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Shanta v. Commissioner, Corporation Of The City Of Bangalore
Factual and Procedural Background
The appeals arise from an order dated July 7, 1982, by a Learned Single Judge dismissing writ petitions filed by the appellants. Appellant No. 1 is the owner of premises at No. 2, K.V Temple Lane, Bangalore, where she has resided for 40 years. Appellant No. 2, now deceased, was the owner of adjacent premises, whose legal representatives continue the appeal. Respondent-2 purchased the adjoining property at No. 1 K.V Temple Street and in 1979 demolished the existing structure to build a three-floor lodge. The appellants complained to the Corporation of Bangalore about irregularities and violations in the construction, which led to an inspection and partial removal of unauthorized fixtures. Respondent-2 initially sought an injunction against the Corporation but later withdrew the suit. The appellants then filed writ petitions under Article 226 of the Constitution seeking to quash the building licence and demolish the lodge, contending that the area was reserved for residential use under the Karnataka Town and Country Planning Act, 1961, and that the lodge was unauthorized. The Single Judge dismissed the petitions on the ground that neighbors could not challenge the licence and that zoning regulations were difficult to enforce in the congested area.
On appeal, the Court appointed a Commissioner who reported details of the construction and proximity to appellants' properties. The Court examined relevant provisions of the Planning Act, 1961, and the zoning regulations, finding the building licence was granted contrary to statutory land-use restrictions.
Legal Issues Presented
- Whether the appellants, as neighbors, have locus standi to challenge the building licence granted to Respondent-2.
- Whether the building licence granted to Respondent-2 for constructing a lodge in a residential zone was lawful under the Karnataka Town and Country Planning Act, 1961 and the applicable zoning regulations.
- Whether laches or acquiescence barred the appellants from seeking relief despite delay in filing the writ petitions.
- The appropriate remedy when a public authority grants a building licence in excess or abuse of statutory powers.
- The effect of the subsequent publication of a Comprehensive Development Plan altering the zoning classification of the property.
Arguments of the Parties
Appellants' Arguments
- The area was exclusively reserved for residential purposes under the Planning Act, 1961, and the building licence for a lodge was unauthorized.
- The Corporation authorities acted in abuse of statutory powers by granting a licence contrary to zoning regulations.
- They repeatedly complained to the Corporation and thus should not be barred by laches or acquiescence.
- Court intervention was necessary to protect public interest and enforce planning laws.
Respondent-2's Arguments
- The writ petitions should be dismissed on the ground of laches and acquiescence, as the licence was granted in 1978 and renewed in 1980, with the building completed in 1981, and petitions filed only in 1982.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| K. Ramadas Shenoy v. The Chief Officer, Town Municipal Council, Udupi (1974) 2 SCC 506 | Municipality acts for public benefit and must not abuse powers; illegal construction in residential zones can be restrained; excess statutory power cannot be validated by acquiescence or estoppel. | The Court relied on this precedent to hold that the Corporation acted in abuse of power by granting the licence and that the appellants were entitled to challenge the illegal construction despite delay. |
Court's Reasoning and Analysis
The Court analyzed the statutory framework under the Karnataka Town and Country Planning Act, 1961, emphasizing the binding nature of the Outline Development Plan and the Comprehensive Development Plan on land use and construction permissions. It found that the property was originally zoned for residential use, and that the lodge constructed by Respondent-2 was not a permitted use in that zone. The Corporation’s grant of a building licence for such construction was therefore an abuse of statutory powers.
The Court rejected the argument of laches and acquiescence, noting the appellants’ repeated complaints to the Corporation and the withdrawal of Respondent-2’s suit against the Corporation as evidence that the appellants were not negligent in seeking relief. The Court underscored the public duty of municipal authorities to enforce planning laws and protect the interests of the community, holding that courts must enforce such statutory duties and not dismiss challenges on technical grounds.
However, the Court took note of the subsequent publication of a Comprehensive Development Plan which reclassified the property into a commercial zone, thereby superseding the earlier residential zoning. Consequently, the Court refrained from ordering demolition, directing instead that the Corporation Commissioner examine compliance with the current zoning regulations and building bye-laws, and order demolition of any non-conforming portions after due process.
Holding and Implications
The Court allowed the writ appeals, reversing the order of the Learned Single Judge.
The Court held that the Corporation Authority had acted in abuse of statutory powers by granting a building licence contrary to the zoning regulations. The appellants were entitled to challenge the licence and seek relief under Article 226 of the Constitution. The Court directed the Corporation Commissioner to verify compliance of the building with the current Comprehensive Development Plan and building bye-laws and to take appropriate action, including demolition of any non-conforming parts.
The direct effect of this decision is the recognition of the right of neighbors to challenge illegal building licences and the enforcement of planning laws by municipal authorities. No new precedent was established beyond the application of existing principles to the facts. The Court emphasized the accountability of public authorities to the public interest in zoning and land use matters.
CASES REFERRED:
(1974) 2 SCC 506 : AIR 1974 SC 2177 -
Ramdas Shenoy v. Chief Officers
(Foll)Mr. B.P Holla for Appellants—Mr. R.C Castelino
for R-1;
Mr. V. Krishnamurthi, Senior Advocate for Mr. K.S Desai for R-2.
Jagannatha Shetty, A.C.J:—
These appeals are directed against the order of the Learned Single Judge dated July 7, 1982, dismissing W.Ps 22142 and 22143 of 1982. Appellant No. 1 is the owner of the premises bearing No. 2, K.V Temple Lane, Bangalore-53. She has been residing in the said premises for the past 40 years. Appellant No. 2, since dead, was the owner of premises bearing No. 2/1 in the same locality. His legal representatives have been brought on record and they are prosecuting the appeal. They have also been residing there for quite some time. On the eastern side of the premises belonging to the appellants, there was a house bearing No. 1 K.V Temple Street. That property was purchased by Satyanarayana, Respondent-2 herein. In February 1979, Satyanarayana demolished the structure thereon and started constructing a new building consisting of three floors obviously meant for opening a lodge. Upon enquiry, appellants were informed that the building licence was sanctioned to Respondents 2 on October 28, 1978. Immediately thereafter the appellants gave a written complaint to the Commissioner, Corporation of the City of Bangalore, inviting his attention to the irregularities in the construction and violations of the building regulations by Respondent-2. They requested the Commissioner to take suitable action against Respondent-2.
2. The Corporation was then under the Administrator, who inspected the spot on October 22, 1980 and being satisfied about the violation of the building licence, directed the removal of all windows, chejjas, water pipes and drainage pipes fixed contrary to the licence granted. This led to Respondent-2 filing a suit against the Corporation authorities for injunction restraining them from interfering with his construction. But later he quietly withdrew the suit unconditionally. These are the undisputed facts.
3. The appellants, however, came to know that the construction of the building for a lodge was contrary to the land use approved under the Karnataka Town and Country Planning Act, 1961 (‘Planning Act, 1961’). So they moved this Court with an application under Article 226 of the Constitution for quashing the licence granted to Respondent-2 and to demolish the building constructed by him. Their contention was that the area was exclusively reserved for residential purposes and a building for non-residential purpose like a lodge ought not to be permitted and the licence issued for such a construction was without authority of law. The Learned Single Judge before whom the Writ Petitions came up for disposal was, however, of the opinion that the appellants being the neighbours could not challenge the building licence granted to Respondent-2. On the complaint regarding the violation of Zoning Regulations, the Learned Judge observed:
“….Anybody knowing the position of a congested area like K.V Temple Lane can easily say that the Zoning Regulations can hardly be enforced in that area. On the violation of the Zoning Regulations, if any, this Court cannot be oblivious to realities and make a doctrinaire approach and direct Respondent No. 1 to demolish the building constructed by Respondent No. 2”.
So stating, the Learned Judge dismissed the Writ Petitions even without notice to the respondents.
Being aggrieved by the order of the Learned Judge, the appellants have preferred these appeals.
4. In these appeals, this Court appointed a Commissioner to report regarding disputed construction of the building and the location of the premises of the appellants. Mr. Castelino, an Advocate of this Court, who was appointed as Commissioner, has submitted Isis report. He has stated that the building constructed by respondent-2 consists of ground floor and three floors with an open terrace at the top. The houses of the two appellants are on the western side of the lodge. The distance between the edge of pial in front of the first appellant's house and the western wall of the lodge which is under construction is about 4 feet. There is a staircase in this passage and small projection of the building in front of the first appellant's house in this passage. The distance between the second appellant's house and the western wall of the lodge is about 6 feet. There are three cast-iron sanitary pipes connecting the western wall in the ground floor. The gap between the wall and pipes is about 2 inches. There are six water pipes in the western wall, two facing the house of Alasingachar, two facing the house of the second appellant and two facing the house of the first appellant.
5. It is now necessary to refer to the relevant provisions of the Planning Act, 1961.
Under Section 5, the specified date for the ‘land use’ in the area in which the disputed construction is in question was June 1, 1967. Section 6 provides for preparation of a map showing the present land use. Section 7 provides for application for correction of entries in the map. The entries in the map shall be conclusive evidence subject to orders under Section 7 as provided under Section 8. Section 9 provides for preparation of an Outline Development Plan. Section 12 deals with the contents of the Outline Development Plan. Section 14 provides for enforcement of the Outline Development Plan and the Regulations. When once the Outline Development Plan is prepared, no such change in land-use or development shall be made except with the written permission of the Planning Authority and such a permission shall be contained in the commencement certificate granted by the Planning Authority. That is the mandate of sub-section (2) of Section 14.
Chapter IV of the Planning Act, 1961 deals with the Comprehensive Development Plan. The Comprehensive Development Plan shall consist of a series of maps and documents indicating the manner in which the development and improvement of the entire planning area are to be carried out and regulated. Section 23 states that on the publication of the Comprehensive Development Plan as finally approved by the State Government, it shall govern all changes in the land use and development of the area superseding the Outline Development Plan and the Regulations thereon. For the purpose of enforcement of the Comprehensive Development Plan the provisions of Sections 14 to 16 of the Planning Act, 1961 shall apply mutatis mutandis.
6. It is not disputed and indeed cannot be disputed that the premises in which the building has been constructed by respondent-2 was earmarked under the Outline Development Plan for residential purposes and located in the residential zone. The uses of land located in the residential zone are set out in the Zoning Regulations, 1972 of Bangalore City Planning Area. If one peruses the type of buildings permitted in the residential zone with or without special permission by the Planning Authority, it will be seen that a building for lodge is not one of the buildings which could be allowed to be constructed. Such a building could be constructed only in the business zone.
There could, therefore, be no doubt that the Corporation Authority while giving licence to respondent-2 to build a multi-storeyed lodging house, had acted in abuse of his statutory powers. It is proper that authority is identified and action is taken for dereliction of duty.
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 rate payers 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 licence to construct buildings contrary to the Zoning Regulations. If they give licence 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 are accountable to the public when they act against the interest of the public. In such cases, when the rate payers 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 rate payers interests preserved under the planning law.
8. Mr. Krishnamurthi, Senior Advocate for respondent-2, however, urged that the Writ Petitions should be dismissed for laches and acquiescence, since the licence for building was granted in 1978. It was renewed in 1980. The building was constructed in 1981, whereas the Writ Petitions were filed on June 24, 1982 i.e, nearly one year after the building was completed.
In our opinion, the appellants are not guilty of laches or acquiescence. They were making representations after representations to the Corporation authorities complaining about the construction of the building by respondent-2. They expected the Corporation authorities to give them the relief. The Administrator of the Corporation at one stage became active and considered their representations. He made a spot inspection. He directed the removal of unauthorised constructions and closure of some of the windows. Respondent-2 thereupon filed a suit to restrain the Corporation authorities from interfering with his construction. But later, he quietly and unconditionally withdrew the suit. It was only when the authorities started soft pedalling the whole matter, the appellants were compelled to approach this Court for relief. In these circumstancess since the appellants were complaining before the authoritie, from time to time about the illegal licence granted to respondent-2, we are not inclined to accede to the submission of Sri Krishnamurthi that the Writ Petitions should be dismissed for laches.
9. Apart from that, there is no question of acquiescence in a matter like this where the Corporation authorities have acted in excess of the powers conferred by the statute or statutory regulations.
In K. Ramadas Shenoy v. The Chief Officer, Town Municipal Council, Udupi, a similar question came up for consideration before the Supreme Court in regard to a cinema building constructed in the area reserved for residential purposes. There it was observed:
“….The Municipality acts for the public benefit in enforcing the Scheme. Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to building on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it does beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative (See Yabbicom v. King (1899) 1 QB 444).
28. An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Muncipal Autherities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the Courts will quash orders passed by Municipalities in such cases.
29. 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 a 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 constructions.”
It was further observed:
“….An excess of statutory power cannot be validated by acquiescence in or by the operation of the estoppel. The Court declines to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision….”
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.
11. We would have normally directed the demolition of the building in question, but for the subsequent event that has taken place in this case which we must now take note of. During the pendency of these appeals, the Planning Authority has prepared and published on October 12, 1984 a Comprehensive Development Plan for Bangalore Metropolitan area. On November 23, 1984 this Court, at the request of respondent-2, directed the Commissioner of the Bangalore Development Authority to produce the original of the Comprehensive Development Plan. This Court also directed the Commissioner to submit a report as to the location of the premises in question - whether it has been located in the commercial zone or it continues to be in the residential zone. Pursuant to the said direction, the Commissioner has submitted a report along with the Comprehensive Development Plan stating that the property belonging to respondent-2 has been located in the commercial zone and not in the residential zone. That report has been made a part of the record.
12. It will be, therefore, seen that the land use of the property of respondent-2 has since been changed. The property in question is now located in the commercial zone and not in the residential zone. Under the Planning Act, 1961, when once the Comprehensive Development Plan is prepared, it expressly supersedes, the Outline Development Plan. It would be, therefore, not proper for us to direct the demolition of the building constructed by respondent-2. It would be, however, for the statutory authorities to find out whether the building constructed by respondent-2 is in accordance with the present Zoning Regulations and the building bye-laws.
13. Under Section 299 of the Karnataka Municipal Corporations Act, 1976, the Corporation Commissioner is the competent authority to grant building licence. Section 505 of the said Act provides that the powers to be exercised by the Corporation Commissioner should be in accordance with the provisions of the Planning Act, 1961. We, therefore, direct the Commissioner of the Corporation to examine whether the building erected by respondent-2 is in accordance with the present Zoning Regulations and the building bye-laws. He shall do so after giving an opportunity to respondent-2 and the appellants herein. If the Commissioner comes to the conclusion that the building or any portion thereof is not in conformity with the existing Zoning Regulations and the building bye-laws, he shall order the demolition of such offending portion so as to bring the building in conformity with the existing law.
In the result, in reversal of the order of the Learned Single Judge, we allow the Writ Appeals with the directions as above stated. The appellants are entitled to their costs. Advocate's fee Rs. 1000/- in one set.
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