O.T.C. Road, Chickpet, Bangalore. The permission and the plan approved was for construction of a basement floor, a ground floor and three other floors, in all, five floors including the basement floor. As shown earlier, the construction of the five floors itself appears to be in contravention of the Outline Development Plan and the Zoning Regulations which came into force in the year 1972. Subsequent to the petitioner securing the licence, the CDP has been prepared by the Planning Authority for Bangalore City Planning Area, namely, the Bangalore Development Authority and the CDP and the Zoning Regulations were approved by the Government on 12-10-1984 and were published in the official gazette on 18-10-1984. The conditions and restrictions imposed in the CDP are more rigorous than those imposed in the ODP. The relevant chart prescribing the conditions regarding maximum height of the building, number of floors permitted and the floor area ratio having due regard to the width of the road facing the building to be constructed are as below :
'TABLE-2B
Max. plot coverage, floor area ratio (FAR) and No. of floors for different site areas and road widths for commercial Buildings.
Plot area in Sq.M. Max. Plot coverageFARMax. No. of FloorsMax. height of buildings in Mtrs Road width in Mtrs.
A (Intensely populated Area) Upto 240
80%
1.00
1 + 1
7
Upto 6
241 upto 500
75%
1.00
1+ 2
11
From 6 upto 9
501 upto 750
70%
1.25
1 + 2
11
From 9 upto 12
751 upto 1000
65%
1.25
1 + 3
14
From 12 upto 15
1001 and above
60%
1.50
1+ 4
17
15 and above.
B Central Administrative Area)Upto 240
70%
1.25
1+2
11
Upto 9
241 upto 500
65%
1.50
1+2
11
From 9 upto 12
501 upto 750
60%
1.50
1+3
14
From 12 upto 15
751 upto 1000
55%
1.75
1+3
14
From 15 upto 18
1001 and above
50%
1.75
1+4
17
18 and above.
C (Other Areas)Upto 250
65%
1.50
1+2
11
Upto 9
241 upto 500
60%
1.50
1+3
14
From 9 upto 12
501 upto 750
55%
1.75
1+4.
17
From 12 upto 15
751 upto 1000
50%
1.75
1+5
20
From 15 upto 18
1001 and above
45%
2.00
1+7
27
18 and above
Note :--
1. Floor area is excluding area used for car parking, staircase room, lift room, water tanks, main sanitary duct, open balcony, and machine room.
2. (a) When sites do not face roads of required width noted against each, the FAR and maximum number of floors applicable to corresponding width of roads shall apply.
(b) Owners desirous of constructing high rise building should restrict their coverage at the ground level below the maximum allowed in the table so that they will be eligible for the required number of storeys within the prescribed FAR (total floor area divided by the number of storeys they want will give them maximum coverage they should have).'
In view of the above conditions, on the plot belonging to the petitioner, which is intensely populated area and the area of which is 4650 sq. ft. i.e. far less than 500 sq.mts. the figures at Sl. No. 2 thereof are applicable and as a result the ratio prescribed between area of the plot and floor area permitted is 1:1. Therefore, the total floor area of the building excluding the stair-case etc., cannot be more than 4650 sq.ft. itself. Further, the maximum number of floors permitted is 1+2 subjected to the condition that the floor area of the three floors cannot exceed 4650 sq. ft. itself. In view of these provisions there was no scope at all for the petitioner to extend the building as he has already constructed five floors including the basement floor under the licence secured in 1980, as seen earlier.
18. The petitioner, however, applied on 25-7-1986 for permission to construct three more floors over and above the five floors already constructed, i.e. fourth, fifth and sixth floors in addition to the basement floor, ground floor, first floor second floor and third floor. According to the petitioner, there was no reply from the Commissioner within 30 days from the date of the said application. The petitioner submitted a petition before the Standing Committee of Works of the Corporation of City of Bangalore on 27-8-1986 praying for grant of permission under Section 302 of the Municipal Corporation Act. In reply to the aforesaid petition, the Standing Committee communicated its decision on 26-9-1986 (Annexure-E). It reads :
'Corporation of the City of Bangalore
No. D2. Pr. 104/86 87 Office of.the Dy. Director ofLP.No 2611/80-81 Town Planning, 'PlanningCell' Corporation offices.Bangalore, Dt: 26th Sept., 1986 To
Sri D.P. Sharma
Managing Partner,
Vinayaka Investments,
Pre. No. 771 to 774, OTC Road,
Chickpet, BangaIore-560 053.
Sir,
Sub :-- L. P. No. 2611/80-81 - additions of 4th, 5th and6th floors to the sanctioned plan.
Ref :-- i) Your letter dated 25-7-1986.
ii) Your appeal dated 27-8-1986 to the TownPlanning & Improvement Committee
With reference to the above, I write to inform that your appeal to the Standing Committee (TP & I) for sanction of 4th, 5th and 6th floor on existing three floor building was considered by the Standing Committee (TP & I). The statement made by your Counsel was heard and tie site was also inspected by the Committee on 22-9-1986.
As per Section 44(1)(b) Karnataka Municipal Corporations Act, 1976, it is necessary to comply with the requirements of the provisions of Section 301 Sub-clause (2) of the amended Act as it stands now, which reads as under :-
'(2) If the Commissioner has not within the said period of thirty days passed any order the applicant may address a letter to the Commissioner by name, requesting him to pass necessary orders on his application, and the Commissioner shall, within a further period of 30 days from the date of receipt of such letter, by written order, either grant such permission or refuse, on one or more of the grounds mentioned in Section 303 or Section 304, to grant it.'The Standing Committee (TP& I) in its meeting held on 25-9-1986, has decided to reject your appeal as you have not complied Section 301(2) of the K.M.C. Act in addressing a letter to the Commissioner by name and requesting him to pass necessary orders on your application.
Hence, your request to sanction the 4th, 5th and 6th upper floors is rejected.
Dy Director of Town Planning,
Corporation of Bangalore.'
As may be seen from the decision, the Standing Committee was of the view that the condition precedent for making a petition before the Standing Committee was, that a written request, by the petitioner addressed to the Commissioner by name praying for grant of permission should have been made and it was only when there was no response even to such personal letter within 30 days from the date of receipt of the said letter, the petitioner was entitled to move the Standing Committee and as this condition precedent was not complied with by the petitioner, the Standing Committee rejected the application of the petitioner.
19. It is thereafter, the petitioner presented this petition before this Court questioning the constitutional validity of Sub-section (2) of Section 301 inserted into the Act by the Karnataka Municipal Corporation (Amendment) Ordinance, 1986 (since replaced by the second amendment Act of 1986) and also for a declaration that the petitioner has secured deemed permission to construct the 4th, 5th and 6th floors in respect of the building in question. Section 301(2) added by 1986 amendment and Section 302 as amended by the said amendment read :
'301 Period within which Commissioner is to grant or refuse to grant permission to execute work : (I) Within thirty days after the receipt of any application made under Section 299 for permission to execute any work or of any information or of documents or further information or documents required under rules or bye-laws the Commissioner shall, by written order, either grant such permission or refuse on one or more of the grounds mentioned in Section 303 or Section 304 to grant it.
(2) If the Commissioner has not within the said period of thirty days passed any order the applicant may address a letter to the Commissioner by name, requesting him to pass necessary orders on his application, and the Commissioner shall, within a further period of 30 days from the date of receipt of such letter, by written order, either grant such permission or refuse, on one or more of the grounds mentioned in Section 303 or Section 304, to grant it.'
'302. Reference to standing committee if Commissioner delays grant or refusal of approval or permission : (1) If, within the period laid down in Sub-section (2) of Section 301 the Commissioner has neither given nor refused his approval of a building site, or his permission to execute any work, as the case may be, the Standing Committee shall be bound, on the written request of the applicant, to determine by written order whether such approval or permission should be given or not.
(2) If the Standing Committee does not, within one month from the receipt of such written request, determine whether such approval or permission should be given or not such approval or permission shall be deemed to have been given and the applicant may proceed to execute the work, but not as to contravene any of the provisions of this Act or any rules or bye-laws made under this Act.'
(Underlining by us)
Apart from addition of Sub-section (2) to Section 301, the only amendment effected in Section 802 was in the place of the words and figures 'Section 301' in Section 302, words and figures 'Section 301(2)' were substituted. According to the Sections originally stood if within 30 days after the receipt of any application made for grant of licence for construction or reconstruction of a building under Section 299 of the Act the Commissioner did not grant or refuse permission, the applicant concerned could apply to the Standing Committee and if the Standing Committee also failed to grant or refuse such request within one month after it received the application, the permission sought for should be deemed to have been granted. By Sub-section (2) of Section 301 of the Act a further condition was imposed as a condition precedent for approaching the Standing Committee. According to the said sub-section, an applicant who did not receive any communication granting or refusing permission sought for from the Commissioner within 30 days from the. date on which he made the application to the Commissioner he is required to address one more letter in person to the Commissioner and according to Section 302 as amended the applicant concerned is entitled to approach the Standing Committee after the expiry of 30 days after the receipt of the personal letter addressed to the Commissioner as permitted by Sub-section (2) of Section 301 of the Act. In the present case, admittedly the petitioner did not address a personal letter to the Commissioner as required under Sub-section (2) of Section 301 of the Act. Therefore, the view taken by the Standing Committee that the petition made before it was not maintainable is unexceptionable Consequently, the prayer made by the petitioner that there should be a declaration that he has secured deemed permission in terms of Subsection (2) of Section 302 of the Act is patently untenable.
20. Learned Counsel for the petitioner submits that Subsection (2) of Section 301 says that the applicant who has not received a communication either approving or refusing the permission sought for under Sub-section (1) of Section 301 may address a letter to the Commissioner and therefore the addressing of the letter was not obligatory. It is true that there is no compulsion that the applicant concerned must address a personal letter to the Commissioner. The provision gives an option to the party concerned. He has the choice to wait further for the order of the Commissioner or to address a personal letter to the Commissioner. But it is clear that if the party concerned does not choose to address a letter, he cannot approach the Standing Committee for the reason the condition precedent for making a petition before the Standing Committee under Sub-section (1) of Section 302 is the expiry of 30 days after the receipt by the Commissioner of the personal letter addressed to him by the applicant as permitted under Sub-section (2) of Section 301 of the Act and the non-receipt of reply refusing to grant permission sought 'or. Therefore, when the petitioner has not utilised the opportunity given to him under Sub-section (2) of Section 301 of the Act and has not addressed a letter to the Commissioner, his petition before the Standing Committee was not maintainable for non-fulfillment of the condition precedent, and therefore the Standing Committee was right in rejecting the application as not maintainable.
21. Learned Counsel for the petitioner submitted that the decision of the Standing Committee was illegal as the said decision had been taken under Section 444 of the Act. Section 444 of the Act provides for appeals against the orders of the Commissioner to the Standing Committee. According to Section 444(1)(ii)(b) of the Act, an appeal lies to the Standing Committee against any refusal by the Commissioner to grant permission for construction or reconstruction of a building under Section 301. Therefore, if the Commissioner had refused the permission to the petitioner by a written order, the petitioner would have had a right of appeal to the Standing Committee under the said provision and the Standing Committee would be entitled to entertain and dispose of such appeal. It is true that in the present case the question of the petitioner preferring an appeal before the Standing Committee did not arise because there was no written order of the Commissioner refusing to grant permission. But as stated earlier, the petitioner preferred a petition without complying with the condition precedent to the Standing Committee and therefore it rejected the petition. It is true that the Standing Committee should have rejected the application by referring to Sections 301(2) and 302 of the Act itself and the reference to Section 444 of the Act is erroneous because it was not dealing with an appeal preferred under Section 444 of the Act, but was dealing with a petition made under Section 302 of the Act. But a mere wrong reference to the Section does not render the decision of the Standing Committee, which is perfectly in accordance with law, an illegal one. Therefore, there is no substance in the contention of She petitioner that the order of the Standing Committee is illegal just because it had referred to Section 444 of the Act in its order.
22. Learned Counsel for the petitioner, however, contended that Sub-section (2) of Section 301 of the Act itself was liable to be declared as void as offending Article 14 of the Constitution of India on the ground that it was arbitrary. He submitted that the original provision was reasonable, in that, the party concerned would straight-away be entitled to apply to the Standing Committee if within 30 days after the receipt of the application seeking permission for construction or reconstruction of a building, the Commissioner did not communicate any order refusing the permission and imposition of another condition which requires the party concerned to make another request before the Commissioner personally and wait for another 30 days was arbitrary. Sri K.L. Manjunath, learned Counsel for the Corporation submitted that as there were number of cases in which on account of rush of work or for some other reason, the applications presented by parties were not brought to the notice of the Commissioner within 30 days, this additional requirement was imposed so that personal attention of the Commissioner might be invited to the application by the concerned applicant so that he might look into it and find out whether the permission sought for was in accordance with law or not and it should be granted or not. From the observations of this Court in M. D. Narayan's case, 1982-2 KLJ Sh. N No. 35 extracted earlier, it might be seen that in large number of cases the parties proceeded to construct the building on the basis of deemed licences which were in plain contravention of the ODP and the Zoning Regulations. Obviously the Legislature considered that in order to ensure obedience to the law, a [further safeguard as the one incorporated in sub--section (2) of Section 301 was necessary and has been incorporated. There is absolutely no basis to criticise the said provision as arbitrary. On the other hand, it is a reasonable provision intended to ensure obedience to the law governing the construction of buildings and to safeguard public interest.
23. Sri K.L. Manjunath, learned Counsel for the Corporation also submitted that even in cases where a proper petition has been made before the Standing Committee after fulfilment of the conditions prescribed under Sub-sections (1) and (2) of Section 301 of the Act and the Standing Committee had failed to take any decision rejecting the petition within the time prescribed and the permission sought for is deemed to have been granted, Sub-section(2) of Section 302 expressly provides that the applicant might proceed to execute the work but not to contravene any of the provisions of the Act or any rules or bye-laws made under the Act. He further submitted that in the present case, the plan submitted by the petitioner was in plain contravention of the CDP as the proposed construction was in flagrant violation of the provisions of the CDP in particular regarding floor area ratio as also the number of floors. He also pointed out that there was no statement made either in the application made before the Commissioner or in the petition presented before the Standing Committee or in the Writ Petition that the construction sought to be put up by the petitioner was not contrary to the provisions of CDP and the Zoning Regulations annexed thereto and therefore the petitioner could not undertake any further construction.
24. In fact, the absence of any reference to the CDP in the petitions before the authorities and in the Writ Petition is conspicuous. The petitioner was made known through the first three petitions that construction put up by him under the licence was contrary to ODP and that CDP was promulgated on 18-10-1984 and according to it the plot area to floor area ratio was 1:1 and that maximum number of floors permitted on the plot were only three. In the face of the construction already undertaken by the petitioner under the licence and permission secured in the year 1980, there was absolutely no doubt that the additional construction for which he sought permission was in flagrant violation of the CDP and therefore there was no question of the Commissioner or the Standing Committee granting the permission and further in view of Section 302 (2) of the Act, as rightly contended by Sri Manjunath, the petitioner had no authority to say that he has deemed permission to undertake such construction. For these reasons, the petition must fail.
25. The petitioner has raised an additional ground to the effect that the sanction had been accorded by the Government for relaxing the regulation regarding height and FAR in respect of an administrative building in Gandhinagar and for construction of a Central Telegraph Office building at Raj Bhavan Road. The Corporation has, in its additional objection, stated that it has not granted any licence and it has also denied that any relaxation has been made in respect of commercial building of Canara Bank in Visweswarapuram. Whatever that may be, in view of the mandatory provisions of Section 14 of the Planning Act there can be no departure from the provisions of ODP, CDP, or Zoning Regulations, unless written permission is secured from the Planning Authority. Admittedly the petitioner has not secured any such permission. Therefore, there is no substance in this additional ground.
26. Apart from there being absolutely no merit in the Petition, we are constrained to observe that the petitioner has not only indulged in grave violation of law knowing fully well about its violation, but has also indulged in suppression of material information and grave abuse of the process of the Court, in presenting this Petition. It is on record in the first three petitions that on 1-10-1986 when those Writ Petitions came up before a Division Bench consisting of M.N. Venkatachaliah, J., and D.R. Vithal Rao, J., Respon-dent-3 sought for an adjournment of the case. The Learned Counsel for the petitioner expressed an apprehension that Respondent-3 was likely to undertake further illegal construction of the building and therefore he should be prevented from doing so. On that day, on behalf of Respondent-3 an undertaking was given before the Division Bench that no further construction would be undertaken by Respondent-3 than what was sanctioned in the plan of 1980 and the undertaking was recorded. The order reads :
'Call this matter on 22-10-1986 at the request of the Learned Counsel for Respondent 3. We also place on record the submission of Sri G. Lingappa, Learned Counsel that the appellant need not have any apprehension about any illegal construction and that Respondent-3 will not put up any additional floor in excess of what is sanctioned. This submission is placed on record '.
(Underlining by us)
Having given the aforesaid undertaking, suppressing the undertaking so given by petitioner (Respbndent-3 in the three petitions) this Writ Petition was presented by the petitioner claiming that it has secured deemed permission for undertaking further construction of 4th, 5th and 6th floor, over and above the basement, ground, first, second and the third floor sanctioned under the plan of 1980 and thereby misled the learned single Judge, who is one of us (Rama-krishna, J.) to admit the Petition and for passing an interim order. The interim Order passed in the Writ Petition on 20-10-1986 reads :
'Heard Learned Counsel for the petitioner: Issue rule.
Sri Castelino, Learned Counsel appearing for the Corporation is directed to take notice for Respondents 1 and 2.
Government Advocate is directed to take notice for respondents 3 and 4.
Statement of objections, if any, within four weeks.
Government Advocate is directed to produce the records relating to issuance of the amendment to Section 301 of the Corporation Act, Annexure-C.
Call it after 4 weeks.
Sri Keshava Iyengar, Learned Counsel appearing for the petitioner submitted that since the work is required to be taken up expeditiously as things stand, interim order permitting the petitioner to take up the work may be accorded.
As the Division Bench has indicated in other cases, petitioner is permitted to do so at his risk inasmuch as it depends upon the finality of the Writ Petition. However, it is made clear that if he takes up the construction work during the pendency of the Writ Petition and if the Writ Petition were to go against the petitioner, there would not be any alternative but to pull down the construction work so taken up during the pendency of the Writ Petition, without any right to seek compensation.'
(Underlining by us)
By the interim order, the petitioner was permitted to undertake the further construction but subject to the condition that in the event of the failure of the Petition, there would be no alternative than to pull down the said construction and without any right to seek compensation from the Corporation.
27. Learned Counsel for the Corporation and the Counsel appearing for the intervenors, who are petitioners in W.P-No. 977 of 1987, submitted that after securing the interim order as above, the petitioner has constructed two more floors, without licence in flagrant violation of the CDP and the undertaking given before a Division Bench of this Court.
28. The conduct of the petitioner, in presenting the petition by suppressing material information, namely, the undertaking given by the petitioner before a Division Bench and also the information regarding the challenge to the earlier licence itself on the ground that it was violative of the ODP and the CDP and in constructing two more floors, without licence and in contravention of the CDP and the Zoning Regulations appended to it is highly reprehensible, and we strongly deprecate it. The presentation of this petition flouting the undertaking given is a blatant and grave abuse of the process of the Court which calls for imposition of exemplary costs. Further, in view of the condition imposed in the interim order, the additional floors constructed have to be ordered to be demolished forthwith and the petitioner has to bear the cost of demolition.
29. In the result, we make the following order :
I. In W.P. Nos. 7628 to 7630/1986 :
(i) Rule made absolute.
(ii) The Writ Petitions are allowed
(iii) A Writ in the nature of mandamus shall issue to Respondent No. 1 to decide, after issuing notice to Respon-dent-3, the actual extent of violation of the Outline Development Plan and the Zoning Regulations promulgated under the Karnataka Town and Country Planning Act, 1961, in the Licence L.P No. 2611/80-81 dated 25-10-1980 and/or construction of the building on premises bearing Nos. 771 to 774, O.T.C. Road, Chickpet, Bangalore, and after considering the reply, if any furnished by Respondent No. 3, and if the finding were to be that there has been such violation of Zoning Regulations as would call for demolition of any portion of the building, he shall take further action for demolition of the offending portion so as to bring the building in conformity with law.
(iv) Time for compliance : Four months.
II. In W.P. No. 18351/1986 :
(i) The Writ Petition is dismissed with exemplary costs of Rs. 10,000-00 payable by the petitioner to the first Respondent.
(ii) In terms of the condition imposed in the interim order, a direction shall issue to the first respondent to take steps forthwith to demolish the additional floors constructed by the petitioner over and above the number of floors sanctioned vide L.P. No. 2611/80-81 dated 25-10-1980, without licence and in contravention of the provisions of the Comprehensive Development Plan and the Zoning Regulations annexed thereto and in breach of the undertaking given before this Court.
(iii) The first respondent shall be entitled to recover the cost of demolition from the petitioner.
ORDERS ON ORAL APPLICATION UNDER ARTICLE 134-A OF THE CONSTITUTION OF INDIA PRAYING FOR CERTIFICATE OF FITNESS TO APPEAL TO THE SUPREME COURT.
Immediately after the pronouncement of the Judgment, the learned Counsel for the petitioner in W.P.No. 18351 of 1986 made an oral application under Article 134-A of the Constitution of India, praying for grant of Certificate of Fitness to appeal to the Supreme Court under Article 133 of the Constitution of India.
In our opinion, there is no substantial question of law required to be considered by the Supreme Court. In fact, the substantial question of law regarding the Mandatory Character has already been decided by the Supreme Court in P.K. Srinivasan v. State of Karnataka (C. A. Nos. 2780 & 2781 of 1982 dated 19-1-1987) which we have followed. Therefore, the Certificate prayed for is refused.
The learned Counsel for the petitioner asked for stay of the operation of our order. Having regard to the bases on which we have made the order in the Writ Petition, there is no justification to grant stay of that order.