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PETITIONER: RAJATHA ENTERPRISES

       Vs.

RESPONDENT: S.K. SHARMA & ORS.

DATE OF JUDGMENT03/02/1989

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) DUTT, M.M. (J)

CITATION:  1989 AIR  860            1989 SCR  (1) 457  1989 SCC  (2) 495        JT 1989 (1)   211  1989 SCALE  (1)277

ACT:     Karnataka  Municipal  Corporations Act,  1976: ss.   342     &  505/Karnataka  Town and Country Planning  Act,  1961:  s.     14"Construction of building in violation of statutory provi-     sions            Compounding       of        deviation--Validity     of--Demolition--Whether called for.         Constitution  of  India: Articles 226, 32  &  14  Public     Interest  Litigation--Construction of building in  violation     of  statutory provisions--Petitioner neither a      resident  in     the    neighbourhood        nor    a    person    affected    by     construction---Building      not  a source of danger  either  to     inmates      or public--Quality of construction not under  chal-     lenge---Held. public interest not prejudiced.

HELD:

   The  Government  of Karnataka by a  tender  notification dated  17  August, 1979 offered for  lease  Government  land measuring  6000  sq. It. in the city of Bangalore  for  con- struction  of a shopping complex-cumschool building  on  the basis  of a plan approved by the Government. The lessee  had to construct 15 class rooms each measuring 20’ X 15’  on the second floor of the building and they had to be handed  over to  the Government free of rent immediately  upon  construc- tion. After the expiry of the lease period of 26 years,  the building with all its structures and fixtures was to vest in the  Government free of all encumbrances. By  a  corrigendum issued  pursuant to the tender notification, the area  which was to be leased out was corrected as 12166 sq. ft.     The appellant was granted lease of the said plot of land the  boundaries of which were described in the  schedule  to the  lease deed. On subsequent measurement the  land  within the said boundaries was found to be 15517 sq.ft.     The  appellant undertook to construct the Said  shopping complexcum-school on the basis of the licence granted by the Municipal   Corporation.  While  the  construction  was   in progress the respondent No. 1 questioned the legality of the said  licence in a public interest litigation by writ  peti- tion alleging violation of the Karnataka Municipal  Corpora- tions  Act,  1976. Later, the  Municipal  Commissioner  also issued show 458

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cause notice to the appellant stating that the plan obtained by  them had violated the Zonal Regulations made  under  the Karnataka  Town  and Country Planning Act, 1961.  But  after going  through their reply, the Commissioner by  his  letter dated  June  30,  1983 permitted them to  proceed  with  the construction.  The  High Court by its order dated  July  18, 1986 partly allowed the writ petition and quashed the  order of the Commissioner, directing him to record findings on the objections raised in the show cause notice.     The  Commissioner  in his order dated  August  17,  1987 found  that  the appellant had not been guilty of  any  mis- representation in his endeavour to obtain the permission  of the  authorities. He further observed that it has  been  the practice  in the City Corporation not to insist upon a  com- mencement  certificate from the planning authority  for  the purpose  of development and held that the absence of such  a certificate in the instant case did not violate the grant of licence.  However, he took measurements of the building  and by  his order dated November 3, 1987 directed the  appellant to reduce the height of the building to 35’0" having a total area  of  30415 sq.ft. within thirty days failing  which  he threatened to demolish the three upper floors of the  build- ing  at the cost of the appellant. The building as it  stood then had six floors.     In  an interlocutory application filed by the  appellant in  the disposed of writ petition the High Court  set  aside the Commissioner’s order requiring the appellant to demolish the  4th floor. It also set aside the order of  the  Commis- sioner  to demolish the 5th floor but the  Commissioner  was given  liberty to take action for compounding the  deviation and  till then restrained the appellant from  occupying  the 5th floor. The Commissioner’s order directing the  appellant to demolish the 6th floor was, however, confirmed.     In the special leave petition preferred by the petition- er-respondent  against  that part of the order of  the  High Court that went in favour of the appellant, it was contended for him that the public interest was prejudiced in so far as the building had been constructed contrary to the applicable provisions  of  the Corporations Act and the  Planning  Act, that the leasehold comprised 12166 sq. ft. while the  appel- lant  was  in possession of 15517 sq. ft.  which  was  clear evidence  of encroachment on the part of the appellant  over an area of 3351 sq. ft., that if the area of the site,  i.e. 12166  sq. ft., is multiplied by 2.5, the permissible  floor area  of the building comes to 30415 sq. ft., that the  con- structed  area  being 45974 sq. ft. there was an  excess  of 15559  sq.  ft. which was far too great a  deviation  to  be allowed for compounding. 459    In the appeal by special leave assailing the order of the High Court authorising demolition of the sixth floor, it was contended for the appellant that the respondent was  neither a  resident in the neighbourhood of the building nor  was  a person affected by the construction of the building; that no member of the public had come forward to say that his priva- cy had been affected by the construction of the building  or the  safety  of the neighbourhood or of the inmates  of  the building  had been in any manner endangered, the  respondent therefore  had neither any personal grievance  to  vindicate nor any public cause to espouse in challenging the  validity of the licence granted; that the actual area demised to them was the total extent of the land comprised within the speci- fied  "boundaries, that is, 15517 sq. ft. and that  was  the area  utilised  for construction, that  in  calculating  the floor area ratio in respect of floors 3 to 6 the Corporation

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failed to exclude the floor area meant for common use,  that when  the  floor area is so computed the  total  floor  area would  not be 45974 sq. ft., as alleged but only  41014  sq. ft., that the appellant derived no right under the lease  in respect of an area of 4500 sq. ft. on the second floor  uti- lised  exclusively  for  the  Government  Girls’  School,the possession and enjoyment of which had vested in the  Govern- ment immediately upon the completion of construction of that space,  and that the Commissioner having held that  the  ab- sence  of  a commencement certificate did  not  violate  the grant  of licence for the purpose intended,it could  not  be said that the construction of the building was in violation of the licence granted. Allowing  the appeal and dismissing the special leave  peti- tion,     HELD:  1. There is no material whatsoever on the  record to suggest that the appellant has at any time acted  fraudu- lently  or  dishonestly,  or that the building  has  in  any manner become a source of danger either to its inmates or to the neighbouring public. The quality of the construction  of the building was also not under any challenge. It could not, therefore,  be said that the public interest was  prejudiced in any manner whatsoever. [463B-D]     2.  The  tender notification mentioned an area  of  6000 sq.ft.,  whereas the corrigendum issued by the  Commissioner stated  that  the extent of the land under lease  was  12166 sq.ft. On subsequent measurement the land within the  bound- aries mentioned in the schedule to the lease-deed was  found to be 15517 sq.ft. in extent. [465C]     This shows that the appellant was put into possession of an area of 15517 sq.ft. by the State Government in terms  of the lease deed. It could 460 not.  therefore, be said that there was any encroachment  on the part of the appellant. [465D]     3.  The  total  site area being 15517  sq.ft.,  and  the permissible FAR in relation to the site area being 38792 sq. ft.,  as against the determined area of 45974 odd  sq.  ft., the excess FAR is only 7182 sq.ft. When an area of 4500  sq. ft. occupied by the school is excluded from the excess  area by reason of the school having vested in the Government upon the  completion of the building, the actual excess  area  in the  possession and enjoyment of the appellant is only  2682 sq.ft. The permissible limit of compounding being 5 per cent of the permissible FAR, which works out to 1940 sq.ft.,  the actual area of deviation outside the permissible compounding limit is not larger than 742 sq.ft. [467H; 468A-C]     4.  On  the facts found and, in the light  of  what  the Commissioner  says about the practice of the Corporation  in regard  to  the commencement certificate there  was  neither justice nor equity in the High Court authorising the demoli- tion of the sixth floor. [468C; 467H]     5. In the absence of any evidence of public safety being in  any manner endangered or the public or a section of  the public  being in any manner inconvenienced by reason of  the construction of the building, whatever may be the  grievance of the Ist respondent, the High Court was not justified,  at the  instance of the Ist respondent claiming himself  to  be the champion of the public cause, in ordering the  demolish- ing of any part of the building, particularly when there  is no evidence whatsoever of dishonesty or fraud or  negligence on the part of the builder. [468C-D]     Ramsharan Autyanuprasi & Anr. v. Union of India,  [1988] 2 SCALE 1399 and Sachidanand Pandey & Anr. v. State of  West Bengal & Ors., [1987] 2 SCC 295, relied on.

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   The  impugned  order of the High Court in so far  as  it permits  or  directs the demolition of the sixth  floor  is, therefore,  set  aside. The rest of the order  of  the  High Court is affirmed. [468E]

JUDGMENT:

   CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  634  of 1989 Etc.     From  the  Judgment  and Order dated  25.3.1988  of  the Karnataka High Court in W.P. No. 15996 of 1981 and I.A.  No. XIII. T.S. Krishnamurthy lyer, Dr. Y.S. Chitale, A.K. Sen, H.B. 461 Datar,  R.  Ramachandran, R.B. Datar, Ranjit  Kumar,  N.D.B. Raju,  N. Nettar, M. Veerappa, and S.S. Javali for  the  ap- pearing parties. The Judgment of the Court was delivered by     THOMMEN,  J. Special leave is granted in  Special  Leave Petition  (Civil)  No. 5275 of 1988 and we  now  proceed  to dispose of the appeal.     This  appeal  arises from the judgment and  order  dated 25th  March, 1988 of the Karnataka High Court in Writ  Peti- tion  No.  15996  of 1981 filed by the  Ist  respondent  who claims  to  espouse a public cause in what is  styled  as  a public interest litigation.     The  appellant, Rajatha Enterprises represented by  K.V. Shivakumar  is  a contractor in whose  favour,  pursuant  to tender notification dated 17.8.1979, a lease was granted  by the  Karnataka  Government  in terms  of  lease  deed  dated 22.12.1979 whereby the appellant undertook to construct at 8 12/1,  Old Taluk Kutchery Road, Chickpet, Bangalore  City  a shopping complex-cum-school on the basis of a licence grant- ed by the Corporation of the City of Bangalore (the  ’Corpo- ration’).  The appellant commenced the construction  of  the building. The legality of the licence was questioned by  the Ist  respondent, S.K. Sharma in the Karnataka High Court  in Writ  Petition No. 15996 of 1981 alleging that  the  licence was granted in violation of the provisions of the  Karnataka Municipal  Corporations Act, 1976 (the ’Corporations  Act’). On  1.3. 1983 the Commissioner of the Corporation  issued  a show  cause  notice stating that the plan  obtained  by  the appellant  violated  the Zonal Regulations  made  under  the Karnataka Town and Country Planning Act, 1961 (the ’Planning Act’).  The  appellant denied the allegations by  his  reply dated 24.3.1983. On receipt of that reply, the  Commissioner made the following order dated 30.6.1983: "After  going through your reply cited at S1. No.  2  above, you are permitted to proceed with the construction  directly in accordance with the sanctioned plan." The  High Court by its order dated 18.7.1986 partly  allowed the  writ petition of S.K. Sharma and quashed the  order  of the  Commissioner  of the Corporation dated  30.6.1983.  The Court further directed the Commissioner to record his  find- ings on the objections raised in the show cause notice dated 1.3.1983. 462     Thereafter, Special Leave Petition (C) No. 1122 of  1986 was  filed  in this Court by the appellant  challenging  the judgment  of  the High Court. During the  pendency  of  that petition the Commissioner took measurements of the  building and  made orders dated 17.8.1987, 21.8. 1987 and  3.11.1987. The  appellant  was directed to reduce that  height  of  the

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building to 350" having a total floor area of 30,415 sq. ft. within  30 days from the date of receipt of the order  dated 3.  11.  1987, failing which the Corporation  threatened  to demolish the three upper floors of the building at the  cost of the appellant. The appellant was also directed to provide space  for  car parking. In the light of the orders  of  the Commissioner,  this Court left open the questions raised  by the appellant in the special leave petition and disposed  of the  same  with  freedom to it to file a  writ  petition  or interlocutory application in the High Court to question  the correctness of the order of the Commissioner.     The  appellant accordingly approached the High Court  by filing  IA  No. XIII in the disposed of  Writ  Petition  No. 15996  of 198 1. That petition was disposed of by  the  High Court by its impugned order dated 25.3. 1988. The High Court accepted  some of the contentions of the appellant  and  re- jected  certain other contentions. The High Court set  aside the Commissioner’s order requiring the appellant to demolish the 4th floor of the building. The High Court also set aside the  order of the Commissioner to demolish the 5th floor  of the  appellant’s  building but the  Commissioner  was  given liberty  to take action for compounding the deviation  indi- cated  by the Court. Until the deviation was so  compounded, the appellant was restrained from occupying the 5th floor of the building. The Commissioner’s order directing the  appel- lant  to demolish the 6th floor was, however,  confirmed  by the  High  Court  and it held that  the  Corporation  should proceed  to demolish the 6th floor and recover the  cost  of demolition  from  the appellant if the appellant  failed  to demolish  that  floor as directed by the  Commissioner.  The appellant was further directed to reserve the basement floor of the building exclusively for car parking.     Aggrieved by the order of the High Court authorising and directing the demolition of the 6th floor, the appellant has approached  this Court by special leave in the present  pro- ceedings  under  Article 136 of the  Constitution.  The  Ist respondent in this appeal, S.K. Sharma who was the petition- er before the High Court, has sought leave of this Court  in Special Leave Petition (Civil) No. 5562 of 1988 to challenge the  order of the High Court dated 25.3.1988 insofar  as  it has  set  aside the order of the Commissioner  ordering  the demolition of the 4th and 463 5th floors of the building and given liberty to the  Commis- sioner  to  compound  the deviation in respect  of  the  5th floor.     S.K.  Sharma  challenges the permission granted  to  the appellant  to construct the building. He contends  that  the public  interest is prejudiced insofar as the  building  has been  constructed contrary to the applicable  provisions  of the Corporations Act and the Planning Act. It may,  however, be  stated at this stage that no contention has  been  urged before  us as regards the safety of the building  consequent upon  the alleged violation of the statutory provisions.  It is  not suggested that the appellant has acted  fraudulently or  dishonestly.  In fact,  the  Commissioner  categorically finds  in his order dated 17.8.1987 that the  appellant  has not been guilty of any misrepresentation in his endeavour to obtain the permission of the authorities. There is no  mate- rial  whatsoever  to suggest that the appellant has  at  any time  acted  dishonestly  or that the building  has  in  any manner become a source of danger either to its inmates or to the neighbouring public. The quality of the construction  of the building is not under any challenge whatsoever.     We  shall  now refer to certain facts  relating  to  the

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construction of the building.     Offers  were invited by the Deputy Commissioner,  Banga- lore  District for lease,of Government land  measuring  6000 sq.  ft. within the boundaries specified in the  tender  no- tice. The object of the lease was construction of a shopping complex-cum-school building on the basis of a plan  approved by  the  Government. On the 2nd floor of  the  building  the lessee had to construct 15 class rooms each measuring 20  f. X  15  f. and they had to be handed over to  the  Government free  of  rent immediately upon  construction.  These  class rooms  were  meant for running a Government  Girls’  School. After the expiry of the lease period, the building with  all its  structures  and fixtures would vest in  the  Government free  of all encumbrances. The lessee had to  construct  the building  on  the land in question within a  period  of  two years or within a further period of one year as extended  by the  Government.  By a corrigendum issued  pursuant  to  the tender notification, the area which was to be leased out was corrected  as 12166 sq. ft. instead of the notified area  of 6000  sq.  ft. The boundaries were specified in  the  tender notification as well as in the corrigendum. On the North  of the land in question runs the D.K. Lane and on the South the O.T.C. Road. On the West of the land is Vidyavathi’s  Kapur- chand  Building. On the East runs the D.K. Lane. The  bound- aries are thus clear and 464 well-specified. The lease deed was executed on the 22nd  day of December, 1979 describing the boundaries in the  Schedule to  the deed and stating the demised area as  comprising  12 166 sq. ft. The appellant, the lessee, was permitted by  the Government, the lessor, to erect the building and structures in accordance with the plan submitted by the appellant along with the tender. The lease was for a period of 26 years.               The lease deed reads:               "Clause 24--The Lessee should construct in the               2nd floor, fifteen class rooms, each measuring               20  feet  x 15 feet, with  necessary  sanitary               arrangements,  which should be handed over  to               Government,  free of rent immediately on  con-               struction, for running Girls’ School."               "Clause  25--After expiry of the lease  period               fixed,  all structures, including  electrical,               water and sanitary fittings in the building so               constructed  and  all  other  structures   and               fixtures  pertaining  thereto  shall  vest  in               State Government, free from all encumbrances."     However, the explanatory statement filed by the  Commis- sioner in the High Court shows that, on actual  measurement, the  area within the boundaries described in the lease  deed was found to comprise 15517 sq .ft.     The  building as it now stands has 6 floors, apart  from the  basement comprising 4570 sq.ft. which is  reserved  for car  parking.  In paragraph 5 of the impugned order  of  the High  Court,  the  total area, excluding  the  basement,  is stated as follows:       (i)    Ground floor            8779.52 sq. ft.       (ii)   First Floor             8285.95 sq. ft.       (iii)  Second floor            8800.03 sq. ft.       (iv)   Third floor             5027.15 sq. ft.       (v)    Fourth floor            5027.15 sq. ft.       (vi)   Fifth floor             5027.15 sq. ft.                (vii) Sixth floor     5027.15 sq. ft.                Total:                45974.10 sq. ft.      The 2nd floor having an area of 8800.03 sq. ft.  houses the school in an area of 4500 sq. ft. This school, as stipu-

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lated in the lease, became 465 vested in the Government immediately upon its  construction. The  rest  of  the building remains in  the  possession  and enjoyment  of  the appellant for the period  of  the  lease, which is 26 years, upon the expiry of which it would vest in the Government. The appellant has thus possession and enjoy- ment  of  the  building only in respect of  the  total  area excluding 4500 sq. ft.     Counsel  for  the  first respondent  contends  that  the leasehold comprises 12 166 sq. ft. while the appellant is in possession  of 155 17 sq. ft. This, Counsel points  out,  is clear evidence of encroachment on the part of the  appellant over  an area of 335 1 sq. ft. We see no merit in this  con- tention. As stated above, the tender notification  mentioned an  area of 6000 sq. ft., whereas the corrigendum issued  by the  Commissioner stated that the extent of the  land  under lease was 12166 sq. ft. On subsequent measurement, the  land within the boundaries mentioned in the Schedule to the lease deed  was  found to be 15517 sq. ft. in extent.  This  shows that the appellant was put into possession of an area of 155 17  sq. ft. by the Government of Karnataka in terms  of  the lease deed. The entire property together with the structures standing  thereon  will have to be duly handed over  by  the appellant  to the Government in terms of the lease upon  its expiry.     The 1st respondent’s Counsel, however, points out  that, as  found  by the High Court, the total floor  area  of  the building is 45974 sq. ft. while the permissible area  should not exceed 2.5 times the total area of the site. The area of the site, as mentioned in the lease deed, is only 12166  sq. ft.  That, if multiplied by 2.5, comes to 30415 sq. ft.  The constructed area being 45974 sq. ft., there is an excess  of 15559 sq .ft. It is far too great a deviation for  compound- ing and the High Court was wrong in ordering the compounding of such a major deviation.      The appellant’s Counsel, Shri T.S. Krishnamurthy  Iyer, on  the other hand, submits that the actual area demised  to the  appellant  is the total extent of  the  land  comprised within  the  specified  boundaries. Although  the  area,  as mentioned  in  the lease deed, is 12166 sq. ft.  the  actual area,  as  determined on further verification, is  not  less than  155 17 sq. ft., and that is the area that is  utilised by  the appellant for the construction of the building.  The approved  plan on the basis of which construction  was  com- pleted by the appellant must be understood as a plan for the utilisation  of  the total area of 155 17 sq.  ft.  This  is clear  from the explanatory statement filed by  the  Commis- sioner  in the High Court. With reference to this area,  the constructed  area,  according to the  Commissioner,  Counsel points  out, is 10198 sq. ft. which works out to  65.72  per cent coverage. 466     Shri  lyer  further points out that in  calculating  the Floor  Area  Ratio (FAR) in respect of floors 3  to  6,  the Corporation failed to exclude the common passages comprising 1260  sq. ft. in each floor. Zonal Regulations of 1972  pro- vide that in calculating the floor areas, the areas  covered by the staircase, lift rooms and water tanks etc. should  be excluded.  This means, Counsel says, the floor  areas  meant for common use or for providing services to the occupants of the  building  and not meant for  habitation  or  commercial purpose  should be left out of the computation of the  Floor Area  Ratio.  When the floor area is  so  computed,  Counsel submits, the total floor area would not be 45974.10 sq. ft.,

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as determined by the authorities, but only 41014 sq. ft.  So computed, the excess floor area would be negligible and  is, therefore, compoundable.     Assuming the total area of all the seven floors, includ- ing  the ground floor, is 45974.10 sq. ft., as found by  the authorities, the FAR permissible with reference to the  site area of 155 17 sq. ft., according to Shri Iyer, works out to 38792  sq. ft. There can be no doubt about the site area  as on measurement it is found to be 155 17 sq. ft. comprised in the  specified  boundaries.  This being  the  position,  the excess  area  is 7182 sq. ft. It is on this basis  that  the High Court prohibited the demolition of any floor other than the 6th floor, but the High Court failed to notice,  Counsel points  out, that 4500 sq. ft. on the 2nd floor is  utilised exclusively for the Government Girls’ School the  possession and enjoyment of which vested in the Government  immediately upon  the  completion  of construction of  that  space.  The appellant  thus derived no right under the lease in  respect of an area of 4500 sq. ft. Neither possession nor  enjoyment which are the attributes of a lease vested in the  appellant at  any material time and at all material times they  vested in the Government. The High Court failed to take note of the fact  that  what is constructed is a  shopping  complex-cum- school building and what is demised to the appellant is only the  shopping complex and not the school area.  Furthermore, Counsel  says,  Section 342 of the Corporations  Act  grants exemption from the requirement of any licence or  permission in  respect  of  any place in the occupation  or  under  the control of the Central Government or State Government or  in respect  of any property of the Central Government or  State Government. That the land in question is the property of the State  Government Counsel says, is not in doubt.  That  4500 sq.  ft.  of  the area on the 2nd floor is a  place  in  the occupation  and  control  of the State  Government  is  also absolutely  clear from the terms of the lease.  Accordingly, Counsel  says, Section 342 exempts the area covered  by  the School from the requirements of any licence. 467     Referring  to  the  criticism of  the  1st  respondent’s Counsel as regards the failure on the part of the  appellant to  obtain the written permission of the Planning  Authority in  terms of Section 14 of the Planning Act, 1961 read  with Section 505 of the Corporation Act, Shri Iyer refers to  the order of the Commissioner dated 17.8. 1987 stating:               "It  has  been the practice in  the  Bangalore               City  Corporation  that no  such  commencement               certificate is insisted upon from the planning               authority  for  the purpose  of  "development"               only   .................................    As               permission  for running a school in  the  pro-               posed building was already accorded by Govern-               ment and as the land is located in the commer-               cial  zone,  it was not  necessary  to  obtain               clearance  from  the  planning  authority  for               change of land use.                         Considering these facts, I hold that               the absence of a Commencement Certificate from               the  B.D.A.  does  not violate  the  grant  of               licence  for the purpose intended and it  will               not amount to contravention of the  provisions               of Section 505 of the KMC Act, 1976."     Considering these aspects, Shri Iyer submits that  there is  no merit in the contention that the construction of  the building  by the appellant was in violation of  the  licence granted  or  that the licence under which  construction  was

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undertaken  was  contrary to statutory provisions  or  other orders.  The  public is in no manner aggrieved by  the  con- struction of the building. No member of the public has  come forward  to  say that his privacy has been affected  by  the construction of the building or the safety of the neighbour- hood  or  of  the inmates of the building has  been  in  any manner  endangered.  The 1st respondent.  Counsel  says,  is neither a resident in the neighbourhood of the building  nor is he a person affected by the construction of the building. He  has neither any personal grievance to vindicate nor  any public  cause to espouse in challenging the validity of  the licence granted to the appellant.     We have perused the records and considered the arguments on  both sides. We are not satisfied that, on the facts  and in the circumstances of this case, the learned Judges of the Division  Bench of the High Court were justified in  permit- ting  and  much  less directing the demolition  of  the  6th floor.  On  the facts found, there is  neither  justice  nor equity  in authorising the demolition. The total  site  area being 468 155 17 sq. ft., as found by the High Court, and the  permis- sible FAR in relation to the site area being 38792 sq.  ft., as  against  the determined area of 45974 odd sq.  ft.,  the excess FAR is only 7182 sq. ft. When an area of 4500 sq. ft. occupied  by the school is excluded from the excess area  of 7182  sq. ft. by reason of the school having vested  in  the Government  upon the completion of the building, the  actual excess area in the possession and enjoyment of the appellant is  only 2682 sq. ft. The permissible limit  of  compounding being 5 per cent of the permissible FAR, which works out  to 1940  sq.  ft.,  the actual area of  deviation  outside  the permissible  compounding limit seems to be not  larger  than 742  sq. ft. In the circumstances, in the light of what  the Commissioner  says about the practice of the Corporation  in regard to the commencement certificate and in the absence of any evidence of public safety being in any manner endangered or the public or a section of the public being in any manner inconvenienced  by reason of the construction of the  build- ing,  whatever  may  be the personal grievance  of  the  Ist respondent,  the  High Court was not justified, at  the  in- stance of the Ist respondent claiming himself to be a  cham- pion of the public cause, in ordering the demolition of  any part of the building, particularly when there is no evidence whatsoever of dishonesty or fraud or negligence on the  part of  the  builder.  See the principle  stated  by  Sabyasachi Mukharji,  J. in Ramsharan Autyanuprasi & Anr. v.  Union  of India,  [1988] 2 SCALE 1399 and by Khalid J. in  Sachidanand Pandey  & Anr. v. State of West Bengal & Ors., [1987] 2  SCC 295.  Accordingly,  we set aside the impugned order  of  the High  Court insofar as it permits or directs the  demolition of  the  6th  floor and affirm the rest of  the  order.  The appeal is allowed in the above terms. We make no order as to costs. SLP (C) No. 5562 of 1988     For  the reasons aforesaid, the Special  Leave  Petition (Civil) No. 5562 of 1988 filed by S.K. Sharma is dismissed. P.S.S.                         Appeal  allowed  &   Petition dismissed. 469