Allowed

Bangalore Housing Development and Investments v. Bruhat Bangalore Mahanagara Palike

Karnataka HC1 Oct 2013WP/11522/2012

Case brief

AI extract

What is this about?

High Court at Bangalore held that granting a Partial Occupancy Certificate with conditions violates Building Bye-Laws when the building is not complete per the sanctioned plan. The certificate was quashed, and the licensee was directed to deposit rents collected as illegal income.

What did the court decide?

The Partial Occupancy Certificate dated 29.10.2011 was quashed. The petitioner was directed to deposit monthly rents collected with the Commissioner.

Bangalore Housing Development and Investments Vs Bruhat… — Property and Title | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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ON THE 1^ST DAY OF OCTOBER 2013

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BEFORE

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THE HON’BLE MR.JUSTICE RAVI MALIMATH

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WRIT PETITION NO.11522 OF 2012(LB-BMP)

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C/W

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WRIT PETITION NO.739 OF 2013(LB-BMP)

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WP.NO.11522/2012: BETWEEN:

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Bangalore Housing Development And Investments A Registered Partnership Firm No.10/1, Lakshminarayana Complex, Palace Road, Opp:Mount Carmel College Bangalore – 560 052 Represented by its Partner. …PETITIONER (By M/s.Srinivas & Badri Associates, Advocates)

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AND:

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Bruhat Bangalore Mahanagara Palike Corporation Circle Bangalore Represented by its Commissioner

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M/s.IBC Knowledge Park Pvt Ltd Tower D Level No.12, 4/1 Bannerghatta Road, Bangalore – 560 029 By its Managing Director

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Department of Fire Services Represented by its Director Government of Karnataka, No.1, Annaswamy Modaliar Road, Bangalore – 560 042.

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New India Hotels & Resorts Pvt. Ltd., No.12, 4/1, Bannerghatta Road, Bangalore – 560 029 By its Managing Director.

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M/s.IBM Private India Services M/s.IBC Knowledge Park Tower D Level 2^nd and 3^rd Floors, 4/1, Bannerghatta Road, Bangalore – 560 029 By its Managing Director.

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G.M.R.Projects Pvt Ltd., IBC Knowledge Park, Impleaded Phase-II, Block-D, 10^th Floor, as per order

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Bannerghatta Road dated, Bangalore – 560 029. 28.11.2012.
7. M/s.Cyber Site India Pvt Ltd M/s.IBC Knowledge Park Pvt Ltd Tower C Level, 10^thFloor, Deleted vide 4/1, Bannerghatta Road, order dated Bangalore – 560 029 18.09.2013. By its Managing Director
8. M/s.Accenture Services Private Limited M/s.IBC Knowledge Park Pvt Ltd., Tower C Level 4^th, 5^th, 6^thand 7^thFloor, 4/1, Bannerghatta Road, Bangalore – 560 029 By its Managing Director
9. M/s.Terminus The Banking Software Co. M/s.IBC Knowledge Park Pvt Ltd., Tower C Level, 3^rdFloor, 4/1, Bannerghatta Road, Bangalore – 560 029
By its Managing Director
10. M/s.Rambus Chip Technologies M/s.IBC Knowledge Park Pvt Ltd., Tower C Level, 12^thFloor 4/1, Bannerghatta Road, Bangalore – 560 029
By its Managing Director.
11. M/s. CSR India Pvt Ltd., M/s.IBC Knowledge Park Pvt Ltd., deleted vide Tower C Level, 11^thFloor order dated
4/1, Bannerghatta Road, 18.09.2013

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Bangalore – 560 029 By its Managing Director

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M/s.Oracle India Pvt Ltd., M/s.IBC Knowledge Park Pvt Ltd., Tower D Level 6^th and 7^th Floor, 4/1, Bannerghatta Road, Bangalore – 560 029 By its Managing Director. …RESPONDENTS

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(By Sri Subramanya, Advocate for R1 Sri Sreevatsa, Sr.Counsel for M/s.MGS Kamal & Bhanu, Advocates for R2 & R4 Sri Gururaj Joshi D.M., Advocate for R6 Sri N.B.Vishwanath, HCGP for R3 M/s.Poovayya & Co., Advocates for R5 & R8 R7 & R11-deleted vide order dated 18.9.2013 M/s. P.M.Vasudev and Co by Sri H.S.Harish, Advocates for R9

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Sri Nandish Patel, Advocate for R10 Sri B.M.Sudesh, Advocate for R12)

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This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the entire records pertaining to plan sanction and issue of occupancy certificate dated 29.10.2011 concerning property bearing No.4/1, Bannerghatta Main Road, Bangalore and order an enquiry by an independent agency the reversal of the decision by the 1^st respondent concerning issue of partial occupancy certificate dated 29.10.2011 concerning C & D Blocks. Quash the partial occupancy certificate dated 29.10.2011 issued

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by the 1^st respondent in favour of the 2^nd respondent vide Annexure-M.

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WP.NO.739/2013: BETWEEN:

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M/s.IBC Knowledge Park (P) Limited A company registered under the companies Act With its registered office at no.B-9, Corporate Blocks, ‘B’, Diamond District, No.150, HAL, Airport Road, Bangalore – 560 008 Represented by its Managing Director Mr.Yunus Zia. …PETITIONER (By Sri Sreevatsa, Sr.Counsel for MGS Kamal & Bhanu, Advocates)

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AND:

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Bruhat Bangalore Mahanagara Palike N.R.Square Bangalore – 560 002 Represented by its Commissioner.

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The Additional Director Town Planning Bruhat Bangalore Mahanagar Palike, N.R.Square, Bangalore – 560 002.

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GMR Bannerghatta Properties Pvt Ltd., IBC Knowledge Park impleaded Tower D, 10^th & 11^th Floor, as per No.4/1, Bannerghatta Road, Bangalore – 560 029 order dated Represented by its Director 30.9.2013 Sri G.Poornachandra Rao.

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…RESPONDENTS

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(By Sri R.Subramanya, Advocate for R1 & R2 Sri Gururaj Joshi D.M., Advocate for R3)

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This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to call for records in respect of the order dated 24.12.2012 passed by the Second respondent Vide Annexure-Y, set aside the same. Direct the respondent to restore the occupancy certificate dated 29.10.2011 vide Annexure-W.

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These Writ Petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following:-

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ORDER

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Since common questions arise for consideration in both these writ petitions, at the request of the learned counsels, they are heard together.

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Writ petition No.11522/2012 is filed by the owner of the property bearing No.4/1, Bannerghatta Main Road, Bangalore, admeasuring 53,974.81 sq.meters, about 13 acres 13½ guntas. The petitioner entered into a registered Joint Development Agreement dated 26.12.2003, with the second respondent for constructing commercial buildings and to deliver a minimum of 4 lakh sq.ft. or 31% of the constructed area among various other terms and conditions. Various documentations were also entered into including a registered Power of Attorney in favour of the second respondent to obtain necessary sanction, permission, license, etc. Thereafter, the second respondent applied for a plan sanction for construction of Towers A to G. In

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terms of the plan sanction vide L.P.No.324/2000-01, and as modified on 15.5.2006, Towers A and B were constructed. The corporation granted a Partial Occupancy Certificate (hereinafter referred as ‘POC’ for the sake of convenience) dated 31.10.2003 for these two towers. In terms of the Joint Development Agreement, part of the constructed area was handed over to the petitioners. Thereafter, Towers C and D were constructed. Hence, the second respondent sought for a POC with respect to Towers C and D. By an order dated 29.10.2011, the Corporation issued a POC on various terms and conditions. Being aggrieved by the grant of POC, W.P.No.11522/2012 is filed to quash the said POC and other reliefs.

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During the pendency of the writ petition, the Corporation issued an order dated 24.12.2012, withdrawing the POC granted earlier. Questioning the withdrawal of the POC, the builder has filed

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W.P.No.739/2013 seeking for a writ to direct the respondents to restore the occupancy certificate granted earlier and consequential reliefs.

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Since the subject matter involved in both the

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writ petitions pertain to the grant of POC and its subsequent withdrawal, the writ petitions are taken up

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for consideration together. The writ petitioner in W.P.No.11522/2012 will hereinafter be referred to as the ‘landowner’ and the writ petitioner in W.P.739/2013 will hereinafter be referred to as the ‘builder’ for the sake of convenience.

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5.(a) The contention of the landowner is that the POC granted by the respondent-corporation is

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erroneous as it violates law. That a POC cannot be granted by imposing any conditions. That a POC can be granted only if that portion of the building where a POC is sought for, is complete in all respects, in terms of the

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plan sanction. Therefore, only if it is complete, a POC can be granted and not otherwise. Therefore, grant of POC with conditions violates Law and hence the same requires to be quashed.

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(b) It is further pleaded that even so far as the

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various terms and conditions imposed in the POC are concerned, the same affects the legal rights of the landowner. One of such conditions imposed by the corporation is that the structural safety of the building would be entirely at the risk and cost of the owner / architect / engineer / structural engineer and that the BBMP will not be responsible for the structural safety. It is therefore contended, that so far as the structural stability, etc. is concerned, it is the builder who is responsible, since he has put up the construction. Therefore, such a condition cannot be imposed against the landowner. Various other contentions are advanced, questioning the grant of POC.

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themselves have issued various communication to the builder with regard to violations. That such violations would have to be rectified in order to bring the buildings in tune with the plan sanction. That the builder has failed to comply with the directions issued by the corporation. Various notings as made in the corporation file, the communications by the corporation, have all been relied upon in support of their case.

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(d) The landowners had also communicated to

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the corporation with regard to the violations being committed by the builder. One such violation was inadequacy of parking space for the cars. That the carparking that were being constructed, were grossly inadequate as per the plan sanction. That even before the grant of a POC, the builder has alienated portions of Towers C and D which runs contrary to the provisions

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of law. Hence, it is pleaded that the writ petition be allowed and the POC be quashed.

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(e) That various persons have been inducted by

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the builder into Towers C and D. That in terms of Bye-

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law 5.7, no person can be inducted without a POC. Hence, all such persons are in illegal occupation and that the builder has violated the Law.

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6.(a) On the other hand, the learned counsel for

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the builder contends that the Corporation exceeded its jurisdiction in withdrawing the POC. That in terms of condition No.22 of the POC, it was stated that the conditions as imposed in Sl.Nos.12 to 17 shall be complied within a period of 15 months. That the POC was granted on 29.10.2011 and 15 months period therefore expires on 29.01.2013. But the POC has been withdrawn by an order dated 24.12.2012. The same is much prior to the expiry of 15 months. Therefore, on

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this ground alone, withdrawal of the POC requires to be set-aside. Even before complying with all the conditions, such a withdrawal cannot be made by the corporation.

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(b) It is further contended that there is no violation as sought to be made out by the landowner. That the builder has also given a memorandum of undertaking to the Corporation with regard to the completion and adherence to the conditions in the grant of POC. Therefore, it cannot be said that the POC is without the authority of Law.

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induction of tenants is concerned, the same is within the knowledge of the corporation. That on the basis of the induction of some tenants, the corporation has regularized the same by collecting taxes, as well as fine towards the said premises. Therefore, it cannot be said that the grant of POC is erroneous. It is further pleaded

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that on the basis of the POC that has been granted, construction has taken place and at this stage to withdraw the POC, when tenants have been inducted, would lead to gross miscarriage of justice. Therefore, it is pleaded that the writ petition be allowed and withdrawal of the POC be set-aside.

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Heard Shri.Srinivasa, learned counsel

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appearing for the land owner, Shri.Sreevatsa, learned Senior Counsel appearing for the petitioner’s counsel namely the builders, Shri.Subramanya, learned counsel appearing for the respondent-corporation and Shri.Gururaj, learned counsel appearing for respondent no.6 in WP.No.11522/2012 and respondent No.3 in WP.No.739/2013. There are no submissions on behalf of the remaining respondents, except respondent no.4 in W.P. No.11522/2012, who is also represented by the

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counsel for respondent no.1. Examined the material on record.

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The corporation has issued a POC for Towers

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A and B. They are not the subject matter of these petitions. The dispute herein is with regard to Towers C and D.

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The construction of buildings is governed by the Bangalore Mahanagara Palike Building Bye-Laws 2003. Bye-law 5.6 is with reference to grant of an Occupancy Certificate, which reads as follows:

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“5.6. Occupancy Certificate – 5.6.1 (a)

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Every person shall before the expiry of five years from the date of issue of licence shall complete the construction or reconstruction of a building for which the licence was obtained and within one month after the completion of the erection of a building shall send intimation to the Commissioner in writing of

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such completion accompanied by a certificate in Schedule VIII certified by a Registered Architect / Engineer / Supervisor and shall apply for permission to occupy the building. The Authority shall decide after due physical inspection of the building (including whether the owner had obtained commencement certificate as per Section 300 of the Karnataka Municipal Corporations Act, 1976 and compliance regarding production of all required documents including clearance from the Fire Service Department in the case of high-rise buildings at the time of submitting application) and intimate the applicant within thirty days of receipt of the intimation whether the application for occupancy certificate is accepted or rejected. In case, the application is accepted, the occupancy certificate shall be issued in the form given in Schedule IX provided the building is in accordance with the sanctioned plan.

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(b) Physical inspection means the Authority shall find out whether the building has been

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constructed in all respects as per the sanctioned plan and requirement of building bye-laws, and includes inspections by the Fire Service Department wherever necessary.

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(c) If the construction or reconstruction of a building is not completed within five years from the date of issue of licence for such a construction, the owner shall intimate the Authority, the stage of work at the expiry of five years. The work shall not be continued after the expiry of five years without obtaining prior permission from the Authority. Such continuation shall be permitted, if the construction or reconstruction is carried out according to the licensed plan and if the Authority is satisfied that at least 75 per cent of the permitted floor area of the building is completed before the expiry of five years. If not, the work shall be continued according to a fresh licence to be obtained from the Authority.

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5.6.2. For all high-rise buildings, the work shall also be subject to inspection by the officers of the Karnataka State Fire Service Department and the occupancy certificate shall be issued only after obtaining a clearance certificate from the Director of Fire Services.”

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If the building is partly constructed, then an Occupancy Certificate in terms of Bye-Law 5.6 cannot be granted. However, a POC can be granted to a part of the building, in terms of Bye-Law-5.7, which reads as follows.

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“5.7 Occupancy or letting of the new

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buildings.- No person shall occupy or allow any other person to occupy any new building or part of a new building for any purpose whatsoever until occupancy certificate to such buildings or part thereof has been granted by an officer authorized to give such certificate, if in his opinion in every respect the building is completed according to the sanctioned plans and fit

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for the use for which it is erected. The Authority may in exceptional cases (after recording reasons) allow partial occupancy for different floors of a building.”

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requirements. The first is that no person shall occupy or let-in any other person to the building or part thereof, until an Occupancy Certificate to such a building or part thereof has been granted. Therefore, until and unless an Occupancy Certificate is granted, no building or part of it, can be occupied. Secondly, the grant of Occupancy Certificate shall be only after the opinion of the officer is to the effect that in every respect, the building or part thereof is complete, according to the plan sanction and that it is fit for use for which it was erected.

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12.(a) The first part of Bye-law 5.7 clearly narrates that no person can occupy the building or part

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thereof without an Occupancy Certificate. Admittedly persons have been inducted prior to grant of POC. It is contrary to law. The occupation of the building or part thereof is opposed to law. No person can be inducted in any manner whatsoever, without an Occupancy Certificate by the corporation. Therefore, all such persons who have been inducted prior to the grant of POC, are in illegal occupation.

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(b) The second part of Bye-law-5.7 is to the

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effect that the concerned officer has to opine, that the

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Occupancy Certificate sought for the building or the part thereof is complete in terms of the sanction plan. Therefore, if the building or the part thereof, is not completed in terms of the plan sanction, no such Occupancy Certificate can be granted. Even otherwise, the authorized officer should opine that the building or part thereof is completed. Therefore, until the building

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or the part thereof is completed in terms of plan sanction and the authorized officer has so opined, with regard to the same, no Occupancy Certificate can be granted.

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13.(a) Therefore, firstly no person can occupy or

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allow any other person to occupy the building or a part thereof, for any purpose whatsoever, until an Occupancy Certificate to such a building or a part thereof, is granted by the Authorised Officer. Therefore, it narrates that no person shall occupy the building until an Occupancy Certificate is granted. It also states that no person shall occupy or that such a person shall allow any other person to occupy. Secondly, such occupation of the building cannot take place for any purpose whatsoever. It would imply, that whatever may be the reason, whatever may be the circumstance, no person shall occupy the premises. The language used is

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that no persons ‘shall’. Therefore, it is mandatory.

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‘Shall’ is a compulsion. Therefore, compliance is a must.

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(b) That occupation cannot take place until and unless an Occupancy Certificate to such a building is granted. Admittedly, persons have been allowed to occupy portions of the buildings. Therefore, in view of the admitted position, there has been a violation of Law. Persons have been allowed to occupy the premises without a POC.

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The learned counsel for the builder contends that these persons have been in occupation in terms of the deeming provisions vide Section-310 of the KMC Act. However, on arguing the issue for sometime, he submits that he would not press the contention under Section310 of the KMC Act. He submits that persons have been inducted, not on the basis of Section-310 of the KMC Act, but the induction would be governed only by the

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POC. The submission on this issue is noted.

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Consequently, in view of the admitted position of induction of persons without an occupancy certificate, there has been a violation of the first part of Bye-law 5.7 itself.

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narrate that a POC can be granted, if in his opinion, namely, the Authorised Officer’s opinion, the building is complete in accordance with the sanctioned plan in every respect and fit for the use for which it is erected. Therefore, what it postulates is that in terms of the sanctioned plan, the building must be complete in every respect. ‘In every respect’ means, complete adherence to the sanctioned plan.

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(d) If it is not in accordance with the sanctioned

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plan in every respect, no POC can be granted. It is herein that reference to the provisions of bye-law 5.6.1

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becomes necessary. It clarifies that not only the building should be complete in all respect, but that the authority after due physical inspection of the building and as to whether commencement certificate under Section-300 of the KMC Act is obtained, that there is compliance with regard to production of documents including clearance from the Fire Department, that such an order can be passed. That there should be a certificate issued by the Architect as per Schedule-VIII. It is also clarified therein that physical inspection means that, the authority shall find out that the building has been constructed in all respect to the sanctioned plan and building bye-laws and includes inspection by the Fire Service Department wherever necessary. While seeking for an Occupancy Certificate under Bye-law 5.6, the same should be accompanied by a certificate under Schedule-VIII by the registered Architect / Engineer / Supervisor, to the effect of such completion of the building. Therefore, it

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has to be certified by him that the building has been constructed as per the plan sanction. Thereafter, the corporation would do the needful and may issue an occupancy certificate in the form given in Schedule-IX, provided the building is in accordance with the plan sanction. However, these two issues are absent in Byelaw 5.7. Under Bye-law 5.7, there is no requirement of any such certificate by an Architect, etc. There is no specified form to issue an Occupancy Certificate. Therefore under Bye-law 5.7, the burden is cast on the Authorised Officer in this regard. It is he who has to opine that the building is complete in every respect according to the plan sanction. Hence, the responsibility is only on the corporation so far as the grant of a POC in terms of Bye-law 5.7 is concerned.

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(e) Therefore, this means that the building

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should be completed in every respect according to the sanctioned plan. Therefore, the Authorised Officer

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should opine that such a building is complete according to the sanctioned plan in every respect. Firstly, is the fact that the very imposition of conditions is alien to the provisions of bye-law 5.7. A POC can be granted under bye-law 5.7, only if in the opinion of the Authorised Officer, the building is complete in every respect as per the sanctioned plan. Therefore, if it is not complete, no POC can be granted. The question of grant of POC by imposing conditions is alien to bye-law 5.7. The grant of POC with conditions is therefore illegal and

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unsustainable in Law.

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(f) The imposition of conditions while granting

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the POC being alien to bye-law 5.7, vitiates the POC. The absence of an opinion of the Authorised Officer would also vitiate the POC. It is mandatory that the Authorized Officer opines that the building is complete in all respect. Firstly, there is no opinion of the

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Authorised Officer and secondly, the very fact of imposition of the conditions is beyond law.

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(g) The learned counsel for the Corporation has

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procured the records. Even on a specific question being asked, he is unable to show the opinion of the Authorized Officer before issuing the POC. There is no such opinion. There are only file notings with regard to the deviations, communications, etc. Since the opinion of the Authorized Officer is mandatory in terms of Byelaw 5.7 and even the Corporation has failed to show that such an opinion has been formed, the POC is vitiated.

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I have examined the impugned POC, wherein

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it states that permission is granted to occupy Towers-C and D as per the details mentioned therein. However, there is no reference whatsoever with regard to the illegal occupation of Towers C and D. A reference to

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the compounding fee has nothing to do with the illegal occupation. The compounding fee is with reference to the deviation in construction. Therefore, it is surprising that there is not even a reference by the corporation with regard to the illegal occupation. This also would render the POC as being doubtful. The same can be supported with the notings of the corporation which can be seen at page-96 of the writ petition of the landowner, wherein it is stated that Towers C and D are occupied without an occupancy certificate. That the connecting corridor between Towers C, D, E and F has been used for office use though sanctioned for car parking, etc. At page-97, it is narrated that the builder has obtained the sanctioned modified plan, on 15.05.2006 for the entire plot area. However, the builder has not disclosed the fact that some portions of the plot was sold to one M/s.New India Hotels and Resorts, namely, the fourth respondent in the writ petition of the landowner.

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Incidentally respondent no.4 is represented by the counsel representing the builder. That there is a shortage of almost 300 car parks. Numerous other notings are also to be found which touch upon the illegal construction, the wrongful induction, suppressing material facts before the corporation, etc. Further, the sale of the portion of the plot to the fourth respondent would have a bearing on the plan sanction. The plan sanction has been granted for the entire area. When a portion of the area is sold thereafter, necessarily the plan sanction would be erroneous. The FAR, etc. would have to be reworked based on the reduced area etc. The same has not been done. Therefore if the area is reduced, the area to be constructed would also be reduced. But due to suppression of this fact, a greater area than permissible is being constructed. These facts were to be placed before the corporation. They have not done so. The corporation have overlooked every

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objection of the landowner. The objections of the landowner has not been considered. The landowner has objected to the erroneous POC granted. That the POC has been granted to an area beyond what is available, etc. Therefore, when the corporation had earlier issued notices for rectifying the violations, how could such a decision be overturned by issuing the present POC? Substantial material has been produced in support of the violation, which the corporation have not attended to. Even then, the POC has been granted. Hence, on this ground also the grant of POC would be opposed to facts.

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15.(a) On examining the POC, it could be

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seen that the corporation had noted that there were deviations with the sanctioned plan. That such deviations are within permissible limits of regularization with the levy of compounding fee. Therefore, compounding fee was worked out and was collected.

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However, that has no reference to the issue on hand. It is thereafter stated that the POC was granted to occupy Towers C and D subject to the 23 conditions that have been imposed. It is also stated that if there is a default with the compliance of the conditions, the Occupancy Certificate shall be withdrawn without notice. It is herein that the builders contend that the conditions imposed when the POC was granted are formal in nature. That these are the conditions that are normally imposed and it has nothing to do with completion of the building or that the building is not in terms of the plan sanction.

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(b) In fact there are conditions pertaining to construction. According to condition no.15, the Towers E and F should be constructed and reserved for parking purposes. That connectivity should be provided to the car parking area shown in the different floors as in Sl.No.14 from E and F Towers. That Tower G should not

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be constructed until and otherwise separate approval is obtained. That if the total built up area exceeds with respect to the sanctioned modified plan area, BBMP is at liberty to take action as per KMC Act, etc. Therefore, reading of these conditions would show that they are not conditions that could be considered as formal in nature. They are relatable to Towers C and D. They cannot be considered in isolation. That is why they are mentioned in the POC pertaining to Towers C and D. These conditions pertain to the acts of construction that require to be made. When such conditions pertain to acts of construction, obviously the building is not completed in terms of the plan sanction. Such conditions would have to completed, to hold that, the building is complete in terms of the plan sanction. In terms of Bye-law 5.7, there cannot be imposition of any condition. The conditions clearly narrate with regard to

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the construction. Therefore, the same runs contrary to bye-law 5.7.

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POC can be granted on conditions. A POC to be granted should be absolute on completion of the building or part thereof in all respects, in tune with the plan sanction. Therefore, even for the sake of arguments if it is to be accepted that the conditions imposed are formal in nature, the same is beyond the scope of Law. Bye-law 5.7 does not make any distinction between a formal and an informal condition. It does not speak of any condition. The language used in Bye-law 5.6 where it is clarified with regard to obtaining of such permissions would also stands applicable, when a POC has to be granted under Bye-law 5.7. Under these circumstances, the contention of the builders that the conditions imposed are formal in nature, therefore cannot be accepted.

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The Builder has furnished a memo of

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undertaking dated 26.10.2011 to the Corporation. It is

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to the effect that, they would comply with the conditions. The builders very clearly state that in terms of the memo of undertaking, conditions as mentioned therein would be fulfilled. The question of giving an undertaking for the completion of the various conditions clearly supports the interpretation of law, that no POC can be granted on any conditions. Even if a single condition is imposed, it violates law. Even otherwise the memorandum of undertaking itself shows that various conditions are sought to be complied with. The undertaking also states that the car park area has been converted to office space. It therefore presupposes that the area for which the POC is sought for is not complete in all respect as per the plan sanction. That in order to bring it in tune with the plan sanction, various acts

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have to be performed and various conditions have to be fulfilled. If various acts are to be performed and conditions have to be fulfilled in order to bring it in tune with the plan sanction, then, in that event, POC cannot be granted in terms of byelaw 5.7. Hence, on this ground also the grant of POC is opposed to law.

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17.(a) It is contended by the builder that fifteen months period was granted for completion of condition nos.12 to 17. That the period expires on 29.01.2013. But the POC has been withdrawn on 24.12.2012. Therefore, it is pleaded that since the period granted to complete still exists, the order of withdrawal is unsustainable.

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(b). In the order of withdrawal of POC, it is

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stated that the conditions have been violated as detailed in the said order since only a portion of the construction is completed. That only 25% of the work is completed

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and hence 75% of the work cannot be completed within one month.

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(c). Even though withdrawal cannot generally

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take place before the expiry of the period granted, I’am of the considered view that the same cannot be applied to the facts of the present case. The Corporation has stated that even though fifteen months period was granted, in a spot inspection, it was noticed that even after completion of fourteen months, only 25% of the work was completed. Therefore, it was a futile exercise to wait for the expiry of the period. Therefore, the contention of the builder on this ground also cannot be accepted.

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The withdrawal of POC shows non-

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fulfillment in terms of the plan sanction. Even on the day the POC was granted various works had to be done. Even after 14 months only 25% of it was completed.

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However, whatever may be the percentage of the completion of the work, the fact on record is that on the day the POC was granted, the building was not complete in every respect as per the plan sanction, which is a mandatory in terms of Bye-law 5.7. Therefore the withdrawal itself will also show that grant of POC itself is erroneous, due to the building not being complete in every respect according to the plan sanction.

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19.(a) Various material have been produced by

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the owners to contend that there has been gross violation in the building and the tenants have been wrongly inducted. Reference is made to the communications as well as the file notings of the Corporation. It is therefore pleaded that the Corporation have been consistently intimating the builder with regard to the violations and have been

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consistently intimating the builder to bring the building in tune with the plan sanction. Therefore, there was no case for grant of POC at all. However, without any basis and not withstanding the various notings of the Corporation themselves, the POC has been issued.

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(b) To this, the builder would contend that even though there were various communications, the violations if any, are within the permissible limits and even the compounding fee has been collected and that the violations in construction have been regularized.

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of the plan sanction is not the scope of these petitions.

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Whether the building is or has been constructed in terms of the plan sanction is to be determined by the Corporation in appropriate proceedings. The scope of these petitions is only with regard to the validity or otherwise of the POC. If the building is constructed in

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violation of the plan sanction, necessarily the corporation would have to issue an appropriate notice or otherwise, if not already done, in accordance with law, to the builder and it is for the builder to react to the same. This Court cannot enter into a finding whether the building that has been put up is in tune with the plan sanction or not in these petitions. They are separate proceedings in order to put the building in tune with the plan sanction. Therefore, the contention of the owners, by placing reliance of the communication as well as the file notings of the Corporation, on the question of violation of the building plan sanction, is beyond the scope of this petition.

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Records are procured by the learned counsel

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for the corporation. Extracts of various file notings are also part of the writ petition papers. A reading would show that consistently the corporation have been

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issuing notices / intimations to the builder, with regard to the various violations. That violations have been noticed in the process of construction as well as in the induction of tenants. That the violations as pointed out by the corporation have not been rectified by the builder. Even when the violations were pointed out by the corporation they have not been attended to by the builder, but conditions regarding the violations have been imposed while granting the POC. However, it would not be necessary for this Court to record a finding on the building violation, since the same would have to be dealt with independently by the corporation. It is suffice to state that when the POC has been granted on conditions, it implies that the building is not in terms of the plan sanction, which is a mandatory requirement in terms of Bye-law 5.7.

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21.(a) Having held that the grant of the POC is without authority of law, consequences would follow. Therefore, learned counsels were granted substantial time in order to make their submissions with regard to the same. Time was granted to the builder at his request, to enable him to produce judgments of this Court on the present issue, which according to him stood covered. However, no judgments are produced. However the builder has filed a memo in the Court today, furnishing details with regard to the persons inducted in Towers - C and D. List-II shows that the builder is receiving a monthly rent of Rs.2,35,71,833/from them.

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(b) Having come to the conclusion that the grant

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of POC is erroneous, the question of the builder continuing to receive revenue, would be unacceptable. The material would show that some of the tenants were inducted prior to the grant of POC and some of them

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after the grant of POC. The persons who have been inducted prior to the grant of POC are unauthorized occupants and the builder has violated the Law in putting them in possession. Appropriate proceedings require to be initiated, if not already done, by the corporation against the builder as well as the tenants seeking recovery of the illegal rents received, their eviction or otherwise. Some of the tenants have been inducted after the grant of POC. Therefore, it cannot be said that the tenants who have been inducted after the grant of POC have been illegally inducted. It is only presently that this Court has held that the POC is illegal. These tenants have been inducted after the POC is issued. Therefore, so far as these persons are also concerned, as a consequence to this order the corporation would have to initiate appropriate proceedings against the builder as well as the tenants seeking their eviction or otherwise.

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on receiving such notices, they were challenged before the Karnataka Appellate Tribunal. Since the corporation asked them to withdraw the said cases, they have done so and consequently, compounding fee has been collected, etc. However, I’am of the considered view that the proceedings for their eviction or otherwise is to be dealt with by the corporation. Having held that the POC is unauthorized, necessarily, the occupants would be unauthorized occupants. Eviction should be in accordance with law. It is for the corporation to deal with it, by issuing fresh notices and or pursuing the old notices and it is for the builder / tenants to defend themselves in those proceedings. It is beyond the scope of these petitions, to consider eviction. So far as the eviction of these tenants are concerned, the corporation would have to initiate appropriate proceedings for the same, if not already done. Proceedings are also to be

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initiated against the builder for wrongful induction of the tenants as opposed to law

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(d) However, until such an action is completed, the tenants would necessarily continue to pay the rents and such rents would be receivable by the builder. Having held that the grant of the POC is erroneous, necessarily the builder cannot be allowed to make profit from the same. Therefore, until and unless proceedings for illegal induction and the consequences thereof follow, in my considered view, every such income that is received from the tenants so far as Towers C and D are concerned, cannot be enjoyed by the builder. It does not belong to him. It is an illegal income. It is an income out of violation of Law.

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(e) Merely, quashing the POC granted to the building would be an exercise in futility. As a consequence of quashing the POC, the logical

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consequences of such an order should follow. It is only then that the writ would be meaningful. Otherwise, it would be a futile writ. Therefore, as a consequence of quashing the POC, it is only just and necessary that the builder cannot be allowed to receive such an illegal income. Further, since the tenants are in possession of the premises, the rents that they are paying can be adjusted by the corporation, either towards the part payment of the penal fee, fines, etc. in the proceedings with regard to the violation of induction of persons in terms of bye-law 5.7 and other attendant provisions. It is only then that justice would be done and not otherwise.

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22.(a) Hence, I’am of the view that these amounts should be deposited with the respondentcorporation on a month to month basis. It is only then, that complete justice would be done. The payments being received by the builders in terms of the memo

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dated 01.10.2013, with reference to List-II in a sum of Rs.2,35,71,833/- shall be deposited by the builder in favour of the Commissioner, BBMP from this date onwards.

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(b) In turn, the Commissioner, BBMP shall deposit these amounts in a fixed deposit in any nationalized bank, that would accrue maximum interest. Such interest shall be further redeposited in a Fixed Deposit.

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Bye-law 5.6 is issued to the builder and only after completion of all litigations and disputes vis-à-vis the builder, owner and the corporation, with reference to the property in question, that the Commissioner, BBMP

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be permitted to deal with the amounts that he has received, till that date. It is needless to state that the Commissioner, BBMP, is at liberty to treat all such

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amounts received by him till that date along with interest, to be regarded as a part payment of penalty or otherwise deal with it in accordance with law, while considering the illegal induction of persons in violation of bye-law 5.7. He shall also keep in mind that this money is generated out of an unlawful induction of tenants. The question of returning any part of this money to the builder does not arise.

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(d) The persons inducted prior to the grant of

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POC are illegal occupants. All amounts received by the builder from them from the date of induction would have to be recovered by the Corporation by initiating appropriate proceedings against them. There is no question of the builder retaining these amounts. It is an illegal amount. It is received by the builder by violating the Law. Therefore, since the builder has already received these amounts, the Corporation may initiate

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proceedings for the recovery of these amounts in accordance with law.

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appearing for respondent no.6 in W.P.11522/2012 and respondent no.3 in W.P. No.739/2013 submits that he is the holder of an agreement of sale executed by the builder in his favour by relying on the statement of objections filed by him. That he has been lawfully inducted and hence the petition against him requires to be rejected. On hearing him, I’am of the considered view that his plea does not require to be considered in these petitions. These petitions are with reference to the validity or otherwise of the POC. So far as the legal right claimed by this respondent based on the agreement to sell is concerned, I’am of the considered view that it is alien to these writ petitions. It is needless to state that he would have to protect his legal rights in an

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appropriate forum and not in these petitions. Hence his plea to reject the writ petitions so far as he is concerned is unacceptable.

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24. For the aforesaid reasons:

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(i) W.P. No.11522/2012 is allowed. The Occupancy Certificate dated 29.10.2011, issued in Addl.DTP.JDTP/LP 324/00-01, by the respondent No.1-corporation, is quashed.

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(ii) the writ petitioner in W.P.No.739/2013 is directed to deposit the amounts as observed herein above at para-22(a).

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(iii) the respondent-commissioner to deposit the amounts, comply with the directions etc., as detailed in para-22(b), (c) and (d) hereinabove.

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(iv) W.P.No.739/2013 is accordingly disposed off. Rule issued and made absolute.

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Sd/JUDGE

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Bangalore Housing Development and Investments v. Bruhat Bangalore Mahanagara Palike

Case brief

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Bangalore Housing Development and Investments v. Bruhat Bangalore Mahanagara Palike

Case brief

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What the court decided

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