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2022 DIGILAW 120 (KAR)

Apoorva N. v. Ramkrishna Gardens

2022-02-01

RAVI V.HOSMANI, S.SUJATHA

body2022
JUDGMENT S. Sujatha, J. - This intra Court appeal is filed by the appellant against the interim orders dated 4.6.2021 and 28.7.2021 passed in W.P. No. 9348/2021 by the learned Single Judge. 2. Respondent No. 1 claiming to be the Residents Welfare Association and respondent Nos. 2 to 21 herein its residents have filed W.P. No. 9348/2021 challenging the plan sanctioned dated 6.10.2020 issued by the Joint Commissioner (West) in favour of the appellant herein for construction of a Hostel Building in Site No. 1, in the layout formed by Prathamesh Apartment Cooperative Housing Society Limited, situate at Ramakrishna Garden, Rajamahal Vilas II Stage, BBMP Ward No. 36, Bengaluru, inter alia seeking a direction to quash the said sanction plan and to direct the Bruhat Bengaluru Mahanagara Palike (BBMP) to demolish the said building. 3. The learned Single Judge vide order 4.6.2021, keeping open the issue of maintainability of the writ petition, after hearing both the parties passed an order directing the BBMP to act in terms of Section 248(i)(b) of the BBMP Act, 2020 ('Act' for short), by carrying out spot inspection by notifying the rival parties. The appellant herein and the private respondents were directed to be present at the petition premises on 9.6.2021 at 9.00 am. The concerned officials of the BBMP were directed to inspect the construction, prepare a detailed report and to place the same before the Court on 17.6.2021. 4. Subsequently, on 28.7.2021 the learned Single Judge holding that the writ petition is maintainable, permitted the appellant herein, to file her statement of objections to the main writ petition or the report submitted by the Commissioner. 5. Being aggrieved by the said interim orders, this writ appeal is filed by the appellant/respondent in writ petition. 6. Learned Senior Counsel Sri Jaykumar S. Patil appearing for the appellant submitted that notice dated 17.05.2021 was issued by the BBMP calling upon the appellant to submit the documents and to stop the construction of the building till then, pursuant to a complaint dated 26.04.2021 of the RK Gardens Residents Welfare Association - respondent No. 1 herein. Despite the BBMP has initiated action against the appellant on the complaint filed by the respondent No. 1, private respondents have filed the writ petition on 25.05.2021 in a hasty manner without exhausting the alternative remedy available under the provisions of the Act. Despite the BBMP has initiated action against the appellant on the complaint filed by the respondent No. 1, private respondents have filed the writ petition on 25.05.2021 in a hasty manner without exhausting the alternative remedy available under the provisions of the Act. Placing reliance on Section 253 of the Act, it was argued that any person aggrieved by the decision of the Zonal Commissioner has the appellate remedy before the Chief Commissioner. The writ petition filed by the respondent Nos. 1 to 19 circumventing with the machinery provided under the provisions of the Act is not maintainable. The said respondents have deliberately suppressed the material fact of the issuance of notice by the BBMP to the appellant to stop construction. Plan was sanctioned under Section 300 of the Karnataka Municipal Corporations Act, 1976. Section 248 of the Act deals with demolition or alternation of buildings or well work unlawfully carried on or completed. In the order dated 04.06.2021, the learned Single Judge though rightly directed the BBMP to act in terms of Section 248[i][b] of the BBMP Act by notifying the rival parties, further grossly erred in directing the officials of the BBMP to place the report before the Writ Court. Writ Court in exercise of the powers under Articles 226 and 227 of the Constitution of India cannot usurp the jurisdiction of the BBMP to examine the contents of the report. Thus, the Writ Court exceeded its jurisdiction in conducting a roving enquiry in appointing the Commissioner and collecting evidence which is unknown to writ proceedings. Learned Senior Counsel further argued that now the Court has to appoint a Commissioner for demolition of the building, if this exercise carried out by the learned Single Judge is approved. It was vehemently argued that the orders impugned though styled as 'interim orders', but not so. In passing the order on 28.07.2021, the learned Single Judge further exceeded the jurisdiction in wrongly dissecting the inspection report submitted before the Court and arriving at a decision that the writ petition is maintainable. 7. The learned Senior Counsel has placed reliance on the following judgments in support of his contentions: 1. Muni Suvrat-Swami Jain S.M.P. Sangh Vs. Arun Nathuram Gaikwad & Others (2006) 8 SCC 590 2. State of Kerala and Others Vs. M.K. Jose (2015) 9 SCC 433 8. Learned Senior Counsel Mr. Uday Holla appearing for the respondent Nos. 7. The learned Senior Counsel has placed reliance on the following judgments in support of his contentions: 1. Muni Suvrat-Swami Jain S.M.P. Sangh Vs. Arun Nathuram Gaikwad & Others (2006) 8 SCC 590 2. State of Kerala and Others Vs. M.K. Jose (2015) 9 SCC 433 8. Learned Senior Counsel Mr. Uday Holla appearing for the respondent Nos. 1 to 19 submitted that the prayer sought in the writ petition would indicate that the challenge is primarily to the plan sanctioned by the Joint Commissioner for construction of the hostel building in the site in question contrary to the Zonal Regulations. Referring to Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation and Others (2013) 5 SCC 336 , it was submitted that any construction of building in violation of the Municipal Laws not only affect the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. Such violation could be challenged under the writ jurisdiction notwithstanding the alternative remedy available under the Act. Learned Single Judge having observed that illegality wherever found and has come to the notice of the Writ Court, blindly cannot relegate the petitioners to avail the appeal remedy which is a self imposed restriction, exercised discretionary powers in entertaining the writ petition. The maintainability of the writ petition has been considered by the learned Single Judge having regard to the reliefs sought in the writ petition. The appellant having participated in the joint inspection held in compliance with the interim directions issued by the Court on 04.06.2021 after receiving the inspection report indicating various deviations is estopped from challenging the said interim order. The inspection report would indicate about 300% violation of the Zonal Regulations. Learned counsel has placed reliance on the following judgments: 1. B.K. Srinivasan and Others V/s. State of Karnataka and Others (1987) 1 SCC 658 2. Priyanka Estates International Private Limited and Others Vs. State of Assam and Others (2010) 2 SCC 27 3. Supertech Limited Vs. Emerald Court Owner Resident Welf are Association and Others (2021) 10 SCC 1 4. Union of India and Others Vs. Tantia Construction Private Limited (2011) 5 SCC 697 9. We have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record. 10. Supertech Limited Vs. Emerald Court Owner Resident Welf are Association and Others (2021) 10 SCC 1 4. Union of India and Others Vs. Tantia Construction Private Limited (2011) 5 SCC 697 9. We have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record. 10. The prayer sought in the writ petition is as under: "(i) To declare that the plan sanction bearing Ip No. BBMP/Ad.Com/WST/0253/20-21 dated 06.10.2020 issued by Joint Commissioner [West] who was the predecessor of respondent No. 2, in favour of respondent No. 3 for construction of a hostel building in Site No. 1 [PID No. 4-170-1] in the layout formed by Prathamesh Apartment Cooperative Housing Society Limited situated at Ramakrishna Garden, Rajamahal Vilas, 2nd Stage, BBMP Ward No. 36, Bengaluru [Annexure-C] is wholly illegal; (ii) Issue a writ of certiorari or any other writ, order or direction quashing the sanction plan bearing Ip No. BBMP/Ad.Com/WST/0253/20-21 dated 06.10.2020 issued by the Joint Commissioner [WEST] who was the Predecessor of respondent No. 2, in favour of respondent No. 3 for construction of a Hostel Building in Site No. 1 [PID No. 4-170-1] in the layout formed by Prathamesh Apartment Co-operative Housing Society Limited situated at Ramakrishna Garden, Rajamahal Vilas, 2nd Stage, BBMP Ward No. 36, Bengaluru [Annexure-C]; (iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the Bruhat Bangalore Mahanagara Palike to demolish the building being constructed in Site No. 1 [PID No. 4-170-1] in the layout formed by Prathamesh Apartment Co-operative Housing Society Limited situated at Ramakrishna Garden, Rajamahal Vilas, 2nd Stage, BBMP Ward No. 36, Bengaluru; and grant an interim order to restrain the R-3 from proceeding further with the construction of the hostel building on the property bearing Site No. 1 [PID No. 4-170-1] in the layout formed by Prathamesh Apartment Co-operative Housing Society Limited situated at Ramakrishna Garden, Rajamahal Vilas, 2nd Stage, BBMP Ward No. 36, Bengaluru [iv] Grant such other and further reliefs as are just, including the costs of this writ petition in the interest of justice." 11. The main ground of challenge in this appeal is inasmuch as the maintainability of the writ petition. Alternative remedy of appeal under Section 253 of the Act would not be a ground to reject the writ petition for the following reasons. The main ground of challenge in this appeal is inasmuch as the maintainability of the writ petition. Alternative remedy of appeal under Section 253 of the Act would not be a ground to reject the writ petition for the following reasons. Section 253 contemplates appeal against the decisions of the Zonal Commissioner to the Chief Commissioner not against the decision of the Joint Commissioner. Moreover, the challenge is to the violation of Zoning Regulations of BBMP as well as of the BDA. It is well settled principle that there is no absolute bar to entertain the writ petition notwithstanding the alternative remedy available in certain circumstances. The self imposed restrictions regarding the maintainability of the writ petition, if an effective and efficacious remedy is available would not operate as a bar, [1] where the writ petition seeks enforcement of any of the fundamental rights; [2] where there is failure of principles of natural justice; [3] where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In the case of Supertech Limited (2021) 10 SCC 1 , the Hon'ble Apex Court has held that it is emphasized by the judgments of the Hon'ble Apex Court that the duty of planning body, while sanctioning the building plan and enforcing building regulations and bye-laws has to conform to the norms by which they are governed. A breach by the planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by violation of law. The quality of life of the residents would be affected the most by the brazen violation of the Zonal Regulations. The violation of Zonal Regulations strikes at the very core of urban planning, thereby directly resulting in an increased harm to the environment and a dilution of safety standards. Thus, we are of the considered view that the authorities sanctioning the plan in violation of the Zonal Regulations is nothing but exercise of power without jurisdiction or exceeding jurisdiction irregularly or wrongly and as such is amenable to writ jurisdiction. Moreover, it is the discretionary and equitable jurisdiction. Ordinarily, exercise of such discretionary power cannot be interfered in Writ Appeal unless it is found to be arbitrary. This view is fortified by the Co-ordinate Bench of this Court in the case of K.S.R.T.C. Vs. Moreover, it is the discretionary and equitable jurisdiction. Ordinarily, exercise of such discretionary power cannot be interfered in Writ Appeal unless it is found to be arbitrary. This view is fortified by the Co-ordinate Bench of this Court in the case of K.S.R.T.C. Vs. Karnataka State Transport Authority ILR 1983 KAR 436 wherein, it is held thus: "That apart, the Learned Chief Justice exercised his discretion in entertaining the Writ Petition. It may not be appropriate for us, in appeal, to interfere with that discretion unless it is shown that the exercise of that discretion is arbitrary. An appeal against a discretionary order is an appeal on principle. Appellate Court would not be justified in interfering with the exercise of discretion under appeal on the ground that if it had itself considered the matter if may have declined to exercise the discretion in that way. In the present case we find no grounds to interfere with the exercise of the discretion by the learned Chief Justice." Thus, in the present case also, we find no grounds to interfere with the exercise of discretionary power by the learned Single Judge. 12. In Tantia Construction Private Limited (2011) 5 SCC 697 , the Hon'ble Apex Court has held that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the Authorities. Injustice, whenever and wherever it takes place, has to be stuck down as an anathema to the rule of law and the provisions of the constitution. In the light of these judgments, we have no hesitation to hold that the Writ Court was within its competence to entertain the writ petition as maintainable. 13. The Writ Court directing the BBMP to carryout the inspection and to submit the inspection report before the Court cannot be held to be erroneous since such report would enable the Court to discern the truth. Truth is always invincible. Calling for such report cannot be held to be without jurisdiction. 14. The Hon'ble Apex Court in the case of M.K. Jose (2015) 9 SCC 433 , while considering the contractual dispute between the parties wherein disputed questions of facts were involved held that appointing of Commissioner to measure the work and thereafter holding that the termination of contract was illegal is without jurisdiction. 14. The Hon'ble Apex Court in the case of M.K. Jose (2015) 9 SCC 433 , while considering the contractual dispute between the parties wherein disputed questions of facts were involved held that appointing of Commissioner to measure the work and thereafter holding that the termination of contract was illegal is without jurisdiction. With great respect, the said judgment is not applicable to the facts of the present case where the statutory authority is exercising its power under the provisions of the Act to grant plan sanction and the same is not relating to any contractual obligation between the parties. 15. In the case of Muni Suvrat-Swami Jain S.M.P. Sangh (2006) 8 SCC 590 , the Hon'ble Apex Court considering the factual aspects inasmuch as the writ petition filed before the High Court of Bombay alleging the construction of temple in the extremely crowded area without obtaining permission from the Municipal Corporation seeking for the relief of demolition and seeking a direction to injunct the respective parties from carrying on any further construction vis-à-vis appointment of Court Commissioner to visit the property and give its report, held that the authorities are entitled to examine and grant such reliefs as the appellants therein may be entitled to, under law and during the said period, no demolition shall be made, further making it clear that no further construction or alteration of the construction could be made. 16. However in the present set of facts, the relief sought by the petitioners is not mere demolition of the unauthorized and illegal construction but primarily challenging the sanction of the plan made by the statutory authorities in contravention of the Zonal Regulations. Moreover, now the matter is in the interim stage where no order of demolition has been made by the Writ Court, examining the matter in the angle of demolition of construction would not arise for us at this stage, especially as the issue regarding violation of zonal regulations is yet to be finally decided in the Writ Petition. 17. In the given circumstances, the learned Single Judge has rightly injuncted the appellant to put up any further construction during the pendency of the writ petition and restrained from issuing the occupancy certificate if the construction is completed. For the reasons aforesaid, no exception can be found with the orders impugned. Resultantly, Writ Appeal stands dismissed.