Saldanha, J.
1. Heard learned Advocates on both sides. The Corporation of the City of Bangalore has appealed against the decree passed by the learned trial Judge in these two suits. The operative part of the order reads as follows:-
'Plaintiff's suit is decreed against defendants, restraining them from demolishing the construction on the suit schedule property, subject to condition that plaintiff has to approach the Standing Committee, as provided under Section 320(2) and Section 444 of the K.M.C. Act, on or before 15th March, 1994, for reddressal.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in open court, this the 31st day of January, 1994).'
2. The appellants' learned Counsel submits that the Corporation had pleaded before the trial Court that within the scheme of the law, it was incumbent upon the plaintiffs to project whatever grievances they had or to apply for whatever reliefs they desire to the Standing Committee. Admittedly, this had not been done and since there is a specific provision in the law that the jurisdiction vests with that authority, the submission was that no relief should be granted and that the suit should be dismissed.
3. The learned trial Judge has effectively upheld the defence but in the process, he has decreed the suit whereby the Corporation has been restrained from demolishing the construction in question. In effect, the plaintiffs have succeeded before the trial Court. A reading of the aforesaid order will indicate that the Corporation's contention was accepted by the learned trial Judge which was why the plaintiffs were permitted to approach the Standing Committee by 15th March, 1994. Appellants learned Counsel submits that such a decree could never have been passed and ought not to have been passed once the defence of the Corporation was upheld. More importantly, he contends that the filing of any application or appeal to the Standing Committee would be rendered totally infructuous insofar as the Corporation and the Standing Committee would be bound by the terms of the decree and since there is a permanent injunction restraining them from demolishing the construction, that there is virtually no action that can be taken in the matter. As a sequator, he points out to the Court that in the light of the aforesaid complication, that the Standing Committee is left with no option except to grant whatever application is made to it which thereby renders the whole exercise futile. He therefore submits that it is absolutely essential that this Court should interfere in the matter and should take appropriate corrective action.
4. On behalf of the respondents, it is submitted that they had approached the Civil Court because they were in need of an Interim Order in the absence of which there was every possibility of the structure being demolished. He submitted that it is the case of the respondents that the structures ought not to be demolished even assuming, without admitting that some corrective steps may be necessary. The Learned Advocate further submitted that the operative part of the order is unhappily worded and that consequently, the same should not be misread. He submitted that the learned trial Judge has directed the plaintiffs to approach the Standing Committee within a prescribed period which they have done and that it is open to the Standing Committee to pass appropriate orders. He states that the operative order passed by the trial Court was effectively in the nature of a protective order which would be operative until appropriate orders are passed by the Standing Committee and that the Court should view the Decision in this context. He further submitted that the learned trial Judge has not acted wholly without jurisdiction because it was within the powers of the Court to pass appropriate orders even if these were for a transitory period and until the designated authority dealt with the case.
5. In the course of his submissions, the Corporation's learned Advocate alluded to the fact that this Court should deprecate this type of procedure because these suits are a classic instance of how the Corporation actions are completely frustrated merely by the filing of a suit for a permanent injunction. Once a suit is filed and interim order is invariably prayed for and that order is seldom vacated on the usual plea that the suit will be rendered infructuous. As a result of this situation, the matter lingers on for decades and the Corporation is precluded right through this period from exercising the powers which it could normally have done as a result. The lower Courts need to be cautioned on the aspect of the long term damage that orders of this type are causing.
6. As regards this aspect of the case, I need to observe that undoubtedly, the suit was filed in the year 1983 and it came to be decreed only in 1992. Nothing however precluded the Corporation from moving the Court for either disposal of the matter or dismissal of the suit on the ground that the jurisdiction vested with the Standing Committee and that the direction to approach the Standing Committee if so advised should have been passed at a much earlier point of time, This however does not detract from the position that it is expected of the trial Court to carefully examine the subject-matter of every proceeding at the stage of filing and more so at the point of time when interim orders are prayed for and not to indiscriminately and mechanically pass interim orders and keep proceedings pending for over a decade particularly when they relate to allegations of unauthorised or irregular construction and where action taken or contemplated action of a public authority are involved. It is directed that the trial Courts will take serious note of these observations hereinafter and will refrain from stopping the demolition or removal of encroachments on all sorts of frivolous and unsustainable grounds which has caused virtual havoc in the City of Bangalore where over 50,000 such litigations are pending.
7. Coming to the present suits, the grievance projected on behalf of the Corporation is perfectly justified. Having directed the party to appear before the appropriate forum namely the Standing Committee, the learned trial Judge has acted completely without jurisdiction in having decreed the suits. Such an order will have serious long term implications and was wholly and completely unjustified on the record of this case. Even if the learned trial Judge was of the view that the plaintiff did qualify for some interim protection and that he has approached the wrong forum, the learned trial Judge could have passed a limited order to that extent which was within his powers. That order however could have been passed provided the facts prima facie justify and more so, the order should have been made specifically time bound insofar as the jurisdiction of whether to continue it or not should have been left to the designated authority namely, the Standing Committee after a prescribed date. This is absolutely essential in order to combat the mischief of interim orders being used as protective umbrellas for illegalities for years on end.
8. I need to observe that the respondents' learned Advocate is justified in his last submission that it is within the inherent powers of a Court, even if a proceeding is wrongly filed before it, to grant the party reasonable time to approach the correct forum and to also afford interim protection if the facts justify and if the apprehension is real and imminent. To that extent therefore, the trial Court could have while directing that the plaintiff should approach the Standing Committee by 15th March, 1994, confined the direction not to demolish up to that date but the passing of a decree conferring a permanent injunction was an excess of jurisdiction and was clearly impermissible.
9. In the light of the aforesaid Decision, the Appeals succeed. Even though the setting-aside of the decrees in question is academic, it is essential having regard to the facts that the issue is one of importance that such an order be passed. It is however made clear that regardless of the fate of these Appeals, that the Standing Committee to whom the dispute has now been referred shall hear the parties and pass orders strictly on merits. The Appeals to stand disposed of. No order as to costs.
10. Respondents' learned Advocate points out that as a result of this order that the Corporation should not contend that it is free tr demolish the constructions in question. Since the respondents state that they have already approached the Standing Committee which is now replaced by an Administrator, they are given 4 weeks time to apply to the Administrator for appropriate interim orders. If such an application is filed, the Administrator shall pass appropriate orders thereon. Until those orders are passed, the Corporation shall maintain the present status-quo. If however, the applications are not filed within the prescribed period of 4 weeks, then on the expiry of that period the Corporation shall be free to take whatever steps it desires.
11. In the course of the arguments, very significant aspects of the matter emerged insofar as it was pointed out to the Court that whereas the relevant provisions of law and the regulations framed thereunder prescribed that buildings can only be constructed within permissible limits such as, after making provision for requirements such as, open areas, car parking, access in case of emergency to fire and medical vehicles etc., that having regard to the pressure of land particularly in urban areas, that these free open spaces are illegally sold by the developers and builders who in turn convert these into shops, offices or residential areas or worse, put up encroachment on the open spaces in respect of which there exists a legal mandate prohibiting any encroachments or constructions. All sorts of difficulties are then pleaded, the principal one being one that the builders and developers have cheated the buyers who have spent a lot of money thereon and applications are filed to the authorities for regularisation. It is clarified, that regularisation is a special power that has to be sparingly exercised in the minimum number of cases and provided, it does not offend the basic requirements and set at naught the very provisions that have been breached. For instance, where a builder has flouted the regulations and, as has happened in the City of Bangalore where almost every car parking and open area has been illegally converted in flagrant breach of the provisions no regularisation could ever have been permitted and if that has been done, it is clearly indicative that it is for other than legal considerations. It needs to be clarified that the power to regularise presupposes that the breach, if any, was marginal and more so that the end result will not in any way interfere with or cause the impediments to the basic provisions. The manner in which the Corporation and the B.D.A. have functioned in this regard, in the recent past in the City of Bangalore has resulted in giving a complete and total goby to the very provisions that they are expected to observe and the total break down of the planning process is directly attributable to this state of affairs. Since this is one more such case which has come up for consideration, it is necessary for this Court to make these observations. It is also incumbent that the authorities put a final full stop to these illegalities which have the result of making it far more profitable to break the law than to observe it.
12. This class of cases necessitates some further observations from this Court which are both relevant and pertinent. Firstly, it is necessary to take cognizance of the fact that unfortunately, when an illegality in relation to property takes place there is invariably a cover up action and therefore, it is not often that a Court finds the law being enforced by the authorities. In those instances where an honest, forthright and courageous Officer takes a decision to implement the law, there will have to be very strong and cogent grounds for interference by a Court particularly at the initial stages. It is incumbent that this principle be observed because otherwise, the passing of even an ad-interim injunction order does send out the wrong signals. Whereas an impression is created in the public mind that the wrong-doer had succeeded in getting the approval and protection of the Court, the Officers enforcing the law are not only demoralised but are left with the wrong impression, that when they institute correct action even the Courts neither approve nor uphold it. It is a sign of our times that in almost every case where an Officer has stuck his neck out, that the elected representatives of the people such as Corporators, M.L.As, M.Ps and Ministers not to mention party leaders whose obligation is to uphold the law, actively interfere and often succeeded in stopping the action after which the Officer is invariably at the receiving end which certainly means a transfer to a punishment station. The Courts are required to take cognizance of this dismal state of affairs because the attitude of the law enforcement institutions must necessarily be one whereby bodies and individuals who undertake to uphold the law must be assured that their action will be upheld and backed up and that the Courts will come down heavily against anybody who seeks to harass, humiliate or attack an Officer who has acted correctly and in the public interest. It is the duty of the Courts not only to interpret the law but to uphold it and enforce it and this presupposes that all these areas will be adequately safeguarded.
13. Since this Appeal concerns the issue relating to unauthorised constructions of breach of regulations, which is a burning issue and which has consequently generated much litigation, it would be desirable, in the light of past experience for the State Government to consider the immediate introduction of certain amendments for the reasons set-out below:-
a) That a provision be incorporated in each of the relevant statutes, that in all cases of unauthorised constructions and instances where breaches of the regulations have taken place, that the property involved in the breach shall stand forfeited to the State Government. Having regard to the rampancy that is prevalent in the urban areas because of the high gains that are involved and the attendant corrupt practices, it will be necessary to ensure that whereas today, the breaking of the law provides windfall gains which explains why every conceivable form of corrupt practice is found profitable, that if a forfeiture clause is introduced, the observance of the law will turn out to be profitable and the breach thereof would have disastrous economic consequences. The power of regularisation will have to be severely limited, it will have to be confined only to marginal and border line cases where there is a valid and good ground for making an allowance but even in such instances the regularisation fee will have to be made extremely high in order to prevent the abuse of this power. Secondly, in all cases of regularisation, speaking orders will have to be passed in respect of which one compulsory review will have to be made necessary for obvious reasons.
b) That along with the forfeiture clause, a provision be introduced making the Officers who have either been guilty of dereliction of duty in permitting the illegality as also those who have actively colluded in the action such as passing of the plans, granting of the occupancy certificates etc., be made personally liable for all amounts that the public authority is required to spend to undo this damage. Similarly, these officials should be held personally liable vis-a-vis third parties who may be victims such as purchasers of the structures in question who may ultimately come to grief if the property is demolished or forfeited.
c) Penal provisions be incorporated in the statutes holding all those persons including the concerned officials liable to prosecution with certain basic minimum punishments provided for all such breaches.
d) That since the Government and the public authorities are equally in need of commercial and residential accommodation, that an example be made as is done under the income-tax Act by confiscating the offending properties instead of incurring heavy expenditure and wanton loss by merely seeking to demolish them which is in fact rarely ever done, In those of the cases where demolition is inadvisable such as in high rise buildings etc., and where the forfeiture clause is applied, in appropriate cases, an option may be provided to an interested party to retain the premises by paying a redemption fine which shall be equivalent to three times the current market value. It is recommended that the State Government should seriously consider incorporating the requisite amendments in the law immediately so that action along more constructive lines than those for which provision is today made can be undertaken as this is eminently in the public interest. Also, it is highly desirable that area-wise surveys be undertaken in respect of all residential/commercial structures and that all cases in which breaches have been detected be reviewed. If the regulations in question have been breached, and the action has been covered up the parties concerned cannot be permitted to be beneficiaries of this situation merely because of the mere passage of time. Furthermore, the wisdom in adopting such a procedure will be that in all cases of immoveable structures where influence or corrupt practices have been employed, merely because the structure is complete or has been permitted to be wrongly regularised or occupied, the cases shall not be treated as glaring monuments to illegalities but shall always be open to rectification in which case, the incentive to habitually breaking the law and get away with it will no longer be an attractive proposition.
Office to furnish a copy of this order to the respondents learned Advocate, forthwith, on his applying for the same.
NOTE:-
(a) The Registrar shall forward a xerox copy of this Judgment to the Principal Judge, City Court as also to all the District Judges with a request that the observations of the High Court be brought to the notice of all the Judges handling cases of this type.
b) The Registrar shall also forward a xerox copy of this Judgment to the Law Secretary and Secretary to Government, Urban Development Department, for appropriate action on the lines suggested by the Court.