JUDGMENT K. Sreedhar Rao, J.

1. The appellant-M/s. Industrial Credit and Development Syndicate Limited (I.C.D.S.) took up construction of high-rise building popularly called "Manipal Centre" in the year 1986. One of the writ petitioner's Mrs. Ameena Moosa objected to the construction by filing a suit in O.S. No. 10481 of 1987 on the file of City Civil Court, Bangalore seeking injunction against the appellant from construction of the building on the ground that the construction is damaging her compound wall. The Civil Court granted ad interim ex parte injunction. After hearing the I.C.D.S., the interim order was not extended. Mrs. Ameena Moosa discontinued her pursuit before the Civil Court and filed the writ petition along with six others in W.P. Nos. 25142 to 25148 of 1990.

2. Preceding the above writ petitions one Rajesh Bhandia filed W.P No. 12681 of 1990 alleging construction of the building "Manipal Centre" in violation of the building bye-laws and sanctioned plan and sought demolition of the building inter alia sought mandamus against the Corporation and other statutory authorities to take appropriate action in accordance with law.

3. Mrs. Indu Bhandia and Mrs. Sakina filed W.P. Nos. 5398 and 5399 of 1992 seeking mandamus against the Corporation to furnish certified copy of the sanctioned plan of "Manipal Centre".

4. Mrs. Ameena Moosa apart from pursuing the remedy before City Civil Court and before this Court also moved Pollution Control Board alleging that the Diesel Generation Set (D.G. Set) located immediately by the side of her building is creating pollution and nuisance. In that regard the Pollution Control Authorities passed some orders. The I.C.D.S. filed W.P. No. 3162 of 1992 challenging the constitutional validity of Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981. Further sought direction against the authorities for reconsideration of its applications.

5. Mrs. Ameena Moosa had submitted representations to the Lokayukta alleging encroachment of the conservancy lane by the I.C.D.S. in the process of construction, the Lokayukta made an enquiry submitted report to the Government. In that behalf the Government issued certain directions. The I.C.D.S. aggrieved by the directions, filed W.P. Nos. 34208 to 34210 of 1995 for quashing the directions on the ground that the enquiry conducted by the Lokayukta and the directions issued by the Government are without reference and opportunity to the I.C.D.S., hence seek quashing of the directions.

6. The writ petitioners who commonly opposed the construction of the "Manipal Centre" in the course of this order would be adverted to as petitioners.

7. The salient objections of the petitioners in the writ petitions opposing construction of "Manipal Centre" are listed hereunder:

(1) The area is a residential zone - the construction of a high-rise commercial complex is contrary to the zonal regulations and without necessary permission for the change in land use - grant of licence for construction is bad in law;

(2) The area earmarked for children's park is encroached by the "Manipal Centre";

(3) The location of D.G. Set causes noise pollution - the I.C.D.S. despite the directions issued by the Pollution Control Board has not shifted the location of D.G. Set, as per its undertaking;

(4) The construction of Manipal Centre is contrary to building bye-laws. There is gross violation of breach of set back regulations. The constructions are made in violation of the sanctioned plan. The requisite parking place is not provided as per the building bye-laws. The fire safety measures have not been complied. The construction of basement floor is in violation of building bye-laws and affects the privacy of the petitioners.

8. Per contra, the I.C.D.S. submitted that the petitioner in W.P. No. 12681 of 1990 is set up by Mrs. Ameena Moosa. The documentary material filed along with the writ petition pertains to the correspondence of Mrs. Ameena Moosa with several statutory authorities. The said correspondence nowhere makes reference to Rajesh Bhandia. It is stated that permission and licence is granted to construct two basement + ground floor + three mezzanine floor + nine upper floors. The construction is in accordance with the bye-laws and the sanctioned plan. After completion of construction, at the time of grant of occupancy certificate, the deviations in constructions have been compounded by the Corporation. The necessary composition fee is remitted. The allegation that the car parking space provided is inadequate and not in accordance with the bye-laws is stoutly denied. The allegation that the construction and use of basements is in contravention of building bye-laws are stoutly denied. The Fire Force Department inspected the building on 26-11-1990 and has certified that the construction meets all the requirements of Fire Safety Measures and in view of such certification, the Corporation has granted the occupancy certificate.

9. The I.C.D.S. contends that wide publicity of the project was given in the newspapers offering sale of flats and tenements to the public. The construction activity was spread over from 1987 to 1990. Rajesh Bhandia, his wife Mrs. Indu Bhandia wife of the petitioner entered into an agreement to purchase the flat - entrusted the construction of his tenement to I.C.D.S. Thus submit that the petitioners, Rajesh Bhandia and his wife at no point of time during the construction and prior to the writ petition had any opposition for the construction of the "Manipal Centre". Mrs. Ameena Moosa also did not espouse the public cause in her suit and in her representations to the several authorities before filing the writ petition. The objections raised by Mrs. Ameena Moosa reflected only the violation of her individual private rights.

10. It is said that the Government and the BDA granted permission for change of land use under the Karnataka Town and Country Planning Act, 1961 in the year 1983. At the time of permitting the change of land use a stipulation was made that some of the area should be compulsorily leased in favour of the Government and statutory authorities. Later on, the said condition has been relaxed. The Corporation after being fully satisfied with the orders of the Government and BDA granted licence in the year 1986. The construction is immediately commenced and completed in the year 1990 which is just before filing of the writ petitions.

11. The I.C.D.S. submits that it has no exclusive and absolute rights over the "Manipal Centre", the substantial portion of the tenements have been alienated in favour of third parties. The persons who have secured proprietary interest are not made parties to the proceedings, hence submits that the reliefs sought for in the writ petitions cannot be granted and that writ petitions suffer from delay and laches.

12. The Bangalore City Corporation (now called Bangalore Mahanagar Palike - in short, 'B.M.P.') has denied the allegation that there is contravention of bye-laws in granting licence. The allegation that constructions put up are in violation of licence is denied. The allegations elating to encroachment of the park and the road for the purpose of construction is denied. The allegation that the set backs and the parking space is not provided is stoutly denied, the allegation that the fire safety measure have not been taken is stoutly denied. It is said that there were some deviations noticed after the construction. The deviations have been compounded in accordance with law. Thus submits thai; the building "Manipal Centre" is in accordance with the bye-laws and the sanctioned plan.

13. The Karnataka State Pollution Control Board has contended that pursuant to the complaint regarding the diesel generator set, the enquiry is conducted, directions are issued to I.C.D.S. for shifting the location far away from the residential premises accordingly the directions have been complied. The allegation against the constitutional validity of Section 31-A of the Air (Prevention and Control of Pollution) Act of 1981 are said to be untenable.

14. The learned Single Judge recorded the following findings on the points formulated for consideration in the writ petitions:

(a) In regard to point No. 1, the contention that the building of M/s. Ameena Moosa an other petitioners are damaged in the course of construction is held to be a disputed question of fact which cannot be gone into and decided in a writ petition. Hence advised the petitioners to work out the remedy in Civil Court;

(b) In regard to point No. 2, that the high electrical installations are dangerously located affecting the safety of the residential buildings is negatived. It is held that the installations are situate far away from the residential buildings on the southern corner;

(c) In respect of point Nos. 3 and 6 that the I.C.D.S. has encroached the children park and conservancy lane is negatived holding that petitioners have failed to prove the fact of their existence and their encroachment;

(d) With regard to point No. 7 that the I.C.D.S. has illegally raised the ground level of the site to have more number of floors is held to be a serious allegation for dearth of material, finding is not given. However, the B.M.P. is advised to look into the matter;

(e) With regard to point No. 9 regarding diesel generation set it is held that the D.G. sets are relocated as per the directions. The pollution and nuisance alleged is abated;

(f) The point No. 10 regarding constitutional validity of Section 31-A of the Act - it is upheld;

(g) With regard to point No. 13, the allegation that the change of land use has been done without compliance of law is rejected;

(h) With regard to point No. 15, the objections relating to delay and laches and non-joinder of purchasers raised by I.C.D.S. is rejected and it is held that the petitions are maintainable;

(i) The learned Single Judge records positive finding in respect of point Nos. 4, 8 and 14, that the constructions is not in accordance with the bye-laws and sanctioned plan. The parking space provided is not in conformity with the bye-laws.

15. The learned Single Judge directed the B.M.P. to get the building "Manipal Centre" inspected to note the deviations observed above and to initiate necessary action in accordance with law.

16. All the parties to the writ petition have filed the above writ appeals besides the "Manipal Centre" Apartments Owners' Association who is not a party to writ petition has also filed the writ appeals.

17. The I.C.D.S. has produced a list of names of purchasers and dates of purchase in respect of 235 tenements to show that the sales are effected much earlier to the writ petitions.

18. The B.M.P. pursuant to the directions in the final order of the writ petitions got the building "Manipal Centre" inspected by the Chief Engineer and a report is submitted dated 27-6-1998.

19. In the course of hearing of the writ appeals none of the Counsel brought to the notice of the Court about the inspection report dated 26-7-1998. This Court made an order dated 26-2-2002 directing the Commissioner of the B.M.P. to inspect the building and to give report about the status of the construction of the buildings vis-a-vis, the building bye-laws and the sanctioned plan. The Commissioner held inspection and submitted a report dated 20-3-2002 and after hearing the appellants and the respondents, this Court by way of interim order dated 3-4-2002 directed the Commissioner to initiate necessary action in respect of the infractions and violations noted in the report. The appellants aggrieved by the order preferred a petition for special leave to appeal in (Civil) Nos. 8672 to 8696 of 2002. The Supreme Court is pleased to issue the following directions:

"The matters are adjourned by eight weeks. Learned Counsel on either side submits that they will make a request to the High Court to have the writ appeal itself heard and disposed of, in the meantime. As and when such a request is made, we would request the High Court also to consider the same to have it disposed of, to give a quietus to the matter pending in this S.L.P.".

20. The Supreme Court further directed as per order dated 3-1-2005 which it as follows.-

"... The learned Chief Justice of the High Court would consider whether it would be proper to constitute the bench which was hearing the matter for disposal".

21. The learned Senior Presiding Judge Sri G.C. Bharuka, J., had in the meanwhile retired. Hence, this Bench is constituted by the Hon'ble Chief Justice in deference to the orders of the Supreme Court dated 3-1-2005.

22. The learned Senior Counsel Sri K. Subbarao appearing for the petitioners who oppose the construction of "Manipal Centre" strenuously argued that the order of this Court dated 3-4-2002 is a final order in itself and does not admit any further scrutiny or arguments. The direction issued to the B.M.P. to take appropriate action against the contraventions and deviations found in the report dated 20-3-2002 is in accordance with law. In the said order, the objections with regard to delay and laches is considered and rejected. The order has attained finality.

23. After careful consideration of the order of the Supreme Court dated 4-8-2003, we are of the opinion that the scope and powers of the Bench to hear the appeals on merits for final disposal is not curtailed to exclude the reconsideration of the order dated 3-4-2002. Hence the said impugned order is to be considered only as an interlocutory order subject to the final result of the writ appeals.

24. The first Commissioner's report records that there is no set back area of 16 Meters all round the building. At about 7 of the comers of the building, the set back area is less than 16 meters. The user of basement floor in A and B blocks is shown as under:

(a) 2 Nos. of Electrical Equipments Room; (b) 3 Nos. of Offices; (c) 4 Nos. of vacant Room; (d) 1 Electrical room facing towards North; (e) 6 Lift Rooms; (f) 2 Staircase Rooms; (g) 3 Nos. of shops; (h) 5 Nos. of vacant room with Air-conditioned.

In 'B' Block the basement is used for the following uses:

(a) Facing towards South - 6 lift rooms; (b) 2 Nos. of Staircase room; (c) 11 vacant rooms North; (d) 11 Nos. of vacant room facing South; (e) 1 No. of Office Room; (f) 2 Nos. of Shops with Air-conditioned.

25. The basement floor of the hotel block is used for A.C. Plant machineries, laundry, kitchen block, computer room, security offices. The basement floor is extended upto the edge of the eastern side and height of the basement floor is said to be varying because of the fact that the natural ground level of the building is uneven, steeply sloping towards eastern side. It is for that reason, the roof level of the basement floor accords with the first floor of the adjacent buildings on the North and Eastern side of "Manipal Centre".

26. The second Commissioner report records the following observations:

(1) The set back of the surface area is in accordance with the bye-law but the basement floor extends beyond the building plinth of the surface and extends well-beyond. Hence, opines that there is violation of the set back regulations;

(2) The total extent of the site is 1998.84 sq. mtrs. The percentage of the plot coverage area is 25.698% as against 25% permissible area as per bye-law 5.6.1. The violation is said to be below 5% and compoundable. So also the violation of the floor area ratio is less than 5% and compoundable;

(3) The height of the basement floor is not uniform and is in excess of the maximum height prescribed under the bye-law;

(4) The number of floors permitted is 1+9. The 3 mezzanine floors in the building do not accord with the floor area ratio and the total coverage area of the mezzanine floor is more than one-third of the floor area. The mezzanine floor of the hotel block has independent access from the corridors. As such they cannot be termed as mezzanine floors as per the building bye-laws 2.28. Thus records that the bye-laws are violated in respect of the mezzanine floor;

(5) The "Manipal Centre" is a multi-purpose complex consisting shops, restaurant, office buildings, educational buildings and lodging establishment. The varying standards are prescribed for car parking for different types of user. The Commissioner aggregating the minimum prescribed space in respect of each trade and activity has calculated the parking space area to be provided and comes to the conclusion that the building required parking space for 286 cars whereas the parking space available is only for 134 cars.

The Commissioner has recorded the nature of the use of the basement floors in the following manner.-

"20. Usage of Basement floors.-The current uses of the basement floors are as follows.-

(a) North Block.-Commercial offices, shops, godowns, stores and other uses for utilities and services of the building.

(b) South Block.-Commercial offices, shops, restaurant, godowns, stores and other uses for utilities and services of the building.

(c) Hotel Block.-Stores and other uses for utilities and services of the building such as laundry".

27. The Commissioner finds that as per bye-law 21.1(a) the basement cannot be used for shops, restaurant, godown, office for commercial purposes if not air-conditioned.

28. The petitioners opposing the construction have filed objections to the Commissioner's report stating that the measurements recorded in respect of set backs is incorrect. The minimum frontage of the building shall be 24 meters and not 8 meters as stated by the petitioner as per the building bye-laws. The set backs to be provided in accordance with the National Building Code. It is alleged that the Commissioner did not give any particulars regarding the surrender of land on the front side by the I.C.D.S. to increase the road width of the Dickenson Road. There is no mention about the conservancy lane between the property of the respondent and the I.C.D.S. in the report. The height of the building should be in conformity with the bye-law 15.

29. The I.C.D.S. has filed objections to the second Commissioner's report submitting that the Commissioner has measured the building in haste and on Sunday when most of the shops were closed. The total extent of the floor area was not measured. The I.C.D.S. after construction has sold the substantial portion of the building to several persons. The purchasers have on. their own put up wooden structures on the mezzanine floor. The Commissioner has committed error in interpreting the bye-laws relating to the plinth, use of the basement floor, the parking area and the total number of floors of the building. The Commissioner has not submitted the report in accordance with law and has buckled under the threats of Ms. Ameena Moosa.

30. The I.C.D.S. further filed an application for summoning the Commissioner for the purpose of cross-examination. The relief of summoning the Commissioner for cross-examination is ill conceived in the writ proceedings.

31. The petitioners who oppose the construction confined their arguments with reference to infractions noted in both the Commissioner's reports to prove their point.

32. There are glaring inconsistencies in the first and the second report. The inspecting authority in the first report essentially kept in view the observations of the learned Single Judge that the minimum set back space shall be 16 meters all round the building in view of the National Building Code (N.B.C.). The view taken by the learned Single Judge that the standards set in N.B.C. will apply is incorrect. The N.B.C. is only a technical guideline and cannot prevail over bye-laws. Unless the standards prescribed in the N.B.C. is assimilated and adopted in the bye-laws, they do not get statutory sanction.

33. The observation of both the Commissioners that the basement extends beyond the surface plinth, therefore the set backs regulations are deemed to be violated appears to be an incorrect interpretation. The building bye-laws 1983 do not regulate the limit of the basement area. The amended bye-law 18.4 of 2003 now prescribes that "no part of the basement shall extend beyond the minimum set backs prescribed to the building within the plot". The corresponding bye-law 21 of 1983 bye-laws do not prescribe any such limitation. The sanctioned plan is granted in accordance with bye-laws 1983 and the building is constructed before coming into effect the building bye-laws 2003.

34. The purpose for which the basement could be used is dealt in bye-Hw 21 which permits storage of the household and other goods except inflammables, dark room, strong room, bank cellar, air-condition equipment, parking place, garages, stock rooms of libraries and office of commercial purpose provided if it is air-conditioned. The bye-law positively prohibits the use of basement for residence or classrooms, kitchen, bathroom and lavatory. In contrast the bye-laws 2003 permit use of basement only for parking of vehicles, locating machineries for the utility of the building, strong room in case of bank except the one permitted the basement cannot be used for any other purpose. The bye-law 21 makes express prohibition of use of basement for residence, classrooms, kitchen, bathroom and lavatory. The bye-law conditionally permits use for office of commercial purpose. The use of basement for shop is not positively prohibited. The nature of activity for a shop is by and large analogous to the office of a commercial purpose. Therefore in stricto sense the bye-law 21 does not prohibit use of basement for commercial purpose.

35. The first Commissioner's report does not point out infractions with regard to parking space and the mezzanine floors. The B.M.P. has taken categorical stand in its pleading that there is no infraction of bye-law and sanctioned plan with regard to parking space. The sanctioned plan insists parking space for 230 vehicles. In the second report, the Commissioner has excluded 4.5 meters of the ground floor insisted for the Fire Tender all round the building (as per bye-law 83, table 4(b), note 6) while calculating parking place. The I.C.D.S. has stoutly objected to the correctness of the measurement of the Commissioner's report. The "Manipal Centre" is a multi utility building with trade, commercial and educational activities. With reference to the area occupied by each activity vis-a-vis the minimum parking space insisted in the bye-law is to be worked out. The facts relating to these aspects are contentious. That apart, the matter involves the interpretation of bye-law 1983 relating to the minimum parking space. When the facts are in serious dispute, it is not possible to adjudicate the same in writ proceedings.

36. With regard to height of basement, the first Commissioner's report records that on account of natural sloping on the eastern side, there is a variation in the height of the basement at different levels. This fact however is not rioted in the second report.

37. With regard to number of floors, height of the building and the status of mezzanine floor, the first Commissioner's report does not refer to any of the infractions. In the second report, the Commissioner holds that the floor area of the mezzanine is more than one-third and that mezzanine floors have independent access through corridors, therefore they cannot be treated as mezzanine floors. Bye-law 2.28 defines "mezzanine floor": a mezzanine floor is an intermediate floor between two floors above ground level accessible only from the lower floor. The area of the mezzanine is restricted to one-third of the floor area of that floor. The Fire Force Department for according No Objection Certificate for sanction to the building plan stipulated certain conditions with regard to the staircase of all the floors as a safety measure to prevent decongestion in times of emergency. The B.M.P. has consciously accorded sanction with regard to the mezzanine floors and its access. After construction, the Fire Force Department has inspected and certified the correctness of the constructions. The B.M.P. while according occupancy certificate has compounded the deviations in respect of the hotel block and basement extensions including the. mezzanine floors. Had the Commissioner taken the signatures of the parties or their representatives to acknowledge the correctness of the measurements noted in the worksheet prepared at the spot, the second Commissioner's report could have gained greater acceptability. In the absence of such procedure, the measurements noted by the Commissioner in the second report remains to be a contentious fact.

38. The decisions of the Supreme Court in Dehri Rohtas Light Railway Company Limited v District Board, Shahabad and Ors., and Dr. Kashinath G. Jalmi and Anr. v Speaker and Ors., ; Bonbehari v Nimbkar and Ors. v. State of Maharashtra and Ors., AIR 1990 Bom. 261 and Pursholtam Lal and Ors. v. Union of India and Anr., are referred to while dilating the arguments against the grounds of delay and latches urged by the I.C.D.S. and its companions. It is argued that the petitioners have all through campaigning against the construction, submitted several complaints to the concerned authorities and initiated the legal action. The occupancy certificate is issued after filing of the writ, petition; therefore the ground of delay and latches alleged is untenable.

39. With reference to non-joinder of purchasers, it is argued that the purchasers have an opportunity to represent their case in the contemplated enquiry to be conducted by B.M.P. Even otherwise, the purchasers have filed the appeals now, the irregularity if any is fully cured and they have been properly heard in the matter.

40. The learned Counsel placing reliance upon the Commissioner's report dated 27-6-1998 and latest report argued that prima facie there are blatant and glaring violations relating to set back, mezzanine floor, height of building, parking place misuse of basement floor. The violations evidently affect the public safety. The decision of the Supreme Court in V.M. Kurian v. State of Kerala and Ors., is relied on wherein it is held that in the case of grant of permission for construction for high-rise building without compliance of technical clearance is a serious lapse. Where the public safety is involved, the lapses cannot be condoned. In this case, it is argued that the infractions are similar to one found in V.M. Kurian's case, therefore argued that the stern action should be taken for getting the constrictions in place in accordance with law.

41. Sri Udaya Holla on the proposition of law relating to delay in filing the PIL relied on the decision in R and M Trust v. Koramangala. Residents Vigilance Group, Bangalore and Ors., wherein, it is held that if substantial portion of the building was complete and where third party's interests are created, the delay in such cases is held to be fatal. The learned Counsel referred to host of other decisions of Supreme Court and this Court to bring home the point that delay in filing the petition is fatal, the fact situations in the said decisions do not pertain to the building constructions, however by analogy it is argued that delay in any kind of situation formidably affects the interests of the petitioners adversely to seek the relief.

42. The facts evidently disclose that even before the construction was complete, the substantial portion of the tenements have been sold out to hundreds of persons obviously creating third party's interest even before filing of the writ petitions. The initial blitz of the petitioners opposing the construction was confined to violation of set back regulations, damage to their property as a result of the construction activity and the pollution effects. In respect of the said aspects, it was not necessary for the petitioners to have waited for over a period of three years till the construction is complete to initiate legal action. The decision of the Supreme Court in R and M Trust's case, squarely applies to the facts on hand. We are of the opinion that the writ petitions of the petitioners opposing the constructions seriously suffer from laches, delay and non-joinder of necessary parties.

43. Accordingly, the appeals in W.A. No. 6430 of 1997 and W.A. Nos. 349 and 350 of 1998, W.A. Nos. 643.1 to 6437 of 1997, the W.P. No. 9994 of 1997 filed by Ms. Ameena Moosa and her companions are dismissed. The W.A. No. 6386 of 1997, W.A. No. 6387 of 1997 and W.A. No. 689 of 1998, W.A. Nos. 6388 of 1997 and 690 to 695 of 1998 filed by the I.C.D.S. are allowed. W.A. Nos. 1928 to 1930 of 1998 filed by Manipal Centre Apartments Owners' Association are allowed.

44. The Karnataka State Pollution Board has filed W.A. No. 6148 of 1998 for setting aside the finding of the learned Single Judge regarding point No. 3. It is contended that the order of the appellant dated 11-8-1997 noticed by the learned Single Judge pertains only to Central Park Hotel. The said order does not permit D.G. sets with a capacity of 180 kv and no consent is given in respect of the said installations. The factual contention if true, would not take away the jurisdiction of the appellant to initiate action in accordance with law. Accordingly W.A. No. 6148 of 1998 is disposed of. In all the cases, the parties are directed to bear their respective costs.