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TMI Blog2005 (1) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... 46 multi storey buildings have come up in this area. Learned counsel has produced photographs to show that buildings more than three and four floors have been constructed in and around this area. However, we are satisfied that there is no prohibition under the provisions of the Act and Rules putting the ceiling on construction of the multi storey building. We are also satisfied that the delay is also fatal in the present case. The sale purchase agreement has its own terms and conditions and the condition as reproduced above, only says that the building to be constructed shall be used wholly for human habitation and shall not include any apartments to the building whether attached thereto or not used as a shop or a building or warehouse or used for manufactory operations by mechanical power. Therefore, in this final agreement which has come to be executed and which has been registered the condition is that the building has to be used for human habitation and there is no prohibition contained therein that it cannot raise multi-storeyed building. Once the final agreement is executed then the lessee- purchaser becomes absolute owner of the schedule property and he has to abide by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, third party interest has already been created. As such this appeal is also allowed for the reasons mentioned above. However, there will be no order as to costs. - MR. Ashok Bhan And A.K. Mathur, JJ. Uday Holla and T.R. Andhyarujina, Sr. Advs., B. Prasad, A.S. Bhasme, K.T. Anantharaman, R. Jawaharlal, Atul Bhatia, Vasudevan Raghavan, R. Jagannath Goulay, P. Narasimhan, M. Gireesh Kumar, Sangeeta Kumar, K. Lingaraja and E.C. Vidya Sagar, Advs JUDGMENT A.K. Mathur, J. 1. This appeal and connected appeals were filed against the order passed by the Division Bench of the Karnataka High Court dated 2nd July, 1998 whereby the Division Bench disposed of Writ Appeal No. 1955 of 1993 alongwith Writ Appeal No. 777 of 1993. 2. Facts which are necessary for disposal of these appeals are -- the Respondent Association Koramangala Residents Vigilance Group filed a Public interest petition challenging the building licence issued for construction of multi-storeyed/multi-apartments on Site Nos. 403 and 443 in IInd and IIIrd Cross in III Block, Koramangala Layout, Bangalore, on the ground that it is illegal, void and prayed for quashing of the licence and direction to demolish the building a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the present Public Interest Litigation was filed which came up before a single Judge. In this petition, the building licence No. LP 169/87-88 issued in favour of Respondent No. 4 i.e. M/s R M Trust by Respondent No. 1 - the Corporation of the City of Bangalore, for construction of multi-storey building was stopped by letter dated 4.4.1988. This letter was withdrawn by Respondent No. 3 i.e. Deputy Director of Town Planning Corporation of the City of Bangalore, by its letter dated 26th March, 1991. On receipt of this letter, Appellant/Respondent No. 4 resumed the construction. This action of the Respondent No. 3 permitting the Appellant/Respondent No. 4 to proceed with the construction was challenged to be arbitrary, illegal, unjustified and violative of Article 14 of the Constitution besides being in violation of law, by the Respondent Association, alleging that issue of licence in favour of Appellant/Respondent No. 4 is illegal and without jurisdiction. The following prayers were made in the Writ Petition which reads as under: (i) Call for records from Respondents 1 to 3 pertaining to building licence issued in R-1's No. LP.353/87-88 for putting up a Multi-storyed/Multi-apar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23rd November, 1987 and the Chandra Shekhar Hegde's Case was decided on 14/15/16th December, 1987 wherein it was held that the Corporation was not justified in granting licence to the owners of the sites to put up multi-storyed/multi-family dwelling units and the appeal was dismissed on 14th December, 1988. On 4th April, 1988, the Respondent - Corporation issued a letter to the builders directing them to stop construction. The construction remained suspended upto 26th March, 1991, when letter was issued to builder revoking to stop construction order, permitting them to proceed with the construction. This Writ Petition was filed in the first week of November, 1991, as public interest litigation. The explanation for the delay was that the office bearers made enquiries from the office of Corporation the reasons for withdrawing of direction to stop work but in vain, met the authorities of Corporation Respondent No. 3 on several occasions and then by a letter dated 7th October, 1991, requested to furnish the copies of certificate but the copies were not furnished. They protested that there was no justifiable reason for such withdrawal. They also explained that the building is permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the licence granted in favour of Respondent Nos. 4 and 5 is illegal and quashed the licence issued in favour of Respondent-builder, and also quashed the order of Respondent Corporation dated 26th March, 1991 allowing Respondent-builder to continue with the construction and directed Respondent No. 1 to demolish the illegal construction put up on Site Nos. 403 and 443. It was further directed that the construction as raised by them is illegal and they were liable to bear the expenses for demolition of the construction and Respondent Nos. 1 and 3 are liable to pay costs to the writ petitioner. 6. Aggrieved by this order, the present special leave petitions were filed and leave was granted and operation of the order was stayed. 7. The learned counsel for the appellant has seriously raised the objection of entertaining this belated Public Interest Litigation and he submitted that this was nothing but abuse of the process of the Court. Secondly, he submitted that the licence which had been granted for construction by the Respondent-Corporation was fully justified and no illegality was committed. 8. All the three appeals Civil Appeal No. 1415 of 1999, Civil Appeal No. 1416 of 1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities after taking into consideration the representation, permitted M/s Batra Developments to proceed with the construction, M/s Batra Development entered into an agreement of sale with M/s Raj Trust on 16th June, 1989. Consequent to the said agreement under the Development Agreement dated 8th May, 1991 between M/s Raj Trust and the appellant, the construction proceeded. When the building was practically completed during November, 1991, the present Writ Petition was filed challenging the very licence issued on 3rd October, 1987. The learned Single Judge dismissed the Writ Petition on the ground of laches. It was pointed out that the building was occupied by 12 families and the grant of licence has been declared to be invalid after 11 years, but the Division Bench did not agree and directed demolition of building on the basis of Pee Kay Constructions case. Therefore, the question now arises for our consideration is whether the issue of licence on 3rd October, 1987 by Corporation was valid or not. 10. Similarly, in the another Civil Appeal No. 1416 of 1999, the question of law is identical but facts are little different. In this case, on 16th July, 1969, City Improvement Trust Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto the question of the powers of the authorities to grant licence contrary to Section 505 of the Karnataka Municipal Corporation Act, the judgment of the learned Single Judge can be sustained on the ground that there has been an unexplained delay on the part of the Corporation in taking timely action against the builders/owners. The Corporation is estopped from taking any action in view of its own conduct in allowing the builders to raise construction on the basis of the licences which were granted in contravention of the provisions of Section 505 and in allowing the building to be occupied. 3. In this view of the matter, we find that the judgment of the learned Single judge, without expressing any opinion on the question of law, does not call for interference. Consequently the appeals are dismissed. However time is granted to the Corporation for compliance of the judgment of the learned Single Judge upto 5th August, 1989. 12. On the basis of this judgment a representation was made by appellant Corporation revoked their letter of stopping construction. That gave rise to present PIL. 13. It is also relevant to mention here that a Special leave Petition was filed against the Pee Kay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.P. was accordingly disposed of but the ratio laid down in the Pee Kay Constructions case was not examined by this Court on merit. In fact, the S.L.P. was disposed of with the agreement of both the parties. 15. And the third C.A. No. 1417 of 1999 was filed by Motor industries Company Limited who have purchased two flats in this building for about ₹ 21.1 lakhs on 21.2.1994 and the same are in occupation of its employees. It is alleged that the petitioner who had bought these flats, was neither aware of the controversy pertaining to the building nor about any order by any court. It was also alleged that the number of persons has purchased flats in this residential building and they are facing the similar predicament. Hence, these three appeals are before us for the final disposal. 16. Before we address to the questions raised with regard to the maintainability of the present public interest litigation and the delay in filing the same, we may examine necessary provisions of law bearing on the subject. The first Act with which we are concerned is the Karnataka Town and Country Planning Act 1961 (hereinafter to be referred to as the Act of 1961). This Act primarily deals with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e who are eligible for allotment, sites are allotted to them under Rule 10. Rule 17 deals with the conditions of allotment and sale of site. Under sub-rule (4), after all other formalities have been made i.e. payment of the lease money, allottee is intimated about the actual measurement of the site and particulars thereof and a lease-cum-sale agreement in Form II is executed by the allottee and the Board and the same is required to be registered by the allottee after constructing the building on the site in accordance with the plans and designs approved by the Board. It further stipulates that in case it is considered necessary to add any additional conditions in the agreement the Board may make such additions. It also lays down that the approval of the City of Bangalore Municipal Corporation for the plans and designs shall be necessary when the lay-out in which the site is situated is transferred to the control of the said Corporation. sub-rule (5) of Rule 17 says that the allottee shall comply with the conditions on the agreement executed by him and the Buildings and other bye-laws of the Board for the time being in force. Under sub-rule (6) the allottee has to construct the hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement. Form II of the lease agreement reads as under : FORM NO. II [See rule.............] LEASE-cum-SALE AGREEMENT An Agreement made this................day of............ 196 BETWEEN the City of Bangalore Improvement Trust Board, Bangalore, hereinafter called the Lessor/Vendor which term shall wherever the context so permits, mean and include its successors in interest and assigns of the ONE PART and..............hereinafter called Lessee/Purchaser (which term shall wherever the context so permits mean and include his/her heirs, executors, administrators and legal representatives) of the Other PART; Whereas the City of Bangalore Improvement Trust Board advertised for sale building sites in...............Extension: And Whereas one of such building site is Site No...... more fully described in the Schedule hereunder and referred to as Property; And Whereas there were negotiation between the Lessee/Purchaser on the one and the Lessor/Vendor on the other for allowing the Lessee/Purchaser to occupy the property as Lessee until the Payment in lull of the price of the aforesaid site as might be fixed by the Lesser/ Vendor as hereinafter provided; And Whereas the Lessor/Vendor agreed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oration like the Mysore Housing Board of the Life Insurance Corporation of India. Housing Cooperative Societies or Banks to secure moneys advanced by such Governments or bodies for the construction of the building. 6. The Lessee/ Purchaser agrees that the Lessor/ Vendor may take over possession of the property with the structure thereon if there is any misrepresentation in the application for allotment of site. 7. The property shall not be put to any use except as a residential building without the consent in writing of Lessor/ Vendor. 8. The Lessee/ Purchaser shall be liable to pay all outgoings with reference to the property including taxes due to the Government and the Municipal Corporation of Bangalore. 9. On matters not specifically stipulated in these presents the Lessor/ Vendor shall be entitled to give directions to the Lessee/ Purchaser which the Lessee/ Purchaser shall carry out and delimit in carrying out such directions will be a breach of conditions of these presents. 10. In the event of the Lessee Purchaser committing default in the payment of rent or committing breach of any of the conditions of this agreement or the provisions of the City of Bangalore improvement (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by: North by: South by: And measuring east to west.......... North to south........ In all measuring...... Square Feet. In witness whereof the parties have affixed their signatures to this Agreement. Chairman The City of Bangalore Improvement Trust Board Witnesses: 1. 2. Lessee/ Purchaser Witnesses: 1. 2. . 19. The conditions winch have been set out in the lease agreement and which is relevant for our purpose is condition No. 4. Condition No. 4 has already been reproduced above which provides that lessee/purchaser shall not sub-divide the property or construct more than one dwelling house. Condition No. 12 says if the Lessee/ Purchaser has performed all the conditions mentioned herein and committed no breach thereof the Lessor/ Vendor shall, at the end often years referred to in Clause 1, sell the property to the Lessee/ Purchaser and all attendant expenses in connection with such sale such as stamp duty, registration charges, etc., shall be borne by the Lessee/ Purchaser. Condition No. 13 says that on complying with the terms and conditions of this agreement in the manner stated above but not otherwise the Lessor / Vendor shall be obliged to execute the sale deed in favour of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not to construct multi-storeyed building or multi-dwelling house. The only condition that he will construct only one dwelling house is contained in Condition No. 4 of the lease cum sale agreement and so long as the full rights are not transferred to the lessee-purchaser, this condition would survive and after the sale is made, this condition will no longer survive and conditions contained in absolute sale deed will govern. If the lessee or his successor wants to raise a construction, then the provisions of the Karnataka Municipal Corporation. Act will come into play and he has to obtain prior sanction for construction of the building. As soon as the permission is granted by the Corporation, then he is to abide by those conditions along with the condition laid down in absolute sale deed. 20. Now, adverting to the facts in C.A.No. 1416 of 1999, an absolute sale deed was executed on 13.7.1982 in favour of U.L. Nagaraj after he constructed the house. The only condition which was incorporated in Clause 2 of the sale deed reads as under: The building to be constructed shall be used wholly for human habitation and shall not include any apartments to the building whether attached thereto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down in the lease agreement were not complied and final sale agreement has not been executed. Therefore condition 17(4) lays down that within 10 years the lessee-purchaser has to complete all the formalities or earlier than 10 years, then in that case, the final agreement for absolute purchase could be executed. Once the final agreement is executed then the lessee- purchaser becomes absolute owner of the schedule property and he has to abide by the conditions of the final agreement for sale and other provisions bearing on the subject. The final agreement only contains the condition that the lessee -purchaser should use the schedule property for human dwelling purpose and it will not be used in apartment of that building for purpose of shop or for warehouse or for manufacturing process, therefore, the view taken in Pee Kay Constructions case cannot be said to be a good law. 21. Learned counsel for the respondents has tried to raise certain objections that in the final agreement the expression apartment has been used which shows that there cannot be more than one dwelling house. We regret to say that this interpretation does not bear out in the face of the language used in the Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ends. It has now become common for unscrupulous people to serve their private ends and jeopardize the rights of innocent people so as to wreak vengeance for their personal ends. This has become very handy to the developers and in matters of public contracts. In order to serve their professional rivalry they utilize the service of the innocent people or organization in filing public interest litigation. The Courts are sometimes persuaded to issue certain directions without understanding implication and giving a handle in the hands of the authorities to misuse it. Therefore, the courts should not exercise this jurisdiction lightly but should exercise in a very rare and few cases involving public interest of large number of people who cannot afford litigation and are made to suffer at the hands of the authorities. The parameters have already been laid down in a decision of this Court in the case of Balco Employees' Union (Regd.) v. Union of India and Ors. (2002)ILLJ550SC , wherein this Court has issued guidelines as to what kind of public interest litigation should be entertained and all the previous cases were reviewed by this Court. It was observed as under : .......... 77. Publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is, in recent years, a feeling which is not without any foundation that public interest litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counterproductive. 80. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the Court for relief. There has been in recent times, increasingly instances of abuse of PIL. Therefore, there is a need :to reemphasize the parameters within which PIL can be resorted to by petitioner and entertained by the Court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and reemphasize the same. 25. In this connection reference may be made to a recent decision given by this Court in the case of Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. AIR2005SC540 S.L.P.(c) No. 26269 of 2004 in which Hon'ble Pasayat J. has also observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that Supreme Court should discard all principles and grant relief in petitions filed after in ordinate delay. 30. In the case of Durga Prasad v. The Chief Controller of Imports and Exports and Ors. [1969]2SCR861. Their Lordships observed as follows: Where an applicant for an Import licence in 1959 received a licence only for a fraction of the amount for which he had asked for, chooses to wait and comes to a Court in 1964 requesting for a writ of mandamus even if his fundamental rights are involved, the matter is still in the discretion of the High Court and the High Court in its discretion can refuse the issue of a writ because of the laches of the applicant. 31. In the case of Ramana Dayaram Shetty v. The International Airport Authority of India and Ors. (1979)IILLJ217SC , even live months delay was considered to be fatal. It was observed as follows: Moreover, the writ petition was filed by the appellant more than five months after the acceptance of the tender of the 4th respondents and during this period, the 4th respondents incurred considerable expenditure agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the latches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where the High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as latches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State. 34. There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third party interest created on account of delay. Even otherwise also why Court should come to rescue of person who is not vigilant of his rights. 35. We are of the opinion that delay in this case is equally fatal, the construction already started by the appellant in 1987 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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