Kamlesh Kumar Vs the Commissioner Bruhat Bangalore and Others - Citation 1173323 - Court Judgment

Judgment:

(Prayer: This Writ Petition Is Filed Under Articles 226 and 227 Of The Constitution Of India Praying To Issue A Writ Of Mandamus Directing The Dismantling Of The Illegal Construction As Per The Provisions Of Karnataka Municipal Corporation Act Made By Respondents 4 And 5 On Property Bearing No.8/1, 2nd Cposs, Swasti Road (Lakshmi Road Cross) Shanthi Nagar, Bangalore-560 027, Etc.)

1. The neighbour of respondents 4 and 5 has preferred this petition for the following reliefs:

(a)Â to issue a writ of mandamus directing the dismantling of the illegal construction as per the provisions of Karnataka Municipal Corporation Act made by respondents 4 and 5 on property bearing No.8/1, 2nd cross, Swasti Road (Lakshmi Road Cross), Shanthi Nagar, Bangalore - 560 027. Further appoint a Court Commissioner to carry out the said exercise on behalf of respondents 1 to 3, in the interest of justice.

(b) Prohibit respondents 4 and 5 from occupying the building constructed on property bearing No.8/1, 2nd Cross, Swasti Road (Lakshmi Road Cross), Shanthi Nagar, Bangalore- 560 027 till the removal of the illegal construction.

2. The immovable property bearing No.8/1, II Cross, Lakshmi Road Cross, Bangalore, belonging to respondents 4 and 5, jointly, is said to be located adjacent to property No.8/2 belonging to the petitioner. It is alleged that respondents 4 and 5 commenced construction of the building on property No.8/1 in violation of the Building Byelaws of the Bruhat Bangalore Mahanagara Palike, for short 'BBMP' and the Building Plan sanction for construction of a residential building, folio-wing which petitioner made a representation to respondents 1 to 3-BBMP which when not considered led to filing W.P.No.4972/2012, whence this Court directed the BBMP to initiate action to remove the illegal construction by order dated 28.11.2012. According to the petitioner, construction of the building by respondents 4 and 5 was commenced during June, 2012 and by the time writ petition was filed, ground, first and second floors were erected, and in the process of laying the roof for the third floor. It is further stated that the Asst. Executive Engineer issued notice under Section 321 of the Karnataka Municipal Corporations Act, 1976, for short 'KMC Act', requiring respondents 4 and 5 to remove the illegal construction followed by a final order of demolition which was impugned in Appeal No. 1344/2012 filed by respondents 4 and 5 before the Karnataka Appellate Tribunal. Despite the said orders under the KMC Act, respondents 4 and 5, it is alleged, with impunity, continued the illegal construction of the third and part of the fourth floor though without sanction. Therefore, petitioner filed W.P.No,3876/2013 for appropriate directions to BBMP to remove the illegal construction, more particularly over the third and fourth floors which was disposed of by order dated 6.11.2013 Annexure-B, with a direction that Appeal No. 1344/2012 pending on the file of the KAT be disposed of within two months therefrom, while the BBMP was directed to take action in accordance with law with regard to construction put up by respondents 4 and 5, not subject matter of Appeal No. 1344/2012. It is further stated that the order ofâ demolition, subject matter of Appeal No. 1344/2012 did not relate to illegal construction put up by respondents 4 and 5 on the third and fourth floors of the property. In addition, it is stated that the KAT, by Order dated 4.3.2014 allowed the appeal, set-aside the order of confirmation and remitted the proceeding for fresh consideration over violation of the sanctioned plan. Petitioner asserts to have addressed a letter dated 28.4.2014 to the BBMP requesting them to take action to remove the illegal construction.

3. According to the petitioner, the building plan sanction as per LP No.OL/SP/1309/11-12 permitted the 4th and 5th respondents to put up construction of stilt, ground, first and second floors, on site bearing Nc.8/1, II cross, Lakshmi Road Cross, Shanthinagar. The plan so sanctioned though required 4th and 5th respondents to leave set back areas in the stilt floor measuring 4.10 mtrs on the front, 2.70 mtrs on hind portion; 1.0 mtr on the left and 2.50 on the right side of the said property, nevertheless, put up construction of the building leaving a front set back of 1-1 Â½ ft; on hind side- 1 Â½ to 2 ft.; on the left side 1-1 Â½ ft and; on the right side 1-1 Â½ ft, occasioning deviation to an extent of 290%. So also it is alleged that the ground, first and second floors have also been constructed to the extent, of stilt floor, which is serious violation.

4. During the pendency of Appeal No 1344/2012, though respondent No.2 issued a notice dt. 5.2.2014 under Section 321(1) of the KMC Act and an order of demolition dt. 21,2.2014 directing respondents 4 and 5 to remove the illegal construction in the second, third and fourth floors, nevertheless it is alleged, have not been executed. Learned counsel for the petitioner submits that respondents 4 and 5 preferred Appeal No.285/2014 calling in question the said notices and order and obtained an order of status-quo. It is further alleged that the third floor/terrace for which sanction is accorded is to an extent of 19.32 sq.mtrs, while respondents 4 and 5 have put up construction measuring 184.22 sq.mtrs.

5. The petition when heard on 27.10.2014 the following order was passed:

"The affidavit of G.M.Somashekhar, said to be the Asst. Engineer of Ward No. 117, Old No.70 does not indicate issue of commencement certificate under Byelaw 5.3 of the Bangalore Mahanagara Palike Building Byelaws 2003, so also it does not indicate inspection of the work of construction, periodically, as required by the said Byelaw. It is not possible to accept the submission of the learned counsel for the BBMP that action was taken against the erring builders, respondents 4 and 5, only after the completion of the construction with 100% deviation on the front side of the second floor; 78% on the back side; 50% on the left side; and 25% on the right side, totaling 253% deviation. It is common sense that building cannot be erected in a day and must have taken sufficient time. It is not known as to what the engineers were doing when the construction was commenced in the year 2012 and submit that it came to the notice of one Vanaraj, Asst.Engineer. In the absence of that relevant material as to why action was not taken against respondents 4 and 5 until the completion of the building, it is appropriate to direct the person who was in-charge as Asst. Engineer to file his affidavit and furnish all relevant material particulars by 29.10.2014."

6. Thereafterwards on 29.10.2014 having heard the learned Sr.counsel for respondents 4 and 5. The following order was passed:

"Respondent Nos.4 and 5 who have put up construction allegedly contrary to the sanctioned plan and building bye-laws are directed to file fin affidavit stating whether or not the building erected by them is strictly in accordance with the plan and if not the extent of deviation as certified by their architect who issued the supervision certificate under the building bye-laws. 2003.

Sri Nanjunda Reddy, learned Senior Counsel for respondent Nos.4 and 5 who have put up construction submits that the appeal remedy is availed of and an order of status quo secured and therefore, the respondent would file statement of objections while the Tribunal may be directed to dispose of the appeal within a time frame and thereafterwards pass orders in accordance with law.

List on 30.10.2014."

7. In compliance with the order dated 27.10.2014. the Asst. Engineer filed an affidavit dated 29.10.2014 which was considered on 30.10.2014 and the following order passed:

"In compliance with the order dated 27.10.2014, the then in-charge Assistant Engineer by name P.Vanaraja, S/o Purusaiah, has filed an affidavit dated 29.10.2014 stating that he was discharging duties as an Assistant Engineer in Shanthinagar Sub-Division of the respondent Bruhath Bangalore Mahanagara Palike ('BBMP' for short) from 30.11.2009 to 21,02.2013 and that respondent Nos.4 and 5 made an application for sanction of building pian for construction of building on property No.8/1, 2nd Cross, Swasthi Road, (Lakshmi Road Cross), Shanthinagar, Bangalore-560 027, which was accorded sanction by the Joint Commissioner (East) on 08.12.2013 (though it is dated 08.02.2012 according to the learned Counsel for BBMP). It is next stated that the deponent noticed on 07.11.2012, deviations in the construction of the building by respondent Nos.4 and 5 and on inspection, the deviations worked out to 65.15% on an average, following which order dated 21.11.2012 under Section 321 (1) and (2) of the Karnataka Municipal Corporation Act, 1976, Annexure-R1 was issued. It is further stated that despite the said orders, respondent Nos.4 and 5 did not take steps to remove the deviations and therefore, the Assistant Executive Engineer, by name Chandraiah of Shanthinagar Sub Division passed the order, dated 28.11.2012, Annexure-R2 under Section 321(3) of the Act. Those orders, it is said, were challenged in Appeal No. 1344/2012- whence, the Karnataka Appellate Tribunal set-aside the orders and remitted the proceeding to the Commissioner for fresh disposal in accordance with law by order, dated 04.03.2014, Annexure-R3.

2. It is said that the present writ petitioner instituted W.P. No.3876/2013, whence a learned Single Judge, by order dated 06.11.2013, Annexure-B directed BBMP to take action in accordance with law. The deponent further states that he was transferred from Shanthinagar to Bommanahalli on 21.03.2013. According to the deponent, issue of commencement certificate as required under building byelaw 5.2 is by the Assistant Director of Town Planning since the Commissioner. BBMP on 12.03.2013 delegated his powers under Sections 66 and 67 of the Act. Deponent at paragraph 12 states that the records do not disclose obtaining of a commencement certificate from the concerned authority before commencement of the construction work on the schedule property.

3. Heard the learned Counsel for BBMP. The deviation in the construction of the building is as recorded in the order dated 27.10.2014 and that though the building licence was granted on 08.02.2012, nevertheless, the factum of illegal construction was noticed only on 07.11.2012. Learned Counsel submits that the records do not disclose either a commencement certificate or an occupancy certificate so also there are no notes relating to inspection as required by bye- law 5.3 of the bye Taws from 08.02.2012 to 07.11.2012. Learned Counsel submits that action under Section 321 is commenced only after knowledge of deviation and not before. To a question of this Court as to what the officer was doing from 08.02.2012 to 07.11.2012, learned Counsel submits that there are no records to show what he did. It is further submitted that in terms of clause 5.2 of the building bye-law, 2003, respondent Nos. 4 and 5 who are the owners of the building in question did not submit the required particulars in forms in schedule No.6 relating to commencement of the building and the footings, columns/foundation nor did the Assistant Director furnish a copy of the building plan to the Engineering Department and therefore, the deponent in the affidavit was handicapped and was totally kept in dark about the construction. The submissions of the learned Counsel for BBMP cannot be countenanced.

4. Apparently, the provisions of the Karnataka Municipal Corporation Act, 1976 are for the benefit of the Society at large so that the citizens are kept apprised of the rule and the building bye-law which they must abide, and failure to do so, consequences areâ action under the said Act. The building plans are subject to building bye-law which is a regulatory mechanism and therefore, the requirement of the bye-laws will have to be strictly adhered to. The execution of adherence of the bye-laws, undoubtedly, vest with the Commissioner, BBMP who may or may not delegate his powers. The BBMP is a mammoth organization having officials in the hierarchy meant for ensuring rule of law. In fact, the service rendered by the engineers are said to be of great assistance, at a cost, reason for enhancing the licence fee for sanction of building plans from Rs. 100/- to a few lakhs. That was the submission of the Commissioner in W.P.No.2993/2008 and connected petitions. In short, it was said that every engineer would have to visit the place where erection of building is carried on by the owner or any other authorized person.

5. If that is the tenure of submission of the Commissioner, BBMP, then a duty is cast on the engineer by name Vanaraja, the deponent of the affidavit to have inspected the construction falling within his territorial jurisdiction, from 08.02.2012 onwards. Thereâis a vacuum as to what happened over the construction of building from 08.02.2012 to 07.11.2012. It is also not known as to who informed the deponent on 07.11.2012 over the illegal construction of the building. It cannot be assumed that the deponent of the affidavit became aware of the construction without anybody informing him about the same since he has not visited the spot for over a long period of time from 08.02.2012 to 06.11.2012. Ex-facie, the deponent is guilty of non-performance of duty.

6. The submission of the learned Counsel that the deponent was not informed of the sanction of building plan by the Assistant Director of Town Planning Authority to whom the power of the commissioner is delegated is only a ruse to get over the difficult situation in which the deponent is placed. It is not the case of the deponent that the Deputy Director informed the deponent of illegal construction and therefore, he went to the premises on 07.11.2012. If he could, on his own, go on 07.11.2012 without any information from the Deputy Director, therefore it means he could have gone to the spot on 08.02.2012 onwards every day and every moment when every brick was being installed in the erection of building falling within his territorial jurisdiction. Therefore, it is too farfetched for the learned Counsel for BBMP to contend that the deponent of the affidavit did not have the knowledge of construction of the building illegally by respondent Nos.4 and 5.

7. The Bangalore Mahanagara Palike Building Bye-Laws, 2003 is nothing short of a compendium of various regulations in the matter of construction of building, be it residential, commercial or industrial. Bye-law 3.2.11 requires the issue of a certificate in form under schedule III by the competent architect/ engineer/supervisor who shall be undertaking the supervision. According to the learned Counsel, plan bears the signature of one Mr. S. Lakshmikantha, Architect, registered with the BBMP with No.3258/2008-09. That architect, with full knowledge of the fact that supervision certificate has to be issued, has not done so according to the learned Counsel.

8. Learned Counsel at this stage submits that he has not obtained instructions from the Assistant Director, Town Planning and the Joint Commissioner of BBMP and would secure instructions and make his submission. Sri Nanjunda Reddy, learned senior counsel, on instructions submits that the instructing counsel also does not know whether respondent Nos.4 and 5 secured and submitted a supervision certificate along with plan for sanction and that he would take instructions, if given time.

9. Proceedings before this Court have always had to be adjourned for want of instructions though parties are fully aware of the nature of dispute brought before Court. It is sad to notice that even learned Counsel do not endeavor to secure all necessary instructions, more particularly, in this case, since this matter has been heard on day to day basis.

10.Â Be that as it may, bye-law 5.1 specifies that the grant of licence, approval of plan and specifications or inspections made by the authority shall not in any way relieve the owner of a building from full responsibility for carrying out the work in accordance with the requirements of the sanctioned building plan along with such conditions as have been imposed while sanctioning the licence. Byelaw 5.2 requires commencement of work of construction within a period of two years from the date of issue of licence and requires the owner to give intimation to the authority of the intention to start work in the form prescribed in schedule VI. Further, the owner shall given intimation to the authority on completion of foundation or footings of the walls/columns on the foundation. Learned senior counsel for respondent Nos.4 and 5 submits on instructions that no such intimation was given by the owner as required by bye-law 5.2. Bye-law 5.3 provides for inspection by the authorities in addition to the responsibility of the owner to commence the work after securing commencement certificate in the form prescribed in schedule VII. Learned senior counsel submits that no such commencement certificate was obtained before construction of the building.

11. According to the learned senior counsel, respondent Nos.4 and 5 completed construction of the building during June 2013 and occupied the same immediately thereafter without securing occupancy certificate as required by bye-law 5.6 and that property may have been assessed to property tax by the revenue department of the respondent BBMP. Per contra, learned Counsel for respondent BBMP submits that he has absolutely no information about the completion of the building, occupation of the building or the building being assessed to tax though he is fully aware of the fact that occupancy certificate is not issued. Clause (b) of bye-law 5.6 states that physical inspection by the authority is to find out whether building has been constructed in all respects as per the sanctioned plan and requirement of building bye-law including inspection wherever necessary; while clause (a) of bye-law 5.6 requires that on an application by the owner, when accepted, the occupancy certificate shall be issued in the form in schedule IX provided building is in accordance with the sanctioned plan. Bye-law 5.7 mandates that no person shall occupy or allow any other person in any new building or part of a new building for any purpose whatsoever until occupancy certificate for such buildings or part thereof has been granted by an officer authorized to give such certificate, if in the opinion of that officer, in every respect the building is complete according to the sanctioned plan and have to use for the purpose for which it is erected. Bye-law 6.0 provides for action over deviation, during construction.

12. A bare perusal of the aforesaid provisions of the bye-laws and the submission of the learned senior counsel as well as that of the counsel for respondent BBMP, ex-facie respondent Nos.4 and 5 are guilty of violation of the bye-laws. The engineer incharge then, none other than Vanaraia is guilty of not discharging statutory obligation. It is brought to notice of this Court that Vanaraja was caught by Lokayuktha while accepting Rs. 50,000/- as bribe as indicated in the news paper dated 23.04.2014. This engineer, it is said has been deputed by the Government from the parent PWD department to the respondent BBMP and has been working there since four years and is kept under suspension in view of Lokayuktha raid. Less said the better of the said engineer. In fact, in one of the orders of this Court, the State Government was directed to recall all persons sent on deputation to BBMP and in that regard action taken report was also filed stating that there were no more persons on deputation in BBMP, however, it is strange to notice that State Government has fallen back on its words by deputing Vanaraja from PWD to BBMP.

13.Â From the above, what can be gathered is that the BBMP after having collected enormous sums of money towards fee for sanction of building plan has failed to discharge its statutory obligations. Therefore, this is a petition fit for being clubbed and heard along with W.P.No.2993/2003 in which the challenge is to the enhancement of the licence fee for sanction of building plan and issue of licence.

14.Â In compliance with the order dated 29.10.2014, learned senior counsel for respondent Nos.4 and 5 submits an affidavit of one Sushil Kumar, respondent No.4 who states that he has sworn to the affidavit on behalf of respondent No.5 who is his wife. That affidavit does not comply with the other requirement of the order dated 29.10.2014 relating to the extent of deviation as certified by their architect who issued supervision certificate under the building bye-law. Learned senior counsel seeks a day's accommodation to file an affidavit and the certificate, if any.

15.Â Although it is stated in the affidavit that the deviations are compoundable in nature under the Karnataka Town and Country Planning (Regularisation of Unauthorised Development or Construction) Rules, 2014 nevertheless learned Senior Counsel in his usual form, is candid in his submission that the Rules may not apply to such deviations. A day's time is granted to respondents 4 and 5 to fully comply with the order dated 27.10.2014.

16.Â The affidavit of Vanaraj, filed by the learned counsel for the Commissioner, BBMP is taken on record. Learned counsel for BBMP is also given a day's accommodation to fully comply with the order dated 27.10.2014 by furnishing all relevant material particulars relating to all department of BBMP.

Re list onÂ Â 31.10.2014Â Â Â a/w W.P.No.2993/2008."

8. Apparently since a day's accommodation was permitted to fully comply with the order datedâ27.10.2014, and the case was again adjourned to 5.11.2014, the matter when heard, a direction came to be issued to the Commissioner in the following terms:

"This is a case where 4th and 5th respondents have violated rule of law and therefore, there is a need to direct the Karnataka Appellate Tribunal to dispose of the Appeal No.285/2014, which is listed for hearing on 7.11.2014, after hearing the learned counsel on the very same day and to pass orders thereon. This appeal, it is said, relates to the construction of unauthorized 2nd, 3rd and 4th floors only and not stilt, ground and 1st floor, which is subject matter of this petition, according to the learned counsel for the petitioner.

Pursuant to the Order dated 4.3.2014 in appeal No. 1344/2012 Annexure-C, the respondent-Corporation has not taken any action. However, learned counsel for the Corporation submits that if extended time, on 10.11.2014 at 10.30 a.m., inspection of the building in relation to the stilt, ground and first floor will be conducted in the presence of Respondents 4 and 5 and on the very same day the said respondents will be issued with notice, if deviations are found and report on 12.11.2014. In that view of the matter, time is extended upto 12.11.2014.

Respondents 4 and 5 are directed to be present at the building on 10.11.2014 at 10.30 a.m. without further notice."

9. The Commissioner having complied with the said order, submitted a report which when considered on 12.11.2014, the following order was passed:

"Sri P.D.Surana, learned Counsel for petitioner submits that on 07.11.2014, when Appeal No.285/2014 was listed before Karnataka Appellate Tribunal ('KAT' for short) and copy of order dated 05.11.2014 passed in this petition directing the KAT to dispose of the appeal was made available to the KAT which when specifically pointed out, in opposition, counsel H.M.Muralidhar (HMM) opposed the disposal of the appeal by submitting that a reading of the order dated 05.11.2014 discloses that it only records the submission made on behalf of the proposed applicant and therefore, the KAT did not dispose of the appeal. Learned Counsel places for scrutiny ofâthe Court the certified copy of the order sheet dated 07.11.2014 maintained by the KAT.

A reading of the order of this Court dated 05.11.2014 discloses a direction issued to the KAT to dispose of the appeal on 07. j 1.2014, after hearing learned Counsel for parties, by passing an order. The order sheet dated 07.11.2014 in Appeal No.285/2014 clearly points to the statement made by HMM, Advocate representing the appellants therein that the order dated 05.11.2014 records only submission made by Sri P.D.Surana, learned Counsel. In the face of such a submission what is apparent and palpable is that the lawyer appearing for the appellant in the appeal interfered with and obstructed the due course of justice and therefore, has to be dealt with sternly and firmly to uphold the majesty of law. Since a. lawyer is involved and not a party who made the submission, HMM is directed to show cause as to why action in accordance with law should not be initiated against him. List on 13.11.2014.

In compliance with the order dated 05.11.2014, the Commissioner, Corporation City of Bangalore files a mahazar report, provisional order passed under Section 321(1) and (2) and inspection photos indicating 198.3% deviation in the construction of the building on the stilt, ground and first floor of the premises in question. Objections, if any; to the said report by 13.11.2014."

10. On 13.11.2014, learned counsel for respondents 4 and 5 filed an affidavit whence proceedings were dropped against him by order dated 13.11.2014 which reads thus:

"In compliance with the order dated 12.11.2C14, Sri H.M.Muralidhar, learned Counsel files an affidavit in the form of an explanation and submits that he has no intention to disregard the order of this Court or interfere with the judicial proceeding, while the submission made before the KAT was due to the I.A. filed by the learned Counsel for petitioner to implead the petitioner as a party respondent in the appeal before the KAT and in addition, there being no quorum in the KAT, as only the judicial member was presiding over the Court, while the non-judicial member was not available on 07.11.2014. In that view of the matter, proceedings pursuant to order dated 12.11.2014 stands dropped.

List on 19.11.2014."

11. In the pleadings, it is noticed that one G.L.Somashekar said to be the Assistant Engineer, Ward No. 117 filed an affidavit dated 27.10.2014 enclosing copies of documents and the order of the KAT. The 4th respondent by name Sushil Kumar, S/o Utamchand Dhariwal filed an affidavit, dated 30.10.2014 admitting that, construction is not in accordance with the building plan sanctioned arid that deviations were compoundable under the Karnataka Town and Country Planning (Regularization of Unauthorized Developments or Constructions) Rules, 2014 and further that appeal No.285/2014 is pending before the KAT and in which by order dated 02.04.2014 status-quo was directed. It was further asserted that the construction of the entire building was completed in the month of June 2013 and respondents along with their family have occupied the premises.â

12. Petition is opposed by respondent Nos.4 and 5 by filing statement of objections, inter-alia making reference to the provisional and final orders of confirmation under the Act and the pendency of appeal.

13. The Assistant Engineer, Dasarahalli Division, one Mr.P.Vanaraja, Son of Purusaiah who is under suspension due to the trap conducted by Lokayuktha filed an affidavit, dated 29.10.2014, reiterating the assertions made in the petition except over the allegations. Respondents 1 to 3 filed a list of documents on 12.11.2014 along with the inspection report of the Commissioner, while, learned Counsel for respondents 4 and 5 filed an affidavit dated 13.11.2014 over his conduct before the KAT. Respondent No.4 filed statement of objections dated 19.11.2014 to the report of the Commissioner stating that petitioner was present at the time of inspection and taking measurements and alleging that respondents have not taken "proper measurement" and that there are "lot of discrepancies in the measurement furnished in the report." Paragraph 3 it is stated thus:

3. It is respectfully submitted that in Annexure-R2 in respect of the front side of the building space is left (however these respondents are disputing this measurement). Even if this measurement is assumed to be correct, in the present repot those measurement have not been shown. On the other band it is mentioned as there has been 100% deviation. Similarly there is lot of discrepancies in respect of measurement shown in present report which does not tally with the Annexure-R2. These respondents respectfully submit that the present report is confusing. In floor area statement total percentage of deviation is shown as 198.3%, on other hand in Annexure-R2 in Floor Area Statement the total percentage of deviation is shown as 62.7%."

14. Today, learned Counsel for respondents 1 to 3 files an affidavit of one N.G.Chandrappa, Assistant Director, Town Planning (East), BBMP stating that respondents 4 and 5 applied on 30.01.2012 for sanction of a building plan under "Suvarna Paravanige Scheme". This deponent states that his predecessor visited the spot, verified the documents and accorded sanction to the building plan and that respondents 4 and 5 have neither intimated nor applied for issue of a Commencement Certificate. Enclosed to the affidavit are copies of (i) joint affidavit of respondents 4 and 5 in terms of Annexure R-6 undertaking to put up construction in compliance with the building plan sanction as required under bye-law 5.1 of the Bengaluru Mahanagara Palike Building Bye-laws, 2003 (for short 'bye-laws'), (ii) affidavit of the registered Architect/ Engineer/ Supervisor and respondents 4 and 5 as required under bye-law 3.6 read with schedule IV of the bye-!aws.

15. Heard the learned Counsel for petitioner, respondents 1 to 3 as well as Sri Lakshminarayana, the Commissioner/first respondent who is present and J earned Counsel for respondents 4 and 5.â

16. There is no more doubt that respondents 4 and 5 were permitted in terms of the plan sanction of which is accorded on 08.02.2012 bearing No.OL/SP/ 1309/ 11-12 to put up construction of-

(i) stilt floor measuring 88.50 sq.mtrs with FAR of 8.62, after deducting 76.89 sq. mtrs towards parking;

(ii) ground measuring 125.58 sq. mtrs with FAR of equal area with 2 tenements;

(iii) first floor measuring 125.58 sq. mtrs with identical FAR area and 1 tenement;

(iv) second floor measuring 125.58 sq.mtrs with identical FAR area and 1 tenement;

(v)Â terrace measuring 19.32 sq.mtrs with a staircase deduction of 19.32 sq.mtrs and no tenement; totaling to 481.57 sq.mtrs. built area, with FAR 385.37 sq. mtrs and the total number of tenements as four, on property bearing No.8/1, 2nd Cross, Shanthinagar, Bengaluru. The plan specifically provides for set back on the front side (East) 4.10 metres, hind side (West) 2.70 metres, on the right side (North) 2.50 metres and on the left side (South) 1 metre. The dimension of the site is shown as 6.70 metres North South and 33.52 metres East West. The ground, first, second and terrace floor is described in the sketch detailing the location of living, kitchen, bed room and other rooms in each floor. The height of the building to be constructed is said 11.40 metres with a parapet wall of 0.75 metres and staircase headroom of 2.20 metres.

17. It is admitted that respondents 4 and 5 have deviated from the building plan by constructing a building without leaving the set backs and put up 3rd and 4th floors without sanction or permission and did not obtain permission either by a fresh application or modification of the earlier plan. The inspection report of the Commissioner clearly indicates the extent of deviation, said to be twice the area permitted to be put up. Respondents 4 and 5 having erected the building were required to place before Court the exact and true extent of the building erected, after measuring the same, which is conspicuously not forthcoming, in other words, respondents 4 and 5 have suppressed relevant material information essential for decision making. The statement on oath of the 4th respondent in the affidavits and statement of objections to the report of the Commissioner that though there is deviation, in the first, place they are entitled to regularization under the Karnataka Town and Country Planning (Regularization of Unauthorized Developments or Constructions) Rules, speaks volumes of the admission of fact. Admittedly, the aforesaid Rule is not brought into force and is inapplicable as submitted by the learned Senior Counsel on 30.10.2014. Secondly the measurements recorded by the Commissioner and as disclosed in the report alleged to be incorrect is of no consequence, since respondents 4 and 5 who put up the construction have not placed before Court the true and correct measurement of the building already occupied by them without obtaining an occupancy certificate. It was in these circumstances that the Court directed the Commissioner to inspect the building and submit the report.

18. Bye Taw 5.1 reads thus:

5.1. Responsibility of owner-The granting of licence, approval of the plan and specifications, or inspections made by the Authority shall not in any way relieve the owner of a building from full responsibility for carrying out the work in accordance with the requirements of the sanctioned building plan along with such conditions as have been imposed while sanctioning the licence."

19. In terms of the said bye-law, respondents 4 and 5 filed a joint undertaking by way of sworn statement, Annexure R-6 to the affidavit dated 30.10.2014 of N.G.Chandrappa, the Assistant Director of Town Planning, undertaking to put up the construction as per the sanctioned plan and adhere to the provisions of bye- law 5.1 of the bye-laws, while paragraph 6 of the undertaking reads thus:â

"6. I take full responsibility if the building is constructed in violation of sanctioned plan. When directed by the authorities, I will duly remove the violated portions. If I fail to do so within the time prescribed in the notice, I will not object to BMP authorities to remove the portion in violation of the sanctioned plan. In this event I agree to pay all expenses incurred by BMP."

20. As noticed at paragraph 10 of the order dated 30.10.2014 supra, commencement certificate under schedule VII was not obtained in terms of bye-law 5.2 and 5.3 by submitting required particulars in forms in schedule VI relating to footings and foundation. At paragraph 11 of the said order, supra, it is admitted that an occupancy certificate as required by bye-law 5.4 was not obtained nevertheless respondents 4 and 5 occupied the building. It is further admitted that the authorities were not informed to inspect the building after completion to verify whether the building was compliant with the building plan sanction and the bye-laws, since bye-law 5.7 states that no person can occupy the building without an occupancy certificate, the occupation of the building by respondents 4 and 5, is illegal.

21. Section 115 of the KMC Act states that, if any building in the city is constructed or reconstructed, the owner shall give notice thereof to the Commissioner, within fifteen days from the date of completion or occupation of the building whichever is earlier. Section 310 states that, every person shall, within one month after the completion of the erection of a building or the execution of any such work, deliver or send or cause to be delivered or sent to the Commissioner at his office notice in writing of such completion, accompanied by a certificate in the form prescribed in the bye-laws signed and subscribed in the manner prescribed and shall give to the Commissioner all necessary facilities for the inspection of such buildings or of such work and shall apply for permission to occupy the building, while, sub- Section (1-A) reads thus:â

" (1 - A) Notwithstanding anything contained in sub-section (1), where permission is granted to any person for erection of a building having more than one floor, such person shall, within one month after completion of execution of any of the floors of such building, deliver or send or cause to be delivered or sent to the Commissioner at his office, a notice in writing of such completion accompanied by a certificate in the form prescribed in the bye- laws, signed and subscribed in the manner prescribed and shall give to the Commissioner all necessary facilities for inspection of such floor of the building and may apply for permission to occupy such floor of the building Sub section (2) reads thus:

(2) No person shall occupy or permit to be occupied any such building (or part of the building) or use or permit to be used the building or part thereof affected by any work, until,-

(a)Â permission has been received from the Commissioner in this behalf, or

(b)Â The Commissioner has failed for (thirty) days after receipt of the notice of completion to intimate his refusal of the said permission."

22. The aforesaid provisions read with bye-law 5.6 in the matter of issue of occupancy certificate, it is needless to state is a condition precedent for every owner who erects a new building to obtain a completion certificate and occupancy certificate from the Commissioner. In the facts and circumstances of the case, it is admitted that respondents 4 and 5 though put up construction of the building in violation of rule of law have occupied the premises without following and in breach of Sections 115 and 310 of the KMC Act.

23. Section 436 provides for penalty for unlawful building.

"436. Penalty for unlawful building.- (a) If the construction or reconstruction of any building or well,-

(i) is commenced without the permission of the Commissioner, or

(ii)Â is carried on or completed otherwise than in accordance with the particulars on which such permission was based, or

(iii) is carried on or completed in contravention of any lawful order or breach of any provision of this Act or any rule or bye-law made under it, or of any direction or requisition lawfully given or made,

Thus respondents 4 and 5 are liable for criminal prosecution which the first respondent/Commissioner ought to take note of and act in accordance with law.

24. Respondents 4 and 5 having failed to comply with their undertaking, have flouted the rule of law, disentitling them to equity.

25. One Lakshmikantha.S, said to be the "Registered Engineer" bearing No.BCC/BL- 3.6/E:3256:08-09 and with the address No.58, Kathriguppe village, B.S.K. Ill Stage, Bengaluru-85 claims to have certified the plot bearing No.8/1 on inspection and prepared the building plan for sanction as disclosed in the affidavit, Annexure-R7 in terms of schedule IV to the bye-laws and at paragraph 7, 8 and 9 undertook thus:â

"7. I also undertake to guide my client at all times regarding the building bye-laws and the need to adhere to the same.

8. I take full responsibility if the building plan prepared by me is against the provisions of Revised Comprehensive Development Plan/ Master Flan 1995 and the provisions of the Building Bye-laws of the Bangalore Mahanagara Palike. As stipulated under the bve-laws I am jointly responsible if building is constructed deviating from the sanctioned plan. I shall perform, the duties and responsibilities as prescribed in the Schedule IV-VIII of Building Bye-laws - 2003.

9. If for any reason, the building is deviated from the sanctioned plan, I will undertake to notify in writing to the sanctioning authority of such deviation within 3 days of its occurrence."

26. Bye-law 3.6 of the bye-laws provides for registration of Architects/Engineers/Supervisors referred to in the bye-laws to be registered by the authorities as stipulated in schedule IV which also provides for qualification for registration of technical personnel for preparation of schemes for building licence and supervision and procedure for registration, their duties and responsibilities. Clause IV 7.1 reads thus:

"IV-7.1.The validity of every registration so granted for the above categories by the Authority shall be for a period of five years and renewable thereafter for every five years unless the same is cancelled by the Authority. The application for renewal shall be made to the Authority one month before the date of expiry of the registration. If any owner / builder contravenes the provisions of these bye laws and rules in force, the Authority shall inform the same to the registered Architect./Engineer/ Supervisor in the first instance, warn in the second instance and cancel the registration if the same is repeated for the third time."

Clause IV-8 (g, h, i and j) reads thus:

"g) They shall report to the Authority of any work executed on site in contravention of provisions of the Karnataka Municipal Corporations Act, 1976, the Karnataka Town and Country Planning Act, 1961, rules, bye- laws and regulations and other orders made thereunder. They shall also report to the Authority of any work executed in contravention of the sanctioned plan in the course of construction.

h) They shall regularly fill up the progress report form and shall not proceed with the next stage of work without getting the previous stage inspected and examined by the authorised corporation staff. They shall fully comply with the instructions issued after examination of the work.

i) They shall not materially and structurally deviate from the sanctioned plan, without previous approval of the Authority. They shall explain to the owners about the risk involved in contravention of the provisions of the Act, rules, bye-laws, zoning regulations, standing orders and policy orders of the Corporation.

j) They shall submit the completion certificate and the executed plan (in case of deviations) immediately when the work is completed. They shall fully comply with the requirements of the Corporation in connection with the Completion Certificate within the stipulated time."

27. Regard being had to the aforesaid bye-laws, the duties and responsibilities of the engineer/ architect duly registered with the BBMP is a mandate in the matter of compliance of rule of law. The undertaking in the form of affidavit extended by the engineer/ architect is not an empty formality but with a purpose of ensuring construction of the building strictly in accordance with the bye-laws, the Karnataka Town and Country Planning Act and Rules framed therein as also regulations. Failure to adhere to said undertaking, it is needless to state must be viewed seriously and therefore any laxity in the matter of taking a serious view over such actions of registered engineers cannot but be deprecated. A Registered architect/engineer cannot be allowed to go scot free despite the undertaking in the form of an affidavit, since there would be no sanctity attached to a sworn statement.

28. It is the general perception of people that whenever they apply for sanction of a building plan, the engineering department of the BBMP insists that the plan be certified by one of their registered architect/engineer/supervisor and in most cases, parties do not even know the engineer who affix his signature on the plan, a formality convenient to enable corruption, It is not known on how many building plans the said engineer has affixed his signature and how many such undertakings given and in how many buildings that engineer has violated the terms of undertaking. It is said that no action is initiated against this Engineer who guided respondents 4 and 5 in erecting the building in violation of building plan sanction. It is hoped that the first respondent/ Commissioner would forthwith ensure action against the said engineer, in accordance with law.â

29. Having concluded that construction of the building by the 4th and 5th respondent is in violation of rule of law and that the BBMP engineers endorsed with statutory duties, failed to prevent the unauthorized deviation, hence the said engineers cannot be allowed to go scot free despite being paid monthly salary from out of the exchequer. Sadly it is to be noticed that the legislature of the State inserted in the KMC Act, Section 321-B during the year 2007 providing for penalty against jurisdictional officer failing to prevent unauthorized deviation or constructions, without however prescribing the punishment. In other words, the said section is a dead letter, since no punishment can be imposed on the engineers held guilty of preventing unauthorized deviation in constructions. Because of this lack of punishment, engineers are bold enough in not preventing the unauthorized construction and deviation. It is possible to assume that there must be some other considerations for such failure in discharge of statutory duties. In the instant case, it is not as if four floors of building was constructed in a day but must have taken several months and all the while, the jurisdictional engineers though in and around the said place thought fit to initiate action only after petitioner's representation and order dated 28.11.2012 in WP No.4972/2012. Had one of them taken remedial action, this petition would have been unnecessary. Failure to initiate action at the earliest point of time has led to this litigation at the instance of the petitioner a neighbour of respondents 4 and 5, entitled to preserve and protect his rights. It is needless to state that it is for the Commissioner/ first respondent to take action on the disciplinary front against the erring engineers who fail to prevent unauthorized construction and ensure imposition of punishment commensurate with the allegations of misconduct that may be leveled against the engineers, keeping in mind the observations supra.â

30. In the circumstances, the observations of the Apex Court in Dr.Balwant Singh vs. Commissioner of Police and others in Civil Appeal No. 10024/2014 dated 07.11.2014 is apposite.

"21. The law of nuisance is well settled. Nuisance in any form as recognized in the law of Torts - whether private, public or common which results in affecting anyone's personal or/and property rights gives him a cause of action/ right to seek remedial measures in Court of law against those who caused such nuisance to him and further gives him a right to obtain necessarv reliefs both in the form of preventing committing of nuisance and appropriate damages/compensation for the loss, if sustained by him, due to causing of such nuisance. (See Ratanlal Dhirajlal - Law of Torts by G.P.Singh -26th Edition pages- 621, 637, 640)."

31. Viewed in this perspective, petitioner's neighbours, 4th and 5th respondents having impinged upon the rights of the petitioner and caused nuisance, by constructing a building in gross violation of rule of law, to the detriment of the petitioner, is entitled to remedial measures both at the hands of BBMP as well this Court. The KMC Act provides for remedial measures which the authorities have failed to exert themselves, and therefore, there is a need to direct taking effective measures to remedy the illegality perpetuated by the 4th and 5th respondents.

32. Section 443 of the KMC Act provides for general provisions regarding licence, registration and permissions while sub Sections 3 and 4 invest jurisdiction in the first respondent Commissioner to suspend and revoke the licence or permission granted under the Act. In view of the unauthorized construction put up by the respondents 4 and 5, it is needless to stat e that it is for the first respondent/ Commissioner to exercise a jurisdiction vested in him under the aforesaid statutory provision.

33. Bengaluru city has a dubious distinction for illegal constructions. Thanks to the officers manning BBMP who have failed to discharge statutory duties either because of incompetence or for various considerations. It is in this context, it is useful to extract the observations of the Apex Court in the following reported opinions.

34. In the light of the observations of the Apex Court in 'DIPAK KUMAR MUKHERJEE v. KOLKATA MUNICIPAL CORPORATION AND OTHERS (AIR 2013 SC 927), the petitioner being the immediate neighbour of the 4^th respondent and a 'rate payer', has a legal right to demand compliance by respondents 1 to 3 of their statutory duties. The Apex Court noticed its earlier decision in K. RAMADAS SHENOY v. CHIEF OFFICERS, TOWN MUNICIPAL COUNCIL (AIR 1974 SC 2177) and observed thus:

"The Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The Scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction."

35. The provisions of the Karnataka Municipal Corporations Act, 1976 invests jurisdiction in respondents 1 to 3 to perform duties, to ensure planned development of the City of Bangalore, more appropriately in the construction of buildings, to adhere to the laws in force. The Apex Court in 'THE MUNICIPAL CORPORATION FOR GREATER BOMBAY AND ANOTHER v. THE ADVANCE BUILDERS [INDIA] PRIVATE LTD,, AND OTHERS (1971 [3] SCC 381) at paragraph-12 observed thus:

"12. It is clear, therefore, on a consideration of the provisions of the Bombay Town Planning Act, 1954 and especially the sections of that Act referred to above, that the Corporation is exclusively entrusted with the duty of framing and implementation of the Planning Scheme and, to that end, has been invested with almost plenary powers Since development and planning is primarily for the benefit of the public, the, Corporation is under an obligation to perform its duty in accordance with the provisions of the Act. It has, been long held that, where a statute imposes a duty the performance or non-performance of which is not a matter of discretion, a mandamus may be granted ordering that to be done which the statute requires to be done (See Halsbury's Laws of England,. Third Edition, Vol. II, p. 90)."

36. The Division Bench of this Court in 'SHANTA v. COMMISSIONER, CORPORATION OF THE CITY OF BANGALORE (ILR 1986 [2] KAR 1037) , observed thus:

"7. It must be emphasized that the Development Plan prepared under the Planning Act 1961 would be for the benefit of the public. The Corporation authorities who are the trustees of the public interest, must strictly observe the norms and conditions of the Development Plan. The authorities owe a duty to ratepayers to protect the interest of the public while administering the planning law. They cannot afford to ignore the social responsibilities underlining the planning law. They shall not favour an individual at the cost of the general public and to the detriment of their interest. They shall never issue license to construct buildings contrary to the Zoning Regulations. If they give license to construct a building contrary to the permitted land use or contrary to the prevailing zoning regulations, they should be held responsible for their lapses. Indeed, they art accountable to the public when they act against the interest of the public. In such cases, when the ratepayers approach the Court complaining about the misuse or abuse of powers by public- authorities, the Court cannot drive them away on technical grounds. It would be the duty of Courts to enforce the rule of law enacted for the benefit of the public. It would be the duty of Courts to protect the ratepayers interests preserved under the planning law.

10. In the light of these principles, it would be futile to contend that the appellants should be denied relief under Article 226 of the Constitution. Respondent 2 has no right to construct the building contrary to the planning law. Nor the Planning Authority could permit him to construct a building to the prejudice of the public and impairing their civic rights."

37. If regard is had to the aforesaid observations of the Apex Court and that of the Division Bench, it is needless to state in the facts and circumstances respondents 1 to 3 invested with the jurisdiction to ensure construction of buildings in the City of Bangalore, in conformity with the Bye-laws, Rules and Regulations as well as the 'Zoning Regulations', with impunity, allowed by not preventing 4th respondent from erecting a construction in gross violation of rule of law. It is in this context, respondents 1 to 3 failed to discharge statutory duties under the 'KMC Act'.

38. In DIPAK KUMAR MUKHERJEE's case [supra], the Apex Court extracted its earlier observations in 'PRATIBHA CO-OP. HOUSING SOCIETY LTD., v. STATE OF MAHARASHTRA (AIR 1991 SC 1453) , which on facts, related to the Bombay Municipal Corporation's order for demolition of illegally constructed portions of the building observing thus:

"Before parting with the case we would like to observe that this case should be a pointer to all the builders that making of unauthorised constructions never pays and is against the interest of the society at large. The rules, regulations and bye-Laws are made by the Corporations or development authorities taking in view the larger public interest of the society and it is the bounden duty of the citizens to obey and follow such rules which are made for their own benefits."

39. Having regard to large number of illegal and unauthorized construction in Cuttack, as observed in *FRIENDS COLONY DEVELOPMENT COMMITTEE v. STATE OF ORISSA (AIR 2005 SC 1), extracted the relevant portion of the opinion which reads thus:-

"5. In Friends Colony Development Committee v. State of Orissa (AIR 2005 SC 1) (supra), this Court noted that large number of illegal and unauthorised constructions were being raised in the city of Cuttack and made the following significant observations:

"Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the designs of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorised constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous buildersâ¦â¦Â Â Â Â Â Â Â â

In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way -hey like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessaryÂ or unreasonable intermeddling with the private ownership of the property may not be justified.

The municipal laws regulating the building construction activity may provide fcr regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimised from the point of view of the control of communityÂ development,die prevention of overcrowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.

Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building."

(emphasis supplied)

40. In the very same Judgment, the Apex Court, further extracted its earlier opinion in 'SHANTI SPORTS CLUB v. UNION OF INDIA" (AIR 2010 SC 433), which runs thus:-

"6. In Shanti Sports Club v. Union of India (AIR 2010 SC 433) (supra), this Court approved the older of the Delhi High Court which had declared the construction of sports complex by the appellant on the land acquired for planned development of Delhi to be illegal and observed:

"In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorisedÂ Constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal arid town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorised constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realise that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air- conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorised constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans,, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions."

41. Yet again, the Apex Court extracted its earlier observations in 'PRIYANKA ESTATES INTERNATIONAL PVT. LTD , v. STATE OF ASSAM (AIR 2010 SC 1030), in the matter of refusal to order regularization of illegal construction raised by the appellant therein, which runs thus:

"7. In Priyanka Estates International Pvt. Ltd. v. State of Assam (AIR 2010 SC 1030)(supra), this Court refused to order regularisation of the illegal construction raised by the appellant and observed:

"It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free.

Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multistcreyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder."

42. In the light of the aforesaid observations, the Apex Court in DIPAK KUMAR MUKHERJEE's case [supra] held thus:

"8. What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storied structure raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors."

43. It is useful to extract Bye-law 6 of the 'Bye laws' and Section 321-A of the Act which reads thus:-

"6.0. Deviations during construction:

(i)Â Wherever any construction is in violation/deviation of the sanctioned plan, the Commissioner may, if he considers that the violations/deviations are within 5% of (1) the setback to be provided around the building, (2) plot coverage. (3) floor area ratio, and (4) height of the building and that the demolition under Chapter XV of the Act is not feasible without affecting structural stability, he may regularize such violations/deviations after recording detailed reasons for the same.

(ii)Â Violation/deviation as at 6.0(i) above may be regularized only after sanctioning the modified plan recording thereon the violations/ deviations and after the levy of fee prescribed by the Corporation from time to time.

(iii) Regularisation of Violations/deviations under this provision are not applicable to the buildings which are constructed without obtaining any sanctioned plan whatsoever and also the violations/deviations which are made in spite of the same being specifically deleted or rejected in the sanctioned plan".

"321 -A. Regularisation of certain unlawful buildings: - (1) NotwithstandingÂ Â anything contained in the Act, when construction of any building is completed in contravention of the Sections 300 and 321 and building bye laws made under Section 423, the commissioner may regularize building constructed prior to the 3rd day of December 2009 subject to the following restrictions and such rules as may be prescribed and on payment of the amount specified in sub-section (2), namely: -

(a)Â Where the building is built abutting the neighbouring property or where the set back provided is less than the limit prescribed in bye-laws, violation up to twenty-five per cent in case of non-residential buildings and fifty per cent in case of residential buildings shall be regularized;

(b) No development made in the basement or usage in contravention of bye-law shall be regularised;â

(c)Â The construction of building shall not be regularized if it violates the building line specified on any given road unless the owners of such building furnish an undertaking that the space between the building line and the road or footpath or margin will be given up free of cost at. any time when required for the purpose of widening the road in question;

(d)Â The provisions of sub-sections (2) to (14) of Section 76-PF of the Karnataka Town and Country Planning Act, 1961, shall apply mutatis mutandis for regularization of building under this section and application for regularization being made to the Commissioner.

(2) Regularisation of any construction under this section shall be subject to payment of the prescribed amount which may be different for different types of contravention of building bye- laws:

Provided that the amount so prescribed shall not be less than -

(i) six percent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio does not exceed twenty-five per cent;

(ii) eight per cent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio exceeds twenty-five per cent, but does not exceed fifty per cent:

Provided further that where the portion of the building is built in violation of the provisions referred to above is being used or meant for non-residential purpose and amount payable for regularise don of such portion shall be:-

(a) twenty per cent of the market value, determined in accordance with Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio does not exceed twelve and a half per cent;

(b) thirty five per cent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio exceeds twelve and a half per cent but does not exceed twenty-five per cent.

(3)Â No person shall be liable to pay fine or fee for regularization under any other law if he has paid regularization fee under this Act for the same violations.

(4) All payments made under sub-section (1) shall be credited to a separate fund kept in the concerned local/planning authority called the urban areas infrastructure development fund which shall be utilised in such manner, for the development of infrastructure, civic amenities, lighting, parks, drinking water, drainage system and for any other infrastructure, as may be prescribed".

Although learned Counsel for 4th respondent submits that section 321-A comes to aid regularization of construction contrary to the building plan sanction and 'Zoning Regulations', is unacceptable. Respondent No.4 can take no benefit of either section 321-A or Bye- law 6 of the 'Bye-laws' since the disputed construction is in clear violation of the building plan sanction and notices issued by the 'BBMP' under Section 321[1], [21 and [3] of the 'KMC Act' and also because such a plea is raised after completion of the building construction. Even otherwise, if such constructions are permitted to be regularized, then it would take away the efficacy of the very essence of planned development of Bengaluru.

44. A Division Bench in 'LEENA FERNANDES v. PLANNING AUTHORITY (ILR 1992 KAR 3068) , while dealing with protection of self interest and treated it as protection of special right and special interest of citizens, particularly, in matters of complaints regarding unauthorized construction of buildings observed thus:

"If eternal vigilance is the price for liberty, equally it is so, to attain orderliness and planned developments. We are of the view that in the absence of a clear and manifestly vicious attitude on the part of the petitioners being established, as the motivation for filing the Writ Petitions, Court should not non-suit them, as otherwise, the much needed public action in this field of public litigation may get discouraged. A mere suspicion that the action initiated by the petitioners may be due to some ulterior motive is not sufficient to throw out their action. There is every Deed to prevent the public bodies from overstepping their limitations; there is also a need to see that the inaction on the part of the Governmental Authority and the local bodies does not contribute to the contraventions of the statutory schemes like ODP. which are evolved for the public good. The valuable right of the Tax Payers and the special interest of the residents should normally be accepted as sufficient to recognise their locus-standi to invoke the jurisdiction, to safeguard this right or the special interest."

45. The Apex Court in 'M.I. BUILDERS PVT. LTD. v. RADHEY SHYAM SAHU AND OTHERS ([1999] 6 SCC 464) , observed thus:

"73. The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief.

Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties (if the Mahapalika to construct and maintain parking lots."

46. In 'M.C. MEHTA v. UNION OF INDIA AND OTHERS ([2006] 3 SCC 399) observed thus:

"61. Despite passing of the laws and repeated orders of the High Court and this Court, tiie enforcement of the laws and the implementation of the orders are utterly lacking. If the Jaws are not enforced and the orders of the courts to enforce and implement the laws are ignored, the result can only be total lawlessness. It is, therefore, necessary to also identify and take appropriate action against officers responsible for this state of affairs. Such blatant misuse of properties at large scale cannot take place without connivance of the officers concerned. It is also a source of corruption. Therefore, action is also necessary to check corruption, nepotism and total apathy towards the rights of the citizens. Those who own the properties that are misused have also implied responsibility towards the hardship, inconvenience, suffering caused to the residents of the locality and injuries to third parties, It is, therefore, not only the question of stopping the misuser but also making the owners at default accountable for the injuries caused to others. Similar would also be the accountability of errant officers as well since, prima facie, such large scale misuser, in violation of laws, cannot take place without the active connivance of the officers. It would be for the officers to show what effective steps were taken to stop the misuser."

47. Although Sri H.M.Muralidhar, learned Counsel for respondents 4 and 5 submits that if the stilt floor is demolished, then the entire building would collapse to the ground, nevertheless this court's imprimatur is unavailable to regularize or put the seal of authority on the illegal construction. Respondents 4 and 5 cannot benefit from intentional illegal construction. If the entire building is constructed in such a manner that portion of it cannot be retained by removing the deviations, it is needless to state that the whole hog must go. In that view of the matter, there shall ensue a direction to respondents 4 and 5 to either bring the building in conformity with the building plan duly sanctioned within a period of one month from today and report the same to the respondents 1 to 3 who shall thereafter inspect the building to ascertain whether the built up portions are in conformity with the building plan. Failure to do so, the first respondent/ Commissioner is directed to demolish the building. Since removal of the stilt floor would necessarily mean removal of all upper floors which are also unauthorized no useful purpose will be served to await the decision in Appeal No.285/2014 said to be pending before the KAT, and in which there is an order of status-quo. The cost and expenses for the said purpose shall be borne by respondents 4 and 5 to be recovered by the first respondent in a manner know to law from the said respondents. Petition is ordered accordingly. Cost quantified at Rs.25,000/- payable by respondents 4 and 5 to the petitioner.

Court	Karnataka High Court
Decided On	Nov-19-2014
Case Number	Writ Petition No. 29795 of 2014 (LB-BBMP)
Judge	RAM MOHAN REDDY
Appellant	Kamlesh Kumar
Respondent	The Commissioner, Bruhat Bangalore and Others

Kamlesh Kumar Vs. The Commissioner, Bruhat Bangalore and Others - Court Judgment