Bopanna, J.—Issue rule in W.P.No. 8892 of 1987.

Bopanna, J.

These two Writ Petitions are disposed of by a common order since certain common questions arise for consideration in these petitions under the provisions of the City of Bangalore Improvement Act, 1945 (hereinafter referred to as the CITB Act), the Bangalore Development Authority Act, 1976 (hereinafter referred to as the BDA Act), the Allotment of Sites Rules framed under the CITB Act and the Allotment of Sites Rules, 1982 framed under the B.D.A. Act.

2. The petitioners in both the Writ Petitions purchased certain sites which had been allotted to them earlier by the City Improvement Trust Board/Bangalore Development Authority and in terms of the orders of allotment and the stipulations imposed in the agreements that they had entered into with the respective authority they have put up residential houses in those sites and have been residing either as owners of those premises in question or rented out tenants.

3. In W.P.No. 8892/87 the petitioner is a retired District Judge and is residing in the premises in question as the owner. In W. P.No. 7599/87 the petitioners are retired and serving officials. All these petitioners are owners of the residential premises constructed by them on the sites mentioned in the cause title against their names. They have filed this Writ Petition being concerned with the proliferation of many multi-storeyed buildings in the H.A.L. II Stage Layout Scheme framed by the City Improvement Trust Board (hereinafter referred to as the Trust Board) in the year 1972. It is common ground that the sites on which the premises were built by them were allotted to them by the Trust Board under the CITB Act. The petitioner in W.P.No. 8892/87 was allotted a site bearing No. 471 under the site allotment rules framed under the CITB Act.

4. The case of the petitioner in W.P.No. 8892/87 is that the residential colony situated in the 1st Stage, Indiranagar, Bangalore, was formed by the CITB, that is, the predecessor-in-title of the BDA and the sites in that area were allotted by the CITB to various persons. The site bearing No. 471 was allotted to the petitioner and site Nos.469 and 470 were purely suites meant, for a residential purpose and were originally allotted to one Vijayalakshmi. Site No. 470 was purchased by her through regular allotment. This Vijayalakshmi did not put up any construction on those sites. But sometime in the year 1986 she conveyed the sites in favour of respondent-5-Sri Prakash K. Premachandani. The registered Sale Deed dated 17-2-1986 discloses that Vijayalakshmi had acquired the sites from the BDA on 26-9-1982; that she got the katha transferred in her name in the records of the Bangalore City Corporation: that she was in enjoyment of the schedule property as its owner and that she had offered to sell that property to respondent-5 for a consideration of Rs. 3,40,000/- and accordingly she had sold the site to respondent-5 subject to the usual covenants that are generally found in the sale deeds in respect of immovable properties. Likewise, she executed a Sale Deed on 17-2-1986 in favour of the wife of respondent-5 in respect of site bearing No. 469 for a total consideration of Rs. 2,10,000/- subject to the usual covenants generally incorporated in the transfers of immovable properties. After obtaining the absolute ownership of these two sites, respondent-4 entered into an agreement of partnership dated 29-9-1986 with his wife for constituting a partnership business known as "Peekay Constructions" with the object of carrying on the business of constructing flats/apartments for the purpose of either resale or for more profitable use. The capital of the firm was as per the Books and the same was contributed by both the partners. The other terms of the partnership agreement are not relevant for the purpose of this case. But, it should be noticed that this partnership firm came into existence immediately after the sale deeds, were executed in favour of the partners by the previous owner Vijayalakshmi. It is not in dispute that this firm of "Peekay Constructions" applied for construction of a high-rise building on Site Nos.469 and 470 and they were successful in obtaining a licence to put up the high rise building consisting of a basement, ground floor plus three other floors. According to the petitioner, this licence was given by respondents-1 to 3 without conducting an enquiry as required by law and without obtaining the consent of the petitioner who is the owner of the neighbouring site in question. The plan was approved as per Annexure-A. In terms of that plan, respondent-5, as partner of "Peekay Constructions Company" proceeded to construct the high-rise building on the lines of the approved plan. This plan was sanctioned as could be seen from the statement of objections filed by the Corporation of the City of Bangalore sometime in the month of November, 1986, The petitioner, to his dismay, found during the 3rd week of March, 1987 that respondents-4 and 5 were making attempts to construct a massive structure on the two sites. According to him, he was not aware of the commencement of the construction since he was out of station but his son noticed the commencement work and they were under the impression that the construction was being put up only on one site bearing No. 470. But, on enquiry, they were given to understand that the plan sanctioned for the construction in question on the two sites was totally opposed to the Bye-laws framed by the st respondent and therefore, he got a legal notice dated 20-5-1987 issued to respondent-3, that is, to the Deputy Director, the Commissioner of City Corporation and others calling upon them to withdraw the sanctioned plan issued in favour of respondent-5 to put up the construction on the sites in question. In that notice respondents-1 to 4 were informed that the details regarding the sanctioned plan was kept very confidential and that the workmen refused to stop construction of the building, though asked to do so. Though the said legal notice Annexure-B was received by respondents-2 and 3, no action was taken by them and subsequently the same was sent to Vijayalakshmi as also to respondent-4, that is, the Construction Firm, on 23-8-1987 but they refused to receive and issue acknowledgement of the receipt of the same. It is further alleged that at that stage, the petitioner was not aware that respondents-4 and 5 as owners of the site had obtained the sanctioned plan. He was informed that the construction work was taken up by one Shivashakti Apartments and therefore, ho addressed a letter to them also, a copy of which is produced at Annexure-C. The said letter was sent by registered post to respondent-4 and Shivashakti Apartments, but they refused to receive the same. Therefore, son of the petitioner sent a copy of the said notice by Certificate of Posting on 6-4-1987 and the same was received by Shivashakti Apartments. However, inspite of these notices, when the petitioner had gone to his native place in Dakshina Kannada District during 1st week of March, 1987, the construction activities were going on without any break even though the petitioners son informed the Supervising staff not to proceed with the construction as the plan obtained was in disregard of the bye-laws framed by the Corporation. As there was no positive response either from the supervising staff or from the builders that is, respondent-4, the petitioner has approached this Court for suitable reliefs restraining respondents-4 and 5 from proceeding with the construction and for other incidental reliefs.

5. The petitioner has taken a number of contentions based on the Building Bye-laws framed by the Corporation, that is, the 1st respondent and also on the basis of Rules of Allotment of Sites made by the CITB in terms of the provisions of the CITB Act and the Rules framed thereunder. The objections taken by him in regard to the technical violations in the construction of the building in question are found in paragraphs--13 to 20 of the Writ Petition. According to him, the building in question violates a number of building Bye-laws prescribed by the Corporation and therefore, the Corporation was not justified in issuing the licence on the basis of the plan submitted by respondent-4. His further contention is that regard being had to the residential area in question and the terms and conditions of allotment to the allottees of sites in that area, it is not open to respondent-4 to put up a multi-storeyed construction on the sites in question and to make a business out of it by investing capital with the object of selling them to third parties which would, in effect, be contrary to the Scheme of the acquisition of land under the CITB Act as also under the BDA Act and the subsequent conversion of acquired land into residential layouts and subsequent allotment of sites formed in the residential layout to individual allottees.

6. In the other Writ Petition, the petitioners have approached this Court a little earlier, before the construction could be proceeded with by respondent-4 who was originally a party to the proceedings and who has since been deleted. According to the petitioners in this Writ Petition, respondent-4 had already obtained a licence from the Corporation to put up a high rise building and if he is permitted to put up such construction, that would be in gross violation not only of the Building Bye-Laws but also the Scheme of the acquisition of land under the CITB Act and the BDA Act, the Scheme of lay-out for residential purposes under both these Acts and Rules of allotment of sites under these Acts to individual persons for the purpose of putting, up residential houses for their benefit and enjoyment. It is alleged that site No. 3367/A, 13th Main Road, HAL IInd Stage, is a vacant site measuring 90 by 491. Respondent -4 has purchased this site from one B.N. Dokamia and plans to put up six dwelling units. The BDA has approved the transfer to respondent, though such transfer is opposed to the Rules. Further respondent-2, the Corporation has granted to respondent-4 a building licence, as per Annexure-B dated 5-7-1986. On these undisputed facts, the petitioners have averred as follows in their representation to the Mayor of the City of Bangalore:

"We are of the earnest view that the construction of other buildings on this road exceeding ground and first floor should not be allowed to take place on vacant plots on this road. There are still several vacant plots on the road including corner plots and we apprehend that some of these will be sold or have been sold by the owners to the highest bidders for development of apartment blocks. We are also aware that some of these owners already have other plots and houses elsewhere in Indiranagar. As such, their intention would appear to be only to dispose of these plots to the highest bidders for development, if this happens, the present situation which is bad enough can only get worse.

We are not averse to the construction of multistoreyed buildings elsewhere in Bangalore exceeding 2 floors but we would only like to appeal that this may not be allowed to happen on this road which, as stated elsewhere, hardly qualifies for the description of a Main Road. If this appeal is not heeded, we the residents of the 13th Main Road will be hard pressed from the point of view of availability of normal amenities like supply of water and electricity, sewerage clearance and environmental damage and further uncontrolled growth of traffic as well.

In this context, we would like to urge that the existing building bye-laws of the Corporation of Bangalore need to be revised on a more realistic basis keeping in mind the fact situation as it exists on 13th Main Road so as to prohibit the construction of any building beyond two floors. It would not be out of place to remind you of the fact that the earlier Zoning Regulations covering our area which were amended sometime in 1984 permitted only double occupancy in a road having the width of the 15th Main Road. These regulations have since been revised without any justification whatsoever. We would like to urge that the old Zonal Regulations should be restored in so far as our area is concerned,"

7. So, the common point that arises for consideration in both these Writ Petitions is:

1) Whether regard being had to the Scheme of the CITB Act and the BDA Act which has repealed the CITB Act, the Corporation could grant licences to the owners of the sites in the area in question to put up Multi-storeyed/Multi family apartments

2) Whether the Scheme under both the Acts and the Rules of allotment of sites provide only for putting up residential houses by the owners of sites in question or for commercial purposes as in this case, and exploit the allotted sites for the construction of multi family apartments and to make a profit out of that venture

3) Whether the Scheme envisages that persons who were not allotted sites and could not have been allotted sites could all the same become owners of apartments by taking advantage of the licences granted for Multi-family dwelling units on the sites in question.

For considering these questions, it is unnecessary for this Court to consider the question raised in W.P.No. 8892 of 1987 about the validity of the sanctioned plan in the light of the various infractions said to have been committed by Respondent-4 in regard to the Building Bye-laws which govern the construction of high-rise buildings in this City.

8. The first question necessarily takes me to the relevant provisions of the CITB Act since the sites of the petitioners in both these Writ Petitions were allotted under the Allotment Rules framed under the CITB Act before it was repealed by the BDA Act and the Rules framed thereunder.

9. The CITB Act makes provision for the improvement and future expansion of the City of Bangalore and appointment of a Board of Trustees for the said purpose. Under Section 3 of the CITB Act the Board is charged with the duties to carry out the provisions of the CITB Act subject to such conditions and limitations as contained in the CITB Act and that the Board shall be a body corporate and have perpetual succession and a common seal, and shall sue and be sued by its name. Under Section 14 of the CITB Act the Board may, subject to the control of the Government, draw up detailed schemes known as Improvement schemes for the improvement or expansion or both of the areas to which this Act applies; Under Section 14(3) the Government may, whenever they deem it necessary, require the Board to take up any improvement scheme or work and execute it subject to such terms and conditions as may be specified by the Government. Under Section 18 (2) of the CITB Act, the Board has the power to alter the scheme for the purpose of making such improvement as may be necessary and shall, subject to the provisions contained in the next two clauses of this sub-section (that is, Sub-section (2)(b) and (2)(c) of Section 18) execute the scheme as altered. Under Section 18-A when, by the making of any improvement scheme, any land in the area comprised in the scheme is not required for the execution thereof, the Board may declare that a betterment fee shall be payable by the owners of the land or any person having an interest therein in respect of the increase in value of the land resulting from the execution of the scheme. Under Section 20 of the CITB Act whenever under any Improvement Scheme the whole or any part of an existing public street or other land vested in the Corporation is included in the site of any part of a street to be formed, altered, widened, diverted, raised, re-arranged or re-constructed by the Board, the Board shall give notice to the Mayor of the Corporation that the whole or a part, as the case may be, of such existing street or other land is required by it as part of a street to be dealt with and that part required shall thereupon, subject to the provisions of Sub-section (1) of Section 23, vest in the Board. Under Section 24 of the CITB Act the Board shall not sell or otherwise dispose of any sites for the purpose of constructing buildings thereon for the accommodation of persons until all the improvements specified in Section 23 have been substantially provided for in the estimates. Section 23(2) of the CITB Act provides that any open space reserved for ventilation in any part of the City, and provided by the Board as part of any improvement scheme sanctioned by the Government shall be transferred on completion to the Corporation for maintenance at the expense of the Corporation and shall thereupon vest in the Corporation.

10. In order to implement the scheme, the Board has to acquire land under Section 27 of the CITB Act. Under Section 28, any land that vests in the Board could be transferred to the Corporation by the order of the Government made from time to time. This is the scheme of the CITB Act.

11. The Rules relating to allotment of sites are framed by the State Government in exercise of the powers conferred under Section 42 of the CITB Act. Section 42 enables the State Government to make rules for the guidance of the Board, Government Officers and ail other persons in matters connected with the administration of this Act or in cases not expressly provided for in the Act, to regulate-the allotment or sale by auction of sites by the Board, to specify the conditions, restrictions and limitations subject to which the Board may sell, lease or otherwise transfer movable or immovable property for delegation of the powers, duties or functions of the Chairman of the Board and for generally carrying out the purpose of the CITB Act. Under these Rules, allottee means the person to whom a site is allotted. Family means a family in relation-to such person, and if married, the wife or husband, as the case may be and the dependent children, grand children, parents, sisters and brothers, of such person. Under Rule 3 the Board has the power to offer alt or any of the site in the Extension or Layout prepared by it for allotment to persons eligible under these Rules, subject to the general or special powers of the Government. Under Rule 5 the Chairman of the Board has the power notwithstanding anything contained in Rule 3 to allot sites to individuals or persons or institutions as special cases. Under Rule 6, the site allotted under Rules 3 and 5 is deemed to have been leased to the allottee until the lease is determined or the site is conveyed in the name of the allottee in accordance with the rule. During the period of lease, the allottee shall pay rent at Rs. 3/- per annum etc. Rule 9 deals with the eligibility for allotment and under that rule no person shall be eligible for allotment who is not ordinarily a resident in the area under the jurisdiction of the Board. Provided the Board may relax the condition in the case of persons who bona fide intend to reside in such area. Rule 9(2) is also very significant in the context of the dispute between the parties in these Writ Petitions. It is as under:

"Eligibility for allotment - No person shall be eligible for allotment -

(1) xx xx

(2) Who or any member of whose family owns or has been allotted a site or a house by the Board or any other Authority, within the area under the jurisdiction of the Board:

Provided that the Board may in its discretion relax this condition in case where the house owned in found inadequate having regard to the size of the family of the person applying for allotment of a site."

Rule 10 prescribes the principles for selection of applicants for allotment of sites. The relevant considerations for the selection of applicants are:

(1) The Board shall consider the case of such applicant on its merits and shall have regard to the following principles in making selection and fixing the priority for allotment:

(i) applicants whose lands or house have been acquired by the Board provided they are otherwise qualified for allotment;

(ii) the status of the applicant, that is, whether he is married or single and has dependent children;

(iii) the income of the applicant and his capacity to purchase a site and build a house thereon for his residence;

(iv) the number of years the applicant has been waiting for allotment of a site and the fact that he did not secure a site earlier though he is eligible and bad applied for a site."

Under Rule 10(2), in order to ensure that there is equitable distribution of sites among different classes of persons, sites are reserved and allotted as far as possible on the following basis:

"(i) fifteen per cent of the available sites to be reserved and allotted to the State Government servants;

(ii) fifteen percent of the available sites to be reserved and allotted to Central Government servants, servants of local authorities and Corporations owned or controlled by the Central Government and State Government;

(iii) five percent of the available sites to be reserved and allotted to employees of industrial concerns;

(iv)ten percent of the available sites to be reserved and allotted to persons belonging to the Scheduled Castes end Scheduled Tribes;

(v) fifty-five percent of the available sites may be reserved and allotted to the general public."

Under Rule 11, a Committee is appointed for consideration of the applications and for making recommendations to the Board of Allotments. Under Rule 17, conditions of allotment are prescribed. Rule 17(3) requires to be noticed: It is as under:

"Until the site is conveyed to the allottee the amount paid by the allottee for the purchase of the site shall be held by the Board as security deposit for the due performance of the terms and conditions of the allotment and the lease-cum-sale agreement entered into between the Board and the allottee."

Rule 17(5) enjoins the allottee to comply with the conditions of the agreement executed by him and the Building and other bye-laws of the Board for the time being in force. Under Rule 17(6) the allottee shall, within a period of 2 years from the date of execution of the agreement or such extended period as the Board may in any specified case by written order permit, construct a building. If the building is not constructed within the said period, the allotment may be cancelled, the agreement revoked, the lease determined and the allottee evicted from the site by the Board, and after forfeiting twelve and half percent of the value of the site paid by the allottee, the Board shall refund the balance to the allottee. Rule 17(7) prohibits alienation of the site or building by the allottee during the period of the tenancy. This condition is material for the purpose of this case. Under Rule 17(8) on the expiry of the period of ten years specified in Rule 6 and if allotment has not been cancelled or the lease has not been determined in accordance with the Rules and after the sum withheld under Sub-rule (2) has been paid, the site shall be conveyed by the Board to the allottee. So, this Rule provides some clue about the rights of the Board while making the allotment of sites. It is only after the expiry of 10 years prescribed under Rule 6, the allottee becomes the absolute owner of the site in question and till then his absolute enjoyment of the site in question will be subject to the Allotment Rules framed by the Government. Under Rule 17(9), the allottee shall ordinarily reside or himself make use of the building constructed on the site allotted to him.

12. What was the intendment of these Rules, taking into consideration the Scheme of the Act could be ascertained also from the relevant Forms prescribed by the Allotment of Sites Rules, 1964 framed under the CITB Act. Form No. 1 is the application for site. The applicant who applies for a site must furnish certain information to the Board for consideration of his eligibility to acquire a site. Certain relevant particulars which he has to furnish are found in Column Nos.9, 13(1), 14 and 15 of Form No. 1: Under Column No. 9 he has to state whether he is ordinarily a resident in Bangalore City or in the area under the jurisdiction of the Board and the period of such residence. It obviously means that these sites are not meant to be allotted to persons who reside outside the jurisdiction of the limits of Bangalore Corporation or outside the area or jurisdiction of the Board. Under Column 13 the applicant has to state whether he already owns a house or a house site in the City or outside the City or whether he has any share in the house property. Under Column-14 he has to furnish whether his wife or minor child owns a house or a house site in the City or outside the City or whether his wife or minor child has any share in the property and the value of share thereof. In Column No. 15 he has to mention whether he has transferred the ownership or rights in the house or house site already allotted to him under any of the schemes of the Board or any other authority to somebody else, and if so to furnish details. Under Column No. 16 he has to furnish information as to whether he or any member of his family has already availed himself of any housing or loan scheme of Government, local body or Co-operative Society, if so, to give details. The form also prescribes a solemn declaration to be made by him. That declaration reads as under:

"I am aware that under the Rules. 1 have to build the house myself with my own resources."

Form No. 11 is the draft of the agreement to be executed by the successful applicant after the allotment is made in his favour. That agreement is styled as a "lease-cum-sale agreement". That agreement has become necessary because the allottee is permitted to occupy the site and enjoy the same only on payment, in full, of the price of the site as may be fixed by the Board, and under that agreement, the allottee agrees to abide by the City of Bangalore Improvement (Allotment of Sites) Rules, 1964 and the terms and conditions contained in the said agreement. The relevant terms for the purpose of these Petitions are found in clause Nos.4, 12, 14 and 15. Under Clause No. 4, the allottee is prohibited from sub-dividing the site or constructing more than one building or dwelling house on it. The expression dwelling house means a building constructed to be used wholly for human habitation and shall not include any apartments to the building whether attached thereto or not, used as a shop or a building of warehouse or building in which manufactory operations are conducted by mechanical power or otherwise. Under Clause No. 12, the Board has undertaken to sell the site to the allottee at the end of ten years referred to in Clause 1, provided the allottee has performed all the terms mentioned in the agreement and committed no breach thereof. Under Clause 14, the allottee has to confirm that the agreement would be subject to the terms and conditions specified in the CITB Allotment of Sites Rules.

13. The other Rules which require just a cursory glance are the City of Bangalore Improvement (Disposal of Corner Sites and Shop Sites) Rules, 1965 (hereinafter referred to as the CITB Rules of 1965). Since we are not dealing with shop sites, a detailed reference to those Rules may not be necessary. But since one of the sites in question is a corner site, the manner of disposal of corner site is also governed by these Rules. There is no dispute that this corner site was purchased in open auction. Notwithstanding the purchase, the enjoyment of that site is governed by the earlier Rules framed, namely, Allotment of Sites Rules, 1964. The B D A which is the successor in title to the CITB is governed by the BDA Act. Under the BDA Act necessary Rules have been framed by the State Government for carrying out effectively the object and the purpose of that Act. Similar provisions as found in the CITB Act are found in the BDA Act and similar provisions as found the 1964 CITB Allotment of Sites Rules are found in the Bangalore Development Authority (Allotment of Sites) Rules, 1982 (hereinafter referred to as the 1982 BDA Rules). There is no serious controversy that the BDA Act and the Rules framed thereunder are in pari-materia with the provisions of the CITB Act and the Rules framed thereunder. Any way, it is not brought to my notice that there is any inconsistency with the earlier Act and the Rules framed thereunder.

14. Now to what extent the provisions of these Acts and the Rules are contrary to the provisions of the Karnataka Town and Country Planning Act 1961 (in short the Planning Act) requires consideration since one of the contentions of the contesting respondents is that the Planning Act does not prohibit the construction of high rise buildings subject to certain conditions prescribed in the Outline Development Plan and the Comprehensive Development Plan and therefore, if these plans do not impose any prohibition for the construction of multi-storeyed buildings subject to the limitations imposed therein, the provisions of the CITB and BDA Acts and the Rules framed thereunder give way to the provisions of the Planning Act. That question would necessarily lead to the further question whether the Planning Act is a General Act and the CITB and the BDA Act are Special Acts or whether it is the other way.

15. The Planning Act was promulgated in the year 1961 and came into force on 8-3-1963. The preamble to that Act discloses that the said Act was passed to provide for the regulation of planned growth of land use and development and for the making and execution of town planning scheme in the State of Karnataka.

Under Section 2(7) of the Planning Act, the Planning Authority means - (a) in the case of -

"(i) the local Planning area Comprising the City of Bangalore, the Bangalore Development Authority, and

(ii) any other local planning area in respect of which the State Government may deem it expedient to constitute a separate Planning Authority - the Planning Authority constituted under this Act.

(b) in the case of local planning area in respect of which a Planning Authority is not constituted under this Act, the Town Improvement Board constituted under any law for the time being in force having jurisdiction over such local planning area, and where there is no such Town Improvement Board, the local authority having jurisdiction over such local planning area,"

So, by virtue of this definition of the words the Planning Authority the Bangalore Development Authority becomes the Planning Authority of the land for the area covered by the Planning Act. Section 81B of the Planning Act reads as:-

Consequences to ensue upon the Constitution of the Bangalore Development Authority - Notwithstanding anything contained in this Act, with effect from the date on which the Bangalore Development Authority is constituted under the Bangalore Development Authority Act, 1976 the following consequences shall ensue -

(i) the Bangalore Development Authority shall be the Local Planning Authority for the local planning area comprising the City of Bangalore with jurisdiction over the area which the City Planning Authority for the City of Bangalore had jurisdiction immediately before the date on which the Bangalore Development Authority is constituted:

(ii) the Bangalore Development Authority shall exercise the powers, perform the functions and discharge the duties under this Act as if it were a Local Planning Authority constituted for the Bangalore City;

(iii) the City Planning Authority shall stand dissolved and upon such dissolution, -

(a) anything done or any action taken (including any appointment, notification, order, scheme or bye-law made or issued), any commencement certificate or permission granted by the Bangalore City Local Planning Authority shall be deemed to have been done, taken, made, issued or granted under the provisions of this Act by the Bangalore Development Authority and continue to be in force until it is superseded by anything done or any action taken, any appointment, notification, order, scheme or bye-law, made or issued commencement certificate or permission granted by the Bangalore Development Authority under the provisions of this Act;

(b) all obligations and liabilities incurred, all contracts entered into, all matters and things engaged to be done, by, with or for the Bangalore City Local Planning Authority shall be deemed to have been incurred, entered into, or engaged to be done by, with or for the Bangalore Development Authority;

(c) all property movable and immovable and interests of whatsoever nature and kind therein vested the Bangalore City Local Planning Authority shall with all rights whatsoever description used, enjoyed or possessed by the Bangalore City Local Planning Authority, vest in the Bangalore Development Authority;

(d) all suits, prosecutions and other legal proceedings instituted or which might have been instituted by or against the Bangalore City Local Planning Authority may be continued or be instituted by or against the Bangalore Development Authority."

The other provisions which requires to be noticed are: Sections 9, 10, 11, 12, 13 and 14. Under Section 9, the Planning Authority is charged with the duty of preparing Outline Development Plan (hereinafter referred to ODP). It reads:

"Preparation of Outline Development Plan -

(1) Every Planning Authority shall, as soon as may be, carry out a survey of the area within its jurisdiction and shall, not later than two years from the date of (declaration of the local planning area) prepare and publish in the prescribed manner an Outline Development Plan for such area and submit it to the State Government, through the Director, for provisional approval:

Provided that on application made by a Planning Authority, the State Government may from time to time by order, extend the aforesaid period by such periods as it thinks fit.

(2) If the Outline Development Plan is not prepared, published and submitted to the State Government by the Planning Authority within the period specified in sub-section(1) or so extended under the proviso to Sub-section (1), as the case may be, the State Government may authorise the Director to prepare and publish such plan in the prescribed manner and direct the cost thereof to be recovered from the Planning Authority out of its funds, not withstanding anything contained in any law relating to the said fund.

(3) Notwithstanding anything contained in Sub-section (2).-

(i) if any Planning Authority has prepared a plan for the development of the area within its jurisdiction before the date of the coming into force of this Act, it may send the same to the State Government for provisional approval within a period of six months from the said date and the plan so approved shall, notwithstanding anything contained in this Act, be deemed to be the Outline Development Plan for the Planning Area concerned;

(ii) if any Planning Authority is converted into or amalgamated with any other Planning Authority or is sub-divided into two or more Planning Authorities, the Outline Development Plan prepared for the area by the planning authority so converted, amalgamated or sub-divided shall, with such alterations and modifications as the State Government may approve, be deemed to be the Outline Development Plan for the area of the new Planning Authority or authorities into or with which the former Planning Authority was converted, amalgamated or sub-divided.

(4) A copy of the Outline Development Plan sent to the State Government under Sub-section (1) or Sub-section (3) shall be kept open for inspection by the public at the head office of the Planning Authority."

16. The relevant provisions of the Planning Act would show that this Act was enacted for the better use of the land in the entire State of Karnataka and is not confined to a particular local area or areas. Section 12 is an indication that this is a General Act providing for the manner in which the development and improvement of the entire planning area within the jurisdiction of the Planning Authority are to be carried out and regulated. In particular it shall include:

(a) a general land-use plan and zoning of land-use for residential, commercial, industrial, agricultural, recreational, educational and other public purposes;

(b) proposals for roads and highways;

(c) proposals for the reservation of land for the purposes of the Union, any State, any local authority or any other authority established by law in India;

(d) proposals for declaring certain areas as areas of special control, development in such areas being subject to such regulations as may be made in regard to building line, height of buildings, floor area ratio, architectural features and such other particulars as may be prescribed;

(e) such other proposals for public or other purposes as may from time to time be approved by the Planning Authority or directed by the State Government in this behalf."

A close examination of this Clause would show that this is not applicable to a particular residential lay-out or a scheme established by a local authority like the Bangalore Development Authority or its predecessor-in-title i.e., City Improvement Trust Board. In a residential lay-out which is established under the City Improvement Trust Board Act or Bangalore Development Authority Act, there would not be any scope for making highways. There is also no scope for reservation of lands for any Union, any State, any Local authority or any other authority established in India. These considerations will arise only when vast extents of land either in a City or a town or a village are sought to be developed as a planning area by the Planning Authority. There are other provisions of the Act which give such an Indication. This position does not admit of any doubt in the light of the provisions of Section 73 of the Bangalore Development Authority Act which corresponds to Section 52 of the City Improvement Trust Board Act. "The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." So those are the salient features of City Improvement Trust Board Act, the Bangalore Development Authority Act and the Planning Act. Now the contentions urged by the learned Counsel on both sides may be noticed.

17. Mr. Viswanatha Shetty for the petitioner in W.P. No. 8892/1987 on this common point in both the petitions submitted that the scheme of City Improvement Trust Board Act and Rules made therein which govern the allotment of site in question do not permit the exploitation of these sites by persons who have the necessary wherewithal to invest capital and other means and convert the same into high rise apartments and convey the same to persons who are not ordinarily eligible for sites in the layout sanctioned by the City Improvement Trust Board/Bangalore Development Authority. In any event, he maintained there is no provision for conversion of two sites into a single site and exploit that site for multi-storeyed construction as a business venture. According to him, the Acts and Rules make it abundantly clear that City Improvement Trust Board or Bangalore Development Authority as the case may be was empowered by the respective Acts to acquire land and to convert the same into housing lay outs with a view to ensure that persons belonging to poorer class or middle class are in a position to acquire sites in the City and build their houses for their own requirements and not for making a profit out of such conversion. In this case, admittedly, no order for converting the two sites into one site had been obtained from the authorities. All the same, the fourth respondent prepared a building plan which in essence was prepared for putting up a construction on the total area covered by both the sites, with the result he was able to deviate from the rules of allotment which provided that only a single construction should be put up on each site and there was also a bar for the sub-division of that site into small sites and putting up construction on such subdivisions. But according to Sri T.S. Ramachandra, learned Counsel for respondents 4 and 5, there was no prohibition either in the Acts or in the Rules for putting up a multi-storeyed building so long as a person who puts up a construction acquires a valid title to the land and respondents 4 and 5 having acquired a valid title under two registered sale deeds for valuable consideration, their right to enjoyment of the sites in question in any manner they liked could not be either curtailed or controlled by the provisions of the Bangalore Development Authority Act or City Improvement Trust Board Act. This argument rests on the plea that there is no prohibition in the Acts or in the Rules which would prevent the builders from investing their money in the manner they liked, so long the building plans are not in violation of the building bye-laws. Perhaps he is basing his argument on the concept of the right to real property under the Transfer of Property Act. His arguments proceed on the basis that the sites in question were acquired not from Bangalore Development Authority but from the original allottee and so Respondents 4 and 5 had full title and right to exploit the sites in accordance with the sanctioned plan. But in this case the vendor Vijayalakshmi was admittedly an allottee of the two sites, one a corner site which she had purchased in open auction and the other an allotted site. As noticed earlier, the relevant Rule which enables the Bangalore Development Authority to keep the sites in question on a leasehold basis for a period of 10 years is only to ensure that the allottee has complied with all the conditions satisfactorily as prescribed in the Rules and ail the covenants as prescribed in the agreement i.e., in Form-ll. Only thereafter the City Improvement Trust Board or Bangalore Development Authority releases its control over the sites and executes the deed of conveyance confirming the title to the allottee in question. That only shows that whatever notion that we have about the rights of owners to immovable property under Transfer of Property Act, they cannot be made applicable to the rights of the allottee who obtained the sites under the relevant Rules in question. They obtained the sites not with a view to exploit them and make a profit but not to enjoy the same for their personal benefit by building a residential house for their benefit and the members of their family. The various provisions in the Rules and the Act which I have already excerpted above point out to the inescapable conclusion that the allotment made by the Bangalore Development Authority is only for the benefit of allottees and not for any third party and in this case admittedly Vijayalakshmi had not obtained the permission of the Bangalore Development Authority to transfer these sites to respondents 4 and 5. The very title of Respondents 4 and 5 to the land in question is also in serious controversy and that aspect of the matter was not considered by the Corporation when it issued the building licence. It should be noticed at this stage, that the Bangalore Development Authority which is impleaded as the sixth respondent in this case has supported the case of this petitioner and therefore this Court has only to consider the defences taken by the other authority, namely, the Commissioner of Corporation. The defence taken by the Commissioner is that no licence was given to construct a high-rise building but the plan was sanctioned for construction of Cellar, one ground floor and three upper floors in the name of PEEKAY constructions and this plan was duly scrutinised by the officers and after such scrutiny and correction it was brought within the limits of the existing Building Bye-laws and the Zonal Regulations and accordingly sanction was accorded by the Commissioner on 10-11-1986. Subsequently, respondents 4 and 5 submitted the modified plan. Under the modified plan there was proposal for ground and three floors to the put up for residential purpose. The modified plan was not enforceable and the original plan sanctioned holds the field. He has taken various other contentions in the return filed by him and justified the action of respondents 4 and 5 in terms of the sanctioned plan. But he has not in any way touched the objections taken by the petitioner regarding the authority of original owner Vijayalakshmi to sell the sites to respondents 4 and 5 and the right of respondents 4 and 5 to put up the multi-storeyed construction on those two sites. Even though, by virtue of the Notifications issued by State Government, from time to time, the area in question may vest with the Corporation that vesting with the Corporation is only for identifying the authorities for the purpose of providing Civic amenities and not for determining the validity of the licence granted by the Corporation or the legality of the construction job undertaken by respondents 4 and 5 on the sites in question.

18. Mr. T.S. Ramachandra, learned Counsel for respondents 4 and 5, elaborating his contention submitted that in the light of the analogies that could be deduced from the law of taxation, in the absence of any prohibition, Clause-4 of the agreement which indicates that an allottee has to build a house for himself on the site allotted to him is not a bar for the builders to put up a multi-storeyed construction. According to him, what is expressly not prohibited is deemed to be permitted and as the Building Bye-laws were brought into force by the Corporation, it is the Corporation which is the authority for sanctioning the licence and for determining the legality of such licence. He also submitted that Section 505 of the Corporation Act confers powers on the Corporation to deal with such buildings, since the area in question has come within the jurisdiction of the Corporation by virtue of the Notifications made by the Government. He invited my attention to Rule 17(6) and 8 and 9 and also the lease-cum-sale agreement in Form-ll and Clause-4 in the draft lease-cum-sale agreement and submitted that the corner site is not a site allotted under the Rules but it is a site which was purchased in open auction. Therefore, the purchaser Vijayalakshmi had an absolute right to sell it to third party free from the restrictive covenants imposed under the City Improvement Trust Board Act or the Rules framed thereunder. He also submitted, relying on certain passages in Salmonds Law of Jurisprudence relating to the rights of an owner of immovable property that no one can question how the land should be used once he acquired an absolute title and in this case respondents 4 and 5 having obtained an absolute title to the sites in questions their right to enjoyment of the property cannot be questioned by the petitioners. He submitted that similar construction firms carrying on business have been granted licences by the Corporation. On the alleged violation of the Building Bye laws, elaborate arguments were advanced to drive home the point that none of the building laws have been violated by these builders. According to him, the City Improvement Trust Board Act and the Rules, the Bangalore Development Authority Act and the Rules are all made for the purpose of preventing nuisance and in the interest of public order and public morality. But there is no material before this Court to hold that the building in progress caused any nuisance or was opposed to public order or public morality. He also maintained that the restriction in this case is only against subdivision and not against consolidation of sites and Section 17 of the Planning Act also shows that there could be no prohibition for consolidation of two adjacent sites. Under Section 17 of the Planning Act, every person who intends to sub-divide his plot or make or lay-out a private street on or after the date of the publication of the declaration of intention to prepare the Outline Development Plan under sub-section(1) of Section 10, shall submit the lay-out plan together with the prescribed particulars to the Planning Authority for sanction. So the sum and substance of this argument is that there is nothing either in the City Improvement Trust Board Act or the Rules made thereunder or the Bangalore Development Authority Act and the Rules made thereunder which prohibits consolidation of two sites and prohibits high-rise building within the ambit of sanctioned licence on such sites.

19. The contentions of Mr. Karanth, learned Counsel for the Petitioner in W.P.No. 7599/ 1987 do not deal with the building licence, obviously because no building has come up so far. He has reserved his right to challenge the licence. But his objection is against the grant of any such licence in that all the petitioners excepting one who is a tenant and who are all residents in the area in question had bought their sites allotted to them; that these sites were utilised for the construction of residential houses for their benefit and for the benefit of the members of their family; that they had invested their hard savings and built houses in the sites allotted to them; that the scheme and conditions of allotment are based on the statutory rules made by the City Improvement Trust Board or the Bangalore Development Authority and these schemes are for the construction of residential buildings thereunder and in the light of these rules and the agreement that they had executed in favour of the City Improvement Trust Board or Bangalore Development Authority, there was absolutely no scope for the subsequent purchasers of the land or for auction-purchaser of the land to transfer the sites to third parties to enable them to put up high-rise buildings contrary to the layout scheme, the development plan and the conditions of allotment.

20. Mr. Karanth submitted that the layout-scheme in respect of H.A.L. II Stage was made and executed after the Planning Act and the Outline Development Plan for the City of Bangalore was approved by the State Government in 1972 and it continues to govern the allottee-auction purchaser as it is a special law applicable to that area. The restrictions imposed by City Improvement Trust Board and Bangalore Development Authority on the allotment of sites in H.A.L. II Stage are applicable to all the residents of that area and the violation of the scheme could be prevented by the residents as held by the Supreme Court in K. Ramadas Shenoy v. The Chief officers, Town Municipal Council, Udipi and others, AIR 1977 SC 2177 at 218. He has also relied on the decision of this Court, to which I was a party, reported in Holy Saint Education Society v. Venkataramana P. and others, ILR (Karnataka) 1981(2). Elaborating his argument he submitted that the infra-structure for catering to the needs of single family units are different from the needs of multi-family units in that multi-family dwelling houses require special infra-structures which have not been provided at all in H.A.L. II stage since that area is only meant for the benefit of single site/single building owners; that when the layout was prepared for H.A.L. II stage, multi-storeyed or multi-family dwellings were not within the contemplation of the Bangalore Development Authority or the City Improvement Trust board or the allottees/purchasers of sites and therefore whatever infra-structure is now available for the benefit of the petitioners and other residents are just enough to meet their requirements as it had not envisaged the requirements of multi-family dwelling units. Secondly, he submitted that the Zonal Regulations envisaged construction of single or double family units in a road with a width of 30 feet or less and the petitioners have purchased sites on the basis of the lay-out plan and the conditions imposed by the Bangalore Development Authority/City Improvement Trust Board and have constructed their houses strictly in accordance with the Zonal Regulations and the Bye-laws which prevailed between 1972 and 1984 as such their interest and rights have crystallised over the years and these rights which are either accrued rights or rights which are essential for their enjoyment of the property have been seriously threatened by the Building Bye-laws sanctioned by the Corporation in the year 1984 by permitting multi-family dwellings in the area in question.

K. Ramadas Shenoy v. The Chief officers, Town Municipal Council, Udipi and others, AIR 1977 SC 2177 at 218.

reported

Holy Saint Education Society v. Venkataramana P. and others, ILR (Karnataka) 1981(2)

21. Thirdly, he has submitted that if it is held that the Comprehensive Development Plan would supersede the lay out scheme, the multi-storeyed structures in their area or any other area must be properly planned and preceded by the development of suitable infra-structural facilities, of which there is no evidence in H.A.L. II stage, and therefore the provisions of the Comprehensive Development Plan are arbitrary, void and cannot supersede the layout scheme. According to him, to allow multi-storeyed buildings to come into this area on the ground that the present bye-laws permit such constructions would be to prejudice and endanger, unilaterally and arbitrarily the rights and interests of the residents of the area. That the Bye-laws are only the means and not an end and should always be in the interest of the residents of the area in question. He also relied on the commonly accepted notion regarding the health hazards caused by deterioration of ecological standards and threat to the quality of life by the deterioration in environmental standards which are very necessary for ensuring a decent life. According to him, by allowing multi-storeyed buildings, the authorities have ignored the importance of parks and open spaces for the residents of the locality and the need for parks and open spaces which are increasingly essential for modern City living cannot be left to the free market law of supply and demand as has been well emphasized in Annexure-A to the Writ Petition.

He also submitted that the National Building Code of India, 1983 prescribed at least 15% of the area of a lay out as a minimum requirement for community open space and the Planning District No. 8A of which H.A.L. II stage is a part is supposed to have kept apart 16-89% of the total area for parks/play-grounds. As against this, lung space in this area has actually shrunk to 8% of the total area of the layout which is grossly inadequate. Thus the Bangalore Development Authority and Corporation have failed in their duty to protect the interest of the residents by permitting construction of more multi-family dwellings which can only be at the expense of lung space in this area, environmental health and Hygiene etc.

22. He invited my attention to the decision of the Supreme Court in B.K. Srinivasan and another Etc Etc. v. State of Karnataka and others, and Rural Litigation and entitlement kendra and others v. State of Uttar Pradesh and others, in support of his contentions.

23. His further grievance is that Bangalore Development Authority and the Corporation have failed to pay heed to the repeated appeals of the residents of the area and they having acted in violation of the Zonal Regulations, Bye-laws and the site allotment rules, the petitioners have to approach this Court for the necessary reliefs not only for themselves but also for other residents of the locality.

24. The learned Counsel for the BDA in W.P.8892/87 has entered appearance and supported the case of the Writ Petitioners. He has maintained that the consolidation of sites is not permissible under the B.D.A. Rules, that the infrastructure facilities provided for at the time they prepared the housing layout is not commensurate with the requirements of persons who want to reside in multi-storeyed apartments; that the Rules of Allotment enacted by the State Government under the BDA Act and CITB Act support the case of the petitioners that these sites are only meant for single/double dwelling units to be put up by allottees of the sites for their benefit or for the benefit of the members of their family and not for making a profit out of it by exploitation of the same by putting up multi-storeyed construction and multi family units.

25. One Central theme that runs through both the Acts and the Rules should be noticed. That is the entire scheme of acquiring the land by BDA or CITB, conversion of those lands into residential layouts and the allotment of sites in those areas to individual applicants would go to show that to satisfy the bare requirements of thousands of people who have settled down in this City to eke out a decent livelihood, or to spend their days of retirement, elaborate Rules are framed to ensure not more than one site is allotted to an applicant who has not acquired a site in this City or elsewhere. Otherwise the very object of the scheme would be defeated if persons by sheer strength of money power are permitted to acquire as many sites as possible either for themselves or for members of their family and put up buildings thereon in complete disregard of the needs of the other persons who do not have even a single residential house or a site on which they can build houses for their benefit, use and occupation.

26. This Court could take judicial notice of the fact that after the promulgation of the CITB/BDA Act, thousands of acres of land around Bangalore have been acquired for conversion into building layouts and to allot sites to people belonging to the various Sections of the Society. The owners of the lands, many of them agriculturists who have no other avocation, have been paid nominal compensation as prescribed under the Land Acquisition Act and not the rate they could have got under free market conditions. The very fact that they could not get what they wanted for the deprivation of their lands goes to show that these lands were acquired for the benefit of the people who belong to the lower and middle classes of our society who cannot, but for these Housing Schemes dream of acquiring sites in this City. That is to say that the acquisition was for a public purpose and allotment of sites was also for a public purpose. It cannot be disputed that the rates prescribed by the BDA for the sale of sites do not compare with the prevailing market rates.

27. Since the acquisition was for a public purpose both under the CITB and BDA Acts, the value of the lands acquired was necessarily pegged down to a particular rate as governed by the provisions of Section 23 of the Land Acquisition Act. That only shows that the inter play of supply and demand with the free market conditions did not apply to the acquisition of these lands. Person who was deprived of the land did not get any substantial compensation for losing his land as the acquisition was for a public purpose. The person to whom the site was allotted did not acquire an absolute right to enjoyment of the site but only the benefit of putting up a construction for his personal use subject to certain conditions and, therefore, the element of exploitation of the land by converting them into big sites for multi-storeyed apartments would be wholly alien to the entire scheme of both the Acts and the Rules framed thereunder. This is not a peculiar feature in this Country alone. Wherever we have statutory bodies conferred with the power of acquiring land for putting up housing schemes and other layouts, the Courts have been confronted with the rights of authorities vis-a-vis owners and occupiers. In U.K. what is known as the Doctrine of Abuse of Right in the area of land law is developed by English Judges. See Chapter 5 on Land, Planning and Housing by J.P.W.B. Mcauslan in the book Lord Denning, the Law and the Judge. The author says:-

"Over the years of judicial office Lord Denning has evolved a doctrine of abuse of rights in the area of land law. On its own, a doctrine of abuse of rights is rather vague notion-the doctrine as used in the U.S.S.R. would involve very different ideas to that used in the United Kingdom--so it is necessary to flesh it out. An early statement of his beliefs was contained in the Earl Gray Memorial Lecture of 1952 on "The influence of Religion": Reprinted in Sir Alfired Denning, the changing Law (Stevens and Sons London, 1953)PP. 99-122 "No one doubts now that it is wrong to treat rights of property as sacred.....There have been many people who, having amassed or inherited property, have only too often forgotten that it is only through society that they have been acquired. They have failed to realise that they are under a duty to use it for the benefit of society as a whole and not for their own material advantage. When rights of property are carried to these lengths they are contrary to all Christian teaching.... The preaching of many divines and notably of William Temple brought home the evils of excessive accumulation of wealth and opportunity in few hands. This has played a considerable part in great changes in the law.... But this new state of society has its dangers. It has brought in its train a great increase in powers of the Central Government and a lessening in the powers of Parliament and of the Courts, so much so that there are fears that the initiative and enterprise of the individual have been hampered too much...." Ibid. pp. 119, 120 Certain themes are worth emphasising from this passage; the rejection of unfettered property rights; the acceptance of a relationship between rights and duties in respect of ownership of property; the concern for the maintenance of individual initiative, and growth of state power, above all, the location of all these ideas within the framework of a strong belief in Christianity. Translated into judicial practice, these beliefs have in this area of law, been concerned with balance; it is the judges function to preserve, or more realistically to formulate and then apply the correct balance -- between landlord and tenant, buyer and seller, and their agents, neighbouring landowners, public interest and private right in respect of land use, and public authorities and their clients in respect of housing. Applying the correct balance will prevent any abuse of rights and locating the rationale for the judges function in a Christianity which stresses in equal measure individual and social responsibility legitimates the judges refusal to be hidebound by precedent or indeed the strict words of the statute for "Religion concerns the spirit in man whereby he is able to recognise what is truth and what is justice; whereas law is only the application, however imperfectly, of truth and justice in our everyday affairs." Ibid. p. 122 The idea of the correct balance to prevent an abuse of rights may be considered in more detail by breaking down this large area of law into three distinct categories, which more or less correspond to the three principal substantive areas of law to be considered; the balance between private and private -- aspects of traditional real property law and landlord and tenant law -- the balance between public and private where the dispute is between landowners and public authorities over land use and development with the public authorities seeking to restrict or take away certain property rights from landowners--town and country planning and compulsory purchase and compensation law--and finally public and private where the dispute is between public authorities and the propertyless with the public authorities conferring or regarded as conferring benefits on the propertyless and they in turn claiming that these benefits entitle them to certain rights - housing law principally. It will be seen from the ensuing discussion that these three areas involve different aspects of balance and prevention of abuse of rights."

This elucidation is equally applicable to the facts of this case since we are dealing with the legal and social aspects of user of the land in our contemporary society. So, when the Courts are dealing with a case of this nature, they should see whether they can hold the balance between public interest and private rights. The lands were acquired for a public purpose. But, after acquiring the land, can the very same land be converted into an area which could be profitably exploited by massive investment detrimental to the interests of the other adjacent owners of the very same area. The petitioners in both the petitions have very exhaustively highlighted the adverse consequences of exploitation of these sites by massive investment of capital and labour in complete disregard of their right to a peaceful and healthy life. Right to peaceful living is another facet of Article 21 of the Constitution and, therefore, it is open to this Court to examine the entire scheme of both the Acts and the Rules thereunder, the allotments made thereunder and the agreement between the parties in regard to such allotments and satisfy itself whether the private rights that were sacrosant in relation to property owners under the Transfer of Property Act could still be sustained and legally protected in disregard of the interests of the other property owners like the petitioners. Here in this case the public at large are the innumerable number of residents of H.A.L. II stage and Indiranagar area who had acquired sites to put up construction strictly in accordance with law. They have not violated the conditions of allotment nor they have violated the building plan sanctioned by the Corporation. Must the law abiding citizens like the petitioners herein suffer on account of the transgressions committed by the authorities and the builders in violation of the law.

28. That the CITB/BDA Act is a special Act in relation to the Planning Act does not admit of any doubt on the plain language of Section 82 of the Planning Act and Section 73 of the BDA Act, I have already excerpted Section 73 of the BDA Act. That Act overrides the provisions of alt other laws inconsistent with that Act. That shows that the provisions under the CITB/BDA Act and the Rules framed thereunder will have to be enforced strictly by the authorities concerned in the event of any conflict between these two Acts and the other Acts. The non-obstante clause in Section 82 of the Planning Act also supports this interpretation. Section 82 of the Planning Act reads as under:

"Areas for which schemes are sanctioned under other laws-

(1) Notwithstanding anything contained (in this Act) every Planning Authority, making an Outline or a Comprehensive Development Plan or a Town Planning Scheme, for any area, within its jurisdiction, shall take into consideration-

(1) Any housing scheme for such area, sanctioned prior to the commencement of this Act, under the provisions of the Mysore Housing Board Act 1955, or any other corresponding law in force in the State;

(ii) any improvement scheme for such area, sanctioned prior to the commencement of this Act, under the City of Mysore Improvement Act, 1903 (Mysore Act 111 of 1903). or the City of Bangalore Improvement Act, 1945 (Mysore Act V of 1945).

(2) Every housing scheme under the Mysore Housing Board Act, 1955, or any other corresponding law in force in the State and every improvement scheme under the City of Mysore Improvement Act, 1903, or the City of Bangalore Improvement, Act, 1945, sanctioned under the provisions of the said Acts, after the commencement of this Act, (shall conform to the Outline Development Plan, or the Comprehensive Development Plan, as the case may be for such area) under this Act."

A reading of this Section shows that the Planning Authority must keep in view any scheme sanctioned in a particular area under the CITB Act and every Housing Scheme under the CITB Act should conform to the Outline Development Plan or the Comprehensive Development Plan as the case may be for such area under the Planning Act. There is no express conflict between the provisions of Section 82 of the Planning Act and the provisions of Section 73 of the BDA Act. Even assuming there is any conflict the test to be applied as to which Act should apply to a situation like this is found in the decision of the Supreme Court in Sarwan Singh v. Kasturi Lal, What the Supreme Court laid down in that case is:

"When two or more laws operate in the same field and each contains a non-obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration."

28A. The Supreme Court in Jain Ink Company v. Life Insurance Corporation of India and another, on a consideration of the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act and the Delhi Rent Control Act ruled that the Public Premises (Eviction of Unauthorised Occupants) Act overrides the provisions of the Delhi Rent Control Act since the former Act operates only in a limited field where the later Act has a broader application. The Supreme Court observed in para-8 of its Judgment:

"In the light of the principles laid down in the aforesaid cases we would test the position in the present case. So far as the Premises Act is concerned it operates in a very limited field in that it applies only to particular sets of individuals, a particular set of juristic persons like Companies, Corporation or the Central Government. Thus, the Premises Act has a very limited application. Secondly, the object of the Premises Act is to provide for eviction of unauthorised occupants from public premises by a summary procedure so that the premises may be available to the authorities mentioned in the Premises Act which constitute a class by themselves. That the authorities to which the Premises Act applies are a class by themselves is not disputed by the Counsel for the appellant a seven in the case of Northern India Caterers: such authorities were held to form a class and therefore, immune from challenge or Article 14 of the Constitution. Similarly, the summary procedure prescribed by the Premises Act is also not violative of Article 14 as held by this Court in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay,."

On the same analogy, it should be held on the fact of this case that the CITB/BDA Act is a Special Act and the provisions contained therein and the Rules made thereunder override the provisions of the Planning Act in case of conflict. Thus construed there can be no difficulty for this Court to come to the conclusion that the transfer of sites in question in W.P.No. 8892 of 1987 in favour of respondent-5 and also in favour of his wife was not valid in law since the transferor had no legal competency to transfer the sites in their favour in the year 1986. Consequently, the transferee could not have obtained a licence to put up a construction in question over the entire area covered by both the sites. Furthermore, the BDA being the Planning Authority under the Planning Act, it should have issued a commencement certificate in favour of respondents-4 and 5 before it changed the nature of the use of the land. Such commencement certificate had not been obtained by the B.D.A. is confirmed by the stand taken by the learned Counsel for the B.D.A. in the course of his arguments in these petitions. Additionally, it is not seriously disputed that respondent-4 did not obtain the commencement certificate from the B.D.A. to put up construction in question.

29. However, it is contended by Mr. Ramachandra that the requirement of commencement certificate is not necessary in this case because the area in question has come under the jurisdiction of the Corporation and that the Corporation could grant the building licence without insisting on the parties to obtain a commencement certificate from the B.D.A. I have noticed earlier that the Planning Authority being the B.D.A. and the terms and conditions of the user of the land being controlled by the provisions of the CITB/BDA Act and the Rules made thereunder and the allotment of sites also being controlled by the Rules framed by the State Government under CITB/BDA Act, it is futile on the part of learned Counsel for respondents-4 and 5 to maintain that the issue of licence by the Corporation would make the requirement of commencement certificate redundant as contemplated under the Planning Act. No provisions of the Corporation Act have been brought to my notice to show that the provisions of the Corporation Act will have overriding effect on the provisions of the CITB/BDA Planning Act. The provisions of Section 505 of the Corporation Act would be a pointer to the fact that the mere extension of the jurisdiction of the Corporation area in question would not take away the obligation of the Corporation to conform to the requirements of the Planning Act. Section 505(1) and (2) of the Corporation Act clearly indicate that the Officer of the Corporation should conform to the provisions of the Planning Act with special reference to the provisions of Section 14 of the Planning Act and they shall not also grant any permission or approval or sanction required by or under the Corporation Act to any person if it relates to any matter in respect of which compliance with the provisions of the Karnataka Town and Country Planning Act, 1961 is necessary. However, there is no provision under the Corporation Act which would in any way override the provisions of the CITB/BDA Act and the Rules made thereunder.

30. In the light of the foregoing discussions, it should be held that the building in question in the first Writ Petition has come into existence in clear disregard of the scheme of allotment of sites sanctioned by the CITB/BDA Act and the Rules made thereunder. Respondent-4 could not have firstly obtained a licence in its favour for putting up Multi-storeyed construction and secondly that licence could not have been utilised for putting up construction by converting two sites into one site without the sanction of the BDA. The sanction obviously was not obtained because there was no rule under the rules of allotment for the consolidation of two big sites into one building site. Likewise, if such permission had been sought for by respondent-4 from the BDA the same would not have been granted in the light of the submission made by the learned Counsel for B.D.A. It should be noticed that though B.D.A. had not filed its return, its learned Counsel appeared before this Court and has taken me through the provisions of the B.D.A. Act and the Rules in order to support the contention of the petitioners in the first Writ Petition. In the second Writ Petition a similar point arises for consideration and no separate arguments are necessary on this point. Once it is held that no licence could have been granted to respondent-4 to put up a building on a site which was formed by the consolidation of two other sites, it necessarily follows that the building licence was not in accordance with law and on the basis of that licence no building could have been put up on the sites in question.

31. The second point that arises for consideration in the first Writ Petition is whether the building which has reached the stage of First Floor should be demolished on the ground of deviations from the sanctioned plan.

32. The licence which had been granted in favour of respondent-4 should be strictly in conformity with the building Bye-laws framed by the Corporation. There is a very serious controversy on this aspect of the case. Both the Corporation and respondent-4, in their return, have justified the construction of the building in the manner it had been done with reference to the Bye-laws. In the course of the proceedings, the Deputy Director of Town and Country Planning has produced his inspection notes of the construction in question and those notes bear out that the building had been commenced leaving necessary set backs as per the sanctioned plan except that the height of the basement floor which is constructed is 5 ft. from the crown of the floor. The permissible limit is 34" above the road level. So, these notes indicate that there is a deviation from the sanctioned plan in so far as it relates to the height of the basement floor. The petition in the Writ Petition has brought to my notice a number of other deviations from the sanctioned plan and contended that the plan itself is contrary to the Building Bye-laws and the Zonal Regulations. Respondents-4 and 5 have filed a rejoinder and the Corporation has also supported them to some extent. In view of my finding on point No. 1 which appears to be a substantial point, this point is kept open.

33. One more factor which has persuaded this Court to hold in favour of the petitioners is that the indiscriminate grant of licences to build multi-family dwelling units has resulted in the increase in the land values steeply in this area in question. The inevitable consequence of this would be a steep rise in the property taxes which would be beyond the capacity of the owners, most of whom are retired persons or are Government employees with fixed income. Speculation in land will drive out the present single or double occupancy pattern of living envisaged in the layout scheme. As such the very character of the area is being slowly but surely changed from a residential to a commercial zone. This kind of activity, if unchecked, will defeat the very objective of proper and planned utilisation of land namely discouragement of speculation and profiteering in land use which are central to the Planning Act.

34. An additional fact which has to be noticed against the building of multi-storeyed apartments is the provision of the Karnataka Apartment Ownership Act, 1972 and the rules made thereunder. Under that Act the multi-storeyed apartments are governed by the provisions of that Act. The definition of the word property under that Act reads as:

"Property" means the land, the building, ail improvements and structures thereon, all owned in free-hold or held on lease or as occupant under any law relating to land revenue and all easements, rights and appurtenance belonging thereto and all articles of personal property intended for use in connection therewith, which have been or are intended to be submitted to the provisions of this Act."

35. In my view, this definition of the word property would not be applicable to the sites held by the various holders in the areas in question which are control led by the statutory provisions of the CITB/BDA Act and the Rules made thereunder. There is no provision under the Karnataka Apartments Ownership Act expressly or impliedly overriding the provisions of the CITB/BDA Act. The BDA Act is a later Act and therefore, the petitioners could successfully urge that even though the Karnataka Apartments Ownership Act had regularised the ownership of multi-storeyed apartments under that Act, it does not permit the exploitation of sites whose allotments are regulated by CITB/BDA Act and the Rules made thereunder by the construction of multi-storeyed buildings in those sites.

35.1 For these reasons,

a) The corporation is not empowered to grant licences to the owners of the sites in the areas in question to put up multi-storeyed/multi-family dwelling units.

b) The schemes under both the CITB Act and B.D.A. Act provide for the construction of residential houses by the owners of the sites in question and not for exploitation of those sites for construction of multi-storeyed and multi-family apartments for a commercial purpose-residential or non-residential.

c) The schemes envisage that persons who were not a allotted sites and who could not have been allotted sites would not be entitled in law to own apartments by taking advantage of the building licences which are not valid for the construction of multi-family dwelling units on the sites in question.

36. Accordingly these petitions are allowed and there shall be a declaration to the effect that the building licence in the first Writ Petition sanctioned to respondents-4 and 5 is contrary to the Rules of Allotment and the agreement entered into by the vendor of the sites namely, the CITB/ BDA with the allottees and consequently, the licence (Annexure-A) produced in the Writ Petition is bad in law and it is quashed. The Corporation shall ensure that respondents-4 and 5 shall not proceed with the construction in question any further. The Corporation should give effect to this order by having recourse to the relevant provisions of Section 321 of the Corporation Act and the other relevant provisions of that Act for the purpose of demolition of the construction already put up in the site in question in the first Writ Petition. There shall be a direction to the Corporation in the 2nd Writ Petition not to issue any licences to any third party for putting up multi-storeyed and or multi-family dwelling apartments in the site in question in contravention of conditions of allotment, the agreement Of allotment and the relevant provisions of the CITB/BDA Act and the Rules made thereunder.

37. After the pronouncement of this order, learned Counsel for respondent-4 in the first Writ petition made a submission that the operation of the order should be stayed for a period of four weeks. The Standing Counsel for the Corporation submitted that no action for demolition would be taken for a period of four weeks. This submission is recorded. However, it is made clear that respondent-4 shall not proceed with the construction on the basis of the assurance given by the Corporation Counsel.