IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19 TH DAY OF OCTOBER, 2012 PRESENT THE HON BLE MR.JUSTICE D V SHYLENDRA KUMAR

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1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19 TH DAY OF OCTOBER, 2012 PRESENT THE HON BLE MR.JUSTICE D V SHYLENDRA KUMAR BETWEEN: AND THE HON BLE MR.JUSTICE H S KEMPANNA Writ Petition No of 2011 [BDA-PIL] MISS K G NAGALAXMI BAI D/O K.C. GIRIJA NAIK, AGED ABOUT 47 YEARS, R/AT NO.8, 4 TH CROSS, S.P. EXTENSION, MALLESWARAM, BANGALORE PETITIONER AND: [By M/s A K Subbaiah, A S Ponnanna and S Doreraju, Advs.] 1. THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BANGALORE THE PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPARTMENT, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BANGALORE THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD, BANGALORE.

2 2 4. THE COMMISSIONER OF POLICE INFANTRY ROAD, BANGALORE DELETED VIDE COURT ORDER DATED SRI D.V. SADANANDA GOWDA S/O LATE VENKATAPPA GOWDA, NO :1, VASUKI, RAILWAY QUARTERS ROAD, PADEELU, PUTTURU BRUHAT BANGALORE MAHANAGARA PALIKE, N.R. SQUARE, BANGALORE REP. BY ITS COMMISSIONER 7. SRI D.N. JEEVARAJ S/O LATE G.T. NARAYANAGOWDA MEMBER OF THE KARNATAKA LEGISLATIVE ASSEMBLY AGED ABOUT 49 YEARS, R/AT DWARAMAKKI, B.H. KAIMARA POST, NARASIMHARAJPURA TALUK, CHIKKAMAGALORE DISTICT. RESPONDENTS [By Sri E S Indiresh, HCGP for R1 & R2; Sri K Chandranath Ariga, Adv. for R3; R4 is deleted vide court order dated ; Sri Udaya Holla, Sr. Counsel for Sri G Lakshmeesha Rao, Adv. for R5; Sri Ashok Haranahalli, Sr. Counsel for Sri Subramanya R, Adv. for R6; Sri Manmohan P N, Adv. for R7] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THE BUILDING BUILT ON SITE SURVEY NO.12 AND 13 AT YALLAGUNTE VILLAGE AT HOSUR-SARJAPURA ROAD, 3 RD PHASE, MEASURING METRES FROM NORTH TO SOUTH AND METRES FROM EAST TO WEST AND BOUNDED EAST BY: ROAD, WEST BY: SITE

3 3 NO.13-B, NORTH BY: SITE NO.1-B AND SOUTH BY: SITE NO. 3-B DETAILED IN ANNEXURE-B, HAVING BEEN ALLOTTED TO RESPONDENT NO.5 BY RESPONDENT NO.3 - BDA IS AN ILLEGALLY CONSTRUCTED BUILDING AND DIRECT THE RESPONDENT NO.3 - BDA TO RESUME THE SITE ALONG WITH THE BUILDING AND FORFEIT ANY AMOUNT PAID IN THIS BEHALF TO RESPONDENT BDA AND ETC., THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY, SHYLENDRA KUMAR.J., MADE THE FOLLOWING: O R D E R This writ petition styled as public interest litigation petition is by a person who claims that she is a law abiding citizen, having faith in the Constitution of India and the judicial system of the country; that she is very concerned with the proper things happening in the society; that the petitioner believes in espousing and trying to bring about correction in the polity of the country, particularly, by exposing corrupt intentions on the part of the persons at the helm of affairs and seeking for suitable corrective steps at the hands of the judiciary as the system which is corrupted is not capable of correcting itself and calls for correction from outside.

4 4 2. The writ petition pleadings is to the effect that in the matter of allotment of regular or stray sites by the Bangalore Development Authority [for short the BDA ] A public Body established under the Bangalore Development Authority Act, 1976 [for short the Act ] for the planned development of Bangalore city and its surroundings while allotting sites in favour of persons who claim eligibility under special category and in particular, as in this case, G category who are persons in public life as may be directed by the Government and some 30% of such available sites being meant for allotment to G Category persons as per circular dated , there has been irregularities and amongst the allottees figure fifth and seventh respondents to this petition. 3. It is the averment of the writ petitioner that by a thumb rule and more out of practice, this type of allotment is referred to as Chief Minister s discretionary quota and such sites are being allotted as per directions of the Chief Minister; that it is not permissible and it is the further

5 5 averment in the petition that indiscriminate allotment of sites in this manner in favour of persons said to be in public life does affect other aspirants and diminishes their chances of securing a site; that even after such allotment, many such allottees have misused or abused the allotment; that such allotment of sites had been made in favour of respondents 5 & 7 to this petition respectively. 4. It is the averment in the petition that the fifth respondent as per one such allotment is allotted site No.2B measuring 50 x 80 in HSR Layout, III Sector and likewise seventh respondent has been allotted a site of like dimension and adjacent to the site that had been allotted to fifth respondent bearing site No.13B as per allotment subsequent to the allotment in favour of the fifth respondent. 5. It is the averment that pursuant to such allotment, the third respondent BDA has executed a lease-cum-sale agreement in favour of fifth respondent on and a like lease-cum-sale agreement has been executed in favour

6 6 of seventh respondent on [copies at Annexures- C & L to the writ petition respectively]. 6. It is also the averment in the writ petition that at the time of allotment of these sites, there were several conditions imposed on the allottees and the allottees in acknowledgement of the conditions imposed on them have filed what is known as affidavit undertakings before the third respondent BDA undertaking to abide by the terms of allotment and that a violation of the terms of allotment would result in the allotted site being forfeited in favour of the BDA with its construction, if any, and without any compensation to the allottee. 7. Condition No.4 imposed under the lease-cum-sale agreement, to which attention is drawn, reading as under: 4. The Lessor/Purchaser shall not sub-divide the property or construct more than one dwelling house on it. The expression dwelling house means building constructed to be used wholly for human habitation and shall not include any apartments

7 7 to the building whether attached thereto or not used as a shop or a building of a ware-house or building in which manufactory operations are conducted by mechanical power or otherwise. [a] The Lessee shall plant at least two trees in the site leased to him. and the undertaking at paragraph-4 of the affidavit undertaking reading as under: 4. In the event that any false statements or declarations furnished and sworn to and declared in this Affidavit and in the event that I violate any conditions of site allotment, the Authorities are empowered to resume such building and site without granting any compensation to me and BDA is entitled to and empowered to resume the site for which BDA is authorized and I hereby declare so and I hereby swear accordingly. are highlighted for reference and examination in the present writ petition. 8. It is the averment in the writ petition that both respondents 5 & 7 are bound by not only condition No.4 of the lease-cum-sale agreement, but are also bound by the affidavit undertaking they have filed before the BDA to abide by the same and any violation in respect of condition No.4

8 8 automatically attracts enforcement of the undertaking and also for taking action for violation, if any, by the allottees and the present writ petition is presented as to the knowledge and belief of the petitioner, respondents 5 & 7 have committed violation of the terms of the lease-cum-sale agreement and the affidavit undertaking. 9. It is the averment of the petitioner that sites were allotted solely for residential purpose, but a shopping complex is being constructed on the first floor and other floors are sought to be provided for constructing apartments; that the construction as noticed by the writ petitioner at the time of presentation of the petition has gone about five floors and also by amalgamating both sites, a common construction is being put up; that such joint construction on the two site Nos. 2B and 13B is not only in violation of the terms of the allotment, but also that the construction is without a valid plan etc; that inspite of a request for amalgamating the two sites made by the fifth respondent

9 9 having been rejected by the BDA as per communication dated [copy at Annexure-A], nevertheless, in violation and in contravention of this rejection order, two sites have been joined together and a joint construction is put up without a valid plan, without permission and in violation of all relevant rules and regulations; that when under the lease-cum-sale agreement, conditions operate and lease period is for ten years, any construction in violation of the terms of the allotment, automatically attracts forfeiture provision and the fact of violation is writ large and in evidence of the same, petitioner has produced photographs [Annexures-T, U & V to the writ petition] purporting to indicate combined construction and according to the petitioner comprising of five floors. 10. It is urged that by such construction, respondents 5 & 7 have acted in violation of the conditions of allotment; that there is an attempt to convert residential site for commercial use; that inspite of such violations by respondents 5 & 7, the

10 10 third respondent BDA which is bound to take action in accordance with the terms of the allotment and which otherwise gets active in the case of other persons, has been quite inactive in the case of respondents 5 & 7 though they have committed violations; that even sixth respondent Bruhat Bangalore Mahanagara Palike [for short the BBMP'] which is one to approve the building plan has also been quite silent, not taking action against respondents 5 & 7 though they have constructed a building clearly in violation of the plan, if any, sanctioned in favour of these respondents by the BBMP; that several politicians had indulged in filing false affidavits before the BDA while seeking allotment and when such false claims and violations were brought into public domain or through a judicial process, some of them have surrendered such sites, but no follow up action has been taken against them for having filed false affidavits etc.; that the BDA is not taking uniform action against all violators; that it is acting in a partisan manner and persons with political patronage are all spared from consequential

11 11 action of their illegalities; that a perusal of distribution of sites in G category as per the directions of the Chief Ministers during their tenure only indicates that there is considerable patronage and in violation of the Act and Rules sites have been allotted; that no follow up action is being taken to ensure that conditions are all observed by the allottees and in this state of affairs, the writ petition is presented to safeguard public interest and to compel public authority, namely, the BDA by a writ of mandamus to take appropriate action for resuming the sites allotted in favour of respondents 5 & 7 who have committed violation of the terms of allotment and forfeit any amount that they have paid to the BDA and for such purpose, writ petition is filed before this court. 11. This court having directed the petitioner to place material before the court about the petitioner having filed public interest litigation petition earlier and about her credentials, writ petitioner has placed before the court, not

12 12 only information about the earlier cases, but also about her credentials indicating that she is a social activist actively involved in public life; that she is a Journalist by avocation; that she has been associated with various news dailies at Bangalore and even outside; that she has received good number of awards in recognition of her professional work and accomplishments in public life and has in support, placed copies of such awards photographs showing her participation in such functions etc. 12. This court being satisfied about her bonafides in prosecuting the present writ petition, on examining the petition averments has admitted the writ petition on and issued notices to the respondents. Respondent No.7 was not a party to the writ proceedings, but later impleaded as seventh respondent on an application in IA No.1/2012 filed on on which notice had been issued to the proposed respondent and ultimately application having been ordered on

13 The fourth respondent was deleted on the memo filed by counsel for the petitioner to this effect and as per order dated All other respondents are represented by counsel. Respondents 1 and 2 are represented by Sri. E.S. Indiresh, learned Government Pleader, third respondent BDA is represented by Sri. Chandranath Ariga, learned counsel, fifth respondent one of the allottees of G category site is represented by G. Lakshmeesha Rao, Advocate on record and Sri. Udaya Holla, learned senior counsel has appeared on his behalf, sixth respondent BBMP is represented by counsel M/s. Ashok Haranahalli Associates, Advocates and Sri. Ashok Haranahalli, learned senior counsel has appeared on their behalf. Sri. Manmohan, Advocate has appeared for seventh respondent. 14. Statement of objections have been filed on behalf of respondent Nos. 3, 5, 6 and Third respondent BDA on its part has averred that the writ petition cannot be characterized as one in public

14 14 interest; that the BDA has not committed any violation of any law; that it is a fact, on request by the fifth respondent, a site bearing No.2B had been allotted in his favour and following the same, lease-cum-sale agreement has been entered into on [copy at Annexure-C to the writ petition]; that the fifth respondent had made a request for amalgamating this site along with adjacent site bearing No.13B in the same layout as per request dated [copy at Annexure-R1 to the statement of objections filed by third respondent], but said request came to be rejected on for the reason that it is not possible to grant permission for the same as the allottee was only a lessee and even as per the Zoning Regulations paragraph of the revised master plan for the year 2015, a request of this nature cannot be considered and therefore request had been rejected. Third respondent has pleaded ignorance of the so called claim of the petitioner that she had exposed several misdeeds wherein the Government funds has either been misplaced or mis spent; that rejection of the request of fifth

15 15 respondent is in order; that the answering respondent has not permitted fifth respondent to go ahead with the construction of the building contrary to the conditions; that the third respondent has nothing to say about approval of building plans by the sixth respondent BBMP as it is within their jurisdiction; that no amalgamation is permitted, but it is a fact that fifth respondent does not become the absolute owner of the site till the expiry of the lease period and it is also true that site allotted in favour of the fifth respondent should be used only for the purpose for which it has been allotted and not for any other purposes and contentions urged in the writ petition with regard to allotment of sites in G category is not a matter that can be gone into in this writ petition as it is already subject matter of separate writ petition and with such plea, third respondent has urged for dismissal of the writ petition.

16 The fifth respondent on his part has filed detailed statement of objections on and has supplemented the same by additional statement filed on In the main statement, it is urged that writ petition is without merit, frivolous and one with malafides and therefore it should be dismissed. It is also urged that the property in question is not properly identified; that its description is incorrect; that a declaration in respect of site which is not even described properly or precisely cannot be granted; that even otherwise, the relief of declaration cannot be granted in writ jurisdiction and with the main prayer sought for being not possible of granting in writ jurisdiction, consequential relief sought for also does not survive and therefore writ petition has to be dismissed. Petition averments are all denied as false and incorrect. It is also urged that the petitioner has no locus to approach this court to question the validity or otherwise of the building constructed by the fifth respondent; that the petitioner is

17 17 more a meddlesome interloper and the petition is without any bonafides; that the petitioner has been set up by other political parties to scuttle the opportunity of the fifth respondent becoming Chief Minister of the State by making false allegations against him; that the time at which the petition is presented by itself provides proof of this inference; that at the time of filing writ petition fifth respondent was to replace the then Chief Minister of the State; that the writ petition being politically motivated and presented in the garb of public interest and with ulterior motives, it is only to be dismissed. The credentials of the writ petitioner is doubted; that the fifth respondent is a very respected person in public life and has many accomplishments to his credit; that he is on the threshold of becoming Chief Minister of the State; that the site in question has been allotted bonafide and in view of his contributions in public life; that the seventh respondent Jeevaraj has been allotted site measuring 50 x 80 which is lying towards western side of the site allotted in favour of the fifth respondent; that it is incorrect to say that

18 18 the allotments are in violation of the BDA s rules and objectives; that the fifth respondent after allotment of the site had decided to construct a building along with neighbour s site, namely, site allotted in favour of one Jeevaraj by amalgamating both of their sites lying side by side and in pursuance of the same, respondents 5 & 7 had filed applications to the BDA for amalgamation, but the third respondent BDA rejected the same; that in the meanwhile, fifth respondent had applied for building licence to construct the building by producing necessary documents before the BBMP and the BBMP being satisfied about the same had issued building licence and sanction plan and had permitted fifth respondent to construct the building; that the fifth respondent has not violated any of the conditions of the lease-cum-sale agreement or any norms of the BDA; that the averments in the petition that two plots have been joined is incorrect; that they have not been joined, buildings are separate and in proof of the same, the fifth respondent has produced as Annexures-R2 & R3 photographs showing the

19 19 two adjacent buildings being separated by a gap in between; that the sixth respondent BBMP had sanctioned the plan on to construct the building up to two floors and on an application for modification of this plan by the fifth respondent, the BBMP had sanctioned a modified plan to construct basement, ground and three floors and on the strength of the same, the fifth respondent constructed building comprising of basement, ground and three upper floors in accordance with the modified sanction plan and building licence issued by the BBMP and therefore the petition averment that it is construction of fifth floor is contrary to the sanction plan is incorrect and copy of the modified plan is produced as Annexure-R4 to the statement of objections filed by fifth respondent. It is also averred that fifth respondent has not converted the building for any commercial purpose as urged in the writ petition; that however as per the zoning regulations, sixth respondent is empowered to allow 20% of the total built up area for ancillary/commercial use; that the fifth respondent has

20 20 sought for conversion of 20% total built up area in the ground floor to be used for commercial purpose and on such request, sixth respondent has approved the same as per sanctioned modified plan Annexure-R4. It is denied that the fifth respondent is constructing a shopping complex; that not impleading one Jeevaraj who is owner of the adjacent site is a defect in the petition; that the petitioner has deliberately not impleaded the said person as party to the writ petition and therefore writ petition is to be dismissed on the ground of non joinder of necessary parties; that all other averments are denied and has urged for dismissal of the writ petition with costs etc. 18. In the additional statement of objections placed before this court on , it is averred that on the advice of the Architect, the fifth respondent for the purpose of increasing floor area has purchased transferable development rights and has loaded that into the building to increase the floor area so as to conform with the zoning regulations and

21 21 thereafter has obtained modified sanction plan from the sixth respondent BBMP [wrongly indicated as third respondent]. 19. The sixth respondent BBMP on its part has filed its statement of objections urging for dismissal of the writ petition at the threshold; that the petition is not a bonafide one, but more for seeking publicity in the garb of public interest litigation with oblique motives; that it is also liable to be dismissed for non joinder of parties by not impleading all persons against whom allegations are made in the petition averments; that it is true the sites in question allotted in favour of respondents 5 & 7 is by the BDA, but the sites are within the jurisdiction of the BBMP; that on application filed by fifth respondent for construction of a building, it was sanctioned on permitting ground plus two upper floors following the approval dated ; that this plan was modified in the wake of the provisions of revised master plan 2015 and was issued on

22 22 permitting construction of basement, ground floor plus three upper floors and a terrace portion; that it was in conformation with the bye law No of the Bangalore Mahanagara Palike Building Bye-laws, 2003 [for short, the building bye-laws]; that this was a valid modified plan and averments to the contrary in the writ petition are denied as false and incorrect; that the averments that five storeyed building for commercial purpose is being put up is denied as false and on the other hand it is asserted that it is only basement, ground plus three upper floors and construction was still in progress on the date of filing of the statement of objections by sixth respondent; that in view of the fact that construction is not complete and the building not occupied, there cannot be any assumption of violation at this stage and therefore even before issue of completion certificate, there is no occasion for the BBMP to get active by noticing violations; that the allegations and averments made in the writ petition are all denied; that they are bald in nature and against all and sundry and no credence should be placed on

23 23 such averments in the writ petition and therefore writ petition should be dismissed as one without merit etc. 20. In the additional statement of objections filed by sixth respondent on , copy of sanction plan dated issued by the BBMP is produced as Annexure- R1; that as for the construction, fifth respondent approached BBMP for issue of modified plan in accordance with building bye-law 2003 and on the examination of the application on merits and having regard to the revised master plan 2015, modified plan dated was issued and copy is produced as Annexure-R2; that the fifth respondent having approached BBMP again for issue of another modified plan proposing certain modifications to the on going construction of the building in question, the same was considered by the BBMP and further modified plan dated was issued to fifth respondent which is produced as Annexure- R3; that it is indicated while the permissible floor area in the plot is 2.25 and permissible coverage is 65% of the plot area;

24 24 that the fifth respondent having acquired transferable development rights, is entitled for construction of additional floor area and in this view of the matter, permissible floor area ratio has gone up to 3.60 and both permissible floor area ratio as achieved in the building which is and coverage of the area which is 64.03% are well within the permitted limits; that there is no violation on the part of the fifth respondent; that on an inspection by the BBMP authorities, it was noticed that there were some deviations and the said deviations are indicated as per Annexure-R4 to the statement of objections and necessary action may be initiated under the provisions of the Karnataka Municipal Corporations Act, 1976 for correcting the same; that as of now, permission is not for any commercial purpose in terms of the latest revised modified plan as per Annexure-R3. With such averments and developments having been indicated, it is urged for dismissal of the writ petition.

25 Seventh respondent on his part has filed separate statement of objections denying the averments in the writ petition, but admitting the allotment of G category site adjacent to the site allotted to fifth respondent; that the writ petition does not serve any public purpose nor bonafide one; that it is required to be rejected on the ground of delay and laches for having approched this court at a very belated stage after a lapse of six years of the original allotment; that no worthwhile explanation is forthcoming in the writ petition about the delay; that while answering respondent had obtained sanction plan on , writ petition filed on is hopelessly belated and on the ground of delay itself, writ petition should be dismissed; that the petition is one more for publicity which should not be permitted by the court; that no true public spirit is exhibited in the petition nor sought to be espoused; that the petition only deserves to be dismissed; that no specific relief is sought for against the answering respondent, but nevertheless, sweeping statements without examining the authenticity of the same

26 26 are made and for this reason also writ petition deserves to be dismissed; that the writ petitioner had not impleaded the answering respondent in the initial stage, but has impleaded the seventh respondent much later, but it is a fact that the answering respondent along with fifth respondent had made a request to the third respondent for amalgamation of the sites, but the same came to be rejected by the third respondent and therefore the question of amalgamation did not arise and averment to the contrary in the petition is incorrect; that the averments about applications made by seventh respondent for sanction of a building plan which are on the very dates as that made by the fifth respondent or on identical terms are also placed before the court by way of pleadings and averments to the contrary made in the writ petition are all denied; that it is urged that the seventh respondent is a Member of Legislative Assembly elected from Sringeri constituency and being in public life and social worker and on account of his professional work was required to visit Bangalore frequently and therefore had sought for

27 27 allotment of a site in G category and accordingly it has been allotted and contentions to the contrary in the writ petition are all denied as false; that the writ petitioner having not questioned such allotment under the BDA rules, cannot turn around and question allotment made in favour of seventh respondent; that while respondents 5 and 7 have not amalgamated their sites, it is a fact that they have engaged a common contractor for construction of the building and there is nothing illegal or violative of any provision of law in doing so; that the writ petition averments being based more on some newspaper reports, cannot be accepted at face value and petitioner not producing any substantial material to make good petition averments, writ petition averments are all mere pleadings based on hearsay; that there is no merit in the same and has urged for dismissal of the writ petition. 22. We have heard A K Subbaiah, learned counsel for the petitioner, Sri Uday Holla, learned senior counsel appearing for fifth respondent, Sri Ashok Haranahalli, learned senior

28 28 counsel appearing for sixth respondent, Sri E S Indresh, learned government pleader for respondents 1 and 2, Sri K Chandrakanth Ariga, learned counsel for third respondent- BDA and Manmohan P N, learned counsel for seventh respondent. 23. Learned counsel for the petitioner reiterating the petition averments has submitted that the writ petition is a bona fide petition espousing a public cause, as the petitioner has brought a cause of considerable importance before this court and it is for the court to examine the actions on the part of the respondent-authorities vis-à-vis orders passed and actions taken in favour of respondents 5 and 7 in the matter of allotment of what is known as G category sites in their favour; that the writ petitioner has brought to the notice of the court various violations and irregularities both at the stage of the allotment of those sites and thereafter; that the writ petitioner has also placed materials before the court to make good her credentials as a person to espouse a

29 29 public cause and therefore this court may examine the cause on its merits and pass suitable orders in writ jurisdiction. 24. Sri Subbaiah submits that the two sites in question, one allotted to the fifth respondent bearing No 2/B and the other one allotted to seventh respondent bearing No 13/B, both of the same dimension of 50 x 80 and located adjacent to each other in HSR Layout, Sector III, Bangalore are sites allotted to the allottees for the purpose of residence; that condition No 4 of the lease-cum-sale agreement indicates the nature and the manner of user of the site; that the writ petitioner had noticed violations of such conditions and has brought that to the notice of the court and the writ petitioner has filed this petition as a public interest litigation to protect the interest of the residents of the locality and in the larger public interest as persons in whose favour these sites had been allotted and having regard to their social position, there is no guarantee the authorities themselves will become

30 30 active for suitable corrective action; that the very fact that they had remained inactive is also proof of this kind of attitude on the part of the public authorities viz., BDA and BBMP and therefore writ petition has been presented. 25. The sum and substance of the writ petition averments and the argument is that while respondents 5 and 7 had been enabled to put up a single dwelling unit, as per the conditions of allotment in their respective sites, on the other hand, they have put up a common construction combining the two sites; that the construction as noticed by the petitioner on the eve of presenting this petition upto the level of five floors; that it was clearly in violation of the terms and conditions of allotment as also zoning regulations and without proper plan or with no plan and if allowed will be a testimony to the violation and therefore the authorities were required to take action, but they have not taken any action and therefore the matter is brought to the court for activating them to take suitable action.

31 In this regard, learned counsel for the petitioner has brought to our attention that though an effort on the part of respondents 5 and 7 to seek permission for the so-called joint development by amalgamating the two sites was made through an application on , but that application having been rejected on , nevertheless, these respondents having gone ahead with such construction and on the date of filing of this writ petition i.e. on , such a construction being in place and as evidenced through photographs at Annexure-T, U and V, it is a standing proof of the persistent violation and the lack of regard on the part of the respondent-allottees to adhere to laws and these respondents though being aware of the rejection of their request for amalgamation have nevertheless proceeded with the construction. 27. It is also submitted that though on the date of filing of writ petition, the building was one cohesive building of five floors, an attempt has been made after filing of this writ

32 32 petition and in a hasty manner to put up a show as though it was not one cohesive building but two buildings, one on each side and for such purpose, while a gap has been created in between the two buildings, immediately after filing of this writ petition, to create an impression that they are two separate buildings and not one building and in this regard Sri Subbaiah has drawn our attention to clauses-4 and 13 of the lease-cum-sale agreement to submit that not only the condition as per clause-4 of the lease agreement regarding the manner of use of the allotted site, which should be adhered to, but also that the allotment being subject to the rules and regulations that are provided for in the Bangalore Development Authority (Allotment of Sites) Rules 1984 [for short, the allotment Rules], which are incorporated into the lease agreement. He submits that there is violation of both clauses 3 and 13 of the lease conditions and therefore in terms of the affidavit undertaking condition No 4, BDA having been enabled to resume such building and without giving any compensation

33 33 and the authorities in the BDA having not done so, writ petition is presented for such purpose. 28. It is submitted by the learned counsel for the petitioner that when the initial plan sanctioned on in itself was not in conformity with the requirement of law, particularly as BBMP has overlooked the condition No 4 as contained in the lease-cum-sale agreement for approving a construction much more than for a dwelling unit; that the subsequent so-called modified plans are all more attempts to sustain the violation or illegality by calling in aid other provisions and rules and regulations which are not attracted to the case on hand; that the initial plan and modified plans are all clearly violations of the conditions and therefore not valid plans even in terms of the provisions of the Karnataka Municipal Corporations Act, 1976, governing the issue of sanction plans for constructions and therefore submits that this is a fit case for issue of directions to the authorities.

34 Learned counsel for the petitioner has also drawn our attention to the statement of objections filed on behalf of sixth respondent BBMP and plan and modified plans produced along with it as annexures to submit that the effort on the part of the BBMP is only to regularize or legalize the violations on the part of respondents 5 and 7, even then, without sanctity in law and the construction in the absence of valid permission cannot be permitted and at any rate being in violation of condition No 4 of the lease agreement, BDA is required to take action in terms of the affidavit undertaking. 30. With particular reference to the statement of objections filed on behalf of the sixth respondent, submission of learned counsel for the petitioner is that an attempt is made by the respondents 5 and 7 to project a picture that there was no violation at all, though such violation by amalgamating the two sites and putting up a combined construction is writ large on the date of filing of the writ

35 35 petition as per the photographs of the building produced by the petitioner; that the subsequent modified plans are also attempts to either validate or legalize the initial illegal construction and therefore amounts to an attempt on the part of respondents 5 and 7 to create or fabricate evidence subsequent to the event to cover up their misdeeds and to mislead this court and creating such documents i.e. modified building plans during the pendency of the judicial proceedings and using it as evidence to support the version of these respondents attracts provisions of Section 193 IPC; that this is a clear case of creating evidence after the event and sustain the stand and therefore it is necessary for this court to take note of this aspect and to issue directions in terms of Section 340 CrPC for the offence punishable under Section 193 IPC. 31. To make good the submission that putting up of a building which accommodates more than one dwelling unit and which is a construction by amalgamating two sites and

36 36 also providing for commercial space etc., is a violation of conditions of allotment and a violation of the zoning regulations, learned counsel for the petitioner has placed reliance on the decision of this court PEE KAY CONSTRUCTIONS vs CHANDRASEKHAR HEGDE [ILR 1989 KAR 241]. With reference to this decision, submission is that a condition like the site should be utilized only for construction of one dwelling unit; that such a condition can be imposed by the BDA and that binds the allottee and a violation of such a condition is virtually detriment to the neighbours and therefore action is warranted in such a situation. 32. Reliance is also placed by the learned counsel for the petitioner on another decision of a Division Bench of this court in the case of KORAMANGALA RESIDENTS VIGILANCE GROUP vs CORPORATION OF CITY OF BANGALORE [199(4) KAR LJ 206]. In the latter decision, the view taken by this court on an earlier decision in PEE

37 37 KAY CONSTRUCTIONS [supra] has been referred to and followed and applied. 33. With reference to the modified plans, submission of learned counsel for the petitioner is that in the first plan, which is clearly in violation of the terms of the allotment, BBMP could not have overlooked this condition while approving the sanction, as one of the requirements on the part of allottee for seeking approval of the plan is to place before the BBMP the title deeds and in the instant case, respondents 5 and 7 ought to have placed and have placed copies of the lease-cum-sale agreement containing condition No 4 and the authorities in the BBMP should not have sanctioned the building at variance with this condition. It is submitted that the first modified plan, two months after the filing of this writ petition and the second modified plan, which is dated , a copy of which is produced at Annexure-R3 produced along with the statement of objections filed by respondents 5 and 7 on , are

38 38 only efforts to lend credence or legality or validity to the already constructed building, but in violation of the conditions and the earlier plan and therefore are of no consequence to justify the action on the part of respondents 5 and 7, who initially violated the law and later are making efforts to sustain the illegality by having recourse to such modified plans. It is, therefore, a writ should be issued from this court for corrective measures and for compelling the authorities to take action in accordance with law and as per the affidavit undertaking. 34. Appearing on behalf of fifth respondent, Sri Udaya Holla, learned senior counsel has very vehemently urged that the writ petition is not a bona fide ventilation for any public cause; that it is more politically motivated or for the purpose of publicity of the writ petitioner; that the writ petition is also hit by delay and laches, as the petition is filed much later to the construction having been put up and apart from these submissions and without prejudice, Sri

39 39 Holla also submits that there is absolutely no violation or infraction of any rule or law or the conditions of lease-cumsale agreement or the undertaking given by the fifth respondent; that even without any such violation, writ petition is filed just to tarnish the image of the fifth respondent and the writ petition deserves to be dismissed. 35. With reference to objections filed on behalf of this respondent, it is asserted that no construction on an amalgamation of two sites has been put up; that the construction is only in terms of the plans and as and when sanctioned; that it is still in the process of completion and therefore at this stage, no action is warranted. 36. With reference to the contentions urged on behalf of the writ petitioner by her counsel to the effect that a violation in the nature of diversion of the site for other use viz., a dwelling unit for the use of multiple residential units or for commercial purpose etc., cannot be taken to be a violation attracting condition No 4; that judgment of this

40 40 court in the case of KORAMANGALA RESIDENTS VIGILANCE GROUP [supra] was subject matter of appeal before the Supreme Court in the case of R & M TRUST vs KORAMANGALA RESIDENTS VIGILANCE GROUP [(2005) 3 SCC 91] and the decision of a Division Bench of this court having been reversed by the Supreme Court by allowing the appeal and setting aside the judgment of this court, the ratio, if any, as contained in the judgment of the Division Bench of this court in KORAMANGALA RESIDENTS VIGILANCE GROUP [supra] is no more a good law; that on the very reasoning, even the earlier judgment of this court in the case of PEE KAY CONSTRUCTIONS [supra] cannot also be construed as good law any more and therefore reliance placed by the learned counsel for the petitioner on these two decisions to make good the contentions on behalf of the petitioner to submit that there is an illegality committed by respondents 5 and 7 in putting up a building which is either a multi-storeyed building or providing for more than one dwelling unit being no more good law, it cannot be said to be

41 41 in violation and therefore has submitted that the writ petition has to be straightaway dismissed, particularly, as reliance placed by the learned counsel for the petitioner is on judgments which are no more good law. 37. In this regard, Sri Holla, has drawn our attention to paras 2, 17, 21, 22 and 26 of the judgment of the Supreme Court in the case of R & M TRUST [supra]. Paras 21, 22 and 36, which are relevant, reading as under: 21. Learned counsel for the respondents has tried to raise certain objections that in the final agreement the expression apartment has been used which shows that there cannot be more than one dwelling house. We regret to say that this interpretation does not bear out in the face of the language used in clause 2 of the final agreement which says that the building to be constructed shall be used wholly for human habitation and shall not include any apartments to the building whether attached thereto or not for shop or warehouse or manufacturing purposes but that does not make out a case for prohibition of raising of the multi-storeyed building. Once the Municipal Corporation has permitted to raise construction more than three floors then this condition for construction will hold good and they are not contrary to any of the provisions of the Act. Section 505 of the Karnataka Municipal Corporation Act, 1976 only says that the

42 42 Corporation shall exercise power in conformity with the provisions of the Karnataka Town and Country Planning Act, Therefore, the Corporation at the time of granting permission has to keep in mind the provisions of the Karnataka Town and Country Planning Act, But we have not been able to find any provisions of the Karnataka Municipal Corporation Act or the Karnataka Town and Country Planning Act, 1961 where any ceiling has been applied on the construction of the multi-storeyed building. Therefore, we do not find that the Municipal Corporation has committed any illegality in granting permission to the appellant for raising construction up to third floor. 22. In view of the discussions made above, we are of opinion that permission granted by the Bangalore Municipal Corporation to the appellant for raising the construction up to third floor is not in violation of any of the provisions of the Act and the Rules. 36. However, we are satisfied that there is no prohibition under the provisions of the Act and Rules putting the ceiling on construction of the multi-storey building. We are also satisfied that the delay is also fatal in the present case. and are specifically referred to and Sri Holla has urged that as the law in PEE KAY CONSTRUCTIONS [supra] is no more good law, as indicated by the Supreme Court in its judgment and also that delay is a very relevant aspect and therefore

43 43 writ petition deserves to be dismissed on both grounds viz., on merits and also on the ground of delay. 38. Sri Holla has also brought to our notice the provisions of of the building bye-laws, which enables a person to seek modifications and providing for submission of request for revised or modified plans, reading as under: Revised Plans (i) Where plans have been scrutinised and modifications or objections have been pointed out by the Authority, the applicant shall modify the plans to comply with the modifications or objections raised and resubmit the plans. The plans submitted for approval shall not contain superimposed corrections. (ii) A plan once sanctioned may be revised or modified by the Authority on payment of additional fee for scrutiny, and additional fee, if any, to be paid, due to the increase in the permissible floor area. If the modified plan is sanctioned after the commencement of work, penalty at the rates prescribed by the Corporation shall be paid by the applicant. and the present structure being fully in conformity with such revised modified plans, it cannot be characterized as a violation and at the best the sanctioning authority may

44 44 insist on payment of additional fee, if any, to be paid and penalty, if any, at the rate prescribed by the corporation can be levied on the applicant seeking for modification, but it does not amount to any violation of the plan and in support of the submission has brought to our attention the acquisition of what is known as transferable development rights [TDR], which has enabled fifth respondent to increase his FAR of 3.6 and therefore the present construction being in order, not being illegal or irregular and still within the permissible limits of the building bye-laws and particularly such corrective measures having been enabled under the provisions of Section 14-B of the Karnataka Town and Country Planning Act, 1961, no need for this court to interfere in the matter and urges for dismissal of the writ petition. 39. Sri E S Indiresh, learned government pleader appearing for respondents 1 and 2, submits that the state is a formal party; that no inaction or violation is attributable to

45 45 the state, but, nevertheless, points out that a relief in the nature of declaratory relief cannot be granted in writ jurisdiction and urges for dismissal of the writ petition. 40. Sri K Chandrakanth Ariga, learned counsel for third respondent BDA has drawn our attention to clause of the revised zonal regulations as per revised master plan for 2005, which enables amalgamation of sites; that in certain circumstances, it is possible provided such sites are in the ownership of the persons seeking for amalgamating and they are adjacent to one another, but as the sites allotted to respondents 5 and 7 are on lease-cum-sale basis, were still under the lease and a request for amalgamation has been rejected; that BDA on its part has adhered to right action under the law and no blame can be placed at the door of BDA for acting in accordance with law. 41. It is also submitted that no person has brought to the notice of BDA any violation on the part of either fifth respondent or seventh respondent, as averred in the writ

46 46 petition pointing out to the BDA that inspite of rejection of their request for amalgamating, nevertheless, they have amalgamated the two sites and put up a construction; that possibly if such matter had been brought to the notice of BDA itself, perhaps, there was scope for taking corrective action; that the writ petition having been presented directly to the court, no inaction can be attributed to BDA, on such premise. 42. Sri Manmoham P N, learned counsel for seventh respondent, has firstly contended that this respondent has been impleaded very late; that there are no pleadings making allegations against seventh respondent and the prayer in the writ petition also does not seek any relief as against this respondent, but, nevertheless, this respondent has filed statement of objections contending that writ petition is to be dismissed, as it is without merit and also due to delay and laches. Submission is that in respect of a construction which had been put up, contentions that it is

47 47 on a site which is illegally allotted site in favour of this respondent is also woefully hit by delay and laches, as the allotment was of the year 2008 and the writ petition is presented only in the year 2011 and the answering respondent himself having been impleaded as a party only as per order dated , delay swells to about four years and therefore writ petition as against the seventh respondent should be rejected for this reason itself. 43. In support of the submission that no facts have been pleaded and in a petition where facts are not pleaded and they are not proved, then legal contentions cannot be urged in the absence of plea and proof, Sri Manmohan has placed reliance on the decision of the Supreme Court in the case of BHARAT SINGH vs STATE OF HARYANA [AIR 1988 SC 2181-para-13]. In so far as the submission that no proper plea is found in the petition and a relief not based on proper plea cannot be granted, reliance is placed on the decision of the Supreme Court in the case of COMMISSIONER,

48 48 BANGALORE DEVELOPMENT AUTHORITY vs S VASUDEVA [AIR 2000 SC 767]. Reliance is also placed on the judgment of the Supreme Court in the case of RANI LAXMIBAI KSHETRIYA GRAMEEN BANK vs CHAND BEHARI KAPOOR [(1988) 7 SCC 469] holding that lack of proper plea in a petition disentitles any relief. 44. Sri Udaya Holla, learned senior counsel appearing for the fifth respondent also has also placed before us today an affidavit of fifth respondent undertaking to use the building in question which is put up on the site in question as a single dwelling unit, after obtaining modification of the plan from the BBMP and in the light of such undertaking has urged that the writ petition may be disposed of accordingly without going into further aspects of the matter. 45. It is in this background of pleadings and submissions made at the Bar, we are required to examine the present writ petition.