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W.P.29795/14 R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF NOVEMBER 2014

BEFORE

THE HON’BLE MR. JUSTICE RAM MOHAN REDDY

WRIT PETITION No.29795/2014 (LB-BBMP)

BETWEEN:

SRI KAMLESH KUMAR,

S/O SRI GHEESULAL,
AGED ABOUT 31 YEARS,
RESIDING AT NO.FLAT NO.303/304,
3RD FLOOR, SHREE APARTMENTS,
6/13, KRISHNA ROAD CROSS,
BASAVANAGUDI,
BANGALORE-560 004.
PETITIONER
(SRI P.D.SURANA, ADV.)

AND:

1. THE COMMISSIONER,
BRUHAT BANGALORE MAHANAGARA PALIKE,
BANGALORE CITY CORPORATION OFFICES,
N.R.SQUARE, BANGALORE-560 002.

2. THE ASST. EXECUTIVE ENGINEER,

SHANTHI NAGAR SUB DIVISION,
7TH FLOOR, PUBLIC UTILITY BUILDING,
BRUHAT BANGALORE MAHANAGARA PALIKE,
M.G.ROAD, BANGALORE-560 001.

3. ASST. ENGINEER,
WARD NO.117 (OLD WARD NO.70),
SHANTHI NAGAR SUB DIVISION,
7TH FLOOR, PUBLIC UTILITY BUILDING,
BRUHAT BANGALORE MAHANAGARA PALIKE,
M.G.ROAD, BANGALORE-560 001.
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4. SUSHIL KUMAR,
S/O UTAMCHAND DHARIWAL,
AGED ABOUT 41 YEARS,
RESIDING AT AND ALSO
AT NO.54/1, GROUND FLOOR,
BASAPPA ROAD,
SHANTHI NAGAR,
BANGALORE-560 027.

ALSO AT NO.8/1, 2ND CROSS,

SWASTHI ROAD (LAKSHMI ROAD),
SHANTHINAGAR,
BANGALORE-560 027.

5. SMT.DIMPLE KUMARI,
W/O SUSHIL KUMAR,
AGED ABOUT 33 YEARS,
RESIDING AT AND ALSO
AT NO.54/1, GROUND FLOOR,
BASAPPA ROAD, SHANTHI NAGAR,
BANGALORE-560 027.

ALSO AT NO.8/1, 2ND CROSS,

SWASTHI ROAD (LAKSHMI ROAD),
SHANTHINAGAR,
BANGALORE-560 027.
RESPONDENTS
(BY SRI V.Y.KUMAR, ADV. FOR R-1 TO R-3;
SRI H.M.MURALIDHAR, ADV. FOR R-4 AND R-5)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &

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
CROSS, SWASTI ROAD (LAKSHMI ROAD CROSS) SHANTHI
NAGAR, BANGALORE-560 027, ETC.

THIS WRIT PETITION COMING ON FOR ORDERS THIS

DAY, THE COURT MADE THE FOLLOWING:
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ORDER

The neighbour of respondents 4 and 5 has

preferred this petition for the following reliefs:

(a) 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.

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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, following 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

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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 of

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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

No.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

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the building leaving a front set back of 1-1½ ft; on hind

side- 1½ to 2 ft.; on the left side 1-1½ ft and; on the

right side 1-1½ 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.

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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
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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 an 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
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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
plan 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
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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
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transferred from Shanthinagar to

Bommanahalli on 21.03.2013. According to
the deponent, issue of commencement
certificate as required under building bye law
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-laws from 08.02.2012 to
07.11.2012. Learned Counsel submits that
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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 are
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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 `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. There
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is 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
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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
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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. 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
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imposed while sanctioning the licence. Bye-

law 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
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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
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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 Vanaraja is guilty of not
discharging statutory obligation. It is brought
to notice of this Court that Vanaraja was
caught by Lokayuktha while accepting
`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
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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. 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.2993/2008 in which the challenge
is to the enhancement of the licence fee for
sanction of building plan and issue of licence.

14. 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
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counsel seeks a day’s accommodation to file an

affidavit and the certificate, if any.

15. 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. 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 on 31.10.2014 a/w

W.P.No.2993/2008.”

8. Apparently since a day’s accommodation was

permitted to fully comply with the order dated

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27.10.2014, 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
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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 of
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the 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 07.11.2014,
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,
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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

12.11.2014, 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
 27
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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 and 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.
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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

 29
W.P.29795/14

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 hand 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

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W.P.29795/14

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-laws.

15. Heard the learned Counsel for petitioner,

respondents 1 to 3 as well as Sri Lakshminarayana, the

Commissioner/first respondent who is present and

learned Counsel for respondents 4 and 5.

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W.P.29795/14

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) 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
 32
W.P.29795/14

(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

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W.P.29795/14

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

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W.P.29795/14

Commissioner to inspect the building and submit the

report.

18. Bye-law 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:

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W.P.29795/14

“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-

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W.P.29795/14

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:

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W.P.29795/14

“(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) permission has been received
from the Commissioner in this behalf, or
(b) The Commissioner has failed for
(thirty) days after receipt of the notice of
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W.P.29795/14

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) is carried on or completed otherwise than in

accordance with the particulars on which such
permission was based, or
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W.P.29795/14

(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. III 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:
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W.P.29795/14

“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 Plan 1995 and
the provisions of the Building Bye-laws of
the Bangalore Mahanagara Palike. As
stipulated under the bye-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

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W.P.29795/14

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
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W.P.29795/14

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
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W.P.29795/14

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

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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.

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W.P.29795/14

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

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W.P.29795/14

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.
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W.P.29795/14

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 necessary 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

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W.P.29795/14

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

state 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

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W.P.29795/14

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’1, the

petitioner being the immediate neighbour of the 4th

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’2 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

1
AIR 2013 SC 927
2
AIR 1974 SC 2177
 50
W.P.29795/14

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’3 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

3
1971 [3] SCC 381
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W.P.29795/14

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’4, 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

4
ILR 1986[2] KAR 1037
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W.P.29795/14

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 are 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
 53
W.P.29795/14

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

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LTD., v. STATE OF MAHARASHTRA’5, 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’6, extracted the relevant portion of

the opinion which reads thus:-

5
AIR 1991 SC 1453
6
AIR 2005 SC 1
 55
W.P.29795/14

“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
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W.P.29795/14

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 builders………...
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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 they 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
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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
unnecessary or unreasonable
intermeddling with the private
ownership of the property may not be
justified.

The municipal laws regulating the

building construction activity may
provide for 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
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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
community development, the
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
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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’7, which runs thus:-

“6. In Shanti Sports Club v. Union of India

(AIR 2010 SC 433) (supra), this Court
approved the order 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
unauthorised constructions and
encroachments has acquired monstrous

7
AIR 2010 SC 433
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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 and
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
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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
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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
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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’8,

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

8
AIR 2010 SC 1030
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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
multistoreyed 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.”
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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
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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) 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) 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
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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) Notwithstanding 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) 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 upto 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;
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(c) 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) The provisions of sub-sections (2) to (14) of
Section 76-FF 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
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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
regularisation 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
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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) 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

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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], [2]

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’9, 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

9
ILR 1992 KAR 3068
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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 need
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.”
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45. The Apex Court in ‘M.I. BUILDERS PVT.

LTD. v. RADHEY SHYAM SAHU AND OTHERS’10,

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

10
[1999] 6 SCC 464
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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 of the
Mahapalika to construct and maintain
parking lots.”

46. In ‘M.C. MEHTA v. UNION OF INDIA AND

OTHERS’11 observed thus:

“61. Despite passing of the laws and

repeated orders of the High Court and this
Court, the enforcement of the laws and the
implementation of the orders are utterly
lacking. If the laws 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

11
[2006] 3 SCC 399
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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

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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

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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 `25,000/- payable by respondents 4 and 5

to the petitioner.

Sd/-
JUDGE
kcm