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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF FEBRUARY 2014
PRESENT
THE HON'BLE MR.JUSTICE S.ABDUL NAZEER
AND
THE HON'BLE MR.JUSTICE H.S. KEMPANNA
WRIT PETITION NO.7243/2012 (GM-RES)
BETWEEN:-
M/S. PARANJAPE SCHEMES
FLAT NO.1, MONALISA APARTMENTS
100 FT. ROAD, 6TH MAIN
II STAGE, INDIRANAGAR
BANGALORE - 560 038
BY ITS BRANCH MANAGER
MR. SHUKLENDU KATDARE.
... PETITIONER
(BY SRI. RAVI B. NAIK, SR. ADVOCATE FOR SMT.VIJETHA
R. NAIK. ADVOCATE)
AND:-
1. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
VIKASA SOUDHA
DR. AMBEDKAR VEEDHI
BANGALORE - 560 001.
REPT. BY ITS SECRETARY.
2. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
NARASIMHA RAJA SQUARE
BANGALORE - 560 002.
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3. THE JOINT COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
MAHADEVAPURA ZONE
BANGALORE - 560 048.
4. KARNATAKA LOKAYUKTA
M.S.BUILDING, BANGALORE
REPT. BY ITS REGISTRAR.
5. MR.C.J.SINGH
S/O. LATE ATAM SINGH KOCHAR
AGE: 71 YEARS
R/O. NO.6, E.C.C.ROAD
NERA DLIM & NEXT TO DEEN GARDENS
WHITE FIELD, BANGALORE - 560 066.
... RESPONDENTS
(BY SMT. S.SUSHEELA, AGA FOR R.1
SRI.B.V.SHANKARA NARAYANA RAO, ADV., FOR R.2 &
R.3,
SRI.GOWTHAMDEV C. ULLAL, ADV., FOR R.4
SRI. H.S. PRASHANTH, ADV., FOR R.5)
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
COMPLAINT DT. 2.1.11 LODGED BY THE R.5 BEFORE THE
R.4 VIDE ANNX-S AND QUASH THE REPORT DATED 7.7.11
ISSUED BY R.4 VIDE ANNX-T AND QUASH THE DO
LETTER DATED 23.7.11 ISSUED BY R.1 VIDE ANNX-V TO
THE WP AND ETC.,
THIS PETITION COMING ON FOR ORDERS THIS DAY,
S.ABDUL NAZEER J., MADE THE FOLLOWING:-
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ORDER
Though this matter listed for orders, by consent of the learned counsel for the parties, it is taken up for final hearing, heard and disposed of by this order.
2. In this case, the petitioner has sought for quashing of the complaint at Annexure-S dated 2.01.2011 lodged by the fifth respondent before the Karnataka Lokayukta - the fourth respondent herein and also the report of the Lokayukta in bearing No.COMPT./LOK/BCD-1/2011 dated 07.07.2011 at Annexure-T and for certain other reliefs.
3. The petitioner is a builder and a developer. It has entered into a partnership business with M/s.Niketan Shelters Private Limited on 15.9.2005 to do the business in Construction of Apartments, Commercial Complexes, Technology Park, Real Estate Development and allied business in the name of Paranjape Schemes, Bangalore. It is the case of the petitioner that the firm Niketan Shelters Pvt. Ltd., had 4 purchased the land measuring 4 acres 20 guntas in Sy.Nos.19/2, 148/2 and 147/2 situated at Pattandur Agrahara village, Krishnarajapuram Hobli, Bangalore East Taluk, has conceived a housing project named 'Athashri' dedicated to meet needs and aspirations of senior citizens. The housing project was to be put up in the aforesaid land. The petitioner had forwarded an application to the Mahadevapura City Municipal Council seeking licence to construct the housing project and the Municipal Council vide order at Annexure-B dated 08.08.2005 approved the plan. It is contended that pursuant to the approval of the plan by the C.M.C., Mahadevapura, the construction commenced and almost 75% of the work was completed. At that stage, it received a summons from High Court of Karnataka in Writ Petition No.936/2006 filed by the fifth respondent against the petitioner and others. In the writ petition, allegations have been made against the petitioner that the construction being put up is contrary to building bye-laws etc., and that the petitioner had not secured 5 layout plan. An interim order was passed in the said case on 01.03.2006.
4. It is further contended that the petitioner entered appearance in the writ petition through his counsel and filed an application seeking for vacation of the interim order. The High Court of Karnataka modified the interim order on 21.04.2006 to the effect that the petitioner can commence the work after obtaining the commencement certificate from the C.M.C., Mahadevapura in the prescribed form and before obtaining such commencement certificate, the petitioner shall not commence the work. The said order was challenged by the fifth respondent before the Hon'ble Supreme Court in SLP(Civil) No.8209/2006. The Hon'ble Supreme Court dismissed the said SLP on 11.05.2006. Pursuant to the order of the Division Bench dated 21.04.2006, the petitioner made an application before the C.M.C., Mahadevapura who after verification of all the records issued commencement certificate as per Annexure-E.
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5. It is contended that the Pollution Control Board issued notice to the petitioner on 30.06.2006 alleging that it had conducted spot inspection on 05.04.2006 and found that the construction was without Consent For Establishment (CFE) from the Board and Environment Clearance Certificate (ECC) from the Ministry of Environment and Forest. It is further alleged in the notice that the construction should not be proceeded with unless securing the CFE and ECC certificate from the Competent Authority. The petitioner sent a reply to the said notice dated 11.07.2006 stating that it was neither aware of the spot inspection alleged to have been done on 05.04.2006 nor was it issued with a notice on 10.4.2006. It is further contended that it is proceeding with the construction in terms of the interim order passed by this Court in Writ Petition No.963/2006.
6. The Pollution Control Board by order dated 10.07.2006 rejected the application seeking Consent for 7 Establishment (CFE). This order was challenged by the petitioner before the Karnataka State Appellate Authority at Bangalore under Water and Air Prevention and Control of Pollution Act in Appeal No.10/2006. In the said case the application filed by the fifth respondent for impleading was rejected. Thereafter, he filed a review petition before the Board. The review was allowed on 12.10.2007 and Consent for Establishment (CFE) was issued by the Pollution Control Board to the petitioner at Annexure - H. Against the said order, the fifth respondent filed further appeal in Appeal No.18/2007 before the Karnataka State Appellate Authority at Bangalore. The Appellate Authority by order at Annexure-J dated 20.02.2008 dismissed the appeal. The petitioner had also secured clearance from the Ministry for Environment and Forest at Annexure-K dated 27.12.2006. Challenge to the said order by the fifth respondent was rejected by the National Environment Appellate Authority in Appeal No.2/2007 on 07.08.2008.
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7. Fifth respondent filed W.P.No.4100/2008 challenging the order dated 20.02.2008 passed by the Karnataka State Appellate Authority dismissing Appeal No.18/2007. In the meantime, the Pollution Control Board filed a Private complaint in PCR No.849/2006 before the Metropolitan Magistrate Traffic Court- 1, Bangalore, alleging that the petitioner is proceeding with the construction without securing Consent For Establishment from the Pollution Control Board. The petitioner challenged the said complaint by filing W.P.No.18904/2006 seeking for quashing of PCR No.849/2006. In the meantime, the fifth respondent filed CCC No.231/2008 alleging that the petitioner had violated the order dated 01.04.2008 passed by this Court. The private complaint and the charge sheet referred to above were challenged by the petitioner in Crl.P.Nos.1604/2007 and 1605/2007. Criminal cases registered on the basis of the complaint of fifth respondent was quashed by order dated 1.12.2012. However, criminal case registered on the basis of the 9 complaint filed by the Pollution Control Board was rejected and the matter is pending before the Hon'ble Supreme Court.
8. Writ petitions filed by the fifth respondent in W.P.Nos.4100/2008 and 936/2006 and W.P.No.18904/2006 filed by the petitioner were heard together by the Division Bench of this Court including the contempt petition in C.C.C.No.231/2008. The Division Bench of this Court has framed several points for consideration. The Division Bench has dismissed the writ petitions filed by the fifth respondent herein Consequently, the contempt case was also dropped. Having regard to the order made in other writ petitions, W.P.No.18904/2006 filed by the petitioner herein was disposed of as unnecessary.
9. Feeling aggrieved by this order, fifth respondent filed SLP(Civil) Nos.6802/2010 and 6833/2010 before the Hon'ble Supreme Court. The Hon'ble Supreme Court by order dated 29.3.2010 10 dismissed the said appeals. However, the Hon'ble Supreme Court observed that if there are any statutory violations, the petitioner would be at liberty to pursue the matter with the appropriate authorities. The fifth respondent filed Review Petition No.1078/2010 seeking review of the said order. The Hon'ble Supreme Court dismissed the review petition on 21.7.2010. The fifth respondent filed yet another Review Petition(C) No.1079/2010 which was also dismissed by the Apex Court on 21.07.2010. The fifth respondent again filed Curative Petition No.9/2012 in Review Petition (civil) No.1079/2010. The Hon'ble Supreme Court has dismissed the said curative petition on 17.7.2012.
10. Thereafter, the petitioner filed a representation at Annexure-Q dated 17.8.2010 to the Joint Commissioner BBMP, Mahadevapura Zonal Office, Bangalore, pointing out certain statutory violations said to have been committed by the petitioner while constructing the building in question. The Assistant Director issued a show cause notice at Annexure - Q1 11 to the petitioner herein on the basis of the complaint of the fifth respondent and the fifth respondent submitted a reply as per Annexure-Q2 dated 1.9.2010 to the show cause notice. The Assistant Commissioner has rejected the complaint on the ground that the construction is in order.
11. The fifth respondent filed a complaint before the Karnataka Lokayukta as per Annexure-S dated 02.01.2011 seeking cancellation of the permission granted to the petitioner by order dated 3/4.12.2010 and prob into the accusations made by him against Joint Commissioner of BBMP, Mahadevapura Zone as well as the Assistant Director of Town Planning of the same office. The Hon'ble Lokayukta sent a report as per Annexure-T dated 07.07.2011 to the State Government. The directions contained in the said report is as under:-
"1. To direct the Commissioner, BBMP to withdraw the permission accorded (extended) for the construction of the Building Blocks in the said Area, without following the 12 Zoning Regulations and the Building Bye- laws, approved by the Government.
2. The Competent Authority shall take steps to implement this report within one month from the date of receipt of this report and shall intimate or cause to be intimate the action taken in this regard, as provided under Section 12(2) of the Karnataka Lokayukta Act 1984."
12. On the basis of this report, the State Government vide its communication at Annexure-V dated 23.7.2011 directed the Commissioner, BBMP, to take action to implement the said directions and to report back to the Lokayukta. On the basis of the said communication, the BBMP issued endorsement dated 16.9.2011 at Annexure-W wherein extension of time for completion of construction work has been withdrawn.
13. Respondent Nos.2 to 5 have filed their statement of objections.
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14. We have heard Sri.Ravi B. Naik, learned Senior Counsel appearing for the petitioner, Smt.S.Susheela, learned Additional Government Advocate appearing for respondent No.1, Sri.B.V.Shankara Narayana Rao, learned counsel appearing for respondent Nos.2 and 3, Sri.Gowthamdev. C.Ullal, learned counsel for respondent Nos.4 and Sri.H.S.Prashanth, learned counsel for respondent No.5.
15. Learned Senior Counsel appearing for the petitioner submits that the issue which has been raised by the petitioner in the complaint at Annexure-Q dated 17.8.2010 has already been adjudicated by the Division Bench of this Court in Writ Petition No.936/2006 and other connected matters, disposed of on 27.11.2009. He has drawn our attention to issue No.5 framed by the Division Bench in W.P.No.936/2006. This Court has considered in detail as to whether there is violation of zonal regulations and building Bye-laws while putting up the construction in question in the aforesaid land. The Division Bench has categorically held that 14 construction of the building by the petitioner is neither in violation of zonal regulations nor building bye-laws. The Hon'ble Supreme Court has confirmed the order of the Division Bench and has dismissed the SLP. The review petitions as also the curative petition have also been dismissed. On the basis of the liberty reserved by the Hon'ble Supreme Court in SLP (C) No.6833/2010 dated 29.03.2010 once again he has filed complaint at Annexure-Q before the Joint Commissioner, BBMP. The Joint Commissioner after hearing the parties has rejected the complaint by order at Annexure-R dated 3/4.12.2010. This order has attained finality. Thereafter, the petitioner has filed complaint before the Hon'ble Lokayukta and the Lokayukta has issued directions in its order dated 07.07.2011. The directions are contrary to the order of the Division Bench which has been affirmed by the Hon'ble Supreme Court. It is submitted that the Lokayukta is not justified in directing the Government to take action against the 15 petitioner having regard to the order of the Division Bench.
16. On the other hand, learned counsel appearing for the 5th respondents has sought to justify the impugned order. It is argued that the petitioner has filed writ petition before this Court in W.P.No.37407/2011 challenging the endorsement issued by the Corporation at annexure-W dated 16.09.2011 without challenging the order of the Lokayukta at Annexure- T. Thus, the writ petition is barred under Order 2 Rule 2 of the Code of Civil Procedure. It is further submitted that the Hon'ble Supreme Court has reserved liberty to the fifth respondent to pursue the matter with the appropriate authorities if there are any other statutory violations. That's how the petitioner has made the complaint before the Lokayukta.
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17. We have carefully considered the arguments of the learned counsel made at the bar and perused the materials placed on record.
18. The fifth respondent had filed a Writ Petition No.936/2006 against the petitioner, the State Government and its instrumentalities for various reliefs. The contentions urged against the petitioner was that the plan for construction of the building was issued in violation of zonal regulations and bye-laws applicable to the plot in question. This Court while framing the points for consideration has framed the following point on the basis of the rival contentions of the parties:-
"5.Whether the construction of the building is in violation of the Zonal Regularizations and Building Bye laws applicable to the plot in question.
19. The above point has been answered by at paragraph 52 as under:-
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"Further, construction of the building upon the plot in question by the Construction Co., is not in violation of Zonal Regulation and Building Bye laws applicable to the property in question, for the reason that under the Zoning Regulation the land used is for residential purpose and comes within the residential zone, is not a contested fact, which is evidenced from the conversion order, passed by the Special Deputy Commissioner under Section 95(3) of the KLR Act and the said order is not challenged either by the petitioner or any other person and further construction of the building in the plot to provide apartments to the senior citizens as per the sanctioned plan by the Commissioner of city Municipality, Mahadevapura and further floor area, covered area, height, etc., as provided in item II (3) to the zoning of land use and Regulations of B.D.A. is in accordance with Regulations and further sanction of the plan by the CMC Mahadevapura as it is the local self Authority as per the Government order dated 07.03.1996. Hence the construction of the building by the Construction Co., is neither in 18 violation of zonal Regulations or Building Bye Laws applicable to the property in question".
20. It is clear that this Court has adverted to the rival contentions of the parties and has categorically held that the construction by the petitioner is neither in violation of the zonal regulations nor building bye-laws applicable to the property in question. As stated above, the SLP filed by the fifth respondent challenging the said order has been dismissed by the Hon'ble Supreme Court on 29.3.2010, subject to the observations as under:-
"We are not inclined to interfere with the impugned order(s). Accordingly, the Special Leave Petitions are dismissed. However, if there are any statutory violations, the petitioner would be at liberty to pursue the matter with the appropriate authorities".
21. It is admitted position that the review petitions filed by the fifth respondent were dismissed by the Apex Court, so also the curative petition. Thus, the order of the Division Bench in W.P.No.936/2006 has 19 attained finality. On the basis of the liberty reserved to the fifth respondent to pursue the matter if there are any statutory provisions, the fifth respondent filed the complaint before the Joint Commissioner as per Annexure-Q dated 17.8.2010. A reading of this complaint would clearly disclose that he has sought for adjudication of the matter again which has been concluded by the Division Bench and upheld by the Supreme Court.
22. It is no doubt true that he has raised certain other issues in the complaint dated 17.8.2010. The Joint Commissioner Town Planning, Mahadevapura, who is the competent authority to decide the issue has issued show cause notice as per Annexure-Q1 dated 23.8.2010 to the petitioner and has passed the order as per Annexure-R dated 3/4.12.2010 rejecting the complaint and extending one year time to the petitioner to complete the construction. This order passed by the Assistant Director Town Planning BBMP, Mahadevapura Bangalore, has not been challenged by the fifth 20 respondent. Thus, this order has also become final and binding between the parties.
23. Thereafter, the petitioner filed a complaint before the Hon'ble Lokayukta as per Annexure-S dated 2.01.2011 and on the basis of this complaint, the impugned order at Annexure-T dated 07.07.2011 has been passed.
24. Having perused the entire materials on record, we are of the view that insofar as the violation of zonal regulations are concerned, the matter has been concluded by the Division Bench and upheld by the Hon'ble Supreme Court. Even in respect of certain other allegations relating to the statutory violations said to have been committed by the petitioner, the Joint Commissioner has held an enquiry and passed an order at Annexure-R which has also not been challenged. Therefore, the question of once again directing the Competent Authority to withdraw the permission extended to the petitioner for construction of building 21 blocks does not arise. We are of the view that the order at Annexure-T dated 07.07.2011 cannot be sustained.
25. That brings us to the second question as to the maintainability of the writ petition under Order 2 Rule 2 of CPC. It is no doubt true that the petitioner has filed W.P.No37407/2011 challenging the order at Annexure - W. Annexure-W was passed by the Joint Commissioner BBMP, Mahadevapura, whereby earlier extension of time granted to the petitioner at Annexure- R was withdrawn. Therefore, the cause of action for the said writ petition was issuance of Annexure-W. In the present petition the petitioner has questioned the validity of the direction of the Hon'ble Lokayukta at Annexure-T. The cause of action for this writ petition is different from the one pleaded in the other writ petitions. It is necessary to state here that when the High Court exercises extraordinary jurisdiction under Article 226 of the Constitution, it aims at securing a very speedy and efficacious remedy to a person, whose legal or constitutional right has been infringed. If all the 22 elaborate and technical rules laid down in Civil P.C. are to be applied to writ proceedings the very object and purpose is likely to be defeated.
26. Taking into consideration, the explanation added to Section 141 of the CPC, the Hon'ble Supreme Court in Puran Singh and Others Vs. State of Punjab and others' - (AIR 1996 Sc 1092) has held as under:-
"When the High Court exercises extraordinary jurisdiction under Article 226 of the Constitution, it aims at securing a very speedy and efficacious remedy to a person, whose legal or Constitutional right has been infringed. If all the elaborate and technical ruled laid down in Civil P.C. are to be applied to writ proceedings the very object and purpose is likely to be defeated. In view of the conflicting opinions expressed by the different Courts, the Parliament by the aforesaid amending Act (1976) introduced the explanation saying that in Section 141 of the Code the expression "proceedings" does not include "any proceedings under Article 23 226 of the Constitution" and statutorily recognized the views expressed by some of the Courts that writ proceedings under Article 226 of the Constitution shall not be deemed to be proceedings within the meaning of Section 141 of the Code. After the introduction of the explanation to Section 141 of the Code, it can be said that when Section 141 provides that the procedure prescribed in the Code in regard to suits shall be followed, as far as it can be made applicable "in all proceedings in any Court of Civil Jurisdiction" it shall not include a proceeding under Article 226 of the Constitution. In this background, it cannot be held that the provisions contained in Order 22 of the Code are applicable per se to writ proceedings."
27. Therefore, the contention of the learned counsel appearing for respondent No.5 that the writ petition is barred under Order 2 Rule 2 of CPC is rejected.
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28. In the light of the aforesaid discussion, we pass the following ORDER
(i) Writ petition is allowed.
(ii) The complaint lodged by the 5th respondent at Annexure-S dated 2.1.2011, the report of the 4th respondent at Annexure-T dated 7.7.2011, the D.O. letter at Annexure-V dated 23.7.2011 issued by the first respondent and the letter at Annexure-W dated 16.09.2011 issued by the third respondent are hereby quashed.
(iii) In view of the disposal of the writ petition as above, I.A.No.I/2014 does not survive for consideration. It is accordingly disposed of. No costs.
SD/-
JUDGE SD/-
JUDGE SA*