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CASE NO.: Appeal (civil)  1415 of 1999

PETITIONER: R & M Trust                                       

RESPONDENT: Koramangala Resi. Vigilance Group  & Ors.   

DATE OF JUDGMENT: 19/01/2005

BENCH: ASHOK  BHAN & A.K. MATHUR

JUDGMENT: J U D G M E N T  WITH

Civil Appeal No. 1416 of 1999 Civil Appeal No. 1417 of  1999

A.K. MATHUR, J.

       This appeal and connected appeals were filed against the order passed  by the Division Bench of the Karnataka High Court dated 2nd July, 1998  whereby the Division Bench disposed of  Writ Appeal No. 1955 of 1993  alongwith Writ Appeal No. 777 of 1993.   

Facts which are necessary for disposal of these appeals are \026 the  Respondent Association Koramangala Residents Vigilance Group filed a  Public Interest petition challenging the building licence issued for  construction of multi-storeyed/ multi-apartments on Site Nos. 403 and 443 in  IInd and IIIrd Cross in III Block, Koramangala Layout, Bangalore, on the  ground that it is illegal, void and prayed for quashing of the licence and  direction to demolish the building already constructed  on the site. It was  submitted that the residents in the area had acquired sites and built houses on   the understanding and under the bona fide belief that the lay out would be  developed and maintained in accordance with law.  Grievance of the  Association was, the menace of multi-storeyed and multi-apartments  buildings in the Bangalore city particularly in Koramangala lay-out which is  considered to be a posh and prestigious lay-out, had been increasing.  Many  property developers, investors in buildings and speculators in real estate  were alleged to have started their activities which are detrimental to the  quality of life of the residents of the area.  Multi-storeyed buildings and  multi-apartment buildings were causing strain on the public amenities.  It  was alleged that the property developers by using their influence and money  are getting licences against the statutory prohibitions. The appellant  relied  upon the decision given in case of  Chandrashekar Hegde Vs. B.C.C.  [ILR 1988 Karnataka 356], (Single Bench) to contend  that the  Corporation was not empowered to grant licences to the owners of the sites  to build multi-storeyed  and multi-family dwelling units.  It was alleged that  the scheme under the City of Bangalore Improvement Act, 1945 and  Bangalore Development Authority  Act, 1976  provided for  construction  of  residential houses and not for exploitation of those sites for construction of  buildings in violation of law and with the object of  inflating the money  market of the builders.  It was alleged that in Writ Petition No. 7599 of  1987, the Karnataka High Court  directed  the Corporation not to issue  licences to any third party for putting up  multi-storeyed and multi-family  dwelling apartments in the sites allotted by the B.D.A. It was further alleged  that after the judgment in December, 1987, one of the appellants represented  to Respondent Nos.1 and 2 to re-examine the licences already issued for  putting up multi-storeyed building and  multi-family apartments in the light  of the law laid down by the Karnataka High Court.  In response to that,  respondent sent communications to all the licensees to stop further

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construction.  The Writ Appeal No. 306 of 1988 filed against the order of the  learned Single Judge was dismissed by the Division Bench on 14th  December, 1988 which is noted as Pee Kay Constructions Vs.  Chandrashekar Hegde, [ILR 1989 Karnataka, 241].  

       In this background, the present Public Interest Litigation was filed  which came up before a single Judge.  In this petition, the building licence  No. LP 169/87-88  issued in favour of  Respondent No.4  i.e. M/s R&M  Trust by  Respondent No.1 - the Corporation of the  City of Bangalore, for  construction of multi-storey building was  stopped  by letter dated 4.4.1988.    This letter was withdrawn by Respondent No.3  i.e. Deputy Director of  Town Planning Corporation of the City of Bangalore, by its letter dated 26th  March, 1991.  On receipt of  this letter, Appellant /Respondent No.4  resumed the construction. This action of the Respondent No.3 permitting the  Appellant /Respondent No.4 to proceed with the construction was  challenged to be arbitrary, illegal, unjustified   and violative of Article 14 of  the Constitution besides being  in violation of law, by the Respondent  Association, alleging that issue of licence in favour of Appellant/  Respondent No.4  is illegal and without jurisdiction.  The following prayers  were made in the Writ Petition which reads as under:  

(i)     Call for records from Respondents 1 to 3 pertaining to  building licence issued in R-1’s No. LP.353/87-88 for  putting up a Multi-storyed/Multi-apartment building on Site  No. 443, III Cross, III Block, Koramangal, Bangalore \026 560  034;

(ii)    Declare as illegal and void building licence No. LP.353/87- 88 issued by R-1 for the construction of a Multi- storyed/Multi-apartment building on Site No. 443, III Cross,  III Block, Koramangala, Bangalore \026 560 034;

(iii)   Direct R-1 to demolish the construction already put up on  Site No.443, III Cross, III Block, Koramangala, Bangalore \026  560 034 by having recourse to Section 321 of the K.M.C.  Act, 1973 (Karnataka Oct 14 of 1977) and other related  provisions of that Act; and

(iv)    Grant such other or further relief that this Hon’ble Court  may deem fit under the circumstances including costs."

This was contested by the Respondents and the learned single Judge  after hearing the parties held \026 "I have no hesitation to hold that licences  granted to Respondent No. 4 in these Writ Petitions  are contrary to law in  view of the law laid down in the case of Pee Kay Constructions."   

       But the learned Single Judge felt that the petition filed by the  Writ Petitioner suffered from laches and delay and, therefore, dismissed the  Writ Petition on the  grounds of delay and laches.  It was observed that the  dismissal of Writ Petitions will not prevent the Corporation from taking any  action permissible under the law.  Aggrieved against the present order  passed by the learned  Single Judge, the present Writ Appeal was filed and it  was alleged that the Writ Petition does not suffer from any delay or laches  nor any third party interest was created.  However, the respondents contested  this Writ Appeal, they did not file the appeal against the aforesaid order but  submitted that the law laid down in Pee Kay Constructions case (Supra)  was not a good law and the learned   Single Judge was not justified in holding that  licence granted to respondents  was contrary to law. The Division Bench after hearing the parties observed  that the law laid down in Chandrashekar Hegde Vs. B.C.C. [ILR 1988  Karnataka 356] and Pee Kay Constructions case (Supra) is  correct law.  Thereafter, the Division Bench examined the question of delay and laches.  

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After reviewing  the facts  the Division Bench held that there is no delay and  laches in preferring the writ petition. It was held that building licence was  issued in favour of appellant-builder on 19th August, 1987 and on 3rd  October, 1987. The Commencement Certificate was issued on 13th October,  1987 and 23rd November, 1987 and the Chandra Shekhar Hegde’s Case  was decided on 14/15/16th December, 1987 wherein it was held that the  Corporation was not justified in granting licence to the owners of the sites to  put up multi-storyed/multi-family dwelling units and the appeal was  dismissed on 14th December, 1988.  On 4th April, 1988, the Respondent \026 Corporation  issued a letter to the builders directing them to stop  construction.  The construction remained suspended upto 26th March, 1991,  when letter was issued to builder revoking to stop construction order,  permitting  them to proceed with the construction.  This  Writ Petition was  filed in the first week of November, 1991, as public interest litigation. The  explanation for the delay  was that the office bearers made enquiries from  the office of Corporation   the reasons for withdrawing of direction to stop  work but in vain, met the authorities of Corporation Respondent No.3 on  several occasions and then by a letter dated 7th October, 1991,  requested to  furnish the copies of certificate but the copies were not furnished.  They  protested  that there was no justifiable reason for such withdrawal.  They  also explained that the building is permitted to be constructed at Site No.403  which is a narrow road, the residents of area will  be subjected to great  inconvenience but without any result.  It was also contended that the third  party right had not been created. After the grant of permission, the  construction proceeded.  However, Appellant/Respondent in their turn   submitted that the third party interest had already been created because the  4th Respondent has issued shares on 21st May, 1988 and some of the flats  have been sold out. However, Division Bench  did not accept the plea of the  third party interest being created in the matter.  The Division Bench   observed that when the original files of Corporation were summoned by the  Court, it was found that between 4th April, 1988 and 14th February, 1991  nothing transpired.  However, the builder on 14th February, 1991 requested  for permission to complete the construction mainly on the ground that  substantial amount has been spent on purchase of  site and on construction of  ground with three floor building.  This letter was perused by the Deputy  Director of Town Planning on 20th March, 1991 which was submitted to  Commissioner on 21st March, 1991. It was observed that  all similar cases be   put up where building is completed with full structural work as per  sanctioned plan prior to judgment. It was found that there was no note by the  Deputy Director regarding Appellant/Respondent. Thereafter on 25th March,  1991, the order was passed by the Commissioner that he perused the note  and discuss the matter with CE and the DDTP and considered the matter, he  directed that the notice be withdrawn and  permission be accorded to  complete the building as per sanctioned plan.   The Division Bench observed  that these notes clearly show  non-application of mind and that the action of  the respondent was not in accordance  with law and was  passed without  giving any reasons. Thereafter, the Division Bench concluded that the view  taken by the learned Single Judge is right that the licence granted in favour  of Respondent Nos. 4 and 5 is contrary to law and liable to be quashed.  The  Division Bench further held that they did not agree with the view taken by  the  learned Single Judge that the Writ Petition suffered from delay and  laches and accordingly,  allowed the Writ Appeal, set aside the order of  learned Single Judge dismissing the same on the ground of delay and laches  and affirmed the finding that the licence granted in favour of Respondent  Nos. 4 and 5 is illegal and  quashed the licence issued in favour of  Repondent-builder,  and also quashed the order of Respondent Corporation   dated 26th March, 1991 allowing Respondent-builder to continue with the  construction and directed Respondent No.1 to demolish the illegal  construction put up on Site Nos. 403 and 443.  It was further directed that  the construction as raised by them is illegal and they were liable to bear the  expenses for demolition of the construction and Respondent Nos. 1 and 3 are  liable to pay costs to the  writ petitioner.            Aggrieved by this order, the present special leave petitions  were filed  and leave was granted and  operation of the order was stayed.

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 The learned counsel for the appellant  has seriously raised the  objection of entertaining this belated Public Interest Litigation and he  submitted that this was nothing but abuse of the process of the Court.    Secondly, he submitted that the licence which had been granted for  construction by the Respondent-Corporation was fully justified and no  illegality  was committed.  

All  the  three appeals Civil Appeal No.1415 of 1999,  Civil Appeal  No. 1416 of 1999 and Civil Appeal No. 1417 of 1999  arise against the order  passed  by the Division Bench.  Civil Appeal No. 1417 of 1999 have been   filed by bona fide purchasers of flats in the building, whereas CA 1415/99 &  CA 1416/99  have been filed by builders..

Now, in order to appreciate the contention raised by the appellants, it  may be necessary to dilate upon some facts of CA 1415/99.  Property No.  443, 2nd Cross, 3rd Block, Koramangala Extension, Bangalore, was allotted  by the City Improvement Trust Board to Dr. Alice Duraiswamy on 4th  March, 1971 and he was also put up in possession of this schedule land.  The  Bangalore Development Authority, successors in interest of City  Improvement Trust Board sold the schedule land in favour of Dr. Alice  Duraisamy under a registered Sale   Deed dated 27th March, 1981.  Dr. Alice  Duraiswamy then sold the land in favour of one M/s Batra Developments  under a registered Sale Deed dated 12th June, 1987. The development and  planning of  the City of Bangalore  and construction of the building thereon  were governed by the Karnataka Town and Country Planning Act, the  Outline Development Plan and the Comprehensive Development Plan as  well as the Zoning Regulations framed thereunder.  The Corporation of the  City of Bangalore also framed Bye-Laws in conformity with the  Development Plan and the Zoning Regulations.    In accordance, therewith,  M/s Batra Developments applied for and obtained licence from the  Corporation of the City of Bangalore for construction of basement, ground  and three upper floors on 3rd October, 1987.  And thereafter, the construction  commenced and by 3rd April, 1988, the basement and ground floor of the  building had been completed.  On 4th April, 1988, the construction was  stopped on the basis of the decision of the Karnataka High Court in Pee Kay  Constructions Case. Thereafter, the High Court of Karnataka in a case  known as Happy Home Builders Case held that when once a licence is  granted by the Corporation Authorities, the Corporation cannot stop  construction of building. M/s Batra Developments thereafter made a  representation to the Corporation Authorities and submitted  that  the  substantial portion of the building has been completed and considerable  investment have been made and the licence granted thereof is in accordance  with the Building Plan and therefore,  they may be permitted to complete the  construction. The Corporation Authorities after taking into consideration the  representation, permitted M/s Batra Developments to proceed with the  construction.  M/s Batra Development  entered into an agreement of sale  with M/s Raj Trust on 16th June, 1989. Consequent to the said agreement  under the Development Agreement dated 8th May, 1991 between M/s Raj  Trust and the appellant, the construction proceeded.  When the building was  practically completed during November, 1991, the present Writ Petition was  filed challenging the very licence issued on 3rd October, 1987.  The learned  Single Judge dismissed the Writ Petition on the ground of laches.  It was  pointed out that the building was occupied by 12 families and  the grant of  licence has been declared to be invalid after 11 years, but the Division  Bench did not agree and directed demolition of building  on the basis of  Pee  Kay Constructions case.   Therefore, the question now arises for our  consideration is whether the issue of licence on 3rd October, 1987  by  Corporation was valid or not.   

Similarly, in the another Civil Appeal No. 1416 of 1999,  the question  of law is identical but facts are little different.  In this case, on 16th July,  1969, City Improvement Trust Board allotted a site bearing No. 403,  Kormangala measuring 80’ x 120 (9600 sq.ft.) (Schedule property) to Mr.  U.L. Nagraj.  On 13th July, 1982, absolute Sale Deed was executed by

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Bangalore Development Authority in favour of Mr. U.L. Nagraj with  following conditions: "That the schedule site shall be held by the second party and  enjoyed the rents and profits etc. received thereof, be enjoyed  subject to the following conditions:-

(1)     The building to be constructed shall be used whole  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 are conducted by  mechanical power or otherwise."

Thereafter, on 4th March, 1982/16th April, 1987, a Sale Deed  executed by Mr. U.L. Nagraj in favour of Mrs. Ratna Lachman Bhojwani.  Mrs. Ratna Lachman Bhojwani sold schedule property in favour of the  appellant. On 17th August, 1987, the plan was approved for construction of  ground plus three upper floors plus mezzanine floor.  A licence was issued  by the Corporation of City of Bangalore. The plan was sanctioned for a  period of two years as per orders of the Commissioner from 17th August,  1987 to 16th August, 1989.  One of the conditions was that the construction  should be done within two years.    The appellant started the construction  immediately.  On 13th October, 1987, the Commencement Certificate was  issued,  as per Building Bye-Laws.  On 21st May, 1988, a share certificate  was    issued entitled    them    to ownership of flats.. Then, on 4th April,  1988 the B.C.C. asked the respondent to stop the work in the light of Pee  Kay Constructions case. It was alleged  by appellant that the entire building  except the terrace of last floor had been completed.  On 29th March, 1989,  another decision was given by the Karnataka high Court in the case of  Happy Home Builders  wherein it was held that the construction have been  carried out in pursuance of the sanction given by the B.C.C. and Corporation  is  estopped from stopping such construction.  This order of learned Single  Judge was affirmed by Division Bench which reads as under :  "Delay of 14 days in filing W.A.Nos. 1145 to  1151 of 1989 and 18 days in filing of W.A. No. 1182/89 is  condoned as sufficient cause is shown.  

2. We have heard the learned counsel and find  that in the circumstances of this case, without going into the  question of the powers of the authorities to grant licence  contrary to section 505 of the Karnataka Municipal  Corporation Act, the judgment of the learned Single Judge can  be sustained on the ground that there has been an unexplained  delay on the part of the Corporation in taking timely action  against the builders/owners.  The Corporation is estopped  from taking any action in view of its own conduct in allowing  the builders to raise construction on the basis of the licences  which were granted in contravention of the provisions of  Section 505 and in allowing the building to be occupied.  

3.  In this  view of the matter, we find that the  judgment of the learned Single judge, without expressing any  opinion on the question of law, does not call for interference.  Consequently the appeals are dismissed.  However time is  granted to the Corporation for compliance of the judgment of  the learned Single Judge upto 5th August, 1989."

On the basis of this judgment a representation was made by  appellant & Corporation revoked their letter of stopping construction.  That   gave rise to present PIL. It is also relevant to mention here that a Special leave Petition  was filed against the Pee Kay Constructions Case before this Court and this  Court disposed of that S.L.P. without going into the merits of the judgment  of the High Court.  The order of the High Court was modified in following  terms :

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"  Leave granted.

After hearing counsel for both the parties and  giving them sufficient time to obtain instructions, we are  of the opinion that,  in the circumstances of the case,  it is  not necessary to go into the merits of the judgment of the  High Court but that the judgment of the High Court be  modified as set out below.

It is a fact that the appellants have constructed two  floors of the building : the ground floor and the first floor  alongwith the basement.  In our opinion, the interests of  justice require that they should not be asked to demolish  it.  It is enough if they are restrained  from constructing a  second and third floor as originally planned.  

The High Court has also held that the appellants  can have only one residential unit on the site.  Counsel  for the respondents points out that the appellants have  submitted a revised plan to the Corporation, subsequent  to the judgment of the High Court, by which they seek  approval of the construction of a single residential unit on  the ground floor and a single residential unit on the first  floor, and that, in the circumstances, they will not object  to this revised plan being approved.  On the other hand,  counsel for the appellant requests that he may be allowed  to construct three residential units on the ground floor  and the first floor as originally planned.  After hearing  both sides at some length, we are of the opinion that the  appellants may be permitted to have two (not three)  residential units on each of the two floors.  There should  however be no construction above and beyond the first  floor of the property and the property should not be used   for any purpose other than residential purpose.  We direct  accordingly.  This is an arrangement broadly agreed to by  both the parties.   

The appeal is disposed of accordingly.   There will  be no order as to costs.  

We direct that the revised plan submitted to the  Corporation by the appellants subsequent to the decision  of the High Court but modified so as to have two flats or  apartments on each of the floors instead of one be  approved by the Corporation and the authorities.   Constructions on the site will stand otherwise restricted  on the lines already indicated above."                   The S.L.P. was accordingly disposed of but the ratio laid down  in the Pee Kay Constructions case was not examined by this Court on   merit. In fact, the S.L.P. was disposed of with the agreement of both the  parties.  

       And the third C.A. No. 1417 of 1999 was filed by Motor  Industries Company Limited who have purchased two flats in this building  for about Rs. 21.1 lakhs on 21.2.1994 and the same are in  occupation of its  employees. It is alleged that the petitioner who had bought these flats, was  neither aware of the controversy pertaining to the building nor about any  order  by any court. It was  also alleged that the number of persons has  purchased flats in this residential building and they are facing the similar  predicament.  Hence, these three appeals are before us for the final disposal.   

Before we address to the questions raised with regard to the  maintainability of the present public interest litigation and the delay in filing  the same, we may examine necessary provisions of law bearing on the

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subject.   The first Act with which we are concerned is the  Karnataka Town  and Country Planning Act, 1961 ( hereinafter to be referred to as the  Act of   1961). This Act primarily deals with the planned growth of land use and  development and for the making and execution of Town Planning Scheme in  the State of Karnataka. By this Act the entire planning of State  governed  and the Town Planning Schemes are made for development of the State.  Development plan means Outline Development Plan or Comprehensive  Development Plan prepared under this Act. Section 14 of the Act lays down   enforcement of the outline development plan and the regulations.   It  says  that from the date when this Act come into force every land use, every  change in land use and every development in the area covered by the plan  shall conform to the provisions of this Act, the Outline Development Plan  and the regulations. It further stipulates  that no such change in land use or  development  shall be made except with the written permission of the  Planning Authority. Therefore, the whole purpose of this Act is the plan  development of the State.

The next is the  City of Bangalore Improvement Act, 1945  (hereinafter to be referred to as the ‘Act of 1945‘)  and the Rules framed  therein with which we are concerned, are known as  the City of Bangalore  Improvement (Allotment of Sites) Rules, 1964 (hereinafter to be referred to  as the ‘Rules of 1964 ‘). We are  primarily concerned with this Act and the  Rules, subsequently this  Act of 1945 and Rules of 1964  have been repealed  and they have been replaced by the Bangalore Development Authority Act,  1976, and the Bangalore Development Authority (Allotment of Sites ) Rules,  1982. The entire controversy centres around these Acts and the Rules. The  third Act with which we are concerned is the Karnataka Municipal  Corporations Act, 1976. Under this Act the Bangalore Municipal  Corporation  granted permission to the appellant for raising one plus three   floors. As per the Act of 1945 , allotment was to be made with conditions  that they will have to deposit certain amount and then they will construct and  complete the building in the manner provided.  As per the  Act  of 1945  schemes  are prepared by the Board and after preparation of the scheme and  obtaining necessary approval from the Government, allotments are made as  per the Rules and Bye-laws.    The sites are allotted as per Rule 5 of the   Rules of 1964. The allottees are treated as lessee under Rule 6. Rule 7 deals  with the applications for allotment in Form I and after completion of  necessary deposits those who are eligible for allotment, sites are allotted to  them under Rule 10. Rule 17 deals with the conditions of allotment and sale  of site. Under sub-rule (4), after all other formalities have been made i.e.  payment of the lease money, allottee is intimated about the actual  measurement  of the site and particulars thereof and a lease-cum-sale  agreement in Form II  is executed by the allottee and the Board and the same  is required to be registered by the allottee after  constructing the building on  the site in accordance with the plans and designs approved by the Board.  It  further stipulates that in case it is considered necessary to add any additional  conditions  in the agreement the Board may make such additions.  It also  lays down that the approval of the City of Bangalore Municipal Corporation  for the plans and designs shall be necessary when the lay-out in which the  site is situated is transferred to the control of the said Corporation. Sub-rule  (5) of Rule 17 says that  the allottee shall comply with the conditions on the  agreement executed by him and the Buildings and other bye-laws of the  Board for the time being in force. Under Sub-rule (6) the allottee has to  construct the house within a period of two years and if the building is not  constructed within the said period  of  allotment, the Board reserves the right  to revoke the agreement. Sub-rule (7) lays down that the site or the building  constructed on the plot shall not be alienated during the period of tenancy.  Relevant rules which have bearing on the subject read as under :

"  17. Conditions of allotment and sale of site.-   xx            xx              xx (4) After payment under sub-rule (2) is made  the Board shall intimate the allottee the actual  measurement of the site and the particulars thereof  

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and a lease-cum-sale agreement in Form II shall  thereafter be executed by the allottee and the Board  and registered by the allottee. If the agreement is not  executed within forty-five days after the Board has  intimated the actual measurement and particulars of  the site to the allottee,  the earnest money paid by the  allottee may be forfeited, the allotment of the site  may be cancelled, and the amount paid by the allottee  after deducting the earnest money refunded to him.  Every allottee shall construct a building on the site in  accordance with the plans and designs approved by  the Board. If in any case it is considered necessary to  add any additional conditions in the agreement the  Board may make such additions. Approval of the  City of Bangalore Municipal Corporation for the  plans and designs shall be necessary when the lay-out  in which the site is situated is transferred to the  control of the said Corporation.

(5) The allottee shall comply with the  conditions on the agreement executed by him and the  Buildings and other bye-laws of the Board for the  time being in force. (6) The allottee shall construct a building  within a period of two 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. 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 a half per cent of the value of  the site paid by the allottee, the Board shall refund  the balance to the allottee.  (7) The site or the building constructed thereon  shall not be alienated during the period of the  tenancy."

The lease agreement is required to be executed in Form II. This lease  agreement is called Lease-cum-sale agreement. Form II of the lease  agreement reads as under :

       "      FORM NO.II         [See rule\005\005\005\005.]         LEASE-cum-SALE AGREEMENT An Agreement made this\005\005\005\005\005.day  of\005\005\005\005. 196    BETWEEN the City of Bangalore Improvement  Trust Board, Bangalore, hereinafter called the  Lessor/Vendor which term shall wherever the context so  permits, mean and include its successors in interest and  assigns of the ONE PART and\005\005\005\005..hereinafter  called Lessee/Purchaser (which term shall wherever the  context so permits mean and include his/ her heirs,  executors, administrators and legal representatives) of the  Other PART;         Whereas the City of Bangalore Improvement  Trust Board advertised for sale building sites  in\005\005\005\005\005Extension;         And Whereas one of such building site is Site  No\005\005 more fully described in the Schedule hereunder  and referred to as Property;         And Whereas there were negotiation between  the Lessee/ Purchaser on the one and  the Lessor/Vendor  on the other for allowing the Lessee/ Purchaser to occupy

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the property as Lessee  until the Payment in full of the  price of the aforesaid site as might be fixed by the Lesser/  Vendor as hereinafter provided;         And Whereas the Lessor/ Vendor agreed  to do  so subject to the terms and conditions specified in the City  of Bangalore Improvement (Allotment of Sites) Rules,  1964, and the terms and conditions hereinafter contained;         And Whereas thus the Lessor/ Vendor has  agreed to lease the property and the Lessee /Purchaser has  agreed to take it on lease subject to the terms and  conditions specified in the said Rules and the terms and  conditions specified hereunder;         Now this indenture witnesseth:

1.      The Lessee/ Purchaser is hereby put in  possession of the property and the Lessee/ Purchaser shall  occupy the property as a tenant thereof for a period of ten  years from  (Here enter the date of giving  possession)\005\005\005\005 or in the event of the lease being  determined earlier till the date of such termination. The  amount deposited by the Lessee /Purchaser towards the  value of the property shall, during the period of tenancy,  be held by the Lessor/ Vendor as security deposit for the  due performance of the terms and conditions of these  presents. " 2. The lessee /purchaser shall pay a sum of  rupees\005\005\005\005..per year as rent on or  before\005\005.commencing from\005\005\005" 3. The Lessee/ Purchaser shall construct a building  in the property as per plans, designs and conditions to be  approved by the Lessee/ Vendor and in conformity with  the provisions of the City of Bangalore Municipal  Corporation Act, 1949, and the bye-laws made there under  within two years from the date of this agreement: Provided that where the Lessor/ Vendor for  sufficient reasons extends in any particular case the time  for construction of such building, the Lessee/ Purchaser  shall construct the building within such extended period. 4. The Lessee/ Purchaser shall not sub-divide the  property or construct more than one 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.

5. The Lessee/ Purchaser shall not alienate the site  or the building that may be constructed  thereon during  the period of the tenancy. The Lessor/ Vendor may,  however, permit the mortgage of the right, title and  interest of the Lessee/ Purchaser in favour  of the  Government of Mysore, the Central Government or  bodies corporation like the Mysore Housing Board of the  Life Insurance Corporation of India, Housing Co- operative Societies or Banks to secure moneys advanced  by such Governments or bodies for the construction of the  building 6.      The Lessee/ Purchaser agrees that the Lessor/  Vendor may take over possession of the property with the  structure thereon if there is any misrepresentation in the  application for allotment of site. 7.      The property shall not be put to any use except  as a residential building without the consent in writing of  Lessor/ Vendor.

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8.       The Lessee/ Purchaser shall be liable to pay all  outgoings with reference to the property including taxes  due to the Government and the Municipal Corporation of  Bangalore. 9.      On matters not specifically stipulated in these  presents the Lessor/ Vendor shall be entitled to give  directions to the  Lessee/ Purchaser which the Lessee/  Purchaser shall carry out and default in carrying out such  direct5ions will be a breach of conditions of these  presents.  

10.     In the event of the Lessee/ Purchaser  committing default in the payment of rent or committing  breach of any of the conditions of this agreement or the  provisions of the City of Bangalore  Improvement  (Allotment of Sites) Rules, 1964, the Lessor/ Vendor may  determine the tenancy at any time after giving the Lessee/  Purchaser fifteen days’ notice ending with the month of  the  tenancy, and take possession of the property. The  Lessor/ Vendor may also forfeit twelve and a half percent  of the amount treated as security deposit under clause 1 of  these presents. 11.     At the end of ten years referred to in  clause 1 the total amount of rent paid by the lessee/  purchaser for  the period of the tenancy shall be adjusted  towards the balance of the value of the property. 12.     If the lessee / Purchaser has performed all  the conditions mentioned herein and committed no breach  thereof the Lessor/ Vendor shall, at the end of ten years  referred to in clause 1, sell the property to the Lessee/  Purchaser and all attendant expenses in connection with  such sale such as stamp duty, registration charges, etc.,  shall be borne by the Lessee/ Purchaser. 13.     On complying with the terms and  conditions of this agreement in the manner stated  above but not otherwise the Lessor/ Vendor shall be  obliged to execute the sale deed in favour of the  Lessee/ Purchaser. 14.     The Lessee/ Purchaser hereby also  confirms that this agreement shall be subject to the  terms and conditions specified in the City of Bangalore  Improvement (Allotment of Sites) Rules, 1964, and  agreed to by the Lessee/ Purchaser in  his/ her  application for allotment of the site. 15.     In case the Lessee/ Purchaser is  evicted  under clause 9 he shall not be entitled to claim from  the Lessor/ Vendor any compensation towards the  value of the improvements or the superstructure  erected by him on the scheduled property by virtue of  and in pursuance of these presents. 16.     It is also agreed between the parties  hereto that Rs\005\005 (Rupees\005\005\005\005..) in the hands of  the Lesser/ Vendor received by  them  from the Lessee  / Purchaser shall be held by them as security for any  loss or expense that the Lessor/ Vendor may be put to  in connection with any legal proceedings including  eviction proceedings that may be taken against the  Lessee/ Purchaser and all such expenses shall be  appropriated by the Lessor/ Vendor from and out of  the moneys of the Lessee/ Purchaser held in their  hands.

THE SCHEDULE SITE No\005\005\005 formed by the City of Bangalore  Improvement Trust Board in Block No\005\005\005in the

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\005\005\005..Extension. Site bounded on East by:                       West by:                 North by:                 South by : And measuring east to west\005\005\005. North to  south\005\005.. In all measuring\005\005 Square Feet. In witness whereof the parties have affixed their  signatures to this Agreement.                                 Chairman The City of Bangalore Improvement Trust Board  Witnesses: 1. 2.                                         Lessee/ Purchaser Witnesses: 1. 2.              ."                                       

The conditions which have been set out in the lease agreement and  which is relevant for our purpose is condition No.4. Condition No.4 has  already been reproduced above which provides that  lessee/purchaser shall  not sub-divide the property or construct more than one dwelling house.   Condition No.12 says  if the Lessee/ Purchaser has performed all the  conditions mentioned herein and committed no breach thereof the Lessor/  Vendor shall, at the  end of ten years referred to in clause 1, sell the property  to the Lessee/ Purchaser and all attendant expenses in connection with such  sale such as stamp duty, registration charges, etc., shall be borne by the  Lessee/ Purchaser. Condition No.13 says that on complying with the terms  and conditions of this agreement in the manner stated above but not  otherwise the Lessor / Vendor shall be obliged to execute the sale deed in  favour of the Lessee/ Purchaser. Therefore, looking to the scheme of the Act,  the Rules and the terms and conditions of the lease cum sale agreement, it  transpires that once an allotment is made  to the lessee and he makes all  payments then after the payment the lesser/ vendor shall at the end of ten  years sell the property to the lessee/ purchaser and the lessee/ purchaser will  get the sale deed registered. Therefore, if all the conditions of the lease  agreement are fulfilled, at the end of the stipulated period of ten years then  outright agreement of sale shall be executed by the lessor/ vendor with the  lessee/ purchaser and the lessee will have absolute right.  The lease  agreement also says that during the currency of the lease, the lessee/  purchaser shall abide by the terms and conditions of the lease. As per   condition  17 (7) reproduced above, the lessee/ purchaser shall not alienate  the property during the period of tenancy.  Once all the payments have been  fulfilled  by the lessee, then the land is registered in favour of the lessee by  the lessor and the lessee becomes absolute owner of the land. So long as  the  \building is not constructed under condition No.4 of the agreement  the  lessee is neither entitled to alienate the property under condition 17 (7), nor   shall be sub-divide the property or construct more than one dwelling house  on it. These restrictions are there so long as  the complete sale agreement is  not executed under condition No.12 of the lease-cum-sale agreement. As  soon as the lease agreement is executed conforming full title to the lessee,  then the conditions of the lease cum sale agreement come to an end and the  lessee acquires full right to deal with the said property in accordance with  the Act and the Rules bearing on the subject. After acquiring this full right  the lessee has right to alienate the property or  whenever either lessee or his  successor wants to construct a building thereon he can do so in accordance  with  the provisions of law.  Condition No.4 of the lease agreement was only  to survive so long as the lessee continued to be lessee as his rights of lessee  are restricted i.e. he cannot alienate the property nor can he subdivide the  property and he has to construct one dwelling house. The moment the lease  cum sale agreement is executed after following the conditions of the lease as  laid down, then there is no further hurdle or condition like not to construct  multi-storeyed building or multi-dwelling house. The only condition that he

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will construct only one dwelling house is contained in Condition No.4 of the  lease cum sale agreement and so long as the full rights are not transferred to  the lessee-purchaser, this condition would survive and after the sale is made,  this condition will no longer survive and conditions contained in absolute  sale deed will govern. If the lessee or his successor wants to raise a  construction, then the provisions of the Karnataka Municipal Corporation  Act will come into play and he has to obtain prior sanction for construction   of the building. As soon as the permission is granted by the Corporation,  then he is to abide by those conditions  along with the condition laid down in  absolute sale deed.

       Now, adverting to the facts in C.A.No.1416 of 1999,  an absolute sale  deed was executed on 13.7.1982 in favour of U.L.Nagaraj after he  constructed the house. The only condition which was incorporated in Clause  2 of the sale deed reads as under:

               "  The building to be constructed shall 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 or  warehouse or building in which manufactory  operations are conducted by mechanical power or  otherwise."

Therefore, the only condition was that it shall be used for human habitation  and it shall not allow any apartments to the building whether attached  thereto or not , used as a shop or a building or warehouse or for  manufacturing operation. There is no condition that one cannot raise any  multi-storeyed building over the schedule property.  The condition not to  have more than one dwelling house was  the condition No.4  of the lease  cum sale agreement but that condition has not been repeated when the  absolute sale was made in favour of a party.  As such, the condition No.4 of  the lease cum sale agreement survived during the currency of that  agreement. As soon as absolute sale is made then prohibition comes to an  end.  The lease cum sale agreement was to continue for a period of ten years  or till all the conditions are fulfilled. The moment the conditions laid down  in the lease cum sale agreement are fulfilled i.e. the entire money is paid and  the registration is done and thereafter final absolute sale agreement is  executed then the so called  lease cum sale agreement comes to an end and  the condition No.4 cannot subsequently guide the sale purchase agreement.  The sale purchase agreement  has its own terms and conditions and the   condition as reproduced above, only says that  the building to be constructed  shall 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 or warehouse or used for manufactory operations by mechanical  power. Therefore, in this final agreement which has come to be executed and  which has been registered the condition is that the building has to be used  for human habitation and there is no prohibition contained therein that it  cannot raise multi-storeyed building.  In this connection, much emphasis  was laid on the decision in Pee Kay Constructions case.  With respect we  do not see any condition under the provisions of the Act and the Rules which  prohibits raising of multi-storeyed building after final sale agreement has  been executed. This condition was to remain in force so long as  the absolute  agreement has not been executed.  The condition to construct one dwelling  house was only so long as  the other conditions laid down in the lease  agreement were not complied and final sale agreement has not been  executed. Therefore condition  17(4) lays down that within 10 years the  lessee-purchaser has to complete all the formalities or earlier than 10 years ,  then in that case, the final agreement for absolute purchase could be  executed. Once the final agreement is executed then the lessee- purchaser  becomes absolute owner of the schedule property and he has to  abide by the  conditions of the final agreement for sale and other provisions bearing on the  subject. The final agreement only contains the condition that the lessee \026 purchaser should use the schedule property for human dwelling purpose and  it will not be used  in apartment of that building for purpose of shop or for

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warehouse or for manufacturing process, therefore, the view taken in Pee  Kay Constructions case cannot be said to be a good law.   

       Learned counsel for the respondents has tried to raise certain  objections  that in the final agreement the expression "apartment" has been  used which shows that there cannot be more than one dwelling house. We  regret to say that this interpretation does not bear out in the face of the  language used in the clause 2 of the final agreement which says that  the  building to be constructed shall be used  wholly for human habitation and  shall not include any apartments to the building whether attached thereto or  not for shop or warehouse or manufacturing purposes but that does not make  out a case for prohibition of raising of the multi-storeyed building. Once the  Municipal Corporation has permitted to raise  construction more than three  floor then this condition for construction will hold good and they are not  contrary to any of the provisions of the Act. Section 505 of the Karnataka  Municipal Corporation Act,  1976 only says that  the Corporation shall  exercise power in conformity with the provisions of the Karnataka Town and  Country  Planning Act, 1961. Therefore, the Corporation at the time of  granting permission has to keep in mind  the provisions of the Karnataka  Town and Country Planning Act, 1961.  But we have not been able to find  any provisions of the  Karnataka Municipal Corporation Act or Karnataka  Town and Country Planning Act, 1961  where any ceiling has been applied  on the construction of the multi-storeyed  building. Therefore, we do not  find that the Municipal Corporation has committed any illegality in granting  permission to the appellant for raising construction up to third floor.

       In view of the discussions made above, we are of opinion that  permission granted by the Bangalore Municipal Corporation to the appellant  for raising the construction up to third floor is not in violation of any of the  provisions of the Act and the Rules.  

       Next question is whether such Public Interest Litigation should at all  be entertained & laches thereon.  This sacrosanct jurisdiction of Public  Interest Litigation should be invoked very sparingly and in favour of vigilant  litigant and not for the persons who invoke this jurisdiction for the sake of  publicity or for the purpose of serving their private ends.

       Public Interest Litigation is  no doubt a very useful handle for  redressing the grievances of the people but unfortunately lately it has been  abused by some interested persons and  it has brought very bad name. Courts  should be very very slow  in entertaining  petitions involving public interest  in a very rare cases where public at large stand to suffer.  This jurisdiction is  meant for the purpose of coming to the rescue of the down trodden and  not  for the purpose of serving private ends. It has now  become common  for  unscrupulous people to serve their private ends and jeopardize  the rights of  innocent people so as to wreak vengeance for their personal ends. This has  become very handy  to the developers and in matters of public contracts. In  order to serve their professional rivalry they utilize  the service of the  innocent people or organization in filing public interest litigation. The  Courts are sometimes persuaded to issue certain directions without  understanding implication and giving a handle in the hands of the authorities  to misuse it.   Therefore, the courts should not exercise this jurisdiction  lightly but  should exercise in a very rare and few cases  involving public  interest of large number of people who  cannot afford litigation and are made  to suffer at the hands of the authorities.  The parameters have already been  laid down in a decision of this Court in the case of  Balco Employees’  Union (Regd.) v. Union of India & Ors. reported in (2002) 2 SCC 333,  wherein this Court has issued guidelines as to what kind of public interest  litigation should be entertained and all the previous cases  were reviewed by  

"\005\005\005.

77. Public Interest litigation, or PIL as it is more commonly known,  entered the Indian Judicial process in 1970.   It will not be  incorrect  to say that  it is primarily the Judges who have innovated this type of

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litigation as there was a dire need for it.  At that stage,  it was intended  to vindicate public interest where fundamental and other  rights  of the   people who were poor, ignorant or in socially or economically  disadvantageous position and were unable to seek legal redress were  required to be espoused.  PIL was not meant to be adversarial in  nature and was to be a cooperative and collaborative effort of the  parties and the court so as to secure justice for the poor and the   weaker sections of the community who were not in a position to  protect their own   interests.    Public interest litigation  was  intended   to means nothing more than what words themselves said viz.   "litigation in the interest of the public".

78.While PIL initially was invoked mostly in cases connected with the  relief to the people and the weaker sections of the  society and in areas  where there  was violation of human rights under Article 21,  but with  the passage of time, petitions have been entertained in other spheres,   Prof. S.B. Sathe has summarized the extent of the jurisdiction which  has now been exercised in the following words::

       "PIL may, therefore, be described as satisfying one or more of  the following parameters.  These are not exclusive but merely  descriptive;

-       Where the concerns underlying a petition are not  individualist but are shared widely by a large number of  people (bonded labour, undertrial prisoners, prison inmates.) -       Where the affected persons belong to the disadvantaged  sections of society (women, children, bonded labour,  unorganized labour, etc.) -       Where judicial law making is necessary to avoid  exploitation (inter-country adoption, the education of the  children, bonded labour, unorganized labour, etc.) -       Where judicial law making  is necessary to avoid  exploitation (inter-country adoption, the education of the  children of the prostitutes). -       Where judicial intervention is necessary for the protection of  the sanctity of democratic institutions (independence of the  judiciary, existence of grievances redressal forums.) -       Where administrative decisions related to development are  harmful to the environment and jeopardize people’s  right to  natural resources such as air or water."

79. There is, in recent years, a feeling which is not without any  foundation that public interest litigation is now tending to become  publicity interest litigation or private interest litigation and has a  tendency to be counterproductive.

80.   PIL is not a pill or a panacea  for all wrongs.  It was essentially  meant to protect basic human rights of the weak and the  disadvantaged and was  a  procedure which was innovated where a  public spirited person files a petition in effect on behalf of such  persons who on account of poverty, helplessness or economic and  social disabilities could not approach the Court for  relief.  There has  been in recent times, increasingly instances of abuse of PIL.  Therefore,  there is a need ;to reemphasize the parameters within  which PIL can be resorted to by petitioner and entertained  by the  Court.   This aspect has come up for consideration before this Court  and all we need to do is to recapitulate and reemphasize the same."

In this connection reference may be made  to a recent decision   given by  this  Court in the case of  Dattaraj Nathuji Thaware Vs.   State of Maharashtra & Ors.   (S.L.P.(c) No.26269 of 2004)  in which   Hon’ble Pasayat J. has also observed as follows:

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" Public Interest Litigation  is  a weapon which has to  be used with great care and circumspection and the  judiciary has to be extremely careful to see that  behind the beautiful veil of public interest  an ugly  private malice, vested interest and/or publicity  seeking is not lurking.  It is to be used as an effective  weapon in the armory of law for  delivering social  justice to the citizens.  The attractive brand name of  public interest litigation should not be used for  suspicious products of mischief.  It should be aimed  at redressal of genuine public wrong or public injury  and not publicity oriented or founded on personal  vendetta."         We fully share the views expressed  in the aforesaid decision of  this Court and reiterate that  it should go a warning to the Courts that   this extra-ordinary power should be used sparingly and absolutely in  necessary matter involving down trodden people.         In this connection learned counsel has rightly pointed out that  delay is very material. He has invited our attention to a number of  decisions of this Court where this Court has declined to interfere on  account of delay.  In the case of  State of Madhya Pradesh & Anr. v. Bhailal Bhai  & Ors.  reported in AIR 1964 SC 1006,  it was observed as follows:

" The provisions of the Limitation Act do not  as such apply to the granting of relief under Art. 226.  However, the maximum period fixed by the  Legislature as the time within which the relief by a  suit in a civil court must be brought may ordinarily  be taken to be a reasonable standard by which delay  in seeking remedy under Art.226 can be measured.  The Court  may consider the delay unreasonable even  if it is less than the period of limitation prescribed for  a civil action for the remedy but where the delay is  more than this period, it will almost always be proper  for the Court to hold that it is unreasonable." In the case of Rabindra Nath Bose & Ors. v. Union of India &  ors. reported in AIR 1970 SC 470. it was observed as follows:

" No relief can be given to petitioners who,  without any reasonable explanation, approach  Supreme Court under Art. 32 of the Constitution after  inordinate delay. The highest Court in this land has  been given Original Jurisdiction to entertain petitions  under Article 32 of the Constitution. It could not have  been the intention that the Supreme Court would go  into stale demands after a lapse of years. Though  Article 32 is itself a guaranteed right, it does not  follow from this that it was the intentionof the  Constitution makers that Supreme Court should  discard all principles and grant relief in petitions filed  after in ordinate delay."

In the case of  Durga Prasad v. The Chief Controller of Imports  and Exports  & Ors. reported in AIR 1970 SC 769  Their Lordships  observed as follows: "  Where an applicant for an Import licence in  1959 received a licence only for a fraction of the  amount for which he had asked for, chooses to wait  and comes to a Court in 1964 requesting for a writ of  mandamus even if his fundamental rights are  involved, the matter is still in the discretion of the  High Court, and the High Court in its discretion can  refuse the issue of a writ because of the laches of the  applicant."

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In the case of  Ramana Dayaram Shetty v. The International  Airport Authority of India & Ors. reported in AIR 1979 SC 1628,  even five months delay was considered to be fatal.  It was observed as  follows: " Moreover, the writ petition was filed by the  appellant more than five months after the acceptance  of the tender of the 4th respondents and during this  period, the 4th respondents incurred considerable  expenditure aggregating to about Rs.1,25,000/- in  making arrangements for putting up the restaurant  and the snack bars and started running the same. It  would now be most inequitous to set aside the  contract of the 4th respondents at the instance of the  appellant. The position would have been different if  the appellant had filed the writ petition immediately  after the acceptance of the tender of the 4th  respondents but the appellant allowed a period of  over five months to elapse duringwhich the 4th  respondents started their position. We are, therefore,  of the view that this is not a fit case in which we  should interfere and grant relief to the appellant in the  exercise of our discretion under Article 226 of the  Constitution."

In the case of  Ashok Kumar Mishra & Anr.v. Collector,  Raipur & Ors. reported in AIR 1980 SC 112, it was observed that  when the final electoral roll was published in Nov. 15, 1978 it was  notified that the nominations could be filed on and after Nov.25,1978  and the poll , if necessary, would take place on Dec.31,1978. After  Nov. 25, 1978, a large number of nominations were received by the  Returning Officer. It was only on Dec.5,1978 for the first time that a  letter was addressed by petitioner to the Collector drawing his  attention to the error that had crept into the notice published under  Rule 4(1) of the Rules. By that time, the nominations had all been  received. The final list of candidates for the election with their  symbols was published on Dec.20,1978. The writ petition itself was  filed on Dec.28,1978 when the poll had to take place on Dec. 31,1978.   In that context, Their Lordships observed as follows:

" No satisfactory explanation was given in the  course of the petition by the petitioners, as to  why  they delayed the filing of the petition till Dec.28,1978  even though they knew that there was an error in the  notice issued under R.4(1) of the Rules in the month  of Oct.1978 more than 2 months before the date on  which it was filed." Their Lordships dismissed the  petition as there was no satisfactory explanation for  the delay in preferring it.

In the case of State of Maharashtra v. Digambar reported in  (1995) 4 SCC 683, Their Lordships observed as follows:

"  The  power of the High Court to be  exercised under Article 226 of the Constitution, if it  is discretionary,  its exercise must be judicious and  reasonable, admits of no controversy. Persons  seeking relief against the State under Article 226 of  the Constitution, be they citizens or otherwise, cannot  get discretionary relief obtainable thereunder unless  they fully satisfy the High Court that the facts and  circumstances of the case clearly justified the latches  or undue delay on their part in approaching the Court

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for grant of such discretionary relief. Therefore,  where the High Court grants relief to a citizen or any  other person under Article 226 of the Constitution  against any person including the State without  considering his blameworthy conduct, such as latches  or undue delay, acquiescence or waiver, the relief so  granted becomes unsustainable even if the relief was  granted in respect of alleged deprivation of his legal  right by the State."                  There is no doubt that delay is a very important factor while  exercising extraordinary jurisdiction under Article 226 of the Constitution.  We cannot disturb  the third party interest created on account of delay. Even  otherwise also why Court should come to rescue of person who is not  vigilant of his rights ?         

We are of the opinion that delay in this case is equally fatal, the  construction  already started by the appellants in 1987 and building had  come up to   three floors.  Thereafter it was stopped in  1988 and in March,  1991 it resumed after permission was granted.  The Writ Petition was filed  in  November, 1991 meanwhile almost  construction was  complete.   Therefore, delay  was fatal  in the present case and learned single judge   rightly held it.   It was also brought to our notice that   46 multi storey  buildings have come up  in this area.  Learned counsel  has produced  photographs to  show that  buildings more  than  three and four floors have  been constructed in  and around this area.   

However, we are satisfied that there is no prohibition under the  provisions of the Act and Rules putting the ceiling  on construction of the  multi storey building.  We are also satisfied  that the delay is also fatal in the  present case.

       It was also contended  by the   learned counsel for the Appellant that  the appellant had no locus standi  to file this petition as the present  association is neither  representative  association nor a registered body.   Therefore,  the Court  should not have entertained the PIL on behalf of ;  such unregistered and unrecognized body.   It is true  locus in such Public  Interest Litigation is very relevant factor & Court should always inquire into  the locus of person before entertaining such petition. We have already  observed above that Public Interest Litigation should be entertained in very  rare cases.

Learned counsel has also invited our attention  to Section 11   of the Transfer of Property Act  to urge  that once absolute right has  conferred on the property then no rider can be put to enjoyment of that  property.   It is not necessary to go into this question in this case.

As a result of our  above discussion,  we set aside the judgment  of the Division Bench of the High Court and  allow the appeal i.e.  C.A.No.1416 of 1999.  The facts of C.A.No.1415 of 1999 are  identical with that of C.A.No.1416 of 1999. Therefore, this appeal is  also allowed for the reasons mentioned aforesaid. C.A.No.1417 of  1999, has been filed by persons who have already purchased the flats  and they are living in the said flats of the multi-storeyed buildings.  Therefore, third party interest has already been created. As such this  appeal is also allowed for the reasons mentioned above. However,  there will be no order as to costs.